CRIMINAL APPEAL No. ^ I'^^i 1 v. D"tnctsur9l"<c's'>

SB: Hon'ble Shri Goutam Bhaduri. J. Present: Shri A.K.Prasad, Advocate for the appellant. Shri Rajendra Tripathi, Panel Lawyerforthe State. JUDGMENT (Passed on 06th day of December, 2013)

1. This is an appeal against the judgment dated 10.11.2010, passed by the Second Additional Sessions Judge, F.T.C., Surajpur, District Surguja, Sessions Trial No.69/2009, whereby the appellant was convicted under Section 148, 324, 323 read with Section 149 of IPC. The appellant has been sentenced to impose a fine of Rs.1000/- under Section 148of IPC, in absence of payment offine, one month S.l. Under Section 324 of IPC, a fine of Rs.1000/- has been imposed and in default of payment of fine, one month S.l. Further, the conviction is ordered for under Section 323 read with Section 149 of IPC and fine of Rs.500/- is imposed and in absence of payment offine, 15 days S.l. is imposed.

2. The prosecution story, in brief, is that on 20.10.2007, when Ravindra Kumar Jha (PW-5) went to see the Dashera exhibition and reach'ed near Bengali Club, the accused Shani Nepali, Gyanu Bagga, Rakesh Yadav, Rajay Giri, Tapan Viswas, Sanjeev & Billa @ Dharmendra Yadav came there, at that time, they were holding Razor BIade, Talvar, Bat of Baseball and Punch, which is being used in the Wrist. They asked the complainant that whether he is going to give the evidence in case of Vikash ? at that time, Ravindra has said that yes, he will adduce the evidence. Thereafter, PageZ in reaction to that, Gyanu Bagga assaulted Ravindra Kumar by way of Razor Blade over the right eyebrow on his head and Shani Nepali assaulted over his hand. When injured cried for help, Rajesh Jain reached there to save him, at that time also, Gyanu Bagga, Shani Nepali quarreled with Rajesh Jain and assaulted them. Thereafter, the mobile model No.1110 of Ravindra was snatahed by Shani and Tapan Viswas snatahed the Chain of Rajesh Jain and finger ring was also snatched by Sanjeev. Thereafter, they fled the scene. The matter was reported to the Vishrampur Thana by Ex.P-9/FIR. Subsequent to it, Ravindra Kumar Jha was subjected to medical test by Ex.P-4 and Rajesh Jain was also subjected to medical test by Ex.P-3. The statement ofthe witnesses were recorded and the accused were apprehended. During the course oftrial, the accused appellant denied the charges and claimed to be tried. The prosecution in this case had examined 10 witnesses and after entire trial, convicted the accus.ed as afore-said. Initially the charges were framed under Section 394 & 395, which were held not proved by the trial Court and the appellants were convicted under the aforesaid section, hence this appeal. The instant appeal is filed only by one of the accused/appellant namely Rakesh Yadav, while the others have paid the fine. Learned counsel appearing for the appellant submits that in instant case in hand, this appellant has been falsely roped in, who had not participated in the assault itself and during the evidence no whisper has been made and there is no cogent evidence has come against this accused and no specific evidence is attributed to this appellant. He further submits that mere presence of the appellant with others would not be sufficient and there has to be sufficient evidence to show the accused concern intended and knew about likelihood of commission of offence in question. He f' ; "is I'l f ;\ Page3 further submits that since the accused appellant altogether were present in a mela side wherein this appellantwas also present, no common object was there to inculpate this accused with the offence. He stated further that there is no recovery of weapon was made by any of the appellant and therefore, the conviction is completely wrong under Section 148 of IPC too. Per contra, learned State counsel opposes to it and submits that the appellant was present in the crime was seen and he was also part of the assembly whereby the other accused were assaulted, as such, the order is well merited and do not require any interference by this Court.

7. 1 have heard the learned counsel appearing for the parties and perused the evidence on record. The injured in this case Ravindra Kumar Jha is examined as PW-5 and Rajesh Jain is examined as PW-7.

9. The injured Ravindra Kumar Jha (PW-5) in his statement has stated that on 20.10.2007, when he went to see Dandiya during the festival of Dashera at hospital ground, Bishrampur, at that time, near Bengali Club, Shani Nepali, Janu Bagga, Rakesh Yadav, Sanjeev, Ranja Giri, Tapan Viswas, Sanjeev Das were holding Sword, Bat of Bat-ball, Hockey and Razor Blade etc. and were standing on the road and he was intercepted. Gagan Deep Bagga has asked a question that whether he is going to give evidence in case of Vikash ? The witness states that in answer to it, he had given an affirmative statement, at time, Gagan Deep Bagga assaulted him by way of Razor Blade on his right eyebrow. Thereafter, Shani Nepali also assaulted him by Bat of Bat-ball whereby he sustained injury on his finger. He has further stated that all the other accused had assaulted him by way of hand and fist. Then he states that his Nokia phone was also looted. He further states that Rajesh Jain tried to :\ intervene to save him, at that time, Gagan Deep assaulted him on his head by way of Bat and the Chain and finger ring of Rajesh Jain was also snatched.

10. The witness was cross examined in detail. In para 4, he has stated that he knows Vikash Singh from 4-5 years old. There had been assault on him, which was seen by this witness and was a witness in the case. He has further stated that while lodging report, he had not disclosed that which particular accused was holding a particular weapon, In para 7 of the statement, this witness has stated that he has disclosed the fact that Gagan Deep had assaulted by way of Razor Blade. With respect to this accused Rajesh Yadav only omnibus statement has been made that he along with other accused had beaten him by hand and fist. This witness confirms the presence of Rakesh Yadav on the scene of assault.

11. The other injured is Rajesh Jain (PW-7). He had stated that in the year 2007, when he heard the noise near the hospital ground while watching Dandiya, he went there. This witness further deposed that the accused were committjng marpeet with Ravindra Jha. The witness further states that when he tried to intervene and save Ravindra Jha, at that time, he saw Gagan Deep assaulted Ravindra over his right eyebrow by way of Razor Blade and Shani @ Rohit assaulted Ravindra by means of Baseball. He further stated that when he tried to save him, Gagan Deep also assaulted him by way Baseball on his head and thereafter, Shani tried to assault him by way of Razor knife. He further states that thereafter Sanjeev has snatched his mobile.

12. The witness in his cross examination in para 7 has stated and admitted the suggestions that number of reports have been made against this witness at Vishrampur Police Station, wherein, cases have been registered. However, had further volunteered that in all the cases, -a.. Page5 compromise were effected. He also admitted the fact that he had assaulted Police Constable for which the cases are registered and was pending. On examination of entire statement, it reveals that, in respect of this appellant namely Rakesh, he has not named with specific overt act and only an omnibus statement has been made about the presence.

13. The Doctor in this case has been examined as PW-3. The Doctor has stated that he has examined Rajesh Jain and found these injuries : (i) Injury was found on the left side of his head. Lacerated wound in the left side ofthe skull ad-measuring 3 x %x % cm. (ii) Abrasion on left elbow and (iii) Pain in the left shoulder. According to opinion of the Doctor, the injuries were caused by hard and blunt object within 24 hours duration. The said report was marked as Ex.P-3.

14. The Doctor (PW-3) has also examined Ravindra Jha and found these injuries : (i) Incise wound in the right eyebrow, in the right side, which was ad-measuring Vi cm x % cm x 2 cm, (ii) Lacerated wound on the right forehead ad-measuring 1 x % cm and % x % cm. (iii) Lacerated wound on the right ring finger ad-measuring 4 x %x % cm. (iv) Incise wound on the left side of the eye % x 1A x 0.2 cm. (v) Abrasion in front of right ear ad- measuring % x % cm. (vi) Abrasion on the right side of the skull ad- measuring % x % cm. (vii) Abrasion on right leg 1 x % cm. According to the Doctor, except the injury No. (i) & (iv), all the injuries were caused by hard and blunt object while injury No. (i) & (iv) i.e. present over right eyebrow and in the side of left eye, were caused by sharp object. He had given a report, which was marked as Ex. P-4.

15. The Doctor has further stated that he had advised the X-ray for Rajesh and also Ravindra Jha. In respect of Rajesh, he has stated that the injury No.(iii) was simple in nature, which was marked in Ex.P-5; while in respect of Ravindra Jha, he has stated that in X-ray, no fracture was found and all Page6 \^ the injuries were of simple in nature. The X-ray report was marked as Ex. P-6.

16. Indisputably, no seizure ofweapon has been made by any ofthe accused in this case. When the question arises as to whether there was a common intention or knowledge to commit the offence by this appellant along with other. The Hon'ble Supreme Court in K.M.Ravi & Others v. State of Karnataka1 'in para 10 held as under: "10. ...............Mere presence or association with other members alone does not per se be sufficient to hold every liable for the offences committed by one of them criminal the others unless there was sufficient evidence on record to show that one such also intended to or knew the likelihood of commission of such an offending act. There seems to be no legally acceptable material to prove, in this case that all the accusod acted as members of an unlawful assembly, and except that they were found to be closely related nothing concrete to join them to connect with the murder of the deceased has come on record to attract the application ofSection 149 IPC." Furthermore, the Hon'ble Supreme Court in Debashis Daw & Others v. State of West BengaP in para 27 has held that in case where general allegations are made against number of accused, the Court has to categorically scrutinise the evidence, if the evidence is vague then the Court must not convict all the accused. The Court has held in para 27 as under: "27. It is true as held by this Court in Sherey v. State of U.P. that the courts have to be very careful in case where general allegations are made against a large number of persons and the courts should categorically scrutinise the the large number of evidence and hesitate to convict persons if the evidence available on record is vague.