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2011 DIGILAW 267 (CHH)

BHOLURAM v. STATE OF M. P. (NOW C. G. )

2011-08-02

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2011
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J. :- 1. This appeal is directed against the judgment dated 23rd of July, 93 passed in Session Trial No. 16/89 by the First Additional. Session Judge, Bilaspur. By the impugned judgment, the appellants have been convicted u/ss 148 & 302/ 149 IPC (in 2 counts) and sentenced to undergo R.I. for 1 year and imprisonment for life and to pay fine of Rs.1,000/- with default sentence of 3 months (in 2 counts). Appellants- Bharat (A-2), Gajju (A-3), Purru @ Shyam Prasad (A5), Ratiram @ Peela (A-6) and Bhushan (A-7) have further been convicted u/s 323 IPC and sentenced to undergo R.I. for 1 year with a further direction to run the sentences concurrently. 2. The facts, briefly stated, are as under:- The 2 deceased persons namely- Moujiram and Rathram lost their lives in the incident which took place on 12.8.88 at about 12 Noon in village Semaria. In all 74 accused persons were prosecuted for the offences punishable u/ss 148 & 302/149 IPC (in 2 counts) and u/s 323/ 149 IPC. Out of them 64 accused persons were acquitted and the 10 accused persons (appellants herein) were convicted and sentenced as aforementioned. The case of the prosecution is that on 12.8.88 at about 12 Noon, the accused persons formed an unlawful assembly, committed rioting armed with deadly weapons, and in furtherance of the common object of that assembly committed murder of the 2 deceased persons and assaulted 5 witnesses of the complainant party. 12.8.88 was the day of Hariyali Festival. A sheep was slaughtered on account of the said festival in the house of Bandhu Shepherd (PW-8). Moujiram, Rathram (2 deceased persons) and Kiritram Yadav (PW-14) were present in his house for purchasing the meat of the sheep. The accused persons came to know about Moujiram. They gathered in the house of accused Gajju Sahu. Accused Bharat was holding a tabbal and the other accused persons were holding lathis. After formation of an unlawful assembly, they went to the house of Bandhu Shepherd (PW -8) and started abusing him. Moujiram and Rathram went to the accused persons and said them not to abuse and quarrel. On this, accused- Bharat threw stone on deceased-Moujiram. Moujiram fell down. Thereafter Moujiram was assaulted by tabbal and lathis. He received multiple serious injuries and succumbed to those injuries. Moujiram and Rathram went to the accused persons and said them not to abuse and quarrel. On this, accused- Bharat threw stone on deceased-Moujiram. Moujiram fell down. Thereafter Moujiram was assaulted by tabbal and lathis. He received multiple serious injuries and succumbed to those injuries. Rathram was also assaulted by accusedBharat by pharsa. He also received multiple injuries. Rathram was taken to the hospital, but he also succumbed to the injuries sustained by him. Paharu (PW-12), Bandhan Singh (PW-13), Samaru (PW-15), Chandram (PW-16) and Dhansai (not examined) also sustained injuries. Dehatinalishi (Ex.-P/173) and merg intimation (Ex.-P/174) were recorded, based on which the First Information Report (Ex.-P/185) was registered. The dead body of the deceased persons were sent for postmortem. The post-mortem examinations were conducted by Dr. D.C. Choudhary (PW-7). The postmortem-reports are Ex.-P/13 and P/15. Paharu (PW-12), Bandhan Singh (PW-13), Samaru (PW-15), Chandram (PW-16) and Dhansai were also sent for their medical examinations. They were examined by Dr. B.L. Mishra (PW-6). He noticed simple injuries on the persons of the above witnesses. Their injury reports are Ex.-PI7, P/4, P/5, P/6 & P/3-A. The case of the prosecution was based on eye-witness's account of above injured witnesses and 3 other prosecution witnesses namely Dwarika Prasad (PW-3), Khamman (PW-5) and Bandhu Shepherd (PW-8). The prosecution, in addition to the formal witnesses, thus examined the above 7 eye-witnesses to prove its case. The learned Session Judge relied on the testimonies of the above eye-witnesses and held that out of 74 accused persons only 10 appellants were the members of the unlawful assembly and they participated in commission of murder of the 2 deceased persons. Apart from the above, it was also held that A-2, A-3, A-5, A-6 and A-7 assaulted different injured witnesses who received simple injuries, therefore, they were individually liable for punishment u/s 323 IPC. 3. Appellants- Gaijju (A-3) and Chandram (A-9) died during the pendency of the appeal, therefore, their names have been deleted from the cause-title of the appeal vide order dated 20.2.2006 and the appeal filed on behalf of these 2 appellants stood abated. 4. We have been informed by the State counsel by filing a report from Central Jail, Bilaspur that Bharat (A-2) and Baratu (A-8) have already been released from custody on special remission granted to them on 18.12.2002. 5. Mr. 4. We have been informed by the State counsel by filing a report from Central Jail, Bilaspur that Bharat (A-2) and Baratu (A-8) have already been released from custody on special remission granted to them on 18.12.2002. 