HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: HON’BLE SHRI RA3EEV GUPTA, C.J. 85 HON’BLE SHRI SUNIL KUMAR SINHA J. Criminal Appeal No. 994 of 1993 APPELLANTS 1 Roopram son of Laxman Satr‘1ami, aged 36 years Jag‘fvan son of Dhaniram Satnami, aged 31 years Govindram son of Chhatram Satnami, aged 24 years A11 Residents of Village: Parsabhata, Police Station Janjgir, District Bilaspur, M.P. (Now Chhattisgarh) w. Verss u s RESPONDENT The State of Madhya Pradesh (Now State of Chhattisgarh) Criminal Appeal No. 1014 of 1993 APPELLANT Pardesi son of Dhaniram Satnami, aged 31 years, Resident of" Parsabhata, Police Station Janjigir, District: Bilaspur, M.P. (Now‘ Chhattisgarh) Versus RESPONDENT The State of Madhya Pradesh (Now State of Chhattisgarh) Criminal Appeal No. 588 of 1994 Rameshwar son of Janiram Satnami, aged 31 years, Resident of Parsabhata, Police .APPELLANT Station Jarijgir, District: Bilaspur, M.P. (Now Chhattisgarh) 2 Criminal Appeals No. 994 of1993; 1014 of1993; 588 of1994; 589 of 1994; 590 of 1994 & 38 of 2005 RT ESPONDEN Versus ‘ The State of Madhya Pradesh (Now State of Chhattisgarh) Criminal Appeal No. 589 of 1994 "u'? RT ESPONDEN a u APPELLANT Hetram son of Puran Satnami, aged 44 years, Resident of Parsabhata, Police Station Janjgir District‘ Bilaspur, Mrp. (N’ow Chhatti'sgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) Janiram son of Muritram, aged 46 years, Resident of Parsabhata, ‘Police Station Janjgir, District: ‘ Bilaspur, M.P. (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) RESPONDENT Criminal Appeal No. 38 of 2005 APPELLANT RESPONDENT And Laxmi Prasad son of Dhaniram, aged 4O years, Resident of Parsabhata, Police Station Janjgir, District: Bilaspur, M.P. (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) Criminal Agpeal No. 590 of 1994 3 Criminal Appeals No. 994 of 1993; 1014 of1993; 588 ofl994; 589 of 1994; 590 of 1994 & 38 of2005 APPEALS UNDER SECTION 374 {2l OF THE CODE OF CRIMINAL PROCEDURE Mr. V.C. Ottalwar, Advocate for the appellants in Cr.A. Nos. 994/93 & 1014/93; Mrs. Ranjana Jaiswal, Advocate for the appellant in Cr.A.’ No. 38/2005. Mr. V.C. Ottalwar, Advocate also appeared for the appellants as amicus-curiae in Cr.A. Noe. 588/94; 589/94 & 590/94. »u .i The following .judgment of the Court was delivered by Sunil Kumar Sinha, J: Appearance : Mr. Kishore Bhaduri, Additional Advocate General with Mr. . Sudnir Bajpai, Dy. Govt. Advocate for the State. V 9 JUDGMENT (23.03.2011) (1) These appeals are directed against the judgment dated : 17.9.1993 passed in Sessions Trial No. 103/88 by the First Additional SessionsUudge, Bilaspur. By the impugned judgment, the appellants have been convicted and sentenced in the following manner with further direction to run the sentences concurrently:— S.No. ' Accusedl Appellants Conviction Sentences 1 Rameshwar, ‘ u/s 148 IPC R.I. for 1 year Roopram,Govin dram, Laxmi u/s 302/ 149 IPC Imprisonment for life and fine of Prasad, Janiram, Hetrarn, Pardesi (in 2 counts) Rs.1,000/—, in default 0f payment of fine S.I. for 3 8r, Jag'ivan (All the appellants) months. (in 2 counts) 2- Rameshwar (A— 6), u/s 326 IPC R.I. for 5 years and flne of Rs.l,OOO/-, in default of payment of fine S.I. for 3 months 4 (2) The facts, briefly stated, are as under:- Firatram (PW—12) had purchased the lands of Srht. Foolbai, sister of Lehararam Satnami (A-5). There was dispute regarding the said land. Earlier, the reports were also lodged regarding small disputes. In fact, on that account, villagers had divided into two groups. On 25.7.87 at about 3.00 p.m. small children of both the groups quarreled, on which, Sahasram (PW—13) intervened. Hetram (A-2) and