HI6H COURTOF CHHATTIS6ARH. BIL4SPUR APPELLANTS: RE5PONDENT: Criminal Appeal No. 124 of 2006 Jalil Ahmed and others Versus State of Chhattisqarh Post for Dronouncement of .iudament on n (b September, 2008 ••SdA TRShanna Judge ;it il^ B •9 I): li 11 I i !t 'll^ HI6H COURT OF CHHAmS6ARH^BlLA5PUR APPELLANTS: ?n Jail) RE5PONDENT; Crimino! AoDeal No.124 of 2006 1. Jalil Ahmed, S/o Faiku Ahmed, aqe about 36 yeo.rs, Occupation Labourer. 2. Salim @ Salimucidin, S/o Miyaiuddin, aged about 34 years, Occupation BuSiness. 3. Mahfuj Haicm, S/o Mohd. Nazir, aoed about 21 years, Occupation uriver. •~4, Sarfuddin, 5/o Late Hamid, aged 50 years, UccupaTion Labourer. "l'. 5. Shoukat Khan, S/o Nafil JChan, aged 35 years, Occupation Cultivation. All residents of Village 5ai Tangar' Toli, Police Chowki Lodam, Thana Jashpur, DiStt. Jcshpur (C6) Versus State of Chhattisqarh, Throuqh uistrict Anagistrate, Jashpur Nagar, t5iStt.Jashpur(C.S.5 {Crimina! appeal under Section 374 (2) of the Code of Criminal Procedure. 1973} Present: Mrs. Hamida Siddique, counsel for the appe'lomts. Mr. Pankaj Shrivastava, Ponet Lawyer for the State/respondent. Sinale Bench: Hon'ble Mr. T.P. Shanna. J JUD6MENT (Delivered on g^ September, 2008) 1. This appeai is directed against the, judgment of sentence dated 13-2-2006 possed by the Sessions Sessions Trial No.32/2005, whereby & whereunder J'udge ofter hQlding •the accused/appellants auilt/ conviction and order of Judge, Jashpur in learned Sessions for commission of •K i .1 offence under Sections 147, 148, 323 read with 5ection 149 & 307 read with Section 149 of the I.P.C., sentenced ecch of tiiem to undergo rigorous imprisontnent for six nnon1+is. eiqht months, four months & fiye years. respectively. 2. The impuaned judgment is chaitenged on the ground triat without ar'y credibie and accestabte evidence relatina to commission of offence of hurt wd attemDt to commit murder, iear'ned triai Court has convicted and sentenced the appeliants as aforementioned. 3. I haye heard learned eoupset for the parties and perused 1+ie impugned ' judgrpent as a!so the material available on record. *.- t 4. Case of the Drosecution, in brief, is thot on 30.10.2004 at about 7 a.m. Mohd. Faru.kh (PW-8) was standing at Saitongar Toli bus stand, accused Chinqa @ Nazir Hussain came to him and uti'ered abuses on him, persons present on the spot interyened, •rtisreafter, Chinga thrsatened himand wsnt awcy from the bus stand towards Rawat Ho+el. After some time, accused Khurshid, Lal Khan, Mahfooz, Shoukat, Salim, Sajjad, Akbar, Safruddin, Jaiii & Bablu cawe in motorcycle <& commander Jeep along with Chingaand started assoujitinQ Mohd. Farukh (PW-8) as a result of which he became unconscious, when he regained cpnsciousness, one Ropna took irim to house. On the othsr hand, Lai an left his associdtes by the commander»Jeep in the house of Salim omd went away. When Marukh (PW- 10), son of Mohd. Farukh, was goin9 towards bus stoaid, the accused/ appellants holding Lathi in 1+ieir hands, chased him to assautt him, but Marukh ran oway. When complainant Mohd. Farukh rushed to sme his son, he was again beaten by accused 5alim with chopper, as a result of which AAohd. Fafukh fell down, when her daughter Halima , Khatun came to intervene. Salim attacked her ateo with chooDer over herihead. Persons of the vicinity came and interyened. Mohd. Farukh lodqed ;F.I.R. Ex.P-20 on the bcssis of which numbered F.I.R. was registered vide Ex.P-22. 