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Sections 147, 148 and 302 IPC -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 Apex court held that 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. = Nagesar … Appellant(s) versus State of Chhatisgarh … Respondent(s) = 2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41527

Sections 147,  148  and  302 IPC –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  Apex court held that 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. =

 

 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  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.=

 

 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 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  forthwith  unless  otherwise

      required in connection with any other case.

 

2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41527

 

T.S. THAKUR, C. NAGAPPAN

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 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 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 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. 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 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) –

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.

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 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 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 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 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.

 
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.

 
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 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 forthwith unless otherwise
required in connection with any other case.

…………………………….J.
(T.S. Thakur)

 
……………………………J.
(C. Nagappan)
New Delhi;
May 5, 2014

 

 

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