III/Igg/gtnuallououtiml I \ WI 5‘ " 266 ‘ Uiv‘lSiGn Bantu “rm mm ) IN M HIGH COURT OF JUDICATU$ AT JABALPUR M LL Case \Nu'n Ammmmg' \1 Awaal/Re‘w$}2‘pz ‘ I. Med Ccpy :i CRMINAL APPEAL UNDE3 SECTION 321+(2) OF THE GRDIINAL PRO€EDURE CODE- SENIENCE U/S 302 EC. ,t . .Imprisonment for life . U/s 323 IPC. C OIW IC TION: " ..R.I.I'or one yearn (Sentences to run concurrently) , \ if CB. APPEAL No, \Q 9 Cés OF 1999 }i Baldau son 9f Buchhu Sida: , i aged HO years,resident of (i 1,. Murki, P§ Mahasamurd ,Disgh f y ’:§aip!r , MP ‘ ¥ i 13 g‘w "3b ' . (IN JAIL) I 6* C3“av“ t“ w VS. w < My I T‘H‘F} STATE OF MAMYA PRADESI XI-‘HC—78 ’ WWW Dals. 2-2-2007:- Smt. Indira Tripathi, c ei for appellant in CLA. No.1253/99. . Shfi‘JIA’. ~Lohani,"¢ouhse ’for appellant No 1 in Cr A No 1398/99 E Shri H’B‘ Agrawal S . Advocate wuth Shn Pankaj Agrawal $dvocate for appellant No 2 In ‘I' A No 1 398/99 Shn R K Jam, counself r appellant in Cr A No 1698/99 Shn Akhll Mlshra Panel awyer for the Slate/respondent Oral judgment dictated ” Per’L.C. Bhadoo. Aq.vc.J. ; Criminal Appeal No.1 /99 filed by Baldau, Criminal Appeal i No.1253/99 filed by lshwar,. d Criminal Appeal No.1398/99 med 'by' 1 Ramnath & Udhor’am‘are arisi g out of same incident and same judgment dated 26-4-99 in“ ,S.T; No.1 97 & Special Sessions Trial No 29/97 therefore, they are being disp d of by this common judgment o e The accUsed/appellantzr have preferred these appeals under Section 374 (2) of the=Cr.P.C. questioning legality and correctness of the judgment of conviction and order of sentence dated 26/4/99 passed by the Special Jude, Raipur whereby learned _Special Judge convicted and sentenced accused/ appellants as under:- Name of the accused ’ Conviction & Sentence l ’ i lshwar ’ U/s ‘ 302 IPC, sentenced to ' V undergoimprisonmentforlife. P.T.O. a ou s , 8 n / XI—HCJ78 67) mm...‘n..n..in.u a1 200 WW(W) W$r>iétn¢ WWfrwm mmaFa‘am ‘ éawm ‘ ‘lRamnath Gada&Baldaun U/S’ 302 & 323 IPC each ’ ’ r ’ se’htenced ~ to undergo Imprisonment fer hfe & R I for 1 year respectively Udho; \ ( - . Uls 302 & 323 IPc a. 3(1)(x) of ‘ the Scheduled Castes and t ‘ , 1 Atrocities) ’Act. 1989. sentenced I r r r to undergoiimprisonmentfor life. to’undergo RI for 1 year & to _ , undergo R l for 6 months to pay . ' .\ a tine of Rs 5OOI- In default of i payment of fne to further ’ e a » undergo ‘R.l., for .10 days, respectively lt was also ordered that all the sentences shall run concurrently The case of the prosecu Ion, in brief, is that on 11/1 1/96 at 4 ‘p.m. in 1 Village Murkl P S Mahasamund the accused persons armed with weapon, v I formed unlawful assembly wrtl' a object to use criminal force and cause _ >violence and to commit mischef m pursuance of common object they attacked persons of Satnamr community. thereby Infllcted Simple rnrunes to 7 8 persons m pursuance of common object assaulted Ramnath wrth Lathl With Intention to cause hrs death, and committed hrs murder, thereby 1' they committed offence under Sections 147,148, 149, 341 , 294, 323, 336, 1427 andaoz dime LP.c. Thematter was reporter by PW-1 Smt. Mati gal on’the same day ‘ at about 2O 45 hours in the ni ht in the Police Station Mahasamund On .,the report of PW-1 Smt Matl al offence under Sections 294 & 323 IPC ‘ was registered under Ex -P/5 The investigating Offcer left for scene of ’ occurrence luring the police ustody, Baldau gave memorandum Ex-P/2 ‘s c ' RIO. f H: 7' ‘5‘ I ' ' s V7 r Scheduled Tribes (Prevention of Wmooo.