HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon’ble Shri Raieev Gupta. C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 627 of 1991 Budga @ Baisakhu & Others Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration ,SQIL- t SunilKumarSinha t 1/ Judge \ HON’BLE SHRI JUSTICE RAJEEV GUPTA \ (Baa/w?j . ‘ / Post for Judgment :g5/08/201 0 W / 2 Criminal Appeal No. 627 of 1991 14 Baisakhu Ram S/o Nanku Ramkahra, aged 4O years, R/o Navapara, Raigarh (MP) (Now Chhattisgarh) Santosh @ Bahursingh S/o Chamarram, aged 18 years, R/o Jhopadipara, Navapara, Raigarh (MP) ’(Now Chhattisgarh) 16 Chhedan S/o Mohan Kahga, aged 20 years, 17 Madholal S/o Mohan Kahra, aged 18 years Appellants 16 & 17, R/o Navapara, Raigarh (MP) (Now Chhattisgarh) Versus SPONDENT The State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure, 1973) Appearance: Mr. Abhay Tiwari, Advocate for appellant No. 1, 2, 4, 6 & 13. Mr. Govind Ram Miri, Advocate for appellant No. 3, 5, 7, 9, 10, 11, 12, 14, 15, 16 & 17. Mr. J.A. Lohani, Panel Lawyer for the State. JUDGMENT (25082010) Following judgment of the Court was delivere by Sunil Kumar Sinha, J. (1) This appeal is directed against the judgment dated 26th of June, 1991 passed in Sessions Trial No. 121/90 by the Second Additional Sessions Judge, Raigarh. (2) appellant No. 4- Puklal and appellant No.6- Bhagau have been convicted u/ss 148 & 302/1 49 IPC and sentenced to undergo R.l. for‘3 months and r'j D Appellant No.1- Budga @ Baisakhu, appellant No. 2— Firatram, l l l l l l @ ‘ RE d 3 @ Criminal Appeal No. 627 of 1991 imprisonment for life; and rest of the appellants have been convicted u/ss 147 & 302/149 IPC and sentenced to undergo R.l.. for 3 months and imprisonment for life with a further direction to run the sentences concurrently. (3) Appellant No.8— Kathindas died during the pendency of the appeal. His name has ben deleted from the cause-title of the appeal and the e appeal tiled on behalf of appellant No.8 has been dismissed as abated vide order dated 6.5.2010. (4) The facts, briefly stated, are as under:- The appellants and the deceased namely Farukh Ahmed were residents of the same locality in the outer area of the township of Raigarh. They had constructed a water—tank in front of the house of deceased—Farukh Ahmed by raising funds from the persons of ‘ said locallty. Appellants- Budga, Bhagau, Firatram, Chamar, Sukharu and Samaru etc. used to stop the deceasedfrom taking water from the said tank. ln this regard, the deceased had lodged a report on 15.4.90 in City Kotwali, Raigarh which was recorded as Roznamchasahna No. 1083 (EX.-P/26). The allegations are that on 16.4.90 at about 9—9.30 p.m., the appellants formed an unlawful assembly, participated in rioting with deadly weapons, and in prosecution of the common object of that assembly, they assaulted the deceased with farshi, tabbal, bhujali and dandas. The incident was witnessed by Udho Singh (PW-1), Satyendra Kumar Singh (PW-2), Jaibunnisha (PW-‘1 7) and Mustak Ahmed (PW-18). Udho Singh lodged the First Information Report (Ex.-P/1) at about 11.00 p.m. on the same day. Appellant No.1- Budga, appellant No.2- Firatram, appellant Ne.4- Puklal and appellant No.6 Bhagau are named in the F.I.R. lt is also stated in the F.l.R. that Bhagau was holding a farshi, Puklal was holding a fabbal, Budga was holding a bhujali and remaining 10-12 persons, 4 @ including Firatram, were holding Iathis. The deceased was taken to the hospitai, where he was examined by Dr. Anand Gupta (PW—22), who prepared the MLC report Ex.-P/39. He noticed the following external injuries onthe person of injured- Farukh Ahmed ‘(since deceased):- (i) Incised wound 10 cm x 1/2 cm on the middle of right thigh; (ii) .. Incised wound 21/2 cm x 1/2 cm on the left arm; (iii) Fracture on middle portion of left humorous; (iv) Incised wound 12 cm x 31/2 cm on the right knee causing cut injury on tibia; (v) Incised wound 20 cm x 5 cm on the left knee having compound fracture on bone of knee; (vi) Incised wound 11/2 cm x 1/2 cm on the left wrist; (vii) Incised wound 5 cm x 3 cm on the lower portion of left thigh; (viii) Incised wound on the middle finger of right hand; (iX) Criminal Appeal No. 627 of 1991 Two incised wounds 15 cm x 5 cm and 12 cm x 3 cm just above injury No.5 & (x) Incised wound 4 cm X 1/2 cm x skin deep on the back portion of left thigh. According to the MLC report, injury No.3, 4, 5 & 9 were grievous injuries and the other injuries were simple injuries. Except injury No.3, other injuries were caused by sharp edged object within the duration of 12 hours. The deceased was admitted in the hospital as surgery was to be performed on his left arm. In fact, his molars compression plating was to be done. On 28.4.90, the said surgery was being conducted by a team of Doctors.headed by Dr. Sharad Awasthi (PW-20). lt is on this date, the deceased succumbed to the injuries on the operation—table itself. After information of death, the dead body of the deceased was sent for its post-mortem examination to Dr. Dinesh Chandra Sethiya (PW- 21), who prepared his report Ex.-P/37. According to the post- mortem report, he could not ascertain the cause of death and 5 Criminal Appeal N0. 