HIGH COURT OF CHHATTES^ARH AT BILASPUR ^ DIVISON BENCH. CorGW^ Hon'ble Mr.T,P.Sharma & Hon'ble Mr.R.L.Jhanwar. JJ. Criminal ApDeal No. 535 of 2005 Mangal Baiga Versus State of Chhattisgarh And Crimjnol Appeal No. 1241 of 2003 Mcxngilal and another Versus State of Chhatt-isgarh JUDGMENT FOR CONSIbERATION Hon'ble Mr.R.L.Jhanwar J. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge Post for Judgment on : f 5^2-2010 Sd/- T.P. Sharma Judge MW COURT OF CHHATHSeARH AT BILASPUR DIVISION BENCH Coram: Hon'ble Mr.T.P.SHARMA & Hon'bie Mr.R.L.JHANWAft. JJ. APPELLANT CEnJail) 10/12/2003 RESPONDENT APPELLANTS CIn Jaif) RESPONDENT CriminGl ApDeal No.535/2005 Manga! Baiga, S/o fianesh Singh Baiga, Age- 55 years, Occupation-Labour, R/o Village Bolda, Police Station Rengakhar, Distt. Kabirdham (C.^.) Versus State of Chhattisgarh Through Police Station Rengakhar, Distt. Kabirdham (C.6.) And Criminal ApDeal No. 1241/2003 1. Mangilal son of Mangalsingh Baiga, aged 27 years, Labourer 2. Bhaira alias AAahadeo son of Man9afsingh, aged 23 years, labour^r Both resident of village; Bolda, P<5. Rengakhar, bistrict: Kabirdham. CG. yersus State of Chhattis9arh through Police Station Rengakhar. (CRIMINAL APPEALS UNDER SECTION 374(2) OF THE CODE OF CRIAMNAL PROCEDURE. 1973) Present: Mr. J.A. Lohani, Advocate for the appellant (In Cr. A. No. 535/2005). Ms. Sofia Khan, Advocate for the appeilants (In Cr. A. No. 1241/2003). Mr. Ravindra Agrawal, P.L. for the State/respondents. JUDGMENT (Passed on 15Th February, 2010) The judgment of the Court was delivered byT.P.Sharma. J.:- 1. Criminal Appeal No. 535/2005 filed by appellant-Mangal Baiga & Criminal Appeal No.1241/2003 filed by appellcxnts-Mangilal and Bhaira @ Mahadeo have been filed against the same offence decided by different Session Trial Nos. 3/2004 <& 3/2003 vid®judgment dated 30/3/2005 & 13/10/2003, therefore, they are bein9 disposed of by this common judgment. 2. In criminal appeal No. 535/2005 appellant - Mangal Baiga has challenged the legalit^ and propriety of judgment of conviction and order of sentence dated 30/3/2005 passed by Additional Sessions Judge (F.T.C<) Kawardha in Sessions Trial No. 3/2004 whereby leamed Additional Session Judge after holding 1+ie appellant guilty for the commission of culpable homicide amounting to murder of deceased Nainsingh and endangering the life of Budhan Singh and Budhwaro Bai in sharlng common intention the appellant convicted under Section 302 read with Section 34 and under Section 336 of the Indian Penal Code and sentenced rigorous imprisonment for life and fine of Rs. 200A in default 3 months additional rigorous imprisonment and rigorous imprisonment for 3 months. In criminal appeaj No. 1241/2003 appelloyits - Mangila! and Bhaira © Mc^iadeo haye also challenged the legality and propriet/ of judgment of conviction and order of sentence dated 13/10/2003 passed by Additional Sessions Judge (F-TC.) Kawardha in Sessions Tria! No. 3/2003 whereby learned AdditionGl Session Judge after holding the appeilants guilty for the commission of culpable homiclde amounting to murder of deceased Nainsingh and endangering the life of Budhan Singh and Budhwaro Bai in sharing commonintention the appellants convicted under Section 302 and under Section 336 of the Indian Penal Code and sentenced imprisonment for life and rigorous imprssonmentfor 3 months. .^. ^s a/'. ^. ^" 6- 3. The conviction is impugned on the ground that without any iota of evidence court below has convicted and sentenced the dtppeltaints aforementioned and thereby committed on illeaality. 4. Case of the prosecution, in brief, is that on the fateful day of 26/12/2000 at about 6 P.M. complainant Budhoin Singh and Budhwaro Bai were present in their kitchen garden and they were cutt-ing the mustard crop. Appellants went to the kitchen garden {Badi} and after using filthy language and they used filthy language then Budhan Singh and Budhwaro Bai entered into the house of the Budhiya 3ai* Alt three appeliants pelted stones in the house of Budhiya Bai. Deceased Nainsingh came out from his house and asked the oppellants that why they were pelting stones then appellants pelted stones over the Nainsingh and caused injury over his head, Nainsingh fell down and died on the spot. Bartu Singh went to the Poiice Station and lodged First Information Report Spot map was also prepared. After summonin9 the witnesses inquest over the dead body of the deceased Nainsin9h was prepared. Dead body was sent for autopsy to Community Health Centre, Kawardha. Dr. R*K. Bhuarya conducted autopsy and found followin9 injuries:- (1) Head becomes flat and abrasion were found over the left side of the head of 8 x 10 c.m. (2) Abrasion over the left eyebrow of 4 x 3 c.m. (3) Abrasion over maxiltary bone of 8 x 3 c.m. (4) Contusion over the left side of the