HIOH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 763 of 2001 Kumar Singh - Versus - State of Chhattisgarh Criminal Appeal No.784 of 2001 Nande Singh -Versus- State of Chhattisgarh, AND Criminal Apoeal No.874 of 2001 Amritlal & another - Versus - State of Chhattisgarh JUD6MENTFORCONSIDERATION z J ^rfL^- Sd/- L.C.BHADOO Judge HON'BLE MR. JUSTICE SUNIl. KUMAR SINHA^ ^•^^.;*: ^^••;;-^ Sd/- SunU Kumar Sinha Judge -c^ •^. POST FOR PRONOUNCEMENT OF JUDGMENT ON // MAY, 2007 z/ /-^ ..---.. Sd/- '^ jTffUQE i -5-2007 HIOH COURT OF CHHATnSGARH. BILASPUR Criminal Apoeal No.763 of 2001 18ai^^« -gl APPELLANT: (In jail) - Versus - RESPONDENT: Kumar Singh, son of Bajrang Singh Thakur, aged about 34 years, resklent of village Bhaismundi, P.S. Janjgir, Dist. Janjgir (Chhattisgarh) State of Chhattisgarh, Through: P.S. Janjgir, Distt. Janjgir (Chhattisgarti) Criminal Appeal No.784 of 2001 APPELLANT: (Injailsincel 7.11.95) - Versus - RESPONDENT: Nande Singh, S/o Rameshwar Singh, aged about 30 years, reskient ofVillage Bais-mundi, P.S. Janjgeer, Dtstrict Janjgeer Chhattisgarh Rajya State of Chhattisgarti, Through: Dlstoct Magfstrate, Janjgeer, District Janjgeer, Chhattisgarh Rajya. AND Criminal Appeal No.874 of 2001 APPELLANTS: (In jail) 1. 2. - Versus - RESPONDENT: Amntlal, S/o Konda Sahu, Aged 40 ysars, Dhananjay, Slo Bannath Kashyap aged 40 years, Both resldents ofVillage: Bhatsbod P.S. Janjgu", District Janjgir, Chhattisgarh. State of Chhattisgarh, y- •^- a. ~h (Appeals under Section 374 (2) ofthe Cr.P.C.) Present: Mr. Prafalla N. Bharat, counsel for theappetlant in Cr.A.No.784/2001 Mr. Somnath Verma, eounsel for the appeUant in Cr.A.No.763/2001. Mr. S.L. Bajaj, counsel forthe appeltants in Cr.A.No.874/2001. r. G.K. Bemal, Deputy Advocate General with Mr. U.N.S. Deo & tAr. O.K. Gwalre, Acklitionat Public Proseeutore for the State/respondent. Dlvision Banch: Hon'ble Mr. L.C. Bhadoo and Hon'ble . Sunil Kumar Sinha. <U. JUDGMENT (Detwered on fW-Wwi. 2007) The followina iudament ofthe Court was delivered bv L.C. Shacfoo, J. 1. Theaforesaid appeals filed by Kumar Singh, Nancte Singh, ahd Amritlat & Dhananjay, respectively, are being dlsposed of by this commen judgment as atl these appeals are arising out of the same judgment dated 12-7-2001 passed bythe addttional Sesslons Judge, Janjgir, in S.T. No.341/95. 2. By these appeals under Section 374 (2) ofthe Cr.P.C., the accused/appetlants have questioned tegaBty and correctness of the judgment of cenviction and order of sentwce dated 12 Juty, 2001 passed by the Additional Sesstons Judge, Janjgir in S.T.No.341/95, whereby leamed Additional Sassions Judge after convicting each of the accused/appellants for commission of offence under Section 302 read with Section 149 ofthe I.P.C., sentenced each ofthe accused to undergo imprtsonment for whole IWe and to pay a fine of Rs.200/-. Leamed Additional Sessions Judge ateo convicted the accusetfappellants under Section 148 of the I.P.C., but did not pass any separate sentence for that offence. 3. tn al! 36 accused persons were tried for commUting offence under Sections 302 read with Section 149 and 148 of ttie I.P.C. for committing murder of one Kalicharan in S.T. No.341/95. After conctusion ofthe trial, 4 accused persons have been convicted and sentenced as aforementioned, however, other 32 accused persons have been acquttted. 4. Case of the prosecution, in brief, is that there were two groups In Vfltlage: Bhaismudi, one group was consisUng of deceased Jawahar Singh, Bhupendra Singh & others, whereas the other group was of the accused persons w*io faced sessions trial No.341/95. There was cBspute between two groups on account of Panchayat etectlons and other reasons. In the intwvening night of ~16t & 17"' January, 1995, a meeting was convened at the house ofaccused Kumar Singh, object of that meeting was to take deciston to commit murders of Viki Shigh, Jawahar Singh, Bhupendra Singh, Shaitendra Shgh and Kaiicharan. All those accused persons formed an unlawftil assembly with the z •t] ,- s.' --^ ^- •^\ ssigijeysd;^ •i^.'