av: WW, gww <3, W W 3F) /‘ 2%_‘>\ m®&g§7w&§§/ mmm Wm (13W) Wmiwm #afdtrm APPELLANT: (In Custody) RESPONDENT: £ AND « Criminal Ame {Criminal appeal under Sectid Procedure, 1973} {Division Bench: Hon’bie Mr. LC. Bhadoo and Hon’hle ‘Mr. Suoil Kuma: Sinhg, JJ. Criminal Agg‘ml No.88? of 2002 Mohan Rana, S/o Laxman, Age 25 years, R/o Nangur, P.S. Fraijmpur, Distt. Bastar. CISuS - The State of Chhattisgarh, Through RS. Fraijmpur, Distt. Bastar. a1 No.393 of 2002 1. Konda @‘ Laxman, SIO Sukhdev, SO years. Lakhpati, S/o Sukhdev, 25 years. Maxrgal Dei, W/o Sukhdev, 25 years. R/o Vill. Nangur, Frezalpur, Distt. Bastar. of Chhattisgarh, Through: Distt. Magistrate, Distt. Bastar, Jagdalpur (C.G.) n 374 (2) ofthe Code of Criminal APPELLANTS: (In Jail} ~ VetSus RESPONDENT: EW,WE,W i Mr. Pxaflm Bhamt, cc ivo.393/2oo2. ‘ : Mr. Neeraj Mehta, Panel a {n Dais. bml judgment dictated c Lawyer for the State/ respondent. LC. Bhadoo, J: - A . Criminal Appeal No 887/2002 Appeal No 393/ 2002 filed by K De1 are bemg d1sposed of by thn appeals are ansmg out of the Tn‘al No.343/2001. By these appeals the accused] ppellants have questioned legahtv 8r. correctness of the Judgment dated 19 3 2002 passed by Bastar at Jagdalpur in Session Trial No.343/ 2001, wheleby and whereunder learned Addih‘on accused/appellant Mohan Ran under Secu‘ons 148, 302 & 324 sentenced him to undergo RJ. and RJ. for two years respectiv 1y, however, nnposed upon hnn Learned conwcted accused/appellants $ed by Mohan Rana and Cn’minal )nda@ Laxman Lakhpatl & Mangal s common Judgment, as both these same judgment and same Sessions f conv1ctlon and order of sentence 3d Addmonal Sessmns Judge, Sessions Judge after holding guilty for commission of odence ad with Secu'on 149 ofthe I.P.C., r two yeais, imprisonment for life fine sentence was not dditlonal Sessmns Judge further onda @ Laxman, Lakhpati 85 3mm (new) tunsel for the appellants in Cr.A. ¢ mvfgm mm ®aW ‘ ammm ——-4-1—-2oes Miss Sangeeta Mishra, counsel for the appellant in 910.887/2002. WW,W,W . 6>A$27w93 mm @ 00L WW (W) WWW Warsaw Wm wm awiwtm ‘Mangal Dei under’Secn‘ons 14.8, 325 mad with Section 149 85 324 read with Section 149 of the P.C. and sentenced each of them to lundergo R.I. for two years, R.I for five years and R.I. for two years, lresyectively, however, no sen nce of fine was imposed upon them éalso. He further directed‘ that all the sentences shall run iconcurxently. a . Case of the prosecution, in b 'ef, is that on 28-3—2001 at about 7 was going to his house after closing the shop, when he re ched in h‘ont of the house of Patel, iMunni, Mohan Rana &. M la met them and started abusing ithem in filthy language sg By that time, Lakhpati, Konda‘, Bhuwan (ju enile) 8a Mangal Dei came camying Lathi. Mohan took out one sham edged Gupu' from his attire. Mangal attacked Prakash on should not be left alive. When Prakash raised s head with a Lathi and said that he sh was thmwn on the ground. to save him from the attack, Ratiram, Anil, son 8r, Wife of A i1, Hemant etc. came there. Seeing this, Mohan, Konda 85 Lakhpa ‘ rushed towaids them. Mangal Dei was saying that they should ot be left. Prakash stood up and iried to save himself. In the an time, Mohan pierced Gupti into the stomach of Anil whelenp n Anil raised screams that he has been attacked with Gupti by g that why he is levelling talse iallegations against her sister. Mohan 85 Mangla started attacking ‘Prakash. Ratiram rushed t Wands the house. \ \ han and thereafter, they fled from the scene of occurrence. Ani] fell down on the ground and blood a c 's a s . e o @ 200 A \ mam m (W) WWW ammm manW am WWW WW é? amm started oozing out of the in fies. Hemant sustained injury on Stomach Siddharth sustaine injury on lips and Ratiram mceived mJmy on neck They d1sc osed about the moldent to Kotwar Rajaram Smpanch Seo, Gh 1mm 6a Ash1q Smgh Aml was taken to the hospital, but he was dared brought dead. Recmvmg the informau’on to that cifect &o Prakash, Dehati Nalishi Ex.P-1 was § reduced‘intowvriting. 