Babla @ Zibrael & Ors. v. State of Chhattisgarh

Judgment

3. o,

6. Versus Babla @ Zibrael S/o» aged 32 yem's 'Neel Jacob, Bholu @. Michle Jacob S/o. Noel Jacob, aged 30 years (uow dead) Ratan @. Kharidu S/o,, Taiiku, aged 20 years Suraj S/o. Preni Kum.ar, aged 25 yeai's Tiilochazi S/o. Kumar, aged 22 yeai's Praliiad S/o. Kuio.ar, aged 30 years All residents of Nayaio.unda Para, Jagdalpur, District Bast.ar The State of Chhattisgarh, throzigh fhe Distdct Magistrate, Bastar at JagdaJpur SECTION 3?4 OF THB CODB.OP DBj_HON?BLE 85 HON?BL^ T.P.SHARMA, J. Present:

Shri Vishnu Koshta counsel for the appeliajits, Shri Akhil Mishra, Dy. Goveninieiit Advocate for the State. ORDBR ( Passed oia.S^'Feferiaary, 20081 The foUowin.g judgBient was deMvered by T.P.Sharma^Jo This appeal is directecl agaiiist tlie judgnient of conviction aiid order of seutence dated 20.12.2000 passed by the Second Additional Sessions Judge, Jagdalpur at Bastar io. Session Trial Mo, 202/99 whereby, the leamed.. Second Additional Sessions Jzidge after holdiD.g the appellaiits guilty for the offence punisliable under Sectk>n 302 of the IPC, for coBiniittmg nmrder of one Anin Nag, sentenced fhem to undergo roipri.sonm.ent for life and to pay a faie of Rs. 5000/- each , in default of payment of lliie to further undergo miprisonBient for one year, uiider Sectiou 324 of the IPC sentenced theni to undergo SI for three years- arid to pay a fm.e of Rs, 500/- each, iii default of payinent of fiiie, to further undergo SI for sbc nionths. Prosecution case, ni brief, is tliat on 30.03.99, at about 8,30 p,m., Ze.t Nayainzinda Para Ward, Jagdalpur, Kunnu @ Kuiidan., Thunnii aad Arun, were coniiD.g back from. the Mission Conipound, they stopped by appellaiits-Babla, Suraj,. Bholu, Trilochaii, Pralilad an.ci Khandu who were ansied with sword, Farea [battle- axe), club, iron rod. Appellaats said that they were. friends of Khaini who had beaten fhe appellaiits aad started assaulting theni. Accused/appellaat No.l . Babla assaulted to Kunnu @ Kundsiii ou th.e right side of ear, Anin and Thunnu tried to escape arid raii away from. tlie spot but the accused persons chased thein aad assaulted with sword, clnb aiid battle. axe. On heariiig tlie cries, family iD.e2iibers of the injured reached the spot. First Inforoiation Report was lodged by Kunnii at police station Bodhghat vide Ex. P-26 at 10.05 p.xn. He was sent for inedical examinatioii vide memo P-35 aad was exammed vide report of P-2 whereui doc.tor FLViiiay KtiBiai' P.¥/.-l foiind four iojuries on the body of I-Qiandu. Injtired Arun was also sent for niedical examination vide Ex, P-36. He v^as exaBiiB.ed vide report of Ex. P-1. Vaiiozis injuries were found on his body. He was uuconscious and serious. For further treatment he was adinitted ia tlie hospital. Duriiig the course of treatmeut, Arun died at about 1,45 a.Bi. on

