08. Learned counsel for the appellants submits that the impugned
judgment is contrary to law and material available on record. Learned trial
Court did not appreciate the evidence in its proper perspective as there is
contradiction and omission in the statements of the witnesses. Learned trial
Court ought to have seen that at the time of incident the deceased was
accompanied by 30-40 persons and in the given set of facts and
circumstances, the appellants ought to have been given benefit of right of
private defence of property. This apart, in the present case, the trial Court
wrongly held the appellants No. 2 & 3 guilty of the offence of culpable
homicide by applying the provisions of Section 34 of IPC whereas they were
not having any common intention with appellant No.1 of killing the deceased.
Therefore, the impugned judgment in respect of appellants No. 2 & 3 is liable
to be set aside.
Alternatively, learned counsel for the appellants submits that if this
ultimately comes to the conclusion that conviction of the appellants No. 2 & 3
under Section 304 Part-II/34 of IPC is proper, then considering the facts and
circumstances of the case giving rise to the incident which took place in the
year 2005, the appeal is pending since 2007, appellants No. 2 & 3 were on
bail during pendency of this appeal but never misused the liberty while on
bail, their jail sentence may be reduced to the period already undergone by
them which comes to near about two years.
09. On the other hand, learned counsel for the State opposing the
contention of the appellants submits that the learned trial Court upon minute
appreciation of oral and documentary evidence has rightly convicted and
sentenced by the appellants by the impugned judgment which calls for no
interference by this Court. Therefore, the present appeal being without any
substance is liable to be dismissed.
10. Heard learned counsel for the parties and perused the material
available on record.
11. It is clear from the record of learned trial Court that the appellants were
charged under Sections 302/34, 307/34, 324/34, 323/34, 323/34, 506B of IPC
and Section 3(1)(x) of the Act of 1989 and after appreciation of oral and
documentary evidence while acquitting them of all these charges, convicted
appellant No.1 Budhari under Section 304 Part-II of IPC while convicting
appellants No.2 Bagirath and appellant No.3 Ratiram under Section 304 Part-
II read with Section 34 of IPC.
12. PW-1 Bhagwantin Bai states that on the date of incident Budhari
assaulted Kunjbai, Rungu, Sundri and herself with axe as a result of which
she sustained injuries over her wrist and head and Sundri as well as Rungu
also sustained injuries over their head whereas Kunjbai suffered injuries over
her hand and chest. She states that sons of Budhari also assaulted her with
club. She states that Budhari assaulted Dhursingh with axe and his sons with
club as a result of which he died.
13. PW-2 Kunjbai, PW-3 Sudri Bai, PW-4 Ramprasad, PW-5 Baliram, PW-
6 Rambai, PW-7 Brijlal, PW-8 Rungu and PW-9 Govind also state that
Budhari assaulted on the deceased with axe whereas the other
accused/appellants assaulted with club. All these witnesses remained firm in
their cross-examination and nothing could be elicited from them by the
defence to make their evidence untrustworthy or doubtful. This ocular
evidence finds due corroboration from the evidence of PW-11 Dr. Arjun Singh
Thakur who medically examined the deceased on 6.11.2005 and PW-22 Dr.
Ullas Godle who conducted postmortem on the body of the deceased on
9.11.2005 and noticed corresponding injuries on his body.
14. Learned trial Court minutely appreciated oral and documentary
evidence on record and came to the conclusion that it is accused/appellant
Budhari who made fatal assault on the deceased with axe and the other
appellants assaulted with club. Hence considering the facts and
circumstances of the case giving rise to the incident, the manner in which
assault was made and the appellants Bagirath and Ratiram acted while
appellant Budhari was inflicting injury with axe on the head of the deceased,
learned trial Court held that present is a case of culpable homicide not
amounting to murder and as such, convicted appellant Budhari under Section
304 Part-II of IPC and appellants Bagirath and Ratiram under Section 304
Part-II/34 of IPC. Having gone through the overall evidence, ocular and
medical, on record, this Court finds no illegality or infirmity in the said findings
for interference.
15. As regards sentence, considering the facts and circumstances of the
case, the manner in which the incident took place; the role attributed to the
appellants Bagirath and Ratiram; the fact that the incident took place in the
year 2005; this appeal is pending since 2007 and they have remained in jail
for near about two years, this Court is of the opinion that no fruitful purpose
would be served in sending them back to jail at this stage and the ends of
justice would be served if their sentence is reduced to the period already
undergone.
16. In the result, the appeal is dismissed as not pressed in relation to
appellant No.1 Budhari and it stands allowed in part in respect of appellant
No. 2 Bagirath and appellant No.3 Ratiram. While maintaining their conviction
under Section 304 Part-II/34 of IPC, their jail sentence is hereby reduced to
the period already undergone by them. They are reported to be on bail,
therefore, their bail bonds shall continue for a period of six months from today
in view of provisions of Section 481 of Bharatiya Nagarik Suraksha Sanhita,
2023.
Sd/
(Rajani Dubey)
MOHD by
AKHTAR KHAN Judge
AKHTAR Date:
2025.04.07
KHAN 16:46:45
+0530
Khan
