%o4l^ 691 i" HIGH COURT OF CHHATTISGAHH»BILASPUR Criminal Appeal Np.719 pf 2003 Mohan Rao 8s four others - Versus - State of Chhattisgarh JUDGMENT FOR CONSIDERATION Sd/- L.C.BHADOO Judge HON'BLE MR. JUSTICE T.P. SHARMA Sd/- T.P. Sharma Judge .'+'^ POST FOR PRONOUNCEMENT OF JUDGMENT ON e^APRIL, 2008 Sd/- \!'M SiiK SS S^ ' HIGH COURT OF CHHATTISCrARH. BILASPUR Criminal Appeal No.719 of 2003 APPELLANTS: (InJail) Versus RESPONDENT: Mohan Rao, S/o G.K. Vandeshwar, Telgu, aged about 25 years, R/o Pada Padar, Police Station Chatarpur, Distt. Ganjam, (Orissa) Presently at Adarsh Nagar, Ring Road, Police Station Tikrapara, Raipur (C.G.) Shankar Rao, S'/o G. Vandeshwar Rao, Telgu, aged about 22 years, R/o Padapadar, Police Station Chatarpur, Distt. Ganjam (Orissa), Present at Adarshnagar, Ring Road, Police Station Tikrapara, Raipur (C.G.) Krishna Rao, S/o G. Vandeshwar Rao, Telgu, aged about 33 years, R/o Padapadar, Police Station Chatarpur, Distt. Ganjam (Orissa), presently at Adarshnagar, Ring Road, Police Station Tikrapara, Raipur (C.G.) Shiva Rao, S/o D. Krishna Rao, Telgu, aged about 20 years, R/o Mallara, Police Station Kuma, Distt. Ganjam (Orissa),;presently at Adarshnagar, Ring Road, Police Station Tikrapara, Raipur (C.G.) Chitti Rao, S/o Bal Raju Rao, Telgu, aged about 21 years, R/o Padapadar, Police Station Chatarpur, Distt. G^anjam (Orissa), presently at Adarshnagar, Ring Road, Police Station Tikrapara, Raipur (C.G.) State of Chhattisgarh, through Police Station Tikrapara, Raipur, Distt. Raipur (C.G.) {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure} Present: Mr. Malay Kumar Bhaduri, counsel for the appellants. .-Mr. Sudhir.S.ajpai, Deputy Govt. Advocate for the State/respondent. Division Bejach: Hon'ble Mr. L.C. Bhadoo and Hon'ble Mr. T.P. Sharma, JJ. w ji"t JUDGMENT (Delivered on »&'*''April.2008) The following iudgment of the Court was delivered bv L.C. Bhadoo, J.: - By this appeal under Section 374 (2) of the Cr.P.C., the appellants have questioned legality and correctness of the judgment of conviction and order of sentence dated 7th June, 2003 passed by the Special Judge, Atrocities, Raipur in Special Sessions Trial No.45/2002 whereby SE whereunder learned Special Judge after holding the accused/appellants guilty for commission of offence under Sections 147, 148 & 302 read with Section 149 of the I.P.C., for committing the murder of Nehru Jagat, sentenced each of the accused to undergo R.I. for one year, R.I. for two years & imprisonraent for life and pay a fine of Rs.500/-, in default of payment of fine to further undergo R.I. for two months, respectively. Case of the prosecution, in brief, is that on 15-11-2001 in between 7.30 p.m. 85 8 p.m. when Nehru Jagat (since deceased) was going on foot to his house at Amlidih from his aunt's house at Adarsh Nagar, one Ramesh Kumar (PW-4) informed Rajendra Jagat (PW-1), cousin of the deceased, that Krishna, Shankar, Mohan 8s one another boy are attacking Nehru Jagat with iron rod, iron plate 8s club. On hearing this, Rajendra Jagat along with his father & Vinod Tandi rushed towards the place of occurrence and saw that the accused persons were attacking Nehru on his head 8s other parts of the body; Mohan was attacking with iron rod, Shankar with iron plate, Rrishna with club and one another body with iron rod. When Rajendra Jagat and his father tried to intervene, Mohan 85 Shankar attacked his father as a result of which his father sustained injuries on waist SE stomach. Vinod Tandi, Ramesh 65 Sevti Bai witnessed the incident. Nehru sustained injuries on head. All the four accused persons fled the scene of occurrence. Rajendra Jagat took Nehru to the hospital where the doctor declared hun brought dead. All the four accused persons had attacked Nehru on accoiint ofanimosity. Mother of the deceased namely, Shobha Mani Jagat gave merg intimation Ex.P-26. The Station House Officer, Police Station Tikrapara, Raipur registered first information report Ex.P-1, based on the information given by Rajendra Jagat, he took up the investigation, went to the hospital where after giving notfce Ex.P-2A prepared inquest Ex.P-2 on the body of the deceased in M.M.I. Hospital and prepared the site plan Ex.P-3 of the place of occiirrence. During the investigadon, on the basis of memorandums giwen iil' •SSiaSS&SaskiSMQSl£MiiSMsaSSiSttSt3ttK ^."