HIGH COURT OF CHHATTISGARH. BILASPUk DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. ^-T^ APPELLANTS: RESPONDENT: Criminal Appeal No.840 of 2003 Ram Prasad alias Bhakla and others Versus State of Chhattisgarh JUDGMENT FOR CONSIDERATION HON'BLE MR. JUSTICE R.L. JHANWAR Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge Post for pronouncement of iudgment on 5th May, 2010 Sd/- T.P. Sharma Judge ^ / V \- t^y HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. /\p^ APPELLANTS: (In Jail) RESPONDENT/: Criminal Appeal No.840 of 2003 1. Ram Prasad alias Bhakla aged 25 years sonofGuha Satnami. 2. Deoprasad alias Gudda aged 28 years son ofGuha Satnami. 3. Bhanu Prasad aged 22 years son of Mohan. 4. Aghanu alias Chhakna aged 20 years son ofGuha Satnami. 5. Guha aged 70 years son of Adhar Satnami. 6. Chandan aged 35 years son of Mohan Satnami. 7. Kamal Prasad aged 30 years sonof Guha Satnami. 8. Mohan aged 50 years son of Adhar Satnami. All residents ofvillage Amlidih P.S. Mungeli Distt. Bilaspur (C.G.) Versus State of Chhattisgarh Through P.S. Mungeli Distt. Bilaspur (C.G.) (Prosecution) {Appeal under Section 374 (2) ofthe Code ofCriminal Procedure, 1973} Present: Mr. G.S. Ahluwalia, counsel forthe appellants. Mr. Ashish Shukla, Govt. Advocate for the State/respondent. JUDGMENT (_^lMay,2010) The followina iudament of the Court was passed bv T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 30-6-2003 passed by the 3rd Additional Sessions Judge (F.T.C.), Mungeli, Sessions Division Bilaspur, in Sessions Trial No.48/2003, whereby & whereunder learned Additional Sessions Judge ':-1-<~S '•^^-,^ ^. ':^^ \^-^' ?'^ e ^ "^' ^- \ after holding the appellants guilty for formation of unlawful assembly armed with deadly weapons, having its common object of commission of culpable homicide amounting to murder of Sukhidas & Vijendra, and in furtherance of the common object of unlawful assembly, committing culpable homicide amounting to murder of Sukhidas & Vijendra, convicted theappellants under Sections 148 & 302 read with Section 149 of the I.P.C. and sentenced each of them to undergo R.l. for three years & pay fine of Rs.1,000/-, in default of payment of fine to further undergo R.l. for six months and to undergo imprisonment for life & pay fine of Rs.2,000/-, in default of payment of fine to further undergo R.l. for one year, respectively. 2. Conviction is impugned on the ground that without any credible, clinching and legal evidence the trial Court has convicted & sentenced the appellants and thereby committed illegality. 3. Case of the prosecution, in brief, is that the appellants and the complainant party were in inimical terms, on the fateful day of 30-8-2002 at about 7 a.m. Vijendra (since deceased) had gone to the field with .. cattle for grazing, Sukhidas (since deceased) was also present in the field, all the appellants were present near the nala, they were armed with deadly weapons like stick & betel axe, firstly they assaulted Vijendra and caused fatal injuries, Vijendra fell down, Sukhidas came to rescue Vijendra on which the appellants assaulted Sukhidas also and caused fatal injuries, Sukhidas also fell down. Hirawan Das Dedhe (PW-1), Kanhaiya (PW-2), Smt. Shanti Bai (PW-3), Kum. Sunita Das (PW-4) & Mahettaru Das (PW-5) rushed towards the spot, they took injured Vijendra & Sukhidas in a bullock cart and proceeded for hospital, while 1 j they were on the way to hospital, Vijendra & Sukhidas succumbed to the injuries sustained by them. Hirawan Das Dedhe (PW-1) lodged FIR vide o '^^- 7W ^ 'R. ...-// /y "^w^^": ^ Y'" Ex.P-1 at Police Outpost Chilfi, Police Station Mungeli. hle also lodged merg intimation vide Ex.P-6. Registered merg was recorded vide Ex.P- 31 on 31-8-2002. Registered FIR was recorded vide Ex.P-32 on 30-8- 2002. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Exs.P-4 & P-5, preparedinquest over the dead bodies of Sukhidas & Vijendra vide Exs.P-2 & P-3. Spot map was prepared vide Ex. P-24. Btoodstained & plain soil were recovered from the spot vide Exs.P-25 & P-26. Dead body of Sukhidas was sent for autopsy to Community Health Centre, Lormi vide Ex.P-28. Dr. G.S. Dau (PW-13) conducted autopsy on the dead body of Sukhidas vide Ex.P-58 and found following injuries: - (1) Incised wound on head of 14 c.m. x 2 c.m. with underlying fracture ofskull bone (5 c.m. x 2c.m.) - right parieto temporal region. (2) Incised wound in continuation of above injury crossing midline on left side parietal bone 4 c.m. x 2 c.m. size with underlying fracture of parietal bone 2 c.m,. x 1 c.m. size. (3) Contusion over right scapular region size 7 c.m. x 2 c.m. Mode of death of Sukhidas was coma and death was homicidal in nature. Dead body ofVijendra was also sent for autopsy vide Ex.P-29. Dr. G.S. Dau (PW-13) conducted autopsy on the dead body ofVijendra vide Ex.P-59 and found following injuries: - (1) Four incised wounds (A) post part of parietal region size 10 c.m. x 3 c.m. bone deep comprising fracture of parietal bone; (B) anterior partof parietal bone 4 c.m. x 1 c.m. muscle deep; (C) 3 c.m. lateral and left side to injury No.(B) 3 c.m. x 1 c.m. muscle deep; and (D) occipito parietal region towards left side 4 c.m. x 2 c.m. muscle deep. (2) Two incised'wounds (A) behind left ear posteriorly vertical 3 c.m. x 1 c.m. and (B) over pinna transverse 3 c.m. x 1 c.m. Mode of death of Vijendra was coma and death was homicidal in nature. Patwari prepared spot map vide Ex. P-9. During the course of '^:,--' ./• ^ ^\ investigation, appellant Deoprasad was taken into custody and he made discloser statement of betel axe vide Ex. P-14. Deoprasad alias Gudda produced blood stained betel axe and the same was seized vide Ex.P- 15. Appellant Bhakla was also taken into custody, he made discloser statement of stick vide Ex. P-6 and the same was recovered at the instance of Bhakla vide Ex. P-12. Blood stained clothes of Bhakla were seized vide Ex.P-13. Blood stained clothes of Deoprasad was seized vide Ex.P-16. One stick was seized from accused Guha vide Ex.P-17. One axe (betel axe) was seized from appellant Kamal Prasad vide Ex.P- 18. One barchi (pointed spear) was seized from appellant Mohan vide Ex.P-19. Onestick was seized from appellant Chandan vide Ex.P-20. One stick was seized from appellant Bhanu Prasad vide Ex.P-21. One stick was seized from appellant Chhakna vide Ex. P-22. One stick was seized from accused Anjore Das vide Ex.P-23. Sealed clothes of the deceased were seized vide Ex.P-33. The accused were arrested vide Exs.P-34 to P-42. Accused Kamal Prasad, Mohan, Chandan, Chhakna, Anjore Das, Guharam & Bhanu Prasad were sent for medical examination vide Exs.P-43 to P-47, P-49 & P-50 and rio external injury was found. Accused Deoprasad @ Gudda & Bhakla were sent for medical examination vide Exs. P-48 & P-50(A) and abrasions were found on the bodies of both the accused persons. Articles seized from Bhakla & Deoprasad i.e. stick & betel axe were sent for examination to the doctor vide Ex.P-52. Dr. G.S. Dau (PW-13) examined both the articles vide Ex.P-61 and suspected presence of blood and opined that the injuries found over the bodies of Sukhidas & Vijendra may be caused by the aforesaid weapons. CIothes seized from the aforesaid accused were also sent for examination vide Ex.P-51 and same were examined by Dr. G.S. Dau (PW-13) vide Ex. P-60. Seized articles were sent for chemical \v^ ^ ^:' examination vide Ex. P-54 and presence of blood was confirmed on clothes of Bhakla & Deoprasad vide Ex. P-56. Copy of FIR was sent to the Magistrate on 2-9-2002 vide Ex. P-57. Statements of the witnesses were recorded under Section 161 ofthe Cr.P.C. 4. After completion of investigation, charge sheet was filed before Judicial Magistrate First CIass, Mungeli, who in turn, committed the case to the Court of Sessions, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as thirteen witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants. 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 8. Learned counsel for the appellants vehemently argued that conviction is substantially based on the evidence of alleged eyewitnesses Hirawan Das Dedhe (PW-1), Kanhaiya (PW-2), Smt. Shanti Bai (PW-3) - wife of Sukhidas (since deceased), Kum. Sunita Das (PW-4) - daughter of Sukhidas (since deceased) & Mahettaru Das (PW-5), they are interested and relative witnesses, their evidence are full of omission, contradiction and exaggeration, not safe to rely. Only the evidence of Mahettaru Das (PW-5) may be considered for conclusion of trial. In the present case, dehati nalsi (dehati FIR) Ex.P-1 reveals the time of incidentas 7 a.m. but dehati merg intimation reveals the time of incident as 10 a.m., registered FIR Ex.P-32 also reveals that time of incident as 7 a.m. but registered c T^ merg Ex.P-31 reveals the time of incident as 10 a.m. This