;•' ^•J^SS^^ -'^t\ ^ & v'i ^ 3 yit^. HIGH COURT OF CHHATTISGARH : BILASPUR Coram : •tl' i.:;:l:.^Uuu-jiti. Hon'ble Shri T.P. Sharma and Hon'ble Shri Rajeshwar Lal Jhanwar, JJ. APPELLANTS (In Jail) Cr.AppealNo. 1055 of 1995 1. Panchram Satnami son of Khubhuram, aged 55 yrs R/o vill. Limtara, P.S. Sakti, Distt. Bilaspur M.P. 2. Arjun Singh s/o Panchram Satnami aged 23 yrs, r/o Limtara Thana Sakti Bilaspur. 3. Bheem Singh son of Panchram Satnami 22 yrs r/o Limtara, P.S. Sakti, Bilaspur. 4. Agardhan son of Panchram Satnami 25 yrs, r/o Limtara; Sakti Bilaspur. 5. Bangahin alias Hetmati Bai w/o Panchram, aged 40 yrs r/o Limtara P.S. Sakti Bilaspur M.P. Versus The State of M.P. THROUGH p.s. Sakti Distt. Bilaspur (nowChhattisgarh) NON-APPLICANT CRIMINAL APPEAL UNDER SECTION 374 (21 OF THE CR.P.C. Appearance: Shri Abhay Tiwari, counsel for the appellants. Shri Akhil Mishra, Deputy Government Advocate for the State JUDGMENT (Delivered on 30.03.2010) The following judgment was delivered by T.P.Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 12 June, 1995 passed by the Additional Sessions Judge, Sakti in Sessions Trial No. 255/92 whereby and whereunder after holding the appellants, who are members of the family, guilty for formation of unlawful assembly armed with deadly weapons and in furtherance of common object of unlawful assembly have committed murder amounting to culpable homicide amounting to murder of Kashiram, the trial Court convicted the appellants -Arjun Singh and Bhhem Singh, Agardhan and Bangahin under Sections 147, 148, 302/149 of the I.P.C. and sentenced them to s !< - 2-- imprisonment for life under Section 302/149 of the I.P.C., imprisonment for one year under Sections 147 and 148 ofthe I.P.C. 2. The conviction of the aforesaid appellants is impugned on the ground that without any iota of evidence relating to formation of unlawful assembly having common object of causing culpable homicide amounting to murder of Kashiram, the Court below has convicted and sentenced the aforesaid appellants and thereby committed illegality. 3. Counsel for the respondent/State submits that appellant No.1 - Panchram was not released on bail but has been finally released after serving sentence on remission given by the appropriate Government. Counsel for the appellants submits that on completion of sentence, the appeal in so far as it relates to Panchram becomes infructyous. 4. Brief facts of the prosecution case are that on fateful day i.e. 24.04.1992 all the appellants, who are the family members, went to the house of Kashiram and knocked the door and when Kashiram came out from his house after opening the door, Panchram who was holding metal axe (Farsi) assaulted Kashiram over his head and caused fatal injury, due to which Kashiram fell down. Thereafter, the accused persons Bheem and Arjun, who were holding Suzga and Kharda, assaulted him by the handle of Bhala (Kharda). Agardhan and Bangahin, who were also present, abetted them by saying "VVKf W^ ^, ufFT ^r ^Ff ^^ ^l". P.W.8 Kejuram tried to snatch the weapon Suzga from Bheem. Then, the appellants went towards their house. Kejuram went to police station and lodged F.1.R. vide Ex.P.15. Investigating Officer left the scene of occurrence and after summoning witnesses vide Ex.P.31 and Ex.P.32, inquest over the dead body was prepared vide Ex.P.11. Dead body was sent for autopsy to Government Hospital, Sakti vide Ex.P.13. Dr. J.P.Sharma P.W.3 conducted the autopsy vide Ex.P.4 and found the following injuries: i. One incised wound over the right side of mid parietal region of 5 cm x 1 cm. x scalp deep. Blood was coming out. ii. Swelling over the right elbow including suppression of bone of elbow joint of 3" x 3". iii. Swelling over the right ribs of 2" x 2". iv. Contusion over the right thigh. S3n;%. r,Tff='ts~^»'7. ^Y». a ^ -•S' h B -•^^i i ^y/ y v. Contusion over the abdominal region. vi. Contusion over the chest. On internal examination, fracture of right parietal bone was found. Death was as a result of asphyxia and was homicidal in nature. Sealed cloths of the deceased was seized vide Ex.P. 1. Spot map was prepared vide Ex.P.8. Bloodstained lungi was seized from the spot vide Ex.P.18. During the course of investigation, Agrdhan was taken into