e' 4s HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon^ble Shri_^aieevLGupta, C.J, & Hon^ble Shri Sunil KumarSinha, J. Criminal Appeal No. 855 of 2007 Dev Prasad Vs. State of Chhattisgarh (And other connected Criminal Appeals No. 856/2007;857/2007; 858/2007; 859/2007; 860/2007 & 863/2007) JUDGMENT For conslderation Sd/- \ SunUKumarSinha Judge 4£\ HON»BLESHRI JUSTICE RAJEEV GUPTA J Sd/- Chief Jusdce Post for Judgment : /Qy08/2009^ Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon9ble Shri Sunil Kum.ar Sinha, J. Criminal Appeal No. 855 of 2007 te APPELLANT RESPONDENT Dev Prasad, S/o Krishan Nishad, aged about 42 years, R/o Village- Pataod, Police Station- Kanker, District- Kanker (C.G.) Versus State of Chhattisgarh, Through- Station House Officer, Police Station- Kanker, District- Kanker (C.G.) Criminal Appeal No. 856 of 2007 APPELLANT (^. RESPONDENT Jageshwar alias Jage, S/o Surajlal, aged about 24 years, R/o Village- Pataod, Police Station- Kanker, District- Kanker (C.G.) Versus State of Chhattisgarh, Through- Station House Officer, Police Station- Kanker, District- Kanker (C.G.) Criminal Appeal No. 857 of 2007 APPELLANT RESPONDENT Surajlal, S/o Late Krishna Nisahd, aged about 56 years, R/o Village- Pataod, Police Station- Kanker, District- Kanker (C.G.) Versus State of Chhattisgarh, Through- Station House Officer, Police Station- Kanker, District- Kanker / Criminal ADpealsNo. 855/2007; 856/2007; 857/2007; 858/2007; 859/2007; 860/2007 & 863/2007 Criminal Appeal No. 858 of 2007 APPELLANTS c RESPONDENT 1. Manoj Kumar, S/o Brijlal, aged about 22 years 2. Shankar Nishad, S/o Devlal Nishad, aged about 27 years 3. Devlal, S/o Krishna, aged about 47 years 4. Devchand Nishad, S/o Krishna Ram Nishad, aged about 35 years All are R/o Village- Pataod, Police Station- Kanker, District- Kanker (C.G.) Versus State of Chhattisgarh, Through- Station IIouse Officer, Police Station- Kanker, District- Kanker (C.G.) Cnminal Appeal No. 859 of 2007 APPELLANT RESPONDENT Brijwati, W/o Kirtan Ram, aged about 40 years, R/o Village- Pataod, Police Station- Kanker, District- Kanker (C.G.) Versus State of Chhattisgarh, Through- Station House Officer, Police Station- Kanker, District- Kanker (C.G.) APPELLANT RESPONDENT Criminal Aopeal No. 860 of 2007 Ranjit Nishad, S/o Kirtan Ram Nishad, aged about 20 years, R/o Village- Pataod, Police Station- Kanker, District- Kanker (C.G.) Versus State of Chhattisgarh, Through- Station House Officer, Police Station- Kanker, District- Kanker ^^y';-fe, fi:^.^ .^ .^" •^, ^,^,-' ^^^ ^•.^ ^;^' ^'/' Criminal AppealsNo. 855/2007: 856/2007; 857/2007; 858/2007; 859/2007: 860/2007 & 863/2007 €', •^ APPELLANT RESPONDENT Criminal Aooeal No. 863 of 2007 Brijlal, S/o Krishna, aged about 48 years, R/o Village- Pataod, Police Station- Kanker, District- Kanker Versus State of Chhattisgarh, Through- Station House Officer, Police Station- Kanker, District- Kanker (Appeals under Section 374 (2) of The Code of Criminal Procedurel Appearance: Mr. V.C. Ottalwar & Mr. Rajeev Shrivastava, Advocates for the appellants. Mr. Ashish Shukla, Govt. Advocate, for the State. JUDGMENT ( ^0.08.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) These appeals have been directed against the judgment and order dated 8th of August, 2007 passed in Sessions Trial No. 42/2006 by the Sessions Judge, Kanker, North Bastar (C.G.), whereby the appellants have been convicted and sentenced in the following manner with a further direction to run the sentences concurrently:- Conviction u/s 148 IPC u/s 325 read with Section 149 IPC Sentence R.I. for 2 years R.I. for 2 years and fine of Rs.1,000/-, in default of payment of fine to further undergo R.I. for 3 months / Criminal ApnealsNo. 