AFi^ HIGHCOURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.24 of 2006 Kondi Bai alias Unnari - Versus - State of Chhattisgarh Criminal Appeal No.133 of 2006 Arjun and another - Versus - State of Chhattisgarh AND Criminal Appeal No.161 of 2006 Phoo! Singh and another - Versus - State of Chhattisgarh JUDGMENTFORCONSIDERATIQN HON'BLE MR. JUSTICE R.L. JHANWAR th Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge Post for pronouncement of iudament on 16"' April. 2010 Sd/- T.P. Sharma Judge WIF" Z^ A ^ ^ HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. APPELLANT: (In Jail) RESPONDENT: APPELLANTS: (In Jail) RESPONDENT: APPELLANTS: (In Jail) RESPQNDENT: Criminal Appeal No.24 of 2006 Kondi Bai alias Unnari, W/o Dadu Telgu, aged about 53 years, R/o Bhimkhoj, P.S. & Distt. Mahasamund (C.G.) Versys State of Chhattisgarh, Through P.S. Mahasamund, Distt. Mahasamund (C.G.) Criminal Appeal No.133 of 2006 1. Arjun, S/o Ramji Telgu Gond, aged about 41 years, R/o Abradabri, P.S. Mahasamund, Distt. Mahasamund (C.G.) 2. Punit, S/o Ramchand Telgu Gond, aged about 30 years, R/o Santoshi Nagar, Bhimkhoj, P.S. & Distt. Mahasamund Versus State of Chhattisgarh, Through P.S. Mahasamund, Distt. Mahasamund (C.G.) AND Criminal Appeal No.161 of 2006 1. Phool Singh, S/o Raipa Telgu, aged about 43 years, R/o Bhimkhoj P.S. Mahasamund, Distt. Mahasamund (C.G.) 2. Dinesh, S/o Baratu Ram Netam, aged about 22 years, R/o Panchsheel Nagar, Durg, Distt. Durg (C.G.) Versus State of Chhattisgarh, Through P.S. Mahasamund, Distt. Mahasamund (C.G.) {Criminal appeals underSection 374 oftheCode ofCriminal Procedure, 1973} Present: Mr. J.R. Verma, counsel for the appellants in Cr.A.Nos.24/2006 & 161/2006. [—-—. ||t®yilll|gll^^|ig^||^ (^>) Mr. Rajkumar Gupta with Mr. Jitendra Gupta, counsel for appellant No.1 Arjun in Cr.A.No. 133/2006. Mr. Santosh Kumar Tiwari,counsel for appellant No.2 Punit in Cr.A. No. 133/2006. Mr. Ashish Shukla, Govt. Advocate for the State/respondent. JUDGMENT ( f-A April,2010) The followina iudament of the Court was passed bv T.P. Sharma, J: - 1. Since the aforesaid three criminal appeals are arising out of the same judgment of conviction & order of sentence dated 21-12-2005 passed by the 1 Additional Sessions Judge, Mahasamund, in Sessions Trial No.424/2003, they are being disposed of by this common judgment. 2. Challenge in these three criminal appeals is to the judgment of conviction & order of sentence dated 21-12-2005 passed by the 1st Additional Sessions Judge, Mahasamund, in Sessions Trial No.424/2003, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of offence of formation of unla\/vful assembly having its common object of culpable homicide amounting to murder of Ravi & Dukalu, attempt to commit murder of Shankar and simple injuries by sharp edged weapon to Shanti Bai after committing criminal house breaking by night, armed with deadly weapons; convicted the appellants under Sections 148, 302 read with Section 149 for committing the murder of Dukalu, 302 read with Section 149 for committing the murder of Ravi, 307 read with Section 149, 324 read with Section 149 & 460 of the I.P.C. and sentenced each of them to undergo R.l. for two years & pay fine of Rs.1,000/-, in default of payment of fine to further undergo R.l. for one month; to undergo imprisonment for life & pay fine of Rs.5,000/-, in default of payment of fine to further undergo R.l. for five months; to undergo imprisonment for life & pay fine of t.--'.—— — M l^ •^ Rs.5,000/-, in default of paymentof fine to further undergo R.l. for five months; to undergo R.l. for seven years & pay fine of Rs.3,000/-, in default of payment of fine to further undergo R.l. for three months; to undergo R.l. for two years & pay fine of Rs.1,000/-, in defaultof payment of fine to further undergo R.l. for one month and to undergo R.l. for ten years & pay fine of Rs.2,000/-, in default of payment of fine to further undergo R.l. fortwo months, respectively. 