5. Mr. P.K. Patel, learned counsel appearing on behalf of the appellants, has not disputed the homicidal deaths of the 2 deceased persons. He argued that there was a big crowd in front of the house of Bandhu Shepherd (PW- 8) and it was difficult to hold that who were the members of the unlawful assembly, therefore, the conviction of the appellant with the aid of Section 149 IPC was unjustified. He referred to the evidence of the above eye-witnesses. 6. On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. 7. We have heard learned counsel for the parties at length and have also perused the records of the sessions case. 8. In Masalti Vs. State of U.P.1, the Supreme Court held in Para-17 that "What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly." 9. Taking note of the above judgment and many other judgments, the Supreme Court held in Pandurang Chandrakant Mhatre and Others Vs. Taking note of the above judgment and many other judgments, the Supreme Court held in Pandurang Chandrakant Mhatre and Others Vs. State of Maharashtra2-, that the two ingredients of Section 149 are (i) commission of offence by members of unlawful assembly; and (ii) such offence must be in prosecution of common object of that assembly, .or must be such as members of that assembly knew it to be likely to be committed. For determining common object the conduct of each member of unlawful assembly before and at the time of attack is relevant consideration; object of unlawful assembly is a question of fact which has to be determined keeping in view nature of assembly, arms carried by members, and behaviour of members at or near scene of incident. 10. In Sikandar Singh & Ors. Vs. State of Biha3, the Supreme Court held that the common object does not require a prior concert and a common meeting of minds before attack. It is enough if each member has same object and all act in assembly to achieve that object. Common object has to be ascertained from acts and language of members and from consideration of all surrounding circumstances. For determination of the common object, conduct of each member of unlawful assembly, before and at the time of attack and motive of crime are some of the relevant considerations. 11. It is on these principles, we are to scrutinize the case of the appellants. 12. Bandhu (PW-8) deposed vide Para-4 of his evidence that at the relevant time Manohar, Samaru (PW -15), Mohanlal, Rathram (deceased), Dwarika Prasad (PW-3), Ramji, Khamman (PW-5), Bhagirathi, Bandhan (PW13), Shehetar, Ghasiya etc. were presenf in his house as he had slaughtered a sheep. They were distributing among them the meat of the sheep. Moujiram (deceased) had also reached to his house. They heard commotion of the villagers. Moujiram, Rathram and Kiritram (PW-14) went out from his house to see as to what is happening. They were followed by him and the other witnesses namely Dwarika Prasad (PW-3) Khamman (PW-5), Samaru (PW-15), Bandhan (PW13), Paharu (PW-12) and Chandram (PW-16) etc. Moujiram said the accused persons not to quarrel, on this, accused Bharat (A-2) hit Moujiram by a stone. Moujiram received injury on temporal region and fell down. Thereafter accusedBaratu (A-8) assaulted Moujiram by lathi. Bholu (A-1), Ratiram @ Peela (A6), Gajju (A-3) etc. also assaulted Moujiram by lathis. Moujiram said the accused persons not to quarrel, on this, accused Bharat (A-2) hit Moujiram by a stone. Moujiram received injury on temporal region and fell down. Thereafter accusedBaratu (A-8) assaulted Moujiram by lathi. Bholu (A-1), Ratiram @ Peela (A6), Gajju (A-3) etc. also assaulted Moujiram by lathis. Thereafter Baratu (A8) snatched the tabbal from the hands of Bhushan (A-7) and assaulted Moujiram on his neck and hand. Rathram (deceased) was praying to the accused persons that they should not assault Moujiram. On this, Bharat (A-2) assaulted Rathram by pharsa on his head. Rathram fell down on the ground. Thereafter Bholu (A-1), Baratu (A-8) and Narad (A-IO) assaulted him by lathis. Chandram (A9), Purru alias Shyam Prasad (A-5) and Dauwa (A-4) also assaulted Rathram by stones. He further deposed that he saw injuries on the persons of Somaru (PW-15), Dhansai, Bandhan (PW-13), Paharu (PW-12) and Chandram (PW16). 13. Almost all the eye-witnesses including the injured witnesses have corroborated the evidence of Bandhu (PW -8). 14. Bandhan Singh (PW-13) has also taken the names of accused persons including Dauwa (A-4). Likewise Paharu (PW-12) has also taken the name of Dauwa (A-4). Almost all the eye witnesses deposed in similar fashion and they also deposed regarding the acts attributed to individual appellant. In appreciation, we find that there is ample evidence against the appellants to show that they in fact, participated in giving actual assaults to the 2 deceased persons and there is no ambiguity in the evidence of above 7 eye-witnesses including those who also sustained injuries. The above eye-witnesses have been put to lengthy cross-examinations by the defence, but the defence has not been' able to elicit any such circumstance, on which, either their testimonies may be discarded or it may be said that they were falsely implicating the appellants in crime in question. 