.V _, .. HIGH CE OURT OF CHHATTISGARH BILASPUR x SINGLE BENCH: N HON’BLE SHRI R. L. JHANWAR J. Criminal Agyeal No. 771 [ 1992 APPELLANTS Nepal and two thers Versus RESPONDENT State of M.P.(now 0G.) J U D GVM E N 'I‘\ POST ON \7 NOVEMBER, 2009 / Sd/- R.L. Jhanwal‘ wig? HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. App. No.771/1992 SB: Hon’hle Shri Justice R.L. Jhanwar Appearance: Shri Sunil Tripathi, counsel for the appellants. Shri Raj endra Tripathi, Panel Lawyer for the State. JUDGMENT (Delivered on \7 . 1 1 .2009) This Criminal Appeal is directed against the judgment of conviction and order of sentence dated 23rd July, 1992 delivered in Sessions Case No.35/87 whereby appellant No.1— Nepal was convicted under Section 324 IPC while appellants No.2 85 3 were convicted under Section 324/34 and sentenced them to undergo R.I. 'for 2 years and to pay a fine of Rs.IOOO/-, in default of payment of fine to further undergo R.I. for six months each. The accused Rajesh was produced before the Juvenile Court. 2. The prosecution story in brief is that on 9.5.86 at about 12.00 in the noon the complainant—Mathura Ram was sleeping in his house and his wife had gone to bring water from well situate at courtyard. At that time, on the pretext of previous enmity, Nepal, Jagatpal, Rajesh and Suddu @ Sudama came to the house of the complainant in furtherance of common intention to assault APPELLANTS 1. Nepal s/o Ramroop Koir aged 35 years. 2. Jagatpal s/o Ramroop Koir aged 35 years 3. Suddu alias Sudama s/o Versus RESPONDENT State of Madhya Pradesh (Now CG) him. When Mathura Ram woke up he saw that appellant Nepal was armed with farsa, Jagatram was armed with gupti, Rajesh was armed Bhala and Siddu @ Sudarna was armed with Tangi. All'the four accused abused and dragged Laxmanram outside the house and assaulted him. On hearing screams, Rajaram and Ramashankar came there to witness the incident. Laxmanram received injuries on neck, ribs and on his back. He was taken to the hospital and thereafter Mathura Ram lodged report in the Police Station Vide Ex. P/l. Thereafter investigation started. During investigation, Laxmanram was medically examined. Statements of the witnesses under Section 161 Cr.P.C. were recorded. 3. After completion of the investigation, charge sheet was filed under Sections 450, 307 and 307 read with Section 34 of the IPC/ before the Judicial Magistrate First Class, Surajpur, who in due course cemmitted the case to the Court of Sessions, Surajpur. The learned Sessions Judge made over the case to the Additional Sessions Judge, Baikunthpur. 'The learned Additional Sessions Judge, Baikunthpur framed charges under Sections 457, 307 and 307 read with Section 34 of the IPC against the appellants. The appellants abjured the guilt and stated that they have been ’ falsely implicated in the case. 4. The learned Additional Sessions Judge after appreciation of the evidence and hearing the counsel for respective parties convicted appellant Nepal under Section 324 IPC while convicting the appellants Jagatpal and Suddu @ Sudama under Section 324/34 of the IPC and sentenced as above. The appellant Nepal had already undergone the entire sentence. 5. Learned counsel for the appellants argued that the learned trial Court has erred in believing the testimony of witnesses .adduced by the prosecutipn and also thedocufnents produced. 6. On the other hand, learned counsel for the State supported the judgment of conviction and order of sentence. 7. I have heard learned counsel for the parties at length and have also perused the record of the Sessions Case. 8. It is evident from the statement of Mathura (PW-1) that the incident took place at about 12.00 in the no‘on and at that time he was sleeping in his house. After hearing the noise, he went out the house and saw that the accused persons were running towards their house. He saw that appellant Nepal was having Balwa, Suddu was having Tangi while Jagatpal was having lathi/danda. He also stated that his son Laxmanram (PW—2) was lying before the door of his house in injured condition and blood was oozing out. Many people gathered there. He took his son to/ Police Station-Jainagar and reported the matter vide EXP/1. Thereafter he took his son to the hospital, where he was admitted for 25 days. He stated that Laxrnanram sustained injuries on ' neck below the ear and shoulder. In cross—examination he stated that he saw the accused persons and they were running towards their house. 