3. Conviction is impugned on the ground that without any iota of evidence, especially evidence relating to formation of unlawful assembly having common object of commission of murder of Ravi & Dukalu, attempt to commit murder of Shankar and simple injuries to Shanti Bai, the trial Court has convicted & sentenced the appellants and thereby committed illegality. 4. Case of the prosecution, in brief, is that both the parties were in inimical terms and on the fateful night of 26-8-2003 between 2-2.30 a.m. (mid night) Shanti Bai (PW-3) - wife of Dukalu (since deceased) was sleeping with her husband & children inside her room after closing the door, Ravi (since deceased) - her brother-in-law was sleeping in another room. Ravi cried for help on which she woke up, opened the door and put on the light at that time, accused Girdhari, Nand Kishore, Babu, Budha Arjun, Potraju, Bada Arjun, Dinesh, Arjun, Phool Singh, Yashoda, Ganesi, Kondi Bai, Santoshi, Daulu, Neelkanth, Punit, Pintu & Vijay were present, they were holding sword, dagger, axe, kukri, spade, rod & stick, they were assaulting Ravi as a result of which Ravi fell down, thereafter, they came towards Shanti Bai (PW-3) and assaulted her also, Bega Raju assaulted her with sword. Dukalu (since deceased) went inside his house and closed the door from inside on which all the accused persons broke the door, entered inside the room and assaulted Dukalu, they 4.'^ chopped hands & legs of Dukalu as of result he fell down and they assaulted Shankar also. Ravi died on the spot. Dukalu was alive for some time. All the accused persons have assaulted them on account of previous enmity. On the date of incident some accused had come from outside. Police came to the village of Shanti Bai (PW-3),then she lodged dehati nalsi vide Ex.P-27. On the basis ofdehati nalsi, F.1.R. was lodged vide Ex.P-16. Dehati merg was recorded vide Ex.P-26. Registered merg was recorded vide Exs.P-17 & P-18 relating to Ravi & Dukalu. After summoning the witnesses vide Ex.P-1, inquest over the dead body of Dukalu was prepared vide Ex.P-2. After summoning the witnesses vide Ex.P-3, inquest over the dead body of Ravi was prepared vide Ex.P-14. Dead bodies were sent for autopsy to Govt. Hospital, Mahasamund vide Ex.P-20A & P-21A. Dr. S. Chandravanshi (PW-13) conducted autopsy on the dead body of Ravi vide Ex.P-20 and found following injuries: - (1) Lacerated wound 6 c.m. x 0.5 c.m. x 0.2 c.m. over right forehead. (2) Lacerated wound 5 c.m. x 0.5 c.m. x 0.2 c.m. over left occipital region. (3) Incised wound 5 c.m. x 1 c.m. x 1.5 c.m. bone deep over left shoulder, humerus bone was visible. (4) Four stab wounds over left arm lower 1/3 posterior & lateral 0.8 c.m. x 0.3 c.m. x 1 c.m. each. (5) Haematoma 6c.m. x 6 c.m. with complete fracture of left forearm middle 1/3, fractured part was freely movabie. (6) Stab wound 0.8 c.m. x 0.3 c.m. x 1 c.m. over right arm middle 1/3 posterior. (7) Compound fracture of lower 1/3 of left lower limb, 8 c.m. above teft ankle, tibia bone was protruding out from fracture. (8) Four stab wounds over right lower limb 1 c.m. x 0.4 c.m. x 2 c.m. each. Mode of death of Ravi was shock as a result of excessive haemorrhage. \ 5. Autopsy on the dead body of Dukalu was also conducted by Dr. S. Chandravanshi (PW-13) vide Ex.P-21 and following injuries were found: - (1) Incised wound 4 c.m. x 0.3 c.m. x 0.3 c.m. over left parietal region. (2) Incised wound 6 c.m. x 1.5 c.m. x 4 c.m. over left forearm lower 1/3. Radius & ulna completely cut, left hand hanging attached with post skin only. (3) Incised wound 6 c.m. x 1.5 c.m. x 4 c.m. over right forearm lower 1/3. Radius & ulna completely cut attached with post skin only. Right hand was hanging. (4) Incised wound 6 c.m. x 1 c.m. x 1 c.m. over right arm middle 1/3 lateral. (5) Incised wound 6 c.m. x 0.3 c.m. x 0.5 c.m. over right h'and palmer side. (6) Incised wound 5 c.m. x 1 c.m. x 1 c.m. over left knee joint medially. (7) Stab wound 0.8 c.m. x 0.3 c.m. x 0.5 c.m. over teft mid skin. (8) Incised wound 5 c.m. x 1 c.m. x 1 c.m. over upper 1/3 of right lower limb lateral. (9) Stab wound 1 c.m. x 0.3 c.m. x 0.3 c.m. over right knee joint anterior. Mode of death of Dukalu was shock as a result of excessive haemorrhage. 