SB: HON’BLE SHRI DHIRENDRA MISHRA, J. APPELLANTS 1. Sukhdev Ram, son of Rati Ram Urano, aged about 49 years, occupation: Nandamali, Bhodapara, Police Station Darima. Distt. Surguja (C.G.) _ Agn'cuhurist, residont of village 2. Shrinarayan, Son of Sukhdev Ram, aged 7 about E2 years, occupation Agriculturist, - residen : of village Nandamali, Bhodapaxa, Police Station, Darima, District Surguja (C.G.) ’ ‘ 3. Tapesh‘vari Ram, son of Sukhdev Ram, « aged about 30 years, occupation Agricu11 urist, resident of village Nandaniali Bhodapara, Police Station Darima, Distt. SurgujaICG) , 4. Pilibai, Wife of Sukhdev Ram, aged about 47 years, occupation Housewife, resident of villa‘e nandamali, Bhodapara, Police Station Darima, Distt. Surguja (CG) 5. Mohar ani, wife of Ramdev Ram, aged ' 'about 8 years, occupation Housewife, residen of village Badedamali, Police Station Darima, District Surguja (CG) 6. Heera ani, wife of Saltu Urano, aged about O years, occupation Labourer, residen of village Damali, Police Station Darim Distt. Surguja(CG) Vs.‘ RESPONDENT State f' Chhattisg‘arh, through Police ‘ Station Darima, District Surguja (C.G.) 7-9—2007 , Shri V.K. Pandey, Advocate r the appellants. Shri G.K. Beriwal, Addl. Pub ic Prosecutor, for the State. [/nl/r‘ 3 2. This appeal is directed against the judgment of conviction and §order of sentence dated 15—12-2004 passed in S.T‘ No. 245/2004 iwhereby learned 5m Additional Sessions Judge (FTC), Ambikapur has "convicted the appellants and sentenced them under Section 148 and Section 304 Part Ilvread with Section 149 of I.P.C. and sentenced egctx of them to undergo RJ. for 8 months and 7 years respectively. Accused Shrinarayan, Heeramani Bai and Tapeshwari have also been; convicted‘for offence under Se ction 323 of I.P.C. and sentenced to undergo R.I.$ 6 months. A11 the sentences are directed to run concurrently. 3. As per the prosecution case, Jaduram (P.W. 1) lodged report of Ex. P—19 in RS. Darima, District Surguja on 14-4-2004 mentioning therein that on 1374-2004 at ab t 8 PM. they were celebrating Paska festival in the house of his uncle Jagdish, at that time, the accused persons came to the hous of his uncle and started blaming him and his elder brother ’I‘ullu since deceased) that they’called them sorcerer and thereafter all f them caught him and dragged him to the threshing field of Su deo and started assaulting with lathi, axe and fists. He shouted f r rescuing whereupon his elder brother ’I‘ullu rushed there and tri also started assaulting him by l and axe. Hearing the noise his father Nadhiyadas, his wife, his Bhabhi and his uncle Jagdish reached there and intervened. He has sustained injuries over his head, left wrist and on his back whereas his brother Tullu has sustained injury over his head, h d, chest and back and blood was oozing and Tullu died while he was eing taken to hospital in front of the house of Kushal Uraon. to intervene. At that time, they i o a e ‘ prepared vide Ex. P—l6, spot map of Ex, P-20 was prepared. Dead body of ’Tullu was sent for aut y to Government Hospital, Ambikapur Where‘Dr. F.H:'Firdosi W. 9) conducted post mortem and submitted his report of EX. P . Complainant Jaduram was also sent for medical examination P.H.C. Darima where doctor examined him and his injury report s EX. P-31. On the basis of the memorandum of accused persons o Ex. P-2 to Ex. P—7, axe was seized froin Sukhdev, Pilibai and Shr narayan Vide Ex. P-9, P-10 and P—12 whereas lathis were seized fro Tapeshwari Ram, Moharmani V and Heeramani Vide Ex. P-l 1, P- 13 d Ex. P—14. 5. After completing the investi n, charge sheet was fiied in the Court of Judicial Magistrate Fir Class, Ambikapur who in turn committed the case to the Sessions Judge, Ambikapur from where learned Additional Sessions Judge r ceived the case on transfer for trial. 6‘. During trial, 9 witnesses were xamined. The accused persons 313 of Cr.P.C. denied the circumstances appearing against th m in the prosecution case and submitted that they are innocent in their statements under Sectio have been falsely implicated. However, the trial Court after hear‘ g the learned counsel for the parties convicted and sentenced the ppellants as mentioned above. 