?—3" above objecth/e, in furtherance of their common objectwe on 17-1-1995 the accused party committed murder of ViM Singh near Nawa Talab, thereafter, they committed murders of Jawahar Singh and his two sons namely, Bhupendra Singh & Shallendra Singh in their agrtoultural field where they were worWng, thereafter they went to Holha Chowk of Bhaismudi and committed the murder of Kalicharan by attacking him wtth Lathis & Tabbats. In this case, 36 persons were charge-sheeted who feced S.T. No.341/95, out ofthose, present accused/applteants have been convicted who have preferred these apf>eate. 5. PW-1 Lagan Bai gave information Ex-P/1 to Police Station Janjgir in Nflllage Bhaismudi to the effect that on 17-1-95 at about 12.40 hours her son Kalicharan left the hous&to bring cattle. About 15-20 minutes thereafter, she heard commotion, therefore, she came in Holha Chowk and saw that Nande Singh, Jaipal Kurmi, Resham Kurmi, Guha Kurmi, Baran Kurmi, Basant Das, Amrit Sahu, Nirmal Kashyap,Santosh Singh, Meghnath Sahu, Metabai, Raj Kumar Singh, Prahlad Singh, Rameshwar Singh, Lala @ Nand Kumar, all residents of village Bhaismudi, out of them, Amrit Sahu and Nirmal Kashyap were canying Tabbal in their hands, remaining persons were carrymg lathi in their hands. All these persons were attacking Kalicharan. He was lying on the ground. After attacking they went towards Bhalbhadra pohd. She went near- Kalicharan who was lying on the ground, blood was oozing out of his head. He was already dead. The persons nearby the ptece of the incictent might have seen the incident. In the Panchayat Elections Kalicharan supported Jawahar Singh, therefore, Amrit & others were angry wth Kalieharan and that is w<iy they have committed murder of Kalicharan. Dehati merg intimatlon B(.-P/2 was atso given by Lagan Bai, based on which FIR Ex-P/60 was registered. Merg intimation Ex.-P/61 was given by PW-14 A.K. Mitra, sub inspector. 6. The Investigating Officer after gwing notice Ex-P/43 to the Panchas, prepared hquest Ex-P/44 on the body of Kalicharan. Site plan Ex.-P/46 ofthe place of occurrence was prepared by the Revenue Inspector. The dead bo<ty of Klalcharan was sent for postmortem examination to the Primary HeaUh Centre, Janjgir under Ex.-P/56 where Dr. H.R. Tharwanl conducted postmortem on the body of Kalicharan. He opined that cause of death was shock due to extemal and intemal haemorrhage, as a result of injuries on head. 7. After completion of investigation, charge shee/t was flled In the Court of Judcial Magistrate, 1st Ctass, Janjglr, who in tum committed the case to the Sessions .luctge, Bilaspur from where l^imed AdcNttonat Sessions Judge recewed the case on transfer for trial. z :;ayi-:Nig!agil» 8. The prosecution in order to establish the charge examhed 15 wtnesses at the trial. Statements of the accused persons were recorded under Seetfon 313 Cr.P.C. in which alt the accused persons denied material appearing against them in the prosecution evidence. 9. Leamed Additional Sessions Judge after hearing counsel for the respeetive parties eonvicted and sentenced the present accused/appeltants as aforesakl whereas, acquitted other 32 accused persons. 10.We have heard leamed counsel fbr the parties. 11. Learned counsel fbr the aceused/appellants have not disputed homicidat death of Kalicharan. Moreover, Dr. H.R. Tharwani (PW-12) has stated that on 18-1- 95 he conducted postmortem on the body <rf Kalicharan. He noticed 3 lacerated wounds on various parts of the head. There was fraeture of right parietal bone. There was laceration on the brain material. Ctotted blood was present. There was fracture of right occipito parietat bone. The fracture was of •frontat right side bone. There vias laceration in the brain materiat and duramata. Alt the injuries were ante mortem in nature. The cause of death was intemal and extemal haemorrhage. Injuries v re sufRcient in the ordtnary course of nature to cause death. Death of Kalicharan was homicidal In nature. Therefore, in view ofthe above medical evidence, it is established that death of Kalicharan was homicidat in nature. 