/fo,I/ HI6H COURT OF CHHATTIS64RH AT B1LASW? Criminat An»®slNo,216j»f 1993 (SB; Hon'bleMr-. T.P.5HARMA. J] Hyrctya ftnm A another Vs. State of M.P. (Now C-&) PQST^OR PROUNCEMENTOFTHE JU&&MENT ON 8/7/2010 Sd/- T.P.Sharma Judge lisWi RwBondsst HI6H COURT OF CHHATnseARH AT BILASPUR Crimine! Apnaal No.216 cf 1993 1. Hyrdya Ram S/o Kodc aiias Bhokwa aaed about 27 year-s. 2- Bar'tor.in Bai Wd/o Koda olias okwa Satnami, aged about 48 years, So+h resident of yiliaq® Odka, P.5. Aninq, Distr-icT Raipur. Versus State of M.P. (Now C.6.) (Criminai Appeat uneter' Scction 374 (2) of Cr.P-C.) SB: Hw'bteMr.T.P. Sharme.-J. Present:- Mr.Alok E?ewar'go!n, counsel for -the <ypellonts. Mr.ft.R.Sinha, Pansi iawysi' for the State. -^L (Delivered on 8* Jtsfy, 2010) 1. Chclienoe 'n this appea! is to the judgment of conviction & arder of sentence dated 5.2.1993 passed by the 2 ^ Additiona! Sessions Judgs, Raipur, in Sessicns T-isi No.226/90. whereby & aAereunder learned 2 ' Acidi+ional Sessions Judge af-ter holding -riie cypeltants guitty along with other co-accused persons convicted iypeliant No.l under Sections 304 '^. Pcxrt n, 147 ^ 325 r%ad with Sect'o" 149 of the Indiiai PanaS Code and sentenced him to underge rigorous imprisonment for seyen years, rigorous imprisoninent/for one year nnd '•igorous Imprisonment for two years A to •- / poy fine of Rs.500/-, in defauit c.f payment of fine to furt+ier undergo '<» '•ig&rous impfisonment for two months. Likewise aiong wlth other co- • accused persons, learned 2 Additionat Sessions Judge hcs conyicted appeKonT No.2 Bartanin under Sections 147, 325 read with Section 149 & 323 read wth Section 149 of +he Indian Pena'. Code wd sentenced her to -ur^ergb ngorous imprisonment for one year, rigorous impr'sonment fc"* ^two years.S-to poy fiRS of Rs.500/-, in defiajit of payment of fine to ^s:"^' ^^ "%.i ^; <. yi furthar' undergo r'gorous imprisonwent for- two months nnd rigorous impi"isonment for six months, r'e^.ectively. 2. Conviction is chclfer'ged on the ground thot in ths absence of any specjfic rote ottr'ibuted to appeticnt No-1, cor'viction <& sentenca under Section 304 Part II of the Ind'an Penal Code are not suslninable under tha low. •» 3. buring -rtie course of arguments, leamed counsel fo!" the oppelicints argued Thtt both the oppeilonts hoye served suff'cient sentence tmd sentence suffered by them are suff'cient sentence for +he aforesaid offerwes. 4. Case of the prosecutron, in brief, i-s that on the fateful day of 15.5.90 at viilage Odka, Potice Stntion-.Aarong, all Ihe appeitants hwe constituted untawful assembly, they were holding deadiy tueapons and in furtheronce of common object c-f uniawfu! assembly, 'they haye committed murde'' of Sevaknim md also attemDted to commit murder of Kodobal FJ^.R. was (odqed yid®Ex-P/17. AAero intimation wns recorded yide fcx.P/18. After summoning the wstnesses vide tx.P/19, mquest over- the cfead body of Sevaknam wns pnepared vlde Ex.P/6. . Etead body of Sevaknan was serit for autopsy to fiovemment Hospita!, Acu-ang y'de Ex.P/20. Autopsy wis conducted by &r-.t>-P.Chandnikcr (PW-13) vide Ex.P/20.4 ond opined that cause of dea+h was as a result of fatal bram injury. &eath was homicidol i" nature. Iniured Kodobai was also-sent for examination. Shs was examined by br. Dr.b.P.Chtndpakar PW-13) vide Ex.P/22A cnd found folbwing snjures:- ^ i) Lacerated wound over- teft part of ttie heQd of 1 cm. x 1 cn»., ii) Hettmatoma &"d swelling over !e.ft thigh of 8 cm. x 6 cm. Prqfiture &f bone was ai^ected <md '• iii) Fmc+ure of bone.of right hcnd cnd left hand were also ,'aj^ected- . ^ Kodobai was sent for X-ray ®idvide X-nay repori- Ex.P/8, fnicture of rediufno was found vide Ex.P/7. Inves+iga+ion was conducted. &uring 1+)e cour» <?f mvestiga+iori, nrticies were seized. Spot in(y was pfepaped. K Accused were taken into custody aid on the basis of thei?' disclosure staternents, articles were recovered. 