^i:l< hs^ a.EaiitfiSi IBt.l by the accused persons, weapons of offence were seized at their instance and clothes of the accused persohs 8s the deceased were also seized. Site plan Ex.P-21 of the place of occurrenGe was prepared by the Halka Patwari. Body of Nehru was sent for post-mortem examination to Mekahara under Ex.P-25 where Dr. Ulhas Gonnade (PW-11) conducted post-mortem and opmed that cause of death was due to shock & haemorrhage as a result of the injuries sustained by the deceased. He prepared postmortein report Ex.P-18. Seized ardeles were sent for chemical examination to the Forensic Science Laboratory, Raipur under Ex.P-27 and Ex.P-32, the F.S.L. report, was received from there. Injured Rajendra was sent for medical examination, Dr. A.A. Saify (PW-15) examined the injuries and prepared report Ex.P-28. Dr. A.A. Saify also examined the injuries of Jai Jagat, father of Rajendra, and prepared report Ex.P-30. 3. After completion of investigation, charge sheet was filed in the Court of Judicial Magistrate, First Class, Raipur, against five accused persons who in turn, conimitted the case to the Sessions Judge, Raipur, froin where leamed Special Judge received the case on transfer for trial. 4. The prosecution in order to establish charges against the accused persons examined 16 witnesses. Statements of the accused persons wererecorded under Section 313 of the Cr.P.C. in which fhey denied the material appearing against them in the prosecution evidence and stated that they are innocent, they have been falsely implicated in the crime. 5. Leamed Special Judge after hearing counsel for respective parties convicted and sentenced the accused persons as aforementioned. 6. We have heard Mr. Malay Kumar Bhaduri, learned counsel on behalf of the appellants and Mr. Sudhir Bajpai, leamed Deputy Govt. Advocate on behalf of the State/respondent. 7. Mr. Malay Kuinar Bhaduri has not disputed the homicidal death of Nehru. Moreover, Dr. Ulhas Gonnade (PW-11) has stated in his evidence that on 16-11-2001, he conducted post-mortem on the body of Nehru. There were eleven injuries on various parts of the body. He has stated that injuries No.6, 7, 8 8s 9 were caused by hard, blunt 85 sharp edged weapon and injuriesNo.7 & 8 were sufficient in the ordinary course ofnature to cause deafh. Death was homicidal in nature. Injury No.7 was behind the right ear obliquely placed in the size of 12 cms. X 3 cms. deep up to bone and Si^ .4i^' bone beneath the injury was fractured. Veins were coming out and brain tissues were also coming out of the injury. He has further stated that there was an injury on right parietal region in the size of 3 cms. X 1 cm. deep up to bone. Above medical evidence is corroborated by the ocular evidence of Rajendra Jagat (PW-1), Ramesh Kumar (PW-4), Sevti Bai (PW- 5) 8s Jaijagat (PW-9), who have stated in their evidence that they saw the accused persons attacking Nehru with iron rod, iron plate 85 club. In view of the above medical and ocular evidence, it is established that the death of the deceased was homicidal in nature. As far as complicity of the accused persons in the crime in question is concemed, there are four main eyewitnesses namely, Rajendra Jagat (PW- 1), Ramesh Kumar (PW-4), Sevd Bai (PW-5) - sister of Ramesh Kumar 85 Jaijagat (PW-9). 9. Leamed counsel for the appellants argued that as far as com'] accused Shiva Rao 85 Chitti Rao is concerned, the prosecution has not been able to establish their involvement in the crime in question, becaiase in the first instance their names do not find place in the first informat;ion report. On the contrary, Rajendra Jagat (PW-1), who has claimed himself to be the eyewitness and who lodged the report, mentioned in the F.IiR. that only four persons attacked the deceased and out of those fdur persons, the names ofonly three persons i.e. Krishna, Shankar 85 Moh^n has been mentioned and it has further been mentioned that he lcan identify one another boy, but identification paia.de was not arranged by the investigating agency in order to identify the 4th accused person by the prosecution witnesses. 10. On the other hand, Mr. Sudhir Bajpai supported the judgment of the fnal Court. 11. Having heard leamed counsel for the parties, we have perused the record of the trial Court and find sufficient force in the argument of Mr. Bhaduri. The first information report (Ex.P-1) was lodged promptly by Rajendra Jagat (PW-1), cousin of the deceased, from whose house Nehru was returning to his house at Amlidih and to whom one Ramesh informed about fhe incident. He rushed towards the place of occurrence imioediately. He has mentioned that when he reached|to the spot, he saw that Krishna, Shankar, Mohan 65 one another boy were attacking Nehru with iron rod and iron plate. He has further stated that one another boy was also party to the attack to whom he can identify after seeing him. Names of Shiva Ss Chitti were not mentioned by Rajendra. Even in para 2 of his evidence as PW-1, he has stated that Shankar, Mohan 85 Krishna Telugu were attacking Nehru, he along with his father & Vinod tried to intervene. He has further stated that Shankar, Shiva, Krishna, Mohan 85 Chitti all the five persons were abusing and they were saying that they will finish Nehru, they attacked with iron rod, iron plate SE club. He has not specifically mentioned that Chitti 8& Shiva were holding which weapon and they were attacking with which weapon, nor any identification parade was conducted by the investigating agency in order to ascertain the correctness of the statement made by this witness, in order to identify Chitd 85 Shiva as to whether they were party in the attack. 