^ HIGH COURT OF CI-fHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. CriminaLApBeal 140.8730f2006 Baisakhu @ Chotiya and others - Versus - State of Chhattisgarh tl' JUDGIVIENTFdfeCQNSIDERATION HON'BLE MR. JUSTICE R.L. JHANWAR -1 Sd/- :1- T.RSharaia Judge 5<Y^ Sd/- R.L. Jbanwar th Post for pronouncement ofjudament on 5mlVIay, 2011 Sd/- T.P.Sba^ma Judge y 'y :1:—!- HIGH COURTOF CHHATTISGARH. BILASPUR DIVISION BENCH ^} CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.873 of2006 1. Baisakhu @ ChotiyaSon ofShri Gandhan, aged about 58 years; _ 2. Kamal @ Munna Son of Shri Tijauram, aged about 32 years; 3. Magmohan @ Raju Son of Shri Baisakhu, APPELLANTS: (In Jail) ih ag.^1 about 20 years; ^" ^ RESPONDENT: All-residents of Village Khairakhurd, Police Station Mungeli, District Bilaspur (C.G.). Versus State of Chhattisgarh, Through the Police Station Mungeli, Distt. Bilaspur (C.G.) {Criminal appeal under Section 374 (2) oftheCriminal Procedure Code,1973} c li:h Present: Miss Sangeeta Mishr'a, counsel for the appellants. Mr. Vinod Shrivastava, Govt. Advocate for the State/respondent. JUDGMENT (5th May, 2011) The followina iudament ofthe Courtwas passed bv T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 27-7-2006 passed by the Additional Sessions Judge, Mungeli, in Sessions Trial No,377/2005,whereby & whereunderlearned Additional Sessjons Judge after holding the appellants guilty for constitution of unlawful assembly along with other accused persons, .{ • •' ' armed with deadly-weapons having its common object to commit culpable homicideamounting to murder of Lakhanlal and in furtherance qf common object of the unlawful assembly for committing the murder of Lakhanlal, convicted the appellants under Sections 148 & 302 read with Seetion 149 of the IPC and sentQnced them to undergoRI for three S11-;y. . ;'a 1!1'A^ •^, years & to undergo imprisonment for life and pay fine of Rs.1,000/- each, in default of paymenf of fine to further undergo Rl for six months, respectively. :@ 2. Conviction isimpugned ontheground thatwithout any iota of evidence, the trial Courthas convicted & sentenced the appellants, and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 5-8-2005 at about 4 p.m. on the eve of hariyali festjyal, the villagers were celebrating the ^ festival, unfortunate deceased Lakhanlal was present in his house, Lachhiram S/o Shivcharan, Ganesh, Ramesh, Kapil, Gaya, Ashwani & Nanakchand came to the house of Lakhanlal (since deceased), they consumed liquor and after consuming liquor they took Lakhanlal with them foragain consuming liquor towards the yjllage, brother of Lakhanlal namely Sakharam (PW-2) and son of Lakhanlal namely Laxminarayan followed them, when the accused persons reached near the house of appellant Baisakhu, suddenly, appellants Kamal Satnami, Rajendra Satnami, Raju @ Manmohan Satnami, Jitendra, Satendra, Praveen @ Rama, Baisakhu & Ghasiram Satnami, assaulted Lakhanlal by axe, betel axe, kudari (weaponof digging) & stick and caused repeated injuries. After hearing the commotion, other villagers Arjun, Ramesh & Mahesh came to the spot. Sakharam (PW-2) & son of deceased i.e. Laxminarayan fled away from the spot. Lakhanlal died on the spot. Sakharam (PW-2) weht to Police Outpost Chilfi and lodged FIR within seven hours of the incident yide Ex.P-"[; Finally, FIR was registered at Poliee Station Mungeli. Merg was recorded. The fftvestigating Officer left for the scene of occurrence and after summoning the witnesses vide Exs.P-5 & P-5A, prepared inquest over the dead body of the deceased vide Ex.P-9. Plain soil and bldodstained soil were recovered from the I ° '•-s'^.y'' d-r: ^••^T^'^^'' * spot vide Ex.P-2. Dead body was sent for autopsy to Community Health Centre, Lormi vide Ex.P-11A. Dr. G.S. Dau (PW-9) conducted autopsy vide Ex. P-11 and found following injuries: - (i) Incised wound of S^c.m. x 3 c.m. x 3 c.m. over back of neck. (ii) Incised wound of 4 c.m. x 2 c.m. x 5 c.m. over front part of neck, trachea was found cut. (iii)lncised wound of 6 c.m. x 2 c.m. x 2 c.m. just above the right eye, bone underlying the injury was foundfractured. (iv)lncised wound of 3 c.m. x 2 c.m. x 1 c.m. over right cheek. (v) Incised wound of7 c.m.,S!2 c.m.x bone deep overright mandible, right mandible was foun8 Tractured. (vi)lncised wound of 3 c.m. x 1 c.m. x 5 c.m. over left side of neck, major blood vessels of neck were found cut. Mode of death was shock and death was homicidal in nature. During the course of investigation, the accused persons were taken into custody. Accused Ghasia @ Ghasiram made disclb'ser statement of stick vide Ex. P-6 and same was recovered athis instance vide