Page 1

1

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

Page 2

2

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

Page 3

3

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

Page 4

4

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.

Page 5

5

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

Page 6

6

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) -

Page 7

7

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.

Page 8

8

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

Page 9

9

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

Page 10

10

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

Page 11

11

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

Page 12

12

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.

Page 13

13

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.  

Page 14

14

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

Page 15

15

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

Page 16

16

forthwith unless  otherwise  required in  connection with  

any other case.

…………………………….J. (T.S. Thakur)

……………………………J. (C. Nagappan)

New Delhi; May 5, 2014