Chattisgarh High Court
Puran Yadav vs State Of Chhattisgarh on 8 June, 2017
Author: Sanjay Agrawal
Bench: Sanjay Agrawal
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 458 of 2005
• Puran Yadav, son of Nathuram, aged 25 (twenty five) years, cultivator
and resident of village Chhuiha, in the police Station Baloda Bazar,
District Raipur (C.G). --- Appellant
Versus
• State of Chhattisgarh through (Police Station Baloda Bazar, District
Raipur,) the Collector, Raipur (C.G). --- Respondent
CRA No. 521 of 2005
• 1. Durga Prasad Yadav, son of Kamal aged about 19 years,
• 2. Nathuram Yadav (since deceased), son of Chairam aged about 42
years (C.G)
Both cultivators and residents of village Chhuiha in the police station
Baloda Bazar, District Raipur (C.G) --- Appellants
Versus
• State of Chhattisgarh through (Police Station Baloda Bazar, District
Raipur,) the Collector, Raipur (C.G). --- Respondent
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For the Appellants : Shri Janak Ram Verma, Advocate For the State : Shri Rahul Tamaskar, Panel Lawyer
---------------------------------------------------------------------------------------------- DB: Hon'ble Shri Justice Manindra Mohan Shrivastava Hon'ble Shri Justice Sanjay Agrawal, JJ, Judgment/Order on Board 08.06.2017
1. This order shall dispose of the aforesaid two appeals as they arise out of the same crime number and judgment of conviction and order of sentence dated 15.04.2005 passed by the Second Additional Sessions Judge, Baloda Bazar in Sessions Trial No.170/2004 whereby and where-under the 2 appellants have been held guilty and sentenced as described below :
(1) Appellant Puran Yadav Conviction : Sentence U/s 302/34 IPC Life imprisonment and fine of Rs.500/- in default of payment of fine, additional R.I., for 1 (one) year U/s 452/34 IPC : R.I., for 1 year and fine of Rs.100/-, in default of payment of fine, additional R.I., for 3 months. U/s 325 IPC : R.I., for 1 year and fine of Rs.100/- in default of payment of fine, additional R.I., for 3 months (2) Appellants Durga Prasad and Nathuram Conviction : Sentence U/s 302/34 IPC Life imprisonment and fine of Rs.500/- each, in default of payment of fine, additional R.I., for 1 (one) year U/s 452/34 IPC : R.I., for 1 year and fine of Rs.100/- each, in default of payment of fine, additional R.I., for 3 months U/s 323/34 IPC : R.I., for 6 months and fine of Rs.100/- each in default of payment of fine, additional R.I., for 2 months
2. The prosecution story as unfolded from the records of the case and the impugned judgment is that on 07.03.2004, during Holi festival when deceased Shivbagas along-with his wife Anandmati, son Ganesh and other persons was going to the house of his brother Shiv Dayal, on the way, near the house of Nathuram (one of the accused appellants), they found that Nathuram and others were beating Mohit. It is said that when Shivbagas and others asked Nathuram to resist from beating Mohit, Nathuram along-with other two appellants Puran and Durga Prasad (Tuka) assaulted Shivbagas and others. It is the case of prosecution that Nathuram assaulted Shivbagas by an Axe on his head and 3 other accused also assaulted Shivbagas and others along- with him by wooden club. It is further case of prosecution that thereafter, when Shivbagas and other associates some how reached the house of Shivdayal, the appellants arrived along-with other assailants, armed with weapon and it is stated that in the house of Shiv Dayal, the appellants accused assaulted Shivbagas and injured Shivbagas, Savitri, Bishambar, Ganesh and Pitambar. Shivbagas was grievously injured whereas Savitri suffered a fracture injury and others simple injuries on various parts of their bodies. All of them were sent for medical examination. Later on, Shivbagas died. The FIR was lodged on 07.03.2004 itself by P.W.1 Bishambar at 14.05 hours vide Ex.P-1 in police Station Baloda Bazar. The inquest over body of Shivbagas was prepared and it was sent for postmortem. Dr. R.S. Tiwari (P.W.10) and Dr. P.K. Tiwari (P.W.11) conducted postmortem and prepared postmortem report vide Ex.P.23. Statements of prosecution witnesses were recorded u/s 161 Cr.P.C. The memorandum of all the accused were taken and it is said that at their instance, weapons used in commission of offence were recovered. The blood stained clothes and soil collected from the spot of incident were sent for chemical examination to FSL. Dr. R.S. Tiwari (P.W.10) and Dr. P.K. Tiwari (P.W.11) also conducted medical examination of injured persons namely Savitri, Bishambar, Ganesh and Pitambar and prepared their reports. Upon completion of usual investigation, charge sheet was filed against the appellants and other 13 accused persons for the alleged commission of offence u/ss 302, 147, 148/149, 452, 427, 323 4 & 325 against 16 accused including the present appellants.
