Balkaran Uraon And Another vs State Of Chhattisgarh
2022 Latest Caselaw 6517 Chatt

                                      1

                                                                      NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                           CRA No. 500 of 2012

  1. Balkaran Uraon S/o Manbodh Uraon, aged about 35 years,

  2. Karam Sai @ Kamma, son of Manbodh Uraon, aged about 42 years,

     Both R/o Village Baramkela Sidhavadand , P.S. Manendragarh, District
     Koria C.G., At Present Village Budhar, Baratarihapara, P.S. Patna,
     District Koria (C.G.)

                                                               ---- Appellant

                                  Versus

   • State Of Chhattisgarh, through Police Station Patna, District Koria (CG)

                                                            ---- Respondent

CRA No. 1300 of 2016

• Devkaran @ Dev Prasad S/o Manbodh, Caste Uraon, Aged About 33 Years, R/o Village Barkela, Sidhavadand, Police Station Manendragarh, District Koria, Chhattisgarh.

---- Appellant

Versus

• State Of Chhattisgarh Through Police Station Baikunthpur, District Koria, Chhattisgarh.

---- Respondent

For Appellants : Shri Rahul Agrawal, Advocate. For Respondent : Shri Arjit Tiwari, Panel Lawyer.

Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ

JUDGMENT ON BOARD

(02/11/2022 ) Sanjay K. Agrawal, J

CRA No. 500 of 2012

1. By this Appeal under Section 374 (2) of the CrPC, the appellants

herein would call in question the legality, validity and correctness of

the impugned judgment dated 31st May, 2012 passed by the 1st ASJ,

Manendragarh, District Koria in ST No.111/2011 whereby the

appellants have been convicted under Sections 302 and 323/34 of the

IPC and sentenced to undergo RI for life & to pay a fine of

Rs.1,000/-, with usual default stipulation and to undergo RI for one

year respectively.

2. Case of the prosecution is that on 20.8.2011 at about 10 am, at village

Budhar, Baratarihapara, in a public place, the accused/appellants had

abused deceased Dular Sai, Rajaram (PW-4) and Meera Bai (PW-7)

and in furtherance of their common intention assaulted deceased

Dular by means of spade and also assaulted Meera Bai with club, as a

result of which the deceased sustained grievous injuries and he was

taken to the hospital.

3. It is an admitted position on record that father of the appellants and

the deceased are brothers. In respect of the suit land, mutation order

passed by the Naib Tehsildar has been set aside by the Sub Divisional

Officer (Revenue) vide order dated 3.3.2011 (Ex.-D/1) and thereafter

during the pendency of the appeal, some part of the suit land has been

sold to Sushil Kumar and Anod Kumar vide Ex.-D/15. It is also an

admitted position on record that after passing of the order, the Sub

Divisional Officer remanded the matter to the Tehsildar to decide the

matter concerning mutation in accordance with law. Deceased Dular

Sai preferred a civil suit against the father of the appellants and also

sought setting aside the order passed by the SDO. It is also an

admitted position on record that one day prior to the date of the

incident i.e. 19.8.2011, Manbodh lodged a report in the Police Station

Patna against the deceased Dular Sai stating that he has sown the

crop but deceased Dular Sai is trying to plough the field.

4. It is the further case of the prosecution that on the date of the

incident, the deceased, Rajaram (PW-4) and Meera Bai (PW-7) were

working on the field, at that time, both the appellants and the other

accused (Devkaran) came on the spot and questioned their authority

to clean the field, abused and threatened. They assaulted the

deceased by means of spade and wooden stick, as a result of which

the deceased received injuries. He was taken to the hospital where he

died. Earlier, the matter was reported by the deceased himself on

20.8.2011, pursuant to which offence under Sections 307, 294, 323 &

34 of the IPC was registered.

