Chattisgarh High Court
Virendra Korwa vs State Of Chhattisgarh on 16 November, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Acquittal Appeal No. 148 of 2016
State of Chhattisgarh through Station House Officer, Police
Station Saamripaat, Distt. Balrampur-Ramanujganj,
Chhattisgarh.
---Appellant
Versus
1. Jageshwar S/o Bigan Korwa, Aged about 30 years.
2. Laldeo Korwa S/o Bhairaw Korwa, Aged about 39 years.
3. Bhuisa Korwa S/o Bhairaw Korwa, Aged about 37 years.
4. Paras Korwa S/o Kishun Korwa, Aged about 21 years.
5. Virendra Korwa S/o Bhairaw Korwa, Aged about 26 years.
6. Antu Korwa S/o Bhairaw Korwa, Aged about 24 years.
7. Smt. Lalpati W/o Bhairaw Korwa, Aged about 38 years.
8. Smt. Amita W/o Virendra Korwa, Aged about 26 years.
Respondents No. 1 to 8, all are R/o Village Sabaag,
Pokhrapara, Police Station Saamripaat, Distt. Balrampur-
Ramanujganj, Chhattisgarh.
---Respondents
For Appellant/State :- Mr. Ashish Tiwari, G.A.
For Respondents 1 & 5 :- Mr. Amarnath Pandey, Advocate
Criminal Appeal No. 1622 of 2015
Jageshwar S/o Bigan Korwa, Aged about 30 years, R/o
Village Sabag, Pokhrapara, Police Station Samripat, Civil
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District Surguja and Revenue District Balrampur-
Ramanujganj, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through the Station House Officer,
Police Station Samripat, Distt. Balrampur-Ramanujganj,
Chhattisgarh.
---Respondent
For Appellant :- Mr. Amarnath Pandey, Advocate
For Respondent/State:- Mr. Ashish Tiwari, G.A.
Criminal Appeal No. 1524 of 2015
Virendra Korwa S/o Bhairav Korwa, Aged about 26 years,
R/o Village Sabag, Pokhrapara, Police Station Samripat,
Civil District Surguja and Revenue District Balrampur-
Ramanujganj, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through the Station House Officer,
Police Station Samripat, Distt. Balrampur-Ramanujganj,
Chhattisgarh.
---Respondent
For Appellant :- Mr. Amarnath Pandey, Advocate
For Respondent/State:- Mr. Ashish Tiwari, G.A.
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Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
16/11/2022
Sanjay K. Agrawal, J.
1. Since common question of law and fact is involved in this acquittal appeal as well as these two criminal appeals and they have been filed assailing the impugned judgment dated 23/09/2015 passed in Sessions trial No. 167/2012, therefore, they have been clubbed together, heard together and are being decided by this common judgment.
2. All the eight accused persons namely Jageshwar (A-1), Laldeo Korwa (A-2), Bhuisa Korwa (A-3), Paras Korwa (A-4), Virendra Korwa (A-5), Antu Korwa (A-6), Smt. Lalpati (A-7) and Smt. Amita (A-8) were charge-sheeted for offences punishable under Sections 148, 302/149, 201/149 of IPC and Section 4/5 of the Tonahi Pratadna Nivaran Act, 2005 (hereinafter, 'the Act of 2005') and after conducting a full- fledged trial in Sessions Trial No. 167/2012, learned Additional Sessions Judge, Ramanujganj, vide impugned judgment dated 23/09/2015 though acquitted all the accused persons for offences under Sections 148, 302/149 and 201/149 of IPC, however, convicted them for offence punishable under Section 4 of the Act of 2005 and sentenced to undergo rigorous imprisonment for 3 years with fine of Rs. 200/- each and in default of payment of fine, additional R.I. for 20 days and further convicted the 4 two accused persons namely Jageshwar (A-1) and Virendra Korwa (A-5) for offence punishable under Section 302 (two times) and sentenced them to undergo life imprisonment with fine of Rs. 200/- + Rs. 200/- each and in default of payment of fine additional R.I. for 40 days.
