^^^^:^^^^ ;'E^P^'^^'.../''A^::\.^ '•':'.' ^\.:;^;':1;;.' ^••'•'^^^Y^^''? '•• '.•':-:';;" ^^^•.-^^^^i^^^^^^^^ XI-HC—78 ^Tf^TF^ ^n^T^T^qtqR' '^; ^! ^ .^J ». ^-^ •^-<" ^ '3~^r ^i^i<n^, ^til-H^Ko, f^<ni^^< , , C-TA- ^ l^'J0^ ^^,^^/°2 ^l*«rtl <h*11<!h 200 0\ ^T^TT T^RR: (lic<il<si<^) ^^}^z. ^:mW^f^T3TT<?T ADpeiiant (In Jali) Respondent Ap.peii.ant (SnJair) Respondent. Apoei'ant ResDondent, Crimlnal A Vers Us Crimirl The State of Chhattisgarh, through the District Magistrate, Ralpur (CG). a) Aopeal No.29 of 2003 Verd Crlmml Ver; ^FPrfQT^ WT^f ^ fe%t ^T(?R ^^tim sn^T 3pea! No.1281of2002 Vivek Behara, son of Late Goverdhan Behara, aged about 28 years, resident of City Pandri Behra Cplony, Thana CIvil Line, Raipur (CG). Arshad Khan aiias Assu, S/'o Attauilah Khan, agsd about 22 vears, R/o Nurani Chowk Area, Nai Basli Rajataiab, PoSice Station CivlS Line, Raipur, Dastt. Raipur (CG). Ms The State of Chhattisgarh, through the District MagJstrate, Raipur (CG). a! Appeal No,235 of 2003 Blsmilia 8i, W/o Akbar A!i, aged 30 year, R/o Medical CoiSege Coiony, P:S. Ganj, Raipur, Chhattisgarh. us State of Chhattisgarh ^:-;:::,'^^'':^i:--. ^.:. "^.^^.•.i-;-. IC—78 SH^T ^T fqiich ?FHW TCTW ^TfeT ^rTT^I —Z "?^T T<ii^i<n^, ^Til^^Ko, f^<ni^< *11*1Cr<l (h*1ic»» "^.200 ^T^T T^W ('^lt^5^) Criminl Aopeliant (in Jail) • VersLis Respondent Hon'bSe Shri T.P. Sharma.J 22-7-2008 Ku. Sharmiia Singhai, 1281/2002& 235/2003. Shri Ashok Soni, & 326/2003. Shri Ashish ShukSa, Bsjpai; Dy Go'v-t. Advocate f< Ora! Judgment dictated! L.C. Bhadoo, J cM^(<n41i "wraf^ fe^ <F<it$i< ^3tfim3^T AND 1 Aopeal No.326 of 2003 V-- Sheikh Usman, S/o Sheikh Habib, aged about 20 years, R/'o Nai B&sti, Raja Talab, P.S. Civil Lines, Tahsit & District Raipur, Chhattisgarh. State of Chhattisgarh, through Police Station Civil Lines, Tahsil & District Raipur, Chhattisgarh. (Crimina! Appeais un{jer Section 374 (2) ofthe Cr.P.C.) Division Bench : Hon'ble Shri L.C. Bhadoo fil counsel for the appellants in Cr.A Nos. .4 coun^el for theappellants in Cr.A.Nos.2C/2003 4,ddt Pubtic Prosecutor with Shri Sudhir trtheState. lon dais. s :^H#^ iif^^ : v^^^^ °^.!v^????'s?'s®a^'s^^l^^^^i^^^^^®^^^^ ^^.^.^..^...^,,-:;^:; ',,. ,^ . . . ,. ./^ ^,•.•,.;. •.••••;::'" ,':..-'-^^.:, ,.,,,/ .. ,'. ;• •..;:•"'•.•"•'••—-.'..••"'• .^H^T ^FT ^icb 3TT^?T^TO ^HI^ / > ^ V. •^^^ -^m ^ XI-HC-<78;^-:"';;': . '^sr'<<i^i<ri<4, ^Ti1<y^i(o, (®idi^lj,< *ll*«tr(h+(l<h "^200? ^V^f TT5R7 (^li^^T) t^TWT ^f?^T 3T1^T -^ Criminal appeal No. 128 appeai ..No.29/2003 fited by A< N0,235/2003 fiied by Bismilla''E by Sheikh Usman are belng di ali these appeals are arising dated 28-11-2002 passed by Track Court), Raipur, in sessioi 1/2002 fiied by Vivek Behara, criminat i|shad Khan alias Assu, criminal appeai ^i'-'and criminal appeal No.326/2003 fiied ^posed of by this common.judgment, as but of same incident & same judgment the 8th Addltionai Sesssons Judge (Fast hs tnal No.279/2001. 