THANU Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) The following judgment of the Court was delivered by Justice. L.C. Bhadoo

(2.) The accused/appellants have preferred these appeals under Section 374(2) of the Criminal Procedure Code being aggrieved by the judgmentT dated 28/2/2002 passed by the Fourth Additional Sessions Judge. Jagdalpur, Baster in Sessions Trial No. 28 of 1989. by which learned trial Court after holding the accused/appellants Thanu, Rajendra, Shankar Rao, and Anish Gopu guilty of the offences punishable under Sections 147, 364, 302 read with 149 of the Indian Penal Code convicted and sentenced each of them as follows: U/s.147 I.P.C. 2 years R.I. and fine of Rs. 100/- in default of payment of fine amount to undergo one monthTs R.I. All the sentences were directed to run concurrently. However learned Additional Sessions Judge acquitted the accused persons for the offences punishable under Sections 148 and 307 of the I.P.C. and Section 25 of the Indian Arms Act.

(3.) The relevant prosecution story for the disposal of these appeals are that on 18th June. 1988 deceased Mohan Tiwari along with his friends Balvinder Singh and Bhagwani had gone to watch a movie in Narendra Talkies in the night show starting from 9 p.m. When the movie was going on they came out of hall to urinate, at that time accused persons caught Mohan Tiwari and started inflicting injuries. When Balvinder Singh intervened/ resisted, then the accused persons also gave beating to him. Thereafter they took Mohan Tiwari in a rickshaw, towards city ground and again inflicted injuries and fled away from the site. The persons residing in the vicinity of city ground saw Mohan Tiwari in injured condition and took him to the Maharani Hospital and got him admitted in the said hospital. In the same night at about 12.30 a.m. - 1.00 a.m. on receiving a written intimation by Assistant Sub Inspector D.R. Singh from the hospital that Mohan Tiwari is admitted in the hospital, he sent an intimation to the Sub Divisional Magistrate for getting the dying declaration of Mohan U/s. 364 I.P.C. Imprisonment for life and fine of Rs. 300.00. in default of payment of fine amount to undergo 3 months R.I. U/s. 302 r/w 149 of I.P.C. Imprisonment for life and fine of I.P.C. Rs. 500.00. in default of payment of fine amount to undergo 6 months R.I. Tiwari recorded, and he reached to the Hospital, when he saw Mohan Tiwari in conscious condition he recorded his dying declaration and gave a written request to the Assistant Surgeon for medical examination of Mohan Tiwari. Thereafter he came to the police station and based on the said dying declaration of Mohan Tiwari registered the First Information Report for the offence punishable under Section 307/34 of the Indian Penal Code. However Mohan Tiwari succumbed to the injuries in the same night at 4.00 a.m. and after receiving this information of death of Mohan Tiwari the Assistant Sub Inspector D.R. Singh on 19-6-1998 again reached to the hospital and prepared a panchayatnama of the dead body in presence of the witnesses and requested for conducting post-mortem of the dead body. Thereafter Sanjay Borker, S.H.O Police Station took up the investigation and he reached to the Maharani Hospital, seized the clothes of the deceased viz, underwear, gamcha, shirt and full pant. Thereafter he inspected the site of occurrence from where he took into possession the simple soil and blood contained soil. On 20-6-1988 he took into custody accused Rajendra, Ramkrishna Ram Gudda. Ramesh Kumar and Thanu Yadav and interrogated them in presence of the witnesses and on the information given by them he seized sword, danda and batta (thick wooden piece) from a well situated near city ground. On 22-6-1988 he arrested accused Abdul Rashid, Devendra Soni and Mahesh Petia and on the information given by them he seized batta (thick wooden piece) from the bush standing near city ground. Thereafter he sent the seized weapons to Dr. Dewangan for his opinion whether the injuries found on the body of Mahesh Tiwari can be caused, by these weapons and thereafter sent the seized articles and soil for chemical examination.