HON. .SHRI YATINDRA SI.NGH, C.J v. State of Chhattisgarh

HON. .SHRI YATINDRA SI.NGH, C.J. & HON'BLE SHRI PRITINKER DIWAKER, J CR. A. N0. 658 of 1996 APPELLANT Nanku @ Nan @ Sukhlal VERSUS RESPONDENT State of Chhattisgarh CR. A N0. 778 OF 1996 APPELLANT Dhan Singh VERSUS RESPONDENT State of Chhattisgarh CR.A.NO. 779 OF 1996 APPELLANT Dharamsai VERSUS RESPONDENT . State of Chhattisgarh Present: Shri R.K.Jain, counsel for the appellants. Shri D.K.Gwalre, G.A. for the State. JUDGMENT (25.07.2013) As these appeals arise out of the same judgment and order by Additional Judge, Sessions

12.3.96 passed Manendragarh District Surguja in S.T. No. 230/95 convicting the accused/appellants under Section 302/34 IPC and sentencing thern to undergo imprisonment for life, they are being disposed of by this common judgment.

2. In the present case, name of the deceased is Jethu..As per '%^s^ "-^sy^c^"^ .^ prosecution case wife of accused/appellant No.l Dharam Sai eloped with the nephew of deceased namely Ajmer Singh S/o. Machal Singh and for which village panchayat was called and in the said meeting Ajmer Singh was asked to give Rs. 7,000 to 1 Dharam Sai. It is alleged that on account of the appellant No. above incident, accused/appellants 1 and 2 namely Dharam Sai and his brother Dhan Singh were having animosity with the family of the deceased andon the date of incident i.e. 28.11.94, accused/appellants beat the with club affcer tying him with rope. FIR (Ex. P-8) was lodged on 29.11.94 at 6.00 p.m by brother of the deceased Machal Singh (PW-1) against 'deceased accused/appellants under Section 302/34 IPC. Merg intimation (Ex.P-9) was also recorded on 29.11.94 at about 6.05 p.m at the instance ofMachal Singh (PW-1). Postmortem examination on the body ofdeceased Jethu was conducted on 01.12.1994 vide Ex.P-6 by Dr. A.K.Jain (PW-6) who noticed nine external including contusions and abrasions and further noticed fractures injuries of sixth and seventh rib in the right and fourth and fiffch rib in the left side. He opined that the cause of death was shock due to excessive haemorrhage owing to fracture of ribs and other associated injuries including lungs. After investigatipn charge sheet was filed on 5.1.95 under Section 302/34 IPC against the accused persons and accordingly charges ere framed.

3. In support of its case prosecution has examined 12 the accused/appellants were witnesses. Statement of recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pl'eaded their innocence and false implication in the case. After hearing the parties,

4. sentenced the accused/appellants as mentioned in para one of this judgment. Hence the present appeal. trial Court has convicted and 5 Shri Jain, counsel the appellants submit accused/appellants No.l and 2 were not having any ill will with ,^€:^'^ i.i?-y^.rf>sh»K.3,^;, ?'; ^^/: the family of the deceased as their earlier dispute was settled in the village panchayat and fine of Rs. 7,000 was imposed on appellant No.l Dhan Sai. He.submits that Machal Singh (PW-1) brother ofthe deceased ha.s also admitted this fact that there was no dispute between the accused/appellant No. 1 and the deceased and after receiving the fine amount the matter was settled. he further submits that on the date of incident deceased who was a- miscreant entered the house of accused/appellants 1 & 2 where he was beaten but unfortunately he died. He submits that no role whatsoever has been attributed to appellant No. 3 Nanku and merely on the 'basis of his presence in the house accused/appellants 1 & 2 would not make him liable for commission of any offence. He submits that considering the injuries sustained by the deceased, the fact that he entered the house of appellants 1 and 2 for committing theffc and was beaten, even if taken as it is, the act of the accused/appellant's 1 and 2 would not fall under Section 302/34 IPC and would fall under Section 304 (Part-II) IPC. He submits that the appellants 1 and 2 for about 9 years and after have already remained in jail convicting them under Section 304-11 IPC their sentence be reduced to the period already undergone by them. In respect pf appellant No.3 Nanku @ Nan @ Sukhlal it has been argued -that this appellant was a domestic help in the house of appellants 1 and 2 and his presence in the house was natural and the fact that he was present there does not mean that he was the perpetrator of the crime specially when no role has been attributed to him.

6. On the other hand supporting the impugned judgment it has been argued by the State counsel that the conviction of the accused/appellants is strictly in accordance with law and there is no infirmily in the.same.

