HiGH GOURT OF CHHATTiSQARH AT BtLASPUR Division Bench: Coram: Hon'bte Mr.T.P.Sharma & Hon'ble Mr.R-N.Chandrakar, JJ. Appeilants RESPONDENT AppeSiant Respondent Criminal Appeal No.78S of 2Q05 2. Dhannu S/o Milau Ram Suryavanshi, aged about 29 years. . Mahssh Kuroar S/o Bahorik Sury'avanshi, aged dsout 30 years. Al! residence Gram-Ghuru, Thana- Charkarbhata, Distt.-Bilaspur (C.G.) Versus State of Chhattisgarh Criminal Appeai No.12 of 2806 Manoj Das S/©Sewak Das ManiKpuri, aged about 30 years, R/o Viil^e Ghuru, P.S. Chakarbhata Dis8.- Biisspur (C.G.) Versus State of Chhattisgarh (Crjmjnai Appeais under sections 374 (2) of ths Cr.P.C.) w r.Neeraj Mehta, counset for the appeiiants in Crimina! Apgeai No.786/2005. / ' Mr.Manoj Paranjape, counse! Tor the appeiisnt in Criminal Appeat No. 12/2006. Mrs.Madhunisha Singh, Panel Lawyer for the State/rsspondent. JUDGMENT (Passed on 16*' August, 201 1) PerT.P.Sharma,J.:- . Criminai Appeal No.786/2(X)5 fiied by appeilants Dhannu end iVlahesh Kumar & Crimina! Appeai No. 12/2006 filed by appeitant Manoj Das against ths judgment of conviction & order of sentence dated 31.8.2005 '"nl'BWWW!i*'"T' ~^.^ / passed by the Speciai Judge under Atrocities Act, Bilaspur in Special Criminai Case No.98/2004, are being disposed of by this common judgment. 2. By ths aforesaid two appeals, She appeliants have chailenged ths iegality & propriety of the judgment of conviction & order of sentence dated 31.8.2005 passed by the SpeciaS Judge under Atrocities Act, Bilaspur in Special Criminai Case No.98/2004, whereby S whereunder leamed Speclai Judge while acquittlng other slx accused persons snd after holding appellant Manoj Das guilty for commlssion of cuipable homicide amounting So murder of Banti being a member of Schaiuied Tribe convfcted him under Section 302 and 3 (2) (v) of the Scheduied Castes and the Scheduied Tribes (Prevention of Atrocities) Act, 1S89 (for short 'ths Act') sentenced him to undsrgo imprisonmsrt for life and fme of Rs.5000/-, in default of payment of fine to further undergo S.i. for s« months on each count. The Speciai Judge has convicted sppeiiants Dhannu and Mahesh Kumar under Section 302 of the i.P.C. and sentenced them to undergo imprisonment for iife and fine of Rs.5000/-, in default of payment of fine to further undergo S.i. for six months. 3. As psr case of the proseoutson, on the fateful day of 15.2.2004 at about 11.04 a.m. Janak Lai Banjare (RA,'-4) along with decea^ Bantl and Ravi Chouhsn (PW-17) were going io the fieid of Bhuru for eating Tivra (a klnd of ieguminous seed) by scooter, they stayed near betel shop of Panchram and purohased cigar^te, at the same time, the appeilants along with other six persons armed with deadiy weapons came near betei shop, appeiiant Manoj was hoiding betei axe and ot'ner appetiants were hoiding sticks, appellant h4anoj challenged deceased Banti and thereafter they assaulted him by betei axe and sticks and caused his instantaneous death. Appeiiant Manoj aiso chased him, then he along with Ravi Chouhan rushed from the spot by scooter and went near Satish Yadav's betel shop from where they informed the poiice by teiephone, after sometime police vehicie came then they accwipanied the police up to {he place of the incident where he iodgsd dehgti merg •Ide Ex.P/17 and dshati natei vide Ex.P/18. On the baste. of dehati merg and dehati naisi finai F.1.R. was lodged vide Ex.P/52. After summoning .A-.-. (V) ths _witnesses prepared inquest over dead body of deceased Banti vide Ex.P/32. Dead body of deceased Banti was sent for autopsy to Government Hospitai, Bitha vide Ex.P/13A, where Dr.Arihok Kumar Sanyal (PW-1) conducted autopsy vide Ex.P/13 and found foilowin^ injuries:- (i) incised wound over left temporal region of 10 cm. x 3 cm. x 1 % cm. Bone was found cut. (ii) incised wound over just below the ieft ear of 9 cm. x 3 em. x 1 Vt cm. aiong wth cut fracture of bone. (iii) Incised wound of 12 cm. x 2 % cm, x 5 cm. on back par of the head along with cut fracture of bone and brain wss visible. incised wound of 5 cm. x 2 cm. x 4 cm. over baok part of the head aiong with cut fracture of bone and brain was visible. Incised wound of 4 cm. x 