Mangal Baiga vs State of C.G.

T.P. Sharma, J.—Criminal Appeal No. 535/2005 filed by Appellant Mangal Baiga and Criminal Appeal No. 1241/2003 filed by Appellants Mangilal and Bhaira @ Mahadeo have been filed against the same offence decided by different Session Trial Nos. 3/2004 and 3/2003 vide judgment dated 30/3/2005 and 13/10/2003, therefore, they are being disposed of by this common judgment.

In criminal appeal No. 535/2005 Appellant - Mangal Baiga has challenged the legality and propriety of judgment of conviction and order of sentence dated 30/3/2005 passed by Additional Sessions Judge (F.T.C.) Kawardhain Sessions Trial No. 3/2004 whereby learned Additional Session Judge after holding the Appellant guilty for the commission of culpable homicide amounting to murder of deceased Nainsingh and endangering the life of Budhan Singh and Budhwaro Bai in sharing common intention the Appellant convicted u/s 302 read with Section 34 and u/s 336 of the Indian Penal Code and sentenced rigorous imprisonment for life and fine of Rs. 200/- in default 3 months additional rigorous imprisonment and rigorous imprisonment for 3 months. In criminal appeal No. 1241/2003 Appellants - Mangilal and Bhaira @ Mahadeo have also challenged the legality and propriety of judgment of conviction and order of sentence dated 13/10/2003 passed by Additional Sessions Judge (F.T.C.) Kawardha in Sessions Trial No. 3/2003 whereby learned Additional Session Judge after holding the Appellants guilty for the commission of culpable homicide amounting to murder of deceased Nainsingh and endangering the life of Budhan Singh and Budhwaro Bai in sharing common intention the Appellants convicted u/s 302 and u/s 336 of the Indian Penal Code and sentenced imprisonment for life and rigorous imprisonment for 3 months.

The conviction is impugned on the ground that without any iota of evidence court below has convicted and sentenced the Appellants aforementioned and thereby committed an illegality.

Case of the prosecution, in brief, is that on the fateful day of 26/12/2000 at about 6 P.M. complainant Budhan Singh and Budhwaro Bai were present in their kitchen garden and they were cutting the mustard crop. Appellants went to the kitchen garden (Badi) and after using filthy language and they used filthy language then Budhan Singh and Budhwaro Bai entered into the house of the Budhiya Bai. All three Appellants pelted stones in the house of Budhiya Bai. Deceased Nainsingh came out from his house and asked the Appellants that why they were pelting stones then Appellants pelted stones over the Nainsingh and caused injury over his head, Nainsingh fell down and died on the spot. Bartu Singh went to the Police Station and lodged First Information Report. Spot map was also prepared. After summoning the witnesses inquest over the dead body of the deceased Nainsingh was prepared. Dead body was sent for autopsy to Community Health Centre, Kawardha. Dr. R.K. Bhuarya conducted autopsy and found following injuries:(1) Head becomes flat and abrasion were found over the left side of the head of 8 x 10 cm. (2) Abrasion over the left eyebrow of 4 x 3 cm. (3) Abrasion over maxillary bone of 8 x 3 cm. (4) Contusion over the left side of the face of 6 x 4 cm. (5) Abrasion over forehead of 7 x 6 cm. (6) Abrasion over the right scapula of 10 x 4 cm. (7) Fracture of left frontal, partial, occipital bone and multiple fracture of maxillary bone, brain was ruptured. Death was shock as a result of excessive haemorrhage. Death was homicidal in nature. Budhan Singh was also examined by Dr. K.S. Dhruve and found two injuries over left eyebrow and left knee. Sealed packet of the cloths of the deceased was seized after autopsy. Stones were seized and sent for chemical examination. Presence of blood over the stones was found.

Statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure, 1973 (in short ''Code''). After completion of investigation, charge sheet was filed case was committed to the Sessions, Rajnandgaon learned Additional Sessions Judge received the case on transfer for trial.

In order to prove the guilt of the Accused/Appellants in Sessions Trial No. 3/2004, the prosecution examined as many as 9 witnesses while in case of Sessions Trial No. 3/2003, the prosecution examined as many as 12 witnesses. Statements of the accused/Appellants were recorded u/s 313 of the Code where they denied the circumstances appearing against them and pleaded innocence find false implication.

After affording an opportunity of hearing to the parties, learned Additional Sessions Judge has convicted and sentenced the Accused/Appellants as aforementioned.

We have heard Mr. J. A. Lohani and Ms. Sofia Khan, counsels for the Appellants and Mr. Ravindra Agrawal P.L. for the State/Respondents and perused both the judgments impugned as also both the record of the trial Court.

Learned Counsel for the Appellants Mr. J.A. Lohani and Ms. Sofia Khan, vehemently argued that prosecution has not collected any evidence to prove the guilt of the Appellants and conviction is based on conjecture and surmises in absence of legal evidence conviction is not sustainable under the law.

Learned Counsel for the Appellants further argued that present Appellants have not caused any injury to deceased Nainsingh with intent to cause his death even according to the case of the prosecution while they were pelting the stones Nainsingh suddenly came to the spot and he was assaulted by the stones pelted therefore if the case of the prosecution is admitted then even the act of the Appellants does not traveled beyond the scope of u/s 304 Part-II of the Indian Penal Code.

Learned Counsel for the Appellants placed reliance in the matter of Kapoor Lal Vs. State of U.P., . in which High Court of Allahabad has held that in case of death of the person by single blow without premeditation and at spur of moment, in heat of passion the act of the accused falls u/s 304 Pait-II of the Indian Penal Code.

