Comm: Hon‘ble Mr.T.P.sHARMA & Hon‘ble Mr‘.R.L.JHANWAR, JJ. ' Criminal Appeal No.707 of 2004 Bindeshwar'i Singh Versus ) S’rafe of Chha’r‘risgar‘h Criminal Appeal'No.737 of 2004 Shashi Bhusan and o’rher‘s Versus S’ra're of Chha’r‘risgarh Criminal Aggeal No.758 of 2004 Babulal = . 4 - Versus S’rm‘e of ChhaT’risgarh And criminai Appeal No.994 of 2004 Bandhuram and ano‘rher Versus S‘ro‘re of Chhah‘isgnrh s. JUDGMENT FOR CONSIDERATION/h.”,0»?,n—rww" is”? 71W '7 K ’7 ’ sm— r T.P. Sharma ‘?;" Judge Hon'ble Mr.R.L.Jhanwor, J. ‘ .i Sd/- R.L. Jhanwat.‘ Judge Pos‘r for Judgment on?” ’ ~72§llidi6rw 1W7 V\ Sdl- 02h T. P. Sharma g r Judigev Hw L HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Comm: Hbn'ble Mr.T.P.$HARMA & Hon’bie Mr.R.L‘JHANWAR, JJ. Criminal AQgeaI No.707 of 2004 Criminal Appeal No.758 of 2004 Babulal S/o Dashr‘a’rh, aged abou‘r 60 I ‘ year‘s, Occupation—Agricul’rurisf, R/o APPELLANT (In Jail) APPELLjANT Bindeshwar'i Singh, S/o Parsur‘am Singh, (In Jail) ‘ wt Agedxabou‘i‘ 41 year‘s, Occupaiion : ...V. "' Labourer, R/o ViHcxge Banja, Police H ' xx jV‘ 1 W . STa‘rion: Surajpur, Dish‘ic’r Surguja (C.G.) i Versus 1 i RESPONDENT A. 7 STa’re of Chha‘rfisgar‘h Through: § ‘ Disfr‘ic’r ‘ Magisfraie, Sarguja, DisTTSar‘gUja (C.G.) ’ Criminal Appeal No.737 of 2004 APPELLANTS Shashi Bhusan, S/o. Mohan Ram, Aged (In Jail) abou’r 27 year‘s, OccupaTion AgricuHur‘e, R/o. Village Khadganwo, Tahsil Surajpur‘, Dis’rric‘r Surguja (6.6.) 2. Diwakar‘, S/o. Galai Ram, Aged abouf 26 years, Occupation AgricuHure, R/o Village Khadganwa, Tahsil Surajpur, Dis’rr‘icf Sgrguja (C.G.) Ram Narayan, S/o. Dharamjeef, Aged abou'r 26 year's, Occupa‘rion AgricuITure, R/o. Village Banja, Tahsil Surajpur‘, Dis‘rr‘ic’r Surguja (6.6.) Versus RESPONDENT S‘rai‘e of Chhah‘isgarh Through S.H.O. of P.S. Jhilmili (Bhaiyafhan), U ‘ Disiric‘r Surguja. REsPONDENT R/o. Village Khadgunwa, Tahsil Surajpur, DisTric’r Surguja (C.G.) Versus Sfafe of Chhm‘fisgarh Through P.S. Jhilmili, Disfr'ict Surguja (6.6.) And Criminal Appea} No.994 of 2004 1. Bandhur‘am S/o Samayr‘am, aged abouf 33 years, Occupafion—AgricuHur‘isf, R/o Village Banja, Police S‘ra’rion Surajpur, DisTric’r-Sur‘guja (C.G.) 2. Chhannumm'S/o Samayram, aged abou’r 35 year's, OccupaTion-Agricu|furisf, R/o ‘ Village Banjo, Police S’raTion Surajpur', Dis’rr‘icf—Sur‘guja (C.G.) Versus APPELiLANTs (In Jdil)‘ f RESPONDENT STa’re of Chha’r’risgar‘h Through P.S. Jhilmili, Dis’rric‘r Surguja (C.G.) (APPEALS UNDER SECTION 374(2) OF THE CODE OF CRIMINAL . PROCEDURE, 1973) Mr.V.R.Tiwari, counsel for The appeIlanT in Criminal Appeal No.707/2004. Mr.Abhay Tiwari' counsel for appeHqn’r Nos.1 and 2 Shashi Bhusan and Diwakar and Dr.Shailesh Ahuja, counsel for oppellom‘ No.3—Rom Noroyon in Criminal Appeal No.737/2004. Mr.Abhoy Tiwori, counsel for The oppellon’r in Criminal Appeol No.758/2oo4. Mr.Abhoy Tiwori, counsel for appellanfs Bondhurom ond Chhonnuram in Criminal Appeal No.994/2004. Mr.Ashish Shuklo, Governmen’r Advocofe for The Sfofe in oll criminal appeals. JUDGMENT (Delivered on 29w April, 2010) The judgmen’r of The CourT wos delivered by T.P‘Sharma, J;- 1. Criminals Appeal Nos. 758/2004, 707/2004, 737/2004 oi 994/2004 filed ogainsT The judgmenT of‘convicTion & order of senTence daTed 17.8.2004 passed by The 4*“ AddiTional Sessions Judge (F.T.C.), Surajpurl in Sessions Trial No.122/1994 are being disposed of by This common judgment .By-ifiling .criminal appeal Nos.758/2004, 707/2004, 737/2004 (Si 994/2004, ’rhe