K -a s % HIGH COURT OF CHHATTISGARH. BILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA. C.J.& HON'BLE SHRI SUNIL KUMAR SINHA. J, Criminal Apoeal No. 289 of 2001 Sukhiram Vs. State of Chhattisgarh & (And connected Criminal Appeals No. 332 of 1993 & 416 of 1993) —< ) ^ JUDGMENT HON'BLE SHRI JUSTICE RAJEEV GUPTA Foi-consideration Sd/- ^unil K"mar sinha Judge Sd/- Chief Justice Post for Judgment :/^./01/2011 Sd/- 3 1/12-a// ^L 31^. S>s. >i "'y^a ;• .f / v /. ^-^" HIGH COURT OFCHHATTISGARH AT BILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI SUNIL KUMAR SINHA. J. APPELLANT CRIMINAL APPEAL N0 289 of 2001. Sukhiram S/o Kaliram Satnami, Aged about 52 Years,R/o Village Sodi Vishram P.S. Pathariya Distt. Bilaspur. RESPONDENT Versus State of Chhattisgarh CRIMINAL APPEAL N0 332 of 1993. APPELLANTS l*411!ii^i^^!^eJT^ty-;;s».. RESPONDENT 1. Das, son of Kaliram Satnami, aged 45 years (Dead- Name deleted) 2. Chenaram, son of Das Satnami, aged SOyears. 3. Pyarelal, son of Gochand Satnami, aged 35 years. 4 Gochand, son of Dhaniram Satnami, Aged 58 years, AI1 cultivators and residents of Village Sodi-Bishram, Police Station Patharia, District Bilaspur, M.P. (Now State of Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) And; CRIMINAL APPEAL N0 416 of 1993. APPELLANTS .J> 1. Vijay Kumar, son of Udairam Satnami, aged 20 years. 2. Vidhya Prasad, son of Udairam Satnami, aged 28 years. ^ •^ ^s^'^ "^S^E^ Criminal Apueals No. 289 of2001: 332 of 1993 & 416 of 1993 3. Bishram Prasad, son of Udairam Satnami, aged 30 years. 4. Anjori, son of Hira Satnami, aged 22 years, All cultivators and residents of village Sodi-Vishram, Police Station Patharia, District Bilaspur, M.P. (Now State of Chhattisgarh) Versus RESPONDENT The State of Madhya Pradesh (Now State of Chhattisgarh) ^^ APPEALS UNDER SECTION 374 (2) OF THE CODEOF CRIMINAL PROCEDURE Appearance: Mr. Abhay Tiwari, Counsel for the appellants. Mr. J.A. Lohani, Panel Lawyerforthe State. JUDGMENT (4.01.2011) The following judgment of the Court was delivered by Sunil Kumar Sinha, J: (1) These appeals have been directed against the judgment dated 27 of February, 1993 passed in Sessions Trial No. 53/89 by the Third Additional Judge to the Court of Sessions Judge, Bilaspur. By the impugned judgment, the appellants have been convicted u/ss 148and 302/149IPC and sentenced to undergo R.l. for 1 yearand imprisonment for lifewith fine of Rs.100/-. (2) Appellant- Das died during the pendency ofthe appeal. Therefore, his name has been deleted from the cause-title of Criminal Appeal No. 332/1993 and the appeal filed on behalf of appellant- Das standsabated. •Ksa ^^isB^^is^.:.:.;! UA^^^Ba Cnsiinal Appeals No. 289 of 2001; 332 of 1993 & 416 of 1993 (3) The facts, briefly stated, are as under:- 11 accused persons were tried for the offence punishable u/ss 148 & 302/149 IPC.Accused No.1- Udairam died during the pendency of the Sessions trial. The case of the prosecution is that on 7.12.88, the accused persons formed an unlawful assembly, participated in rioting with deadly weapons and in furtherance of the common object of the said assembly, committed murder of deceased- Ramlal. On 7,12.88 at about 11.30 a.m., Ramlal went to the guava-garden of Bahadur Kanwar. Dayaram (PW-1) was the watchman of the garden. When the deceased was eating guava with Dayaram (PW-1), the accused persons came there with deadly weapons and asked Dayaram for giving them guava. The allegations are that when Dayaram denied, the accused persons assaulted the deceased by /a /s and tabbals. They caused multiple serious injuries to the deceased, who succumbed to those injuries. Dayaram (PW-1) ran towards the village and informed the villagers. He also informed Kalyan Singh (PW-6 - grand-son of the deceased). Kalyan Singh (PW-6) lodged the merg intimation (EX.- P/2) and the First Information Report (Ex.-P/1) in the concerned policestation. The above incident was witnessed by 5 eye- witnesses namely Dayaram (PW-1), Foolbai (PW-2), Govind (PW- 3), Kejhin Bai (PW-4) and Sukhchain (PW-9 - son of the deceased). The learned Sessions Judge, on a close scrutiny of the evidence, held that all the accused persons were members of the unlawful assembly; they participated in rioting with deadly weapons; shared common object; and in furtherance thereof committed murder of the deceased. Thus 10 accused persons, who were alive at the time of the judgment were convicted as above. Out of 10-convicted accused persons, accused No.7- Kaliram has not challenged his conviction. However, the remaining accused persons have filed the present 3 appeals. , ) I 3 '\.: 7 •<^-tecS"' ^; '"1!%?.^ ^iv4y' ''^^K."