^ ^;~ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANTS (ON BAIL) CRIMINAL APPBAL N0. 750 OF 1993 RESPONDBNT 1. 2. 3. 4. 5. 6. VERSUS Mohan son of Dulari Mishra aged 32 years, Dulari son of Chhabilal Mishra aged 65 years, Ramkumar son of Dulari Mishra aged 30 years, Chhedudas son of Dilagar Das Panika aged 26 years. LaKhan son of Chetram Gond aged 28 years, Prabhakar son of Mangal Prasad Brahman, aged 24 years, All Residents of Village : Gobripat, Police Station Kota District : Bilaspur (M.P.). The State of Madhya Pradesh. CRIMINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PRQCEDURE. (SB: Hon'ble Mr. T.P. Sharma, J.j Present:- Shri Siddharth Rathore, Advocate for the appellants. Shri U.K.S. Chandel, P.L. for the State/respondent. ORAL-JUDGEMBNT (Passedon 30/07/2010) 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 26/7/93 passed by 4th Additional Sessions Judge, Bilaspur in Sessions Trial No. 112/1988 whereby and where under after holding the appellants guilty for the fraraing ^S. unlawful assembly having its common object to cause grievous injury to the Public Servant in deterring his official duty and in furtherance of the common object of unlawful assembly ,^;"-%.. ^,-a. -^ 'i y i *"i.. '^yf,^ appellants causing grievous injuries, convicted the appellants under Sections 147 & 149/333 of the Indian Penal Code ahd sentenced rigorous iniprisonment for 6 months and rigorous imprisonment for 1 year. Conviction is impugned on the ground that without any iota of evidence to proof that injuredwas public servant and was discharging his official duty and appellants have comniitted aforesaid offence, Court below has convicted and sentenced the appellants as aforementioned and thereby committed an illegality. As per case of the prosecution on 23/10/87 at about 9.30 P.M. the injured Constable PW2 Ramsanehi (Public Servant) along with PW1 Head Constable Kanhaiyalal were on official duty. They were in village patrolling duty when they reached village Gobripar Police Station Kota, they saw that appellants were drinking liquor in public place which they stopped then appellants abused them. Appellant Ramkumar told other accused persons "TRt 'OTcTf vf" and appellant Ramkumar chased the police party and caused grievous injuries on the head of PW2 Ramsanehi. PW2 Ramsanehi fell down and then accused assaulted him. They also snatched their official utensils. PW1 Kanhaiyalal wenf to the Police Station Kota and lodged the Fii-st Information Report vide Ex. P-1. At the time of causing such injury appellant Mohan removed Cft / :i -^, 4. dress of PW2 Ramsanehi. During course of investigation injured Ramsanehi was sent for medical examination vide Ex. P-18 who was examined by PW11 Dr. K.K. Jodhpurkar vide Ex. P-18A and found following injuries:- (1) One lacerated would of 4" x l/a" x bone deep over fronto-parito region. (2) One contusion over left arm. (3) Swelling and tenderness of the right wrist. (4) Contusion on left ankle joint. (5) Contusion on right ankle joint. (6) Abrasion of left scapula of 1" x l". Injury No. 1 found over the head was grievous in nature. He was sent for radiological examination. X-ray was conducted by PW8 Dr. C.S. Sharma vide Ex. P-16, P- 16-A 85 P-16B and found chip fractures of distal end of tibia of right ankle and distal end of right Ulna. Appellant Mohan was taken in to custody, .he made discloser statement of the dress of the injured Ramsanehi vide Ex. P-3 same was recovered from the appellant Mohan Vide Ex. P-4. Plain and blood stained soil were recovered from. the spot vide Ex. P-5. Blood stained cloths of the appellant Mohan was seized vide Ex. P-6. One torch was seized from Dulari vide Ex. P-7. Ramkumar was also taken into custody. He made discloser statement of stick vide Ex. P-8, same was seized from the Ramkumar vide Ex. P-12. Appellant Chhedudas '; ^s*' .-^'.?' ^l niade discloser statement of stick vide Ex. P-9 same was recovered from the Chhedudas vide Ex. P-13. Appellant Lakhan made discloser statement of stick vide Ex. P-10 same was recovered at the instance of appellant Lakhan vide Ex. P-14. Appellant Prabhakar also raade discloser statement of stick vide Ex. P-11 same was recovered at the instance ofappellant Prabhakar vide Ex. P-14. 5. Statements of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate Pirst Class, Bilaspur, who in turn committed the case to the Court of Sessions, Bilaspur from where learned 4th Additional Sessions Judge, Bilaspur received the case on transfer for trial. 6. In order to prove the guilt of the appellants/accused prosecution examined as many as 11 witnesses. Accused persons were examined under Section 313 of the Code where they denied the circumstances appearing against them, innocency and false implication in crime in question is claimed. 