5. Map was prepared vide Ex.-P/10. The deceased was firstly referred

to the CHC, Patna and thereafter referred to the District Hospital

where he was admitted, however, he died on the same day at about 3

pm vide Ex.-P/23. Merg was registered and on the recommendations

of the Panchas, the dead body was sent for postmortem examination

in order to ascertain the cause of death. The postmortem was

conducted on the dead body of the deceased by Dr. G.S. Paikra (PW-

14), who gave his report vide Ex.-P/24 wherein he opined that the

cause of death is due to cardio respiratory arrest due to head injury

and the death is homicidal in nature. Thereafter, both the appellants

were taken into custody and pursuant to the memorandum statement

of appellant Balkaran spade was recovered, which was sent for

examination to the District Hospital, but no blood was found on it

vide report Ex.-P/8. Similarly pursuant to the memorandum

statement of appellant Karam, bamboo stick was seized and the same

was also sent for examination to the District Hospital wherein no

blood was found.

6. After due investigation, the appellants were charge sheeted for the

offences mentioned in the opening paragraph of this judgment.

Thereafter, the case was committed to the Court of Sessions. The

accused-appellants abjured their guilt and entered into defence.

7. The prosecution in order to prove its case examined as many as 16

witnesses and exhibited 28 documents, whereas the accused-

appellants in support of their defence examined 02 witnesses,

namely, Manbodh (DW-1) and Phool Bai (DW-2) and exhibited 16

documents.

8. The learned trial Court after appreciating the oral and documentary

evidence available on record proceeded to convict the appellants for

offences as mentioned herein-above, against which this appeal has

been preferred questioning the impugned judgment of conviction and

order of sentence.

9. Learned counsel for the appellants would submit that eyewitnesses

namely, Rajaram (PW-4), Ashish Tirki (PW-6) and Meera (PW-7)

are relative witnesses and, therefore, their evidence cannot be relied

upon. Though spade has been recovered from appellant Balkaran

pursuant to his disclosure statement, but it has not been proved

beyond reasonable doubt, as no blood was found on the spade and,

therefore, the same cannot be relied upon as weapon of offence and it

cannot be said that the spade was actually used for commission of

offence. Furthermore, as against Dular Sai (deceased), a revenue

dispute was pending consideration pursuant to the order of Tehsildar,

which was in favour of deceased Dular Sai and a civil suit was also

pending consideration with regard to the suit land and, therefore, the

appellants have been falsely implicated. At the most, as against the

appellant No.1 - Balkaran, offence would fall within the purview of

Exception 4 to Section 300 of IPC, and, as such, it is a fit case where

the conviction of appellant No.1- Balkaran can be converted/altered

to an offence under Section 304 (Part-II) of IPC. So far as appellant

No.2 - Karam Sai is concerned, eyewitnesses namely, Rajaram (PW-

4), Ashish Tirki (PW-6) and Meera (PW-7), in their evidence have not

attributed any overt act against this appellant, therefore, conviction

imposed on this appellant with the aid of Section 34 of the IPC is also

not proved. Thus, the conviction imposed on the appellants under

Sections 302 and 323/34 of the IPC is liable to be set aside.

10.Per contra, learned State Counsel would support the impugned

judgment on submission that three eyewitnesses namely, Rajaram

(PW-4), Ashish Tirki (PW-6) and Meera (PW-7) have clearly stated

about the role of the appellants in crime in question and their

evidence inspire confidence of the Court. Furthermore, spade and

stick have been recovered and proved beyond all reasonable doubt,

though the FSL report is negative. Therefore, the Appeal deserves to

be dismissed.

11.We have heard learned counsel for the parties, considered their rival

submissions made herein-above and went through the records with

utmost circumspection.

12.The first and foremost question is as to whether the death of the

deceased was homicidal in nature, which the learned trial Court has

answered in affirmative by taking into consideration the oral and

documentary evidence available on record, particularly considering

the postmortem report (Ex.-P/24) which is duly proved by the

evidence of Dr. G.S. Paikra (PW-14), we are of the considered

opinion that the learned trial Court is justified in holding that the

death of the deceased is homicidal in nature and the same is correct

finding of fact based on evidence and the same is neither perverse nor

contrary to the record. We accordingly affirm the said finding.

