III CF0000062965 IV TBS BI<a COURT OS JBDICATUBB AT JABALPUR (M.P.) Cr3.minal Appeal No. \S-'6-S /2000 .-^1 ^ -^ 'WA kto\ 1\^y i^ s "^ K Suresb Pandey', S/o. Shri Kedarnatfa Pandey, aged 28 years, Occupation Driver, Resident of Vishrampur, P.S. Vishrampur, District Sarguja (M.P.) V E R S U S State of Madfcya Pradesh PE'EITIOBHB RSSPOHBBBT OtIMIBAIi APPEAI. U11DBR SBCTIOB 374(2t OF THB CODE OF CSIMIBAL PROCBDURE ll T^( •^^.•^.y HIGH COURT OP CHHATTISGARH AT BILASPUR Cr. Aooeal No.l58S/2000 Suresh Paadev Vs. State of Madhya Pradesh (now Chliattisgarh) Cr.Apneal No. 1309/2000 Birendra Masih Vs. State of Madhya Pradesh (now Clihattisgarh) ^.APpeal No. 1326/2000 Rajesh & aaother"' Vs. State of Madhya Pradesh (now Chhatdsgarh) Cr. Apoeal Ko. 1402/2000 Siraiuddin Vs. State of Madhya Pradesh (now Chhattisgarh) Judgmeat for Consideratlon Slui Justice Falduruddtn W.W,. •^0^ Sd/- Fakhruddin Judge i Postfor: ^ .11.2003 Sd;- Dilip Raosaheb Deshmukh Judge Sd/- T^.ll.2005 Hilill;1! rtto, •-^:::::":?^y HIGH COURT OF CHHATriSGARHJLT BILASPUR Cr. Appeal No.1585/2000 Suresh Paadey Vs. State of Madhya Pradesh (now ClLhattisgarh) 1t- Cr.Appeal No. 1309/2000 Birendra Masih Vs. State of Madhya Pradesh (now Ctihattisgarh) Cr.Appeal No. 132^/2000 Rajesh & another Vs. State of Madhya Pradesli (now Cli^iattisgarh) Q-. Aflpeal No. 1402/2000 Sirajyddui Vs. State of Madhya Pradesb (now Chliattisgarb.) CORAM: - HON'BLE SHRI FAKHRUDDIN, & HON'BLB SHRI DILIP RAOSAHBB DBSHMUKH, J.J. PRESENT: - Shri Surendra Singh, leamed Seaior Advocate with Shri Neeraj Mehta, learaed couusel for the accused-appetlant. Shri U.N.S.Deo, Govt. Advocate/Additional Public Prosecutor with Shri M.P.&Bhatia, Pauel Lawyer for the State. J_UD GLM B W T fDelivered on 21 -11-2005) PCT DiUp Raosaheb Deshmukh, J. 1. This Judgment shaU dispose Cr. Appeal No. 1585/2000 "" - . filed by fhe appeBant Suresli PsaiAey, Cr. Appeal No. 1309/2000 ffled by fhe appeUant Birendra Masih, Cr. Appeal No. 1326/2000 filed by the appellaats Rajesh & ofhers and Cr. Appeal No. 1402/2000 filed by the appellant Sirajuddm. s1:?sstiia The aboveiaentioned appeUauts beiag aggrieved by ttie judginent dated 08-05-2000 deUvered in Sessions Case No. 470/1993 by Sbli'; C.L.S.Tekam, Additional Sessions Judge, Suiajpur whereby the appeUaat Chliotu aUas Krishna was convicted under Section-147 & 302 of the I.P.C. and sentenced to rigorous imprisoument for 1 year under Section-147 ofthe I.P.C. and to imprisoument for life & fine of Rs.1,000/- under Section-302 of the I.P.C. and ui default -to iindei^o additipnal rigorous miprisoiunent for 5 months. The appeUauts Rajesh, Suresh, Birendra Masih aud Sirajuddia were also convicted under Scction-147 of the I.P.C. and Section-302 read wifh Section-149 of flie I.P.C. and were sentenced to rigorous imprisoninent for 1 year under Section-147 of the I.P.C. and to life imprisoninent aad finc of Rs. 1.000f each under Section-302 read wifh Section-149 of the I.P.C. aad in default of payment of fine to undergo additional rigorous imprisoiunent for 5 inonths. 