n HIGH COURT OF CHHATTLSGARH^BILASPUR w /-'•f^ APPELLANTS: RESPONDENT: Criminal Appeal No.550 of 1991 Baijuramand others Versus State of Madhya Pradesh (now State ofChhattisgarh) —\ ^ nd Post for pronouncement of iudament ofl22"°_Jubf,2010 Sd/- • T.P.Sharma g Judge 3 HIGH COURT OFCHHATTISGARH, BILASPUR APPELLANTS: RESPONDENT: Criminal Appeal No.550 of 1991 1. Baijuram son of Shri Korva Kanwar aged about 50 years. 2. Mahadev son, of Shri Korva Kanwar aged about45 years. 3. Bhaktuson of Shri KorvaKanwaraged about 35years. 4. Ratiram son of Shri Baijuram aged about 28years. 5. Hiraram son of Shri Dukalu Kanwar agedabout 35 years. 6. Matwar son of Shri Manglu Kanwar aged about 40years. 7. Bodhram son of Shri Ghasiya Kanwar aged about 30years. All residents of village Sahaspur, Thana Gharghora, Distt. Raigarh. Versus State of Madhya Pradesh (now State of Chhattisgarh) {Criminal appeal underSection 374 (2) ofthe Code ofCriminal Procedure, 1973} Present: Mr. Sunil Sahu, counselfor the appellants. Mr. Sushil Dubey, Govt. Advocate for the State/respondent. Sinale Bench: Hon'ble Mr. T.P. Sharma, J JUDGMENT (Delivered on 22nd July, 2010) 1. Challenge in this appeal is to the judgment of convjction & order of sentence dated 21-5-91 passed by the 2 Additional Sessions Judge, Raigarh in Sessions Trial No.112/90, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission ofoffence unclerSections 307 read with Section 149 & 147 of the I.P.C., sentenced each of them to undergo R.l. forseven years and pay fine of Rs.200/-, in default of payment of fine to further undergo R.l. forone month and to undergo R.l. forthreemonths, respectively; '^^.A Jws^- "•Sv^ '^•...;~2. Gonviction is impugned on the ground that without any iota of evidence, the trial Cpurt has convicted & sentenced the appellants and thereby committed illegality. 3. Case of the prosecution, in brief, is that on thefateful dayof 8-4-90 between 8 and 9 p.m. complainant Manbodh came to his house, after opening the door of his house, when he came out from the door, all the appellants who were presentin front of his house, abused him, they were holding sticks and they assaulted him with stick as of result he fell down on which accused Baiju tried to assault him with some weapon, Manbodh shouted for help whereupon Ghurau & Mehatram cameand intervened, thereafter other persons also came and theappellants fled from the spot. Appellant Baiju has constructed house on the land of complainant Manbodh, Manbodh asked Baiju to remove the illegal construction andon account of such illegal construction the appellants were having enmity with complainant Manbodh and on account of such enmity they have caused seriousinjurjes to Manbodh (PW-1). Manbodh (PW-1) went to the Police Station and lodged F.I.R. vide Ex.P-1. His bloodstained bed sheet and lungi were seized vide Ex.P-2. He was sent for mediGal examination. Dr. M.L. Thawait (PW-11)examined him vide Ex.P-26 and found following injuries: - (1) Fracture of right tibia & fibula bone at its middle with two la.cerated wounds on medial aspect and middle of right leg. Size 1" x 0.3" x bone deep and 0.5" x 0.2" x bone deep. X-ray of right leg was advised. (2) Qne transverselacerated wound on right parietal region in the size of 3" x 0.5" x bone deep. (3) Onetransverse lacerated wound on right forehead in the size of 1.4"x0.3"xbonedeep. (4) One transverse lacerated wound on left forehead in thesize of 1" x 0.3" x bone deep. (5) One laceratedwound on left temporal region in the size of 0.5" x 0.3" xbone deep. (6) One laceratedwoundon middle and medial aspect ofleftleg in the size of 0.5" x 0.3" x bone deep. (7) Rupture of nail bedof right ring finger. (8) Contusion on medial aspect andupper end of left arm in the size of 2.5" x 1"with one abrasion of 1" x 0.5". (9) Gontusion transverse on outer aspect of left arm3" below injury No.8 in the size of 3" x 1.5" with one abrasion of 1" x 0.8". Besides the above nine injuries, as many as fourteen contusions were found over different partsof the body viz., arms, elbow joint, below the eye, chest, thigh, scapular region, below the left nipple etc. Injuries No.2 to 5 were dangerous to life and remaining weresimple in nature. Manbodh (PW-1) was admitted in thehospital and he was also examined by Dr. SharadAwasthi (PW-8) vide Ex.P-21 who has adjusted his leg bone. Dr. M.D. Joshi (PW-5) conducted X-ray vide Exs.P-11 to P-17 and found fractureoftibia & fibula bones of both thelegs and phalanx of right index finger. One knife was seized from appellant Baijuram vide Ex.P-3. Onestick was seized from appellant Mah&dev vide Ex.P-4. One strck. was also seized fromappellant Hiraram vide Ex.P-5. One stick was also seized from appellant Raitram vide Ex.P-6. One stick was also seized from appellant Bhaktu vide Ex.P-7. One stick was also seized from appellant Bodhram vide Ex.P-8. One stick was also seized from accused Atwar vide Ex.P-9. Bloodstained and plain soil were recovered from the spot vide Ex.P-10, Seized articles were sent for chemical examination vide Ex.P-20 and presence of blood was confirmed upon bed sheet, lungi & blood stained soil vide Ex.P-30. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C.. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Raigarh who in turn, committed the case to the Court of Sessions, Raigarh, from where learnedAdditional Sessions Judge received the caseon transferfortrial. 5. In order to prove the guilt of theappellants, the prosecution has examined as many as eleven witnesses. The accused wereexamined underSection 313ofthe Cr.P.C. in which they denied thecircumstances appearing against them, pleaded innocence and false implication on account ofenmity. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants in the aforesaid manner. . 7. I have heard learned counsel for theparties, perused the judgment and record ofthe trial Court. 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SLK ||e 'ssunfui OM^ 3tQ ideoxe pue L|poque|/\|.)o ei!|0} snojaBuep Ajnfuuo Ajnfui |e}BiAue pssneo OAEU s}UB||8dde 941 }ei4} IOEJ 94} p9Aojd iou seii uoiinossojd 34} 'eseo lussejd 3L|} ui }BL|I psnBje AituaiuaqsA siue||3dde sq} joj lesunoo paujee-] •Q '.^^ ffh /• &^ ^ ~all the appellantscame with stick and assaulted him with stickand caused several injuries over different parts of his body on account of the dispute relating to construction of house. Mehtar Ram (PW-2) has substantially corroborated theevidence of Manbodh (PW-1). Ghurau (PW-3) & Atmaram (PW-4) have also corroborated the evidence of Manbodh (PW-1). Defence has cross-examined these witnesses in detail and in their detailed cross-examination they have specifically deposed that the appellantswere the persons who had caused injuries to Manbodh at the time ofincident. 14.1n the present case, the appellants were present near the ho.use of Manbodh and they were holding sticks at 8 p.m. in the night. Presence ofthe appellants at8 p.m. in front of the house of complainant Manbodh was not natural. The complainant was not present in the house and when he came from outside and opened his door, the appellants assaulted him with sticks and caused as many as twenty-three injuries. Presence of all the appellantsat 8 p.m. near the house of the complainant and causing such injuries with stick tothecomplainant when he was alone in front of his house shows formation of unlawful assembly having its objectof causing fatal injuries to the complainant. T5.In order to constituteunlawfulassembly, five or more than five members are required and their commQn object must be for commission of the offence as envisaged in Section 141 of the I.P.C.. An assembly constituted lawful may be converted into unlawful assembly at any moment. Normally evidenee relating to common objectof unlawful assembly is not possible,it may be inferred from the actGommitted by the unlawful assembly and result of such act. Once it is proved that unlawful assembly has been constituted, any overi: act or active participation of any member of unlawful assembly is not necessary. All members would be liable for the commission of offence or the act cbmmitted by any member of unlawful assembly in accordanGe with Section 149 ofthe I.P.C.. 16.lncase once the assemblyis formed,no specific act of individual accused is required to be proved or no overt act is necessary, only thing that is necessary is knowledge ofthe common objectof such unlawful assembly. In the present case, all the appellants were present in frontof the house of the complainant, they were holding sticks and they JJ7/ yoma assaulted the complainant and caused as many as twenty-three injuries including fracture of both legs and phalanx of right index finger. This shows common object of the unlawful assembly. Evidence of complainant Manbodh (PW-1) is sufficient'for drawing inference that all the appellants have caused injuries to Manbodh in furtherance of common objectofthe unlawfulassembly. 17.Afterappreciatingthe evidence availableon record, learned Additional Sessions Judgeconvictedthe appellants under Sections 147 & 307 read with Section 149ofthe I.P.C.. Conviction ofthe appellants is basedon legal, clinching&credibleevidencesustainable underthelaw. 18.As regards the questionof sentence, learned Additionai Sessions Judge sentenced the appellants toundergo R.l. for seven years and pay fine of Rs.200/-, in default ofpayment offinetocfurther undergo R.l. for one month under Section 307 read with Section 149 of the I.P.C. and to undergo R.l. for three months under Section 147 of the I.P.C.. Considering the nature of dispute, enmity between the parties and nature of injuries, sentences imposed upon the appellants require re- consideration. 19.Consequently, the appeal is partly allowed. Conviction of the appellants under Sections 147 & 307 read with Section 149 of thel.P.C. is hereby maintained and sentence jmposed upon them under Section 147ofthe I.P.C. is also maintained. Instead of R.l. for seven years & fine of Rs.200/- imposed upon the appellants underSection 307 read with SeGtion 149 ofthe I.P.C., the appellants are hereby sentenced to undergo R.l. for five years &fine of Rs.200/- each, in default of payment of fine to further undergo R.l. for one month. The appellants are on bail, they shall surrender themselves immediately before the Court of 2 Additional Sessions Judge, Raigarh or its successor-in-officeforserving remaining sentence imposed upon them inSessions Trial No.112/90. Sd/-, ' T. P. Sharma Judge ,