face of 6 x 4 c.m. (5) Abrasion over forehead of 7 x 6 c.m. (6) Abrasion over the right scapula of 10 x 4 c.m. (7) Fracture of ieft frontal, partial, occipital bone and multipte frocture of maxillary bone, brain was ruptured. Death was shock as a result of excessive hemorrhage. beath was homicida! in nature. Budhan Sin9h was aiso examined by Dr. K.S. Dhruve and found two injuries over left eyebrow and left knee. Sealed packet of the cloths of the deceas^d was seized after autopsy. Stones were seized and sent for chemicat examination. Presence of blood over the stones was found. / • /f^"% '% •ft^l^ 1 '%. K fc 1 (- 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ICode'). After comptetion of investigation, charge sheet was filed case was commitl'ed to the Sessions, ftajnandgaon learned Additional Sessions Judge received the CGse on transfer for trial. 6. In order to prove the guilt of 1+ie accused/appelhnts in Sessions Trial No. 3/2004, the prosecution examined as many as 9 witnesses while in case of Sessions Trial No. 3/2003, the prosecution examined as many as 12 witnesses. Statements of the accused/cppellants were recorded under Section 313 of the Code where they denied the circumstances appearing against them and pieaded innocence and false impllcation. 7. After affording an opportunity of hearing to the parties, learned Additional Sessions Judge has convicted and sentenced the Gccused/appellants as aforementioned. 8. We have heard Mr- J.A. Lohani and Ms< Sofia Khan, counsels for the appeilants and Mr. Ravindra Agrawal P,L. for the State/respondents <and perused both the judgments impugned as also both the record of the trial Court. 9. Learned counsel for the appettants Mr.j.A. Lohani and AAs. Sofia Khan, vehementiy argued that prosecution has not collected any evidence to prove th©guilt of the appeltants and conviction is based on conjecture and surmises in absence of legal evidence convsction is not sustdnable under the law. 10. Learned counsel for tiie appellants further argued that present appellants have not caused any injury to deceased Nainsingh wi1+i intent to cause his death even according to the case of the prosecution while they were petting the stones Nainsingh suddenly came to the spot o^id he was assaulted by the stones pelted therefore if the case of the prosecution is admitted then even the act of the appellants does not '<^j c c traveled beyond the scope of under Section 304 Part-ZE of the Indlan Penal Code, 11. Learned counsel for the appellants placed reliance in the matter of Kapoor Lal v. Sfate of U.P 1 in which High Court of AISahabad has heid that in case of death of the person by singte blow without premeditation and at spur of moment, in heat of passson the act of the accused falls under Section 304 Part-ZE of the Indian Penal Code, 12. Learned counsel for the appellants further placed reliance in the matter of ^su and anofher v. Sfate of Rajasthan In which Hi9h Court of Rajasthan has held that in absence of intention to kill the deceased, accused who inflected fatal injury on head of deceased may be convicted under Section 304 part -II instead of under Section 304 part -I of 1+ie Indian Penal Code. 13. Learned counsel for the appellants also placed reliance in the matter of Maiwal S/noh @ Manaeit Ram etc. v. State of Himachal PradeshF in which High Court of Himachal Pradesh has held that deceased death as a result of stone injury on head absence of proye of motive and conflict between ocular and medicat evidence accused is entitled for acquittal. 14. On the other hand, learned counsel for the respondents/State opposed the appeals and submits that appellants firstly adduced Budhan Singh and Budhwaro Bai and when they enteredinto 1+ie house of the Budhiya Bai then intentionally with G view to cause fatal injury they had pelted stones in the house of Budhiya Bai and also pelted stones upon 1+ie Nainsingh shows their grave intention of causing death of the Nainsin9h and endangering the tife of other persons. 15. In order to appreciate the arguments advanced on behalf of the parties, we haye examined the evidence adduced on behalf of the appellants in both 1+ie cases. Both the cases arising out against the / 1 1991 CRI. L.J. 2159 '^mm^^7^ same offence appetlant Mangal Baiga in Sessions Trial No. 3/2004 and appellants AAangilal and Bhaira @ Mahadeo in Sessions Trial No. 3/2003 were absconding therefore the case was bifurcated and after their arrest they were tried. 16. In the present case homicidal death as a result of fatal injury of NGinsingh has not been substantially disputed on the other hand, same is established by the evidence of Dr. K.K< Bhuarya and his autopsy report which reveal that as a result of injury the head of deceased becomes flat and maxillary bone of the head were found fractured shows the homicidal death as a result of fatal injury. 