12.As far as invoh/ement of the accusecyappellants in crime in question is concemed, leamed counsel tor the accused/appeltants white chwwng the attention of the Court towards evidence of PW-1 Lagan Bai and PW-3 Dadu Prasad, argued that in fact, these wftnesses had not wttnessed the crime. There is improvement in the Court evictence. Therefore, ttie prosecutton has feiied to establish invoh/ement of the accused/appellants n the crime n question. 13.0n the other hand, teamed counsel for the State/respondent supported the judgment ofthe trial Court. 14.1n order to appreciate argument advanced by leamed eounsel for the respectwe parties, we have perused evldence, record and judgment of the trial Court. PW-1 Lagan Bai, mother of the deceased, has stated that her son ;Kalicharan left the house to bring cow. After some time, when she heard . sound that cow has come, therefore, she came out ofthe house to catch cow, at that tini®,she reached Holha Chowk and saw that accused Nande, Ja^>al, Kumar, Amrit, Dhananjay, Raj Kumar, Melabai, Kumar Singh, Rameshwar Singh, Nandkumar, Santosh, Meghnath, Balchand, Devilal, Nirmal and Basant were running after her son Kalicharan, among them Basant was earrying rod, Amrit was carrying Farsa, Nande was carrying lathi and other persons were earrying lathi. All of them encircted Kalicharan and attaeked Wm. She was witnessing the incident standing behind the watl. Thereafter, the aecused persons left towards Bhalbhadra pond. 15. PW-3 Dadu Prasad has stated that on 17 January 1985 in between 10.30 to 11.30 a.m. he was present in Holha ChovA near the shop. Along with him Firat Sahu, Krishna Kumar Sahu, Pushpendra Dubey and Ramesh Shamia were also present. From the vicintty side, Kalicharan was coming erying saying 'Save Save'. 4-5 persons were after him. Amrit Sahu, Nande Singh, Kumar Singh, Dhananjay Kashyap, Guha Kashyap, Janak Yadav, Baran Kashyap were the persons who were chasing Kalteharan. Kumar Singh was carrying rod. Dhananjay was carrying Farsa. Remaining persons were carrying lathis. When they started attacking Kalicharan in Holha Chowk, he became fri^itened. They entered the shop of Firat. Hatf an hour thereafter he went to his house. In para-3, he has stated that Kumar Singh, Nande Singh and Amrit all the three attacked. Nande Singh attacked wfth rod. Reniaining persons attacked with lathi. Amrit and Nande had attacked with lathi. When he was going to the residence, mother of Kalicharan enquired that where is Kalicharan? On which he said that he is in Hotha Chowk, thareafter he left to his house. In cross-examination, he has stated that it is incorrect that Amrtt Sahu was carrying Farsa. In his statement Ex-P/45 he had not said that Amrit was carrying Farsa. He had not disclosed to the police that Jaipal, Ram Kumar Choubey, Rohit Kashyap, Resham, Basant, Rohti Karsh, Anandram were chasing Kalicharan. There was hole in the door of the shop through which he was peeping out and watchlng the incfdent. It is correct to say that after attacking Kalicharan the accused persons teft, Ihereafter he came out of the door. While giving statement Ex-P/45, he disctosed to the 1.0. that Dhananjay was carrying Farsa. Why poltee peopte have not written he does not know. He atso disclosed that Nande Singh attacked wtth lathi. He dkl not cUsclose that he attaeked with rod. He has further stated that Kumar Singh had attacked with rod. If it has been \written in para-3 