HIGH COURT OF CHHATTISGARH BILASPUR@ DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.N. CHANDRAKAR, JJ. Criminal AQQeaI No.485 of 2006 Mohar Singh Verma and others - Versus - The State of Chhattisgarh JUDGMENT FOR CONSIDERATION I s? " T. P. Sharma I . I Judge \ 23-1 1-2b1 17", N HON’BLE MR. JUSTICE R.N. CHANDRAKAR Sdl- 3 ”Y‘aa RMChandrakar Judge Po5t for pronouncement of judgment on 23'“ of November, 201 1 K sci/— t T. P. Shanna g I Jude" I ‘23-1 1—2011 I K HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.N. CHANDRAKAR, JJ. CORAM: Criminal Appeal No.485 of 2006 APPELLANTS: 1. 10. 11. 12. Mohar Singh Verma, son of Dhaniram, aged 45 years. Lacchiram, son of Chamru Prasad Verma, aged 73 years. (Died) Murlidhar Verma, son of Gouri Shankar Verma, aged 42 years. Bholaram, son .of Ram Rattan Verma, aged 40 years. Kameshwar Verma, son of Ramulal, aged 44 years. Virendra Verma, son of Komal Singh Verma, aged 26 years. Komal Singh Verma, son of Gouri Shankar Verma, aged 51 years. Chandra Kumar, son of Anjor Verma, aged 45 years, Videshi Verma, son of Jhumak Verma, aged 4O years. Nemeshwar Singh Verma, son of Bhikam Singh Verma, aged 42 years. Chhaman Lal, son of Sukhdeo Das Verma, aged 35 years. Bhurwa Yadav, son of Sitaram Yadav, - aged 40 years. ‘ All residents of Chouranga, Police Station Simga, District Raipur (Chhattisgarh). Versus The State of Chhattisgarh {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure} RESPONDENT: 1 _ ;. ‘ i Present: i i Mr. Sudhir Verma, counsei for appeliants No.1, 5, 6, 7, 10 and 12. Appellant No.2 is dead. HIGH COURT OF CHHATTISGARH BILASPUR DlVlSl0N BENCH i 2 Mr. Surendra Singh, Senior Advocate with Mr. Neeraj Mehta, Advocate, for appellants No.3, 4, 8 and 11 . Mr. Govind Dewangan, counsel for appellant No.9. Mr. D.K. Gwalre, Govt. Advocate for the State/respondent. JUDGMENT (23rd November, 201 1 ) The followin 'ud mentofthe Court was assed b T.P. Sharma J:- . Challenge in this appeal is to the judgment of conviction & order of sentence dated 25—4-2006 passed by the 15‘ Additional Sessions Judge, Baloda Bazaar, in Sessions Trial No.42/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for formation of unlawful assembly armed with deadly weapons having its common object to commit murder of Narendra Kumar & Raj Kumar, for committing criminal house trespass for commission of culpable homicide amounting to murder and that in sharing common intention the members of unlawful assembly have committed murder of Narendra Kumar & Raj Kumar, convicted the appellants under Sections 148, 302 read with Section 149, 302 read with Section 149 & 449 of the IPC and sentenced each of them to undergo Rl for one year; imprisonment for life & fine of Rs.500/—, in default additional RI for two months; imprisonment for life & fine of Rs.500/-, in default additional RI for two months; and Rl for five years & tine of Rs.500/-, in default additional Rl for two months, respectively. Learned Additional Sessions Judge further convicted appellant No.6 Virendra Verma under Section 323 of the IPC also and sentenced him to undergo Rl for six months. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants as aforementioned and. thereby committed iiiegality. . For commission of aforesaid offence, Crime No.790/2004 has'been registered at Police Station Simga. initially, twelve accused persons were tried and convicted in S.T.No.42/2005. As per allegation of the prosecution, other eleven accused persons were absconding and after their arrest, charge sheet was filed in Criminal Case No.1743/2004 before the Court of Judicial Magistrate First Class, Baloda Bazaar who committed the case to the Court of Sessions. Other eleven accused persons were tried, convicted and sentenced in S.T.No.433/2007 vide L 3 judgment dated 9—8-2007 by the 2““ Additional Sessions Judge, Baloda Bazaah . As per case of the prosecution, proceeding for installation of Sponge iron Factory at Village Chouranga was in progress, Panchayat meeting was convened on 29—9-2004 and also on 30-9-2004 in which villagers decided to remove such Sponge Iron Factory. Narendra Kumar (since deceased) was also present ln the said meeting. On being asked about the view of Narendra Kumar, he announced by mike that installation and running of factory would be beneficial for the village. ln the Panchayat meeting it was decided that they will remove the factory and that if anybody opposes, he may be killed. They finally decided to gather near the factory on 30-9-2004 at about 8 a.m. and on 30-9-2004, villagers gathered near the factory, some persons tried to go inside the factory for work, but it was opposed by other villagers and they came