2) The accused/appeilant questioning the legality & corr^c order of sentence dated 28-|1 Sessions Judge (Fast, Tra{ No.279/2001 whereby and v^i- Judge after hoiding accus4< commlsalon of offence under Code (for sho/t "the !PC"} ser|t and to underao Imprisonmentl persons name'y, Bismiiia Bi, hsve been convlcted under S^c instead of Section 307 read f. them has been sentenced to i| be.en convicted under Sectio|") cr»(<i(<n<fli^ITHcff ^ l^st <Pn<^K "^^iRm^TT^T \s have preferred these appeais |ctness of the judgment of conviction and 111-2002 passed by the 8th Additionai 'M Court), Raipur, in sessions tria! Ihereunder learned Additionai Sessions |d/appeJiant SheiRh Usman guilty for ESection 324 and 302©fthe Indian Pena! tenced him tQ undergo R.l. for 6 months for iife, respectively. Likewise, accused ^/ivek Behara & Arshad Khan aiias Assu •ction 324 read with Section 34 of the !PC vith.Section 149 of the IPC and each of indergo R.l. for 6 months. They have a!so 302 read with Sectlon 34 of the iPC ^••^..•^-? -^ .'••^^'??^^t^^^•^•- ^:.^Mif.-^y^^., •^^^•-^: N%^l^^:^^r.^^^^^^ XI-HC—78 -^ll^w ^^(\ 5^H\^ 75T '^NKrl'4, ^tll^^Ko, f®l<'11'(-)*j,< ^mcff<h*1|ch ^ 200 ^STT^T 'q^T (^<{^<s|<^T) i^nw^ftn ^R?T -^- instead of Section 302 reac to undergo imprisonment sentences shail run concuri Vlnay Behara @ Babla, Jy| & Guiam Navl Rizvi @ Bai; Sections 307 read with S^ the JPC. 3) Case of the proseci) some quarrei took place fc| on the ground of throwin| Sodqed in Poiice Station b| Ssvltrl & his son Shail^ reieased on bali, but Bisnt dire consequences. 4) On the fatefui d.ay Suresh Shrivastava along| Somebody cailed Suresh, was again asked to comf When Suresh went tovvarlds BismHla Bi were standing r| is Suresh. On that Jyot{ ct)i^(<vi^1i "w^if ^F 'f^zt <pii^i< '^3tfiw^?r vvith Section 149 ofthelPC and sentenced for iit'e. it was directed that bo^h the •entiy. The other 5 accused persons namely, 3ti Bharati, Rajesh Parate, Santosh Banjare »iu have been acquitted of the charge under stion 149 and 302 read with Section 149 of itlon, in brief, Is that on 13-4-2001 (Friday) etvveen Suresh Shrivastava and Bismlila Bi 3 garbage and report of that inddent was tf Bism'iSia Bi. Suresh Shrivastava, his wife ndra Shrivastava (since deceased) were liia Bi & Vivek Behara threatened them with i e. 15-4-2001 at about 10.30 in th6 night with hls family members was in his house. therefore, he came out ofthe house, then he towards the person who was cailing him. the galiery he saw that Vivek Behara & ^ear the staircase and Bismilia Bi said that he Bharati, Babla Behara (brother of Vivek), XI-HC—78 3i1^T ^RT f^'liab n^r sti^i^ Sfl^^t -<- ~5^ "41-41C1-4, ^9T)1'y41(o, fs|<ni-M^< H(*1<f11 «i*1|cb •^.200 3H^T ^(^V (^^^) IT^ITW ^Rfl^ 3TT^T -^ Santosh Bsnjare; Arshad @ Usman and Rajesh Parste| pushing him saying that "M^t which Sheikh Usman took OL|I ohest of Suresh Shrivastav^, hsnd. in thar. orocess the kni sustained injury; Seeina thaj Suresh cauaht hold of him Suresh nameiy., Sha'iendrg ^ Savitri came out ot' the hou| Save". Sheikh Usman att'ad^ v/ithan intention to cause hi4 iniurv on chest and feli down! the son & wife of Suresh, a^ a!so sustained injury. Hearin^ nameiy, Shiv Pratap Singhj came, seeing them Bismilia remalnlng persons fled avv^y complainant saw thst those Hero Honda Motorcyc'e and therefore, thst was left on th|e Scooter is MP-23/M8-1015: c»»i€i(<n<<i1^*ii^<rff'? fe^ <P'i^ci< ^stfOT^n^T Assu; Gutem Navi Rizvi @ Bablu, Sheikh started quarreiiing with Suresh, started ro Sale Ko Jaan Se