..? • ^ '* S'i^ "Ca'isa HIGH COURT OF CHHATTISGARH AT BILASPUR DWISION BENCH CORAM: (INJAIL) RESPONDENT HON'BLE MR. T.P. SHARMA SE HQN^BLEMR^ R.L, JHANWAR. JJ. CRIMINAL APPEAL No. 604 OF 1993 APPELLANTS Baisakhu and others. VERSUS The Sfate ofMadhya Pradesh. |>:-<.uiin(E- •Irti'-'"' JUDGEMENT FOR CONSIDERATION Sd/- T.P. Sharma Judge Hon'ble Mr. R.L. JHANWAR J. .^- Sd/- R.L. Jhanwar Judge Post for Judgment on: 26 /04/2010 Sd/- T.P.Shanna Judge t"% 't ";: " / ..^' _A_P^_ @ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLEMR. T.P. SHARMA & HON'BLE MR. R.L. JHANWAR, JJ. CRIMINALAPPEALNo. 604 OF 1993 APPELLANTS (INJAIL) llttl 1--U ;. •R -RESPONDENT 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Versus Janak son of Jhangul Satnami, Aged 48 years. * (Released on special reprieve granted.) Baisakhu son of Charan Satnami, aged 50 years. Jhangul son of Tularam Safanami, aged 75 years. (DBAD) Chandrakumar son of Janak Satnami, aged 25 years. (Released on special reprieve granted.) Karra @ Juthel son of Pancham Satnarai, aged 30 years. (Released on special reprieve granted.) Gondu son of Dayaldas Satnami, aged 20 years. (Released on special reprieve granted.) Bihari son of Baisakhu Satnami, aged 21 years. Mukundi son of Jhangul Satnami, aged 32 years. : (Released on special reprieve granted.) Chandra son of Bachan Satnami, aged 35 years. Amrika Bai W/o Chandra Satnami, aged 30 years. '-All resident of Village Kapa Fandwani, Police Station Mungeli, District Bilaspur, M.P. THE STATE PRADESH. OF MADHYA ^^^ig^l^^ i.r^as^^.^l^Ksil^s^i^S^S^ •gSRi^^fl^^f' :<5;, nff- CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CRIMINAL PROCEDURE CODE: Present:- Mr. Abhay Tiwari,'counsel for appellants No. 2, 7, 9 SE 10. Mr. Praveen Das, Deputy Govt. Advocate for the State/respondent. JUDGEMENT (Passedon 26/04/2010) The Jollowing iudgment of the Court was passed by T.P.Sharma, J:- 1. Challenge in this appeal is to the judginent of conviction and order of sentence dated 11/6/93 passed by 5th Additional Sessions Judge, Bilaspur in Sessions trial No. 62/90 whereby and where under after holding the appellants guilty for the offence of forniation of unlawful assembly armed with deadly weapon having comraon object of culpable homicide amounting to murder of Kapil and in furtherance of the common object of fhe assembly commission of murder of Kapil convicted the appellants under Sections 302/149, 147 and 148 ofthe Indian Penal Code and sentenced imprisonment for life, rigorous ifflprispnment for 1 year and rigorous imprisonraeht for 2 r years. »l Conviction is impugned on the ground that without any credible and clinching evidence Court below has convicted and sentenced the appellants as aforementioned and .;thereby cornniitted an illegality. y-isifccu-sfjaBeBi»3^^3^J^^ ^J ^^ a: 11 ^ ^. r^E 3. During course of appeal the appellant No. 3 died and appeal is abated relating to appellant No. 3. 4. Appellants No. 1, 4', 5, 6 & 8 have been released on special reprieve granted to them. 5. Appeal relating to appellants No. 2, 7, 9 8s 10 namely Baisakhu, Bihari, Chandra 85 Amrika Bai are only remain for consideration. 6. ProseGufidn case in brief that complainant and accused parties were in iniraical terms having cruninal antecedent. On 12/8/89 at about 8 A.M. Kapil (since deceased) went fo the Gothan with his cattle while he was coming back and passing in front of the house of the appellants, appellants quarreled with the Kapil. Accused Chandra and Amrika Bai caught hold Kapil. Appellant Karra, Gondu SE Janak were holding battle-axe, Appellant Chandra Kumar was h&ving axe, other accused were having stick and pointed Spear [Barchlv). They assaulted Kapil. Chandra Kuraar fu-stly assaulted Kapil over his ^-chest and other accused persons also assaulted him by battle-axe afid pointed Spear [Barchhi) and caused fatal / . injury. PW7 Dharmu, father of the deceased Kapil went to -.<§- the Police Station .and lodged First Information Report vide Ex. P-37. Marg was recorded vide Ex. P-39. Investigating Officer left for scene of occurrence. After ,.