J U D G M E N T

(23 /09/2021)

Per: Atul Sreedharan, J :

The present appeals have been filed by the Appellants herein who are aggrieved by the order dated 18.3.2010 passed by the learned 15th Additional Sessions Judge (Fast Track Court) Jabalpur, in Sessions Trial No.4642008, convicting and sentencing all the Appellants interalia for an offence under section 302 read with section 149 IPC and sentenced them to suffer rigorous imprisonment for life and fine of Rs.5000/- and an additional rigorous imprisonment for one year in default thereof. They were also convicted for the offence under section 325 and 323 IPC for which they were to suffer rigorous imprisonment for three years and fine of 500/- and rigorous imprisonment for additional three months for the offence under section 325 IPC and 15 days under section 323 IPC in default of payment of fine. The Appellants were also convicted for the offence under section 459 read with section 149 IPC and sentenced to suffer rigorous imprisonment of five years and a fine of Rs.500/- and an additional imprisonment for six months in default thereof and also sentenced under section 148 IPC to suffer rigorous imprisonment for one year and a fine of Rs.500/- and an additional imprisonment for three months in default thereof.

2. The genesis of the offence is as follows :- On 27.5.2008 at 8.30 p.m one Radha Tiwari was alleged to have been assaulted by the Appellants which resulted in her death. There are three injured witnesses who are PW1 Brajesh, PW2 Madhu and PW3 Pooja. The deceased and the witnesses stay in a duplex house bearing number 11 in Samdariya Complex. Their neighbour is the Appellant Ajay alias Ajju Yadav, who is Appellant No.3 in Criminal Appeal No.608/2010. He lives in a duplex house bearing No.12, with his wife Sulekha Yadav also a co-accused and Appellant in Criminal Appeal No.520/2010.

3. On 27.5.2008 at about 8.00 pm, the deceased and her children were inside the flat and all the accused persons were in the flat of Appellant Ajay. It is alleged that comments were being passed by the accused persons on PW2 and PW3 (Madhu and Pooja) who were inside their house which was objected to by the deceased Radha Tiwari. There was an altercation between the deceased and the Appellants and thereafter, the Appellants entered the flat of the deceased and Appellant No.1 Manoj Yadav in Criminal Appeal No.608/2010 armed with a lathi, Appellant No.2 Guddu in Criminal Appeal No.608/2010 armed with a ‘kasaiyya’ (sharp edged and curved like a sickle) and Appellant No.3 Ajay in Criminal appeal No.608/2010 armed with a baka and Appellant Pappu in Criminal Appeal No.966/2010 armed with a lathi assaulted the deceased. The Appellant Manoj Yadav is alleged to have given a single blow on the head of the deceased with a lathi who fell down. Appellant Ajju is alleged to have struck the complainant Brajesh on the head with a baka and Appellant Guddu is alleged to have struck Madhu on the head with a ‘kasaiyya’ and Pappu is alleged to have struck Pooja with a Lathi.

4. After the assault, Brajesh and Madhu took the injured Radha Tiwari to P.S Gohalpur, which is about 400 metres away from the place of incident, and registered the FIR, which is Ex.P/1. The injured witnesses were examined by PW9 Dr. Ambika Soni, as so was Radha Tiwari. MLC of the Radha Tiwari is Ex.P/21, MLC of Brajesh is Ex.P/22, MLC of Madhu is Ex.P/20 and MLC of Pooja is Ex.P/24. The deceased passed away on the next day of the incident. Ex.P/15 is the post-mortem report . In this case only three eyewitnesses were examined.

5. Ld. Counsel for the Appellants Manoj, Guddu and Ajay in Criminal Appeal No.608/2010 and Pappu in Criminal Appeal No.966/2010 submit that the case of Appellant Manoj Yadav would at the most be punishable under section 304 Part II IPC while the other Appellants would only be guilty under section 323 IPC. As regards the Appellants Sulekha Yadav and Gagan Jain, their respective counsels have submitted that though they are named in