appeHan’rs have chalienged The legaliTy & proprie’ry of The judgmen'r of convicfion & order of sen’rence dofed 17.8.2004 passed by ‘rhe 4fh Addifional Sessions Judge (F.T.C.), Surajpur, Sessions Division Surguja in Sessions Trial No.122/1994, whereby & whereunder learned 4m AddiTional Sessions Judge af‘re‘r' holding The appellanTs guilTy for formaTion of unlawful assembly armed wiTh deadly weapons having iTs common objecT «To commiT culpable homicide amounTing To murder of Bijendr‘a and aTTempT To commiT murder, grievous injuries by dangerous weapons, injury by‘ dangerous weapons and in furfherance of common obje‘cT of unlawful assembly commiTTedqmurder of Bijendra and faTal injuries To Mangli Bai, Dileshwar, Sohodar Boi, Uday Kumor and Yuvraj' convicTed fhe appellan’rs under SecTions 148, 302/149, 307/149, 326/149 and 324/149 of The Indian Penal Code and senTenced ’rhem To undergo rigorous imprisonmenT for Two years, imprisonmenT for life & To pay fine of Rs.IOOO/-, in defaulT of .paymenT of fine To furTher undergo rigorous imprisonmenT for six monThs, rigorous impris0nmenT for seven years & To pay fine of Rs.500/-, in defaulT of paymenT of fine To furTher undergo rigorous imprisonmenT for Three monThs:frigorous imprisonmenT for four years & To pay fine of Rs.500/-, in defauIT of paymenT of fine To furTher undergo rigorous imprisonmenT for Three monThs and rigorous imprisonmenT for Two years. Learned 4ll‘ AddiTional Sessions Judge furTher convicTed appellanTs Bindeshwari Singh and Chhannu under SecTion 324 of The Indian Penal Code and senTenced Them To undergo rigorous imprisonmenT for Two years. ‘kf i £ . ConvicTion is impugned on Therground ThaT wiThouT There being any clinching and credible evidence for formaTion of unlawful assembly, presence of all accused and causing injury To complainanT parTy, The CourT below has convicfed and Sen’renced The ceHan‘rs as aforemen‘rioned and pp Therby commiffed illegality. e 4. Case of The prosecu’rion, in brief, is Tha’r appellam‘ Bindeshwari was having enmfy wiih the cmplaiham‘ parry on accoun‘r o The land dispuTei In The inTervening nighT of 25/26.9.2003 aT abouT 12.30 aT nighT, all T appllanTs wenT To The house of Dileshwar and The complainan They were armd wTh sIcks bel axe and caused murder of IJendr faTal urIes To Sivmangall Uday Kuma Dleswa Shahodar Bal and Yuvra aT ThaT m appellanT Bdeshwar who was iTg drver seaT eep wa sandng Tie mi STm m i J s ti beside The house of The coplainanT, The caused ijury To The ccmplainanT par‘y, Ten They ed. from The spoT. Injured Uday Kumar (PW—7) wenT To Thepolice sTaTion Jhilmili and lodged merg inTimaTion vide EXP/28A. FIR. wa lodged vide EP/6. InvesTigaTing fficer procded for The scene of occrrence and afTer summoning The wiTnesses, quesT over dead ody of Bijendra was prepared vide EXP/2. Dead body of deceaSed Bijendra was se for auopsy To AssisTanT Surgeon, Primary HaITh CenTre, BhaiyaThan vide EXP/3. Dr.AmiT Saxena (PW-16) conducTed auTopsy over The body of deceased Bijendra and found following injuries, ) Ineled wound o 4 " " X over righT side of The head, bone beneaTh injury was found cuT up T 4" nd blood was coming from The injury: 1 n 1 n 1 1 U H u n i ) Incsed wound of 1 " x over lefT palm; ) esed wound of 2" x x over fT forearm; m Inl 2 le Injuries were anTe-morTem and deaTh was homicidal in naTure. SpoT map was ‘prepared by The invesTigaTing officer vide EXP/25A. PaTwori also prepared spoT map vide EXP/50A InvesTigaTing officer