•;.'::;surnmoningthe witnesses vide Ex. P-38, inquest over the a '7) ^ 'm dead body of deceased Kapil was prepared vide Ex. P-1. Dead body of the deceased was sent for autopsy to Assistant Surgeon, MungeU vide Ex. P-31-A. PW3 Dr. S.N. Chandel conducted autopsy vide Ex. P-31 and found following injuries:- (i) Incised wound over parietal region of7 c.ra. x 2 c.ia., x bone deep comprising cu't fracture ofbone. (ii) Contusion over right temporal region of 6 c.m. x 6 c.n'i. comprising fracture ofZeugm.atic Arch. (iii) Contusion over right m.axillaiy region of 10 c.m. x 8 c.m. comprising fracture of maxilla palatal bone and right incisor and canine teeth. (iv) Incised would on niaxillary of 5.5 c.m. x 2 c.m. x 3 c.m. comprising the cut fracture ofbone. (v) Inside would over left ear and mastoid region cutting the ear of 12 c.m. x 3 c.m. x bone deep were completely cut. Brain matter was visible. Punctured wound over left mandible region of 3 c.m. x 2 c.m. x 4 c.ra. (vi) Lacerated wound over left side of the chin of 5 c.m. • x 3 c.m. X 3 c.m. x bone deep comprising fracture of mandible bone into 3 pieces. (vii) One incised wound over neck of 12 c.m. x 2 c.m. x 2 c.m. ^t. liii 'x. (viii) One long incised wound over front part of the neck trachea esophagus, cervical vertebra. Arteries were found cut. . (ix) Incised would on chest of 18 c.m. x-5 c.m. x 2 c.m. (x) Incised would over left hand of 15 c.m. x 5 c.m. x bone deep comprising cut fracture ofthe bone: (xi) Contusion over the chest of 8 c.m. x 3 c.m. Left hand was stained with m.ud. Spinal cord below the 4 cervical vertebra was found cut. Mode of death was shock. Death was homicidal in nature. / 7. During the course of investigation blood stained and plain soil were seized from the spot vide Ex. P-27. One Datari (an object) and one club was seized from the spot vide Ex. P-28. Accused Chandra was taken into custody, he made discloser statement of battle-axe and stick vide Ex. P-2 same were seized vide Ex. P-3. Karra was taken into custody he made discloser statement of battle-axe vide Ex. P-4 same along with blood stained Lungi were seized from accused Karra vide Ex. P-15. Accused Mukundi made discloser statement of battle-axe vide Ex. P-5, same r was seized from Mukundi vide Ex. P-16 along with blood ^l stained Lungi. Accused Kunwar made discloser statement of Barchhi vide Ex. P-6 sam.e was seized from Kunwar vide Ex. P-17. Accused Janak made discloser stateraent of battle-axe vide Ex. P-7 same was seized from the Janak ^ 11n! r- vide Ex. P-13A. Accused Gondu made discloser statement of battle-axe vide Ex. P-8 same was seized along with GamcKha ftom Gqndu vide Ex. P-20. Accused Jhangul made discloser statement of stick vide Ex-. P-9 same was seized from Jhangul vide Ex. P-22. Accused Paras made discloser statement of stick vide Ex. P-10 same was seized from Paras vide Ex. P-23. Accused Baisakhu made discloser stateraent of axe vide Ex. P-11 same was seized from Baisakhu yide Ex. P-21. Accused Bihari made discloser statement of stick vide Ex. P_12 same was seized from Bihari vide Ex. P-24. Accused Hari made discloser statement of stick vide Ex. P-13 same was seized from. Hari vide Ex. P-25. One axe has been seized from Chandra Kumar vide Ex. P-26. One Tendu stick was seized from Bhagwat Bai vide Ex. P-29. Articles were seized and same were examined by the doctor vide Ex. P- 33. Patwari prepared spot map vide Ex. P-36. Sealed cloths of the deceased Kapil were seized vide Ex. P-41. Search of the house of Shiv Prasad was made vide Ex. P- 42. Seized articles were sent for chernical examinatiori and ^iresence of blood on the cloths of Bihari, battle-axe seized from Chandra Shirt and Lungi of Chandra were confirmed vide Ex. P-43. Statements of the witnesses were recorded under Section 161'offhe Code.ofCrim.inal Procedure, 1973 (in short the ^aat^s.i-te Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Mungeli who in turn comraitted the case to the Court of Sessions, Bilaspur, learned Additional" Sessions Judge, Bilaspur received the case on transfer for trial. 9. In order to prove the guilt of the appellahts/accused prosecution examined as many as 12 witnesses. Accused persons were examined under Section 313 of the Code where they denied the circum.stances appearing against them, innocency and false implication is claimed. Defence. has cross-examined the witness DW1 Bhikham Chandra, DW2 Bhanu, DW3 Bhagwan Das and DW4 Rajbahor Tiwari, Constable. As per evidence of DW1 Bhikham., accused Shiv Prasad was not present on the spot and who was at village Patargawa. As per evidence of DW3 Bhagawan Das, Devki Bai died on 12/8/89. Accused Shiv Prasad were present in the Marghat. DW4 Rajbahor Tiwari has deposed fhat Rojnamacha No. 515 reveals the names of Dular Satnarai, Ambikabai, Karra Satnanii, Janak,' Gendu, Bihari, Hari, Jhangul and Mukundi in ^ / crime No. 197/89. •'••if- After affording an opportunity of hearing to the parties leamed 5th Additional Sessions Judge, Bilaspur convicted and sentenced the appellants as aforementioned. '•?i '.H GjiB'; ^;.;^4iSsiiS...;tfe;w'f'isS^iii ^^®^^®3 ^ •7'- 11. Mr. Abhay Tiwari, counsel for the appellants No. 2, 7, 9 SE 10 and Mr. Praveen Das, Dy. G.A. for the State/respondent are heard. Judgment impugned and record of the Coiirts below perused. 