i.^»<^.^<^^^^^^;l^^».,,^^^^.^^^ "€-. HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri Prashant Kumar Mishra. J J. Criminal Appeal No. 11 of 1994 Charan (dead) & Others Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE PRASHANT KUMAR MISH^A 3 <-f Sd/- Prashant Kumar Mishra Judge Post for Judgment : /2J05/2011 ^L Sd/- Sunil Kumar Sinha Judge ^' .^•M\ /y- 1 st^^^^ %^s^' HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri Prashant Kumar Mishra, J J. Criminal Appeal No. 11 of 1994 APPELLANTS ^. RESPONDENT Charan S/o Sarvjit Gond, aged 55 years, r/o Sargudi, Thana Khadgavan (Dead -Name deleted) Lotan S/o Charan Gond, aged 34 years, r/o Sargudi, Thana Khadgavan Raghunandan S/o Loknath Gond, aged 58 years, r/o Katkona, Thana Khadgavan Suryabhan S/o Raghunandan Gond, aged 50 years, r/o Katkona, Thana Khadgavan Arjun S/o Loknath Gond, aged 50 years, r/o Gidhmundi, Thana Khadgavan Hirasai S/o Charan Gond, aged 28 years, r/o Sargudi, Thana Khadgavan Versus State of Madhya Pradesh (Now State of Chhattisgarh) Through S.H.O. Khadgavan, District Sarguja (Now District Korea) (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Mrs. Savita Tiwari, Advocate for the appellants. Mr. Ashish Shukla, Govt. Advocate for the State. ,^^'tess:^ ^- ^y^^ s^ 1 ."::)€d '^^./ Criminal Appeal No. 11 of 1994 JUDGMENT (12.05.2011) Following judgment of the Court was delivered by Sunil KumarSinha. J. (1) This appeal is directed against the judgment dated 20.11.93 passed in Sessions Trial No. 71/91 by the Additional Sessions Judge, Manendragarh. By the impugiipd judgment, appellant No.3 has been convicted u/ss 302 & 323 IPC and sentenced to undergo imprisonment for life and R.l. for 2 years; appellant No. 4 has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life; and the remaining appellants have been convicted u/ss 302/149 IPC and sentenced to undergo imprisonment for life. Appellant- Raghunandan wasalso held guilty u/s 148 IPC, but no punishment, on this account has been awarded to him. The sentences imposed upon Raghunandan have been directed to run concurrently. (2) Appellant No.1 - Charan S/o Sarvjit Gond died during the pendency of the appeal, therefore, his name was deleted from the array of the appellants and the appeal filed on behalf of appellant No.1 hasabated. (3) The facts, briefly stated, are as under:- Khasra No. 360 area 3.970 hectares is a piece of land situated in village Katkona, PC No. 13, Tehsil Manendragarh. It was in ownership and possession of Jagdhari (PW-6). Jagdhari had sown paddy crops on the said land. On 28.11.90 /" "^-^ '^..^'"''•'•""', ^\ Criminal Appeal No. 11 of 1994 at about 2.30 p.m., Jagdhari (PW-6), Bhaarat Singh (PW-1), Ramashanker (PW-3) and Kripal Singh (PW-4) were harvesting the crops. Deosharan and Bhola (the 2 deceased persons) were also harvesting the crops being engaged labours by Jaddhari (PW-6). The allegations are that all the accused persons formed an unlawful assembly, participated in rioting with deadly weapons, and in furtherance of the common object of the said assembly they came to the field and attacked over Jagdhari. When the 2 deceased persons tried to intervene, the accused persons, leaving Jagdhari, attacked over them. Raghunandan (A-3) attacked over Deosharan by using a gupti and Suryabhan (A-4) attacked over Bhola by a gupti, and thereafter all the accused persons assaulted them by lathis. Jagdhari (PW-6), Deosharan and Bhola (2 deceased persons) sustained multiple serious injuries. Deosharan and Bhola succumbed to those injuries in the field itself, however, Jagdhari (PW-6) remained alive. There were many eye-witnesses to the incident namely Bhaarat Singh, (PW-1), Ramashanker (PW-3), Kripal Singh (PW-4) and Jagdhari (PW-6). Bhaarat Singh (PW-1) lodged the First Information Report (Ex.-P/1). The Investigation Officer reached to the place of occurrence, gave notice (Ex.- P/3) to the Panchas and prepared inquests (Ex.-P/4 & P/5) on the dead bodies of the deceased persons. The dead bodies were sent for their post-mortem to Government Hospital, Khadgavan, where the post-mortem examinations were conducted by Dr. K.L. Banjare (PW-7) who found multiple incised and lacerated wounds on the dead bodies of the deceased persons. There were multiple fractures on the dead bodies including fractures of skull bone. He opined that the injuries were ante-mortem and the causes of death were shock on account of injuries and fractures sustained by the ^li., Criminal Appeal No. 11 of 1994 deceased persons. The deaths were homicidal in nature. The post-mortem reports are Ex.