GAJJU @ ARUN YADAV Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Appellant Gajju @ Arun Yadav has been convicted for offence punishable under Section 302 read with Section 34 of the IPC and sentenced to imprisonment for life and further sentenced to fine of ? 5,000/- and in default of payment of fine, one year RI has been imposed upon him. Feeling aggrieved against the judgment of conviction recorded and sentence awarded, this appeal under Section 374 (2) of the CrPC has been preferred.

(2.) Essential facts unfolded during the course of trial are as under:-

(3.) Mr. B.N. Nande, learned counsel appearing for the appellant, would submit that the prosecution has miserably failed to bring home the ingredients of offence of Section 302 read with Section 34 of the IPC against the appellant. He would further submit that severe dagger blow was caused by co-accused Madan and Shera. Neither there is any intention on the part of the present appellant nor he has participated in the crime in question by extending any overt-act and as such, conviction of the present appellant is based on surmises and conjectures and in fact, he has been convicted with the aid of Section 34 of the IPC which is not at all attracted in absence of any intention and overt-act on the part of the appellant, therefore, the present appellant is entitled to be acquitted. Lastly, he would submit that co-accused Tulsi Yadav, who has slapped deceased Narendra Yadav and who was also convicted by the learned Additional Sessions Judge in a separate S.T.No.97/2006 vide judgment dated 29-7-2006, had preferred Criminal Appeal No.835/2007 in which his conviction for offence under Section 302 read with Section 34 of the IPC has been set aside and he has been convicted only for offence under Section 323 of the IPC and sentenced to undergo RI for one year and therefore the case of the present appellant is better than that of Tulsi Yadav, as he has slapped the deceased and was only convicted for offence under Section 323 of the IPC, whereas, allegation and evidence brought against the present appellant is only that he instigated the other coaccused to kill deceased Narendra Yadav as such, there is no overt-act on the part of the appellant, therefore, he is entitled for clear acquittal by granting this appeal.