NAGESAR Vs STATE OF CHHATISGARH
Bench: T.S. THAKUR,C. NAGAPPAN
Case number: Crl.A. No.-001096-001096 / 2014
Diary number: 15042 / 2012
Advocates: MRIDULA RAY BHARADWAJ Vs
DHARMENDRA KUMAR SINHA
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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1096 OF 2014 [Arising out of Special Leave Petition (Crl.) No.10006 of 2012]
With
CRIMINAL APPEAL NO. 1082 OF 2014 (@ Special Leave Petition (Crl.) No.5189 of 2013)
Nagesar … Appellant(s)
versus
State of Chhatisgarh … Respondent(s)
J U D G M E N T
C. NAGAPPAN, J.
1. Leave granted in both the special leave
petitions.
2. Both the appeals have been preferred against
the common judgment dated 31.1.2012 of the
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Division Bench of the High Court of Chhatisgarh,
Bilaspur, in Criminal Appeal No.12 of 2007 and
Criminal Appeal No.331 of -
3. 2007. The appellants herein Nagesar and
Khetro accused Nos. 6 and 7 respectively, in
Sessions Trial No.232 of 2005 on the file of 10th
Additional Sessions Judge (FTC) Durg, were tried
along with five other accused and all of them
were convicted for the offence under Sections
147, 148 and 302 IPC and each of them was
sentenced to undergo rigorous imprisonment for
one year and pay a fine of Rs.1000/- and in
default to undergo rigorous imprisonment for
two months for offence under Section 147 IPC;
one year rigorous imprisonment and to pay a
fine of Rs.2000/- each and in default to undergo
rigorous imprisonment for three months for the
offence under Section 148 IPC and life
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imprisonment and to pay a fine of Rs.3000/- in
default to undergo six months imprisonment for
the offence under Section 302 IPC and the
sentences were directed to run concurrently.
4. -
5. Aggrieved by the conviction and the sentences
accused Nos. 1 to 7 preferred five criminal
appeals and the High Court by the impugned
common judgment dated 31.1.2012 partly
allowed the appeals by setting aside the
conviction and sentence imposed upon them
and acquitted them for the offence under
Section 148 IPC and also altered conviction
under Section 302 IPC to Section 304 Part II of
IPC and sentenced each of them to undergo
rigorous imprisonment for a period of 6 years
and imposed a fine of Rs. 3000/- on each of
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them and in default to undergo rigorous
imprisonment for six months and maintained the
conviction and sentence imposed on them for
the offence under Section 147 IPC. Challenging
the same accused Nos.6 and 7 have preferred
the present appeals.
6. Background facts of the case in a nutshell are as
follows: On 13.6.2004 in the evening Korma Rao
was sitting along with PW1 Pramod and
Pradeep near -
7. Priyadarshini Market Chowk, Khursipar, Bhilai.
Accused Nos. 1 to 7 were consuming ‘Ganja”
and liquor in the above said place and this was
objected to by Korma Rao and in the altercation
Korma Rao slapped accused No.4 Rajendra
Prasad Shukla @ Tukna. Korma Rao left the
place with PW1 Promod & Pradeep by scooter.
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Again at 11.45 PM he came back to the same
place where juvenile accused Pitambar @ Panto
threw chilli powder on the eyes of Korma Rao
and assaulted him on the head with sword.
When Korma Rao fell down juvenile Pitambar
took out a stone and dropped it over his head
and the other accused assaulted him. Accused
No.1 Bhimsen @ Bhim attacked Korma Rao with
stick. When PW8 Gopi Rao intervened he was
attacked on the head with sword by accused
No.1 Bhimsen @ Bhim. PW9 Ram Lalit Yadav
also witnessed the occurrence. PW 8 Gopi Rao
informed PW5 Bhaskar Rao, who is the brother
of Korma Rao about the occurrence and they
took injured Korma Rao to BSP -
8. Hospital, Bhilai. Korma Rao was examined by
PW4 S.K. Bhoi and Ex.B4 wounds Certificate was
issued by him. He also examined PW 8 Gopi Rao
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and found a lacerated wound over the back of
his head and issued Exh.P5 Injury Certificate.
