%%[&@ W“$1 qJ mmm ammm WWW Criminal Aggeal No.525 a? agaw Boga, S/o Soma Gond, Aged abouf 60 year's, WWW§EQ°IW APPELLANT: (In Jail) RESPONDENT: V APPELLANT: (In Jail) RESPONDENT: {Criminal appeais under Sec’rion 3‘ ‘4 (Z) of The Code of Criminal Procedu'reL‘ Division Bench: Hon'ble Mr. L.C. Bhadoo and Hon'ble Mr. T.P. Sharma JJ. 28-3-2008 Mr. Pra’reek Sinha, counsel f'or appellam‘ Boga in Cr.A.No.525/2007. R/o Village Chamiya, Balenga, P.S. Bhanpuri, Dis’r‘r. Basfar' (6.6.) Versus - Stale of ChhaTTisgarh, Through P.s. Bhanpuri, Dish‘. Basfar (CG) AND Criminal Apgeal No.526 of 2007 Tulsiram @ Budhuram, S/o Bandi Gond, Aged aboui‘ 47 years, R/o Balenga, P.$. Bhanpuri, Dis’r‘r. Bas’rar' (C.G.) VerSus — STaTe of Chhal'risgar'h, Through P.S. Bhanpuri, “Dis’r’r. Basfar (CG) MW,W§,W Wm 1:1 200 WW (W) %£"~J @ WW,W,W mm w: 200 mm (W) Mr. Pr‘aveen Das, Depu’ry Go . Advoca‘re for‘ The STa’re/responden’r. To day ‘rhese ma’r‘rers are fixed for admission. As The accused persons ar'e in deTenTion since 19 1, wifh The consenf of counsel for The por‘ries, the maTTers are heard fina Iy. Cr'.A.No.525/2007 filed by Boga and Cr.A.No.526/2007 filed by Tulsir‘am @ Budhuram are being di posed of by ‘rhis common judgment, as boTh These appeals are arising ouT f The same judgmenT daTed 10-11-1998 passed by The 2'“ AddiTional Sess ons Judge, Jagdalpur in Sessions Trial No.322/92. Oral judgmenTrdicTaTed on D is L C Bhndoo .T: - These appeals are direcTed againsT he judgmenT of convicTion and order of senTence daTed 10-11—1998 passed by The 2'“ Additional Sessions Judge, Jagdalpur‘ in Sessions Trial No.322 92 whereby learned AddiTional Sessions ' Judge afTer holding each of The a cused guilTy for commission of offence under SecTions 302 & 323 of The I. .C., senTenced each of Them To undergo imprisonmenT for life and pay a fin of Rs.§00/-, in defaulT of paymenT of fine To furTher undergo RI. for on year & To undergo RI. for one year and . man-[m ammm WWW WW§§€IW $a‘rmm "IVH. V.b. VIIUIWUI', LUU'ISZI Wm m IUI' UPPEIIU'” lUl5lra Cr‘.A.No.526/2007. WW, Wan—gt, W N . Case of the prosecu’rion, in brief, Village Alnar near The house of Ch & oTher's were playing cards, wher be‘rween The deceased & The acl a’r‘racked The deceased wilh club é susTained fa’ral injuries and succur 8-11-1991. The crime was wifne Sukhchahd who infervened. The for one mon’rh, respectively. sen‘rences shall r'un concurrem‘ly. is ThaT on 7-11-1991 aT abouT 5 p.m. aT ingdu The accused persons, The deceased They were playing cards, quarrel ensued ‘used persons and The accused persons i LaThi as a resulT of which The deceased nbed To The injuries susTained by him, on ssed by Khageshwar, Chingdu, AoyTu & maTTer was reporTed by Mangalram To Police STaTion Bhanpuri under EXP In . Affer regisfrafion of The case, Thl of occurrence. While in police clusTody, accused Boga gave memorandum he‘ axe was kepT and in pursuance of ThaT, Accused Tulsiram gave memorandum E§.E-_ ‘as seized under EXP—10. Body of Laxman (since deceased) was senT To Th AssisTanT Surgeon, Maharani HospiTaI, Jagdalpur for posT—morTem wh e Dr.‘$omesh Pande conducTed posT— morTem and opined ThaT The cau e of‘deaTh is coma due To head injury resulTing To exTramural as well as nTra cerebral'haemorrhage and The deaTh Ex.P—7 regarding The place where 1 The axe was seized under Ex.P-8. 9 and in pursuance of ThaT, LaThi was furTher direcTed ThaT boTh The In -1. InvesTigaTing Officer lefT for The scene mm W1 200 Wm (W) mmfawiai ammm WWW WWd‘wm aTaiWTam paya meo . —,m eau o oR.I. @ 4 mm 1a 200 3mm (W) mmfzaiaa‘ ammm mwm WWWiwW %a1‘1%maa1&m ’ a Io and r Ex.P-11 was prepared and The doctor wound on The scapular region and a lacerafed wound aT upper parT aT i ff ear. Injuries of Mansingh were also examined by The doc‘ror and he pared The repor’r EXP-13. Mansingh sus’rained as many as seven simp injuries on various par’rs of The body. Injuries of Laxman were examine by The docTor and five injuries were found on his body, afTer examinaT on The docTor prepared