shows that all substantial documents have been concocted with a view to ensure conviction of the appellants. The incident took place on 30-8-2002 but for the reasons best known to the Investigating Officer, he has sent the intimation of FIR to the Magistrate under Section 157 ofthe Cr.P.C. on 2- 9-2002 after three days of the incident. Inquest was prepared vide Exs.P-2 & P-3 which reveal that the deceased were assaulted with stick & betel axe, but it did not contain the names of assailants especially when the weapons used have been mentioned. Likewise, in the present case, only memorandums of accused Bhakla & Deoprasad have been recorded. Blood was found only on the clothes of Deoprasad and not on other articles recovered from the accused persons. Clothesand articles seized from Deoprasad & Bhakla have been sent for examination to the doctor, Injuries were also found on the body of appellant Deoprasad which excludes involvement of other accused persons in the crime in question. Evidence adduced on behalf of the prosecution requires minute scrutiny and on examination of the evidence of the aforesaid witnesses in the touch stone of law, their evidence did not inspire confidence, their evidence are not trustworthy and not safe to rely. Learned counsel placed reliance in the matter of State of Rajasthan v. Teja Singh and others in which the Apex Court has held that sending FIR to the Magistrate under Section 157 ofthe Cr.P.C. on reopening of the court after the holidays is not sufficient to explain the delay in sending the FIR, requirement of law is that the FIR should reach the Magistrate concerned without any undue delay. Learned counsel further placed reliance in the matter of Bijoy Singh & Anr. v. State of Bihar in which the Apex Court has held that sending the copy of the FIR under 1 (2001)38cc 147 2JT2002(Suppt.1)SC372 ^sCi\ ^sg^' ^) t^rr1-J 4/:, ,J €' ^No Section 157 of the Cr.P.C. is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in section 157 Cr.P.C. is the mandate of law. Learned counsel also placed reliance in the matter of Bir Singh and others v. The State of Uttar Pradesh in which the Apex Court has held it is not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record. The prosecution is required to examine independent witnesses and in absence of examination of independent witnesses, adverse inference against the prosecution is justified. The Apex Court has further held that sending of copy of FIR to the Magistrate concerned is not a matter of which judicial notice can be taken, it should be proved like any other fact. Learned counsel relied upon the matter of Balaka Singh and others v. The State of Punjab in which the Apex C.ourt has held that it is true that the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this can only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court will have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against 31978Cri.L.J. 177 41975Cri.L.J. 1734 '^ '"'\ ^ "^Sfims ' N "^:^.;^ ^ Av" ®^ ..^/ ^ ^^^' ^ which they are made, then this principle will not apply. In case of acquittal of four accused on the same set of evidence, remaining accused are also entitled for acquittal on the same set of evidence. The Court is required to separate grain from the chaff, if possible, in case if it is not possible, the entire evidence should be discarded. Learned counsel further relied upon the matter of Sidhu Gope and others v. Emperor5 in whichthe Patna High Court has held that the members of an unlawful assembly are not necessarily guilty of the same offence as the principal offender. It has to be determined, with reference to the facts of the case, what offence the members must have known to be likely to be committed; if such offence is a minor offence, then they should be corivicted accordingly. In absence of evidence offormation of unlawful assembly in case of sudden fight on the spur of the moment, accused cannot be convicted under Sections 147, 148 or 149 of the I.P.C. Learned counsel also relied upon the matter of Gajanand and others v. State of Uttar Pradesh6 in which the Apex Court has held that . in case of clear evidence where one party was aggressor and attacks second party, noquestion of free fight arises. Learned counsel placed reliance on the judgment dated 13-4-2010 passed by the Apex Court in Criminal Appeal No.499/2002 (M.C. Ali & Anr. v. State of Kerala) in which it has been held that copy of FIR must be sent to the Magistrate concerned without undue delay and the prosecution is required to examine independent witnesses especially in case of enmity. 