Learned Counsel for the Appellants further placed reliance in the matter of Asu and Another Vs. State of Rajasthan, . in which High Court of Rajasthan has held that in absence of intention to kill the deceased, accused who inflected fatal injury on head of deceased may be convicted u/s 304 part-II instead of u/s 304 part-I of the Indian Penal Code.

Learned Counsel for the Appellants also placed reliance in the matter of Mangal Singh @ Mangat Ram etc. v. State of Himachal Pradesh in which High Court of Himachal Pradesh has held that deceased death as a result of stone injury on head absence of prove of motive and conflict between ocular and medical evidence accused is entitled for acquittal.

On the other hand, learned Counsel for the Respondents/State opposed the appeals and submits that Appellants firstly adduced Budhan Singh and Budhwaro Bai and when they entered into the house of the Budhiya Bai then intentionally with a view to cause fatal injury they had pelted stones in the house of Budhiya Bai and also pelted stones upon the Nainsingh shows their grave intention of causing death of the Nainsingh and endangering the life of other persons.

In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the Appellants in both the cases. Both the cases arising out against the same offence Appellant Mangal Baiga in Sessions Trial No. 3/2004 and Appellants Mangilal and Bhaira @ Mahadeo in Sessions Trial No. 3/2003 were absconding therefore the case was bifurcated and after their arrest they were tried.

In the present case homicidal death as a result of fatal injury of Nainsingh has not been substantially disputed on the other hand, same is established by the evidence of Dr. R.K. Bhuarya and his autopsy report which reveal that as a result of injury the head of deceased becomes flat and maxillary bone of the head were found fractured shows the homicidal death as a result of fatal injury.

As regards the complicity of the Accused/Appellants in the crime in question is concerned the conviction is based on the evidence of eye witnesses Bartu Singh, Budhiya Bai, Budhwaro Bai and Budhan Singh who have substantially deposed in their evidence that Budhan Singh and Budhwaro Bai were cutting the mustard crop in their field. All 3 Appellants came to their field, deceased Nainsingh was present in his house. Appellants: pelted stones over Budhan Singh and Budhwaro Bai then they rushed to the house of Budhiya Bai and hidden inside their house at the same time Nainsingh came for bullock the Appellants pelted stones over him. Firstly Mangilal pelted stones over the head of Nainsingh then he fell down then other accused assaulted him by stick, Nainsingh died on the spot men the Appellants fled away from the spot. All the witnesses have specifically deposed that Appellant Mangilal had thrown stones over the head of the Nainsingh then other Appellants assaulted him by stick. Dr. R.K. Bhuarya has also admitted in his evidence that injury over the head of Nainsingh may be caused by the stones. Autopsy report and evidence of Dr. R.K. Bhuarya reveal that all injuries were present over the head of the deceased except one injury over the scapula it shows that irregular shape of the stones was used for causing injury to the deceased and the evidence of aforesaid witnesses reveal that Appellant Mangilal thrown one stone over the head of the deceased. Defence has cross examined these witnesses in detail but has not been able to elicit anything in their cross examination to discredit their testimony or to show that Appellant Mangilal has not thrown stones over the head of the deceased. The evidence of these witnesses also reveal that these all Appellants have pelted stones in the house of Budhiya Bai where Budhan Singh and Budhwaro Bai were hidden.

After appreciating the evidence available on record, learned Additional Sessions Judge has convicted the Appellants under Sections 302/34 and 336 of the Indian Penal Code but learned Additional Sessions Judge has not considered the material aspect of the case that Appellants were pelting the stones without aiming to any person and only Mangilal had thrown one stone over the head of the deceased. He has not repeatedly pelted the stone other Appellants were present but evidence relating to assault made by the other Appellants is not corroborated by the medical evidence. The medical and ocular evidence relating to assault made by the other Appellants except Mangilal is in conflict and no any injury except the head injury which was caused by Mangilal was found on the body of the deceased. Although, the evidence reveal that all Appellants were pelting stones and had endangered the life of Budhan Singh, Budhwaro Bai and Budhiya Bai and they are acting in sharing common intention but the evidence reveal that other Appellants has not shared the common intention in causing the injury to the Nainsingh thereby committed an illegality although Appellant Mangilal has thrown the stone over the head of the Nainsingh but he has not repeated the injury, his act appears to be reckless act resulting into the death of the deceased Nainsingh.

The evidence adduced on behalf of the prosecution is not sufficient for drawing an inference that Appellant Mangilal or others have inflected the injury with intent to cause the death of the deceased but throwing of good size of stones upon the persons shows that Appellant Mangilal was having knowledge that as a result of his act deceased may die as held in case of Asu and Another Vs. State of Rajasthan, the act of Appellant Mangilal does not traveled beyond the scope of u/s 304 Part-II of the Indian Penal Code but the act of all Appellants is punishable u/s 336 of the Indian Penal Code.

For the foregoing reasons, conviction and sentence of the Appellants are not sustainable under the law. Consequently, the Criminal appeal Nos. 535/2005 and 1241/2003 are partly allowed. Conviction of the Appellants Mangal Baiga, Mangilal and Bhaira @ Mahadeo u/s 336 of the Indian Penal Code are hereby affirmed. Conviction of the Appellant Mangilal u/s 302 of the Indian Penal Code is altered in to u/s 304 Part-II of the Indian Penal Code and is sentenced for custodial period i.e. custody period since 4/12/02 till today. Conviction and sentence of the other Appellants Mangal Baiga and Bhaira @ Mahadeo u/s 302 of the Indian Penal Code are hereby set aside. Appellants Mangal Baiga and Bhaira @ Mahadeo be set at liberty at once. All the Appellants be released if not required in any other case.