12. Ramesh Kumar (PW-4) has stated in his evidence that the accused persons were attacking Nehru in front of the house of accused Shankar and he has not specifically mentioned the naines of other accused persons. Sevti Bai (PW-5) has tumed hostile and she has not supported the prosecution case, whereas Jaijagat (PW-9) in para 3 of his evidence has stated that Rauiesh infomied hiin that Shankar, Mohan, Shiva, Chitti 8s Krishna are attacking Nehru. When they reached on the spot, he saw that the accused persons were attacking Nehru. • He has also not specifically said that accused Shiva & Chitti were present, only omnibus statement regarding the attack made by the accused persons has been made. 13. For the foregoing reasons, in the first instance, Rajendra Jagat (PW-1) has mentioned in the F.I.R. that only four persons attacked the deceased, whereas five accused persons have been charge sheeted and even regarduig the 4th person, no identification was conducted by the investigating agency. Apart from that, even though Rajendra Jagat has specifically stated about the weapon with which accused Mohan, Sharikar & Krishna had attacked, he has not stated about the weapon used by Shiva & Chitd. Therefore, the prosecution has not been able to establish complicity of accused Shiva & Chitti in the commission of crime, as such, their conviction under Sections 147, 148 8s 302 with the aid of Section 149 of the I.P.C. cannot be sustained. 14. As far as complicity of accused Mohan, Shankar 85 Krishna is concemed, Mr, Malay Kumar Bhaduri, learned counsel for the appellants, argued that -n- h-f^ theu- conviction under Section 302 read with Section 149 of the I.P.C. is not sustainable, it has to be seen whether these accused persons were having common intention to cause the death of the deceased, therefore, they can be convicted with the aid of Section 34 of the I.P.C. or for their individual acts done by them, in case of their complicity in the crime in question is established. Mr. Bhaduri submitted that the manner in which the matter has been reported, none of the eyewitnesses had wifnessed the crime. Ramesh Kumar (PW-4) 85 Sevti Bai (PW-5), who are brother & sister, have claimed to be the eyewitnesses, but Sevti Bai (PW-5), sister of Raraesh Kumar (PW-4), has not corroborated the evidence of PW-4, therefore, their testimony cannot be believed. He further argued that there was old animosity between the pardes on account of dispute between them in respect of the residential lands at Adarsh Nagar. Leamed counsel also argued that Nehru was a man of criminal nature, therefore he was attacked by somebody else but on account of animosity, the accused persons have been implicated in the crime. 15. In order to attract the provisions of Section 34 of the I.P.C., the prosecution is required to establish participation of the accused persons with cominon intention. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Such intention can only be inferred from the cireumstances appearing from the proved facts of the case and the proved circumstances. The prosecution is required to establish whether by direct or circuinstantial evidence that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of moment; but it must necessarily be before the commission..of the crime. The true contents of Section 34 is that if two or more persons intentionally do an actjointly, the posidon m law is-just the same as ifeach ofthem has done it individually by himself. Existence of a common intention amongst the participants in a crime is the essential element for application of Section 34. 16. Based on the above principle, if we examine the evidence available on record, Rajendra Jagat (PW-1) has stated in his evidence that on 15-11- 2001 Nehru came to his house, whole day he was at his residence, at .^-!S!s,y: S ta'^ % ^•' / '• ./'?