9. On the other hand, learned State counsel vehemently opposed the appeal and submitted that the incident took place near the pond at 7 a.m., this is a case of murder of two persons; the accused persons were having enmity with the complainant party and all accused persons armed A.I.R. (33)1946Patna 84 A.I.R. 1954 S.C. 695 :lil.' ^ < with deadly weapons have formed unlawful assembly with a common object of committing culpable homicide amounting to murder of Sukhidas & Vijendra, and in furtherance of the common object of unlawful assembly, they have committed the murder of Sukhidas & Vijendra. The prosecution has proved formation of unlawful assembly by cogent evidence. The appellants were armed with deadly weapons, which show their intention of commission of murder of the complainant party. Once the formation of unlawful assembly and its common object are proved, individual act or role attributed to each accused is not required to be proved. Only joining of unlawful assembly and knowledge of common object of unlawful assembly are sufficient for their conviction. Learned State counsel placed reliance in the matter of Babu Singhv. State of Punjab7 in which the Apex Court has held that non-mention of name of eyewitness in the FIR, evidence of such an eyewitness who is found independent and reliable cannot be discarded on that score and non- mention of name of eyewitness in inquest report is not fatal to the prosecution, even otherwise hit by Section 162 of the Cr.P.C. Learned State counsel further placed reliance in the matter of Sukhan Raut and others v. State of Bihar8 in which the Apex Court has held that every member of unlawful assembly is liable for commission of the offence committed during the continuance of the occurrence and formation of unlawful assembly is a question of fact. Learned State counsel also placed reliance in the matter of Bikau Pandey and others v. State of Bihar9 in which the Apex Court has held that for formation of unlawful assembly and its liability, overt act is not necessary, the only thing required js that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the 7 (1996)88cc 699 8 (2001)108cc 284 9 AIR 2004 SC 997 '•."^^' .: ^:' ^ 10 purview of Section 141 of the I.P.C. Formation of common object need not be by express agreement after consultation. Learned State counsel relied upon the matter of Harbans Kaur and another v. State of Haryana10 in which the Apex Court has held that evidence of interested witness cannot be discarded, reason has to be shown when plea of partiality is raised to show that witnesses had reason to shield actual culprit and falsely implicate accused. Even a long delay in lodging FIR can be condoned if witnesses have nb motive of implicating accused and have given plausible reason for delay. Learned State counsel further relied upon the matter of Namdeo v. State of Maharashtra in which the Apex Court has held that testimony of solitary and relative witness can be basis for conviction and they cannot be characterized as 'interested', testimony of such witness requires careful scrutiny. Learned State counsel also relied upon the matter of Bhagwan Singh and others v. State of M.P.12 in which the Apex Court has held that in case of formation of unlawful assembly, prior concert or meeting of minds before the attack is not essential, existence of common object has to be asceri:ained from the attending facts and circumstances of each case. Learned Stafe counsel placed reliance in the matter of Dharmendrasinh alias Mansing Ratansinh v. State of Gujarat13 in which it has been held by the Apex Court that FIR can be written in the house of the complainant and sent for registration. Learned State counsel further placed reliance in the matter.ofYunis alias Kariya v. State of M.P. in which the Apex Court has held that crime witnessed by several persons, three of whom appearing as eyewitnesses whose testimony is tallying with each other, three injuries found sufficient for causing death, are 10 2005 AIR SCW 2074 11 2007 AIRSCW 1835 12 (2002) 4 SC 85 13 (2002) 4 SCC 679 14 (2003) 1 SCC 425 "ZT •?