3. Briefly stated ftie prosecution stoiy is fhat the deceased Lalchand owned fhe house aad badi in ViUage- Mahadev para, Keshav Nagar, Vishraxapur, District- Sarguja which had a fencing tied on wooden poles. On 18-03-1992 at about 11 P.M., the appeUants were uprooting fhe wopden poles froin the badi of Lalchand for bunuiig ia fhe HoU fire. The appeUant Chhotu had an iron rod, fhe appeUaut Suresh was canyiag a knife smd fhe reiuamiug appellants were carryiitg lafhies. Bs';tSg£:-tyisjs Sabinafh Ram FW-1 younger brofher of Lalchand prevented fhe appeUants fix>in uprootmg the woodeu poles. The appeUaat Chhotu @ Krishna caught hoM of the neck of Sabinafh Ram PW-1 who shouted. Hearing the shouts Bajari Bai F[W-3 along wifh her ttusband Lalchand came to fhe place of occurrence. When Lalchand atteiupted to Uberate Sabinath Ram PW-1, the appeBaat Bircndra Masih aad Rajesh caught hold of Lalchaxid. Birendra pushed Bajari Bai PW-3 who feU down. On this, the appeUant Chliotu @ Krishna assaulted Lalcharid from behjnd on fhe head by aa iron aagle rod. AU fhe appeUants ran away thereafter. fss'ssai 4. Sabinath PW-1 aad Bajari Bai'PW-3 brought Lalchand hom.e. Kameel Beck PW-2 who saw fhe occurrence informed the poUce which arrived at the place of occurrence. Dehati Nalishi Ex.P-1 was lodged by Sabiuath Rani PW-1. An offence under Section-147, 149 aud 307 of the I.P.C. was registered at PoUce Station-Jay Nagar, vide Ex.P-l(A), Sabinath Ram PW-1 got Lalchaad aduutted in fhe Regional Hospital, Vishrampur. Dr. D.K.Patra who examuied Lalchand found an iacised wound over scalp size 3 W x W. There was no bleediag froni the nose and ears. Lalchaad was vomitting. Lalchand-succumbed to fhe iajuiy ixi eariy hours of 19-03-1992. Sub Inspector Dhruv Das Vaishnav PW-9 picpared iaquest vide Ex.P- 8 aad sent the dead body of Lalchand for postaiorteiu exainiuation. Dr. Kamlesh Kumar Tamrakar PW-7 conducted the postiaorteni examiaation ou Lalchand found an abrasion over right ear lobules size 1 % x !/2 cin reddish ia colour and one contusion over ri^ht teinpero parietal region wifh stitched iajuiy transversely placed size 17 x 10 x5 cm.. On renioving stitches he found fhat fhe injuiy which was ~a lacerated wound was scalp deep. There was a Imear fi-acture of right tenipero parietal bone traasversely placed 10 cin ia length. Anterior to this fi-actiire aaother linear fi-acture of similar Bone was present, size 4 cm. ia length. Extra dural haeinatoma was present underiyuig the nijury. Dr. TaniTakar opiued that fhe aboveinentioned fi-acture was caused by hard and bluat object and was dangerous to life. In his opiaion cause ofdeath was coina due to head uijury. On 21-03- 1992, one iron rod size 1'7 Yz in lengfh aad 4 Inches ia circumference was seized froia the appeUant Chhotu @ Krishna vide Ex.P-5. Spot luap was prepared by Patwari Mohd. Israel PW-8 vide Ex. P-14 which showed that fhe place of occurrence -was fhe badi of KgaaEel Beck PW-2. Afier completion of iavest^ation, - the appeUauts were prosecuted for ofFence under Section- 147, 302 and also under Section-302 read wifh Section-149oftfae I.P.C. { The appellants abjured the guilt, pleadcd innocence and led no evidence iu defence. The prosecution examiued as many as 11 witnesses. The trial Judge relying upon the evidence led by the prosecution convicted and sentenced the appeUants as shown above in para-1. 6. Shri Surendra Siagh. leamed seiiior counsel for the appeUants has argued fhat fhe evidence led by the prosecution fails to establish fhe charge under Scction- 147 aud Section-302 read with Section-149 ofthe I.P.C. ^auist ftie appeUaats Suresh, Birendra, Rajesh aud Sirajuddin siiice there was no evidence on record to estabUsh coiiuaon intention to cause the death of Lalchand for fhese appeUaats who had no niotive therefor. The evidence of Sabinafh Ram PW-1 that !"i •^s^is feii. is!r.