W mm (W) WWW W amm‘mm Criminal A‘ ogeal No.2950 of 1999 APPELLANTS: RESPONDENT: 1. BharatIaL Son of Dhajaram Sahu, aged 22 years, .........Accused No.6 Balram @ Balaram Sahu, aged 42 years. Son of Pilaram Sahu .........Accused No.9 Tukeshwar @ Baratlal Sahu, aged 19 years, .........Accused No.1 0 Kaleshwar @ Bhuneshwar, son of Bharatlal Sahu, aged 19 years _,_.,_.,.Accused No.11 Sethi @ Sitambar, son of Hemlal Sahu, aged 18 years Wm .........................................................w 200 .........Accused No.12 Pitambar, son of Hemlal Sahu, aged 19 years. ‘ ,...._...Accused No.13 Amgaheen @ Janki Bai, Wife of Hemlal Sahu, aged 3Tyears ......... Accused No.15 Note: Ail residents of village Taldeori, P.S. Jaijaipur, District Bilaspur (MP) (Now Chhattisgarh) - Versus - State of Madhya Pradesh (Now Chhattisgarh), Through: P.S. JaijaipUr. Distt. Bilaspur (MP) (Now Chhattisgarh). XI—HC—78 WW,WW,W WI. m m 200 WW (W) $$n§$ §$ WW WW $Wéné¥l APPELLANTS: (In Jail) APPELLANIS: (on bail) RESPONDENT: APPELLANT: Criminal Aggaal No.31 73 of 1999 -Vers l ~Sukhsagar Sahu, S/o Tilakram Sahu, aged about 45 years. Tekram, S/o Premsagar, aged about 20 years. Raj Kumar, S/o Premsagaf; Hem Charan, S/o Tilakram Sahu, aged about 26 years. Premsagar, S/o Tilakram, aged about 45 years. (Accused No.22) Savitri Bai, D/o Premsagar, aged about 25 years. (Accused No.14) Devrahin Bai @ Rachna, W/o Sukh Sagar, Sahu, aged about 45 years All residents of village Taldeori, P.S. Jaijaipur, District Bilaspur (MP) (Now Chhattisgarh) The State of Madhya bradesh (Now Chhattisgarh), Sunderlal, son of Dhajaram Sahu, aged about 22 years. resident of village Taldeori. P.S. Jaijaipur, District Bilaspur (MP) (Now Chhattisgarh) Jersus— Criminal Aggeal No.1450 of 2000 EW,WEW e 73 Code of Criminal Procedure 19 Division Bench: - Hon V 3-5-2007:- Smt. Hamida Siddique, No.31 73/99 and for appellant Nos. to 7 in Cr.A.No.2950/99. § Miss n§harmila Singhai, co nsel for the appellants No.1, 3 and 4 in CrA. No.2950l99. Shri Govindram Miri, cou sel for the appellant No.2 in Criminal Appeal No.2950/99. Shri Abhay Tiwari, counsel or the appellant in Cr.A. No.1 450/2000. h Shri U.N.S. Deo and ri D.K. Gwalre, Additional Public Prosecutors for the State/respond nt. Oral judgment dictated on ais. The aforesaid appeals file by Bharatlal, Balram @ Balaram Sahu, Tukeshwar @ Baratlal Sahu, leshwar @ Bhuneshwar, Sethi @ - Sitambar, Pitambar, Amgaheen Janki Bai; Sukhsagar Sahu. Tekram, Raj Kumar, Hem Charan, Pr Sagar, Savitri Bai, Devrahin Bai @ Rachna; and Sunderlal, re vely, are being disposed of by this a e s i “Wk-4l WJW “Hi 200 aném m (W) mam am 31133!m WWW mamW#WW %€ Wm RESPONDENT: ' The State of Madhya Pradesh (Now Chhattisgarh), through P.S. Jaijaipur, District Bilaspur, (MP) (now Chhattisgarh) judgment. By these appeals uner Section 374 (2) Cr.P.C. the accused/ appellants have questioned l ality and correctness of the judgment of conviction and order of sente ce dated 13-1 0-99 passed by the Additional 'Sessions Judge, Sakti, in .T. No.81/95 whereby learned Additional V ‘ Sessions Judge after holdin accused/appellants namely, Sukhsagar, Tekram,‘Raj Kumar, Sunder I, Prem Sagar & Hem Charan guilty for commission of offence under ections 302/1 49, 326/149 & 148; accused Bharatlal 8: Kaleshwar unde Sections 302/149 and 148 of the l.P.C.; accused Sethi @ Sitambar & Pitambar under Sections 302/1 49 & 148 of the l.P.C. and accused Tukehwar, Devrahin Bai, Amgaheen, Savitri & Balaram for commission of ffence under Sections 148 of the l.P.C., sentenced each of the accuse to undergo imprisonment for life & to pay a fine of Rs.5,000/-, in default o payment of tine to further undergo R.l. for one year under Section 302/1 9 of the l.P.C., to undergo R.l. for 3 years & to pay a tine of Rs.1 ,000/-, in «efault of payment of fine to further undergo R.l. for 