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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
T.P. Sharma and Chandra Bhushan Bajpai, JJ.
Phodol - Appellants
Vs.
State of C.G. - Respondent
Criminal Appeal Nos. 598 and 599 of 2009
Decided On: 13.05.2014
Indian Penal Code - Sections 147, 148, 302 - causing fatal injuries – imprisonment - Evidence adduced – Offence of Murder - Formation of unlawful assembly having its common object and knowledge of common object are matters of fact. As held in the matters of Bhargavan & Ors. vs. State of Kerala JT 2003 (9) SC 513, Badal Murmu & Ors. vs. State of West Bengal2014 AIR SCW 1137, Eknath Ganpat Aher & Others vs. State of Maharashtra & Others 2010 (3) CGLJ 57 (SC), Mohansingh and others vs. State of M.P. 2005 (4) MPLJ 183, Hallu and others vs. State of M.P. AIR 1974 SC 1936 and Pandurang Chandrakant Mhatre & Ors. vs. State of Maharashtra (2009) 10 SCC 773 there cannot be straight-jacket formula for arriving at a finding as to who was the member of unlawful assembly and for what object the unlawful assembly was formed. An unlawful assembly may initially be formed for achieving any object described in Section 141 of the IPC and at subsequent stage, the object of certain members of unlawful assembly may change, in that circumstance, the unlawful assembly may be of more than one part especially in the light of its common object as it is a matter of common knowledge that normally, the prosecution would not be in a position to lead evidence to show that firstly the assembly was gathered, they discussed the matter and decided their object, thereafter, they public the same as to what was their object and thereafter, proceed for achieving that object. It can be inferred and proved by cogent evidence – Held, In the present case, two persons were holding battleaxe and one was holding kudari. Deceased were armless and they were not holding any weapon. One by one three persons have been killed. Association of the appellants at the time of causing such homicidal death of three persons one by one and holding weapons by itself is sufficient for drawing inference that deceased appellant Phodol @ Duryodhan, deceased appellant Mohanlal @ Jagru, appellant Dashrath @ Jolo, appellant Satyanarayan & appellant Anand have formed unlawful assembly, they were armed with deadly weapons, their common object was to kill and commit murder of their rival group namely Chhedilal, Bablu & Bhuru @ Parmanand and also to cause fatal injuries to Birichram (PW-19) and in furtherance of common object of the assembly, members of the unlawful assembly have caused homicidal death amounting to murder of Chhedilal, Bablu & Bhuru @ Parmanand and also caused fatal injuries to Birichram (PW-19). Their specific and active participation or overt-act is not required to be proved by the prosecution - Evidence reveals that appellants Dujmati & Triveni Bai (appellants No. 4 & 5 respectively in Cr. A. No. 599/2009) were helpless spectators at the time of incident as members of the appellants family. Even otherwise, in Indian culture, society and system, active participation in commission of murder of more than one person that too by battleaxe by their women family members is not common and natural unless it is proved specifically. On close scrutiny of evidence, we do not find any credible, clinching and reliable evidence against appellants – Appeal Allowed
T.P. Sharma, J.
1. Cr. A. Nos. 598/2009 & 599/2009 filed against judgment dated 10-6-2009 passed by the Additional Sessions Judge, Janjgir in Sessions Trial No. 162/2008 are being disposed of by the common judgment. Appellant No. 1 in Cr. A. No. 598/2009 namely Phodol @ Duryodhan and appellant No. 2 in Cr. A. No. 599/2009 namely Mohan Lal died and the appeals so far as they relate to them, abate.
2. By filing two criminal appeals, 8 convicted appellants have challenged legality & propriety of the judgment of conviction & order of sentence dated 10-6-2009 passed by the Additional Sessions Judge, Janjgir, in Sessions Trial No. 162/2008, whereby and whereunder learned Additional Sessions Judge after holding the appellants guilty for forming unlawful assembly armed with deadly weapons having its common object to commit murder of Chhedilal, Bablu & Bhuru @ Parmanand and attempt to commit murder of Birichram in furtherance of common object of the assembly and for committing murder of Chhedilal, Bablu & Bhuru @ Parmanand and causing fatal injuries to Birichram, convicted the appellants under Sections 147, 148, 302 read with Section 149, 302 read with Section 149, 302 read with Section 149 & 307 read with Section 149 of the IPC and sentenced them to undergo RI for two years & pay fine of Rs. 500/- each, in default additional RI for two months; RI for three years & pay fine of Rs. 500/- each, in default additional RI for two months; imprisonment for life & pay fine of Rs. 1,000/- each, in default additional RI for three months; imprisonment for life & pay fine of Rs. 1,000/- each, in default additional RI for three months; imprisonment for life & pay fine of Rs. 1,000/- each, in default additional RI for three months; and RI for seven years & pay fine of Rs. 1,000/- each, in default additional RI for three months, respectively.
3. Conviction is impugned on the ground that without there being an iota of evidence, the trial Court has convicted and sentenced the appellants and thereby committed an illegality.
4. As per case of the prosecution, on 3-8-2008 at about 1.30 p.m. Injured Birichram (PW-19) went to the house of Bhojram for inviting him for sixth day birth of child (chhati), the appellants who are neighbours of Bhojram were present in front of their house, they challenged Birichram (PW-19) that they will kill him, Birichram requested the appellants not to abuse and assault, then deceased appellant Phodol @ Duryodhan who was holding battleaxe, appellant Dashrath @ Jolo who was also holding battleaxe, deceased appellant Jagru who was holding kudari and remaining who were holding stick assaulted him. Chumbai (PW-14) was coming towards the spot along with Gayatri Bai (PW-17). They tried to intervene in the incident. At the same time, unfortunate deceased Chhedilal was coming towards his field, he also requested the appellants then the appellants after leaving Birichram (PW-19), assaulted Chhedilal. Deceased appellant Phodol @ Duryodhan crushed the head of Chhedilal by blunt part of battleaxe. Unfortunate deceased Bhuru @ Parmanand also came to the spot, the appellants also assaulted him and also crushed his head. Another unfortunate deceased Bablu also came to the spot to intervene and they also assaulted Bablu. Phodol crushed his head. Dilip Kumar Yadav (PW-20) & Rajesh Yadav (PW-21) came to the spot. The appellants' also assaulted them. They badly injured Dilip Kumar Yadav who went to the house. They killed Chhedilal, Bablu & Bhuru @ Parmanand on the spot.
5. Chumbai (PW-14) went to the village and told the incident to Bedram Yadav (PW-15) who telephoned to Police Outpost: Naila. Police reached to the spot whom Chumbai (PW-14) lodged dehati nalishi vide Ex. P-57A. Finally, FIR was registered vide Ex. P-58. She also lodged dehati morgue vide Exs. P-59, P-61 & P-63. Finally, morgue was also recorded vide Exs. P-60, P-62 & P-64. After summoning the witnesses vide Exs. P-65, P-67, P-2, P-3 & P-4, the Investigating Officer prepared in
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