back. . On 30-9—2004 at about 7.30 p.m. mother of Narendra Kumar (since deceased) namely Smt. Gayatri Bai (PW—1) & sister of Narendra Kumar namely Smt. Anju Lata (PW-11) were present in their house at Village Chouranga, the appellants along with 20-25 persons came in front of the house of Narendra Kumar, they were shouting and abusing, they knocked at the door of the house of Narendra Kumar, they were searching for Narendra Kumar, and thereafter they broken the door (plank of the door). Appellants Virendra Verma, Chandra Kumar Verma, Chaman Verma, Bholaram Verma, Kameshwar Verma, Lachhiram Verma, Murlidhar Verma, Nemeshwar Verma, Mohar Singh & Bhurva Yadav along with 20-25 other persons entered in the house of Smt. Gayatri Bai (PW—1). Wife of Jagdish namely Dhaneshwar Bai and other women were also present with the accused persons. They pressurized Smt. Gayatri Bai (PW-1) and asked about Narendra Kumar and then they searched her house. They were shouting that Narendra Kumar was supporter of the factory. During search, they found Raj Kumar (since deceased), they assaulted him and confined him in a room. Thereafter, they traced out Narendra Kumar who was hiding himself in his room. They dragged out Narendra Kumar from the room and assaulted him. Thereafter, they dragged Narendra Kumar out of his house and assaulted him till his death. Again they entered in the house of Narendra Kumar, they dragged Raj Kumar out of the house and also caused his death by causing repeated assaults. During the course of incident, Smt. Gayatri Bai (PW-1) & Smt. Anju Lata (PW-11) requested t e appellants to leave Narendra Kumar. 6. Smt. Gayatri Bai (PW—1) went to Police Station Simga at 10 p.m. and lodged FIR vide Ex.P-3. Morgues were recorded vide Exs.P-1 & P—2. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Exs.P~5 & P-8, prepared inquest over the dead bodies of deceased Narendra Kumar & Raj Kumar vide Exs.P-6 & P-9. injured Gayatri Bai was sent for medical examination vide Ex.P-7. She was examined by Dr. S. Roy Choudhary (PW-7) vide EXP-34 and one lacerated wound of 1/2 c.m. x 1/2 c.m. inside the lower rib was found. 7. Dead body of Raj Kumar was sent for autopsy to Community Health Centre, Simga vide EXP-35A. Dr. S. Roy Choudhary (PW-7) conducted autopsy vide EXP—35 and found lacerated wounds, abrasions and contusions of total 29 in number over different parts of the body of deceased Raj Kumar. Mode of death of Raj Kumar was shock and death was homicidal in nature. 8. Dead body of Narendra Kumar was also sent for autopsy to Community Health Centre, Simga vide EXP-36A. Dr. S. Roy Choudhary (PW—7) conducted autopsy vide Ex.P~36 and found 32 injuries over different parts of the body of deceased Narendra Kumar, 10m rib & bone below the right eyebrow were found fractured. Mode of death of Narendra Kumar was also shock and death was homicidal in nature. 9. During the course of investigation, appellant Chandra Kumar was taken into custody, he made discloser statement of stick vide Ex.P-12 and same was recovered at his instance vide Ex.P-16. Appellant Bhurva was also taken into custody, he made discloser statement of stick vide Ex.P- 11 and same was recovered at his instance vide EXP-14. Appellant Mohar Singh was also taken into custody, he made discloser statement of stick vide EXP-12 and same was recovered at his instance vide Ex.P- 15. Shirt of Narendra Kumar (since deceased) was seized vide EXP-13. Plank of door was seized from the spot vide Ex.P-17. Bloodstained and plain soil have been recovered from the spot vide EXP—18. Patwari prepared spot map vide EXP-4. Revenue record Exs.P-31 & P-32 were seized and were taken by the police. Seized articles were sent for chemical examination vide EXP-32 and presence of blood was confirmed over the stick seized from appellant Bhurva. 10.8tatements of the witnesses were recorded under Secon 161 of the CrPC. After completion of investigation, initially, charge sheet was tiled before the Court of Judicial Magistrate First Class, Baloda Bazaar against the appellants hein in which elen other accused persons have been shown as absconding and after their arrest another charge sheet was filed. The Judicial Magisate First Class, Baloda Bazaar committed the case to the Court of Sessions, Raipur, from where the 1“ Additional Sessions Judge, Baloda Bazaar, received the case on transfer for trial. .In order to prove the guilt of the appellants, the prosecution has examined as many as thirteen witnesses. The accused were examined under Section 313 of e CrC in which they denied the circumstances appearing against them, pleaded innocence and false implication. 12.Defence has examined Buddhu Patel (DW—1), ,Naresh Sahu (DW—2), Tetku (DW-3) & Sher Singh (DW—4). Buddhu Patel (DW—1) has deosed that 30-35 persons were standing in front of the ouse of Blsauha, they were shouting that Narendra used to oppose the installation of factory, therefore, they will beat him. They were strangers and not residents of Village Choranga. Persons present in front of the house of Bisauha entered in the house of Narendra, they dragged Narendra and one ather person from the house of Narendra, they were beating Narendra and another person, and they have killed them. Naresh Sahu (DW—2) has deposed that at the time of incident Smt. Anju Lata (PW-11) was ~ present in her house at Village Kanki, at about 9.30 p.m. he received a call from Village Chouranga for Anju La at the STD PCO, then he called Anju Lata and after talking over telephone, she started weeping, and on being asked, she told that her brother has been killed. 13.After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants in he aforesaid manner. 14.We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 15.Mr. Surendra Singh, learned Sior Advocate appearing on behalf of appellants No.3, 4, 8 & 11, argued that as per case of the prosecuon, installatio of Sponge Iron Factory at Chouranga was in progress, \ villagers were opposing such installation on different grounds, but ti er ev tr th P p h u no at t \ en l ti n. \. l \ y deceased Narendra Kumar was supporting the installation of factory, villagers were annoyed with Narendra, and they conveyed meeting on 29-9—2004 & 30-9-2004. On 30-9-2004 at about 7-7.30 p.m. mob of villagers proceeded for the house of Narendra to teach him lesson, the mob asked Smt. Gayatri Bai (PW-1) — mother of deceased Narendra about Narendra and thereafter, entered in her house where Raj Kumar was found. There‘ was no enmity of the appellants or the villagers with Raj Kumar but during search of the house of Narendra when villagers found Raj Kumar in the house of Narendra, they thought that Raj Kumar is also the supporter of Narendra and with a view to teach him lesson they assaulted Raj Kumar. Subsequently, Narendra was found in another room and they assaulted him with a view to teach him lesson. They have not used any deadly weapon. More than twenty five injuries have been noticed upon the persons of Narendra & Raj Kumar. As per case of the prosecution, there were more than forty persons, but injuries found over the persons of Narendra & Raj Kumar reveal that all injuries are trifle in nature. Except two fractures found over the person of Narendra, other injuries were simple in nature. 10‘“ rib & bone below the right eyebrow of Narendra were found fractured. injuries were not on vital parts of the body. Forty persons were having ample opportunity to cause fatal injuries or to cut Narendra into pieces, but they have not caused fatal injuries to Narendra & Raj Kumar which shows that intention of the mob was only to teach lesson and not to cause serious fatal or grievous injuries. The doctor has not opined as to which injury was fatal in nature and sufficient to cause death. Evidence adduced on behalf of the prosecution is also not sufficient to prove as to who had caused fatal injuries or injuries sufficient to cause death of the deceased persons. Smt. Gayatri Bai (PW-1) was present in the house, the accused persons have not caused any injury to her, though the mob was having sufficient opportunity to cause fatal injuries to her which further shows the intention of the mob. lf evidence of the prosecution witnesses is considered in its face value, the only inference that intention of the mob was to cause injuries punishable under Section 325 of the IPC, would be possible. Only on the ground that two persons have died in the incident, no liability can be fastened upon the appellants without proof of commission of offence by the appellants. In order'to convict the appellants or accused with the aid of Section 149 of the IPC, the prosecution is required to prove that the appellants/accused persons have formed unlawful / \ \b3 assembly and object of unlawful assembly was to commit mu er. Every member of the assembly must have knowledge of common object and not may have knowledge of common object. 16.Mr. Surendra Singh, learned Senior Advocate, further argued that as per Ex.P-1 — morgue, mob was present in front of the house of Smt. Gayatri Bai (PW-1) and appellants Virendra Verma, Kameshwar Verma, Lachhiram Verma, Murlidhar Verma, Nemeshwar Verma, Mohar Singh & Bhurva only seven persons along with other 20-25 persons had entered in the house of Smt. Gayatri Bai (PW-1) along with wives of Jagdish Verma & Purni Verma who were not accused in the present case, and they have committed the incident. As per Ex.P—2 — morgue, appellants Virendra Verma, Chandra Kumar Verma, Chamman VermarBhola Verma, Kameshwar Verma, Lachhiram, Murlidhar, Nemeshwar, Mohar Singh & Bhurva along with two women i.e. wives of Jagdish & Purni entered in the house of Smt. Gayatri Bai (PW—1). As per Ex.P-2, ten appellants along with two other women and 20-25 persons entered in the house of Smt. Gayatri Bai (PW-1). As per FIR Ex.P-3, appellants Virendra Verma, Chandra Kumar Verma, Chaman Verma, Bholaram Verma, Kameshwar Verma, Lachhiram Verma, Murlidhar Verma, Nemeshwar Verma, Mohar Singh, Bhurva Yadav and 20-25 persons along with two women entered in the house of Smt. Gayatri Bai (PW-1). However, in the two sessions trials, the prosecution has made total twenty three persons as accused. All accused persons are residents of same village. Smt. Gayatri Bai (PW-1) & Smt. Anju Lata (PW-11) were knowing all appellants much prior to the incident. Smt. Gayatri Bai (PW- 1) has named seven or ten persons in Exs.P—1, P-2 & P—3. She was having opportunity to name all accused persons. She is a woman and she would be in better position to name female accused, but she has not named the female accused persons. In these circumstances, it would not be possible to draw inference against all accused persons except against seven accused persons whose names have been mentioned in Ex.P-1. Smt. Anju Lata (PW-11) was not present on the spot, she has not seen the incident and she was present in her in-law’s house at Kanki. She wastelephoned, then she came to the village but she has shown herself as eyewitness. Statement of Smt. Gayatri Bai (PW-1) under Section 161 of the CrPC has been recorded on 1—10-2004 as Ex.D-1, but statement of alleged eyewitness Smt. Anju Lata (PW-1 1) under Section 161 of the CrPC has been recorded on 14-10—2004 after apse of fourteen days of the incident. Smt. Anju Lata (PW-1 1) has also admitted in her evidence that her statement under Section 161 of the CrPC has not been recorded on 1-10-2004, but has been recorded oniy on 14-10- 2004. This aiso corroborates the defence of the accused that Smt. Anju Lata (PW—11) was not present on the spot. Copy of the FIR has not been sent to the Magistrate concerned on 30—9-2004, it has been received by the Magistrate vide Ex.D-4 oniy on 4-10—2004 after four days of the incident which shOWS that the FIR Ex.P-3 is ante dated. Statement Ex.D—1 of Smt. Gayatri Bai (PW-1) is also ante dated. Only Ex.P—1 morgue was recorded in due time. Thereafter, after consultation and discussion that too with the officers and owners of the factory (Sponge Iron Factory) names of the appellants herein have been added with a view to oust them from the activities against installation of factory. 17.Mr. Surendra Singh, learned Senior Advocate, also argued that Smt. Gayatri Bai (PW-1) has specifically deposed in para 4 of her evidence that accused Videshi & Komal i.e. appellants No.9 & 7 herein, respectively, were not present on the spot. As per para 6 of her evidence, appellants Komal Singh, Lachhiram & Chamman dragged her son and assaulted him and finally they killed him. As per para 8 of her evidence, again accused/appellants Bhurva, ,Mohar Singh, Chandra Kumar, Daruha, Sukalu, Jakla, Bhakla & Chamman entered in her house and dragged Raj Kumar and killed him. This evidence clearly shows that three persons have caused death of Narendra Kumar, seven persons have caused death of Raj Kumar and other persons were present on the spot as members of the mob. 18.Mr. Surendra Singh, learned Senior Advocate, contended that as per evidence of Smt. Anju Lata (PW-11), appellant Virendra Verma assaulted her mother. As per para 6 of her evidence, 14 accused persons entered in her house. As per para 8 of her evidence, Komal Singh, Lachhiram & Chamman were assaulting, they were stating that Raj Kumar & Narendra were supporters of the factory, therefore, they should be killed. Thereafter, all accused persons have assaulted and caused ’death of Narendra. Thereafter, appellants Virendra Verma, Chandra Kumar, Murlidhar, Bhola & Nameshwar again entered in her house and dragged Raj Kumar whereupon Lachhiram, Komal Singh, Bhurva Yadav, Man Singh Kevat, Mahettar Verma, Devantin Bai Verma /\ 9 & daughter of Firta Verma assaulted Raj Kumar, mal Singh, Lacchiram & Chamman were instigating them, then they caused homicidal death of Raj Kumar. 