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2011 DIGILAW 118 (CHH)

Sonau v. State of M. P. (Now C. G. )

2011-03-29

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2011
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 14th of September, 1994 passed in Sessions Trial No. 139/88 by the Fourth Additional Judge to the Court of Sessions Judge, Bilaspur, Link Court, Mungeli. By the impugned judgment, the Appellants have been convicted under Sections 147, 302/149 and 323/149 Indian Penal Code and sentenced to undergo R.I. for 2 years, imprisonment for life and R.I. for 1 year with direction to run the sentences concurrently. 2. Appellant No. 1 - Sonau and Appellant No. 4 - Bhagwat died during the pendency of the appeal. Therefore, the appeal filed on behalf of Appellant No. 1 and Appellant No. 4 stood abated and their names have been deleted from the cause-title of the appeal vide order dated 24.2.2011. 3. The facts, briefly stated, are as under: The allegations are that on 6.1.88, the Appellants formed an unlawful assembly, participated in rioting and in furtherance of the common object of the said assembly committed murder of deceased- Dukalu and they also caused simple injuries to Shiva (PW-10), Mohan (PW-7) and Murli (PW-11). The case of the prosecution is that in the evening of 6.1.88 nacha (a local dance) was going on in the village. In nacha, accused-Bhagwat read a slogan. In reply Mohan (PW-7) also read a slogan. Accused- Bhagwat became angry and quarrel begun between Bhagwat and Mohan. On this, all the accused persons started assaulting Mohan. Deceased- Dukalu, brother of Mohan, came for his rescue. The accused persons also assaulted him by lathis. Murli (PW-11) and Shiva (PW-10) were also present there. They were also assaulted by the accused persons by lathis. Deceased- Dukalu ran towards the house of his brother-in-law - Kanaihya and fell down at the door of his house. The accused persons assaulted him there also. Deceased- Dukalu and Mohan become unconscious. The matter was reported to the concerned police-chowki, where it was reduced into writing in Rojnamchasana No. 124. The police reached to the place of occurrence. The injured persons were taken to the hospital. Dukalu died during the course of his treatment in the hospital. A Dehatinalishi (Ex.-P/22) was recorded, based on which, the First Information Report was registered. 4. The case of the prosecution was based on eye-witness account of Kashiram (PW-4), Bharatlal (PW-6), Mohan (PW-7), Sakhan Bai (PW-8), Sahodra Bai (PW-9), Shiva (PW-10) and Murli (PW-11). 5. Dukalu died during the course of his treatment in the hospital. A Dehatinalishi (Ex.-P/22) was recorded, based on which, the First Information Report was registered. 4. The case of the prosecution was based on eye-witness account of Kashiram (PW-4), Bharatlal (PW-6), Mohan (PW-7), Sakhan Bai (PW-8), Sahodra Bai (PW-9), Shiva (PW-10) and Murli (PW-11). 5. Kashiram (PW-4), Bharatlal (PW-6), Sakhan Bai (PW-8) and Sahodra Bai (PW-9) turned hostile and they did not support the case of the prosecution. The learned Sessions Judge relied on the testimonies of Mohan (PW-7), Shiva (PW-10) and Murli (PW-11), who were the injured eye-witnesses and convicted and sentenced the Appellants as aforementioned. 6. Mr. F.S. Khare, learned Counsel appearing on behalf of the Appellants, argued that there was No. evidence of unlawful assembly and common object; it was not established by the above eyewitnesses that who caused injuries to deceased- Dukalu and in fact how he received injuries; it was an incident of free fight which took place on a petty matter in Raut-nacha function; Appellants-Sewak (A-5) and Sewaram (A-6) had also received injuries in free fight; their injuries have not been explained by the above 3 eye-witnesses; Therefore, the conviction of the Appellants for commission of murder of deceased- Dukalu was not justified. About injuries to Mohan (PW-7), Shiva (PW-10) and Murli (PW-11), he argued that Shiva (PW-10) and Mohan (PW-7) did not depose that who caused injuries to them. In the facts and circumstances of the case, conviction of the Appellants with the aid of Section 149 Indian Penal Code was not possible and each Appellant would be liable for his own act. About Murli (PW-11), he argued that Murli stated that he was assaulted by Sewaram (A-6), but his evidence was not reliable, therefore, Sewaram can also not be convicted for causing injuries to Murli. 7. On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Judge. 8. We have heard learned Counsel for the parties at length and have also perused the records of the sessions case. 9. Mohan (PW-7) deposed that on the fateful day nacha was going on in the village. A quarrel begun in nacha. Sonau (A-1) assaulted him by lathi on his head. Thereafter he fell down. 8. We have heard learned Counsel for the parties at length and have also perused the records of the sessions case. 9. Mohan (PW-7) deposed that on the fateful day nacha was going on in the village. A quarrel begun in nacha. Sonau (A-1) assaulted him by lathi on his head. Thereafter he fell down. He clearly stated that he does not know who caused injuries to deceased- Dukalu. Shiva (PW-10) is also an injured witness. He deposed that he saw that the accused persons assaulted Mohan by lathi, but he did not depose that who caused injuries to deceased-Dukalu. Even he did not depose that who caused injuries to him. In the