Chattisgarh High Court
Mosu @ Suresh Baghel vs State Of Chhattisgarh on 18 August, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1602 of 2015
1. Mosu @ Suresh Baghel S/o Deboboram Baghel, aged about 21
years
2. Arjun @ Naga S/o Vasudev Yadav, aged about 22 years,
3. Shibo @ Ajay Baghel S/o Deboram Baghel, aged about 20 years
4. Naresh @ Khuti S/o Chatur Yadav, aged about 23 years
5. Rajesh Manjhi S/o Dhansingh Manjhi, aged about 24 years
All R/o Nayamunda, Police Station - Bodhghat, District Bastar, CG.
---- Appellants
Versus
• State Of Chhattisgarh Through Its Police Station Kotwali, Distt.
Bastar, Chhattisgarh., Chhattisgarh ---- Respondent
with
CRA No. 1916 of 2019
• Kamal Naag S/o Arjun Naag Aged About 26 Years R/o Naya Munda
Jagdalpur, District Bastar Chhattisgarh, District : Bastar(Jagdalpur),
Chhattisgarh ---- Appellant
Versus
• State Of Chhattisgarh Through Officer-In-Charge, Police Station
Kotwali, District Bastar Chhattisgarh. ---- Respondent
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For Appellant : Smt. Savita Tiwari and Shri Pritam Tiwari,
Advocates
For Respondent/State : Shri Sudip Verma Dy. AG and Ms. Ruchi
Nagar, Dy. GA
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Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Sachin Singh Rajput, JJ
Judgment On Board
(18.08.2022)
Sanjay K. Agrawal, J.
Since both the aforesaid appeals arise out of the same judgment dated 14.09.2015 passed by Additional Sessions Judge Bastar at Jagdalpur in Sessions Trial No. 22/2014, they are disposed of by this common judgment.
2. By way of these two appeals filed under Section 374 (2) of the Code of Criminal Procedure the appellants have assailed the judgment impugned dated 14.09.2015 passed by Additional Sessions Judge Bastar at Jagdalpur in Sessions Trial No. 22/2014 convicting them under Sections 302 and 147 IPC and sentencing each of them to undergo imprisonment for life with fine of Rs. 100/-, in default of payment of fine to further undergo RI for one month u/s 302, and SI for six months u/s 147 IPC. Two other accused persons namely Sukuldhar and Karan Yadav have however been acquitted of all the charges levelled against them.
3. Briefly stated facts of the case leading to the disposal of these appeals are that on 05.11.2013 at about 4.30 PM the accused/appellants herein - six in number and two others who have been acquitted by the trial Court had formed an unlawful assembly in front of the Swarupa Grocery Shop at Kumharpara Jagdalpur and assaulted Jogendra Baghel with club, knife, tube light rod and thus committed the offence under Sections 302/149 and 147 IPC. It is alleged that on the date of incident at about 4 PM the deceased Jogendra Baghel along with Trilochan Soni (PW-10) and Ilu @ Ramchandra (PW-11) was going from Tiranga Chowk to Kumharpara in an auto and when they reached near the Swarupa Grocery Shop, the auto was made to stop; Trilochan Soni went to meet one Harish (not examined) living nearby whereas deceased Jogendra Baghel and Ilu @ Ramchandra stayed back at the shop. According to the case of prosecution, from the house of Harish, Trilochan Soni heard the cries of Jogendra Baghel "bachao bachao"
and when he rushed back to the spot, scuffle coupled with beating was going on between the accused persons and Jogendra Baghel, and when he too raised an alarm, all the accused persons ran away. It is stated that while falling down, Jogendra Baghel had told Trilochan Soni that the accused persons had assaulted him with knife. Jogendra Baghel had suffered injuries on chest and shoulders. He was then taken to Mahrani Hospital, Jagdalpur with the help of one passerby Prasannajit where he succumbed to the injuries during treatment. On the information given by Trilochan Soni (PW-10), merg (Ex. P-21) was recorded followed by registration of FIR (Ex. P-20) for the offences punishable under Sections 302, 147, 148 and 149 IPC. The dead body was sent for postmortem examination which was conducted by Dr. Pawan Tekde (PW-6) who gave his report (Ex. P-13). Thereafter, on the memorandum of accused Mosu @ Suresh Baghel (Ex.P-9), a bamboo stick was seized under (Ex. P-16); his clothes worn at the time of incident were seized under (Ex. P-17) and a white colour mobile phone was seized under (Ex. P-19), and on the memorandum of accused Arjun @ Naga (Ex.P-10), a bamboo stick was seized under (Ex. P-18). On the memorandum of accused Rajesh Manjhi (Ex. P-24) recorded on 7.3.2014 i.e. almost three months after the incident, a knife was seized under (Ex. P-25) and broken pieces of tube light rod were seized under (Ex. P-26). According to FSL report (Ex. P-41) no blood was found on knife. After thus completing investigation, the charge-sheet was filed by the police followed by framing of charge against all the accused persons under Sections 147, 302/149 IPC.
4. So as to prove the complicity of the accused/appellants in the crime in question, prosecution has examined as many as 18 witnesses. Statements of the accused/appellants under Section 313 CrPC were also recorded in which they pleaded their innocence and false implication in the case. Defence has also examined one witness namely Ramsingh (DW-1) in support of its case.
5. After hearing the parties and going through the material available on record including the evidence of the witnesses, learned Additional Sessions Judge acquitted the accused persons namely Sukuldhar and Karan Yadav of the charges levelled against them, but has convicted and sentenced the accused/appellants herein as described in paragraph No. 1 of this judgment. Hence these appeals.
6. Counsel for the appellants submit that the prosecution has utterly failed to prove its case under Section 302 IPC beyond all reasonable doubts. They submit that so far as accused/appellants Shibo @ Ajay Baghel and Kamal Nag are concerned, they have not been named either in the merg or in the FIR or the statements of the witnesses recorded under section 161 of the Code of Criminal Procedure. They submit that even Trilochan Soni (PW-10) and Ilu @ Ramchandra (PW-11) have not stated anything against these two appellants in the Court regarding their involvement in the crime in question. They further submit that as the presence of these two appellants on the spot at the relevant time has not been established by the prosecution, there remain only the four accused persons which cannot constitute an unlawful assembly for the reason that as per the provision of Section 141 IPC, the minimum number of persons for so doing should be five, and therefore, their conviction under Sections 147 and 149 IPC is liable to be set aside. They further submit that Trilochan Soni (PW-10) has clearly stated in paragraph No. 72 of his deposition that he did not disclose to the police as to from which weapon accused Rajesh Manjhi had assaulted the deceased as he had not seen the assault. They submit that as far as other accused/appellants are concerned, there is no evidence to show that they caused any injury because only the stab injury allegedly inflicted by accused Rajesh has been found sufficient to cause death. The sum and substance of the argument advanced by counsel for the appellants is that the prosecution has not been able to prove its case beyond all reasonable doubts and therefore, they are entitled to be acquitted of the charges levelled against them.
7. On the other hand, counsel appearing for the State supports the judgment impugned and submits that the findings recorded by the Additional Sessions Judge holding the accused/appellants guilty under Sections 302/149 and 147 IPC being based on proper appreciation of the evidence on record are fully justified and do not call for any interference in these appeals.
8. Heard counsel for the parties at length and went through the evidence on record with utmost care and caution.
9. The first question to be decided by this Court is whether the death of the deceased was homicidal in nature or not? The trial Court after appreciating the evidence of Dr. Pawan Tekde (PW-6) who conducted postmortem examination on the body of the deceased, and considering the injury No.2 which is a stab wound present over right shoulder in the size of 3.2. cm x 1.3 cm passing through the second intercostal space fracturing lower margin of second rib and perforating surrounding tissues, has rightly held that the death of the deceased to be homicidal in nature. Even otherwise, this issue is not in dispute by the accused/appellants. Accordingly, we also affirm this finding recorded by the trial Court.
10. Secondly, it has been contended on behalf of the appellants Shibo @ Ajay Baghel and Kamal Naag that there is no evidence against them; they are not even named in the merg, FIR and in the statements of the witnesses recorded under Section 161 CrPC, and nothing has been stated against them by any of the witnesses in the Court. Careful perusal of FIR (Ex. P-20), merg intimation (Ex. P-
21) goes to show that these accused/appellants have not been named therein. Trilochan Soni (PW-10) has simply stated in his deposition that the accused persons were indulged in marpeet with the deceased. He has not stated specifically in the Court statement that Shibo @ Ajay Baghel and Kamal Naag were involved in the incident or they assaulted the deceased or even that they were present on the spot. Furthermore, nothing has been recovered from either of them in the investigation made on behalf of the State. No motive has been attributed against accused Shibo @ Ajay Baghel and Kamal Nag by the prosecution. Thus in these circumstances when no motive has been attributed to these two accused/appellants; nothing has been recovered from them; their names do not find place in the merg, FIR, 161 CrPC statements of the witnesses, in the court statements of PW-10, and that PW-11 has turned hostile, we find ourselves unable to approve the finding of their conviction recorded by the Court below. It is accordingly set aside and Shibo @ Ajay Baghel and Kamal Naag are acquitted of the charge levelled against them.
11. Since Shibo @ Ajay Baghel and Kamal Nag stand acquitted, the requirement of the members to form an unlawful assembly falls short for the reason that after their acquittal the remaining accused/appellants are four in number whereas total number of persons required for constitution of unlawful assembly as per Section 141 of IPC is five. Being so, the conviction of the remaining appellants Mosu @ Suresh Baghel, Arjun @ Naga, Naresh @ Khuti and Rajesh Manjhi with the aid of Section 149 and also under Section 147 IPC is not sustainable in law. Now the question to be decided is whether after acquittal of these two accused/appellants, the others can be convicted for committing the murder of Jogendra Baghel without the aid of Section 149 IPC. Even otherwise, the Supreme Court in the matter of Rohtas and another v. State of Haryana1 considered the question, whether a charge framed with the assistance of Section 149 of the IPC can later be converted to one read with Section 34 of the IPC or even a simplicitor individual crime? Their Lordships considered and reviewed all the earlier case laws on the point including the Constitution Bench decision in the matter of Willie (William) Slaney v. State of MP 2 and relying upon the decision in the matter of Nallabothu Venkaiah v. State of Andhra Pradesh3 holding that "the conviction under Section 302 simplicitor without aid of Section 149 is permissible if overt act is attributed to the accused resulting in the fatal injury which is independently sufficient in the ordinary course of nature to cause the death of the deceased and is supported by medical evidence", observed in paragraph 20 as under: -
"20. The above-extracted position of law was further concretised in Willie (William) Slaney v. State of MP and by the majority in Chittarmal v.
State of Rajasthan. The permissibility of convicting an accused individually under a simplicitor provision after group conviction with the aid of Section 149 of IPC fails, was further explored in Atmaram Zingaraji v. State of Maharashtra, wherein this Court held that:
"4. The next question that falls for our is whether, after having affirmed the acquittal of all others, the High Court could convict the appellant under Section 302, I.P.C. (simpliciter). The charges framed against the accused (quoted earlier) and the evidence adduced by the prosecution to bring them home clearly indicate that according to its case, the nine persons arraigned before the trial Court and, none others, either named or unnamed (totalling minimum five or more persons) formed the unlawful assembly. 1 AIR 2021 SC 114: AIR Online 2020 SC 900 2 AIR 1956 SC 116 3 (2002) 7 SCC 117 Consequent upon the acquittal of the other eight the appellant could not be convicted with the aid of Section 149, I.P.C., more particularly, in view of the concurrent findings of the learned Courts below that the other eight persons were not in any way involved with the offences in question.
5. The same principle will apply when persons are tried with the aid of Section 34, I.P.C. In the case of Krishna v. State of Maharashtra7, a four Judge Bench of this Court has laid down that when four accused persons are tried on a specific accusation that only they committed a murder in furtherance of their common intention and three of them are acquitted, the fourth accused cannot be convicted with the aid of Section 34, I.P.C. for the effect of law would be that those who were with him did not conjointly act with the fourth accused in committing the murder.