7. Learned counsel for the app ants submits that no, specific allegation has been made against of the accused persons about any overt act of assault on the de eased and the witnesses have made omnibus allegations that the reached the house of Jagdish &V‘¥_~r 1 ( o s . — 9 g 'o s d XI—HC—22 _ amt m mmarhw°l°3bw /D ‘7 200 W” ‘ 31W a?! farm"m wasmax sea WW? $ met? W am ”m2”! reign g 4. During investigation, inquest over the dead body of ’I‘ullu was XI—HC-22 armed with axe and lathi, they were offered liquor and all of a sudden dispute arose between them on the pretext of’practicing Witchcraft and thereafter they started assaulting firstly to Jaduram and when ’I‘ullu came to mediate, he was also assaulted by them. He further submits that there ris nc evidence that accused persons reached there with a common object of assaulting the deceased or the complainant as from the evider ce available on record, it would be evident that the dispute arose all 3f a sudden on a spur of moment when afteraconsuming liquor, thley were engaged in verbal duel regarding calling them sorcerer. 8. On the other hand, learned counsel for the State supports the impugned judgment. 9. ‘ I have heard the learned counsel for the parties. I have \ perused the record of the trial Court as also the impugned judgment. a 10. P.W. 9 Dr. F. H. Firdosi who has conducted post mortem over ‘ the person of the deceased hasfoumd a lacerated wound of size 4 cm x 1 ‘cm X l cm placed over left sicle of temporal region, beneath the above injury blood was clotted. He found that the bone of left temporal region was depressed ani fractured and size of injury was described as 2 x V2”. He also obsa‘rved that the brain under the left temporal part was damaged and b ood was clotted and size of injury has been described as 6 x 3" and no other injury has been found. It has been opined that the cause of death was grievous injury over the head which was caused 24 hours before the post mortem. The injury was ante mortem in nature and tae same was caused by hard and k111n+ nkinn+ ’T‘lr‘p xvpannne nf nff‘pnt “I. e ‘k ‘ XI—HCv22 were examined by him and hs opined that the injury Teceived by above weapons. Thus homicidal Tulluram could be caused by tht: death of ’I‘ulluramis established. 11. P.W. 1 Jaduram is injured eye—Witness. He has sustained lacerated wound over the right side of his head (parietal reg’on) of “size 2" x1/2"x1/2”, a contusion cver left side of back and another contusion - over left elbow of sze 1/2”x 1/2”. The injury report of Jaduram has been admitted by t e accused pe’rsons under Section 2&4. This witness has stated that he identifies the accused persons as also the deceased Tulluram is his brother. The incident is of 5 months back. His Bhabhi Ruj ani was sick, upon which they apprehended that she is victim of witchcraft, on account of this, the accused persons armed with lath and axe came in the night while started assaulting. Shrinath assaulted him over his head, st h and leg, Heeramani pulled his hairs whereas accused Tape assa lted him oVer his leg Rest did not assault him Thereafter all to ether assau‘ited Tulluraln Who assaulted w1th What weapon, he ould not see After assaulting, the accused persons fled from there Apart from his fannly Imembers, Shiva had also seen the meident. He and his brother weie going to hospital, however his brother fell n the way and died. In the eross- examination, he has admitted the accused persons are close relatives and the house of acc sed persons is situated some 2 Furlangs from his house. It is tru that on the date of incident they were celebrating Paska Festival it is also true that on the eve of festival, they consume liquor and n the influence of liquor they sing and dance and on the date of inc dent, he and Tullu had'consumed they were sitting in the home w o c d t t d XI-HC—22 n the house of Jagdish, accused persons reached there and Jagdi h bffered the accused persons i pretext of practicing Witchcraft a dispute ensued between them, however he has denied the sug'gesti n that there was scuffle between house of Jagdish, Sukhdev and Plibai were holding axe and rest persons were holding lathi. 12. P.W. 2Nadhiya Ram is a wi ess of the fact that ’I‘ulluram and Jadurain sustained injury and the Were injured and Jadu toldhim that accused persons beat him an 'I‘ullu died‘on way While he was being taken to hospital. lé. 7 P.W. 3 Jagdish has not sup orted the case of the prosecution and has turned hostile. P.W. 4 LaXIni Bai is wife of deceased ’I‘ulluram. She has stated that they ad gone to the house of Jagdish on the eve of festival to consume iquor. At that time, the dispute arose and Sukhdev took Jadu towards threshing field and started assaulting him by axe. n ’I‘ulluram went there to mediate, all of them assaulted him. Sukhdev was having axe. Rest of the accused persons were having lathi. Her husband sustained her husband however he died P.W. 5 Shiva has also deposed , xiii x NW injury over his head. She rescu while he was being taken to hospi in the same line. 14. The trial Court relying up 1Bai the statement of complainant W. 4 and Shiva P.W. 5 has ‘ r 7 e . e t . o convicted all the appellants under Section 148 and Section 304—II read‘with Section 149 of I.P.C. and has also convicted appellants Shrinarayan, Heeramani Bai and Tapeshwari under Section 323 of I.P.C. for causing simple hurt to complainant Jaduram. r 15. It is settled law that the essential ingredients necessary to must be present in cases falling under Seetion 148 of I.P.C. and i:1 the absence of any satisfactory evidence to prove the formation ‘constitute an unlawful assembly of an unlawful assembly with a ‘ cbmmon obj‘ect to commit crimes the accused though more than five in number can only be held liable for their individual acts and not collectively. 