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CRIMINAL APPEAL No.906 OF 2012 Nand Kumar Appellant(s) Versus State of Chhattisgarh Respondent(s)

Reportable

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.906 OF 2012
Nand Kumar Appellant(s)

Versus

State of Chhattisgarh Respondent(s)
WITH
Criminal Appeal No.913 of 2012
Criminal Appeal No.912 of 2012
Criminal Appeal No. 911 of 2012
Criminal Appeal No. 908 of 2012
Criminal Appeal Nos. 900-902 of 2012
Criminal Appeal Nos.909-910 of 2012
Criminal Appeal No.914 of 2012
J U D G M E N T
Abhay Manohar Sapre, J.
1. These appeals have been directed against the final common
judgment dated 11.05.2007 passed by the High Court of Chhatisgarh at
Bilaspur in Criminal Appeal Nos. 785, 866, 762, 868, 761, 853, 875,
970, 851, 873 and 842 of 2001, whereby the High Court upheld the
conviction and sentence of the appellants herein under Section 302
read with Sections 149 and 148 of the Indian Penal Code, 1860 (in
short “IPC”) which was awarded to them by the Sessions Court whereas
the High Court allowed the Criminal Appeals of other accused and
acquitted them of the charges by setting aside the judgment of the
Sessions Court dated 12.07.2001 in Sessions Trial No. 342 of 1995 to
that extent.
2. The concluding part of the impugned judgment of the High Court
reads as under:
“In the result, the appeals filed by accused Raj Kumar Singh,
Dhananjay, Rohit, Nirmal, Surjan, Santosh Singh, Gopal Das,
Chhatram, Balchand and Devilal succeeds. Conviction and
sentences imposed upon them under Sections 302 read with
Sections 149 and 148 of the IPC are set aside. They are
acquitted of the said charges.
a. Balchand, Devilal, Chhatram & Surjan are on bail. Their bail
bonds are discharged and they need not surrender to their bail
bonds.
b. Santosh Singh, Rohit, Gopal Das, Raj Kumar Singh, Nirmal and
Dhananjay are in detention since 18-1-1995. They are directed
to be released forthwith, if not required in any other case.
The appeal filed by accused Rameshwar Singh stands abated.
The appeals filed by accused Kumar Singh, Nande Singh, Nand
Kumar, Baran, Jaipal, Resham Lal, Guharam, Amritlal and Basant
Das are dismissed. Conviction and sentences imposed upon them
under Sections 302 read with Sections 149 and 148 of the IPC are
maintained. Baran, Jaipal and Resham Lal are on bail. Their
bail bonds are discharged and they are directed to surrender
before the trial court forthwith to serve out the remaining
sentence.”
3. The question that arises for consideration in these appeals is
whether the High Court was justified in upholding the conviction and
sentence of the present appellants.
4. In order to appreciate the issue involved in these appeals, it
is necessary to state the prosecution case in brief infra.
5. In a village – Bhaismudi in District Janjgir, there were two
groups of villagers. One group consisted of deceased – Jawahar Singh,
Bhupendra Singh and others whereas the other group consisted of the
appellants herein and other accused. There were disputes between the
two groups on account of Panchayat elections in the village and also
several other reasons.
6. In the intervening night of 16th & 17th January 1995, the
accused persons convened a meeting and hatched up a conspiracy to
eliminate Jawahar Singh and others. The accused persons accordingly
formed an unlawful assembly with a common object to murder Viki Singh,
Jawahar Singh, Bhupendra Singh, Shailendra Singh – both sons of
Jawahar Singh, and Kalicharan and in furtherance of this common
object, all accused persons with deadly weapons (lathi, sword, ballam,
Tabbals, iron roads) first went to the residence of Viki Singh near a
place called Nawa Talab, and killed Viki Singh by severely beating him
with the weapons which they had carried with them. The accused persons
then proceeded towards the agriculture field of Jawahar Singh where
they killed Jawahar Singh and his two sons – Bhupendra Singh and
Shailendra Singh by severely beating them with the weapons, which they
were carrying with them. Thereafter, the accused party proceeded to a
place called – Holha Chowk of Bhaismudi and killed Kalicharan with
the aid of same weapons.