seized one box from The h'ouSe of The complainanT vide'Ex.P/4. BloodsTained soil, plain soil and l bloodsTained maT were seized from The spoT vide EXP/16. One rope was Seized from The spoT vide EXP/17. During The course of invesTigaTion, accused persans were Taken inTo cusTody, accused Hardev @ Bihari made disclosure sTaTemenT of beTel axe vide EXP/7 and same was seized vide i o f he e T e u T eT Ba mJ h r lhr J m n l h fl l s X o ee u in b nT T e i s f 1 1 2 o a 1 ,. l x k Dr.AmiT Saxena has also examined injured Uday Kumar vide EXP/58 and found following injuries: _J i) ‘ii) Lacera‘red wound of 1 %" x %" x -§—" qver‘ righ‘r side of fhe bdck: iii) ‘iv) Abrasion of 2" x 2 over righT forearm: EXP/27‘ On production of sisfer of Bijendro namely Mofi Bai, one befel axe was seized vidé EXP/18. One shirf sfained wi‘rh blood was seized from accused Bihar‘i vide EXP/8. Accused Romnar‘oyon mode disclosure sTafemen’r of befel axe vide EXP/9 and same was seized a‘r his insfance vide EXP/10. One shim‘ and bamboo s’rick were seized from accused Babulal vide EXP/11. Panchnama of garage of accused Bindeshwari was predared vide Ex.P/12. Dried blood presenf in The jeep was scratched and seized vide EXP/5. Accused Chhannu made disclosure of befel axe & sfick videiEx.P/14 and same were seized a'f his ins’rance vide EXP/15. Jeep found in The‘ggrage of accused Bindeshwari bearing regisfrafion number MP 27 1975 was seized-vide EXP/19, AccuSed Shashibhushan made disclosure sfaflemegf of be’rel axe vide EXP/20 and same was seized from him vide EX.Pl/21. Accused Diwakar made disclosure sfa’remenf of befel axe vide Ex.Pl/22 and same was seized a’r his insfance vide Ex.P/23. Shirf of accused Chhannu was seized vide EXP/24. During fhe course of invesfigafion, dying declarafion of badly‘injured Dileshwar was recorded vide Ex.P/25. Accused Bandhu made disclosure sfafemen’r of sfick vide EXP/26 and same was recovered aT his ins’rance vide EXP/33. Torch was seized from The spof vide- EXP/28. Dho‘ri was seized from Dileshwar vide EXP/34. Sealed ar‘ricles of The deceaSed were seized vide EXP/35. Injured Shivmangali was sen’r for medical examinafion. She was eXamined by Dr.Amif Saxena (PW-16) vide Ex.P/57'and found following injuries; i) Incised wound of %" x 1" x %" over lef‘r side of The chin; ii) Incised wound of 3" x 1 %" x 1“ over righf breasT: iii) Incised wound of %" x 2" x 1" over righT forearm: a Incised wound of 2" x %" x %" over righT jaw; Abrasion of 1" x %" over righT breas’r; in DrxAmiT Saxena has also examined SmT.Sahodar Bai vide EXP9 and /5 fond following injures: u ) ncised wound o " x 1 %" 1" on ’rhe [eff cheek; ii) Inc‘ised wound 2 %" x 2 x %" on ’rhe righ’r and; iii) Lacer‘a’red wound of 1" x %" x %" over firsT finer of The right hand: DrAmi’r Saxena has also examined injured Dilhwar vide EXP/6O and i es ‘ fond following injurie; ' ) Lacera’red wound of 37 X 1" x 1" over lef’r side of skull, bone . beneath injury was found fracfure and brain was visible; iii) Lcera’red wound f 2" x 1" x %” over back side of The head: l f J id f ivi) Incised ound of 2" x 1" x %‘" over lef’r arm: i I f ' % x _1‘u iii) Lacerafed‘wound of 2" x 1" x .5" over back o skull; iv) Lacera’red wound 1" x 2 x %“ over left se of skull; v) Confusion o 4" x 3" over back; in Dr.Ami’r Sexena has also examined injured Vuvraj vide EXP/61 and found following injuries; i) Incised wound of 1 %” x %" x %" over leff knee; ii) Abrasion of 3" x 1" over leff hand: ii i) Abrasion