‘ ...o..... .. ..... w'zoo. XI—HC—78 mm,mng,%aragt W® wwwm eon f ence hi in purnc of Lathi a regarding wap o off .e. ,Lat, suae . th‘at ws ’ taken into poession und .-P/3. hell pan of accused Baldau i ith ood as seize er Ex,.-P/. Inju ti hr G Ra Ad Me'httar Hemumn Sud" examination inju s ie Ex -P in f ti Ex-A in -A in t f Sir x9A in R A.Ex i pe r x - i mai x -5 espect riya and E -/1 in we preard b Dr Akhil m Triphi () Rnh S/ du amat o Ahr 1 1/96 he ws te e ol Ma ro wh a 1/1 a akn to th spita ahsamund fm ere he ws st lg o 1 D treaen he succ o the s 17 1/ R i na o x- x-4A} r vi eceiving nerg itim n {EP/24 & EP/2- afte ging P/1 to e anc , nveag Ofer repare quest (EP/11 on t o atna The ody of nah Sata was sent for ostmor exaan to Maikhara Hospita t _ postmortem was conducted n the body of Ramnath Satnami by Dr Arvmd Neralwar (PW-16) post ortem report Ex -Pl23 was prepared The doctor opined that Ramnath atnami died on account of coma due to - head injury. ,Site plan Ex.-P/2 of the place of occurrence was prepared. red Ma, Ramesa hasiram, Bhagwat, mnath S/o hru, a ka, n vemt sa a n or a fter "s ry report /6-A respect o Ma P/7- respec o Ghaam, E.-P/ ,’ in respect of amnath S/o dhru..- P/13 n resct of Mehatta E P/14 n respect of Hemkur E P/1 in r of Sunda P6 respect of Kanwar Ram er pe y esh Ku at PW-15 , Ram're s t " Gornen Hopitl Mahsa ud f examintion of their iniuries A xrt esh rEP ree o Byaat, x.-P/ ted the. inide da; usain injuries in cnt ted \P.T.O. mW<W> WW§ER $WW ss er E,x Trfu f staned w bl w d und 4 riya Kanwar we ent o the espec of Ramar x.-/ spct f gw E12 hifed to Medical Colee Hes ital Raipur n 13/ 1/96 uring tmt umbed t injurie o /1 96 notice Ex-O th Ph s lstigtin fc pd in x-) he body f R‘mnath Smi b Ramt nmi pt m mintio a l he XI—‘HC—78 HWW W mm o..ro’o...‘... H1 200 Wmmaiawr) .‘ammm ’Wmiimm $Wm mmaf‘ga‘snéw After completion of Inve‘ txgatlon charge sheet was med against 16 ‘ accused persons Includmg 4 accused/appellants In the Court of Judlcrat ‘ Magistrate. 1" Ctass, Mahas-arr ‘ case on transfer for triat‘ ' in ST No 140/97 framed the charges Learned Speclal Judge gamst accused persons n mely Baldau, Ramnath Ganda Samlu Kanwar Ram Gond, Sonsar an ~Ramesh for commusslon of offence under Sections 147, 148, 323 and 30 of the LP.C. whereas, in Special Sessions ‘ Trial No.29/97 framed the c arges against accused persons namely, "ahu, Parmananq, Tiiuram, Bhakka @ Santram Mehtaru and Bharat for j commissmn of otfence unde I Sections 147 148 323 302 IPC and Section 3 (1 )(x) of the Sched me, who m turn committed the ease to the ’ \C' Sessions Judge; Raipur fromv‘where‘ learned Special Judge recéiVed the : lshwar. ‘Munna @ Punit Rambharos. Udhoram, Castes & Scheduled Tnbes (Prevention ’V of Atrocities) Act, 1989. Ho ever. the accused persons abjured the charges Prosecution In orde‘r to establish the charges against the accused persons examined 21 Witness s Statements of accused persons were ‘recorded under Section 313 CrPC