'C—JS sn^'i^iifrtw W Sf^l sb»1|eb s^ 3S? ^WW^, yrfl'M'lfi, fartl'My ^ c-y'^^. i&a/of ^ll^dl 'fhW* 200 ani;?T TWS (lyl-isii^u) 'FHIW ^ltet 31I^T APPELLANTS: (In Jait) RESPQNDENT; w<lCT''i1i WRlf »f.fe^<pn<$i< ^sffillfSI^I 1. 2. 3. -Vtirsus- 13®v Singh, aged about 25 years, S/oShyam Singh, Choudher, aged about 20 yeare, S/o Raja Ram, Madan, aged about 20 years, S/o Raju Ram, All Resident of Wtlage: Bilai Kachar, Poltee Station: Ko^libeda, Didrict: Kanker (C'sarh) State of Chhattisgarh, through the Poltee Station: Koyalibeda, District Kanker. (Criminal Appeat u<)der Section 374 (2) oftheCr.P.G.) Divlsion Bench: • Hon'ble Shri L.C. Bhadoo & U-pn'ble Shri Sunil Kumar Sin i.AI. 164.2008:- Shri Vishnu Koshta, courjsel for the appellants. Shri D.K. Gwalre, Additiohal Public Prosecutor for the Stat^espondant. Oral judgment dicteted 0(1 Da/s. L.C. Bhadoo.J. This appeal is directed 6 sentence dated 3-9-2001 pass^d by the 2mi Additionat Sessions Judge (FTC), Kanker, !n S.T. No.SOSQOOO offence under Sectton 302 read gainst the judgment of conviction and order of wlwreby and whereunder teamed Additional Sessions Judge after holding t(ie accused/appellante guilty for commisston of with SecUon 34 of the f.P.C. for committing the r'itSlDjn"" :C—78 sn^s ^f R-<i+ (WT ^iwi sniw ssssx ^. 3^r^ww, STfrffTO, Ri^wy VWv\\ sh«l«b ^..&.J.Q..l.i.....f..%^ an^?r iisra; (i^f-j.siiiw) •^nwgftgsn^i +l^(<-l<il-f 'WRif'Ef.'fBTA <lai<il< ^affiRSii^r murder of RainuRam, sen< imprisonment for life. However] co-accused Kanglu, Ramsai, Sh^ The case of the proswuti p.m. Rfl/-1 Laxman, younger b |enced each of the accused to undergo leamed Addffional Sessions Judge acquitted ^mbhunath, Suresh and Bindal. |?n, in brief, is that on 26-3-2000 at about 3.M ^other of Rainu Ram (since deceased), gave merg intimation Ex.P/5-A and Ifiret Information Report Ex.P/5 in the Police Stetion Koyatibeda, Distrid Kanjcer, to fte effect that they are three brothere namely, Rainu Ram (since dece^sed), Lachhu Ram and he himself. As Rainu Ram was elder brother, he cut ttie Sulphi tree in order to extract Sulphi juce. On 24-3-2000 at about 6 p.m. D^v Singh committed theft of Sulphi juice, about that Anil informed them, therefor^, he and Rainu Ram asked Dev Singh not to commit theft of Sulphi juice, as|they are already gmng Sulphi juice to him, ttierefore, why he is committin^ theftof Sulphi juice, on whfch Dev Singh became angry and he attacked t| not attended the meeting and ha imand his brottier with lathi. His wife Shanti and sister-in-law Chaiti Bai int^rvened. Beating was also given to them, therefore, Rainu Ram and he ga|/e beating to Dev Singh. Next day i.e. 25-3- 20(X) at about 8 a.m. Dev Singh cjonvened a meeting in the village, but they had 1 gone for their work. They retumedat about 5.30 in the evening. They saw th|at Dev Singh, Kanglu Ram, Ram Sai, brother- in-law of Ram Sai namely, Sures^ were carrying lathis in their hands and they attacked him, his brother, wife Shanti and Chaiti Bai, therefore, they hid themselves inskle the house. Dejv Singh was crying saying that he will commit the murder of Lachhu and Rainu| Ram, therefore, in the night, Rainu Ram left the house and went to the house|of Mangia at Kacharpara and he slept there. On 26-3-2000 at about 6 a.m. Slfiambhu Nath came and infbrmed him that at about 11 p.m. in the night Dev Sitigh, Choudher and Kanglu Ram had gone to •XI-IIC—78 a-wfl an^r w Wi* ^IW 311^1 ^iTIR; -s^ef ^m^, ffTfl^'is, facii^y ^.........c.,..A....