855/2007: 856/2007; 857/2007; 858/2007; 859/2007; 860/2007 & 863/2007 u/s 436 read with Section 149 IPC R.I. for 10 years and fine of Rs.1,000/-, in default of payment of fine to further undergo R.I. for 3 months & €• (2) The facts, briefly stated, are as under:- Complainant Prakashlal Sen (PW-3) has cloths & general store at Pushwada Chowk in village Bevarti. His residence is also near the shop. Appellants Brijwati Bai Nishad and Dev Prasad Nishad had encroached upon the government land which was in front of the house of the complainant. On 2.12.2005/ the said encroachment was removed by the Revenue Authorities. The allegations are that on the pretext that the encroachment was removed on the instance of the complainant, on 2.12.2005 at about 8.00 p.m., the appellants, armed with deadly weapons, formed an unlawful assembly, participated in rioting and thereafter in prosecution of the common object of that assembly they assaulted the wife of the complainant namely Usha Bai (PW- 10) and then they put the shop of the complainant on fire. It is also alleged that at the same time, the appellants assaulted some other persons and they put on fire two other nearby shops, one belonging to Budhiyar Jain and the other belonging to Alakh Niranjan, which are the subject matters of 2 different Sessions Trial being Sessions Trial No. 155/2006 and 43/2006. On the instance ofcomplainant Prakashlal Sen (PW-3), a Dehatinalishi to this effect, Ex.-P/lO, was recorded. The complainant mentioned that Kanahiyalal (PW-5), Lakhanlal (PW-6), Bhavsingh (PW-7) and Manoranjan Mandal had seen the occurrence. During the course of investigation, blood stained soil, plain soil, iron-racks and ash etc. were seized \ from the place of occurrence under Ex.-P/12. The appellants ,si^rsa^i ^v %.' u.r Criminal AppealsNo. 855/2007: 856/2007; 857/2007; 858/2007; 859/2007; 860/2007 & 863/2007 were taken into custody and their memorandum statements (Ex.-P/10-C, P/12-C, P/14-C, P/16-C, P/18-C, P/20-C, P/22-C, P/24-C, P/26-C & P/28-C) were recorded u/s 27 of the Evidence Act and articles like rod, knife, tangia, danda, sword & crow-bar etc. were seized at the instances of the appellants under Ex.-P/11-C, P/13-C, P/15-C, P/17-C, P/19-C, P/21-C, P/23-C, P/25-C, P/27-C & P/29-C. Usha Bai (PW-10) was taken to Government K.D. Hospital, Kanker, from where an information was sent to the concerned police station by the Assistant Surgeon, Dr. S.K. Verma (PW-1) under Ex.-P/3. A formal requisition for her examination was given to the concerned hospital under Ex.- P/l. Dr. S.K. Verma (PW-1) examined Usha Bai (PW-10) and noticed following injuries on her person:- i) Lacerated wound, size 2 cm x Vo. cm on the left portion of skull; ii) Lacerated wound, size 3cm x V'2 cm on the front portion of the skull; iii) Left eye was close with swelling; iv) Lacerated wound on the left elbow, size 2 cm x V<2 cm; v) Injury on the middle finger, size 1 cm x 1/2 cm; vi) Cut injury on the ring finger, size 1 cm x 1/2 cm & vii) Some portion of front left incisor tooth was broken and the tooth has became loose. The Doctor opined that all the injuries were simple in nature and injuries of the skull were caused by hard and rough object. He gave his report Ex.-P/2. The seized weapons were sent for their examination to Dr. S.K. Verma (PW-1) who opined that the injuries caused to victim Usha Bai may have been caused by lathis and not by the other articles (rod, crow-bar & axe etc) sent for examination. He gave his report Ex.-P/9-C. A Panchnama of ^G^^.^' IIINIK- ^ <1- ^-' Criminal ApuealsNo. 855/2007; 856/2007; 857/2007; 858/2007: 859/2007: 860/2007 & 863/2007 the shop was prepared under Ex.-P/14 and regular First Information Report (F.I.R.) was registered under Ex.