A-f-^_ |OSS< o^ HIGH COURT OF CHHATTISGARH, BJLASPUR CORAM: Hon'ble Shri Rajeev Gupta, C.J. & Hon^ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 802 of 2007 ?.. •:4 Ra^ijit Nishad Vs. State of Chhattisgarh (And other connected Criminal Appeals No. 822/2007; 823/2007; 824/2007;825/2007;826/2007; 827/2007 & 828/2007) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON»BLE SHRI JUSTICE RAJEBV GUPTA J ^^^_ Sd/- Chief Justice Post for Judgment :/6/08/^2009_ Sd/- SunilKumarSinha Judge HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon»bleShri Sunil Kumar Sinha^J. Criminal Appeal No. 802 of 2007 APPELLANT RESPONDENT I Ranjit Nishad, S/o Kirtan Ram Nishad, aged about 20 years, R/o Village- Pataod, Police Station- Kanker, District- Kanker (C.G.) Versus State of Chhattisgarh, Through- Station House Officer, Police Station- Kanker, District- Kanker (C.G.) APPELLANT RESPONDENT Criminal Appeal No. 822 of 2007 Jageshwar alias Jage, S/o Surajlal, aged about 24 years, R/o Village- Pataod, Pplice Station- Kanker, District- Kanker (C.G.) Versus State of Chhattisgarh, Through- Station House Officer, Police Station- Kanker, District- Kanker CriminalAppeal No. 823 of 2007 APPELLANT RESPONDENT Dev Prasad, S/o Krishan Nishad, aged about 42 years, R/o Village- Pataod, Police Station- Kanker, District- Kanker (C.G.) Versus State of Chhattisgarh, Through- Station House Officer, Police Station- Kanker, District- Kanker (C.G.) /fS*-^ '*'^%23^" % Criminal Aweals No. 802/2007; 822/2007; 823/2007; 824/2007; 825/2007: 826/2007: 827/2007 & 828/2007 APPELLANT RESPONDENT Criminal Aooeal No. 824 of 2007 Shankar Nishad, S/o Devlal Nishad, aged about 35 years, R/o Village- Pataod, Police Station- Kanker, District- Kanker (C.G.) Versus State of Chhattisgarh, Through- Station House Officer, Police Station- Kanker, District- Kanker \^ APPELLANT RESPONDBNT Criminal Appeal No. 825 of 2007 Brijwati Nishad, W/o Kirtan Ram Nishad, aged about 40 years, R/o Village- Pataod, Police Station- Kanker, District- Kanker (C.G.) Versus State of Chhattisgarh, Through- Station House Officer, Police Station- Kanker, District- Kanker APPELLANT RESPONDBNT Criminal Appeal No. 826 of 2007 Devchand Nishad, S/o Late Krishn Ram, aged about 35 years, R/o Village- Pataod, Police Station- Kanker, District- Kanker (C.G.) Versus State of Chhattisgarh, Through- Station House Officer, Police Station- Kanker, District- Kanker APPELLANT Criminal Appeal No. 827 of 2007 Devlal, S/o Krishna, aged about 47 years, R/o Village- Pataod, Police Station- Kanker, District- Kanker .. ^-ys^^ .A ""^ ^ .^St^- j ^. ^.: J S -. -:-.<^ 3 Criminal Appeals No. 802/2007: 822/2007: 823/2007: 824/2007; 825/2007: 826/2007; 827/2007 & 828/2007 RBSPONDBNT APPELLANTS Versus State of Chhattisgarh, Through- Station House Officer, Police Station- Kanker, District- Kanker And Criminal Aooeal No. 828 of 2007 1. Brijlal, S/o Krishna, aged about 48 years 2. Manoj Kumar, S/o Brijlal, aged about 22 years 3. Surajlal, S/o Late Krishna, aged about 56 years All are R/o Village- Pataod, Police Station- Kanker, District- Kanker Versus State of Chhattisgarh, Through- Station House Officer, Police Station- Kanker, District- Kanker (Appeals under Section 374 (2) ofThe Code ofCriminal Procedure) Appearance: Mr. V.C. Ottalwar & Mr. Rajeev Shrivastava, Advocates for the appellants. Mr. Subhir Bajpai, Dy. Govt. Advocate, for the State. JUDGMENT (^O .08.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. RESPONDENT (1) These appeals have been directed against the judgment and order dated 8th of August, 2007 passed in Sessions Trial No. 155/2006 by the Sessions Judge, Kanker, North Bastar (C.G.), Criminal AppealsNo. 