19.Mr. Surendra Singh, learned Senior Advocate, further contended that evidence of aforesaid witnesses reveal that all appellants have not participated in commission of homicidal death of the deceased persons, some have participated to the extent of criminal house trespass, some have participated to the extent of causing simple injuries and some have caused homicidal death. Therefore, all appellants cannot be convicted with the aid of Section 149 of the IPC for commission of murder of two persons. Persons who have caused injuries to Raj Kumar & Narendra may be held for causing their homicidal death, persons who have caused simple injuries to them may be held responsible for commission of offence under Section 323 or Section 325 of the IPC and persons who have committed criminal house trespass may be held for commission of offence under Section 452 of the IPC. 20.Mr. Surendra Singh placed reliance in the matter of Muthu Naicker and others etc. v. State of Tamil Nadu1 in which the Supreme Court has held that in a case where a large crowd collected all of whom are not shown to be sharing the common object of the unlawful assembly, a stray assault by any one accused on any particular witness could not be said to be an assault in prosecution of the common object of the unlawful assembly, so that the remaining accused could be imputed the knowledge that such an offence was likely to be committed in prosecution of the common object of the unlawful assembly. Mr. Surendra Singh further placed reliance in the matter of Sajjan Sharma v. State of Biharz in which the Supreme Court has held that name of the appellant not found in the FIR, though he was known to the person who had lodged the FIR, he is entitled for benefit of doubt. Mr. Surendra Singh also placed reliance in the matter of Chilamakur Nagireddy and others v. State of Andhra Pradesh3 in which the Supreme Court has held that in case of several accused and absence of specific and definite opinion of Doctor that injury caused by accused persons on the person of deceased by itself was fatal or sufficient in ordinary course of nature to 1AIR 1978 sc 1647 2 AIR 2011 SC 632 3 AIR 1977 sc 1998 I i 10 \é cause his death, conviction cannot be sustained un ection 302 of the IPC, however, considering nature of injury and weapon used, conviction may be under Section 326 of the IPC. Mr. Surendra Singh relied upon the matter of Shivappa Buddappa Kolkar alias Buddappagol v. State of Karnataka and others4 in which the Supreme Court has heid that injury inflicted not shown to be sufficient in the ordinary course of nature to cause death, clause (3) of Section 300 of the IPC is not attracted, on facts it may be held that injury inflicted with the knowledge that it was likely to cause death and the accused may be liable for conviction under Section 304 Part—ll of the IPC. Mr. Surendra Singh further relied upon the matter of Bunnilal Chaudhary v. State of Bihar5 in which the Supreme Court has held that in case of single blow given by one accused on the left side of the chest of the deceased resulting in death, intention of the other accused to commit murder of the deceased cannot be said to be proved. Mr. Surendra Singh also relied upon the matter of Adu Ram v. Mukna and othersa in which the Supreme Court has held that number of injuries are not always be determinative of offence; weapon used, part of body where‘injuries were inflicted and nature of injuries are relevant factors; assaults made in course of quarrel, Doctor who conducted post-mortem found 34 injuries including several fracture injuries on non-vital parts of body and in absence of any grievous injury on vital part, conviction under Section 302 of the IPC is not sustainable, however, conviction can be altered to Section 304 Part-ll of the IPC. .Mr. Sudhir Verma, learned counsel appearing on behalf of appellants No.1, 5, 6, 7, 10 & 12 and Mr. Govind Dewangan, learned counsel appearing on behalf of appellant No.9, submitted that as argued by learned Senior Advocate Mr. Surendra Singh, the prosecution has utterly failed to prove the case beyond all reasonable doubts against the appellants. Mere presence and gathering of the appellants for opposing installation of factory for rightful purpose is not an offence that too of commission of murder. Conviction and sentences imposed upon the appellants are not sustainable under the law. 4 5 (2004) 13 s'cc 168 (2006) 1o scc 639 6 AIR 2004 sc 5064 11 ‘ 22.0n the other hand, Mr. D.K. Gwalre, learned Gov. dvocate appearing on behalf of the State/responent, vehemently opposed the appeal and submitted that as per case of the prosecution and evidence of Smt. Gayatri Ba (PW-1) & Smt. Anju Lata (PW-11), all appellants after breaking the plank of door entered in the house and searched for Narendra, but when they found Raj Kumar they badly assaulted him. This is not the case where