Janiram (A-l) quarreled with Sahasram. Janirarn assaulted him by tabbal and Hetram assaulted him by lathi. Shatrugan (since deceased) and Supetan — Up-Sarpanch Criminal Appeals No. 994 of1993' 1014 of1993‘ 588 of 1994‘ 589 of 1994‘ 590 of 1994 & 38 of2005 3 Roopram (A—lO) u/s 325 IPC u/s 323 IPC u/s 323 IPC R.I. for 3 years and fme of Rs.1,000/-, in default of payment of fme S.I. for 3 months R.I. for 1 year R.I. for 1 year 4 Govindram (A-20) u/s 323 IPC R.I. for 1 year 5 Janiram (A—l) u/s 326 IPC R.I. for 5 years and fme of Rs.1,000/n, u in default of _ payment of flne S.I. r for 3 months bx] i Het'ram (A—2) u/s 323 IPC R.I. for 1 year ' Pardesi (A-4) , u/s 324 IPC (in 2 counts) R.I. for 1 year and fme of Rs.1,000/-, in default of payment of fine SII. for 3 months (in 2 counts) Jagjivan (A-19) u/s 324 IPC r 5 R.I. for 1 year and flne of Rs.1,000/-, in default of payment of fine S.I. for 3 months 5 Criminal Appeals No. 994 of 1993; 1014 of 1993; 588 of 1994; 589 of 1994; 590 of 1994 & 38 of2005 W1 »a (since deceased) came there for rescue. Seeing this, the remaining accused persons, came there with deadly weapons, all formed an unlawful assembly, participated in rioting and in furtherance of 'the common object of the unlawful assembly committed murder of deceased Supetan and they assaulted Shatrugan, Umedram (PW—16), Sahasram (PW-13), Tirathram (PW-4),- Neekram (PW-15), Firatram (PW—12) and Smt. Gangamati (PWall). Supetan, thus lost his, life and 7 ‘persons, ' including deceased Shatrugan who later on died during the course of his treatment, received various injuries in the said incident. At about 8.l5 p:m., the matter was reported to the concerned police; station‘by Kamta Prasad (PW-14), on which, the First Information Report (Ex.-P/26) was registered. The FIR contains the names of all the appellants and other accused persons. It also contains the names of injured eyeewitnesses and'the deceased with almost full details of the incident. Injured persons were sent for their medical examination through requisition memos Ex.— P/78 to Ex.—P/87. They were examined by Dr. P.K. Narula (PW—23). He noticed following injuries on the injured persons:- Umedram [PW-.16}: (i) Incised wound 7 cm \XnO_.5 c.m. on the right ‘ parietal region; 1‘ (ii) Contusion reddish in colour 1O cm x 2 cm on the right scapular region. Injuries were simple. His injury report is Ex.-P/ 78—A. Shatrugan [later died during the treatment); (i) Incised wound 12 cm x 1.2 cm on right parietal region having fracture of underline bone; (ii) Incised wound 5 cm x 0.8 cm on right occipital region; (iv) Abrasion 0.5 cm x 0.5 cm on middle 1/3rd portion of left‘ leg; (iii) Abrasion 3 cm x 1 cm on left leg; I (v) I Abrasion 1 cm x 1 cm on the’lateral side of left ‘ elbow. Criminal Appeals No. 994 of 1993: 1014 of 1993: 588 of 1994: 589 of 1994; 590 of 1994 & 38 (#7005 Injury No.(i) 8r, (ii) were caused by sharp edged weapon, whereas the other injuries were caused .by hard and rough object. Injury No.(i) was endangerous to life: His general condition was ' not good, therefore, he was admitted in the hospital. 'His injury report is EX.-P/ 79-A. Sahasram jPW— 13):, (i) Incrsed wound 4 cm x 1 cm on the right parietal region, (ii) Inc1sed wound 6 cm x 0 5 cm on the left parietal region (iii) Contusmn 15 cm X 15 cm on middle of the left thigh (1v) ‘Contusron 15 cm x 2 cm on the right scapular region / (v) Contusmn 15 cm x 2 cm on the left scapular region Injury No.(i) 81; (ii) were caused by sharp edged weapon and injuries No. (iii) to (V) were caused by hard and rough object. Injuries No. (ii) to (v) were simple injuries. He was also admitted in the (hospital. His injury report is Ex.