Pradeep Kumar Sarthi S/o Mohan Lal Sarthi Aged About 21 Years R/o Adarsh Nagar v. State of Chhattisgarh Through Police Station Kusmunda, District- Korba, Chhattisgarh
Case Details
1 ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.02.25 10:32:20 +0530 2025:CGHC:8852-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 723 of 2024 Pradeep Kumar Sarthi S/o Mohan Lal Sarthi Aged About 21 Years R/o Adarsh Nagar, Qr. No. 635, Thana Kusmunda, District- Korba, Chhattisgarh. --- Appellant Versus State of Chhattisgarh Through Police Station Kusmunda, District- Korba, Chhattisgarh. --- Respondent CRA No. 743 of 2024 1 - Rakesh Das S/o Firatu Das Manikpuri Aged About 25 Years R/o Near Anand Nagar Club, P.S. Kusmunda, District- Korba, Chhattisgarh. 2 - Rajesh Sahu S/o Late Shri Shyam Lal Sahu Aged About 32 Years R/o Anand Nagar, Kusmunda, P.S. Kusmunda, District- Korba, Chhattisgarh. 3 - Rakesh Kumar @ Pintu Sahu S/o Late Shyam Lal Sahu Aged About 21 Years R/o Anand Nagar Kusmunda, P.S. Kusmunda, District Korba, Chhattisgarh. 4 - Rahul Das S/o Rohit Das Aged About 23 Years R/o Anand Nagar, Kabir Chowk, P.S.- Kusmunda, District- Korba, Chhattisgarh. --- Appellants Versus State of Chhattisgarh Through Station House Officer, Police Station Kusmunda, District- Korba, Chhattisgarh. --- Respondent 2 CRA No. 771 of 2024 Devendra Kumar S/o Bharat Lal Binjhwar Aged About 19 Years R/o Yamuna Nagar Kuchaina, Thana Kusmunda, District Korba (C.G.) --- Appellant Versus State of Chhattisgarh Through P.S. Kusmunda, District Korba (C.G.) --- Respondent CRA No. 857 of 2024 A.B.C. --- Appellant Versus State of Chhattisgarh Through Station House Officer, Police Station Kusmunda, District Korba (C.G.) --- Respondent CRA No. 946 of 2024 Divyanshu Mishra S/o Shashikant Mishra Aged About 21 Years R/o Village Prem Nagar, Thana Kusmunda, District : Korba, Chhattisgarh --- Appellant Versus State of Chhattisgarh Through P.S. Kusmunda, District : Korba, Chhattisgarh XYZ --- Respondent CRA No. 1162 of 2024 --- Appellant Versus State of Chhattisgarh Through The Station House Officer, Police Station, Kusmunda, District : Korba, Chhattisgarh --- Respondent (Cause-title taken from Case Information System) For Appellants (in CRA Nos.723/2024 & 771/2024) For Appellants (in CRA Nos.743/2024 & 857/2024) For Appellant (in CRA No.946/2024) For Appellant (in CRA No.1162/2024) 3 : Mr. Vikas Kumar Pandey, Advocate : Mr. S.R.J. Jaiswal, Advocate : Mr. T.R. Patel, Advocate : Mr. Rahul Mishra, Advocate For Respondent-State : Mr. Sangharsh Pandey, Government Advocate For Objector : Mr. Pushpendra Singh Baghel, Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board (20.02.2025) Per Ramesh Sinha, Chief Justice 1. Regard being had to the similitude of the questions of facts and law involved, as all these appeals are clubbed together being arising out of a common crime vide impugned judgments dated 19.03.2024 passed by the Second Additional Sessions Judge, Katghora, District Korba, Chhattisgarh in Sessions Trial No.18/2020 as well as impugned judgment dated 21.03.2024 passed by the Juvenile Court, Katghora, District Koraba in Special Sessions Case No.09/2021, these appeals have been clubbed together, heard together and are being decided by this common judgment. 2. Appellant-Divyanshu Mishra (A1) has preferred CRA 4 No.946/2024, appellant-Pradeep Kumar Sarthi (A2) has preferred CRA No.723/2024), appellants-Rakesh Das (A3), Rajesh Sahu (A7), Rakesh Kumar @ Pintu Sahu (A8) and Rahul Das (A9) have preferred CRA No.743/2024, Devendra Kumar (A5) has preferred CRA No.771/2024 under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”) questioning the impugned judgment dated 19.03.2024 passed by the Second Additional Sessions Judge Katghora, District Korba, Chhattisgarh in Sessions Trial No.18/2020, by which they have been convicted for offences under Sections 148, 307/149 (two counts), 302/149 and 427/149 of the Indian Penal Code, 1860 (for short, “IPC”) and sentenced as under :- Appellant - Pradeep Kumar Sarthi Conviction Sentence Under Section 148 of the : Rigorous imprisonment for 1 year IPC and fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for 1 month. Under Section 307/149 of : Rigorous imprisonment for 10 the IPC (two counts) years and fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 3 months (two times). Under Section 302/149 of : Imprisonment for life and fine of the IPC Rs.1,000/-, in default of payment of fine, additional rigorous 5 imprisonment for 3 months. Under Section 427/149 of : Rigorous imprisonment for 1 year the IPC and fine of Rs.200/-, in default of payment of fine, additional rigorous imprisonment for 1 month. All the sentences were directed to run concurrently Appellant – Rakesh Das Conviction Sentence Under Section 148 of the : Rigorous imprisonment for 1 year IPC and fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for 1 month. Under Section 307/149 of : Rigorous imprisonment for 10 the IPC (two counts) years and fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 3 months (two times). Under Section 302/149 of : Imprisonment for life and fine of the IPC Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 3 months. Under Section 427/149 of : Rigorous imprisonment for 1 year the IPC and fine of Rs.200/-, in default of payment of fine, additional rigorous imprisonment for 1 month. All the sentences were directed to run concurrently Appellant – Devendra Kumar 6 Conviction Sentence Under Section 148 of the : Rigorous imprisonment for 1 year IPC and fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for 1 month. Under Section 307/149 of : Rigorous imprisonment for 10 the IPC (two counts) years and fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 3 months (two times). Under Section 302/149 of : Imprisonment for life and fine of the IPC Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 3 months. Under Section 427/149 of : Rigorous imprisonment for 1 year the IPC and fine of Rs.200/-, in default of payment of fine, additional rigorous imprisonment for 1 month. All the sentences were directed to run concurrently Appellant – Rajesh Sahu Conviction Sentence Under Section 148 of the : Rigorous imprisonment for 1 year IPC and fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for 1 month. Under Section 307/149 of : Rigorous imprisonment for 10 the IPC (two counts) years and fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment 7 for 3 months (two times). Under Section 302/149 of : Imprisonment for life and fine of the IPC Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 3 months. Under Section 427/149 of : Rigorous imprisonment for 1 year the IPC and fine of Rs.200/-, in default of payment of fine, additional rigorous imprisonment for 1 month. All the sentences were directed to run concurrently Appellant – Rakesh Sahu alias Pintu Sahu Conviction Sentence Under Section 148 of the : Rigorous imprisonment for 1 year IPC and fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for 1 month. Under Section 307/149 of : Rigorous imprisonment for 10 the IPC (two counts) years and fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 3 months (two times). Under Section 302/149 of : Imprisonment for life and fine of the IPC Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 3 months. Under Section 427/149 of : Rigorous imprisonment for 1 year the IPC and fine of Rs.200/-, in default of payment of fine, additional rigorous imprisonment for 1 month. 