HIGH COURT OF CHHATTISGARH. BILASPUR DIVIS10N BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. Criminal Appeal No.830 of 2007 Jhuniya Bai and others - Versus - State of Chhattisgarh S~7. JUDGMENT FOR CONSIDERATLQN HON'BLE MR. JUSTICE R.N. CHANDRAKAR Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge Ppst for pronouncement of iudament on 23rd of November. 2011 c Sd/- T.P. Sharma Judge HIGH COURT OF CHHATTISGARH. BILASPUR DIVISIONBENCH ^ CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE IVIR. R.N. CHANDRAKAR, JJ. APPELLANTS: (In Jail) Criminal Appeal No.830 of 2007 1. Jhuniya Bai, wife of Khedan Verma, aged 50 years, 2. Dhanaiya Bai, wife of Punnidas Verma, aged 50 years, 3. Liloti Bai, wife of Punni Verma, aged 48 years, 4. Ganga Bai, wife of Bakhriya Verma, aged 40 years, 5. Pyari Bai, wife of Dukkhan Verma, aged 43 years, 6. Premin Bai, wife of Punamchand Verma, aged 40 years, 7. Mansingh, S/o Kanhai Kewat, aged 52 years, 8. Jethiya Bai, wife of Jagdish Sahu, aged 48 years, 9. Ishwari, D/o Fhiranta Verma, aged 22 years, 10. Sukalu, S/o Santram Verma, aged 40 years, 11. Indra @ Indo Bai, wife of Kujram Verma, aged 50 years, All residents of village Chorenga, Tahsil Simga, District Raipur (C.G.) Versus State of Chhattisgarh, Through Police Station Simga, District Raipur (C.G.) RESPONDENT: {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure} Present: Mr. Prafull Bharat, counsel for the appellants. Mr. D.K. Gwalre, Govt. Advocate for the State/respondent. JUDGMENT (23rd November, 2011) C7 The followina iudament ofthe Court was passed bv T.P.Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 9-8-2007 passed by the 2nd Additional Sessions Judge, Baloda Bazaar, in Sessions Trial No.433/2007, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for formation of unlawful assembly armed with deadly weapons having its common object to commit murder of Narendra Kumar & Raj Kumar after causing annoyance to others, after using obscene words in others place by committing criminal house trespass for commission of culpable homicide amounting to murder and that in sharing common intention the members of unlawful assembly have committed murder of Narendra Kumar & Raj Kumar, convicted the appellants under Sections 148, 294, 460 read with Section 34 & 302 read with Section 149 of the IPC and sentenced each of them to undergo Rl for six months; Rl for one month; Rl for ten years & fine of Rs.100/-, in default additional Rl for one month; and imprisonment for life & fine of Rs.100/-, in default additional Rl for one month, respectively. 2. For causing aforesaid offence FIR has been registered on 30-9-2004 in Crime No. 190/2004 at Police Station Simga. As per case of the prosecution, the appellants herein were absconding after commission of offence. Initially, twelve accused persons were tried and convicted in S.T.No.42/2005, thereafter, the appellants herein were arrested, tried, convicted and sentenced in the aforesaid manner. 3. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants as aforementioned and thereby committed illegality. 4. As per case of the prosecution, proceeding for installation of Sponge Iron Factory at Village Chouranga was in progress, Panchayat meeting was convened on 29-9-2004 and also on 30-9-2004 in which villagers decided to remove such Sponge Iron Factory. Narendra Kumar (since deceased) was also present in the said meeting. On being asked about the view of Narendra Kumar, he announced by mike that installation and running of factory would be beneficial for the village. In the Panchayat meeting it was decided that they will remove the factory and that if anybody opposes, he may be killed. They finally decided to gather near the factory on 30-9-2004 at about 8 a.m. and on 30-9-2004, villagers 'G0- .c gathered near the factory, some persons tried to go inside the factory for work, but it was opposed by other villagers and they came back. 5. On 30-9-2004 at about 7.30 p.m. mother of Narendra Kumar (since deceased) namely Smt. Gayatri Bai (PW-4) & sister of Narendra Kumar namely Smt. Anju Lata (PW-8) were present in their house at Village Chouranga, the appellants herein along with 12 other persons came in front ofthe