2 cm. x 4 cm. over back of the neck with cut fractijre of cen/icd v'ertebra. (vi) incised wound over head of 5 cm. x 1 % cm. x 2 cra. atone with cut fracture of bone. (vii) tncised wound over right temporai region of 7 cm. x 1 % cm. x bone deep. (viii) Lacerated wound of 3 cm. x 2 cm. x 1 em.over rightskie of clavicie. (ix) Incised wound of 7 cm. x 1 cm. x % cm. over isft scafxila. (x) Abraston of 5 cm. x 1 % cm. over !eft shouider. (xi) Incised wound of 3 om. x 1 % cm. x 2 cm. over ieft axitla aiong with cut fracture of scapuia bone. (xii) incised wound of 10 om. x 3 cm. x 3 cm. over waist along with fracture of lumber vertebra. (xiii) incised wound of 'L' shape over left iliac crest aiong with cut fracture of iliac bone. (xiv) Incised wound over right ribs of 3 cm. x 1 % cm. x 2 cm. (xv) incised wound behind ieft thigti of 3 cm. x 1 % cm. x 2 cm. (xvi) Incised wound of rtght ieg near tow of 2 cm. x 1 cm. x 1 cm. (xvi!) Incised wouncl over right tibia bone of 7 ern. x 1 cm. x 1 cm. with cut fracture oftibia bone. (xviii) Contusion of 2 cm. x 1 cm. over right indsx finger fracture of fiiings. 4. Cause of death was shock and death wss homipidal in nature. Merg was recorded vide Ex.P/15. Sealed ciothes ofthe deceased were seized wde Ex.P/16. Patwari prepared spot map vide Ex.P/19. .Durir^ &)8 course of investigation, appellant Manojdas was taken onto custody, he made disctosure statement of bste! axe vide Ex.P/21 and same has been recovsred at his Instance vide EX.P/.22. Bloodstained shirt of appeiiant Manojdas has been seized vide Ex.P/23. Appellant Ananddas Manlkpuri made disctosure statement of betei axe vide Ex.P/24 and same has been recoversd at his instance vide Ex.P/25. Bloodstained clothes of appeliant Ananddas Manikpuri have been seized vide E^.P!2B. AppeiSant Mahesh Kumar made disciosure statement of betel axe vide Ex.P/17 and same has been recovered at his instance vide Ex.P/28. 5. Statements of ihe witnesses were recorded under Section 161 of the Cr.P.C. and after compietion of investigation, charge sheet was fited in the Court of Judicial Magistrate First Class, Biiaspur, who in turn committed the case in ths Court of Spseial Judge under Atrocrties Act, Bilaspur. 6. in order to prove the guilt of the accused/appellants, the p-osecution has examined as many as 19 witnesses. The accused/appellants were examined under Section 313 of fhe Cr.P.C., in which they denled the circumstances appearing against Shem and claimed fRnooencs and faiss impiication in the crime in question. 7. After providing opportunity of hearing to the parties, tearned Judge whiie acquitting six accused convteted and sentenced appeiiants Manoj Das, Dhannu and Mahesh Kumar as aforemention^j. 8. We havs heard Mr.Neeraj Mshta, counse! for the appeiiants in Criminal Appeai No.786/20CB, Mr.Manoj Paranjape, counsel for the appeitant in Criminal Appeal No.12/'2036 and Mrs.Madhunisha Singh, Panei Lawyer Cris w A_.—-—--— For the State/respondent, perused the judgment impygned and record of the trial Court. 9. Mr.Neeraj Mehata and Mr.Manoj Paranjape, iearned counsei appearing for the appeiiants argued fhat convlction is substantially based on the 17\ evidence of Jsnak Lal Banlare (PW-4) and Ravi Chouhan (PW-17), their evidence do not inspire confidence and trusfeworthy and not safe to reiy that too, conviction of the appeiiants under Section 'XQ. of the i.P.C. Learned counsei further argued that the tria! Court has acquitSed six accused persons on the basis of same set of evidence and convicted & sentenced the aforesaid three appeiiants on the basis same set ©f evidence, therefore, the present appeliants are aiso errtitted for equai treatment on the basis of same set of evidence. Mr.Manq Paranjape, aiso argued thai as per evidence of Janak Lai Banjare (PW-4) arai Rav! Chouhan (PW-17), these appeliants assaulted the deceased along with sb< accused persons whom the triai Court has acqultted, therefore, it Is difficult to hoid that v/ho has caused fatai injury to the deeeased and who was responsible for causing death of the deeeased, in these circumstances, the act attributed to the present appetlants does ncrt travei beyond the scope of Section 304 Part-11 of the i.P.C. Learned counsel contended that the appellants are in custody for more than seven years and same is suffteient sentence to the appeilants under Section 304 Part-li ofthe i.P.C. Mr.Manoj Paranjape aiso contended that appeliant Manoj Das has not caused injury to deceased Bantl on the ground of his caste. 