8 All the sentences were directed to run concurrently Appellant – Rahul Das Conviction Sentence Under Section 148 of the : Rigorous imprisonment for 1 year IPC and fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for 1 month. Under Section 307/149 of : Rigorous imprisonment for 10 the IPC (two counts) years and fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 3 months (two times). Under Section 302/149 of : Imprisonment for life and fine of the IPC Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 3 months. Under Section 427/149 of : Rigorous imprisonment for 1 year the IPC and fine of Rs.200/-, in default of payment of fine, additional rigorous imprisonment for 1 month. All the sentences were directed to run concurrently 3. It has been reflected from the impugned order that appellants- Akash Das (A4), Nitesh Das (A6) and Indrakumar Yadav (A10)
Legal Reasoning
have been acquitted by the trial Court. 4. Appellant-ABC has preferred CRA No.857/2024 and appellant- XYZ has preferred CRA No.1162/2024 under Section 374(2) of 9 the Cr.P.C. questioning the impugned judgment dated 21.03.2024 passed by the Juvenile Court, Katghora, District Korba, Chhattisgarh in Special Sessions Case No.09/2021, by which they have been convicted for offences under Sections 148, 307/149 (two counts), 302/149 and 427/149 of the Indian Penal Code, 1860 (for short, “IPC”) and sentenced as under :- Appellant – ABC Conviction Sentence Under Section 148 of the : Rigorous imprisonment for 1 year IPC and fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for 1 month. Under Section 307/149 of : Rigorous imprisonment for 7 the IPC (two counts) years and fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 3 months (two times). Under Section 302/149 of : Rigorous imprisonment for 10 the IPC years and fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 3 months. Under Section 427/149 of : Rigorous imprisonment for 1 year the IPC and fine of Rs.200/-, in default of payment of fine, additional rigorous imprisonment for 1 month. All the sentences were directed to run concurrently 10 Appellant – XYZ Conviction Sentence Under Section 148 of the : Rigorous imprisonment for 1 year IPC and fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for 1 month. Under Section 307/149 of : Rigorous imprisonment for 7 the IPC (two counts) years and fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 3 months (two times). Under Section 302/149 of : Rigorous imprisonment for 10 the IPC years and fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 3 months. Under Section 427/149 of : Rigorous imprisonment for 1 year the IPC and fine of Rs.200/-, in default of payment of fine, additional rigorous imprisonment for 1 month. All the sentences were directed to run concurrently 5. Case of the prosecution, in nutshell, is that, in the intervening night of 08-09.10.2019 at about 1.00 AM (in the night) at village Premnagar within the ambit of Police Station Kusmunda, District Korba, the present appellants including two juveniles constituted an unlawful assembly along with 12 other co-accused persons, with the common object caused injuries to complainant Bhanu Pratap Khunte (PW-1), Mrigesh Kumar Sahu (PW-2), Rajendra 11 Kumar Khunte (PW-3) as also caused death of deceased Sunil Singh and thereby committed the aforesaid offence. 6. Further case of prosecution, in brief, is that on 09.10.2019, the hospital staff of New Korba Hospital Korba, Gaurishankar Chauhan, on behalf of Dr. D.H. Mittal, New Korba Hospital, informed the Police Assistance Center Rampur, Police Station Kotwali, District Korba about the death of deceased Sunil Singh during treatment on 09.10.2019 at about 3.17 PM. Upon registering the death information of deceased Sunil Singh, as the incident took place in the area of Police Station Kusumunda, District Korba, the numbered merg intimation was registered at Police Station Kusumunda vide Ex.42 and Ex.P/43. A written complaint was filed vide Ex.P/1. Dehatinalishi was registered vide Ex.P/2 and on the basis of merg intimation, First Information Report was lodged vide Ex.P/3. Summons under Section 175 of Cr.P.C. was given to the witnesses vide Ex.P/4. Crime details form and naksha panchayatnama were prepared vide Ex.P/6 and Ex.P/8. One mobile phone was seized vide Ex.P/9. Memorandum statements of appellants Divyanshu Mishra, Devendra Kumar, Nitesh Das @ Nikesh, Rahul Das and Indra Kumar Yadav have been recorded vide Ex.P/10 to Ex.P/14. Based upon their memorandums, one iron G.I. Pipe, Full Pent, wooden stick, club, one G.I. Pipe, mobile phone of Vivo company, Scorpio vehicle as well as club were seized at their instance vide Ex.P/15 to Ex.P/20. Appellants-Rahul Das, Nitesh Das, Devendra Kumar, 12 Indra Kumar Yadav were arrested vide arrest memo vide Ex.P/21 to Ex.P/24. Memorandum statement of appellant Pradeep Kumar Sarthi has been recorded vide Ex.P/31, based upon which, one club, clothes of appellant and one motor-cycle were seized vide Ex.P/32. Memorandum statement of appellant Rakesh Das has been recorded vide Ex.P/33, based upon which, one bamboo stick was seized vide Ex.P/34. Memorandum statement of appellant Akash Das has been recorded vide Ex.P/35, based upon which, one splendor motor-cycle and one club were seized vide Ex.P/36. One G.I. pipe was seized vide Ex.P/38. Panchnama was prepared vide Ex.P/40 and police intimation has been recorded vide Ex.P/41. Medical examination of Sunil Singh, Mrigesh Kumar Sahu and Bhanu Pratap Khunte was conducted vide Ex.P/45 to Ex.P/47. One Scorpio vehicle, along with other articles were seized vide Ex.P/54. Medical examination of Sunil Singh was conducted by Dr. Divik H. Mittal (PW-22) and his bed head ticket is Ex.P/44. Dead body of deceased Sunil Singh was sent for postmortem examination, which was conducted by Dr. R.K. Divya (PW-23), who found that the mode of death seems to be coma due to compression of brain secondary to head injuries and the nature of death is homicidal. Appellants- Pradeep Kumar Sathi, Akash Das, Rakesh Das were arrested vide arrest memo vide Ex.P/67 to Ex.P/69. Notice under Section 160 of Cr.P.C. was given vide Ex.P/74, P/75, P/85, P/102 and P/103. The seized articles were sent for its chemical examination to Forensic 13 Science Laboratory, Bilaspur and the blood was found on most of the articles, the FSL report is Ex.P/89. Memorandum statement of appelalnt Rakesh Kumar and Rajesh Kumar were recorded vide Ex.P/96 and P/97, based upon which, one bamboo club and baseball bat were seized vide Ex.P/98 and P/99. Appellants- Rajesh Sahu and Rakesh Kumar Sahu were arrested vide arrest memo Ex.P/100 and P/101. Data extraction report has been made vide Ex.P/104. Certificate under Section 65B of the Evidence Act has been prepared vide Ex.P/105. Pursuant to memorandum statements of the appellants-accused, seizure memos were affected, the details of seizure made from the appellants are as under:- Sl. Name of accused and his Property Seized vide No. memorandum statement vide Exhibit Exhibit 1. Divyanshu Mishra (Ex.P/10) G.I. Pipe and Jeans (Ex.P/15) 2. Pradeep Kumar Sarthi Club, Shirt and motor- (Ex.P/31) 3. Rakesh Das (Ex.P/33) cycle (Ex.P/32) Club (Ex.P/34) 4. Akash Das (Ex.P/35) Motor-cycle and club (Ex.P/36) 5. Devendra Kumar (Ex.P/11) G.I. Pipe and mobile 6. Nitesh Das (Ex.P/12) Wooden stick (Ex.P/16) (Ex.P/18) 7. Rajesh Sahu (Ex.P/97) Baseball bat (Ex.P/99) 8. Rakesh Kumar alias Pintu Club (Ex.P/98) 14 Sahu (Ex.P/96) 9. Rahul Das (Ex.P/13) Club (Ex.P/17) 10. Indra Kumar Yadav (Ex.P/14) Club (Ex.P/20) 11. ABC (Ex.P/10) Rod (Ex.P/12) 12. XYZ (Ex.P/11) Rod (Ex.P/13) 7. From the aforesaid seized articles so seized, some of them were sent for FSL examination and in the FSL report (Ex.P/89), it has been opined by chemical examiner as under :- Sl. Name of Seized Article Marked As FSL Result No. accused 1. Divyanshu G.I. Pipe “F” Blood found Mishra 2. Pradeep Club “P” Blood not Kumar Sarthi found 3. Rakesh Das Club “H” Blood not 4. Akash Das Club “N” Blood not found 5. Devendra G.I. Pipe “O” Blood found Kumar 6. Nitesh Das Wooden stick “J” Blood not found found 7. Rajesh Sahu Baseball bat 8. Rakesh Club - - Kumar alias Pintu Sahu 9. Rahul Das Club “K” Blood not 10. Indra Kumar Club “I” Blood not found 15 Yadav found 11. ABC Rod “L” Blood not 12. XYZ Rod “M” Blood not found found In the above articles blood groups could not be ascertained for the reasons mentioned in the FSL report. 8. After the proceedings of arrest of the accused, other necessary investigation was completed and the charge-sheet was presented in the court of Judicial Magistrate First Class, Katghora, District Korba, Chhattisgarh, who in turn committed the case to the Court of Sessions, Korba, from where the Second Additional Sessions Judge, Kathghora, District Korba as well as Juvenile Court, Katghora, District Korba, Chhattisgarh received the case on transfer for trial. 9. After due investigation, all the appellants were charge-sheeted for the aforesaid offences in which they abjured their guilt and entered into defence stating inter-alia that they have not committed any offence and they have falsely been implicated in crime in question. 10. In order to bring home the offence, the prosecution examined as many as 30 witnesses and exhibited 105 documents Exs.P-1 to P-105 including Articles A/1 to A/52. The defence has not examined, but exhibited 8 documents as Ex.D/1 to D/8 in their support. 16 11. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 19.03.2024 and 21.03.2024, proceeded to convict the aforesaid accused persons for the aforesaid offences and sentenced them as aforementioned, against which, these six criminal appeals have been preferred. Submissions on behalf of the appellants:-
Legal Reasoning
12. Mr. Vikas Kumar Pandey, learned counsel appearing for the accused-appellants, namely, Pradeep Kumar Sarthi (A-2) and Devendra Kumar (A-5) in CRA Nos. 723/2024 and 771/2024 respectively submit that in merg intimation (Ex.P/42 and Ex.P/43), the name of accused-appellants have not been mentioned and only on the basis of memorandum statements of other accused persons, they have been implicated in the crime in question. Similarly, in FIR (Ex.P/3) the name of accused-appellants have not been been mentioned and other accused-appellants have been named. From accused-appellants, namely, Pradeep Kumar Sarthi (A-2) and Devendra Kumar (A-5), not any incriminating article has been seized from them, only a club and G.I. Pipe have been seized vide Ex.P/32 and Ex.P/18, but in the FSL examination, no blood has been found on the said club and in the FSL examination, blood was found on the G.I. Pipe, but the group of blood was inclusive, therefore, the case against the appellants have not been proved. He further submits that the appeals on behalf of the appellants Pradeep Kumar Sarthi (A-2) and 17 Devendra Kumar (A-5) being CRA Nos.723/2024 and 771/2024 be allowed and the appellants be acquitted of the charges levelled against them on the basis of benefit of doubt. 13. Mr. S.R.J. Jaiswal, learned counsel appearing for the accused- appellants, namely, Rakesh Das (A-3), Rajesh Sahu (A-7), Rakesh Kumar @ Pintu Sahu (A-8), Rahul Das (A-9) and ABC (A-1 (juvenile) in CRA Nos.743/2024 and 857/2024 submits that appellant in CRA No.857/2024 is juvenile and no incriminating articles have been seized from these accused-appellants and only club, baseball bat, club, club and rod have been seized from them. He further submits that baseball bat seized from the accused Rajesh Sahu and club from the accused Rakesh Kumar alias Pintu Sahu have not been subjected to FSL examination and in the FSL report, blood was not found on the seized articles from the instance of accused Rakesh Das, Rahul Das and ABC. It has been contended that though the names of Rakesh Das, Rahul Das, Rakesh Sahu alias Pintu Sahu and Rajesh Sahu have been mentioned in the FIR, but the name of ABC has not been mentioned in the FIR. Allegedly, eye-witnesses have stated the presence of these accused-appellants on the place of occurrence, but no specific overt act has been alleged against them. Moreover, injured eye-witnesses, namely, Bhanu Pratap Khunte (PW-1), Mrigesh Kumar Sahu (PW-2) and Rajendra Kumar Khunte (PW-3) have not implicated the name of accused- ABC in the FIR. He further contends that since grievous injury 18 caused to the deceased- Sunil Singh by which he died was by way of hard and blunt weapon, which was seized from all the accused persons, hence, it cannot be said that from which weapon, he is said to have died, thus, they have been falsely implicated in this case and, therefore, their conviction is liable to be set aside and they deserves to be acquitted. 