5. Statements of the w'tnesses were- reco-ded under Seetion 161 of the Code of Cr'minai Procedure, 1973 (in short lthe Code') ond efter comptetion of investigction, chcrge-sheet was fited before the Judicsal Mngistnite F'i'st Cicss, ftaipur. who in turn corsmitt'ed the cass to the Court of Sessions, ftaspur, from wher^ isar-ied 2 Additiona! Ssassons Judge, Raipur received the case on tmnsfer for tfial. 6. In order to prove the guift of the accused/appeliants, the prosecut'on has examined o-'s many as i3 witnesses. The accused/oppeilcmts were ex<unined under Section 313 of the Code. whe.r'e •Hiey denied the ci''cunlstonces appearing against them and cb'imed lnnocen<»n-ifi faise impiicatton i" the crime jn question. 7. After providing opportunity of heari,"i Add'tional SessioRS Judge, Raipur kas oppeSwits as aforemantioned. fo the parties, isarned 2 convlcted & sentenced the 8. I have heard fearned counset for the partfes, parused the judgment impugned ond record of ttie tria! Court. 9- Leomed counsel for the oppeltents veh.ernentiy a'gued Ihat nine accused per'sons were tried for the offences punishabte under Sections 302 read with Sect!"<m 149 and 307 read vnfh Section 149 of the Indicn Peral Code, but out of nir«eaccused only q?pellnnt No.l Hyrdya Ram has been convic+ed under Section 304 Pcrt II of the Indian Panai Code alonq with other offences yn^ rests accused have been convicted unde?- Section 325 read wi+h Sectio" 149 & 147 of. the Ind'an Penci Code on "ths san'.e set c'f widence.. Ther'efore, pr'esent appeHant No.l is antitted for s'mHar treatment iike other accused persons smd conyict'on & sentenc® of appe!ta"t Nte.l under Sectten 304 Pwt II of the Indian Penaf Cods ar*e not sustainabte undsr the law, Learned counse) further o.-'qued that the ; <^pi'osecution has not proyed •tfte charges ttgeinsl- both the. typeikmts beyond ^- shadow of doubt. Appeilont No.2 is c womon and at the time of commission of the atieoed offenc®,she was not hotding cny we^spon. As per Ihe avidence of Ihe prosecution, she was oniy preswt on the spot iike other witnesses and persons. The pn»secutionhas not adduced cny evidence to prove thct appeilant No.2 was a member of unliMefu! assen-.bly having its common object of commissson of the aforesaid offences,. In The absencs of such e'/tdenc<, con'/ictio" •& sen-tence of appellants are not sustainable under "riie iow. 10 O" the other hcnd, leamed State coynsel supported the judgment impugned a"d argued thct the prose.cutfen has proyed jts case beyond a!l shadow of doubt cnd the triaf Court after* close scrut'ny of the evidence has r'ightiy convicted & sentenced appeilant No.l Hyrdya Ram under- Sectmn .304 Part II of the Indicm Penal Cade alo"Q with other offences a"d appeliant No.2 Bart'anin for the commission of the aforesaid offences. Conv'c+iQn of some accused and acquithi! of some accuted on the snme %t of evidence is penniss!b!e under the iaw. 11. In order to appredate the arguments ndvanced on behalf of the p-art-ies, I hnye examined the eyidence adduced on behalf of the proseajtion. 