yv^S-^-s^' A-(f.€. ^, COURT Sd/- V.K.Shrivastava Judge ^Q O^Ji^JL- Sd/- L.C.BHADOO Judge ^c.. ,-—-^— 31 -(2--2005 Sd/- JUDOE a-f -i2-,aoos HIGH COURT OF CHHAmSGARH AT BILASPUR (Division Bench) Hon'ble Shri Lal Chand Hon'ble Shri Vijay Bhadoo, J. and Shrivastava. J. S/o Vishuaibhas Satnami, Aged about 26 vears S/o Vishumbhas Sataami, Aged about 22 vears Both R/o ViUage Darmu, P.S. Baloda Bazar, Distt. Raipui- & Througli Police Station Baloda Bazar, District Ralpur, M. P. Mr. Abhay Tiwari, counsel for fb.e appeUaats. Mr. U.N.S.Deo, Additional Public Prosecutor with Mr. Akhil Misbra, Panel Lowyer for fhe respondent/ State. ,^1-ia— This appeal has been dirccted against the judgiuent of coaviction aad order.af sentence dated 15-4-2000 passed by IInd ||y »s Additional Sessions Judge, Baloda Bazar ia Sessions Trial No.380/1999, whereby bofh the appeUants have beeu held g'-ulty for coiiuiiittuig Hninler of Gaiieshrain Sataami punishable under Ssction 302 read wifll Section 34 oftlie Indian Penal Code aad each of fhein have been sentenced to undergo impnsonin.ent for life and to pay a fine ofRs. 1,000/-, iii default ofpayinent offiae, to undergo furttier S.I. for 6 nionths. 2. Facts niaterial for disposal of this appeal ui brief conipass are tliat, on 11-8-1999, Narayan, who is son ofdeceased Gaiieshrara. bought l bottle of liquor priced Rs.20/- on credit froia appeUaat Puiiaram. and assured him to pay the amount on next day. On next day i.e. 12-8-1999, ia tlie evening at about 4 O'clock, appeUaut Punaram demaaded his nioney froin Narayaa who avoided to pay fhe amount and further assured to pay withio. 2 or 3 days. Punai-ain did not agree to it, slappiiig Naravau took hun towards h.is house and thereafter abusing llim left fhe place. Narayaa. came to his house and apprised the facts to his father and niother. His fatfaer Gaueshiain, along wifh bis motlier Sainiautnibai went to the house of appeBant Punaram ajud raised objection for beating by Puitarain to their son. AppeUaat Punaram and bis tbrother Nanhoo brought clubs aud stai-ted attackuig Gauesh by clubs. They gave several blows by clubs on the head aud on other parts of fhe body of Gaaesh. On beiag mtervened by Nai'ayan and Sainrautiabai, they were also assaiUted by both the appeUaats. Thereafter, Pitaiaber, vounger brofher of fhe deceased came there aud rescued fhe deceased Gaaesh, thereafter, both fhe appeUants left the sceae of occuiTence. Ganesh fell down aad becaine unconscious. He was taken to his house. Sarpaach aad K&^Farwere apprised with the facts. In tfae early monung at about 3 A.M. on 13-8-1999, Ganesh succiunbed to iujuries attributed by the appeUaiits. 3. Narayaiilal went to the PoUce Station, Baloda Bazar. OE his report, m.erg intiiuation was recorded as also offence uiider Section 302/34 of the Indiaa Penal Code was ' registered. Panchanama of the dead body was prepared and dead body was forwarded to Medical Officer for autopsy. Nareiyaa aild SainTautinbai, who received iajuries in fhe incident, were also referred for inedical examiaation. Dr.R.S.Tiwari examined Naravau aad Samrautinbai axtd fouud iajuries on theu- body, sent his niedical report to PoUce Station. On examuiation, Medical OfEcer R.S.Tiwari fouad 9 exterual injuries on the body of Oaaeshram.. He also exanuned ftie bodv exploring fhe skuU of deceased and gave lus opinion fhat fhe deceased died as a result. of conia caused by iajun- No. 1 over the skull. Duruig fhe iuvestigation, appeUaats' clofhes, fuU pants aud shirts, were seized froin tlie appellants, niap was prepared. Froiu fhe spot, contt-oUed