of 1" x %" over righf Ralm: iv) Confusion of 2" x 1/2" over righf side of fhe face: v) Abrasion of 1" x %" over forehead. .j‘ Dr.Amif Saxena has also examined weapons vide Exs.P/63 fo P/66. Seized arficles were senf for chemical examinafion vide EXP/48A. Bed—head fickef of injured Dileshwar is EXP/53. PreSence of blood was confirmed on clofh of accused Chhannu, sfick recovered from accused Bandhu, befel axe seized from accused Bihari, Chhannu, Ramnarayan, Shashibhushan and Diwakar. "J ; h g u s 1i V a o i A u w 5‘ Sfu’remen‘rs of The wi‘messes were recorded under Sec’rion 161 of The Code of Criminal Procedure, 1973 (hereinaf’rer referred ’ro as ‘The Code‘) and i ‘i af’rer comple'rion of inves’rigation, charge shee'l' was filed before The Judiciah Magis’rra‘fe Firsf Class,$ur‘ajpur, who in Turn commiTTed The case in The iCourT of Sessionsi‘l‘Ambikopur, from where The 4m AddiTional Sessions Judge (F.T.C‘), Surajpur received The case on Transfer for Trial. 6. In order To prove The 9uilT of The accused/appeHanTs The prosecuTion has examined as many as 16 wiTnesses. The' accused/appellanTs were examined under Section 313 of The Code where They denied The circumsTances appearing againST Them and claimed innocence and false implicaTion in The crime in quesTion. They have also examined defence wiTnesses Tilak Singh $ i ;’ (DW-l),l Malik Ram (DW—Z) and Laxman Koer (PW—3). Tilak Singh (DW—l) has deposed in his evidence ThaT one deep was driver ShivpraTap Singh had Taken The injured aT The insTance of injured Yuvraj. Malik Ram (DW-Z) has deposed in his evidence ThaT on The morning Time he came To know ThaT Bijendra has been murdered, Then he wenT To The house of Yuvraj where ll he saw dead body of Bijendra lying on The coT wiTh injuries, Then he came To know ThaT injured persons were TransporTed by deep driver of Shiv PraTap Singh To hospiTal. Accused Bindeshwari was also presenT in The house of complainanT Yuvraj Till 10 a.m. Laxman (DW—3) has deposed in his evidence ThaT his real broTher-in-law's younger broTher Bijendra died, Then he wenT To The house of Bijendra where so many persons were presenT. Accused Bindeshwari was also presenT There.\ These defence wiTnesses have noT sTaTed anyThing subsTanTially excepT The presence of accused Bindeshwari afTer The incidenT on The second day near The place of incidenT along wiTh oTher persons. . AfTer providing opporTuniTy of hearing To The parTies, learned 4T“ AddiTional Sessions Judge convicTed and senTenced The appellanTs as aforemenTioned. l 8. We have heard Mr.V.R.Tiwari, counSel for appellanT Bindeshwari in Criminal ‘ Appeal No.707/2004, Mr.Abhuy Tiwari, counsel for Bandhuram and Chhannuram in Criminal Appaal No.994/2004, for appellanT Babulul in CriminéI Appeal No.758/2004, for appellunf Shashibhushan and Diwakar in Criminal Appeal No.737/2004, Dr‘.$hailesh Ahuja, counsel for appellam‘ No.3-Ramnarayan in Criminal Appeal No.737/2004, Mr.Ashish Shukla, Government Advocaie for The S’ra’re/responden‘r , perused The judgmen‘r impugned and record of'fhe Cour‘r below. i Mr VRTiwari counsel for appellanT Bindeshwari vehemenTly argued ThaT alfhough This is The case of murder and fa'ral inJurIes ’ro family members of Dileshwar and ’rhe appellan‘r was havmg Inimical ’rerms wu’rh ‘rhe family of Dileshwar bu’r on aceoun’r of enmn‘y liability could no? be fos’rened upon ’rhe appellant unless i’r Is proved by cogen’r eVidence Learned counSel fur’rher arguedv’rha’r in ’rhe preSem‘ case, inciden’r