(Ranjan Gogoi, C.J. and Sanjay Kishan Kaul and K.M. Joseph, JJ.)
Podiyami Lakho __________________________________ Appellant;
v.
State of Chhattisgarh _______________________________ Respondent.
Criminal Appeal No(s). 2342/2009, decided on October 10, 2018
With
Criminal Appeal No. 1058/2011
The Order of the court was delivered by
Order
1. The appellants challenge their conviction under Section 302/34 IPC and the consequential sentence of life imprisonment. Lukhmo (P.W.1), Budri (P.W. 2), Kade (P.W.3), Maso (P.W.5) and Dundi (P.W.6) are the eye-witnesses who have ascribed specific roles to the accused persons. Insofar as accused appellant-Podiyami Lakho and accused Podiyami Maso, who are the sons of accused appellant-Podiyami Ando are concerned the prosecution evidence is consistent that they had assaulted the deceased on the head with stones which they were carrying weighing about 7 kg. and 11 kg.
2. The aforesaid assault on the head of the deceased by heavy blunt object finds corroboration from the evidence of Dr. Y. Markam (P.W. 7), the doctor, who had conducted the post-mortem examination. While P.Ws. 2 and 3 do not ascribe any injury by the accused appellant – Podiyami Ando (appellant in Criminal Appeal No. 1058/2011) on the head of the deceased what cannot be lost sight of is the fact that the conviction of the all the accused persons is with the aid of Section 34 IPC. In this regard, there is no dispute that all the accused persons had gone together to the place where the deceased was standing and had mounted a common assault on the deceased. In these circumstances, we do not see how the vicarious liability under Section 34 IPC would not be attracted.
3. Furthermore, there is a evidence of recovery of the offending weapons at the instance of the accused which fact is admissible under Section 27 of the Indian Evidence Act, 1872. The defence version that there is inconsistency in the prosecution case with regard to the place of occurrence i.e. the courtyard or the street and the further defence that the eyewitnesses were inside the house and, therefore, could not have seen what was happening outside, stands concluded by the concurrent findings recorded by the learned trial Court and the High Court. Shortly, the finding in this regard is that the courtyard which is open stretches out to the main street and, therefore, the entire area was an open area which could be clearly visualized from inside the house.
4. The above discussions leave no room for any interference with the conviction recorded and the sentence imposed. We, therefore, affirm the same and dismiss the appeals.
5. We have noticed that the accused appellants have been in custody for long though the precise period thereof is not known. We, therefore, observe that if the accused appellants are, in any way, entitled to remission, etc. the concerned State/District Legal Services Authority will offer legal aid to the appellants to enable them to file application(s) for remission, etc. which as and when filed will be considered by the concerned authority of the State in accordance with law.
6. The appeals consequently are dismissed subject to the aforesaid observation.
7. Mr. Ajay Sharma, learned counsel who is the legal aid counsel for the appellant in Criminal Appeal No. 2342 of 2009 has not appeared for reasons shown. We had requested Shri Rupesh Kumar, learned counsel to appear and assist the Court. We acknowledge the assistance rendered by Shri Rupesh Kumar, learned counsel.
CRIMINAL APPEAL NO(S). 2342/2009
Podiyami Lakho __________________________________ Appellant
v.
The State of Chhattisgarh _______________________ Respondent
With
CRL.A. NO. 1058/2011 (II-C)
Date: 10-10-2018 These appeals were called on for hearing today.
(Before Ranjan Gogoi, C.J. and Sanjay Kishan Kaul and K.M. Joseph, JJ.)
For Appellant(s) Mr. Rupesh Kumar, Adv.[SCLSC]
Mr. Karruppian Neyyappan, Adv.
For Mr. Ajay Sharma, AOR [N/P]
Mr. Pukhrambam Ramesh Kumar, AOR [SCLSC]
Mr. K. Amrit Kumar Sharma, Adv.
For Respondent(s)
Mr. Aniruddha P. Mayee, AOR
Mr. Chirag Jain, Adv.
UPON hearing the counsel the Court made the following
ORDER
8. The appeals are dismissed in terms of the signed order.
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