627 of 1991 ’ preserved viscera for its chemical analysis and histopathological examination. However no such report could be filed. During the course of'investigation a dying deciaration of the deceased was also recorded by the Executive Magistrate on 17.4.90, in which, the deceased toid about the presence of many accused person but he very specifically mentioned the names of appellant-Budga, Bhagau who used farshi and bhala against him and he made general statement that appellant— Nanki and other appellants assaulted him by Iathis. (5) The case of the prosecution was based upon the eye—witness account of Udho Singh (PW—1), Satyendra Kumar Singh (PW-2), Jaibunnisha (PW-17 — wife of the deceased) and Mustak Ahmed (PW-18 — son ’of the deceased). (6) The learned Sessions Judge relied on the testimonies of the above eye—witnesses and convicted & sentenced the appellants as aforementioned. (7) Mr. Abhay Tiwari & Mr. Govind Ram Miri, learned counsel appearing on behalf of the appellants, mainly argued that the eye- witnesses 'are not reliable; their versions are contradictory; the involvement of the appellants, who are not named in the F.l.R., appears to be doubtful. Even otherwise also looking to the nature of evidence against the appellants, who are not named in the F.l.R., they cannot be convicted with the aid of Section 149 IPC. They also argued that looking to the facts and circumstances of the case, particularly looking to the nature of injuries sustained by the deceased and that the deceased died on the 13th day of the incident that too on the operation table, an offence t u/s 3b2 IPC would not bemade out‘and the appellants who'are named in ~ i i 6 Criminal Appeal N0. 627 of 1991 @ the F.I.R. would be liable for punishment under some lesser Section l preferably Part- i or ii of Section 304 IPC. (8) On 'the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the SessiOns Court. (9) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (10) Jaibunnisha (PW-17) is wife of the deceased. She deposed in a general manner. She deposed that on the fateful night, when they were going to lodge the report, she saw that the appellants were standing in front of her house. They were accompanied by Udho Singh (PW-1). Appellants started quarrelling with them. Appellant— Budga was armed with farsha, appellant— Bhagau‘ was armed with gadasa & appellant- Firatram was armed with tabbal and the rest of the appellants were armed with dandas. This was the first part of the story. She further r‘ deposed that as soon as they reached near the rice-mill, the appellants all of a sudden, came there and started assaulting her husband. Her husband received many injuries and became unconscious. ln cross- examination vide Para-19, she admitted that when she reached to her husband, she saw that the assailants were not there and her husband was lying at a distance of 15-20 steps from the road. It was argued before us that the above admission of PW—17 would show that she did not accompany her husband from their house and she reached to the place of occurrence after the assault was'over, therefore, she could not see any assailant there and she found her husband lying near the road in injured x ‘7 l i l 7 Criminal Appeal No. 627 of 1991 condition. The said argument advanced by learned coun‘sel for the appeliants cannot be accepted. It is the entire evidence of a witness which has to be seen and not that a portion of it in which a casual statement has come in the process of cross—examination. After going through the contents of the entire evidence of this witness, it cannot be said that she was not present at the place of occurrence and she could not see the assailants assaulting her husband. However, in general she deposed regarding all the appellants, but she only took the names of appellants Bhagau, Firatram and Budga. The presence and participation of these 3 appellants in the quarrel was fullyestablished by her evidence. She categorically stated that Budga was armed with tabbal, Bhagau was armed with farshl' and Firatram was armed with bha/a and they assaulted her husband by the said weapons and rest of the persons assaulted him by dandas but she has not taken the specific names of those persons. (11) Mustak Ahmed (PW-18) is son of deceased Farukh Ahmed. He was aged about 12 years. He deposed that on the fateful night his father was going to lodge the report in police station. He was accompanying his father. When they reached near the corner of rice-mill, the accused persons came behind them and assaulted his father. Udho Singh (PW-1) was also accompanying when they were going to police station. He specifically deposed that Bhagau assaulted his father 'by bhuja/i and Budga assaulted by tabbal and the other appellants assaulted by Iath‘is. He then added the names of the appellants, who also assaulted his father by lathis.. They are Puklal, Chhedal, Chamarram, Nanki, Teras, Samaru, Khikram, Madhilal, Firat, Kathindas, Sakharu, Itwari and Santosh. He has ’ not given description as to how his father was assaulted by the above 7%7 l 8 Criminal Appeal No. 627 of 1991 persons. In his case diary statement (Ex.