HIGH COURT OF QHHATTISGARH : BILASPUR D.B: HON’BLE SHRI T.P.SHARMA AND HON’BLE SHRI R.L.JHANWAE, JJ. CLAQQeaI No.620 of 2005 1. Pramod alias Raj Tigga son of Prakash Tigga, aged 21 years, 2. Sudhir son of Atnesh. aged 20 years, cultivator. 3. Pradip Tigga son of Prakash Tigga, aged 25 years, cultivator. (All are residents of village Gamhariya, Police Station Bagicha, District Jashpur (Chhattisgarh) M lN JAIL VERSUS $tate - of Chhattisgarh through 8.0. Police Station Bagicha. CRIMINAL APPEAL UNDER SECTION 374 121 THE CRIMINAL W RESPONDE NT Present: <2». Smt. Shri J. Madhu S. Baraik, Nisha counsel Singh, for P.L. the for appellants. the State. ORAL JUDGMENT (Passed on 22.02.201 1) Challenge in this appeal is to the judgment of conviction and order of sentence dated 21 .02.2005 passed by the Sessions Judge, Jashpur in Sessions Trial No. 32/2004 whereby and whereunder after holding the appellants guilty for the commission of culpable homicide amounting to murder of Abraham, the Court below convicted the aforesaid appellants under Section 302 of the l.P.C. and sentenced them to life imprisonment with tine of Rs.200/— and in default to undergo further R.l. for 15 days. Similarly, the Court below convicted appellant - Pradip Tigga twice under Section 323 and 323 of the l.P.C. and sentenced him to undergo three months R.l. on each-count for causing simple injuries to Nirmala and Anjana. Appellant Pramod Tigga was also convicted under Section 323 of the l.P.C. for causing simple injuries to Nirmala and sentenced to undergo three months R.l. so also Sudhir was convicted thrice under Section 323, 323 and 323 of the l.P.C. for causing injuries to Nirmala, Patarsiya and Alexius and sentenced to undergo three months R.l. on each count. 2. Conviction of the appellants is impugned on the ground that without any iota of evidence, the Court below convicted and sentenced the appellants and thereby committed illegality. L 3. As per case of prosecution, on fateful day of 26.10.2003 at about 7.00 pm. appellants assaulted Abraham by spade (fauda), rod and stick and caused grievous injuries. Patarsiya shouted rfor help then other injured Nirmala Anjana Alexius reached to the spot and the aforesaid appellants also caused srmple Injuries to them Rojnamchasanah was recorded Thereafter injured were sent for medical examination lnjured Abraham was examined by P.W.7 Dr.V|nodml Bakhla Vlde Ex.P.22 and found following injuries: 1. lncised wound of 2 x “/4 x Va over centre-lateral region (parietal bone of head). Fracture of left hand was found. Small abrasion over left knee. Nirmala was also examined vide Ex.P.23 by P.W.7 Dr. Vinodini Bakhla who found one lacerated wound of 1 x V2 x 73 over the palm surface of middle nnger of left hand. lnjured Anjana was also examined ‘ vide Ex.P.24 and one small abrasion near left eyelid was found. Patarsiya was also examined vide Ex.P.25 and only swelling and tenderness on the middle of left arm was found. Alexius Kerketta was also examined vide Ex.P.26 and one abrasion of 1 ‘/z on right lateral border of right eyebrow surrounded with swelling was found. Fracture of left hand of Abraham was found vide X-ray film report Ex.P.28 and Ex.P.29. On 28.10.2003 on account of death of Abraham merg was recorded vide Ex P 2 F i R was lodged Vlde Ex P 35 Investigating officer left for scene of occurrence and after summoning Witnesses we Ex P 13 Inquest over the dead body was prepared Vlde Ex P 14 Dead body was sent for autopsy to Government Hospital, Bagicha. P.W.11 Dr. T.K.Sahu. conducted autopsy vrde Ex P 42 and found (1) incised wound of 5 cm x 0.5 cm x muscle deep over left part of head; (2) fracture of left hand; (3) multiple abrasions over left knee; (4) rupture of left lungs and whole in small intestine. Mode of death was opined to be shock and death was homicidal in nature. During the course of investigation, spot map was prepared vide EX.P.10. Cloths were seized from Nimala vide Ex.P.1’l. Accused Pradip Tigga was taken into custody’ and made disclosure statement of stick and ‘ spade vide Ex.P.15 and the same were recovered at the instance of appellant Pradip Tigga vide Ex.P.16; appellant Sudhir made disclosure statement of stick vide Ex.P.1 7, the same was recovered at the instance of appellant Sudhir vide Ex.P.18; appellant Pramod Tigga made disclosure statement of rod vide X.P.19, the same was recovered at the instance of appellant Pramod Tigga vide Ex.P.ZO. Letter was seized vide Ex.P.21. Patwari prepared spot map vide Ex.P.34. 4. Statements of witnesses were recorded under section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Jashpur, who in tum committed the case to the Court of learned Sessions Judge. 5. ln order to prove the guilt of the appellants, prosecution examined as many as 11 witnesses. Accused were also examined under Section 313 of the Code where they denied the circumstances appearing against them and pleaded their innocence and false implication in crime in question. 6. After affording proper opportunity of hearing to the parties, the teamed Sessions Judge convicted and sentenced the appellants as aforementioned. 7. Shri J. S. Baraik, learned counsel for the appeiiants and Smt. Madhu Nisha Singh, learned counsel for the State are heard. Perused the record of Court below and judgment impugned. $“mamww f' w ;*"“":>‘x.,;.. . 8. Shri J. S. Baraik, learned counsel for the appellants vehementw argued that in the present case although prosecution has not proved the factum of causing injury by the present appeliants to deceased and aforesaid injured witnesses, but if the evidence of P.W.3 Anjana Toppo, P.W.4 Nirmala is considered in the light of fact that they have seen their father Iying on the floor and appeiiants were present armed with Weapons, then even the act attributed to them does not travel beyond scope of Section 325 of the LP.C. especiaily in the light of medical evidence. As per medicai evidence, the injury caused and found over the body of the deceased at the time of incident was not sufficient for causing death of deceased in the ordinary course of nature, therefore, the conviction and sentence of the appeilants under Section 302 of the l.P.C. is not sustainable under law‘ He further submits that present appellants are in custody since 2003 and have completed more than 7 years‘ The same is sufficient for sentence for the offence under Section 325 of the l.P.C. 9. On the other hand, Smt. Madhu Nisha Singh, learned counsel for the State opposes the appeal and submits that present appellants have l.- caused injuries by dangerous weapons, due to which, the deceased become unconscious on the spot. He was taken hospital for treatment \.. Kv and thereafter he died. This shows that present appellants have caused homicidal death of the deceased resulting into death of deceased. 10. ln order to appreciate the arguments advanced on behalf of the parties, we have examined evidence adduced on behalf of prosecution. In the present case, witnesses have not specincally deposed that they have seen the incident and the present appellants caused injuries before them. As per evidence of P.W.1 Franciska, wife of the deceased has deposed that she was informed by P.W.2 Patarsiya about the incident. As per paragraph 9 of her evidence, she has not seen the incident but had seen the body of her husband lying on the floor. Although prosecution declared her hostile witness, but she supported the case to the extent that she has called P.W.3 Anjana Toppo, P.W.4 Nirmala and told them that appellant has caused injuries to Abraham. P.W.3 Anjana Toppo has deposed that she reached to the spot, then he saw the body of her father lying on the l i swap floor and appellants were present near her father. They were holding spade, rod and stick. AppeHant Pradip Tigga also caused teeth bite injury to her near herrleft eye. P.W.4 Nirmala has also corroborated the evidence of P.W.3 Anjana Toppo. Defence has cross-examined these witnesses but has not been able to elicit anything in their cross- examination to discard their testimony relating to the fact that appellants were not present on the spot with weapons and they have not caused injuries to the aforesaid injured witnesses. This evidence is sumcient for drawing an inference that present appellants were present on the spot and caused injury to Abraham and simple injuries to aforesaid injured witnesses. 11. As regards homicidal death of deceased Abraham is concerned, as per medical evidence of P.W.7 Dr. Vinodini Bakhla, one fracture of left hand and incised would of 2 x 1A x V4 was found over the head of Abraham. She has specifically admitted in para 8 of her cross~ examination that injury found over the body of Abraham was not sufficient for causing death. She has examined Abraham on 27.1.2003. As per- evidence of P.W.8 Dr. George M. Xaxa, no fracture of bone of chest was found vide Ex.P.31, 32 and 33. P.W.11 Dr. T.K.Sahu has deposed that- one incised wound over the head. fracture of left hand, whole in small intestine and rupture of left lung were found vide autopsy report Ex.P.42. Definitely, the injury found over the head and hand was not sufficient for cause of death. it appears that deceased died as a result of rupture of lungs and whole in small intestine which has not been caused by the appellants and even no injury was found on the chest. no fracture of ribs was noticed. In these circumstances, it is difficult to hold that appellants have caused homicidal death of the deceased although they were holding rod, stick and spade like dangerous weapons and have caused grievous injury to Abraham and simple injury to other injured witnesses. Evidence adduced on behalf of prosecution is not sufficient for drawing definite conclusion that the appellants have caused homicidal death with intent to cause death of Abraham but is sufficient for drawing inference that the present appellants, in sharing common intention, have caused grievous injury by dangerous weapons, punishable under Section 326/34 of the /,"—7 i mwwy7hw I.P.C. and have also caused simple injury to other inured persons as aforesaid mentioned. 12. While convicting the appellants under Section 302 of the l.P.C. the Court below has not considered the insufFIciency of evidence regarding homicidal death and especially evidence of Dr.T.K.Sahu and thereby committed illegality. 13. Consequently. the appeal is partly allowed. While maintaining conviction and sentence of the appellants under Section under Section 323 of the l.P.C. relating to causing injuries to injured witnesses, the conviction and sentence of the appellants under Section 323 and 302 of the l.P.C. is hereby set aside. Instead, the appellant are convicted under Section 326/34 of the l.P.C. and sentenced to undergo R.l. for 5 years. The appellants are in custody since 31 .10.2003 i.e. for more than 7 years. They be released, if not required in any other case. Sdl- R.L. Jhanwar Judge l 'T.P. SHARMA W r 2,“ 5w. Judge )