é? HIGH COURT OF CHHATTISGARH AT BILASPUR‘ Division Bench: Coram: Hon’ble Mr.T.P.Sharma & ‘ Hon’ble Mr.R.N.Chandrakar, JJ. Criminal Agpgai No.786 of 2005 Appeiiants 1. Dhannu S/o Milau Ram Suryavanshi, agedtabout 29 years. 2. Mahesh Kumar S/c Bahorik Suryavanshi, aged about 30 years. All residence Gram-Ghuru, Thana- Charkarbhata, Distt-Bilaspur (C.G.) Versus State of Chhattisgarh And Criminal Apgeal No.12 of 2006 RE$POKMENT Appeliant I Respondent Manoj Das S/o Sewak Das Manikpuri, aged about 30 years, R/o Village Ghuru, P.S. Chakarbhata Distt.- Bilaspur (C.G.) Versus State of Chhattisgarh (Criminal Appeals under sections 374 (2) of the Cr.P.C.) Present: MLNeeiaj Mehta, counsei for the appellants in Criminal Appeal No.786/2005. MrManoj Paranjape, counsel for the appellant in Criminal Appeal No.12/2006. MrsMadhunisha Singh, Panel Lawyer for the Stateirespondent. JUDGMENT (Passed on 16‘“ August, 201 1) Per T.P.Sharma, J.:- 1. Criminai Appeal No.786/20é5 filed by appellants Dhannu and Mahesh Kumar & Criminal Appeal No.12/2006 filed by appellant 'Manoj Das against the judgment of conviction & order of sentence dated 31.8.2005 passed by the Special Judge under Atrocities Act, Biiaspur in Special Criminal Case No.98/2004, are being disposed of by this common judgment. . By the aforesaid two appeals, the appellants have challenged the legality & propriety of the judgment of conviction & order of sentence dated 31 3.2005 passed by the Special Judge under Atrocities Act, Biiaspur in Special. Criminal Case No.98/2004, whereby & whereunder leamed Special Judge while acquitting other six accused persons and after holding appellant Mano} Das guilty for commission of culpable homicide amounting to murder of Banti being a member of Scheduled Tithe convicted himau’rider‘ Section 302 and 3 (2) (v) of the Scheduled C and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act’) sentenced him to. undergo imprisonment for life and tine of Rs.5000/-, in default of payment of fine to further undergo S.l. for six months on each count. The Special Judge has convicted appeiiants : Dhannu and Mahesh Kumar under Section 302 of the l.P.C.‘and sentenced them to undergo imprisonment for life and tine of Rs.5000l—, in default of payment of fine to further undergo SJ. for six months. . As per case of the prosecution, on the fateful day of 15.2.2004 at about 11.04 am. Janak Lal Banjare (PW-4) along with deceased Banti and Ravi Chouhan (PW-17) were going to the field of Bhuru for eating Tiglr (a kind of leguminous seed) by scooter, they stayed near betei shop Panchram and purchased cigarette, at the same time, the appellants along with other six persons armed with deadiy weapons came near betel shop, appellant Manoj was holding betel axe and other appellants were holding sticks, appeliant Manoj challenged deceased Banti and thereafter they assaulted him by betel axe and sticks and caused his instantaneous death. Appellant Mano} also chased him, then he along with Ravi Chouhan rushed from the spot by scooter and went near Satish Yadav’s betel shop from where they informed the police by telephone, after sometime police vehicle came then they accompanied the police up to the place of the incident where he lodged dehati merg videExP/W and dehati naisi vide Ex.P/1 8. On the basis of dehati merg and dehati'nalsi final F.I.R. was lodged vide EXP/52. After summoning a aw @7 the witnesses prepared inquest aver dead body of deceased Banti vide Ex P/32 Dead body of deceased Banh was sent for autopsy to Government Hospitai Bllha vude Ex P/13A where Dr Ashok Kumar Sanyai (PW-1) conducted autopsy Vtde Ex P113 and found followmg mjunes.- (i) lncised wound over Ieft temporal region of 10 cm. x 3 cm. x 1 1/2 om. Bone was found cut. (ii) incised wound over‘just below the ieft ear of 9 cm. .x 3 cm. x 1 1/2 cm. along with out fracture of bone a f (iii) lncnsed wound of 12 cm x 2 3e cm x 5 cm on back par of the head along With out fracture of bone and brain was a Visible. (iv) incised wound of 5 cm. x 2 cm. x 4 cm, over back part of the head along with cut fracture of bone and brain was visible. (v) incised wound of 4 om. x 2 cm. x 4 cm. over back of the‘ I , neck with out fracture of cervical vertebra. (vi) incised wound over head of 5 cm. x 1 V2 cm. x 2 cm. along with cut fracture of bone. (vii) incised wound over right temporal region of 7 cm. x 1 ‘A cm. x bone deep. (viii) Laoerated wound of 3 cm. x 2 cm. x 1 cm. over right side of ciavicie. (ix) incised wound of 7 cm. x 1 cm. x 1/5 cm. over left scapula. (x) Abrasion of 5 cm. x 1 1/2 cm. over left shoulder. (xi) incised wound of 3 cm. x 1 1/2 cm. x 2 om. over left axilla along with cut fracture of scapuia bone. (xii) incised wound of 10 cm. x 3 cm. x 3 cm. over waist along with fracture of lumber vertebra. (xiii) incised wound of 'L’ shape over left iliac crest along with cut fracture of iliac bone. (xiv) incised wound over right ribs of 3 cm. x 1 x cm. x 2 cm. (xv) incised wound behind left thigh of 3 cm. x 1 1/2 cm. x 2 cm. (xvi) incised wound of right leg near tow of 2 cm. x 1 cm. x 1 (xvii) Incised wound over right tibia bone of 7 cm. x 1 cm. x 1 cm. with cut fracture of tibia bone. (xviii) Contusion of 2 cm. x 1 cm. over right indgx finger with fracture of mings; . Cause of death was shock and death was homicidal in nature. Merg was recorded vide Ex P/15 Seaied clothes of the deceased were seized Vida Ex P/16 Patwan prepared spot map vude Ex P/19 Dunng the course of Inteshgatton appettant ManOjdas was taken onto custody. he made dlectosure statement of betet axe wde Ex W21 and same has been recovered at his Instance vrde Ex Pl 22 Bloodstalned ehrrt of appe ManOJdas has been seized wde Ex P/23 Appellant Ananddas Mamkpun Fnade disclosure statement of betel axe vude Ex PI24 and same has been recovered at his instance Vlde Ex P125 Bloodstalned clothes of appellant Ananddas Mamkpun have been seized wde Ex P/26 Appellant Mahesh Kumar made disclosure statement of betel axe vlde ExPlt‘.’ and same has been recovered at his instance vide EXP/28. . Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Biiaspur, who in turn committed the case in the Court of Special Judge under Atrocities (Act, Bilaspur. . ln order to prove the guilt of the accused/appellants, the prosecution has examined as many as 19 witnesses. The accused/appellants were- examined under Section 313 of the Cr.P.C., in which they denied the circumstances appearing against them and ctatmed innocence and false implication in the crime in question. . After providing opportunity of hearing to the parties, teamed Speciai Judge while acquitting six accused convicted and sentenced appellants Mano} Das Dhannu and Mahesh Kumar as aforementioned . We have heard Mr Nearer Mehta counsel for the appellants in Criminal Appeal No 78612005 Mr Mane] Paraniape counsel for the appellant in Criminal Appeal No.12l2006 and Mrs.Madhunisha Singh, Panel Lawyer - @ For the State/respondent. perused the judgment impugned and record oi the trial Court. 9. Mr.Neeraj Mehata and MrManoj Paranjape, learned counsel appearing for the appellants argued that conviction is substantially based on the evidence of Janak Lal Banjare (PW-4) and Ravi Chouhan (PW—17), out their evndence do not Inspire confidence and trustworthy and not safe to rely that too conViction of the appellants under Sectmn 302 of the l P C Learned counsel further argued that the trial Court has acquitted Six accusedpersons on the basis of same set of evidence and convicted & sentenced the‘aforesaid three appeilants on the basis same set of evtdence therefore the present appellants are also ertitled for equal treatment on the basis of same set of eVIdence Mr Mano; Paranjape also argued that as per eVIdence of Janak Lal Banjare (PW—4) and Raw a Chouhan (PW-1 7), these appellants assaulted the deceased along with six accused persons whom the trial Court has acquitted, therefore, it is difficult to hold that who has caused fatal injury to the deceased and who t; was responsible for causing death of the deceased, in these circumstances, the act attributed to the present appellants does not travel beyond the scope of Section 304 Part-ll of the l.P.C. Learned counsel contended that the appellants are in custody for more than seven years and same is sufficient sentence to the appellants under Section 304 Part-ll of the l.P.C. Mr.Manoj Paranjape also contended that appeliant Manoj Das has not caused injury to deceased Bantt on the ground of his caste. 10.0n the other hand, learned Panel LaWyar for the Statefrespondent, supported the judgment impugned and argued that evidencegof Janalt Lal Banjare (PW-4) and Ravi Chouhan (PW-1 7) is sufficient for drawing inference that the present appellants have caused homicidal death wtth intent to cause death of deceased Banti. Learned counsel further argued that after appreciating the evidence available on record, learned trial Court has convicted & sentenced the appellants as aforementioned. 11.ln order to appreciate the arguments advanced on behaif of the parties, we have examined the evidence adduced on behalf of the parties. 12.In the present case, homicidal death as a resutt of ante-mortam fatal injures found over the body of deceased Banti has not been substantiany disputed on behalf of the appeilants, even otherwise, it is estabiished by the evidence of Dr.Ashok Kumar Sanyal (PW-1) and autopsy report EXP/13. Death of deceased Banti was homicidal in nature. 13.As records the complicity of the appellants in the crime in question conVIctIon is substantially based on the evndence of Janak Lal Banlare (PW 4) and Ravu Chouhan (PW-17) As per their evrdence 7-8 accused ‘ persons have caused Iniuries to Bantl but they have Identmed presént appeflmwts Mancidas, Mahesh Kumar and Dhannu. As per evrde Janak Lal Banjare (PW-4), appellant Manoj has caused injury by bet axe and other appellants have caused injuries by stick. There are some contradictions and. omissions in their evidence, especially relating to identification but they have clearly deposed that three persons were i present on the spot whomthey knew. 14.Evidence of the aforesaid witnesses are sufficient for drawing inferences that the present appellants have caused injury to Banti by betel axe and “ stick. At the time of causing injuries the appellants were holding betel axe and stick and there was no propriety for holding such dangerous weapons show their intention for causing such injuries, but as submitted by counsel for the defence, definitely, it is difficult to hold that who’thas caused fatal injury resulting into death of the deceased. The prese) appellants have caused injuries to the dangerous weapons and by the aforesaid injuries the deceased died. These evidence are sufficient for drawing inference that at the time of causing such injuries the appellants were not having definite knowledge that by their act the deceased may die, but they have not caused injuries to the deceased with intent to cause his death, therefore, the act attributed to the present appellants fails within the ambit of Section 304 Part—ll of the l.P.C. 15.Evidenc'e adduced on behalf of the prosecution is not sufficient for drawing inference‘that appellant Manojdas has caused'homicidat death of deceased Banti on the ground of his caste. ’ n a t -7 amww“... 16.While convicting appellants Dhannu. Mahesh Kumar and Manoj Das under Section 302 of the LEG. and appellant Mano] Das under Section 3 (2) (v) of the Act. the trial Court has not considered the aforesaid circumstances, especially the fact that cause of incident was not on the basis of caste and thereby committed illegality. v 17.Fcr the foregoing reasons. Criminal Appeal Nos.786l2005 & 12/2006 are partly allowed. Conviction of appellants Dhannu, Mahesh Kumar and Mano] Das under Section 302 of the I.P.C. is altered to Section 304 Part-ll‘off the i.P.C. and they are sentenced to the custodial. period already undergone by them i.e. about seven years and fine of Rs.1 900/- each, in defauit additional R.I. for three months, however, conviction & sentence&of appellant Manoj Das under Section 3 (2) (v) of the Act are hereby set aside and he is acquitted of the charge. They are in custody, they be released forthwith, if not required in any other cases. :i’i ,r ' sit/e Sdl- \ ‘T‘P.SHARMA ii i RN. CHANDRAKARJ ‘ l /r’ i: , l Judge TJudg‘e r”