®^> IK THE HIGH CCURT OS' .uUDIG^rURE M> BILA3PUR (C.G ^r.A, EQ, '^) 3°) of 2002 S::S^^.APPE:;L^^-.^ZiXsl..2£Lll^^^E^.c^..l§z^^ AGGUSED (IN JAIL) ^ ^: ^'.^^ ^^' ^.:..^^ ^s^^ '^!"^ :r"'"" A^ ^ ^- 1» Cendlal s/o Bar'Mali S&tnami aged about 29 ye^rs<, ^-... 2, Hahendra s/o Banfeteli Satnami aged about 25 ye^rs . All resident of village-Manilq^ur: P ^ S * Nawa garh Di stt * I>u.ra» vmiSus .RESPCKDENT State or Chhatfclsgarh. /^ .^^ ^ HieH CPURT_OFJV&ICATURE AT BILASPUR (CHHATTES^RH) CORAM; HON'BLE MR. L.C. BHA&OO AND HON'BLE MR. DHIRENDRA MISHRA. JJ. ^ Criminal Appeal N0,669 of 2002 Uttro Kumar A Others Vs. State of ChhQttisgarh AN& Criminal Appeal No.739 of 2002 (5endlal Aanother Vs. State of Chhattisgorh Present: Smt. HamidQ Siddique, Advocate: For appeltants in Cr.A. No.669 of 2002. 5mt. Renu Kochar, Advocate; For appellants in Cr.A. No.739 of 2002. ,5hri U.N.5. Deo, Additional Public Prosecutor with Shri Akhil Mishra, P. L.: For the State/respondent, ORAL JUD&MENT (Delivered on 18th Aprif 2006) The following judgment of the Court was delivered by Justice L.C. Bhadoo. 1. Crimina! /\ppeal No.669 of 2002 preferred by accused/appellants Uttra Kumar, An\o\ Kumor and Bhagot @ Dhalwa and Criminal Appeot No.739 of 2002 preferred by accused/Qppeilonts Gendlal AMahendrQ are being dispo^ed of by this common Judgment, QS both these appeals ore arising out of some Jud9ment and the same incident in which three persons namety Deehu, Rotan and Bahoran were done to death. v ^ 2. By these appeals, the accused/appeltants have questioned legality and correctness of th& judgment of conviction and order of sentence dated 14-6-200Z passed by the 3rd Additional Sessions Judge (Fast Track Court) Bemetora in S.T; No.219/93 whereby tearned Additionol Sessions Judge after holding Qccused/appellants ©endlal,Mahendra, Uttro KumQr/Amol Kumar and Bhagot ©Dhalwa 9uilty for commission of offence under Sections 148 and 302 read with Section 149 of the I.P.C. for committing murders of beehu, Raton ond BahopQft/sentenced each of the accused/appellants to unde^o R.I. for 6 months and to undergo imprisonment for fife for each murder, respectively. It was further ordered that alt the sentences imposed upon the accused persons shdll run concurrently. 3. The case of the prosecution, in brief, necessQry for the disposal of these appeoils WQS thot Dukalha Bai was the owner of the agricultural land ad meQSuring 2.08 decimal of village Monikpur. As she was issuetess, therefore, she adopted one of accused Jcgdish, son of her brother* After her death, Ja9dish was in posses^ion of that lond ond even his nome was entered in the Revenue Record a$ a heir of Dukalha Boi. Brother-in-taw RevorQm, brother of husband of Dukalha Bai was ctdming his right on the said land as he was residing in villQge SoriyQrpur, Tehsil Lormi, District: Bilaspur, therefore, he executed a power of attorney in favour of Aghnu of village Monikpur on 18-11-91 for looking after the said land of Dukalho Boi, on account of that there were 2 parties, one belongin9 to the section of Jagdish and other belonging to the power of attorney holder Aghnu. Even the mattcr r&garding ownership of the land filed by Revarom was pending in the Court of Tehsildar and S.D.O., Revenue. Uttimately, the matter was decided in favour of Jagdish. The occused/appellants were the members of Jagdish party whereos, the deceased persons were the members of Aghnu party. 4. On 15-12-92 at obout 7 a.m. when Deehu went 'to fetch water from a well which was near the house of (5endu Satnami/Pokhroj, who lodged the report, was also going towords his house from the side of the said wetl. He SOEW thot in the house of Gendu Satnomi, Amol, Asho, Uttra Kumar, Bonsi and Bhogwot were hiding themselves armed with Tobbol ond Lathi. Accused Mohendra ond Gendu corrying Tobbal went near Deehu ond ossoulted him with the boith of .» -_-_-:^...._-. ife v Tabbal on his hand, as a result of which Deehu fell down. At that time, Ratan and Bahoran, son of Deehu came on th& scene of occurrence, on which 6endu Satnami and Mahendra assaulted Ratan with Tabbal on his neck and hond, os a resuit of which Ratan also fetl down. They also assaulted Bahoran with Tabbal and Lothi He also fell down. Thereafter, the matter was reported by Pokhraj in the Police Station NovagQrh on the same day at 9.30 a.m. vide first information report (Ex.-P/l). Station House Officer /\shok Shorma after registering the Crime No.147/92, left for the scene of occurrence, after giving notice (Ex.-P/4) to the Ponchas, prepared PGnchanomas Ex.-P/5 of the body of BQhoran, Ex.-P/6 of the body of Rotan and Ex.-P/7 of the body of Deehu. Under Ex.-P/S, he took into possession one piece of Lungi stained with blood from the ptace near the body of Roton, one Dhoti stdned with blood, and one poir of shoe of Rotan. Under Ex.-P/9, he took into possession blood stdned Dhoti, one pair of shoe ond Kurto of deceosed Bohoran. Under Ex.- P/10, he took into possession one Gamcha, one Dhoti, another Dhoti and one pair of shoe of deceQsed Deehu. 5. While in the police custody, accused Gendlol gave memorandum Ex.-P/ll, accused Mohendra gave memorandum Ex.-P/12, accused Uttra Kumar gave memorandum Ex.-P/13, occused Amol Kumar gave memorandum Ex.-P/14, accused Jogdish gove memorQndum Ex.-P/15, accused Bansi gave memorotndum Ex.-P/16, accused Bhagat gave memorandum Ex.-P/17 and occused Asharam gave memorQndum Ex.-P/lS. In pursuance of above memorandums, he recovered one iron Tabbol at the instonce of accused Mahendra under Ex.-P/19. He recovered one Lathi at the Jnstonce of accused Uttro Kumar under Ex.-P/20. Under Ex.-P/21, he recovered one iron Tabbat at the instonce of occused Amol Kumar. Under Ex.-P/22, he recovered one iron Tabbo! at the instance of accused /Asharam. Under Ex.-P/23, he recovered one iron Tabbal ot the instance of occused Jagdish. Under Ex.-P/24, he recovered one bamboo lathi at the instance of accused Bonsi. Under Ex.- P/25, he recovered one iron Tabbal at the instance of accused Bhogat. Under Ex.-P/26, he recovered one iron Tabbal at the instance of accused Gendlal. These Tabbals were sent for the doctor's opinion and the doctor vide Ex.- P/30 A P/31 gave his opinion that injuries received by /\ghnu, Deehu, Ratan and Bohoran could be caused by the recovered Tabbals. The site plan (Bx.- r—-•••-••-- 32. f"y P/38-A) was prepared by the 1.0. as wetl QS Patwari. The dead bodies of Deehu, Ratan and Bahoran were sent for the postmortem examinQtion to the Primary Heolth Centre, Navagorh where br. V.K. TomrQkar, Assistont Surgeon, conducted the postmortem on the deod bodies of the deceosed persons and prepared the postmortem report Ex.-P/27 of the body of Rotan, Ex.-P/28 of the body of Deehu and Ex.-P/29 of the body of Bohoran. He opined that mode of death of Ratan was syncope due to haemorrhage. About the death of Deehu, he opined thot cause of death wos due to syncope due to haemorrhage. About Bahoran, he opined that couse of death was coma due to head injury. Plain soil and blood stained soil was taken into possession from the place of occurrence under Ex.-P/42, P/43 and P/44. Mukhtiyarnama executed by RevarQm in fovour of Aghnu was taken into possession under Ex.- P/45. The articles were sent for chemical examinotion to the Forensic Science Laboratory, 5ogar from where report Ex.-P/52 was received. 6. After completion of the investigation, charge sheet was filed against accused Asharam, Uttro Kumar, Amol Kumar, Bhagat, &endlal, Mohendra, ond Jagdish in the Court of Judicial Magistrate, 1st Class, Bemetara who in turn committed the case to the Sessions Judge, Durg, from where learned Additional Sessions Judge, Bemetara received the case on transfer for trial. Accused Asharam and Bansi died during trial. However, accused Jagdish was acquitted of all the charges ond five occused/appellonts were convicted and sentenced as mentioned in para-2 of this judgment. 7. The prosecution in order to establish the chorge against the occused persons examined 16 witnesses. On the other hand, statements of the accused persons were recorded under Section 313 of the Cr.P.C. in which they denied the prosecution evidence appearing agdnst them and stated thot they ore innocent ond have been fafsety implicated in.the crime. /Accused Gendlal has stoted that at the time of the incident he had'gone to attend the coll of noture. When he returned, he saw that Ratan, Bahoran and beehu were quarrelling with Bonsi and Asha. Accused Mahendra has stated thot he is innocent and has been falsely impticated in the crime. Similar was the denial of Qccused Amol Kumar, Jagdish ond Bhagat. They examined 6 witnesses in defence. Accused Jagdish examined himsetf as DW-3. He stated that at the '-•:&1 li '.^;. :m. r •^ ^' " .3 ^- time of the incident, he wos in village ^una. The accused persons also examined DW-4 Dr. Shrikant Rqjimwale, Assistant Surgeon of ©overnment Poly Clinic, Raipur. He has stated thot on 15-12-92 at 5 p.m. he examined Bansi and found that on the back of body there was abrasion of 4" in \eng^}. There was bruise and obrasion on the chest. There was locerated wound on the head. These injuries were caused by hord and blunt object. He has further stated that on the same day he examined Mahendro and found that there was laceroted wound on the left hand. His reports are Ex.