m which they denied material appearing against them in the prosecution evrdence, stated that they are innocent and have been falsel implicated in the crime. LearnedSpecial Judg after hearing arguments of counsel for respective parties convicted ccused person’s namely lshwar, ‘Baldau, gRamnath‘Ganda‘and Udho a aforementioned whereas, acquitted other ’ 1‘2 accused persons. XI-Hc—7s WW,W:W ~ Wm ...V.. w 200 WW(W) WWW&1%Q‘1WR 1 wmm Téxwanw /We have heard Iearned :ounselforthepa’rties. ‘ Learned counsel for the accused/appellants have not disputed homlclda! death of Ramnat tnaml MoreoVer, from the evidence of : eyewnnesses namety PW-1 Smt Matl Bal. PW-2 Ghasuram PW-3 Mehathr PW-5 Smt Hemk ‘I Bal, PW-6 Rameshwar PW-7 Bhagwat ‘ W-s Smt Sundan Ban & me Ical evudence of Dr Arvmd Neralwar (PW-7 16) who has stated that he conducted postmortem on the body of Ramnath Satnami on 18-1 1-9 there were 11 Injunes on varrous parts of the body, out of that there we e 6 lacerated wounds, 4 abrasuons, radius bone of Ieft hand was fractur d, there wasfracture of parleto temporal bone, clotted blood was pres inthe brain, cause of death of Ramnath z Satnami was cumulative effect of above injuries as a result: of coma and death was homicidal in nature his report is Ex -P/23 therefore in view of the above ocular and medical evudence it ls established that death of deceased Ramnath'Satnami was homrcrdal In nature Agogsed -— ishwar As far as involvement of accused Ishwar Is concerned Smt Indlra Tripahti, Iearned counsel for the accused/appellant argued that In respect of appellant Ishwar only two Itnesses namely, PW-10 Smt Devbatr Bar I (wufe of deceased Ramnath) a d PW-11 Hrlday Ram (brother ofM Ramnath) have been examln d by the prosecutlon Inrorder to establish the charges against him. But hey' have improved their version before the Court as they had not stated in their statements i.e. Ex.-D/7 & Ex.-D/8 recorded under Section 16\ Cr.P.C. that accused Ishwar attacked rR‘amna'thratnami withLathi l She :also argued that‘rthe name of the S . PLT.O. . h a u r et XI-HC-78 WWWW .... n W 200 mm~<ww> mam mammr accuséd does not flnd‘ptace Vit y Pw-1 ’s‘mt Mati Bai a; ’ volvement of lshwar there $ Pévbati Bai and PW-11 Hnday ‘ Having heard leérnédo record We are of the consi earned eounsel for the accus that PW—10 Smt Devbatr Bal bout 4 pm. her husband wen etet. ,She also followedhim ’p to Jaitstambh where she stopped. When the shop and reached in front of the shop ma Gada was standing, he pulled his leg, ,o Rama Gada and ishwar attacked her rtted his murder Thereafter people of and stones ln cross-examination, she has ‘ stated that she does not know p / ucmlty Is In ‘U’ shape which takes ‘U' turn it us correctt place where she was standing Le. Jartstambh. ht VEx.