Bhagwat And Others v. State Of Chhattisgarh
NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.376 of 2002
1. Bhagwat, aged about 38 years,
2. Laxminarayan, aged about 24 years,
3. Sohan, aged about 27 years,
4. Santosh, aged about 25 years, All sons of Chandulal Yadav and residents of Shyam Nagar, Camp 2, Police Station Chhawani, District Durg, Chhattisgarh ---- Appellants versus The State of Chhattisgarh through the District Magistrate, Durg, Chhattisgarh ---- Respondent For Appellants :
Ms. Indira Tripathi, Advocate For State/Respondent :
Ms. Smita Ghai, Panel Lawyer Hon'ble Shri Deepak Gupta, Chief Justice Hon'ble Shri Justice P. Sam Koshy C.A.V. Judgment Per Deepak Gupta, Chief Justice 28.
7.2016
1. This appeal by the accused/Appellants is directed against judgment dated 19.3.2002 passed in Sessions Trial No.106 of 1999 by the Additional Sessions Judge, Durg, whereby the accused/Appellants have been convicted for offences punishable under Sections 323/34, 325/34 and 302/34 of the Indian Penal Code and sentenced to undergo imprisonment as follows: Conviction Sentence Under Section 323/34 04 times of IPC 02 Months Rigorous Imprisonment to each Under Section 325/34 of IPC 06 Months Rigorous Imprisonment Under Section 302/34 of IPC Life Imprisonment (Total Life Imprisonment & One Year Two Months Rigorous Imprisonment)
2. The prosecution story, briefly stated, is that on 14.10.1998, at about 9:30 p.m., Complainant Sukhnandan, PW-1 heard voices of the Appellants, who were abusing him. He then went to the home of the Appellants and asked them why were they using filthy language against him? Thereafter, the Appellants and two others started quarrelling with the Complainant. With the intention of killing, they assaulted him with sword and lathis. They also beat the father of the Complainant, namely, Gangaram, PW-2 and brother of the Complainant, namely, Raghunandan (deceased) and also caused injuries to the mother of the Complainant, namely, Sahodara. Raghunandan died on 15.10.1998 due to the injuries sustained by him. Investigation was done in the matter. First Information Report, Ex.P-1 was recorded on the basis of the complaint made by Sukhnandan, PW-1. Thereafter the injured were medically examined and the medical reports are Ex.P-2 to P-5. Merg Intimation with regard to deceased Raghunandan was recorded vide Ex.P-8. Post mortem report in respect of the deceased is Ex.P-28.
3. Charges were framed against the accused/Appellants. They denied the guilt and pleaded innocence. The prosecution examined as many as 21 witnesses in support of its case. The accused/Appellants also produced number of documents in their defence.
4. Learned Counsel appearing for the Appellants argued that in the facts and circumstances of the case, offence under Section 302 IPC is not made out against the Appellants; at best, their offence is punishable under Section 304 Part II IPC. Learned Counsel further submitted that the Appellants have already suffered jail sentence for more than 5 years, therefore, they may be sentenced
for the period already undergone by them.
5. On the other hand, Learned Counsel appearing for the State opposing the submission of Learned Counsel appearing for the Appellants submitted that the impugned judgment of conviction and sentence does not call for any interference and the same deserves to be affirmed.
6. We have heard Learned Counsel appearing for the parties and have perused the evidence available on record with utmost circumspection.
7. From perusal of the record, it appears that Appellant Bhagwat had also lodged a First Information Report, Ex.D-4 regarding the same incident. The Appellants, in their defence, also produced injury reports and examination reports of doctor in respect of Appellant Laxminarayan vide Ex.D-5, Appellant Sohan vide Ex.D-6 and Appellant Bhagwat vide Ex.D-9.
