am WW am m mufgam mmiwm $3imami¥t APPELLANTI RESPONDENT: APPELLANT: (in Jail) RESPONDENT: State of Chhattisgarh, Through P.S>. Sarkanda. Bitaspur (C.G.) {Criminal appeals under Section 374 (2) of the Code of Criminal Procedure} Division Bench: Hon’ble Mr. L.C. Bhadoo and Hon’ble Mr. T.P. Sharma‘ JJ. 5-5-2008 Mrs. Savita Tiwari, counsel fq‘r the appellanis. esh Jha, Deputy Govt. Advocates for the Mr. Akhil Mishra & Mr. Rak \State/respondent. \\\ \rr \ Shyamu @ Shyam Singh, aged about 36 years, S/o Shrawan Singh, R/e Chingraj Para, P.S. Sarkanda, Distt. Biiaspur (0.6.) State of Chhattisgarh, Through P.S. Sarkanda, Bilaspur (C.G.) Versus - Bhagirathi. aged about 35 years 3/0 Sukhru, R10 Chingraj Para, Bilaspur, P.S. Sarkanda, Distt. Bilaspur (C.G.) WW,W,W W WéwaIES 1.. gift% mvm (W). Criminat A‘ggeal No.1 35 of 1999 — Versus - ‘ AND Criminal Agkgeal No.136 of 1999 WWWW 2 3mm (W) Wm amW W75 mwzh Wifgétm $3ii‘mm mmm Cr.A.No.135/1999 flled by Shyamu @ Shyam Singh and CLA. No.136/1999 filed by Bhagirathri are being disposed of by this common judgment, as both these appeak; are arising out of the same judgment dated 12-1 1-1998 passed by the 7‘” Ad ditionai Sessions Judge, Biiaspur in Sessions Trial No.314197. z Oral judgment dictated on Dais. LC. Bhadoo, J: - These appeals are directed against the judgment of conviction and order of i998 passed by the 7'” Additional Sessions No.314l97, whereby & whereunder learned Additional Sessions Judge after h iding the accused/appeiiant namely, Shyamu @ Shyam Singh guilty for com ission of offence under Section 302 of the l.P.C., sentenced him to undergo mprisonment for life & pay a fine of Rs.500i— and holding the accused/appellan namely, Bhagirathi guiity for commission of offence under section 302 read w h Section 34 of the l.P.C., sentenced him to undergo imprisonment for life and pay a fine of Rs.500/-, in default of payment of fine each of the accused is direc ed to furthet undergo R.l. for six months. Case of the prosecution, in brief, is that in the year 199? Ramsharan Singh (since deceased) was a Police Co, stable and on the date of incident i.e. on 18- 2-1997 he was posted in Police Station Sarkanda, BiiaSpur. The accused persons namely, Shyamu @ Shya Singh & Bhagirathi are residents of Village Lingiadih. Accused Shyamu w involved in selling of Ganja and he was ’caught by RamSharan Singh (sinc deceased). 0n the date of incident 18-2- 1997 at about 10 pm. Ramshar n Singh, Constable (since deceased) had gone to Viiiage Lingiadih to attend arriage in the house of his maternal uncle. sentence dated 12th November, Judge, Bilaspur, in Sessions Tri a mw,m,m W Wcswgswxggggl Wm (W) The deheased used to visit the m se of Goverdhan (PW-1) who was residing at Village Lingiadih. When Rams aran Singh went to the house of Goverdhan and standing near the house of Gverdhan, accused Shyamu came there and asked deceased Ramsharan as to why he got him implicated in a Ganja case. Deceased Ramsharan replied that e is going to attend marriage. At that time, accused Bhagirathi was with ac used Shyamu. Shyamu caught hold of Ramsharan and there was a scuffl: between the two. Shyamu said that 'ftoday, Ramsharan Singh will be finished' and he attacked with Lathi on the head of Ramsharan on temporal region, a a result of which Ramsharan fell down on the ground. Thereafter, both the ccused persons attacked Ramsharan with Lathis on leg, back portion & h ad. When Goverdhan' tried to intervene, accused Bhagirathi chased him. l the mean time, Uma Bai (PW.3) came on the scene and Goverdhan entered his house. The accused persons fled from the scene of occurrence. The matter was reported by Govrdhan (PW-1) in Police Station Sarkanda, Bilaspur under EXP-1. The Statin House Officer, Police Station Sarkanda after registering the crime under Se tion 307 read with Section 34 of the l.P.C., left for the scene of occurrence. H prepared the site plan EXP-2. Ramsharan Singh was taken to District Hospit, Bilaspur, where he was declared brought dead and a report to that effect. x.P-4 was prepared by Dr. K.K, Shukla. Clothes of Ramsharan were seize under EXP-6. While in police custody, accused Shyamu