3 months under Secti 326/149 of the l.P.C. and to undergo R.I. for one year under Section 14 of the l.P.C.. Admitted facts of the prsecution case are that deceased Dular Sai and Tara Bai were residents of village Taldeori. The accused persons were having animosity againt the deceased persons and complainant party because daughter of ac used Prem Sagar namely, Savitri was not being sent to her matrimonial ouse, therefore, a meeting of Sahu Samaj was convened, in that meet g, Prem Sagar was asked to send his mm f m 200 WW,WW,W Wm In 200 Wm (13W) WWW ammm mmm mwiwm asaifawm . ‘ ’ ' e Primary Health Centre, Jaijaipur wider Ex.LP/54 where Dr. N.P. Mishra (PW-19) conducted postmortem, pre pared report Ex.-Pl82. He opined that cause of death of Dular Sai, aged 60 years, was shock due to excesgsive haemorrhage, as a result o jhjuries on the body of Dular Sai. Death was homicidal in nature. The b dy of Tara Bai was sent for postmortem to the 5B.D.M. Hospital, Champa, nder Ex.-P/59 where Dr. V.K. Agrawal, (PW- , prepared report Ex.-P/81. He opined that in, 18) oonducted postmorte cause of death was shook due to excessive haemorrhage as a result of injuries to the bones of bot lower legs. Injured witnesses namely, PW-8 Gangaram, PW-20 Radha and Bahadur were sent for examination of the injuries sustained byt em in the same incident. Their injuries were examined by Dr. N.P. Gu ta (PW-22). Injury reports Ex.-P/84, Ex-P/85 and Ex.-P/86 were prepa d in respect of Gangaram, Radha Bai and Bahadur. The doctor advi ed for Xuray of the above 3 injured persons. After X-Ray it was found th tGangaram had sustained boney injury. Based on the memo andum Ex.-P/1 of Prem Sagar one Kalari was recovered at his instance u der Ex.-PI2. Based on memorandum Erg-P/9 of Sukhsagar lathi was seined at his instance under Ex.-P/29. Based on memorandum Ex.-P/10 given by Raj Kumar sword was seized at his instance under Ex.-P/30.' Based on memorandum Ex.-P/11 given by Tekram one Bhujali was seized at his instance under Ex.-P/31. Based on memorandum Ex.-P/12 iven by Hem Charan lathi was seized at his instance under Ex.-P/34. Hemlal lathi was seized memorandum Ex.-PI14 g Based on memorandum Ex.-P/13 given by at his instance under Ex.-P/35. Based on ven by Tuneshwar axe was seized at his i d on memorandum Ex.-Pl15 given by Roop Singh lathi was seized at his insmnce under Ex.—P/33. Based on memorandum Ex.-P/16 giv by Sunderlal battle axe was seized at his B " instance underEx.-P/36. instance under Ex.—P/32. sed on memorandum Ex.-P/17 given by Devraheen sickle was sei at her instance under Ex.-P/39. Based on memorandum Ex.-Pl18 give by Savitri sickie was seized at her instance u ‘under Ex.-P/37. Based on memorandum Ex.-PI18 given by Sethi iathi was‘seized at his instance nder Ex;-P/40. Based on memorandum Ex.- P/19 given by Amgaheen ckie was seized at her instance under Ex.- B/38. Basé’d on memorand m Ex.-Pl21 given by Bala @ Balram Iathi was seized under Ex.-Pl41. sed on memorandum Ex.-P/22 given by Bharatiai Iathi was seized t. his instance under Ex.-P/42. Based on memorandum Ex.-P/23 give by Pitambar Iathi was seized at his instance under Ex.-P/43. Based on memorandum Ex.-P/24 given by Kaleshwar iathi was seized at his insta ce under Ex.—P/44. Under Ex.—P/25 one pair of plastic shoe, one brass umbler, one underwear, one sando baniyan were seized from the place foccurrence. One Lungi, one Chaddar, plain soii and biood stained soil re seized under Ex.-PI26 from the place of occurrence. Blood stained oil and plain soil was also seized under Ex.- P/27 from the place of o rence. Site plan Ex.