HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANTS: RESPQNDENT: Criminal Appeal No.879 of 1993 1. Jagdish, S/o Ram Bahadur Kurmi aged 31 years, R/o Village Kajia Police Station Nawab Ganj, Allahabad (U.P.) 2. Kallu, S/o Chhotelal Kurmi aged 23 years, R/o Malkia P.S. Saraw, Distt. Allahabad (U.P.) 3. Chhedilal S/o Bajrangbali Bind, aged 24 years, R/o Kajia P.S. Nawab Ganj, Allahabad (U.P.) Versus The State of M.P. (now State ofC.G.) {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. Abhay Tiwari, counsel for the appellants. Mr. Rajendra Tripathi, Panel Lawyer for the State/respondent. Djvgsion Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar 33 ORAL JUDGMENT (21-4-2010) T.P. Sharma, J: - Challenge in this appeal is to the judgment of conviction & order of sentence dated 12-7-93 passed by the 1st Additionat Sessions Judge, Raigarh in Sessions Trial No. 181/91, whereby & whereby learned Additional Sessions Judge while acquitting three accused persons convicted the appellants for commission of the offence of culpable homicide amounting to murder of Ghasiram in sharing common intention and for attempting to commit the murder of Balamsai in sharing common intention. Learned Additional Sessions Judge has convicted appellant Jagdish under Sections 302 & 307 read with Section 34 of the I.P.C. and sentenced him to undergo imprisonment for life & to undergo R.I. for five years, respectively, and also convicted appellants Kallu & Chhedilal under Sections 302 read with Section 34 & 307 of the I.P.C. and sentenced each of them to undergo imprisonment for life& to undergo R.I. for five years, respectively. J" BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.07 12:55:30 +0530 1. v ^ 2. Conviction is impugned on the ground that withoutany credible and clinching evidence the trial Court has convicted & sentenced the appellants and thereby committed illegality. 3. Case of the prosecution, in brief, is that on 21-8-91 at about 10.30 a.m. all the accused holding country made pistols chased Ghasiram who was going by cycle, appellant Jagdish fired with country made pistol upon Ghasiram as of result Ghasiram fell down from the cycle, one accusedchased Balamsai and tried to attack him with country made pistol on which Balamsai fled from the spot. Balamsai went to the Police Station and todged dehati nalsi vide Ex.P-17 on the basis of which F.I.R. Ex.P-21 was registered. Merg was recorded at the instance of doctor vide Ex.P-18. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-10 prepared inquest vide Ex.P-11 over the dead body of Ghasiram. Dead body was sent for autopsy to Primary Health Centre, Kharsia vide Ex.P-19. Dr. G.N. Tiwari (PW-17) conducted autopsy vide Ex.P- 22 and found entrance wound over back left side with blackness causing internal injury, fracture of third rib and rupture of left lung effecting vital organs. Injury was caused by fire arm and death was homicidal in nature. Two cycles and one empty cartridge were seized from the spot vide Ex.P-7. Pair of hawai slippers and two cycles were seized from the spot vide Ex.P-15. Blood stained & plain soil were recovered from the spot vide Ex.P-16. During the course of investigation, appellant Jagdish was taken into custody, he made discloser statement of country made pistol vide Ex.P-3 and same was recovered on production by Jagdish along with knife & six cartridges vide Ex.P-5. Appellant Kallu also made discloser statement of country made pistol and cartridges vjde Ex.P-4 which were seized vide Ex.P-5 at the instance of Jagdish. Blood stained shirt of Balamsai was seized vide Ex.P-6. Blood stained clothes of deceased were seized vide Ex.P-8. Spot map was prepared by the Patwari vide Ex.P-9. Identification parade of appellant Kallu was conducted and he was identified by Balamsai & others vide Ex.P-13. Spot map was prepared by the Investigating Officer vide Ex.P-25. Seized articles were sent for chemical examination vide Ex.P-23. Cartridges & pistols were examined by ballistic expert vide Ex.P-27. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed '^. ^ 'B^J^i^'i^. '^' "''^..^ ''^" ..-^'" ^^^^^ before Judicial Magistrate First Class, Raigarh, who in turn, committed the case to the Court of Sessions, Raigarh, from where ) learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused persons, the prosecution has examined as many as twenty-three witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false jmplication. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge acquitted three accused and convicted & sentenced the appellants as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 8. Learned counsel for the appellants vehemently argued that in the present case, conviction solely rests on the evidence of Balamsai Sidar (PW-15), the alleged complainant. The trial Court has disbelieved the evidence of Ramsukh (PW-11) & Pitambar Lat Bind (PW-13) who had claimed themselves as eyewitnesses. The trial Court has rightly rejected their evidence. Learned counsel further argued that as per the evidence of Balamsai Sidar (PW-15), only appellant Jagdish has fired with country made pistol on back of Ghasiram and caused simple injury by firearm and remaining accused have not caused any injury. Jagdish has also showed/ pointed pistol upon Balamsai. If this evidence is believed, the only inference would be possible that Jagdish has caused fatal injury to Ghasiram and has shown pistol to Balamsai, but has not committed any offence punishable under Section 307 of the I.P.C. The act of Jagdish may be punishable under Section 304 Part-I of the I.P.C. and his act may also fall under Section 506 of the I.P.C. but not under Section 307 or Section 307 read with Section 34 of the I.P.C. Learned counsel placed reliance in the matter of Radhey Shyam v. State of U.P., 1998 (8) Supreme 118, in which the Apex Court has held that in case of absence of evidence relating to inflicting fatal blow, conviction under Section 302 of the I.P.C. would not be possible and accused may be convicted under Section 325 of the I.P.C. Learned counsel further placed reliance in the matter of ^sssss^ .