-P/43. After completion of usual investigation, in this matter as also in the other matters, in all 3 charge-sheets were filed in the Court of Chief Judicial Magistrate, Kanker, who in turn committed the matters to the Court of Sessions Judge, Kanker, where 3 separate trials were conducted. In the present case, the learned Sessions Judge convicted and sentenced the accused/appellants as aforementioned. In other 2 cases also i.e. S.T. No. 155/2006 and S.T. No. 43/2006 the appellants were held guilty and were convicted and sentenced accordingly which are the subject matters of two sets of other criminal appeals which are also being disposed of simultaneously. (3) In case on hand, the conviction of the appellants is based on the testimonies of 3 eye witnesses namely Prakashlal Sen (PW-3), Usha Bai (PW-10) and Geeta Bai (PW-14). (4) Mr. V.C. Ottalwar and Mr. Rajeev Shrivastava, learned counsel appearing on behalf of the appellants, argued that the formation of an unlawful assembly and the appellants being the members of the unlawful assembly was not established. It was also not established as to what was the common object of unlawful assembly. They argued that if common object ofunlawful assembly was not to put the shop on fire or to give the assaults to the injured persons, and someone on his own, commit the above acts, that would be an act committed on the part of that individual and no one else can be convicted with the aid of Section 149 IPC. They also argued that there was absolutely no evidence / / ^'^ '-< 7 Criminal AppealsNo. 855/2007; 856/2007; 857/2007: 858/2007; 859/2Q07,J60/2007 & 863/2007 to show that who set the shop on fire. Therefore the learned Sessions Judge erred in law in convicting the appellants under the aforementioned Sections of the IPC. They further argued that all the eye witnesses, referred to above, are wholly unreliable and the conviction based on the testimonies of these witnesses cannot be sustained. (5) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused the records ofthe sessions case. (7) Before appreciating the evidence, we would like to quote Dehatinalishi (Ex.-P/lO), which was lodged by complainant Prakashlal Sen (PW-3) and which was the first hand information given by him to the police. srnr cpt^ smo^o "^Rft ^SW ^|T1IM?I SINI 147/148/149/307/436 ^TO^O ^m nNf- ychl^ldld ^T f^TT ^TO 'frT^H f^? ^rT ynf^ -rnf ^i 45 ^wo ywgr ^N ilsR^ STPTT^TC^ l f^"0 ^Tq ^T'TT 02/12/05 c^ 8/30 ^ ^T q^TT^r^ ^cii^i rficp isR^r ^t ^cf f^TT 9 I^O^O ^ f^ifcf) ^TO ^FTT 02/12/05^21/456^ ^H ^ ^FTT ^T ^ TTFT iTsRcft n L 8 Criminal AppealsNo. 855/2007; 856/2007; 857/2007; 858/2007; 859/2007: 860/2007 & 863/2007 ^FT SFRT^- ^TRTK, f-m^, f^R, ^MldlOl ^cl^lell^, iTs^ f^K, -H^ f^K ^r ^TT^ f^T^- ^r^t T^ f^K, Wf^, TFTTvT, f^RUT ^ ^ci 1^1 T^ irsR^r ^ -^rr ^ i ci^f IR TM yFT^r ^ c^ ^n t, ^ ^ ^ ^TFFT ^RRTK ^K, ^c|d1 ^ 1^K £!T?I ^TT^UT i^ IR 3to^TTT ^ ^FT sRT^ sr i ^RT '^FTI^T f^rpT ^NT 3TM f^O 2/12/05 c]^ -^j^ ^rpT ^RT Sfl^FT ^HT 7PTT ^cf ^frg 1q^ c^ chl4c||^| ^ ^, 'f^ ^ft ^to cffr ^c^ ir^ ^t i^c^l ^ gTM f^O 2/12/05 c^ ^T 8/30 s^ ^) ^PT ?I^ ^R^ f^R, ^K, 6|u1dld I^K, sFT^ 1^K, Wf^ f^K, T^ftyT, ^IT^, ^v^dld, ^Rft ^r TT^ f^^- ^cr 3PT ^T ^, ^51, ~^s, ^\4\ ^?, i^rar? ^r cA '^cpN TF ^s v^s ^ ^ sr f^ 3MivT ^R ^t ^ft ^T sTT^ sTT^ 3T^ ^TSIT ^ ^ sn^ STI^ ^T f^ ^t ^ ^T s^ ^T^H ^ TTR^ ^ toT ^ ^ ^ft cTl7T ^RK^ c^^ ^, f^R ^ TTP^ ^fe 3TT^ f ^ff^ ^TST ^ ^cft ^ eTT^ ^r c^ z^ft ^TT^sn^t ig?^:cte snc^ ^p^ ^ ^fcr ^^ t i f^? ^ ^ft ^t ^iN cT^ c^ ST^ f^TT ^t ^n cf^ ^^ dl^ch^ ^T ^Fn f^ to^ ^FT ^ gr^ ^T ^TNT ^pm ^T ^PTT t ^CTT cf)T •q^ ^ ^ ^ ¥f^f^, c^^ZTT, Tf^jpT W^v\, v\^T\v\\v\ ^ ^ ^ t 1 ^T STFrt c|?T ?^fT ^ TRT 2-3 ^K? ^ ^p] ^TPT ^3n f l f^ iRTcj^ ^fT ^i ^dlRch f^t -rTf t 1 ^FTT TT? 11i^rR ^nft ''TI^Rft ^^R 1?^ui c^T T^ c^ ^•o ^ 1^yTT 'rFrTT 1 ^rlTO •<^iTiicnai ^T/-3Kq^ 2/12/05" hi^- L (8) Prakashlal Sen (PW-3) deposed "That appellants Brijwati Nishad and Dev Prasad Nishad had encroached upon some government land near the land of Budhiyar Jain. He had said to the appellants to remove the encroachment but the appellants did not remove the same and they were saying that they have a Patta of that land. On saying to show the Patta, they did not show it to them. On this, an application was made to the Court and the Court had decided the matter in their favour and then the encroachment was removed by the Government. Even after removal ofthe encroachment, the appellants opened their hotel on the same land by using a Pandal. On 2.12.2005, Tehsildar got the 1,, •^ L Criminal AroealsNo. 