13.Now the next question would be whether the accused/appellants

herein are perpetrators of the crime in question?

14.We shall take the case of the appellants No.1 & 2 one by one. So far

as appellant No.1 - Balkaran Uraon is concerned, (PW-4) Rajaram,

son of the deceased; (PW-7) Meera, daughter of the deceased and

(PW-6) Ashish Tirki have stated in their evidence that though the

appellant No.1 assaulted with spade in the back portion of the head of

the deceased by which he suffered injuries, as a result he fell down

and he was taken to the hospital where he succumbed to the injuries,

however, nothing has been brought on record in their lengthy cross-

examination to hold that they have exaggerated the incident.

Furthermore, from the memorandum statement of appellant No.1,

spade has been recovered, however, no blood stain was found on it,

but lacerated wound was present over left leg 2" above ankle joint in

the size of 2cm x 2cm, bone deep; abrasion was also present over

middle interior aspect of the left thigh in the size of 2cm x 1 cm

oblique; lacerated wound was present over right lateral aspect of knee

in the size of 2 cm x 2 cm muscle deep and as per the opinion of the

doctor, the injury over the head may be caused by hard, heavy and

blunt object and other injuries may be caused by hard and blunt

object. In that view of the matter, we hold that so far as appellant

No.1 is concerned, he has caused spade blow to the deceased Dular

Sai, as a result of which he died.

15.The aforesaid finding brings us to the next question for consideration,

which is, whether the trial Court has rightly convicted the appellant

No.1- Balkaran for offence under Section 302 of IPC or his case is

covered with Exception 4 of Section 300 of IPC vis-a-vis culpable

homicide not amounting to murder and, thus, his conviction can be

converted to Section 304 Part II of IPC, as contended by learned

counsel for the appellants?

16. The Supreme Court in the matter of Sukhbir Singh v. State of

Haryana1 has observed as under:-

"21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year."

17. The Supreme Court in the matter of Gurmukh Singh v. State of

Haryana2 has laid down certain factors which are to be taken into

consideration before awarding appropriate sentence to the accused

with reference to Section 302 or Section 304 Part II of IPC, which 1 (2002) 3 SCC 327 2 (2009) 15 SCC 635

state as under :-

"23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen fro its special perspective. The relevant factors are as under :

(a) Motive or previous enmity;

(b) Whether the incident had taken place on the spur of the moment;

(c) The intention/knowledge of the accused while inflicting the blow or injury;

(d) Whether the death ensued instantaneously or the victim died after several days;

(e) The gravity, dimension and nature of injury;

(f) The age and general health condition of the accused;

(g) Whether the injury was caused without premeditation in a sudden fight;

(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

(I) The criminal background and adverse history of the accused;

(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

(k) Number of other criminal cases pending against the accused;

(l) Incident occurred within the family members or close relations;

(m) The conduct and behaviour of the accused after the incident.

Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused."

18. Likewise, in the matter of State v. Sanjeev Nanda3, their Lordships

of the Supreme Court have held that once knowledge that it is likely

to cause death is established but without any intention to cause death,

then jail sentence may be for a term which may extend to 10 years or

with fine or with both. It has further been held that to make out an

offence punishable under Section 304 Part II of the IPC, the

prosecution has to prove the death of the person in question and such

death was caused by the act of the accused and that he knew that such

act of his is likely to cause death.

19. Further, the Supreme Court in the matter of Arjun v. State of

Chhattisgarh4 has elaborately dealt with the issue and observed in

paragraphs 20 and 21, which reads as under :-

"20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under :

(SCC p. 220, para 7) "7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii)

3 (2012) 8 SCC 450 4 (2017) 3 SCC 247

there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly."

21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9) "9. .... '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of

Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in the provisions means "unfair advantage".

