XLHc—22 mam—m. mm. WW am m Wm...%i 200 mg Wan W W maf‘é'a Wmmw WWW W émmm m a g r. Vipin Sahu, who was holding sword, sfar'fed abusing him wi’rh The fiHhy lcmguage and Threafened The complainanf Thaf he will murder him. AT ’rha’r Time, appellanf Pin‘ru @ Nepali @ Balbahadur Thapa assaul‘r ad ’rhe complainan‘r on his moufh wi‘rh fisf and Thereaffer' appel an? Vipin sfar‘fed assaul’ring him with swor'd. He somehow could ward-off The assauH’ wi’rh ’rhe help of his hands. Report of the incidenf was lodged in The Pblice Ou’rpos’r Chikli by complai1am‘ Basan‘r Rao himself on The same day abouT 5 pasT mid nghT vide Ex.P-19. He was senT for' medical examinaTion To The DisTricT HospiTal, Rajnandgaon h Where Dr. Y.K. Tiwari (PW-6) examined him and gave his reporT of EXP-11. Reply To Th'e query is EXP—12. Vide Ex.P-13 The docTor‘ referred The comp ainanT for X-ray examinaTion. On The memorandum (EXP—17) of ‘Jccused Vipin Sahu weapon of offence i.e. sword was Taken inTo p assession vide Ex.P—18. 3. AfTer compleTing invesTi aTion charge sheeT was filed in The courT of Chief Judicial gisTraTe, Rajnandgaon and The same was commiTTed To The Co rT of Special Judge for Trial. During Trial, The prosecuTion examined nine wiTnesses in all. ‘ ThereafTer, sTaTemenT o accused persons was recorded in which They denied The ci cumsTances appearing againsT him in No charge under SecTion’ £25 of The Arms AcT has been framed which creaTes doubT regarding recovery of sword from The appellanT Vipin Sahu. 5. Learned counsel for app llanT PinToo @ Nepali @ Balbahadur Thapa submiTs ThaT no veracT has been aTTribuTed To This appellanT excepT ThaT The complainanT has alleged ThaT he gave one‘blow wiTh The fisT n his mouTh. However, no grievous injury was caused To The complainanT on accounT of said blow. There is no evidence avail ble on record ThaT This appellanT was having common inTenTio To murder The complainam I XEHC-22 Ms“ WW. WW. W am W WW OE 200 mm Wm mu% mmmm WW1?WW $ 31W W The prosecution case and pleaded innocence & false implica’rion. However, learned Special Judge affer' hearing fhe counsel for fhe respective par‘ries convic‘l’ed and senfenced The appellants as mem‘ioned in Para 1 of lhis judgment 4. Learned counsel for The appellam‘ Vipin Kumar Sahu submiTs fha‘r convic’rion of ”the apaellam‘ is based on The s’rafemenf of complainam‘ Basanf Rao, as fhe ofher independenf wifnesses have no’r ‘rhe supporfed ‘rhe case of The prosecufion and fhey have Turned hosTiIe. He furTher submiTs ThaT The recovery of sword on The memorandum of This appellanT has noT been proved, as The wiTnesses of memorandum and seizure have Turned hosTiIe. Xf-HC-22 ‘ v 1 Y Wm f‘aaianm ma%?f Wmmafm , {» wwwffw é: W m m A Therefore, his convicfion ifh The aid of Secfion 34 of fhe IPC for The aforesaid offence cannoT be susToined. . Learned counsel for The ppellanT Kumar Singh Thakur submiTs ThaT according To The cos of The prosecuTion, The place where ‘The incidenT occurred is n open place, There is no allegaTion \ ThaT This appellanT parTic‘paTed in The incidenT in any manner excepT ThaT he said To b presenT aT The Time of incidenT.’ He furTher submiTs ThaT in a omnibus manner The complainanT has sTaTed ThaT The accused ersons came aT The place of incidenT, however, The name of Thi appeIIanT has noT been menTioned by The complainanT. Even The e is no alIegaTion by The complainanT in The FIR ThaT This a'p eilanT abuses The complainanT wiTh filThy language or ThreaTe ed him ThaT he will be Taking his life. . On The oTher hand, learn d Panel Lawyer for The STaTe argued ThaT There is specific alle aTion againsT The appellanT Vipin Sahu by The complainanT ThaT e along wiTh oTher accused persons came aT The place of occu rence armed wiTh sword, firsTly They abused him by using filTh language and ThereafTer ThreaTened him wiTh life. Accused N pali assaulTed him firsT by fisT over his mouTh and ThereafTe , accused Vipin assaulTed him wiTh sword which he Tried To op by his hand, as a resulT of which §’‘ N }Ea XH—IC-22 he susTained numerous injuries over his head, back and o’rher parfs of The body. Version of The compiainan‘r is duly corrobora’red by ’rhe sTahamenT of Dr'. Y.K. Tiwari (PW-6), who examined him on The daTe of inciden’r ifseh‘ and has poin’red ou’r in all 14 injuries over his person, as described in injury reporf Ex.P—11. So far as fhe involvemem‘ of ofher accused persons is concerned, if has been argued ’rhaf ’rhe complainan’r has categorically sfa’red fha’r all The Three accused persons came ’rogefher, accused Nepali opened The assaulT by assaulTing The complainan’r by fisT on his mouTh and ThereafTer accused Vipin assauITed The complainanT wiTh sword. The facT ThaT accused Vipin was armed wiTh sword and all The Three came TogeTher and sTarTed abusing and ass ulTing The vicTim, esTablishes Their common inTenTion. The na ure of injuries has been described by The docTor as grievous a d sufficienT To cause deaTh in The ordinary course of naTure and Therefore, The convicTion of The appellanTs under The afore aid secTions is jusT and proper. 8. I have heard learned coun e| for The parTies. 9. ExcepT complainanT .BasanT Rao, all oTher wiTnesses examined by ‘ The prosecuTion have Tur ed hosTile, They have noT supporTed persons came fhere, The saying ThaT now-a-days h when he pleaded ThaT his sTar'Ted abusing him in y were holding sword, They sTarTed s broTher shows-off hooliganism and broTher resides aloof from him, They The name of his moTher 6i sisTer. Accused Vipin abused him in The name of his moTher (Si sisTer' and ThreaTened him ThaT he shall murder him'Today. Accused Nepali gave a fisT blow n his mouTh and ThereafTer' accused Vipin sTarTed assaulTing m wiTh sword. He sTopped The blow of sword wiTh his hand a resulT of which he susTained injuries on his hands and forehea . He susTained injuries on his back 6i righT leg and as a resulT f These injuries he fell on The ground and blood sfarTed oozing He lodged The reporT in’The police sfaTion. He was senT for dical examinaTion. He was admiTTed l in The hospifal for a peri d of 23 days. The defence has Tried To impeach The credibiliTy of This wifness by suggesTing Thaf he ‘ was convicTed under Sec ion 302‘ of The IPC and ThaT he is engaged in The illegal Tr de of liquor. He sTouTIy denied The i s ' e mam—am Wm WHY?! mwmw mmiiwm A a?W m ’rhe case of the prosecufion and fhe convic’rion of The appelkmfs is based on The s’ratemem of complainam‘ Basanf Rao (PW—1). 10. Basanf Rao (PW-1) has s1a1’ed Thcrr on fhe da’re of incidenf of about 8.00 p.m. he was si‘r‘l‘ing near ’rhe well, ’rhe accused XI‘-HC—22 mm mmw maFw suggesfion ’rhaf he was s f‘h'ng a’r ’rhe place of incidem‘ armed wi’rh sword for fhe accused person and when he was engaged in The scuffle wi’rh The accused persons, he fell on fhe screen of well as a resul’r of which 1e susfuined The injuries. He has also denied 1'he suggesfion rhm‘ aTTack was iniTiaTed by him. However, in ’rhe cross—exumina’rion on behalf of accused Pinfoo .