REPORTABLE IN SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.197-198 OF 2018

(Arising out of SLP(Crl.) Nos. 10077-78 of 2015)

DASHRATH @ JOLO & ANR. ETC.     Appellant(s) VERSUS

STATE OF CHHATTISGARH             Respondent(s)

O R D E R R. BANUMATHI

Leave granted.

2. These  appeals  arise  out  of  the  judgment  dated

13.05.2014  passed  by  the  High  Court  of  Chhattisgarh

dismissing  the  criminal  appeal  Nos.598-99/2009  thereby

confirming the conviction and sentence passed by the trial

court.

3. Briefly stated case of the prosecution is that, on

03.08.2008 at about 1.30 p.m., PW-19-Birichram went to the

house of one Bhojram for inviting him for the sixth day

birth  of  his  child  (chhati).   The  appellants  who  are

neighbours of Bhojram and were standing in front of their

houses, threatened PW-19 that they will kill him.  When

PW-19  asked  the  appellants  not  to  abuse,  appellant

Dashrath @ Jolo who was having battleaxe alongwith one

Phodol  @  Duryodhan  (since  dead)  who  was  also  having

battleaxe  and  one  Jagru  (since  dead)  who  was  holding

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kudari and some others who were holding sticks, assaulted

PW-19. PW-14-Chumbai and PW-17-Gayatri Bai who were coming

towards the spot tried to intervene in the incident. At

the  same  time,  deceased  Chhedilal  who  was  also  coming

towards his field requested the appellants not to beat

PW-19;  but  the  appellants  leaving  PW-19,  started

assaulting  Chhedilal.   Phodol  @  Duryodhan  (since  dead)

crushed the head of Chhedilal by blunt part of battleaxe.

At the same time, deceased Bhuru @ Parmanand, deceased

Bablu, PW-20-Dilip Kumar Yadav and PW-21-Rajesh Yadav also

came to the spot one by one and tried to intervene, but

the appellants assaulted all of them and caused the death

of Chhedilal, Bablu and Bhuru @ Parmanand on the spot.

PW-19-Birichram  and  PW-20-Dilip  Kumar  Yadav  sustained

injuries.  

4. All  accused  were  arrested  and  based  on  their

disclosure  statement,  battleaxe  was  recovered  from

appellant Dashrath @ Jolo and; Kudari recovered from Jagru

@  Mohanlal;  sticks  recovered  from  appellants  Anand  and

Laxmi.  Blood stained clothes were also recovered from the

accused. Thereafter, all the seized articles were sent to

Forensic Science Laboratory (FSL) for chemical examination

and presence of blood upon clothes and weapons has been

confirmed  vide FSL Report (Ex.P-71). After completion of

investigation,  chargesheet  was  filed  against  the

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appellants and other accused.

5. To prove the guilt of the accused, prosecution has

examined 22 witnesses.  The trial court also examined one

defence witness DW-1-Dr. Ashutosh Mishra.  The trial court

found the appellants guilty of forming unlawful assembly

armed  with  deadly  weapons,  with  the  common  object  to

commit murder of Chedilal, Bablu and Bhuru and attempt to

commit murder of Birichram convicted all the eight accused

under  Section  302  IPC  read  with  Section  149  IPC  and

sentenced them to undergo imprisonment for life.  They

were also convicted for other offences and sentenced to

imprisonment.   

6. Being aggrieved, all the accused filed appeals before

the High Court. During pendency of the appeal before the

High Court, accused Phodol @ Duryodhan and Mohal Lal died.

High Court dismissed the appeal preferred by appellants

herein (Dashrath @ Jolo, Anand and Laxmi) and confirmed

the conviction and sentence of imprisonment imposed upon

them by the trial court. The lady accused viz. Dujmati and

Triveni Bai were acquitted by the High Court.

7. PW-19 has clearly spoken about the incident that the

first appellant Dashrath @ Jolo was holding battleaxe, the

deceased accused Jagru was holding  kudari and the other

accused  persons  were  also  armed  with  sticks  inflicted

injuries on the deceased persons. Both the trial court as

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well as the High Court has accepted the evidence of PW-19,

being an injured eye witness, whose evidence stands on a

higher footing. The weapons were also recovered from the

appellants herein.  Upon appreciation of the injured eye

witness PW-19, which was corroborated by PW-14 (Chumbai)

and considering the fact that the weapons were recovered

from the appellants herein, the trial court as well as the

High Court recorded the findings that the appellants and

the other accused including the deceased Jagru and others

have formed an unlawful assembly with the common object to

commit murder of Chhedilal, Bablu and Bhuru @ Parmanand.   

8. The  contention  raised  by  learned  counsel  for  the

appellants is that the occurrence took place in front of

the house of the appellants whereby the complainant and

the deceased wanted to show off the celebration of the

birth of the child and any act of the accused could only

be in their self-defence. Merely because the occurrence

happened  in  front  of  the  house  of  the  appellants,  it

cannot  be  said  that  the  complainant  party  were  the

aggressors.  To find out as to who were the aggressors,

the entire incident must be examined with due care in its

proper setting.  The injured Birichram (PW-19) went to the

house of Bhojram for inviting him and others for sixth day

birth  of  child  (chhati);  the  appellants  who  were

neighbours  of  Bhojram  were  present  in  front  of  their

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houses  and  they  challenged  Birichram  (PW-19).  When

Birichram (PW-19) went to the house of Bhojram to invite

him  for  the  function,  he  was  not  armed;  only  the

appellants  were  stated  to  be  armed  with  battleaxe  and

sticks.   Considering  the  circumstances  and  the  entire

incident,  the  courts  below  rightly  negatived  the

contention that the complainant party were the aggressors

and that the appellants acted in self defence.

9. The next contention urged by learned counsel is that

the prosecution has not chosen to explain the injuries on

the person of the appellants and this is fatal to case of

prosecution.  It cannot be held as a matter of law or

invariably a rule that whenever the accused sustained an

injury in the same occurrence, the prosecution is obliged

to  explain  the  injury  and  on  the  failure  of  the

prosecution  to  do  so,  the  prosecution  case  should  be

disbelieved.  Before holding that non-explanation of the

injuries  on  the  persons  of  the  accused  persons  by  the

prosecution witnesses may affect the prosecution case, the

court  has  to  be  satisfied  of  the  existence  of  two

conditions:  (i)  that  the  injury  on  the  person  of  the

accused  was  of  a  serious  nature;  and  (ii)  that  such

injuries  must  have  been  caused  at  the  time  of  the

occurrence in question...[vide Takhaji Hiraji v. Thakore

Kubersing Chamansing, (2001) 6 SCC 1454]

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10. By going through the judgment of the trial Court as

well  as  the  High  Court,  it  is  seen  that  the  injuries

sustained  by  the  appellants  were  simple  in  nature  and

while  so  it  was  not  incumbent  upon  the  prosecution  to

explain those injuries.  It is also relevant to note the

answers  elicited  from  the  doctors  that  those  injuries

found on the accused could be self inflicted.   

11. Upon appreciation of evidence and on well considered

reasonings,  the  trial  court  as  well  as  the  High  Court

rightly convicted the appellants/accused under Section 302

IPC read with Section 149 IPC and other offences. We find

no ground to interfere with the verdict of conviction and

the  sentence  of  imprisonment  imposed  upon  the

appellants/accused. The appeals are dismissed.  

....................J.     [R. K. AGRAWAL]

....................J.      [R. BANUMATHI]

New Delhi; January 23, 2018

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