JANPAD RAM Vs. STATE OF CHHATTISGHARH

JUDGEMENT

(1.) THESE appeals are directed against judgment dated 4 -11 -2006 passed by Sessions Judge, Korba, District Korba in Sessions Trial No.78/2005. By the impugned judgment, accused persons/appellants Janpad Ram and Ramprasad have been convicted and sentenced in the following manner with a direction to run the sentences concurrently: - <IMG>JUDGEMENT_460_CGLJ3_2013a1.jpg</IMG>

(2.) CASE of the prosecution, in brief, is as under: Paikuram (deceased) had cultivated brinjai and tomato in his field (fence). He was residing in a hut raised by him in the said field and was watching his vegetable crops therefrom. On 6 -11 -2005, at about 7 -8 P.M., the appellants came to the fence of the deceased and took Mahua liquor from him. At about 10 P.M., the appellants demanded a sum of Rs.5,000/ - from him. The deceased refused to give the sum. Premsingh (PW -1) had gone to attend call of nature. He, having heard noise of the deceased, came immediately to the hut of the deceased. He saw that appellant Janpad gave Tangiya blow on the head of the deceased. He tried to intervene. Appellant Ramprasad caught him and appellant Janpad assaulted him. Thereafter, appellant Janpad again assaulted the deceased. The appellants threw Premsingh (PW -1) towards the fire, due to which, he received burn injuries on his hands. Thereafter, the appellants fled. Premsingh (PW -1) remained lay down near the hut for the whole night. On the next day, he narrated the incident to Goverdhan (PW -4). The deceased died. Premsingh (PW -1) lodged Merg Intimation (Ex.P -1) in Police Station Kartala. He also lodged First Information Report (Ex.P -2). The investigating Officer reached the place of occurrence, gave notices (Ex.P -7 and P -18) to Panchas and prepared inquest (Ex.P -8) on the dead body of the deceased. The dead body of the deceased was sent to Community Health Centre, Kartala for post mortem examination vide Ex.P -19. Dr. B.S.Narvariya (PW -10) conducted post mortem on the dead body of the deceased and gave his report (Ex.P -26), in which, he found (i) lacerated wound, 1 1/3inchesx1/2inchx3/4inch, 9 inches above the tip of nose over parieto -occipital bone mid region, on dissection bone was found fractured in 11 pieces, (ii) lacerated wound, 1/2inch lateral to left parietal bone, 3/4inchx1/2inchx3/4inch, on dissection, blood was found filled in there and underneath skull bone was also found fractured. It was found that this was an ante mortem injury caused by hard and blunt object, (iii) abrasion on left shoulder, 1 1/4 inches, ante mortem in nature, caused by hard and rough object, (iv) abrasion on back portion of left shoulder, caused upto neck, 1 1/4inchesx1/4inch, ante mortem in nature and caused by blunt and rough object (v) abrasion on frontal region of abdomen, 1/2inch above umbilicus, 21/4inchesx1/4inch, ante mortem in nature and caused by hard and rough object, (vi) abrasion on back portion of right shoulder, 21/4inchesx1/4inch, ante mortem in nature and caused by blunt and rough object, (vii) lacerated wound over right cheek, linchx1/4iinchx1/2inch, ante mortem in nature, blood was found filled in on dissection, caused by hard and blunt object. He opined that the cause of death was coma due to fractured skull bone (internal bleeding). Premsingh (PW -1) was also sent to Community Health Centre, Kartala for medical examination vide Ex.P -14A. Dr. Vivek Pratap Singh Tanwar (PW -6) examined Premsingh (PW -1) and gave his report (Ex.P -14), in which, he found (i) lacerated wound, 2cmsxlcm, right side of skull on parietal aspect, just 5" above from ear (ii) blister (burn wound), 3inches1 1/2inches on right hand on palmer aspect just at the base of thumb and distal to wrist joint and on dorsal aspect of hand and all four fingers dorsal aspect. In further investigation, memorandum statement (Ex.P -3) of appellant Ramprasad Yadav was recorded under Section 27 of the Evidence Act and at his instance, a bamboo (Lathi) was seized vide Ex.P -5. Memorandum statement (Ex.P -4) of appellant Janpad Ram was also recorded under Section 27 of the Evidence Act and at his instance, a Tangiya was seized vide Ex.P -6. Plain soil, blood stained soil and white Gamchha were seized from the place of occurrence vide Ex.P -10. A full shirt was seized from appellant Janpad Ram Yadav vide Ex.P -11. Patwari Premlal (PW -8) prepared panchnama (Ex.P -12) and site -map (Ex.P -12A). Another site -map (Ex.P -9) was prepared by Sub -Inspector Yadumani Sidar (PW -9). The seized articles were sent to Forensic Science Laboratory, Raipur for chemical examination vide Ex.P -20. Report (Ex.P -22) was received therefrom. In Ex.P -22, it was found that articles A - blood stained soil, C - bori, D1 - Gamchha, D2 - shirt, H - baniyan and1 - godari were stained with blood. After completion of the investigation, charge -sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Korba, who, in turn, committed the case to the Court of Sessions Judge, Korba, who conducted the trial and convicted and sentenced the appellants as mentioned above.

(3.) MISS Nirupama Bajpai, learned counsel for appellant Ramprasad argued that no overt act of appellant Ramprasad is stated by Premsingh (PW -1). The prosecution has not been able to prove that appellant Ramprasad shared common intention to commit murder of the deceased. There is no clinching and reliable evidence against appellant Ramprasad. Therefore, conviction of appellant Ramprasad under Section 302 with the aid of Section 34 IPC is not sustainable.