B»; K ^' K ^S^^ S;^ 1 tl'- ,2. CFOOOOOS8030 IS SiE BISH CQORT 03? £®.D^^.PBS.DESHAT, .g&B&LPTiR. Gr. Appeal %. o£ 1994 ni6-2. 1. ' Bibari soa of Eaio /Korh'aaaed •aboB'fc/32 va^ ,. y*', ' • '~ / - ~ -..-;,.-- -, <, ^ *~ .. ^ \"~-- - • : • /•. .) Bbn Bay. ,&,:[! as Ram KcishBa s/® ^ c^iraJQ' KoiAa' 3.'^..^^" . - .^. ']) ASsaaboat29yea.r^bo'tha^ffes;Laent;siii' fg^3~—\^i/' village SaaScari aaaa Basiia Sahsil SaraipallA ,3w.-<^~__^A~<y ;• ^/,." ",•: - ^ ^—^.-^— --^-. -—»—'"~"'—"'~ fcfoD.K. ^.£3^ Ms'-fct .aaipar?,( M.P. /•} ZSSgsF State ef'H.P. arodgh tb6 "S.H.o. 'Appeal anaer see'tioa 374. .Cr. . •:P»C, E • llt • ^ll.»ffu*w*u»'^ ., ; a^^ltM—'ri^? Nbl '•«*. •s 1 ^ il^g. B^l!:8&:«i»§3 HI6H COURT,QF_CHHATnS6ARH AT Sirgie Bersch : Hon b!e .r. Justice Priti'nker Qmaker Criminal Aoseal No. 553 of 1994 Sihari, ss another. A RESPONDENT The State of Madhyo. Pro.de.sh fNpw Chhattisaarh') Smt. Indira Tripath, counsei for the appsilants. ShrS Vivek Sharma, Pariei La'ivyer- for the Stcte. CRIMINAL APPEAL UNDER SECTION 374 f2) OF THE CODE Cf CKIW.HAI. PROCEiMJRi u c ?^ ? Present o.ppsal arises out of the impugned judgment and order dated 21.4.1994 possed by Additior.ai Se-ssions Judge, Mahasamund in Sessions Trial No. 188/1991 conyictinq the accused/appeilants for the offences punishable under Sections 304 part'-I and 323 of the Indian Psnai Code and sentencing to underao'rigoF'ous imprisonffient for ten years u/S 304 part-I IPC, to undergo rlgorous impr'sonment for 6 months u/S 323/34 IPC. Both the sentences were- ordered to ru" concurrently, Case of the pro-sscution in brief is that on 22.7.1990 at about 4 prp F.I.R. (Ex.P-1) was iodged by ©yondas (PW-2) alleging in it that on that day ot about 2 pm on the eve of "Hareli" festiva! his*- father Reghu (deceased), brother Shvon'la! and uncle Nital ho.d consumed liauor and thereafter" they came outside the house. However, as there was .soms disoute between them becouse his wife did not come to the house of the decensed for taking food, the accused/appelltrit " "V: '*;.,.•.. tv^S!! i'?:-'lt^- Si' -' .t.Sfsft-^^-SS' l^'.^^NNil swifgSt i^^iSvss No. 1 Bihari and one Baratram (PW-S) came there and ssked the compiainant ond h's famify merp.bers not to fight. Thereafter, he csme back to his house but his mother Nindrabal (PW-3) called him by saying that his father ho.s been ki!led. When he came outside the house, he saw the deceased Reghu lying on th®road and even his uncle had a!so suffered injuries and he was hoiding the a&cused/appeiiant No.l Bihari, who was carrying club in his'hand and othe-r accussd/appeiiant No. 2 Non Buti was also standing thers carrying club in his hand. When he rushed to Nindra Bai (PW-3), appellant No. 2 Non Buti assauited him a!so. He has made specific allegation against the accused/Qppeilant No. 1 for CGUs'ing injury to his uncte Nitai. Hs has also statsd that the incident has been witnsssed by Adhar-iya, Samaru Koda, Uttsra and Roopdhar. After investigation, the accused/appellants were tried by the court betow f.er the- offence punishable under Section 302/34 and 323/34 of the India" Penal Code. 3. So as to hoid to Qccused/appeilants gui!ty, prosecutlon has examined os many as 13 witnesses in support' of Its case. StGtements of the accused/appeilants were aisc recorded under Section 313 of the Code of Crjminsl Procedur®in which they denied the charges leyelled against them ond pjeaded their mnocer^s and fa!se implicction in the case. •*<i- 4. After hearing the parties the trici Court has oscquitted Qccused/appeiiants for the offence under Section 302/34 of the Indlan Pena! Code but has conyicted and sentenced them for the offence und-sr Section 304-part I/34 and 323 of the Penal Cod®.Hence this aDDeal. f?;:^:g>^^ 5. Counsel for the appejlants submits that as the appeliant No. 2 has aiready undergone the entire sentence, she is not pressing his cppesl, and the present appeQl confines on!y in respect of the. accused/appellant No. 1 Bihars. She submits that as per the case of the prosecution itseif, the appelio.nt No. 1 Bihapi has not caused any injury to deceased Reghu and has caused injury only to Nitai (PW-1) and for which he h.o.s been convicted for the offence under Section 3.23/34 of the Indian Peno.1 Cod®Qlona with other cccussd, -She submits that when the accused/appeilant No. 1 Bihari has "ot assauited deceased Reghu, he cannot be convicted for the offence under Section 304 - part-1 of the Indian Penal Code as there was no common intention on the parf of the accused/appeiiant No. 1 to kill deceased Reghu. Lastly jt has bsen or'o.ued by the counse! for the appe!lo.nts that appellant No. 1 has otready remo.ined in jai! for more thon one yecr snd thus even if his conviction is maintained unde-r Section 323/34 of the Indian Penal Code, he- cannot be sent behind the bars because he has already servsd the six months sentenca imoosed under Section 323/34 of ths Indian Penal Code. 6. On the other hand, counse! submits that conyiction of the. occordonce witklaw an< the State/respondent use-d/appellcmts is in 7... I hqve hecrd counse! for the pa"ties cnd perused the *•»» materia! ayailabie on record. 8. Nitai (PW-1), one of court stotement h&s stated accu; quarrelinQ o.nd~ the-n -he seporated injured eye witnesses, in his lot on the date of incident the 'i and 6ya"das (PW-2) were 'cted them. He hcis stated that v uaIF !(i ^m thereafter the accused/appellant No. 2 Non Buti came there, opened the door of his house ana' both the accused persons i.e. Bihari and Non Buti were carrying club in Accused/oppeijant Bihari gave a biow on his head with of club, as a rssult of which he stsrted bleeding. further stated thct when his brother Reahu came to accused/appeiiant No. 2 Non Buti gave a c!ub blow on of Reghu and thereafter, gave another blow on hls face, as a result of which he fe!l down on the ftoor and died and thsn, both the accused/appeiian+s fled away from the spot. In the cross-examination also he has reiteroted that it is the accused/appeilQnt No. l' Bihari who had caused injur*/ on him with the heip of -club and the other accused/appellant No. 2 Non- Buti has Gssoulted the deceased Reghu. (PW-2) jodger of the FIR (Ex.P-1) and one of the injured eys witness has stated that upon hearing the shout of his mother, when he came out from the house, he saw the accused/appeilant No. 1 Bihari assaulting Nitai and the accused/appe!lar!t No. 2 Non Buti assauited his father Reghu (deceased), as a resuit of "which he died, This witness hos st6ted that on the date of incident, there was some di.sputs between hi$ family members becajse his wife has refused to / ' toke food in the house of.the deceassd. He also admits that al! ^ •. . N,t^ his family members have con-sumed liquor. In the cross- e^amination this witness further admits that accysed/appellant No. 1 had cause-d injury to Nitai (PW-1) whereas.appeito.nt No, 2 had caused inju^ to deceased Reghu, '•s^ ._. ' ~ 10. Nindrctbai (RW-3), wife of the deceased and eye witness to th®incident, though in th.e examJnQtion-in-chief has stated .^"'•:i: , •' i;"" :iEi;SSSlBil •!^ys^s^-? that both the accused per-sons have assaulted to Nitai (PW-1) cross !ant examination she has stated that it is the No. 2 Non Butl who caused injury to her this witness aiso admits that on the date of incident there WQS some dispute between her family members. has .stated that there was some dispute amongst fomily members of the deceased and the accused/appeilants and he has separated them by saying that not to fight. Biharilal Patel (PW-5) anothsr independent witness has not supported the prosecution case and deciared hostiie. 12. Samaru (PW-7) another injured eye witness hcs also stated that on the date of incident there was dispute between ©yandasand accused/appetiant No. 1 Bihari and he saw both of them holding each other. According to him, the accused/appellant No. 2 Ncn Buti gave him blow with the help of club on his shouider and then he also Gssaujted on Nitai and caused injury. In cposs-exo.mino.tion h&admits that on the date of incident fo.mily members of Gyon das including the deceased had consumed liquor ond there was some dispute between them. Baratrom (PW-8) has not support'ed the prosecution case ond has been declared hostiie. 13. &r. N.K. Agrawal (PW-12) had examined ©yanDas, Nitai ''**>- arid Shyam Lal and hos found injuries on them. According to Kim, ait the injuries sustained by them were simple in nature.j He ho.s atso done the post morf'em of the deceo.-sed Reghu. !r!;TiiE-"Bai !;!:: 14. Fr-om the eyidence so collected by the prosecution, it Is ipparent that .1 injury has caused injui"y to deceased Reghu. Frosin the evidence it aiso appears that there wa-s no common intention of the accused/appeiiants to kiil the deceased cmd it appears that on a spur of moment without cny previous plQnnirsg, it is the accused/appeliemt No. 2 Non Buti, who caused injun/ to deceased Reghu. The assauit on the dacsased Reghu was made by accused/appeiiant No. 2 Non Buti and for which there was no previous pianning by both the appellants. It is clsar that 1he.re was "o common intention on the po.rt- of appeiiants to ki!l the deceased and at least the-re was no intention on the port of the appeliant No. 1 or even he was having any knowledge that the appellant No. 2 is goin9 to ki!l the deceased. Thus, in the facts & circumstances of the ca?e, the appellant No, 1 cannot be convicted for the offence under Section 304 part I of the Indian Pena! Code and, therefore, he is being acquitted for the said charge. However, it is apparent from the evidence that the appellant No. 1 hss caused injury to Nitai (PW-1) cnd, therefor®.his conviction unde-r" Section 323/34 of the Indian Penal Code is fully justified and is irs Gccordancs with law,the same cannot be interfered with in any manner and is -. / accus< charge as far Sectlon view of above^^-he appea! is parl-ly ailowed. The ilant No. 1 namely Bihari is acquitted of the Section 304 part I of the Indian Penal Code oind conviction orsd sentence imposed upon him under E3734 o'f the Indian Penc! Code is concerned, the so.me are maintained. It is snformed that the appellant No. 1 Bihari hos completed more thor! six months sentence. He is on baii. He need not surrender before the court- below. Bail bond furnished by him stand dischorqed. --- Sf)' Pritinker Diwak-ar Judge S-i^^^':-^ ;H:-°'^.'1(I?^ '•{3:3i ."i?^^^& KSSSSUS '-^a> ; "CS!l]iIIS