Conviction under S.302 IPC not supported by evidence of common intention; S.323 and S.294 IPC conviction upheld due to sufficient evidence.

1. This appeal has been filed against the judgment of conviction and order of sentence dated 29.5.2003 passed by Additional Sessions Judge, Mahasamund, in Sessions Trial No. 320/1995 convicting the accused / appellants under S.302 and S.323 IPC and sentencing each of them to undergo imprisonment for life with fine of Rs. 200/- u/s 302 and RI for one month u/s 323 IPC, plus default stipulations. In addition to this, accused / appellant Roop Singh has also been convicted u/s 294 IPC and sentenced to undergo RI for one month.

2. Brief factual background leading to disposal of this appeal is that on 4.5.1995 at about 6.30 AM Benuram (PW - 2) received an information to the effect that there was fire in his heystack and while he was going to the said place, on the way near Jaistambh he met his uncle Jethuram, Krishna Kumar and Anand Ram. At that time accused / appellant Roop Singh who was already there, abused him which was objected to by Jethuram, and at that point of time the accused / appellants herein and the deceased / accused Balaram caused injuries to Jethuram with club as a result of which he fell down and became unconscious. Thereafter, accused persons caused injuries to him (Benu Ram), Krishna Kumar and Anand Ram also. On the basis of report lodged by Benu Ram (PW - 2), offences under S.307, S.323, S.294, S.34 IPC were registered against the accused / appellants herein and deceased / accused Balaram. Injured Jethuram was medically examined by Dr. Chandra Shekhar Mishra (PW - 3) vide report Ex. P - 5. Likewise, injured Benu Ram (PW - 2), Krishna Kumar (PW - 10) and Anand Ram (PW - 6) were also medically examined by the same doctor (PW - 3) vide reports P - 7, P - 9 and P - 11 respectively. In the incident, accused Roop Singh is also said to have suffered injuries which is apparent from the document of Ex. D - 1 duly proved by Dr. Chandrika Sahu (DW - 1). During treatment, injured Jethuram expired on 9.5.1995 in the hospital, and on the basis of intimation sent therefrom merg Ex. P - 2 was registered. Postmortem examination on the body of the deceased was conducted by Dr. D.C. Jain and after his death the postmortem report has been proved by Dr. Ullhas Gannade (PW - 19). After completion of investigation, challan was laid against the present appellants and deceased / accused Balaram under S.302, S.307, S.294, S.323, S.34 IPC followed by framing of charge accordingly against the accused / appellants only as accused Balaram expired before such exercise.

3. In order to prove the complicity of the accused / appellants in commission of crime in question, the prosecution has examined 21 witnesses in support of its case. Statements of the accused / appellants have also been recorded under S.313 of the Code of Criminal Procedure in which they denied the allegations made against them and pleaded their innocence and false implication in the case.

4. After hearing the parties the Court below has convicted and sentenced the accused / appellants as detailed in paragraph No.1 of this judgment.

5. Counsel for the accused / appellants submits as under:

(i) That during pendency of this appeal accused / appellant Roop Singh S/o Balaram expired and death certificate to this effect has also been filed, which is hereby taken on record. Even the State counsel has also verified this fact.

(ii) That there is no direct evidence to show the involvement of the accused / appellants in the crime in question.

(iii) That deceased Jethuram has suffered only a single injury on head and died 5 days after the incident during treatment in the hospital. The fact that the deceased suffered single injury is evident from the statement of Dr. Chandra Shekha