—P/80-A. Tirathram (PW-4): (i) Inelsed wound 4 cm x 0 5 cm on right fronto parietal region I as 1v. (ii) Lacerated wound 1h cm x 0 3 cm on the 1th parietal region, (iii) Contuswn on the left forearm havmg swelling 1n the arm (iv) AbraSion 1 2 cm x 0 2 cm on the right forearm (v) Contus1on 4 cm x 2 cm on the right forearm near injury No (1v) Injury No. (i) was caused by sharp edged weapon, whereas injuries No. (iii) to, (v) were caused by hard and rough object. He was advised for X—ray examination of injury No. (iii). Other injuries were simple. His injury report is Ex.-P/81-A. 7 Criminal Ap.p_e_a1s No. 994 of 1993- 1014 of 1993' 588 of 1994- 589 of 1994' 590 nf‘ 1994 & 38 of2005 Neekra’m [P 451: (i) Incised wound 5 cm x 0.5 cm on the right parietal region; (ii) Contusion 4 cm x 4' cm on the upper portion of right forearm; (iii) Contusion 10 cm X 1.5 cm on the middle of the left forearm. There was severe pain on pressing the radius bone. ' @ All the injuries were caused by hard and rough object. Injury No. (i) 8B (ii) were simple. He was advised‘for X— ray examination of injury No. (iii). His injury report is Ex.-P/82-A. u t‘ Firathram (PW-12): “i i (i) Incised wound 2.5 cm x 0.5 cm on the right ‘ r (ii) forearm; Two contusions of 0.5 cm x 0.5 crn on the right i middle finger; v (iii) Contusion and swelling on the right forearm; (iv) ‘ Abrasion 0.7 cm x 0.5 cm on the lower portion of . right thigh; ' (v) Contusion 5 cm x 5 cm surrounding injury No. (iv). Injury No. (i) was caused by sharp edged weapon, whereas the other injuries were caused by hard and rough object. He was advised for X—ray examination of injury No. (iii). Beside injury No. (iii, all the injuries were simple. His injury repor, X.-3-A. - i (i) Incised wound 15 cm 5 cm on the front portion of left houlder. It has spread to the left portion of chest. Fracture of head of humorous was visible. Head of the left humorous was also dislocated. Iuries were grievous. She was also admitted in the hospital. Her injury report is Ex.—P/ 84—A. On X—ray examination, it was found that Tirathram (PW—4) sustained fracture on his left radius bone. The report is Ex.-P/49 and X—ray plate s Ex.- P5. Gangamati (PW—11) had also sustad fracture , C ) tis §P/8 Gangamati (PW11): x s nj i ]0 ine na 8 Criminal Appeals No. 994 of1993; 1014 of 1993; 588 of 1994; 589 of 1994; 590 of 1994 & 38 of2005 on acronym-of scapula. Her report is Ex.-P/ 53 and X~ ray plate is Ex.-P/ 54. Firatram (PW-12) also sustained fracture on his right ulna. His report is Ex.—P/55 and X-ray plate 1s Ex.—P/ 56. The dead body of Supetan was examined by Dr. U.C. Sharma (PW-2). He notice following injuries on his body:- (i) Lacerated wound 3 cm x 2 cm x 2 cm above left eyebrow (ii) Lacerated Wound 1 cm x 1/2 cm x 1A) cm above rlght eyebrow (iii) Laceratecl wound 2 cm x 2 cm on the left fronto parietal region (iv) Lacerated wound 1 cm x 1/2 cm x V2 cm on the left eyebrow a) (vi) ‘ Inc1sed wound 5 cm x 4 cm X 5 cm on the front portion of the neck Trachea was completely cut all blood vessels of left portlon of neck were also cut. A11 the injuries were ante—mortem. Cause of death was haemorrhage on account of cutting of blood vessels as also the injuries sustained on trachea. The death was homicidal in nature. The post—mortem report is Ex.- P/5. Shatrugan also died dunng the course of his treatment on 26 7 87 His body was also sent for post~ mortern examinatlon which was conducted by Dr. H.R Tharwani (PW-6). He noticed aimost simnar exterhai injuries like his MLC report on the body of deceased— Shatrugan. On internal examination, ‘he found that there was depressed fracture on the right parietal bone. It was extending to tempero-parietal region. There was another fracture of 8 cm x 1.2. cm on the occipital bone. It has depressed the duramater. Blood clots were found on duramater and the portions of . brain beneath the above fractures were badly ruptured. He opined that the above injuries were ante- v s (v) . Defused lacerated wound on the 11p, N n 9 I Criminal Apggals No. 994 of1993; 1014 of1993; 588 of 1994; 589 of 1994; 590 of 1994 & 38 of2005 mortem 'and sufficient to cause death in ordinary course of nature; cause of death was haemorrhage on account of the above injuries and injuries to the brain; and the death was homicidal in nature. In further investigation, the accused persons were taken into custody and their memorandum statements (u/s 27 of the Evidence Act) were recorded and various weapons were seized at the instance of the accused persons. The . weapons were sent for examination to Doctor,who opined that the injuries *caused to the deceased persons as also to the injured witnesses‘ could be caused by above weapons. He advised for chemical examination of the blood like stains carried over the weapons. r~.a. (3) After completion of the usual investigation, charge—sheet was-- filed against the 20 accused persons before the Chief Judicial Magistrate, Bilaspur, who in turn committed the matter to the concerned Sessions Court, from Where, the it was received. on transfer by the First Additional Sessions Judge, Bilaspur who conducted the trial. Out of 2O accused persons (A-l to A—20), one iaccused (A—7) died during the course of trial‘and 11 accused ipersons (A—3, A—5, A-8 and A-ll to A-l8) were acquitted. However, ithe above 8 appellants/accused persons (A-l, A-2, A—4, A-6, A-9, ‘A—lO, A—19 86 A~20) were convicted and sentenced as aforementioned. a (4) The conviction of the appellants is mainly based on eye- witnesses account of injured witnesses namely- Tirathram (PW-4), 10 Cn’minal Appeals No. 994 of 1993; 1014 of 1993; 588 of 1994; 589 of 1994; 590 of 1994 & 38 of2005 Smt. Gangamati (PW-11), Firatram (PW—12), Sahasram (PW—13), Neekram (PW-15) and Umedram (PW—l6). (5) Learned counsel for the appellants argued that the evidence of the eye-witnesses are contradictory and there are many omissions in their evidence, therefore, they are unreliable. We have considered the evidence of all the eye-witnesses. Gangamati (PW-l 1) deposed that when she heard hue and cry, she along with her‘shn Supetan (since deceased), Ghasnin Bai and Tirathram (PW—4) reached to the place of occurrence. Supetan was assaulted £ e by Roopram (A210) and Govindram (A—20) by lathis. When he fell down Rameshwar (A—‘6) gave tabbal blow on the neck of her son’ SupetanrHer other son Shatrugan (since deceased) Was assaulted by Hetram (A—2) by lathi. When he fell down Janiram (A-l) assaulted him 'by tangi. Thereafter Rameshwar (A-6) assaulted rhim by tabbal. When she tried to saveher sons, Rameshwar (A-6) assaulted her by tabbal on her shoulder. Mr. Ottalwar) has referred to 161 Cr.P.C. statement (Ei.iD.[ 1) of Gangamati (PW— l'fl). not: He argued that she didLstate the manner of assault as above in her above statement which creates a doubt on her testimony. We find that Gangamati (PW—ll) has taken the names of all the appellants in her 161 Cr.P.C. statement and she has stated that the deceased persons and she herself was assaulted by accused c persons who had used lathi, tabbal, pharsi and tangi. The minor omissions relating to manner of using the weapons by the accused persons and sequence of the incident would not make her 11 Criminal Apgals No. 0/ m 994 of 1993; 1014 of 1993; 588 of 1994; 589 of 1994; \ 590 of 1994 & 38 of2005 evidence unreliable. She very clearly deposed that the deceased persons were assaulted simultaneously and she also received injuries in the said assault which was caused to her by Rameshwar (A—6) by tabbal. (6) Tirathram (PW-4) has also taken the names 'of all the appellants and he has also deposed about the role played by each of them. He deposed that Pardesi (A-4), who was also involved in the assault of'the deceased persons, assaulted him by tangi. He v lhas been confronted with his case diary statement (Ex.