855/2007: 856/2007; 857/2007; 858/2007: 859/2007; 860/2007 & 863/2007 encroachment removed. On 2.12.2005, at about 8.00 p.m., they were taking meals in their house. His wife Usha Bai went out of the house after taking meals. He heard her cries. She rushed inside the house. He saw that she was being chased by the appellants who were armed with lathis. Usha Bai was assaulted by the appellants by lathis. He took his wife inside the house. The appellants ran away after seeing him accompanying his wife. He went to the terrace of the house and saw that they put the C.D. shop on fire. Thereafter he went inside the house. The shutter and lock of his shop were broken and his shop was set on fire. After sometime, police party came to the place of occurrence and then only they were taken out of their house??. In cross examination, he admitted that a case was pending between appellant Dev Prasad and this witness regarding the open land. In Para-11 of his cross examination, he categorically admitted that it is true to say that he was inside the house at the time of the incident and it is also true to say that he himself had not seen any appellant setting the shop on fire because he was throughout inside the house till the police party came there and took them out from the house. (9) Usha Bai (PW-10) deposed that "On 2.12.2005, at about 7.30 p.m., the appellants were assaulting Geeta Bai by lathi, rod and small knife. They were also assaulting Rakesh, Ramchand and Budhiyar Jain. When she came out from her house, the appellants assaulted her. She received injuries on her head and 1. 10 Criminal AppealsNo. 855/2007; 856/2007: 857/2007: 858/2007; 859/2007; 860/2007 & 863/2007 elbow. Her one tooth was broken. The appellants had damaged the counter of the shop of Geeta Bai, the boy who died was caught by the culprits. Brijlal came to the door of her house. Brijlal assaulted by a danda on her leg. Her husband Prakashlal topk her inside the house and thereafter closed the doors ofthe house. She saw that the shutter and lock of her shop were broken, kerosene oil was poured in the shop and it was set on fire. The shop of Alakh Niranjan (complainant of S.T. No. 43/2006) also caught fire by the said fire ofher shop. Thereafter the appellants came inside her house and took the udad-stra.w from the courtyard of the house on the main-gate and set it also on fire. The fire of main- gate had spread in whole of the house. She was taken to Kanker hospital, where she was admitted for 4 days??. She admitted in her cross examination that before the incident, a case was pending between her husband and the appellants in the Court of concerned Sub-Divisional Magistrate. She further admitted that her police statement was recorded after 22 days of the incident. She was confronted with her police case diary statement (Ex.-D/l) regarding the weapons carried by the appellants and the manner in which she was assaulted as there were some contradictions to this effect. She further admitted in the cross examination that it is true that her husband did not come out from the house when she was being assaulted, and it is also true that at the time of incident of setting the shop on fire, she was inside her house and she had closed the doors of the house from inside by sankal (chain) and she did not come out of 11 CriminalADpealsNo. 