20.In the matter of Arjun (supra), the Supreme Court has held that if

there is intent and knowledge, the same would be case of Section 304

Part-I of IPC and if it is only a case of knowledge and not the

intention to cause murder and bodily injury, then same would be a

case of Section 304 Part-II IPC.

21. Further, the Supreme Court in the matter of Rambir vs. State (NCT

of Delhi)5 has laid down four ingredients which should be tested for

bringing a case within the purview of Exception 4 to Section 300 of

IPC, which reads as under:

"16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:

(i) There must be a sudden fight;

(ii) There was no premeditation;

(iii) The act was committed in a heat of passion; and

(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner."

22.Reverting to the facts of the present case in light of above principles

of law laid down by the Supreme Court, it is an admitted position on

record that prior to the date of the incident, on 3.3.2011, the Sub

Divisional Officer (Revenue) passed an order with respect to the land

situated at Budhar in which father of the appellants and deceased 5 (2019) 6 SCC 122

Dular Sai were party and the SDO (Revenue) had set aside the

mutation in favour of Dular Sai and directed the concerned Tehsildar

to pass fresh order, in accordance with law. It is also an admitted

position on record that one day prior to the date of the incident i.e.

19.8.2011, Manbodh, father of the appellants, lodged a report at

Police Station Patna stating that they had sown the paddy crop in

their agricultural field and the deceased party had deliberately taken

possession of their land and started ploughing their agricultural field

and again sown the paddy crop vide Ex.-D/2. It is also an admitted

position that the offence has been registered against Rajaram vide

Ex.-D/4. On 20.4.2011, deceased Dular Sai preferred a civil suit

against the father of the appellants, wherein he had sought

permanent injunction against the appellants and his brother, which

was pending consideration on the date of the incident. It is pertinent

to note that vide Ex.-D/15 & D/16, after the order of mutation, the

deceased had sold the land to Sushil and Anod Kumar, and as such

the parties are litigating over the said land since long, and one day

prior to the date of the incident, Manbodh, father of the appellants,

lodged a report for taking action against the deceased Dular Sai. In

that view of the matter, since the dispute over the land was going on

till the date of offence by filing mutation proceedings, we are

inclined to hold that there was no pre-meditation on the part of the

appellants, particularly, appellant No.1 - Balkaran to cause death of

the deceased and to cause injury to Meera, however, on grave and

sudden provocation on account of dispute about possession of the

land, the appellant No.1 assaulted the deceased as a result of which

he suffered injuries and died, but the appellant No.1 must have

knowledge that injury by spade is likely to cause death of the

deceased. As such, looking to the nature of injuries, it cannot be said

that appellant No.1 - Balkaran has not taken any undue advantage or

acted in a cruel or unusual manner. As such, his case would fall

within the purview of Exception 4 to Section 300 of IPC, and,

therefore, the conviction of the appellant No.1 - Balkaran under

Section 302 of IPC can be altered/converted to Section 304 (Part-II)

of IPC. He is in jail since 21.8.2011 to 12.4..2017 i.e. for about 6

years 4 months. In the circumstances, ends of justice would be

served if the appellant No.1 is sentenced to the period already

undergone by him.

23.So far as appellant No.2 Karam Sai is concerned, as per the evidence

of eyewitnesses namely, Rajaram (PW-4), Ashish Tirki (PW-6) and

Meera (PW-7), they have not stated that appellant No.2 - Karam Sai

made any assault on the deceased except saying that the appellant

No.2 was also present. (PW-9) Sushil, (PW-11) Urgrasen and (PW-

12) Rajesh @ Rakesh are alleged to be eyewitnesses and friend of

purchaser of the land from deceased Dular Sai. Though they have

simply stated that appellant No.2 - Karam Sai assaulted the deceased

with club, but in view of the evidence of eyewitnesses namely,

Rajaram (PW-4), Ashish Tirki (PW-6) and Meera (PW-7), no overt

act has been attributed to this appellant. Furthermore, pursuant to the

memorandum statement of appellant No.2 Karam Sai, bamboo stick

was seized and the same was also sent for examination, however, no

blood was found on it. Therefore, it cannot be said that the bamboo

stick was actually used in commission of offence. In view of the

above, we are inclined to hold that there is no evidence that appellant

No.2 - Karam Sai has assaulted the deceased and conviction imposed

on appellant No.2 Karam Sai under Section 302 of the IPC cannot be

sustained.