^tis:te Lalchaad was held by Birendra and Rajesh was nothing but improveiaent in tbe prosecution case aad could not be reUed on since it did not Gnd pla.ee ia fhe F.I.R. Ex.P-1 todged by Sabinath Ram PW-1. It was nest contended that Kameel Beck PW-2 did not see aay iron angle rod in fhe haad of appeUant Ctdiotu @ Krishna. Phalianus Minj PW-5, au eye witness did not ff- depose that the appellant-'" Chliotu @ Krishna had assaulted Lalchand by a rod. Anuit PW-6 did not support fhe prosecution stoiy and was dcclared hostile. It was argued that the testimony of Phalianus Miaj PW- 5 showed fhat fhere was a scuffle which revealcd that the iacident had occurTed upon a.sudden fight. So far as fhe assault m.ade by the' appeUaat Chliotu '@~ Krishna by an Iroa augle rod on Lalchand was concemed it was contended that the appeUant Chhotu was atleged to have caused oiity a pingle injuiy on the head of Lalchaad. ReUaace was p^ced in tfae case of Stette of Orissa Vs. Bhtybem. Btirik reported tn A.I.R.-1987-SC-126S, ia the case of TnaatiSva. Vs. State of Teaidl JVadu reported in A.I.R.-2005-SC- 1142, in the case of BtawUram Vs. State of M.P. reported ia J.L.J.-2005 Volume-I-263 and it was argued that the offence if any conunitted by the appeUant Chhotu @ Krishaa did not travel beyond Section-304 Part-II offhe I.P.C. It was also contended that conviction of fhe appeUants Suresh, Birendra, Rajesh aud Sirajuddiu under Section-302 read with Section-149 offhe I.P.C. and also under Section-147 of fhe I.P.C. was could not be sustained. Reliaace was placed in the case ofDhfirtim. Pal & others Vs, State <»££taQ(ana_reportedm A.I.R.-1978-SC-1492, Puran Vs. State ofRafstttem. reported m A.I.R.-1976-SC-912, Ktouoeirlal & others Vs. Stttte of ISvwUiya Prwdesh reported in Cr.L.J.-2003-62, JtamJMtes Stnyh twd iKS — ? -& ::'-i^.-^s. p'iKi»a othcrs 7s. State pffithar reportcd in A.I.R.-1989-SC- 1S93 aad Shcdkh Ntibeih Shedkh Sdhu Musalnuw. ond others Vs. State of Jllahurtishtra reported iu A.I.R.-1993-SC-169. On the other hand, Shri U.N.S.Deo, learaed Govt. Advocate placed reliance in the case of Umesh Sinah^£^^swther_ys, SWtx of Sihar_reported in SCC-2000 (6)-89, Ranueshwar Dtmed 8» others Vs. State of Madhsia. PraAesh reported m AJ.R.-2002-SC-754 and Sheo Mahadeo SSiwh Vs. Stdte of Bihcu-leported m 1970-SCC(3^46 aad contended that ia fhe facts and circum.stances of the case siace the appeUants had gone 'to the place of occurrence to setfle the score that fhe deceased upoo a previous enrnily it was not necessaiy for fhe prosecution to piove specific overt acts on part of all fhe members of ualawful assembly. Reliance was also placed Mtnshi Preisad Vs. State ftf Blhar reported in SCC lG-ImiaaD-2002-178 and Rmfl Kumar Vs, State of Pwi/ab reported in Ctiminal Law Journal-SC- 2005-1743 wtule ai^uiag ia support oftfae judgment of the tdal Court. Learaed counsel for the appeUant also placed reliauce ia fhe case of K. JRamufcrtehnan Unnlthan Vs. State o/Keralaieported ia A.I.R.-1999- SC-1428,M«artta Thumfcan JVannAtar Vs. State of JKerala reported m A.I.R.-19&7-SC-687.ShttIa Prcisttd (% 5<d»a ys. Sttate of Vttar Pradesh reported m A.I.R.-1994-SC-1643 aad GuUai Hussala Vs. State ofU.P. reported in A.I.R.