HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri Rangnath Chandrakar, JJ, Criminal Appeal No. 923 of 2007 Appellant Bi':; Respondent Niyaz Ahmed and others Vs. State of Chhattisgarh JUDGMENT FOR CONSIDERATION Sd/- R.N. Chandrakar Judge Hon'ble Shri Dhirendra Mishra, J. .Sdy'- JUDGE ^-11-2009 .^\ Post for pronouncement of judgment on '7-11 -2009 Sd/- Dhirendra Mishra Judge D-. HIGH COURT OF CHHARTTISGARH AT BILASPUR Coram:- Appellants (in jail) Respondent Hon'ble Shri Justice DhirendraMishra & Hon'ble Shri Justice R-N. Chandrakar Criminal Appeal No. 923 of 2007 1. NiyazAhmedsonofJaliTAhmed,agedabout 21 years, resident ofAhmed Nagar, Bhilai, DistrictDurg (CG). ^ ; . 2. Mohammed Rafique, son of Mohammad Safique, aged about 24 years, resident of Ahmed Nagar, Bhilai, District Durg (CG). 3. Iquebal son of Mohammed Sultan, aged about 26 years, resident of near Sheetla Mandir, Ahmed Nagar, Bhilai, District Durg 4. Naresh Singh, son of Chunna Singh Chowhan, aged about 22 years, resident of near Hanuman Mandir, Tatyapara, Raipur 5. Ankit Jain son of Anil Kumar Jain, aged about 20 years, resident of circular market, Bhilai, District Durg (CG). 6. Shiekh Rizwan, son of Shiekh Imtiyaj, aged about 21 years, resident of Ahmed Nagar, Camp No.2, Bhilai, District Durg (CG). Versus The State of Chhattisgarh through Station House Officer, Police Station Aarang, District Raipur (Chhattisgarh). (Appeal under Section 374 (2) ofthe Code of Criminal Procedure) Present: Shri M.D. Dhote, counsel for the appellants No. 1 to 4 and 6. Shri Arun Kochar, counsel for the appeilant No.5. Shri Ravindra Agrawal, Panel Lawyer fortheState. JUDGMENT ^ (Delivered on this ^.' 'day of November, 2009) PerR.N. Chandrakar, J. 1. The appellants have preferred this criminalappeal under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 27-9-2007 passed by 11th Additional Sessions Judge (FTC), Raipur, in Sessions Trial No. 75 of 2007, whereby the appellants have been convicted underSections 307/149, 325/149 and 148 ofthe IPC and sentenced to undergo life imprisonment, R.l. for one year andR.I. for one year respectively. All thesentences are directed to run concurrently. 2. The case of the prosecution, in brief, is that on 8-5-2006atabout 4.30 a.m. one Sitaram Singh, driver of the Truck bearing No. WB-23- A/6342 came to the Police Out-post Patewa and informed that some 8 - 10 persons armed with deadly weapons like sword, spade, knife and clubs etc. came ina Sumo Jeep bearing No. CG-04/ZD/7890, stopped his truck at National Highway No.6 near village Jogidipa and looted Rs.12,000/- from him. On receiving this information, Pramod Kumar Singh (PW/11) along with his staff and the complainant Sitaram, proceeded in a Govt. Jeep to search the said Sumo Jeep and the persons riding therein. When the Police party reached near village Kaunajhar, they saw one white coloured Sumo Jeep standing near a truck in which 8-10 persons were sitting armed with deadly weapons. Seeing the police party, the persons sitting in the Sumo Jeep started fleeing away whereupon, the complainant Sitaram told the police party that this was the jeep which was used by the accused/appellants. Thereafter, Sumo Jeep was followed by the police party and the same was stopped by the appellants near railway crossing between village Paragaon and Nisda. The persons sitting in the said Sumo came out armed with the aforesaid deadly weapons and attacked the police party. The police tried to catch theaccused persons during which the Head Constabte PW/10 Sauki Lal Wagh sustained injury on his head being .^. assaultedwitha club by one of theaccused and PW-11 Pramod Kumar Singh, Assistant Sub Inspector sustained injury on his right fpot being run over by the said Tata Sumo. Ultimately, one of them was caught by the police and others managed to flee away from the spot. The person apprehended by the Police was arrested and brought to the police station Mahasamund who told his name as "Niyaz Ahmed" from whom one cell phone and Rs.4000/- were seized. During interrogation, he also disclosed the names of his companions. The report of the incident was lodged at Police Station Mahasamund on the basis of oral report given by Pramod Kumar Singh (PW/11). After registering the unnumbered offence, the injured persons were sent for medical examination to District Hospital, Mahasamund, where Pramod Kumar Singh was examined vide Ex.P/13 and Saukilal Wagh (PW/10) was examined vide Ex.P/15. Subsequently, considering that the crime was committed within the jurisdiction of Police Station Aarang, the report was forwarded there for registration and investigation of the offence where FIR(Ex.P/1) was registered and the matterwas investigated. 