of examination-in-chief that Nande - attacked with rod, he does not know. tn para-20ofcross-exanimation, hehas stated that when Kallcharan swas being beaten, alt the persons had not entered , the shop, thereafter he himself has stated that Fffat, Krishna kumar, Pushpendra and Ramesh entered the shop. He did not enter the shop. He u ":;T' [M^ 1:«N^ entered the shop when beating started. It is not correct that he entered the shop before beating commenced. It is correct that his friends entered the shop before beating started. After closing the door, chaln was closed. A wood of door was broken, therefore, hole was at the broken ptace. 16.Perusat of the above evidence of these witnesses shows that they are contradictory to each other. Lagan Bai (PW-1) in her report Ex.-P/1 has stated that at about 12.40 hours Kalicharan left to bring cattle. 15-20 minutes thereafter, she heard commotion. She sawthat Nande Singh and otherwere attacking Kalicharan. Amrit Sahu and Nirmal Kashyap attacked with Tabbal. Remaining accused persons attacked with lathi, whereas, in her Court evidence, she has stated that her son Kalicharan went to bring cow, thereafter hearing sound of cow, she went to catch cow, she reached on the Holha chowk where the accused persons were chashig her son Kalteharan. Amrit was carrying Farsa. Basant was carrying rod wAiereas, in para-10 of her evidenoe she has stated that she was not abte to disclose the name ofanyone when slre gave report to the police. She said that Shw Sena people were there. As she was not conscious, that is why she had not disdosed the name. She signed the papers after regaining consciousness. Her statement yuas recwded by the 1.0. after 2-4 days when she became eonscious. After 4 days of the incident, 1.0. had recorded her statement. In para-13 of her evklence, she has stated that while giving report Ex.-P/1 and statement Ex.-D/l she cHsclowd to the police that first Nande attacked, thereafter Basant and thereafter Amrit attacked. Thereafter, all the persons started attaeking. If that is not written in the statement and report, then she does not know. She was watehing the incident from the house of one Verma who was not at his restetence. In para- 23, she has stated that Raut used to shout from Naya Talab that cow is going, therefore, they used to bring cow. tt is correct that in between Naya Tatab and Holha Chowk there are 500 houses, theretore, when cow was to be brought from Naya Tafab, how she went to Hotha chowk which was after 500 house. She has also stated that when she gave report Ex.-P/1 and statement Ex-D/1, she disdosed that on hearing shout of Raut she went to Holha chowk. Ifthat is not written in these documents, then she cannot assign any reason. While giving report Ex-P/1 and statement Ex.-D/1, she did not disctose that she was watehing incident standing behind the walt. Therefore, there is improvement in the Court evidence. There are material omissions in the report Ex.-P/1 and her police case diarystatement Ex.-D/1. In her Court evidence, she has stated ^hgt Nande, Jaipal, Kumar, Amrit, Dhananjay, Rajkumar, Metabai, Kumarsingh, RameshwarSingh, Nandkumar, Santosh, Meghnath, Batehand, Dovilal, Nirmal z ^ ,. ilffi^ "^•'"-••^' J and Basant were chasing. Amrit attacked with Farsa, Nande attaeked with lathi vrfiereas, Dr. H.R. Tharwani (PW-12), who conducted postmortem, has stated that there were 3 lacerated wounds on various parts of the head. There w@s no injury of Farsa i.e. incised wound on the bocty of the deceased, uAiereas, this witness has stated that Amrit attaeked with Farsa. She has atso stated that all the accused persons attaeked wth lathi, whereas, onty 3 Injuries were found on the body of the deceased. Had so many persons, who were more than 30 in number, attacked Kalicharan with lathi, then there would have been more injuries on the body ofthe deceased. 