-D/4), he has mentioned the names of Bhagau and Budga as the main assailants and has stated that the other appellants also came there. But the statement about other appellants is in general manner. He was unable to depose that except the above 2 appellants namely Bhagau and Budga, who were holding bhujali & tabbal, how the other appellants assaulted the deceased. He has been contradicted with his case diary statement but the contradictions are not very material. On appreciation of the entire evidence of this witness, it was clear that he made specific allegations against Bhagau and Budga with description of arms with them but his evidence about other appellants was of general nature. lt comes in his evidence that firstly the , above 2 appellants came to his house and then the other appellants also came there and then the deceased and his family member decided to go to police'station to lodge the report but they were chased by the above persons, on.which, the deceased ran away and was followed and then he was assaulted by the accused persons. He also deposed that after the incident‘was over, Udho Singh (PW-1), who was accompanying them, was sent to lodge the report in the police station. (12) Satyendra Kumar Singh (PW-2) is the child witness. He deposed that on the fateful night at about 9—10 p.m., when he was present in a betel-shop, he heard commotion from insurance hospitaLarea. He went towards that site and saw that Bhagau, Budga, Firatram and many other persons were assaulting the deceased. Further he added that Chhedal, Nanki, Samaru, Sakharu and ltwari were also assaulting the deceased. He admitted that he cannot tell as to who was armed with which weapon. He denied about giving any statement to the police and emphasized that 9 Criminal Appeal No. 627 of 1991 @ he is stating all these things for the first time before the Court. He further admitted that he knows the names of Bhagau, Budga & Firatram and he does.not know the names of other appellants. We note that his ‘161 statement (Ex.-D/2) was recorded on 16.5.90 i.e. after one month of the incident. His court evidence was recorded on 2nd January, 1991. Though he identified appellants Nanki, Samaru, Sukharu and Itwari before the court, but we doubt that he would be able to identify them after 8—9 months, whom he was not knowing prior to the incident. No Test identincation Parade (T.I.P.) was conducted by the police for identification of the accused persons. Therefore, in appreciation of his evidence, we find his evidence reliable for appellants Bhagau, Budga & Firatram and , hold that it was not established by his evidence that the other appellants also participated in the incident. (13) Udho Singh (PW-1) is the first informant. He also claims to have witnessed the incident. He has also taken the names of 3 appellants only i.e. Bhagau, Budga & Puklal. He deposed that Bhagau was armed with farsha, Budga was armed with tabbal and Pukial was armed with some iron weapon. According to this witness, when the deceased was going to the police station along with his family members, he also accompanied him. When they reached near the corner of the rice-mill, the appellants chased them, on which, the deceased left his family members at that place and ran towards the insurance hospital. The appellants also ran towards that side and they assaulted the deceased. (14) Presence of Udho Singh (PW-1) is admitted by the wife and son of the deceased. lt is also admitted by them that after the incident Udho l a 10 Criminal Agpeal N0. 627 of 1991 @Q Singh went to lodge the First Information Report. Mustak Ahmed (PW-18) very specifically deposed that when the marpit was over and assailants had left the place of occurrence Udho Singh was sent by them to the police station to lodge the F i R Therefore It Is clear that Udho Singh was having full knowledge about the incrdent and the participants, as he met with 2 other eye-witnesses i.e. wife and son of the deceased before lodging the F.l.R. The contents of the F.l.R. (Ex.-P/1) would show that he only mentioned the names of Bhagau, Budga, Puklal and Firatram in the I F.l.R. and has also given details about the weapons carried by them. Though he further mentioned in the F.I.R. that the above appellants were accompanied by 10-12 persons but he did not mention their names. The , case of the prosecution was that the appellants, deceased and the witnesses all were residents of the same locality and most of them were workers in jute-mill. Therefore, it cannot be said that the appellants were unknown to Udho Singh or other eye-witnesses. Therefore absence of names of the other appellants in the F.l.R., promptly lodged by an eye- witness; who was also briefed by 2 other eye—witness, was fatal to the prosecution and the presence and participation of the other appellants except the 4 named in the F.l.R. becomes doubtful. (15) Udho Singh (PW-1)‘deposed that when the assailants came near the corner of the rice-mill, deceased- Farukh Ahmed left his wife and son at that place and ran towards the insurance hospital, near which the incident took place. Jaibunnisha (PW-17) also admitted in her cross— ‘examination vide Para-19 that when she reached to the place of ' occurrence, she saw that her husband was lying at a distance of 15-20 i steps from the road in injured condition and the assailants had left the ’kj, 1 1 Criminal Appeal N0. 