cross-examination, he admitted that there was No. previous animosity or fight between both the groups and the incident occurred all of a sudden on the said day while nacha was going on. Murli (PW-11) deposed that after 5-10 minutes of beginning of nacha, his brother- Dukalu (since deceased), Shiva (PW-10) and Mohan (PW-7) also went in the circle to participate in nacha (dance). A quarrel begun when all were dancing, and the accused persons assaulted his brother Mohan (PW-7). All the accused persons had assaulted Dukalu. Sonau (A-1) had assaulted him (Murli - PW-11) by lathi on his head. In the cross-examination, he admitted that "He was not knowing all the accused persons prior to the incident. He was only knowing Sewaram (A-6) and rest were not known to him. Today also he does not know the names of the other accused persons. No. identification parade was arranged. Since there was darkness, he could not see as to who was assaulting whom. All the participants in dance were in Rawat-dress. Except one-Banshi all were carrying lathis. In all 70-80 persons were in the dancing circle". 10. In appreciation of evidence of the above 3 injured witnesses, it was not established that, in fact, the Appellants had formed an unlawful assembly and they participated in rioting and further that the common object of the unlawful assembly was to commit murder of deceased- Dukalu or to cause injuries to above 3 injured eyewitnesses. Since the evidence relating to formation of unlawful assembly and common object etc. are lacking, we do not approved conviction of the Appellants with the aid of Section 149 Indian Penal Code. Since the evidence relating to formation of unlawful assembly and common object etc. are lacking, we do not approved conviction of the Appellants with the aid of Section 149 Indian Penal Code. We find that Appellants- Sewak (A-5) and Sewaram (A-6) had also received injuries in the same incident which was proved by Dr. N.S. Chandel (PW-3). Injury report of Sewakram (A-5) is Ex.-D/1(C) and injury report of Sewaram (A-6) is Ex.-D/2(C). Sewakram (A-5) had received 2 contusions, whereas Sewaram (A-6) had received 2 lacerated wounds, one on the left frontal region having size of 4 cm x 1.5 cm x 1.5 cm and other on the left parietal region having size of 3 cm x 1 cm x 1 cm. Injuries of Sewaram (A-6) were visible injuries which were caused by hard and blunt object. None of the prosecution witnesses have explained above injuries sustained by Sewaram. It has been held in catena of decisions by the Supreme Court that if it is shown that accused sustained injuries in the course of the occurrence, prosecution has duty to offer an explanation so as to satisfy the court about the circumstances under which the injuries were caused. If the prosecution fails to do so, it may, mean that: (1) The prosecution has suppressed the genesis and development and truth of the occurrence and has not presented the true version; or (2) The witnesses who denied the presence of such injuries are lying in regard to a material part of the occurrence and therefore cannot be believed; or (3) The defence version which explains the injuries is rendered probable, so as to throw doubt on the truth of the prosecution case. These inferences may not be drawn if (a) the injuries are not serious; or (b) if the evidence as a whole is so cogent, clear, consistent, credit worthy that it outweighs the effect of omission on the part of prosecution witnesses to explain the injuries. 11. In the present case, No. explanation to the injuries to the accused persons has been offered by the prosecution witnesses, therefore, the prosecution witnesses have suppressed the genesis and have not presented the true versions. 11. In the present case, No. explanation to the injuries to the accused persons has been offered by the prosecution witnesses, therefore, the prosecution witnesses have suppressed the genesis and have not presented the true versions. On appreciation of the entire evidence led by the prosecution, it appears that on account of reading slogans in nacha a quarrel begun which resulted into free fight in which persons of both the parties received injuries, therefore, in absence of evidence of common object each one would be liable for his individual acts. 12. As we have already said that it was not established as to who caused injuries to the deceased, therefore, No. one can be convicted for commission of murder of the deceased. So far as injuries caused to Shiva (PW-10) is concerned, he clearly deposed that he does not know as to who caused injuries to him. Therefore, No. one can be convicted for causing injuries to Shiva (PW-10). Mohan (PW-7) has deposed that he was assaulted by Sonau (A-1), but Sonau has died during the pendency of the appeal. Murli (PW-11) has deposed in clear words that he was assaulted by Sewaram (A-6). Therefore, we are of the view that in the prevailing facts and circumstances of the case, Sewaram (A-6) alone would be liable for punishement under Section 323 Indian Penal Code. 13. For the forgoing reasons, the appeal is partly allowed. The conviction and sentences awarded to the Appellants under Sections 147, 302/149 and 323/149 Indian Penal Code are set-aside. They are acquitted of the aforesaid charges framed against them. However, Appellant -Sewaram (A-6) is convicted under Section 323 Indian Penal Code and sentenced to the period already undergone which comes about 6 months in this matter.