H COURT OF CHHATTISGARH AT BILASPUR Criminal-Appeal No.910 of 2001 APPELLANTS: (In Jail Madvi Somdu, S/o Mongadu, aged about 45 ysars Madvi Kumma, S/o Somdu, aged about 20 years Mvi Budru @ Budhram, S/o Pandru, aged about 22 years Madvi Somdu, S/o Madvi Pandru, aged about 18 years Madvi Ayate, W/o Madvi Pandru, aged about 55 years Madvi Ayatu, S/o Madvi Somdu, aged about 23 years Madvi Sukko, S/o Somdu, aged about 8O years Madvi Pandru, S/o Lakhmo, aged aout 44 years Madvi Payako, S/o Madvi Pandru, aged about 2O years Madvi Sannu, S/o' Madvi Pandru, aed about 17 years Madvi Mangli, W/o Madvi Somdu, aged about 55 years A11 R/o Pondum, Batumpara, P.S. and District Dantewada ‘1. w“ p“ Versus RESPONDENT: State of Chhattisgarh, Through Distt. Magistrate Dantewada( Chhattisgarh) Present: Shri Prafull Bharat, counsel for the appellants Shri Sandeep Yadav, Debuty Govt. Advocate for the State. v Division Bench: Hbn’ble Shri Dhirendra Mishra 8a Hon’ble Shri R.N. Chandrakar, JJ. ORAL JUDGMENT a (5—8—20 1 0) The following judgment ofthe Court was delivered by Dhirendra Mishra, J. HIG ) ad b g This criminal appeal is directed against the judgment of conviction and order 0f sentence ‘ dated 30th August, 2001 passed in S.T. o.313/99 whereby learned 3rd Additional Sessions Judge, Bastar at agdalpur has convictedathe appellants under Sections 148, 452 and 302 read with Section 149 of the IPC and sentenced them to undergo R.I. for l year, R.I. for 3 years and to undergo life imprisonment, respectively. A11 the‘ sentences have been directed to run concurrently. . Case of the prosecution, in brief, as projected in the impugned judgment, is that the deceased and the appellants are resident of, village Pondum, P.S. Dantewada. On 11—5—99, at about 11 am appellant Madvi Ayatu With axe and others except Ayate and Mangli holding bamboo stick Went to the house of the deceased. Ayate and Mangli caught hold of Joga and started shouting that he has become big land holder and notlleaving their land and today they shall not leave him alive, whereupon Somdu, Sukko, Kumma, Pandru assaulted him with bamboo stick whereas Budru, Payko, Somdu, Sannu beat him with hands and fists Madvi Ayatu attacked Joga With knlfe on left part of h1s abdomen With a force as a result flesh of the abdomen was cut and came out and blood started oozmg Joga fell on the ground. The moldent was narrated by h1s w1fe Mandv1 Ayate to her father-imlaw Mandvi Ayatu, who told about the same to Sarpanch, Patel, Kotwarland others. All went to the house of Joga. They were carrying Joga to hospital for treatment, however, he died on the way. . Report and merg was lodged by Mandvi Ayate, wife of the deceased on the same day at about 22.20 hours against the appellants vide EX.- P/l and Ex.-P/3 respectively. Inquest over the dead body of the deceased was prepared vide Ex.-P/4. Thereafter the dead body was sent for autopsy to Primary Health Centre, Dantewada where Dr. V.K. Tirki (PW-7) conducted postmortem and gave his report of EX.—P/81. r 4 After completing usual investigation, charge sheet was filed in the Court of Chief Judicral Magistrate, Dantewada who -in turn committed the case to the Court of Sess1ons Judge for trial . N J Learned Sessions Judge framed the charges under Sections 148, - 302/149 and 452 of thie IPC against the appellants, who abjured their guilt. The prosecution in order to establish its case examined 9 witnesses Thereafter statements of the accused were recorded in which they denied the circumstances appearing against them in‘the prosecution case and pleaded innocence and false implication due to land related dispute and to grab their land during their incarceration. However, they did not examine any witness in their defence. Learned trial Court after hearing counsel for the respective parties convicted and sentencedjthe appellants as mentioned in para—1 of the 1 l judgment. l Ex . Homicidal death of deceased Joga is not in dispute. Even otherwise, from the evidence of Madvi Ayate (PW—1), who claims to be eyewitness and who has deposed that her husband was assaulted by knife on his abdomen and fromithe evidence of Dr. Tirky, who conducted postmortem on the person of the deceased and found following injuries on the person ofithe deceased and opined that cause of death ' is shock due to excessive blood haemorrhage and death is homicidal in nature, homicidal death of the deceased is established. { INJURIES . one incised wound of size 7 cm x 5 cm penetrating inside the stomach and intestine had come out; . abrasion of size 2 cm x 2’ cm on left side of the back. On internal examination, spleen was found ruptured; . Shri