house of Narendra Kumar, they were shouting and abusing, they knocked at the door of the house of Narendra Kumar, they were searching for Narendra Kumar, and thereafter they broken the door (plank of the door). Accused Virendra Verma, Chandra Kumar Verma, Chaman Verma, Bholaram Verma, Kameshwar Verma, Lachhiram Verma, Murlidhar Verma, Nemeshwar Verma, Mohar Singh & Bhurva Yadav along with 20-25 other persons entered in the house of Smt. Gayatri Bai (PW-4). Wife of Jagdish namely Dhaneshwar Bai and other women were also present with the accused persons. They pressurized Smt. Gayatri Bai (PW-4) and asked about Narendra Kumar and then they searched her house. They were shouting that Narendra Kumar was supporter of the factory. During search, they found Raj Kumar (since deceased), they assaulted him and confined him in a room. Thereafter, they traced out Narendra Kumar who was hiding himself in his room. They dragged out Narendra Kumar from the room and assaulted him. Thereafter, they dragged Narendra Kumar out of his house and assaulted him till his death. Again they entered in the house of Narendra Kumar, they dragged Raj Kumar out of the house and also caused his death by causing repeated assaults. During the course of incident, Smt. Gayatri Bai (PW-4) & Smt. Anju Lata (PW-8) requested the appellants to leave Narendra Kumar. 6. Smt. Gayatri Bai (PW-4) went to Police Station Simga at 10 p.m. and lodged FIR vide Ex.P-12. Morgues were recorded vide Exs.P-1 & P-2. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Exs.P-1 & P-3, prepared inquest over the dead bodies of deceased Narendra Kumar & Raj Kumar vide Exs.P-2 & P-4. Injured Gayatri Bai was sent for medical examination. She was examined by Dr. S. Roy Choudhary (PW-9) vide Ex.P-4 and one lacerated wound of 7-2. c.m. x Vz c.m. inside the lower rib was found. - *. ^3 4 7. Dead body of Raj Kumar was sent for autopsy to Community Health Centre, Simga. Dr. S. Roy Choudhary (PW-9) conducted autopsy vide Ex.P-5 and found lacerated wounds, abrasions and contusions of total 29 in number over different parts of the body of deceased Raj Kumar. Mode of death of Raj Kumar was shock and death was homicidal in nature. 8. Dead body of Narendra Kumar was also sent for autopsy to Community hlealth Centre, Simga. Dr. S. Roy Choudhary (PW-9) conducted autopsy vide Ex.P-6 and found 32 injuries over different parts of the body of deceased Narendra Kumar, 10th rib & bone below the right eyebrow were found fractured. Mode of death of Narendra Kumar was also shock and death was homicidal in nature. 9. During the course of investigation, accused Chandra Kumar was taken into custody, he made discloser statement of stick vide Ex.P-7 and same was recovered at his instance. Accused Bhurva was also taken into custody, he made discloser statement of stick vide Ex.P-6 and same was recovered at his instance vide Ex.P-9. Accused Mohar Singh was also taken into custody, he made discloser statement of stick vide Ex.P-7 and same was recovered at his instance vide Ex.P-8. Shirt of Narendra Kumar (since deceased) was seized. Plank of door was seized from the spot vide Ex.P-11. Bloodstained and plain soil have been recovered from the spot vide Ex.P-10. Patwari prepared spot map vide Ex.P-13. Revenue record was seized and taken by the police. Seized articles were sent for chemical examination and presence of blood was confirmed over the stick seized from accused Bhurva. lO.Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, initially, charge sheet was filed before the Court of Judicial Magistrate First Class, Baloda Bazaar against twelve accused persons. The appellants herein have been shown as absconding and after their arrest another charge sheet was filed against them. The Judicial Magistrate First Class, Baloda Bazaar committed the case to the Court of Sessions, Raipur, from where the 2nd Additional Sessions Judge, Baloda Bazaar, received the case on transfer for trial. 11.1n order to prove the guilt of the appellants, the prosecution has examined as many as nine witnesses. The accused were examined / .f-^' c under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication. 