1 Reserved on – 01.07.2025 Delivered on – 26.09.2025. NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 299 of 2004 1 - (Died And Deleted) Chetan Singh As Per Hon'ble Court Order Dated 12-08-2024 2 - Malikram S/o Nohar Sai Rathiya Aged About 29 Years R/o Village Rupang, P.S.- Dhamjaygarh, District Raigarh, Chhattisgarh. 3 - (Died And Deleted) Kunjbihari As Per Hon'ble Court Order Dated 12-08-2024 4 - Salikram S/o Nohar Sai Rathiya Aged About 29 Years R/o Village Rupang, P.S.- Dhamjaygarh, District Raigarh, Chhattisgarh. 5 - (Died And Deleted) Nohar Sai As Per Hon'ble Court Order Dated 12-08-2024 6 - Chandan Singh S/o Dev Singh Rathiya Aged About 32 Years R/o Village Rupang, P.S.- Dhamjaygarh, District Raigarh, Chhattisgarh. ... Appellants versus 1 - State Of Chhattisgarh ... Respondent(s) For Appellants : Mr. H. S. Ahluwalia, Advocate For Respondent(s) : Ms. Nupur Sonkar, PL Hon'ble Shri Justice Sachin Singh Rajput CAV Judgment 1. This appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) has been filed by the appellants, assailing the legality, validity and judicial propriety of conviction and order of sentence dated 25.02.2004 passed by the 2nd Additional Sessions Judge, Raigarh (C.G.) (for short trial Court) in Session 2 Case No.225/2002 by which learned trial Court has held the appellants guilty of commission of offence and sentenced as described below - Conviction U/s 148 of Indian Penal Code. U/s 304 part-I/149 of IPC U/s 323/149 of IPC Sentence Awarded R.I. for 2 years with fine of Rs. 200/- in default of payment to under go RI 3 month separately. R.I. for 5 years with fine of Rs. 500/- in default of payment to under go RI 6 month separately. R.I. for 1 years with fine of Rs. 200/- in default of payment to under go RI 3 month separately. All the sentences will run concurrently. 2. As per the order sheet dated 12.08.2024, the appellant- Chetan Singh Rathiya died on 06.01.2022, appellant No. 3- Kunj Ram Rathiya died on 11.07.2017 and appellant No. 5 Nahar Sai died on 01.08.2007 and their appeal stood abated. 3. The prosecution case in brief is that on 09.09.2002, in front of house of appellant – Chetan Singh a quarrel had erupted between the accused appellants and the complaints which eventually culminated into the assault. It is alleged that earlier in the day, Ramakant (PW-14), the brother of the complainant, was abused by the servant of appellant Chetan Singh, to which objection was raised. When this issue was brought to the notice of appellant Chetan Singh, he along with his wife allegedly assaulted Ramakant. Later in the evening, the complainant party including deceased Harishankar went to the house of Chetan Singh to question him about the incident. At that time, all the accused persons, armed with tangia and lathis, assaulted the complainant party, resulting in fatal head injury to Harishankar and simple injuries to Shiv Prasad (PW-4), Khateshwar (PW-1), and 3 Om Prakash (PW-3). The deceased Harishankar was taken to hospital and during the treatment he died on 10.09.2002 at 1.00 AM. 4. FIR (Ex.P/1) was lodged by PW-1 Khateshwar on the same day at Police Station Dharmjaigarh under Sections 147, 148, 149, 294, 506, 324 and 307 IPC. During investigation, seizure of weapons was seized vide Ex.P/5, Ex.P/7, Ex.P/9, Ex.P/11, Ex.P/13 and Ex.P/15 from the appellants. The deceased Harishankar was sent for post-mortem, which was conducted by Dr. B.L. Bhagat (PW-17). On completion of investigation, the appellants were charged under Section 148, 323/149 & 304-I/149 of IPC who abjured the guilt and claimed to be tried and thereafter the case was committed to the Court of Sessions and eventually transferred to the trial Court. 5. In order to prove its case, prosecution examined as many as 20 witnesses and exhibited 57 documents. The statement of the appellants under Section 313 CrPC was recorded in which, they claimed innocence and stated that they have been falsely implicated. Defence also examined two witnesses in support of its case. 6. Learned counsel appearing for the appellants submits that the trial Court erred in convicting all the appellants with the aid of Section 149 IPC. He submits that that the incident occurred all of a sudden in front of the house of appellant Chetan Singh when a quarrel ensued between the complainant party and the appellants. He further submits that there was no premeditation or common object to commit the murder of deceased Harishankar. It is further submitted that the evidence of injured witnesses only discloses that appellant Malikram dealt a tangia blow on the head of deceased Harishankar, which unfortunately resulted in his death. He submits that other appellants are alleged only to have assaulted by lathi and caused simple injuries. Thus, fastening joint liability under Section 149 IPC for the act of Malikram is not legally sustainable. He submits that the complainant party themselves had gone to the house of appellant Chetan Singh and were the 4 aggressors, which is evident from the counter FIR lodged against them and the injuries sustained by some of the appellants. The prosecution has not explained the injuries on the defence side. Hence, at the most, individual liability could be attributed to Malikram under Section 304 Part II IPC, and to others only under Section 323 IPC. To buttress his submission he placed reliance of judgment of Hon’ble Supreme Court in case Anbazhagan Vs. The State, represented by the Inspector of Police reported in AIR 2023 SC 3600; Rati Pal Pasi Vs. State of UP reported in (2023) 0 Supreme (All) 1915; Guddu alias Ram Prasad Vs. The State of Chhattisgarh reported in (2018) 0 Supreme (Chh) 243. 7. On the other hand, learned State counsel submits that the appellants were more than five in number, armed with lathis and tangia, and in furtherance of their common object assaulted Harishankar and other members of the complainant side. The testimonies of the injured and eye-witnesses clearly establish their participation. Thus, the conviction recorded by the trial Court calls for no interference. 8. I have heard learned counsel for the parties, considered their rival submissions and perused the records with utmost circumspection. 