802/2007; 822/2007: 823/2007; 824/2007: 825/2007: 826/2007: 827/2007 & 828/2007 whereby the appellants have been convicted and sentenced in the following manner with a further direction to run the sentences concurrently:- h^ Conviction u/s 148 IPC u/s 323 read with Section 149 IPC u/s 436 read with Section 149 IPC u/s 302 read with Section 149 IPC Sentence R.I. for 2 years R.I. for 6 months (in four counts) R.I. for 10 years and fme of Rs.1,000/-, in default of payment of fine to further undergo R.I. for 3 months Imprisonment for life (2) The facts, briefly stated, are as under:- Complainant Budhiyar Jain (P.W.4) has a shop at Pushwada Chowk in village Bevarti. His residence is also near the shop. Appellants Brijwati Bai and Dev Prasad Nishad had encroached upon the government land which was in front of the house of the complainant. On 2.12.2005, the said encroachment was removed by the Revenue Authorities. The allegations are that on the pretext that the encroachment was removed on the instance of the complainant, on 2.12.2005 at about 8.30 p.m., the appellants, armed with deadly weapons, formed an unlawful assembly, participated in rioting and thereafter in prosecution of the common object of that assembly they assaulted complainant Budhiyar Jain (P.W.4), Ramchandra (P.W.6), Rakesh Nayak (P.W.7) and Geeta Bai (P.W.8) and then they put the shop of the complainant on fire and they also caused death of one Mahavir S/o Sagnu Ram by putting ^, -^<.J ,-r ^ Criminal Appeals No. 802/2007: 822/2007: 823/2007; 824/2007; 825/2007; 826/2007; 827/2007 & 828/2007 him in fire in the said shop. It is also alleged that at the same time, the appellants put on fire 2 other nearby shops, one belonging to Prakash Sen and the other belonging to Alakhniranjan, which are the subject matters of 2 different Sessions Trial being Sessions Trial No. 42/2006 and 43/2006. On the instance of complainant Budhiyar (P.W.4), a Dehatinalishi to this effect, Ex.-P/36, was recorded and the investigation commenced. The Investigating Officer gave notice (Ex.-P/38) to the Panchas and prepared inquest (Ex.- P/39) on the body of the deceased. The dead body of the deceased was sent for its post-mortem to Government K.D. Hospital, Kanker under Ex.-P/32, where the post-mortem examination was conducted by Dr. Mohd. Abdul Naseem (P.W.2), who prepared his report Ex.P/-33. The Autopsy Surgeon opined that the cause of death was asphyxia due to 100% deep burns all over the body of the deceased and it was homicidal in nature. In further investigation, a Panchnama showing the loss in the shop to the extent of Rs.60,000/- was prepared under Ex.-P/42. 2 Nos. of bicycle, 3 Nos. of C.D. and many other articles (in bum condition) were seized from the place of occurrence under Ex.-P/44. After taking the accused/appellants into custody, their memorandum statements (Ex.-P/l, P/3, P/5, P/7, P/9, P/11, P/13, P/15, P/17 85 P/19) were recorded u/s 27 of the Evidence Act and articles like rod, knife, tangia, danda, sword and crow-bar etc. were seized at the instance of the appellants under Ex.- P/2, P/4, P/6, P/8, P/10, P/12, P/14, P/16, P/18 & P/20. The injured witnesses namely Budhiyar Jain (P.W.4), Ramchandra (P.W.6) and Geeta Bai (P.W.8) were sent for their medical examination under Ex.-P/45, P/46 & P/47 and their injury reports Ex.-P/53, P/54 & P/55 respectively —^^_ Criminal Appeals No. 802/2007: 822/2007; 823/2007: 824/2007: 825/2007; 826/2007: 827/2007 & 828/2007 were collected. According to their injury reports, they had sustained simple injuries caused by hard and blunt object. A Dehati-Merg intimation was recorded under Ex.-P/48, regular Merg intimation was recorded under Ex.-P/49 and the First Information Report (F.I.R.) was recorded under Ex.