6. In either of the above situations therefore the sole convict can be convicted under Section 302, I.P.C. (simpliciter) only on proof of the fact that his individual act caused the death of the victim. To put it differently, he would be liable for his own act only. In the instant case, the evidence on record does not prove that the injuries inflicted by the appellant alone caused the death; on the contrary the evidence of the eye-witnesses and the evidence of the doctor who held the post-mortem examination indicate that the deceased sustained injuries by other weapons also and his death was the outcome of all the injuries. The appellant, therefore, would be guilty of the offence under Section 326, I.P.C. as he caused a grievous injury to the deceased with the aid of jambia (a sharp-cutting instrument)."
(emphasis supplied) Since it has been held in the preceding paragraphs that the offence under Section 149 IPC is not established, the constitution of unlawful assembly is out of question, therefore, in view of the aforesaid judicial pronouncement of the Apex Court, case of each of the four accused/appellants has to be considered according to their individual act. This court proceeds to do that as under:
12. Regarding accused/appellants Mosu @ Suresh Baghel & Arjun @ Naga: It is the case of the prosecution that they have taken active part in commission of the offence and on disclosure statement of Mosu (Ex. P-9), seizure of bamboo stick was made under (Ex. P-16); his clothes worn at the time of incident were seized under (Ex. P-17) and a white colour mobile phone was seized under (Ex. P-19), on the disclosure statement of Arjun @ Naga (Ex.P-10), a bamboo stick was seized under (Ex. P-18) but it is clear from the FSL report (Ex. P-42) that no blood much less the human blood was found on the bamboo sticks and the clothes seized from them. According to the medical evidence, except injury No.2 - the stab wound present over right shoulder of the deceased in the size of 3.2. cm x 1.3 cm passing through second intercostal space fracturing lower margin of second rib and perforating surrounding tissues, all other injuries were simple in nature. It is thus held that on the bamboo sticks recovered from them no blood was found and therefore it cannot be held that they have caused injury No. 2 which resulted in the death of the deceased.
13. Regarding accused/appellant Naresh @ Khuti: From the record it is apparent that neither there is any recovery made from him nor any motive has been attributed to him by the prosecution.
Thus, it can safely be said that there is no evidence against this accused.
14. Regarding accused/appellant Rajesh Manjhi: Admittedly according to the doctor (PW-6) who conducted postmortem examination on the body of the deceased, injury No. 2 caused with knife as described above was sufficient to cause death of the deceased on account of shock and haemorrhage, but according to Trilochan Soni (PW-10) - an eye witness to the incident who in paragraph No. 72 of his deposition has clearly stated that he did not see as to from which weapon accused Rajesh Manjhi had assaulted the deceased. This witness has stated that he had not even seen the assault. Another important witness Ilu @ Ramchandra who had accompanied the deceased and PW-10 in the Auto, has not supported the case of the prosecution and has been declared hostile. Furthermore, the knife allegedly seized from this accused was sent for chemical examination but as per the FSL report (Ex.P-42), no blood was found on it. It is pertinent to mention here that the date of incident is 05.11.2013 and though the name of this accused is mentioned in the FIR (Ex.P-20), he was arrested on 07.03.2014 and on his memorandum (Ex. P-24) recorded almost three months after the incident, a knife was recovered under (Ex. P-25) but as per the FSL report, as noted above, no blood was found on it. Thus, the prosecution has failed to establish that it is this appellant who inflicted the knife blow to the deceased which ultimately resulted in his death.
15. In view of the detailed observations made above, this Court is unable to uphold the conviction of the accused/appellants for the offences mentioned above. It is accordingly set aside. The accused/appellants are acquitted of the charges levelled against them.
16. Since appellants Shibo @ Ajay Baghel and Kamal Naag are on bail, their bail bonds stand discharged and they need not surrender anywhere. Other accused/appellants who are in jail, are directed to be set free forthwith if not required in any other case.
17. The appeals are thus allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Jyotishi