•^^^^^ HIGH COURT OF CHHATTISGARH. BILASPUR D1VISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.35 of 2006 Kondi Bai alias Unnari - Versus - State of Chhattisgarh Criminal Appeal No.129 of 2006 Arjun and another - Versus - State of Chhattisgarh AND CnminalAppealNQ.162Qf2006 Phool Singh and another - Versus - State of Chhattisgarh JUDGMENT FOR CONSIDERATION APX, HON'BLE MR. JUSTICE R.L. JHANWAR Sd/- T.P. Sharma Judge ^«y- Sd/- R.L. Jhanwar Judge th Post for pronouncement of iudament on 16"' April, 2010 Sd/- T.P. Sharma Judge AF^ HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. \... APPELLANT: (In Jail) RESPQNDENT: APPELLANTS: (In Jail) RESPONDENT: APPELLANTS: (In Jail) RESPONDENT: Criminal Appeal No.35 of 2006 Kondi Bai alias Unnari, W/o Dadu Telgu, aged about 53 years, R/o Bhimkhoj, P.S. & Distt. Mahasamund (C.G.) Versus State of Chhattisgarh, Through P.S. Mahasamund, Distt. Mahasamund(C.G.) Criminal Appeal No.129 of 2006 1. Arjun, S/o Ramji Telgu Gond, aged about 41 years, R/o Abradabri, P.S. Mahasamund, Distt. Mahasamund (C.G.) 2. Punit, S/o Ramchand Telgu Gond, aged about 30 years, R/o Santoshi Nagar, Bhimkhoj, P.S. & Distt. Mahasamund Versus State of Chhattisgarh, Through P.S. Mahasamund, Distt. Mahasamund (C.G.) AND C^rimmal Appeal No.162 of 2006 1. Phool Singh, S/o Raipa Telgu, aged about 43 years, R/o Bhimkhoj P.S. Mahasamund, Distt. Mahasamund (C.G.) 2. Dinesh, S/o Baratu Ram Netam, aged about 22 years, R/o Panchsheel Nagar, Durg, Distt. Durg (C.G.) Versus State of Chhattisgarh, Through P.S. Mahasamund, Distt. Mahasamund (C.G.) {Criminal appeals under Section 374 ofthe Code of Criminat Procedure, 1973} Present: Mr. J.R. Verma, counsel for the appellants in Cr.A.Nos.35/2006 & 162/2006. rv 2 Mr. Rajkumar Gupta with Mr. Jitendra Gupta, counsel for appellant No.1 Arjun in Cr.A.No. 129/2006. Mr. Santosh Kumar Tiwari, counsel for appellant No.2 Punit in Cr.A. No. 129/2006. Mr. Akhil Mishra, Deputy Govt. Advocate for the State/respondent. JUDGMENT (16th April, 2010) The followina iudament of the Court was passed bv T.P. Sharma, J: - 1. Since the aforesaid three criminalappeals are arising out of the same judgment of conviction & order of sentence dated 21-12-2005 passed by the 1 Additional Sessions Judge, Mahasamund, in Sessions Trial No.423/2003, they are being disposed of by this common judgment. 2. Challenge in these three criminal appeals is to the judgment of conviction & order of sentence dated 21-12-2005 passed by the 1st Additional Sessions Judge, Mahasamund, in Sessions Trial No.423/2003, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of offence of formation of unlawful assembly having its common object of culpable homicide amounting to murder of Ranjeet and attempt to commit murder of Nagi Bai after committing criminal house breaking by night, armed with deadly weapons; convicted the appellants under Sections 148, 302 read with Section 149, 307 read with Section 149 & 460 of the I.P.C. and sentenced each of them to undergo R.t. for two years & pay fine of Rs.1,000/-, in default of payment of fine to further undergo R.l. for one month; to undergo imprisonment for life & pay fine of Rs.5,000/-, in default of payment of fine to further undergo R.l. for five months; to undergo R.l. for seven years & pay fine of Rs.3,000/-, in default of payment of fine to further undergo R.l. for three months and to undergo r. R.l. for ten years & pay fine of Rs.2,000/-, in default of payment offine to further undergo R.l. fortwo months, respectively. 3. Conviction is impugned on the ground that without any iota of evidence, especially constitution of unlawful assembly with common object of commission of murder of Ranjeet and attempt to commit murder of Nagi Bai, the trial Court has convicted & sentenced the appellants and thereby committed illegality. 4. Case of the prosecution, in brief, is that both the parties were in inimical terms and on the fateful night of 26-8-2003 between 2-2.30 a.m. (mid night) Ranjeet (since deceased) & his wife Seema Bai (PW-19) were sleeping in their house along with their children and Nagi Bai (PW-1)— mother of Ranjeet was also sleeping in the same house. Seema Bai (PW-19) woke up on account of stroke of stick, at that time, Girdhari, Nand Kishore, Chinna, Pot Raju, Baiga Raju, Neelkanth, Dholu, Vijay, Punit, Pintu, Arjun, Budha Arjun, Dharmu, Chota Babu & others were present, they were holding sword, dagger, axe, cricket bat & stick, they assaulted her husband Ranjeet (since deceased), her mother-in-law came to intervene to save her son Ranjeet on which accused Girdhari, Chinna & Nand Kishore assaulted her as of result she fell down. The