- P/37. After completion of usual investigation in this matter as also in the other matters, in all 3 charge-sheets were filed in the Court of Chief Judicial Magistrate, Kanker, who in turn committed the matters to the Court of Sessions Judge, Kanker, where 3 separate trials were conducted. In the present case, the learned Sessions Judge convicted and sentenced the accused/appellants as aforementioned. In other 2 cases also i.e. S.T. No. 42/2006 & S.T. No. 43/2006 the appellants were held guilty and were convicted and sentenced accordingly which are the subject matters of other criniinal appeals. (3) In case on hand, the conviction of the appellants is based on the testimonies of 4 eye witnesses namely Budhiyar Jain (P.W.4), Ramchandra (P.W.6), Rakesh Nayak (P.W.7) and Geeta Bai (P.W.8). (4) Mr. V.C. Ottalwar and Mr. Rajeev Shrivastava, learned counsel appearing on behalf of the appellants, argued that the formation of an unlawful assembly and the appellants being the members of the unlawful assembly was not established. It was also not established as to what was the common object of unlawful assembly. They argued that if common object ofunlawful assembly was not to put the shop on fire or to commit murder of deceased Mahavir or to give the assaults to the injured persons, u^ ^'^^^^/^ ^^.. Criminal Appeals No. 802/2007: 822/2007; 823/2007: 824/2007; 825/2007; 826/2007; 827/2007 & 828/2007 and someone on his own, commit the above acts, that would be an act committed on the part of that individual and no one else can be convicted with the aid of Section 149 IPC. They also argued that there was absolutely no evidence to show that who set the shop on fire and who caused the murder of the deceased. Therefore the learned Sessions Judge erred in law in convicting the appellants under the aforementioned Sections of the IPC. Besides the above, they also argued that all the eye witnesses, referred to above, are wholly unreliable and the conviction based on the testimonies of these witnesses cannot be sustained. In fact, from a mob of many persons somebody put the shop on fire without noticing that the deceased was inside the shop, whose body was later recovered after the incident. (5) On the other hand, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused the records ofthe sessions case. (7) Firstly, we shall consider whether there was an unlawful assembly and the appellants were the members of the said assembly ? If so, what was the common object of that assembly ? (8) Section 141 IPC defines an unlawful assembly. It provides that an assembly of five or more persons is designated an "unlawful assembly??, if the common object of the persons "^ ^"^^"iSm., ^. ^;.. 8 Criminal Appeals No. 802/2007; 822/2007: 823/2007; 824/2007; 825/2007: 826/2007; 827/2007 & 828/2007 composing that assembly is one or more of the 5 objects mentioned in section 141. It further provides by an Explanation that an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. This makes very clear that an assembly of not less than 5 persons having an unlawful common object which must be of the nature of one of the 5 objects specified in section 141 would primarily constitute an unlawful assembly and an assembly which was not unlawful when it assembled may also subsequently become an unlawful assembly for the purpose of section 149 IPC which provides that every niember of the unlawful assembly would be guilty of offence committed in prosecution of common object. The words figured as "comnion object59 in sections 149 and 141 IPC have great significance. It has to be understood in contradistinction with common intention. Therefore, with a view to look into the implications of section 149 IPC, mere presence of a person in an unlawful assembly would do nothing unless there was a common object, he was actuated by that common object and that object was one or more than one of those provided in section 141. Therefore, unless a common object of an unlawful assembly is proved, one cannot be convicted with the aid of section 149 and the common object of an unlawful assembly may be more than one. To ascertain that a person has shared the alleged common object of the unlawful assembly, it shall have to be determined that he was well aware that the assembly, of which, he was one of the members, was to commit or likely to commit the act or the ^ ^ -^fe' "^- Criminal AppealsNo. 