-- HIGH COURT OF CInIATTISGARH AT BILASPUR CORAM: HON’BLE MR.T.P.$HARMA & HON’BLE MR. N.K. Agarwal, JJ. Criminal Appeal No. 1 109 of 92 APPELLANT Yadram son- of Tularam Jaste ' Samami aged 24 years, resident’of Sohagpur, P.S. Sarsiva, Distt. " Raipur CG Versus Staté of Chhattisgarh through Rs. , Masturi, Distt. Bilaspur (CG RESPONDENT (‘ ‘ Criminal Appeal No. 191 of 93 APPELLANT Jeet Ram, son of Tularam casm - Samami aged 20 yeai‘s, resident of I Sohagpur, P.S. Sarsiva, Distt. Raipur CG Versus State of Chhattisgarh through RS; Ma'sturi, Distt. BilaspUr (CG RESPONDENT Present-Sm Abhay I’I‘iwari, Adv. for the appellant in Cr.A. No. Shri G‘.P. Kurre, Adv. for appellant in CLA. No. 191/93 1 109/ 1992. Shri Rajendra Tripathi, Panel Lawyer for the State. ORAL JUDGMENT (26-3—2010) The judgment of the Court was delivered by ’I‘.P: Shanna, J.:— 1‘ Criminal Appeal No. 1 109/92 filed by appellant Yadram and Criminal Appeal No. 19 1/93 filed by appellant Jeetram are arising out of the judgment Of conviction and order of sentence dated 16—9- 1992 passed by Vth Additional Sessions Judge, Bilaspur in Sessions Trial No. 173/90, therefore, > they are being disposed of by this common judgnent. p . The aforesaid criminal appeals are directed against the udgment of conviction and order of sentence dated 16-9- , 1992 in Sessions Trial No. 173/90 whereby and whereunder learned Additional Sessions Judge alter holding appellants ‘ j guilty for causing culpable homicide amounting to murder of Bundram_ and sharing common intention, ‘convicted ppellant Yadram under Section 302 of I.P.C. and appellant Jeetram under Section 302 read with Section 34 of I.P.C. and sentenced each of them to undergo imprisonmentfor life. . Judgment of conviction is impugled on the gonna that without there being any clinching and credible evidence sufflcient for convicting the appellants, the Court below has convicted and sentenced them as aforementioned and thereby committed illegality. “‘ . Brief facts of the prosecution case are that on fateful day. of 23-3-90 at about 8.00 a.m. appellants who are brothers and deceased Bundram were removing stone mm quarry. During the course of removing the stones, appellant Jeetram, and Bundram quarreled on the ground of one stone which was lying beside the areas allotted to-them for removing stones, then appellant Jeetram pushed Bundram in thequarry and Yadram assaulted Bundram by handle of Gamtt over‘his head and caused 4-5 repeated injuries. Bundram fell down. Persons present near the place of incident, intervened and they took Bundram to Police Station. P.W. l'Bharat Lal lodged F.I.R. vide Ex. P-l. They took the injured to hospital for treatment where he died at about 12.00 noon, on the“ same day. Information regarding death of §undram was» gven to Police Station City Kotwali by P.W. 6 Dr. S.K,.Verma vide Ex. P-7. Merg was recorded vide Ex. P—10;' The I Investigating Officer left for the scene of occurrence. After summoning therwitnesses vide Ex. P-2, inquest over the dead body was prepared vide Ex. P—3. Dead bodyr‘was sent for autopsy to SardarX‘Vallabh, Bhai Patel. Hospital§»Bilaspur Vide Ex. P~25. P.W. 4 Dr. P.C. Gupta conducted autopsy ‘ vide Ex. P—4 and foundfollowing injuries:- One lacerated wound of 7.5 cm x 1 cm x bone deep over left n‘ontal parietal region. a s QT” é n Lacerated wound of ‘3 cm x 1 cm x bone deep aver 16 parietal am m Lacerated wound of 7 rm x 1.5 cm x bone deep over parieto occipital reg'on, ~1cm above injury No. 2. iv. Lacerated wound of 6.5 cm x 1.5 ’cm x bong-deep 2 cm above Injury no 3 Abrasmn of 2 cm x 1 cm, 2 cm over left Slde of chest over lower one tlnrd pomon ’ i. Frontal and occipltal bone was found dactured Mode of death was shock and death was hom1c1dal 1n, nature. / 5. 6u23ng the course of investigaiion, blood stained and plain, ‘soil were recovered from thespot vide Ex. P— 18. Appellants were taken into custody. Appellant Yadram made disclosure statement of handle of Gainti vide Ex. P- 14. Same was V recovered n‘om Yadram vide Ex. P-15. One lung was seized > from appellant Yadram vide Ex. P. 16. Blood stained clothes of accused Jeetram were seized vide Ex. P— 17. Clothes of the deceased after autopsy were seized vide Ex. P-19.- Seized articles were sent for chemical examination vide Ex. P—2 l. 6. Statements of accused persons were recorded under Section-- 161 of the Code of Criminal Procedure, 1973 (hereinaher referred to as ‘the Code’) After completlon of mvestigationr p charge sheet was med in the Court of Judicial Magstrate First Class, Bllaspur who in tum commrtted the case to the Court- of the Sessions Judge, Bilaspur kom where the I Additional Sessions Judge received the case on transfer for trial. 7.