24.Both the appellants have been convicted with the aid of Section 34 of

the IPC.

25.In order to consider the plea, it would be appropriate to quote Section

34 of IPC, which reads as under:

"34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

26.The Supreme Court in the matter of Dukhmochan Pandey (supra)

while considering the applicability of Section 34 of IPC held that in

order to invoke Section 34 of IPC the evidence and the circumstances

of the case must establish that a meeting of minds and a fusion of

ideas had taken place amongst the different accused and in

prosecution of it the overt acts of the accused persons flowed out and

held in Para-08 of the judgment as under:

"8. ..... For an inference of common intention being drawn for the purposes of Section 34, the evidence and the circumstances of the case should establish, without any room for doubt, that a meeting of minds and a fusion of ideas had taken place amongst different accused and in prosecution of it the overt acts of the accused persons flowed out. As has been stated earlier the prosecution case itself is, they came to prevent the labourers from continuing the transplantation operation but at the spur of the moment on account of certain lalkara being given by some of the accused persons. Persons armed with weapons started assaulting the deceased. But from mere assault even not on vital parts of the body which ultimately resulted in causing some minor injuries, it may not be sufficient to establish beyond reasonable doubt that they also shared a common intention of causing murder of deceased Ahmed Shah. In this view of the matter, the conviction of appellants Uttam Pandey, Janak Das, Sanjam Pandey, Upendra Narain Pandey, Jaogeshwar Mandal and Kapileshwar Mandal under Section 302/34 IPC for causing murder of deceased Ahmed Shah cannot be sustained and the same is set aside....."

27.Similarly, in the case of Balvir Singh (supra) the Supreme Court in

Paras-33, 34 & 38 held as under:

"33. To invoke Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that: ( i) there was common intention on the part of several persons to commit a particular crime, and ( ii) the crime was actually committed by them in furtherance of that common intention. The essence of liability under Section 34 IPC is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result.

Minds regarding sharing of common intention gets

satisfied when an overt act is established qua each of the accused. Common intention implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Criminal act mentioned in Section 34 IPC is the result of the concerted action of more than one person and if the said result was reached in furtherance of common intention, each person is liable for the offence as if he has committed the offence by himself.

34. Observing that the inference of common intention is to be drawn from the conduct of the accused, in Ramesh Singh alias Phooti v. State of A.P. (2004) 11 SCC 305, the Supreme Court held as under:- "12. ....... As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principle of joint liability in doing the criminal act based on a common intention.

Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made, and from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this

regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. (See Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra (1970) 1 SCC 696)" The decision in Ramesh Singh was referred to in Balu @ Bala Subaramaniam and another v. State (UT of Pondicherry) (2016) 15 SCC 471.

**** ***** ***** ****

38. ..... If accused Nos.2 and 3 have shared the common intention, they would also have attacked the deceased; but they were only alleged to have caught hold of the deceased. The prosecution did not bring in evidence that there was prior meeting of minds and that accused Nos.2 and 3 were having knowledge that their brother accused Harnam Singh was armed with katta. The evidence adduced by the prosecution is not convincing to hold that accused Nos.2 and 3 also shared the common intention with the accused Harnam Singh and other accused Bharat in committing the murder of Mohan. Conviction of accused Nos. 2 and 3 under Section 302 read with Section 34 IPC is, therefore, liable to be set aside."