Prafulla Bharat, learned counsel for the appellants submitted that conviction of thef appellants is based on the evidence of “ eyewitnesses namely, Madvi Ayate (PW—l) and Madvi Ranu (PW—5). Both these witnesses are wife and son of the deceased and as such, they are highly, interested witnesses. Both the witnesses have deposed that appellant No.6 assaulted the deceased with knife on his abdomen whereas other accused persons assaulted Joga with club. Appellants Mangli and Ayate by>hands and fists. However, their ’ w version is not corroborated from the medical evidence, as the deceased sustained only one incised wound caused by knife on . . . . abmen an abrasion resent n his back could not e caus lub. Reerring t the eiden of Dr. Tki, it was ared at the ctr di not fl ay ijy/bluis mark caused by baoo r ub nd arasion cld be aed by slipping onurfa or aig on grou. It was ategorilly opined that the deceased oul e ie u to abrasion fun hi y hes neses h imical retioh Cd nc t ar n cn h d e e a3PW n r on t s d re t e y wom her hat he has loged port agains very bod with h usb had dispute. l‘his Witness has also adttd hat s i ling the land wic s illd by the accused perss efore e den. aj b oed n on 32 wth tio 9 of h w y md l emy ith an oj mde Ja, hev, pecutio hs utte th ove rmti f n sm et ng gra en roe an sos g parict te as an in es m the idenc iimal Witneses shl be exained with care. So far s evidece both the eewitness as gains apeants No.1 to 5 a to 11 is cerned, t is higl unliabl i version regardg assault b these appel lu i el te md evd -8 advi Sukl is te Witness of memorandu nd eizure. However, he has not supported the prosecution case and has been cross—examined by the prosecution. Reliance is placed} in the matters of State of Karnataka Vs. Chikkahottappa @ Varade Gowda 8a Ors.1, Eknath Ganpat Aher and others Vs. State of Maharashtra and others2 and Maranadu Vs. State3. 10 On the other hand learned counsel for the State supporting the impugned Judgment argued that conv1ct10n 1s based on the ev1dence do d p o b ed by c f o Vce ir gu th doo d nd n nurh mb o cl a b ou cus sce flln nd cca cd nevr d de od bn s bod. Te wits ad ni lansip with the deease sie las 3 yes i onection wit lan rlated disput nd-1 has admitted i he cross-examinati hand f mie t he s til hh wa te on b th incit The appellnts have een cnvict uder Secti 0 i the aid of secn 14 te IPC ith a finding that the fore unawful assbl w bect to commit urr of og ower the rosn a rly failed to prove e ab foaon o ulawful asebly with an objc of committi murder. ttd on t i n re is It is sele positi of law tha n cases of emities, the enel tendcy to p in my pern as havin tipaed in h sault d the circustances, eve of nic a n of yse at pll nd 7 onc i hy ree as ther in y lants by cb s bied by h eical ience. PW M u h m a s 1 2008 CRI L J 3495 2 (2010) 6 Supreme Court Cases 519 3 (2008) 16 SCC 529 s oud m of eyewitnesses namely Madvi Ayate (PW—1) and Madvi Ranu (PW—5). Their version is also corroborated from the evidence of Beko Sannu (PW—2) and Madvi Chaitu (PW-6). PW—9 Beko Mangdu is the Witness of extra judicial confession made by the appellants in the Panchayat. The evidence of the eyewitnesses cannot be discarded only on the ground that their version is not corroborated from the medical evidence and the trial Chnrt has rightly relied upon the evidence o eyewitnessesiand held the appellants guilty under Section 302 rea with Section 149 of the IPC. Madvi Ayate (PW-1) has categorically stated that Somdu came to her house first and thereafter all the accused personscame and Somdu told her husband that they shall kill him today and thereafter he was assaulted by all the accused ‘ persons. il.We have heard learned counsel for the parties. We have perused the record as also the impugned judgment. “:2 R“R 12.Madvi Ayate (PW-1) and Madvi Ranu (PW-5), wife and son of the deceased, are eyewitnesses to the incident. The incident occurred at _ about 11 am. Madvi Ayate (PW-1) has stated that on the date of the incident the appellants: together came to her home and started assaulting her husband. Somdu, Pandru, Sukko, Kumma and Budhru assaulted her l'iusband with club whereas, accused Ayatu f assaulted him with a knife. Other accused persons assaulted hi with club whereas Mangli and Ayate beat him with hands and fists. She has lodged report against all the accused persons vide Ex.