WW, ®§ Elia‘ , W APPELLANTS/: Accused (In Jail) RESPONDENT: >FS/S9— 8/2007 —30.000. brlmlnau AL pea . All residents of village Gainji, P.S. Lalpur, Distt. Bilaspur. - Versus - The State of Chhattisgarh, Through: P.S. Lalpur, District Bilaspur (Chhattisgarh) AND i /’/_./ WW‘ W m 111 200 anawm (W) mwf'aia; mmm mmm WW:¥@W éwifvmm 1. Krishnakumar, S/o Shyamsingh Gond, aged about 30 years. 2. Beersingh, S/o Jhadisingh alias Bhagwansingh Gond, aged about 46 years. 3. Goverdhan alias Bodhan, S/o Ramsingh Gond. aged 31 years. 4. Paras, S/o Keharsingh Gond, aged about 47 years. 5. Premsingh, S/o Jhadisingh alias Bhagwansingh Gond, aged about 31 years. 6. Dukaloo, S/o Lorik Raot, aged about 36 years. 7. Dilesar, S/o Katikram Jaiswal, aged about 36 years. 8. Gangoo, S/o Ramsing'h Gond, aged about 33 years. WW 111 200 mm (W) mmfawiaa WWW WWW WWW wW %sif%man%31 znnn; ea; I‘U. . 4.” Ial ul Luur 1. Dukalha, S/o Punau Gond, aged 61 years (Now 70 years). 2. Jaisingh, S/o Khelan Gond, aged 36 years (Now 45 years). Both R/o Village Genji, Police Station Lalpur, Distt. Bilaspur (Chhattisgarh) Versus - State of Chhattisgarh, Through Station House Officer, Police Station Lalpur, Distt. Bilaspur (Chhattisgarh). {Criminal appeal under Section 3 74 (2) of the Code of Criminal Procedure} Division Bench: brlmlnal HE APPELLANTS: (in Jail) RESPONDENT: Hon’ble Mr. L. Hon’ble Mr. Sl 14-11-2007 Mr. R.C. Dubey, Mr. Praveer Siddique, counsei for the appellants Miss Sharmila Singhai, coun Mr. D.K. Gwalre, Additionall Oral judgment dictated on Di IIS. L.C. BHADOO, J. Cr.A.No.262/2001 filed by Krishnal‘iumar, Beersingh, Goverdhan alias Bodhan, Paras, Premsingh, Dukaloo, Dilesar & Gangoo and Cr.A.No.191/2001 filed by Dukalha & Jaisingh are arising ou 3. Bhadoo and lnil Kumar Sinha, JJ. Das, Mr. Ram KumarTiwari & Mrs. Hamida in Cr.A.No.262/2001. sel for the appellants in Cr.A. No.191/2001. ”ublic Prosecutor for the State/respont t. r WW5?) l/59— 8/2007 ——30.000. : of the same judgment dated 10‘“ January, WW, ma, W mm (13W) @7? WWW By these appeals under Section 3 questioned legaiity and correctness sentence dated 10—1~2001 passed t Sessions Trial No.146/91 whereby laarned Additional Sessions Judge convicted and sentenced the accused persons Wm m 200 L as under: — 59— 8/2007 —30.000. 74 (2) of the Cr.P.C., the appellants have of the judgment of conviction and order of y the Additional Sessions Judge, Mungeli in mmm WWW mwawm am m m % stfhn m I I . n n n A . . . a s s Trial No.146/91 and also out of the same crime number, therefore, they are being disposed of by common judgment. 2. During the pendency of these appe als, accused Paras had already expired on 11—6-2005, therefore, the appeal in his respect has been held to be abated by order dated 30-3—2006. Name of the accused Conviction Sentence Dukaiha, Krishnakumar, Seci14:3l.P.C. R.I. for 2 years and fine of Beersingh‘ Jaisingh, Rs.200/-, in default of Goverdhan, Paras, payment of fine to further Premsingh & Gangoo undergo R.i. fort month. Dukaloo & Dilesar Sec. 14'7 l.P.C. R.l. for 1 year and fine of Rs.200/—, in default of payment of fine to further undergo R.l. for1 month. Krishnakumar, Beersingh, Sec. 30‘2 read with Sec. imprisonment for life and Goverdhan aiias Bodhan, 149 l.P.3. for committing fine of Rs.1,000/-, in Paras, Premsingh, the mLrder of Chhedi default of payment of fine Dukaloo, Dilesar, Gangoo, Ram to further undergo R.l. for Dukalha & Jaisingh 6 months. HW,WW,W WW 1n 200 W W (W) wwm mm m WWW Wamw=§am %ai1=mané¥r #:kh Sec. P..!. fer 3 yeazs.and fine of Rs.500/-, in default of payment of fine to further undergo R.l. for 3 months. 