9. PW-1 Khateshwar deposed that on the date of the incident, after the quarrel with Ramakant, the complainant party went to ask about the incident to Chetan Singh. At that time, all the accused persons came out with lathis and tangia. He specifically stated that appellant Malikram struck deceased Harishankar with a tangia on his head, as a result of which Harishankar fell down bleeding, while the other accused persons assaulted him and others with lathis, causing only minor injuries. 10. PW-3 Om Prakash corroborated this version and further deposed that the tangia blow on the head of deceased Harishankar was given by Malikram, while the others only used lathis. PW-4 Shiv Prasad, another injured witness, also gave a 5 similar version that a single tangia blow was inflicted by Malikram on the head of deceased Harishankar and the rest assaulted with lathis causing him simple injuries. 11. PW-7 Shravan Kumar deposed in his statement that when Ramakant ran away from the place, the accused persons shouted to beat deceased Harishankar, whereupon appellant- Malikram brought a tangia and struck him on the head. PW-14 Ramakant, the brother of the deceased, reiterated these facts in his deposition. 12. The medical evidence of PW-17 Dr. B. L. Bhagat shows that deceased Harishankar had an incised wound on the frontal and parietal region of the head which was sufficient in the ordinary course of nature to cause death. He further deposed that the injuries sustained by the other injured witnesses were simple in nature. The post-mortem report confirms that except for the single head injury, there were no other serious wounds on the body of the deceased. 13. On a careful reading of these testimonies, it is evident that the evidence is consistent and trustworthy to the extent that only one fatal injury was inflicted on the deceased Harishankar. According to the medical evidence only one injury caused on the head of the deceased was fatal and remaining once were simple in nature. 14. From the cumulative analysis of the oral and medical evidence, it becomes clear that the incident was not the result of premeditation or pre-arranged plan, but rather a sudden quarrel that erupted when the complainant party reached the house of appellant Chetan Singh. There is ample evidence to show that at the relevant time all the accuse appellant were present in the same house and at the time when complainant party had visited the house of the accused appellant with the complaint as to why Ramakant was assaulted, they all developed a common object to assault the complainant party and in pursuance of that they picked up 6 lathi and axe, and opened the assault using the words ‘you will not be spared alive’. All this shows that the accused appellants were determined to cause the assault on the complainant party which eventually claimed the life of one and injuries to others. 15. The evidence of PW-17 Dr. B. L. Bhagat shows that apart from the solitary incised wound on the head of the deceased, no other grievous injury was found on the his body. He has then reiterated that the injuries present on the other victims were simple in nature. This finding of the Doctor to the effect that only a single blow was inflicted on the head of the deceased of course stands as a mitigating factor in favour of the accused appellant. 16. From the evidence of the witnesses in particular PW-1, PW-3 & PW-4 it is evident that on the date of incident when Om prakash and Harishankar and others went to the house of the appellant – Chetan to enquire as to why he had assaulted the Ramakant, all the accused persons in prosecution of the common object, picked up club, axe, and exhorting ‘you will not be spared alive’ assaulted the injured persons and also the deceased. It is relevant to note here that the deceased has suffered the injury on his head. If the evidence is seen in totality, the vital ingredients for committing the culpable homicide i.e. the premeditation or the prior intention are missing in this case, however, looking to the role played by each accused appellant, it can safely be inferred that while causing injuries they had the knowledge that their act may prove fatal to the life of the deceased. In these circumstances and also being thoughtful of the legal position propounded by the Supreme Court in the cases referred to above, the act of the accused appellant cannot fall under Section 304 Part-I of IPC rather it will shift to Section 304-II with the aid of section 149 of IPC. This being the position, the conviction of the accused appellant under Section 304 Part-I of IPC is set aside and now the accused appellants are convicted under section 304-II/149 of IPC. The conviction 7 imposed on the accused appellant under sections 323/149 & 148 of IPC is however left undisturbed. 17. As regards sentence, looking to the facts circumstances of the case, the fact that the incident had occurred in the year 2002 where only one blow was inflicted to the deceased, that the accused appellants were on bail during trial as also after the judgment impugned being passed and they are not reported to have misused the liberty, and that by now the accused appellants must be leading a settled life, this Court is of the considered opinion that in light of judgment of Hon’ble Supreme Court in case of Mohammad Giasuddin Vs. Sate of Andhra Paradesh reported in AIR 1977 SC 1926, the ends of justice would be served if the sentence imposed upon the accused appellants is reduced to the period already undergone, which in this case comes to about 8 months. Order accordingly. However, it appears appropriate for this Court to enhance the fine amount imposed by the trial Court. The records show that out of six, 3 accused appellants have already left for heavenly abode. Being this, each surviving accused appellant is directed to pay a fine amount of Rs. 15,000/-, the total of which comes to Rs. 45,000/- within 90 days from the date of this judgment in default they will undergo additional rigorous imprisonment for 2 months. On fine being paid, an amount of Rs. 40,000/- would be disbursed to the wife of the deceased as compensation in terms of section 395 BNSS, 2023. Appeal is thus allowed in part with the observations made above. Consequence to follow. The seized property be disposed of in terms of trial Court’s judgment. Sd/- (Sachin Singh Rajput) JUDGE H.Ansari HIFZURRAHMAN ANSARI Digitally signed by HIFZURRAHMAN ANSARI Date: 2025.09.26 16:30:58 +0530