Ex. P-3. Appellant Baisakhu also made discloser statement of kudari vide Ex.P-10 and same was recovered at his instance along with bloodstained shirt vide Ex.P-4. Appellant Kamal made discloser statement of betelaxe vide Ex.P-21 and s^me was recovered at his instance vide Ex.P-19 along with blood stained baniyan. Appellant Manmohan @ Raju made discloser statement of betel axe vide Ex.P-22 and same was recovered at his instance vide Ex. P-20. Sealed clothes of the deceased were seized vide Ex.P-23. Spot map was prepared by the Patwari vide Ex.P- 24. Accused persons Baisakhu, Ghasiya, Kamal & Manmohan were ./ sentfor medical examination vide £xs.P-33 to P-36 and they were examined by the doctor, but no visible injury was found over the bodies ofaforesaid accused persons. ;"» 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before the Court ofJudjcial Magistrate First Class, Mungeli who committed the case to the Court of Ses^ions, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as seventeen witnesses. The accused were examined under Section 313 of the CrPC in ;;y/hich they denied the circumstances it .<fli appearing against them, pleaded innoeence and fatse impliGation. The accused have taken.defence that appellant Baisakhu has purchased land from father ofArjun namely Jhadiram and there was serious dispute relating to land between Baisakhu & Arjun, therefore, on accountofsuch enmity, they have been falsely implicated atthe instanceofArjun. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants as aforementioned, 7. We have heard learned counsel for the parties, perused the judgment and record ofthetrial Court. 8. Learned counsel for the appellants vehemently argued that conviction is based on the evidence of Arjun Diwaker (PW-1), Sakharam (PW-2) & Jaswant (PW-14) S/o Arjun which are self-contradictory and clearly reveal that they have not seen the incident. Other five persons whose names have been mentioned in the FIR are the persons present with deceased Lakhanlal just before he left the house, they have taken Lakhanlal from his house on the pretext of consuming liquor and wjthin short.time, dead body of Lakhanlal wasfound lying in front of the house of appellant Baisakhu. On accoynt of enmity with father ofAr}un and the appellants, the witnesses have pre-planned and decided to implicate the appellants and have falsely implicated the appellants in the crime in question. Learned counsel further argued that Arjun Diwaker (PW-1), Sakharam (PW-2) & Jaswa)it (PW-14) are either unreliable witnesses or partly reliable witnesses and their evidence is not sufficient for proving the Gommission of offence without further corroboration from '•'. independent sources. 9. On the other hand, learned Sta^e counsel opposed the appeal and submitted that evidenceof Arjuh Diwaker (PW-1), Sakharam (PW-2) & „ Jaswant (PW-14)are not self-contradictory, they are eyewitnesses, and their presence finds support in the promptly lodged FIR Ex.P-1. Brother ofdeceased Lakhanlal namely Sakharam (PW-2) has lodged FIR, who is a relative witness. Evidence adduced on behalf of the prosecution is sufficient for conviction of the appellants. After appreciating the evidence available on record, the trial Court has rightly convicted & sentenced the appellants. 10. In order to appreciate the arguments advanced on behalf of the parties, <. we have examined the evidence adduced on behalf ofthe prosecution. 11.1n the present case, homicidal death ofdeceased Lakhanlal as a result of fatal injuries found over neckand other parts of his person has not been substantially disputed on behalf of the appellants, otherwise also it is established by evidence of Dr. G.,S. Dau (PW-9) and autopsy report Ex.P-11 that the.death of Lakhanlal was homicidal in nature. 12.As regards complicity of the appellants in the crime in question, conviction is based onevidence ofArjun Diwaker (PW-1), Sakharam (PW-2) & Jaswant (PW-14). Sakharam (PW-2) - brother of the -deceased, has lodged FIR vide Ex.P-1 at Police Outpost Chilfi, 15 kms. 