WW (W) WWW W WWW WW§E€IW 1imifau‘wéw Criminal “Qgeai No.238 af 2004 mm APPELLANT: ( In Jail) Jersus-* RESPONDENT: APPELLANTS: Rajmai Vadav, Aged 31 years, S/o Lafe Si‘l'umm Vadav, Occupaiian — Agricul'i’urisi', R/o Village Pendar'i, RS. ajpur, Disft. Surguju (C.G.) 5mm of Ch hattisgarh Criminal Aggecxl No‘.123 of 2004 1. Rameshwar Yadav, 5/0 Budha @ Budhan Muhfo, Aged 29 Occupulion ’ -\lersus- years, Agricul'furi§+,.~ ‘R/o Villi Pendari, P.S. Rajpur, Disft Surguja (C.6.) Sanjay Kumar Yadav, 5/0 Ramawamr Vadav, Aged 23 year's, Occupafion Agricul'l'urisi’, R/o Village KoToqahana, P.S. Rajnur, Dist Surguja (C.6.) S‘l‘ale of Chha++isgarh RESPONDENT: R k0 WWW WWW WWW mm fg€tm awim‘avam AND Criminai Aggea! No.167 of 2004 ‘ APPELLANT: (In JciD RESPONDENT: smfe of Chhu‘h‘isgarh (Criminu! Appeak und er Sed'ion 374 (2) of ‘Hne Cr.P.C.) Division Bench: - Hon’ble 5hri L._C. Bhadoo & Hon'b!e Shy-i Suni! Kumar- Shha, JJ. 22-8-2007:— Shri Neemj Meh'ra, camse! far The appelkm‘fs‘ Shri UK. Gwah‘e, Add respondent Om! judgmenf dic‘l'afel‘d on Dm's. l LC. 'BHADOO‘ J. Budha x Mah‘to @ Budhau Muhm @ Amnd MeMc, Aged ’56 years, S/o Bhukhun Ma'm, Occupa‘fian - Farmer, R/o Village Pendari, P,S. Ra‘jpur, DisH. Surgujn (C.6.) a 200 mm (W) 'ersus— ifional Public Prosecu'lor for 'l'he S'l'a'l'e/ m , h 3mm (Win) mwm ammamia; mm§wm $aifma11é¥r WWW r Learned counsel for 1+ appelhn‘ts submi'ffed +hcx+ fhe accused persons'huve filed raped applica'rion, They are in defemion for ubou‘f 6 year-s, fherefére, 1+! appeals ifself may be heard final!y, +0 which Shri Gwair'e has no njection. He furfher submiffed +ha+ arising ou+ of fhe same ju meM' 64 same inciden+ +wo co—accused persons namely, Rameshwar Yadav & Sanjay Kumar- Vadav were convid'ed for commission of ffence under SecTion 323 of fhe IPC agains‘r which +hey have filed appeal, fherefore, 'lheir aopeal may also be heard and decided wi'rh +h se appeals, fo which Shri Gwalre has no objec+ion. Accordingly, learned co nsel for ‘rhe parfies heard The aforesaid appeals filed by 1'he accused persons are being disposed of by This common judgmen'i' as all fhe fhree appeals are arising ou‘l’ of +he same inc den'r (Si same judgmenf passed by fhe learned Special Judge (Afroc ies) Ambikapur in SI No.28/2002. By fheSe appeals, e accused/appellan‘rs haye quesfioned legali‘i'y & correctness of 1+1 judgmeni' of convic‘i'ion and order of sen‘rence da-red 28-1-2004 p sed by fhe Special Judge, Ambikapur in S.T.»No.28/2002 whereby learned Special Judge affer holding abcused/appellanfs Rajmal 8i Budha Mah‘ro guil‘i‘y for commission of offence under Secfion V302 o the IPC for commi‘Hing fhe murder of Lurka. sen‘l'enced 1hem +0 u demo imarisonmen‘i' for life. Accused w‘ 1 b H i @V WT m w: 200 W m .................................................