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2011 DIGILAW 344 (CHH)

CHAITU v. STATE OF M. P.

2011-11-01

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2011
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J.:- 1. These appeals are directed against the judgment dated 28th of April, 1994 passed in Session Trial No.321/1987 by the 4th Additional Sessions Judge, Bilaspur, whereby the appellants have been convicted u/ss 148, 302/149, 302/149 & 323/149 IPC and sentenced to undergo R.I. for 3 years, imprisonment for life (in two counts) and R.I. for 1 year with a further direction to run the sentences concurrently. 2. In all 51 accused persons (A-1 to A-51) were tried for the above offences. Out of them A-4, A-13, A-19, A-44 and A-47 died during the pendency of the trial. A-38, A-22, A-31, A-40, A-21, A-37, A-14, A-20, A-27, A-7, A-34, A-36, A-3 and A-12 also died during the pendency of their appeals therefore, the appeals filed by the above accused persons/appellants have already been abated. Motilal (A-30) had filed Criminal Appeal No. 635/95. He also died during the pendency of the appeal. Therefore, his appeal also stood abated on 14.3.2011. 3. It is stated at bar that Budhari (A-9) and Chovaram (A-26) have been finally released on probation by getting special remissions, and Bhondal (A-16, who is not an appellant before us) has undergone the entire sentence. Chandrika (A-33) has also died. 4. The facts, briefly stated, are as under:- The allegations are that 51 accused persons formed an unlawfu1 assembly, participated in rioting with deadly weapons and in furtherance of the common object of the said assembly committed murder of two deceased persons namely - Jagdish and Ramphal and they also caused injuries to Sadhelal (PW-23). The case of the prosecution is that a Nav Yuvak Samiti was formed in village Dhothama. The Samiti used to impose monetary punishment on wrong doers of the village. Deceased Jagdish was Secretary of the Samiti. A sum of Rs.4,900/- was deposited with deceased-Jagdish which was recovered as fine from the villagers. About Rs.l,500/- was deposited with Vishnu Sahu (A-43). In this regard a meeting was convened in the village. Deceased-Jagdish was directed to return the said amount. When a dispute arose, Jagdish was excluded from Satnami Community. Nobody was allowed to make relations with him. On account of some quarrel Jagdish had reported the matter to the police, on which a proceeding u/s 107 Cr.P.C. was also drawn between the two groups. Deceased-Jagdish was directed to return the said amount. When a dispute arose, Jagdish was excluded from Satnami Community. Nobody was allowed to make relations with him. On account of some quarrel Jagdish had reported the matter to the police, on which a proceeding u/s 107 Cr.P.C. was also drawn between the two groups. The said proceeding was pending before the Sub-Divisional Magistrate on the date of the incident. In between this period the concerned Station House Officer has visited the village and on his directions, Jagdish gave Rs.4,900/- to Vishnu (A,-43). On some dispute relating to deposit of other amounts, the concerned Station House Officer had called members of both the parties to the police station on 20.7.1986. The allegations are that when deceased-Jagdish, Ramphal & Sadhelal (PW-23) were going to the police station on 20.7.86, the accused persons, by making an unlawful assembly in the above manner, attacked over them with deadly weapons and assaulted them Jagdish, Ramphal & Sadhelal (PW-23) sustained multiple injuries. Jagdish and Ramphal succumbed to those injuries. Bedan Bai (PW-2-mother of deceased-Jagdish) made a report to police outpost Jarhagaon vide Ex.-P/2, based on which, Crime No.178/86, was registered in police station Mungeli. Janakram (PW-1-brother of Jagdish) also came to know about the incident and lodged a report (Ex.-P/l) in police station Mungeli Panchanama over the dead bodies of the deceased persons were prepared; the dead bodies were sent for post-mortem examination and the post-mortem reports were received. According to the Autopsy Surgeon, Dr. S.S. Sisodiya (PW-15), both the deceased persons died homicidal death on account of multiple injuries sustained by them. The postmortem reports are EX.-P/18-A & P/19-A. 5. The case of the prosecution was based on the testimonies of Janakram (PW-1), Bedan Bai (PW-2), Vimla Bai (PW-22) and Sadhelal (PW-23). 6. The learned Session Judge did not rely on the testimonies of Janakram (PW-1) and Bedan Bai (PW-2). The Session Judge recorded the findings vide Paras-20 & 21 of the judgment that these witnesses were interested witnesses and their testimonies were not reliable. However relying on the testimonies, of Vimla Bai (PW-22) and Sadhelal (PW-23), the Session Judge convicted 46 accused persons (all the accused who were alive) and sentenced them as aforementioned. Out of them 43 accused persons came before the High Court by filing these appeals. (Accused No.4l, Samaru is common in two appeals). 