5pot map was DreDared by the Investiaatiriq Officer vide Ex.P-23. The'chbDper was seized'from aDDellaii-t Salim. Mohd. Farukh was sent for- medica] examination and he was examined by Dr. Rajendra 5ingh Raj (PW-7) vide Ex.P-7 who found followina grievous inluries on his bodv:- (1) Lacerated wound diameter 3 cms.x 2 cms. oyer right eye brow; (2)Abrasion & bruise over right maxiltary region 2 cms. x 2 cms. diameter: ' C3)Riqh+ Auricle cutjn middle ocrt diameter 4-isms. tenath x 2 cms. width blood clot (4) Tenderness on riqht ear blood clot in external auxiliary tube; (5) Abrasion & bruise over right sided chest near right breat 3 cms. x 2 cms. diameter; ^ (6) Ter?dsr'?iess QH lowe" 1/3 of right Isg ^ niiddls psrt of ri^ht !s9; (7) Tender on !eft. vurist region; (8) Abrasion & bruise diameter 3 cms. x 2 cms. on left forearm; (9) Tender on right side of hip region and on back region; <& (10) Abrasion & bruise diameter- 10 cms. x 2 cms. on Dosterior Dart of ieftthiqh. X-ray report of Mohd. Farukh is Ex.P-8 and his X-ray plates are Exs.P-9 to P-14. M.ohd. Farukh was examined by the radiologist ond fracture of right fibula & stylaid was found vide Ex.P-8. Injured Haiima Khatun was aiso examined by Dr. Rajendra 5ingh Raj (PW-7) vide Ex.P-17 who founcT foilowina iniuries on her body: - (1) Lacerated wound diameter 4 cms. x 2 cms. bone deep over right parie+o occipital region; di ' ' (2) Abrosion & bruise on left elbow reqion. X-rcsy report of Halima Khatun is Ex.P-18 ond her X-ray ptates are EXS.P- 18A & P-18B. No grievous injury was found on her body. Ths accused persons alSQ caused injuries to Marukh, he was alsoexamined by Dr. Rqiendra Singh Raj (PW-7) vide Ex.P-16 who found abrasion & bruise 4 cms. x 3 cms. diamster on forearm and abrasion & bruise over riqht wrist & right hand region diameter 2 cms. x 1 cm. 5. A auery was mo.de to 1+ie doctor vide Ex.P-25 reaardina the nature of injuries and the doctor has replied vide Ex.P-15 that the injuries found on the body of AAohd. Farukh were grievous in nature ond danaerous to his life. 6. After recordina the s+atements under Section 161 of the Cr.P.C. and cfter completion of inyestigation, charge sheet was filed before the Chief Judicial AAagistrate, Jashpur, who in turn, cQmmitted the ca.se. to the Court of Sessions Jud9e, Jashpur, for trial. 7. In order to prove the'guittpf the appellants, the prosecution hos examined as mcny as twelye witnesses. 5tatements of the appeltonts were recorded under 5ection 313 of the Cr.P.C. in which they ho.ve denied the circumstances appearina aaainst them in the prosecution evidence, pleaded innocence and false implication. After affording the opportunity of hearing to both the parties, learned trial Court has convicted and sentenced the appellants in the aforesaid manner. 8. It is araued on behalf of the aoDellants that none of the in iuries found on tiie bodies of in.jured Mohd. Forukh or Halima atuh were fatal and dangerous to life. Sr'ieyous hurt & fractureof fibula bone which is the bone of neck is not dangerous to life. The prosecution has failed-tp adduce eyidence that the appeltants had constituted unlawfu! assembly and in furthercmce of common object of the unlawful assembiy they had assaulted and caused grieyous injuries to AAohd. Farukh and simple assaults to Halima Khatun & Marukh- Mohd. Farukh (PW-8), Halima Khatun (PW-9) <& Atar'ukh fPW-10) haye stated that thev were assaulted bv all the accused/appelliints and all the accused were carrying-weapons in their honds, but only few injuries were found on the body of these persons, thersfore. their- statements are fu!l of contradictions <& omissions and •ttiere is discrepancy in their eyidence. These witnesses are having animosity with the aDDell'ssnts, os such, -riieir evidence is not worth credence which warrahts conviction against the aDDellants; 9. On the ofher hand, the judgment is supported by learned counsel appearing for the State/respondent. Learned