28.In order to invoke Section 34 IPC, it must be established that the act

was done by more than one person in furtherance of common

intention of all. It must, therefore, be proved that ( i) there was

common intention on the part of several persons to commit a

particular crime, and ( ii) the crime was actually committed by them

in furtherance of that common intention. The eyewitnesses namely,

Rajaram (PW-4), Ashish Tirki (PW-6) and Meera (PW-7) in their

evidence have not attributed any overt act as against the appellant

No.2 Karam Sai and the prosecution has also failed to prove that

there was meeting of minds of the appellants No.1 & 2 to cause death

of the deceased, particularly when dispute with respect to possession

of land was pending between the deceased and the appellants. In that

view of the matter, conviction imposed on the appellant No.2 under

Section 302/34 of the IPC is liable to be set aside. However,

conviction imposed on the appellants under Section 323 of the IPC

for causing simple injuries to Meera deserves to be affirmed.

29.For the foregoing, conviction of the appellant No.1 - Balkaran under

Section 302/34 of IPC is set aside. Instead thereof he is convicted

under Section 304 (Part-II) of IPC. He is in jail since 22.8.2011 to

12.4.2017 i.e. for about 6 years 4 months. In the circumstances, ends

of justice would be served if the appellant No.1 is sentenced to the

period already undergone by him. However, conviction imposed on

the appellant No.2 under Section 302/34 of the IPC is set aside.

Conviction imposed on both the appellants under Section 323 of the

IPC for causing simple injuries to Meera is affirmed. The appellant

No.2 - Karam Sai is in jail since 22.8.2011 to 24.7.2012 i.e. for about

11 months. In the circumstances, ends of justice would be served if

he is sentenced to the period already undergone by him. Ordered

accordingly.

30.With the aforesaid modifications, CRA No. 500 of 2012 is partly

allowed.

CRA No. 1300 of 2016

31. By this Appeal under Section 374 (2) of the CrPC, the appellant

herein would call in question the legality, validity and correctness of

the impugned judgment dated 24th September, 2016 passed by the

Sessions Judge, Baikunthpur District Koria in ST No.111/2011

whereby the appellant has been convicted under Sections 506 (B),

302 and 323 of the IPC and sentenced to undergo RI for 5 years, RI

for life & to pay a fine of Rs.500/-, and to undergo RI for one year

respectively.

32.Present appellant Devkaran @ Dev Prasad was also charge sheeted

along with other accused persons namely, Balkaran and Karam Sai.

Since he was absconding, a separate trial was conducted and on the

same set of evidence, he was convicted in the manner as mentioned

above.

33.The trial Court in para-24 of the judgment recorded the following

finding to convict the appellant with the aid of Section 34 of the

IPC:-

"24. bl rjg vfHk;kstu lkf{k;ksa ds eq[; ijh{k.k vkSj izfrijh{k.k ds dFku ls fuEufyf[kr fu"d"kZ fudyrk gS%& 1- e`rd nqykjlk; vkSj vfHk;qDrx.k fj'rsnkj gSa vkSj muds e/; d`f"kHkwfe dk fookn gSA blh d`f"kHkwfe ds laca/k esa bl ?kVuk ds igys Hkh fookn gqbZ Fkh vkSj ml fookn ds ifj.kkeLo:i e`rd nqykjlk; o vU; ds f[kykQ eq[; U;kf;d eftLVªsV ds U;k;ky; esa QkStnkjh eqdnek yafcr gSA 2- fooknxzLr d`f"kHkwfe esa fnukad 20-08-2011 dks jktkjke vkSj nqykjlk; rFkk ehjkckbZ d`f"k dk;Z dj jgs FksA 3- tc nqykjlk; oxSjg ?kVuk LFky esa dke dj jgs Fks] rc ekSds