4) The gnvestigati'ng O$cer pm and inqucst Ex.P—4 on the body of 51311 Bloodsfained soil 8r. p1 ‘ soil mm the place of occurrence was taken into possession der EXP—2. One Sande Banian of hemmt was seized under x.P-3. One lungi of deceased Anil stained with blood was seize from Bonsai under EXP—5. While in police custody,~ accused L hpati gave memorandum EXP—6, Bhuvan gave memorandum xP—7 and Mohan gave memorandum EXP—8. In pursuance of e memorandum (Ex.P—8) given by (V Mohan, iron Gupti (weapon f olfence) yvas seized under Ex.P- 10. Shirts 8r, clothes of Mohan W re seized under Ex.P-1 1. One Lathi was seized at the instance f accused Lakhpati under Ex.P--16. Injuries of Prakash weie exa ined by Dr. K.M. Gupta (PW—1 1) who prepared injury report EX.P- 7 in which one abmsion on upper part of left ear was found. I ‘uries of Hemant weie also examined by Dr. K.M. Gupta (PW-11) one. incised wound on left side of abdomen 8r. one incised wou d on left upper arm were found and injury report EXP-18 was prepared. Injuries of Siddharth were also examined by the same doctor, there was a lacerated wound on @ mw,m,w WW 200i mm (FEW) mwfa‘? Hmmm mm wW maimm awan’manw right side of nostril and injuxy re\port Ex.P-19 was prepamd. [injuries of Ratimm were also ‘ ned by the same doctor, there Was a contusion on left side o neck, abrasion on mid of loo clavicle pone, abrasion above injury, No.2, abrasion below ear and one abiasion on upper part of bac‘ of leti elbow. Injury‘i‘eport EXP—20 Wagprepared by him. 6) Post-mortem‘ on the body of was conducted by Dr. K.K. Nag (PW-‘12). He pfepared post-m rtem report EXP-23 and opined that death was due to haemorr shock due to excessive bleeding. First information report Ex P 1 was Iegistered. Site plan Ex.P—35 was prepamd After completion of investigati charge sheet was med against the accused persons 1n the t of Chief Judicial Magistrate Jagdalpur Bhuwan bemg Juv mle his matter was referred to the Juvemle Jusuce Board. In o er to establish charges against the accused persons, the pros cution examined 14 witnesses. Statements of accused person were recorded under Section 313 of the Cr.P.C. in which they de 'ed the material appearing against them in the prosecution eviden and pleaded innocence. After hearing counsel for res ective parties, learned Additional v Sessmns Judge conVicted and sentenced the accused persons as aforesaid, however, they were cquitted of charges under Sections 307 read with Section 149, 29 8r. 506-3 ofthc I.P.C. i ' h 'c — o , r WW,W,W 10) injury was 3 yz ems. x 2 ya cms cut, 'injmy on stomach was abow of about 1V2-2 11m. in the abd mortcm in nature. Cause of death was haemon'hagic shock as a result of injury No.2 and death ., skin &. muscles of stomach wen: 1t 3 V2 cms. deep, there was blood )men cavity. Injuries wem ante— s homicidal in nature. In view of the above ocular and medical e 'dence, it is established that the death of Anil was homicidal in n As far as conviction of the accu 149 of the I.P.C. is concerned, lodged by Prakash (PW- 1) and the evidence of Ratiram (P 1 tum. ed persons with the aid of Section msal of Dehati Nalishi (EX.P- 1) dence of Prakash (PW- 1) as also -2), Hemant Kumar (PW-8) 85 I f a i e W W.A$§7M.tz ml m was: (WW) mmw amm W‘ mmdwm mm titan 31m a: 3W? ‘amétr 8) We have heard Miss Sangeeta ishm, learned counsel on behalf of Mohan Rana, Mr. Pxafull Bh t,‘1eamed counsel on behalf of Ifonda @ Laxman, Lakhpati 8n angal Dei and Mr. Neeraj Mehta, learned Panel Lawyer on behalf f the State] respondent. 9) At the outset, Miss Sangee Mishta has inot’ disputed the ho‘tn‘icidal death of Anil. Mo vet, Prakash (PW- 1), Ratiram (PW- 2), Hemant Igumar (PW-8) 85 Si} dharth (PW-:9) have stated m' their i evidence that accused Mohan attacked Anil with Gupn'. Above ocular evidence is conoborated by the medical evidence of Dr. K.K. Nag (PW-12) who conducted postmortem on the body of Anil and stated in his evidence that thee was a stab wound in epigastric iegion of abdomen 3 V2“ above umbilicus, the injury was 7" deep, there was an injury on food pipe 8r. omentum, the injury was transversely 8a obliquely placed, margin was clear cut, size of the WW,W,W W mCpAg§7M§z3(w 2002 WW (W) WWW mwm mwm WW§E§W ‘ $aimané$ Siddharth (PW-9) discloses on 23rd March, 2001 at about 