Ramphal and Others vs The State of Chhattisgarh

T.P. Sharma, J.—Challenge in this appeal is to the judgment of conviction & order of sentence dated 27.2.2001 passed by the Additional Sessions Judge, Surajpur, Sessions Division, Surguja, in Sessions Trial No. 163/98, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of formation of unlawful assembly and in furtherance of common object of unlawful assembly causing culpable homicidal death of Atak Ram amounting to murder, convicted under Sections 302 & 147 of the Indian Penal Code and sentenced them to undergo imprisonment for life and to pay fine of Rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for five months and rigorous imprisonment for one year, respectively. During the pendency of the appeal, appellant No. 1 Ramphal was died and his name has been deleted.

Judgment is impugned on the ground that without there being any iota of evidence of commission of murder, the Additional Sessions Judge has convicted and sentenced the appellants as aforementioned and thereby committed illegality.

Case of the prosecution, in brief, is that on the fateful day of 4.6.95 at about 8 a.m. at village Ragda, district Ambikapur, deceased Aatak Ram went to canal (nala) along with his buffalos, the appellants who were having enmity with the deceased have formed unlawful assembly and in furtherance of common object of unlawful assembly, they went to canal, they chased the deceased and assaulted him by sticks, deceased Aatak Ram fell down. Ramsai took the deceased to hospital for further treatment. The injured was firstly examined by Dr. S.P. Paikra (PW-11) vide Ex.P/17A and found the aforesaid external injuries. He was referred to District Hospital, Ambikapur vide Ex.P/28. He was died. Then again dead body of the deceased was brought to Primary Health Centre, Bhaiyathan vide Ex.P/16. Dr. S.P. Paikra (PW-11) certified death vide Ex.P/29. Ramsai went to the police station Jhilmili and recorded merg intimation vide Ex.P/15. F.I.R. was lodged vide Ex.P/26. Investigating officer proceeded for the scene of occurrence and after summoning the witnesses vide Ex.P/16, prepared inquest over the body of the deceased vide Ex.P/14. Autopsy was conducted by Dr. S.P. Paikra (PW-11) vide Ex.P/17A and found following symptoms and injuries:

i) Blood were oozing from the nose

ii) Multiple brushes over the chest, right scapular region and waist of 10" � 7"

iii) Multiple abrasions over right leg of 7" � 4" area

iv) Fracture of 5th right rib, multiple fractures of right 9th and 10th ribs, right lung and right chamber of heart and right liver was ruptured. Internal heamotoma was found and fracture of right fibula was found.

Mode of death was shock as a result of internal injury. Injuries were sufficient for causing death. Spot map was prepared by patwari vide Ex.P/18.

During the course of investigation, the appellants were taken into custody. Appellant Amar Singh made disclosure statement of stick vide Ex.P/1, same was recovered at his instance vide Ex.P/2. Appellant Manbahal @ Rangal made disclosure statement of stick vide Ex.P/3, same was recovered at his instance vide Ex.P/4. Appellant Jai Singh made disclosure statement of stick vide Ex.P/5, same was recovered at his instance vide Ex.P/6. Appellant Nahar Sai made disclosure statement of stick vide Ex.P/7, same was recovered at his instance vide Ex.P/8. Appellant Ramdhan made disclosure statement of stick vide Ex.P/9, same was recovered at his instance vide Ex.P/10. Appellant Ramphal made disclosure statement of stic k vide Ex.P/11, same was recovered at his instance vide Ex.P/12. Sticks were examined by Dr. S.P. Paikra (PW-11) vide Ex.P/25A.

Statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Code''). After completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Surguja, who in turn committed the case to the Court of the Sessions, Surguja from where the Additional Sessions Judge, Surajpur received the case on transfer for trial.

In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 11 witnesses. Statements of the accused/appellants were also recorded u/s 313 of the Code where they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question.

After affording opportunity of hearing to the parties, the Additional Sessions Judge has convicted and sentenced the appellants as aforementioned.

We have heard Mrs. Anju Ahuja, counsel for the appellants and Mr. Rakesh Kumar Jha, Additional Public Prosecutor for the State, perused the judgment impugned and record of the Court below.