accused persons dragged Ranjeet from verandah to courtyard and assaulted him with sword, axe and with weapons which they were holding as a result of which Ranjeet fell down. They also chased Seems Bai (PW-19), then she ran away with her children towards the house of her elder brother-in-law (jeth) Dukalu. The accused persons again chased her on which she went to the house of Rajesh and hide herself. The accused persons assaulted Jethu in the house of Jethu and they were telling that they will kill all members of the family. After some time, she went to the house of Jethu where dead body of her elder brother-in- <.,,N. r law Ravi was lying in the verandah and dead body of Dukalu was lying in the room. She came back to her house, her husband was breathing, she shouted for help and after some time her husband died. Police came to her viltage and she lodged dehati nalsi vide Ex.P-25 and dehati merg vide Ex.P-26. Registered merg was recorded vide Ex.P-21 and F.I.R. was registered vide Ex.P-20. The Investigating Officer after summoning the witnesses vide Ex.P-1 prepared inquestover the dead body of Ranjeet vide Ex. P-2. Dead body of Ranjeet was sent for autopsy to Govt. Hospital, Mahasamund vide Ex.P-14A and autopsy was conducted by Dr. S. Chandravanshi (PW-9) vide Ex. P-14 who found following injuries: - (1) Incised wound 6 c.m. x 0.2 c.m. x 0.3 c.m. over mid forehead, frontal bone was also incised. (2) Incised wound 10 c.m. x 0.2 c.m. x 0.3 c.m. over left side of forehead up to left ear, frontal & temporal bones were also incised. (3) Incised wound 1.5 c.m. x 0.2 c.m. x 0.3 c.m. over base ofnose. (4) Incised wound 2 c.m. x 0.2 c.m. x 0.2 c.m. over tip of nose. (5) Incised wound 7 c.m. x 0.8 c.m. x 1 c.m. over left mid cheek. (6) Incised wound 6 c.m. x 1 c.m. x 1 c.m. over left arm middle 1/3 lateral. (7) Incised wound 7 c.m. x 2 c.m. x 1 c.m. over left arm lower 1/3 lateral. (8) Compound fracture of left forearm middle 1/3. (9) Incised wound 8 c.m. x 0.3 c.m. x 0.5 c.m. over left mid palm. (10) Incised wound 8 c.m. x 1 c.m. x 0.5 c.m. over distal palm, 4 metacarpal bones were found cut completely at distal end. (11) Incised wound 8 c.m. x 1 c.m. x 3 c.m. over right'arm middle 1/3, humerus completely cut and arm was hanging attached to post skin. (12) Incised wound 2 c.m. x 0.5 c.m. x 0.2 c.m. over right mid skin. (13) Incised wound 8 c.m. x 1 c.m. x 2 c.m. over left foot. Mode of death was shock as a result of excessive haemorrhage. 5. Injured Nagi Bai was also examined by Dr. S. Chandravanshi (PW-9) vide Ex.P-15 and following injuries were found: - (1) Incised wound 10 c.m. x 1 c.m. x 2 c.m. at the baseof right palm, metacarpal bones were visible. (2) Incised wound 1.5 c.m. x 1 c.m. x 0.5 c.m. over base of right index finger. (3) Lacerated wound 3 c.m. x 0.5 c.m. x 0.2 c.m.over rightforearm. (4) Incised wound 8 c.m. x 2 c.m. x 1 c.m. over left shoulder, humerus bone was visible. (5) Incised wound 8 c.m. x 1 c.m. x 1 c.m. over left arm, bone was visible. (6) Incised wound 4 c.m. x 1 c.m. x 0.5 c.m. over left forearm. (7)lncised wound 20 c.m. x 1 c.m. x 2 c.m. over right side of abdomen, peritoneum membrane was visible. Injuries were caused by sharp edged weapon. Radiological examination of Nagi Bai was also done vide Exs.P-16 & P-16A and fracture of proximal phalynx of right thumb, fracture of proximal phalynx of right index finger, fracture of acremian processes of left scapula and fracture of left humerus head were found. Injuries were sufficient for causing death. 6. During the course of investigation, accused Arjun was taken into custody, he made discloser statement of gandasa vide Ex. P-5 and the same was recovered at his instance vide Ex.P-6. Sketch figure of gandasa was prepared vide Ex.P-7. Blood stained soil & plain soil were recovered from the spot vide Ex.P-8. One axe stained with blood & one nanchaku were seized from the spot vide Ex. P-9. Btoodstained clothes and dry blood from wall were seized from the spot vide Ex. P-10. Blood stained clothes of Seema Bai were seized vide Ex.P-11. Spot map was prepared vide Ex. P-12. Panchnama of the spot was prepared vide Ex.P- 13. During the course of investigation, accused Phool Singh was taken into custody, he was interrogated, he made discloser statement of stick ^ vide Ex.P-17, the same was searched and search Panchnama was prepared vide Ex.P-18. One sword & one dagger kukri were seized under neem tree beside the road vide Ex.P-19. Seized articles were sent for chemical examination vide Ex. P-28. 7. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Mahasamund, who in turn committed the case to the Court of Sessions, Raipur, from where learned Additional Sessions Judge received the case on transfer for trial. 