-P/24 & P/26. In further investigation, the appellants were taken into custody and their memorandum statements u/s 27 of the Evidence Act (Ex.-P/9, P/10, P/14, P/15 & P/16) were recorded and lathis and guptis were seized at the instances of the appellants 1 to 5 vide seizure memos Ex.-P/11, P/12, P/17, P/18 & P/19. The seized articles along with the weapons of offence were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Sagar, from where a report (Ex.-P/31) was received.According to the F.S.L. report, blood stains were found on all the articles except the plain soil seized from the place of occurrence. In further investigation, revenue records relating to the disputed field (Ex.-P/21, P/22 & P/23) were also seized. After completion of usual investigation, thecharge-sheet was filed in the Court of Judicial Magistrate First Class, Manendragarh, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Additional Sessions Judge, Manendragarh, who conducted the trial and convicted & sentenced the appellants as aforementioned. (4) The case of the prosecution was based on eye-witness account of Bhaarat Singh (PW-1),Ramashanker (PW-3), Kripal Singh (PW-4) and Jagdhari (PW-6). The learned Sessions Judge held that these witnesses were fully reliable and the appellants were liable for punishment under the aforementioned Sections of IPC. \ fls -^ -^ ^ B Criminal Appeal No. 11 of 1994 (5) Mrs. Savita Tiwari, learned counsel appearing on behalf of the appellants, argued that the eye-witnesses were not reliable; it was a land dispute, therefore, a quarrel took place and in the said quarrel the 2 deceased persons lost their lives. She also tried to make out a case of right of private defence of person and property. (6) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported thejudgment passed by the Sessions Court. (7) We have heard learned counsel for the parties at length and have also perused the records ofthe sessions case. (8) Bhaarat Singh (PW-1) deposed that on the fateful day at about 2.30 p.m., they were harvesting the crops of the field. All the accused persons came there armed with lathi, danda, bhala & gupti. Raghunandan (A-3) asked as to why they are harvesting the field ? Jagdhari (PW-6) replied that it was his patta's land, he has sown the crops, therefore, they were harvesting the crops. Raghunandan assaulted Jagdhari by lathi. Deceased- Bhola & Deosharan tried to intervene, on which,Raghunandan (A-3) attacked over Deosharan by gupti and Suryabhan (A-4) attacked over Bhola by gupti. Both fell down. Thereafter all the accused persons assaulted Deosharan and Bhola by lathis. They died instantaneously. He went to lodge the F.I.R.(Ex.-P/1). ^^p-^&^ w^^si:s^ '^ '%.. <%^^'J^ 'a%S»<X^/ '•^ss:^:^^'" 6 Criminal Appeal No. 11 of 1994 (9) Almost similar evidence has been given by Ramashanker (PW-3), Kripal Singh (PW-4) and Jagdhari (PW-6). (10) In appreciation, we find that the evidence of the above 4 eye- witnesses were corroborating each other and there were no material contradictions in their evidence. The evidence of Bhaarat Singh (PW-1) was furthercorroborated by the F.I.R. (Ex.-P/1) lodged by him. i^ (11) The versions of eye-witnesses were also corroborated by the evidence of Dr. K.L. Banjare (PW-7) who noticed multiple ante- mortem incised and lacerated wounds on the dead bodies of the deceased. On due appreciation, we find that there was no discrepancy in the eye-witnesses account and the medical testimony and the medical testimony has fully supported the evidence of eye-witnesses. (12) Mrs. Tiwari has argued that the land was in possession of the accused party. This goes contrary to the material available on record. The revenue papers (Khasrapanchsala, Kistbandi Khatauni B-1 and jnap) would show that the land in question was of ownership and possession of Jagdhari (PW-6). The entries of these documents have been proved by Halka Patwari - Jaganram (PW-5). The entry has not been rebutted at all. Apart from the above, it comes in the evidence of prosecution witnesses that the land in question was in cultivating possession of Jagdhari (PW-6) and '%. ^-^.^%.>y' •.'