Panel Lawyer argued thqt fhe prosecution has adduced evidence sufficient for conviction against the <mpell<mts and the appellants have intentionally caused Injuries to Mohd. Farukh which were danaerous to his iife. 10. As regards the question of injuries cuid their aravity, Mohd. Farukh (PW-8) has stoted in his evidence that he was assauited twice, firstly near bus stand and secondly near his house, and he received injury oyer his head. Mohd. Farukh was examined by Or. Rajendra Singh Raj (PW-7) who hdS stated that on .31-10-2004 he has examined Mohd. Farukh ond noticed several injuries vide ^.x.P-7. X-rays of legs were taken and according to +he X-rov oiiates Exs.P-9 +o P-14, frsctufs Qf 6 ;& 7th ribs snd fibuia hon^ wos found on the body of Mohd. Farukh vide X-ray report Ex.P-8. l-1alima Khatun (PW-9) has also stated tiiat Mohd. Farukh received injury at the time of the incident. t>r. Rajendra Singh Raj (PW-7) has also stated that the injuries found on the body of Mohd. Farukh was dangerous to life. Defence has cross-examined the doctor at length, but it has not been able to elicit anything to discredit his evidence relating to nature of injuries sustained by Mohd. Farukh. From the aboye facts, it is established that Mohd. Farukh was assaulted at the time of incident and the injuries sustained by himwere dangerous to life. 11. As regards the injuries sustained by Haiima Khatun (PV)/-9) & Marukh (PW- 10), they haye stated ttiat they 'haye been assaulted at the time of the incident. They were also examined by t)r. Rajendra Singh Raj (PW-7). As per para 8 of the evidence of Dr. Rajendra Singh Raj (PW-7), he has examined Halima Khatun and found one lacerated woundof 4 cms. x 2 cms., bone deep in upper part of riaht ear over head, blood was comina out from the in iury and one abrasion along with contusion over left elbow Joint and according to X-ray repor-t Ex.P-18, the injuries sustained by her were simD'e. He has also stated that he has examined AAarukh and found one swellin9 over back A breast of 4 cms. x 3 cms. size w&s present over his riqht hand and abrasion with swellinq of 2 cms. x l cm. over riqht palm, vide 'l Ex.P-16, the injuries were simpie in nature. Therefore. it is established that the injuries sustained by Halima Khatun & Marukh were simple in naTure. 12. As regards complicity of the appellonts in the crime in question, the prosecution has adduced ocular eyidence of Mohd. Farukh (PW-8), in which he hds stated that atltie. time of incident when he was at bus stand. \ ^^ ~ ^ ^ ^"- ^' ~ "' —-'--•••--•—•- ••- ---..—--—.— accused Chinga toid his son-in-law Sajjad to bring 10-12 persons, when Sajjad came in van (vehicle) along with 10-12 persons who were armed with stick, Chinaa also came on a motorcycle along witt) IChurshid and assaulted him, they assaulted him over her forehecd. He became unconscious. He has further stated that he was beaten by accused Mdifdoz, Khurshid, Sajjad, Akbar, Jal'!!, Saiim, Lal Khan, Safr-uddin, Bablu etc. When he regainecl consciousness, he was shifted to his house. When he reached to his h-ouse. without 2-4 minutes, all the accused oersons came to his house and thrown dust on his house, his son Marukh was comin9 towards his house, the accused persons .encircted him and started assaulting him. When he came out from his house to intervene in the quarrel, the accused persons again asso.uited hitTi over his head, eye & ear, appeilant Salim assaulted hlm with chopper and oppellant Jalll assaulted with Baluva. Thereafter, his daughter Halimc had taken the chopper left by -the accused Dersons. He has further stated fhat he was assaulted by the appellants on the ground of dispute of women of their family. 