~D/2). We x ( do not firfd any material omission or contradictions in the evidence of Tirathram (PW—4) so as to treated him as unreliable. @ (7) Sahasram (PW~13) deposed that Hetram (A-2) assaulted him by latht'. Janiram (A-l') came on the call of Hetram (A—2) and 8—10 persons (other accused persons) also came there. Janiram (A—l) assaulted him by tangi. When he cried to save, Shatrugan (deceased), Supetan (deceased) and Gangamati (PW—11) came to the place of occurrence. Seeing them, theiaccused persons left him and Govindram (A—20) and Roopram (A—lO) assaulted deceased~ Supetan by lathis. When Supetan fell down, Rameshwar (A—6) assaulted him by tabbal and Laxmi Prasad (A—9) assaulted Supetan by lathi. He very clearly deposed that Janir'am (A-l) had assaulted Shatrugan by tangi and Hetram (A—2) had assaulted him a by lathi. He further added that Laxmi Prasad (A-9) and Govindram '(A72O) also assaulted Shatrugan by lathi. He had mentioned the names of other accused persons also. 12 Criminal Agpeals No. ' 994 of1993; 1014 0f1993; 588 of1994; 589 of 1994; 590 of 1994 & 38 of2005 . (8) The evidence of these 3 eye—witnesses are further supported by the evidence of Umedram (PW—16), Neekram (PW-15) and Firatram (PW—12). Firatram also gave details of assault in his court evidence. He has been confronted with the case diary statement (Ex.-D/3) on certain minor ' points which are not material and on that account, evidence of Firatram (PW-12) and other eye—witnesses cannot be discarded. We find that there are no material contradictions in the evidence of these Witnesses and their evidence is not contradictory on the material points as contended by learned counsel for the appellants. " £ a a , K) t (9) It was then argued that conviction of the appellants u/ s 302 with the aid of Section 149 IPC is not justified. In Masalti —Vs-. State of U.P., AIR 1965 SC 202, the Supreme Court. held in Para-17 that “What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common objecyf; as defined by Section 141 IPC. Section 142 provides that Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining offe or more of the common objects specified by the five clauses of ection 141, is an unlawful assembly. The crucial question to determinein such a case is Whether the assembly consisted of five / \ S 13 Criminal Appeals No. 994 of1993; 1014 of 1993; 588 of 1994; 589 of 1994; 590 of1994 & 38 of 2005 or'more persons and whether the said persons entertained one or more of the common objects as specifled by Section 141. While detefmining this question, it.becomes relevant to consider Whether the assembly consisted of some persons who were merely passive Witnesses and had joined the assembly as a matter of idle curiositywithout intending to entertain the common object of the assembly.” (10) In 9hamidhar -Vs- State at Uttar Pradesh and Others & *4 i other connected appeals, (201 0) 7 SCC 759, taking note of they case of Masalti (suhra), the Supreme Court held that in case Where the conviction is with the aid of Section 149 IPC, only question ,to be determined in such a case is Whether assembly consisted of five or more persons and whether said persons entertained