802/2007; 822/2007: 823/2007; 824/2007; 825/2007; 826/2007: 827/2007 & 828/2007 acts provided in section 141. The common object may be formed at any stage. A common object formed at a particular stage may be left and a different object may be formed later. To put it differently, if an unlawful assembly was formed for killing 'A' which it did or which it did not do, thereafter that assembly also continued by immediately forming another common object of killing 'B' and there was evidence to this effect, than it would not be entertained that the initial object of the unlawful assembly was not to kill 'B', and for all purposes of Section 149 IPC the assembly at all did not possess the common object of killing 'B'. One has to determine all this in the given facts and circumstances of each case, and then, the provisions of section 149 has to be applied for convicting every member of the unlawful assembly, that is what the legislature intended by engrafting the words like "in prosecution of common object?? in section 149 IPC. Equally, in the facts and circumstances of each case, where there were sequence of acts committed, one has to determine on evidence that whether the common object of the unlawful assembly existed only upto commission of the first act and thereafter whether the assembly was disbursed or any member of the unlawful assembly or disbursed assembly committed the subsequent act and if it be so whether it would be his own act or it shall be held to be an act committed in furtherance of the common object of the assembly which was unlawful at a particular time. If it is found on evidence that the common object of an unlawful assembly was only to commit a particular act which was committed in the first "^rt'%. /"/'"^ ¥^. ^.^ '.te-... '. • ^^ 10 Criminal Appeals No. 802/2007: 822/2007: 823/2007; 824/2007: 825/2007: 826/2007; 827/2007 & 828/2007 instance and thereafter any member of the initial unlawful assembly commits a subsequent act which was not in furtherance of the common object, it would certainly be an individual act and not that of assembly and in such a case, no liability can be fastened with the aid of section 149. 'te. ^"^^- (9) Before appreciating the evidence, we would like to quote Dehatinalishi (Ex.-P/36), which was lodged by complainant Budhiyar Jain (P.W.4) and which was the first hand information given by him to the police. "^ft ffSW ^T1I4?I smr ciTfc^ 3No^o 0105 STNT 147/148/149/436/342/323/307/302 'vo^o^o 7nTr ri: ite? f^n f^RUT ^-r ^r cf^^N ^i 45 ^n^r ^TTO ^cii^i ^ ^ft STHTc^fc^ | f^O W^ q^TT 02/12/05 ^ 8/15 ^ ^T ^R7fT ^^r - ^ci i^i ^ ^ft msff cf^ ^TrT ^t ^ f^TT 9 I^O^O ^ f^ri^ ^m ^FIT 02/12/05 ^ 21 /30 6^ ^TH ^f ^?FTT ^^ - TTFT ^ft ^H smNt - (1) ^cf ^RTK 1^K, (2) ?PJ^TM f^K, (3) ^vrldld, (4) ^T^, (5) ?I^, (6) 'f^v\ f^N, (7) I^T^ft cflf I^K, (8) sT^ t^T^, (9) 'H^ f^lR (10) ^IcTM ^ 3F3Tf^Rft^? 1 f^cRUT ^ ^ctl^l rftcf? ^ft Tf ^fT ^ | ^ ^TPT •^n^TT ^ ^to^t ^^ ^t ^H ZT qpT ^rrt, ^ w c^ T<^ c^ ^FT^ ?TRfcf^T v^ TK ^nroK f^r? ^ w^\ ^ f^rw sri^W ^R ^r?r iRT^ ^ f^ STM f^O 2/12/05 ^ WjW fN7T ^RT ^^ cR Sltow ?^T?TT TRTT | ^ft ^ft ^RT cf c^ cf^ l^-Tr ^ ^(^ 3TM f^W 2/12/05 ^t -^T 8/15 6^ ^ ^PT ^? ^T^ f^K, ^cTcK f^K, ?fyTcTM f^NK, ^yldld f^K, ^cldtd f^K, ^C|T|^, ?fc(^ f^T^, T^JT^ TT^ f^r^^ 6^ f^T^, ^c)^ f^K cT SF^ cTT^T cTT^, ^^T, ^iE^T '?Tg, ^l^ ^c^ 3TT^ 3^ ^t ^pf ^ nt^ T^g cR ^te c^ cpt, ^r ^FT^ ^TrT ^ ^ g^ncTT, Tir'ft -fftcTT sn^, ^q^K ? c^cf?T ^TC^T ^ ^?k 7r^, ^?cR TT^ ift ^ | g^ ^t ^ TTN^ 1^ ^RT^ 4te ^ ^ ^^, ^rf^ ^ Tf, ^ ^^^^Tcf^^ufTTf^^t 1 ^HTT^- ^Tift ^ 3TT^ f | TfT^jte cTl^ ^ ^ ifT? ^t ^^ ^ftA ^PT ^3Tm" ^TT f^, ^ ^H W3^(^ ^M ^ 'ta w^ ^rt sfT^ ^ ?R? sR ^TT-T ^ TfR^ ct^ f^qcf ^ cR ^ ^ I ^t ^ to ^cf ff !! :> .T 1 ^'.'^ :"::N^ 11 Criminal Appeals No. 802/2007: 822/2007: 823/2007: 824/2007: 825/2007: 826/2007: 827/2007 & 828/2007 cTgc^r irm^ spr'ft ^TPT ei^ i ^nfe ^ cr ^|j|yi4l ^i^d c^ IR^T q^T ^ ^ cTT^r, W^ T^S, ^ZTT ^T?IC(?, c^rT cTM ^^t ^ t I cTK ^ 1WK ^S ^ ^RT ^FT ^R 3TFT I^ ^R 1??TT :E)CT ^ s^ff 3TKift ^TcR ^H 3F^ ^R ^ ^PTT t I ^T 3TFTu^ft ^RTTT ^ ^RT ^N 50-60 ^TR ^r ^T ^dpW^ |3TT t | fW TI^TcR ^TT ^t ^dlRch f^tTTTqT f | fW ^Kft ffSW ^RT ^ ^i ^ ^R f^TT ^Tcf^ 5^0^ Tf^if^ c(^ f^-o ^ 1^T7PTT I ^^0 ^IT1|chdi ^t/- SRt^ 02/12/05" (10) Budhiyar Jain (P.W.4) is the complainant whose C.D. Shop was put on fire. He deposed that "On 02nd of December, 2005, the revenue authorities had removed the encroachment made by the appellants. In the evening, the appellants, armed with lathi, rod and stones came to his shop. They attacked over them. Ramchanra (P.W.6), his wife Geeta Bai (P.W.8), Ramesh (P.W.5), Rakesh, Eeshwar, Surendra and Mahavir were also there. The appellants started assaulting them. He received injury on his left shoulder and right leg. Ramchandra received injury on his head, Geeta Bai (P.W.8) was assaulted by Devlal, Devprasad, Brijwati (appellants herein) and daughter of Brijwati. When he saw this, he sent Ramchand inside the house/shop. By that time Geeta Bai ran away from the scene of occurrence. Thereafter, he went inside his house/shop and shut down the shutters of the house". He further deposed that "The appellants set his C.D.shop on fire. Mahavir had received burn injuries, due to which, he died." In the cross exaraination, he admitted vide para 5 that it is true to say that after the 'marpit' he took his father in law Ramchand inside the house and closed the doors of the house which was opened ^- -^, 12 Criminal Appeals No. 802/2007: 822/2007: 823/2007; 824/2007; 825/2007: 826/2007; 827/2007 & 828/2007 only after the police arrived at the scene of occurrence. He further admitted that when the incident of fire took place at that time he was also inside his house and he categorically admitted that he could not see that who set the shop on fire. He was also confronted with his police case diary statements (Ex.D-1) on the point of acts committed by the appellants at the time of assault but the fact remains that after the assault given by the assailants, Ramchand (P.W.5) and Budhiyar Jain (P.W.4) both went inside their house which is different than their shop and they shut down the shutters of the house and he was unable to see as to who put his shop on fire and also that the shutter was opened when after the entire incidence, the police party reached there. (11) Ramesh Chand (P.W.5) has turned hostile. He has not supported the version given by Budhiyar Jain (P.W.4) who deposed that Ramesh was also present there and he had witnessed the occurrence. (12) Ramchandra (P.W.6) is the father in law of Budhiyar Jain (P.W.4). He deposed that on 2nd of December, 2005 at about 8 p.m., he was present in the shop of his daughter Geeta Bai. Rakesh, Budhiyar and 2-3 persons of the village were also there. The appellants attacked on them. They were having knife, Katari, containers of Kerosene oil and Petrol in their hands. After assaulting them, the appellants set on fire the C.D. shop of the complainant. In para-2 he deposed that he knew deceased Mahavir. He was thrown alive in the burning fire. He very 13 Criminal AppealsNo. 802/2007; 822/2007: 823/2007: 824/2007; 825/2007; 826/2007: 827/2007 & 828/2007 specifically deposed that when Mahavir was trying to escape he was caught by Dev Prasad and thereafter all the appellants threw him in the burning fire, due to which, he died. In the cross examination, in para 7, he was confronted with his police case diary statements(Ex.D-3). He deposed that he had stated to the Police that the appellants were carrying petrol and kerosene oil with them. If it is not mentioned in the case diary statements, he cannot tell the reason. He also deposed that he stated to the police that when Mahavir came out of the shop, he was caught by the appellants and thereafter he was thrown in the burning fire by them. If this is not mentioned in the case diary statement, he cannot tell the reasons for this also. He also stated that he had told to the police that Geeta Bai was dragged by the appellants and if the same is also not there, he cannot give the reason. In para 8 of the cross examination, he very categorically admitted that when the incident of flre took place, at that time, he was taken inside the house by his son-in-law Budhiyar Jain and he came out when the police party reached there, therefore, it is true to say that he was inside the shop (house or other shop) at the time of incident of fire. In appreciation, we find that the facts in relation to throwing the deceased in burning fire of the C.D. shop was an oraission in the diary statements of this witness and he categorically admitted that after the incident of marpit, he was taken inside a different shop/house and the shutter of the shop was shut down and he came out of the shop when the police party reached there. This shows that he had not seen as to who put the ^. ^. 14 Criminal AppealsNo. 802/2007; 822/2007: 823/2007; 824/2007; 825/2007; 826/2007; 827/2007 & 828/2007 shop to fire and how the deceased died and he is making false allegations against the appellants regarding putting the shop on fire as also throwing the deceased alive in burning fire. We may also note that it was not the case of the prosecution at all that the appellants after putting the C.D. shop on fire, threw Mahavir alive in side the shop in burning fire. On the contrary, it comes that when after the incident the police party reached to the village and started inspecting the spot, a dead body was seen inside the CD shop which was later on identified to be the body of Mahavir. If the theory of throwing Mahavir alive in burning fire of the shop, which was an exaggeration in the evidence of P.W.6 Ram Chandra Jain, is kept out of consideration it would be clear that no body could notice as to how the deceased got fire and how he remained in side the shop when every body has gone out after the attack made by the appellants. (13) Rakesh Nayak (P.W.7) is also an eye witness. He is son of Geeta Bai through her first husbarid. He deposed that <(At about 8 p.m., his mother, father (Budhiyar Jain) and maternal grand father (Ramchandra) were present in his C.D. shop. The appellants came there and assaulted his maternal grand father, mother and father. They also assaulted him. Mahavir was caught by the appellants. The appellants were armed with knife, sword etc. and they had come to assault them. Appellant Brijwati and her daughter had caught her mother and they had assaulted here. He deposed in the examination-in-chief itself that he did not see as to who put the C.D. shop on fire. On the said date, two other ^^. 15 Criminal AwealsNo. 802/2007; 822/2007: 823/2007: 824/2007; 825/2007: 826/2007; 827/2007 & 828/2007 shops one belongings to Mr. Sen and other belonging to Mr. Niranjan Tailor were also set on fire. On the next day, he could come to know that Mahavir has died ofburn injuries?\ In the cross examination, he admitted that he was not present at the scene of occurrence when the incident of fire took place. He categorically admitted that he could not see as to who set the fire on shop, but he strongly deposed that appellant Brijlal had assaulted him with danda on his left hand. (14) The other eye-witness is Geeta Bai (P.W.8), wife ofBudhiyar. She deposed that "She was present at the time of incident, she was attacked by the appellants. Bablu was