12 I" the pnesent case, hom'cidal death of Seyakl'am end grievous injury of Kodo 8ai at the time of incident have not been substmiTaliy disputed on behaff of the 'sypella'its, on the other ho-nd, eyidence ndduced on bshaif of the pr-osecution is sufficient for tircwmg inference that at the time of •"cident Sevakmm died os a resuit of injur'ies sustiained to him smd Kodobai sustained qnevous injury. I3.As regards'tKe compticity of the csppefterits in the crime in question, convjction is a-ibstsn+ialh' baseftinc-n the eyidence of Bharat (PW-9), son of deceased Sevakn'm, whe hcs' categor'caliy deposed in his evidence That the oppeftcmts <md other accused pe.raons have assculted his fathe?- Se.vakram and g''undmother- Kodobai, they were beating theit! csnd nlt •rt'ie. eppellents wecs.hoidlng weapons. While his father" was goin9 towarcis Odka, •riien a!l 'the appelian-t-s chased and assoulted his father', therenfter, they were .^£:^^ assaijited injured Kodobni. As per the F.I.R. Ex.P/17, al! the (ypetiarits chased Sevakram and fi''.'stly o^pellant Hyrdyc Ram assouited him by stick and when he fel! down then cii the oppeitants asscn.il-ted Sevakram. Ther'eafter, when Kodoboi came to save her son Sevckram, then all 1+ie appeilants asaa.il'ted Kodobai and ccused gctevous injur/. In his detai! cross-e^ammotion, he has tategopicaliy deposed cnd -(Klmitted previous enmit^ sn^ aileged murder of Kodobai, fa'ther ef appeltant Hyrdya Ram, \ whidi was probnbly the c<suse of commission ef •the aforesoid offenc<- In para t6 of his cross-examination he hcs admitted thnt accuse.d Sir'ot @ Tijiu stopped his father, •tlien oppeliant Hyrdya Ram ossaulted his fother which clearly finds support from tha F.I.R. Ex.P/17. The detai! evidence of ihnrat (PW-9) reveals that cppellartt Hyrdya ftam is son of eteoeased Kodabai who was having grudged againsT the cowpiainant party. Appe!!mt No.l Hycdya is the person who has fjrstly nssaufted Sevaknim and whgs Sevakram feli down, then a!l the appellants includmg S-^yrdyd ftam wefe ^ aisauited Sevakrom til! his death. This evidenc®finds supporl- by promptly tedged F.I.R. Ex.P/17. 14. Afterq3preciating the evieienceavaiSabieoRrecord, Seamed 2 Additionsl Sessions Judge has eonvicted & sentenced appelimt No.l Hyrdya Ram under Section 304 Par-t E of the Inditm PenaS Ccde mcluding oTher offenc«s. The. evidence of Bharat ffW-9) supported by promptty jodged F.I.R- Ex.P/17 is sufficient for drawing th®mrsfsnce, Ikst appellsm Hyrdya ftam has committBd the offence punishabie under Section 304 Part S of the Indi'w ftenal Code. - 15.As regards/'the guestion of formation of unlawfui esambty and common "' -. / object of couse of grfevous injury to Kodobai, as per evidence of Bhomt '«» p'vy-9), F.I.R. bx-P/17 and ev'idence of other witnesses, all the accused pefsons were present on the spot, they wsre holdmg sticks, they were f'rstly as»ufted Sevafti'arrt tilt his deo-th and when Kodobai, mother of Seyakram came to rescue him, the" the appettaRts cmd other accussd , ^; persons asgaui+ed her- a"d coused grtevous injury. These evidences are suffictentfor drawing infecence •that originaiiy common objectof unlawfu! '^^ Irta Ki, 6 {issembSy was to commit offence wiating to Sevakram but wher. ICodoboi came to rescue him, 1+>en They also devcioped the'r common ebject for causing such grieyous hurt to Kodobci and in funiiensnGe of common object of such assembiy, the G^peliants and other accused persons coused grteyous mjury to Kodobai. 