r ? -uausi HIGHCOURTOFCHHATnSGARH.BILASPUR CQRAM: Hon'bleSMriRaieevGuDta.C.J.& Hon'bl&Shri SunilKumar Sinha.^J. Criminal ApDeal No. 586 of 2003 Ram Das& others Vs. State of Chhattisgarh JUDGMENT ;onsideration Sd/- Sunil Kumar Sinha Judge HON'BLESHRIJUSTICERAJEEVGUPTA ^^r^JZ-^ Sd/- GhiefJustici ..'-f ^> 109/2009 Post for Judgment : g /09/2009 SAIi SunHKumarSiiaha —^ Jvidge ijiianiiwii- Bis HIGH COURTOFCHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'bleShri Suhil KumarSinha. J. Criminal ApDeal No;586of2003 ga iai APPELLANTS liii;' ^-T-r /-• RESPONDENT 1. Ram Das, aged 45 years S/o. Pardesi ' Satnami (Name, deleted on account of death as pep'orderdated 20.1.2009) 2. Ajay, .aggd, 20 years S/o. Ram Das Satnami 3. Santosh, aged 22 years S/o Ram Das Satnami All R/o. Village Kumhari, P.S. Bilaigarh, District Raipur (C.G.) Versus State of Chhattisgarh, (ADDealunderSection374(2)ofTheCodeofCriminalProcedure) ADDearahce: Mr. Hanuman Prasad Agrawal, Counsel for the appellants. Mr. Kishore Bhaduri, Additional Advocate General, for the Stat JUDGMENT ( g .09.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. v (1) The appellants have been convicted and sentenced in the following manner by the First Additional Sessions Judge, Baloda Bazaar, in Sessions Trial No. 462/2002 on 5th of March, 2003with a further direction ,t<) run the sentencesconcurrently:- ..<''' ..<'" Criminal Apoeal No. 586 of2003 .r^ > Conviction u/s 302/34 IPC Sentence Imprisonment for life and to pay fine of Rs.1,000/-, in default of payment of fine to fyrther undergo R.l. for 1 year, u/s 323 IPCto appellant R.l. for6 months Santosh & u/s 323/34 IPC to other appellants. (2) The facts, brieflystated.are ds.under:- Deceased Kailash Navratna and the appellants were neighbours. Their houses are situated at one place in village Kumhari. The dispute arose on account of constructing C/iafcufra (platform) near a pepa/ tree which was claimed to be thatofthe deceased. On 9.8.2002, the deceased had dug foundation for constructing the Cha&ufra near the pepa/ tree, On 10.8.2002, at about 9.30 a.m., the accused persons started filing the foundation, on which, the deceased came there and obstructed them. While the deceased was taking: out the stones filled in the feundation, accused Ram Das threw a big stone on the head of the deceased, due to which, he fell down in the foundation itself. It is alleged that thereafter accused Ajay and accused Santosh also assaulted the deceased with spade and lathi. The incident was witnessed by Hemlata (PW-1, daughter of the deceased) and Ganeshi Bai @ Butai (PW-2, wife of the deceased). The deceased received many injuriesand he succumbed to those injuries. During the course of incident, Hemlata (PW-T) was also assaulted by Santosh by /a / who received simple injury. A Merg intimation (Ex,-P/1) was lodged on 10.8.2002 at about 13.0Q hoyrs. DeAa?/na/;s/7; (Ex.-P/2) was also lodged on the samedayatabput 13.10 hoyrs. The lnv6stigating Officer reaehedto the scene ofoccurrence, gave notice (Ex.-P/10)to the Panchas and •prepared inquest (Ex.- CriiiunalApceal No. 586 of2003 P/11) on the bodyof the deceased. Blood stained soil, plain soil, oneslipper and one stone of 5-6 Kg were seized from the place of occurrence under 6x.-P/3. One spade and certain other articles were also seized from the place ofoccurrence under Ex.-PM.After taking the accused -persons into custody their memorandum statements (Ex.-P/5 & P/6) u/s 27 of the Evidence Act were recorded and one spade was seized from the possession of appellant Ajay Kumar under Ex-P/7 and one /afft/ was seized from the possession of appellgnt Santosh Kumar under Ex.-P/8. Site plan was prepared undei' Ex.-P/15. A First tnformation Report was lodged in policestation Bilaigarh under Ex.-P/14. Sflr !111> The dead body of the deceased was sent for its post-mortem to Community Health Centre, Bilaigarh under Ex.