ij vfHk;qDrx.k vk, vkSj d`f"kHkwfe ds laca/k esa fookn djus yxs vkSj ekjihV djuk 'kq: dj fn;sA 4- vfHk;qDrx.k ds dk;Z esa ^lkekU; vk'k;* dk fo"k;oLrq vkSj ^gsrqd* Li"V :i ls >ydrk gS vkSj mUgksaus vius ^lkekU; vk'k;* vkSj ^gsrqd* dh iwfrZ ds fy, QkoM+k] ckal dk MaMk ls nqykjlk; dks ekjuk 'kq: fd;s] tc nqykjlk; ds flj esa xaHkhj pksV vk;h] mlds 'kjhj ds vU; vaxksa dh gfM~M;ka VwV x;h] tc ehjkckbZ chpcpko djus vk;h rks mls Hkh ekjk x;k] ftlls lk/kkj.k migfr dkfjr gqbZA tc jktkjke dks ekjus dk iz;kl fd;k x;k] rc jktkjke Hkkx x;kA"

34.Thereafter the trial Court recorded the following findings at para-34:-

"34. bl rjg vfHk;kstu dh vksj ls izLrqr lEiw.kZ lk{k; foospuk ls ;g izekf.kr ugha gksrk fd & vfHk;qDrx.k us yksd LFkku esa v'yhy 'kCnksa dk mPpkj.k fd;k] ftlls lquus okyksa dks {kksHk mRiUu gqbZA ysfdu foospuk ls ;g izekf.kr gks x;k fd & d`f"kHkwfe ds fookn ds laca/k esa vfHk;qDr nsodju us [email protected]"k fl) nks vU; vfHk;qDr ckydju vkSj djelk; ds lkFk feydj lkekU; vk'k; cuk;k vkSj vius ^^lkekU; vk'k;** vkSj ^^gsrqd** dh iwfrZ ds fy, ml LFkku ij igqapk] tgka ij nqykjlk; vius csVk jktkjke vkSj csVh ehjkckbZ ds lkFk dk;Zjr~ Fkk rFkk d`f"kHkwfe ds laca/k esa fookn djus yxs vkSj tku ls ekjus dh /kedh nsus yxs vkSj QkoM+k vkSj MaMk ls nqykjlk; dks ekjs] ftlls varr% nqykjlk; dh e`R;q gqbZ vkSj ehjkckbZ dks ekjus ls lk/kkj.k migkfr dkfjr gqbZA QyLo:i vfHk;qDr nsodju dks /kkjk 294 Hkk0na0fo0 ds vkjksi ls nks"keqDr fd;k tkrk gS rFkk vfHk;qDr nsodju dks /kkjk 506 ¼Hkkx nks½ lgifBr /kkjk 34 Hkk0na0fo0 rFkk /kkjk 323 lgifBr /kkjk 34 Hkk0na0fo0 rFkk /kkjk 302 lgifBr /kkjk 34 Hkk0na0fo0 ds vkjksi esa nks"kh Bgjk;k tkrk gS vkSj vkns'k i= esa fy[ks dkj.kksa ls ltk ds iz'u ij lquus ds fy, fu.kZ; LFkfxr fd;k tkrk gSA"

35.Since it is an admitted position on record that from the possession of

appellant Devkaran, no incriminating articles have been seized and

no overt act has been attributed to this appellant, and this Court has

already partly allowed CRA No. 500 of 2012 preferred by other

accused persons namely, Balkaran and Karam Sai acquitting them of

the charge under Section 302/34 of the IPC and affirming their

conviction under Section 323 of the IPC, and after considering the

entire material available on record against the present appellant, we

are of the opinion that ends of justice would be served if the present

appellant namely Devkaran is treated similarly like other accused

persons.

36.For the foregoing, conviction and sentence imposed on the appellant

under Sections 506-B and 302 of the IPC are set aside and he is

acquitted of the said charges. However, conviction imposed on him

under Section 323 of the IPC is affirmed. He is in jail since 30.8.2013

till 12.4.2017. Therefore, ends of justice would be served if the

appellant is sentenced to the period already undergone by him.

Ordered accordingly.

37. Accordingly, CRA No. 1300 of 2016 is partly allowed.

                   Sd/-                                    Sd/-
           (Sanjay K. Agrawal)                   (Deepak Kumar Tiwari)
                 Judge                                  Judge
Barve