-D/7 recorded under Section 161 Perusal of her statem 1 i Ramnath Samm, Kanwal U were standing carrying club l \ P10. ‘ mwarg‘am w§qm Shn Akhu Mushra, P ! Lawyerals‘é submittedthat regarding e only two withesses i.e. Pw7'10 Smt. Rarn have been examined by prosecution. [inset for the parties, we have perused the ered opinion that argument'advanc‘ed by d/appellant has substance for the reason Wife of the deceased has stated that at ‘to betel shop of Krshan Marar for chewmg ‘l a b her husband was returning fro of one Libra Sahu, accused R t h ‘ I hereafter, accused Baldau U V usband With Lathi and com Vicinity started peltrng bnckba oiice in her statement'Ex -D .f (in paras-4/Lshe has admitted that roadof ts from their vicinity, thereafter that road say that shops were not vrsrble from the Cr.P{C.,reveals‘that in front'of the house of Pardesi Kewat, Baldau Sirdar stopped and abused herhusb’ nd In front of the house of Kotwar lshwar,: o Sonsar Parmanand Tuu and Ramesh their hands They ralsed cries that he be {First inromation Répo’rtiExep/s) lodged 's to whythe above fact was not written by In 1 v b e r r :h XI—HC—7‘87 mmmm WW no. o oo‘vo ‘0‘ o 00 In 200 WW(W) 1W$fm mmwgQ°rW ' wmm éEWVW r his leg.» as a result of which “her husband fell down and he attacked er husband wnth Lathl on hand & head beaten on' which Baldau ' pul l thereafter persons standing th re went near him and hit him wrth legs. as a result of which he became u conscrous and fell down Therefore In thrs statement she had not stated that accused lshwar attacked her husband l wrth Lathl a Slmrlarly, PW 11 Hnda Ram has stated when he was sleeping In 1 his house, hrs son Chetan ag d about 9 years, came and Informed that k ’ e ’ , pewle are beatinguncle and‘most probably he died, ontwhlch he went towards the stneet he saw t Baldau was attacking his brother With Lathi thereafter he saw the Ramnath Kotwar was also attacking his brother thereafter Udho & ls war came they also attacked his brother But in his pollce statement -D/8) he has statedthat Baldau attacked his brother as a result of wh h he fell down m the street and became . unconscious. He has not sta ed In his police statement that lshwar also ’ ‘ attacked 'Ramn'ath ‘Therefo e, both these witnesses have made Improvement In their eVIdenc before the Court regardlng lshwar as has been mentioned that PW-10 mt Devbatl Bal has stated In her eVIdence tstambh from where place of occurrence I that she was standing near was not visible. Moreover, th name of.~lshwar does not tind place in the FIR (Ex.-P/5) regarding his in olvement in the crime in question. . As per the evidence of PW'-10 SmLDevbati Bai and PW-11 Hriday Ram, they have made improvement in r Court evidence, as such, their evidence does not inspire co‘nt‘denc Moreover, the evidence of PW-10 rSmt: Devbatl Bal and PW-11 Hrld Ram has not been corroborated by other eyeWItnesses namely, PW-1 Smt Matl Bai PW-2 GhaSIram. PW-3 \ Mehattar PW-5 Smt Hemku arl Bal PW-6 Rameshwar PW-7 Bhagwat P.T.O.‘ a ( ,I ’i t e X14HCL78 ’ Wm W 200 WW(W) ' mm wm mwmm T 7 aawam and PW 8 Smt Sundan Bal that lshwar assaulted the deceased Hence we are of the conSIdered 0pm on that the prosecution has notrbeen able to “establish beyond reasona 7 -D/3, Ex;D/4, Ex.-D/5, E_X D/6,- Ex.