-^" ~'% Pappu alias Hari Om v. State of Madhya Pradesh, (2009) 3 SCC (Cri) 1450, in which the Apex Court has held that fire shot causing injuries on the right shoulder of deceased, resulting in his death, conviction would be under Section 304 Part-II of the I.P.C. and custodial sentence of eight years would be proper. 9. On the other hand, learned State counsel opposed the appeal and submitted that all the appellants holding country made pistols have chased deceased Ghasiram, out of three one has shot fire upon the deceased and caused his death, therefore, all the appellants are liable for commission of murder of the deceased in sharing common intention. The appellants have also attempted to commit the murder of Balamsai. The trial Court has rightly convicted & sentenced the appellants in the aforesaid manner. l0.in order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. ll.In the present case, homicidal death of deceased Ghasiram as a result of injury by fire arm has not been substantially disputed on behalf of the appellants, otherwise also it is established by the evidence of Dr. G.N. Tiwari (PW-17) and autopsy report Ex.P-22 that the death ofthe deceased was homicidal in nature. l2.As regards complicity of the appellants in the crime in question, learned counsel appearing on behalf of the appellants and learned State counsel appearing on behalf of the State/respondent, both have placed reliance on the evidence of Balamsai Sidar (PW-15). l3.Balamsai Sidar (PW-15) has deposed in his evidence that on the fateful day he was going to shop for purchasing sugar along with Ghasiram by different cycles, the appellants were standing near the house of Benimado, while they were crossing in front of the appellants atl the appellants chased them, appellant Chhedilal caught hold of the cycle of Ghasiram and appellant Jagdish shot fire upon Ghasiram from his backside as a result of which Ghasiram fell down and appellant Kallu asked appellant Jagdish and pointed pistol upon him (this witness) on which he (this witness) fled from the spot. They took injured Ghasiram to Kharsia hospital where he died. The incident took place on account of previous enmity with Benimado. He went to the Police Station and lodged dehati nalsi vide Ex.P-17. M ;.^:_ •_\-' '%. fr^A. ^, 1 ^: Defence has cross-examined this witness at length, but in his cross- examination he was stuck to his version that all the appellants chased them and appellant Jagdish fired upon Ghasiram. In para 12 of his evidence, this witness has specifically deposed that all the appellants were holding country made pistols. l4.Evidence of Balamsai Sidar (PW-15) clearly shows that all the appellants were having country made pistols, they chased Balamsai & deceased Ghasiram, appellant Chhedilal caught hold ofthe cycle of Ghasiram then appellant Jagdish fired upon Ghasiram from close distance and caused fatal injury resutting in his death. l5.In the present case, all the three appellants were holding country made pistols, they chased Ghasiram, one accused caught hold ofthe cycle of Ghasiram and second has fired upon Ghasiram. This shows the definite overt act of the accused. Holding of country made pistols shows their grave intention of causing culpable homicide amounting to murder of Ghasiram. Appellant Jagdish has fired upon Ghasiram from close distance which shows grave intention of appellant Jagdish of causing the murder of Ghasiram. In the present case, fatal injury has been caused by Jagdish. The case of Radhey (supra) is distinguishable on facts to that of the present case. l6.In the matter of Pappu (supra), the incident took place while playing cards and the accused shot fire with 12 bore gun upon the right shoutder of the deceased. In the present case, appellant Jagdish along with the co-appellants chased Ghasiram and after restraining him by holding his cycle by co-appellant Chhedilal, appellant Jagdish shot fire upon deceased Ghasiram from close distance resulting in death of the deceased. This shows that Jagdish shot fire upon the deceased with definite intent to cause his death. The case of Pappu (supra) is also distinguishable on facts to that of the present case. l7.In the present case, appellant Jagdish has pointed pistol upon Balamsai also, but has not fired upon him though he was having opportunity to shot fire upon Balamsai, even Jagdish has fired upon Ghasiram who was accompanying Balamsai. This shows that the appellants have not attempted to commit the murder of Balamsai, but have definitely threatened Balamsai. ^: .r ^--i^^ "^' ^^" ,^ w^ Soma ^ (& 18-After appreciating the evidence available on record, learned Additionat Sessions Judge has convicted appellant Jagdish under Sections 302 & 307 read with Section 34 of the I.P.C. and remaining appellants under Sections 302 read with Section 34 & 307 of the I.P.C. l9.For the foregoing reasons, conviction of appellant Jagdish under Section 302 ofthe I.P.C. and remaining appellants under Section 302 read with Section 34 of the I.P.C. is sustainable under the law. The trial Court has imposed minimum sentence prescribed under the law. 20.As regards conviction & sentences of appellant Jagdish under Section 307 read with Section 34 of the I.P.C. and remaining appellants under Section 307 of the I.P.C., the trial Court has not considered the aforesaid evidence and thereby committed illegality. Conviction & sentences of appellant Jagdish under Section 307 read with Section 34 of the I.P.C. and remaining appellants under Section 307 of the I.P.C. are not sustainable under the taw, however, their act falls within the ambit of Section 506 of the I.P.C. 2l.Consequently, the appeal is partly allowed. Conviction & sentences of appellant Jagdish under Section 302 of the I.P.C. and remaining appellants under Section 302 read with Section 34 of the I.P.C. are hereby maintained, however, their conviction under Sections 307 read with Section 34 & 307 of the I.P.C., respectively, is altered to Sectilon 506 of the I.P.C. and each of them is sentenced to undergo R.I. for one year. All the appellants are on bail, they shall immediately surrender before the Court of 1st Additional Sessions Judge, Raigarh for serving remaining sentence imposed upon them in SessionsTrial No.181/91. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge