A^ HiGH COURT OF CHHATTISGARH : BILASPUR \-. F.S : 1. Sukhiram, S/o Rameshwar, aged about !.'.", jai'i 30 years. 2. iviukhiram, S/'o Rameshwar, Aged about 25 years. 3. Rarneshwar, S/o Buichu, aged about 60 years. All residents of vil!age AnroRha Bandhpara, Chowki Bhjatgaon, P.S. Pratappur, DistrictSurguja (C.G.) VERSUS Ri.SPONDE.NT : State of Chhattisgarh, Through P.S. Pratappur, Chowki Bhatgaor;, Distt. Surguja. APPgAL U/S 374 (2) QF CR.P.C, Appearance: Shri As'nok Kumar Shukia, Adv. For the appeiiants. Shri J.A.Lohani, P.L. for ths State/Respondent. ORAI..JUDGMENT (Passedon 09.05.2011) Challenge in this appeai is to the judgment of conviction and order of sentence dated 09.08.2005 passed by the 1a Additional Sessions Judge, Surajpur, Dist. Surguja in S.T.No.403/2004 whereby and whersunder after holding the appeiiants guilty for formation of unlawful assemblv with deadly havina its common obiect to commlt culpable homicide amounting to murder of Rangu Ram, causing grievous hurt to Mankunwar and simple hurt to Sumitra, atter committing criminal house trespass, tfte Court below convicted the appeiiants under Section 302, 450, 147, 148, 323/149 and 323/149 ofthe I.P.C. and sentenced them to imprisonment for life with fine of Rs.SOO/- ancl in default to payment of fine, the appeilants have to further undergo three months ngorous imprisonment under Section 302 of the I.P.C., to unaergo R.l. for tive z ^ ., ^ years with fine of Rs.500/-, in defauit to further under.QO R.l. tor shree months under Section 450 of i.P.C., to pay a fine of Rs.SOO/- only under Section 147 & 148 of the I.P.C. and in default to further undergo R.i. tor two months and to further undergo three months twice under Section 323/148 ofthel.P.C. 2. The conviction is impygned on the ground that v«'!thout an iota of evidence on record, the Court below convicted anci sentencsd the appellant as aforementioned and thereby committed iilegaiity. 3. As psr case of the prosecution, on fatetui day ot'13.02.2004 at about 10.00 am, the present appellants along with oiher co-accused persons formed uniawful assembly having rts common object to commlt cuipable homicide amountlng to murder or Rangu Ram, cause gnevous hurt to ivlankunwar and simple injury to Sumitra and have aiso committed criminal house trespass. They were also hoiciing deadiy weapons and m furtherance of uniawful assembly having common oojsct caused instantaneous death of Rangu. Ram, grievous hurt to IVlankunwsr and simpfe injury to Sumitra. Sumitra went to police station Pratappur and lodged Dehati Merg vide Ex.P.7 at 12.30 pm. On the basis of Ex.P.7, Merg intimation vide Ex.P.36 and F.i.R. Ex.P.35 were recorded. Investigating Officer lett for scene of occurrence and after summoning the Vi/itnesses vide Ex.P.28, inquest over the dead body of Rangu Ram was prepared vide Ex.P.29. Dead body was sent for autopsy to Governrnent Hospital, Pratappur vide Ex.P.30. P.VV.5 Dr. Jitendra Kunjairs concucted autopsy vide Ex.P.6 and found following injuries: 1. Lacerated wound over iower mandible of1 x 1 cm with abrasion over both coilar bones. 2. Abrasion was aiso found on the oenis of deceased. Right collar bons was found fractursd. 3. 10m and 1 1*" Ribs were found fractured. Cause of deafh was internat haemorrhage and shock. Deatn vras homicjdai in nature. Injured Mankunwar was sent tbr medical examination. She was examined by P.W.4 Dr. Maheshwar Singh vide Ex.P.4, who found rollowing injuries: 1. Lacerated wound over middle part of head of 3 x '/2 x 1 cm. .t^\.!'\"vy-s..\ <^<^^ ~^.,'' y /•f ^^\£T ^ i t*°:y •v»»Ss!ty ^ ^•••: 2. 3. 4. 5. Blood was oozino. Lacerated wound situated on middle part of the head of 3 x % x 1 cm. Btood was oozing. Tender swelling on posterior aspect of right forearm with swelling of3x 2 x2 cm. Sv.'e!!'ng at ieft elbowjoint with iower 1/3 of teft eibow. Tenderness on back and complaint of pain on right thigh. Pinna of left ear was found cut and its size is 1 x Vs cm. ^ Sumitra Bai was also examined by P.W.4 Dr. Maheshwar Smgh vide Ex.P.Swho found pain with tenderness on right hand, chest and lef: side of a&domen. Dyring the course ot investigation, accused persons have been taken into custody. Satpai made disclosure statement of axe vide Ex.P.'i and fhe same was recovered at the instance of Satpal vide Ex.P.2. Accused persons Raju, Rameshwar, Urmiia, Sanjay, Sukhram and Mukhiram made disclosure statements vide Ex.P.9 to 14 and at the instance of Raju, Urmiia Bai and Sanjay, Lathi made of Bamboo was recovered vide Ex.P.18 & Ex.P.19 anci Ex.P.20, at the instance of Sukhiram and Mukhiram, axe was recovered vide Ex.P.16 and 17 while at the jnstance of Rameshwar, Spade (Fauda) was recovered vide Ex.P.21. Plain and bloodstained soils were recovered from the spot vide Ex.P.15. Sealed cloths of tne deceased person Rangu Ram were seized vide Ex.P.3. Spot map was prepared vide Ex.P.22. 4. Statements of witnesses were recorded under Secfcon 161 of the Code of Criminal Procedure (for short 'the Code'). Atter compieaon of investigatfon, charge sheet was fited before the Court of J.M.F.C, Pratappur who in turn committed the case to the Court of Sessions, Ambikapur (Surguja). The learned Additionat Sessions Judge received the case on transfer for its triai. 5. In order to prove the guiit of the appellants, prosecution has examined as many as 14 v^itnesses. Accused persons were also examined under Section 313 of the Code in which they denled al! the circumstances appearing against them and pleaded their innocence and false implication in crime in question. "~s^^. ^'^:. ^sSt^. "^^\.;' -^^' s^3i^ b V 6. VVe have heara ahri Ashok Kumar SnukSa and Shri Jam!! Akntar Lohani, iearned counsel for the parties and perused the judgn'ient impugned induding record of the trial Court. 7, Shri AshoK Kumar Shukia, learneci counsel appearing for tne appellants vehemently argued that in the present case, prosecution has .not proved the form of unlawful assembly for commission of offence of murder. Therefore, the present appellants should have been acquitted of the charges. Evidence of injured witness Mankunwar P.W. 1 and Sumltra P.W.6 does not inspire confidence and trustworthy and the same is not safe to rely to convict the appeilants for commission of grievous murder. Even otherwise, prosecution has not proved the motive tor commission of offence and the Court below has acauitted 4 other co-accused persons from the charges of commission of murder on the same set of evidence but has convicted and sentenced the aforesaid aDDellants for commission of culpable homieide amounting to murder of Ranguram on the bas's of same set or evidence and thereDv the Court beiow committed iilegalrty. 8. On the other hana, Shri J.A. Lohani, learned counset for tne State, opposed the arguments and submitted that Court beiow has rightiy convicted and sentenced the aforesaid appellants as mentioned above. The evidence of P.W.1 Mankunwar and P.W.6 Sumitra Bai, injured eye witnesses, is sufficient for drawing definite conciusion that the aforesaid appeltants have committed the aforesaid heinous offence of murder. S. In order to appreciate the arguments advanced by the parties, we have examined the evidence adduced by the prosecution. in the present case, homicidal death of Rangu Ram on account of fatal injuries found over his person has not been substantiaily disputed on behaif of the appellants, but on the other hand aiso established by the evidence of Dr. Jitendra Kunjam P.W.5 and autopsy report Ex.P.6 and death of Rangu Ram was homicidal in nature. 