4. c. 149 grievous Rajaran read #:kh Sec. l.P.C. for causing injury to (PW-18). Sec. 325 read with Sec. R.l. for 2 years and fine of 149 i.F’.C. for causing Rs.500/-, in default of grievous; injury to payment of fine to further Khorbahra (PW-17) undergo R.l. for 3 months Sec. 323 read with Sec. R.l. for 6 months anr‘ ‘ie 149 LP C. for voluntarily of Rs.200/—, in default of causing simple hurt to payment of fine to further Sammat (PW-1 1) undergo R.l. for1 month. Sec. 32:3 read with Sec. R.l. for 6 months and fine 149 l.P.C. fOr voluntarily of Rs.200/—, in default of causing simple hurt to payment offine to further Juthei (PW-10) undergo R.l. for1 month. Sec. 149 causing Panchram 3:23 read with Sec. l.F.C‘. for voluntarily simple hurt to (PW-15) R.l. for 6 months and fine of Rs.200/—, in default of payment of fine to further undergo R.l. for1 rr‘” th. lt was further directed that all the directed that the accused persons period against the sentences Section 428 ofthe Cr.P.C. sentences shall run concurrently. it was also shall be entitled for set off of the detention imposed upon them, as per the provisions of mm \ 7, {L (2, W \ gi 200 mm (W) WWW mm‘m axé?‘ WW%WW $WW cessary for tire disposai of these appeals is 3 deity of Durga was instalied in the month of place Kanhaiya, aged about 7-8 years, was to the place where Kanhaiya was sleeping e is sleeping near the deity and inflicted injury as convened in the village and the matter was ers were carrying animosity in their mind, 42-1989 at about 4 p.mt when Jugut Rawat, irom his field and when he reached near the 30nd attacked him with a Tabbal. When they Building, Jaisingh, Krishna, Dukaiha, Komal, rem, Shyamsingh, Gariba Gond, Uday Kalar Lathi & Tabbal in their hands and started :ion, Juthel, Panchram, Sammat, Rajaram, ceased) also arrived there. Seeing them, all la of their common object attacked them with Chhediram sustained injury, became 1stantaneously. The incident was witnessed tila Bai. After the incident, when the accused :urrence, Khakhra Bai brought Chhediram to s, but on account of fear, she did not report on the next day i.e. 29—12-1989, the matter der EXP—57 in Police Station: Lalpur upon ider Crime No.55/89 for offence punishable ad with Section 149 of the l.P.C. and prior to also given which was registered at No.4/89. base of the prosecution, in orier', n that two months prior to 28-12-198 Kunwar at Village: Genji. At that sleeping. Accused Krishna went near the deity and said that why h to him. Therefore, a Panchayat w settled. However, Krishna & oti therefore, on the fateful day i.e. 28 father of Kanhaiya, was returning bicycie shop of Laiji Nai, Dukaiha were quarreliing near the school Beersingh, Jhadiram, Shriram, P etc. came on the spot carrying quarreling. Hearing the commo Khorbahra & Chhediram (since de the accused persons in furtheranc Lathi & Tabbal. In the qua unconscious, fell down and died by Khakhra Bai, Chanda Bai & Urn persons fled from the scene of oci the house with the help of person the matter in the night. However, was reported by Khakhra Bai ur which the case was registered u under Sections 147, 148 & 302 re that, Merg intimation EXP—90 was ( i rrel, Vi 200 mm (W) mwa; WWW E r . . F . ’ ' :F. . F on 29-12-1989 and prepared inques of Chhediram was sent for post-mo Health Centre, Lormi, where Dr. Ai prepared post-mortem report EX.P—‘ was homicidal in nature. The Inve Jugutram (PW-13), Sammat (PW- Primary Health Centre, Lormi for e xamination of their injuries, where Dri ‘Ki prepared X-ray report EXP-50. E r. C.S. Sharma (PW-14) after taking X-ray WWW a fee?W a; arm arm We spot t EXP-92 on the body of Chhediram. Body rtem examination under EXP-93 to Primary 1. Jaiswal (PW-19) conducted post-mortem. 32 and opined that the death of Chhediram stigating Officer sent the witnesses namely, 1V1), Khorbahra (PW-17), Juthei- {PW-10), Panchram (PW—1 5) & Rajaram (PW—1 8) under requisitions Exs.P—94‘ito 99 to Jaiswal (PW—19) examined their in_uries and prepared injury reports Exs.P-61. 