'l liitiiij5E»&. li "L •S! r i<k. ^ away from the placeof incident, within seven hours of the incident at 11 p.m. As per his evidence, at about 12 noon on the eve of hariyali festival, his brother deceased Lakhanlal came to his house and informed that Munna & Ghasiraln were quarrelling in the village and he has pacified them; after three hours when they were sitting in the verandah, Lachhi, Ganesh, Ramesh, Kapil, Nanakchand, Daya & Ashwani came to their house; they consumed liquor and forcefully took Lakhanlal (since deceased) towards the village; he along with his nephew Laxminarayan A •.. . followed them where they sijw that accused persons Kamal, Raju, Satendra, Ghasiya, Jitendra,'Baisakhu & Praveen were assaulting his brother by betel axe, kudari & stick; and they caused injuries over neck, head and face of Lakhanlal. Lakhanlal fell down. After hearing the commotion Arjun, Yashwant, Mahesh and other persons came to the spot, then he along with his nephew who were under apprehension fled away to the house, thereafter again he came with Kotwar Dhaniram and went to the police outpost for lodging report where he lodged FIR Ex.P-1. Arjun Diwaker (PW-1) has substantially corroborated the evidence of Sakharam (PW-2). Jaswant (PW-14) - son of Arjun has also substantially supported the evidence of Sakharam (PW-2). 13.Defence has cross-examined these witnesses at length. Arjun Diwaker (PW-1) has admitted land transaction in his cross-examination, but has denied the dispute on the ground of land. In para 15 he has deposed that the dispute relating to fencing was 6-7 years prior tothe incident. He has admitted relation with son of tbi'e deceased in para 19. In para 25, he has admitted that he has informed members of the family of Lakhanlal that body of Lakhanlal is lying in front of the house of Baisakhu. a^> ''HiiSlfcgii ! I ''fsf"^' 14.Jaswant (PW-14) has deposed in para 2 of his evidence that his father Arjun was standing in front of his house at the time of incident and shouted that six persons i.e. the appellants herein and threeothers were assaulting Lakhanlal. lrt\his detailed cross-examination he has further admitted the aforesaid facts. He has also admitted in para 28 of his cross-examination that he has informed about the incident to his father, but he has specifically deposed in para 2 of hisevidence that his father has also seen the incident. a 15.Defence has also cross-exaFfiihed Sakharam (PW-2) in detail. In his detailed cross-examination, in para 22, he has admitted the fact that after the incident they decided to lodge report against all accused persons. In paras 52 & 53 of his cross-examination, he has admitted the exaggerating suggestion given by defence. In para 26 he has further •-S. admitted that he has informed the police that eight persons had taken his brother from his house and thereafter, his brother has been murdered. He has further admitted in para 27 of his evidence that he has named the aforesaid eight persons in the FIR. ^ 16.Another witness Mahesh Kumar (PW-3), whose name also finds place in the FIR, has deposed in his evidence that he has seen the initial part of incident, the appellants wereassautting Lakhanlal by kudari, betel axe, stick &axe, they frightenedand went away from the spot, again hecame and saw the injured body pf Lakhanlal. , 1 17.S.L. Dhruv (PW-13) - Investigating Offjcer, has clearly admitted the fact .•( that Sakharam (PW-2) has made report and merg in which names of eight persons with whom Lakhanlal left his house have been mentioned and he has also admitted in para 43ofhis evidence that Sakharam has/ Lit'^.&S £^'^ informed him that thereafter, Lakhanlal has been murdered. He has further admitted same thing in para 44 of his evidence. 18.Evidence of S.L. Dhruv (PW-13) - Investigating Officer and Sakharam (PW-2), who has lodged FIR, clearly reveal that initially, Lakhanlal was taken from his house by eight persons, thereafter within short time, the appellants assaulted Lakhanlal and caused his death. - 19.Evidence of Arjun Diwaker (PW-1), Sakharam (PW-2), Mahesh Kumar (PW-3) & Jaswant (PW-14) rs^eal that the aforesaid three accused .ft persons along with other juvenlle offenders have assaulted Lakhanlal simultaneously by deadly weapons and caused his instantaneous death on the spot. Separate charge sheet for two accused persons has been filed before the Juvenile Justice Board. Ex.P-1 - FIR, evidence of Sakharam (PW-2) & S:L. Dhruv (PW-13) Jurther reveal that firstly Lakhanlal was forcefully taken out from his house on the pretext of consuming liquor, by eight persons whose names have been mentioned at the instance of Sakharam in the FIR and also in the merg, while they were gping towards the village and passing in front of the house of Baisakhu, the appellants herein along with other accused persons assaulted.-Lakhanlal simultaneously by deadly weapons resulting in his death. This evidence furthers reveal that there is some nexus between taking of Lakhanlal from his house by eight persons and commission of the incident. The prosecution has not collected evidence against other eight persons relating to their involvement in the crime in question, but .