Learned counsel for the appellants vehemently argued that though the conviction is based on the evidence of eyewitnesses Ramsai (PW-1), Ammelal (PW-2), son of Karansai, Shobhnath (PW-4), Hirman Bai (PW-6), Mahendra Prasad (PW-7), Thakur Prasad (PW-8) and Ammelal (PW-9), son of Ramdin Rajwade, but they are interested and relatives'' witnesses and their evidence do not inspire confidence and trustworthy. The incident took place at about 8 a.m. in the morning near canal where the presence of other persons and independent witnesses was natural, but the prosecution has deliberately not examined the independent witnesses to unfold the real story. The evidence of the aforesaid witnesses are sufficient for causing serious doubt relating to the commission of the offence by the appellants, but the same is not sufficient for the conviction of the appellants. Learned counsel further argued that all the witnesses have deposed bald and omnibus statements and have not specified that which injury was caused by whom and who was caused fatal injury.

Learned counsel placed reliance in the matter of Sarman and Ors. v. State of Madhya Pradesh in which the Apex Court has held that it cannot be said that object of accused was to kill deceased and no knowledge that blows given likely to cause death, the conviction of the accused is not sustainable u/s 302/34 of the IPC, but may be convicted u/s 304 Part II of the IPC.

Learned counsel further placed reliance in the matter of Sukhdev Singh v. State of Punjab in which it has been held by the Apex Court that if the prosecution is not able to show that who has caused fatal injury, then in the absence of evidence that who has caused injury, the conviction u/s 302 of the IPC is not sustainable. Their act may be punishable u/s 304 Part II of the IPC.

Learned counsel also placed reliance in the matter of Bhaiyalal and Ors. v. State of Madhya Pradesh in which the High Court of Madhya Pradesh has held that considering the single injury over the head which was fatal, the conviction of the appellants u/s 302/34, IPC are not sustainable and their act squarely fall u/s 304 Part II, IPC.

On the other hand, learned State counsel supported the judgment impugned and argued that the appellants were present near canal. The deceased was alone, all six accused persons rushed to the spot, they chased the deceased and caused fatal injuries, including fracture of leg, multiple fractures of ribs, rupture of lung, heart and liver shows that they have caused injuries in a brutal manner. Learned counsel further argued that the prosecution has proved its case against all the accused persons that they have formed unlawful assembly and in furtherance of common object of unlawful assembly, they have committed murder of deceased Aatak Ram.

In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of fatal injuries of deceased Aatak Ram has not been substantially disputed by the appellants, on the other hand, also established by the evidence of S.P. Paikra (PW-11) and autopsy report Ex.P/28, which reveals that three ribs were found fractured, including multiple fractures of right lung, right heart and right liver. Multiple brushes were found over right scapular region and chest shows that repeated injuries have been caused to deceased Aatak Ram. Three internal vital organs, heart, lung and liver were ruptured as a result of multiple fractures of ribs and injuries were ante-mortem. Death was as a result of such injuries and was homicidal in nature.

As regards the complicity of the accused/appellants in the crime in question, the prosecution has adduced direct evidence of eyewitnesses Ramsai (PW-1), Ammelal (PW-2), son of Karan Sai, Shobhnath (PW-4), Hirman Bai (PW-6), Mahendra Prasad (PW-7), Thakur Prasad (PW-8) and Ammelal (PW-9), son of Ramdin Rajwade, evidence relating to recovery of weapons at the instance of the appellants and oral dying declaration. Ramsai (PW-1) has deposed in his evidence that on 4.6.95 at about 8 p.m. his brother Aakat Ram (since deceased) went to pond for cleaning his buffalos, at that time appellants Ramphal, Naharsai, Ramdhan, Jai Singh, Amar Singh and Manbahal @ Rangal reached there, they were holding sticks, Aakat Ram saw the persons and rushed from the spot, the appellants chased and surrounded him and all the appellants assaulted him by sticks, Aatak Ram fell down. After assaulting Aatak Ram, all the appellants fled away from the spot. His brother shouted for help, then he also went to the spot and he also shouted, then Ammelal, Beni, Shobhnath, Thakur Prasad, Mahendra, Laxmniyabai, Maniyaro and Hirmen came to the spot. Aatak Ram was serious, they took injured Aatak Ram to the police station Bhaiyathan and he has lodged the report. They took the injured to the hospital and after primary treatment, they were taking injured to Ambikapur hospital, but injured died, then again they took to Bhaiyathan hospital where the doctor declared him dead. Ammelal (PW-2), son of Karansai, has deposed in his evidence that on 4.6.95 at about 8 a.m., he was coming from the field. While he was passing near canal he heard sound, he saw that all the appellants were holding sticks and they were chasing Aatak Ram, firstly deceased appellant Ramphal assaulted deceased Aatak Ram, then all the appellants assaulted him by sticks. He also shouted, then other persons reached to the spot, Aatak Ram was weeping, they took him to the police station.