83 to 87 & 89. Dr. N.K. Soni (PW-5) took X-ray of thumb of Khorbahra and prepared X—ray report Ex.P—8 regarding fracture injury sustained by Rajaram. injuries of Jugutram, Sammat, Juthel &'Panchram were found to be simple in nature by Dr. A.K. Jaiswal. Clothes of the deceased were seized under EX.P— 56. Bloodstained soil and plain ':; Prasad Sahu, Patwari, prepared s‘t P-54. Based on the memorandurr mm a oil were seized under EXP—102. Narayan e plan of the place of occurrence under Ex. and at the instance of the accused persons namely, Gariba, Premsingh, Jaisi gh, Goverdhan, Swarath, Shriram, Melan. Beersingh, Bedsingh, Krishnakum r, Dukalha & Jhadiram @ Bhagwanfc .gh & Gangoo, weapons of offences and their clothes were seized. After completion of investigation. harge sheet was filed in the Court of Judicial ' Magistrate, First Class, Mungeli, gainst 20 persons. During trial, Jhadiram & Swarath had expired, therefore, cr minal trial stood abated against them. WW3? V59! 8/2007 A30,OUUV ,) Wm m 200 mm (W) mmw wmm 1O s mple injury in furtherance of common object of the unlawful assembly to Gangoo. lt is stated that in that case, the complainant party have been acq We have heard learned counsel fo ' the parties. 11. Homicidal death of Chhediram has not been disputed by learned counsel for the appellants. Moreover, Dr. A.K. Ja swal (PW-19) has stated in his evidence that E a.m. he conducted post—mortem on the body of Chhediram and noticed that there. was incised wound on head in the size of 6" as a result of which skull bone was cut, brain material was coming out, a cut injury on right forearm in the size of 1/2” x 1/2 a contusion on left cheek in the size of 3" x 2" and a contusion on right cheek in the size of 1" x 1/2 On WWW mmeiwm ammm Weaken—WWWersons . . l. examined 20 witnesses. Statemewts of the accused persons were recorded under Section 313 of the Cr.P.C. in which each of the accused denied the material appearing against him and stated that they are innocent and they have been falsely implicated in the crime They examined Birbal Das (DW-1), Kotwar & Pannal Lal Sahu (DW—2) in their c efence. After hearing counsel for respective parties, learned Additional Sessions Judge elants as aforementioned, however, acquitted accused Gend Singh, Uday, Koma, Siyaram,,Gariba, Shriram, Melan & Shyam Singh of all the charges. lt is not out of place to mention here that accused Gangoo sustained injury in the said incident, the matter was reported in the Police Station and charge sheet was filed against Mithu, Jugatram, Holoram, Sammat, Juthel, Khorbahra, Panchram & Gajram for causing convicted and sentenced the app u tted. on 30‘“ December, 1989 at about mmmw. £97 8/2007 -30,000. Wm in 200 anéwm (W) Hmmm WWW WWW WWW§EQWW %ai1%rqan%¥r Walssectlon, ne nonced thai skuii b0 e wab cui and blain mernblauc wab alSO cut in the size of 6". Injuries were caL sed by hard & sharp object Cause of death was coma as a result of head injwy and cutting of cerebral. His report is Ex.P- 62. In view of the above evidence it is established that the death of Chhediram was homicidai in nature. Goverdhan alias Bodha 1, Dukaloo, Dilesar & Gangoo 6 1E. As far as involvement of the above accused persons in commission of murder of Chhediram is concerned, learned counsel for the appellants argued thatt Ar names do not find place in the first information report. The accused persons were known to the prosecution wit wesses and the incident alleged to have taken place in the day light. Therefore, had these accused persons were members of the attacking party, then there vxas no reason for Khakhra Bai (PW—12) for omitting their names in the F.l.R. 1L. On the other hand. learned Additional Public Prosecutor supported the judgment of the trial Court. 153. Having heard learned counsel for the parties, we have perused first information report Ex.P-57. After perusal oft first information report, we find substance in the argument advanced by learn d counsel for the appellants and names of these four accused persons do n tfind place. Khakhra Bai (PW—12), ‘who was the author of F.l.R. EXP-57 nd mother of deceased Chhediram, has categorically stated in para 1 of er evidence that all the accused persons are known to her by name, all are re idents of Village: Genji and Chhediram was her son. In para 7 she has furth r stated that at the time of giving report, she disclosed the names of all the ccused persons and she cannot give any mm 111 200 mm (Witt) No p!ausible m W w 200 an?