3. During investigation, the spot map was prepared vide Ex.P/7 and Ex.P/19, blood smeared and plain soil, broken indicator of Sumo Jeep empty cartridge of the pistol and one blue coloured slipper were seized from the spot vide Ex.P/2, query reports regarding the injuries sustained by Pramod Kumar Singh and Sauki Lal Wagh were obtained vide Ex.P/17 and P/18, Sumo jeep was seized vide Ex.P/3. One pistol was seized from Bhukhan Lal Sahu vide Ex.P/4. The mechanical examinations of the seized vehicle and the Government Jeep were got done vide Ex.P/11 and P/12. The clothes of Saukilal Wagh (Ex.P/10) were seized vide Ex.P/5. The other accused persons were arrested on the disclosure of their names by the appellant No.l/Niyaz Ahmed and some deadly weapons were seized from them. The seized articles 4 including the clothes of appellant No.1, appellant No.5 and Saukilal Wagh (PW/10) were sent to Forensic Science Laboratory, Raipur, for chemical examination vide Ex.P/27 and a report thereof was obtained (not^xhibited). The seized articles were also sent to Serologist and chemical examiner for further examination and a report thereof was receivedvide Ex.P/38. 4. After completing investigation, charge sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Raipur, who in turn, committed the case to the court of Sessions Judge, and the same was received on transfer by the learned 11 Additional Sessions Judge for trial. 5. Learned trial Court framed charges under Sections 148 &307 r/w 149 of the IPC against the appellants who abjured their guilt. The prosecution in order to establish the charges against the appellants examined 17 witnesses in all. Thereafter, statements of the accused/appellants were recorded under Section 313 of the Cr.P.C., in which they denied the circumstances appearing against them and pleaded innocence and false implication. Learned trial Court after hearing counsel for the respective parties, convicted and sentenced the appellants as noted above. 6. Learned counsel appearing for the appellants submit that the appreciation of evidence is not proper and not in accordance with law. The trial Court convicted the appellants only relying upon the testimonies of Saukilal Wagh (PW/10) and Pramod Kumar Singh (PW/11). Both the witnesses are the police officials and there are material contradictions and omissions in their statements recorded before the court and thepolice,therefore, their statements are not reliable. Learned counsel further submits that the injuries sustained by PW/10 Saukilal and PW/11 Pramod Kumar Singh were notsupported by the medical evidence. The appellants were strangers to the Police and no identification parade was held. Only the appellant No.1 was arrested by the Police on the spot and the other appellants were arrested at the instance of appellant No.1. There is no evidence available on record against the other appellants, except the statement given by the appellant No.1 which is not admissible in the evidence in absence of corroboration as provided in Section 30 of the Indian Evidence Act, 1872. The trial court has not appreciated the material contradictions, omissions and improvements in the version of prosecution witnesses. Learned counsel lastly submit that considering all the facts and circumstance, the impugned judgment of the trial Court be set aside and the appellants be acquitted of thecharges. 7. Percontra, learned Panel Lawyer for the State has supported the impugned judgment ofthe trial Court. 8. We haveheard learnedcounsel for the parties and perused the record of the trial Court as also the impugned judgment. 9. The report of the incident was lodged by Pramod Kumar Singh (PW/11) in Police Station Mahasamund vide Ex.P/8 which was subsequently forwarded to Police Station, Aarang for registration of the crime where the FIR (Ex.P/1) was registered and the matter was investigated. There are five eye-witnesses namely Ugrasen Patel (PW/3), Goverdhan Didhi (PW/5), Suakilal Wagh (PW/10), Pramod KumarSingh (PW/11) and Ghanshyam Bharadwaj (PW/15) of the incident. On perusal of the FIR and the testimonies of the eye-witnesses, it is clear that the appellant No.l/Niyaz Ahmed was apprehended by the police officials on the spot and was arrested from whom one sword and Rs.2000/-were seized vide Ex.P/30. During investigation, he disclosed the names of his companions and on the basis of statement the other appellants were also arrested and some deadly weapons were seized from them. ;';'" ^ 10. Pramod Kumar Singh (PW/11), Station House Officer, Police Out-post Patewa stated in his deposition that on receiving the information of loot from one Sitaram, driver of the Truck bearing No. WB -23-A/6342, he proceeded along with his staff and accompanied by the complainant Sitaram rushed to chase the offending vehicle and the appellants. He further deposed that when the Police party reached near village Kaunajhar, they saw one white coloured Sumo Jeep standing near a truck in which 8-10 persons were sitting armed with deadly weapons. Seeing the police party, the persons sitting in the Sumo Jeep started fleeing away whereupon, the complainant Sitaram told the police party that this was the jeep which was used by the accused/appellants. Thereafter, Sumo Jeep was followed by the pplice party and the same was stopped by the appellants near railway crossing between village Paragaon and Nisda. The persons sitting in the said Sumo came out armed with the aforesaid deadly weapons and attacked the police party. The police tried to catch the accused persons during which PW/10 Sauki Lal Wagh, Head Constable sustained injury on his head being assaulted with a club by one of the accused persons and he sustained injury on his right foot being run over by the said Tata Sumo. Ultimately, one of them was caught hold by the police and others managed to run away from the spot. The person arrested from the spot by the Police disclosed his name as "Niyaz Ahmed" (appellant No.1). He further deposed that during interrogation appellant No.1 disclosed the names of his companions as Iqbal (appellant No.3), Rizwan (appellant No.6), Monasingh @ Naresh (appellant No.4), Ankit Jain (appellant No.5) and Usuf. He further deposed that he could not remember the name of one of the accused persons. He admitted his report Ex.P/8 and identified appellant No.1, appellant No.4, appellant No.3, appellant No.6 but did not identify the appellant No.2 before the Court. He further deposed that ^t he sustained hairline fracture on his leg and stated that if he had no pistol, the appellants would have killed him and the staff. In his cross examination some improvements and contradictions were elicited by the defence though, he remained consistent on the material point and supported the prosecution story. In para 18 ofhis cross examination, he admittedthat he did not mention the name of the appellant No.4 in the FIR, though he was acquainted with him. 11. Saukilal Wagh (PW/10), Head Constable, Police Out-post, Patewa, deposed that on the date of incident he received information of loot from the complainant Sitaram and conveyed the same to Pramod Kumar Singh (PW/11). Thereafter he along with Pramod Kumar Singh and otherstaff accompanied by Sitaram proceeded in a Jeep to search the miscreants and on the way near village Kaunajhar they saw Tata Sumo of the appellants standing near a Truck. Seeing the police party, the appellants started running away and turned their Sumo towards village Nisda. Pramod Kumar Singh also reduced the speed of his vehicle on turning and the complainant Sitaram and Ghanshyam alighted from the vehicle there. Thereafter, they reached the spot where the incident took place and he was assaulted on his head with a club by one of the accused persons whom he could not identify. He was writhing due to bleeding and pain. One person apprehended by the Police from the spot disclosed his name as Niyaz Ahmed (appellant No.1). He identified only the appellant No.1 and could notidentify others in the court. He has proved the seizure of his bloodstained dress which was seized vide Ex.P/5. The same is proved by Investigating Officer P.L. Jaiswal (PW/9) and Elias Nag (PW/7). Thiswitness has been cross-examined at length but remained consistent on material point despite there being some contradictions and improvements in hisstatement. ^i; 12. PW/3 Ugrasen Patel, Police Constable, Police Out-post, Patewa corroborating the version of Pramod Kumar Singh (PW/11) and Saukilal