o^- ^{ ^?w^ ^•' ^-s?^' ^•-"" [u ' ^._ ^., SingleBench IN_THEHON'BLE_HIGH_CQURT_QF_CHHATTISGARH_AT^BILASPUR CRIMINAL APPEAL No. b^^' /2008 APPELLANTS (In jail) 1. Vijay Pandey, S/o. Ramchandra Pandey, aged about 23 years, resident of Dabripara, Thana Civil Line, Bilaspur. 2. Billi Khan, S/o. Saleem Khan, aged about 24 years, resident of Dabripara, Thana Civil Line, Bilaspur. 3. Sanjay Tandan, @ Buttala, S/o. Tilak ^ Ram Tandan, aged about 21 years, resident of Dabripara, Thana Civil Line, Bilaspur. VERSUS RESPONDENT State of Chhattisgarh, Through its Police Station - Sarkanda, Djstrict Bilaspur (C.G.). CRIMINAL APPEAL U/S 374('2) OF THE CODE OF CRIMINAL : /fe^ HIGH CgSuRT OF CHHATTESGARH : BiLASPUR SinQie Beneh: Hon'bie Shri Manindra Mohan Shrivastava, Criminai Appeai No.540)'20Q8 APPELLANTS Niraj Singh @. Kukka & another RESPONDENT Versus State of C'nhatiisgarh Present: - Shri uharmesh Shrivastava, counsei for the appei!ants. Shri Sat'sh Guota. fcovernment Advocate forthe resDondent- APPEl.LAr^iTS RESPONDENT Criminai Appeai No.646i'2QQ8 v'ijav Fandev and others Versus State of Chhattisqarh Fresent: - Shri Fvianoj wSishra, counsei for the appeiiants. Stiri Safish GuRta. Govemment Actvocate for tha resnondent. APPELLANT nESPONDENT Criminai Aopea!No.688('20Q8 Sukhdeo Manikouri Versus State of Chhattisgarh Present: - Shri Ajay Ayachi, counsei for ths appeiiant. Shri Satish Gupta, Govemment Advocate for the respondent GFiiiKiNAL APPEAL UNGER SECTiON 374 i2) QF THE CODE OF CRiftfliNAL PRQCEDURE ORAL JUDGMENT (DeIiveretion6"'December, 2010) ihe aforesaid three appeais are being disposed off by thiscommon order. The appeais arise out of judgment of conviction and sentence dated 5/6/08 •'-> / passed bySpecial Jucsgein session trial No.33»'08 by which the triai Court after hoiding the appeiiants guiity of commission of offence charged with Section 294, 147, 148, 307/149 IPC and sentenced to undergo R.i. for six months, under Section 143 iPC, six months R.i. and under Section 307/149 iPC, five yeare witii fins of Rs.500/-, in defauit, further R.i. ofsix months. 2. The judgment of conviction and sentence are impugned on the submission fnat the appeiiants ('except Niraj Singh @ Kukka who has uieu) have been convicted under Section 307 wit'n the aid of Section 149 iPC, even though there is no ev'jdence to this effect and as the injury caused on the frontal part of the head couiu not be proved to be grievous in nature, the conviction of the appeiianfs under Section 307 is not sustainabie in iaw. 3. Before proceeding to deai with the case, it is stated by iearned counsel for the appeiiants in criminai case No.540/08 that appeilant-Neeraj Singh @ Kukka died while undergoing imprisonment under the impugned judgment of conviction and sentence. 4. The case of the prosecution is that on 'i4/11/07, at a'oout 10 P.M. in the niaht. while the viciim-Mukesh Chadda (PuV4) was standing near betel shoo anci tatking on his mobiie, the appeiiants and Neeraj Singh (deceased) reached at the spot and demanded money for consumption of liquor, which was denied by Mukesh. Thereafter, the appellants started abusing and Neeraj Singh @ Kukka assauited and infiicted iniury with the heip of iron rod on the iegs of the victim- Mukesh, upon which Mukesh feii do'w'n and thereafter aii the appeiianis assauited him with the heip of iron rod and dub resuiting in injury. On aiarrn raised by Mukesh, Sonu Kochar (PWS), Umesh Mishra (F-W7), Anii Singh and Plntu Mishf-a T^ </ approached the spot. The brother of victim-Mutesh took the victim for immediate medical assistance and he was examined by Dr. M.S.i-iaque who found three injuries on the person of the victim. Thereafter, he was refeired for Radioiogy report as also for C.T.Scan. The Radioiogy and X-Ray reports disclosed fracture on the right leg whereas the C.T. Scan report dlscioseu, undispiaced fracture in the frontai bone. FiR was lodoed bv Ravi Chadda vide exhibit F/3. The bioou stained ciothes of victitTi-iviukesh were seizeu vide exhibit P/4 and memorandurn was taken frorn Niraj Singh during investigation, viue exhibit P;5 and iron rod was seized vide exhibit P/B. From appeiiant-Ankur Bajpai, ciub 'was seized on the memorandum exhibit P/7. vide seizure memo exhibit P/8. A motor cvcie- Baiaj Discover, No.C.G.IO-EC 7S01 was also seized frorn the appeiiant-Ankur Bajpai. On memorandum exhibit P/5 of appeiiant-Vijay Pandey, one ciub was seized vide seizure