15. Mr. Patel has argued that number of villagers had gathered at the place of occurrence, therefore, in view of the strained relations between the parties a possibility of false implication by taking the names of the appellants cannot be fully ruled out. 16. In Muthu Naicker and others etc.. Vs. 15. Mr. Patel has argued that number of villagers had gathered at the place of occurrence, therefore, in view of the strained relations between the parties a possibility of false implication by taking the names of the appellants cannot be fully ruled out. 16. In Muthu Naicker and others etc.. Vs. State of Tamil Nadu4, while dealing the matter in relation to unlawful assembly, the Apex Court held that where there is melee and a large number of assailants and number of witnesses claim to have witnessed the occurrence from different places and at different stages of the occurrence and where the evidence is undoubtedly partisan evidence, the distinct possibility of innocent being falsely included with guilty cannot be easily ruled out. The Apex Court held that in a faction ridden society where an occurrence takes place in a village involving rival factions it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan to shut one's eyes to the realities of the rural life in our country. Large number of accused would go unpunished if such an easy course is charted. Simultaneously, it is to be borne in mind that in such a situation the easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and is to be eschewed and, therefore, the evidence has to be examined with utmost care and caution. Reference was also made to an earlier decision of the Apex Court rendered in case of Masalti Vs. The State of Uttar Pradesh1. 17. In the instant case large number of villagers had gathered at the place of occurrence, but the charge-sheet was filed against 74 accused persons. The learned Session Judge on appreciation of evidence of the above 7 eyewitnesses held that only 10 appellants participated in marpit and causing injuries to the deceased persons, and on this basis the appellants alone have been held to be the members of unlawful assembly. Not only this, the learned Session Judge has held the appellants responsible for the death of 2 deceased persons on account of various acts of assaults attributed to each of them. Not only this, the learned Session Judge has held the appellants responsible for the death of 2 deceased persons on account of various acts of assaults attributed to each of them. The presence of the appellants cannot be doubted on the face of evidence of the 7 eye-witnesses among whom 5 eye-witnesses (one not examined) were injured. The presence of at least the injured witnesses cannot be doubted because they had sustained injuries in the same transaction. The learned Session Judge in fact, has appreciated the evidence in these lines and has recorded the finding that out of 74 accused persons only 10 appellants were members of the unlawful assembly who actually participated in assaulting the deceased persons leading to their deaths. Even if we take that the relations between the 2 groups in the village were strained and they were inimical to each other, the acts of physical assaults attributed to the appellants cannot be ignored and it cannot be held that the witnesses have falsely taken the names of the appellants on account of previous animosity or merely on account of their presence in the melee. On appreciation of the entire evidence available on record, we are of the view that the Session Judge was fully justified in holding that the 10 appellants were members of the unlawful assembly, they committed rioting with deadly weapons and they also committed murder of the 2 deceased persons in furtherance of the common object of the said assembly. The common object of the appellants is writ large on record on their conduct at the time of occurrence that after the first assault given to the deceased persons, they continued to assault them which resulted into instantaneous death of Moujiram and Rathram later on. 18. So far as conviction of the 5 appellants (A-2, A-3, A-5, A-6 & A7) u/s 323 IPC is concerned, there is evidence of 4 injured witnesses namely Paharu (PW-12), Bandhan (PW-13), Samaru (PW-15) and Chandram (PW-16) who were medically examined. Their MLRs are Ex.-P/4, P/5, P/6 & PI7 and MLR of Dhansai (not examined) is Ex.-P/3-A. The Session Judge held that the common object of the unlawful assembly was not to assault these witnesses and the above appellants were liable for individual acts of assault to these persons, and the Session Judge has convicted the above appellants u/s 323 IPC also. On appreciation of evidence, we find that the common object of the unlawful assembly was to commit murder of 2 deceased persons, therefore, the view taken by the Session Judge regarding conviction of the above appellants u/s 323 IPC treating it to be their individual acts also appears to be reasonable. We note that in the above incident none of the accused persons (74 in number) sustained any injury. Therefore, it was not a case of free fight. This further strengthens the finding of the Session Judge that the appellants were member of the unlawful assembly who, in furtherance of the common object of the said assembly, attacked over the 2 deceased persons and all participated in giving assaults to them leading to their homicidal deaths. 19. For the foregoing reasons, we do not find any substance in the appeal. The appeal, therefore, is liable to be dismissed and is hereby dismissed. Appeal Dismissed.