^^ /5fc. HIGH COURTOF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: Appellants Accused (In Jail) Respondent HON'BLE MR. T.P. SHAKMA 65 HON'BLE MR. R. L. JHANWAR, JJ. Cr. A. No. 262 of 1993 1. 2. 3. 4. Versus Kamlesh, aged about 26 years, son of Punnulal Mehar; Bhushanlal, aged 22 years, son of Punnulal Mehar; Qmkar Singh, aged about 21 years, son of Kartik Nirmalkar; Puraniyabai, aged about 45 years, wife of Punnulal Mehar; All residents of Tatibandh Raipur, .M.P. The State of Madhya Pradesh. CRIMINAL APPEAL UNDER SECTION 374/(2) OF THE CODE OF CRIMINAL PRCEDURE, 1973. Present:- Shri Ravi Bhagat, Advocate for the appellants. Shri Ashish Shukla, G.A. for the State/respondent. ^^ ORAL-JUDGEMENT (Passedon 17/03/2010) 1 •-, The following judgmefat of the Court was passed by T.P.-Sharma, J:- 1. Challenge in this appeal is to the judgment of / conviction and order of sentence dated 26/2/93 *^- pa$sed by First Additional Sessions Judge, Raipur in Sessions .Trial No. 286/90 whereby and where under after holding the appellants guilty for the formation of |i:""r""-";- 'r^) ~..^\ unlawful assem.bly armed with deadly weapon having its common object to commit the raurder of Puraien Bai and culpable homicide amounting to murder of Puraien Bai convk;ted the appellants under Sections 302 / 149 SE 148 of the Indian Penal Code and sentenced imprisonment for life and rigorous imprisonment for 1 year each. The conviction is impugned on the ground that without any clinching and credible evidence sufficient for conviction of the appellants court below has convicted and sentenced the appellants as aforementioned and thereby committed an illegality. Case of the prosecution in brief is that on fateful day of 5/8/90 at about 9.30 p.m. on account of previous enmity and grazing of the grass by buffalo appellants came in front of the 'house of PW2 Rama, they were armed with deadly weapons, they assaulted Rama and caused injuries. Duripg course of quarrel appellant Bhushan who was holding iron pipe assaulted Puraien Bai wife- of PW2 Rama, she fell down and become ^ / unconscious. Complainant party took her to the •^ hospital where she died. PW1 Krishna Kumar son of the deceased lodged Dehatinalshi vide Ex. P-l.After summoning the witnesses vide Ex. P-2A, inquest over the dead body of the deceased Puraien Bai was .^" •';-a"K%.,,, ''•'if^ 1 :' .i«s^'z .-SSi'S%, », 1 "•fi&y^t I: °*'!!'. .<,"'.^ "'<',?' ^^'' prepared vide Ex. P-3. Dead body was sent for autopsy to D.K. Hospital, Raipur vide Ex. P-15. Autopsy was conducted by PW12 -Dr. D.C. Jain vide Ex. P-23 and found following injuries:- (i)- One lacerated wound over forehead of 2" x l". + (ii)-One contusion of 2" x 1" over right side of the head with swelling. (iii)-One contusion of 5" x 1" over back. (iv)-One contusion of 5" x 1" over right forearm. (v)-Fracture of right partial bone. Mode of death was coma and death was homicidal in nature. 4. During course of investigation Investigating Officer seized one blood stained blouse from Rambhabai vide Ex. P-2. Accused Kishanlal was taken into custody he made disclosure statement of the stick vide Ex. P-4. Stick was seized at the instance of Kishanlal vide Ex. P-8. Accused Kamlesh faken into custody he made ^discloser statement of iron rod vide Ex. P-5 same was recovered at the instance of Kamesh vide Ex. P-10. ^ / ^ Accused Onikar Singh was also taken into custody he '•-^ made. discloser statement of stick vide Ex. P-6 same was recovered from the Omkar Singh vide Ex. P-11. Appellant Bhushanlal made discloser statement of iron ;.~.'.pipe.vide Ex. P-7 same was recovered at the instance of -.:5;^&yi'3 1 ^^ Bhushanlal vide Ex. P-9. Sealed cloths of Puraien Bai was Seized vide Ex. P-13. Blood stained and plain soil were recovered frora the spot vide Ex. P-12. Finally on the basis of Dehatinalshi First Information Report Ex. P-14 was recorded. Spot raap-was prepared vide Ex. P- 16. Seized articles were sent for chemical examination. 5. Statement of the witnesses were recorded under Section 161 ofthe Code of Crim.inal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Raipur who in turn committed the case to the Court of Sessions, Raipur. Learned First Additional Sessions Judge, Raipur received the case oh transfer for trial. 6. In order to prove the guilt of the appellants/accused prosecution examined as many as 12 witnesses. Aceused persons were examined under Section 313 of the Code where they 'denied the circumstances 'appearing against- them, innocency and false implicatiph is clainied. Accused has also examined by .'lhe defence witness Q^Vl Kenekka, Head Constable ', and DW2 Dr. D.K. Jha who has deposed that accused Bhushan was also examined by doctor and found one abrasion o.ver the back of 0.5 c.m. x 0.5 c.m. and '"., <; eomplaining pain over his index finger. •"i?;tl^2^^^ ^:swi%,_ ^';i(, '^ ^ ^- ^° i^' Bfc 7. After affording an opportunity of hearing to the parties learned First Additional Sessions Judge, Raipur convicted and sentenced the appellants as aforementioned. 8. Learned Counsel for the parties are heard. Judgment impugned and record of Court below perused. 