12. Learned counsel for the appellants vehemently argued fhat conviction is based on the evidence of eye witness PW7 Dharmu, father of the deceased, PW8 Bhagwat Bai, sister of the deeeased, PW9 Babulal brother-in-law of deceased, PW10 Hari Prasad and PW11 Rajnu who had claimed themselves as eye witnesses but their evidence are unnatural. They have claim.ed that they have seen the incident which took place in front of the house of the appellants but they have not tried to rescue or save Kapil; these shows that they have not seen the incident and they have implicated the appellants falsely. All appellants are the members of. the same family, on account of previous enmity fhey have falsely implicated them. Even they have not deposed that who were present and who were not present. The Datari ('weapon} has been seized from the -spot vide Ex. P-28 but they have not stated that whd was holding Datari and who has thrown the Datari ^l near the place of incident. Norn'ially the relative of lost person to spare real culprit and to implicate falsely innocence but in case of enmity to secure the conviction relative are persons who implicates innocence. ^^E^^^^K •.^^£yi>'fr: ^ 14. 15. 13. Learned counsel for the appellant placed reliance in the matter ofi?oshan and others v. State of Maharashtra1 in which Apex Court has held that appellants being close relations of the ,ether accused persons Iherefore it was possible that they were falsely implicated in case of admitted enmity between the parties. On the other harid, learned counsel for the respondent/State opposed the appeal and submits that in the present case conviction is based on evidence of eyewitnesses who had seen the incident. This is a case of brutal murder, choppingof the neck, fetal injury on the head and chest; all the appellants were artned with deadly weapon. In these circUEastances, it was not possible for the witnesses to intervene the incident and to save the deceased Kapil without any risk to their life therefore; eyewitnesses were not in position to save the life of Kapil and who was brutally murdered by the appellants. The evidence adduced Qn behalf of the prosecution is SufGcienf for drawing an inference that all the appellants have/formed unlawful assembly. They were armed with / . ^ deadly weapon having intention to eommit culpable -•«- • . homicide amounting to murder of deceased Kapil and in furtherance of common object of the assembly; members df the assembly have committed the murder of Kapil. i. ;'I_Ai:R-~19r7'SC:672 = 1977 CRI. L. J. 259 :1 J" StSsgsaas.iSSrsSSSisssSS^^sSSs^s^ 10 . Learned Court below has rightly cpnvicted and sentenced the appellants as aforementioned. 16. In order to appreciate the argument advanced on behalf of fhe parties, we haye examined the ruaterial available on record. In the present case, homicidal death as a result of ante-mortem fatal injury of deceased Kapil has not been substantially disputed on behalf of the appellants on the other hand also established by the evidence of PW3 Dr. S.N. Chandel and autopsy report vide Ex. P-30, which reveal that fatal injury were found over the body of the deceased and death was homicidal in nature. 17. As regard the eomplicity of appellants in crime in question, conviction is substantially based on the evidence of PW7 Dharmu; father of the deceased, PW8 Bhagwat Bai; sister of the deceased, PW9 Babulal; brother-in-law of the .deceased, PW10 Hari PrasadfiE PW11 Rajnu who has deposed in their evidence that they have seen the incident and accused persons have committed the aforesaid offence. 18. PW7 Dharmu, fatherof the deceased Kapil has deposed in his-evidence that while deceased Kapil was coming baek to his house from Gothan where the cattle collected and passing in front of the house of appellants; accused Amrika Bai was abusing him then Kapil told that why she 'is'abusing then Amrika bai told thatshe is touching his ,.M 11 i.-J il! v !-;i: f IS11, :ini 19. r ' '.X.'? ...