7. Mr. However relying on the testimonies, of Vimla Bai (PW-22) and Sadhelal (PW-23), the Session Judge convicted 46 accused persons (all the accused who were alive) and sentenced them as aforementioned. Out of them 43 accused persons came before the High Court by filing these appeals. (Accused No.4l, Samaru is common in two appeals). 7. Mr. Prafull Bharat and Mr.Vinay Dubey, learned counsel appearing on behalf of the appellants, argued that Vimla Bai (PW-22) is wife of deceased-Jagdish; she was not present at the place of occurrence; there is no evidence that she also accompanied the deceased persons for going to the police station; she is highly interested witness; her presence at the place of occurrence is highly suspicion; therefore, she cannot be relied on. They also argued that Sadhelal (PW-23) was also not reliable; he did not give the correct picture of the incident; and looking to the history of two groups and village rivalry, his testimony should also be discarded. They further argued that there is no positive evidence to show that the appellants were members of an unlawful assembly, and in furtherance of the common object of the said assembly, the two deceased persons were dealt to death. 8. On the other hand, Mr. Ajay Dwivedi, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. 9. We have heard learned counsel for the parties at length and have also perused the records of the sessions case. 10. Firstly, we shall consider whether there was an unlawful assembly and the appellants were the members of the said assembly? If so, what was the common object of that assembly? 11. Section 141 IPC defines an unlawful assembly. It provides that an assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is one or more of the 5 objects mentioned in section 141. It further provides by an Explanation that an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. It provides that an assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is one or more of the 5 objects mentioned in section 141. It further provides by an Explanation that an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. This makes very clear that an assembly of not less than 5 persons having an unlawful common object which must be of the nature of one of the 5 objects specified in section 141 would primarily constitute an unlawful assembly and an assembly which was not unlawful when it assembled may also subsequently become an unlawful assembly for the purpose of section 149 IPC which provides that every member of the unlawful assembly would be guilty of offence committed in prosecution of common object. The words figured as "common object" in sections 149 and 141 IPC have great significance. It has to be understood in contradistinction with common intention. Therefore, with a view to look into the implications of section 149 IPC, mere presence of a person in an unlawful assembly would do nothing unless there was a common object, he was actuated by that common object and that object was one or more than one of those provided in section 141. Therefore, unless a common object of an unlawful assembly is proved, one cannot be convicted with the aid of section 149 and the common object of an unlawful assembly may be more than one. To ascertain that a person has shared the alleged common object of the unlawful assembly, it shall have to be determined that he was well aware that the assembly, of which, he was one of the members, was to commit or likely to commit the act or the acts provided in section 141. The common object may be formed at any stage. A common object formed at a particular stage may be left and a different object may be formed later. The common object may be formed at any stage. A common object formed at a particular stage may be left and a different object may be formed later. To put it differently, if an unlawful assembly was formed for killing' A' which it did or which it did not do, thereafter that assembly also continued by immediately forming another common object of killing 'B' and there was evidence to this effect, then it would not be entertained that the initial object of the unlawful assembly was not to kill 'B', and for all purposes of Section 149 IPC the assembly at all did not possess the common object of killing 'B'. One has to determine all this in the given facts and circumstances of each case, and then, the provisions of section 149 has to be applied for convicting every member of the unlawful assembly, that is what the