^i;s"' Cnminal Appeals No. 289 of2001; 332 of 1993 & 416 of 1993 (4) Mr. Abhay Tiwari, learned counsel appearing on behalf of the appellants, has not disputed the homicidal death of the deceased. He argued that on appreciation of the evidence of eye-witnesses, it does not appear as to who gave fatal blows to the deceased. He argued that on a small matter of non-fulfillment of the demand of guava made by accused persons and at thesame time allowing the deceased to eat guava the whole incident took place, and there was no common object of the accused persons to commit murder of the deceased. Therefore, all the accused persons cannot be convicted under Section 302 with the aid of Seetion 1.49 IPC. He placed reliance on thejudgments of Panchaiah and others -vs.-State of Karnataka. 1994 SUDR (2) SCC 235 and Sarman and others -vs- State ofM.P.. 1993 Supp (2) SCC 356. (5) On the other hand, Mr. J.A. Lohani, learned Panel Lawy^r appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) In Panchaiah (Supra), six injuries on various parts of the body of deceased were caused by cycle chain and club. The first injury was lacerated wound on the middle of the head measuring 2 cms x 1 cm and bone deep. The secend injury was a bruise (exhymosis) black coloured on the antero laternal aspect of the right arm extending from the right shoulder joint aspect measuring 23Gms x 9 cms. The third injury was again a bruise (exhympsis) black coloured on the interior aspect of the left upper arm upto the left elbow joint measuring 10 cms x 9 cms. The J> ./-•\. Criminal Appeals No. 289 of2001; 332 of 1993 & 416 of 1993 {^^§ fourth injury was an abrasion black colour on the left patella measuring 3 cms x 2cms. The fifth injury was also abrasion black colour just middle to the injury No.4. The last injury was again only an abrasion on the left side of the abdomen at the level of the umbelious 6cms. The doctor opined that there was extravasation of blood just below the head injury No.1. He opined that the death was the result of shock and haemorrhage. He further opined that injury to the brain and the vessels was due to external injury No.1. Injuries 1, 4 & 5 would be caused by a hit with a cycle chain. The Apex Court held that the medical evidence shows that there was only one injury, which was serious, on the head and the other injuries were only bruised abrasions and if really the intention of the appellants was to cause death, they would have inflicted more serious injuries. The Apex Court found that only one injury on the head which unfortunately resulted . in extravasation of the blood causing injury to brain and under these circumstances it cannot be said that the accused persons had common intention to cause the death of the deceased. However, the injuries inflicted would show that they had only knowledge in which case they are punishable u/s 304 Part II read with Section 34 I.P.C. (8) In Sarman's case (supra), the Doctor, P.W. 19 who conducted the postmortem, noticed 17 injuries. Out ofthem, injury Nos.1, 3 , 10, 11 and 14 were described as incised wounds. Though they resulted in bleeding but no other damage was noticed. It was only injury No.15 which has resulted in a depressed fracture of parietal bone and ultimately proved in membrane puncture. Though the Doctor in general way stated, cause of death was due to multiple injuries but he has specifically stated that on ihjury No.15, he noticed a depressed fracture of parietal bone which -~<c ^ Criminal Aoceals No. 289 of 2001; 332 of 1993 & 416 of1993 individually was sufficient to cause death of the deceased. It was a case in which the prosecution could not prove that which of the accused caused the fatal injury. The Doctor, who conducted the postmortem, while opining generally that the multiple injuries caused the death, specifically stated that the depressed fracture was individually sufficient to cause death of the deceased. The Apex Court held that which of the accused has caused the fatal injury was not pointed out by the prosecution, therefore, in the circumstances all the accused persons cannot be said to have the common object of committing the murder of the deceased, though they may have knowledge that the blows given were likely to cause death and if any one of the accused exceeded the common object and acted on his own, that would be his individual act but in absence of evidence as to who acted so, conviction of accused appellant u/s 302/149 cannot be sustained and sentence of life imprisonment altered to thafu/s 304 Part 11/149 sentencing 7 years R.l. (9) Dayaram (PW-1) deposed that on the fateful day, deceased- Ramlal was present with him in guava-garden. The accused persons came there and said him that he should permitt them to eat guava as he has permittedRamlal. When he denied, they started pressurizing him and thereafter they assaulted Ramlal. He stated that accused-Das, Pyare and Chena were armed with tabbals and other accused persons were armed with lathis. In last para of his examination-in-chief, he specifically deposed that Pyare assaulted the deceased by tabbal on his head and Das assaulted him by lathi on his back. Thereafter all the accused persons assaulted him by lathis. We find that his evidence regarding specific role played by accused Pyare and Das is not there in his case ^^^^ {-s-i!i'Si;it^;<;;;3Sj; .i?UfJt Criminal Appeals No. 289 of2001; 332 of 1993 & 416 of 1993 diary statement (Ex.