12.Defence has examined Ayodhya Prasad Bosle (DW-1) & Ganesh Ram Verma (DW-2). Ayodhya Prasad Bosle (DW-1) has deposed that there was no electricity or light facility in the village at the time of commission offence. Ganesh Ram Verma (DW-2) has deposed that there are more than one Punni & Jagdish in his village. Two persons in the name of Firanta also residein his village. Substantially, he has tried to show that there are number of persons in his village of same name, therefore, without further identity, no accused can be convicted. 13.After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants in the aforesaid manner. 14. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 15.Mr. Prafull Bharat, learned counsel for the appellants, vehemently argued that names of the appellants herein have not been mentioned in the FIR, though out of eleven accused persons, nine are women. Smt. Gayatri Bai (PW-4) who herself is women has lodged report, she was knowing all women accused well, but for the reasons best known to her she has not named women appellants in her FIR which shows that at the time of commission of offence, these women appellants were not present on the spot. Evidence adduced on behalf of the prosecution is not sufficient for drawing any definite conclusion against any of the appellants herein. As per evidence of Smt. Gayatri Bai (PW-4) & Smt. Anju Lata (PW-8), few named accused who are not accused in the present case have caused few injuries to Narendra & Raj Kumar, but the appellants herein have not caused any injury to Narendra & Raj Kumar. There was no common object for causing such injury. Evidence of the prosecution reveals that some persons entered in the house of Smt. Gayatri Bai (PW-4), some have caused injury inside the house to Narendra & Raj Kumar, some have caused injuries to Narendra till his death and some have caused injuries to Raj Kumar till his death. This shows that common object of all accused persons/mob was not one and some and there was different common object for the act attributed to \ them. Therefore, all appellants cannot be held responsible for '^^^f^. •^' '"•" x 'r^- ^ commission of murder of Narendra & Raj Kumar. The prosecution was under obligation to prove common object of each of the accused and was required to prove that they were having knowledge of common object of the unla\A^ul assembly, not they may have knowledge. 16.Mr. Prafull Bharat placed reliance in the matter of Shri Bhagwan v. State of Rajasthan1 in which the Supreme Court has held that the prosecution is required to prove the fact as to who has caused injury to whom and which injury was fatal to the deceased. Mr. Prafull Bharat further placed reliance in the matter of Posuram Deshmukh v. State of Chhattisgarh in which the Supreme Court has held that homicidal death on sudden fight is punishable under Section 304 Part-1 of the 1PC. Mr. Prafull Bharat also placed reliance in the matter of Bhajan Singh and others v. State of Uttar Pradesh3 in which the Supreme Court has held that the prosecution is required to prove that all appellants were having knowledge of the common object. Mr. Prafull Bharat relied upon the matter of Ramcharan v. State of C.G.4 in which this Court has held that non-compliance of Section 157 of the CrPC casts serious doubt about the authenticity of the FIR, discrepancy in evidence and non- examination of independent witnesses create doubt on the prosecution case. 17.0n the other hand, Mr. D.K. Gwalre, learned Govt. Advocate appearing on behalf of the State/respondent, vehemently opposed the appeal and submitted that as per case of the prosecution and evidence of Smt. Gayatri Bai (PW-4) & Smt. Anju Lata (PW-8), all appellants after breaking the plank of door entered in the house and searched for Narendra, but when they found Raj Kumar they badly assaulted him. This is not the case where they have assaulted one or two blows on Raj Kumar, but firstly they assaulted Raj Kumar, then they confined him in a room and again they broke open the door of the room where Narendra was hiding himself, they dragged Narendra and badly assaulted him, thereafter, they dragged out Narendra from his house and assaulted him till his death. Thereafter, again they entered in the house of Narendra and dragged Raj Kumar and assaulted him till his death. This is also not the case in which the mob gathered and recklessly pelted stones or 1 AIR 2001 SC 2342 22009AIRSCW4613 3AIR1974SC1564 4 2007(3) C.G.LJ.138 (DB) . ••::^.