Took place aT abouT 12.30 aT nighT. As per evidence of injured wiTnesses, Bindeshwari has noT cauSed ' ‘\ any injury To any person, he was siTTing in his jeep sTanding beside The house of The complainanT in The driver seaT. IT appears unnaTural ThaT why somebody will seaT in The jeep near The house of The complainanT when oTher offenders were of assaulTing The complainanT parTy wiThouT Taking acTive parT in The incidenT This evidence iTself is unnaTural and noT v reliable The alleged Jeep was seized from garage of appellanT Bindeshwari Dried blood like maTerial were scraTched and seized and was senT for chemical examinaTion, buT no blood was found in such dried maTerial Vide EXP/49 which compleTely rule ouT The presence of Bindeshwari and his acTive parTicipaTion in The incidenT. 10.Mr.V.R.Tiwari placed reliance in The maTTer of Pandurang ChandrakanT MhaTre v. STaTe of MaharashTra1 in which The Apex CourT has held ThaT in case of'commisswn of offence by unlawful assembly, The CourT is required To consider Their definiTe common obJecT and common obJecT of The members aT The Time of commisswn of offence may be differenT R2009) io scc 773 __,_,_._._#——— fher‘e may be fhe case in which common objecT of Some members would be of commission of culpoble homicide amoum‘ing To murder and common objec’r ‘of oTher members may be commission of o’rher offence. The Cour’r is required ‘ro consider The por’ricuiar focf in a si’ruafion and convicf Those whose presence was clearly esTabiished and overT acTs proved. 11. Dr.$hailesh Ahuja, counsel for appellanT-Ram Narayan vehemenTly argued ThaT no specific role aTTribuTed To Ram Narayan has been proved by The prosecuTion by adducing cogenT and reliable evidence. In The presenT case, place ofslntidenT was only 12 kilomeTers away from The police sTaTion. The incidenT Took place’aT 12.30 aT nighT, buT reporT was lodged aTkll a.m., afTer lapsesof 11.30 hours. Normally The evidence of injured wiTnesses and reIaTive wiTnesses cannoT be disbelieved, buT in case of grave enmiTy, Their evidences require minuTe scruTiny. In The preSenT caSe, The prosecuTion has noT explained The delay in lodging such reporT, especially in case of murder and grave injuries To 6 persons. In The absence of any reliable evidence, convicTion & senTence of appellanT Ram Narayan is noT susTainabIe under The law. 12. Mr.Abhay Tiwari, counsel for appellanTs Bandhuram, Chhannuram, Babulal, Shashibhushan and Diwakar vehemenTly argued ThaT in The presenT case, convicTion is based on The evidence of injured and relaTives wiTnesses having inimical Terms wiTh The complainanT parTy. Narmally The CourT should noT disbelieve The evidence of injured wiTnesses, buT in case of enmiTy beTween parTies, The CourT is required To inlay The evidence on The background of inimical Terms beTween The parTies and likelihood of false implicaTion in The crime in quesTion. This is The case of murder and faTal injuries To 6 persons. FIR. was lodged afTer lapse of 11.30 hours, buT The prgsecuTion has noT explained The delay in lodging The FIR. Merg inTimaTion EXP/28A reveals ThaT Accused Diwakar, Hardev, Shashibhushan and one MahapaTra Brahmin of village Rakda have assaulTed The complainanT parTy and Bindeshwari was siTTing in his jeep beside The house of The complainanT: IT shows ThaT only four persons were presenT aT The Time of incidem‘. Dileshwar‘ was badly injured and his dying declara’rion was recorded by Dr‘.Ami’r Saxenq (PW-16) vide