•< has collected material and adduced ^vidence against the appellants herein and other accused persons. The act of eight persons may be offence of formation of unlawful assembly having its common object of commission of the aforesaid offence, but only in absence of evidence against eight persons, entire evidence relating to commission of offence ^Sf-R \^ "^.- and direct evidence relating to involvement of the appellants herein cannot be discarded and thrown out. Evidence ofArjun Diwaker (PW-1), Sakharam (PW-2), Mahesh Kumar (PW-3) & Jaswant (PW-14) corroborate the evidence\of each other and same are sufficient for drawing inference that while Lakhanlal was passing in front of the house of Baisakhu, all the accused suddenly came they were holding weapons and have caused fatal injuries, resulting in deathof Lakhanlal. This shows their direct involvement in the commission of offence. This is not the case in which the appellarfs came from different sides or from different places, but when they'saw the commission of incident, then without knowing the fate and object of other accused persons, they participated in the commission of offence. In the present case, all the appellants along with oth^er juvenile offenders came jointly and have caused homicidal death ofdeceased Lakhanlal. 20.As held by the Supreme Court in the matters of Chandra Bihari Gautam & Ors. v. State of Bihar , Pandurang Chandrakant Mhatre v. Stateof Maharashtra , Masalti v. State of U.P. , Sherey and others v. State of U.P.4, Lalji and others v. State of U.P.5, State of U.P. v. Dan Singh and others and ^Ga'ngadhar Behera and others v. State of Orissa , constitution of unlawful assembly is a question of fact and the prosecution is required to proveconstitution of unlawful assembly ahd its common object. Unlawful assembly may be constituted at any moment and person may join unlawful assembly at any time, even at the timeof causjng injury, but the prosecution is required to prove the aforesaid fact 1 JT 2002 (4) 62 2 (2009)108cc 773 3AIR1965SC202 4 1991 3upp(2) SCC437 ~15(1989)1 SCC437 ;6(-1997)3SCC747 7 (2002) 8 SCC 381 -3a •''E'.S,^y '-< 10 . by adducing cogent and reliable evidence that the persons have formed the unlawful assembly or joined in unlawful assembly having its common object and was having its common object for commissionofthe aforesaid offence. Mere ^iresence as a stranger, by passer'or gathered on the spot to see quarrel or the incident would not make the person liable for formation of unlawful assembly or liable for the commission of offenee. 21.1n the light of law as propound^d by the Supreme Court in the aforesajd .ft ^ cases, for constjtution of urilawful assembly, five or more than five members are required, their common objectsmust be for commission of the offence as envisaged in Section 141 of the Indian Penal Code. An assembly constituted lawful may be converted into unlawful assembly at any moment. Normally the evidence relating to common obj'ect of unlawful assembly is not possible. It may be inferred from the act committed by the unlawful assemblyand if result of such act is once proved that the unlawful assembly has been constituted, any overt act or active participation of any member of unlawful assembly is not neeessary. All members would be liable for commission of offence or for the act committed by any member of unlawful assembly in accordance with Section 149'ofthe Indian Penal Code. 22. In the present case, some of the accused were holding betel axe, stick and kudari which are deadly weapons. If members of unlawful assembly are armed with such deadlyweapons, it can be safely presumed as to .•( what was the object of such unlawflJI assembly.which ean also be presumed by result of the act. 23.Evidence of the aforesaid withessesis sufficient to establish the fact that the. appellants have formed iinlawful assembly armed with deadly i'"ft;ii!t 11 \0 L- weapons having its object of commission of culpable homicide amounting to murder of Lakhanlal and in furtherance of common object of said assembly, the appellants or some of the members of unlawful assembly have caused fgtal injuries resulting in instantaneous death of Lakhanlal. On the basis of aforesaid evidence, the trial Court has convicted & sentenced the appellants under Seetions 148 & 302 read with Section149ofthe IPC. 24. Conviction of the appellants is based on legal, clinching and credible i evidence sustainable under th6 law. While convicting &sentencing the appellants, the trial. Court has not committed any illegality or infirmity requiring any interference. 25.Consequently, we do nof find any substance in the appeal, the appeal is devoid of merit, same is liable to be c}ismissed and it is hereby dismissed. Sd/- T.P.Sha^ma Judge Sd/- R.L. Jhanwar Jydge ..—.y