“ W (W) mww ammm WWW WWW#WW awaifaum party 7& complainant party if annof be ruled out fhaf namesgf fhese persons were included after deliberations and possibility of false implication cannot be ruled out, particularly when deceased Chhediram sustained one grievous injury on head and three simple injuries, two on cheek & one on right forearm, whereas number of assailaits alleged to have been 20. Omission of mentioning the names of these accused persons in the F.l.R. is fatal to the prosecution case and their f‘ lse implication cannot be ruled out particularly kt, looking to the number of injuri s. 18. After considering all these. oints, we are of the considered opinion that presence of these accused p rsons on the scene of occurrence at the time of commission of crime become doubtful and conviction and sentences imposed upon them cannot be sustaine . Krishnakumar Beersi h Premsin h Jaisin h&Dukalha Now, coming to the involve ent of above accused persons in the crime in question, Juthel (PW-10), S mmat (PW—11), Jugutram (PW-13), Panchram (PW-15), Khorbahra (PW-17) 8i Rajaram (PW-18) are injured eyewitnesses, they have sustained injuries w ich has not been disputed and their injuries were examined by Dr. A.K. Jaiswal PW-19). Even Rajaram & Khorbahra sustained fractures All of them have st ted about involvement of these accused persons in attacking deceased Chhe iram. But in their evidence or in the first information report, there is o evidence as to who caused fatal injury to Chhediram. As per the po -mortem report and the evidence of Dr. A.K. Jaiswal (PW-19), Chhediram ied on account of head injury and that was the incised wound. He has stated that the said injury was caused by sharp & hard WWW ammm cut. None of the prosecution witnesses has specificaHy stated that out of these accused persons who inflicted the witnesses. There is omnibus statement that all the accused persons attacked with Tabbai & Lathi. 20. Other three injuries sustained 3y deceased Chhediram were found to be simple on non-vital parts, therefore, t cannot be said that the object was to kill the deceased, but the other accused persons who have not in fact inflicted vital blows on head of the deceased may have knowledge that blows given were likely to cause death. 21. ln this case, the F.l.R. was lcdged against eleven persons and charge sheet was filed against 20 persons, out of those, Paras died during the pendenoy of . the appeal, whereas accused Jhadiram & Swarath died during trial. Accused Gend Singh, Uday, Komal, Syaram, Gariba, Shriram, Melan & Shyam Singh . have been acquitted by the trial Court and four accused persons namely, Goverdhan alias Bodhan, Du<aloo, Dilesar & Gangoo are being acquitted in these appeals. When the attack was alleged to have been made by large number of persons, possibility that injury i.e. author of the injury has not been specificaHy identified by any oi cannot be ruled out that fatal injury was caused by other than these five appellants. 22. If any one of the appellants h own, it would be his individu exceeded the common object and acted on his l act. Moreover, all the prosecution witnesses have made omnibus stateme ts that all the accused persons whose number was twenty, attacked with Tabbals & Lathis whereas, only one grievous injury' was found on head of the deceased, two simple injuries on left & right cheeks WW,WW,W mwm Han W (f Tabbals then how only one gri body of the deceased, no r prosecution witness. In this c; to which of the accused has < find it difficult to cenvict the Section 149 of the l.P.C. For Apex Court in the matter of S reported in AIR 1993 SC 400. 