7. Madhubala Bai (PW-1) reported this incident by lodging Dehati
Nalishi (Ex-P-1) on the spot on 17.01.1995 around 3.00 P.M.
8. At this stage it is proper to reproduce the substance of the
contents of Ex-P-1 herein below: –
“…….that she is resident of village Bhaismudi, at about
11.30 a.m. she was at her shop, at that time, Karia Sabaria came
crying to her shop and said that Viki Singh has been murdered
near Nawa Talab by Shiv Sena persons namely, Kumar Singh, Nande
Singh, Guharam, Rohit, Jaipal, Resham, Rajkumar Singh, Prahlad
Singh, Rameshwar Singh, Dhananjay, Nand Kumar, Santosh & others.
When she reached the spot, she saw that all these persons were
carrying lathi, rod, battle axe etc. They were crying and
saying ‘let us now go to the field of Jawahar Singh and finish
them there’, they started going towards the agricultural field
of her father. She and her mother also followed them and
requested that once they should save their life, but they did
not accede to their request. While going to the agricultural
field, she informed Vinay Singh that Babuji has been murdered
near Nawa Talab, Nirmal Kashyap, Amrit, Basant and Baran were
also along with them. After reaching the agricultural field,
these persons attacked her father Jawahar Singh and brothers
Bhupender Singh and Shailender Singh with lathi and Tabbal as a
result of which her father Jawahar Singh and brother Bhupender
Singh succumbed to the injuries sustained by them
instantaneously, and brother Shailender Singh succumbed to the
injuries after 15-20 minutes. All these persons have committed
the murder of her father and brothers.”
9. On receipt of the aforesaid report, Brajender Singh (PW-16) –
the Head Constable of Police Station Janjgir, registered the FIR (Ex-P-
64) for commission of the offence under Sections 302, 147, 148 and
149 IPC. Brajender Singh (PW-16) gave intimation in respect of the
death of Shailendra Singh – (Ex-P-65) whereas intimation in respect of
the death of Bhupendra Singh and Jawahar Singh were given by M.L.
Shandilya (PW-22), Inspector of police – Exs-P-70 and P-71.
10. After giving necessary notices (Exs. P-2, 51, and 63), the
Investigating Officer prepared inquest of Bhupendra Singh (Ex-P-3),
Shailendra Singh (Ex-P-52) and Jawahar Singh (Ex-P-64). Dr P.K.
Narula (PW-12) conducted post-mortem on the body of Bhupendra Singh
(Ex-P-56). In his opinion, the cause of death of Bhupendra Singh was
due to shock as a result of hemorrhage on account of extensive
homicidal head injury. Dr. U.C. Sharma (PW-13) conducted post-mortem
on the body of Jawahar Singh, who vide his report (Ex.P-59) opined
that cause of death of Jawahar Singh was due to shock and hemorrhage
as a result of extensive head injury and that the death is homicidal
in nature. Dr. A.K. Paliwal (PW- 14) conducted post-mortem on the
body of Shailendra Singh and vide his report (Ex-P-61) opined that
cause of death was due to shock resulting from hemorrhage caused by
extensive head injury and that death is homicidal in nature.
11. After completing the investigation and collecting all the
evidence, the charge-sheet was filed against 29 accused persons for
commission of offences punishable under Sections 147, 148, 149 and 302
of the IPC in the Court of Judicial Magistrate First Class, Janjigir,
who in turn committed the case to the Session Judge, Bilaspur, who in
turn transferred it to the Additional Sessions Judge. During the
trial, one of the accused – Prahlad Singh, died.
12. Prosecution examined as many as 22 witnesses at the trial to
prove the case. Statements of accused persons were then recorded
under Section 313 of the Criminal Procedure Code, 1973 (hereinafter
referred to as Cr.P.C.), in which all the accused persons denied their
involvement in the commission of the offences and also denied the
material collected against them in the form of evidence. They stated
that they were falsely implicated in the crime and are thus innocent.