memo exhibit P/10. From Biili Khan, one wooden stick was seized vide exhibit P/16 whereas frorn appeiiant-Sukhdeo, one stick was seized vide exhibit P/17 and from appeiiant-Sanjay Tandon, one stick was seized viue exhibit P/2S. Afier completing investigation, taking statements and preparation of spot map and obtaining v'arious reports of Radiuiogy and C.T.Sc-an, a charge sheet was nied, upon which, charges were framed against the appellants for commission of offence under Section 2S4,147.146,307/143 iPC. 5. The aDpeiiants abjured their ouilt. in order to prove the case of the prosecution, teri witnesses were examined. Irltheir statements under Section 313, the appeiiants denied ciroumstances appeared against them and pleaded false impiication. The learned triai Court after completing triai, held the appei'.ants guilfy of commission of offence under Section 294.147.143, 307/143 IPC. 6. Learned counsei for the appeiiants argued that in so far as conviction under section 307 iPC is concerned, the sarne is not al ali made out. even from the testimony of victirn-Mukesh (PW4). it is also subrnitted that the appeiiants have been convicted ror comrnission of offence under Section 307 iPC with the aid of Section 149 even though froiTi tiie evidsnce on record, no such case is made out. Further submission is that from the evidence of Mukesh (PW4), the fractureinjury on the ieg was caused 'oy Niraj and other twu injuries caused on the person of the victim are oniy simpie in nature as the C.T. Scan report has not been produced and the X-Ray report uid not disciose any fracture on the frontai bone. Learned counsei fur the appeiiants submitted that taking into consideration tiie totaiity of ciroumstances and nature of injuries sustained and in the absence of there being any reiiable evidence of forrnation of an unlawfui assembiy in prosecution of comrnon object of committing murder, the appeliants are entitied to be acquitted from the comrnission of offence under Section 307 iPC. 7. On the other hand, Searned State counsei supported the judgment of conviction and sentence. Learned State counsei submitted that Mukesh {PW4) has stated in his evidence that all the appeiiants along with deceaseu appellant- Niraj had arrived at the spot and aernanued money for consumption of iiquor and thereafter they assauited him which resuited in grievous injury inciuuing injury on the frontal bone caused by rod and ciub. He submits that frorn the evidence.it is cieariy borne out that even if victim feii down, the appeiiants kept on assauiting him resuiting in grievous injury, particuiarly on the frontai bone which may cause death aiso. He submits that in 'view of the Feiiable evidence of victim-Mukesh corroborated 'oy medicai evidence, fracture of ieg and frontai bone, coriviction 01 '-i/l / the appeliants under Section 294, 147, 148,307/149 iPC does not warrar:: any interference in appeai. 8. Fviukesh (PW4) who i$ fie victlm of the aiieged incident has stated in his evidence that whiie he was standing in front of the betei shop and taiking on his mobiie, the aupeliants and deceased-Nirai arrived at the SDOI. His evidence shows that the dispute arose on account of certain money to be paid for consumDtion of iiauor. He has stated that aDpeiiant-Niraj assauited with the helu of a rod on his right ieg upon which he feii down and tliereafter the appeliants assauited him with the heip of club and rod due to which, he received injury on his both iegs and near the forehead. 9. The manner in which the dispute occurred in a spur of moment which started with scuffle and abuses and thereafter assauit and when the victim- Mukesh has sfated that he received three injuries, it cannot be said that ail ti-ie accused persons infiicted injury but their presence at the spot is cieariy proved. 