^, ^^•^ ^•-' w assaulted the persons. But in the present case, all appellants after breaking the door entered in the house of Narendra, they searched for Narendra who was hiding himself in a room and when they found Raj Kumar, firstly they assaulted him and confined him in a room and after dragging & killing Narendra, again they dragged & killed Raj Kumar which shows that they were having definite intention & motive to kill & finish Narendra and his associate Raj Kumar. More than thirty injures have been noticed over the bodies ofthe deceased persons which show merciless beating given by the appellants. Two women were present in the house who tried to save Narendra & Raj Kumar and they were caught hold by women accused persons. It was a shocking and sudden incident for them. It was not possible for Smt. Gayatri Bai (PW-4) to tell the names of all accused persons at the time of lodging FIR, but on secondday she has mentioned the names of all accused persons. She was also having opportunity to implicate other villagers, but she has not stated or deposed against other villagers which shows that she has given true statement and evidence only against the persons who have committed the offence. Evidence adduced on behalf of the prosecution is sufficient to prove the fact that all appellants have formed unlawful assembly armed with deadly weapons having common object to commit murder of Narendra & Raj Kumar and they have committed murder of Narendra & Raj Kumar after committing house trespass. The trial Court has rightly convicted & sentenced the appellants as aforementioned. 18.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 19.Homicidal death of Narendra & Raj Kumar has not been substantially disputed on behalf of the appellants, on the other hand, it is established by evidence of Dr. S. Roy Choudhary (PW-9) and autopsy reports Exs. P-5 & P-6 that Narendra & Raj Kumar died as a result of huge number of injuries found over their bodies due to shock and that their death was homicidal in nature. Simple injury found over the body of Smt. Gayatri Bai (PW-4) has also not been substantially disputed on behalf of the appellants, on the other hand, same is established by evidence of Dr. S. Roy Choudhary (PW-9) and injury report Ex.P-4. 20.As regards complicity of the appellants in the crime in question, conviction is substantially basedon evidence of Smt. Gayatri Bai (PW-4) 8 s ^ '^ \ - injured witness mother of Narendra and Smt. Anju Lata (PW-8) - daughter of Smt. Gayatri Bai & sister of Narendra. 21.As per evidence of Smt. Gayatri Bai (PW-4), the appellants herein and the appellants of Cr.A.No.485/2006 had broken the plank of door of her house and entered in her house, all male members were holding stick, appellant No.9 herein namely Ishwari Bai was holding stick and others were not holding any weapon. They entered in her house and assaulted Raj Kumar, they confined him in a room, then they broke open the door where Narendra was hiding himself and dragged Narendra out of his house and killed him. Thereafter, they again entered in the house of Narendra and dragged Raj Kumar and killed him also. Smt. Anju Lata (PW-8) has substantially corroborated the evidence of Smt. Gayatri Bai (PW-4). Smt. Gayatri Bai (PW-4) has further deposed that she has lodgedFIREx.P-12. 22.Documents produced in S.T.No.42/2005 have been exhibited and marked in the instant case also. Morgues have been exhibited herein as Exs.P-1 & P-2. The prosecution has relied upon morgues Exs.P-1 & P-2 andFIREx.P-12. 23.As per FIR Ex.P-12 and morgues Exs.P-1 & P-2, probably 20-30 persons came in front of the house of Smt. Gayatri Bai (PW-4) and plank of the door of the house was broken by them. As per morgue Ex.P-1, Virendra Verma, Kameshwar Verma, Lachhiram Verma, Murlidhar Verma, Nemeshwar Verma, Mohar Singh & Bhurva along with 20-25 persons entered in the house of Smt. Gayatri Bai (PW-4). As per morgue Ex.P-2, Virendra Verma, Chandra Kumar Verma, Chamman Verma, Bhola Verma, Kameshwar Verma, Lachhiram, Murlidhar, Nemeshwar, Mohar Singh & Bhurva along with 20-25 persons entered in the house of Smt. Gayatri Bai (PW-4). As per F1R Ex.P-12, Virendra Verma, Chandra Kumar Verma, Chaman Verma, Bholaram Verma, Kameshwar Verma, Lachhiram Verma, Murlidhar Verma, Nemeshwar Verma, Mohar Singh, Bhurva Yadav along with 20-25 persons entered in the house of Smt. Gayatri Bai (PW-4). 