6. Injured Shankar was also examined by Dr. S. Chandravanshi (PW-13) vide Ex.P-22 and following injuries were found: - (1) Incised wound 3.5 c.m. x 1.5 c.m. x 1 c.m. over right elbowjoint, bone was visible. (2) Lacerated wound 2 c.m. x 0.5 c.m. x 0.2 c.m. over right forearm upper 1/3 posteriorly. (3) Haematoma 5 c.m. x 5 c.m. over left forearm upper 1/3 dorsally, contusion 5 c.m. x 1 c.m. btackish in colour over haematoma. (4) Contusion 4 c.m. x 1 c.m. over right middle thigh, middle 1/3 laterally, blackish. (5) Contusion 3 c.m. x 0.5 c.m. over right lower limb middle 1/3, blackish, laterally. X-ray of Shankar was conducted. Fracture of middle shaft of left ulna and lateral condyne of right humerus bone were found vide Ex.P-23. 7. Injured Shanti was also examined by Dr. S. Chandravanshi (PW-13) vide Ex.P-24 and following injuries were found:- (1) Incised wound 1 c.m. x 0.2 c.m. x 0.2 c.m. over left parietal region. (2) Incised wound 3 c.m. x 0.2 c.m. x 0.2 c.m. over left arm middle 1/3 laterally. (3) Lacerated wound 0.7 c.m. x 0.2 c.m. x 0.1 c.m. over left middle finger tip. (4) Haematoma 2 c.m. x 2 c.m. over right forearm upper 1/3 dorsally. (5) Haematoma 4 c.m. x 4 c.m.over left forearm middle 1/3 dorsally. (6) Haematoma 1 c.m. x 1 c.m. at the base of left thumb dorsally. (7) Haematoma 2 c.m. x 2 c.m. over left lower limb, 8 c.m. above left ankle joint, laterally. (8) Haematoma 2 c.m. x 2 c.m. overright lower limb, 10 c.m. above right ankle joint, laterally. 8. Both the offences i.e. Crime Nos. 398/2003 & 399/2003 (present offence and offence relating to murder of Ranjeet) were invested by the same investigating officer jointly on account of the offence committed in series. Gandasa was recovered from appellant Arjun vide Ex.P-6C on the basis of his confessional statement Ex.P-5C in S.T.No.423/2003. Blood stained soil & plain were recovered form the spot vide Exs.P-7, P-8 & P- 9. One blood stained stick was recovered from the spot vide Ex.P-10. Blood stained sari & blouse were seized from Shanti Bai vide Ex.P-11. Spot map was prepared vide Ex.P-13. During the course of investigation, one sword & kukhwere seized under neem tree vide Ex.P- 19 in S.T.No.423/2003 (Crime No.398/2003). Seized articles were sent for chemical examination vide Ex. P-28. 9. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Mahasamund, who in turn committed the case to the Court of Sessions, Raipur, from where learned Additional Sessions Judge received the case on transferfortrial. 7. 10.1n order to prove the guilt of the appellants, the prosecution has examined as many as twenty witnesses. The accused were examined under Section 313 of theCr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication on account of enmity. They have examined Jagat (DW-1), Ishwar Prasad Sahu (DW-2), Shyamraj (DW-3) & Amraotin Bai (DW-4) in their defence. Jagat (DW-1) has deposed that on the date of incident, appellant Phool Singh was with him at Kanker. Amraotin Bai (DW-4) - wife of Phool Singh has also deposed same thing. Ishwar Prasad Sahu (DW-2) & Shyamraj (DW-3) have deposed that on the date of incident appellant Arjun was with him at Avradabri. However, in their cross-examination these witnesses have deposed that they were not in a position to say that actually on which date Arjun was with them or Phool Singh was with them. Although they are also witnesses and equal treatmentshould be given to them, but their evidence are full of suspicion and do not inspire confidence. 