-<?:- "' j /./ ,.:..' ^ r s'" 11 sufficient to prove the case. Absence of overt act on the part of one of the accused is immaterial when his presence as part of unlawful assembly is established. The Apex Court further held that when role of the accused in the crime is clearly established, then failure to prove motive is immaterial. 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. 11.1n the present case, homicidal death of Sukhidas & Vijendra as a result of fatal ante-mortem injuries has not been substantially disputed on behalf of the appellants, otherwise also established by the evidence of Dr. G.S. Dau (PW-13), autopsy report of Sukhidas Ex.P-58 and autopsy report of Vijendra Ex. P-59 which reveal fatal injuries over the bodies of the deceased persons and that their death was homicidal in nature. 12.As regards complicity of the appellants in the crime in question, conviction is substantially based on the evidence of eyewitnesses Hirawan Das Dedhe (PW-1), Kanhaiya (PW-2), Smt. Shanti Bai (PW-3), Kum. Sunita Das (PW-4) & Mahettaru Das (PW-5); recovery of items and ' presenceof blood on incriminating articles at the instance ofthe accused persons. 13.1-lirawan Das Dedhe (PW-1) - uncle of deceased Vijendra, who has lodged the FIR has deposed in his evidence that on the date of incident at 7 a.m. on account of previous dispute took place one day before the incident, deceased Vijendra was present in the field for grazing his cattle and on account of heavy rain, deceased Sukhidas was also present in his field for making proper arrangement to save water in the field, all the appellants were hidden in the nala (canal), they were holding betel axe, stick & pointed spear (barchi), they asked Sukhidas & Vijendra that on '^':v.'^^ h ^:. v 12 previous day they have taken his son, then they assaulted Sukhidas & Vijendra with betel axe, stick & spear. Appellant Mohan assaulted Sukhidas with spear over his head, appellant Gudda @ Deoprasad assaulted Sukhidas with betel ax^, appellant Bhanu Prasad was holding pointed spear (barchi) and he assaulted Sukhidas on back part of his head, appellant Kamal Prasad assaulted Vijendra with axe & betel axe and remaining accused assaulted with stick. This witness cried for help, Mahettaru Das (PW-5) & Kanhaiya (PW-2) also shouted for help on which the appellants threatened them and therefore, they did not come near the spot and they were watching the incident from some distance. After commission of offence, the appellants fled from the spot, Sukhidas & Vijendra fell down, they were stained with blood, villagers came to the spot and took them to hospital by bullock cart, but they died while they were being taken to the hospital. This witness went to Police Chowki Chilfi and lodged FIR vide Ex.P-1. 14.Kanhaiya (PW-2) has deposed that he was present near the place of incident, at that time, Vijendra & accused Bhakla were quarrelling, some altercation took place between them and firstly the appellants assaulted Vijendra as of result Vijendra fell down, thereafter Sukhidas came from his field, he was also badly injured, blood was coming out from his head and from short distance he (this witness) told the accused not to assault them on which they threatened him. As per his evidence, Mahettaru Das (PW-5) was also present near the spot, appellant Bhakla & deceased Vijendra were quarrelling, some altercation took place between them and this witness told them not to quarrel, at that time, appellant Gudda came, he was holding stick and when this witness reached near nala i.e. the place of incident, he found that Vijendra was lying on ground, Sukhidas \ also came towards his field, appellants Bhakla & Gudda assaulted 13 V^ ^ ':^ Sukhidas with stick, Sukhidas asked this witness to save him and this witness tried to save Sukhidas but Sukhidas fell down. Appellant Bhakla again assaulted Sukhidas with stick and thereafter, appellants Bhakla & Gudda flee from the spot. As per the prosecution case, this witness has not fully supported the case of the prosecution. The prosecution has declared him hostile. This witness has substantially deposed that only Bhakla & Gudda have assaulted deceased Sukhidas. 15-Smt. Shanti Bai (PW-3) - wife of deceased Sukhidas, has substantially corroborated the evidence of Hirawan Das Dedhe (PW-1). Kum. Sunita Das (PW-4) - daughter of deceased Sukhidas has also corroborated the evidence of Hirawan Das Dedhe (PW-1) & Smt. Shanti Bai (PW-3). 16.1n the present case, much has been argued relating to delay in sending the copy of FIR to the Magistrate under Section 157