legislature intended by engrafting the words like "in prosecution of common object" in section 149 IPC. Equally, in the facts and circumstances of each case, where there were sequence of acts committed, one has to determine on evidence that whether the common object of the unlawful assembly existed only upto commission of the first act and thereafter whether the assembly was disbursed or any member of the unlawful assembly or disbursed assembly committed the subsequent act and if it be so whether it would be his own act or it shall be held to be an act committed in furtherance of the common object of the assembly which was unlawful at a particular time. If it is found on evidence that the common object of an unlawful assembly was only to commit a particular act which was committed in the first instance and thereafter any member of the initial unlawful assembly commits a subsequent act which was not in furtherance of the common object, it would certainly be an individual act and not that of assembly and in such a case, no liability can be fastened with the aid of section 149. 12. In Masalti Vs. 12. In Masalti Vs. State of U.P. AIR 1965 SC 202, 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 off acts 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." 13. Taking note of the above judgment and many other judgments, the Supreme Court held in Pandurang Chandrakant Mhatre and Others Vs. State of Maharashtra (2009) 10 SCC 773, 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. 14. In Sikandar Singh & Ors. Vs. State of Bihar 2010 AIR SCW 4426, the Supreme Court held that the common object does not require a prior concert and a common meeting of minds before attack. 14. In Sikandar Singh & Ors. Vs. State of Bihar 2010 AIR SCW 4426, 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. 15. It is on these principles, we are to scrutinize the case of the appellants and to find to their participation and responsibility. 16. Vimlabai (PW-22) is wife of deceased Jagdish. She deposed that on the fateful day, she was accompanying her husband (deceased Jagdish), Sadhelal (PW23) and Ramphal (since deceased), while they were going to Police Station, Mungeli. In the way, as soon as they crossed Hathinala, she saw that the accused persons were sitting there. Accused Budhari asked her husband about 107 Cr.P.C. matter. Thereafter, Budhari caught the legs of her husband and accused Atmaram, Moti and Padum assaulted him by Tabbal. Accused Nirmal, Anjore, Puran, Dammar, Moti, Budhari, Chova, Samlu, Bhondal, Sonu, Munchu and Hirva also assaulted her husband by Tabbal and lathi. Other, accused persons were shouting like "ghero" "ghero" and "maro". Deceased Ramphal was also assaulted by these persons. He was assaulted by Tabbal. She had a talk with accused Budhari, Mohan etc., who abused her. It was argued that on the face of other proved evidence on record, presence of Vimlabai (PW-22) becomes doubtful. We have examined her evidence in light of other evidence available on record. Sadhelal (PW-23) is an injured witness. He never deposed that Vimlabai (PW-22) was also accompanying them when they were going to the Police Station. He very clearly deposed in para 7 that on the fateful day, only 3 persons, i.e. he himself and the 2 deceased persons, were going to Police Station Mungeli and they were attacked by the accused party. It nowhere comes in his evidence that Vimlabai (PW-22) was also present at the time of incident. Janakram (PW-l) lodged the FIR (Ex.P/l). He very clearly deposed in para 7 that on the fateful day, only 3 persons, i.e. he himself and the 2 deceased persons, were going to Police Station Mungeli and they were attacked by the accused party. It nowhere comes in his evidence that Vimlabai (PW-22) was also present at the time of incident. Janakram (PW-l) lodged the FIR (Ex.P/l). In the FIR also he did not mention that Vimlabai (PW-22) had also gone to the Police Station along with deceased Jagdish. Ex. P/2 is the report lodged by Bedinbai (PW-2), mother of deceased Jagdish in Police Outpost, Jarhagaon. She also mentioned that only 3 persons had left the village for going to Police Station Mungeli. They were her son Jagdish (deceased), grand-son-Ramphal (deceased) and sister's son-in-law Sadhelal (PW-23). The two reports lodged by the son and mother of the deceased have not been disputed. These reports were first hand information regarding the incident. There is no reason to disbelieve those part of the reports, which say that only 3 persons (2 deceased and one injured) had left the village for going to Police Station Mungeli. The incident took place far away from the village, in which, the accused and the deceased parties were residing. It had taken place on the other side of Nala, on which, there was no culvert. Vimlabai (PW-22) did not claim that she anyhow reached to the place of occurrence and witnessed the same. She claimed that she was accompanying the 2 deceased persons and Sadhelal (PW-23) from the initial stage when they left their house. Her such evidence on the face of other evidence available on record, therefore, becomes suspicious. Looking to the distance of the place of occurrence from the village, it also does not appear reasonable that she would have reached to the place of occurrence after hue and cry. As stated above, Vimlabai is wife of one of the deceased. 