Khatma Kar Do", on the knife from attire and attacked on the but somehow he was abie to hoid hls fe hit on the left side of the chest and he Arshad started quarrellinca with Suresh, |by neck. !n the meantime, the son of l.hrivastava (since deceased) and his wife se on hearing the cries of Suresh "Save |ked Shaiiendra with a knife on hjs chest death, as a resutt of v</hich he sustained Sheikh Usman again waved the knife on a result of whsch Savitri (wife of Suresh) the commotion, t.he people of the vicinity Shamser Odiya; Vikas Mitra & others ^i & Vivek Behara went to their house and from the scene of occurrence. The Ipersons f!ed on two Lunas and on one |6ne of their Scooter could not be started, scene. The registration number of the As the condition of Shaiiendra became * ^. XI-HC—78 ^T ^J<=h CT^T W^T^TW •3~oEf ^iqicnq^ ^tll^Ko, [^<^1<-1^< *11*<dl 5h*<l<h Wt 200 STf^T TT^T ( ^i^<^) ^HW^f^^TR^ precarious., therefore, he| Hospitat, but Shajiendra v^as urfJer urtder 5) The report of the ir|c Police Station Gan|, whidh commission of offence Section 149 ofthe !PC of Shaiiendra was sent fclv House Officer; Potice S( (Ex P'10) v/as prepared Shaiiendra after oiyJna ncll Shaitendra v/as sent f4 HospitaL Att.er postmort^ Ex.P^'36. Site p!an was pr| plec.es of the floor and th| under Ex P/5 Biood sN' Ex.P/6. Statements of ^ Shatruahan Prasad Chanii Suresh was sent for med| is Ex P/31. Savitri was where doctor examined Ex.P/32. Copy of the Firs Maglstrate, First C!ass, <=hi^f^41^ "Rnwff ^f f^x^ <P^^i< ^ 3tRR SH^T and his mother were taken to Mekahara declared brought dead. y -; ;ident was lodged by Suresh Shriva'otava in \A/as registered at Crime No.171/20f?"1 for Sectlons 147, 148, 307 & 302 read with Ex.P/35, The report regarding the death y the Medical Officer, Raipur to the Station ^ation Ganj, Raipur vide Ex.P/34. Inquest )y the Investigating Officer on the body of tice (Ex.P/9) to the witnesses. The body of oosTmortem exammation to MeKahara rn examinatlon doctor prepared report vide (spared under Ex.P/7. The blood spots, piain ^ broken pisces of the bangles were seized ined baniyan of Suresh was sejzed/under 1e witnesses were recorded. Haiks.Patvvari irakar prepared thesite pian under cx.P/16. |cal examination under Ex.P/29, injury report tent for medica! examinatlon under Ex.P/30 her and prepared the injury report vide •s}t Information Report was sent to the Judicia! ^aipur, vide Ex.P/26. The accused persons '^%;f^^^N?':'ii^ji^%^ ^;^&.^^%^.^i^?--S^£^'^^^^ ' '•;''''''^^'S^':¥t:^^% I^^J<ft*>"?^^ , XI-HC—78 <iNia^_^^. ??8H ^TI^T 9b*4|ct) •^/ ^-•^^ \, /- ^ ~s^ ^Nicn^, ^Til<4^<o, f^<ni^^< HrHCtT^^T^l ^ 200 ^?T TT^RF (^t^5^) I^TW^Efew^I —r^- were arrested snd whiie| memorandum under Ex.| memorandum under Ex.P/? under Ex.P/3. Hero Hond^ 6f accused Jyoti Luna wa^ seized at, the instance of s|( Scooter was seized from| Regarding the knife spot underEx.P/37 Doctor ga| sent for eyamination und| Science, Medicai Coilegej received. Snjury report Ex.P'39 6) After completion of Court of Judiciat oersons, vv'ho in turn Judge, Raipur.. from wherej the same cn trsnsfer for t.ri| 7) Sn order to estabiishi Drosecutlon examined 1! persons were recorded i chN[^1<l1r1 ^TTR^ff ^ f^S <P»1<^1< '^'3?Rm 37?