8. Originally charge sheet was filed against four accused persons. Sixteen accused were absconding and out of sixteen, accused Punit was arrested subsequently. 9. In order to prove the guilt of the appellants, the prosecution has examined as many as twenty-one 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 on account of enmity. They have examined Jagat (DW-1), Ishwar Prasad Sahu (DW-2), Shyamraj (DW-3) & Amraotin Bai (DW-4) in their defence. Jagat (DW-1) & Amraotin Bai (DW-4) have deposed that on the date of incident, accused Phool Singh was not present at Bhimkhoj, the place of incident, and was present at Kanker. Likewise, Ishwar Prasad Sahu (DW-2) & Shyamraj (DW-3) have deposed that on the date of incident Arjun was not present at Bhimkhoj and he was present at Avradabri. They have taken the defence of alibi. lO.After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellants as aforementioned. y 7 11.According to the case of both the parties, after commission of offence in the house of Ranjeet, two persons Ravi & Dukalu were also murdered in their houses in continuation of the offence. After investigation of second part of offence, the prosecution has filed charge sheet before the same Court and S.T.No.424/2003 was tried against the appellants herein resulting in conviction & sentence vide judgment dated 21-12-2005 by the same Additional Sessions Judge. 12.We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 13.Learned counsel for appellant Kondi Bai alias Unnari vehemently argued that the evidence adduced on behalf of the prosecution is not sufficient for drawing inference that appellant Kondi Bai has committed the offence. According to the case of the prosecution, Nagi Bai (PW-1) - mother of Ranjeet & injured witness; Rajesh (PW-2) in whose house Seema Bai (PW-19) has taken shelter; Krishna alias Krishna Kumar (PW-3) - brother of Ranjeet who was present in the house at the time of incident; Shanti Bai (PW-5) - wife of another deceased Dukalu; Shankar (PW-6) - nephew of deceased persons Dukalu, Ravi & Ranjeet who was present in the house of Dukalu; Kanta Bai (PW-7) - wife of deceased Ravi and Seema Bai (PW-19) - wife of deceased Ranjeet, have claimed themselves to be eyewitnesses. According to the case of the prosecution, Nagi Bai (PW-1) & Seema Bai (PW-19) were present in the house where Ranjeet was sleeping and both are injured witnesses according to their statements. Seema Bai (PW-19) who was sleeping beside her husband Ranjeet has not named appellant Kondi Bai in her evidence. Nagi Bai (PW-1) has also not named appellant Kondi Bai in her evidence. In absence of any allegation against appellant Kondi Bai in the evidence of both the aforesaid witnesses, presence of Kondi Bai at 8 C^) <-» ^ the time of incident and her participation in the crime in question is doubtful. Other witnesses have stated presence of appellant Kondi Bai in the house of Dukalu & Ravi which is far away from the house of Ranjeet, but the evidence of Nagi Bai (PW-1) & Seema Bai (PW-19) are sufficient for drawing inference that at the time of commission of offence in the house of Ranjeet, appellant Kondi Bai was not present, she was not member of the unlawful assembly, she has never joined the unlawful assembly the common object of which was commission of murder of Ranjeet and attempt to commit murder of Seema Bai. Therefore, conviction & sentences of appellant Kondi Bai are not sustainable under the law. 14.Learned counsel for appellants Arjun, Punit, Phool Singh & Dinesh vehemently argued that no specific part played by the aforesaid appellants has been deposed by the alleged eyewitnesses in their evidence. According to the case of the prosecution, injuries were caused by Girdhari, Nand Kishore, Chinna, Neelkanth, Santoshi, Yashoda & other accused persons who were holding deadly weapons, but injuries have not been caused by these accused persons. The prosecution has also not proved the fact that the appellants have ever constituted unlawful assembly and were armed with deadly weapons having its common object of causing murder of Ranjeet and attempt to commit murder of Seema Bai. Therefore, even mere presence, or causing any one or two injuries, or simple injuries to any person is not sufficient for drawing inference that the appellants herein have constituted unlawful assembly along with other accused persons having common object to commit murder of Ranjeet and attempt to commit murder of Seema Bai and in furtherance of common object of the unlawful assembly, they have committed murder and attempted to