(.y.4/.^ '^ 200 Sf^f •CSSSK (ipfg^T: ^gTWdftd 31^1 ^NOTN-RItRif if.'fe'A "rfsR?K i; sjfiN an^r attacked him with lathis and comtbitted his murder. Receh/ing this report S.H P. Police Staflon registered FIR Ex.P/5 and Merg tntimation Ex.P/5-A. He l^ft for the scene a/S occurrence, after giving notice to the Panchas, heprepar^d inquest Ex.P/2 on ttie body of Rainu Ram. Blood stained soil and plain soil v^as seized from the friace <rf occurrence under Ex.P/3. Lathis and clubs, 7 in nu ^iber, were seized under Ex.P/4. The body of Rainu Ram was sent for postm{»rtem examination under Ex.P/6 to Primary Health Centre, Koyalibeda where|Dr. S.S. Malviya conducted the postmortem. He opined tfiat the death was due[to injury by hard and blunt (Aject. Deatti was homicidal in nature. He prepare(( the postmortem report Ex.P/6-A. Lachhan, Shanh" and Chaiti Bai were sent for examinafion of their injuries. Thedoctor after examination of their iniuriesl and Ex.P/9-A respectively. Seized prepared injury reports Ex.P/7-A, px.P/8-A articles were sent for chemical examination to the FSL, Raipur from where reriort Ex.P/20 was received. After completion of the inv^stigation, charge sheet was filed against the accused persons in the Court ofJijidicial h4agistrate, 1A Class, Bhanupratappur, who in turn, committed the cas®td leamed Additional Sessions Judge The prosecution in order t< the Sessions Judge, Jagdalpur from where received the case on transfer for tn'al. establish the charge against the accused persons examined 10 witnesses. | Statements of the accused persons were recorded under Sedion 313 Ci(.P.C. in whfch ttiey denied the material appearing against them and stat^d that they are innocent and have been falsely implteated in the crime. Qne defence witness namely, Rajaram was examined, who has stated that hi^ house is adjacent to the house cf Lachhu and in the previous night he had no| heard any cries. iS:-3r ~ '••SR^' ••-.Jp' 4 [-HC-78 +11+1WI Sb+llch 3^ ''iww'ii, aifl+i'KS, Ricfitfy ,.^;.A; 200 Sll^l Matft ('iclI^'s<'^'iT) 3TI^TqiT^:TW OTTSn^Tstill'sb ??(TRRHlW3TI^T Loarned trial Court aftor tt •wrfeN^Twrafff fWl-rfSfRR ^ari^R'SlT^T caring counsol for tho rospoctivo parties convicted and sentenced the We have heard Shri Vishni< and Shri D.K. Gwalre, Additional Leamed counsel for the death of Rainu Ram. Moreover, was homicidal in nature. Same Lachhu & R/V-7 Smt. Rupa Bai. Tt'fi Ram came to their house and he persons namely, Dev Singh & Rainu Ram, they dragged him out| cries of Rainu Ram saying 'save Ram was found in front of their hoUse established that death of Rainu As far ascomplicity of the concemed, in the first instance, argued that as far as accused h/| against him that in any manner Choudher and Dev Singh who house of Rupa Bai. In fact, dragged the deceased. He furthe^ Choudher and Dev Singh is and PW-7 Smt. Rupa Bai, there is persons with the crime in questi<(n. establishes involvement of these He also argued that it is evident sal^e Raitn concelmed Erecus|ed/appetlants as aforementioned. Koshta, learned counsel for the appeBants Piliblic Prosecutor for the Stete. ac^used/appellants has not disputed homicidal p^stmortem report Ex.P/6-A shaws that death )s corroborated by the evidence of PW-6 •|ey have stated that in the fateful night Rainu |was steeping in their house. The accused Chopdher came to their house and after beating |of the house and thereafter they heard the i'. In the next day moming corpse of