earth and blood stauied earth were seized. On ineiaorauduin of bofh ttie appellaiits, clubs fi-oni each of the appeUants were seized. Botli ftie clubs WCTK sent to Medical Officer R.S.Tiwari, who after examirihig the clubs, opined fhat, iajuries found on the body'ofdeceased could have been caused bv tliese clubs. Stateinents of witnesses were recorded under Section 161 of the Code of CrilD.iaal Procedure. On cheniical examination, blood staiu was found on blood stained earfh, both tlie clubs and clofh.es of bofh fhe appellaats. After iavestigation, a charge-sheet was led in fhe Court of Additional Chief Judicial Magistrate, Baloda Bazar, who coininitted fhe case to tlie Court of Session for trial. _ F '63 4. Charge under Section 302 read with Section 34 of the Indian Penal Code was framed against each of the appeUaats, read over and explained to theiu. Bofh fh.e appeUaats abjured llie guilt, fb.e.y took defence that fhey have been falsely itapUcated. The appeUaat Nanlioo further took a defence of alibi. 5. Leamed IInd Additional Sessions Judge, after due appreciation of fhe evidence, held bofh the appeUEua.ts gT-iilty' for commitring inurder of Ganeshram punishable uiider Section 302 read wifh Section 34 of fhe Indian Penal Code aad, therefore, convicted aud sentenced bofti the appeUaats accordiagly. 6. Bofh the parties are hearil. Record of trial Coiirt perused. .dla 7. From fhe evidence of Dr. R.S.Tiwari, P.W.-13 and his autopsy report dated 13-8-1999 i.e. Ex.P-26 proved by him, it is estabUshed fhat foUowiag extemal injuries on the body of Gaaeshram. were found : - (1) (2) Lacerated wound right side head teinporo-froatal bone region alinost vertical about 3 cia behiad hair line and running backivards. 6 cin x 1% x % ctn bone deep, uiiderlyiag bone appeared fractured. Blood over and around wound. Stainiag present, redness, oedem.a extenduig downwards upto ear. Lacerated wound occipitai region head alniost horizontal 6 cia. x */2 ciu x Va ciu bone deep redness nuld oedenia & blood staining present over 8s around. (3) (4) (5) (6) (7) (8) (9) Lacei^ted would ahnost central vertex skuU vertical 5 cin x Vi cra x 'A cin bone deep redness miM oedema & blood stainiag over & Abrasion left teinporal regioa head 4 cm x '/a cni vertical redness, blood stauiing. Lacerated woi.uid just behtnd r^ht ear, triaiigular shaped 1 cia x 1 ciu stainuig, sei-uin blood on pressure, redness. Contusion inark right side lower part chest lateiaUy placed 11 cia x 21A cin having parallel bends tapering bactavards. Reddish discolouration. Contusion ruark right side lower part scapiila hoiizontaUy placed 11 cin x 3 cjm haviag paraUel bends, redness. Contusion laark right shoulder joiat goinj doivnwards 25 ciu x 3 ciu reddish aad oedeiua. Coatiision inark aknost paraUel to iujury No.8 over right upper ami 8 cm. x 3 cxn redness aad oedenia. 8. Further, froin the evidence of fhis witaess aad his report, it is also established that, on intenial exaiuuiation, it was found that, intra dural and subciitaues wide spread blood under skui ahnost right sMe head extendiag downwards base aad skuU. Teinpo-frontal bone was fi-actured iato 3 pieces, anterior piece depressed piercitig nieinbrane, clotted blood seen conung out froin braia. Sub cutanes blood seen luider injuries No.6 and 7. Also found subcutaiies blood under iajuries No.l to. 9. AIl fhe iajuries found on the bodv of Gaaesh were anti niorteia iu nature aad were caused by soiue hard and blunt object aud fhe cause of deafh was coina caused by iajuiy No. 1 on skuU. Therefore, it was estabUshed fhat, fhe deceased Ganesh received various ia.juries aad succunibed to itijunr No. 1 on his head. His deafh was hoinicidal ia nature. 