^?r in Pollce custody accused Arsad gave .p/1 and accused Shiekh Usman gave '. At the instance of Arsad knife was seized was seized under Ex.P/4. At the instance selzed.ynder Ex.P/13. Another Luna was c|ccused Vinay Behara under Ex.P/14 Bajaj the place of occurrence under Ex.P/15. |on the T-shirt a query was sent to doctor /e GDinion under Ex.P/37-A. The knife was j^r Ex.P/38 to the Department of Forensic Raipur from where .report Ex.P/38-A was rectardlng accused Arsad was preparedunder |nvestigation, charge sheet was filed in the Magistr^te, First Class, Raipur, against 9 accused corhmltted the case to the Court of Sessions lAdditional Sessions Judge, Ra'ipur, received ihi, tthe charge agamst the accused persons the fe witnesses. Statements of the accused jnder Section 313 of the Code of Cnminal |^^^.^ ^^^••r^^ ^^/.^;,.^^;^.;^, '^^:Q^y • M; „ ^^;;^^^^^^^-:^.,^g^,,^^ 14 XI-HC—78 if??i ^T f<^i^ ^ 3TT^T s^^ict) ^' '3TST ^WW^, ytli'M^Ko, [otdl^l^ *ll*1dr <arKT^l -^200 ^TT^TT TT5R7 (^f^ST^T) '^RTTW Trt^Tf 3?TOI -s 'vvltji Procedure (for short 'the appearing against them. his wife used to quarrei effect was iodged in Polic there was quarrei near Behara saw the inodent quarrettinq she was not innocent and have beeh ir pr.P.C.') in which they denied the materiai ^ccused Bismilia Bi stated that Suresh and her. They used to beat her. Reportjothat ;^ Station Ganj, on third day of the incident tije tempie, therefore, she aiong witi^ Vivek t*v 4y standing in their staircase, but who^lvere t;nowing, She further stated that they are rrjpiicated in a faise case. 8) Learned Additional ^ respective parties, acquitt| four accused persons as a| 9) We have heard Ku. counse! sppeanng on Dv. Govt Advocate for th^ State Ft^. 10) At the outset, Ku. $' appeilants; have not di^t Shrivastava Moreover, claiming themseives to b^ Usrhan attacked deceasetJ result of which he sustairt< cM<<(<n<tiyi ^IHdt* ^* tS^ <f^^.« '^<3TRW^T^T Sessions Judge after hearing counset for the sd five accused persons whereas convicted forementioned. {Sharmiia Singhai & Shri Ashok Soni, learned be^jalf of the appeitants and Shri Sudhir Bajpai, >inqhai & Shri Soni, learned counsei for the iputed the homicidal death of Shaiiendra ^-14 Suresh Shrivastava and PW-"5 Savltri, the eyewitnesses, have stated that Sheikh Shaiiendra with a knife on his chest., as a ed vita) injury and he died on the way while i !• 1 XI-HC—78 'S'Sf ^WW^, ytli-H^Ko, ^dl'LI^< *11*1dl thHF^i '^200 sn^T-^wCrt^T) ^^f^N? ^n^T^rqNr -^ ^- \ ^RTTW^TfeT STT^T -c\- takina to the hospltai PV 16-4-2001 he was working of Demonstrator. On that postmortem. Doctor founij Shaslendra Shrivastaya: 1) A stab ii| of chesf lateraj (ij cm. bel4 notch. x 0.5 ch sharp pjl' 4th & 5f cm.) ar^d snteriorl present) ^-16 Dr. Uihas Gonade has stated that on |n the Medicai Hospitai, Raipur, on the post jay the body of Shailendra was brought for ^ the foilowing imuries on the body of 2) A stabl forearrrl and 3 (upper cm. a| orocest chl<l(cll41l 'RTH^ff ^f f5xst <p»1^1< '^'^rRm^iT^r tdsed wound present on left side 9.5 cm. beiow and 5 cm. left ipper end) and lower end in 11.5 w and 6 cm. teft iateral to sternal 'ransversety oblique size 2.5 cm. mediai end round lateral end erces condra! cartitage between then psricardium (2.5 cm. x 0.5 pierces right ventride through wai! oniy 500 cc. biood was in the left side of chest. inclsed wound present on right at radiai border 9.5 cm. beiow ;m. laterai to oiecranon process snd) and iower end present 11.5 id 4 cm. latera! to olecranon size 2.5 cm. x 0.5 cm. beveilng 14 XI-HC—78 ^TIST ^it^ri^ 3TT^?I 5b^l<=b T^ "4i^i<yi^, ^n1<-i^i(o, [si<ni-H^< *<I^C^T<h«41cb ^200 ;3TT^T TT5RR' (^G|f^<^r) ITRTWT^TT y^ .