commit murder after committing the < ^ 's< offence of house breaking by night. This is a case of series of murders in which after murder of Ranjeet and fatal injuries to Nagi Bai, murder of two other persons namely Dukalu & Ravi - brother of Ranjeet and series of injuries to other persons were caused. But the evidence of the prosecution witnesses clearlyestablish that injuries were caused by goondas came from outside and the three deceased persons who died on the spotwere having inimical terms with so many persons, they were facing criminal trial for commission of so many offences and therefore, there was likelihood of causing injuries or committing their murder by their enemies, and the witnesses have falsely implicated these appellants without any credibte, clinching & reliable evidence. 15-Learned counsel for the appellants ptaced reliancein the matter of Sambhaji Hindurao Deshmukh and others v. State of Maharashtra in which the Apex Court has held that in absence of retiable evidence to show that accused with common intent assaulted or caused injuries either to deceased or any of his family members and in case their presence at the site of the incident was doubtful, acquittal of those accused is proper. Learned counsel further placed reliance in the matter of Fagu Manjhi and others v. State of Bihar and another in which the Apex Court has held that only three accused, variously armed, chased and inflicted injuries on deceased as a result of which he died, other accused persons were only running behind the said three assaitants and all the injuries sustained by the deceased could be attributed to the actions alleged against the said three assailants, conviction of rest accused who were running is not sustainable. Learned counsel also placed reliance in the matter of Bhagga and others v. State of Madhya 1 (2008)11 SCC186 2 (2001)108cc 692 Y' \ 10 Pradesh in which the Apex Court has held that material discrepancy relating to presence of accused, role attributed to him and in absence of common object of such accused to kill the deceased, conviction of such accused is not sustainable. Learned counsel relied upon the matter of Boya T. Venkateswarlu and others v. State ofA.P.4 in which the Apex Court has held that in absence of names of accused persons along with accused who has assaulted the deceased and in absence of evidence relating to role attributed by such accused persons, conviction of such accused persons is not sustainable. 16.0n the other hand, learned State counsel vehemently opposed all the criminal appeals and submitted that this is a case of triple murder in one series, the offence took place between 2-2.30 a.m. (at night) it was not the normal time where presence of any person for any other purpose may be presumed. At the time of commission of offence, persons of the village were sleeping in their houses, the appellants gathered at one place and after holding deadly weapons they entered into the house of Ranjeet from the way not meant for common entry and thereby committed the offence of house breaking, and after entering into the house of Ranjeet, they assaulted Nagi Bai & Seema Bai and committed murder of Ranjeet, they chased Seema Bai, when she fled from the spot, they followed her up to the house of Dukalu, they committed the murder of Dukalu & Ravi and also caused serious injuries to other persons with deadly weapons. The prosecution has adduced evidence to this effect which is sufficient for drawing inference that the appellants armed with deadly weapons have formed unlawful assembly the common object of which was to kill Ranjeet and attempt to commit murder of Seema Bai and in furtherance of common object of the unlawful assembly the 3 (2007)133cc 442 4AIR 2002 SC 2419 •^. r "^i^^S^ ^ 11 accused persons & other members ofthe assembly had caused injuries jointly & severally. Therefore,alt members of the unlawful assembly are liable for commission of theaforesaid offence with the aid of Section 149 of the I.P.C. In the present case, the prosecution is not required to prove individual acts of the appellants. The prosecution is required to establish that the appellants armed with deadly weapons have formed unlawful assembly with common object to kill Ranjeet and attempt to commit murder of Seema Bai. In the present case, the prosecution has proved the aforesaid facts by adducing evidence of eyewitnesses. Evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellants have committed the aforesaid offence. 17-Learned State counsel further submitted that evidence of Nagi Bai (PW- 1), Rajesh (PW-2), Krishna alias Krishna Kumar (PW-3) - injured witness, Shanti Bai (PW-5) - wife of deceased Dukalu, Shankar (PW-6) - injured witness, Kanta Bai (PW-7) and Seema Bai (PW-19) - injured witness & wife of deceased Ranjeet are sufficient for drawing inference that appellant Kondi Bai and all the appellants formed unlawful assembly, they were armed with deadly weapons and after committing house breaking by night in furtherance of the common object of unlawful assembly, they committed culpable homicide amounting to murder of Ranjeet and have attempted to commit murder of Nagi Bai. The trial Court has rightly convicted & sentenced the appellants. 18-Learned State counsel placed reliance in the matter of State of Rajasthan v. Teja Ram and others5 in which the Apex Court has held that close relatives are natural witnesses in absence of independent witnesses at night and the inmates of house are most natural witnesses and their evidence cannot be discarded. Learned State counsel further JT 1999 (2)80279 12 placed reliance in the matter of Gangadhar Behera and others v. State of Orissa6 in which the Apex Court has held that principle of falsus in uno, falsus in omnibus is not applicable in India, it is only a rule of caution. Relative witnesses are also witnesses only minute scrutiny of their evidence is required. Learned State counsel also placed reliance in the matter of Sachchey Lal Tiwari v. State of U.P. in which the Apex Court has held that after altercation killing of deceased by use of fire arm does not fall within Exception 4 to Section 300 of the I.P.C. and same is murder punishable under Section 302 of the I.P.C. Learned State counsel relied upon the matter of State of U.P. v. Dan Singh and others in which the Apex Court has held that intent of members of assaulting party can be gathered from number and nature of injuries and arm used by them, an assembly which is initially lawful may subsequently become unlawful. Learned State counsel further relied upon the matter of Lalji and others v. State of U.P. in which the Apex Court has held that unlawful assembly once established, corroboration as to overt act or active participation of an accused-member of the untawful assembly is not required. Mere meeting offive or more persons for carrying out common object involving reasonable apprehension of violence, even without doing any overt act, is sufficient to constitute offence. 19.The trial Court has also tried the appellants herein in S.T.No.424/2003 for commission of murder of Ravi & Dukalu and attempt to commit murder of Shankar & Shanti Bai. After appreciating the evidence available on that record, the trial Court has convicted & sentenced the appellants herein under Sections 148, 302 read with Section 149, 307 6 (2002) 8 SCC 381 7 (2004) 11 SCC410 8 (1997)38cc 747 9 (1989)1 SCC437 13 read with Section 149, 460 & 324 read with Section 149 of the I.P.C. The appellants herein have also preferred criminal appeals against their conviction in S.T.No.424/2003 vide Criminal Appeal Nos.24/2006, 133/2006 & 161/2006 in which also the arguments are heard along with the instant appeals and those appeals are being disposed of by a separate judgment. 20.1n the present case, homicidal death of Ranjeet as a result of ante- mortem fatal injuries and fatal injuries to Nagi Bai (PW-1) have not been substantially disputed on behalf of the appellants, otherwise also established by the evidence of Dr. S. Chandravanshi (PW-9), autopsy report Ex.P-14, injury report of Nagi Bai Ex.P-15 and X-ray report Exs.P- 16 & P-16A, that death of Ranjeet is homicidal in nature and injuries caused to Nagi Bai are fatal to life. 21.As regards complicity of the appellants in the crime in question, conviction is based on the evidence of eyewitnesses Nagi Bai (PW-1) - mother of deceased Ranjeet & injyred witness and Seema Bai (PW-19) - wife of deceased Ranjeet. 22.8eema Bai (PW-19) has deposed in her evidence that they were in inimical terms with the appellants & other accused persons, on 26-8- 2003 she was sleeping along with her husband & children, between 2-3 a.m. at night accused Girdhari, Nand Kishore, Chinna, Neelkanth, Daulu, Dharmu, Kodu Raju, Baiga Raju, Arjun, Kodi, Phool Singh, Punit, Dinesh, Chote Babu, Pintu, Ganeshi, Yashoda, Santoshi & other persons came to her house, they were holding sword, axe, stick & nanchaku, they came inside her house by jumping the wall and firstly they assaulted her, then her husband and thereafter, her mother-in-law Nagi Bai (PW-1). When they tried to assault her children, her husband Ranjeet directed 7. ^' ) \ 14 her to go with children to save them on which she along with her two children left her house and while leaving her house she was watching