3. The learned trial Court on the basis of material and the charge sheet, framed charges against all the accused for the alleged commission of offence. The appellant accused abjured guilt and therefore, they were put to trial. In order to prove its case, the prosecution examined as many as 25 witnesses. The appellants were examined u/s 313 Cr.P.C., they denied having committed any offence and also pleaded that they have been falsely implicated. In their defence, the appellants examined two defence witnesses. However, the learned trial Court disbelieving the defence of the appellants and relying upon the prosecution case and the evidence led by it held the appellants Nathuram, Puran and Durga Prasad guilty of commission of offence u/ss 302 read with section 34, 452/34, 323/34, 325/34, 325 (against Puran 323/34 also) IPC. All other 13 accused were acquitted of all the charges.
4. Aggrieved by the judgment of conviction and order of sentence, 3 convicts namely Nathuram, Puran and Durga Prasad filed these appeals. It is stated that During the pendency of the appeal, appellant Nathuram died, therefore, in so far his the appeal is concerned, the same stands abated and the appeal survives only respect of appellants Durga Prasad and Puran.
5. Assailing the correctness and validity of impugned judgment of conviction and order of sentence, learned counsel appearing for the appellants argued in extenso and submitted that the prosecution evidence lacks material to prove common intention on the part of Nathuram, Puran and Durga Prasad to murder Shivbagas. He submits that from 5 the eye-witness account of prosecution witnesses namely P.W.2 Ganesh @ Chhannu Yadav, P.W.3 Savitri, P.W.14 Munna @ Vishram, P.W.15 Pitambar, P.W.16 Shiv Dayal, P.W.18 Smt. Anandmati and P.W.25 Mohit Ram all that has been proved is that while Shivbagas along-with his family members was going on road, he saw Mohit being assaulted by Nathuram and other appellants and at that juncture at the spot, sudden quarrel took place in which Nathuram is said to have given a blow on the head of Shivbagas which was a solitary injury. As it was a case of sudden quarrel at the spot, other two accused cannot be held guilty of commission of offence u/s 302 IPC by applying the provisions of section 34 IPC in absence of there being any material to show that any common intention had developed at the spot itself by all the accused persons to kill Shivbagas. The incident was all of a sudden without any premeditation and it was a case of free fight between the two groups because as per the evidence of Dr. R.S. Tiwari (D.W.1) Durga Prasad, Asim, Nathuram also sustained injuries which has not been explained by the prosecution. Therefore, even if it is held that Nathu Ram gave fatal blow on the head of Shivbagas, appellants Puran and Durga Prasad cannot be involved by application of section 34 of IPC.