-1992-SC-2027 while arguing that the~ offence if any committed by the appeUant Chhotu @ Krishna did not travel beyond Section-304 Part-IIoftheI.P.C. 7 We have heard rival contentions aad have also perused fhe record. Sabinafh Ram PW-1 is the person who had •n ^•^. first reached fhe place of occurrence and saw that the appeUants were uprootuig fhe wooden poles fi-oin their fcadi'. His testunony that fhe appeUant Chhotu @ Krishna caught hold of his neck whereupon tiying to liberate himself he shouted, faUs to iaspire confidence since this does not find place in the FJ.R. Ex.P-1 lodged by him. It also does not find place ia his stateiuent recorded it4der Section-161 of the Cr.P.C. Ex. D-1. No such slateinent was made by Kameel Beck PW-2, Phalianus Minj PW-5 and Amrit PW-6 who were examined by the prosecution as eye-witnesses. Bajari Bai PW-3, wife of Lalchand has stated that the appeUaut Chhotu had pressed the throat of Sabinath Ram PW-1 but has adinitted-an cross-examination that ia. her stateinent recorded under Section-161 of fhe Cr.P.C,, she did not state fheaboveineiitioned fact, No iajuiy whatsoever was fouiid on Sabiuath Ram PW-1, So far as the testunony of Sabiaath Ram PW-1 that Birendra pushed Bajari Bai PW-3 is concemed, it does not find corroboration from. Bajari Bai PW-3. No injury whatsoever was found on Bajari Bai. PhaUanus Mirij PW-5 has stated that on reaching the place of occurreiice he saw fhat a scuffle was goiag ou but did not speci&caUy attribute any overt act to auy appeUaut. Amrit PW-6 has also not supported the prosecution version aad was declared hostile. In view of tjie omission in the F.I.R, lodged by Sabinath PW-1 aad also in the stateinent of Sabinafh Ram PW-1 aad Bajari Bai PW-3 recorded under Section-161 of the Cr.P.C., the overt acts attributed to the appellaats Suresh, Birendra, Rajesh and Sirajuddm. for fhe first tmie ia evidence before the triat Court are nothiag but unproveiaent in the prosecution stoiy and caanot be reUed on. If the appeUaats Suresh, Birendra, Rajesh (g) ^.^^ :1^ and Sn-ajuddui had assaulted Lalchand, Sabinafh Ram PW-1 aad Bajari Bai FW-3 by fists or kicks, at least soine such iajurics would bave been fouad on their person. Oinissions in (he F.I.R. lodged by Sabinath Ram PW-1 and the statements recorded tinder Section- 161 of the Cr.P.C. of Sabinath Ram PW-1, Ex.D-1, Bajari Bai PW-3, Ex.D-3 clearly renders fheir testimony fhat fhe appeUants Suresh, Birendra, Rajesh aad Sirajuddin had committed' aay overt act duriag the assaiilt raade by the appeUaut Chhotu @ Krishna on Lalchaad by an iron aagle rod, unworthy ofcredit. it:i;;.;';s>;f....;>. 9. Dr. D.K. Patra who had examined Lalchaud on 19-03- 1992 had foimd only a single incised woimd over scalp of Lalchand was not exanuiied by the prosecution. The iajuiy report of Dr. D.K. Patra was proved by Dr. Ramcsh Patnaik PW-8. The mjitay report Ex. P-15 shows that besides an iacised woiind over scalp size 3 W x 1/2', there was no other injiiry on the person of Lalchaad. It also shows that there was no bleediag fiTOin nose and ears. Dr. Kamlesh Kumar Tamrakar PW- 7 who conducted fhe postmortein on Lalchand found that the injuiy sustauied by Lalchand was a lacerated wound aad not an iucised wound on the right teinpero parietal region. No bleeding was present *&oiu fhe wound which reflects the iiuld fowe wifh which the injuiy was caused. 