Shobhnath (PW-4) has also deposed that at the time of incident he was irrigating his field, he also heard sound, then he saw that all the appellants were chasing Aatak Ram near canal, they assaulted Aatak Ram. Finally they took Aatak Ram to the police station and hospital. Hirman Bai (PW-6) has deposed in her evidence that at the time of incident she was grazing grass to her cattle, deceased Aatak Ram was cleaning his buffalos, at that time all the appellants came to the spot, they were holding sticks, they assaulted Aatak Ram. After assaulting Aatak Ram, the appellants went towards Bhaiyathan. Other persons took Aatak Ram to Bhaiyathan. Mahendra Prasad (PW-7) has deposed in his evidence that on the date of incident at about 8 a.m., he heard sound, then he went towards canal from his house, at that time all the appellants were chasing Aatak Ram. Firstly, deceased appellant Ramphal assaulted Aatak Ram over his neck, then all the appellants assaulted him. Thakur Prasad (PW-8) has deposed in his evidence that he heard sound of Hirmanbai and Maniyarobai, then he went to the place of incident where the appellants were chasing Aatak Ram, firstly Ramphal assaulted Aatak Ram over his neck, then all the appellants assaulted him, he fell down. Ammelal (PW-9), son of Ramdin Rajwade, has deposed in his evidence that on the date of incident at about 8 a.m., he heard sound of Thakur Prasad and others, then he saw the incident that all the appellants were assaulting Aatak Ram, he also went to the spot. Aatak Ram was lying in the land, they took him to hospital and finally Aatak Ram died.

Ramsai (PW-1) has dined the suggestion that one day prior to the incident some quarrel took place between both the parties. In para 5 of his cross-examination, he has deposed that at the time of lodging the report he has informed the police relating to the injuries. Defence has cross-examined this witness, but has not asked anything to him that the appellants have not caused any injury to the deceased or he was not present at the time of incident. This witness has lodged the report vide Ex.P/26 within 1 + hours of the incident. Ammelal (PW-2), son of Karansai, has deposed in para 10 of his cross-examination that he did not know the previous dispute between the parties. He has denied the suggestion in para 12 of his cross-examination that there was two rivalry party in the village and he is member of Thakur Prasad Group. He has also denied the suggestion that he has been falsely implicated the accused persons. Defence has cross-examined Shobhnath (PW-4) in detail. He has admitted in para 9 of his cross-examination that after hearing sound he reached to the spot, some women were washing their clothes and he saw the incident. Defence has also cross-examined Hirman Bai (PW-6), Mahendra Prasad (PW-7), Thakur Prasad (PW- 8) and Ammelal (PW-9), son of Ramdin Rajwade in detail, but has not been able to elicit anything in their cross- examinations to discredit their testimony to the effect that they have not seen the incident and the appellants have not assaulted deceased Aatak Ram. The prosecution has also adduced evidence of dying declaration. Ramsai (PW-1) has deposed in his evidence that while other witnesses were brining the injured Aatak Ram from the spot, he asked Aatak Ram that what happened then he made dying declaration that the accused Ramphal, Naharsai, Ramdhan, Jai Singh, Amar Singh and Manbahal @ Rangal have assaulted by sticks, then they took the injured to police station Bhaiyathan. In his cross- examination he has denied the suggestion that injured Aatak Ram has not made dying declaration to him. The prosecution has also adduced another set of evidence relating to recovery of weapons at the instance of the appellants u/s 27 of the Evidence Act. Sticks have been recovered from the appellants on the basis of their confessional statements vide Exs.P/1 to P/12, but the same have not been examined by the medical expert to show any presence of blood over sticks. The prosecution has not adduced any evidence to connect these sticks otherwise with the crime in question. In the absence of such evidence, recovery of weapons normally found in the house of villager is of no use in the present case. The evidence of Ramsai (PW-1), Ammelal (PW-2), son of Karansai, Shobhnath (PW-4), Hirman Bai (PW-6), Mahendra Prasad (PW-7), Thakur Prasad (PW-8) and Ammelal (PW-9), son of Ramdin Rajwade inspires confidence and trustworthy and sufficient for drawing inference that the appellants are the persons who have assaulted deceased Aatak Ram and as a result of such injuries, deceased Aatak Ram died.