17.PW-3 Dadu Prasad has stated that Nande attacked wtth rod whereas, PW-1 has stated that Nande attacked with lathi. He has further stated that other persons attacked with lathi. Amrit and Nande were attaGking wtth tathi, whereas, Lagan Bai (PW-1) has stated that Amrit attacked wth Farsa. PW-3 has also stated that Dhananjay attacked the deceased with Farsa. But no such injury was found on the body of Kalicharan. In para-3, he has stated that when he was going to his residence, mother of Kalicharan enquired about Kalicharan, then he said that he is in Holha chowk. If evidence of this wttness te believed, then he saw the incident. When he was going to his residenee, mother of Kalicharan enquired from him, then he disclosed to her that he is in Holha Chowk. If that evidence is betieved, then Lagan Bai had not witnessed the incident. Her evidence is that she went towards Holha chowk to catch cow, there she saw that the accused persons were chasng Katicharan and they attacked, whereas, this wtness has stated that mother of Kalicharan enquired from him that where Kalieharan was. Moreover, PW-3 Dadu Prasad, in the flrst instance, has stated that when he saw the accused pereons attacking the deceased, being fnghtened, he entered the shop of Firat, half an hour thereafter he had left for his house. Therefore, there was no occaston for this witness, when he entered the shop, to see attack being made by the accused persons. In para-7, he has stated that he was watching the incident through hote of the door of shop of Fvat Sahu. In para-20, he has stated that it is incorrect to say that all the persons entered the shop of Firat. Firat, Krishna kumar, Pushpendra and Ramesh entered the shop. He did not enter the shop. He entered only after beating started, whereas, in para-2, he has stated that he entered the shop of Firat and watched the inddent through hote. Evidence of these two witnesses are contradictory to each other. There are number of improvements in their evidence, which they have not stated in the poNce case diary :statement. Even they have stated that Amrit and Dhananjay were carrying Farsa and tathi whereas, there was no incised wound found on the ^- ^ i^ ^SSS'-.^MWi. i-—:-«Ba§? body of the deceased. There are only 3 lacerated wounds. If persons, who were more than 30 in number, had attacked wth lathi and Farsa, then it was not possible to cause only 3 injuries, it would have been more number of hjuries. PW-3 has stated that when he was standing near the ^iop at HoNia chowk, Firat Sahu, Krishna Kumar, Pushpendra Dubey and Ramesh Shanna were also present, but these independent witnesses have not been exammed. 18.For the above infirmities in the evidence ofthese two wtnesses, particulariy, when they are closely related to the deceased, evtelence of these two witnesses does not inspire confldence of the Court that in faet, they had witnessed the crime in question. No explicit reliance ean be placed on their evidence. Therefore, the prosecution has failed to estabtish that the accused/ appellants had, in fact, attacked the deceased. 19.The accused/appellants have been convicted vuith the akl ofSection 149 I.P.C. As out of 36 accused persons, only 4 accused persons have been convicted. All other named accused persons have been acquitted by the trial Court, therefore, these four persons cannot be convicted with the akl of Section 149 of the IPC. The law on the point is that if less than 5 persons named and some other unknown persons said to have been involved in the crime, then persons whose number is tess than 5 can be convicted with the aid of Seetton 149, but where number of persons is more than 5 and all named accused persons are there, then if out of those persons some accused persons are acquftted that they were not member of unlawhil assembly or member ofthe assailant party, thereafter if remaining