custody. He made disclosure statement of stick vide Ex.P.20. The same was recovered at the instance of Agardhan vide Ex.P.25. The accused Arjun made disclosure statement of Kharda vide Ex.P.21. The same was seized from Arjun vide Ex.P.27. The appellant Panchram made disclosure statement of metal axe vide Ex.P.22 and the same was recovered from him vide Ex.P.28. Accused Bheemsingh made disclosure statement of Suzga (Bhala). The same was recovered vide Ex.P.26 from Bheem Singh. Banian was seized from Panchram vide Ex.P.29. Sealed articles were sent for chemical examination and presence of blood over the metal axe, Kharda and Bhala was confirmed vide Ex.P.33. 5. Statements of witnesses under Section 161 of the Code of Criminal Procedure (for short 'the Code') were recorded and after completion of investigation, charge sheetwas filed beforethe J.M.F.C. Bilaspurwho in turn committed the case to the Court of Sessions, Bilaspur. The learned Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the appellants, the prosecution examined as many as 15 witnesses. The accused-persons were examined under Section 313 of the Code in which they denied the circumstances appearing against them and innocence and false implication in crime in questionwas claimed. 7. After affording opportunity of hearing to the parties and after hearing learned counsel for respective parties, the learned Additional Sessions Judge convicted and sentenced the appellants as aforesaid mentioned. 8. Shri Abhay Tiwari, learned counsel for the appellants and Shri Akhil Mishra, Deputy Government Advocate for the State are heard at length, perused the record of Court below and impugned judgment. ilE,,-ijj...i'.-;l-i-.ii-.^ii >M«l»IWI»11l1Mi*lllBli\ 9. Learned counsel for the appellants vehemently argued that in the present case appellant No.1 - Panchram, who caused fatal injury over the head of Kashiram including fracture of parietal bone, has been released after serving the sentence. His act squarely falls within the category of commission of culpable homicide amounting to murder and as regards other accused persons; learned counsel for the appellants submits that as per the first information report, the appellant - Agardhan and Bangahin were having opportunity to cause injury to Kashiram but they have not caused injury to Kashiram. They were only instigating the other accused by saying that "T[Rt 'w^ ^. ^IH ^t ^scm q?^ '?t" which shows that they have not participated in the commission of any offence. Likewise, the appellants Arjun and Bheem Singh have deliberately caused injury to Kashiram by the handle part i.e. blunt part of Bhala and Kharda which are having pointed and pierced iron shows that they have not caused any injury with intent to cause the murderof Kashiram but only to teach him a lesson, therefore, their act does not travel beyond Section 304 Partll ofthe I.R.C. 10. On the other hand, learned counsel for the State opposing the appeal submits that all the appellants have gathered and formed an unlawful assembly with deadly weapons and in furtherance of common object of the unlawful assembly, Panchram has caused fatal injury. Therefore, all the appellants are liable for commission of murder in furtherance of common object of unlawful assembly. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, the homicidal death as a result of fatal injury to Kashiram has not been substantially disputed by the appellants even otherwise established by the evidence of P.W.3 Dr. J.P.Sharma and autopsy report Ex.P.4 which revealed that fatal injury was caused to Kashiram resulting into death of Kashiram and death of Kashiram was homicidal in nature. 12. As regards complicity of the appellants in crime in question, the conviction is based on the evidence of eye witness P.W. 7 Dharam Singh and P.W.8 Kejuram, who has lodged F.1.R. P.W.8 Kejuram has deposed in his evidence that at the time of incident he was sitting near his house. The appellants came to the house of Kashiram and abused him. Panchram was holding metal axe while Bheem was holding Suzga and Arjun was holding Kharda. They came to door of Kashiram and when Kashiram came out of his house, then Panchram assaulted him by metal axe over his head whereas Arjun and Bheem assaulted with Kharda and Suzga. Then, he snatched Suzga from Bheem and thereafter the accused persons went to their house. He took Kashiram, who was in injured condition, to the Police Station and then to Hospital where Kashiram died. P.W.7 Dharam Singh has substantially corroborated the evidence of P.W.8 Kejuram and has deposed in his evidence that on the ground of witchcraft, the appellants assaulted Kashiram and all the 5 appellants were present and were holding metal axe, Suzga and Kharda as also stick. He has denied the suggestion that Kashiram has insulted Bargahin, therefore, Panchram scuffled with Kashiram. The defence has cross-examined P.W.8 Kejuram but has not been able to elicit anything in his cross-examination to discredit his testimony. The evidence of P.W.8 Kejuram is well corroborated by P.W.7 and also First Information Report Ex.P.15 and thus inspires confidence and trustworthy that accused Panchram caused fatal injury to Kashiram while other accused i.e. Bheem Singh, Arjun Singh have caused other injuries to Kashiram and the appellants Agardhan and Bangahin have not caused any. injury to Kashiram. The F.1.R. clearly reveals that havingopportunity to kill Kashiram by using dangerous part / pointed and piercing part of Bhala, the appellants Bheem and Arjun have not caused injury by the dangerous part of weapons but have caused injury by using blunt part / handle of the aforesaid weapons which shows that they have not caused an injury to Kashiram with intent to cause his death amounting to murder. Agardhan and Bangahin have also not caused any injury but were only using the word 'RRt ';Hl^ ^t, ufR ^r ^n ^; •err would show that they have not participated in the commission of offence. 13. The eviderrce adduced on behalf of the prosecution is not sufficient for drawing an inference that all the appellants have formed unlawful assembly and in furtherance of common object due to unlawful assembly they have committed culpable homicide amounting to murder of Kashiram. 14. As regards the appellants' individual act or act in sharing common intention, Agardhan and Bangahin have not caused any injury. Bheem and r uuilfUIMnud.-a* •BINfflfl*"'"•llil«i*"ta)tjftf*^i. .^S-wC^t. •-; •;^k g \s""'^ "^^i^s^ 6 Arjun intentionally used the blunt part of the dangerous weapons which they were holding shows that they have not caused any injury but only to teach lesson to Kashiram but at the time of causing injury especially when the deceased was dealt with blow with metal axe by Panchram, they were having knowledge that by their act they may aid in causing the death to Kashiram or Kashiram may die. After appreciating the evidence, the learned Additional Sessions Judge has convicted and sentenced the appellants as aforesaid mentioned. 15. Appellant - Panchram has been released after serving sentence. While convicting the appellants, the learned Additional Sessions Judge has not considered the most material aspect of the case that the appellant Bangahin and Agardhan have not caused any injury to Kashiram. Bheem and Arjun have caused injury to the deceased but by handle of dangerous weapons and had refrained themselves from causing any injury from those dangerous part of weapons despite they were having dangerous weapons and having opportunity to use those weapons from dangerous side and thereby committed illegality. 16. On close scrutiny of the evidence, we are of the considered view that the act of the appellants - Bheem and Arjun does not travel beyond scope of. Section 304 Part II of the I.P.C. and the prosecution has failed to establish the commission of offence against the appellants Agardhan and Bangahin. The appeal is partly allowed. 17. The conviction of the appellants - Bheem and Arjun under Section 302/149 of the I.P.C. is altered to Section 304 Part II of the I.P.C. and sentenced them for custodial period i.e. for more than 10 years. They are acquitted of the charge under Section 148 and 147 of the I.P.C. Likewise, the conviction of the appellants - Agardhan and Bangahin under Section 302/149, 147 and 148 ofthe I.P.C. and the sentence awarded thereunderare set aside. They shall be set at liberty at once. - - Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge .^i,.**i*ii iiiaiiiiiTr.aBuiButiutouA