14. Mr. T.R. Patel, learned counsel appearing for the accused- appellant, namely, Divyanshu Mishra (A-1) in CRA No.946/2024 submits that though the name of accused has been mentioned in the FIR (Ex.P/3), but he has not committed such overt act. He further submits that there is programme in the vicinity on the occasion of Dushera festival, where some hot-talk taken place between the complainant party and accused on some comments, due to which, a quarrel took place, but there is no evidence available on record to show that any overt act has been caused by the said accused-appellant. He further submits that pursuant to his memorandum statement (Ex.P/10), a G.I. Pipe has been seized vide Ex.P/15, but there is no Query report with regard to the same, as such, merely on the basis of recovery of G.I. Pipe, the accused-appellant Divyanshu Mishra (A-1) cannot be connected with the offence in question, as chain of circumstance is not complete by which it can be held that it is only and only the accused-appellant who has committed the offence; further, though the presence of accused-appellant has been stated, but no specific overt act has been alleged against him. It has been 19 contended that the prosecution has failed to prove that: there was any unlawful assembly and it was gathered after pre-conceived common object of eliminating the deceased- Sunil Singh and other injured witnesses; the assembly was equipped with deadly weapons, such as G.I. pipe, club, wooden stick and rod etc.; said unlawful assembly dealt a fatal blow on deceased- Sunil Singh and further dealt a violent and brutal assault on other injured witnesses; and the offence in question has been committed in prosecution of the common object of the said assembly. Even though it has not been established that the appellants-accused are the members of the assembly who knew that such offence is likely to be committed and that they shared a common object. As such, the appeal filed on behalf of appellant-accused Divyanshu Mishra (A-1) deserves to be allowed and he is liable to be acquitted/discharged from the offences mentioned herein-above. 15. Mr. Rahul Mishra, learned counsel appearing for the accused- appellant, namely, XYZ (A-2 (juvenile) in CRA No.1162/2024 submits that appellant is a juvenile and he has not named in the FIR (Ex.P/3) lodged by the injured eye-witness Bhanu Pratap Khunte (PW-1). He further submits that on the memorandum statement of the appellant (Ex.P/11), a rod has been seized vide Ex.P/13, but in the FSL report, no blood was found on the said rod. It has been contended that his presence has not been stated by the eye-witnesses in the FIR, as such, his appeal be allowed 20 and he be acquitted of the charges levelled against him. Submissions on behalf of the respondent-State:- 16. Per-contra, Mr. Sangharsh Pandey, learned Government Advocate, appearing on behalf of the State supported the impugned judgments dated 19.03.2024 and 21.03.2024 and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. Death of deceased- Sunil Singh is homicidal in nature, which is duly proved by the Postmortem report (Ex.P/53) as also the statement of Dr. R.K. Divya (PW-23). He further submits that constitution of unlawful assembly and common object amongst the accused- appellants have also been established by the prosecution which is supported by evidence available on record. The learned trial Courts have rightly convicted the appellant for offence mentioned herein above, thus, the present criminal appeals filed by the accused-appellants herein deserve to be dismissed. 17. Mr. Pushpendra Kumar Baghel, learned counsel appearing for the Objector supported the impugned judgments dated 19.03.2024 and 21.03.2024 passed by the trial Courts and adopted the submissions advanced by learned counsel for the State. He further submits that the prosecution has proved its case beyond reasonable doubt and the learned trial Court after considering all incriminating materials and circumstances available against the accused persons rightly convicted them for the aforesaid offences. Hence, these appeals are liable to be dismissed. 21 18. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 19. At the outset, it would be relevant first to notice the questions for determination formulated by the learned trial Court for the trial, which states as under:- “8.1. क्या, दि(cid:5)नांक 08-09.10.2019 के (cid:5)रम्यान रादि(cid:12) 1.00 बजे के लगभग मृतक सुनील िሺसह, भानू ्ቚताप खू ंटे एवं मृगेश साहू को घटनास्थल ्ቚेम नगर सामु(cid:5)ायियक भवन के पास मारपीट अंतग(त संघायितक चोटें कारिरत हुयी ? 8.2. क्या, सुनील िሺसह की दि(cid:5)नांक 09.10.2019 को उपरो्ሹानुसार उसे कारिरत चोटों के कारण यिचदिकत्सा के (cid:5)ौरान मृत्यु कारिरत हुयी ? 8.3. क्या, उ्ሹ सुनील िሺसह, भानू ्ቚताप एवं मृगेश साहू को कारिरत होने वाली उ्ሹ संघायितक चोटों को अभिभयु्ሹ दि(cid:5)व्यांशु दिम्ቦा, ्ቚ(cid:5)ीप कु मार सारथी, राके श (cid:5)ास, आकाश (cid:5)ास, (cid:5)ेवेन््ቖ कु मार, नीतेश (cid:5)ास, राजेश साहू, राके श कु मार उ्ቛ( दिपन्टू साहू, राहूल (cid:5)ास एवं इन््ቖकु मार या(cid:5)व ्ቛारा ्ቛरार अन्य सह अभिभयु्ሹों के साथ दिमलकर कारिरत दिकया गया था। 8.4. क्या उपरो्ሹ घटना कारिरत दिकये जाने हेतु उपरो्ሹ अभिभयु्ሹगण ्ቛारा घातक आयुध जैसे लोहे की पाईप, बेसबाल स्टीक, लोहे का रॉड एवं डण्डे के साथ घटनास्थल 22 पर जमा होकर िሻहसा का ्ቚयोग कर बलवा कारिरत दिकया गया था ? 8.5. क्या, उपरो्ሹ घटना कारिरत दिकये जाने के संबंध में उ्ሹ अभिभयु्ሹगण ने अन्य ्ቛरार सह अभिभयु्ሹगण के साथ दिमलकर सामान्य उ्ቌेश्य दिनኌमत दिकया था ? 8.6. क्या, उ्ሹ घटनास्थल पर उपरो्ሹ अभिभयु्ሹगण ने अ्ቨील शब्(cid:5) उ्ሴारिरत कर ्ቌोभ कारिरत करते हुए जान से मारने की धमकी (cid:5)ेकर भानू ्ቚताप, राजेन््ቖ कु मार, मृगेश साहू एवं मृतक सुनील िሺसह को सं(cid:12)ास कारिरत दिकया था ? 8.7. क्या, अभिभयु्ሹगण ने घटना दि(cid:5)नांक को घटनास्थल पर मृतक सुनील िሺसह के स्काኌपयों वाहन ्ቅं ० CG 12 AL 3162 में तोड़ ्ቛोर कर 25/- रूपये से अयिधक का नुकसान कर रिर्ቖी कारिरत दिकया था ?” Findings of the trial Court:- 20. The learned trial Court, with regard to question No.8.2 vis-a-vis regarding death of deceased- Sunil Singh being homicidal in nature, after appreciating the oral and documentary evidence available on record, particularly the postmortem report (Ex.P/53) and the statement of Dr. R.K. Divya (PW-23) clearly came to the conclusion that the death of deceased- Sunil Sahu was homicidal in nature. Further, with regard to question Nos. 8.1 to 8.7 vis-a-vis constitution of unlawful assembly with a common object/intention to commit rioting and to inflict hurt and, in furtherance of said common object, armed with weapons like G.I. pipe, club, wooden 23 stick, baseball bat and club and caused death of deceased- Sunil Singh, the learned trial Court categorically recorded finding that on the eve of festival Dushera, some cultural programme had taken place in the village and on account of some comments which have been passed by the appellant party to some women, complainant party objected and only thereafter, an altercation taken place, on account of which, on the date of incident, the accused-appellants constituted unlawful assembly with a common object to cause hurt to the complainant party including deceased- Sunil Singh and, thus, committed offence under Sections 148, 302/149 and 427/149 of the IPC. Similarly, it has been held by the learned trial Court that the accused-appellants abused and threatened the complainant-injured