The next submission of learned counsel for the the appellants is that second part of the incident which is said to have happened in the house of Shivdayal where the appellants are alleged to have assaulted Shivbagas, Savitri, Bishambar, Ganesh and Pitambar, except Savitri, all others sustained only simple injuries and the grievous injury on 6 Shivbagas, even according to prosecution, was inflicted by Nathuram in the incident of quarrel which happened in front of the house of Nathuram and on road and not in the house of Shiv Dayal. Therefore, under no circumstances, it is argued, the appellants can be held guilty of sharing common intention to kill Shivbagas. According to learned counsel, the present is not even a case of murder and since they have been convicted for commission of offence u/ss 302 IPC by application of section 34 IPC of sharing common intention with Nathuram, they are entitled to assail the prosecution case of murder also. According to the learned counsel for the appellant, the manner in which and the location where the incident happened, it shows that even the blow alleged to be given by Nathuram on the head of Shivbagas was without any premeditation and in a fit of sudden quarrel without any intention to cause death because as per the injury report of Shivbagas, there is no incised wound meaning thereby that the sharp edged side of the Axe was not used and there was only one single injury on the head. Therefore, even if appellant Nathuram would have been alive, only a case of commission of offence u/s 304 Part II IPC could be said to have been made out and not section 302 IPC in any case.
Next submission of learned counsel for the appellant is that at the most, the appellants can be held guilty of commission of offence u/ss 323 and 325 IPC and as they have already undergone more than 1 1/2 years of sentence and looking to only grievous injury of a fracture in the hands of Savitri, their sentence may be reduced to the period 7 already undergone by them.
6. On the other hand, learned State Counsel submits that the entire incident of assault on Shivbagas forms part of one transaction starting from the place where the first assault was given to Shivbagas in front of the house of Nathuram followed by wild chase of Shivbagas and other members of his family with deadly weapons by the appellants upto the house of Shiv Dayal and the evidence has come up that the appellants broke open the door, entered the house of Shivdayal and then assaulted Shivbagas and others. All these facts form part of one transaction, the overt act of the appellant proves that right from the beginning, there had been a common intention shared by all the appellants to murder Shivbagas and in furtherance of this common intention, Nathuram gave a lethal blow by dangerous weapon like an Axe on the head of Shivbagas whereas other two appellants assaulted Shivbagas with the help of a lathi on various parts of his body and thereafter chased him and again assaulted him in the house of Shiv Dayal. Therefore, there is overwhelming evidence from the eye-witness account of the eye-witnesses that all the appellants shared common intention to murder Shivbagas and Shivbagas having died homicidal death, conviction of appellant u/s 302 IPC does not warrant any interference. He further submits that in fact, the witnesses have consistently said that the accused persons were even out to set ablaze the house of Shiv Dayal. But for timely arrival of Police, they would have completed their criminal overt act which only shows that there was intention on the part of appellants not only to kill 8 Shivbagas but other members of their family by setting ablaze the house itself. This act of the appellants manifests their common intention to murder and therefore, homicidal death of Shivbagas due to fatal injury caused by Nathuram was execution of common intention of all the appellants. Therefore, their conviction does not warrant any interference.
7. We have heard learned counsel for the parties and have also perused the records.
8. The First Information Report was lodged by P.W.1 Bishambar, soon after the incident on the same day, and in the FIR it has been stated that while Shivbagas was going along the road, a dispute arose in front of the house of Nathuram where Shivbagas and others saw Nathuram and others beating Mohit Ram (P.W.25). According to the FIR, the incident happened at the spot when Shivbagas asked Nathuram and others to resist from assaulting Mohit and then followed by an assault on Shivbagas by Nathuram. Bishambar (P.W.1) has proved the FIR.
9. P.W.2 Ganesh, son of Shivbagas has deposed in his evidence that while he along-with his father Shivbagas was going to Shivpal/Shiv Dayal, his uncle, accompanied by his mother, Nathu was found beating Mohit by hands and fists in front of his house, as Mohit was his nephew. His father Shivbagas asked Nathu not to assault Mohit and at this time, Tuka (Durga Prasad) gave an assault on his shoulder by a club and Nathu assaulted his father by an Axe on his head. He also stated that Durga Prasad assaulted his father by club on his head. This witness further says that thereafter when he 9 along-with his father went to the house of Shiv Dayal, the appellants chased them, came inside, broke opened the door and started assaulting Pitambar, Savitri, he himself and his father by hands and fists. This witness admits in para 11 of his cross examination that Mohit did not receive any injury and he was being assaulted by hands and fists by the appellants. This witness further repeats by stating that Nathu had given an Axe blow on the head of his father.