10. Dr. S.Fvl. Haque (PW8) who provided immediate medicai assistance to the victirn-^fiu^esh has stated that uponexamination, foiiowing injuries were found- a. Lacerated wound on the right leg, 3x1x1 cm. and swelling. b) One iacerated wound 3x1 cm and swelling on the ieft ieg. c) One lacerated wound in the centerof the frontai bone 6x1 x1 crn. He has also deposed that the injuries appear to be caused by hard and biunt obiect. Dr. J.M. Khakha (PW1) has deposed that in the X-ray report of the right ieg, though there was fracture in the right leg bui in the X-ray of the frontai bone ,/'^ of t'ne head, no fracture was found and suggested for C.T. Scan repurt. Dr. Anii Pratap Singh (PA'3) in his examination has deposed that in the C.T. Scan examinStion, undisplaced fracture line was found in the right frontai bone but the brain metai was found normai. in his cross examination, he admitted that C.T. Scan report is not produced and has denied that no C.T. Scan was done. 11. From the iniuries which are proved by the prosecution, the victim received one fracture iniurv on his right ieg. In addition, he received two injuries, one in the left ieo and one in the frontai bone. Thus, in ali, three injuries were sustained. There is no other injury of any other kind proved by the prosecuuon. in so far as injury caused on the right leg is concerned, the same is grievous in n-ature. The other injury which is found on the left ieg is apparentiy simpie in nature and cannot be said to be grievous injury. As far as singuiar injury on the frontai bone is concerned, Dr. J.M. Khakha (FW1) has stated that upon X-Ray, no fracture was found. Dr. Anii Pratap Singh (PiAf'3) though states that undisoiaced fracture line was found. neither C.T.Scan reoort has been Droduced nor any other report has been produced to support such version. Considering the X-Ray report which did not disciose any fracture on the frontai bon6 and in the absence of any C.T.Scan report by the prosecution, it is to be heid that the prosecution has faiied to prove beyond reasonabie doubt that ihe victim-Mukesh received anv bonv iniurv on the frontai bone and the evidence on record is not sufficient to sustain a finding of serious injury / fracture on the frontai bone. The testimony of Mukesh (PW4) itseif shows that after receiving nrst injury caused by deceased-appeiiant - Niraj, Mukesh feli down. Dr. S.M. Haque (PW8) has deposed in his testimony that injury on the frontal bone couid be caused upon falling. /Tr)/ 12. Though I'Viukesh (F~vV4) states tiiat afler he feii down, aii the appeiiants started beating hirn with the help of rod, ciub etc., in aii, three injuries are proved on his person. He himseif has deposed that Niraj had assauited on his right iea with the heip of a rod. Thus, t'ne ottier two injuries are one on his left ieg and one on his frontai bone. There are no oti-ier injuries proved by the prosecution. This ciearly shows that the frw'o injuries couid be caused either by one or by two persons and not more than that. The manner in which the incident has happened near betei shop, case or comrnission of orfence uhder Section 149 is not made out and therefore conviction of the appeiiant for alleged commission of offence under Section ^07 with the aid of with the a'id of Section 149 IPC, is not made out in view of the iaw laid down in the case or Staie.of U.P,_v. Gajadhar Sinsh and others. 2009 j1"i CGSC 479 (SC). 13. However, from the evidence on record, it is proved that during course of quarrei, the appeiiants and deceased appeiiant-Niraj Singh had caused injury on the person of the victim - Mukesh. Under these ciroumstances, considering the nature of injuries which are sustained by the victim-Mukesh on his ieft ieg and in the frontai bone, appeiiants are at the most to be heid guilty under Section 323 IPC and not more than that. Accordingly, t'ne impugned judgment of conviction and sentence, in so far as conviction under Section 307 1 149 iFC, cannot be sustained in law and the conviction of the appeiiants under those Sections is set aside. 14. in view of the discussions as above and the finding which has come on record, the conviction of the appetlants is altered to Section 323. It is stated that appeiiant-Sukhdeo had undergone R.l. for more than 1% years whereas appeiiant- vijay Pandey is in jaii since 4/1/08, Biiii Khan since 4/2i08. Sanjav Tandon since 4/2/08 and Ankur has aiready undergone more than 1 >$ years of sentence before he was granted bail by this Court. Considering the entire evidence, nature ofinjuries and thatthe conviction ofthe appeiiante is altered to Section 323, in piace of Section 307, and sentence is reduced to the period undergone by each of thern. 15. The appeliants-Bilii Kjian, Sanjay Tandon, Vijay Pandey shall be released forthwith. in so far as aopeiiants-Ankur Bajoai and Sukdeo are concemed. they are on baii, granted by this Court. Their baii bonds stands discharged. They need not surrender. Accordinglv. aii the apDeals are aliowed to the extent inuicated above. Sd/- Manindra Mohan Shrivastava Judge