Wagh (PW/10) deposed that he was also a member of the raid party. He categorically narrated the incident and stated that Saukilal Wagh (PW/10) sustained head injury being assaulted by one of the appellants with a club and Pramod Kumar Singh (PW/11) sustained injury on his foot after he was run over by TataSumo of the appellants. He stated that the appellant No.1 was caught by the police on the spot and identified him in the court. He also identified one of the appellants wearing blue coloured stripes T-shirt and could not identify others. In his cross examination he admitted that no identification parade was held. 13. PW/5, Goverdhan Didhi, Constable (Home Guard) Police Out-post, Patewa, corroborating the prosecution story and the version of the above witnesses deposed that as soon as they got down from the jeep, Head Constable Saukilal Wagh was assaulted on the head with a club. He pointed towards the appellant No.1 and stated that he was the person who assaulted on the head of Saukilal Wagh. He denied to identify the other appellants but stated that some other personswere also present along with the assailants. He further stated that Pramod Kumar Singh (PW/11) sustained injury on his foot being run over by Tata Sumo while the assailants were running away. In his cross examination he remained consistent on material point and no substance could be elicited in defence, except the fact that he did notsee the footof Pramod Kumar Singh being run over by Tata Sumo. 14. Ghanshyam Bharadwaj (PW/15), Constable, Police Out-post Patewa, has also corroborated the prosecution story and the version of the aforesaidwitnesses. He deposed that the appellant No.1 was arrested on the spot and Saukilal Wagh (PW/10) and Pramod Kumar Singh (PW/11)sustained injuries. There were some contradictions and improvements in his testimony as elicited in his cross examination by the defence but he remained consistent to the prosecution story. 15. The prosecution story is also supported by PW/9 P.L. Jaiswal, Sub Inspector, Police Station, Mahasamund, who stated in his deposition that he registered the FIR (Ex.P/8) on 8-5-2006 at "O", sent the injured persons to Government Hospital, Mahasamund, for Medical Examination vide Ex.P/9 & P/10 and seized the clothes of Head Constable Saukilal Wagh (PW/10) vide Ex.P/5, thereafter forwarded thecase diary to Police Station, Aarang for registration of crime and investigation of the case as the offence was found within the jurisdiction of Police Station, Aarang. PW/1 Devnarayan Sahu, Head Constable, Police Station Mahasamund, took the FIR (Ex.P/8) to Police Station, Aarang, for registrationof the crime and admitted his signature in the FIR (Ex.P/1)registered at Police Station,Aarang. 16. PW/16 N.K. Swarnakar, Assistant Sub Inspector, Police Station, Aarang, though corroborated the prosecution case, he admitted in his cross examination that only appellant No.1 was named in the FIR (Ex.P/1). He further admitted that the names of the appellants were not disclosed by the witnesses Goverdhan (PW/5), Urgrasen Patel (PW/3), Ghanshyan (PW/15), Rohit. He himself stated that only the name of appellant No.1 was disclosed by the witnesses. He further admitted that no identification parade was conducted by him in the case. 17. On reappraisal ofthe evidence, it is clear that the appellant No.1 Niyaz Ahmedwas caught on the spot by the police party from whom onesword and Rs.2000/- were seized vide Ex.P/30. It is alsoclear that he was named in the FIRand identified by all the eye-witnesses before the Court. Eye-witness Goverdhan Didhi (PW/5) clearly deposed that it was the appellant No.1 - Niyaz Ahmed, who assaulted on the head of 10 < Saukilal Wagh (PW/10), Head Constable, with aclub which was corroborated by Dr. Giridharilal Chandrakar (PW/14) who found one bone deep lacerated wound of size 9 x % cm at occipital region on the head of Saukilal Wagh (PW/10). The Doctor who examined Saukilal Wagh (PW/10), opined that the injury was grievous in nature, which appeared to have been caused by hard and blunt object. It is also evident that Pramod Kumar Singh (PW/11) sustained hairline fracture on his foot as he was run over by Sumo Jeep in which appellant No.1 Niyaz Ahmed and others were traveling. Thus, in view of the above, it is established that appellantNo.1 was a member of unlawful assembly and he assaulted Saukilal Wagh (PW/10) on