17. In Namdeo Vs. State of Maharashtra 2007 AIR SCW 1835, the Supreme Court held that a witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term' interested' postulates that the witness has some direct or indirect 'interest' in having the accused' somehow or other convicted due to animus or for some other oblique motive. The Supreme Court also observed that a close relative cannot be characterized as an 'interested' witness. The term' interested' postulates that the witness has some direct or indirect 'interest' in having the accused' somehow or other convicted due to animus or for some other oblique motive. The Supreme Court also observed that a close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. 18. In Dharnidhar Vs. State of Uttar Pradesh and Others & other connected appeals (2010) 7 SCC 759, the Supreme Court further reiterated that there is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before court. The Supreme Court held that a close relative of deceased does not, per-se, become an interested witness. An interested witness is one who is interested in securing conviction of a person out of vengeance or enmity or due to disputes and deposes before court only with that intention and not to further cause of justice. However, version of interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same. When their statements find corroboration by other witnesses, expert evidence and circumstances of case clearly depict completion of chain of evidence pointing out guilt of accused, then statements of so-called "interested witnesses" can be relied upon by court. 19. On close scrutiny of the evidence of Vimlabai (PW-22), wife of deceased Jagdish, we find that her presence at the place of occurrence is doubtful. It appears that she reached to the place of occurrence after the incident was over. In the above facts and circumstances, we do not feel it safe to rely on the testimony of Vimlabai (PW-22). We are of the view that the learned Sessions Judge fell into error on relying upon the testimony of Vimlabai (PW-22). 20. Now we shall consider the evidence of Sadhelal (PW-23), who remains the only eye witness to the incident. 21. We are of the view that the learned Sessions Judge fell into error on relying upon the testimony of Vimlabai (PW-22). 20. Now we shall consider the evidence of Sadhelal (PW-23), who remains the only eye witness to the incident. 21. Sadhelal (PW-23) deposed that on the fateful day, he was going to Police Station Mungeli along with 2 deceased persons namely Jagdish and Ramphal. On the way, as soon as they reached near the river (nala), he saw that 40-50 persons were sitting on the way. They entered into the river for crossing it. Jagdish and Ramphal firstly crossed the river. He was behind them. Accused Sonu assaulted Jagdish by Tabbal. Accused Budhari shouted that how he lodged the proceedings under Section 107 Cr.P.C. Jagdish fell down after receiving assault from Sonu. Thereafter, all the 7 accused persons namely Sonu, Budhari, Chova, Faguram, Shyamdas, Punva and Bajraha rushed. They were armed with Tabbal and lathi. All these 7 persons assaulted deceased Jagdish by Tabbal and lathi. Deceased Ramphal was assaulted by accused Bhondal, Vishnu, Fatteram, Chaitu, Harnarayan and Chandrika by Tabbals and lathis. He further deposed that he himself was assaulted by accused Bhiku, Tulwa and Bajraha. He did not take the names of others except the above 15 accused persons. Sadhelal (PW-23) has been cross examined at length by the defence. Though there are few omissions in his evidence, but they are not material. We have gone through his entire evidence. In fact, nothing material could be elicited in his cross examination by the defence. Sadhelal (PW-23) himself received injuries. In all relevant documents of the prosecution, his name is mentioned showing that he was accompanying the deceased persons from their house. Therefore, his presence at the place of occurrence cannot be doubted. The defence has not been able to elicit any such circumstance, on which, either his testimony may be discarded or it may be said that he is falsely implicating the above 15 accused