persons are less than 5, then such persons cannot be convicted with the aid of Sectton 149 ofthe IPC. We are fortffied m ourviewby the judgment of the Apex Court In the matter of Nethala Potlwira|u and others V. Stsrte of Andhra Pradesh reported in AIR 1991 SC 2214 wherem the Hon'ble Apex Court held that- The appellants being onty three in number, there was no question of their forming an unlawful assembty within the meaning of Section 141,I.P.C. It is not the prosecution case that apart from the seven accused persons there were some other unidentified persons who were involved in the crime. The High Court clearty fell into error in conflrming the convtetion and sentence of the appellants under Sertton 148 and on applying S.149, I.P.C. on the ground that they fonned ' an unlawful assembly along with some unidentified )- _&; ^ SI'%T<£S4» -^-•^••^^ persons. The prosecution case from the very beginning was that A1 to A7, the named persons, formed the unlawful assembly. A-4 to A-7 having been acquitted, the remaining three appellants cannot be convicted under Section 148 and on applying S.149 t.P.C." 20. In the matter of Amar Singh V. State <rf Punjab reported in AIR 1987 SC 826 the Hon'ble Apex Court held that- "Seven accused were charged for murder under Section 302 read with Section 149, I.P.C. Two out of the seven accused were acquitted by the trial Court and on appeal the Hjgh Court acquitted one more accused. However, the High Court convicted four of the accused under Section 302 read with Section 149, I.P.C. and sentenced them for life imprisonment. The four convicted accused appealed to this Court and it was contended on their behalfthat afterthe acqufttal of three accused persons out of seven, the appeltants who were remaining four cannot be held to have formed an unlawful assembty wthin the meaning of Section 141, I.P.C. and accordingly the charge under Seetion 149 was not maintainabte. The Apex Court held that 'As the appetlants were only four in number, there was no question of their forming an unlawful assembly withln the meaning of SectKMi 141, I.P.C. it is not the prosecution case that apart from the said seven accused persons, there were other persons who were invotved in the erime. Therefore, on the acqutttal ofthree accused persons, the remaining four accused, that is, the appellants, cannot be convicted under Section 148 or Section 149, t.P.C. for any offence, for, the first condition to be ftilfilted in designating an assembly an 'unlawhil assembly' is that such assembly must be of flve or more persons, as required under Section 141, I.P.C." 21~:Simi(arly, in this case also, the prosecution ffled charge sheet against 36 accused pereons for committing murder of Kalicharan, in furtherance of the I. C-! ;.' L-, •svl 1 -^_-___&. 10 u^ iiS»a:i"ls. common object of unlawful assembly constituting 36 accu^ed persons, 32 accused persons have been acquitted by the trial Court, therefore, only 4 accused persons are left out. There is no prosecution case that apart from 38 accused persons otheswere also invotved in the incident. Charge against the accused persons is only under Sections 302/149 and 148 of the I.P.0.;, therefore, on the above analogy, conviction of the aecused/appellants under Sections 302 read with Section 149 and 148 ofthe I.P.C. cannot be sustained. 22.For the fbregoing reasons, conviction and sentence imposed upon the accused/appellants under Sections 302 read with Section 149 and 148 ofthe I.P.C. cannot be sustained. 23.1n the result, the aforesaid appeals are allowed. Convictlon and sentence frnposed upon the accused/appeltants under Seetions 302 read with Section 149 and 148 of the I.P.C. are set aside. They are acquttted of the said charges. They be released forthvuith, if not required in any other cas®. ZTl. Sd/- L.C.BHADOO Judge Sd/- SunU Kumar Sinha Judge Barve ••^s^^i;;^-"'