gave memorand m EXP-7 regarding Lathi & slippers as to where they were kept by him. Acc sed Bhagirathi gave memorandum EXP-8 regarding Lathi & slippers as to wh re they were kept by him. Lathi & slippers were seized at the instance of ac used Shyamu under EXP-9. Clothes of Shyamu were seized under EXP-1 . One Lathi was Seized at the instance of WW WWW P-1 3. ‘ inquest EXP-15 was prepa'ed on the body of Ramsharan, after giving notice Ex.P'2O to the Panchas. C cle, chappal, two buttons of shirt, one pant and one broken wristwatch of the eceased were seized under EXP-16. Plain soil & bloodstained soil were seize under EXP-7 from the place of occurrence. Body of Ramsharan Singh was s nt for post—mortem examination to District Hospital, Bilaspur under EXP-18 here Dr. V.K. Verma (PW-10) conducted post-mortem and opined that the d ceased died due to internal haemorrhage & shock which was as a result of ltiple grievous injuries. He prepared the report EXP-19. ‘ After completion of investigation, c arge sheet was filed against the accused persons in the Court of Judicial M gistrate, First Class, Bilaspur, who in turn committed the case to the Sessio s Judge, Bilaspur from where teamed 7'” Additional Sessions Judge, Biiaspu received the case on transfer for trial. The prosecution in order to estabish charges against the accused persons examined ten witnesses. Stateme ts of the accused persons were recorded under Section 313 of the Cr.P.C. which they denied the material appearing against them in the prosecution evid nce and pleaded innocence. Learned Additional Sessions Judge fter hearing counsel for respective parties, convicted and sentenced the accus d persons as aforementioned. We have heard Mrs. Savita Tiwari, earned counsel on behalf of the appellants and Mr. Akhil Mishra & Mr. Rakes Jha, learned Deputy Govt. Advocates on behalf of the State/respondent. At the outset, Mrs. Savita Tiwari s not disputed the homicidal death of Ramsharan Singh. Moreover, Dr V.K. Verma (PW—10) has stated in his evidence that on 19-2-1997, he onducted post-mortem on the body of u i a (ll HW,W,W W m6>w3SMkzgg§k wwmm WIT; m mm: (W) WWW WWIWW %aifawm Ramsharan Singh, there was swe ling black in colour on chest. swellinq black in ii colour on right side of head, s eiiing biack in colour on left side of face obliquely placed, irregular swellin on whole chest and swelling on thigh & left knee. On dissection of the body it was found that upper part of sternum was broken. Tibia & fibula bones of le leg, lower bones of left leg and right side 7‘“ & 8‘“ ribs were broken. All the in uries were ante-mortem in nature caused by hard & blunt object, chest was ful of blood and there was injury on right lung. Cause of death was internal hae orrhage and shock, as a result of grievous injuries. His report is report ExP— 9. In View of the above medical evidence of the doctor it is established that th death of Ramsharan Singh was homicidal in nature. 9. As far as complicity of the accus d persons namely, Shyamu & Bhagirathi in the crime in question is concerne , as per the prosecution case, the offence was witnessed by Goverdhan (P -1) who lodged the report EXP-1 in Police Station Sarkanda, Bilaspur and b Uma Bai (PW-3), wife of Goverdhan. ~ Uma Bai has not supported the prose ution case and has turned hostile. in the examination-in-chief, she has stat d that the deceased was attacked by two persons, but she did not identify t e accused persons. On cross-examination by the Public Prosecutor, she has tated that in the Police case diary statement she disclosed the names of the a ailants as Shyamu & Bhagirathi, they were saying that the deceased was invo ed in implicating them in a Ganja case, and when her husband came to the ho se, he disclosed that Shyamu & Bhagirathi have attacked the deceased. hyamu & Bhagirathi were known to her, because, they were residing in her neighbourhood. lt is correct that Shyamu & ‘Bhagirathi attacked the deceased, as he got them implicated in a Ganja case. But in the cross-examination by t e counsel for defence, she has again said that two persons were attacking th deceased, it was dark night, therefore, she mW . was not able to see that as to stated that she came to know ab ut the names of the accused petsons as their names were pubiished in the new paper. ‘ . On the other hand, Goverdhan -1) in the examination-in-chief has stated that in fact, Shyamu attacked Ra sharan with a club on his back portion as a result of which Ramsharan felt d wn and raised cries that Shyamu shouid not have done iike this, as he is a C nstabie, therefore, he shoutd not attack him. Hearing the cries, he along with s wife came out, Bhagirathi caught him on which his wife said that her husb nd is not keeping good health, therefore, he should not be attacked. ln the circumstances, if the evide ce of Goverdhan (PW-1) is examined, there is no allegation against Bhagirathi that he, in any manner, attacked Ramsharan or to this witness. He has simply tated that Shyamu attacked the deceased on back portion. Uma Bai (PW-3) not supported the prosecution case. Even there is no material on record wh ch establishes that accused Bhagirathi was sharing common intention with acc sed Shyamu. , Dr. V.K. Verma (PW410) has state in his evidence that there were as many as six injuries on various parts of th body, bone of leg was fractured, ribs were fractured and sternum was fractur’ d. Whereas, Goverdhan (PW-1) has stated in his evidence that Shyamu attack d Ramsharan on his back portion. There is nothing on record that as to who caused fatal injuries on leg & ribs of the deceased. Goverdhan has stated that Shyamu attacked the deceased with a ,ciub. Therefore, in view ofthe abo e evidence, itis established thatthere is no evidence against Bhagirathi that he was sharing common intention with Shyamu, as such, his conviction u der Section 302 of the l.P.C. with the aid of /\w W i h (Q mw’mam 7 . Q7 a. x.:s.§m&&3%7gw WWW; mvm (W). 6mm W J WWWIWW $31mm WWW 13. From the evidence of Goverdhan W-1), complicity of accused Shyamu in the crime in question is estabiished, b tthe next question remains for consideration of the Court is that Goverdhan ha stated in his evidence that accused Shyamu attacked the deceased with ciub n back side of the body, whereas, as per the post-mortem report, there were inj ries on chest, Ieg & parietal region for which there is no evidence that as to ho caused those injuries to the deceased. Therefore, from the evidence of overdhan against accused Shyamu, it is not estabiished that Shyamu attacke the deceased with intention to cause his death, but it is established that that he attacked the deceased with ciub, therefore, it can safely be inferre that accused Shyamu had the knowledge that the manner in which he atta ed the deceased, he is likely to cause the death of deceased Ram Sharan. n the circumstances, conviction of accused Shyamu under Section 302 of the l P.C. also cannot be sustained. The offence committed by Shyamu, as proved y Goverdhan (PW-1) does not travel beyond Section 304 Part-ll of the l.P.C. . 1n the result, a. the appeal of Bhagirathi mely, Cr.A.No.136/1999 succeeds. His conviction under Section 30 read with Section 34 of the l.P.C. and the sentences imposed upon h under that Section are set aside. He is acquitted of the said charge He is said to be in detention since 1997, ' thereby he is in detention f r more than eleven years. He be set at liberty forthwith, if not require in any other case. concerned, his conviction and sentences ‘ b. As far asaccused Shyamu under Section 302 of the LP are set aside, he is acquitted of the said charge, instead thereof, he i ' convicted under Section 304 Part-ii of the l.P.C. and sentenced to und go R.l. for seven years. lt ls stated that as P i i a . . PM WWW (WW) mwfwa; amméwm warm-«amt W W @Qi39M%€%%\ WWIWW eraif’cmaiéo i on date, he is on bail since 17-4-2006 and before that he was in detention from 19-2-1997 ’ Wt to 7-4-2006, thereby he remained in detention for about nine years, as such, he has aiready undergone the sentence imposed upon him. Therefore, his bail bonds are disoharged and he need th‘e not surrender before th‘e Court. Accordingly, Cr.A.No.1\35/1 999 is / partiy aliowed. SdL- dobn_u‘ i ‘” "’7 i 14 :C‘ BHADOO ‘ SdL i Soma Judge ‘ T.P. Sharma N Judge