16. The prosecution has not adduced specific evidence reiating to specn'vc r'ote . pleyed by <^;pel(cnT No.2, but oncs unlawful CESsembly is constituted, then no <niy overoct or ^iecific role attributed to any accuised is required. The evidence adduced on behnif of the pro»cut!on is sufficient for drvw'mg inference •that the appeilttfits were holding sticks, •tiiey chased Kodobai and cwasd orievous 'njury to her. In these cii'cumstance.s, it can be snfeiy infer-red tiiat thsy havs co"stltuted uniawfui assenibiy having kn&wtedge that grievous injury may be coused to Kodobai. 17-After q}p."eciatiag -the eviderice avaiiabie on record, iesmed 2 Additiona! Sessions Judge has rightly conycted cy.pellant No.l under Secttens 304 Part rr, 325 read with Section 149 & W7 vf the I/'dian Penal Code and oppellont No.2 including other appeiiimts under Sect'orss 32S r-ecd with Sect'o" 149, 323 read w'th Section 149 & 147 of the Indim Penal Code. The trial Court has not committed any Hlegality in convicting the nforesaid cypeilcaits for •Hie afor-esaid offenfees. t8. As gards •tt'e question of sentenc«,evidence of the prosecution reveats •that originally uniawfu! assembiy wa^ not constituted for cttusing any miury to Kodobal who was not present +her-e, but subse<pentiy they developed their common object for cwjslng grievous injury to Kocfobai. Appeliant No.2 is a wffrftan and presentty she is aged about 68 yeors. As per the judgment, she was In custody from 14.5.90 to 23.8.90, thereby she wss m cu<tody fw about 3 months and 10 days. Likewse a^pel'Kmt No.l was in custody fr-om 14.5.90 titl -riie judgmsnt 'i.e. 5.2.93 nnd sin<»5.2.93 at tenst tj?t 3.6.93, thereby (ippelicnt No.l was 1" ojstody from 14-5.90 tHI 3-6.93 forabout 3 years cnd 20 days. -3t- I, \...^/ 19. Considering the nature of eyidence and aibsequeit common object of causing grievous injury to Kodoba' eind the rote attributed to the present appe!!a"ts, again seridmg them to jail for •t+ie offence p-unidiable urtder ^ctions 147, .325 read with Section 149 & 323 read with Sectwn 149 of the Indian Psrial Code wouid not serve any purpo^. 20.Co"sequently, coRyjction of the appettu'its under Secttens 147 & 325 recd ... y wlth Section 149 of the Indian Pena! Code arid sen-tBnce -riiereundsr is oitered To undsrgo rigorous imp''isonment for 3 months euid pigorous imprisonment for- 3 months A to pay fine <?f Rs.2,000/-, m defcailt Bf paym&"t nf fine to undergo rigorous imprisonmerit for 2 monl+'s- Whi!e n'laintaining conviction of appelio.nt No.2 BartiBiin under Sesctwn 323 read with Section 149 of 1+se Indian Pena! Code, her sentenca of rigorous imprlsonment for 6 months is a!tered to rigorous imprisonment for 3 months. Sentence shaii r-un concu'-reRtly. Convictton & sentence of <appel!ant N®.1Hvrdya Rann under Sectio" 304 Par!- II of the 3/idian Penal Code is altered to rigorcws imprisonment for 5 years instend of rigorous imprisonment for 7 years. Appeltcint No.l is on ba*i, he shall surrender in-.ir.ediatety befare the 2 Additionct Ssssions Judgs, Raipur for servirsg remainmg parr of SBritence imposed upon him. Fine, if paid by •th® oppellmts shall beadjusted. Sd/- T.P. Sharma Judge 8/-