‘ In order to prove the guilt of appellants, prosecution examined as manymas 16 witnesses. Statements of the a accused persons were also recorded under Section 313 of the Code where“ they denied the circumstances appearing againstthem and claimed innownce and false implication. They took specinc defence of right of exerciserof private k \ - a defence. r v I“ 8. After amrrding opportunity of heanng to thc parties, learned Additional Sessions Judge has convicted and sentenced the appellants as aforementioned 9, We have heard Shri Abhay 'I‘iwari, leamed counselappearing - for appellant Yadram in Cr A No 1109/92 V smi G PG Kume, learned counsel appearing for appellant Jeetram 1n Cr A5 No. 191/93 and Shn Rajendra ’I‘npathi learned Panel hawyer appearing for the State/respondent and perused the judgment impugned and the record of the Court below. V 10.Shri Abhay Tiwari and Shri G.P.Kurre, learned counsel for the‘appellants vehemently argued that in the present case, injuries caused to deceased Bundram by appellant Yadram: ' have not been substantially disputed. They further argued H that Yadram has caused minimum injury in order to save his ~ a brother Jeetram n'om deceased Bundrant. Yadram has not ~ exceeded hislright of private defence available to him under the lavv, therefore, the appellants have not committed any I offence. They further argued that in case, they exceeded right of private defence, their act does not travel beyond Section n Section 304 Part II of I.P.C. 11.0n the other hand, Shri Rajendra ’I‘Iipathi, learned Panel Lawyer appearing for the State opposed the appeal and argued that the injuries caused and weapon used by Yadram clearly establlsh that With intention to muse culpable homicide amounting to murder, Yadram h‘as caused fatal injury to deceased Bundram 1n sharing common intention with Jeetram. 12.In order to appreciate the argument advanced by learned counsel for the parties, we have examined the evidence adduced onrbehalfwdf the'prosecution in the light of the defence taken by the appellants. 4 \ 13.In the present case, homicidal death as a result of fatal ante \ mortem injury has notr’been substantially disputed by the appellants, otherwise it is established by the evidence of P.W; r \ 4 Dr. P.C. Gupta and autopsy report Ex. P-4 which reveals that there were flve injuries over the Abody of the deceased including fracture of kontal and occipital bone and therefore, death was homicidal in nature. 14.As regards complicity of the appellants in theycrime in question, conviction is based on evidence of eye-witnesses ‘ P.W. 1 Bharatlal, P.W. 2 Ravishankar, P.W. 3 Hridayram and > P.W. 16 Thandram, who have deposed that at the time of incident, appellants Jeetram; Yadram and deceased v Bundram‘ were removing stones en‘om quarries adjoining to each other. On account of the dispute relating to a stone, deetram pushed Bundram and Bundram 11311 down.’ They intercepted the quarrel. Thereafter again Jeeu‘am and 1 Bundram started quarreling. Jeetram pushed Bundram on '- the floor. Appellant Yadram took out stick (handle of gainti) and assaulted over head of Bundram ,5 -'to 6 times and caused fatal injuries. Then they took Bundram. to police station and lodged F.I.R. Ex.-l. Defence has examined these witnesses in detail but they have stuck to their version relating to quarrel and injury caused by Yadram by handle of gainti. The evidence of aforesaid Witnesses clearly establishes ‘ that the appellants and Bundram were removing. stones and a quarrel took place relating to removal of a stone, then Yadram assaulted Bundramby handle of @inti; P.W. 1 'Bharatlal in para 9 of his cross-examinatiop has stated that rv one stone which was the cause of dispute was lying in the place of Bundram and Yadrami Then some, altemtion took place between both the parties and they quarreled. It shows that the quarrel took place Without any premeditau'on. There was no prior motive. Yadram took out handle of gaimi n'om near the place of incident and caused injury to deceased Bundram. Both the parties were claiming their right over the > stone which was found between the area of both the parties. The evidence of aforesaid witnesses clearly establishes that the incident took place on account of the dispute relating to claim of stone which both the parties have right to claim, 1” then Yadram assaulted the deceased. Fmdmg relating to injury caused by Yadram to Bundram recorded by the trial Court is based on legal and clinching evidence sustainable under the lawe 15 As regards motlve for commlsslon of murder 1s conoemed ev1dence of aforesaid w1messes clearly reveals that the ‘ meldent took place all of a sudden on account of clalm over ‘ , One stone during the course of their businessrof removing WW v the stones. Both the parties quarreled, and Yadram assaulted Bundram by handle of the gainti, shows that appellant‘r Yadram has not caused injmy to the deceased with intention touc‘ause his death but he assaulted him all of a sudden at ‘ Spur of moment and While inflicting injuries, it was within his knowledge that Bundram may die dueto the injury. Therefore, his'act does not travel beyond the scope of Section 304 Part II of I.P.C. Like Wise, in sharing common intention, the act of accused Jeetram does not travel beyond Section 304 Part II read with Section 34 of I P C ‘ Therefore, while - conv1cting the appellant Yadram under Secuon 302 of I P C V and appellant Jeetram under Section 302 read With Section, 34 of I.P.C., learned Additional Sesswns Judge has not “considered the circumstances in which the incident took place and thereby committed illegality. 16.For the foregoing reasons, Cr. A. No. 1109/92 med by appellant Yam and or. A. No. 1971/93 med by appellant Jeetram are partly allmved. Conviction of appellant Yadram under Section 302 of I.P.C. and conviction of appellant Jeetram under Section 302 read with Section 34 of I.P.C. are altered to Sections 304 Part II and 304 Part II read with '6“ Section» 34r of I.P.C. respectively, They are in custody since a 25-3-90 tin 206-20% Le. for more than 12 years. Theyam sentenced to the custodial period. They are on bai}. They need not surrender. l Sd/- 1M ‘1‘ 3w- T. P. Sharma .\ ‘ N.K. Agrawal w Judge Judge