/ Criminal Appeal No. 11 of 1994 \, Jagdhari had sown paddy crops on the said land in relevant year. This shows that the land in question was in exclusive possession of Jagdhari (PW-6) who had sown the paddy crops and the complainant party, including the 2 deceased persons who were engaged as labours by Jagdhari (PW-6), were harvesting the paddy crops and the accused persons attacked over them having armed with deadly weapons like lathi, gupti & Bhala. The Sessions Judge has convicted the 2 appellants u/s 302 IPC and the remaining have been convicted with the aid of Section 149 IPC. Mrs. Tiwari has argued that no specific role have been attributed to each appellant. We are unabte to accept the said arguments firstly because the eye- witnesses have attributed specific roles to each appellant, and secondly, that it was not at all required. In Dhamidhar -Vs- State of Uttar Pradesh and Others & Other connected matters. (2010) 7 SCC 759, the Supreme Court held that for applicability of Section 149 no specific role to each accused is required to be attributed and the only question to be determined in such a case is whether assembly consisted of five or more persons and whether said persons entertained one or more of common objects specified in S. 141. For determination of common object, conduct of each of the members of said assembly before attack, at the time of attack and thereafter, as well as motive for crime are relevant consideration. However, time offorming unlawful intentis not material because it is possible that an assembly, which is lawful to begin with, , ^ Criminal Appeal No. 11 of1994 subsequently becomes unlawful. Lastly,it is not even expected of prosecution to assign particular or independent roles played by each accused once it is proved they were members of unla\A^ul assembly and had assaulted deceased resulting in death. (13) In the present case, if we examine the conduct of the appellants, we find that the appellants armed with deadly weapons came to the place of occurrence and after short altercation with Jagdhari (PW-6), he was assaulted and when the 2 deceased persons tried to intervene they were attacked by the appellants and multiple serious injuries including fractures etc. were caused to them. On appreciation of entire evidence on record, we do not find any force in the argument of Mrs. Tiwari and same has to be rejected. (14) Mrs. Tiwari has also tried to make out a case of right of private defence of person and property. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the cast that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side ofthe accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record; Rizan v. State of Chhattisaarh. AIR 2003 SC 976. We Cnmjnal Appeal No. 11 of1994 have already said that the property was not belonging to the accused party. It was also not a case in which question of disputed possession was fact in issue. It was a case in which there was sufficient material to hold that Jagdhari (PW-6) was in exclusive possession of the disputed field being the owner of thesaid field and he alone had sown paddy crops in the field in the relevant year. Therefore, there was no question of exercising right of private defence of property. So far as right of private defence of person is concerned, we find that there was no material on record to suggest that any member of the accused party was either apprehended or frightened or assaulted or tried to be assaulted by the complainant party. None of the persons belonging to the accused party has sustained injury in this case. There was no material to suggest that the accused persons had reasons to exercise right of private defence of person. Their conduct would show that they being membersof unlawful assembly in furtherance ofthe common object attacked over the complainant party and assaulted them with deadly weapons held by them. (15) On consideration of the entire material available on record, we are of the view that the learned Sessions Judge has rightly convicted the appellants u/ss 148, 302 & 302/149 IPC and the same deserves to be sustained. ^::.^\i'x ^ '' <f^^...l. 1 ;1 i ^:^^., II I & ^s^l A vv-y' "^^'i^ 10 Criminal Appeal No. 11 of 1994 vatti (16) We find from the records that appellant- Raghunandan was also charged u/s 323 IPC and has been held guilty for the said offence. However, the punishment imposed against him appears to be that of 2 years which has to be corrected. Accordingly, we modify the sentence awarded to him. We direct that instead of R.l. for 2 years, he is sentenced to R.l. for 1 year which is maximum sentence awardable u/s 323 IPC. As directed by the Sessions Court, this will run concurrently with the other sentences awarded to him. (17) With the above modification in the sentence awarded to Raghunandan (A-3), the appeal stands dismissed. Sd/- Sunil Kumar Sinha Judge Sd/- Prashant Kumar Mishra Judge