(„- (siope) upwardi plsrces muscie^ 3) An imp^ ieft eal 1 cmxtl 4) A graz^ 5 cm. 2.3cm.| 5) A tran^ shape iaterail^ Cause of deaih wa^ injury to heart. Injury N< nature to cause death and report ss Ex.P/36 11) !n vaew of the the death of Shaiiendra Slt ^!^f<n<i1i 'qm^jf "^ fsTslr <F»i^j< ^^rRmw^ |3resent on anterior side, directed and posteriorly dspth 7 cm. skin subcutaneous tissues and jict abrasion present 2 cm. below vertical, eliiptical shape size P.2cm; abrasion present on ieft forearm below oiecranon process slze |x0.5 cm, ^verse impact abrasion eltjptical t)resent on upper part of thigh Issze 1 cm. x 0.2cm. shocR and haemorrhage, as a resuit of stab .1 was sufficient in the ordinary course of death was homicidai in nature, Postmortem medi^ai and ocuSar evidence, it is estabiisi-ied that Irivastava was homiddal in nature. - , if f ,^'^ 'M'* t-^ 1 ^^^%tp^l'M^ ^^4:.^.^3^..i ...-. . ,.^^^''. .•.-• •• ; -,-?; '~/....'^..^.:. 11' ;;;,;,,^..;1"1, . ''^';'ll'Zi'/;l:' ^ ~ ^— i--'^—:- "::" i^^ |^,^jiB€s;!g%^^^^-;r^...^ .,.- 1;., ' • l-flC—78 • "J ; ., ^••/r;;''""' '.' : "3^ T^n^CT, ^Tll^^Ko, [^<y1l^^< 'Gi sr^gr ^T f^prw [^w ^^w 1 -<-^ WHCtl (b*11<»» "^200 3TT^?T'q^F (<1C(I^^) irRnw^f^^^i -\\- <bl^i<rl^1t1 TTW^if "^ fe^ Tf^?R ^3ffm3?n^i 12) As far as complicitv Usman in the crime in of the occused/appeiiant namsiy, Sheikh question is concerned, PVV-14 Suresh Shrivastava (fathsr of the| deceased) has categoricaiiy stated that hearing the.commotlon v/h^n his son Shaiiendra Shrivastava came on the spot, accused Shei'<h |Usman took out a knife from attire and attacked with the same on tl to attack this witness, but made by Sheikh Usman c\ iniuries. Sheikh Usman Shrivastava) with the knife ie chest of Shaiiendra. He aiso attempted ^e saved himself. On account of assault |n the chest of Shaiiendra he susfained |lso assaulted Savitri (wife of Suresh on her hand, as.a result of which she sustained injury. PVV-14 SL|resh Shrivastava also sustained injury on lUsman & his son died on account of injury the chest infl'cted 'oy Sheikh sustalned by him with a kni Usman. The evidence of P fe on account of attack made by Sheikh /V-14 Suresh Shrivastava is CQrroborated by the evidence of PW-1 $ Savitri (wife of^Suresh & mother of Shaiiendra), who was siso 4n the spot and in the quarrel injury was also inflJcted to her by accu^ed Sheikh Usman with a knife, which is estabjished by the injury retjorts i.e. Ex.P/31 In respect of Suresh & Ev P/32 in respect of Savit|ri. Therefore, both oi therr-, are injured eyewitnesses. Immediatety tjie report-(Ex P/">! was lodged by Suresh Shrivastava in whlch he c^tegoricaiiy :. ;:ed that Sheikh Usman —.f^:-.,^^^- ^I-HC—78 311 ^Tt^TW 3Tf^T 5l>*llcr> 'S'^r ^i^Kn^, ^nl^^Ko, [^<ni^y *11*«rl( tll^lctl "^..200 ^?TXR^ ('<i2rf3SR^) TCTW^rf^TS^T ^ attacked the deceased wi< accused Sheikh Usman catefc to Arshad @ Assu afterl memorandum vide Ex P/1 td by Sheikh Usman and the seized under Ex P/3. Ooctot be caused by the knife ip qi medical and circumstantial wss made bv Sheikh Usmanl (vitat part of the body) with which Shailendra SSirivastav; 13) PW-16Dr'J!hasGons on account of injury lnf'!cte{ shock. Injury No.1 was suff cause death He furthe.' stat sando baniyan of the deceas 14) In cross-examination been able to eijcit anv their^iK^plence or which c; ^. witnesses on the spot. Thf i respect of attack made by ac ^Nfo^il^ ^i^<A*^ fsrct <(^i*^i< ^ 3rJRW SrH^T h knife. tn the memorandum (Ex.P/2) loricaily stated that he had given the'Knife the incident. Arshad @ Assu gave the effect that the knife was given to h|m same vvas kept in house. The knife was has opined in his report that injury could testion. Therefore, from the above ocular, ^vidence, it is established that the attack |with a knlfe (a'eadly vveapon) on the chest itention to cause his death, as a resutt of died spontaneousty. |de has stated that there was a stab injury, on the heart there was haemorrhage & jcient in the ordinary course of nsture to •^d thst even there was a cut injury on/the bd circurlnstances \f the eyewitnesses; the defence h'as not which discredit the testimony of ^ate doubt about the presence of the evidence of these two eyewitnesses in )used Sheikh Usman is clear and cogent. L&. 12i 14 ^;€^ CI-HC^78 ,3^?^I Fqiw OT^T ^I$WW -t~ BNNI \ ^.-^! '3TST r^ll<<l<n^ ^Tl1<4<l<o, [®l<fll^^< *11*1dl ^HIch "^.200 sn^T'^wCi^i^^i) ^<nw ^ftn 3^?i -— (3> 15) in view of the above d complicity of accused Sheik| intention to cause his deat^ <*»l^i<rl41y1"RTWff ^* fe^ <f^tSci< ^3rifim3TT^?T |3ijlar, medical and cjrcumstantiaf evidence. ^ Usman in attacking the deceased with an is estabiished beyond reasonabte doubt and to that extent Vv/e do jnot find any illegality or infirmity in the judgment of the tria) Court. | 16) As far ss complicity of the accused persons namely, Vivek Behara & Bismilta Bi is conc^rned, perusal of the F)R (Ex P/35), which was lodged by PW-14 Sur^sh Shriavastva (father of the deceased), reveats that when he aiong ^/jth his famiiy members was in the house BJsmilia Bi were standinq ne| Suresh. thereafter Jvoti 3lr somebody caijed hlm out-of fie house and he saw that Vivek Behara & sr the staircase, Bi'smilla Bi said that he is larati, Babla Behara, Santosh Banjare, Arshad @ Assu, Guiam Nav| Rizvi @ Bablu, Sheikh Usman & Rajesh Parate came and sttacked hltn. Perusal of FIR shows that no overt act has 'oeen attributed in respe^t of Vivek Behara & Bismill? Bi nor they sileged to have participated i{i the attack. In the statements of Suresh Shrivastavs & Savitri recor^ed under Section 161 of the Cr.P.C. (Exs.D/1 & D/2), there is n| accused persons participat^ Shailendra. Of course, ir 3 material Vi/hicb shows that these two d in the attack made on Suresh or is ^vi the Court evidence, PW-14 Suresh Shrivastva has improved his ^vidence and has stated that Bismiiia Bi & Vivek Behara caught hoid c(f his wife & son Shailendra and they 14 r ?HC—78 3^31 ^T f^4i<=h 3TT^?I9TRW 'T^sf