855/2007: 856/2007; 857/2007; 858/2007: 859/2007; 860/2007 & 863/2007 the house and it is also true that when the police party reached to the scene of occurrence, then only, she was taken out of the house by opening the sankal. In Para-9 of her cross examination, she stated that she had told the police, while recording of her case diary statement (Ex.D/1), that the appellants were carrying petrol and kerosene oil in their hands and if the same is not mentioned in the said statement, she cannot tell the reason for it. (10) Geeta Bai (PW-14) is the wife of Budhiyar Jain (complainant in S.T. No. 155/2006). She stated that "On the date of incident, the appellants assaulted her after making a plan and thereafter they put her house on fire. When Usha Bai (PW-10) came out of her house, she was also assaulted by the appellants. Usha Bai became unconscious due to the assault. She very specifically stated in her examination-in-chief that she had witnessed the appellants assaulting Usha Bai and putting the shop of Prakashlal Sen on fire??. In the cross examination, she was confronted with her police case diary statement (Ex.-D/2) in which she did not mention the fact of putting the general-stores of Usha Bai on fire by the appellants. On being confronted, she deposed that she had told the things to the police and if they are not in her case diary statement, she cannot tell the reason for the same. Indeed, this was an omission in her case diary statement in which she did not state that the shop of the complainant was put on fire by the v^ 12 Criminal Appeals No. 855/2007; 856/2007; 857/2007; 858/2007; 859/2007; 860/2007 & 863/2007 appellants and she only stated that the said shop and shop of Alakh Niranjan was also burning. (11) Apart from the above, out of 4 other eye witnesses named in Dehatinalishi, Kanahiyalal (PW-5), Lakhanlal (PW-6) and Bhavsingh (PW-7) were also examined by the prosecution but they did not support the case of the prosecution as they completely turned hostile before the Court. (12) In appreciation of entire evidence led by the prosecution, we find that the story to the extent of coming of the appellants with deadly weapons was established. It was also established that the appellants or some of them had assaulted Usha Bai (PW-10) but it was not at all established that who put the shop on fire. Therefore, on the above evidence, the formation of an unlawful assembly and the appellants being the members of unlawful assembly was fully established by the prosecution. About the common object of the unlawful assembly, we may gather from the evidence on record that the common object of the said assembly was to make assaults to injured Usha Bai. It appears that on account of removal of the encroachment of the appellants from the government land on the instance of the complainant party, the appellants were unhappy and with a view to take a revenge by giving assaults to the guilty persons according to them, the said unlawful assembly proceeded to the shop of the complainant at about 8.00 p.m. with the common object to assault the victims and they assaulted Usha Bai (PW-10) and the victims of the 13 Criminal AppealsNo. 855/2007; 856/2007; 857/2007; 858/2007; 859/2007; 860/2007 & 863/2007 connected case. The evidence on record would further show that the members of unlawful assembly had assembled with weapons like lathi, sword & rod etc., as the same have been recovered from their possession on discoveries. Had the assembly possessed a common object of puttingshop on fire, the evidence of carrying petrol or kerosene oil would have been there. The theory of carrying petrol or kerosene oil comes in the court evidence of concerned witnesses which are the omissions in their case diary statements and we disbelieve that part of the statements of those witnesses. Therefore, the common object of the assembly was not to put the shop on fire. In the above facts and circumstances, we are unable to accept the case of prosecution that the appellants were liable for punishment u/s 436 with