Criminal Appeal No. 683 of 2007 preferred by appellant Madan @ Tulsi @ Bhurwa and Criminal Appeal No. 835 of 2007 preferred by appellant Tulsi ‘Yadav are being disposed ofvby this common judgment as these appeals arise out of the judgment dated 29-7- 2006 passed in Sessions Trial No.97/2006. By filing the aforesaid appeals, the appellants have chaiienged ‘ Iegality and propriety of the judgment of conviction and order of sentence dated 29-7-2006 passed by Xi Additional Sessions Judge (FTC), Raipur, in Sessions Trial No.97/2006, whereby and whereunder learned Xlth Additional Sessions Judge, Raipur, after holding the appellants guilty for commission of culpable homicide amounting tor murder of Narendra Yadav in sharing common intention, convicted each of them under Section 302/34 of the IPC and sentenced to undergo life imprisonment and to, pay fine of Rs.5000/— each, in default of payment of fine to further undergo Rl for one year. Conviction is impugned on the ground that without any iota of j evidence, the trial Court has‘convicted & sentenced the appellants as aforementioned and thereby committed illegality. 4. .As per the case of prosecution, on fateful night‘of 21-10-2005 at about 11.30 p.m., appellant Tulsi Yadav and other co—accused ‘ Sanju restrained the deceased Narehdra Yadav and demanded money for consuming liquor. Being denied, appellant Tulsi Yadav slapped Narendra Yadav, thereafter Narendra Yadav came with gas pipe and tried to assault Sanju and Tulsi Yadav, then appellant \ ux ‘2'“ Madan, Shera, Tulasi and Gajju after abusing Narendra ’Yadav, took out Gupti and assaulted Narendra Yadav 3 — 4 times and caused his death. PW/1 Jeetu Singh Thakur, went to Police Station, Telibandha and Iodged first information report Vide Ex.P/1 and merg vide EXP/26. investigating Officer Ieft for scene of occurrence and after summoning the witnesses vide Ex.P/6, inquest over dead body of ~ deceased was prepared vide Ex.P/7, spot map was prepared vide EX.P/1 1, blood stained Soil and plain soil were seized from the spot vide Ex.P/15, dead body was sent for autopsy to Dr. B.R. Ambedkar Hospital vide Ex.P/10 where Dr. Shiv Narayan Manghi (PW/2) conducted autopsy vide Ex.P/2 and found the following Injuries. k =1 i) Stab wound present over left side of chest, 4cm left to midline and 14 cm lower to the clavicle vertically in the size of 2x6 cm. extending into chest cavity cutting tissue in the passage and entered into left lung and membrane of the heart; Stab wound of 2.5x0.5 cm below injury No.1 into cavity deep, cutting tissue of the passage entered into pericardium into heart in the left vertical in the side of 3.5x1cm; Incised wound over right chest of 4x0.4x.2cm; Incised wound over right chest, 2cm right to injury No.3. Red colour abrasion present On 2cm above from right anterior superior spine region of 0.5cm; Abrasion oVer left elbow of 0.5 cm.‘ And opined that injuries were ante-mortem, mode of death was shock & hemorrhage and death was homicidal in nature. Sealed clothes and viscera were seized vide EXP/11, during the course of investigation, appellant Madan was taken into custody and he made a disclosure statement of Gupti vide Ex.P/13 and same was recovered at his instance vide Ex.P/14. Block colour shirt of the appellant Madan was seized vide Ex.P/16. Statements‘of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short ‘Code’) and after completion of investigation, charge sheet was filed in the Court of Additional Chief Judicial Magistrate, Raipur, who in turn committed the case to the Court of Sessions Judge. Learned Additional Sessions Judge received the case on transfer for trial. ln order to prove the guilt of the accused/appellants, the prosecution has examined as many as 12 witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. After providing opportunity of hearing to the parties, learned Xl Additional Sessions Judge, Raipur, convicted & sentenced the appellants as aforementioned. 10. We have heard Smt. Usha Chandrakar, counsel for the appellant in Criminal Appeal No. 683/2007 and'Shri Kshitij Sharma, counsel for appellant in Criminal Appeal No. 835 of 2007 & Smt. Madhunisha Singh, Panel Lawyer for the'State, perused the judgment impugned and record of the trial Court. Learned counsel for the appellants submit that during trial co-accused Sanju committed suicide. 11. Learned coUnseI appearing for the appellants vehementiy argued that although conviction is based on the evidence of eye-witness Jeetu Singh Thakur (PW/1), Sanjay Yadav (PW/3), Ashwani Kumar (PW/5) & Bikku Baghel (PW/7), their evidence does not inspire confidence and trustworthy. There are exaggerations, omissions and contradictions in their statements, thus, their evidence is not safe to rely for conviction of the appellants and their evidence requires further corroboration from independent sources. Learned counsel further submit that the aforesaid witnesses have given bold statement against the appellants. They have not deposed relating to specific role attributed to appellant Madan and there was no propriety for causing injuries by appellant Madan, who was not having any weapon for commission of offence. Learned counsel further submit that as» per evidence of the aforesaid witnesses, they have specifically deposed that appellant Tulsi Yadav was not having any weapon and he was shouting “Maro Maro”. This evidence is not enough to convict the appellant Tulsi Yadav under ' t Section 302/34 of the IPC in absence of overt-act of the appellant. 12. On the other hand, Smt. Madhunisha Singh, learned Panel Lawyer for the State/respondent opposed the appeal and argued that the evidence adduced on behalf of the prosecution is sufhcient for drawing inference that present appellants have caused homicidal death of deceased and after appreciating the evidence available Fh‘ x: %\ W“ 1mm l i it w m i h. i? K( on record, the court below has rightly convicted and sentenced the appellants as aforementioned. 13. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behaif of the parties. in the present case, homicidal death as a result of fatal injuries found over the body of deceased Narendra Yadav has not been substantially disputed on behalf of the appellants. On the other hand, it is also established by the evidence of Dr. Shiv Narayan Manghi (PW/2) and autopsy report EX.P/2 that death was homicidal in nature. As regards the complicity of the appellants in the crime in question, conviction is substantially based on the evidence cf eye-witnesses Jeetu Singh Thakur (PW/1), Sanjay Yadav (PW/3), Aswani Kumar (PW/5) & Bikku Baghel (PW/7) who have specifically deposed that ’I/ money was demanded by appellant Tulsi Yadav from Narendra Yadav for consuming liquor, when the deceased refused to give the money, appellant Tulsi Yadav slapped deceased Narendra Yadav and Narendra Yadav came with gas pipe for causing injury to Sanju and Tulsi Yadav and then appellant Madan caused repeated injuries to deceased Narendra Yadav by Gupti. Defence has cross- examined these witnesses at length, but has not been able to elicit anything to discredit their testimonies to'lthe extent that appellant . Madan has not caused injuries by Gupti to Narendra Yadav which were fatal and appellant Tulsi Yadav was not present on the spot. The evidence of the aforesaid witnesses relating to fatal injuries caused by appellant Madan inspires confidence and trustworthy and same is safe to rely for conviction of the appeilants. 16. As regards conviction of appellant Tuisi Yadav is concerned, evidence of these witnesses reveais that initially he demanded money for purchasing liquor and being denied he slapped Narendra Yadav and Narendra Yadav came with gas pipe for causing injuries to him, thereafter appellant Madan caused fatal injuries over body of deceased Narendra l Yadav. Definitely, at the time bf incident when deceased Narendra Yadav denied payment of money to appellant Tulsi Yadav, then appellant Tulsi Yadav slapped him, they were having common intention to cause simple injuries to Narendra Yadav and appellant Tulsi Yadav has also caused simple injuries to Narendra Yadav and thereafter, all of a sudden, appellant Madan took up Gupti and caused repeated injuries over vital part of the body of deceased Narendra Yadav. 17. ‘ln order to prove the offence of homicidal death amounting to murder of Narendra Yadav by said common intention against appellant Tulsi Yadav, prosecution was under obligation to prove that he has committed overt-act or he was having knowledge that appellant Madan might cause fatal injuries, resulting into death of Narendra Yadav but prosecution has not proved any offence against appellant Tulsi. lt is difficult to hold that appellant Madan has caused homicidal death amounting to murder of Narendra Yadav in sharing common intention with Tulsi Yadav, but it is evident that appellant Tulsi Yadav has also caused simple injuries to Narendra Yadav. The evidence adduced on behalf of the prosecution is sufficient for conviction and sentence of appellant Madan under Section 302 of the IPC, but the evidence adduced on behalf of the prosecution is not sufficient for conviction of appellant Tulsi Yadav under Section 302/34 of the IPC, but the act l attributed to appellant Tulsi Yadav squarely falls within the ambit of Section 323 of the IPC. While convicting and sentencing the appeliant Tulsi Yadav as aforementioned, ‘the court below has not considered the aforesaid circumstances and thereby committed illegality. 18. Consequentiy, Criminal Appeal No. 683 of 2007 preferred by appellant Madan @ Tulsi @ Bhurwa is partly allowed and conviction and sentence under Section 302/34 of the IPC is altered into Section 302 of the IPC and his conviction & sentence is hereby maintained. Criminal Appeal No. 835 of 2007 preferred by appellant Tulsi Yadav is partly allowed and conviction and sentence under Section 302/34 of the IPC is altered into Section 323 of the IPC and he is sentenced to undergo RI for one year. l-Ie is in custody and has served more than sufficient sentence. Appellant Tulsi Yadav be released forthwith, if not required in any other case. sw- KN. Chandrakal‘ K) I Judge \