-D/1) recorded u/s 161 Cr.P.C. Therefore, after ignoring the above omission his evidence about the accused persons appears to be general. Foolbai (PW-2) also made general allegations about all the accused persons. Though she stated that accused Pyare, Das and Chena were armed with tabbals and other accused persons were armed with lathis, but she could not depose about the specific role played by the accused persons. Govind (PW-3) does not depose about actual incident. He deposed that after the cries made by Dayaram (PW- 1), he saw that Gochand, Pyare, Kali and Sikhi were running away through the bank of river. He also saw that Vidhya, Vishram, Vijay, Anjori and Udairam were also running towards Pondi through the bank of river. According to the evidence of Govind (PW-3), he only saw that the accused persons were running. Kejhin Bai (PW-4) also deposed in general manner proving the presence and participation of the accus6d persons in assaulting deceased-Ramlal. Sukhchain (PW-9) is son of the deceased. He deposed that when he heard the cries of Dayaram (PW-1), he rushed towards the guava-garden and saw that the accused persons were assaulting his father. He became frightened, therefore, he did not go to theplace of occurrence and went towards the field, where the other witnesses were harvesting the crops. (10) In appreciation of evidence of the above eye-witnesses, it appears that all the witnesses have given omnibus statement regarding participation of the accused persons in assaulting the deceased and none of them could state as to who assaulted the deceased and in what manner the deceased sustained the injuries. Dr. N.S. Chandel (PW-11) had conducted the post-mortem examination. He found that there was a '^ Criminal ApnealsNo. 289 of2001: 332 of 1993 & 416 of 1993 ^ ..-^ lacerated wound of4cm x2 cm x bone deep on the right parietal region of the deceased. There was an incised wound of7 cm x2 cm on the right parietal region. He also noticed acontusion of 18 cm x 10cm on the forearm having fracture of bone. There was also a contusion of12 cm x 9 cm on the back. There was another lacerated wound of2cmx2 cm x 1 cm below the right knee. hle also noticed 2 incised wounds of 30 cm and 28 cm on the left thigh. The tissues of the thigh were cut and blood vessels were also cut. The bone beneath injury was also cut. On internal examination, he found that there were fractures of right and left parietal bones and blood clots were present in occipital, right parietal and right temporal area. He opined that the cause of death was injuries caused to the head and combinedeffect of head injury and haemorrhage and excessive blood loss. In the present case, the prosecution could not prove that which of the accused has caused the fatal injuries to the deceased. Though there were 1 1 accused persons in this case, but only 6-7 injuries were found on the person of the deceased. It appears that during the quarrel with the deceased, one or two accused inflicted fatal blows to the deceased but who inflicted the fatal blows was not pointed out by the prosecution. Therefore, in the facts and circumstances all the accused persons cannot be said to have the common object of committing the murder of the deceased, though they may have knowledge that the blows given were likely to cause death and if one or two accused exceeded the common object and acted on their own, that would be their individual act, but in absence of evidence as to who acted so, conviction of accused/appellants u/s 302/149 cannot be sustained and the same has to bealtered to one u/s 304 Part-11/149 IPC. -^ ) J-L ^ vatti Criminal Appeals No. 289 of 2001: 332 of 1993 & 416 of1993 (11) For the foregoing reasons, the appeals are partly allowed. While maintaining the conviction and sentences awarded to the appellants u/s 148 IPC, their conviction and sentences u/s 302/149 IPC are set-aside. Instead, they are convicted u/s 304 Part-11/149 IPC and sentenced to undergo R.l. for 7 years. Theabove sentences awarded to the appellants shall run concurrently. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge ;;istjiis<iisifiy'Esrt i^^^^'^^S1-^^