his head with a club. 18. So far as conviction of the appellant No.1 under Section 307 read with Section 149 of the IPC is concerned, in view of the nature of injury sustained by Saukilal Wagh (PW/10) andthe admission made by him in para 5 that there was a chance to assault him by sword and spade but he was given a single lathi blow bythe appellant No.1, the case does not appear to fall within the ambit of Section 307 of the IPC. The appropriate conviction would, therefore, be under Section 325 ofthe IPC. 19. So far as the conviction of the other accused/appellants is concerned, it is clear that appellant No.4, appellant No.3 and appellant No.6 were identified by PramodKumar Singh (PW/11) only before the Court but his testimony is not corroborated by other eye-witnesses. The other witnesses clearly denied to identify the other appellants, except the appellant No.1 Niyaz Ahmed. The other appellants were arrested on the basis of confessional statement made by appellant No.1 and no identification parade was held after their arrest. Thus, it is clear that except the confessionalstatement of appellant No.1, there is no other evidence available on record against the other appellants to connect them with the crime. 11 '?• 20. The trial Court relying upon confessional statement ofthe appellant No.1 has held that his confession is also admissible as against other accused persons under Section 30 of the Indian Evidence Act, 1872 (for short, "the Act, 1872). In the matter of State (N.C.T. of Delhi) vs. Navjot Sandhu, reported in 2005 Cri. L.J. 3950, Hon'ble the Supreme Court, while considering admissibility of retracted confession of the accused under Section 30 of the Act, 1872 against co-accused, has held that confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis of convictionof co- accused. 21. From the aforesaid appreciation, on going through the testimonies of the eye-witnesses and perusal of the FIR (Ex.P/1 & P/8), it is clear that there were more than five persons at the time of incident who used criminal force to resist the police party being armed with deadly weapons and during which two police officials (PW 10 and PW/11) sustained injuries. Thus, it is established that there was unlawful assembly of more than fivepersons who shared the common object as has been deposed by all the eye-witnesses and the appellant No.1 acted in prosecution of the common object of that unlawful assembly. 22. Hon'ble the Supreme Court in the matter of Hamlet vs. State of Kerala (2003) 10 SCC 108, on the aspect of unlawfulassembly observed as under: "It is true that this Court in a number of cases has held that there can be an unlawful assembly of less than five named accused so long as there is material to come to the conclusion that the prosecution has established that apart from these named accused there were also others who were unnamed but who were members of such assemblyand shared the common object ofthat unlawful assembly". 23. On the basis of aforesaid discussion, the appeal preferred by appellant No.1 Niyaz Ahmed is partly allowed. His conviction under Section "^.. ^ ^ . : ^. t>^ri?^. 1 ^•'^-^-^ ,,'; s^ 12 ^ 307/149 is set aside and instead, he is convicted under Section 325/149 of the IPC and sentenced to the period already undergone by him. His conviction in other sections 325 read with Section 149 and 148 of the IPC is maintained. 24. It is stated at bar that the appellant No.1 Niyaz Ahmed has already undergone more than three years of jail sentence. On perusal of the record, we find that the appellant No.1 Niyaz Ahmed has already undergone more than three years of the jail sentence and therefore, in our considered opinion looking to the facts and circumstances of the case, sentencing the appellant for the period already undergone by him would meet the ends ofjustice. 25. The appeal in respect of appellants No. 2 to 6 ( Mohammed Rafique, Iquebal, Naresh Singh, Ankit Jain and Shiekh Rizwan) is allowed and their conviction under Section 307/149, 325/149 and 148 ofthe IPC and sentence imposed on them under the aforesaid sections are hereby set aside and they are acquitted of the charges. It is reported that all the appellants.are in custody. They are directed to be set at liberty forthwith, if not required in any other case. 26. In the result, the appeal is partly allowed. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge Raju