627 of 1991 place of occurrence. This fwther creates a doubt that the 2 eye-witnesses namely Jaibunnisha (PW-17) and her son Mustak Ahmed (PW-18) were‘ in fact, able to see the persons who actually participated in the assault of the deceased, but in overall appreciation of the entire evidence of these witnesses as also the contents of the dying declaration (Ex.—P/21) participation of the 4 appeiiants, named in the F.l.R., was fuiiy established. (16) ln Masalti —Vs- The State of Uttar Pradesh, AIR 1965 SC 202, the Supreme Court held that “it is true that under the Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. But where a criminal court has to deal with evidence pertaining to the commission of an offence involving‘a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it cannot be treated as irrational or unreasonable. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give evidence. But sometimes it is useful to adopt a mechanical test". By applying the above test also on due appreciation of the evidence of the above witnesses, we are of the opinion that the involvement of the 4 appellants, who are named in the F.I.R. i.e. appellant No.1- Budga @ Baisakhu, appellant No. 2 — Firatram, appellant No.4 - Puklal & appellant No.6 — Bhagau, was fully //\ established by the prosecution. iHowever, the prosecution failed to 12 Criminal Agpeal No. 627 of 199] @ ¥ establish the involvement of the other appellants in the said incident of assault of the deceased or that they were the members of the unlawful assembly or they participated in rioting. (17) Now we shall examine as to whether the conviction and punishment awarded to the above 4 appellants was justified or they were liable for punishment u/s 304 IPC as claimed on their behalf. (18) Section 304 IPC provides the punishment for culpable homicide not amounting to murder. it draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the , Exceptions in Section 300 and cases in which the crime is culpable homICIde not amounting to murder that means where there is knowledge that death Will be a likely result but the Intention to cause death or bodily Injury likely to cause death is absent The first part of Section 304 applies where there is intention, whereas the second part applies where there is knowledge but the impoitant thing is that before holding the accused guilty under any part of Section 304 it has to be observed that a death must have been caused by him under any of the circumstances mentioned in the five Exceptions to Section 300, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation Knowledge of consequences which may result in domg an act is qUite different than the intention whrch denotes that a particular consequence should ensure. For attracting the former part of Section 13‘ Criminal Appeal N0. 627 of 1991 304, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. (19) In the present case, we find that the quarrel took place on account of taking water from a tank constructed by the fund raised by the people ' l of that locality. The injuries received by the deceased were not on the vital parts of his body and most of the injuries were on arms etc. The deceased was admitted in the hospital and he died during the course of his treatment on the 13th day of the incident. Even the Autopsy Surgeon could not ascertain the cause of death. The death, in fact, occurred on the operation-table on 28.4.90 when the operation was to be conducted for molars compression plating on the left arm of the deceased. None of the Doctors have opined that the injuries sustained by the deceased were likely to cause death in ordinary course of nature. In the above facts and circumstances of the case, in our considered view, the intention to cause severe bodily injuries has to be necessarily imputed to the above 4 appellants who assaulted the deceased in the above manner and they would be liable to be convicted under Section 304 Part-l IPC. (20) For the foregoing reasons, the appeal filed by the appellants is partly allowed. The conviction of the appellants u/ss 148 & 302/149 and 147 & 3Q2/149 IPC are set-aside. Except the 4 appellants, namely appellant No.1- Budga @ Baisakhu, appellant No. 2 — Firatram, appellant No.4 - Puklal & appellant No.6 — Bhagau, all other appellants are l v‘ 14 Criminal Appsal No. 627 of 1991 acquitted of the charges framed against them and the above 4 appellants are convicted u/s 304 Part-l /34 IPC and sentenced to undergo R.l. for 10 years. A perusal of the records Would show that the above 4 appellants were sentenced on 26‘“ of June, 1991 and were directed to be released on bail by this Court on 18.7.2001 and they have already undergone for. more than 10 years. Therefore, they are not required to surrender in this matter. Their bail bonds are cancelled and sureties stand discharged. Sd/— . SUNEKUMARSIN'HA. i ‘ r Judge 1; i vatti