11 ‘a.m. ‘ when Munm' and his se nd daughter namely, Jaiti came to %about his wife being at her him and they left his shop. w. when he along with Ra am was going to his house, on the met them am} started pushing him, seeing this, Ratimm who was ccompanying him went to the house and‘ informed? People of §the shop of Prakash, he aske her as to why she did not disclose e, Munni starmd quarreHing with hereafter, in the eveliing at about 7 way Muhni, Mangla 8a Mo vicinity intexvened and separated them. When Prakash pmcee ed further towards his house, at a idistance of 2-4 ft. near culve accused Mohan, Lakhpati, Bhuwan, tMangla, Mangal Dei, Munni Dalim, Daymati 85 Konda @ Laman came and started attacking. Accused Mangla attacked with Lathi on his head, and Lakhpati als attacked with Lathi‘ Receiving the information fmm Ratiram, An , Hemant & Siddharth came them to intervene. The accused pers ns attacked them. When Anil came an, the main accused, & Mangla with Prakash, thereaiter, Lakhpati, in the f1rst instance, only came and stalted quanelli t c h n ‘i" E} é g7 8 WW,W,W 6> 200 K A2§7mw<3a§4 mm (W) WWW WW §@W ‘ §mTan3né¥1 WWW 311%“ Konda, Bhuwan an Mangal D1ai came canying Latbis. Allegations am that only Mohan attacked Anil with Gupti all of a sudden after itaking out the Gupti mm his atu're. As accused Konda @ Laxman, Lakhpaii 8n Mangal Dei came after the incident started and accused Mangal is abscondin g, it cannot be infenea that accused Kgn‘da, Lakhpati & Mangal Dci were knowing that accused Mohan was already_canying Gupu’, as the same was concealed in the am're which he took out all o a sudden and attacked Anil. Even durmg inves1igation, no Lathi has been recovered from Mangal Dei 65 Konda. Pertusal of the e ‘dence of Ratimm (PW—2), Hemant Ifumar (PW-8) 85 Siddharth ( W—9) shows that accused Lakhpati, Konda & Mangal Dei came la er on and these witnesses have not 1 categorically stated that the e accused persons also attacked. Moreover injuries to these ns were inilicted by Mohan with Gunti. Therefore, hem the above ten’al it cannot be inferred that accused Konda, Lakhpati 8r. Mangal Dei were sharing common object With accused Mohan f committing the murder of Anil and causing injuries to the other Victims and to that extent even the trial Court has held that th accused persons were not sharing common object with accused han to cause the death of Anil. In the circumstances, finding o the trial Court that these accused persons formed an unlawfulassembly in order to attack Anil & others is not based on le evidence or material availabk on Incord. As the unlawful a sembly has not been established, m ; .a p o a e o g aw WW,W,W W m CDR8§7M .. 3“? 200L aném m (W) WWW ammm mmmm mmiwxwtm é? aifmm Conviction of accused Mohan under Section 148 of the I.P.C. as clso conviction of accused Klonda @ Laxman, Lakhpati 8r. Mangal Dei under Section 148 of the I.P.C. cannot be sustained. Even no % Weapon has been recovered iirom .Konda @ Laxman & Mangal Dei. \ On that count also, their con‘;icn'on under Section 1.48 of the LRC. Cannot be sustained. Sim larly, conviction of accused Mohan under Seciion,324 read with Section 149 of the I.P.C. also cannot i be sustained: Conviction of accused Lakhimti, Konda 8r. Mangal Dei under Sections 325 mad with Section 149 and 324 read with Secn'on 149 of the LRC, cam ot be sustained. 13) Now, coming to the convictim of 'accused Mohan under Section \ $02 of the I.P.C. for commi ' g the murder of Anil and causing simple injun'es with Gupti t Siddharth 8a Hemant is concerned, Siddharth 8r. Hemant have ategorically stated in their evidence that Mohan attacked them 'th Gupti. Injuxy report Ex.P— 18 of Hemant prepared by Dr. K. . Gupta shows that he sustained two incised wounds and injury port 'EX.PH19 of Siddharth prepaled by Dr. KM. Gupta also sh ws that he sustained one lacerated wound on nostril which co borates the evidence of these two witnesses regarding the assa t made by accused Mohan on these two victims. Thelefom, acc sed Mohan committed crime under Secuon 324 of the I.P.C. ins d of Section 324 read with Secn'on 149 of the I.P.C. which is has d on legal