^' mIT feet and caught hold his waist. Other accused Chandra came from inside his house, he was holding stick and assaulted by stick over the head of Kapil. Accused Karra caine with battle-axe and he assaulted by battle-axe on the neck of Kapil. Mukundi also assaulted by battle-axe. Gondu assaulted him. by axe. Again, Chandra went inside his house, came with axe, and assaulted Kapil by axe over his chest and other part of the body. Shiv assaulted Kapil by battle-axe on fhe backside of his head. Kunwar came with pointed spear, Hari, Jhangur and other persons came with stick, they assaulted by pointed spear and stick. He tried to intervene then they called him for killing. Paras also assaulted Kapil then all appellants Qed from fhe spot. He went near the Kapil then he went to the Police Station and lodged the report. PW8 Bhagwat Bai -has substantially corroborated the evidence of PW7 Dharmu and has deposed that Amrika Bai, Chandra, Karra, Mukundi, Paras, Gondu, Janak, Bihari & Baisakhu assaulted Kapil by axe and stick. PW9 Ba6ulal has also corroborated the evidence of PW7 ^ / Dharmu and has deposed that Amrika Bai, Chandra, • Karra, Gondu', Janak, Chandrakumar, Jhangul, Paras & Baisakhu assaulted Kapil by battle-axe and stick but accused Hari, Shiv and Kunwar were not present there. a-sgii) .-.^ '1 7- 12 He has also deposed that after assaulting Kapil accused persons Qed from the spot then villagers gathered. 20. PW10 HariPrasad.has also corroborated the evidence of PW7 Dhannu anc^ has deposed that Chandra, Amrika Bai, Karra, Janak, Mukundi Jhangul, Chandra Kumar, Hari, Kunwar, Bihari, Baisakhu, Shiv &, Gondu 14 persons assaulted Kapil by stick and battle-axe. PW11 Rajnu also corroborated the evidence of PW7 Dharm.u has deposed that Chandra, Janak, Gondu, Karra, Kunwar, Shiv, Hari, Jhangul, Baisakhu, Amrika Bai, Chandra, Bihari SE Paras assaulted Kapil by battle-axe and stick. All the witnesses are relative of the Kapil, both the parties were in inimical tercns. 21. Defence has cross-examined these witnesses at length, there is some contradiction and omission in their evidence and their police statement recorded under Section 161 ofthe Code vide Exs. D-2, D-3, D-4, D-5 SE-D- 6. They are relative witness but their evidence cannot be discarded only dn the ground of they are relatives. The Court is required to scrutinize their evidence with great care and caution. -snsfldMft ti i"» 13 '.-^ III EIHnl 22. While dealing with the same question, the Apex Court in the matter ofAshok Kuniar Chaudhary fic Ors. v. State of Bihar2 has held thus:- "..........it will be erroneous to lay down as a rule of universal application that non- examination of a-public witness by itself ;ives rise to.an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of credit- worthiness of the evidence of relatives of the victiru is concerned, it is well settled though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a wita^ess. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as an "interested" witness. It , is trite that the, term "interested" postulates that the person concerned has soine direct or indirect interest in seeing that the accused is • somehow or the other convicted either because 'he had some animus with the accused or for some other oblique motive". Hi'l ^ ^.: 2008 AIR SCW 3739 •aa "fc'^ 14 EJ:'B: 1 ai' J 13j-..,.<a^ .,1. ffl 23. As held by the Apex Court in the matter of Dalip Singh and Others v^ The State of Puniab3 & Ashok Kumar Chaudhary fiBOrs.'v. State of Bihar (Supral, relative witnesses are the 'persons reluctant to spare the real culprit and falsely implicate an innocent person, but in case of enmity close relatives have a tendency to exaggerate or add facts which may not have been stated to them at all to iruplicate and to ensure conviction of the accused persons. While dealing with the aforesaid question, the Apex Court in the matter of Sharad Birdhichand Sarda v. State of Maharcishtra4 has held that close relatives of the victim have tendency to exaggerate or add facts,. Court should examine their evidence wifh. great care and caution. Para 48 of the judgment of the Apex Court in the above cited case reads thus, "48. Before discussing the evidence of the witnesses we might mention a few preliminary i-emarks against the background of which the oral statements are to be considered. All persons to whom -. / the oral statements are said to have been made by Ms.nju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person AIR 1953 SC.364 ;..4-SIR 1984 SC-1622 W S 15 .