-D/3 & D/4. 8. We hwe heord learned counsel for the porties. 9. The homicidal deaths of deceased persons Deehu, Ratan and Bahoran have not been disputed by learned counsel for the accused/Qppellonts. 10. As for as involvement of the Qccused/appeltants in commission of the crime in question is concerned, 5mt. Hamida Siddique, learned counset, argued that complQinant PW-1 Pokhrcy, injured witness PW-2 ^hnu, PW-4 Prem Bai, wife of deceased Ratan, PW-6 Uttra Bai and PW-8 Bhogwat have turned hostile. The prosecution has not been able to establish with legat evidence as to how the incident started. The case against the accused/appellants rests on the oculor evidence of PW-3 Kanhaiya, PW-7 Uttom, son of Kanhaiya ond PW-13 Holiram, son of Uttam and grandson of Kanhaiya. From the evidence of these 3 witnesses, it has not been established that accused Uttra Kumar, An\o\ Kumor and Bha9at were the member^ of unlawful ossembly and they had participQted in the marpeet in any manner. From their evidence, it has not been established thot these accused persons were knowing that accused Gendlol and Mahendro were going to commit murders of thedeceosed persons. There is no evidence that they were shoring common object with Gendlol and Mohendro. She also argued that from the site plan Ex.-P/38-A prepared by the Investigating Officer, it is established that the place of occurrence as shown by the 1.0. was near the house and in the field of accused 0rendlal. In this incident, accused Bansi and Mahendra also received injuries. The deceased persons were carrying Lathi ond Tabbal. 11. She further argued thot from the evidence, it is established that atl the. 3 witnesses are from one family i.e. grandfather, son and grandson ond they 'l h ^" were having inimical rclations with the accused party. The house of witness Uttam was about 1 km from the place of occurrence. In the circumstances, it was not possible for these persons to witness the crime in question at about 7 a.m., therefore, conviction of these accused/appetlonts for the various offences i5 not based on any legal evidence and same is erroneous. 12. Smt. Renu Kochar, learned counsel appearing on behalf of accused/Qppellants &endlal and Mahendra, argued that the ploce of occurrence was near the house of accused &endlal. From the evidence, it is established that accused Mahendra and Bansi received injuries. The complainant party was agyessor. They assoulted the accused party. As per the evidence of PW-14 Ashok ShoirmQ charge sheet hos olready been filed against Aghnu, Deehu, RotQn, Kanhaiya, Bahoran, Pokhraj, Dhannu, Ishwar and Uttam for the commission of offence-under Sections 147, 148, 323 and 324/149 of the I.P.C. at the same time which has been admitted by the prosccution witnesses thot case i^ pending against them. At the most, the accused persons exercised the right of privote defence, as the deceosed persons came to their field ond Qttacked accused Mahendro <& Bansi, therefore, in the right of private defence in order to save themselves, they assaulted. 5he further argued thot first information r&port lodged by PW-1 Pokhroj has not been proved as Pokhraj has turned hostile, therefore, conviction of these accused/appellonts is also erroneous. 13. On the other hond, Shri U.J^J.5. &eo, Additional Public Prosecutor with Shri Akhii Mishra, Panel Lawyer for the Stote/respondent supported thejud9ment of the triol Court. 14. Having heard learned counsel for the parties, we have scrutinized evidence, documents and the judgment of the trial Court. 15. Now, coming to the involvement of accused/appetlants Uttra Kumar, /Amol Kumor and Bhagot ©DhaIwQ in crime in question, PW-3 Kanhatya hQS stated that the incident took place at the time of sunrise. He wos at his residence and on heoring the sound, he went near the well of Gendlol. There the quarrel took ploce from well up to the poddy field of Gendtal. Deehu, Ratan and Bohoron were there. From other party, Gendlal, MohendrQ, Asha, Bansi, 3^ ^ Bhog^, Uttro and Amol, total 8 persons were there. Accused Gendlal and Mahendra were hotdin9 Tabbal. Accused Asha ond Bansi were also holding Tobbol. Others were holding lothi. First of Qll, they assaulted Ratan, 6endlal assaulted with Tobbal, Mahendra assaulted Bahoran with Tabbol and remaining persons were stonding. Thereofter, Jagdish cameand he assaulted Deehu with Tabbal. He has further stoted thot alt the 3 died on the spot. The incident was seen by Uttra Bai, Prem, Pokhraj, Uttam and by him. However, in the cros5~examination, he hos stated that there is bore-well between the house of Deehu and &endlal. There is well in the backyard of the house of Deehu. Deehu fell in the threshing field of ^endlal. He saw bucket in the hands of Deehu. The well, which is adjacent to the house of ^endlal is not of (?endld but it \s the public well. Bahoran fett down ofter receiving the injuries neor the house of Gendlol. He fell down at Q distance of 20-25 ^teps from the well. RotQn WQS lying dead in the threshin9 field of ^endlal. In the cross- examination, he has further stoted that if he hos stated Jn the examination- in-chief that Ratan fell down first of all, then it is incorrect. Gendlal assQufted Bahoran, as a result of which he fell down. It is incorrect that Mohendra assautted Bahoran, except Gendlal and Mahendra nobody else assaulted Ratan and BohorQn. It is olso correct that Deehu was not assoulted by Qnyone else except Jcgdish. 16. PW-7 Uttom hos stated that the incident took place at about 7 a.m. in the house of ^endlal. There is a public well in the house of (5endlal. Gendlaf assaulted Bahoran with Tabbal. Jagdish assaulted Deehu with Tabbal. Mahendra assaulted Ratan with Tabbol. He saw that all the 3 persons were fying on the ground, ond thereafter, he returned to his house. Asho, Uttra, Amol, Bansi, total 8 persons were there. PW-13 Holiram hos stated thot Jagdish assaulted Deehu with Tabbal, (?endlal assaulted BQhoran with Tobbal and Mahendraassaulted Ratan with Tabbal. "Uttra Kumar, Dhatwa, Asha, Bonsi came after Deehu, Rotan and Bahoran had died. PW-3 has cotegorically stoted in the cross-examination, in paro-13, thot Deehu, Ratan and Bahoran were Qssoulted only by Gendlal, Mahendro & Jagdish and others had not assautted them. Similarly, PW-7 hos simply stated that these 3 occused persons assQulted the deceased persons. He hos also stated that Asho, Uttro, Amol, Bansi were also there, but he has not stated that in any mQnner ^ they were holding ony weapon whereas, PW-3 has stated thot they were having fathi in their honds. PW-13 has stated that Jagdish, ^endlal ond AAahendra assaulted the deceased persons and these accused/appellants cctme after the deoths of Deehu, Rotan ond Bahoran. Moreover, Dr. Vinay Kumar Tamrakar (PW-9), who conducted the postmortem, hos stoted thot injuries, which were inflicted on the body of Deehu, were caused by hard and shorp object. SimilQrly, he has stated thot injuries sustained by Bahoran were also coused by hard and sharp object. SimilQr nature of injuries were found on the body of Ratan. Therefore, there was no chance that those injuries were inflicted by any blunt object like lothi, whereos, PW-3 KanhoiyQ has stated thot these persons;were holdin9 lathis. In view of the obove evidence, it is estQblished that no injury was inflicted on the bodies of Deehu, Ratan and Bahoran by any hard ond blunt object. 17. Moreover, if we look into the recovery memos, from Uttra Kumar one lothi was recovered whereas, from Amol Kumar one Tabbal was recovered under Ex.aBP/21, from Bhagot one Tabbol wos recovered under Ex.-P/25, whereos, eyewitnesses hove not stated that Bhogat and Uttra were holding Tobbals. As per the evidence of eyewitnesses, these 3 oppellants were carrying tathis, but they have not stoted thot they assaulted with lothi and the injuries found on the bodies of the deceased persons, as per the medical evidence, were Gaused by hard and sharp object. Contror/ to the ocular evidence, the 1.0. had recovered Tabbal from the possession of Uttra and Bhagat, therefore, from the prosecution evidence, the assault made by these persons to the deceased persons has not been established. 18. As for as their conviction with the dd of Section 149 of the LP.C. is concerned, in order to attract the provisions of Section 149 of the I.P.C., Section 149 IPC creates a specific and distinct offence, there are two essentiGl ingredients thereof- (1) commission of an offence by any member of an unlQwful assembly, (2) such offence mu3t hove been committed in prosecution of the common object of that ossembly or must be such as the members of that assembly knew to be likely to be committed, therefore, in order to bring the act of accuscd within the mischief of section 149 of the I.P.C., the accused must be, at the time of commission of offence, the ^:M member of unlowfuf assembly. As per the settled low for cofinmon object, no prior concert Js required. Common object can be formed at the spur of the moment. Course of conduct adopted by the members of the assembly, however, is a relevant foctor. At what point of time the common object of the