‘.v......;gi 200 mm (W) mm WW %&M %3i1%ma1%¥1 maxim-am Budha‘ Mnhfo has also been canvic'ted under Section 294 of ‘fhe EPQ & sen+enced to pay a fine of R:;.200/—, in defauH of paymenf of fin“: fa fur‘l'her undergo RI. for 15‘ daysi‘ Further, accused Rajéml, Rameshwar, Snnjay (Sq Buc'ha Mahfo have been convicred for commission of offemce under Sec-Hon 323 of fhe IPC & each of the accused has been senfenced undergo RI. for 10 mon‘i’hs. However, all The four accu3ed persons ave beeu acquiffed of the charge under- Secfion 3(1) (x) of 1he SC/ T Act Accused Rajmei, Rameshwor {$1 Sanjay have also been acqu of fhe charge under Section 294 of fhe PC. Accused Budha Ma o <$< Rajma! have aiso been acquih‘ed of fhe charge under Sec‘rion 3 ( '(v) of ‘rhe $C/5T Acf. The case of fhe pr ‘fion, in brief, is fha‘r on 20“ August h'ro enfered the paddy fieid of Bhadva. o 2001 cock and hen of Budha They were driven ouf by Bi+n Bai (complainant). His wife Pancho and her daugh-rer Bifni Bai aske Budha Mahfo +0 keep his cock a: hen under confroi, as ‘ihey are spoiiing their crop, an which Budha ‘i'hrea‘iened 1hem wi'ih dire co sequences. On coming To know, Bhadva wen+ +0 Budha Mahfo +0 pers ade him To keep his cock and hen under confrol, on which Budha sfarf d abusing him in +he name of ma‘iher & fa'iher. Ai' fha‘t fime, RajmaL fook'him .fo fhe house of Bud . There fhey sfarfed bea‘i’ing him wifh ia‘ihi. When Bifni and Panel-o Bai infervenedk fhey raised cries. n-in~iaw of Budha aiso came ‘ihere and ‘ I ¥ i i d u .o h w: 200 Wm (W) mmm Wm f€am éxwénhr Bro+her of Bhudv'a randy, Lurka. came +her-e & persuaded Rqjrml 84 Budha nof +0 beaf his brofhe r, on which Rajmgl &'Budha said fha'f he should a!so be bea'ren’. In +he.meun+ime, Rajma' <31 Budha calied Rameshwar (S: Sanjay‘ They so came wHh lafhi. A” fhe four si'ar'fed bea+in9 Lurka wi‘fh h'rhi. Th y assauHed an hi5 head 6; ofher pcr‘rs of 'Hne body, as a resuH of w ich he susmined injuries on fhe head. Thereaffer, Rajmal, Sunjay and Rumeshwar‘ chased Bhadva, af‘rer cc‘rching hold of him fhey f0 k him in fhe ki‘rchen garden. They gave beofing +0 him wifh ia'rhi. The ma‘H‘er was repo fed hy Bimi Bai in the Poiice 5fo+ion Rajpur under- Exs.P/4 & P/5. The invesfiga'fing officer- ieff for scene of occurrence, affer' giving o‘rice EXP/1 f0 fhe Punches, prepared inquesf EXP/2 on The body f ‘rhe deceased. He aiso prepaned si+e plan EXP/3. Sife plan EX 5 was prepared by Holka Pofwari. In pursuance of ‘rhe memorand m Ex.P/12 given by Budha Mah‘ro 'dwe inves'iiga‘i'ing officer seized ooden ciub under EXP/6. In pursuance of +he memorandum EXP/13 ven by Rajmal The ID. seized Bamboo lafhi under Ex.P/7. In pursue ce'of fhe memorandum EXP/15 given by Rameshwar fhe IO. seized on Genda ciub under EXP/8. In pursuance ‘bf 1*he memorandum EXP/14 iven by Sanjay the 10‘ seized one ciub under EXP/9. Blood sfained ‘ i di piain soil was seized from fhe place P i i lruw £ f? .iji’ev" x ‘“ «’Hc.78 . m W , 111 200 mm (W) mmm WW1?WW mwm wmm agaif‘aqm of occurrence under EXP/10. One mrricoaf shir'r of Bi'mi was seized under EXP/11. Bhadva was sen? for median! examinafion undéir EXP/23 1'0‘ +he Median! Officer, CHC,’Rajpur where Dr. Prifum Ram (PW—9) examined his injuries. He prepared injury report Ex.P/16. He noficed one iacem‘red waund on fhe rig'rt' parie‘ral region, 5 confusions an other par'rs of “the body. Bimi was also sen'f for medical examina‘rion fo fhe Meeicul Officer, CHC, Rcjpiur under EXP/24 where Dr‘ Pri‘l’um Ram examined fhe injuries of Bi‘ini. He prepared injury repor‘t‘ EXP/17 in which he noficed mulfipie a rasions on righ'f wri‘r join? & campiain 0f pain on back of neck. The i 'uries of