8. From the evidence on record, it is more than apparent that there was a free fight between the parties. Cross FIRs were lodged. The defence of the Appellants is that it was the other side, who came to their house and directed them not to keep any relation with one Keshav Yadav. Since the Appellants did not agree, Sukhnandan, who was accompanied by Gangaram, Raghunandan and Santosh, carrying lathis and sword, came inside their house and assaulted them. From the medical reports, it is apparent that number of persons of both the sides received serious injuries. These injuries were caused both by lathis and sharp edged weapons. The same also stands proved from the statement of Sukhnandan, PW-1.
9. According to Sukhnandan, PW-1, on 14.10.1998, at about 10:00
p.m., he was waiting for his younger brother Raghunandan (deceased), who returned after selling milk. He called Raghunandan, who told him that he was going to tie the buffalo. Thereafter, Sukhnandan, PW-1 started washing his hands and face at the well. He then heard the voice of Chandulal. At that time, Laxminarayan, Bhagwat, Sohan, Keshav and Santosh started abusing. On hearing the abuses, he went to their house and asked them why were they abusing? As soon as he asked them about the reason for abusing, they started beating him. According to the witness, he was given 30-40 blows with danda. At that time, his brother Raghunandan came there and the accused beat him also. Thereafter, the witness went to the police station to lodge a report. The witness admitted that he had lodged the FIR, Ex.
P-1, in which the version given by him is totally different. In Ex.P-1, it is mentioned that he was abused by the accused party and when he objected, the accused party asked him why Itwari used to come to his house and they warned him not to allow Itwari to come to his house because Itwari used to perform black magic and they alleged that he was hand in glove with Itwari. When he refused the accused party started beating him with lathis. One of the assailants Santosh had a sword in his hand.
10.According to Sukhnandan, PW-1, he received many serious injuries and he was given 30-40 blows with lathis. However, the medical report, Ex.P-5 only shows one injury on his person. If the medical reports are seen, Gangaram, PW-2, the father of Sukhnandan, PW1 received 4 injuries as per the report Ex.P-2. The injuries were lacerated wound over the ear part, lacerated wound on the left leg below the knee, contusion on the right shoulder and lacerated wound on the vertebra measuring 4x1⁄2x1⁄2 cms. Sahodara, the
mother of Sukhnandan, PW-1 had sustained contusions on her right forearm and left shoulder. These injuries were not serious in nature. Raghunandan had two injuries. One of which was the injury on the head. It is also mentioned in the medical report that Raghunandan had consumed alcohol. The accused have also produced reports regarding the injuries received by them. These injury reports show that Appellant Laxminarayan had received a lacerated wound on the left temporal region extended to the right ear, 8x3 cms. Smell of alcohol was coming from his breath. This injury was serious in nature. As far as Appellant Sohan is concerned, he also had received a lacerated wound on the left side of the forehead. Appellant Bhagwat had sustained one lacerated wound on the left side of the forehead and another lacerated wound on the upper arm.
These injuries have not been explained by the prosecution. It is more than apparent that there was a free fight between the parties and both sides had used lathis and sharp edged weapons to assault each other. It is also not disputed that occurrence took place at the spur of the moment. It was not premeditated.
11.From the evidence on record, it is more than obvious that the prosecution party comprised of seven persons out of whom four were injured. The accused party also consisted of five persons out of whom at least four were injured. The evidence is not one of murder but at best is an evidence for offence under Section 304 IPC because the knowledge can be attributed to the accused party that if they had used weapons and lathis, somebody may have died. The intention to kill was not there.
12.From the above discussion, we are of the considered view that the accused/Appellants cannot be held guilty for offence punishable
under Section 302 IPC. Therefore, their conviction is altered to one under Section 304 Part II IPC. The occurrence took place more than 16 years back and, therefore, the substantive sentence imposed upon the Appellants is reduced to the period of punishment already undergone by them, which is more than 5 years.
13.The appeal is partly allowed to the extent indicated above. The Appellants are on bail. Their bail bonds are discharged subject to compliance by them of the conditions incorporated in Section 437A Cr.P.C.
Sd/- Sd/- (Deepak Gupta) (P. Sam Koshy) CHIEF JUSTICE JUDGE Gopal