—D/7 ted anything regarding assault made by these accused/appellants to eceased Ramnath Satnami. Therefore, ,’ these witfiesses Have ma x regarding assault made by‘ present accused/appellants to deceased Ramnath Satnami Apart from that PW-1 Smt Mati Bai who was bresent ‘ at the time of Incident at about 4 p m who had lodged report In the Police doubt that accused lshwar attacked deceased Ramnath wuth Lat . as such his conVIctIon under Section 302 of the IPC cannot be sus ned as the same Is not based on legal: evudence ‘ As‘far' as- invelvemen of these accused/appellants in crime in . Question is concerned,’they have been convicted for‘ commission of offence under Sections 302 & 323 of the IPC, in addition to this, accused Udho has also been convict d underISection 3(1)(x) of the Scheduled l “Castes & Scheduled Tribes Prevention ‘of Atrocities) Act 1989 They have been convrcted on the b sis of evrdence of PW-1 Smt Matt Bar PW- . 2 Ghasiram PW-4 Ramd s PW-5 Smt Hemkuman Bar PW6 Rameshwar, PW-7 Bhagwa PW-8 Smt, Sundari Bai. ’PW-1O Smt. Devbati Bai and PW 11 Hrid yr Ram ln the Court ewdence of above Witnesses they have stated a out Involvement of accused Ramnath Gada If & Udho in assaulting decease Ramnath Satnamt whereas m their police statements Ex-P/1 Ex-D/j '7 and Ex.-D/8, they have not improvement in their Coutt evidence y these accused/appellants t deceased Ramnath Satnami. Therefore, b e h d a b x1-H‘C-78: mm...u;' nu.“ Ez‘“) mm(W) :nwmgg ‘ V : ‘ “WWW r , U ‘ mmeriwm ~$Wm ‘ ' r 7 ’ ' the’ ln'o egal ‘andrzcli evine {egarn nVlnent . te re is l nc‘hi "g deé dig iovei of hsé V acu/appéllans i om ’g‘murde' ofuRaat tn uc csedi n cm 'nr mnh Saamt as sh cwction cd n t ada under tio 2 & 323 e , on of acuse Ram h G Secn 30 of th ‘ cno sut ao con o accus ho unr > ton 302 & nder S 3 () o he chedued IPC ant be sained s ls vuctlon f ed Ud de Seci & 323 of the i P u ection (1)X f t Sl aes & chd e v o ros Ac 198 cannot be ( A As f as involvement ar this cused/appellant inle n quesn ac fcrm i tlc Is d Sl R K Jam larn aupe concerne hr eed counsel for the ccsed/apllant subed th ot olvnt the cpelan bu log to the ature al eenc al poeu idnc th pn has o le sb at / evee e rosecutio nt been ab to etalish th the accused asaultd mnh Satml i ion ca deat as suh se Raat na th intent to use his h, c oce st h res ceia o n ta eyond? Sc 30 Part-ll f the mitt at he Is n dlsp ting Inveme of acused/aplt t okin n of In] ones medic vrde as so rsction i ‘ ffen again te pent cusd/appelnt des ot rvel b i etion 4 o l P C t oth han S k ra, Panel wye supted he V nt fthelCour " In o dt i m i m i, od e 5 the ta ha gr c menonn ret h Bdau Rh mi wt ati s suaine ‘ injunes The e sw o his Witns tas obra b h ‘Curt eVidn a o evidene f PW2 hSiram W Mtar 5 St Hemkm ri Bai W6 hwar P7 Bhawt As far as volvement the present accuse/appellan n crie in queston is concerned, PW-1 t. Mati Ba who lged rport Ex.-P/ in ( police stion, s cateo ally tiedi therpor tat al attacked amnat Satna i Lh a a result of which he std abov vern t es snd corroted y er . o ece as lso C c o - Ga P-3 ? ehat PW- tn u P- Rames W- ga N ‘ ’ 7 ‘RTD ‘ Was a Cst Seuled Tnbs ( reentlon f Atcitie) t 9 f ‘ §usta1ned On he er d hrr Ahll Mlsh Lar por t judgme otriat . XI—HC-78 1‘ ‘ 3am, mm wt .‘..‘..w;~.u..".~..