Rainu (. Therefore, from the above evklence, it is was homicidal in nature. ^ccused persQns in the crime in question is l^arned counsel for the accused/appellante (adan is concemed, there is no allegation attacked or h®was party with accused and dragged the deceased from the atte^ations are that Choudher and Dev Singh argued that as far as the case of accused I, except the testimony of PW-6 Lachhu ho other evidence to connect these accused Their testimony is not clinching which ^ccused/appellants in the crime in question. the evidence of PW-6 Lachhu Uiat there tte attecked frt>m 1>'-. P.T.O. tt •:.'',:-^::-^K^- "'<> &s^\ w:" i':s% JXI-HC-78 >'^('/: Tsf^mfvpf, ®Tfrm?,[Sicii^y ifTq^ll sh*11<*> 200 OT^Tq^q? (t|qi3^T) gn^TSfiTi^.lTiii gmsn^TOTR? ^Rirwstesn^T ^rafepfrTwRff ff fet&^CT: ^isri^iran^T was darkness in the night and on acjcount of that it was not possibte for Lachhu to identify these accused pereons. ^erely on guess work they have implicated them. On the other hand, Shri GMJralre supported the judgment of the trial ICourt. (dispute with Dev Singh. Dev Singh RW-1 Laxman, who lodged t(ie report, has stated that they had some tised to quarrel with them on the ground of |consuming Sulphi. Dev Singh conv^ned a meeting in the village. As they cfid wt participate in the meeting, therefore, Dev Singh, Ram Sai, Bimta, Kanglu, iuresh and one another person atta<tked him, Chaiti and Rainu Ram at about 5 >.m. in the evening. In that beating ^ie, Lachhu, Chaiti, Shanti and Rainu Ram ^ustained injurte. Being frightened f](ainu Ram ran away and hkl himsetf in the jiouse of Mangla. There is no cross-^xaminafion of this wtness on this aspect. ]The above evidence of this witness |s corroborated by the testimony of PW-2 prabhu Ram. He has stated that pev Singh attacked him. After climbing iulphi tree he consumed Sulphi juicel. When he informed this fect to his father i-axman, accused Dev Singh attacketl his uncte. He has also not been cross- ^xamined. Similar is the evidence ofpW-3 Chaiti Bai, who has also stated that |i connection with Sulphi juice accus|ed Dev Singh quarreled with RainuRam ^nd their family membere. Lachhi^ attacked Dev Singh with lathi and he )nvened a meeting which was not a<tended by them, therefore, in the evening w Singh, Ram Sai and Kangfu gav^ beating to them. Being frightened Rainu pam left the place in order to hide hirtiself. PW-4 Lachhu Ram has ateo statsd lat on the ground of Sutphi jufce th ^ingh. Lachhu Ram attacked Dev )rroborated by (he ii ere was quarrel between them and Dev »nghwith lathi. Their oral testimony is 3nd '>»»-< '--^.3.> 7JSI-HC-78 3^? "41<i<lcl-4, ®Tfl*f'IS,(s|<'11<-ty t<l+1C1l Eh*1ich ^R; 200 3^1^!*14;|cb(iic)t^o^) an^rciirf^iTq; (TqT3TR?rsb11ti SRfTWfllNsn^T' Ex.P/9-A of ChaiU. Therefore, fromlthe connection with Sulphi juice of the| dispute betuyeen the complainant| connection, in the previous evenir|g, gave beating to the complainant threatened them that he will not the First Information Report. above evidence, tt is established that in free of complainant party, there was some party and the accused pereons, in that g, accused Dev Singh and his associates prty, even at that time accused DevSingh them. Same fact has been reported in l^arty le^ve In this bacl^round, if we e;| PW-7 Smt. Rupa Bai in whose hou^e in the night in order to save himself|from Lachhu has stated that Rainu Ranli about 8-9 p.m. in the night. He v^ came and he asked Rainu Ram to therefore, she woke