Bhanu Pratap Khunte (PW-1) and Rajendra Kumar Khunte (PW-3) and they also assaulted them and caused grievous hurt, held them guilty for offence under Section 307/149 (two times) of the IPC. Further, the trial Court has acquitted the appellants-accused, namely Akash Das, Indra Kumar Yadav and Nitesh Das. 21. Now questions ripped for consideration before us in this batch of appeals would be as under:- (i) Whether the learned trial Court is justified in holding that the death of deceased- Sunil Singh is homicidal in nature? (ii) Whether the learned trial Court is justified in holding that the prosecution has succeeded in proving the constitution of 24 unlawful assembly in terms of Section 141 of IPC by the accused-appellants herein and further justified in holding that the common object of the said unlawful assembly was to cause hurt to the complainant party and, in prosecution of said common object, accused- appellants, Divyanshu Mishra (A-1), Pradeep Kumar Sarthi (A-2), Rakesh Das (A-3), Devendra Kumar (A-5), Rajesh Sahu (A-7), Rakesh Kumar alias Pintu Sahu (A-8), Rahul Das (A-9), ABC (A-1 (juvenile)) and XYZ (A-2 (juvenile)) armed with weapons like G.I. pipe, club, wooden stick, baseball bat and rod, caused death of deceased- Sunil Singh and further caused grievous hurt/injuries to Bhanu Pratap Khunte (PW-1) and Rajendra Kumar Khunte (PW-3) and thereby committed the abovementioned offences? (iii) Whether the learned trial Court is justified in convicting all the accused-appellants herein for offence under Sections 302 and 307 (two counts) of IPC with the aid of Section 149 of IPC,, who were only present as member of unlawful assembly? Regarding Question No.(i) 22. The first question is as to whether the death of the deceased- Sunil Singh was homicidal in nature. The dead body of the deceased- Sunil Singh was subjected to postmortem examination which was conducted by Dr. R.K. Divya (PW-23), who gave its report (Ex.P/53). According to the said postmortem report 25 (Ex.P/53) following injuries were found on the body of the deceased- Sunil Singh:- “1. A swollen and scratched wound on the forehead, measuring 6 cm x 6 cm. 2. A stitched wound on the left parietal bone, measuring 4 cm in length. 3. Another stitched wound on the parietal bone, measuring 6 cm in length. 4. A bruise on the right thigh, measuring 10 cm x 8 cm. 5. A swollen bruise on the back of the left forearm, measuring 12 cm x 4 cm. 6. Another swollen bruise on the back of the left forearm, measuring 10 cm x 7 cm. These injuries were inflicted before death using blunt and hard objects. The skull and spine examination revealed: 1. Fractures on the frontal bone, extending from the forehead to the eyes. 2. Hemorrhagic congestion in the brain membranes, with a large blood clot underneath. 3. The brain and spinal cord showed signs of hemorrhage. The lung examination revealed: 1. Congestion in both lungs. 2. A blood clot in the right atrium. The abdominal examination revealed: 1. Congestion in the stomach and intestines. 26 2. Hemorrhage in the liver, spleen, and kidneys. The skull X-ray revealed: 1. A depressed fracture on the right parietal bone. 2. Displacement of the right temporal bone and left parietal bone. According to the information provided, the deceased was attacked with wooden sticks, iron rods, and bricks between 11:30 PM and 12:30 AM on October 8-9, 2019. Opinion: The cause of death was cerebral compression due to head injuries, leading to coma. The nature of the injuries was homicidal, and they occurred within two hours of the deceased being brought to the hospital.” 23. Dr. R.K. Divya, who has conducted the postmortem examination of the deceased- Sunil Singh has been examined as PW-23, who in Para-10 of his cross-examination before the Court has stated as under: “ यह कहना सही है दिक जिजस ्ቚकार की चोटें मृतक सुनील को होना मैंने पाया थाA वैसी चोटें मोटर (cid:5)ुघ(टना से भी आ सकती है। यह कहना सही है दिक न्यू कोरबा अस्पताल में मृतक दिकतने दि(cid:5)न भतR रहा और उसका ईलाज चला यह मुझे नहीं मालूम।” 24. A careful perusal of the postmortem report (Ex.P/53) coupled with the aforesaid statement of Dr. R.K. Divya (PW-23) would show 27 that except injury Nos.1 & 2, all the injuries, which have been inflicted to the deceased- Sunil Singh, were simple in nature and not sufficient to cause death. Further, Dr. R.K. Divya (PW-23) opined that the cause of death of the deceased- Sunil Singh is held to be homicidal in nature. The learned trial Court after appreciating the aforesaid postmortem report (Ex.P/53) and the statement of Dr. R.K. Divya (PW-23) came to the conclusion that the death of the deceased was homicidal in nature. Even otherwise, learned counsels appearing for the accused- appellants herein have also not seriously disputed the aforesaid finding of the learned trial Court regarding death of deceased- Sunil Singh being homicidal in nature. Accordingly, in view of such undisputed fact and further taking into consideration the postmortem report (Ex.P/53) and the statement of Dr. R.K. Divya (PW-23), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceased- Sunil Singh was homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Consequently, we hereby affirmed the said finding recorded by the learned trial Court holding the death of deceased- Sunil Singh to be homicidal in nature. Regarding Question No.(ii) 25. In order to answer this question, it would be relevant first to notice Section 141 of IPC, which defines “unlawful assembly” as under: 28 “141. Unlawful assembly.—An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is- (First)— xxxx; (Second)— xxx; (Third)— To commit any mischief or criminal trespass, or other offence; or (Fourth)— xxx; (Fifth)— xxxx.”” 26. Section 141 of IPC states that an “unlawful assembly” is an assembly of five or more persons, if their common object is to commit mischief, criminal trespass or any other offence. The Constitution Bench of the Supreme Court in the matter of Mohan Singh and another vs. State of Punjab reported in AIR 1963 SC 174 held that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. In other words, it is one of the essential condition of an unlawful assembly that its membership must be five or more. The assembly must consist of five or more persons having one of the five specified objects as their “common object”. Further, their Lordships while dealing with as to the applicability of Section 149 of IPC in such case held that it is necessary to bear in mind the several categories of cases which come before the Criminal 29 Courts for their decision. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves those charge against all of them it is very clear that Section 149 IPC can be invoked. 