persons saying that they participated in assaulting the deceased persons and him also. The above accused persons were armed with deadly weapons like lathi and tabbal. It appears that they were waiting the deceased persons on the way, and as soon as the deceased persons reached there, they assaulted them and they also assaulted Sadhelal (PW-23). The above accused persons were armed with deadly weapons like lathi and tabbal. It appears that they were waiting the deceased persons on the way, and as soon as the deceased persons reached there, they assaulted them and they also assaulted Sadhelal (PW-23). Sadhelal (PW-23) has given full description of the incident and the roles attributed to each accused person. The case of the prosecution is that persons of both the groups were called by the SHO in Police Station for compromise. Therefore, the persons of both the groups were knowing the programme of each other. All these facts clearly indicate that total 15 accused persons were the members of unlawful assembly. They participated in rioting with deadly weapons. The common object of the unlawful assembly was to commit murder of the 2 deceased persons and to assault injured Sadhelal (PW-23). There are 2 accused persons by the name of Bajraha. One is Bajraha @ Bangaiha s/o Bahoran Satnami (A-22) and other is Bajraha s/o Nakchhed Satnami (A-28). It is doubtful on the evidence of Sadhelal (PW-23) that out of these 2 similarly named accused persons, who, in fact, was present there and participated in crime. Bajraha @ Bangaiha s/o Bahoran Satnami (A-22) has died during the pendency of the appeal and Bajraha s/o Nakchhed Satnami (A-28) is alive. In the above circumstances, we are of the view that benefit of doubt has to be extended to these two similarly named accused persons. 22. Shri Ajay Dwivedi, Dy. Government Advocate has argued that though, the names of other accused persons have not been taken by Sadhelal (PW-23), but their names find place in FIR and evidence of the other witnesses. 23. In Muthu Naicker and others etc. Vs. State of Tamil Nadu AIR 1978 SC 1647, 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. 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 Pradesh. 24. It is an admitted position that there was a party bandi in the village. Sadhelal (PW-23) has also admitted in his examination-in-chief that the deceased were the members of one party and the accused persons were the members of the other party. In fact, it was the case of the prosecution that there was a party bandi in the village. In such situation, where the society was faction-ridden, there was always a possibility of involving more and more persons of the rival faction. Therefore, the prosecution witnesses took the names of as many as 51 accused persons in their 161 Cr.P.C. statements and they were prosecuted on that basis. However, in Court evidence such case is not coming forward and the prosecution has been able to establish their case against above 14 accused persons only. In absence of any positive evidence against other remaining accused persons, they cannot be held guilty for commission of the above offences. 25. On close scrutiny of the entire material available on record, we find that the prosecution has been able to prove that there was an unlawful assembly and the above 14 accused persons were the members of the unlawful assembly, who participated in rioting and in furtherance of the common object of the sad assembly, committed murder of the 2 deceased person and they also caused simple injuries to Sadhelal (PW-23). 26. 26. In the result, the appeals filed on behalf of appellant Sonu (Accused No. 21), appellant Budhari (Accused No.9), appellant Chovaram (accused No.26), appellant Faguram (accused No. 18), appellant Shyamdas (accused No.23), appellant Punva (accused No.5), appellant Vishnu (accused No.43), appellant Fatteram (accused No.46), appellant Harnarayan (accused No.45), appellant Chaitu (accused No.38) and appellant Tulwa (accused No.20), deserve to be dismissed. 27. The appeals filed on behalf of appellant Sonu (accused No.21), appellant Chaitu (accused No.38) and appellant Tulwa (accused No.20) have already abated on different dates, as they have died during the pendency of their appeals. 28. The appeals filed on behalf of appellant Budhari (Accused No.9), appellant Chovaram (accused No.26), appellant Faguram (accused No. 18), appellant Shyamdas (accused No.23), appellant Punva (accused No.5), appellant Vishnu (accused No.43), appellant Fatteram (accused No.46) and appellant, Harnarayan (accused No.45), are hereby dismissed. 29. The appeals filed on behalf of the remaining appellants, therefore, are allowed and they are acquitted of the charges framed against them. Appeals Partly Allowed.