•'' about 6-6.30 p.ra. his inother Shobhamani came to his house to call Nehru, but Nehru said to his mother that he will come after some time. At about 7-7.30 p.m., Nehru left the house in order to go to his house, within 10-15minute8 one Ramesh came to his house and infornied that Shankar, Mohan, Krishna Telugu are attacking Nehru on which he along with his father SE Vinod, three of them, went towards that side and saw that Shankar, Shiva, Krishna, Mohan 65 Chitti were attacking Nehru with iron rod, iron plate 8s club and they were abusing him. When they intervened, accused Shankar attacked him wkh club, which hit on right leg and when his father tried to intervene, the accused persons attacked him also. There were injuries on the head of Nehru and blood was oozing out of the injuries. 17. Perusal of the evidence ofJaijagat (PW-9), father of Rajendra Jagat (PW-1), shows that he has corroborated the evidence of PW-1. Moreover, Raniesh Kumar (PW-4), who is an independent witness, who infonned Rajendra Jagat about the incident, has stated in his evidence that on the fateful day at about 7.30 p.m. he along with his sister Sevti Bai (PW-5) was going to purchase grocery iteins in the grocery shop of one Vijay, then he saw that in front of the house of accused Shankar, Shankar called Nehru and the accused persons started abusing Nehru and attacking him with iron rod, iron plate SE club, he went and informed Rajendra; Sevti Bai (PW-5) has turned hostile and she has not supported the case of the prosecution. Merely because Sevti Bai (PW-5) has not con-oborated the evidence of Ramesh Kumar (PW-4), the evidence of Ramesh Kumar (PW-4) cannot be rejected, on that count. Even though she has tumed hostile, but perusal of her evidence establishes the fact that there was quarrel between the parties. She has stated in her evidence that on the occasion of Deepavali, she along with his brother was going to market to purchase certain items aad they saw that Nehru was being attacked by the accused persons. She has further stated that the accused persons atfacked Nehru with iron plate 85 club. She has also stated that Ramesh went and informed Rajendra. Even though she has not specifically nanied the appellants, but about the incident she has categoricaUy stated that the incident took place. Therefore, the evidence of Ramesh Kumar (PW-4) cannot be rejected. Even Rajendra Jagat (PW-1) has stated in his evidence that Ramesh Kumar came and informed. Ramesh Kumar (PW-4) himself has - istated that he went and infonned Rajendra and Sevti Bai (PW-5) has also , stated so. iitt ll-ll.itllilill.u,,.,., k: 18. Therefore, if the evidence of fhese four witnesses namely, Rajendra Jagat (PW-1), Ramesh Kumar (PW-4), Sevti Bai (PW-5) 85 Jaijagat (PW-9) is read together, complicity ofaccused Shankar, Mohan 8s Krishna in the crime in question is established. In cross-examination of these witnesses defence has not been able to bring on record any circumstance, which discredits the evidence of these witnesses. Rajendra Jagat (PW-1) promptly lodged report Ex.P-1 in the Police Station. 19. Presence of the above three accused persons is established by the fact that Rajendra Jagat (PW-1) & Jaijagat (PW-9) sustained injuries and they were examined by Dr. A.A. Saify (PW-15) who has stated in his evidence that on 16-11-2001 he examined fhe injuries of Rajendra, there was injury on right leg caused by blunt 85 hard object, the injury was in the size of 2" x 1" and was simple, his report is'Ex.P-28. He has further stated that on the same day he also examined the injuries of Jaijagat, there was injury on waist in the size of 2 x 1 caused by blunt object, injury on right elbow in the size of 1 x %", both the injuries were simple in nature and his report is Ex.P-30. Therefore, injury reports of these two witnesses further establish their presence on the spot. In the circumstances, their evidence cannot be rejected merely on the ground that they are retatives of Nehru. If their evidence is scrutinized with care and circumspection, it establishes involvement of the accused persons in the crime in quesdon. Even though Ramesh Kiunar (PW-4) is Odiya, the community to which these witnesses (PW-1 8s PW-9) are belonging, there is no relationship between the deceased and this witness (PW-4). Moreover, his presence is established on the scene of occurrence. 20. Now, coniing to the question of comnion intention, as per the inaterial available on record and the prosecution evidence, soine dispute was going on between Telugu people and Odiya people regarding the place where the houses were constructed, as both Telugu & Odiya people had constructed their houses on the Govemment lands at Adarsh Nagar, that is why Nehru (since deceased) rented his Adarsh Nagar house to somebody else and started residing in Amlidih. On the fateful day, being Deepavali fesdval, he came to his aunt's house in Adarsh Nagar, whole day he was there and the incident took place when he was retuming in the evening, when he was passing through the street in front of the house of the accused persons. It has come in the evidence that Nehru was leading Odiya conirffunity people in order to get the Pattas of the lands in IX fam ll'-.. ,JJiS their favour on which they had constructed houses and that is why Telugu people were having grudge against hini. 21. The evidence of Rajendra Jagat (PW-1) 85 Ramesh Kumar (PW-4) categorically establishes that all the three accused persons namely, Shankar, Mohan & Krishna attacked the deceased jointly with iron rod, iron plate 85 club. These weapons have been recovered at the instance of the accused persons, their clothes were also seized and the same were sent for chemical examination to the F.S.L. As per the F.S.L. report (Ex.P- 32), shirt of accused Krishna, full pant & shirt of accused Shankar and shirt of accused Mohan were found stained with blood. As per the F.S.L. report, iron rod, wooden club & iron angle seized at the instance of accused Shankar, Mohan SE Krishna were also found stained with blood. The attack was made by the accused persons jointly, when Nehru was passing through the street in front of the house of the accused persons. All these accused persons are brothers, they made joinf attack on Nehru on account of animosity, therefore, from the evidence of these witnesses, background of the incident and the joint attack made by these accused persons it is established fhat there was common intenfion between the accused persons to finish Nehru. All the three accused persons attacked the deceased with common intention to commit his murder. Therefore, offence against these three accused persons is established under Section 302 read with Section 34 ofthe I.P.C. 22. Mr. Bhaduri, learned counsel appearing on behalf of the appellants, also argued that the statements of these three witnesses viz., Rajendra Jagat (PW-1), Ramesh Kumar (PW-4) & Jaijagat (PW-9) under Section 161 ofthe Cr.P.C. were recorded on 16-11-2001 and till then, they did not disclose about the incident to anybody, therefore, their evidence cannot be believed. 23. It is true that the statements of these witnesses under Section 161 of the Cr.P.C. were recorded on 16-11-2001, whereas the incident had happened at about 8 p.m. of 15-11-2001. It has to be seen whether, in the first instance, if at all there is any delay, whether delay in their examination was utilized for false unplicadon of the accused persons. In the lirst instance, the incident took place at about 8 p.m. and it is stated that the Police came in the night and next day fhe statements of these witnesses were; recorded by the Investigadng Officer. Therefore, looking to the circ:umstances, time gap between the incident and recording of the ^j 10 statements, it cannot be inferred that this time was utilized to implicate the accused persons in a false case. The first information report (Ex.P-1) was lodged by Rajendra Jagat (PW-1) at 9.45 p.m. whereas, the offence took place between 7.30 p.m. 8s 8 p.m., therefore, it was lodged within an hour 85 45 minutes after the incident and the Police Station is 2 kms. away from that pla.ee. Moreover, Rajendra Jagat (PW-1) in the first instance took Nehru to the hospital and from there he went to lodge the report. The report was lodged with all promptness and in that report itself names of three accused persons have been mentioned categoricaUy with the weapons they used. Therefore, even if the statements of Rajendra Jagat (PW-1), Ramesh Kumar (PW-4) 85 Jaijagat (PW-9) under Section 161 of the Cr.P.C. were recorded on the next day of incident i.e. 16-11-2001, it is not fatal, looking to fhe facts and circumstances of the case. 24. Mr. Bhaduri further argued that in fact, the complainant was aggressor on account of animosity and therefore, in a sudden quarrel the accused persons attacked the deceased, as such, offence against the accused persons does not travel beyond Section 304 Part-II of the I.P.C. He also subniitted that froai the evidence it is not established that the accused persons attacked the deceased with intention to causefhis death. While drawing the attention of the Court towards the document Ex.P-22C, leamed counsel for the appellants submitted that G. Rajeshwari, mother of the accused persons, lodged a report in Police Station Tikrapara, Raipur to the effect that on 15-11-2001 at about 7 - 7.30 p.m. Nehm Jagat carae and attacked her with club in front of her house, nobody saw the incident. Therefore, in view of this report, deceased Nehru attacked G. Rajeshwari and that was the cause of the incident. 25. On the other hand, Mr. Sudhir Bajpai, leamed Deputy Govt. Advocate supported the judgment of the trial Court. 26. Having heard learned counsel for the parties, in order to appreciate the arguments advanced