9. Learned counsel for the appellants vehemently argued that in the present case prosecution has utterly failed to adduce the evidence relating to formation of unlawful assembly with a coramon object of comraission of murder of deceased Puraien Bai and the cominission of murder of Puraien Bai by any rnember of unlawful assembly in furtherance of the com.mon object of the unlawful assembly. 10. Learned counsel for the appellants further argued that prosecution has adduced only evidence to show that appellants were quarreling and assaulted the Rama and other persons and •'^.uring the course of quarrel --Bhushan assaulted the deceased. Prosecution has not adduced. any evidence against any accused other than ^ / , accused Bhushan. Both the parties were in inimical '-» terra, witnesses ar.e interested and relative witnesses. Their evidence does not inspire confidence and in absence qf corroboration from independent sources ^~—their evidence are not safe to rely. ..•l^ f/ ($) 11. On the other hand, learned counsel for the State/respondent opposed the appeal and submits that prosecution has proved its case beyond all shadow of doubts by adducing credible and clinching evidence. 12. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. 13. In fhe present case homicidal death as a result of fatal injury found over fhe head of the deceased Puraien Bai has not been subsfanti.ally disputed on behalf of the appellant on the other hand, also established by the evidence ofPW12 Dr. D.C. Jain and autopsy report vide Ex. P-23. 14. The evidence of DW1 Kenekka and DW2 Dr. D.K. Jha also reveal that one abrasion of 0.5 x 0.5 c.m. was found over the back of ap'pellant Bhushan and he was complaining fhe pain on his index finger. The injury '.v^ found over the body of accused Bhushan is trifle in -'nature. As held in case of Lakshni? Singh and others etc.. v. State of Bihar1 by the Apex Court that non- .fcxplanation of injurie&».sustained by accused is not . always.fatal to the prosecution in case of trifle injuries, but injuries of serious nature are fatal to the prasecution.' Prosecution is not under obligation to 1 A.RR.<l976 SC 2263 - ^^^M gf|??^^FSi .tf^'"*-^ ..<s ^y w !i ^&y '!^._ ^elf isevs^ai explain the such injuries. Injury found over the body of the accused is not fatal to the prosecution. 15. As regard the complicity of the appellants in crime in question is concerned the conviction is 'based on the evidence of eye witnesses PW1 Krishna Kuraar son of the deceased who has deposed in his evidence that accused persons were assaulted his father Rama by stick and other weapon. Accused Bhushan was holding iron pipe. He assaulted his raother over her head by iron pipe then she fell down, finally they took her to the hospital where she died. PW2 Rama alleged injured witness has also corroborated the evidence of PW1 Krishna Kumar. PW3 Deenanath has deposed in his evidence that appellants were quarreling with the complainant party they also assaulted Krishna Kumar and mother of the Krislina Kum.ar namely F>uraien Bai. PW4 Rambhabai daughter of Puraien B£U has deposed in her evidence that firstly appellants were assaulted .. her father then she along with her raother (since deceased) Puraien Bai went to rescue her father then . / • the appellants assaulted them. Appellant Bhushan '-*r assaulted her mother by iron pipe then her mother fell down. The defence has cross examined these witnesses in detail but they have struck to their version relating to the injury caused by Bhushan to deceased Puraien 'v •"•^ 1 •-••^1-'' j i s^? ^'.i'.S'.SS-'-'' 4-3 ~^ \y\. Bai by iron pipe. Injuries found over the body of the deceased as deposed by PW12 Dr. D.C. Jain also reveal that they would have been caused by weapon like iron pipe or iron rod. The evidence of these witnesses are sufficient to establish tha .fact that appellants were quarreling with the father of the PW1 Krishna Kuraar namely Rama and when deceased Puraien Bai wife of Rama came to rescue him then appellant Bhushan was holding the iron pipe assaulted her by iron pipe on her head resulted into her death. 16. After appreciating the evidence available on record learned First Additional Sessions Judge, Raipur has arrived at a finding that'appellants have constituted unlawful assembly having its common object to commit the murder of Puraien Bai in furtherance of coramon object of the unlawful' assembly one member namely Bhushan caused fatal injury to the Puraien Bai but the evidence adduced on behalf of the prosecution clearly reveal that all appellants were assaulting the Rarna on account of grazing crop by his buffalo, if it is presumed that- unlawful a^gembly was constituted then admittedly it was with a common object of causing injury t6 Rama and not for causing death of Puraien Bai. Ac.cused Bhushan himself has caused fatal injury to the Puraien Bai. ,y :.aa..a ^ . .