13. Halima Kha+un (PW-9), daughter of Mohd. Farukh, hos stated in her evidence that at the time of incident she was in her house alonq with her brother Marukh, one Ropna took her father to the house in injured conditiQn, at that tirne her father was havina injury over head and all over the body. At the same time, the appellants & other accused persons came to her house and started assaulting her father. l-1er father told her to cail the neiqhbours. Her brofher Marukh went to call the neiqhbours whereuDon 1+ie aDDellants assaulted Marukh. When her fcxther tried to intervene, the accused persons assaulted her father aiso. Appellant Salim .assaulted her fati'ie.r with chopper, a&peilant Jalil assaulted with Baluva. AppeliflOTt Safruddin was holding club and rest of the accused persons were also hoiding clubs in their hands, all of them assaulted her father wi-tti clubs. Her father lod9ed the report. She was examined by the doctor. 14. Marukh (PW-10), son of Mohd. Farukh, has also stated in his evidence that his father wo.s brought by one Ropna to house in injured condition and his father told him to call theneighbours. When he was going towards bus stand to call the neighbours, on the woy, he was surrounded by Khurshid - son of Chinga, Mahfooz, Sajjad, Akbar, Shaukat etc., they tried to assault him, but he ran awav. His father tried to intervene, whereuoon the appeliants assaulted his father also. Accused Jalil was holding Baluva and rest of -ttie aceused were hoidina clubs in their honds, they assaulted his father with club & Baluva. Accused Khurshid assaulted him also with ctub. His father lodged the report. He was otso examined by ttie doctor. Chopper taken by her sister Halima atun was seized yide Ex.P-21. 15. Abdul Hasib (PW-4) has not supported the case of the prosecution. But Abdul Kcyum (PW-51 has stated in his eyidence 1+iat when he was at bus stand, there were some hot talks between Farukh & Nazir @ Chinga, but he has not seen any ottiep incident. ^bdul Jabbar Khan (PW-6) has also suDDor+ed the cnse of the Drosecution to the extent that he saw some hard talks between Farukh <& Nazir © Chinga. The prosecution has not examined other witnesses on •ttse spot. But merely in tiie absence of any corroboration, ttie evidence of in iured witnesses cannot be discarded and minute scrutiny of their evidence is required. 16.In this case, both the parties were hayina previous animositj/. According to the evidence of Mohd. Farukh (PW-8), he was first assaulted by the accused psrsons nt bus stand oyer his head & all over the body, thereafter, when he was shifted from bus stand to his house by Ropna,the accused persons came near his house and assaulted his daughter & son and him too. In the second attnck, Mohd. Farukh received in.jury oyer his face near eyes & ear by Baluva which accused Jalil was holding. He has named , -ttie persons who have assaulted.him as Mahfooz, Khurshid, Sajjad, Akbar, — .2 Jalil, Salim, l-al K-han, Safruddin, Bablu etc. Firstty there was opal disDute between him and accused Chinga, thereafter, Chinga came with restof the accused persons with club, all of them assaulted him cmd secondly, they assaulted him near his house. 17. Only five accused persons have preferred the instant appeal ond rest of the accused persons'teere declared absconding. Evidence of Mohd. Farukh (PW-8) is supDorted by the evidence of Halima Khatun (PW-9) & AAarukh (PW-10) who are also injured witnesses and their presence on the spot cannot be-doubted pnlyon the ground of their relationship. Hence, they are natural witnesses nnd 1+ieir- oresence in the house at the time of the spot is auite flaturat, even 1+iev hwe ti'ied to intervene in 1+ie incident. First incident of bus stand is not well supDorted by the independent witnesses, but Abdul Kayum (PW-5) & Abdul Jobbar Khan (PW-6) have stated in their evidence that firstly there was some oral dispute between Farukh & Chinqa which is the qenesis of the Dresent offence. 