16. In the instant case, froin the statement of witnesses particularly the statement of injuiied witness P.W. 1 Jaduram, it is evident that the complainant party / had gathered in the house of their relative on the eve of festival and 1here'they were consuming liquor. The accused persons who are also near relatives of the complainant party also reached/there and they were also offered liquor by the host Jagdish and during this time, the connection with practicing witchcr‘aft. Even Laxmi B’ai (P.W. 4), wife of the deceased has stated that dispute ensued between them in. on. the eve of festival they had gathered in the house of Jagdish fcr consuming'liquor. When dispute arose, Sukhdev took Jadurarn towards threshing field and there he assaulted him and when her h dsband Tulluram went there to mediate, all of them assaulted him. Thus from the evidence available on record, it is clear that the per the accused persons constituted liquor. There is no evidence that sons had gathered for consuming unlawful assembly and with intent the house of Jagdish. Complainal appellant Sukhdev to the threshin 360 ft. Jaduram with an axe according .u ‘1‘ Shrinaray‘an, Heeramani Bai and ’ Whén Tulluram went there for meq them assaulted him. In these c; \‘appellants-under Section 148 of LP.‘ ~ The appellants have been co .a: as per site plan oftEx. P— 17. read with Section 149, I.P.C. The 1e; impugned judgment has held t in the complainant had gathered drinking to celebrate festival on th Jagdish. As already mentioned,r‘the under the influence of liquor and Court, there was no evidence. ava Court to reach to the conclusion thz assembly in prosecution of their t deceased Tulluram. In these circum be convicted with the aid of Sectio: any evidence regarding common ol each of them could be held liable collectively. The Apex Court in thaL Sanjiv Kumar and others reported has held thus:— on to commit crime they went to 1t Jaduram was taken aside by g field which is at a distance of 20 and Sukhdev alone assaulted to Rujhani Bai and accused [‘ape as per version of Jaduram. iation, the allegation is that all of rcumstances, conviction. of the C. cannot be sustained. nvicted under Section 304 Part II " 1rned trial Court in para 13 of the hat the appellants and ‘the house of Jagdish for eating and e basis of statement of the host dispute Erupted all of a sudden therefore, in the. opmion of this ilable on retard before-the trial. it thelappellants formed unlawful {5 . a: (g. :ommon object of assaulting, the stances, the appellants could not 1 149 of 1.P.C. in the absence of" )ject of assaulting Tullurarn and for their individual acts and not matter of State of Punjab —v- in AIR 2007 SC 2430, in para 8 ,iaF—JL “’V’W‘~‘ The pivdtal questién I.P.C. Said provision has liability which is the sine emphasis is on the carnmt intention. Mere presence ir render a p’erson liable unless he was actuatd by that comn of those set out in Section l unlawful assembly is not pro be cénvicted with the help of to determine is whether the a. persons and whether the said of the common objects, as s: be laid down as a general p overt act is proved against e member of unlawful assembl member of an assembly “8. is applicability of Section 149 its foundation on constructive qua non for its operation. The )n object and not on common an unlawful assembly cannot there was a common object and 10n object and that object is one 41. Where common object of an ved, the accused persons cannot Section 149. The crucial question ssembly consisted of five or more persons entertained one or more tec1f1ed 1n Secuon 141 It cannot ‘oposrtiqn of law that unless an person, who is alleged to be a y, it cannot be said- that he is a only thing required 1s that he' should have understood that the assembly was unlawful and was llkely to commit any o the acts which fall w1th1n the purview of the acts which 141. The work ‘object’ mea order to make it ‘common’, words, the object should compose the assembly, that of it and concur in it. A c express agreement after m non-leans necessary. It may V fPw mpmherg of the gsnpmhl t within the purview of Sectio the purpose or design and, in must be shared-by all. 