—P/ 1. In cross—examination, this witness has admitted that there was land; related dispute betweengthem for the last 3 years. BOth the parties were together tilling the disputed land and after the appellants’ arrest, she was tilling thie land earlier tilled by them. If the accused persons are released from jail they would again raise dispute. She has also stated that the entire famrly members of Madvr Pandru are in Jail 1n connection With this case Omiss10n regarding Madv1 Payko and Madv1 Sannu assaulting With club and Madv1 Ayate 8r Madv1 Mangli beating with hand in first information repdrt of EX -P/ 1 has been confronted to this witness Similarly, she has contradicted FIR wherein she had mentioned that Madv1 Payko and Madv1 Sannu had- i assaulted the deceased with hands and fists. f d t m 13.Madvi Ranu (PW—5) has also deposed in the similar lines. This Witness has also deposed that because of the assault by the appellants, his father sustained injuries on his hand, back and entire body. Both these Witnesses are Wife and son of the deceased. They have admitted that theyi had inimical relationship with the accused persons on account of land related dispute and PW-l has also admitted that she has lodged the report against all those persons with whom her husband had dispute. 14.PW—2 Beko Sannu has deposed that Joga was his father—in—lawt Ayate told him that Som‘du and Sannu have murdered hervhusband. She did not hear properly about other accused persons. 15.PW—6 Madvi Chaitu has deposed that his sister-in—law Ayate came to his house and told his father Ayatu about the aSSault by theaccused persons by knife'and club. Thereafter he went to the house of Joga with his father and Joga told them thata accused persons Somdu, Sukka, Kumma, Pandru assaulted him with club and Madvi Ayatu assaulted him with knife. Budhru, Payko, Somdu and Sann assaulted him with hands and fists. 16.PW-8 Madvi Suklu is the Witness of memorandum and seizure, however, he has not supported the prosecution case. 17.PW—9 Beko Mangdu has‘deposed that wife of Joga, Ayate and fathe Ayatu told them that Somdu assaulted Joga with knife and after the incident, a Panchayat was convened in the village and in the Panchayat, Somdu had; taken out Kadri (knife) and told that he assaulted Joga with Kadri. The accused persons also confessed before Panchayat that they assaulted them by club. However, in cross—examination, this witness has admitted that a Panchayat was convened in the presence of police and the police extractedtheir version by beating themJ 18.From close scrutiny of the evidence of Madvi Ayate (PW-1) and Madvi Ranu (PW-5), wife and son of the deceased, we find that they have specifically made allegation against appellant No.6 that he assaulted the deceased byknife on his abdomen as a result intestine of the deceased came out and both these witnesses have made general allegations against all the accuSed persons that they asSaulted the x i u r W deceased with club ami Mangli and Ayate assaulted the deceased with hands. The doctor‘has categoricallydeposed that the deceased did not sustain any injury on his person except incised wound on abdomen and one abrasion on left side of the neck. The injuries present over the body of the deceased could not be caused by the club. The appellants have been convicted under Section 148 for formation of unlawful assembly, Section 452 for entering the house of the deceased with preparation for causing hurt and Section 302 read with Section 149 of the IPC for committing murder of deceased Joga. n the matter of Ekn‘ Ganpat Aher an othe ( , Supre Curt had a occasion o consider appiaton of edn n c of rilri nd hs be d p—26 h 19;I ath d rs Supr ) the em o n t reci the viece of inimical witesses in the ases group vaes a it a en hel in ara tus:- “6. It is an acceed propotion that in the ce of group rivalries d enmities, there is a geeral tenden to pe as many ersons as sib havg pacae in he aslt. In sch situao, t urts are ld to be ery cautiu an st the evice Wi ar. Where after a close scrutiy of the evidenc a resonabl doubt arises the in o he cour ith reard to the participatin of y of th ho av be n b obliged to give e enefit of doubt to them.” .he queion for our cosideration is whethe te prosecuti h established foration o nlawful mbly in prsuance their commo cit 21.1n the matter of Chikkahottappa @ Varade Gowda 8a Ors (Supra), it has been held in paragraph-6 thus:— 2 pt si as an n cy ro in p posle as in rtiiptd t sau u tins he co cale upon v os d if den th ce n e, ae in md f t t w g o an ose w he en roped i, the court would e th b 20T st n — r h on as m f u asse u of n object to omm murder of the deceased? "6. The pivotal question-is applicability of Section 149 IPC. Said provision has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common Object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of flve or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of