-P/50 of the place of occurrence was prepared b, the LO. After completion of in estigation, charge sheet was tiled against the accused persons in the Co rt of Judicial Magistrate, 1" Class, Sakti, who in turn committed the case to the Sessions Judge, Bilaspur from where learned Additional Sessions Judge received the case on transfer for trial. e a z ' i a e c r )G—HC—78 WW,W,W 7 W m W 200 mm (W) ‘ WW in 200 mm (W) WWW ammw WWW mm#wm kairzmm In order to establish charges against the accused persons the prosecution examined 31 witnesses at the trial. Statements of the ed under Section 313 of the Cr.P.C. in which they denied material appea ing against them in the prosecution evidence. They stated that they are accused persons were reco cent and have been falsely implicated on account of animosity. Ac used Balaram apart from denying material we “appearing against him in t e prosecution evidence, pleaded innocence. He took a plea of alibi that tthe time of the incident he was working as postman at Sakti since las 20 years. As death was taken place in the house in which he was ding, therefore, body was lying there. They examined 12 witnesses in h defence. Learned Additional ssions Judge after hearing arguments of learned counsel for the res ective parties, convicted and sentenced the accused persons as afor aid. However, acquitted Badgadheen @ Teejmati Bai, Birraheen @ Dhaneshwari Bai, Parsadiheen @ Rat Bai, Kahrodheen Bai @ Bisahe n Bai, Kashdigadhheen @ Pandari Bai and Annapurna, Accused Sukh ram and Balram @ Guddu were absconding. After the judgment in ths case. accused Balram @ Guddu” was apprehended and he face trial'separately. Accused Sukhiram s still absconding. Vb We have heard lear counsel for the patties. n Learned counsel fo the accused/appellants have not disputed homicidal death of Dular i and Tara Bai. Moreover, eyewitnesses namely, PW-1 Rohan, PW a Johan, PW-3 Loknath, PW-4 Suresh Kumar, d i o r i e - of the above accused/appellants in the crime As far as involvemeni in question is concerned, main witness PW-3 Loknath Patel, who is an independent eyewitness an taking bath in a pond went tt his shoes, he was climbing t tumbler. Atter reaching temple, he was offering water on the Deity, at that time, Sukhsagar and Tekram came together. Sukhsagar attacked with lathi. He made two assaults. from the assault. Dular Sa time, accused Prem Sagar Pitambar, Sethi, Sunderlal nd Roop Singh started attacking Dular Sai, d whose house is in front of the place of occurrence, has stated that on the fateful day in between 6.30 to 7.15 a.m. he was sitting in front of his house, at that time, he saw that Dular Sai after iwards temple of ‘Durga Maa'. After rergoving he'steps of the temple carrying water inlbrass Dular Sai protected himself with his hands started retreating came on the land, at that Hem Charan, Hemlal, Raj Kumar, Balram, XI—Hc—7s 3m W, Wan—cs,W W m m 200 wast m (W) WWW amm Wei? manhmqtvif wW m am am a? ail‘anm “s; PW-5 Lakheshwari Bai, PM-6 Ghasiya, PW-12 Mehattar Lal, PW-16 Sukhiram, PW—27 Budhdhu 'am, PW-29 Bahartaram & PW-24vTuIaram @ Kallu as also injured witn es namely, PW-8 Gangaram and PW-20 Radha Bai have stated that deceased persons namely Dular Sai and Tara Bai died on account of inju ‘es inflicted by the accused persons. Dr. N.P. Mishra (PW-19) and Dr V.K. Agrawal (PW-18), who conducted 1r ‘postmortem on the bodies fthe deceased persons, have stated that the death of Dular Sal and Ta Bai was homicidal in nature. Therefore, in view of the above ocular an medical evidence, it is established that death of Dular Sai and Tara Bai w s homicidal in nature. Sukhsagar, Tekram, Rai Kumar, Sunderlal, Hem Charan, Bharat Lal, . Kaleshwar, Sethi @ Sitambar, Pitambar and Prem Sagar ' )Q-HC—78 WW, Wm,W 10 WW (W) mam ammm mma:wm WWW $eimm among them Sukh Sagar s having lathi.'Tekram was having Bhujali, Raj Kumar was having Kha a, Prem Sagar was having Kalari, Sunderlal was having Tabbal and rem ining persons were having lathis. Thereafter, he entered his house. Aft r 10-15 minutes, he came out and saw that body of Dular Sai was Iyi There were injuries. Gangaram was also " standing in injured conditi w " She was weeping. Tara B i was lying in unconscious condition. There l d (l in the mean time, wife of Duiar Sai came. were injuries on her leg. B was oozing out of the injuries. There were §injuries on the body of hu band of Tara Bai. Villagers were standing there, amdng them were Su esh, Sukhiram, Lakheshwari and others also there. Panchnama- Ex.