63" 9. Narayan Siagh, P.W.-6, Samrautinbai, P.W.-7 and Pitamber, P.W.-8 are fhe eye-witnesses. Samrautinbai, P.W.-7 ia her evidence deposed that the appeUaat Punaram. gave a club stt'oke on fhe head of Ganesh who recewiag injun- feU down. Thereafter, both fhe brothers i.e. bofh the appeUants beat Ganesh. He raised alarm. Pitamber, P.W.-8 ia his evidence deposed fhat after heariaj flie noise, he caine out of his house and saw both the appeUants who are brofhers beating Gaiieshram. Gaiieshram received mjiuy over lus head and feU down. He inade a request to fhe appeUaiits, fherefore, they left fhe deceased. Narayaii, P.W.-6 in. his evidence deposed fhat the appellant Punaram. brought a club from. his house and gave a club blow on tlie head of his fatlier. His fafher Ganeshrani received iajuries aiid feU down. lu cross-examiuation he deposed that Puiiarani and Nanhoo botli beat his fafher with clubs. 10. Merg intimation,. Ex.P-7 aad F.I.R., Ex.P-8 liave been proved by witn.e.sses P.W.-6, Narayaa Siagh and P.W.-12, M.D.Naik. In bofh tlie reports, clear allegation is ruade that the appellants Piuiarain aad Nanhoo brought clubs and both of tbem. beat Ganeshram on his head aud other parts of fhe bodv bv clubs. Botli these docuiuents support fhe oral evidence of eye witnesses. Injuiies found on post luortem. report conducted by Dr. R.S.Tiwari, P.W.-13 described above also supports ttie evidence of eye- witiiesses. 11. Appellaut Naiihoo took a defence fhat on fhe date of incident, he was for ttie whole day in ground where he was playuij x cricket. He also adduced witness Sautosh Kumar, D.W.-l who deposed that fhe incident is of next day of the Hareli Festival. On •that date, fhey were playing cricket. Nanhoo was also playing ttiere. Thev were ia ground siace 10 O'clock froin the raoi-mng tiU 7 P.M. 3n cross-examiaation ofP.W.-6, Narayan, it has com.e that Punaram. went to play ground to caU his brother Naahoo who was playinj cricket. Appellant Naiihoo after playiag cricket brought club froia his house aad struck fheir house. Punaraia aad Nanhoo botii carue raistag voice ttiat they wiU kiU, th.ey will kitt. Therefore, it is apparent that alfhough NatLh.oo had gone to play cricket but when iucideut taok place at fhat tirae he was on spot with club who took part in fhe tucid-ent bv assaulting Gaiieshram wifh club. In cross- examination of Sainrautinbai, P.W.-7 aad Pitainber, P.W.-8, no such suggestion has been m.ade that appeUant Naiihoo was not on fh.e spot and did not beat the deceased. Instead m. cross-examination of Pitamber, P.W.-8, it has been brought tliat Punarain gave a stroke wifh club on the head of Gaaeshram aud fhereafter Naiihoo also assaulted him and Na-ahoo also gave a blow on fhe head of Gaiieshram. This \vitaess ia. cross-exainination has verv soecificallv deposed that Punaram and Nanhoo bofh were canyrag clubs at tlie tiiae of iiicident. A lengfhy cross-exam.ioation has been done by fhe appeUaats but nothiag enierged tu fhe cross-examination of Narayaii, P.W.-6, Samrautm.bai, P.W.-7 and Pitaiuber, P.W.