unlawful assembly was formed would depend upon the facts <& circumstQnces of each cose. It may be formed at any stage or by oll or new member of the assembly or other members moy just join or once formed it need not to be continued with the same, it may be modified or altered at any stage. In the matter of Rojendra ShontQrQm Todcinkar V. State of MaharQshtra <S Others reported in (2003) 2 SCC 257 the Apex Court held that;- "Section 149 of the Indion Penol Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that ossembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is Q member of the same ossembly is guilt/ of thot offence. The two clauses of Section 149 vary in degree of certainty. The' first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to hove been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necesscin'Iy be the common object of the assembly, nevertheless, the members of the assembly had knowled9e of iikelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge where of is capable of being safely attributable to the members of the unlawful assembty. In either case, every member of the assembly would be vicariously liable for the offence actuatly committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commissibn of such offence was withm the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to coitect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of ossembly, the nature of arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the '3^ 10 crime. Unless the Qpplicability of 5ectionl49 either clause is attpacted and the court is convinced, on facts and in law, both, of tiability capable of being fastened vicQriously by reference to either clause of Section 149 IPC, merety because a criminal act was committed by Q member of the assembly, every other member thereof woutd not necessarily become lioble for such criminal act. The inference as to likelihood of the commission of the given criminal act must be CQpoble of bein9 held to be within the knowled9e of another member of the assembty who is sought to be held vicariously liable for the sdd criminal act." . . In the motter of Parsuram Pandey and others Vs State of Bihar reported in (2004) 13 SCC 189 the Hon'ble Apex Court held that;- "To attroct Section 149 IPC the prosecution must prove that the commission of the offence was by any member of on unlawful assembly and such offence must have been committed in prosecution of the common object of the assembly or must be such that the members of the assembly knew that it was likety to be committed. Unless these three elements ore sotisfied by the prosecution the accused cannot be convicted with the aid of Section 149 19. Therefore, based on the above principle, we ore required to ascertain from the focts and evidence Qvailable on record QS to whether the accused/appellants were the members of the unlawful assembly, offence of murders of Deehu, Raton <& Bahoran was committed in prosecution of the common object of that o^sembly or the accused persons being members of the assembly were knowing thot such offence is likely to be committed. The evidence which has been reproduced obove does not show, in any manner, thot these accused persons were having any common object with accused Mdhendra <& (5endlQl or they were knowing thot such an offence is likely to be committed by Mahendra <& Gendlal. PW-3 Konhaiya, PW-7 Uttam and PW-13 Holiram have not stoted that these persons, in any manner, in the first in^tance participated in the assautt. Even as per the evidence of Holiram (PW-13) these persons came after Deehu, Raton and Bahoran •died. Moreover, as has been discussed-above, as per the evidence, they were carrying lathi, whereas, 1.0. hod recovered tabbal from Uttra and Bha9at. Even all the injuries found on the bodies of the deceased persons were caused by hard and shorp object. Therefore, prosecution has not been oble to establjsh .a 11 against these persons that they were members of an unlawful assembly or there was any common object between (5endlal, Mahendra ond these occused/appeltants or that these appellonts had knowledge that murder of anyone will be committed by other accused persons. Moreover, the main dispute wos on occount of the lond left by Dukalha Bai in fovour of Jagdish, therefore, the dispute was between Jogdish ond the deceased party and not with these accused persons. Therefore, conviction of these accused/appellants under Section 302 with the oid of Section 149 of the IPC imposed by the trial court Js not bosed on legol evidence and some connot be sustained. SimilQrty, their conviction under Section 148