31.3.99. After fozir hours ofthe hicident, niformation ofdeafh. was se.nt to -the. police station Bodhghat Merg Ex. P-32 was recorded. Inquest report of Ex. P-10 was prepai'ed. Body of deceased Arun was se.nt for autopsy to Mab.araiii Hospital, Jagdalpur vide inenio \ Ex. P-40. Autopsy was conducted by Dr. Virendra Jha (P.W.-ll) \ '-';'' ^^^€^: 7/^ vide report Ex. P-38 aiid foUowing injuries were found on the body ofdeceased. i) ii) iii) iv) iacised wound found in the right upper ami ia fhe size of i" x y2"x 1/2" Abrasion on tiie right upper ami in tlie size of 5c33is.x 3 1II211. Abrasion cn the nght shoulder in tlie size of 1 1/2^ x 1/2^ Incised wouud ni.t. phalyngeal joint of right fore fppt oni the size of 3 l/2"x 2" all phslynxes of all toes are cut. V) Stitched wound in fhe size of 3 W on the front of rt. Anklet crossio.g obMquely froni 1" above upto niedial side offoot on dissection fracture ofcuboid aad niedial vi) vii) viii) ix) X) unifonsi bone. Stitched wouud aiit-surface right laiee hi the size of 1 w Stitched wound aat. M3rd right leg in flie size of 1" Stitched Vv7ound ia fhe size of 2W aad aiitero-lateral surface of left leg, Stitched wound obliquely ou th.e right side offhe face 1 1/2 'below lateraJ aiigle of right eye ia the length of 3'? iiiuscle deep, Stitched wound I" above wozind on the right side face M 1?? posterior to lateral aagle of right eye cuttiag of right ear in the size of 1/2" on dissection 4 W x 1/2" bone xi) xii) xiii) Incised wound jiist behin.d piaua of right ear in tiie size of %" x 1/2" Stitched wound + 2W behiad fhe piiina of right ear in. padetel region ofskuU -3 W on dissection boiie deep. Stitched wound -r 1" behuid iiijury No.12-1" ou dissection. xiv) Stitched wound +iii middle of skuU 3" above fhe root of fhe nose-1" ^ xv) Stitched wozind -^- post part of left parietal region of skiiU-2" On intemal exainio.ation, depressed fracture of right temporal bone iii the size of 2 W x 1^x1" ajid Im.ear fracUire ofright parietal bone posteriorly - 2 ^ inassive intenial heBiorrhage nii braia were found. It was opiaed th.at caiise of deafh was com.nia due to. iati'acerebral heiriorrhage of the braiii. Duiiag fhe course of in.vestigation, statement. under Section 27 of tlie Evideuce Act of acciised/appellaD.t No.l Babla was recorded vide Ex. P-11 aud 011 tlie -basis of his statement, sword ^vas recovered under Ex. P-12, Likewise, blood staiaed club was recovercd on the instao.ee of fhe accused/ appellant -Tnlochao. vide Ex. P-13 aiid it was seized under Ex. P-14. StateBient of accused/appenaat Kheaidu @ Ratan was recorded vide Ex, P-15 aiid on his iustauce Safo&aJwas seized under Ex. P-16, Statenient of accused/appellaiit Prahlad was recorded vide Ex. P-17 aiid 011 instance, farsa (battle-axe) was seized under Ex. P-18, Statenient of accused/appellmit Suraj was recorded vide Ex.P-1.9 aiid 011 his iristaiice, one iron rod was seized under Ex. P-20, Statement of accused/appellaiit Bholu @ Michael was recorded vide Ex. P-21 and on his nistance one Bamboo stickwas seized vide Ex, P-22, The seiz-ed articles were seut for inedical exaiiiiiiation vide memo of Ex.P-29,30,31,32,33 8& 34 and they were examined vide report of Ex.P-4,5,6,7,8 & 9. Plaiii soil, Blood staiaed soil and one pair of slippers wcre taken io.to possession froni the place of occurreiice vide Ex, P-41 aiid th.e saine was sent for inedical examination vide niemo of Ex, P-28 and report of the doctor is iinder Ex. P-28 (A), Sealed clofhes of deceased were seized under Ex. P-29. Spot niap Ex. P-38 v^as prepared by the Investigating Officer. Seized articles were sent for cheisiical aiialysis to Forensic Science Laboratoiy, Raipurvide niem.o ofEx.P-48. 6, After conipletion of io.vestigation/ charge sheet vvas liled iri the Court of Chief Judicial Magistrate, Jagdalpur, who iii 3S^SS committeci the case to the Sessions Jndge, Jagclalpur, from where fhte leaiiiecl Second Additional Sessions Judge, Jagdalpur (Bastsj:) received fhe case on traasfer for tdal,

7. In order to establish fhe charges against fhe appeUaiits, prosecution appellaats were convicted aad seutenced uiider Section 302 aad had examnied eleven witnesses, After tri.al, 324 of fhe IPC, Duririg the course of fhe pendency of tliis appeal, accused/appellant No.2~Bholu @ M&al Jekab died. The appeal agaiiist hiai staiid abated, 8, in tlie stateaient recorded under Sectioii313 of the Cr.P.C. th.e appeUants have deuied tlie circuBistances appeariiig against fhem and pleaded ianoceiice aiid false iniplication. 9, Leam.ed counsel for the appeUaiits had tried to iaipeach fhe ioipugued judgnient ou the ground thiat conviction is not based on niaterial evidence, There is no niaterial on record to couuect the appeUauts witli the niurder of deceased Aran or caiisiiig hurt to injured Thunnu.

10. We have heard leamed counsel appeaiing for the parties aiid penised the records.

11. It is submitted on behalf of the appellants that fhe entire case of prosecution rests on the statement of mjured witness Thunnu P.W,-6 who has not supported the case of proseciition. His stateinent sufiers froin io.fimiity aad not trustevorthy,

12. Leamed couiisel fbr tlie respondeut supported tlie ioipiigried judgnient asid subraitted tliat honiicidal deafh of Anin is not m. dispzite oth.er^vise proved by the evidence of Dr. K.Vhiay Kusiiar (PAV.-l), mjured witness Thunnu (P.W.-6), Dr. Vn'endra Kumar Jha (P.W.-ll) aiid post mortem report Ex.P-48. Thunnu (P.W.-6) has specifically adniitted tlie presence of all fhe appellaiits anned with weapons aiid also stated fhe part played by the appellaiits. ,^-,^—^ •aite ^.. ~^^'./ 6 The presence of the appeUaats on the spot is natural aad lie cao.not be disbeMeved on th.e grozind ofeiiinity. 13, Homicidal deatli of Aran is not in dispute and otherwise estabMshed froni fhe statem.ents of Dr. K.Vuiay KiiBiar P.W.--1, Thuunu P.¥^.-6, Dr, Vn'endra Kziniar Jha P,W.,-11 aad the post sB.orteni report Ex. P-48 aad froin tlie mjury report of Aran vide Ex. P-1 15 injuries were foiind on the body ofAnin. Teniporal and pzaietal bone were fractiired. Dr,Virendra Kuinar Jha P.W.-ll lias op:hied that cazise of deafh was coinma due to ic.tracereberal haemhorrage of the brian, Injury No, 12,13,14 aiid 15 were sufficient to cause deatli of tlie. deceased in. fhe ordiiiaiy course of nature. Homicidal death of Arun Nag is supported by medical evidence.

14. The next qiiestion for consideratiou is that whether the tojuries caused by sharp edged weapon to coiiiplaio.ant/mjured witness Thunnu, which is also not ia dispute aad otiien^ise estabUshed by tlie statem.ent of Dr. K. Vniay Kuniar (P.W,-1). Thunnu P.W,-6 who has stated that. he was assaulted by battie axe on his left leg. The sam.e was supported by his wife ie. Miinni Bai P.W.-7, Dr. K. Vinay P;umar (P.W.-l) has stated ia para 6 that on examination of Thunnu, on 30.03.99, he found tiie followuig injuries 011 his body vide m.edical report Ex. P-3: i) ii) abrasion on the rt, side of back obUquely out^Tard in fhe size of9" x ,5??x5" skm deep Incised woiind on the back of left elbow in. the size of 6" xl" skia deep

15. As regards tlie uijury caused by the appeUants to deceased Arun, it is stated by Thunnu {P.W,-6) deceased Arun aiid iajured Kunnu froni the Mission Coinponnd, that when he was comm.g back with appellaats caoie arraed with sword, irou rod, battle axe and stoppecl theBi. He ^vas assaulted by the acczised/appellaiit TrilocliaD. by battle axe aad caused injury on the left leg. Accused/appellant FHiaiidu @ Ratan. a.ssaulted Arun by jaaUwala '-^s. 7/-^' rod on tlie head aad thereafter he raii a.way from. tiie spot. lujiired Kun.nu was also z.ssaiiltecl by the acczised person. He narrated the story to her wife Munni Bai. He went to tiie police station where mjured F^unnu v.7as akeady present aiid rcport Ex, P-26 was lodged by Kunnu,

16. In his cross exaiiiiriation P,W.-6 Thunnu has adniitted fhat oiily appellants Trilochaii, Khaadu @ Rataa aad one Thotri were preseB.t and rest appe.U.an.ts were. not present on fhe sccne of occurrence, P,W,-9 Kunnu is also nyured witaess. He has been declared hostile but he has not szipported the case of prosecution. P.W,-6 Thunnu has admitted th.e presence of aU appellmits m his exaBiuiation iii chief but not supported the fact of presence of all fh.e appellaiits io. his cross exainin.ation, He is tlie only wito.e.ss who WQ.S present at th.e scene of occurreuce aad he is also injured witaess. His testioiony caanot be rejected outright. 17,

18. He has adaiitted fhe presence ofappeUan.ts Trilochao. aiid Khandu aiid stated fhat Trilochaa had assaulted him by batUe. axe aad Khandu @ Rataii had assaulted the deceased by jaaliivala rod over his head. Then he TCJI away froia tlie spot. It is submitted on behalf of the accused/appellant that even according to the statement ofP.W.-6 Thimnu, appeUaats Trilochaa and Khaadii were present at scene of occuiTence. Accused/appellant Trilochaa assaulted Thunnu and Khandu @ Rataa assaulted Arun. It is also submitted fhat there is no material on record agaiast aU fhe appellants that they have committed offence ui fiirtherance ofcommon object ofmilawful assem.bly. The prosecutiou has not adduced any evidence to show fhat aU the appeUaats or appeUaats Trilochaa and Khaxidu has committed the ofience ofmurder ofArun or caiised hurt to Thunnu iii shariiig th.e. common mtention, No overt act, pre-meditation of mmd or pre concert of the appeUarits Trilochaii aad Kliandu had been established by fhe prosecution. Therefore, appellants cannot be convicted fbr fhe offence to commit murder with tlie aid of Section ^^;. 1 ^.. l&^ 149 of the IPC or Section 34 of the IPC at the worst they may be Mable for tlieu' independent act,

19. No overt act or assault by appellaat Tnlochaii in. causing mjuiy to Aruii is shown by th.e prosecution. Therefore, appeUan.t Trilochaii is not Hable for tlie offence punishable under Sectiou 302 of the IPC. The px'eseuce of these tevo appeUaiits are not sufficieut for conviction for all tiie appellaats aad appellants Trilochaa. aiid Khandu with the aid ofSection 34 ofthe IPC.

20. Reliance is place on ChiScfccsran^c QfSSasore, 19S6 &C 731fS) ASS V 43 C 115 Nw.}, on behalf of Vs. the appellaiits whereni it is held that CGinmon object of unlawfal assenibly ouly to adininister chastiseiaent to deceased, charge not iD.eutionio.g tliat m.embers of unlawful assenibly knew th.at deceased was likely to be kiUed in prosecution of that coniinon th.eu conviction of all the ineiiibers of unlawful asseinbly object, would not be legaUy possible under Sections 302 read with Section 149or34oftheIPC.

21. Leamed counsel for the appe.Uan.t has placed reliao.ee on Chand Vs. State of Puniab, {S) AIR 1955 &C 274 {Vol. 42 CN, 48j whereixi it is held fhat Aff.er an examiization of the cases refejred to on behalfofthe appeaL ant and the prosecution^ we are of the opinion that the view taken by the Calcutta PIigh Court is ihe cofrect view namely, that a person charged wiih an offence read wiih Seciion 149 ccinnot be convicted of the substantive offence wiihout a specific charge beingfrcmzed as recjuired by S. 223 oftheCr.P.C.

22. It is subinitted on behalf of tiie appellants that no inaterial evidence is on record to connect all th.e appeUaats wifh the offence, ,^;.,;,'^y ^' ^^/c^ \ 1 I ^^ Prosecution has also failed to estabMsh any existence of unlawlul assesiibly.

23. ReUaiice is placed on Subran @ Vs» ®fKerala, 1993 CrLL.J. 13S7, wherein. it is held by the Apex Coiirt th.at hi case of acquittal of sorae accused persons by the Court withoiit tlie findiag that SOHIC. other kiiown or unknown persons were also iiivolved io. tlie assaiilt, it could be said tliat for all intent aud purposes fhe iwo ac-qiutted acciised persons were not 3B.eBibe.rs of the unlawful asseisibly. Thus^ iii Uie absence of substaiitive charge of Section 302 of IPC, Uie acciised persons cannot be convicted for siibstaative offence witli th.e aid of Section 149 of the IPC. Saine pno.ciple has also been held ia Afnsir Singh %nd Others Vs. StGte of Punjeib, AIK 1987 SC 826^ unlawfiil assenibly m.ust be of five or more persous-in.itiaUy seven accused persons were charged for offences under Sections 148 & 149 of the IPC, two of th.eni acquitted by tdal Court aQ.d one by High Court, uo ofher person apart froni seven accused iavolved io. crmie, conviction of remain.iag four under Section 148 & 149 caiinot be sustained.

24. In fhe iastaiit case, charge under Section 302, 148 aiid 307 ofthe ^ IPC has been framed agaiust al[ the appellaats and they have been convicted by tlie trial Court under Section 302 & 324 offhe IPC.

25. Injured wito.ess P.W.-6 Thunnu has supported tlie case of prosecution aad speci&cally stated that he was assaulted by Trilochan aud deceased Arun Nag was assaulted by appellaat Khandu @ Ratan. In his cross exaianiation, he has uot supported fhe case ofprosecution relatiiig to the presence ofotlier appellants. There is no inaterial is available on record to connect th.e rest of the appeUaats with fhe criine ia question.

26. \<- It is subniitted on behatf of fhe appellants fhat no overt act, pre- raeditation of mind aa.d pre concert of fhe appeUaa.ts Ti'ilochan. aiid Khandu @ Ratan had been estabMshed by the prosecution and ia l' '!^% J' 'w /::' •-^.^ .-.^" ^%aK^?? ^ ^%^^ 10 absence of niaterial they niay not. be Uable for the act of other appellaiits. 27, It is szibinitted on behalf of tlie responde.iits tha:fc bofh tiie appeUaiits i.e. Trilochaii aiid Khaiidu @ Ratau reached the place of iiicident sim.ultaiieously arm.ed wifh deadly weapon. They ro.flicted iojuries to P,W,-6 Thunnu and deceased Arun Nag ao.d also chased the witness Thunnu. These statements are sufficient to irifer tlie overt act of the appeUants aud their pre-iiieditatioii of Biio.d ao.d pre-conccrt. 28, In case of Pu.llei Vs. of Andhrc. Pradesh, 1993 CS^J. SC the Apex Court, has held fhat no speciflc iBJury is required to be iuflicted upon the decee.sed by all fhe accused'a<iid tiie accused niay be couvicted for the olfence of niurder under Section 302 with the aid of34 ofthe IPC.

29. In our considcred viev^ the act oftE.vo e^.ppeU.ao.ts i.e. Trilochao. and Khaiidu @ Rataii who came at tlie place of incident sioiultaD.eously amied wifh deadly wcapon inflicted iojuries to Thunnu ac.d AITIU Nag are siifficient to cGnstitute tlie overt act, pre iiiedication of Biro.d aiid pre-concert of both the appellaats for coriiniittiag the cffence of niurder aad causing injuiy to iojiired Thunuu by sharp edged v^eapon, But there is no reliable and clinchnig evidence agaio.st fhe appeUaiit No.l, 4 & 6 namely, Babla @ Zibrael, Suraj aiid Prahlad for com.inission ofthe crmie to. qziestion.

30. Consequently, fhe appeal is partly aJlowed azid couvictioii and seuteiice under Section. 302,324 of tlie IPC agamst the appeUants No. 1, 4 & 6 naoiely Babla @ Zibrael, Suraj & Prahlad, are set aside. They are set at liberty atouce, However, accused/appeUaiit No.2 Bholu @ MikaJ Jekab died aad the appeal against him staads abated. The conviction under Section 302 of the IPC against accused/appeUasit Khandii @ Ratao. is affinned, He is acquitted from. ttie charge under Section 324 ofthe IPC and convicted under Section 324 read with Section 34 of tlie IPC aad sentenc-ed to ^' ^- :^^^'"?i ^ 'i c. '^%'^"^, "iy; t.. i. ~^^^:: "^~ 11 undergo RI for three years aad fine ofRs. 500/-, paynient of fiiie to fiirther undergo RI conviction under Section 324 of io. default of for six niontlis. The tiie IPC agaiiist appellant Trilochao. is affnnied. His conviction under Section 302 of the IPC is set aside arid he is convicted under Section 302 read witli Section 34 of fhe IPC and sentenced to uudergo miprisoninent for life aad to pay fine of Rs. 5000/-, ia default of payinent of fine to fartlier uudergo RI for oue year. Suguna Sd/- Dhirendra Mishra Judge Sd/- T.P. Sharma Judge