10. As regards complicity of the appeilants in crime in question, after appreciating the evldence availabie on record, tne Court beiovi? has arrivea at definite conclusion that 4 accused persons nameiy Sanjay, Urmila, Raju and Satpal have not committed culpable offence of murder of Rangu F?am but they have committed other ofrences. For the present appellants, the 'k fy^ ^ Court beiow has taKen difterent view. As per evidence of P.VV.1 Mankunwar, injured eye witness, at the time of incident she was present in her house and all the appellants committed criminal house trespass. Appeilants Sukhi and IVIukhi were holding axe while Rameshwar was holding spade. Appellants Sukhl and Mukhi assaulted Rangu Ram D'y axe and other co-accused persons by stick. As per her evidence, appeliant Urmila assaulted her by stick. As per evidence of P.W.6 Sumitra, Rameshwar assaulted Rangu Ram by Spade while appeliants Sukhi anc Mukhi have assaulted her father - Rangu Ram by axe. Evidence of these witnesses revealed that they were having enmity and on account of enmity, the aforesald incident IOOK place. This witness has depose'a the ctefinite act attributed to aforesaid appellants but as per evidence of aforesaid witnesses i.e. P.W.1 Mankunwar and P.W.6' Sumitra, thev have deposed omnibus and oral statements agamst other co-accusea persons. Their statement has not been corroborated by medical evidence relating to other co-accused persons but evidence of aforesaid witnesses has been well corroborated by medical evidence and promptly iodging of F.1.R. The evidence of aforesaid witnesses reveaied that the oresent appeiiants caused tatal injury resuiting into instantaneous death of Rangu Ram. it also revealed that they were holding deadiy weapons anci used such deadly weapons but other accused -persons were holding stick anti mainly Urmila Bai caused grievous injury to ManKunwar and not 10 Rangu Ram. The evidence of the aforesaid witnesses aiso cleariy revealed that a!l the accused persons have formed unlawful assembiy. The intsntion of unlawful assembly was not causing culpable homicide amounting to murder of Rangu Ram but by using deadiy weapons al! the tnree accused persons have commltted culpabie homicide amounting to murder of Rangu Ram. The evidence of aforesaid witnesses is sufficient for bifurcating the common object of uniawful assembiy in furtherance of uniawful assembly. Initially, the common object of causing injury was not in their mind but on the spot aforesaid appeilants have caused fatal injuries resuiting into instantaneous death of Rangu Ram, which is tneir common act and other co-accused persons cannot be heid liabie fo;' commission of culpable homicide amounting to murder of Rangu Ram. Virtually, the act and overt act of aforesaid appellants reveaied that they have caused cuipable homicide amounting to murder of Rangu Ram, tt *:i1u t^ ^ which is punishable underSection 302/340f the I.P.C. This apart; ail the accused persons haye committed criminal house trespass and have aiso caused simpie injury to Sumitra Bai in furtherance of common object of unlawful assembly. . 11. AfterappreciatingtlTeevidenceavailableon record,wtiileac( the other co-accused persohs, the Gourt betpw has convicted, appellants -jSukhiram, •MukhiranT and Rameshwar under 450,147,148 and 323/149 andi323/1i49ofthel.P.C. VWhile cofivj^. presentappeltants for theEQmjriission of heinous offence pf ^^m Court belt^isentSHced em as aforesaid in para 1?of thi^ (supra) andj fias notcommiti:ed;any iflegalitylreqyiring any interfejii^i'tee jn exerciseofappellatejurisdictiorr. ^ j s !i; 12. Consequently, the appeal is devoid of meritiandisubsfant accordinglyidismissed. ; ac^uitting , jjiresent Sectiejn 302, litiglthe Sd/- T.P. Sharma Judge Sd/- R.L. Jhahwar Judge