-P/6 was prepared in his presence. Evidence'of this witness is corroborated y the evidence of PW-2 Johan, son of Dular Sai. He has stated that he also with his father at the time when attack was made. In para-3 of his evidence, he has stated that on the leg and hand of Tara Bai accused S kh Sagar, Hem Charan, Raj Kumar, Tekram and Sunderlal attacked, as result of which she fell down. They twisted e witnesses is corroborated, in material PW-4 Suresh, PW~16 Sukhiram, PW-21 Raj PW-29 Bahartaram Sahu, PW-1 Rohan, PW—5 Lokeshwari Bai, PW .Ghasiya, PW-12 Mehattar Lal, PW\24 Tula Ram @ Kaltu, among them 8 Ganga and PW-2O Radha are injured witnesses who sustained inj ies in the same incident. her leg. Evidence of t particulars by the evidence Kumar, PW-27 Budhdhur Learned counsel fort e accused/appellants could not point out any infirmity in the evidence o these witnesses so as to discredit their evidence regarding involve ent of the above accused/appellants in the een mentioned that out of these witnesses, crime in question. As has Wm W 200 a n o . s s , - - h a 11 Wm E1 200 mm (13W) mmm mmiwm r mam—am aarmm $Wm ha are injured witnesses. PW-3 Loknath is an independent witness wh se house is existing in front of the place of occurrence. Therefore, the presence at the place of occurrence is established by the fact thatt ere are two injured witnesses. PW-Z Johan was accompanying his fathe( and Loknath’s house is existing just opposite the place of occurrence, t erefore, we find no reason to come to a PW-8 Ganga and PW-2O K”, . different conclusion than t e conclusion arrived at by the trial Court regarding involvement of hese persons in the crime in question. Moreover, from perusal of evidence of prosecution witnesses, it is § established that in the first instance accused Sukhsagar and Tekram carrying weapon came on he scene, in the meantime, other accused persons joined them. Ther fore, the manner in which all the above accused persons assemble at the scene of occurrence armed with deadly weapons and started eating Dular Sai & Tara Bai establishes their common object to attack D lar Sai and Tara Bai. lt is settled law that common object can be for ed at the spur of moment at the time of commission of crime also, th refore, they have been rightly held guilty with the aid of Section '149 of the l.P.C. Learned counsel for he accused/appellants argued that injuries inflicted on the bodies of Du ar Sai and Tara Bai were on non-vital parts i.e. no injury was on the hea of both the deceased persons and no other grievous injury was on the vi l organ of the deceased persons i.e. chest, stomach and neck. Learn counsel for the accused/appellants while drawing attention of the Cou towards postmortem reports and evidence of Dr. N.P. Mishra (PW-1 9) nd Dr. V.K. Agrawal (PW-18) argued that all the injuries were on hands a d legs, therefore, it cannot be said that the R i d e " On the other hand learned counsel for the State/respondent ”i; supported judgment of thet al Court and argued that as per the evidence oi PW-1 Rohan the accuse persons were shoutin that they should not be left alive. a in order to appreciat arguments advanced by learned counsel for the parties, we have peruse postmortem reports, evidence of the doctors as well as eyewitnesses. P rusal of the injury report and evidence of the doctors reveal that as far as ara Bai is concerned, all the injuries were on her leg and