As regards the question of motive is concerned, counsel for the appellants submitted that according to the evidence of Ammelal (PW-2), Mahendra Prasad (PW-7) and Thakur Prasad (PW-8), fatal injuries were caused by the deceased accused Ramphal and present appellants have not caused any fatal injuries to the deceased. The evidence of Ammelal (PW-2) reveals that firstly deceased accused Ramphal has assaulted Aatak Ram by stick and Aatak Ram fell down. Mahendra Prasad (PW-7) and Thakur Prasad (PW-8) have specifically deposed that firstly deceased accused Ramphal assaulted over the neck of the deceased, then deceased fell down, but the doctor has not found any fatal injuries over the neck. Multiple injuries were found over scapular region, chest and leg, including fracture of fibula bone of leg, fracture of ribs and rupture of heart, lungs and liver which have not been caused as a result of injury caused over his chest.

As held by the Apex Court in the matter of Sukhdev (supra), in the absence of any finding that who has caused fatal injuries, conviction was alerted to Section 304, Part II of the Indian Penal Code. In the present case, all the appellants who were more than 5 in numbers have chased the deceased and caused injuries and when he fell down, all the accused persons have caused injuries to the deceased on vital part. The case of Sukhdev (supra) is distinguishable on the ground of fact.

As held by the Apex Court in the matter of Sarman (supra), on the ground of injury over non-vital part, the conviction is altered to Section 304 Part II/149 of the Indian Penal Code. In the present case, fatal injuries were found over the chest, including rupture of lungs, liver and heart. Injures were on vital part. The case of Sarman (supra) is distinguishable on the ground of fact.

As held by the High Court of Madhya Pradesh in the matter of Bhaiyalal (supra), the conviction is altered to Section 304 Part II of the Indian Penal Code on the ground that the prosecution was not able to prove the fact that in sharing of common intention who has caused fatal injuries. In the present case, the appellants have formed unlawful assembly and in furtherance of common object of unlawful assembly, they have caused fatal injuries, therefore, the case of Bhaiyalal (supra) is distinguishable on the ground of fact.

Nature of injuries, number of injuries and part of the body clearly shows that the appellants have caused these injuries with intent to cause the death of Aatak Ram. While he was alone near canal, all appellants armed with sticks have chased deceased Aatak Ram and assaulted him, especially when he fell down. He was not holding any weapon, he was in helpless position and when other persons came to rescue him, then only all the appellants fled from the spot. It shows that the appellants have formed unlawful assembly with intent to causing murder of deceased Aatak Ram and in furtherance of common object of unlawful assembly, they have caused death of deceased Aatak Ram.

After appreciating the evidence available on record, learned Additional Sessions Judge has convicted the appellants under Sections 302 & 147 of the Indian Penal Code. The evidence and opportunity provided to the appellants clearly reveals that reasonable opportunity to defend has been provided to the appellants. The evidence adduced on behalf of the prosecution and the finding of the Court below reveal that the appellants have formed unlawful assembly and in furtherance of common object of unlawful assembly committed murder of deceased Aatak Ram punishable u/s 302 read with Section 149 of the Indian Penal Code. The finding of the Court below is based on credible and clinching evidence sustainable under the law. While convicting the appellants, the Court below has not mentioned Section 149 of the Indian Penal Code.

For the foregoing reasons, we are of the considered view that the Court below has not committed any illegality in arriving at the aforesaid finding and substantially the appeal is devoid of any merits, but on the ground of technicality the appeal is partly allowed. The conviction & sentence imposed upon the appellants u/s 302 of the Indian Penal Code is altered to Section 302/149 of the Indian Penal Code and sentenced to undergo imprisonment for life. The appellants are on bail. They shall surrender themselves immediately before Additional Sessions Judge, Surajpur for serving remaining part of sentence.