7. After affording an opportunity of hearing to the parties, learned 4th Additional Sessions Judge, Bilaspur convicted and sentenced the appellants as aforementioned. .^lwff'%) .,-^2 ,' '^1/ '/ 8. Mr. Siddharth Rathore, learned counsel for the appellants and Mr. U.K.S. Chandel, P.L. for the State/respondent are heard. Judgment impugned and record of Courts below perused. 9. Learned counsel for the appellants vehemently argued that in the present case in order to proof the guilt of the appellants prosecution is required to proof ingredients of the offence that:- (a) Appellants had formed unlawful assembly having its object to cause grievous hurt to the Public Servant. (b) Person injured was public servant and injured was discharging his official duty. (c) Member of the unlawful assenibly had caused such injuries. 10. Learned counsel for the appellants further argued that in the present case prosecution has not adduced any document to show that injured PW2 Ramsanehi was public servant and was discharging his official duty at the time of commission of offence. Five or more than five persons were present at the time of conimission of offence and had formed unlawful assembly having its common object to cause grievous hurt to the public servant. In absence of such evidence conviction and sentence of the appellants are not sustainable under the law. ^"^TO^ ^h "Ik '^'!.- ;.':.. '•''iK';- •Si "<£ <». "^ ^ ''^Wy^s^^ 11. Learned counsel for the appellants also argued that in the present case injured are police officers i.e. Investigating Agency and Force deployed by the State to protect the citizens and as per case of the prosecution citizens have attacked upon the force therefore degree required to proof ingredients of offence is rauch higher. The evidence of witnesses are self contradictory and full of contradiction and omission. 12. On the other hand, Leamed counsel for the State/respondent opposed the appeal and submits that the evidence of witnesses are sufficient for drawing an inference that PW2 Ramsanehi was public servant and was discharging his official duty at the time of commission of offence, all the appellants formed unlawful assembly having its object to cause grievous injury to the public servant to deter his official duty and in furtherance of common object of the assembly they have caused grievous injuries to Ramsanehi public servant. 13. In order to appreciate the argument advanced on behalf of the parties, I. have examined the evidence adduced on behalf of the prosecution. 14. In the present case injury and grievous injury found over the body of the Ramsanehi at the tirae of incident has not been substantially disputed by the appellants on the other hand, otherwise also established by the evidence of ~^"~^ ^ff^.. •-' ""•{f^as•S 3 .f /s •..^•-ff' /' I,' -1/ /'7. PW2 Ramsanehi, PW11 Dr. K.K. Jodhpurkar and his report Ex. P-18-A, PW8 Dr. C.S. Sharma and X-ray reports Exs. P-16, P-16A & P-16B which reveals that 6 injuries were found over the body of Ramsanehi includin^ fracture of two bones. 15. Formation of unlawful assembly is a question of fact and same may be inferred on the basis of peculiar facts of the case for the constitution of unlawful assembly five or more than five nienibers are required their corainon object must be for fhe commission of the offence as envisaged in Section 141 of the Indian Penal Code and assembly constitute lawful may be converted into unlawful assembly and any ruovement normally evidence relating to common object of unlawful assembly is not possible. It may be inferred from the act committed by the unlawful assembly and result of such act once it is proved that unlawful assembly has been constituted then any overt act or activity participation of any member of unlawful assembly is not necessary. All m.embers would be liable for the commission of offence or the act committed by any member of unlawful assembly in accordance with Section 149 of the Indian Penal Code. Gathering of five or more than five persons itself does not constitute unlawful assembly and it is not necessary that unlawful assembly should be constituted in its inception it may be '^•^•ff, •• <.-v/^f'r /^?\ ^) constituted at' any tinie even during the course of incident and any member may join such assembly at any time. The only fact required to proof that the member who joined lateron was having knowledge of the common object ofthe asserably. 