EXP/25 which reveals ‘rha‘l‘ Shashibhushan, Diwakar and} Chhannu were presen’r a‘r The Time of inciden’r and have caused injuries which reveals the name of Three persons. F.I.R. reveals ‘rhe names of Bihari @ Hardev, ShashibhushanrDiwakar, Chhanu, Maha‘pafra Brahmin of village Rakda and Bineshwari sih‘ing in his jeep s’randing near The house of The complainanT F I R reveals presence of five persons inSide The house and accused Bmdeshwari ouTs1de The house buT finally seven persons have been chargesheeTed Names of Bandhuram Babul'al and Ram Narayan do noT find place in any of The documenT, buT The prosecuTion has‘made Them accused shows ThaT They have been falsely implicaTéd on The ground of Their associaTion wiTh Bindeshwari. .On ‘The ofher hand, learned STo’re counsel suppor’red fhe judgmem‘ and argued ThaT in The presenT case on accounT of enmiTy wiTh Bindeshwari, Bindeshwari and oTher accused persons came inTo house of The complainanT aT abouT 12.30 aT nighT, Their presence on The spoT were noT naTural, They enTered inTo hous'e’of The complainanT and have assaulTed as many as 7 members of The family including murder of Bijendra. VirTually They have caused injuries To almosT all members of The family who Were sleeping in Their house aT nighT, They came by jeep and They fled from The spoT by j l jeep of Bindeshwari, They were holdingjbeTel axe and sTicks which show Their grave inTenTion of commission of murder and faTal injuries To The complainanT parTy on accounT of enmiTy They have formed unlawful assembly havmg iTs common objecT of commissmn of murder and faTal injuries To complainanT parTy and in furTherance of common objecf of unlawful assembly, accused persons have commiTTed murder and faTal injuries To The complainanT parTy. In These circumsTances, once formaTion Kl of unlawful assembly wiTh iTs common objecT is proved, no proof of overT acT is necessary. In case of injury caused by The members of unlawful assembly by so many members by differenT objecT, deTail descripTion abouT The injuries, weapons used and who have caused injury on which parT u of body To whom is noT possible. The prosecu’rion wi‘messes are required ’ro depose clearly ’rha’r who were ’rhe persons, wha‘r weapons They were holding and who are The injured. In +he present case, ’rhe prosecu’rion wi’rnesses have clearly proved the aforesaid facT. 14. Learned counsel for fhe respondem‘ placed reliance in The maTTer of Yunis alias Kariya eTc. v. STaTe of Madhya Pradeshz in which The Apex CourT has held ThaT presence of accuSed as parT of unlawful assambly is sufficienT and no proof of overT acT is necessary. Learned counsel furfher placed; nefiance in The maTTer of Dani Singh and oThers v. STaTe of Bihar3 in which The Apex CourT has held ThaT The evidence of friend and reIaTives oannoT be ”discarded and The CourT is required To scruTinize evidenlce carefully. In‘The absence of facT ThaT some members of unlawful assembly dissuaded oTher accused persons from commiTTing criminal acT or wiThdrew during The course of incidenT of The members, unlawful assembly would be liable for commission of The offence and no proof of overT acT is necessary. Learned counsel also placed reliance in The maTTer of Chandra Bihari GauTam and oThers v. STaTe of Bihar4 in which The Apex CourT has held ThaT common objec’r can develop on The spoT. ExisTence of common objecT has To be aScerTained in The facTs and circumsTances of each case. Learned counsel placed reliance in The maTTer of Bishna alias Bhiswadeb MahaTo and oThers v. STaTelof W‘B.5 in which The Apex CourT has held ThaT iT is noT necessary ThaT There should be a pre-concerT by way of a meefing of The persons of The‘ unlawful assembly as To The common objecT. If a common objecT is adopTed by all persons and shared by Them iT would serve The purpOSe. 