@ Nepali he has admi‘H’ed fhaf because of blow over his moufh his TooTh was no‘l’ broken ror his Iips were cu’r. 11. Dr. Y.K. Tiwari (PW—6) has proved ’rhe injury repor’r of Ex.P—11, query reporf of EXP-12, X—ray report of EXP-14 as also The opinion of EXP-15 abouf he weapon of offence i.e. sword. In The cross-examina’rion, fh docfor has described all fhe injuries sus’rained by fhe vicfim B sanf Rao and also s’ra’red fhaf he had opined in reply to fhe q ery fha‘l injuries were sufficien’r ’ro cause death in The ordina course of nature. 12. Thus, from fhe sfa’remem‘ of complainant Basant Rao (PW—1) and Dr. Y.K. Tiwari (PW-6) it s established that injuries caused to the complainant Basant R was sufficient to cause death in the ordinary course of nature. 13. So far as the involvement of the appellants in crime in question is concerned, after goi g through the statement of the complainam‘ if appears appellanT Kumar Singh W ThaT There is no allegaTion againsT 'hakur' Tha’r he parficipa'l'ed in fhe bea'l'ing or in any manner he abused or 'rhr'ea‘rened The complainam‘ a’r The fime ow n’r has stated Thaf he iden’rifies ’rhe accused persons and ’rhey came a‘l' about 8.00 pm. when he was sif’ring near fhe well. O‘rh r allegafions are againsT The appellanf Vipin Sahu. Therefore, o The basis of evidence of PW—1 BasanT Sahu, appellant Kumar ‘ incident The only allega’rion againsf ' him is fhaT the complain ingh Thakur could noT have been convicTed wiTh The aid of ecTion 34 of The IPC. 14.50 far as The involvem concerned, The complai accused persons came The wiTh filThy language and ‘ him and ThereafTer accusi nT of appellanT PinToo @ Nepali is nT has caTegorically sTaTed ThaT ~e, appellanT Vipin sTarTed abusing him 'hreaTened him ThaT he shall murder :d Nepali gave fisT blow on his mouTh and only afTer The assaulT of Nepali, accused Vipin inflicTed numerous sword blows 0i complainanT has denied Tl appellanT ThaT Nepali was oThers, and he did no? par accused Nepali also figur i (er The person of complainant The 1e suggesTion given on behalf of This simply waTching The incidenT, as of 'TicipaTe in TheincidenT. The name of es in The FIR wherein iT has been l l l XI-HC—22 '1e f. mentioned ’rhm‘ he assauHJed ”the complainant wi‘rh The fisf over' his mou’rh. Thus, fhe pros ecu‘l‘ion on The basis of sTa‘I‘emenf of complainan’r Basan‘r Rao (”W-1), which is corrobora’red by The medical evidence as also from fhe prompfly lodged FIR, has been able f0 esTablish The involvemenT of appellanT Vipin Sahu & PinToo @ Nepali in The c‘ime in quesTion and Their convicTion , wiTh The aid of SecTion 31- of The IPC is based TrusTworThy and reliable evidence. 15. AT This sTage, learned counsel for appellanTs Vipin Sahu & PinToo @ Nepali submiT ThiaT The appellanTs are in cusTody since 26.12.2002 and Thereby T ey have compleTed almosT 5 years of jail senTence, Therefore, "hey may be senTenced To The period already undergone‘by Them. 16. In The resulT; a. Criminal Appeal 0.1302/03 preferred by appellanT Kumar Singh Thak r is allowed. His convicTion under SecTions 294/34, 5 6 (ParT—2)/34 & 307/34 of The IPC and senTences impo ed under Those secTions are hereby seT aside and he is cquiTTed of The above charges. IT is i sTaTed ThaT appell nT Kumar Singh Thakur is on bail, Therefore, his bail b nds are discharged. X‘i-HC-22 /A[[lr b. Criminal Appeal I\ Vipin Kumar Sahu at are par‘rly allowenl 307/34 of IPC is n imposed upon Them However, convic?io under o’rher' section c.1298/03 preferred by appeilam‘s 1d Pin’ru @ Nepali @ Balbahadur Thapa :i. Their conviction under Sec’rion \ainToined, however, ’rhe jail sen’rence is hereby modified fo RI. for 8 year. q and sen’rences imposed upon ’rhem s are hereby mainfwi Sd/- ‘I”£RENDRAJMh§HU\ Judge k' r t‘ i i