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Judgment
Hon''ble Shri Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 29th of November, 1995 passed in Session Trial No. 135/91 by the Seventh Additional Session Judge, Bilaspur. By the impugned judgment, the appellants were convicted u/s 302/34 IPC and sentenced to undergo imprisonment for life. Appellant No. 3 Sakhiram was further convicted u/s 325 IPC and sentenced to undergo R.I. for 6 months with a direction to run the sentences concurrently. Appellant No. 1- Lakhanlal and appellant No. 3- Sakhiram died during the pendency of the appeal. Therefore, their names have been deleted from the cause-title of the appeal and the appeal filed on behalf of appellant No. 1 and appellant No. 3 has abated.
The facts, briefly stated, are as under:-
The allegations are that on account of some previous dispute relating to agricultural land, on 2.6.1990 at about 11.30 a.m., appellants assaulted deceased- Battulal by lathi and tangi. The further allegations are that they also assaulted Maharathi (PW- 18) by lathi who received grievous injuries. On hue and cry, Anujram (PW-17) reached to the place of occurrence. He met with eye-witnesses- Kashiram (PW- 20) and Maharathi. They narrated the incident to him. On their information, he lodged the report (Ex.-P/17) at about 13.50 hours. Investigation Officer reached to the place of occurrence, gave notice to the Panchas and prepared inquest on the dead body of the deceased. The dead body of the deceased was sent for post- mortem. The post-mortem examination was conducted by Dr. H.R. Tharwani (PW-10) who gave is report Ex.-P/8. He noticed following injuries on the dead body of the deceased:-
(i) Incised wound 2 inch x 2 _ inch x + inch on the back portion of the skull;
(ii) Incised wound 2 _ inch x 1 inch x 3 inch on the upper portion of right shoulder &
(iii) Incised wound 2 _ inch x 2 inch x 6 inch on the right portion of the neck.
On internal examination, it was found that there was fracture of occipital bone and brain and dura- matter were lacerated. There was another fracture on the bone of right shoulder. Cut injuries were found on trachea, esophagus, carotid artery and jugular vein. Cut marks were also found on 3rd & 4th cervical vertebrae and spinal cord. The Autopsy Surgeon opined that all the injuries were caused by sharp edged weapon and were sufficient to cause death in ordinary course of nature.
Maharathi (PW-18) was also sent for medical examination. His MLC report and X-ray report are Ex.- P/14 & P/10. X-ray plate is Ex.-P/11. He had sustained fracture of metacarpal bone of his left palm.
The conviction of the appellants is based on eye- witnesses account of Maharathi (PW-18) and Birchand (PW-21). The learned Session Judge relied on the testimonies of these witnesses and convicted and sentenced the appellants as aforementioned.
Mrs. Savita Tiwari, learned counsel appearing on behalf of the appellants, argued that there is discrepancy in the evidence of eye-witnesses and the medical evidence. Eye-witnesses have stated that appellant- Vishnuprasad gave repeated lathi blows, but the deceased had sustained only incised wounds, therefore, participation of this appellant is doubtful and his conviction with the aid of Section 34 IPC, in the above circumstance, was not possible.
On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court.
We have heard learned counsel for the parties at length and have also perused the records of the session case.
Maharathi (PW-18) is the grand-son of deceased- Battulal. He deposed that when he reached to the place of occurrence, he saw that the accused persons had surrounded the deceased. Accused- Sakhiram & Vishnuprasad were holding lathi and accused- Lakhanlal was holding a tangi. The deceased was assaulted by tangi, thereafter accused- Vishnuprasad and Sakhiram assaulted him by lathi. Maharathi had also received injury. In Para-9 of his cross- examination, he categorically admitted that he was assaulted by accused- Sakhiram.
Birchand (PW-21) also deposed in similar fashion. He deposed that accused- Lakhanlal was holding a tangi and accused- Vishnuprasad & Sakhiram were holding lathi. They had assaulted the deceased by tangi & lathi. The deceased had received multiple injuries by tangi & lathi.
The learned Session Judge in Paras 25 & 26 of the judgment has recorded the finding of common intention against Vishnuprasad and Sakhiram. So far as accused- Vishnuprasad is concerned, this is not a case in which the finding of common intention has been recorded on some passive act of his participation. The finding of common intention is based on the evidence of actual assault given by appellant- Vishnuprasad. In the instant case specific role of giving assault by lathi has been attributed to accused- Vishnuprasad by the above 2 witnesses.
On appreciation of evidence of the above 2 eye- witnesses, in light of the medical evidence, we find their evidence to be discrepant. Both the eye-witnesses clearly deposed that the deceased was assaulted by appellant- Vishnuprasad by lathi, whereas there is not a single injury on the person of the deceased which could have been caused by lathi. The 3 external injuries found on the person of the deceased were incised wounds. There is clear evidence that appellant- Lakhanlal (now dead) was holding tangi. Doctor has opined that all the above injuries could have been caused by sharp edged weapon. This leads to the inference that all the above injuries would have been caused to the deceased by appellant- Lakhanlal. The evidence of common intention of appellant- Vishnuprasad is based on alleged assault given by him by lathi to the deceased. On account of the above discrepancy in the evidence of eye-witnesses and medical evidence, we do not find evidence of the eye-witnesses to be reliable for the alleged participation of appellant- Vishnuprasad. We are of the view that appellant- Vishnuprasad could not have been convicted either on the ground of his alleged act of assault or on the ground of sharing common intention with appellant- Lakhanlal. For the foregoing reasons, the appeal filed on behalf of appellant- Vishnuprasad is allowed. The conviction and sentence awarded to him u/s 302/34 IPC are set-aside. He is acquitted of the charges framed against him. Appellant- Vishnuprasad was arrested on 3.6.1990. He was throughout in jail and was directed to be released on bail on 17.10.2001. Presently he is on bail. His bail bonds are cancelled and surety stands discharged.