11.After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellants as aforementioned. 12.We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 13-Learned counsel for appellant Kondi Bai alias Unnari vehemently argued that only Shanti Bai (PW-3) & Shankar (PW-4) have told the name of Kondi Bai and have stated that Kondi Bai was also present, but they have not specifically deposed as to what role Kondi Bai has played. In absence of any part played by Kondi Bai, her mere presence is not sufficient for drawing inference that she formed unlawful assembly along 8 with other accused persons with common object to commit murder of Ravi & Dukalu and causing fatal injuries to other persons, and in furtherance of common object of unlawful assembly, she & other members have caused the aforesaid offence. 14.Learned counsel for the appellants vehemently argued that the appellants were having inimical terms with the complainant party. Deceased Ravi, deceased Duklau & deceased Ranjeet (deceased in another case) were having inimical terms with so many persons, so many criminal cases were pending against them, they were having criminal antecedents and they have been murdered by goondas on the date of incident, but on account of enmity wives of the deceased persons and their close relatives have falsely implicated the appellants. The appellants have not caused any injury, they have not formed unlawful assembly having its common object of committing murder of Ravi & Dukalu and fatal injuries to other persons including Shankar & Shanti Bai. Evidence of highly interested witnesses do not inspire confidence, their evidence are not trustworthy and safe to rely. Learned counsel placed reliance in the matter of Sambhaji Hindurao Deshmukh and others v. State of Maharashtra1 in which the Apex Court has held that in absence of reliable evidence to show that accused with common intent assaulted or caused injuries either to deceased or any of his family members and in case their presence at the site of the incident was doubtful, acquittal of those accused is proper. Learned counsel further placed reliance in the matter of Fagu Manjhi and others v. State of Bihar and another2 in which the Apex Court has held that only three accused, variously armed, chased and inflicted injuries on deceased as a result ofwhich he died, other accused persons were only running behind 1 (2008) 11 SCC 186 2 (2001)108cc 692 the said three assailants and all the injuries sustained by the deceased could be attributed to the actions alleged against the said three assailants, conviction of rest accused who were running is not sustainable. Learned counsel also placed reliance in the matter of Bhagga and others v. State of Madhya Pradesh3 in which the Apex Court has held that material discrepancy relating to presence of accused, role attributed to him and in absence of common object of such accused to kill the deceased, conviction of such accused is not sustainable. Learned counsel relied upon the matter of Boya T. Venkateswarlu and others v. State of A.P4in which the Apex Court has held that in absence of names of accused persons along with accused who has assaulted the deceasedand in absence of evidence relating to role attributed by such accused persons, conviction of such accused persons is not sustainable. 15.0n the other hand, learned State counsel opposed all the criminal appeals and submitted that evidence of Nagi Bai (PW-1), Shanti Bai (PW-3), Shankar (PW-4) & Seema Bai (PW-19) are sufficient for drawing inference that appellant Kondi Bai along with all the appellants has formed unlawful assembly, they were armed with deadly weapons and in furtherance of common object of unlawful assembly they committed murder of Ravi & Dukalu and injuries to other persons. The trial Court has rightly convicted & sentenced the appellants. Learned State counsel placed reliance in the matter of State of Rajasthan v. Teja Ram and others in which the Apex Court has held that close relatives are natural witnesses in absence of independent witnesses at night and the inmates of house are most natural wstnesses and their evidence cannot be 3 (2007)138cc 442 4AIR 2002 SC 2419 5 JT 1999(2)3c 279 10 discarded. Learned State counsel fyrther placed reliance in the matter of GangadharBehera and others v. State of Orissa6 in which the Apex Court has held that principle of falsys in uno, falsus in omnibus is not applicable in lndia,it is only a rule of caution. Relative witnesses are also witnesses only minute scrutiny of their evidence is required. Learned State counsel also placed reliance in the matter of Sachchey Lal Tiwari V. State of U.P.7 in which the Apex Court has held that after altercation killing of deceased by use of fire arm does not fall within Exception 4 to Section 300 of the I.P.C. and same is murder punishable under Section 302 of the I.P.C. Learned State counsel relied upon the matter of State of U.P. v. Dan Singh and others8 in which the Apex Court has held that intent of members of assaulting party can be gathered from number and nature of injuries and arm used by them, an assembly which is initially lawful may subsequently become unlawful. Learned State counsel further relied upon the matter of Lalji and others v. State of U.P.9 in which the Apex Court has held that unlawful assembly once established, corroboration as to overt act or active participation of an accused-member of the unlawful assembly is not required. Mere meeting offive or more persons for carrying out common object involving reasonable apprehension ofviolence, even without doing any overt act, is sufficient to constitute offence. 16. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 17.1n the present case, homicidal death of Ravi & Dukalu as a result offatal ante-mortem injuries, fatal injuries to Shankar and simple injuries by 6 (2002) 8 SCC 381 7 (2004) 11 SCC410 8 (1997)38cc 747 9 (1989)1 SCC437 11 sharp edged weapon to Shanti Bai, have not been substantially disputed on behalf of the appellants, otherwise also established by the evidence of Dr. S. Chandravanshi (PW-13), autopsy report of Ravi Ex.P-20, autopsy report of Dukalu Ex.P-21, injury repori: of Shankar Ex.P-22, X- ray report Ex.P-23 and injury report of Shanti Bai Ex.P-24, X-ray report Ex.P-25, that death of Ravi & Dukalu are homicidal in nature and injuries caused to Shankar & Shanti Bai are fatal to life. 18.As regards complicity of the appellants in the crime in qyestion, according to the case of the prosecution, firstly all the accused persons entered into the house of Ranjeet after committing house breaking by night and committed culpable homicide amounting to murder of Ranjeet as of result Crime No.398/2003 was registered. After committing murder of Ranjeet, all the accused persons went to the house of Ravi & Dukalu and committed their murder (the present offence) as of result Crime No.399/2003 was registered. Both the offences were investigated simultaneously by the same Investigating Officer and charge sheet was filed before the same Magistrate who had committed the cases to the Court of Sessions. 1 Additional Sessions Judge, Mahasamund had tried both the sessions trials viz., S.T.Nos.423/2003 & 424/2003 (the instant case) and convicted & sentenced the appellants in both the sessions trials. Learned Additional Sessions Judge has convicted & sentenced the appellants herein in S.T.No.423/2003 for commission of murder of Ranjeet and for attempting to commit murder of Nagi Bai after forming unlawful assembly armed with deadly weapons and after committing house breaking by night. After commission of the aforesaid offence, the appellants herein have committed the present offence i.e. murder of Ravi & Dukalu. Witnesses in both the sessions trials have 12 substantially deposed against the appellants, only their number and chronological order of documents are different. 