10. P.W.3 Savitri Bai wife of Pitambar and daughter-in-law of Shiv Dayal has stated that while she was serving food, Ganesh and Mohit came along-with Shivbagas and at that time, Shivbagas was bleeding from his head, he was taken inside and thereafter, Puran, Durga Prasad and others entered the house and opened assault. She has stated that she was assaulted by club and Shivbagas was given assault on his legs. According to this witness, Nathu was holding an Axe and Durga Prasad and Puran were holding wooden clubs. Thereafter, she was taken to hospital.
11. P.W.15 Pitambar, son of Shivdayal has stated that after Shivbagas, Ganesh and others came to his house at about 1.00 p.m., to attend lunch, appellant Nathu, Puran, Durga Prasad arrived and started chasing Shivbagas and Nathu assaulted Shivbagas by an Axe. He has further deposed that Durga Prasad gave lathi blow on the head of Shivbagas and Puran gave an assault on his leg. When he was dragging his uncle Shivbagas inside the house, he was also assaulted. His wife Savitri was also assaulted by Puran, resulting in fracture in her hand. Nathu had assaulted on his back also. From the evidence of this witness in para 9 of the cross examination, it 10 has been clearly elicited that he was not present at the time when the prior incident of assault on Shivbagas took place in front of the house of Nathuram.
12. Shiv Dayal P.W.16, the elder brother of deceased Shivbagas, in whose house Shiv Bagas had arrived, has deposed in his evidence that after Shivbagas reached his house, the appellants along-with other persons entered the house and Puran assaulted his daughter-in-law Savitri on her in the hand and he saw that Shivbagas was lying injured in his house with injury on his hand which was bleeding and he saw the appellants destroying the households. In para 5 & 6 of his cross examination, this witness admits that he was inside his house and does not know as to who assaulted whom outside and what kind of quarrel took place and how the incident of quarrel started. He has also stated that he does not know whether Shivbagas was assaulted or not and in reply to the question whether Shivbagas was assaulted in his house, he says that he has not seen because he was taking meals. From the evidence of this witness, it is apparent that this witness was inside his house and the incident which had happened outside the house was not seen by him and he had not seen anyone assaulting Shivbagas inside his house.
13. P.W. 18 Anandmati, widow of deceased Shivbagas has deposed in her evidence that while she was going to the house of Shivdayal along-with her husband and son, they saw that Nathu and other two appellants had surrounded Mohit, Nathu was holding an Axe and Puran was holding a club. Her husband and son Ganesh went to rescue Mohit and at that stage, she being afraid, ran away and went home. 11 She further deposed that later-on her husband was brought to the house of her brother-in-law where she also approached, she saw Mohit and Ganesh had brought her husband there and doors were closed. Later-on, the appellants approached there, broke open the door and then they assaulted Savitri, Pitambar and Bishambar. In para 7 of her cross examination, she has admitted that she had gone inside the house of her brother-in-law and she does not know what happened at the spot and that she also does not know how the incident of quarrel began and who assaulted whom. The evidence of this witness also shows that she had not seen anything in the incident which had happened in front of the house of Nathuram because according to this witness, while her husband (deceased Shivbagas) and Ganesh proceeded to rescue Mohit, she ran away from the spot and thereafter she had only witnessed the incident of assault in the house of Shivdayal.
14. P.W.25, one of the important witness of the prosecution and who is said to be the person for whose rescue Nathuram and Gahesh had approached him, has deposed that while he was going towards the house of his uncle, he was assaulted by Nathu and when Nathu was assaulting him near his house at that time, Shivbagas and Ganesh who were also coming saw the incident of assault and attempted to rescue him and at that point of time Nathu gave a lathi blow on his head followed by another lathi blow by Tuka Ram and then they had taken Shivbagas to the house. He further submits that while Shivbagas was being taken, Puran gave an assault with the help of a club on Shivbagas. In the cross examination, 12 this witness had admitted that the place of incident was in front of the house of Nathuram and he was assaulted there. He has also stated that Nathu was holding an Axe.