medical reporT Ex.P-14. after his examina‘rion, injury rep found Tha’r There was an incis . Af’rer compIeTion of invesTigaTion, charge sheeT was filed in The CourT of Judiciai MagisTraTe, FirsT Class, Ja dalpur, who in Turn commiTTed The case To The Sessions Judge, Jagdalp , from where learned 2nd AddiTional Sessions Judge, Jagdalpur received The case on Transfer for Trial. . The prosecuTion in order To esTabl charges againsT The accu5ed persons, examined ThirTeen wiTnesses. ST TemenTs of The accused persons were recorded under SecTion 313 of The r.P.C‘ in which They denied The maTerial appearing againsT Them in The prose uTion evidence and sTaTed ThaT They are innocenT and They have been falsely implicaTed in The crime in quesTion. . Learned AddiTional Sessions Judg afTer‘ holding The accused/appellanTs guilTy for The alleged offences convicTed and senTenced Them as aforemenTioned: ’ o e e l u i h HW,WW,W W m “i 200 mm (W) mw WWWifgém mmm §Nimm We have heard Mr'. Prateek Sinhc, leér‘ned counsel for accused/appeHanT Boga; Mr. V.C. OTTalwar', learned counsel for accused/appellam‘ Tulsir'am @ @ Budhur‘am and Mr. Praveen Das, Learned DepuTy GovT. AdvocaTe on behalf of The STaTe/responden’r. Learned counsel for The appellanfs 1ave not dispu’red The homicidal deaTh of Laxman. Moreover, Dr. Somesh Pcnde (PW—13) has sTaTed in his evidence ThaT on 8-11—1991 he conducTed po: T—morTem on The body of Laxman, There was an incised laceraTed wound on righ’r side of forehead in The size of 4 cms. x 3 cms.; incised laceraTed wo md in The size of 4 cms, x 3 cms. on lefT side of forehead; one incised laceruTed wound on righT cheek in The size of 2 cms. x 2 cms. & one incised lacercTed wound in The size of 7 cms. x 3 cms. on righT leg. On opening The head 'T was found ThaT lefT parieTal bone was fracTured and cloTTed blood was pi'esenT in The areas of boTh The parieTal and occipiTal regions. His reporT is EX.P'11. Above medical evidence is corroboraTed by The ocular evidence of-Mangalram (PW-1), Mansingh (PW-3) injured wiTnesses, Khageshwar (PW-5) & Chingdu (PW-6) who have sTaTed in Their evidence ThaT The accused persons aTTacked The deceased wiTh LaThi. Therefore, in view of The above medical and ocular evidence, iT is esTablished ThaT The deaTh of The deceasedwas homicidal in naTure. As far as compliciTy of The accused persons in The crime in quesTion _is concerned, learned counsel for The 1ppellan’rs argued ThaT in facT, perusal of . . . Wm 1a 200 mm (W) WWW ammm mwm fhe mn+aninl .nuuu- nu. »‘.n:l-kl.. m. WW“. w. .owru re 7 The Hum Ulr incideni, fhe accused persons & The deceased were playing cards, when They were playing cards quarrel ensued between fhem attacked the deceased. 'e, everything happened in a spur of moment, in a heat of passion, all o a sudden without any preparation or premeditation, as such, the case of the appellants is covered under Exception 4 to Section 300 of t e I.P.C. Accused/appellant Boga also sustained injuries which is evident f om Ex.D-5 medical report. On the other hand, learned Deputy ovt. Advocate supported the judgment 10. of the trial Court. We have perused the material. 11. stated in his evidence that at about 3 p.m. on the fateful day he was at his residence, Jadgi, daughter of Laxm n (since deceased), came and informed that the accused persons are attack ng her father, therefore, he along with his brother Mansingh went near th ‘house of Chingdu where the accused persons were attacking Laxman wi h Lathi 6i club, when they tried to intervene, accused Boga attacked h with a knife which hit on left side of his chest. Therefo and The accused persons alleged To have .Mansingh (PW-3) has corroborated the above evidence of Mangalram and has stated in his evidence that he i mm (W) mmw ammm H 3. Jadgi Bai (PW-4) has also sTaTed her‘ evidence ‘rha‘r she heard commotion from ‘rhe side of ’rhe house of Chi gdu, she wenf Towards Tha’r side and saw Tha’r fhe accused persons were ah” cking her father wifh Lathi. H i. Chingdu (PW—6) has also corrobor ted the above facf and has sfafed in his evidence ThaT deceased Laxman 6i he accused persons came in from of The door of his house for piaying card , he asked Them To go some where else, Therefore, They shifTed To some d sTance and sTarTed playing cards. In The mean Time, There was some quarr i beTween The accused persons & Laxman regarding paymenT, as accused B go said ThaT he has puT The sTake of Rs.10/-, Laxman sTarTed saying Th he has puT The sTake of Rs.6/— and boTh of Them sTarTed demanding doubl of The sTake, Therefore, Boga & Laxman sTarTed quarreling, Boga slapped L xman, ThereafTer, The persons who were playing cards lefT The place. ereafTer, Laxman came To his house. Mansingh & Mongalram chased Bog in order To aTTack him. 5.In cross-examinaTion of These Tnesses (PW—1, PW—3, PW-4 & PW-6) defence has noT been able To elicT any circumsTance which discrediTs The evidence of These wiTnesses. All T ese four’wiTnesses, ou’r of whom Two are injured wiTnesses namely, Mang lram (PW-1) 6i Mansingh (PW-3), have caTegorically sTaTed in Their evid nce regarding The assaulT made by The WWW§wm #aifaqm )er‘EonE‘a'fT'a-WRe e ecea e WI club, he was also affacked and he susTa mm amt O] OCCUr'r‘ence W’ier‘e He aCCUgea ‘ i led injuries. g mew i h i m’emfaw ammm ansingh. This ocular evidence has been corroboraTed by ‘rhe medica! ev dence and as per fhe injury repor'rs, Mangalr'am & Mansingh sustained injuries. Therefore, complici‘ry of fhe accused/appeHan‘rs in ’rhe crime i ques’rion has been esi’abh'shed beyond reasonable doubT and ’ro ’rhaT exTe T we do noT find any subs’rance in These appeals. . Now, coming To The argumenT adv nced by counsel for The appellanTs ThaT 1« case of The appellanTs is covered nder Excep‘iion 4 To SecTion 300 of The I.P.C. is concerned, iT has come on record ThaT The deceased & The accused persons were playing cards aT The ime of incidenT, even Mangalram (PW—1) in par‘a 1 of his evidence has a‘miTTed ThaT The accused persons were assaulTing Laxman wiTh LaThi near he house of Chingdu. Sukhchand (PW—2) in para 1 of his evidence has sTa- ed ThaT near The house of Chingdu The accused persons, Laxman, Mansin h & Mangal were quarreling, Laxman & Mansingh susTained injuries and he ‘quarrel sTarTed beTween Them wiTh regard To playing cards. Mansing (PW—3) has also sTaTed in his evidences, . ThaT Laxman wenT To play car s, many persons were playing cards, ThereafTer, The accused persons s arTed assaulTing Laxman. Chingdu (PW— 6) himself has sTaTed in his evi ence ThaT The accused persons & The deceased were playing cards and uarrel ensued beTween The deceased & The accused persons in connecTion have also a’r’racked Mangalr‘am & iTh gambling. x&; mw,m,m mm in 200 Wm (W) WWW ammm WW Wm WWW éwmm 1A . [Here IS n0 “mg On r‘eCOf‘a WHICH EHOWS “a “e GCCUSea Per‘SOHS G GCked ’rhe deceased wifh preparm‘ion & premedi’ra’rion, in fac’r, They were playing cards and in Tha’r process, There as some dispu’re regarding playing cards and fhe accused persons all of a su den wi‘rhou‘r any premedi’ra’rion a’r’racking affacked The deceased. Therefor , we are of The opinion ThaT case of The accused/appeilanfs is covered un er ExcepTion 4 To SecTion 300 of The I.P.C. Judge T.P Shanna Judge Soma . In The resulT, boTh The appeals fil d by Boga and Tulsiram @ Budhuram are parTly allowed. Their convicTion under SecTion 302 of The I.P.C. and senTences imposed under ThaT coun are seT aside, They are acquiTTed of The said charge, insTead Thereof They re convicTed under SecTion 304 ParT-II of The I.P.C. and each of Them is enTenced To undergo RI. for Ten years. However, Their convicTion under ecTion 323 of The I.P.C. and senTences imposed under ThaT counT are main’Tained. . Learned counsel for The appellanTs submiTTed ThaT The accused persons are in deTenTion since 1991, Thereby Th ey have aiready served ouT The senTences impOSed upon Them. Therefore, The appeiianTs be seT aT liberTy forThwiTh unless required in any oTher case. Sdl- [i L.C.BHADOO