-8 so as to disbelieve their version. From. fheir evidence, the defence takeu . by fhe appeUant Nanhoo i.e. plea ofalibi is not sustainable. Instead it was established ftiat bofh the appeUants by clubs gaye several blows ou tlie head aiid ottier parts of ttie body of Ganeshram., as a result of fhat, Ganeshram received 9 iajuries on his body and succuiubed to uijun' caused^in his skuU. / a 'i 12. Leamed counsel for fhe appellants coutended fhat the deceased Ganeshraia received 9 lajuries aiid iajury No. 1 inflicted on. his skuU was ftie cause of deafh. but there is no evidence to estabUsh who is the author of fhis fatal injury, tlierefore, relying on 118, contended that bofh fhe appellants at the luost caii be convicted under Section 325 aad not under Section 302 of th.e Indiaa Penal Code. The case law referred bv leamed couusel for the appeUaats relates to fhe case where accused persons have right of private defence but ta exercise of private defence they exceeded aad tliere was no evidence to show fhat fhe appeltaut was the person who itlfficted fatal blow on the deceased, Here in fhe instaut case, the case does not relate to right of exercise of private defence. T'herefore, the case law reUed on is distinguishable on facts of tlie ingtant case. 13. Hon'ble fhe Apex Court while delivering judgnient in. Itate of M.P. vs. Deshrai and others, reported in 2004 Cti.L.iS. 1415, laid a law fhat io. case of joint attack resultiug in death of victtm. and causing iujuries to ofhers, absence of evidence coiuiectuig particular accused wifb particular iujun- caiinot be niade a ground for uot recording conviction under Section. 300 read wifh Section 34 of ttie Indiaii Penal Code, In the iastant case, from the ocular evidence duly supported wiftl F.I.R. aiid inedical evidence, it is apparent fhat bofh fhe appeUaiits caused 9 injuries to deceased Gauesh with clubs, 5 uijuries were on Ms head and reinaituag on ofher parts of fhe body. Injury No. 1 was said to be fatal and fhere is no evidence to estabUsh out of tiiese favo \ ?% appellaats who is fhe aufhor ofuijunr No.l i.e. fatal. Therefore, as held by HonTile fhe Apex Court in. State of M.P. vs. Deshraj and others (supral, both the appeltants are guilty of horaicidal death of Gaaesh as in furtherance of coininoa iFLtention bofh of fheni have caused the deafh of Ganesh. 14. Froin tbe evidence of Narayan, P.W.-6, Saiurautinbai, P.W.-7 duly coiroborated witli m.erg intimation, Ex. P-6 and F.I.R., Ex. P-7, it is clear fhat the appeUants due to non-payinent ofamouiit by Narayan beat him who coiiiplaitied to his father aad iaoth.er and fhe father Ganesh coinplained the same to Punaram. It is apparent fi-oin tlie evidence of Narayaa, P.W.-6, Sairu'autuibai, P.W.-7 and Pitamber, P.W.-8 fhat deceased was uot cam-ing auy weapon nor tliere has been any sudden fight. He was beaten by both the appeUaats oxily because he objected to the incident ui which I^iua.aram. assaulted Narayan. There is no evidence to suggest fhat appeUaiits as a iresult of sudden fight ia a whisper of inoinent wifhout pre-Ea.editation aad taking luidue advantage have assaulted fhe deceased uor thei'e is aiiy evidence to show that tlie appeUants exceeditig fheir right of pnvate defence assaulted aad kflled the deceased Gaiiesh. Therefore, both fhe appellants, who in furtherance of coirunon intention caused the death of Ganesh, are guilty ofiaurder puaishable uitder Section 302 read with Section 34 of fhe Indiaa Penal Code. 15. We are of the opinion that leaiTted trial Court properly appreciating fhe evidence held bofh tlie appeUants guUty for coininitting inurder of Ganeshram. and righfly convicted both of \ -,') -' them. under Section 302 read wifh Section 34 of the Indiau Penal Code aad properly punished bofh oftltein. 16. Ia the result, in our opuiion conviction aad sentence passed by the trial Court do not caB for aay interference. Hence fhe ippeal is disniissed. Sd/- V.K.Shrivastava Judge ^ Sd/- L.C.BHADOO Judge ..7. ::iiiCfn \,