15. In the alleged incident, Shivbagas, Savitri, Bishambar, Ganesh and Pitambar suffered injuries which is proved from the evidence of P.W.10 Dr. R.S.Tiwari and P.W.11 Dr. P.K. Tiwari. P.W.10 initially examined Shivbagas before his death and later on conducted the postmortem after his death vide Ex.P.23. The two doctors also medically examined Savitri, Bishambar, Ganesh and Pitambar and their MLC reports have also been proved by two doctors in their evidence. The details of the internal and external injuries found on the body of Shivbagas and contained in the postmortem report proved by Doctor R.S. Tiwari P.W.10 in his evidence are as under:
^^6- mDr fnukad& dks gh esjs }kjk f'kocxl oYn lq>w ;kno mez 65 lky dks esjs ikl fpfdRlk ijh{k.k djus gsrq yk;k x;k Fkk ftldk fpfdRldh; ijh{k.k eSus fd;k FkkA ijh{k.k djus esa ik;k fd ejht csgks'k Fkk] ukM+h vkSj jDrpki lkekU; FkkA iqryh dk vkdkj gYdk QSyk gqvk FkkA mlds 'kjhj esa fuEukafdr pksV ik;k Fkk%& 1- ,d dVhQVh pksV flj esa FkksM+h nkfguh vksj lh/kkiu fy, gq, 10Xvk/kkX,d pkSFkkbZ lseh0 vkdkj dk gM~Mh dh xgjkbZ rd tkrk gqvk] ykfyek] cgrs gq, [kwu o lwtu ds lkFk ekStwn FkkA 2- ,d dVhQVh pksV nkfgus iSj esa ,M+h ds ikl 3 lseh0 ifjf/k dk Vs<+k es<+k ykfyek lwtu o nnZ ds lkFk ekStwn FkkA 3- [kjksap cka, iSj esa maxfy;ksa ds ikl Åij dh rjQ vk/kk ls ,d lseh0 vkdkj dk cgrs gq, [kwu] ykfyek o /kwy ds lkFk FkkA** ^^9- fnukad 08@03@2004 dks vkj{kd jes'k ik.Ms; dz0 1218 Fkkuk cykSnkcktkj }kjk f'kocxl oYn lw>w ;kno mez 65 lky fuoklh xzke NqbZgk dk 'ko ijh{k.k gsrq esjs le{k is'k fd;k x;k FkkA 'ko ijh{k.k djus ij eSus ik;k fd e`rd ds igus gq, diM+ks esa dbZ txg [kwu tSls nkx ds fu'kku Fks] 'kjhj esa vdM+u Fkh] iqryh QSyh gqbZ] flj rFkk iSj esa iV~Vh ca/kh gqbZ FkhA 'ko ds ckg~; ijh{k.k ij eSus ik;k fd % 1- flj esa yxHkx chp esa lh/kkiu fy, gq, ,d dVhQVh pksV ftlesa N% Vkds yxs Fks vkSj Åij iV~Vh esa [kwu tSls nkx vkSj 13 pksV ij ykfyek o lwtu FkhA 2- nkfgus iSj esa uhps dh rjQ ,d dVhQVh pksV 3 lseh0 ifjf/k dh vkdkj esa ftlesa nks Vkads Fks] ykfyek vkSj jDr;qDr FkhA 3- cka;s iSj ds maxfy;ksa esa Åij dh rjQ [kjksap ds fu'kku vk/kkX,dX,d lseh0 vkdkj dh ykfyek;qDr FkhA**
16. Further in para 11 of his evidence, the doctor proved the opinion given by him as below :
vfHker%& pksaV dzekad&2 o 3 dh izd`fr lk/kkj.k FkhA pksaV dzekad&1 dh izd`fr xaHkhj FkhA ;s lHkh pksaVs e`R;q ds iwoZ e`R;q ls yxHkx 6 ?kaVs iwoZ ds vanj dh FkhA e`rd ds diM+s ftlesa [kwu ds /kCcs Fks lhy iSd dj mlh vkj{kd dks esjs } kjk fn;k x;kA esjh jk; esa e`rd dh e`R;q flj esa yxh pksaV dz0&,d ds dkj.k] dksek esa tkus ls gqbZ FkhA e`rd f'kocxl dh e`R;q esjs ijh{k.k 12 ls 24 ?kaVs ds Hkhrj dh FkhA esjs }kjk ijh{k.k izkr% 9-45 cts fd;k x;k FkkA esjs }kjk fn;k x;k izfrosnu iz0ih0&23 gS ftlds , ls , Hkkx ij esjk gLrk{kj gSA
17. In para 13 of his evidence, the Doctor has further stated that in his query report upon examination of Axe and club, he has stated that injuries 1 & 2 found on the body of Shivbagas could be caused by club and blunt side of the Axe. In para 18 of his cross examination, the doctor has clearly admitted that if the sharp edged side of the Axe is used, it will result an incised wound and injury No.1 found on the head of Shivbagas could be caused by a blunt object and the injury was not caused by any sharp edged weapon. From the evidence of P.W.10, it is clear that Shivbagas had sustained hard blow on his head which was grievous in nature resulting in haematoma damaging brain and death due to shock. Thus the death of Shivbagas was homicidal in nature.
18. The prosecution story of assault on Shivbagas and other injured witnesses namely Savitri, Bishambar, Ganesh and 14 Pitambar is in two episodes. Firstly it is stated that in front of house of Nathuram where Mohit was being assaulted, Nathu and other two appellants Puran and Durga Prasad assaulted the deceased and Ganesh as also Mohit. The second part of the episode happens in the house of Shiv Dayal where the appellants chased Shivbagas and others, entered into the house of Shiv Dayal and then assaulted Shivbagas, Savitri, Bishambar, Ganesh and Pitambar.
Even according to the prosecution, only Ganesh (P.W.2) and Mohit (P.W.25) and to some extent Anandmati (P.W.18) are witnesses of the incident which had happened in front of the house of Nathuram. The evidence of all the 3 witnesses which has been discussed herein-above proves that when Shivbagas along-with his wife Anandmati and son Ganesh (P.W.2) was going to the house of his elder brother Shivdayal for lunch, they saw that Mohit, their nephew who was also proceeding towards the house of Shivdayal to take lunch, was being assaulted by Nathuram in front of house of Nathuram and then to rescue him, Shivbagas and Ganesh arrived at the place of incident where Mohit was being assaulted. Anantmati (P.W.18) says that when she saw Mohit was being assaulted by Nathu and when her husband Shivbagas and son Ganesh Prasad rushed to the spot of incident to rescue Mohit, she ran away from the spot and thereafter she has not seen the incident further.
Thus according to the prosecution, the eye-witnesses of the incident of assault is first on Mohit (P.W.25) and thereafter on Shivbagas and Ganesh (P.W.2). The evidence of these two witnesses clearly shows that the incident of 15 quarrel as between Nathu and Shivbagas took place all of a sudden and it is not a case where Nathu alongwith two appellants had shared any common intention to kill Shivbagas and in furtherance of that common intention, he inflicted a blow on the head of Shivbagas. Both Ganesh (P.W.2) and Mohit (P.W.25) say that when Shivbagas alogwith his wife and son were going on the road and when he saw that Mohit was being assaulted by Nathuram, then he alongwith Ganesh went there and asked Nathuram not to assault Mohit and then Nathuram gave him a blow on the head of Shivbagas. That means the quarrel took place all of a sudden. More over, Nathuram gave single blow on the head of Shivbagas. The medical evidence discussed herein above also goes to prove that Nathuram did not use sharp edge of the Axe but assaulted Shivbagas with blunt part of the Axe as the injury was not found to be incised but an injury, which according to the doctor, could be caused only by hard and blunt object. Therefore, the evidence led by the prosecution shows that when Shivbagas asked Nathuram not to assault Mohit, Nathu instantaneously gave a blow on the bead of Shivbagas.