18. Ten injur-ies were found over the body of Farukh, out of which 1tie.re was fracture of 6 & 7t ribs a"d also the f-ibula bone. I" jur'ies found over the body of Farukh were superficiai and grievous in nature. The appellants have denied the incidentand pleaded innocence & false implication. They have not taken anv SDecific defenee or not said anythinq that how the injured witnesses received the injuries, a!though it was not required for them to explain. The defence has cross-examined the witnesses at length, hut it has not been able to eticit any circumstance to discredit their testimony or to show that 1+ie injured witnesses have not received any injury or that the injuries were received otherwise and they haye falsely implicated these appellants in the crime in question. Enmity is a weapon which can be used in such crimes to implicate the accused persons, some times it is also used to implicate the accused falsely and sometimes it becomes the genesis of the offence. 19. The incident took oloice at about 7 a.m. on 30-10-2004 and AAohd. Farukh , has lodged the F.I.R. (Ex.P-20) within 3 i hoursert Poilice Out Post Lodani !|1 '^^;; Fd s-^ r•sar^[^Slv^SS.3.^^~" which is 6 kms. away from the place of incident, Considering ttie injuries sustained by complainant Mohd. Farukh as also his daughter & son, lodging of F.I.R. within five minutes or ten minutes was not practicallypossible. The F.I.R. has been lodged in detaii by Mohd. Farukh. Mohd. Farukh and the two otiier injured witnesses {his daughter' & son namely, Halima Khatun (PW-9) & Marukh (PW-10)} were examined by the doctor. Their evidence is corroborated from the F.I.R. and the medical evidence. 20.The material available on record reveals that Chin9a firstly disputed with AAohd. Farukh,thereafter, he called other accused persons along with the present appellants who came with arms and all of them assaulted Mohd. Farukh at bus stand, Ropna took him from the bus stand to his house, thereafter, the accused persons came neoir his house with arms and again assaulted Mohd. Farukh. Halima Khatun & AAarukh. It shows Drior meetina of mind of the accused persons and cqnstitutionof unlawful assembly to cause injury to Mohd. Farukh, and in furtherance of common object of the unlawful assemblv thev assaulted Mohd. Farukh and atso his dauqhter & son. 21. On careful examination of evidence of the witnesses, their evidence inspires confidence. After appreciating the evidence available on record, learned trial Court has convicted amd sentenced the aDDeliants in the aforesaid manner. Findings recorded by the trial Court are on the basis of reliable and credible evidence. same are sufficient for conviction of. the appellants for commission of offence under Sections 147, 148, 323 read withSection 149 & 307 read with 5ectionl49 of 1+ie I.P.C. 22. As regards the auestion of sentence, takinq into consideration the in.juries found ov&r the body of Mohd. Farukh, the manner in vuhich the injuries were ihflicted on him and commission of the offence in two different ploces, the appellonts do not deserve anysympathy, as such, the sentences awarded to them by the trial Court under 5ections 147,148, 323 read with Section 149 & 307 read with 5ection 149 of the I.P.C. are just and reasonotole.and no interference is called for. ! 10 23.For the fore9oing reasons, the appeal is lioble to be dismissed and it is herebv disrnissed. Soma ::i '.Sd/-,.' tJ.Sbarma Judge I"