-P/16(A), where the post-mortemexamination was conducted by Dr. K.K. Gandarwa (PW-11), who prepared his report Ex.-P/16. The Autopsy Surgeon noticed two lacerated wounds 6n the skull with fracture of skull bone. He opined that the tiause of death was head injury with haemorrhage and it was homicidal in nature. Injured Hemlata (PW- 1) was also sent for her medical examination under Ex.-P/20(A) and her MLC report EX.-P/20 was colleGted. According to the M.L.C. report.she systained one simple injury on the right index- finger. Theseized articles were sent for their chemical examination to Forensic Science Laboratory, Raipur under Ex.-P/26, from where, a report Ex.-P/28 was received. According to the F.S.L. report, blopd stains were found on all the articles except plainsoil andthe/af/1/seizedfromthepQssession ofappellantSantosh. After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate, First Class, Baloda Bazaar, who in turn committed the matter to the Sessions Court, Raipur, from where, it was received on transfer by the First Additional Sessions Jydge, Baloda Bazaar, who conducted the trial and eonvicted ahd sentenced th& accused/appellants as aforementioned. l Ri^ticsaiiwwi 1-tH.^c;'.•:E'^- i=M;E sfEr^^"-v;'~jys;; 's'iS^i |—=S Criminal Auoeal No. 586 of2003 (3) Appellant No.1, Ram Das, died during the pendency of the appeal on 14.9.2008, therefore, his namewas deleted fromthe array of the appellants. The two other appellants are the sons of appellant No.1, Ram Das. (4) The cdnviction ©fthe appellants is based on the testimonies of two eye-witnesses namely Hemlat^'(PW-1, daughter of the deceased) and Ganeshi Bai @ Butai (PW-2, wife oftfie deceased). (5) Mr. Hanuman Prasad Agrawal, learned counsel appearing on behalf of the appellants, has not disputed the homicidal death of the deceased. Moreover, itcomes in the evidenceof Hemlata (PW-1) and Ganeshi Bai (PW-2) that the deceased was assaulted by the accused persons by stone, spade and /af/?/', due towhich, he received many injuries and succumbed to those injuries. The Autopsy Surgeon also found fractureof theskullarid opined that the cause of death was head injury with haemorrhage and it was homicidal in nature. Therefore, it was establishedthatthedeathofthedeceasedwas homicidalin nature. (6) Mr. l-1anuman Prasad Agrawal has also not disputed the complicity of these appellants in crime in question. He also argued that the background in which the incident took place and the manner in which the deceased sustained injyries would show that the appellants were having no intention to cause death of the deeeased. It does not come in the prosecution evidenee that'they appeared.at the scene pf occurrence with deadly weapons. He further argued that, in fact, while ifhe accused persons were filling the fbundation, by spade, dug by^the deceased, We <~ il!isi!l ]11.!1 H:iiill !! I ., gijlltjt ^ BirilihU; ! '•Mf< S:: [ >/'l /x Criminal Aoueal No. 586 of2003 deceased eame there and a quarrel took place in whieh the father of accused No. 2 & 3 (appellants No. 2 & 3 herein) threw thestone, which hitthe headofthe deceased, due to which, he sustained injury over the head which ultimately proved fatal against him. Therefore, in the facts and circumstanees of the Gase, the acts of the appellants would not be punishable u/s 302 IPC and they would be liable for punishment under Part-tl of Section 304 IPC; , ,..(. ^. ' • • •'•••• (7) On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalfofthe State, opposed these arguments and supported the judgment and order passed by the Sessions Court. (8) We haye heard the learnecl counsel for the parties at length and have also perused the records of the sessions case. (9) Hemlata(PW-1)deposed that her father has dug the foundation for construction of Chabutra near the pepal tree. On the date of incident, the accused personsstarted filling thefoundation. Thiswas informed by her brother Hemant Kumar, on which, she sent him to call his father. On this, accused Ajay Kumarstarted abusing her. At the same time, herfather came there and resisted all this. He went inside the foundationand started removing the sfones and soil from the foundation, on which, accused Ram Das (since deceased) threw one stone of foundafion on his head. When her father fell down, Ajay assaulted him by spade and Santosh assaulted him by /a f. She was also assaulted by lathiby Santosh. N. • .r !: w El' V li;;1 r>:' ' Cruninal Aripeal No. 586 of 2003 (10) Ganeshi Bai @ Butai (PW-2, wife ofthe deeeased) deposed that when the accused persons were filling the foundation, it was opposed by \., her daughter Hemlata (PW-1) who was abused by them. Hemlata sent her brother tocall his father who had gone to playchess in the village. When her husband came there, he started resisting the accused persons, onwhich, the accused personsstarted abusing him and theydidnotstop filling of the foundation. On this, her husband went in the foundationand .•'•....... . _ : - started removing outtheearth.At j:hattime, accused Ram Dasthrewone stone on the headof her husband who received injury onthe head. Ajay assaulted her husband byspade and Santoshassaulted herhusband by lathi. (11) The evidence of these two witnesses shows that the dispute arose when the deceased resisted the accused persons from filling the foundation dug byhim on a previous day for construction ofCftabufra. In fact, the deceased was claiming that the pepa/ tree near which the Chabutra was betng constructed was planted by their fprefather, therefore.they had a right over the plaSe, whereas, the appellants were disputing this as it was very adjacentto their house. PW-8, Halka Patwari Kaushal Prasad Chandrakar in his examination-in-chief, deposed that the boundary of the courtyard of the accused persons was adjacent to the pepal tree. It is also clear from the map, Ex.-P/15, proved by Kaushal Prasad Chandrakar (PW-8). It appears that due to these reasons, the accused persons were opposing construction of Chabutra. Lathi \s a common article, which is normally carried by the villagers and spade was brought for filling'lhe foundation by the accused persons. During the irre], the aecused persons, all of a sudden, used these articles and y .)': 1 Criminal Aopeal No. 586 of 2003 appellant No.1 (since deceased), caused fatal injury on the head of the deceased by throwing one stone which was lying there for filling the foundation. This shows that nothing was pre-planned and there was no preparation on the part gf the accused persons to commit murder of the deceased and in such a circumstance, it eannot be said that they were having intention to cause death ofthe deceased. However, the facts and circumstances of the case would show that the appellants must be attributed to have the knowledge that by doing such an act they were likely to cause death of the deceased, in which cases the offehce would be one punishable u/s 304 Part-11 read with Section 34 ofthe IPC. (12) In the result, the appeal is partly allowed. While maintaining the conviction and sentenees awarded to the appellants u/s 323 & 323/34 IPC, their conviction and sentences u/s 302/34 IPC are set aside. Instead -<»..' . . . . -- . _ ....__- thereof, they are conyicted u/s 304 Part-11 IPC and sentenced to undergo rigorous imprisonment for 7 years. The sentences awarded to the appellants (u/ss 304 Part-11/34 and 323 & 323/34 IPC) shall run concurrently. (13) It is stated that the appellants are in jail since 11.872002. They shall be entitled to set-off the period already undergone by them. In this manner, they have already undergone the sentences awarded to them. Therefore, they be released, forthwith, if not required in any other case. Sd/- Chief Justic CHIEF JUSTICE Sd/- Sunil Kumar Sinha Judge