10. Having considered fhe evideace ted by the prosecution ia its entirety aad also the rival contentions, we are of the considered opuuon that tbe evidence of Sabinafh Ram PW-1, Bajari Bai PW-3, Dr. Ramesh Patoaik FW-8 aad Dr. Kamlesh Kumar Taoirakar PW-7 oiily established that the appeBant Chliotu @ Krishna had dealt a single blow by an iron angle rod on fhe skull of 9 :?1^:,^^:^ '^^'li^:")^ a^i |..|.,!;;;U.;,|| ^' Lalchand. No other.injury on Lalchand was caused either by Chliotu or by the other appeUants Suresh, Birendra, Rajesh aad Su-ajuddin. The testimony of Sabmath Ram PW-1 aad Bajari Bai PW-3 attributing overt acts to these •co-appeUants fails to iaspire confidence and is whoUy unworthy of credit in view of the onussions in the F.I.R, as also in fheir stateinent recorded under Section-X61 of the Cr.P.C. The testimony of Patwan Mohd. Israel PW-8 does not show that any wooden pofcs had actuaUy been removed fioxa fhe badi of Kacaeel Beck PW-2 by the appeUaats. Kameel Beck FW-2 has also not stated that any poles had been uprooted fi-oni tiis badi. No uprooted wooden poles were seized durfng iavestigation. Tfae testunon^.of Sabiaath Ram PW-1 also does not show that fhe appeUants had actuaUy uprooted any wooden poles fixini the badi. Siuce, the root cause for tbe occurrence < is itself shrouded iu inysteiy, we are of fhe considered opinion that the evidence led by the prosecution fails to estabUsh fhe coiupUcity of the appeUants Suresh, Birendra, Rajesh aad Sirajuddin in the assault by Chhotu @ Krishna on Lalchand. The evidence led by fhe prosecution does not prove that fhe appeBauts Suresh, Birendra, Rajesh and Sirajuddin had fbnned an unlawfal assembly with Chhotu aad shared cominon ititention vrifh Clthotu in the assault on Lalchand. There is absolutely nothing on record to substaatiate the inotive of fhe appeUants to cause the death of Lalchaad. Considering the fact that after the single blow by aa iron angle rod dealt by the appeUaat Chhotu on Lalchaad, no other iajury was caused on Lalcband either by the Chhotu or by any of the appeUauts, we are of fhe considered opinion tbat the prosecution has failed to prove that fhe appeUants had formed an unlawful assembly with the object ofcausiag ISi .i^- 10 "•••"^Bs^^; the deafh of Lalchand and in furtherance of this coininon object of the asseinbly, the appeBants Suresh, Birendra, Rajesh aud Sirajuddia had done any overt act to accoiiipUsh the comiuon object of the asseinbty. We are, therefore, of the considered opuiion fhat the offence uiider Section-147 aad Section-302 read with Section-149 of th£ I.P.C. has not been established by the proseeutiou against, fhe appeUants Suresh, Birendra, Rajesh and Sirajuddin. S..i?ai,...,. B'WsSSseia 11. So far as the appeUaut Chliotu @ Krishna is concemed aB fhat einei^es froin the evidence of Sabiuath Ram PW-1 & Bajari. Bai PW-3 is that he had iaflicted a siagle blow by an iron angle rod ou. the Lalchaad without m.uch force. The inedical evidence does not show that there was bleediag fixiin fhe wound. The report of Dr. D.K.Patra Ex.P-15 shows th^t Lalchaad had no bleediug firom fhe ears and nose. While Dr. Patra has tnentioned fhat the injuiy was aa incised wound, Dr. Ramesh Pataaik PW-8 has in his report vide Ex. P-11 inentioned that it was a lacerated wound. It appears that fhe blow was iiot dealt with sufBcient force on the head of Lalchaad by fhe appeUant Chhotu @ Krishiia. The fact that no furfher injuiy was caused by the appeUant Chliotu also supports the view that the iatention to cause death of Lalchand was lackuig. In the case of Thcuig^aa Vs. Sttrte^ of TcunII JWndu reported ia A.I.R.