thigh. As far a Dular Sai is concerned, all the injuries were on legs and hands. There e one or two bruises on the chest. Had the accused persons Were ha ing intention to cause death of these two persons, they were carryin deadly weapons with which they assaulted two victims, nothing preven ed them to attack on head and other vital organ of the deceased perso s. Moreover, Dr. V.K. Agrawal (PW-18) has not stated in his evidence t at injuries inflicted on the body of Tara Bai were sufficient in the ordina course of nature to cause death. Dr. N.P. Mishra (PW-19) has not sta d that injuries inflicted on the body of Dular Sai were sufficient in the rdinary course of nature to cause death. Looking to the injuries an parts of the bodies where injuries were inflicted, we are of the con idered opinion that looking to the place of , r 3am, Wm,W 12 W m m 200 may m (113W) mimfaaim ammm WWW WWWIWW %i 3i1‘emm V; accused persons attacked the deceased persons with intention to cause death. They further argued that in the circumstances their conviction under Section 302 read with Section 149 of the l.P.C. is not based on iegai evidence. ‘The offen ~e against the accused/appeilants doesinot travel beyond Section 304 P rtvli of the l.P.C. 13 WW wt 200 3mm (W) mmm mm fw?ml? #rafmm bodies chosen by the accused persons to attack, no inference can be drawn that they were having requisite intention to cause death of these two persons. The manner in which, weapons with which the accused persons attacked these two persons and caused boney injuries and other injuries on the legs and hands, it can safely be inferred that the accused persons had knowledge that the manner in which they are attacking Dular Sai and Tara Bai, they a likely to cause death. Therefore, offence was made out under Section 304 Part-ll of 302/1 49 of the l.P.C.. We are fortified in our View by the judgment of t Apex Court in the matter of Adu Ram V. in 2004 AIR SCW 5773 wherein the Apex r against the accused pers the l.P.C. instead of Sectio h Mukna and others repor Court held that:- “Number of inj ries on deceased person — Not always determinative f offence - Weapon used, part of body where injuries ere inflicted and nature of injuries are relevant fact — Lathis and axes used by appellants to beat deceas d — Assault made in course of quanel — Doctor w conducted post-mortem found 34 injuries includi g several fractures injuries - trial Court convicted app llants under $5.302 r/w $5.148, 149 and 341 — Hig Court noting fact that fracture injuries were all seen on hand and other non-vital parts of body; there s no grievous injury on head; all injuries on h ad were simple in nature, altered conviction to S 304, Part i — No infirmity — On facts, o n te o h WW, WW,W 14 WW m 200 anam'm (13W) m WWIWW mafam ’Aqdfcmm however, case eld to be one covered under 5.304, Part II — Custod al sentence of six years imposed.” On the same princi Ie, if we look into nature of the injuries, postmortem reports and doct rs‘ evidence not a single injury was innicted , by the accused persons on any vital part of the body of the deceased persons. Therefore, base on the above principle, we are of the considered opinion that off nce against the accused persons under Section 304 Part Il of the l .C. is made out, therefore, their conviction under Section 302 read wth Section 149 of the l.P.C. cannot be sustained. Accused perso s namely, Sukhsagar, Prem Sagar, Raj Kumar, Tekram, Hem Chara and Sunderlal have rightly been convicted under Section 326 read with ection 149 of the l.P.C. for causing grievous injuries to injured Gangaram th deadly weapons. i mmw mum anki Bai and Savitri B J ai evrahin B achna m ahe D ai R en These appellants have been convicted under Section 14\8 of the l.P.C. because as per the pro ecution case at the time of commission of offence they were armed with eadly weapon i.e. sickle. Smt. Hamida Siddique. earned counsel for the accused/appellants, argued that similarly situ other co-accused persons namely, Badgadheen @ Teejmati Bai, @ Rat Bai, Kahrodheen Bai e rraheen @ Dhaneshwari Bai, Parsadiheen Bisaheen Bai, Kashdigadhheen @ Pandari Bai and Annapurna have b , acquitted whereas, these 3 ladies have been convicted. She further rgued that eyewitness namely, Johan, son of deceased Dular, has not ntioned in FIR Ex.