evidence. ‘14) As far as convicu‘on of aocu ed Mohan under Section 302 of the Ii.P.C. is concerned, Miss S geeta Mishra argued that accused @ 10 ‘ w: zooL mG>A§g7aMX§R WW (13W) WWW am m mmm WWiwm émifmm udden in a sudden fight Without any therefore, ooence against him does Part-II ofthe I.P.C. gument advanced by Miss Sangeeta the Dehati Nalishi ahd evidence of Ratiram (PW-2). It clearly establishes 85 Ratiram were returning to their about 7 p.m., accused Mohan along with‘absconding accused M gla met them on the way and started pushing Prakésh. When R 11‘ram informed family members of Prakash i about the incident, ‘came on the scene. When Ar took out the Gupu' which was on the stomach of Anil as a abdominal injury and food pipe was out. When Anil held the hand himself, accused Mohan in the first stomach of deceased Anil and pulled s a result of which omentum and gut wound. Rigor mortis was present in llowing injuries: — Mohan attacked Anil all of a s preparation or premeditation, 1not travel beyond Section 304 \ 5) In order to appreciate the a: Mishra, \ we have scrutinized exeyyitness Prakash (PW- 1) an the fact that “when Prakash house after closing the shop Anil, Siddharth, Hemant 8n Meena jl tried to intervene, accused Mohan concealed in his attire and stabbed besult of which he sustained serious of Mohan in order to rescue instance, rotated Gupti in the it, which again proved fatal, a parts were pmh'uded hum the all four limbs. Anil received f0 (i) abrasion left knee left (ii) stab injury (wound) p ced 3 V2” above and slightly left to umbilicus, in epigasni region of abdomen, about 7” long omentum and gut part was protruded fmm wound, injury was placed transversely obliquely, margin was clear cut sized F ‘V i tetior aspect V2“ x V2”; / W 3am, ma, 200z Wm (W) mwm 3211mm WWW WWW#1€‘Q°IW %a¢i1%rqém%§1 H 3 V2 ems. X’”2 V2 cm ., running obliquely upwards and medially cutting the lay r of skin, fascia muscle (all layer of skin) entcr the peritone Above act of accused Moh (is suggestive of the fact that the accused stabbed the decease with intention to canse his death. \ As‘far as sudden iight is co cemed, in fact, them was no nght cused Mohan. Anil simply came on cue Prakash. He was armless. The t there being any quarrel from the ,ot be said that the accused attacked meditation or preparation, because ue carrying Gupti. Intention of the the nature of weapon used, place of tlicted and the force with which the 1sed attacked the deceased on vital that too with deadly weapon Gupti Lerced up to 7” into the stomach. All Le fact that the accused attacked the deceased with intention to cause his death. Therefore, conviction l of accused Mohan under Sec imposed upon him under the available on recoxd. 71 In the result, (i) The appeal med by partly allowed. Convi ‘ > ‘ ‘ between deceased Anil and ac the scene to intervene and res accu§ed attacked him Withou side of Anil. Therefore, it canr the deceased without any p11: the accused came on the see a‘ccused can be gathered h‘om body wheie the injury was in injury was inflicted. The accw part of the body i.e. stomach and with such a force which p these facts are suggesn’ve of t1 \ lion 302 of the I.P.C. and sentence 1t count is based on legal evidence ohan Rana (Cr.A.No.887[2002) is on and sentence imposed upon him W 3am, WW WW @ " ‘m 2%; WW éWE: am ’ “W7 " Wmwrw mm ’fz@xm” iamémém Soma under Section 148 of acquitted of the said c mad with Section 149 of 324 of the I.P.C., howefv f maintained. Conviction a . the I.P.C. are also mai (ii) The appeal filed by Konda £ (Cr.A.No‘.393/ 2002) is all imposed.upon them un er Sections 148, 325 lead with w‘ I'.P.C‘ are set aside and he is . Conviction under Section 324 I.P.C. is converted into Section r, sentence under that count is d. sentence under Section 302 of Laxman, Lakhpati 85 Mangal Dei wed. Conviction and sentences Section 149 8L 324 read aside and they are acqui on bail. Their bail bond: surrender before the Court 4‘ Sdl— L.C.BHADOO Judge Section 149 of the I.P.C. are set ed of the said charges. They are i are discharged. They need not Sunil Kumar Sinha Judge 12. Cvdgg‘bwéeezs WW (W) Sdl— h n e e d ‘ e