17. As regards the complicity of the accused/appellonts in the crime in question is concerned the conviction is based on the evidence of eye witnesses Bartu Singh, Budhiya Bai, Budhwaro Bai & Budhon Singh who have substantially deposed in their evidence that Budhan Singh & Budhwaro Bai were cutting the mustard crop in their field. AII 3 appellants came to their field, deceased Nainsingh was present in his house. Appellants pelted stones oyer Budhan Singh & Budhwaro Bai then they rushed to the house of Budhiya Bai and hidden inside their house at the same time Nainsingh came for bullock the oppellants pelted stones over him. Firstly Mangilal pelted stones over the head of Nainsingh then he fell down then other accused assaulted him by stick, Nainsingh died on the spot then the appellants fled away from 1+ie spot. All the witnesses have specifically deposed that appeilant Mangibl had thrown stones over the head of the Nainsingh then other appellants assaulted him by stick. t)r. R.K. Bhuarya has also admitted in his evidence that injury over th©head of Nainsingh may be caused by the stones. Autopsy report and evidence of Dr. K.K. Bhuarya reveal that all injuries were present over the head of the deceased except one injury over the scapula it shows that irregular shq^e of the stones was used for causing injury to 1+ie deceased and the evidence of aforesaid witnesses reveal that appellant AAangilGl thrown one stone over the ^.. head of the deceased. Defence has cross examined these wltnesses in detail but has not been able to illicit anything in their cross examination to discredit their testimony or to show that appellount Mangilal has not thrown stones over the head of the deceased. The evidence of these witnesses also reveai that these all appellants have pelted stones in the house of Budhiya Bai where Budhan Singh 4i Sudhwaro Bai were hidden. 18. After appreciating the evidence available on record, learned Additional Sessions Judge has convicted the appellants under Sections 302/34 & 336 of the Indian Penal Code but learned Additional Sessions Judge has not considered the material aspect of the case that appellants were pelting the stones without aiming to any person and only Mangilal had thrown one stone over the head of the deceased. He has not repeatedly pelted the stone other appellants were present but evidence relating to assault made by the other appellants is not corroborated by the medical evidence. The medical and ocular evidence relating to assault made by the other appellants except Mangilal is in conflict and no any injury except the head injury which was caused by Mangilal was found on the body of the deceased. Although, the evidence reveal that all appellants were pelting stones and had endongered the life of Budhan Singh, Budhwaro Bai & Budhiya Bai and 1+iey are acting in sharing common intention but the evidence reveal that other appellants has not shared the common intention in causing the injury to the Nainsingh thereby committed an itlegality although appellant Mangilal has thrown the stone over the head of the Nainsingh but he has not repeated the injury, his act appears to be reckless act resulting into 1+ie death of thedeceased Nainsingh. 19- The evidence adduced on behalf of the prosecution is not sufficient for drawing an inference that appellant Mangilal or others have inflected the injury with intent to cause the death of the deceased but throwing ^7 of good size of stones upon the persons shows that appetiant Mangilal was having knowledge that as a result of his act deceased may die as 20. ^ held in case of Kapoor Lal v. State of U.P. S ^su and another v. State of Rajasthan f&jpra) the act of appeltant Mangilal does not traveled beyond the scope of under Section 304 Part-ZE of the Indian Penal Code but the act of all appellants is punishable under Section 336 of the Indian Penal Code. For the foregoing reasons, conviction and sentence of the appellants are not sustainable under the law. Consequently, the Criminal Appeal Nos. 535/2005 and 1241/2003 are partly allowed. Conviction of the oppeliants Mangal Baiga, Mangilal and Bhaira @ Mahadeo under Section 336 of the Indian Penal Code are hereby affirmed. Conviction of the appellcxnt Mangilal under Section 302 of the Indian Penal Code is altered in to under Section 304 Part-ZC of the Indian Penal Code and is sentenced for custodial period i.e. custody period since 4/12/02 tilt today. Conviction and sentence of the other appellants Mcxngal Baiga and Bhaira @ Mahadeo under Section 302 of the Indian Penal Code are hereby set aside. Appellants Mangal Baiga and Bhaira © Mahadeo be set at liberty at once. All the appellants be released if not required in any other case. _ /- Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge