The date when v. State of Chhattisgarh

Mr. Rajeev Shrivastava, Sr. Advocate along with Ms. Anu Mishra, Advocate For Respondent(s)/State : Ms. Shubha Shrivastava, P.L. Hon'ble Smt. Justice Rajani Dubey CAV Judgment

1. Since all these appeals arise from the same impugned judgment, they were heard together and are being decided by this common judgment.

2. These appeals, preferred under Section 374(2) of the Code of Criminal Procedure, 1973, have been filed by the appellants assailing the judgment of conviction and order of sentence dated

17.03.2008 passed by the learned Additional Sessions Judge, Janjgir, District- Janjgir- Champa in Sessions Trial No. 127/2006, whereby the trial Court convicted the appellants and sentenced them as follows:- Conviction Sentence Under Section 147 of IPC R.I. for 1 year Under Section 148 of IPC R.I. for 1 year Under Section 326/149 of IPC R.I. for 3 years and to pay fine of Rs. 500/- and in default of payment of fine to undergo R.I. for 2 months Under Section 325/149 of IPC R.I. for 2 years and to pay fine 4 of Rs. 500/- and in default of payment of fine to undergo R.I. for 2 months Under Section 324/149 of IPC R.I. for 1 year and to pay fine of (two counts) Rs. 500/- and in default of payment of fine to undergo R.I. for 2 months Under Section 323/149 of IPC R.I. for 6 months

3. The prosecution case, in brief, is that on 07.07.2005, an annual ceremonial feast (Bhoj) in memory of the grandmother of complainant party member Vishnu Prasad namely Harabai, was organized at his residence. Relatives and villagers had assembled there. On 07.07.2005 at about 2:00 PM, Shravan Rathore, who was engaged in agricultural work for the complainant party, informed them that accused Negiram had remarked that he was acting as a sycophant of Vishnu Prasad. Thereafter, at about 7:30–8:00 PM, Vishnu Negi was questioned as to why he had referred to Shravan Kumar as a sycophant despite the fact that he was employed by them for agricultural purposes. Upon being so questioned, he returned from the spot. Thereafter, during the night, when Vishnu Prasad, Maharathi, Vinod and Santosh had gone to a paan stall for purchasing betel leaves, several persons from the village arrived there and started abusing Vishnu Prasad. Upon receiving information regarding the quarrel, Radhabai, Hirabai, Uttara Bai and Kamalabai also reached the spot. The prosecution further alleges that all the 5 accused persons formed an unlawful assembly and, in furtherance of their common object, assaulted Vishnu Prasad, Maharathi and Vinod with deadly weapons such as lathis, swords, axes and knives. The accused persons, namely Kamta Rathore, Kauyshal, Negiram, Sunil, Dinesh, Babla, Bailisthar, Dilip, Banvasi, Anil Pandey, Lali Chouhan, Jugunu and others, allegedly participated in the assault. It is further alleged that accused Harishankar instigated the co-accused by exhorting them to assault the victims.

4. At the said time, Babla was armed with a Farsa, Anil was carrying a Tabbal, Sunil was holding an iron rod, and the other persons accompanying them were armed with lathis/sticks. When local residents attempted to intervene and rescue the victims, they too were allegedly assaulted by the accused persons. In the incident, Radhabai, Hirabai, Uttara Bai and Kamalabai sustained injuries. During the course of assault, Vishnu Prasad fell to the ground and, presuming him to be dead, the accused persons fled from the spot. Thereafter, the injured persons were taken to their homes and information regarding the incident was communicated telephonically to the police station at Pamgarh, as well as to the Janjgir police. Police personnel subsequently reached the village and shifted the injured persons to the hospital for medical treatment. Some of the injured persons were later referred to SIMS Hospital, Bilaspur, for further treatment. X-ray examinations were conducted and grievous injuries, including fracture injuries 6 sustained by Kamal Rathore and Vinod were detected.

5. On the basis of information furnished by Santosh Rathore, son of Bhagirathi, a merg/intimation was initially recorded and thereafter, on 08.07.2005, the formal First Information Report was registered. During investigation, the police prepared the spot map, recorded statements of witnesses under Section 161 CrPC, seized weapons such as lathis, tabbal and axe allegedly used in the commission of offence, arrested the accused persons and, upon completion of investigation, filed the charge-sheet before the competent Court. The learned Trial Court framed charges against the appellants for the offence punishable under Sections 147, 148, 307/149, 326/149, 325/149 and 323/149 of the Indian Penal Code, to which appellants abjured their guilt and claimed to be tried.

6. In order to substantiate the charges levelled against the accused/appellants, the prosecution examined as many as 23 witnesses. Thereafter, the statements of the accused/appellants were recorded under Section 313 of the Code of Criminal Procedure, 1973, wherein all incriminating circumstances appearing in the prosecution evidence were put to them for explanation. The accused/appellants denied the said circumstances in toto, pleaded innocence and asserted that he has been falsely implicated in the present case. In their defence, appellants examined 6 witnesses. 7

7. The learned trial Court, upon appreciation of the entire oral as well as documentary evidence available on record, found the prosecution case to be credible and trustworthy. Accordingly, vide judgment dated 17.03.2008, the trial Court convicted and sentenced the accused/appellants as detailed in para 1 of the said judgment. Hence, this appeal.

8. Learned counsel for the appellants submits that the judgment of conviction passed by the learned trial Court is based on surmises and conjectures and is contrary to the evidence available on record. It is further submitted that there is no specific allegation against the present appellants regarding participation in the assault and he has been falsely implicated by the complainant due to previous enmity. Learned counsel submits that the trial Court itself recorded a finding that there was insufficient light at the place of occurrence for proper identification of the assailants, yet, merely on the basis that the complainant and the appellants belonged to the same village and were previously acquainted, the Court presumed the presence of the appellants at the spot, which is legally unsustainable. It is submitted that all the prosecution witnesses are interested witnesses and, therefore, their evidence required careful scrutiny, which has not been properly undertaken by the trial Court. Learned counsel further submits that the prosecution failed to prove the First Information Report in accordance with 8 law. As per the prosecution case itself, the Janjgir Police first reached the spot and shifted the injured persons to the hospital, whereas the Pamgarh Police reached later. Therefore, the Dehati Nalishi (Ex.P-1) recorded subsequently by the Pamgarh Police could not have been treated as the FIR, rendering the prosecution story doubtful. It is further contended that the Investigating Officer, Shri B.S. Khutiya (PW-22), admitted that on the report lodged by the appellants and other co-accused persons, a counter case bearing Crime No.247/2005 was also registered against the complainant party, however, the prosecution failed to disclose the outcome of the said case before the Court, thereby creating serious doubt regarding the fairness of the investigation. Learned counsel submits that the trial Court committed illegality in discarding the defence plea regarding the counter case merely on the ground that no document relating thereto was produced by either side, despite the prosecution being in custody of such records. An adverse inference ought to have been drawn against the prosecution for withholding the said documents. It is also submitted that the trial Court failed to properly appreciate the material contradictions and omissions in the statements of the prosecution witnesses and ignored the fact that due to previous enmity there existed a strong motive for false implication of the appellant. Learned counsel further submits that although the prosecution alleged that 10-12 persons had participated in the 9 assault, no specific overt act or weapon attributed to the present appellants has been proved by the prosecution. Despite such deficiencies, the trial Court illegally convicted the appellants without proper appreciation of the evidence relating to assault and seizure of weapons. Lastly, it is submitted that no blood stains were found on any of the weapons allegedly used in the incident and none of the seized weapons were sent for chemical examination. In absence of such corroborative evidence, the conviction of the appellants is unsustainable in law. Thus, the impugned judgment is liable to be set aside. Reliance has been placed on the decisions of Hon’ble Supreme Court in the matter of Kanbi Nanji Virji and Others Vs. State of Gujarat; (1970) 3 SCC 103, State of Haryana Vs. Ram Singh and another connected matter; (2002) 2 SCC 426 & the decision of Hon’ble High Court of Madhya Pradesh in the matter of Sewaram and others Vs. State of M.P.; 2024 SCC OnLine MP 8781.

9. Per contra, learned State counsel opposes the appeal and submits that the judgment of conviction and sentence passed by the learned trial Court is well reasoned and based on proper appreciation of the oral and documentary evidence available on record. It is further submitted that the prosecution witnesses have consistently supported the case of the prosecution and their testimony inspires confidence. Minor contradictions and 10 omissions do not affect the core of the prosecution case. The involvement of the appellants in the incident stands duly proved beyond reasonable doubt and, therefore, no interference with the impugned judgment is warranted.

10. Heard counsel for the parties and perused the material available on record.

11. It is evident from the record of the learned Trial Court that charges were framed against the appellants for the offences punishable under Sections 147, 148, 307 read with Section 149, 326 read with Section 149, 325 read with Section 149 and 323 read with Section 149 of the IPC. Upon appreciation of the oral as well as documentary evidence available on record, the learned Trial Court acquitted the appellants of the charge under Section 307 IPC, but convicted them for the offences punishable under Sections 147, 148, 324/149, 326/149, 325/149 and 323 (five counts) read with Section 149 of the IPC.

12. Vishnu Rathore (P.W.-1) deposed that on the date of the incident, at about 7:00–7:30 PM, he along with his brothers was sitting after having betel leaf, when the accused persons, armed with weapons, arrived at the spot, started abusing them and thereafter assaulted them with the said weapons. In para 4 of his cross-examination, the witness admitted that a counter-case in respect of the same incident had also been registered against him and his family members and trial in the 11 said case is still pending. The witness further stated that at the relevant time, Harishankar was serving as the Sarpanch. Prior thereto, Uttarabai, wife of his brother Maharathi, had held the post of Sarpanch. He further stated that the Sarpanch election had taken place approximately 6–7 months prior to the incident and admitted that his son Sanat had contested the said election. He further admitted that apart from Harishankar, about 5–6 other candidates had also contested against Sanat, and Harishankar had ultimately won the election.

13. Santosh Kumar Rathore (P.W.-2) deposed that on the date of the incident, at about 9:00 PM, his uncle had gone to consume betel leaf and at that time he was present on the roof of his house. Upon hearing noises of abuse, he along with other family members rushed towards the paan shop and witnessed the accused persons assaulting his uncles with weapons. He further stated that when they attempted to intervene, the accused persons also assaulted them. The witness further stated that he lodged the First Information Report vide Ex. P/1 and identified his signatures thereon marked from ‘A to A’. In his cross-examination, the witness admitted the defence suggestion that a counter-case in respect of the same incident had been registered against them. He further admitted that Harishankar had contested the election for the post of Sarpanch 12 and his cousin Sanat Rathore had also participated in the said election.

14. Maharathi Rathore (P.W.-3) deposed that accused Anil assaulted him with a hatchet, as a result of which he sustained an injury on the frontal portion of his head. During the course of cross-examination, the witness admitted the defence suggestion that a counter-case arising out of the same incident had been registered against him and his family members.

15. Uttara Bai (P.W.-4) stated that all the accused persons assaulted her and her family members with lathis and axes, thereby causing injuries to the injured persons. In her cross-examination, the witness admitted that Harishankar had contested the election for the post of Sarpanch and that prior to the said election, she herself had served as the Sarpanch of the village. However, she denied the defence suggestion that false allegations were being levelled against the accused persons on account of political rivalry.

16. Santosh Kumar Rathore (P.W.-5) admitted his signatures on the seizure memos Ex. P/2 to Ex. P/16; however, he stated that he was unable to specify which weapon had been seized from which accused person. The prosecution declared the witness hostile and subjected him to cross-examination, but he denied all the suggestions put forth by the prosecution and further denied the 13 alleged seizures said to have been effected in his presence.

17. Ram Gir (P.W.-6) admitted his signatures on the seizure memos Ex. P/2 to Ex. P/8 marked from ‘B to B’. He stated that clubs were seized from accused Kaushal, Santosh, Bairistor, Negi and Dinesh. He further stated that an iron rod was seized from Motu and an axe was seized from Babla. In his cross-examination, the witness stated that upon being called by the Inspector, he went to the concerned place and signed all the documents prepared there.

18. Vinod Kumar (P.W.-7) deposed that on the date of the incident, all the accused persons, armed with weapons such as rods, assaulted him as well as Vishnu Rathore and Maharathi Rathore. During the course of his cross-examination, the witness admitted that, on the basis of the report lodged by the accused persons, a counter-case in respect of the same incident was pending against the complainant party and their family members.

19. Laxman (P.W.-8) stated that on the date of the incident at about 9:00 PM, a quarrel had taken place; however, he expressed ignorance regarding the details and circumstances of the said quarrel. The prosecution declared the said witness hostile and cross-examined him, but he denied all the suggestions put to him by the prosecution. 14

20. Radhabai (P.W.-9), Santkumar Rathore (P.W.-10), Kamla Bai (P.W.-11) and Heera Bai (P.W.-12) deposed that all the accused persons, armed with weapons, assaulted their family members and, as a consequence of the said assault, the injured persons sustained injuries.

21. Shravan Kumar Rathore (P.W.-13), Rajendra Puri (P.W.-14) and Milan Chouhan (P.W.-15) did not support the case of the prosecution and were accordingly treated as hostile witnesses.

22. In the matter of Sewaram (supra), Hon’ble High Court of Madhya Pradesh held in paras 16, 17 and 18 as under:- “16. These facts reveal that there was a free fight amongst the rival party. Law in relation to free fight is crystal clear. Supreme Court in Kanbi Nanji Virji v. State of Gujrat ((1970) 3 SCC 103 : AIR 1970 SC 219), held that in case of a free fight, there are two groups of persons. Injuries sustained by the persons of both groups in course of such fight where death of two persons also takes place, then only those persons who are proved to have caused injuries or death, can be held guilty for the offence individually committed by them.

17. Similarly, in case of Munir Khan v. State of Uttar