24.As per para 6 of evidence of Smt. Gayatri Bai (PW-4), accused Dhirendra, Chandra Kumar, Murlidhar, Bhola & Nameshwar had broken the door ofthe room where Narendra was hiding, they dragged Narendra ^ and assaulted till his death. At the time of causing such injuries, other ^^'^-^ •;.....^.-.. accused Lachhiram,Chamman Verma & Komal Singh were assaulting and shouting that "don't leave kill him". After killing Narendra, accused Chandra Kumar, Mohar, Daruha, Chamman Gond & grand-son of Jhakla Bhakla entered in her house, they dragged Raj Kumar, assaulted him and killed him. 25.1n the FIR, except the name of Ishwari - appellant No.9 herein, names of other appellants herein have not been mentioned, though some description has been given in the FIR. 26.As per morgues, FIR and evidence of Smt. Gayatri Bai (PW-4) & Smt. Anju Lata (PW-8), firstly, the mob came in front of the house of Smt. Gayatri Bai (PW-4), they broken the plank of the door of her house, they entered in her house and out of the said mob, some accused persons not of this appeal have assaulted RajKumar, they confined him and again they searched for Narendra, they broken the door where Narendra was hiding at the instance of appellant No.9 Ishwari and other accused persons assaulted Narnedra and finally they killed him. This clearly shows that the incident took place in more than one part. 27.As per evidence ofthese witnesses, all appellants were present, but only appellant No.9 Ishwari has played role in searching Narendra and causing injuries to Narendra. Persons who have killed Narendra and Raj Kumar after dragging them are not the appellants herein. Entire evidence adduced on behalf of the prosecution reveals that all the appellants herein were members of the mob/crowd/unlawful assembly. 28. In order to prove charge of offence under Section 302 read with Section 149 of the IPC or Section 449 of the IPC, the prosecution was under obligation to prove the fact that all appellants herein along with other co- accused persons i.e. the appellants of S.T.No.42/2005 have formed unlawful assembly with common object to kill Raj Kumar & Narendra and in furtherance of common object of unlawful assembly they have committed criminal house trespass and killed Raj Kumar & Narendra. However, the prosecution has not proved the aforesaid facts. Inter alia, the incident took place in more than one part. Last part of the incident was related to causing homicidal death of Raj Kumar & Narendra by some accused persons not ofthis appeal. 29. In these circumstances, evidence adduced on behalf of the prosecution is only sufficient to the extent that all appellants have formed unlawful -^ "3 t .l'€h ?. 10 assembly having its common object to teach lessonor to cause simple injuries to Narendra & Raj Kumar, in sharing such common intention and in furtherance of such common object, the appellants have committed criminal house trespass and some members have caused simple injuries to Raj Kumar & Narendra. For this all appellants may be held liable for commission of offence under Sections 452, 323 read with Section 149 and 323 read with Section 149 ofthe IPC. SO.While convicting and sentencing the appellants under Sections 148, 294, 460 read with Section 34 and 302 read with Section 149 of the IPC, the trial Court has committed illegality. 31.Consequently, the appeal is partly allowed. Conviction & sentence imposed upon the appellants under Sections 148, 294, 460 read with Section 34 & 302 read with Section 149 of the IPC are hereby set aside and they are acquitted of the said charges, instead thereof, they are convicted under Sections 452, 323 read with Section 149 & 323 read with Section 149 of the IPC and sentenced to Rl for six months on each count. Sentences shall run concurrently. Sd/- sd/- R.N. Chandrakar l-RSharma Judge Judge Soma