one or more of common objects specified in S. 141. For determination of common object, conduct of each of the members of said assembly before attack, at the time of attack and thereafter, as well as motive for crime are relevant considerations. However, time of forming unlawful intent is not material because it is possible that an assembly, which is lawful to begin with, subsequently becomes unlawful. Lastly, it is not even expected of prosecution to assign particular or independent roles played by each accused once it is proved they were members of unlawful as§embly and had assaulted deceased resulting in death. 14 Criminal Appeals No. 994 of 1993; 1014 of 1993; 588 of 1994; 589 of 1994; ‘590 of 1994 & 38 of2005 (11 In the instant case relying on the evidence of the above 6 eye—witnesses, the Sessions Court held that the appellants, armed with deadly weapons like lathi, tangi and tabbal, participated in rioting and they formed an unlawful assembly with the common object of committing murder of the 2 deceased persons. The Sessions Court has analyzed and appreciated the evidence of the above witnesses and examining the conduct of each appellant before the attack, at the time of attack, and thereafter, has determined _their common object. The unlawful assembly was i 71,. "e? formgd when Hetram (A-2) assaulted Sahasram (PW—13) and nu made a call on which the other appellants came there‘armed with deadly weapons. They participated in rioting being the members of unlawful assembly and when the complainant party came for rescue of Hetram, they made a common object to attack over the 2 brothers (deceased persons) and committed their murder by assaulting'them withirthe weapons carried by them. In Dharnidhar (supra), the Supreme Court held that it is not. expected of prosecution witnesses to assign particular or independent roles played by each accused once it is proved that the accused persons were members of unlawful assembly and had assaulted the deceased resulting in death. In the present case, all the above witnesses have deposed about the participation of the appellants. Their conduct at the time of incident would show that they were l members of the unlawful assembly and the conviction of the appellants with the aid of Section 149 IPC, therefore, cannot be said to be illegal. x ] 15 Criminal Appeals No. 994 of1993; 1014 of1993; 588 Of 1994; 589 of 1994; 590 of 1994 & 38 of 2005 (12) It-Was further argued that Gangémati (PW-1 1) was mother of the deceased persons, therefore, she was an interested witness and her testimony cannot be held to 'be reliable. In Namdeo —Vs- State of Maharashtra, I 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’ postulates that the witness has some direct or indirect ‘interest’ in having the accused somehow or other convicted due to a f §animus or for some other oblique motive. The Supreme Court also observed that a close relative cannot be characterized as an ‘interested’r witness. He is a ‘natural’ witness. His evidence, .however, must be scrutinized carefu11y. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the ‘sole’ testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and “falsely implicate an innocent one. (13) In Dharnidhar -Vs- State of Uttar Pradesh and Others 85 other connected appeals, (20101 7 SCC 759, the Supreme Court further reiterated that there is no hard—and—fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before court. The Supreme Court held that’a’ close relative of deceased does not, per—se, I) 16 ‘ Criminal Appeals No. 994 of 1993; 1014 of 1993; 588 of 1994; 589 of 1994; 590 of 1994 & 38 of2005 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