15.In order To appreciaTe The argumenTs advanced on behalf of The parTies, w: have examined The maTerial available on record. In‘The presenT case, culpable homicide amounfing To murder of deceased Bijendra has noT been ZAIR 2003 sc 539 3AIR 2004 sc 4570 ' ‘ 4 (2002) 9 scc 208 5 (2005) 12 scc 657 substantiaHy disputed on behah‘ of The appeHan’rs, on The ofher‘ hand, ofherWise also es’rabh'shed by The evidence of Dr'.Ami’r SaXena (PW—16) and aufopsy r'epor‘f EXP/62 which’r‘eveals Tha‘r fu’ral injuries were found over ’rhe head of ’rhe deceased and deaTh was homicidal in na’rur‘e. Injury for affemfn‘ ’ro commif murder of Dileshwar and injury by sharp edged weapons To ShiVmangali, Uday Kumar, Sohgar Bai and Yuvraj have also no’r been subs’ranfiaHy dispu’red on behalf of The appellanfs, some are also esfablished by fhe evidence of DraAm‘i‘r Saxena (PW-16) and injury reports Exs.P/58 To P/61. u t 16. As regards The compiiciTy of The .accused/appeilanTs in The crime in quesTion, in The presenT case, convicTion is based on The evidence of eyewiThess/injured wi‘rness Yuvraj Kushwaha (PW—6) who has deposed in his evidence ThaT on accounT of The land dispuTe, appeHanT Bindeshwari was having enmiTy wiTh Them and has ThreaTened him Through his persons including accused Bihari, he used To demand wiH deed execuTed by his mofher’s sisTer's husband Sirdar Ram on The ground ThaT afTer deaTh of Sirdar Ram, his wife Nanki Bai has execuTed will in favour of accu3ed Bindeshwari and his broTher Vinod. Civil suiT was filed and was pending before The CourT. AT The Time of incidenT, he was sleeping in his room aT abouT 12.30 aT nighT, his wife awaked him ThaT somebody has Thrown Torch lighT, he woke up and pUT on The lighTl Then he saw accused Bihari, Chhannu, Ram-narayan and one oTher person were preSenT There, They enTered inTo his room and Tied wiTh rope, accused Ramnarayan assaulTed him by beTel axe on his lefT leg, his wife Shivmangali Tried To save him, Then Bindeshwari assaulTed her on her chesT and cheek by beTel axe. AfTer hearing crises, his faTher Dileshwar, moTher Sohgar Bai, broTher Bijendra, nephew Uday Kumar which were sleeping differenT parT of The house came l To save Them, Then anyhow he removed rope and hidden himself in The room. AfTer someTime when he came ouT from The room Then he saw ThaT appellanT Shashibhushan, Diwakar, Chhannu, Bandhu, Babulal, Ram Narayan, Bihari, Bindeshwari and one oTher person MahapaTra of Rakda were i rv Va 13 assaulfing his fm‘her‘ Dileshwur, mo’rher‘ Sohgar and nephew Uday Kumar‘ by betel axe and again he hidden in The caT‘He r‘oom. Bihari and Bindeshwari wenT oui‘ from The house and were felling abou'r The will deed, Then he aléo wenT ouT from his house by oTher gaTe, he Took kudar‘i for his safeTy. He shquTed for‘ calling The villager‘s. Affer‘ someTime Uday Kumar aiso meT him who Told fhaT Bindeshwari was siTTing in The jeep bearing regisTr‘aTion number M.P. 27/1975 beside Their house. Dharmu, Baban and Ramprasad werie coming Towards his house wh’om he Told The incidenT, he came along wiThlhfem in his house, Then he saw dead body of Bijendro and injury To his