19. In the present case, every prosecution witness has been given a suggestion of Shivbagas and his associates assaulting Nathuram and his team which has been denied. The defence has examined Dr.R.S. Tiwari as D.W.1, examined earlier as P.W.10 by the prosecution. He has clearly deposed regarding examination of injury sustained by Durga Prasad, Asmi and Nathuram. The case of the defence has been that Shivbagas and others had opened an assault 16 on Nathu Ram and others. The prosecution has failed to explain how Durga Prasad, Asmi and Nathu Ram sustained injuries. Therefore, the defence version of assault being opened on Nathuram, Asmi and Durga Prasad appears to be plausible. Therefore, it appears to be a case of sudden fight between two groups on the road for the reason that Mohit was being assaulted by Nathuram and when Shivbagas along-with Ganesh and others arrived at the spot and saw Nathuram assaulting Mohit, he resisted Nathu Ram and then Nathuram gave single blow on the head of Shivbagas. Therefore, in these circumstances, established from the evidence, we find ourselves unable to accept the prosecution case that there was a common intention shared by Puran and Durga Prasad along-with Nathuram to kill Shivbagas. In fact, there is a considerable force in the submission of learned counsel for the appellants that the circumstances do not even make out any case of murder because it was not a case of any premeditation but all of a sudden during the quarrel single blow was given on the head of Shivbagas that too by blunt side of the Axe by Nathuram without further repetition of injury on any vital part. Therefore, at the most it could be a case of culpable homicide not amounting to murder.
20. The second part of the incident is comprised in the action of the appellants Nathuram, Puran and Durga Prasad in rushing towards the house of Shivdayal where Shivbagas was taken, entering the house of Shivdayal and then assaulting Shivbagas, Savitri, Bishamber, Ganesh and Pitamber. The other eye witnesses of the incident including the inured 17 witnesses Savitri, Bishambar, Ganesh and Pitambar have deposed that the appellants entered the house of Shiv Dayal and assaulted Savitri. Puran is alleged to have assaulted Savitri on her hand resulting in a fracture. All other injuries have been found to be simple in nature. According to the version of prosecution witnesses with regard to what happened in the house of Shiv Dayal only shows that the appellants at the most shared common intention to assault. As Shivbagas had already been assaulted on his head by Nathuram on the road and in front of his house when he was resisted from assaulting Mohit, without there being any repetition of an act of assault on Shivbagas on any vital part of his body by any dangerous weapon, at the most conviction of appellants could be made out of sharing common intention to inflict simple injuries. Puran has been held guilty of commission of offence u/s 325 IPC for causing grievous heart in the hand of Savitri Bai. None of the two appellants namely Puran and Durga Prasad can be held to be guilty of commission of offence of murder by invoking section 34 of IPC that they shared common intention with Nathuram to murder Shivbagas because in the house of Shivdayal whatever was done by the appellants along-with the deceased, appellant Nathuram could only be said to be sharing common intention to assault and cause simple injury.
21. In the result, the conviction of the appellants Puran and Durga Prasad for commission of offence u/s 302/34 is set aside. The conviction of Puran u/s 325 and that of Puran and Durga Prasad u/s 323 read with section 34 IPC and Section 452 IPC is sustained.
18
22. As Puran and Durga Prasad have been sentenced to R.I., for 1 year for commission of offence u/s 452 read with section 34 of IPC, sentence of 1 year on Puran for commission of offence u/s 325 IPC and sentence of 6 months on Durg Prasad for the offence u/s 323 read with section 34 IPC which were directed to run concurrently and which period has already been undergone by Puran and Durga Prasad during pendency of these appeals before their release on bail, while allowing these appeals partly, in the manner described above, we direct that the appellants Puran and Durga Prasad be released forthwith. The bail bonds and sureties submitted by them shall stand discharged. The appeals are partly allowed as above.
Sd/- Sd/-
(MANINDRA MOHAN SHRIVASTAVA) (SANJAY AGRAWAL)
(VACATION JUDGE) (VACATION JUDGE)
Rao