10.0n the other hand, learned Panel Lawyer for the State/res(»iitaent supported the judgment impugned and argued that evidence of Janak Lal Banjare (PW-4) and Ravi Chouhan (PW-17) is suffteiiert for dravwng inference that the present appeilants have caused homtoidat death wtth intent to cause death of decsased Banti. Learned counsei further argued that after appreciating the evidence avaitabls on record, learned trial Court has convicted & ssntenced the appeiiants as aforementioned. 11.in order to appreciate the arguments advanced on behaif of the parties, we have examined theevidence adduced on behaif of the parties. 6 12.1n the present case, homicida! death as a resuit of ante-mortem fatal injures found over the body of deceased Banti has not been substantialiy dispufed on behalf of the appellants, even otherwise, it is established by the evidence of DrAshok Kumar Sanyai (PW-1) and autopsy report Ex.P/13. Death ofdeeeased Banti was homicidai in nature. 13.As records the compticity of the appeiiants in "the crime in question, conviction is substantialiy based on the evidence of Janak Lat Banjare (PW-4) and Ravi Chouhan (PW-17). As pertheir evidence, 7-8 acsused persons have caused injuries to Banti, but they have identified present appeilants Manojdas, Mahesh Kumar and Dhannu. As per evUenee of Janak Lai Banjare (PW-4), appellant Manoj has caused injury by betei axe and other appellants have caused injuriss by stick. There are some contradicttons and omisstons in their evidence, especisiiy relating to identification but they have clearly deposed that three persons were present on the spot whom they knew. 14.Evidence of the aforesaid witnesses are sufficient for drawing infa-ence that the present appeilants have caused injury to Banti by betel axe and stick. At the time of causing injuries the appeilants were holding betel axe and stick and there was no propriety for hoiding such dangerois weapons show their intention for causing such injuries, bui as submitted by counsei for the defence, definitely, it is difficuit to hold that who has t^used fatal injury resulting into death of the deceased. The present appeiiants have caused injurles to the dangerous weapons and by the aforesaid injuries the deceased died. These evidence are sufficient for drawing inference that at the time of causing such injuries the appelisnts were not having definite Rnowledge that by their act ths deceased may die, but they have not caused injuries to the deceased with intent to cause his death, therefore, the act attributed to the present appeilants falis within the ambit of Section 304 Part-tl ofthe i.P.C. 15.Evidence adduced on behalf of the prosecution is not sufffcient fw drawing inference that appeilant Manojdas has caused homicidai death of deceased Banti on the ground of his caste. \y '-s^ + IS.While convicting appellants Dhannu, Mahesh Kumar and Manoj Das under Section 302 ofthe I.P.C. and appellant Manoj Das under Section 3 (2) (v) of the Act, the trial Court has not considered the aforesaid circumstances, especially the Tact that cause of incident was not on ths bssis of caste and thereby committed iitegatity. 17.Fort'ne foregoing reasons, Criminal Appeai Nos.786/20CS & 12/2006 are rartiy aiiowed. Conviction of appeilants Dhannu, Mah^h Kumar and ManoJ Das under Section 302 of the I.P.C. is atter&d to Sectton 304 Part-ii of the i.P.C. and they are sentenced to fhe custodial period aiready undergone by them i.e. about seven years and fine of Rs.1 ,OGOi- each, in defauit additional R.l. for three months, however, conviction & sentence of appeilant Manoj Das undsr Section 3 (2) (v) of the Act are hereby set aside and he is acquitted of the charge. They are tn custody, ihey be refeased forthwith, if not required in any other cases. Sd/- T.P. Sharma Judge Sd/- R.N. CHANDRAKAR. Judge /- 4-