-P/4 that they were . a i e WW,W,W 15 Wm m 200 3mm (W) mm wé?‘ armed with sickle[ Similarly. in his statement Ex.-D/2 under Section 161 Cr.P.C. it has not been me ioned that they were armed with sickle. The only distinction made by triai Court is that from other co-accused ladies no recovery of wea on has been effected, therefore, they are entitled for the benefit of dou t 3 0n the other hand, S ri U.N.S. Deo, Additional Public Prosecutor, supported‘nnding of the trial Court. He also argued that since they were armed with sickle, therefor , they may also be convicted for the' main onence withothe aid orSectio 149 orthe I.P.c. We are afraid that s mission made by learned Additional Public Prosecutor is not legally te able for the reason that ladies co-accused persons have already been cquitted, these 3 ladies accused have also been acquitted under Sectio s 302 read with Section 149 and 326 read with Section 149 of the I.P ., that judgment has attained finality. No appeal has been preferred by the State against the order of acquittal passed by the trial Court; Therefore, suo motu this Court cannot appreciate evidence and con ict the accused under Section 302 read with Section 149 of the l.P.C. FIR the only omnibus statement has been made that all the accused persons started attacking in which similar statement was made again other co-accused lady persons who have been acquitted by the trial C urt. ln the first instance, all the independent witnesses namely, PW-3 Lok ath, PW-4 Suresh Kumar, PW-16 Sukhiram, PW-21 Raj Kumar, PW-27 B dhdhuram and PW-29 Bahartaram have not stated that these 3 ladies coFSwused persons‘were members of unlawful assembly and they made a ault. The only relative witnesses of the mm (W) 16 m 200 mm faaia: WWW WWWiwW %sifawm deceased have stated about their presence. Moreover, in the First Information Report Ex,-P/4 Johan has not mentioned that these 3 Iadies attacked the deceased persons with sickle or they were in possession of sickle. Even PW-2 Johan n para-57 of his cross-examination has stated that he does not remem‘aer whether while giving report Ex.-P/4 he mentioned about these 3 accused persons that they used sickle while u e attacking the deceased petsons. _He has further stated that while giving informed LO. about the fact that these deceased persons with sickle. lf same has police statement Ex.-D/2 he accused persons attacked the ‘not been recorded in his sTtement Ex.-D/2 he cannot explain the same. As other ladies co-accused trial Court, they were on tt e persons have already been acquitted by‘the same footing, apart from that, there is no specilic allegation against these ladies accused persons in FIR and statement Ex.-D/2 of PW-Z Johan that these 3 accused persons were carrying sickle and they used sickle; moreover, independent witnesses, mentioned above, have also members of unlawful ass sickle or they were carry not stated that these 3 accused persons were y, they attacked the deceased persons with sickle, therefore, their conviction ‘under Section 148 ofthe l.P.C. ca not be sustained. Learned Additional PW-2 Johan, PW-5 Lakhes and PW-24 Tularam @ Kal evidence merely being rel tive of the deceased persons cannot be rejected. blic Prosecutor argued that PW-1 Rohan, i Bai, PW-6 Ghasiya, PW-12 Mehattar Lal, have stated about their presence and their Wm EW,W,W e ~ i h l \ r l g u ‘XT'JF‘ 78 WW,§?{