-2005-SC-1142, the Apex Court has laid dpwn the criterion for fhe applicability of Section-300 ofI.P.C. The weapon used, size ofweapon, place of assault, facts leadiag to assault, part ofbody where iajuiy is inflicted are relevaat factors to be consideicd. Where the fatal blow was given to fhe deceased wifh a sinall stick iu a dimly Ut place, it was 11 ssyvj ^*H'j3 held fhat the case was covered by Section-304 Part-I of the I.P.C. and conviction was altered from Section-302 to Section-304 Part-T of fhe I.P.C. Applyiug the principles laid down by the Apex Court to the facts of fhe present case, we fiiid that fhe occurrence took place at about 11-P.M. As it appears froiu the evidence of PhaUaaus Minj PW-5 tb^ possibility that there was a scufBe between Sabinath Rani PW-1 & Lalchand aad the appeUants could not be ruled out. It appeara that during this period, the appellaat Chhotu @ Krishna struck wifh aa iron rod on the head of Lalchand oiily oace. No other iajiuy-was caused.Coiisidering the time ofoccurrcnce, the size ofthe wcapon aud the force wath which it was used, the fact that only a siagle blow was given, we are ofthe considered opiaion that the offence contmitted by fhe appeUaat Chliotu does not teavel bevond Section-304 Part-II ofthet.P.C. as mtention for causiag the death of Lalchand caiuiot be attributed to the appeHaat Chhotu @ Krishna. In the facts and circumstances of the case at the inost it can be said that by assaiUtmg Lalchand on fhe head by an iron aagle rod, the appeUaut Chliotu had fhe knowledge fhat the injury beiug caused on the vital part was Ukely to cause death. Therefore, fhe offence coinmitted by the appeUant Chhotu does not travel beyond Section-304 Part-IIoftheI.P.C. In the result, Cr.Appeal No. 1585/2000 filed by the appeUant Suresh Pandey, Cr. Appeal No. 1309/2000 ffled by the appellant Birendra Masih, Cr. Appeal No. 1326/2000 filed by fhe appeUaat Rajesh aad Gr. Appeal No. 1402/2000 filed by the appellant Sirajuddui are aUowed. The conviction ofthe appellants Suresh, Birendra, Rajesh and Sirajuddia under Section-147 & Section-302 rcad with Section-149 of a-ia ;-SWS 12 the I.P.C. and ftie sentences unposed thereunder are set aside. These abovementioned appeUaats are acquitted of the cfaai^es under Section-147 and Section-302 rcad wifh Section-149 of the I.P.C. So far as the Cr. Appeal No. 1326/2000 filed by the appellant Ctthotu @ Krishna is concemed, it is partly aUowed. The conviction of fhe appeUant Chhotu @ Krishna under Section-147 and Section-302 of the I.P.C. and the sentences imposed fhereuader are set aside. The appeUaat Chhotu alias Krishna is convicted uader Section-304 Part-II of the I.P.C. aad sentenced to r^orous uaprisoiuiient for 10 years. The appellant Chhotu is ia jail from 21-03-1992 to 02-05-1992-and thereafter 6-om 08-05-2008 to tffl date. Set ofiFunder Sectioa-428 o-f ~the Cr.P.C. for the period already luidergone by the appeUant in detention be given to fhe appeUant Chliotu @ Krisbna. '' Fakhruddin Judge Sd/- Dilip Raosaheb Deshmukh Judge ;3atish. V