9. It is evident from the statement of Laxmanram (PW—2) that the accused persons were well known to him. Near about 12 O’clock in the noon, he was taking bath nearby well, at that time mother of Jagatpal called him. As soon as he came out, the appellant Jagatpal and Nepal caught him and dragged and put him on the ground and started assault on him on his neck by sharp edged weapon. He further stated that Nepal assaulted him . with Farsa, Rajesh by Bhala and Suddu by Tangi as a result of which he received injuries and become unconscious. In cross examination he refused that Jagatpal was having danda. 10. So far as complicity of the appellants in the said incident is concerned, the statements of Ramashankar (PW-3) Shyamlal (PW—7), Rajaram (PW—11) and Jeeramati (PW—16) mother of a Laxmanrarn (PW-2) are also corroborated and supported by the statements of Mathura (P.W. 1) and Laxmanram (P.W.2) 11’ Dr. P.C. Jain (PW-4), who examined Laxamanram had found six injuries on his body and out of them two injuries were incised wounds. According to him, all the injuries sustained by_ Laxmanram were caused by sharp edged weapon and the injured was in unconscious condition. His report is EXP—10. 12. assaulted Laxmanram with Farsa, gupti, Tangia and bhala with intent to kill Laxmanram and caused injuries which have been proved by Dr.P.C.Ja_in (P.W.4) 13. Learned counsel for the appellants contended that according to the evidence produced by the prosecution, Jagatpal was having gupti, but according to the seizure memo lathi was seized from him. He had not assaulted Laxmanram with gupti, ' therefore, the evidence given by the prosecution witness should not be relied on and the accused/appellants be acquitted. 14. So far as the above contention of learned counsel for the appellants is concerned, all the witnesses have stated that at the place of incident, they had seen Nepal, Jagatpal, Suddu and Rajesh. They were not contradicting on this point. They also stated that Nepal was holding Farsa and Suddu was holding Tangia. No doubt that they might not be able to see Jagatpal having lathi, but according to the statement of Ramashankar (PW—3), Jagatpal had not assaulted with gutpi and he assaulted with lathi/danda to which gupti was fitted. Eventhen Nepal has been convicted under Section 324 IPC while Jagatpal and Suddu have been convicted under Section 324/34 IPC. It means they were in furtherance of common intention to kill or assault Laxmanram, and therefore, it is immaterial whether Jagatpal assaulted by lathi or gupti. From perusal of the evidence, it is clear that the accused/ appellants j, i any error of law in convicting them as above. So far as the sentence is concerned, Nepal has been convicted for 2 years R.I. undergo and flne R.I. of Rs.1000/-, for 6 months in default and according of payment to the of report, fine to he further had already undergone the entire sentence. vs. State ofBihar, AIR 2005 SC 3534. l7. In the present case, the learned trial Court sentenced the appellants to two years rigorous imprisonment each for the offence punishable under Sections 324 and 324/34 of the I.P.C. with usual default. The appellant No.1 ~ Nepal has already of the View that the appellants No.2 85 3 should also suffer remaining sentence since it is not plausible for this Court to award separate sentence. I am of the View that the learned trial Court has rightly convicted the appellants under Section 324 and 324/34 of the I.P.C. The case law cited by the learned counsel for the appellants are distinguishable and does not help’ the appellants. l8. In the result, the appeal is dismissed. Conviction of the appellant No.1 — Nepal under Section 324 of the I.P.C. and the sentence awarded thereunder and conviction of appellants No.2 8L 3 — Jagatram and Suddu under Section 324/34 of the I.P.C. and the sentence awarded thereunder by the learned trial Court are maintained. The appellants No.2 85 3 are hereby directed to surrender before the learned trial Judge on or before the date t6 be fixed by the Office for undergoing remaining sentence, failing which the learned trial Judge shall issue arrest warrant against them. After the appellants No.2 85 3 are arrested and sent to jail, the learned trial Judge shall also intimate this Registry of this '\ Court regarding compliance thereof. Sd/— R.L. Jhanwar Judge