up. Thereaft^r, accused Shambhu and Lakhhu Choudher also came there. Therel position to see exa :tly whether tl| Choudher asked Rainu Ram as thereafter, Dev Singh and Choud(ier Thereafter she heard the cries of not go to that side. In para-3, sh^ Ram when he was sitting on the c<( the evidence of PW-7 Smt. Rupa B^ these two witnesses, it is establist Choudher came to their house, and immediately thereafter they h< thejy +i''<lc'f'i(1-< tiiii-iTfftec^t'<I<'i^;i< ^isrf^pTsn^T itamine the evidence of PW-6 Lachhu and Rainu Ram (since deceased) hid himself accused Dev Singh and others, PW-6 (since deceased) came to their house at tas sleeping, at that time, accused Madan ^vake up. Accused Madan sat near the fire, ', accused Madan gave whistle, on which (sarne, after some time, C-v Singh and |was -larkness, therefore, she was not in a tl|iey were carrying lathi or not. Accused t|s what he was saying yesterday to him, dragged him after holding his hands. F|tainu Ram saying 'save save', but she did has stated that Choudher slapped Rainu )t. The above evidence is corroborated by ki, mother of Lachho. From the evidence of ?tied that in fact, accused Dev Singh and dragged the deceased out of the house i^ard the cries of Rainu Ram saying 'save P.T.O. I-HC-78 .,».»•" ^s? ^TRI?PT, 's^ftwre, Rioiy^ HM^II a^Hltb WT 200 3<l^l4ri*(y<(3'!"<.iiT) sn^r^f^rw OTT 3(1^1 sb^l'h ^CTW:Bf?tr3T^T ^prfcpft? WRff ^'teiA T^RZTC ^srf^R-an^T save'. As per the postmortem repo|rt, right and teft ribs were fractured, kidney was ruptured, there was fractuie of right parietal bone and he died spontaneously. These two witjiesses have not been cross-examined specifically regarding coming of acc(ised Dev Singh and Choudher in the house of these witnesses, taking away t>f Rainu Ram by them and immediately thereafter there was cry from Rain j Ram saying 'save save', therefore, from this evidence, complicity of accusedjDev Singh and Choudher is established. Leamed counsel for the acd witnesses had not witnessed these ^ iised/appellants argued that in fact, these ccused persons attacking the deceased. It is true that ttiese two witnesses had not witnessed when these accused persons were attacking, bi^t the fact remains that in the first instance, there was motive for these accusec) pereons to attack the deceased because Rainu Ram and his brother leveled ^harge against accused Dev Singh that he has committed theft of Sulphi jui ;e from their tree, which enraged him, lereafter, he along with other peifsons attacked those persons and family |members, meeting was cwnvened fc|y Dev Singh, which was not attended by lese persons, in the evening Dev Si|ngh and his associates came and attacked |members. Being frightened the deceased f Mangia i.e. Lachho and Rupa in different i^r and Dev Singh came, they took Rainu the dweased, his brother and familyl came and hid himsetf in the house oi tocality, there also accused Choudhi ^aised cries. Therefore, this evide] ^ccused persons were the person? ^imple denial of these accused pei Ram along witti them outside the t^ouse, immediately thereafter Rainu Ram ice is suggestwe of the fact that these who attacked the deceased. There is \sons regarding their involvement in the ;rime. When these two accused p^rsons dragged the deceased outside the P.T.O. S 3P-HC—78 an^ii ?n R(-<i<+ ^8TT STT^T ^tlt^i 'SvSf "4|^|<?1<!