uhlawful assembly, it cannot be said that he is a member of such an assembly. The only thing required is that he should have understood that the assembly wasjunlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word ‘object’ means the purpose or design and, in order to make it ‘common’, it must be shared by all. In other words, the object should be common to V the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. v It‘may be formed at any stage by all or a few members of th’e assembly and the other members may just join andJadopt it. Once formed, it need not, continue to be the same. It may be modified or altered or abandoned at any stage. The expression 1n prosecution of common object’ as appearing in Section 149 have to be strictly construed as equivalent to ‘in order to attain the common object’. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each ‘. member of what is likely to be committe in prosecution of their common object may vary not only according to the information at his command, but also according ’to the: extent to which he shares th community of object, and as a consequence of this th effect of Section 149, IPC may be different on differen embers of the sarne assembly.” 22‘.In the matter of Mmanadu (Supra), the Supreme Court, while considering the applicability of Section 149 of the IPC, had cautioned against acceptance of evidence of partisan witnesses, particularly in case involving Section 14‘9 IPC. 23.1f we examine the facts of the present case in the light of proposition of law laid down by the :ESupreme Court .in the aforesaid judgments, we find that Madvi Ayate (PW-1) and Madvi Ranu (PW-5) being wife and son of the deceased are highly interested witnesses. Madvi Ayate (PW-1) has admitted that she lodged report against all the family members who had land irelated dispute with her husband. She has further deposed that after their arrest, she is tilling the field which was earlier tilled'by the accused persons. Similar is the evidence of her son Madvi Ranu (PW—5) and, therefore, it would not be safe to rely upon the evidence of these two witnesses so far as it relates to: allegation of assault by cflub and hands and fists against the accused persons except appellani No.6. From the evidence. of Dr. Tirky, it is clear that there was no injury caused by lathi present over the person of the deceased. Even 1f the version of these witnesses is accepted and it is held that the iaccused persons went to the house of the deceased by forming unlawful assembly with a common object to cause hurt to the deceased, they could be convicted under Section 148 and 452 of the IPC. gHoweVer, in the absence of any injury on the person of the deceased by lathi, it would be hazardous to infer tha the accused persons shared common object of committing murde with appellant No.6. >24.For the aforesaid reasons, the evidence of Madvi 'Ayate (PW-1) and r Madvi Ranu (PW—5) against these appellants that they assaulted the deceased with lathi, hands and fists is unreliable and these witnesses i have made general allegations against these appellants on'account of d e e t m s t r enmity. However, the vei‘sion of Madvi Ayate (PW- 1) and Madvi Ranu (PW-5) with regard to thc specific allegation against appellant No.6 that he assaulted the deceased with knife on his abdomen is dul e corroborated from the i medical evidence and the same inspir y confidence. 2 5.1n the result:- - The appeal is partly iallowed. Conviction and sentence imposed upon the appellants under Sections 148 and 452 of the IPC are maintained, however, conviction and sentence imposed upon them, except appellant No.6, under Section 302 read with Section 149 of the IPC are set aside and they are acquitted of the said charge. The appellants namely, Madvi Ayate, Madvi Mangli, Madvi Sannu and Madvi Somdu, son of Madvi Pandru remained in jail w.e.f. 13—5-99 to 20-9—2000 and from the date of judgment i.e. ‘30—8-2001 to 3—8-2004. Appellants namely, Madvi Somdu son of Mongadu, Madvi Kumma, Madvi Budru @ Budhram, Madvi Sukko, Madvi Payko and Madvi Pandru remained in jail w.e.f. 13— 5-99 to 3-8—2004’ The aforesaid appellants are on bail. Their bail bonds are discharged: and they need not surrender. ’l‘hey shall be entitled to set .off of the period already undergone by them. o Conviction and sentence imposed upon Appellant No.6 under Section 302 read with Section 149 of the IPC are hereby modified, instead, he is convicted under Section 302 of the IPC for causing homicidal death of Joga and sentenced to undergo imprisonment for life. 8d]- R.N. Chandrakarr \ Judge Dhirendra Mishr l * ' a