IMPORTANT POINT
Members of an assembly cannot be held criminally liable unless the assembly is unlawful and intention/knowledge of crime to be committed is established.

JUDGMENT

C. NAGAPPAN, J. –

1. Leave granted in both the special leave petitions.

2. Both the appeals have been preferred against the common judgment dated 31.1.2012 of the Division Bench of the High Court of Chhatisgarh, Bilaspur, in Criminal Appeal No.12 of 2007 and Criminal Appeal No.331 of 2007. The appellants herein Nagesar and Khetro accused Nos. 6 and 7 respectively, in Sessions Trial No.232 of 2005 on the file of 10th Additional Sessions Judge (FTC) Durg, were tried along with five other accused and all of them were convicted for the offence under Sections 147, 148 and 302 IPC and each of them was sentenced to undergo rigorous imprisonment for one year and pay a fine of Rs.1000/- and in default to undergo rigorous imprisonment for two months for offence under Section 147 IPC; one year rigorous imprisonment and to pay a fine of Rs.2000/- each and in default to undergo rigorous imprisonment for three months for the offence under Section 148 IPC and life imprisonment and to pay a fine of Rs.3000/- in default to undergo six months imprisonment for the offence under Section 302 IPC and the sentences were directed to run concurrently.

3. Aggrieved by the conviction and the sentences accused Nos. 1 to 7 preferred five criminal appeals and the High Court by the impugned common judgment dated 31.1.2012 partly allowed the appeals by setting aside the conviction and sentence imposed upon them and acquitted them for the offence under Section 148 IPC and also altered conviction under Section 302 IPC to Section 304 Part II of IPC and sentenced each of them to undergo rigorous imprisonment for a period of 6 years and imposed a fine of Rs. 3000/- on each of them and in default to undergo rigorous imprisonment for six months and maintained the conviction and sentence imposed on them for the offence under Section 147 IPC. Challenging the same accused Nos.6 and 7 have preferred the present appeals.

4. Background facts of the case in a nutshell are as follows: On 13.6.2004 in the evening Korma Rao was sitting along with PW1 Pramod and Pradeep near -Priyadarshini Market Chowk, Khursipar, Bhilai. Accused Nos. 1 to 7 were consuming ‘Ganja” and liquor in the above said place and this was objected to by Korma Rao and in the altercation Korma Rao slapped accused No.4 Rajendra Prasad Shukla @ Tukna. Korma Rao left the place with PW1 Promod & Pradeep by scooter. Again at 11.45 PM he came back to the same place where juvenile accused Pitambar @ Panto threw chilli powder on the eyes of Korma Rao and assaulted him on the head with sword. When Korma Rao fell down juvenile Pitambar took out a stone and dropped it over his head and the other accused assaulted him. Accused No.1 Bhimsen @ Bhim attacked Korma Rao with stick. When PW8 Gopi Rao intervened he was attacked on the head with sword by accused No.1 Bhimsen @ Bhim. PW9 Ram Lalit Yadav also witnessed the occurrence. PW 8 Gopi Rao informed PW5 Bhaskar Rao, who is the brother of Korma Rao about the occurrence and they took injured Korma Rao to BSP -Hospital, Bhilai. Korma Rao was examined by PW4 S.K. Bhoi and Ex.B4 wounds Certificate was issued by him. He also examined PW 8 Gopi Rao and found a lacerated wound over the back of his head and issued Exh.P5 Injury Certificate.

Korma Rao died at 3.00 P.M.. PW5 Bhaskar Rao lodged complaint and the death of Korma Rao was intimated by the Doctor vide Exh. P32 and FIR Exh.P21 came to be recorded. The Investigating Officer conducted inquest over the body vide Exh.P8 Inquest Report. He seized blood stained earth, blood stained stone and broken bricks by Exh. P13 and sent the body for post-mortem.

5. PW13 Dr. Padmakar Mishra conducted the autopsy on the body of Korma Rao and found the following injuries:

i) Incised wound of 4 c.m. x 1 c.m. x 1 c.m. over back of head with fracture of bone.

ii) -

iii) Two incised wounds of 2 c.m. x ½ c.m. x 1 c.m. and 2 c.m. x ½ c.m. over back of head.

iv) Incised wound of 7.5 c.m. over left temporo parietal region.

v) Incised wound of 9 c.m.