the aid of section 149 IPC. If we also go to examine as to whether a conimon object for putting the shop on fire subsequently developed, we do not find any material to hold like this. There is no evidence on record to show that any such common object was subsequently formed after the attack on Usha Bai or at a later point of time. We have also examined the case to find out the individual acts of the appellants so as to make him/her responsible for the same. In appreciation, we find that the prosecution has completely failed to establish as to who set the shop on fire. Prakashlal Sen (PW-3) admitted in the cross examination that he was inside the house at the time of the incident and he had not seen any appellant setting the shop on fire because he was throughout inside the house till the police party came there and took them out from the house. •»Sw^»^^.^»^s£^^^»»^^^.^^ ^^TK^ ^"^•^ Vv^ ^,,,^^' 14 CrjminaLADDeals No. 855/2007; 856/2007; 857/2007; 858/2007; 859/2007; 860/2007 & 863/2007 Almost similar is the outcome of the evidence of Usha Bai (PW-10) who also admitted that after the marpit, she was taken inside the house by her husband, she has closed the sankal of the door from inside and she never came out from the house; and they came out from the house when police party reached there. The fact in relation to putting the shop on fire by the appellants or any one of them is vital omission in the case diary statement of Geeta Bai (PW-14) and the other eye witnesses, examined by the prosecution, completely turned hostile. Therefore, none of the appellants can even individually be held responsible for putting the shop on fire. (13) In the facts and circumstances of the case, we hold that it was not established by the prosecution that the appellants, in furtherance of the common object put the shop on fire. The prosecution has also not established the individual acts of the appellants for the above offence. However, it was established that the appellants had participated in rioting and they were armed with deadly weapons. They had formed an unlawful assembly with a common object to assault the victim. In furtherance of the common object of the unlawful assembly, they assaulted Usha Bai (PW-10) who received the above injuries. (14) For the foregoing reasons, the conviction and sentences awarded to the appellants u/s 436 read with Section 149 IPC cannot be sustained and the same deserve to be set aside. 15 Criminal AppealsNo. 855/2007: 856/2007: 857/2007: 858/2007; 859/2007; 860/2007 & 863/2007 ^ !1 (15) Accordingly, all the appeals are partly allowed. The conviction and sentences awarded to the appellants u/s 436 read with Section 149 IPC are set aside. The appellants are acquitted of the aforesaid charges framed against them. However, the conviction and sentences of the appellants awarded u/ss 148 & 325/149 IPC are maintained. (16) Simultaneously, we have also held the appellants guilty of certain offences in other set of appeals arising out of S.T. N0. 155/2006. Therefore, we direct that the sentences awarded to the appellants in this appeal arising out of S.T. No. 42/2006 as also the sentences awarded in other appeals arising out of S.T. No. 155/2006 shall run concurrently. (17) It is stated that appellants Devchand Nishad & Jageshwar @ Jage Nishad are injail since 6.12.2005 & 23.12.2005 respectively and the other appellants Dev Prasad Nishad, Ranjit Nishad, Shankar Nishad & Brijwati are in jail since 3.12.2005. They be released forthwith, if not required in any other case. Appellants Brijlal Nishad, Manoj Kumar, Surajlal & Devlal were taken into custody on 3.12.2005 but their jail sentences were suspended vide order dated 15.4.2008 passed in the respective appeals. They have also completed their jail sentences. Therefore, their bail bonds are discharged. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti