HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Raieev Gugta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. e Criminal Appea! No. 596 of 1992 APPELLANTS 1 Anand Kumar aged 37 years S/o Bulwaram Daharia, Constable, S'.F. 11‘“ Batalion, R/o Village: Sundari, P.S. Pasari, District Raipur. 2 Ganeshram aged 53 years S/o Sudarshan Satnami, Cultivator (Dead- Name deleted vide order dated 29.7.201 0) § Kamal Prasad agedr 35 years S/o Ganesh Satnami, Teacher, Purva Madhyamik Shala, Devsundara Rambharos aged 39 years S/o Shobhai Satnami, Cultivator (Dead- Name deleted vide order dated 29.7.2010) Chheduram aged 37 years, S/o Mandua Satnami, Cultivator (Dead- Name deleted vide order dated 29.7.2010) Shersingh aged 20 years S/o Barathu Satnami, Cultivator Bhavdas aged 36 years SloéShobhai Satnami, Cultivator Sandas aged 32 years S/o Bulwa Satnami, Cultivator (Dead- Name deleted vide order dated 29.7.2010) Bhoorava aged 45 years S/o Sadaram satdami. Cultivator (Dead- Name deleted vide order dated 29.7.‘201 0) All R/o Village: Sundari P.S. Palari, Tahsil: Baloda ‘Bazar, District: Raipur,MP (Now Chhattisgarh) rimihal Apgeal Nov. 5969f 1992 Versus RESPONDENT The State of Madhya Pradesh ‘ a (Now State of Chhattisgarh) (Criminal AQQeal under Sec-tion 374 (2) of Thé Code of Criminal ProcedureL1 973) Agpearance: Mr. Abhay Tiwari, Advocate for the appellants. MrsJameel Akhtar Lohani, Panel Lawyer for the State. J i JUDGMENT (19 .1o.2o10) Following judgment of the Court was delivered by Sunil Kdmar Sinha, J. ”(*1) This appeal is directed against the judgment dated 11th of May, 1992 passed in Sessions Trial No. 198/88 by the Additional Sessions Judge, Baloda Bazar, District Raipur. (2) By the impugned judgment, the appellants have been convicted and sentenced in the following” manner, with a direotien to run the sentences concurrently:- Vt. Conviction u/s 148 IPC R.l. for three years u/s 302/149 IPC‘ u/s 307/149 IPC‘ u/s 4/5 of the Explosive R.l. forthree years Substances Act, 1908 Sentence Imprisonment for life R.l. for five years C Criminal Agyeal No. 596 of 192 9 (3) Appellant No.2— Ganeshram, appellant No.4- Rambharos, appellant No.5- Chheduram, appellant No.8— Sandas & appellant No.9- Bboorava died during the pendency of the appeal. Th‘eir names were deleted from the cause-title of the appeal vide order dated 29.7.2010. Therefore, the appeal t"lled on behalf of these appellants stands dismissed as abated. (4) The facts, briefly stated, are as under:- u . Accused persons, deceased persons and injured- Choubisram (PW-3), all were residents of village Sundari, P.S. Palari‘.‘ On 17.4.88 at about 8.00 a.m., deCeased: Chetram was taking his son Kapildeo. @ Guddu (since deceased aged about 8 months) to the hospital on his motorcycle. Choubisram (PW-3) was sitting as a pillion rider on the motorcycle holding Kapildeo. When w they reached in front of the house of accused— Darasram, the accused persons, 11 in number, came on the way and attacked over them by country made bombs. They also assaulted deceased — Chetram and injured- Choubisram (PW-3) by lathis & tabbal. Chetram received multiple injuries and succumbed to those injuries on the place of occurrence itself. Choubisram (PW—3) any how escaped from the place of occurrence and took shelter in a near by house of BaisakhuKewatrln the meanwhile, on some informatiOn, the police party reached to the village. They foudd'Choubisram (PW-3) in injured condition in the house of Baisakhu Kewat. A dehatinalishi (Ex.-P/15) was recorded at about 11.00 a.m. at the instance of injured- Choubisram (PW-3). Kapildeo @ Guddu, son of Chetram was found alive near a neem'tree near the place of occurrence. He was immediately taken to Govt. Hospital, Palari, Gfrom where, he was shifted D.K. Hospital, Raipur. However he also died onthe same day at about’4.55 p.m. during the course of his treatment. 4 Criminal Appeal No. 596 of 1992 (V) (Vi) Inquest on the body of deceased- Chetram was prepared and it was sent for post-mortem examination. The post-mortem examination was conducted by Dr. R.P. Pandey (PW-11). The post-mortem report is Ex.