Lurka were aiso examined by Dr. Primm. He noiiced ‘fhaf (i) ere ’was sweiiing on righ‘i’ parie‘rai region wi‘i’h abrasion (ii) 1'here was sweiiing' on leff parie‘fal region (iii) 'i'here was sweliing on bo‘lh sides o cheek (iv) fhere was) swelling on ief‘i side of back (v) fhere was swell g on leff palm. He opined +ha+ ‘Juries were caused by hard and biunf object. Na‘rure of injuries was i grievous. Pa‘fien'i' was unconscious. He was referred +0 fhe Disfric? Hospi‘ral Ambikapur. He prepared ‘i’he reporf Ex.P/19. The docfor examined weapon of offence senf to him. He prepared fhe reporf ' ExP/20. In fhe mean'rime,”Lurkaisuccumbed fa fhe injuries. The dead body of +he deceased was sen? for posfmor'rem examinafion +0 1he Blook Medical Officer. CHC‘ Rajpur under EXP/28 where Dr. Pri‘fam i‘ \x ’\ ‘i @ conducfed fhe pos‘fmorfem. He opined fha‘r cause of dea‘th was due *0 fmci'ure of skull bone. Deafh was homicidal. He prepared posfmorfem repor‘r EXP/21. Affer comp1e'tion of 'H'e invesfigafion, charge sheaf was filed agains? ‘the accused persons in 'H'Ie Cour? of Chief Judiciai Magisfmfe, Ambiknpur, who in Turn com H‘red the case +0 1'l1e Sessions Judge, Ambikapur from where learn d Special Judge received the case for friel. Learned Special Judg charged accused Rajmal & Budha for Sec+ion 3(1)(x) of 1+Ie SC/ST Act I.P.C. 6: Section 3(2)(v) of the SC/ST Act The accused persons de ied 'l’he charges. Learned Special Judge charged accused Budha, Ra eshwar and'Sanjay’for corrimission of offence under Secfien 3(1) of fhe 5C/5T Acf read wifh Secfion 294 of fhe I.P.C. and Secfion 23 of 'l'he IPC. . The prosecu‘l’ion in or r fo 'esfablish The charge againsf fhe accused persons examined 13'wifnesses. Sfafemenfs of fhe accused persons were recorded under Secfion 313 Cr.P.C. in which they denied maferial appearing againsf in fhe prosecufion evidence, sfafed Thaf ‘rhey are innocen‘r and ha e been falsely implicated in 'H'ie crime. Learned Special Judge vide impugned judgmen‘l' convicted and sen‘i'enced The accused person as aforesaid. . commiss'i‘On of offence un Sec‘fions 323 6i 302/34 of d ( m W 200. 3W " m (W) Ww%=1i$ Minnow magnate?! mwiiwm araifat‘im mW,mW an 200 mm (W) mmm wmm mmm mmiwm *Wm A‘r ‘H've oufse‘t, leume counsel fer ‘rhe uccusad/appenams has of Lurku. Moreover, PW-2 Bhaéva, Bai and PW—4 Faguna have sfa'red fhm’ nof dispu'red homicidal de injured eyewifness, PW-3 B accused Rajmal & Budha a‘Ha ked Lurka with la+hL as a resuh‘ of which he sus'mined head injury & o er injuries. The above ocular evidznce is corrobora'red by fine medi ai evidence of PW—9 Dr. Prifom, who in fhe firs‘i insiance examined njur-ies of ‘i’he deceased, offer his dea'i'h he conducted posi'mor'fem o his body on 22—8~2001. He has shied Tho? there was fracture of s uli and porie‘ml bones. Parieml bone was depressed and‘frac‘i'ured. T ere washoemafomo in 1'he skull. Cioffed blood was present Cerebm ' membrane was alsoibroken. On opening of The skull, he found 'l'ha'r kull bone was fracl'ured. Membrane was rupfured. Brain was conga ed. Lungs, wind pipe and perion were congesfed. Liver was cong 'l'ed. Kidney was conges‘led. Cause of deafh was shock as a resul of fracfure of skull bone. Death was homicidal in na‘l'ure. His repo 1' is ExP/21. In view of fhe above ocular and medical evidence, i'l is e ablished 1ha‘i deafh ofjhe deceased was homicidal in na‘iure. As far as injuries tained by Bhadva is concerned, PW—E 'Bbadva has sfa-red +ha+ all accused persons a++acked him wifh la‘l'his. In ‘i'he firs‘f insfance Rajmal (Si Budha affacked him will-i lafhi. \\ On hearing his cries, his bro er Lurka came. His wife and daughter \ _ i n i s e mm ; 1n 200 mm (1mm) mw‘m WWiwm mmm wmm avaimm dso infer-varied. The accused persons a‘Hacked Lurka also. Thereafter, accused persons Rajmal, Sanjuy and‘Rcmeshwar drugged him ‘l’owards kitchen gdrden. Thar-e a" +he 3: a‘fm‘cked him wifh h'rhi The above evidence of Bhadvu is corro’borMed by fhe evidence of PW— 3 BH’ni Bui as also evidence of PW—4 Faguna‘ This ocuiar- evidence is corrobomfed by fhe medica! evidence of PW-9 Dr. Primm. He has stafed 'Hnai' on 21-8—2001 he amined injuries of Bhadva. As many as 7 injuries were found on his ody, ou+ of which 'Fhere was a iocer'a‘red Wound on righ‘i’ pariefal regi n <31 5 confusions were +hei-e on various par'rs viz. elbow of nighf ho , paim of high? hand, righf fhigh, nigh? side of back, ief‘r side of ch s11 He has sfa'red fhai‘ a“ fhe injuries were inflic+ed by hard and bi n‘i object Ocular evidence of the above winiesses regarding affack m de by ihe accused persons wi'rh iafhi on Bhadva is corrobora‘red by ih medicai'evidence of Dr. Pri‘ram. Injury reporf EXP/16 has been prov d by him. 1 i , Now coming To 1he com iicijry of accused persons namely, Rajmal & Budha in affacking Lurka a also simple injuries inflicfed i'o Bhadva by Rajmal, Rameshwar and jay, PW—Z Bhadva has cafegorically sfa‘i'ed 1ha1’ on fhe fa‘refui when he came 1'0 know aboui’ fhe faci' “hm' cock and hen of Budha h d damaged his sfanding crop, he wen'l’ fo +he house of Budha +0 persua e him fhaf he shouid keep cock and hen under confrol so 1ha+ fhey ld no‘l’ damage his crop which enraged ‘a . v x n n d u WW, Wm,m 10 m m ................................................. '........m 200 mm (W) am$ mmm Wawég‘m Budhd <3; he smr-fed abusing. In we mean fime, accused RajmaL spn— in—!uw of Budha came on fhé scene, bo‘H'I of fhem s‘mr1’ed bagfing Bhac‘Na wii’h la‘rhis. Hearing his cries, Bimi,>daugh+er of Bhcxdvd‘ and his wife came on fhe scene, when ‘t'hey 'h‘ied +0 infervene, 'H'iey gave e bea+ing fo fhem aiso. In ‘ihe nean'rime, his bro+her Lurka also came on fhe scene, seeing him accused Rajma! & Budha a'H'acked him saying fha‘i’ he should aiso be +augh1 lesson. They gave bea‘i’ing 1'0 Lurka wi'rh ia‘rhi. AH fhe injuries were iqflicfed an “the head which proved efaiai. Skuii bone 6i poriefai bone e fracmr'ed which has been proved and es‘l’ablished by fhe medica‘ evidence of PW—9‘ Dr. Primm, who examined in‘jUnies‘ A" fhe injuries have been found in ‘i‘he‘ injury repor‘f EXP/16. This winie s has fur‘i’her sfafedfha‘!’ 'ihereaf‘i'er’ Sanjay and Rameshwar cam on fhe scene carrying ‘iafhi. When he fried 'ro escaoei Rajmai, San ay and Rameshwar dragged him hwards +he ki‘ichen garden of Budha 64 affacked him wi'lh Lio‘rhi. The evidence ' of fhis wi‘i’ness is corrobora d by fhe evidence of PW-3 Bi+ni Bai as aiso ‘PW—4 Faguna. They h sfa‘red in ‘clear ferms 'i’ha‘r in fhe firsf ins+ance Rajmai (Si Budha aH ked Bhadva wifh la'rhi. When +hey fried 'i’o infervene and raised cri 5,. in fhe mean'rime, Lurka came on 'rhe A scene +0 whom also Rajmal & Budha affacked wi'rh iafhi, as a resuh’ of which he susfained injuries o head & ofher parts'of The. body. w r s _ a ‘ m m » v”mym 200 @ W,W,W W 3mm (W) mmm Wmza‘wfgém miwnam 'We have scru'rinized evidence of fhese eyewifnesses and medica! evidence. In cross-examina‘l’ion of fhese witnesses, defence has no''r been able +0 eiici'r any circumsfance which discredi? evidence vof fhese wi'l’nesses. The presenceof Bhadva on fhe scene of occurrence is fur'i’her' esfab ished by "the injury repor'i’ EXP/16 & injuries susfained by him in he quarrel, fhcd' has‘been proved by Dr. Prifam. Even Bi‘rni aiso sus ned muhipie abrasions which is eviden‘l’ from her injury repor'r EXP 17. Therefore, fheir presence on fhe scene of occurrence cannof e ,doub'fed. From fhe above-ocular and medical evidence, i'r is es+a lished 141a? accused Rajmal (Si Budha crimcked The deceased‘as a esul‘l' of which he susi‘ained injuries on head. Skull bone 6i parie‘ml e were fracfured 'rho'f proved fai'cxl 6i he died on accoun‘i of +ho1' a per +he medical'evidence of PW-9 Dr. Pri‘ram. Ii is also established fha'i' accused Rameshwar, Sonjay, Budha and Rajmal a'H'acked Bhadva w fh la'i'hi 6i infiicied simple injuries. As far as convicfion of ccused Budha under Section 294 IPC is concerned, Bhadva has sfafe fha'r when he wen‘r +0 persuade Budha no'i 'ro leave loose cock and en, as ihey are damaging his crop, he abused him in 'l'he name of 'ther and sisfer. Therefore, offence under Sec‘iion 294 of fhe’ I. .C. is aiso established againsi' accused 1‘ Budha. ‘ l \ iii f i n o 12 Wm (W) man-1W W 31mm \ V Learned counsel for «mused/appellanfs Rajmal & Budha amued fha‘f i+ is esmbHshed from fhe prosecu'fion evidence 'rhcr!’ qL$arrel smr‘wd on a pe‘H‘y mqffér 1+1 11' cock é hen of‘Budha damaged smnding paddy crop of Bhadva, whe Bhadva pro+es+ed, quarrei smrmd in a hea+ of passicn in which The eceased came on fhe scene & he fried +0 infervene, in +ha+ process, in a hen? of passion, a” of a sudden, accused Rajmai 6i Budhc a‘ ed vili‘rh la‘i'hi. There. was no infen'i'ion, no prepum‘ticn or pre—med ion of the accused persons +0 cause deoii'i of fhe deceased. Th re was no previous enmi‘l‘y. Everything happened on fhe spur of m mem‘, in a hea'r of passion, wifhoui any prepara‘rion or pre-rnedifa‘l’i , Therefore, case of accused Rajnml & Budha fails under Excep‘i'ion‘ IV ‘i'o Secj‘ion 300 of ‘ihe‘ I.P.C., hence, offence agains'l' Them does n fifravei beyond Sec+ion 304 Par'r-H of ‘l’he I.P.C. He fur+her argue Tha'f as far as sen'l'ence impose” upon accused Rameshwar & San is concerned, fhey ore no‘i’ persons of criminal nafure,’ 'rhis was 'ih first offence of +he accused persons, 'i'hey. ough'r 1'0 have been le'i' o f under fhe sen'i'ence already undergone by fhemL On The ofher hand, iea ed counsel for +he Sfafe supporfed the judgment of fhe Trial Court A . Having heard learned: ounsel for fhe parfies, having perused \evidcnce available on record“ weiiare of fhe considered opinion fhaf \.\\ \ m m ..............................................'.....i“a 200 n i k i * o \ j urgumen‘r advanced by learned counsel for The accused/appeHanfs is no? wifhouf merit I1' is admi'H’ed posifion fha'l' The accused persons as well as deceased parfy are poor viHagers. The dispufe s+ar+ed on pe'ffy ma'rfer when cock and hen of accused Budha enmred +he paddy field of Bhadva & damaged crop, cock & hen were driven ouf by wife and daugh'rer of Bhadva, when BhadVa wen‘r 1'0 persuade Budha 1'0 keep his cock dg hen under confrol so fha‘i' They should no‘i' damage fhe crop, in Tha‘f process, some al‘rercafion "rook place, during +ha+ al'rerca‘fion, Rajmal appeared on The scen‘ and whacked Bhadva, . Hearing his cries, brother of Bhadva, Lurka ap eared on fhe scene in order To infervene, accused persons Rajmal & Budha affacked Lurka, ou‘l’ of fhose assauH-s, la'l‘hi‘ blow fell on head of The deceased which proved fal'al, skull bone was frac red & nex'i‘ day he died. Every‘i'hing happened on spur of mom n‘r, inaa hea‘l' of passion, wi-rhouf any prepara'rion or preimedi'raf , therefore, case of accused Rajmal (S4 Budha falls under Excep‘ri n IV 'i‘o Secfion 300 of fhe I.P.C. Therefore, offence agains-l' 1' ese +wo accused persons does no‘l' 'rravel beyond Secfion 304 Part E of +he I.P.Co Looking 1'0 'ihe faci’s and circumstances of "H‘ie case, are of ‘lhe considered opinion Tha‘r if accused Rajmal di Budha are senfenced "fo undergo RI for 7 years, fhaf will mee'r ends of The j \\ \ \\ lce. ' /l / v/ \ e i ‘- u W m m 200 Wm (W) WWW 311%?! WWW m'miiwm awiErn‘anéw- mm .................................................'. .......1n 200 Wm (W) m'wm WM wW émimm‘ m mmm As far as senfence Sanjw under Section 323 of on record To show 'Hm‘r fhe namre. If is +heir' firsf off Cour'l', fhey have already unde are ‘ei’ off under The sen‘fence already undergone by Them, That will meeT ends of jusTice‘ Howem .C. does noT require any inTerference by This CourT. In The resuif: imposed upon accused Ram‘zshwar qnd 'rhe I.P,C‘ is cancerned, 'Hner-e is no L ing 5e Mo accused persons are of crimina! ence. As per fhe judgmen‘r of “the ‘h-iu! :r-gone 1 mon‘rh 18 days semence. If fhey under SecTion 294 of The I.F :r, SenTence imposed upon accused Budha accused/appellan'i's Rojmol (Si Budho’are 1. The appeals filed by I ‘par‘Hy allowed. ConvicT Rajmal dq Budho under insTead Thereof They o of The IPC (Si senTenced ion and senTence imposed upon accused SecTion 302 of The I.P.C. are seT aside, re convicTed under SecTion 304 r \rT—II To undergo RI. for 7 years. 2. ‘ConvicTion and senTenc a imposed upon accused Rajma! d Budha F The IPC are mainTained. However, under SecTion 323 o' subsTanTive senTence i! aposed upon Them under SecTion 323 of The IPC shall run concu! .‘ m 200 mm (W) @ WWW i WWW mwm WW§wm $aifemw Barve 3‘ Sentence imposed upcn accused Budha under Secfion 294 of 'rhe IPC is main'tained. 4. Appeal of uccus'ed/appellan+s Rcmeshwdr' and Sanjay is also par‘Hy allowed wh iie infaining ‘Hqeir' conviclion under- Section 323 of fl'le IPCA 10 m n‘H'Is' senlence imposed upon each nf The ‘ accused/uppe"an+s is educed +0 already undergone Le. 1 mon'l’l‘! -V. ., Mays- )ra W1 . we Sdl- Sdl- l L.C.BHADOO e._e Judge f’, ~ l lV (- Sunil Kumar Sinha Judge ' l HW,W,W' mm