-^ •n 24. in the position of the witness would naturally have a tendency to exaggerate or add facts which inay not have been stated to them at all; Not that this is done consciausly but even unconscfously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to exainine such evidence with yery great care and caution. Even if the witnesses. were speaking a part of the ta-uth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may npt or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it". As per law propounded by the Apex Court in the aforesaid matters, the Court is required to analyze the evidenee of relative witness, injured witness and interested witness with great care and caution. The co^nviction of these appellants is substantially based o'?i the ground that all appellants have formed unlawful assembly. They were armed with deadly weapons and having common object to commit the murder of Kapil and all are member of assembly have committed murder of Kapil therefore, all the appellants are liable for U'lit'HI' •l^;.- ,ewWig 1.^^^^^ commission of the murder of Kapil with the aid of Section 149 ofthe Indian Penal Code. 25. Constitution of unlawful asserably is a question of fact and the prosecutfen is required to proof-constitution of unlawful assembly and its common object. Unlawful assembly may be constituted at any moment and person mayjoin unlawful assembly at any time, even at the time of causing injury, but the prosecution is required to proof the aforesaid fact by adducing cogent and reliable evidence that the persons have formed the unlawful assembly or joined in unlawful assenibly having its com.mon object and was having its common object for coinmission of the aforesaid offence. Mere presence as a stranger, by passer or gathered on the spot to see quarrel or the incident would not make the person Uable for formation of unlaDvful assembly or liable for the comrnission of offence. 26. While dealing with the question of formation of unlawful assembly, the Apex Gourt in the matter of Chandra SiSiari Gautam. & Ors. v. State of BiharS has held that unlawful assemlaly may be constituted at any moment and even assembled of accused, but the existence of fhe common object of the unlawful assembly has to be ^•:JT 2002 (4) 62 1?/" u 17 .J-- ascertained in the facts and circumstances of each case. Para 6 of the saidjudgraent reads as under: "6. It ha5 been argued alternatively that even if the occurrence is held to have taken place in the manner alleged by the prosecution and the accused persons were seen on spot, they cannot be convicted and sentenced as the prosecution allegedly failed to establish the accused '' persons. Section 149 is an exception to the criminal law whereunder a person can be convicted and sentenced for his vicarious liability only on proof of his being a meiriber of the unlawful assembly, sharing the common object, notwithstanding as tb whefher he had actually participated in the commission of the crirae or not. Common object do.es not require prior concert and a cominon meeting of minds before the attack. An unlawful object can develop after the accused assembled. The existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. It is true that . the mere presence of the accused is not sufficient. to hold them. guilty for the ^ / sharing of common object as the prosecution has to further established that they were not mere by-standers but in fact were sharing the coinmon object. When a concerted attack is made by a large number of persons, it is often difficult to deterniine the actual part ^-3:».: ^lll! IK! 11;1 •li;ii^::.'>i 18 .^. ii.;l ^lt;J! w 17 played by each of the accused but on that account, for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offenee-which was known to be likely to be coramitted in prosecution of the common object, p.ersons provide to be inembers cannot escape the consequences arising froin the doing of that act which amounts to an offence. There may not be a common object in a sudden fight but in a planned attack on the victim, the presence of the cominon object amongst the persons forming the unlawful assembly can be inferred." 27. While dealing with same question, the Apex Court in the matter of Pandura.ng Chandrakant Mhatre v. State of Maharashtra6 has held that conduct of each meraber of unlawful assembly before and at the time of attack is relevant consideration. Object of unlawful assembly is a question of fact which has to be determined keeping in view nature of assembly, arms carried by members, and behavior of members at or near scene of incident. Mere presence on the spot will not make the person liable for / commission of the offence with aid of Section 149 of the ^ Indian Penal Code. ^:(2009) 10 SCC 773. f!'iia?, l&'-^iP.S. ti.. '^ ^ BJ »;.! 19 28. While dealing with same question, the Apex Court in the matter of Masalti v. State of