<, ©TTl+l'Ko,RlrtKiy •a MW^I tb*11«h 'fF^ 200 aiR(?r fra? (Tj^^Ef) g^IIW -W^fl an^l Mras wte house and immediately thereaftei) given to the deceased, in the 106 of the Evidence Act, burden circumstances under which the| injuries were immediately infltetecf was within the special knowledg^ deceased sustained those injuri^s againstthese 2 accused persons ijej As far as argument of tearf darkness is concerned, even tho< there was darkness, but the fact known to this witness, as there was fire on the place where acci| importance cannot be attached to Leamed counsel for the made improvement in her stated in her police case diary by these 2 accused persons. We have perused Ex.P/18 witness has categorically stated Choudher came to their house, therefore, argument advanced by| any merit. For the foregoing reason|s Choudher is established by dear EJI is concerned, ths d^eased sustai evkjerice ^^. ct)Tilfe^)TT 'RTR^Tf 'Ff.fs^ <f^R$l< •^aTRrosTi^r there was cries and merciless beaUng was cir<(umstances, as per the provisions of Section on these accused pereons to explain the deceased sustained injuries because the on the body of the deceased, therefore, "rt of these accused persons as to how the iuri^s, failing which this is an additional factor ijegarding Iheir involvement. led counsel for the appellants regarding the ^gh PW-6 Lachhu in para-4 has stated that i|emains <hat these accused persons are welt quarrel going on befcween them and there |ised Madan came and sat, Uierefore, much thatfact. aripellants also argued that PW-6 Lachhu has before the Court whereas, she has not st^itement regarding dragging of the deceased (>olice case diary statement. In that al?o, this |that both accused persons Dev Singh and they took Rainu Ram from their house, |leamed counsel for the appellants is without i|s, complicity of accused Dev Singh and jnd cogent widence. As far as their intention fied multiple gnevous injuries on vital parts of -<<>. . 1 .^^^^-HC-78 "•--.i'aa^'' aiT^r ?? R-fi'* ^r8n sfT^?r sb*ii^ F«l Barve d-CT| '<11<<IC'1<|, STflti'lg, fsjoil|y^(. 9 *iWW **1|eb W^ 200 w^yr vw C^ty^fs) 'S^iiWdlTOan^i the body i.e. f»rietal bone was Iddney vras mptured and that was deceased. Therefore, the bacl' attacked the deceased, intention the deceasedwas writ large. Thi the judgment of the trial Court in upon accused/appellants Dev Singjh As far as accused Madan there is no other evidence that at dragging of the deceased or atta| common intention with accused of the deceased. Thus, convictioj with Section 34 ofthe I.P.C. canndt 1 Intheresult: > The appeat in respect of same is dismissed. Section 34 of fte I.P.C. ^i charge. The accused is in forthwith, if not required in ^ Sd/- L.C.BHADOO Judge ^PlfePfrTWraf tf.feA ifa^K ^sifiiq 311^1 D4v factured, left and right ribs were fractured, ^ the immediate cause for the death of the <jground in which these accused persons y these accused persons to cause death of ^s, we do not find any illegatity or infirmit./ in (•espect of conviction and sentence imposed and Choudher. |is concerned, except that he gave whistle, it:cused Madan in any manner was party to |:iking the deceased or that he was sharing Sinah and Choudher to committhe murder of accused Madan under Section 302 read be sustained. acjcused Dev Singh and Choudher fails and the > The appeal in respect of acfsused Madan succeeds and same is allowed. Conviction and sentence in|iposed upon him under Section 302 read with re set aside. He is acquttted of tt»e said tetention since 2-4-2000. He be set at liberty ny other case. SunaKumarS^a Judge I&l I • i