23. Therefore‘ offence against tl Section 304 Part—H read with E 24. As far as conviction under Se voiuntan'ly causing grievous h conviction under Section 325 causing grievous hurt to Khori with Section 149 of the l.P.C Panchram & Sammat are cor not challenged conviction and under those counts. Moreove also stated regarding infliction to them. 25. ln the result, > The appeal in respect Gangoo is allowed, cor ith Lathis & i vous injury and three simple injuries were on the )Iausible explanation has been offered by any use unfortunately no witness has come forward as :aused which injury. In these circumstances, we accused persons under Section 302xread with this view, we are fortified by the judgment of the arman and others v. State of Madhya Prar' i iese accused persons does not travel beyond ection 149 ofthe l.P.C. ction 326 read with Section 149 of the l.P.C. for Jrt by dangerous weapons or means to Rajaram, read with Section 149 of the l.P.C. for voluntarily 3ahra, as also conviction under Section 323 read for voluntarily causing simple injuries to Juthel, cerned, learned counsel for the appellants have sentences imposed upon these accused persons r, each of the persons who sustained in, ~’ies has of injuries by the members of unlawful assembly of Goverdhan alias Bodhan, Dukaloo, Dilesar viction and sentences imposed upon them under & W m W 200 3mm (W) mmm' mm FgQ?W $3ifcmeméw mmw W WWW “,ection 149. 326 read with Section 149, 325 read Sections 302 read with with Section 149, 323 r & 323 read with Secti0i sentences imposed updn Goverdhan & Gangoo under Section 148 of the lesar under Section 147 of the I.P.C. are also set 3d of the said charges. The accused persons are ince the date ofjudgment i.e. 10m January. 2001. thwith, if not required in any other case. shnakumar, Beersingh, Premsingh, Jaisingh & their appeals are partly allowed. Conviction and ion them under Sections 148, 326 read with vith Section 149, 323 read with Section 149, 323 & 323 read with Section 149 of the l.P.C, are n and sentences imposed upon them under Section 149 of the l.P‘C. are set aside, instead ted under Section 304 Part-ll read with Section ach one of them is sentenced to undergo R.l. for WW WW a? afar! m ),f mm aad with Section 149, 323 read with Section 149 ‘i 149 of the l.P.C. are set aside. Conviction and l.P.C. and Dukaloo & D aside. They are acquitti said to be in detention s They be set at liberty fo So far as accused Kr Dukalha are concerned sentences imposed up Section 149, 325 read \ read with Section 149 maintained. Convictic Section 302 read with thereof they are convic 149 of the l.P.C. and e Seven years. Krishnakumar, Beersing As per record, they wer during trial and after ct viz., )h, Premsingh, Jaisingh & Dukalha are on bail. e in detention during investigation, for some time inviction till they were granted bail by this Court W “i 200 Wm (W)V WW,§?1 El—Gf,W Wm (WW) > Out of the above five a persons have complete them, their bail bonds before the trial Court. ‘P Accused Dukalha remz period of six years nine bonds before the trial months. However, it is remission or otherwise be at liberty to extend ti SW» LCBhaduo Jurige Soma K. sd/_ Sunii Kunmr Sinha Judge WW wt 200 iccused except Dukalha remaining four accused ad seven years of imprisonment imposed upon are discharged and they need not surrender iined in detention during trial and appeal for a months, therefore, he has to surrender to the bail 3ourt to serve out remaining sentence ‘Qf\fhree é made clear that if he has already earned any entitled for any other ,benefit, jail authorities will e Same. \1 m EmW am mm Wmm mm wcs‘z? WK %? aim m Name of the accused ln Jail Period of detention '-'rom To Krishnakumar 304 2—1989 8~6~1993 3 years 5 months 10-1 -2001 20-1 0-2004 3 years 9 months Beersingh 30A 2—1989 8-6-1993 3 years 5 months 10-1 -2001 20-10—2004 3 years 9 months Premsingh 4-1-1990 8-6-1993 3 years 5 mohihs 10—’ ~2001 20—10—2004 3 years 9 months Jaisingh 10x1 -2001 28-9—2004 3 years 8 months Dukalha 30-‘ 24989 8-6-1993 3 years 5 months 10-“; -2001 ’ 10-5-2004 3 years 4 months