^ :hasg9fr -i 17. PW1 Krishna Kumar, PW2 Rama, PW3 Deenanath are relative witnesses and definitely were having inimical term. with the appellants but only on the ground of relation or enmity fheir evidence cannot be discarded, they required minute scrutiny before relying the same, PW1 Krishna Kumar, PW2 Rama, PW3 Deenanath are relative of the deceased they were present in their house at 9.30 p.m. their presence at 9.30 p.m. in their house was natural. They were having sufficient opportunity to implicate all accused persons relating to assault raade to Puraien Bai but they have not stated anything, other than that Bhushan alone has caused injury to the Puraien Bai which shows their truthfulness. The evidence of aforesaid witnesses reveals that 5 accused persons were present on the spot and they were causing injury to Rania it may be safely inferred that they had formed unlawful assembly with common object 06 causing injury to Rama. -'Although the unlawful assembly may be formed at any movement even during course of comn-iission of offence N / »and even some Enemb.er may join to the assembly. In case^.of formation of unlawful assembly prosecution is required to .prove fhe formation of assembly its common object. mere. presence of persons is not sufficient for :,:- -formatiQn of unlawful assembly. 10 ^ 18. While dealing with the question of formation of unlawful assembly Apex Court has held in case of Chandra Bihan Gautam & Ors. v. State of Bihar2 •» that an unlawful object can develop after the accused assembled. The existence of the common object of the unlawful assembly has to be ascertained in the facts and circum.stances of each case. Para 6 of the said judgment reads as uader: "6. It has been argued alternatively that even if the occurrence is held to have taken place in the raanner alleged by the prosecution and the accused persons were seen on spot, they cannot be convicted and sentenced as the prosecution allegedly failed to establish the accused persons. Section 149 is an exception to the criminal law whereunder a person can be convicted and sentenced for his yicaripus liability only on proof of.his being a member of the unlawful assembly, sharing the common object, notwithstanding as to whether he had actually participated in the cominission of the crime or not. Common object does not require prior concert and a common raeeting of minds before the attack. An unlawful object can develop after the accused assembled. The existence of the comraon object of the unlawful asserably has to be ascertained in the facts and circumstances of each case. It is true that the mere presance of the accused is not sufficient to hold them guilty for the sharing of common object as the prosecution has to further established that they were not mere by-standers byt in fact were sharing the common object. V/hen a concerted attack is made by a large humber of persons, it is often difficult to , •deterraine the a<<tual part played by each of the accused but on that account, for an offence :-.. committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the con-iinon object, persons provide to be members 2',T.T%002(4) SC62 J 11 cannot escape the consequences arising from the doing of that act which amounts to an offence. There may not be a common object in a sudden fight but in a planned attack on the victim, the presence of the common object amongst the persons forming the ynlawful assembly can be inferred." 19. While dealing with the question of unlawful assem.bly, the Apex Court in the matter of Masalti v. State of TLP.3Jield in_para^ 17 as under:- "17.....What has to be proved against a person who is alleged fo be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an uhlawful - assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the &ve clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely p^ssive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain .the common object ofthe assembly. In the present case, prosecution has not adduced any 20. evidence to show that any unlawful asserably was '•-sr constituted with its common object for causing the murder of Puraien Bai and were armed with deadly weapon. Prosecution has also not adduced any )A-IR.^S65SC202 ^\ -' s^ d31' '^y^v .^•- ":»-*' 12 '^. i^'^i^S^ 21. ^^^, •^" evidence to show that in furtherance of the common object of unlawful assembly one of the member namely Bhushan has caused fatal injury resulting into death of Puraien Bai but the evidence adduced on behalf of the prosecution is sufficient for drawing an inference that Bhushan has intentionally caused the death of I>uraien Bai by using deadly weapon iron pipe and thereby committed the murder of Puraien Bai. While convicting the appe'lants Court below has not considered the most material aspect of the case that whether unlawful assembly was formed and what was the common object of unlawful "assembly and thereby conimitted an illegality. For the foregoing reasons, criminal appeal is partly allowed. Appellants Kamlesh, Omkar Singh, Puraniyabai are acquitted of the charge of under Sections 302/149 8s 148 of the Indian Penal Code. Appellant Bhushanlal is also acquitted of the charge of under Section 148 of.the Indian Penal Code and in stead of conviction under Section 302/149 of the Indian Penal Code appellant Bhushanlal is convicted under Section 302 of the Indian Penal Code and sentehced imprisonment for life. Appellant Bhushanlal is in bail, he shalL4inmediately surrender before the First Additional Sessions Judge Raipur for serving the sentence. R.L. Jhanwar Judge Sd/- T-P.Sharaa Judge -IW