SUNDER LAL Vs. STATE OF M P

JUDGEMENT

(1.) ON behalf of the appellants/ accused this appeal has been directed under Section 3 74(2) of Cr. P. C being aggrieved by the judgment dated 17.1.1996 passed by 1st Additional Sessions Judge Balaghat Camp at Waraseoni in S. T. No.67/93 whereby appellant No.1,2 and 4 were convicted under Section 147 and 323/149 of IPC for RI one year separately in both sections with a direction to run the same concurrently while the appellant No.3 has been convicted under Section 304-11 and 147 of IPC for RI seven years in earlier section while RI one year in later with a direction to run the sentence concurrently.

(2.) THE facts giving rise to this appeal in short are that on 15.11.1992 at about 20.00 O'clock Yograj (P.W. 10) lodged the FIR at Police Station Katangi against the appellants and some other persons contending that today at about 9.00 O'clock in the morning his father Chhotelal (deceased) was taken by accused Pendhari to his residence where Panda Khubilal and other persons were also present. They asked his father Chhotelal to remove his witchcraft created on Raganbai, the wife of Pendhari on which Chhotelal said that he had not carried out such activity. On which the appellants and the co- accused along with the persons present at such place started the beating of said Chhotelal by means of fists and kicks. The same was seen by complainant Yograj and his son Nandkishor, as they were also called. Subsequent to such beating Chhotelal was thrown away on the road where he died in the evening. On the aforesaid information a crime for the offence of Section 148,302 and 342 of IPC was registered against the appellants and some other named in the FIR. On completion of investigation the appellants along with co-accused were charge sheeted. After committing the case to the Sessions Court, on evaluation of charge sheet the charge of Section 147,148 r/w section 302 and 302/34 of IPC were framed against the appellants and co-accused while the charge of Section 109 r/w section 302 of IPC was framed against co- accused Raganbai. All the accused abjured the guilt on which the trial was held. On appreciation of evidence by acquitting the co-accused Pitamlal, Raganbai and Chainlal from the alleged charges the appellant No.3 Dhaniram @ Kara was held guilty for the offence of Section 304-11 and 147 of IPC while the other co-accused including the appellants were held guilty for the offence of Section 147 and 323/149 of IPC and they were punished with the above mentioned sentence. Being dissatisfied with such conviction and sentence, appellants have come to this Court with this appeal.

(3.) HAVING heard the counsel at length keeping in view their arguments, I have carefully gone through the record of the trial Court along with the impugned judgment. It is apparent fact on record that the deceased Chhotelal was taken from his residence by Pendhari the husband of acquitted co-accused Raganbai to his residence where besides the appellants and co-accused various other persons were also assembled and in their presence the deceased Chhotelal was asked by Pendhari and Panda Khubilal along with some other persons to get rid of witchcraft created by him on Raganbai, till then no incident was happened but on giving reply by Chhotelal that he could not get rid the same as it was not carried out by him then he was subjected to beating by fists and kicks not only by the appellants but by some other persons also and in such beating deceased Chhotelal sustained the alleged injuries. As per case of the prosecution Yograj and Nandkishor were also present at the place of incident and saw the beating of Chhotelal, their father and grand father respectively. It is also apparent that such incident was happened between 9.00 am to 4.00 p. m. and as per medical evidence during such period the alleged injuries were sustained by Chhotelal. In such premises one thing is apparent that appellant along with so many persons including the convicted co-accused were present on the place of the incident and they also participated in the same. In order to prove the participation of the appellants co-accused and other persons in the alleged incident the prosecution has examined said Nandkishore (P.W.9) and Yograj (P.W.10) on recording their depositions they categorically made allegations regarding beating of deceased Chhotelal against the appellants as well as the other implicated co-accused. But neither in the FIR lodged by Yograj nor in the case diary statements of any of the aforesaid witnesses the allegations against appellant No.3 Dhaniram @ Kara for causing the head injury to the deceased Chhotelal was made, on the contrary such allegation was made in the case diary statement of Yograj against Khubilal (Panda). But at trial on recording the deposition, Yograj has not made such allegation against any specific accused in his inchief but in cross examination in response of suggestive questions of defence in paragraph 13 of his deposition it has come that head injury was caused to Chhotelal by appellant No.3 Dhaniram @ Karu.