27. Since all the convicted accused-appellants have been convicted for offence under Sections 307, 302 and 427 of IPC with the aid of Section 149 of IPC, it is relevant to notice Section 149 of IPC here, which reads as under: “149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” A careful perusal of aforesaid provision would show that following ingredients are required to be established in order to convict an accused person for offence under Section 149 of IPC: (i) there must be an unlawful assembly; (ii) Commission of an offence by any member of an unlawful assembly and (iii) Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed. 28. In the present cases, we are required to consider whether the 30 accused-appellants have constituted an unlawful assembly in terms of Section 141 of IPC and said assembly had common object to cause hurt to the complainant party and the act of the accused-appellants was done to accomplish the said common object of the unlawful assembly and it was within their knowledge that the offence is likely to be committed in prosecution of said common object and, in furtherance thereof, committed murder of the deceased- Sunil Singh making them liable for having committed offence under Section 302/149 of IPC and further caused grievous hurt to injured persons, namely, Bhanu Pratap Khunte (PW-1) and Rajendra Kumar Khunte (PW-3) making them liable for having committed offence under Sections 307/149 of IPC on two counts. 29. In order to answer the question, it would be appropriate to notice the charges framed against each of the accused-appellants, which states as under :- Sl. No. 1. Name of the Accused Charges Framed Divyanshu Mishra (A-1) Under Sections 148, 294, 506 Part-II, 307/149 (two counts), 302/149 & 427/149 of the IPC 2. Pradeep Kumar Sarthi Under Sections 148, 294, 506 (A-2) Part-II, 307/149 (two counts), 302/149 & 427/149 of the IPC 3. Rakesh Das (A-3) Under Sections 148, 294, 506 Part-II, 307/149 (two counts), 31 4. Devendra Kumar (A-5) Under Sections 148, 294, 506 302/149 & 427/149 of the IPC Part-II, 307/149 (two counts), 302/149 & 427/149 of the IPC 5. Rajesh Sahu (A-7) Under Sections 148, 294, 506 Part-II, 307/149 (two counts), 302/149 & 427/149 of the IPC 6. Rakesh Kumar Sahu Under Sections 148, 294, 506 alias Pintu Sahu (A-8) Part-II, 307/149 (two counts), 7. Rahul Das (A-9) Under Sections 148, 294, 506 302/149 & 427/149 of the IPC Part-II, 307/149 (two counts), 302/149 & 427/149 of the IPC 8. ABC (A-1 (juvenile)) Under Sections 148, 294, 506 Part-II, 307/149 (two counts), 302/149 & 427/149 of the IPC 9. XYZ (A-2 (juvenile)) Under Sections 148, 294, 506 Part-II, 307/149 (two counts), 302/149 & 427/149 of the IPC 30. Thus, the charges framed by the trial Court against the accused- appellants would show that common object of the unlawful assembly so constituted was to cause murder of the deceased Sunil Singh. 31. The learned trial Court while answering the issue particularly with regard to applicability of Section 149 of IPC for formation of unlawful assembly with common object held that on the eve of Dushera festival, some cultural programme had taken place and the accused party made some comments to the women of the village, which was objected by the complainant party and on 32 account of which, some quarrel took place between the accused- appellants and the complainant party and that was the reason for constitution of unlawful assembly by the accused-appellants herein and their common object of accused-appellants for composing unlawful assembly was to inflict hurt to the complainant party. 32. Now turning to the facts of the instant cases, it is quite vivid that in the instant cases, 12 accused persons were charged by the prosecution in the charge-sheet filed before the Court below for composing unlawful assembly. Bhanu Pratap Khunte (PW-1) who is injured eye-witness to the incident himself has lodged the First Information Report (Ex.P/53) mentioning the names of six accused persons, but the names of other seven accused persons have been subsequently added in his 161 Cr.P.C. statement as well as the Court statement. 33. On a pointed query being made from the counsel for the obejctor about subsequently adding of names of rest of the accused persons, he failed to given any explanation because the injured witness Bhanu Pratap Khunte (PW-1) who himself lodged the First Information Report (Ex.P/53) mentioning the names of six accused persons, upon which, one has not been put to trial and other names were subsequently added in his 161 Cr.P.C. statement and the Court statement to falsely implicated them in the crime in question. 34. The learned trial Court after considering the testimonies of eye- 33 witnesses/injured witnesses, namely, Bhanu Pratap Khunte (PW- 1), Mrigesh Kumar Sahu (PW-2) and Rajendra Kumar Khunte, clearly came to the conclusion that except 3 accused-appellants who have been acquitted, all were the members of the unlawful assembly and their common object was to cause hurt to the complainant party on account of some comments to be passed during the celebration of Dushera. Even otherwise, it is an admitted fact available on record that in the instant cases, only 6 persons were named in the FIR (one Rahul Sarthi has not been tried by the trial Court) and on the basis of their 161 Cr.P.C. statements, other 7 were prosecuted. Thus, from the statement of eye-witnesses and from the documents i.e. FIR (Ex.P/53), it has been proved that only 5 accused persons constituted unlawful assembly on the date of offence, whose name has been mentioned in the FIR (Ex.P/53). 35. In the instant cases, the learned trial Court after considering the fact that there was a cultural programme in the village on the eve of Dushera festival held that the common object of the unlawful assembly constituted by 12 accused-appellants herein, namely, was to cause hurt to the members of the complainant party and, in furtherance of said common object, all accused-appellants were armed with deadly weapons like G.I. pipe, club, wooden stick and baseball bat have inflicted blow/injury on deceased- Sunil Singh and further caused grievous hurt/injuries to Bhanu 34 Pratap Khunte (PW-1) and Rajendra Kumar Khunte (PW-3) and no overt act has been established/proved against the remaining 06 accused-appellants, namely, Akash Das, Nitesh Das and Indra Kumar Yadav as they were only present on the spot as member of said unlawful assembly and it was not the common object of the said unlawful assembly to cause murder of the deceased- Sunil Singh. 36. Bhanu Pratap Khunte (PW-1) has deposed in his evidence that on the night of October 8, 2019, he returned home after watching Dushera celebrations and went to sleep after dinner. His younger brother Rajendra Khunte gone to watch the celebrations with his friends. At about 12:40 AM, his brother called and informed him that 4-5 boys were gathered near Lalit's shop in Premnagar, abused and threatened to beat him and he asked to come to the spot immediately. Thereafter, he along with his friend Sunil Singh went to the spot where they saw 15-20 boys, including the absconding accused Rakesh Sahu, fled away from the spot. Sunil and he stopped near the Community center and talking when the accused including Rajesh Sahu, Divyanshu Mishra, Rahul Sarathi, Rahul Das, Rakesh Das, and Rakesh Sahu came on motorcycles, carrying sticks, iron pipes, and baseball bats assaulted Mrigesh Sahu, who was already present at the spot. He and his friend Sunil intervened, but the accused threatened them to kill as also assaulted them as well. Rajesh Sahu assaulted Mrigesh with a baseball bat, while Divyanshu Mishra 35 assaulted Sunil with an iron pipe. The other accused also joined and assaulted them with the help of sticks and pipes. He further deposed that due to severe beating, Mrigesh and Sunil fell unconscious at the spot and thereafter, some people including Basant Rathaur, Dhananjay Jangde, and Bhagirathi Rathaur, came to the spot and they took them to Vikasnagar Hospital in Scorpio, where they referred to New Korba Hospital for further treatment. Sunil succumbed to the injuries on 09.10.2019. He had given report at Kusmunda police station, later, written report was lodged, based upon which, FIR (Ex.P/3) was registered. 37. Mrigesh Kumar Sahu (PW-2) and Rajendra Kumar Khunte (PW- 3) has deposed in similar line and corroborated the statement of Bhanu Pratap Khunte (PW-1). 38. Accordingly, considering the evidence available on record, including the testimonies of eye-witnesses/injured witnesses, namely, Bhanu Pratap Khunte (PW-1), Mrigesh Kumar Sahu (PW-2) and Rajendra Kumar Khunte (PW-3) and in view of above principles of law laid by their Lordships of Supreme Court in above mentioned judgments, we are of the considered opinion that the learned trial Court is absolutely justified in holding that the common object of the unlawful assembly constituted by the accused-appellants herein namely, Rakesh Das (A-3), Rajesh Sahu (A-7), Rakesh Kumar @ Pintu Sahu (A-8), Rahul Das (A-9) and Divyanshu Mishra (A-1) was to cause hurt to the complainant party and not to commit murder of deceased- Sunil Singh, as said 36 finding is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding recorded by the learned trial Court. 39. In view of the statements of injured/eye-witnesses, namely, Bhanu Pratap Khunte (PW-1), Mrigesh Kumar Sahu (PW-2) and Rajendra Kumar Khunte (PW-3) as well as considering the contents of the First Information Report (Ex.P/3), we are of the opinion that the appellants, namely, Pradeep Kumar Sarthi (A-2), Devendra Kumar (A-5), ABC (A-1 (juvenile)) and XYZ (A-2 (juvenile)) were implicated in the crime only on the basis of statement recorded under Section 161 Cr.P.C. and before the trial Court of the complainant/injured Bhanu Pratap Khunte (PW-1), which goes to show that their naming appears to be afterthought and subsequent by Bhanu Pratap Khunte (PW-1), who lodged the First Information Report (Ex.P/53) wherein he named only 6 persons, out of which, one has not put to trial and not others. As such, finding of trial Court with regard to these accused persons, is not correct and their names have not been mentioned in FIR (Ex.P/3) or merg intimation (Ex.P/42 and Ex.P/43). The same is hereby set-aside. Regarding Question No.(iii) 40. Now the question for consideration before us would be whether learned trial Court is justified in convicting all 12 accused- appellants herein for offence under Sections 302 and 307 (two 37 counts) of IPC with the aid of Section 149 of IPC, though it is proved that only six accused persons named in the FIR, namely, Rakesh Das (A-3), Rajesh Sahu (A-7), Rakesh Kumar @ Pintu Sahu (A-8), Rahul Das (A-9) and Divyanshu Mishra (A-1) as also one Rahul Sarthi (who has not been tried by the trial Court) and other accused persons were only present as members of unlawful assembly and no overt act has been alleged against them and no specific finding has been recorded by the learned trial Court qua sharing of common object against the aforesaid 4 accused-appellants, namely, Pradeep Kumar Sarthi (A-2), Devendra Kumar (A-5), ABC (A-1 (juvenile)) and XYZ (A-2 (juvenile)) with remaining 5 accused-appellants (i.e. member of unlawful assembly) to cause murder of the deceased- Sunil Singh and inflict simple hurt to other injured witnesses/persons. 41. The Supreme Court in the matter of Madan Singh vs. State of Bihar reported in (2004) 4 SCC 622 held that mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he shared the same or was actuated by that common object and that object is one of those set out in Section 141 IPC. Where common object of unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149 IPC. 42. A careful perusal of the evidence available on record, particularly the statement of three eye-witnesses/injured witnesses, namely, Bhanu Pratap Khunte (PW-1), Mrigesh Kumar Sahu (PW-2) and 38 Rajendra Kumar Khunte (PW-3) would show that 5 accused- appellants, namely, Rakesh Das (A-3), Rajesh Sahu (A-7), Rakesh Kumar @ Pintu Sahu (A-8), Rahul Das (A-9) and Divyanshu Mishra (A-1) were present on the spot and armed with deadly weapons and appellants-accused persons namely, Pradeep Kumar Sarthi (A-2), Devendra Kumar (A-5), ABC (A-1 (juvenile)) and XYZ (A-2 (juvenile)) were not named in the FIR, but still fact remains that all these accused-appellants were present on the spot on the date of incident as member of unlawful assembly alongwith other accused persons. 43. It is reflected from the record that 4 accused-appellants, namely, Pradeep Kumar Sarthi (A-2), Devendra Kumar (A-5), ABC (A-1 (juvenile)) and XYZ (A-2 (juvenile)) were not named in the FIR (Ex.P/3), but their presence have been established by the testimonies of eye-witnesses/injured witnesses, Bhanu Pratap Khunte (PW-1), Mrigesh Kumar Sahu (PW-2) and Rajendra Kumar Khunte (PW-3) as member of unlawful assembly and neither they have assaulted deceased- Sunil Singh nor any specific overt act has been alleged against them and, it is also clearly established that these 4 accused-appellants, namely, Pradeep Kumar Sarthi (A-2), Devendra Kumar (A-5), ABC (A-1 (juvenile)) and XYZ (A-2 (juvenile)) have not shared common object/intention and particularly it is not proved that these appellants knew that offence of murder is likely to be committed by remaining 5 accused-appellants, namely, Rakesh Das (A-3), 39 Rajesh Sahu (A-7), Rakesh Kumar @ Pintu Sahu (A-8), Rahul Das (A-9) and Divyanshu Mishra (A-1) who were armed with weapons like club, G.I. pipe and baseball bat and assaulted deceased- Sunil Singh and other injured persons. 44. By applying the rule of caution as has been held by their Lordships of Supreme Court in the aforementioned matters, it would be unsafe to convict these 4 accused-appellants, namely, Pradeep Kumar Sarthi (A-2), Devendra Kumar (A-5), ABC (A-1 (juvenile)) and XYZ (A-2 (juvenile)) for offence under Sections 302, 307 (two counts) and 427 of IPC with the aid of Section 149 IPC as also under Sections 148 of IPC and their conviction for aforesaid offences is liable to be set aside. 45. Now the question remains whether conviction of remaining 5 accused-appellants, namely, Rakesh Das (A-3), Rajesh Sahu (A- 7), Rakesh Kumar @ Pintu Sahu (A-8), Rahul Das (A-9) and Divyanshu Mishra (A-1) for offence under Sections 148, 307/149 (two counts) 302/149 and 427/149 of IPC is justified ? 46. As has been found established by the learned trial Court and affirmed by this Court above that the common objection of the accused-appellants was to cause hurt to the members of the complainant party. Further, it is duly established on record that all these 5 accused-appellants were found to be armed with following weapons: Sl. Name of accused and his Property Seized vide 40 No. memorandum statement vide Exhibit Exhibit 1. Divyanshu Mishra (Ex.P/10) G.I. Pipe and Jeans 2. Rakesh Das (Ex.P/33) Club (Ex.P/34) (Ex.P/15) 3. Rajesh Sahu (Ex.P/97) Baseball bat (Ex.P/99) 4. Rakesh Kumar alias Pintu Club (Ex.P/98) Sahu (Ex.P/96) 5. Rahul Das (Ex.P/13) Club (Ex.P/17) 47. In the instant case, deceased- Sunil Singh, as per his postmortem report (Ex.P/53) duly proved by Dr. R.K. Divya (PW-23), had received total 6 injuries, out of which injuries No.1 & 2 which was incised wound on his head was grievous in nature and sufficient to cause his death. Moreso, the said injuries can only be caused by way of a hard and blunt weapon and, pursuant to whose memorandum statement of accused-appellant Divyanshu Mishra (A-1) (Ex.P/10), G.I. pipe has been seized vide (Ex.P/15) and, similarly, by way of memorandum statements of accused- Rakesh Das (A-3), Rajesh Sahu (A-7), Rakesh Kumar alias Pintu Sahu (A-8) and Rahul Das (A-9), club, baseball bat, club and club have been seized vide Exs.P/34, P/99, P/98 and P/17 respectively, and they participated in the occurrence in which deceased- Sunil Singh died and other injured persons, namely, Bhanu Pratap Khunte (PW-1), Mrigesh Kumar Sahu (PW-2) and Rajendra Kumar Khunte (PW-3) received grievous injuries. Admittedly, 41 injuries No.1 & 2 by which deceased- Sunil Singh suffered death can be caused only by hard and blunt object. Therefore, by no stretch of imagination it can be held that the common object of the unlawful assembly is to cause murder of deceased- Sunil Singh. But, fact remains that it was the common object of the said unlawful assembly to cause hurt to the complainant party and, in prosecution of said common object, these 5 accused-appellants were armed with weapon, which finding recorded by the learned trial Court has been affirmed by us hereinabove. 48. Finally turning to the facts of the instant cases in light of the judgments rendered by the Hon’ble Supreme Court, on the eve of Dushera festive, some comments were passed by the accused party to some women and on account of which, a quarrel took place between the accused party and complainant party in which two grievous injuries have been inflicted on the head of deceased- Sunil Singh, which has been proved to be a fatal injury and deceased- Sunil Singh died because of it and the remaining 4 injuries have been found to be not endangered to life, as such, there was an intention to cause death/murder of the deceased- Sunil Singh on the part of the accused-appellants as also they have assaulted the injured witnesses, namely Bhanu Pratap Khunte (PW-1), Mrigesh Kumar Sahu (PW-2) and Rajendra Kumar Khunte (PW-3), specially to that of 5 accused-appellants, namely, Rakesh Das (A-3), Rajesh Sahu (A-7), Rakesh Kumar @ Pintu Sahu (A-8), Rahul Das (A-9) and Divyanshu Mishra (A-1) 42 were present on the spot and armed with deadly weapons and participated in the occurrence. Had there been any common object on the part of the accused-appellants to cause death of the deceased- Sunil Singh as well as to the injured witnesses, namely, Bhanu Pratap Khunte (PW-1), Mrigesh Kumar Sahu (PW-2) and Rajendra Kumar Khunte (PW-3) on their vital parts of the body, the trial Court convicted the accused-appellants for offence under Sections 148, 307/149 (two counts), 302/149 and 427/149 of the IPC. 49.
Decision
In view of the above, we are of the considered opinion that the learned trial Court is absolutely justified in convicting the accused-appellants, namely Rakesh Das (A-3), Rajesh Sahu (A- 7), Rakesh Kumar @ Pintu Sahu (A-8), Rahul Das (A-9) and Divyanshu Mishra (A-1) for offence under Sections 148, 307/149 (two counts), 302/149 and 427/149 of the IPC for causing murder of deceased- Sunil Singh as also causing grievous injuries to the injured/eye-witnesses, namely Bhanu Pratap Khunte (PW-1), Mrigesh Kumar Sahu (PW-2) as well as Rajendra Kumar Khunte (PW-3). Conclusion:- (i) CRA Nos.723/2024, 771/2024, 857/2024 and 1162/2024 filed on behalf of the appellants, namely, Pradeep Kumar Sarthi (A-2), Devendra Kumar (A-5), ABC (A-1 (juvenile)) and XYZ (A-2 (juvenile)) are hereby 43 allowed as the prosecution has failed to prove its case beyond reasonable doubt against these appellants for committing the aforesaid crime and as such, the appellants are entitled for acquittal by giving him benefit of doubt. The impugned judgments 19.03.2024 and 21.03.2024 insofar as the appellants, namely, Pradeep Kumar Sarthi (A-2), Devendra Kumar (A-5), ABC (A-1 (juvenile)) and XYZ (A-2 (juvenile)) are set aside. The appellants are acquitted from all the charges leveled against them. It is stated that the appellants are in jail. They be released forthwith, if not required in any other case. (ii) CRA Nos.743/2024 and 946/2024 filed on behalf of the appellants, namely Rakesh Das (A-3), Rajesh Sahu (A- 7), Rakesh Kumar @ Pintu Sahu (A-8), Rahul Das (A- 9) and Divyanshu Mishra (A-1) questioning the findings recorded by the learned trial Court for offence punishable under Sections 148, 307/149 (two counts), 302/149 and 427/149 of the IPC are hereby dismissed. They are stated to be in jail and they shall serve out the sentence awarded by the trial Court. 50. Keeping in view the provisions of Section 437-A Cr.P.C. (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellants, namely Pradeep Kumar Sarthi, Devendra Kumar, ABC and XYZ is directed to forthwith furnish a personal bond in 44 terms of Form No.45 prescribed in the Code of Criminal Procedure, 1973 or Bhartiya Nagarik Suraksha Sanhita, 2023 of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 51. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants namely Rakesh Das (A-3), Rajesh Sahu (A-7), Rakesh Kumar @ Pintu Sahu (A-8), Rahul Das (A-9) and Divyanshu Mishra (A-1) are undergoing their jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 52. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action forthwith. Sd/- Sd/- (Ravindra Kumar Agrawal) Judge (Ramesh Sinha) Chief Justice Anu