Korma Rao died at 3.00 P.M.. PW5 Bhaskar Rao
lodged complaint and the death of Korma Rao
was intimated by the Doctor vide Exh. P32 and
FIR Exh.P21 came to be recorded. The
Investigating Officer conducted inquest over the
body vide Exh.P8 Inquest Report. He seized
blood stained earth, blood stained stone and
broken bricks by Exh. P13 and sent the body for
post-mortem.
5. PW13 Dr. Padmakar Mishra conducted the
autopsy on the body of Korma Rao and found the
following injuries:
i) Incised wound of 4 c.m. x 1 c.m. x 1 c.m.
over back of head with fracture of bone.
ii) -
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iii) Two incised wounds of 2 c.m. x ½ c.m. x 1
c.m. and 2 c.m. x ½ c.m. over back of
head.
iv) Incised wound of 7.5 c.m. over left temporo
parietal region.
v) Incised wound of 9 c.m. length over right
parietal region.
vi) Incised wound of 4 c.m. length just below
right eye.
vii) Incised wound over upper part of nose.
viii) Fracture of right and left mandible bone.
ix) Incised wound over ring finger of 2 c.m. in
length with fracture of metacarpal bone.
x) Incised wound of 2 c.m. x ½ c.m. over wrist.
xi) Incised wound of 20 c.m. x ½ c.m. over
back.
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xii) Haematoma of fronto parietal bone of 20
c.m. length.
-
He expressed opinion that death has occurred due to
shock on account of ante-mortem injuries and issued
Exh.P20 post-mortem certificate.
6. Pursuant to Ex.P.10 disclosure statement of accused
No.4 Rajender Prasad wooden plank was recovered
under Ex.P22. Pursuant to the disclosure statement of
accused No.3 Pradeep stone was recovered under
Exh.P.11. On Exh.P.12 disclosure statement of PW1
Bhimsen stick was recovered under Exh.P.16. On the
disclosure statement of juvenile accused Pitambar
sword and clothes Exh.P.23 were recovered under
Exh.P.14 and Exh.P15. Blood stained clothes of other
accused were also seized. The seized articles were sent
for clinical examination under Exh.P38 and Exh.P40 is
the report. On completion of investigation final report
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was filed. The case against the juvenile accused
Pitambar was filed before the Juvenile Justice Board.
-
7. In order to prove the guilt of the accused the
prosecution examined PWs 1 to 17 and marked the
documents. No evidence was adduced by the accused.
The trial court found all the accused guilty of charges
and sentenced them as narrated above. The appeal
preferred by them was partly allowed as indicated
above. Challenging the same accused No.6 Nagesar and
accused No.7 Khetro have preferred the present appeals.
8. The learned counsel appearing for the appellants
submitted that both the appellants were not named in
the First Information Report and the eye witness Ram
Lalit Yadav in his testimony has not mentioned the
names of the appellants as having been present during
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the occurrence and even the other eye witness has not
attributed any overt act to the appellants in the attack
made on the deceased and their presence at the
occurrence place is itself doubtful and they are entitled
to an acquittal. Per contra the learned counsel
appearing -
for the respondent-State contended that the
appreciation of evidence by the Courts below was
proper and did not, thereby, call for any interference.
9. Korma Rao suffered a homicidal death is sought to
be proved by the medical evidence adduced by the
prosecution. The autopsy was conducted by PW13 Dr.
Padmakar Mishra and as per his testimony, he found 6
incised wounds on the head with fracture of right and
left mandible bone and he opined that death has
occurred on account of the shock due to ante-mortem
injuries. Exh. P20 is the post-mortem certificate issued
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by him. Thus it is amply clear that Korma Rao died of
injuries sustained during the occurrence.
10. The prosecution case is that accused Nos. 1 to 7 in
furtherance of their common object attacked Korma Rao
at the time of occurrence and caused his death. PW8
Gopi Rao and PW9 Ram Lalit Yadav were examined as
having -
witnessed the occurrence. According to PW8 Gopi Rao on
13.6.2004 late in the evening accused nos. 1 to 7 were
sitting at Priyadarshini Market Chowk and were
consuming Ganja and Cigarette and Korma Rao objected
the same and in the altercation he slapped accused No.4
Rajender Prasad Shukla and left the place with PW1
Promod and Pradeep by scooter and again at 11.45 P.M.
Korma Rao came back to the same place and juvenile
Pitambar threw chilli powder in the eyes of Korma Rao
and assaulted him on the head with sword and when he
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fell down juvenile Pitambar dropped a stone over his
head and the other accused assaulted him. It is his
further testimony that accused No.1 Bhimsen attacked
Korma Rao with stick and when he intervened he was
attacked on the head with sword by accused No.1
Bhimsen and he rushed to inform PW5 Bhaskar Rao,
who is the brother of Korma Rao and they took injured
Korma Rao to hospital where he died at 3.00 A.M..
According to PW8 Gopi Rao -
the appellants Nageswar and Khetro were found in
inebriated state having consumed cigarette and Ganja.
Though PW8 Korma Rao had mentioned the names of
both the appellants in his testimony as having been
present at the place of occurrence, he has not attributed
any overt act to them in the attack made on the
deceased as well as himself.
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11. PW9 Ram Lalit Yadav is the other eye-witness and
he has testified that he went to the place of occurrence
at about 11.15 P.M. in the night and the accused persons
were sitting there and PW8 Gopi Rao also joined him and
when Korma Rao came there, accused persons Khetro,
Bhim, Pitambar and others attacked Korma Rao with
sword and danda and Korma Rao sustained injuries on
the head and other parts of his body and when PW8 Gopi
Rao intervened he also sustained sword injury on the
head. It is his further testimony that he and PW8 Gopi
Rao informed the occurrence to the family members of -
Korma Rao and they took him to hospital where he
succumbed to the injuries. PW9 Ram Lalit Yadav has not
mentioned the names of the appellants as having been
present during the occurrence. In other words this
witness, in his testimony has not stated about the
presence of the appellants and did not attribute any role
to them in the occurrence.
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12. Exh. P21 is the First Information Report lodged by
PW5 Bhaskar Rao, the brother of deceased Korma Rao.
Of course he has not witnessed the occurrence and the
information was conveyed to him by PW8 Gopi Rao who
is an eye-witness. The names of the appellants Nagesar
and Khetro are not mentioned in the First Information
Report and in the facts of the case a doubt is created in
the mind as to whether they could be really involved in
the offence.
13. It is settled law that mere presence or association
with other members alone does not per se be sufficient
to -
hold everyone of them criminally liable for the offences
committed by 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
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offending act. ( K.M Ravi and others Vs. State of
Karnataka (2009) 16 SCC 337). As already seen in this
case there is no legally acceptable material to prove that
the appellants acted as members of unlawful assembly
to connect them with the murder of the deceased Korma
Rao. At any rate in the absence of reliable evidence to
prove that the appellants were either present on the
spot or that they had committed any overt act that could
show that they share the common object of the unlawful
assembly it is not possible to support their conviction
and benefit of doubt has to be given to them.
14. In the result both the appeals are allowed and the
appellants are given benefit of doubt and the conviction
and sentences imposed on them are set aside and they
-
are acquitted of all the charges framed against them.
They are directed to be released from the custody
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forthwith unless otherwise required in connection with
any other case.
…………………………….J. (T.S. Thakur)
……………………………J. (C. Nagappan)
New Delhi; May 5, 2014