-P/29. Dr. Pandey noticed a‘ollowing external injuries on the body of deceased- Chetram:- (i) lncised wound, 6 inches long on left mastoid region. Muscle deep cutting all blood vessels; (ii) Incised woun obliquely placed chopping the face, jaws, trachea, larynx, vessels and cervical arteries; ii) lncised wound of 2 inch x 1/2 inch x 1/2 inch over the left forearm; r (iv) Multiple small blackish burn area over the chest and left side of abdomen; Lacerated wound of 1 inch xJ/z inch over left lumbar region having blackish region; Lacerated wound of 1/2 inch x 1/2 inch x 1/2 inch over the right side of front of chest & (vii) Three lacerated wounds size between 1/2 inch x 1 inch over the left hypo- condrium region. On internal examination, he found fractures over the left temporal bone, both the jaws and back bone. The brain matter has come out. Pieces of stones were found deep into muscles on the chest and inside the stomach. There was haemorrhage in small intestine. All the injuries were ante-mortem and were caused by hard and sharp Objects and blasting. 0' The dead body of deceased- Kapildeo @ Guddu was also sent for post—mortem examination which was conducted by Dr. K.L. Gopawar (PW—10). His post-mortem report is Ex.—P/28. Following external injuries were found on the body of deceased- Kapildeo:— (i) Abrasion 1.,5\cm x 0.5 cm on the right lumbar region; t " (ii) Abrasion 1 cm x 0.5 cm on the left side of back upper part of lumbar region; (iii) Three abrasions 0.5 cm‘x 0.5 cm on occipital region; d ( 5 Criminal Appeal No. r596 (£1 992 (iii) Bruise 1.5 cm x 1 cm on the left forehead. Haematoma present on the right tempero parietal region. On internal examination, it was found that there were fractures on right temporal, parietal and frontal bones: The brain l membrane was rLrptured. Blood clots were found in the brain tissues. All the injuries were ante-mortem. The causerof death was ‘coma as a result of injury to the brain. lnjured- Choubisram ‘ (PW-3) was examined by Dr. Ghansyam (PW-20). He found following injuries on the person of ‘houbisram (PW-3):— (i) Lacerated wound 11 cm x 7 cm over lower part of left leg; bones and muscles exposedr s (ii) Lacerated wound 7 cm x 1 1/2 cm below the right knee joint; (iii) Lacerated wound 2 cm x 1 cm x bone deep below the chin; (iv) Lacerated wound 3 cm x 1 cm over the left portion of cheek & (v) Lacerated wound over the left eye—lid, pupil was not visible properly on account of said injury. He opined that except injury No.2, all the injuries could be caused by blast. He referred the victim for X—r‘ay examination and further treatment to D.K. Hospital, Raipur. The injury report is Ex.- P/62. (4) The prosecution came with a case that the accused persons formed an unlawful assembly, participated in rioting with deadly weapons and in prosecution of the common object of the said assembly committed murder of Chetram and they also attempted the life of ‘Choubisram (Pw.3). (5) The charge-sheet was filed against 11 accused persons. Two accused persons namely Ratiram and Darasram were acquitted by the G Sessions Court holding that their names do not find place in the requisition (Ex.-P/36) sent for medical examination of victim Choubisram (PW-3). However, the appeliants were convicted and sentenced as G ‘ é forementioned. a i (6) The conviction of the appeliants is based on eye-witness account of Choubisram (PW-3), Jugbai (PW-17) and Khorbahrin Bai (PW-16). The Sessions Court found their testimonies to be reliable and it was also found that‘their testimonies were corroborated by the medical evidence t as also dehatina/[shi (Ex.-P/15) promptly Iodged by Choubisram (PW—3). x \ a (7) Mr. Abhay Tiwari, learned counsel appearing on behalf of the appeilants, argued that the main allegations are against appellants- ”Anand Kumar and Kamal Prasad and the allegations against the other appellants are vague and general; there was no evidence of formation of an unlawful assembly and sharing of common object by the appellants, therefore, the conviction with the aid of Section 149 IPC was not proper. He also argued that Jugbai (PW-17) was the wife of deceased-Chetram and was interested witness and Choubisram (PW-3) &wKhorbahrin Bai (PW-16) were also closely associatedtbthem, therefoire, the learned Sessions Judge erred in law in relying the testimonies of these witnesses. (8) On the other hand, Mr. Jamel Akhtar Lohani, learned Panel Lawyer' appearing. on behalf of the"'*State, opposed these arguments and supported the judgment passed by the Sessions Court. r ,//V ‘ . ,7 m3? , _ ,oEmJjm? ‘ ,3 a :6 mmmmiaq=6 8330: oEmg mm am ,_ mm o vwEwmQEm3.02% 023m mmmmasmhm , w 3m=< wxmasm 5¢ noamsgozm $.mwa . _<_ ma : Se oz<§ 3 3 =6 mvum=mim Emm. woww wowsi:5m a Q H 3 Nswwmi :V . mwmmm. wSN, ,>\_»,_3&,mo Mg» 3m. mcuaam _, vwinLvr EH<<3mw 33,8cm Eo<mmmcm5£m umao:s30 3umqmEmacmq Em: c:_w§c_ mm$3§$$ #:mgm éwwozm0* a3mgg mmoao: 43; _O m 02o: 3m Eo<amm=§ E:om<ma umSc méma Q *moaE38: LazaE m3 mmw¢3§ m: :_m§:_.mmmm35_<~ 553263 35m. 5 _,‘7 .oEm‘qWSVoam. m:mmmmacqo“a<m 2, 30.3 umaosmnacm$a m . é3m9m, a. mpmmmmaa? ogm_m$m o _<r2 , agwmmozomwVKAV $25 mmwqaa.c gcwmao~=: cmooamm $5 ma 3 no ama E3m5mq :5 mmmma _, noammmw_ 0*me w umaezm so Ema :53. ummmEw <<§¢mmmm mag , .056 v» <<=3oEimaa a 8 g < E (12) Taking note of the above judgment and many otherjudgments, the I Supreme Court held in Pandurang Chandrakant Mhatre and Others — Vs- State of Maharashtra, (2009) 10 SCC 773 that the two ingredients of ’Section 149 are (i) com-mission of offence by members of unlawful assembly; and (ii) such offence must be in prosecution of common object of that assembly, or must be such as members of that assembly knew it to be likely to be committed. For determining common object the conduct of each member of unlawful assembly before and at the time of attack is relevantconsideration; object of unlawful assembly is a question of fact i which has to be determined keeping in view nature of assembly, arms carried by ‘membersf‘and behaviour of members at or near scene of incident. ; “(13) In Sikandar Singh & Ors. —Vs- State of Bihar, 2010 AIR SCW 4426, the Supreme Court held that the common object does not require a prior concert and a common meeting of minds before attack. It is enough if each member has same object and all act in assembly to achieve that object. Common object has to be ascertained from acts and language of members and from consideration of all surrounding circumstances. For determination of the common object, conduct of each member of unlawful assembly, before and at the time of attack and motive of crime are some of the relevant considerations. (14) ln ‘Dharnidhar’ —Vs- Statemf Uttar Pradesh and Others & other connected appeals, {2010) 7 SCC 759, the Supreme Court held that in case where the conviction is with the aid of Section 149 IPC, only question to be‘ determined i such a case is whether assembly consisted of fi or more persons and whether said persons entertained one or ore of common objects specified in . 141. For determination of comon object, conductof each of the members of said assembly before attactat the time of attack and thereafter, as well motive for crime are relevnt considerations. However, time of forming unlawful intent is ot materal because it is possible that an assembly, hich is lawful to begin with, ubsequently becomes unlawful. Lastly, it is not even expected of prosecution to assign particular or independent roles played by each accusd once it is proved they were members of ulwful assembly and e na had asaulte deceased resulting in death. (15) lt is on these principles, we hall examine the case of the appellants. (16) Choubisram (P-3) deposed that on the fateful ay, he was called by Cheram to tae his child to Khartola Hospital. He sat on the motorcle holding the child of Chetram (Kapileo). Chetram as driving the motorcycle. As soon as the eached near the house of Darasram, appellant- Anand Kumar started shouting like W—W and Anand and Kamal throw bombs on them. The bomb hit the motorcycl ey fell down from the motorcycle At that time Ganesh Daras Bharos Bhavdas Bhoorava Shersmgh Chhedu Sandas and Ratiram were also there. He Identified all of them while his examination in the Court. Chetram started running away. Again a bomb was thrown. He was , praying to the accused persons not to assault them but the accused -\ >M_,_ . Criminal Apgeal No. 596 of 1992 n ve m‘ S m ‘ k‘ as a n i w s a- sd s ”s W d ‘t k yc d w y r e Th 10 Criminal Appeal No. 596 of 1992 persons started assaulting Chetram by Iathi & tabbal. Thereafter Anand and Ka‘mal threw bombs on this witness. Bomb hit on the wall. Another bomb hit on his leg and eye. After receiving such injuries son of Chetram E (Kapildeo) fell doWn from his hands. Thereafter he any how ran away from the place of occurrence and went inside the house of Baisakhu Kewat.; No body was there in the house. A lady namely Soniya came there after 10 minutes. He narrated the story to her, who put a lock on the house.;After two hours many persons gathered there, then only the lock was opeTiéd. He lost his left eye in the’said incident. He admitted to lodge t dehatinalishi (Ex.-P/1 5) to the police officer. t . (17) Khorbahrin Bai (PW-16) deposed that on the fateful day about 8.00 a.m., Ganga Bai came towards them crying that Chetram is being assaulted. On this, she along with Jugbai (PW-17), Sadhbai, Ramshila, Kaushaliya & Bannin, ran towards the place of occurrence. They saw that the accused persons namely Anand, Kamal, Bhavdas, Bharos, Daras, Ganesh, Sandas, Rati, Bhoorava, Shersingh and Chhedu all were assaulting deceased- Chetram by lathi & tabbal & rapa. Anand and Kamal started abusing—them. Accused- Darasram was,holding a rapa, s accused- Ganesh was holding a tabbal and other accused persons were holding lathis. In the cross-examination, she admitted that they reached to the place of occurrence just after the bomb blast. She admitted that no bomb was thrown before her. . ‘i:\ 5) (18) Jugbai (PW-17) is the wife of deceased Chetram. She also deposed in similar fashion. She also named Kamal, Anand, Bharos, ’fTi l 1 1 Criminal Apgal No. 596 of 1992 p Ganesh, Sandas, Rati, Bhavdas, arasram, Shersingh, Bhoorava and D Chhedu nd deposed the they were assaulting r husband by lathis & a he tabbal. (19) Tugh these witnesses were put to lengthy cross-examination by ho the defnce, the defence has not been able to elicit any such é may be said that they were falseiy implicating the appellants for io B c circumstnce, on which, either their testimonies may be discarded or it commissh f murder of deeased- Chetram. The version of Choubisram tPW—3) duiy corroborated b dehtina/ishi (Ex.-/15 which was promptly'ioded by him to the concerned poiiceiofticer. According to dehatinashi (Ex.-P/15), the incident tok place t about 8.15 a.m. and /i o a nalishi was recorded at about 11 .00 a.m. e find that the names of all the W persons are mentioned in dehatina/ishi and it has also been mentioned that firstly they had used bombs and thereafter they also used tabbal & lathis. The version of PW—3 is further corroborated by his medical examination, in which, the above injuries were found by the Doctor and it was opined that the injuries could have been caused by the blast. Not only this, his version is also corroborated by the post-mortem report (Ex.—P/29) of Chetram which shows that he had‘also received bomb blast injuries and had further received lacerated and incised injuries which could have been caused by hard & blunt and sharp objects. (20) \Ihe versions of Khorbah‘fm Bai (PW-16) and Jugbai (PW-17) appear to be quite natural. Their houses are situated at some distance from the place of occurrence. They deposed that they saw the accused /“....’’’... e is y a E) é 1*1 pefrsons assaulting the deceased by lathis & tabba/, but they did not detzmse about throwing of bombs. It comes in the cross-examination of PW-16 that they had reached to the-place of occurrence after the bomb blast and they only saw that the accused persons were assaulting the deceased by lathis & tabbal. PW—3, Choubisram, is an injured witness. Therefore, there is hardly any doubt about his presence on the piace of occurrence. Out of other two witnesses, Jugbai (PW-17) is the wife of the deceased. She had a reason to rush to the piace of occurrence after hearing that the accused persons were assaulting her husband. It was a day time incident. Therefore, it cannot be doubted that these witnesses would nbt have correctly identified the assailants. The witnesses and the accused persons are the'residents of same village, therefore, there was hardly any chance of committing mistake in the identification of the accused persons by these witnesses. y E at (21) After due appreciation of the evidence of these witnesses, it comes that hrstly the two accused persons namely Anandram and Kamal threw bombs on the deceased and thereafter the other accused persons started assaulting the deceased bylathis and tabbal while he fell down on the ground. lf we eXamine the conduct of each accused it"would appear that they had an intention to commit murder of the deceased and for that they had made preparation by forming an unlawful assembly which is evident from the series cf events which took place in a sequence when firstly two accused persons ’th'r‘ew bombs on the deceased and when the deceased fell down, all of them attack overhim with deadly weapons like Iathis & tabbal and caused multiple injuries to him. i/V ‘i f T l ¢ (22) For the foregoing reasons, we do not md any fault in ,the finding recorded by the Sessions Court that the appeilants were the members of unlawful assembly, they participated in rioting and in prosecution of their common object, they threw bombs over the deceased and when the decea‘sed fell down, they assauited him by lathis & tabbal. ¢ .4. (23) So far as argument of Mr. Tiwari about the witnesses being the p relatives or interested witnesses is concerned, it has been held by the Supreme Court in catena of decisions that merely because the eye witnesses are famiiy‘members their evidence cannot be per-se discarded. Relationship is not a factor to affect credibiiity of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. ln such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible (Please see- Sonelal —Vs- State of M.P., 2008 AIR SCW 7988). a (24) In Namdeo —Vs- State of Maharashtra, 2007 AIR SCW 1835, the Supreme Court held that a witness who is a relative of deceased or victim of the crime cannot be characterized as ‘interested’. The term ‘interested’ r postulates that the witness has some direct or indirect ‘interest’ in having the accused somehow or otheeconvicted due to animus or for some other oblique motive. The Supreme Court also observed that a close relative cannot be characterized as an ‘interested’ witness. He is a ‘natural 1 7i itne. His evidence, however, must be scrutinized carully. If.on such wss ef scrutiy, s evidence is found to be intrinsicaHy reliable, inherently probale and wolly trustworthy, conviction can be based on t ‘sole’ b h he testimony of such witness. Close relationship of witness’ with the deceed or victim is o ground to reject his evidence. On the contrary as n close elative of the ceased would normally be most reluctant to spare the rel culprit and falsely implicate an innocent one. g (25) n» Dharnidha (supra), the Supreme Court furer reiterated tha i r th t there l no hard-and-fas rule tat family embers can never be true is t h m witnees to the occurrence and that they will always depose falsely ss befor court. The Supreme ourt held that a close relative of deceased e C does not, per—se, become an interested witness. An interested witness is one who is interested in securing conviction of a person out of vengeance or enmity or due to disputes and deposes before couit only with that itentn and not to further cause of justice. However, version of nio intereted witnes cannot be thrown overboard, but has to be examined s s carefully before accepting the same. When their statements find corrooraon by other_ witnesses, expert evidence and “circumstanc of case clearly depict completion of chain of evidence pSinting out guilt of accused, then statements of so-called “interested witnesses" can be relied upon by court. (2§) In case on hand'firstl‘y‘we may note that Choubisram (PW-3) is not. a relative of the deceased. Khorbahrin Bai (PW-16) is also not a close relation of the deceased. Jugbai (PW-17) is wife of the deceased. We 14 Criminal Appeal No. 596 of 1992 n hi r de a bti es 1 5 have gone through their entire evidence. On scrutiny of their evidence, we do not find any compeliing reason to disbelieve their testimonies. We have already held that their testimonies were rightly believed by the Sessions Court and there is no material on record to say that they were unreliable witnesses. Therefore in absence of any cogent reason to discard the testimonies of the above three witnesses, the argument of Mr. Tiwari cannot be accepted. a (27) Fo‘r‘the foregoing reasons, we do not nnd any substance in the ‘appeal. The appeal, nled by the appeliants, therefore, is liable to be dismissed and is hereby dismissed. It is stated thatthe appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Appellant No.1- Anand Kumar, appellant No.3- Kamal Prasad, appellant No.6- Shersingh and appellant No.7- Bhavdas are directed to surrender immediately to undergo the sentences imposed upon them. 1" I. Sd/- Chief Justice vid Criminal Appeal No. 596 of 1992