16. In the present case PW2 injured witness Ramsanehi has deposed in his evidence that he along with other police officers had gone to village Gobripar. They were in their official duty at about 9.30 P.M. all appellants were present near Betel Shop, they were consuming liquor being asked by PW1 Kanhaiyalal, Head Constable appellants abused hiru when PW1 Kanhaiyalal tried to initiate proceeding then appellant Ramkumar assaulted him over his head and hand thereafter all appellants assaulted him by stick, he became unconscious. Station House Officer took in a car to hospital where he was adraitted for treatment, Appellant Ramkumar caused fracture. PW1 Kanhaiyalal, Head Constable substantially corroborated the evidence of PW2 Ramsanehi and has deposed that he has lodged the First Inforraation Report Ex. P-1 and also made complaint vide Ex. P-2 . 17. Defence has cross examined this witness in detail relating to availability of light, presence of all accused, injury caused to the PW2 Ramsanehi, there is some contradiction and omission in the statement of this ^b 18. witness. Their previous stateraent vide Exs. D-1 SE D-2 recorded under Section 161 of the Code is statement in brief. The Courts recorded detail stateraent during course of trial therefore contradiction and omission in both the statements are not unnatural or not unexpected but only on the ground of contradiction and omission evidence of any witness cannot be rejected. Court is required to assess over all statements in reaching the definite conclusion. Ex. P-1 First Information Report reveals that after getting duty certificate PW1 Kanhaiyalal &, PW2 Ramsanehi had proceeded for village patrolling, at the time of incident when they saw that appellants were drinking liquor in the public place then they objected and tried to initiate proceeding, at that time firstly Ramkumar assaulted PW2 Ramsanehi thereafter all appellants assaulted him. Both the witnesses have categorically stated that all the appellants were present on the spot and all the appellants assaulted PW2 Ramsanehi by stick. As per medical evidence two fractures and sbs injuries were found over the different parts of the body of injured including head, hand, leg, ankle joint and scapula shows that repeated injuiy has been caused to the injured definitely. PW1 Kanhaiyalal and PW2 Ramsanehi were police officers and members of District Force deployed for protection of •^s^ ^ - •cii i %,%^/ /-rx 10 •T 19. body and property of the persons and in the present case they are the victim and sufferers therefore higher degree ofprove was required for prosecution to proof its case. As per case of the prosecution incident took place at 9.30 P.M. in a village, PW1 Kanhaiyalal and PW2 Ramsanehi are the police officers, their evidence finds corroborated from promptly lodged First Information Report Ex. P-1 and medical evidence. PW3 Ramkumar Patel, Constable and other Constables have also substantially corroborated the evidence of PW2 Ramsanehi. Defence has cross examined these witnesses at length but has not been able to illicit anything in their cross examination to discard their testimony. On close scrutiny of evidence of PW1 Kanhaiyalal, PW2 Ramsanehi 85 PW3 Ramkumar Patel their evidence inspire confidence and trustworthy and are safe to rely. After appreciating the evidence available on record learned 4th Additional Sessions Judge, Bilaspur has convicted and sentenced the appellants as aforementioned. The evidence adduced on behalf of the prosecution are sufficient to proof the fact that injured Ramsanehi was working as Police Constable. He was on duty. He was discharging his official duty. All the appellants were present at the time of incident when he along with PW1 Kanhaiyalal, Head Constable objected 11 o^- ~/ illegal activity of the appellants then all appellants assaulted PW2 Ramsanehi it shows that initially appellants were consuming liquor at that time they had not formed any unlawful assembly but when their activity were objected by the public servant and tried to initiate proceeding against them then they formed unlawful assembly having its common object to cause grievous injury to the public servant to deter him from discharging his official duty. Learned Court below has rightly convicted the appellants under Sections 147, 149/333 of the Indian Penal Code. The conviction of the appellants are sustainable under the law. 20. As regard the question of sentence is concerned, appellants have committed offence against the force deployed to protect the persons and property of the State and has caused multiple injuries including two fractures. Considering the aforesaid circumstances the sentence imposed upon the appellants are neither excessive nor unjust, I do not find any substance in the criminal appeal. Consequently, this criminal appeal 'is liable to be dismissed and is hereby dismissed. Appellants are in bail. They shall immediately surrender themselves before the 4th Additional Sessions Judge, Bilaspur for serving sentence impugned upon them. , Sd/- T. P. Sharma Judge