‘. ¥ 1 ‘ N 1 \ WW() W XLHC—78 wami ‘ * mawf%a3n%¥1 . deceased) came, Baldau frst hand & head WithrLathL 1 7 already some dispute betwe aawm pulled hisleg, thereafter, assaulted himon Therefore, in this background, when therewas he two communities prior to‘the incident complainant party beaten o e Samlu when he went in the Vicinity of complainant party, as a retort o that accused Baldau assaulted Mati Bal her husband‘Rameshwar and eceased Ramnath Satnamr. Hence, m this «in background it cannot b'e sa In the result that the accused attacked the deceased i With intention to cause his de th because prior to the assault this person 7‘ attacked Mati Bai & her husba d they sustained Simple injuries Accused Baldau was‘not having a prevrous animosny particulariy against Ramnath Satnami, Who died Vn account of injuries sustained, as a result of a‘ssautt made by Baldau. M reoVerl 'as'h‘as been mentioned earlier, the deceased died a‘fter about 6 days of the incident cumulative effectof f these facts shows that the pro ecution has not been able to establish that V accused Baldau assaulted the eceased With intention to cause his death However it can be Inferred tro the evrdence available on record that the manner in which the accused assaulted the deceased With Lathi on his head as a result of which par tal bone was fractured the accused was ‘ defnitely havmg knowledge th tby attacking With Lathl on head, he may likely to cause” death of the eceased Therefore ’ knowledge can“ be attributed to the accused as s ch offence against the present accused/ appellant does not travel beyo d Section 304 Part-ll of the IPC as such t‘ndmg of thetnal Court convr mg the accused under Section 30 of the IPC cannot be sustained. ’ i“, rwm,m, mm..u.u;..u.wu..u a 00 ‘ wmim) 7‘ ’ (if Criminal Appeal No1 53/99 fled by accused Ishwar is allowed ConViction and sente ce imposed upon him under Section 302 e n 2 mi 2 t XI—HC-78 v I§aanmami %wm;§Em$g .‘L ‘. o‘oo 1H 2‘00 WW(W) WWW ‘ < — _ mmmm amf§nanéw r f the ae t a Ide [ ‘ as Rm u der S e H aqui e o enence ped n accused Udhoram under Sectuons 302 323 of th I a also under Section 3 (1)(x) of the Scheduled Cass chduled Tnbes (Preventron of Atrocrtres) Act , t ,rhe is aCquitted of the said charges.- cused Rath already on bail, therefore, his bail bonds are schrge e d not surrenderéfa the custody; Accused blea orthwith unless r’eq’uired'to‘be detained in ny oth cae 3) s r a pe 89 fled by accused Baldau rs partly allow. Con a sentence Imposed upon hrm under Secion 32 o the P o IPC r se and he Is acqmtted of the said charge It stated that a d Ishwar is already on bail therefore hrs b onds ar arged he need not surrender if» the . cd ‘(2) ‘ C Appeal 198/99 fled by accused Ramnath & Uoram we onvrctron and sentence Imposed upon ‘ ccued anath ections 302 & 323 of the IPC are set e asid e ’is c d f the said charges Conviction and st Imos u o & e PC s te & Se , 1989 are se side Ac amn i diad, h n e Udhoram erese f ‘ a er s ( Criminl Apal No 69/9 ed vrctro nd t 0 f C are set aside; Instead thereof, he is nvted unde S on 304 Part-ll of’the IPC and sentenced to nerg .l. for ars. His convictionuand sentence under ’ ction 323 f the are maintained. lt is stated that accused Bald i in etenti since 26/1 1/96 thereby he has completed sentenc as c e set at lrberty forthwrth unless requrred to dain rn an o Sdl- Sdl- _ coic r e i Udo R 10 e Se o i C au s do e suh e b be eted ther case Sunrl -Kumar Srnha Au'ng Chief Justice Judge P.T.O. = Is ccu e all b e dis h ustoy riminal N 3 dh Is allod C A c