7. Heard coun'sel for the parties and perused the material available on record.

8. Machal Singh (PW-1) - brother of deceased Jethu has stated •:t1'^ "t^l £ ^ that on the date of incident he was informed by Jageshwar that the dead body of his brother was lying in the thrashing field of accused/appellant No.l Dharam Sai and when he reached the place of occurrence he found that Sarpanch of the village and Patel were already. present there along with other villagers. He has stated that Dakhal him that informed Sai accused/appellants who had killed his brother. He has stated that about 20 days prior to the death of the deceased his son Ajmer Singh eloped with the wife of accused/appellant No.l for which a panchayat meeting was called in which it was decided tbat his son would give Rs. 7,000 to appellant No.l and on account of this issue the accused/appellants were having enmity with his family. in cross-examination he has stated that once the However compensation was given to accused/appellant No.l there was no dispute between the two families. Various suggestions were given to this witness regarding past criminal record of the deceased but he has denied all-those suggestions. However, he has admitted the fact that on one o'ccasion deceased was held guilty by the panchayat as he had entered the house of one Mangal Sai Panika. Balram Singh (PW-2) is a witness to inquest (Ex. P-1) and also a witness to seizure of lathi from accused/appellant No.l vide Ex.P-

2. Amarnath (PW-3) is a seizure witness to Ex.P-5 by which one club was recovered • from the accused/appellant Dhan Singh. Though he has not supported the seizure but has admitted his signature in the document. Ajmer Singh (PW-4) has not stated anything specific against the accused/appellants. Dakhal Sai (PW- 5) has not supported the prosecution case and has been dedared hostile. However in cross-examination he has stated that he was informed by accused/appellant No.l Dharam Sai deceased entered his house for committing theft of hen and while running away he fell in a pit and died. In the exaniination-in-chief he has stated that he saw the dead body of the deceased in the. thrashing field of appellant No.l and he was shouting uchor, chorv. Dr. A.K.Jain (PW-6) conducted postmortem examination on the body of the deceased and noticed nine external injuries including contusions and abrasions and further noticed fractures of sixth '-^ ".fc, :—-:•< (^^u~ --...-.-^1^1 and seventh rib in the right and fourth and flffch rib in the left side. He opined that cause of death was shock due to excessive haemorrhage owing to fracture. of ribs and other associated injuries including lungs. Bechu Singh (PW-7), Bachcha Lal. (PW-8) Heeralal (PW-9) and Ram Lal (PW-10) have not stated anything against the accused/appellants and have been declared hostile. Jageshwar Singh (PW-11) has stated that he knew the accused/appellants and it is the accused/appellants 1 and 2 who tied the deceased in their thrashing field with a nylon rope and accused/appellant No.3 was also there along with Bachchalal, Heeralal, Vishwanath, Ramlal, Dakhal Sai and Jethuram chowkidar. He has stated that when he reached the place of occurrence he was scolded by Heeralal that they have tied the thief and accused/appellant No.2 Dhan Singh was saying that unless Rs. 4,000/- was given to them they will not let htm free. He has stated that at that time deceased was alive. Ram Gopal Pandey (PW-12)- Head Constable is the Investigating Officer who has duly supported the prosecution case.

9. Close scrutiny of the evidence and statement of witnesses available on record shows that on the fateful night deceased entered-the house of accused/appellants 1 and 2 for committing some theft and there he was beaten by the accused/appellants. Name of appellant No.3 has been roped in in the present case alleging that he too was there in the house of accused/appellants 2. Thus, 1 accused/appellants'l & 2 does not show their intention to commit murder of the deceased and it appears that they simply beat the deceased without there being any intention to commit his murder. From their act it is clear that they had the knowledge that their act was likely to cause death or to cause such bodily injury to the deceased as is likejy to cause his death. Considering this aspect of the case, according to the considered opinion of this Court, act of the accused/appellants 1 & 2 would fall under Section 304(Part-II) 302 IPC. Accordingly, conviction accused/appellants u/s. 302/34 IPC is set aside and they stand "'i. "-^ ^^ ^ G convicted u/s. 304 (Part-II) IPC.

10. So far as accused/appellant No.3 is concerned, from the evidence on record it is apparent that he was was a domestic help in the house of appellants 1 and 2 and his presence in the house was natural and the fact that he was present there does not mean that he was the perpetrator of the crime. Thus it can be held that there is no conclusive evidence against him for connecting him with the murder of the deceased and therefore he is entitled for benefit of doubt. Accordingly, appellant No.3 is acquitted of the offence levelled against him under Section 302 IPC specially when no specific allegation has been made against him.

11. Next point which requires consideration is as to what would be the appropriate sentence to appellants 1 & 2 under Section 304 (Part-II) IPC. It has been informed by counsel for the parties that appellants 1 & 2 'have already remained in jail for more than 8 years. Considering the fact that the appellants are middle aged persons; the incident had taken place in the year 1994, they have already remained in jail for more than 8 years, have no criminal their 'sentence is reduced to the period already antecedents, undergone by them. .

13. Accused/appellants are reported to be on bail. Bail bonds shall continue for a period of sbc months in terms of Section 437-A Cr.P.C. In the result, the appeals are partly allowed. Suguna Sd/- Chief Justice Sd/- pritinkerDiwaker Judge