19.Cr.A.Nos.35/2006, 129/2006 & 162/2006 have been filed by the appellants herein against their conviction recorded in S.T.No.423/2003 which are being disposed of by a separate judgment. 20.Conviction is substantiatly based on the evidence of eyewitnesses. Nagi Bai (PW-1) - mother of deceased Dukalu, sister of mother of deceased Ravi and mother of another deceased Ranjeet, has deposed in her evidence that between 2-2.30 a.m. at night while she was sleeping in her house, appellant Punit along with other accused persons Vijay, Nand Kishore, Santoshi & others came to her house i.e. house of Ranjeet where they assaulted Ranjeet, herself & wife of Ranjeet Seema Bai (PW- 19). Ranjeet died on the spot and then she fled towards the village. Thereafter, the appellants & accused persons went to the house of Dukalu where they caused serious injuries to Dukalu and killed Ravi. 21-Seema Bai (PW-19) - wife of deceased Ranjeet has deposed in her evidence that at the time of incident, appellants Arjun, Kondi, Phool Singh, Punit & Dinesh along with other accused Girdhari, Nand Kishore, Chinna, Neelkanth, Daulu, Dharmu, Kodu Raju, Baiga Raju, Babu, Pintu, Ganesi, Yashoda & Santosh came, they were holding dangerous weapons, they came inside their house after jumping walt and they assaulted Ranjeet & herself and then she fled towards the house of Dukalu. The accused persons chased and reached to the house of Dukalu where they killed Ravi and caused fatal injuries to Dukalu, Shankar & Shanti Bai. 22.Both the witnesses viz., Nagi Bai (PW-1) & Seema Bai (PW-19) had witnessed first part of the incident. In the present case, injured witness - ,1 13 @ Krishna alias Krishna Kumar (PW-2) - brother of Ranjeet has deposed that on the date of incident he was sleeping in the house of Ranjeet, appellants Arjun, Phool Singh, Dinesh & other accused persons assaulted Ranjeet, one person took him to a safe place (field) and thereby he was saved. 23.To prove the second part of incident which is the dispute in the present case, Shanti Bai (PW-3) - wife of Dukalu, who was present in the house of Dukalu at the time of commission of incident, has deposed that on the fateful night Dukalu& Ravi were present in the house, between 2-2.30 a.m. (mid night) accused Girdhari, Nand Kishore & others started causing injuries to Ravi on which Ravi cried for help (^TT-'^T); at that time, Girdhari, Nand Kishore, Babu, Budha Arjun, Potraju, Bada Arjun, appellant Dinesh, appellant Arjun, appellant Phool Singh, Yashoda, Ganesi, appellant Kondi Bai, Santoshi, Daulu, Neelkanth, appellant Punit, Pintu & Vijay were present in her house; they were holding sword, rod, dagger, naanchaku, stick, axe, betel axe & bhujali; they assaulted Ravi; when she came out of her room and put on the light, they assaulted her also. Baiga Raju assaulted her over her left hand. Dukalu closed the door from inside on which the accused persons broke the door, entered into the room and assaulted Dukalu. The accused persons chopped hands & legs of Dukalu. They also assaulted Shankar and chopped his hand. They also assaulted her mother-in-law Nagi Bai. 24.1njured witness Shankar (PW-4), who was sleeping in another room of deceased Dukalu's house, has also corroborated the evidence of Shanti Bai (PW-3) and has admitted the presence of appellants Punit, Phool Singh & other accused persons holding weapons and assaulting Dukalu & Ravi. He has stated that the accused persons assaulted him also. 14 25. Kanta Bai (PW-5) - wife of deceased Ravi has substantially corroborated the evidence of Shanti Bai (PW-3) and has deposed that the accused persons have assaulted her husband Ravi on which he shouted ^TT-^TT for help. Appellant Punit, accused Neelkanth, Daulu, Nand Kishore, Girdhari, Chinna, Pintu, Babu, appellant Dinesh & Ganesh were assaulting her husband with