3. Acquittal Appeal No. 148 of 2016 has been preferred by the State against the impugned judgment so far as acquittal of all the accused persons for offences punishable under Sections 148, 302/149, 201/149 of IPC as well as Section 5 of the Act of 2005 is concerned. Criminal Appeals No. 1622/2015 and 1524/2015 have been preferred by appellants/accused persons namely Jagenshwar (A-1) and Virendra Korwa (A-5) respectively, for their conviction for offence punishable under Section 302 Prosecution story :-
4. Case of the prosecution, in brief, is that 8 accused persons identified Smt. Fulmaniya and Bheekhu Korwa as tonhi/tonha who practiced witchcraft and on 11/03/2012 at about 10 AM at village Sabag, Pokhrapaat which comes within the ambit of Police Station Samripat, they constituted an unlawful assembly armed with danda and laathi with a common object of causing death of Smt. Fulmaniya and Bheekhu Korwa and in furtherance of their common object, they assaulted and murdered Smt. Fulmaniya and Bheekhu Korwa and in order to screen 5 themselves, buried their bodies, and thereby, committed the aforesaid offences.
5. Further case of the prosecution is that Kamlesh (P.W.-1) registered merg intimation at Police Station Samripat vide Ex. P/2 on 12/03/2012 at 06:15 AM that on 11/03/2012 at about 8 AM, the accused persons had called a panchayat meeting in the village on the subject that deceased Smt. Fulmaniya and Bheekhu Korwa were harassing the people of the village by practicing witchcraft. Thereafter, the accused persons assaulted both of the deceased persons by hands, fists, laathis and dandas on the pretext that son of one Laldev had died due to their witchcraft and because of their practice, the children and elderlies of the village were also becoming unwell. On account of their assault, both Smt. Fulmaniya and Bheekhu Korwa succumbed to death pursuant to which the accused persons buried their dead bodies in the cemetery. On the basis of the said information, first information report was lodged against the accused persons vide Ex. P/1 and the wheels of the investigation started running. After reaching at the spot, the police officers exhumed their dead bodies and after conducting inquest vide Ex. P/7 and after necessary proceeding, sent the dead bodies for postmortem, which was conducted by Dr. Bhupesh Bhagat (P.W.-12), and as per the postmortem report (Ex. P/22), cause of death is neurogenic shock and nature of death is homicidal. Nazri naksha of the spot was 6 prepared vide Ex. P/4 and from the spot, plain soil as well as blood stained soil was seized vide Ex. P/25. After taking the accused persons into custody, their memorandum statements were recorded vide Ex. P/26 to P/32 and seizure of dandas and laathis was made from their possession vide Ex. P/33 to P/40, which were sent for chemical examination and the FSL report, though has been brought on record, but it has not been exhibited. After due investigation, all the eight accused persons were charge-sheeted for offences punishable under Sections 148, 302/149 and 201/149 of IPC and Section 4/5 of the Act of 2005 which was committed to the Court of Sessions for trial in accordance with law in which the accused persons abjured their guilt and entered into defence.
6. In order to bring home the offence, prosecution examined as many as 12 witnesses and exhibited 57 documents. The statements of the accused persons were recorded under Section 313 of CrPC wherein they denied guilt, however, they examined none in their defence.
7. Learned trial Court, after appreciating the oral and documentary evidence on record, though acquitted all the accused persons for offences punishable under Sections 148, 302/149, 201/149 of IPC and Section 5 of the Act of 2005, but convicted all of them for offence punishable under Section 4 of the Act of 2005 and also convicted two accused persons namely Jageshwar (A-1) and Virendra (A-5) for 7 offence punishable under Section 302 of IPC (two times) and sentenced them as aforesaid.
Submission of the parties :-
In Acquittal Appeal No. 148/2016 :-
8. Mr. Ashish Tiwari, learned State counsel appearing on behalf of the appellant/State, would submit that the trial Court is absolutely unjustified in acquitting all the respondents for offences punishable under Sections 148, 302/149 and 201/149 of IPC and Section 5 of the Act of 2005 as Kamlesh (P.W.-1), who is the eye-witness of the incident, has clearly supported the case of the prosecution in his statement before the Court and since all the accused persons were members of the unlawful assembly, even though overt act has not been found proved against some of the accused persons, they cannot be acquitted from the offence in question. They ought to have been subjected to constructive liability under Section 149 of IPC and they ought to have been convicted with the aid of Section 149 of IPC.
9. Mr. Amarnath Pandey, learned counsel for respondents No. 1 and 5, would submit that the trial Court has rightly acquitted the accused persons for the aforesaid offences with the aid of Section 149 of IPC as the prosecution has miserably failed to prove the ingredients of Section 149 of IPC that the accused persons had constituted unlawful assembly and they caused the death of the deceased 8 persons in furtherance of their common object, as such, the instant appeal deserves to be dismissed.
In Criminal Appeals No. 1622/2015 & 1524/2015 :-
10. Mr. Amarnath Pandey, learned counsel for both the appellants/accused persons, would submit that there is no evidence against the accused persons except for the self-
serving statement of Kamlesh (P.W.-1) and in his statement before the Court, he has not supported the case of the prosecution. Even otherwise, seizure of laathis made from Jageshwar (A-1) and Virendra (A-5) vide Ex. P/33 and P/37 respectively, has also not been proved in accordance with law as seizure witness namely Naleshwar Korwa (P.W.-7) has turned hostile and has not supported the case of the prosecution and the same has also not been accepted by the trial Court. Furthermore, though the said seized articles were sent for chemical examination, but the FSL report has been rendered insubstantial as no blood has been found on the said seized articles. Therefore, conviction of both of these accused persons namely Jageshwar (A-1) and Virendra (A-5) for offence punishable under Section 302 of IPC (two times) is liable to be set aside. In alternative, he would submit that at the best, the case of both of these accused persons would fall within Exception 4 to Section 300 of IPC and as such, their conviction be altered to either Part I or Part II of Section 304 of IPC and since they are in jail since 13/03/2012 i.e. for more than 10 years, therefore, 9 they be sentenced for the period already undergone. As such, the instant appeals be allowed in full or in part.
11. Per contra, Mr. Ashish Tiwari, learned State counsel, would submit that there is direct evidence available against these two appellants/accused persons in the form of the testimony of eye-witness Kamlesh (P.W.-1), who has clearly named both of these appellants/accused persons in commission of the crime in question, as such, they have rightly been convicted by the trial Court for offence punishable under Section 302 of IPC (two times) and therefore, the instant appeals deserves to be dismissed, more so, as it is not a case which would fall within Exception 4 to Section 300 of IPC.
12. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record with utmost circumspection.
13. In order to competently decide the appeals, we will take up these appeals one-by-one and since the Acquittal Appeal has been preferred by the State against acquittal of the accused persons for offences punishable under Sections 148, 302/149 and 201/149 of IPC and Section 5 of the Act of 2005, it would be appropriate to first take up the appeal against acquittal for consideration.
10Acquittal Appeal No. 148/2016 :-
14. At the outset, it would be appropriate to notice the scope of interference in an appeal against acquittal before dealing with the facts and circumstances of the case at hand.
15. It is well-settled law that appellate Court can reappreciate, review and reconsider the evidence before it, but the scope of interference in an appeal against acquittal is narrower than an appeal against conviction because presumption of innocence gets further fortified by an order of acquittal. Thus, unless there are substantial and compelling reasons to differ from findings of acquittal, appellate Court is not required to substitute its findings in case findings recorded by the trial Court are plausible. (See: Ramesh v. State of Haryana1)
16. In Ramesh (supra), their Lordships of the Supreme Court, relying upon their earlier decisions rendered in the matters of Sanwat Singh v. State of Rajasthan 2 and Govindraju v. State3, have concluded in paragraph 28 as under :-
"28. The appellate court, therefore, is within its power to reappreciate or review the evidence on which the acquittal is based. On reconsideration of the evidence on record, if the appellant court finds the verdict of acquittal to be perverse or against the settled position of law, it is duly empowered to set aside the same. On the other hand, if the trial court had appreciated the evidence in right perspective and recorded the findings which are plausible and the view of the trial court does not suffer from perversity, simply because the appellate court comes to a different conclusion on the appreciation 1 (2017) 1 SCC 529 2 AIR 1961 SC 715 3 (2012) 4 SCC 722 11 of the evidence on record, it will not substitute its findings to that of findings recorded by the trial court."
17. In light of the aforesaid parameters laid down by the Supreme Court for scope of interference in an appeal against acquittal, it would be appropriate to notice the findings recorded by the trial Court while acquitting the accused persons for offence punishable under Section 148/149 of IPC in paragraph 44 of the impugned judgment, which states as under :-
"44. अभभययजन कक ओर सस पसततत ससकय सस यह सपष हह कक अभभयतकगण एक हह पररवसर कस सदसय हह, उनकक आपस मह ररशतसदसरह हह। जहसस कक कमलसश नस बतसयस हह कक पपचसयत मम करहब सस कक सपखयस मम गसगव कस लयग मसजजद थस, अभभयतकगण भह थस, तय इससस कस वल यह हह दरशरत हयतस हह कक मसकस पर अभभयतकगण मसजजद थस। ससकय कस आधसर पर यह सपष नहह हह कक अभभयतकगण नस पपचसयत बतलसयस थस। अभभयतकक कक मसकस पर उपभसथभत कस आधसर पर यह नहह मसनस जस सकतस हह कक उनहकनस भवभध भवरद जमसव कस गठन ककयस, भजसकस ससमसनय उदसशय फत लमभनयस और भहखज कक हतयस करनस थस, कयककक कमलसश नस मतखय परहकण मम बतसयस हह कक गसगव कस लयग पपचसयत मम भहखज व फत लमभनयस कय टयनहह-डसयन बयल रहस थस। ससकय सस यह भह सपष नहह हह कक सभह अभभयतकगण लसठह, डपडस यस घसतक आयतध सस सतसभजत हयकर पपचसयत मम आयस हयस थस। इसभलए अभभयतकगण कस दसरस घसतक आयतध सस सतसभजत हयकर घटनस कदनसपक कय बलवस कसररत ककयस गयस हह यह ससकय समरथरत तथस भवशसनहय व सवहकसर ययगय नहह हह। जगसशर एवप वहरमद कय अनय अभभयतकगण कस दसरस भहखज व फत लमभनयस कय मसरपहट करनस कस भलए कहस यस उकससयस गयस, यह भह ससकय सस पकट नहह हयतस हह। "
18. Learned trial Court, in paragraph 44 of the impugned judgment, has clearly recorded the finding that though the accused persons were present on the spot, but it cannot be held that they had constituted unlawful assembly with common object and in furtherance of their common object, 12 they murdered Smt. Fulmaniya and Bheekhu Korwa and they were only branding the two deceased persons as tonhi/tonha having been involved in the practice of witchcraft. The trial Court has further recorded the finding that it has also not been proved that the accused persons were armed with deadly weapons. As such, since prosecution has failed to prove beyond reasonable doubt that the accused persons had constituted unlawful assembly and in furtherance of their common object, they assaulted the deceased persons and murdered them, the trial Court has rightly acquitted them for offences punishable under Sections 148/149 of IPC.
19. Even otherwise, in the matter of Nagarjit Ahir v. State of Bihar4 their Lordships of the Supreme Court applied the rule of caution and in the facts and circumstance of the case held that "it may be safe to convict only those persons against whom overt act is alleged with the aid to Section 149 IPC lest some innocent spectators may get involved".
20. In the matter of Pandurang Chandrakant Mhatre and others v. State of Maharashtra5, their Lordships of the Supreme Court followed its earlier decisions in the matters of Musa Khan v. State of Maharashtra 6 and Nagarjit Ahir (supra) and acquitted the accused persons therein against whom overt act was not there after applying the rule of caution and held in paragraph 74 as under :-
4 (2005) 10 SCC 369 5 (2009) 10 SCC 773 6 (1971) 1 SCC 733 13 "74. In a case such as the present one, although having regard to facts, the number of participants could not be less than five, it is better to apply rule of caution and act on the side of safety and convict only A-2, A-3 and A-12 under Section 302 read with Section 149 I.P.C whose presence as members of party of assailants is consistently mentioned and their overt acts in chasing and assaulting the deceased are clearly proved. A-4, A-5, A-6, A-10 and A-11 get the benefit of doubt with regard to offence under Section 302 read with Section 149 I.P.C. since evidence against them in chasing and assaulting the deceased is not consistent. However, all the eight appellants are guilty of the offences punishable under Section 148 and Section 326 read with Section 149, I.P.C. This is proved beyond doubt and the High Court cannot be said to have erred in holding so."
21. As such, in any case, it has been established that the accused persons were not members of unlawful assembly and even if, they were held to be members of unlawful assembly, rule of caution would apply and in view of the aforesaid decisions rendered by the Supreme Court, it would be unsafe to convict them for offences punishable under Sections 148, 302/149 and 201/149 of IPC. In that view of the matter, considering that the scope of interference in an appeal against acquittal is extremely limited, we are of the considered opinion that the trial Court has taken a correct view of the matter. We do not find any merit in this acquittal appeal. It deserves to be and is accordingly dismissed.
Criminal Appeals No. 1524/2015 and 1622/2015 :-
22. As stated above, these criminal appeals have been preferred by the two appellants/accused persons namely Jageshwar (A-1) and Virendra (A-5) against their conviction for offences 14 punishable under Section 302 of IPC (two times) and Section 4 of the Act of 2005.
23. The trial Court has clearly recorded a finding that seizure of laathis from these two accused persons namely Jageshwar (A-1) and Virendra (A-5) have not been proved in accordance with law, as such, their conviction rests solely on the testimony of eye-witness Kamlesh (P.W.-1) as even the FSL report has been found inconsequential and furthermore, the seizure witness namely Naleshwar Korwa (P.W.-7) has turned hostile and has not supported the case of the prosecution.
24. The question for consideration is whether the trial Court is justified in convicting the appellants/accused persons namely Jageshwar (A-1) and Virendra (A-5) for offence punishable under Section 302 of IPC simpliciter relying solely upon the testimony of Kamlesh (P.W.-1) ?
25. In examination-in-chief, Kamelsh (P.W.-1) has initially named most of the accused persons, but later in paragraph 8, he has stated that he has seen Jageshwar (A-1) and Virendra (A-5) assaulting the deceased persons. He has also stated in paragraphs 1 and 4 that these two accused persons assaulted both the deceased persons with laathis, which have been seized vide Ex. P/33 and P/37 pursuant to their memorandum statements, but the seizure witness namely Naleshwar (P.W.-7) has not supported the case of the prosecution. Although Dr. Bhupesh Bhagat (P.W.-12) 15 has clearly stated that deceased persons died due to neurogenic shock and internal hemorrhage and the nature of their death is homicidal and the injuries suffered by them are lacerated wounds and upon query of the said laathis, the Doctor has opined that the injuries suffered by the deceased persons could have been caused by the said laathis.
26. After considering the testimony of eye-witness Jageshwar (A-1) and Virendra (A-5) as well as the statement of Dr. Bhupesh Bhagat (P.W.-12), we are of the considered opinion that learned trial Court has rightly held that these two accused persons namely Jageshwar (A-1) and Virendra (A-5) are the perpetrators of the crime in question.
27. Now, the question that requires consideration is whether the case of the appellants/accused persons is covered with Exception 4 of Section 300 of IPC and whether their conviction under Section 302 of IPC can be altered to Section 304 Part I or II of IPC, as contended by learned counsel for the appellants ?
28. The Supreme Court in the matter of Arjun v. State of Chhattisgarh7 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-
"20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under :(SCC p. 220, para 7) 7 (2017) 3 SCC 247 16 "7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly."
21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under :
(SCC p. 596, para 9) "9. .... '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning.
A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted 17 in cruel or unusual manner. The expression "undue advantage" as used in the provisions means "unfair advantage".
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29. In the matter of Arjun (supra), the Supreme Court has held that when and if there is intent and knowledge, the same would be case of Section 304 Part-I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II IPC.
30. Reverting to the facts of the present case in light of the aforesaid principle laid down by their Lordships of the Supreme Court in the matter of Arjun (supra), it is quite vivid that in the instant case there was no previous enmity between the two appellants/accused persons and the two deceased persons and simply suspecting that the deceased persons were involved in the act of witchcraft due to which son of Virendra (A-5) was becoming unwell, out of sudden anger and in heat of passion, both the appellants/accused persons assaulted the deceased persons with hands and fists and laathis which is evident from the injuries suffered by the deceased persons all over their body. Though there was no premeditation on the part of the appellants/accused persons to cause the death of the deceased persons, however, looking to the nature of injuries suffered by them, the appellants/accused persons must have had the knowledge that their act is likely to cause the death of the deceased persons. As such, the case of the 18 appellants/accused persons is covered with Exception 4 of the Section 300 of IPC and their conviction for offence punishable under Section 302 of IPC (two times) is hereby altered to Section 304 Part I of IPC and since they have remained in jail since 13/03/2012 i.e. for more than 10 years, we hereby sentence them for the period already undergone by them. Their conviction for offence punishable under Section 4 of the Act of 2005 is hereby maintained, being well-merited. Both the appellants/accused persons namely Jageshwar (A-1) and Virendra (A-5) be released forthwith, if their detention is not required in any other case.
Conclusion :-
31. The Acquittal appeal, being devoid of merits, stands dismissed whereas both the Criminal Appeals are allowed to the extent indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Harneet