'I other common to the persons, who r to say, they should all be aware on object may be formed by l consultation, but that is by; formed at any stage by all or a 14A Hm: n+hp1- mpm n mm, kg M T e s f n b i i m o a u n, MW XI-HC 78 . Cw- ANO‘ m9vlov 200 mm (Wu) mm 'FFL WWW 3211mm WWW thereafter. confmu‘nity may differ in their obje( each member of what is of their common object information t9 have to be strictly construed as attain the common object’. It must be with the common object by virtue of . There must be community of object only up to a particular stage, and not Members of an unlawful assembly may have of object up to certain point beyond which they .ts. and the knowledge, possessed by " likely to be committed in prosecution may vary not only according to the at his command, but also according to the extent to which he shares tlie community of object, and as a consequence of this the effect of Section 149, IPC may be different on different meinbers of the same assembly.” 18. the appellants in assaulting omnibus allegation against all the accused persons that after Jaduram was assaulted with axe, the deceased ’I‘ulluram came there i to mediate and at that tinie all of them altogether assaulted ’I‘ulluram. P.W. l Jaduram ha s stated that on the date of incident, they were sitting in the house of Jagdish when accused persons came there armed with lathi just join and adopt it. O ace formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression ‘in prosecution of common object’ as appearing in Section l equivalent to ‘in order to immediately connected the nature of the object arid the iobject may exist mwawm La) iwm and axe and started assaultingw witnesses ltave stated the role played by each of None of the Tulluram and there is general and ‘ I“ f: ; ‘ Xi-HC—78 WWW WWW ‘ ; M W ’“ *a’mm miz‘wm e whereas in the F.I.R. the place of incident is shown as threshi g field of Jagdish which is at a distance of 360 ft from the house of agdish. P.W. 4 Rujhani Bai has given a ‘3 different version and she h s stated that Sukhdev took Jaduram towards the threshing fleld when Tulluram went there, ‘4‘ f of threshing field is one fur -r they were sitting in the ho there he assaulted him with axe and was assaulted by all and the distance . P.W. 5 Shiva has also stated that d with lathi whereas male appellants Qwere holding axe. They took aduram and Tullu to the threshing field of Sukhdev‘) and they all as ulted both of them together. However this witness has also not sta ed about individual role played by each of the accused persons. The trial Court in para 17 of the impugne judgment has observed that prosecution witnesses have failed to depose as to which of th accused persons assaulted deceased ’I‘ulluram by what weapon on what part of his body. However since offence is committed prosecution of common object, all the members are to be consider as members of unlawful assembly and accordingly each of the acc sed persons have been convicted with the ajd‘of Section 149, I.P.C and accordingly convicted all of them under Section 304 part II rea with Section 149 of I.P.C. - 19. i From the evidence av ' able on record, it is evident that both the parties had gathered in house of Jagdish to celebrate festival and after consuming liqu a dispute arose in connection with allegation of practicing ,hcraft by the accused party and ithereafter the complainant and the deceased were taken by one of the accused to a distant plac and there incident of assault occurred and taking into considerati n that there is no specific allegation l ‘ lady accused persons were s d e g e d e e d iv e e o ' c XI-HC—78 r‘b WW, EN E1 a W @ WWW ammamim WWW I”; mwm‘Kwm égaimm rw against any individual appella been roped in the offence wi accused persons started assau the appellants under Section cannot be sustained. However of P.W. 1 Jaduram, convict Heeramani and Tapeshwari R sentence imposed under that S( 20. Aé'cordingly, the appeal appellants under Section 148‘ Section 149 of I.P.C. and sen‘ are set aside. However co: Heeramani Bai and Tapeshwz sentence to undergo RI. six ma nt and all the accused persons have Lh the omnibus allegations that the lting 'I‘ulluram together, conviction of 304 Part II read with Section 149 :aking into consideration the evidence Lon of the appellants Shrinarayan, am under Section 323 of I.P.C. and :ction are maintained. is partly allowed. Conviction of the and Section 304 Part II read with' .ences imposed under those sections 1viction of appellant Shrinarayan, uri under Section 323 of I.P.C. and nths are maintained.//i/r’i’ Wm m 200 mm (We) {