T^i<4i<n^, y-dl^Ko, fci<vii<4lj>< TTTO?n"5F^raF""""""""""""""""""""""""""^.200 W^?I 'q^? (^i^^) ireTTW^rf^cT ^TT^T -\v\- knifelfrom attacked Shailendra, but thj mentioned bv Suresh in hisl statement recorded under S{ therefore, this improvementl .record, which estabiishes th4 sharing common intention Shailendra. Even as per t| Sheikh Usman took- the There is nothing on record had knowiedae that Sheikh fsct that there was quarrel the ground of throv>/ing g< prosecution has not been al( estsbiishes the common int^ Sheikh Usman to cause under Sections 302/34 & 3; finding of the tria! Court to is not based on any legalty 17) As far as compiicity Assu is concerned, against when Suresh came out, Jvo' Ars'nad @) Assu, Guiam Na\ cr»N(<n<iliT^^i ^T 'feTst <F<i^i< ^3lf?yH3?n^T |s aspect of the evidence has not been promptly lodged FIR (Ex.P/35) or in his iction 161 of the Cr.P.C. on th^sxt day, cannot be relled. There is nothing on fact that Vivek Behara & Bismili? Bi were Iwith She'ikh Usman to cause death of the evjdence, it has come on record that his attire and attacked the deceassd. which shows that Vivek Behara & Bismilla Bi jUsman was carrying knife. It is admitted b^tween the two groyps on a petty matter on rbage. Therefore, from any angte the »le to bring any material on record, which t^ntion of Vivek Behara & Bismilta Bi with In the circumstances, the conviction 34/34 of the IPC cannot be sustained snd extent cannot be sustained, as ti-'e same a|jmissible ctinching evidence, defeth th^t ()f the accused namely, Arshad Khan @ him aiso the evidence is to the-effect that Bharati; Sabia Behara, Santosh Banjare, /ji Rszvi @ Bablu, Sheikh Usman & Rajesh ^ t ^"K].-HC—78 '3^T ^|'4|<n^, ^^^< Ko, [sl^l^y ^. ^THClT ^lNKh ^.200 31T^?I ^^K ( y<(^<i^) i'^T ^W^ ^^} »»^I<»» ^ ^ ^ ^ °^- Parate started pushing and tjieating Suresh. As far as the injury inflicted to Shailendra .is concerned,| who took the knife from attir^ that Arshsd Khan was havid was carrying knife. Simpl4 Suresh, for that also there having common intention w\ earlier, there was a quarrel Sheikh Usman all of suddenl Shailendra, Savitri & Sures^ convicting Arshad under Seij be sustained. 18) IntheresuSt: > Criminai Appeal andthesame is! > Crimina! Appea Criminai Appea Crimjnal AoDea aiiowed. Convk under Sections Section 34 of acquitted of the surrender befor' Sd/- L.C. Bhadoo Judge <t»l^fo^'1^l^<rff^ fe^ <PIl^SfK ifr^jfma^^r the same is attributed to Sheikh Usman and sttacked. There is nothing on record g RnowSedge that accused Sheikh Usman knife injuries were caused to Savitri & is no material to show that Arshad was |h Sheikh Usman. As hasbeen mentioned |on a petty matter and in the said quarrel Itook the knife from the attire and attacked Therefore, the finding of the tria! Court btions 302/34 & 324/34 of the IPC cannot |No.326/2003 filed by Sheikh Usman fails Idismissed. No.1281/2002 fited by Vivek Behara, No.29/2003 fiied by Arshad Khan & No235/2003 filed by Bismitta 81 sre jfjon & sentences imposed upon them ^02 read with Section 34 & 324 read wlth |the iPC are set aside and they are ^aid charges. St is stated that they are on ba'ii, their baii b^nds are discharged and they need not the trial Court. Sd/- T.P. Sharma Judge