One of the accused, Ganesh, stated that the deceased and their party
members were indulged in selling illicit liquor and since members of
their party -Shiv Sena were not allowing them to do such acts which
included accused, who were also the members of Shiv Sena, they were
falsely involved in this case due to this grudge against them. He also
stated that since in Panchayat elections, some candidates of the
deceased party had lost the election and hence, they were hostile to
the accused persons. Another accused – Gopal Das stated that on the
date of incident, he was at Raigarh for medical test. The accused in
defence examined Lalit Kumar (DW-1) and Dinesh Chandra Pathak (DW-2).
13. The trial Court, by judgment dated 12.07.2001, acquitted eight
accused and convicted the remaining accused. All the convicted
appellants were directed to undergo life imprisonment under Section
302 read with Sections 148 and 149 with a fine of Rs. 2000/- each.
14. The convicted accused persons filed appeals in the High Court.
By impugned judgment, the High Court upheld the conviction of nine
accused persons by dismissing their appeals and acquitted the
remaining accused persons by allowing their appeals. One appeal was
held abated due to death of accused.
15. The details regarding conviction/acquittal of accused persons by
the High Court are mentioned herein below:
|Name and Number of the |Acquittal / Conviction |
|Accused-Appellant | |
|Gopal Das (A 3) |Acquitted |
|Kumar Singh (A 4) |Conviction Upheld |
|Rajkumar Singh (A 5) |Acquitted |
|Baran (A 6) |Conviction Upheld |
|Amrit (A 7) |Conviction Upheld |
|Guharam (A 8) |Conviction Upheld |
|Jaipal (A 9) |Conviction Upheld |
|Santosh Singh (A 10) |Acquitted |
|Nande Singh (A 11) |Conviction Upheld |
|Resham (A 13) |Conviction Upheld |
|Rameshwar Singh (A 14) |Appeal Abated |
|Dhananjay (A 15) |Acquitted |
|Rohit Kumar Karsh (A 16) |Acquitted |
|Nirmal (A 17) |Acquitted |
|Basant (A19) |Conviction Upheld |
|Surjan (A 20) |Acquitted |
|Chhatram (A 24) |Acquitted |
|Balchand (A 25) |Acquitted |
|Devilal (A 27) |Acquitted |
|Nand Kumar (A 28) |Conviction Upheld |
16. Against this judgment of the High Court, the convicted accused
persons have preferred these appeals before this Court questioning the
correctness of the impugned judgment in so far as their conviction and
sentence is concerned.
17. Learned Counsel for the appellants, while assailing the
conviction and sentence of the appellants, contended that the High
Court was not right in upholding the conviction of the appellants. It
was further contended that there was no role played by any of the
appellants in the commission of the offence in question and nor was
there any overt act played by any of them so as to render them liable
to suffer conviction and sentence under Sections 302/147/148/149 of
the IPC. Learned Counsel urged that non-examination of Kariya Sabaria,
who was important eyewitness even according to the prosecution, has
rendered the appellants’ conviction bad in law. Learned counsel
maintained that where group of persons commits any crime, it becomes
necessary for the prosecution to prove the role of every person of
such group in commission of the offence including what every person
actually did such as whether he actually assaulted the deceased, which
weapon he used, how much force he used, whether he was aggressor,
whether his role was prominent and if so to what extent etc. Learned
Counsel submitted that since evidence adduced by the prosecution is
lacking on these material issues and hence the appellants must be
given the benefit of doubt and they be acquitted of the charges alike
those acquitted by the trial court and the High Court and lastly, it
was urged that since the conviction is based solely on the testimony
of interested witnesses (PW- 1 and 3), who were related to the
deceased persons and, therefore, their testimony was not reliable for
convicting the appellants for want of any other independent eye-
witness.
18. Learned Counsel for the respondent-State, in reply, while
supporting the impugned judgment contended that no case is made out to
call for any interference in the impugned judgment. Firstly, he
submitted that the High Court was right in upholding the appellants’
conviction and sentence; secondly, both the courts below rightly
appreciated the evidence adduced by the prosecution, which was
sufficient in the ordinary course to sustain the finding of conviction
under Section 302 read with Sections 147/148/149 of IPC; thirdly, the
appellants’ conviction was based on the testimony of two eye-
witnesses, namely, Madhubala Bai (PW-1) and Saraswati Bai, (PW-3),
whose presence at the time of occurrence was not disputed; fourthly,
keeping in view the law laid down by this Court in several decisions
explaining therein the parameters to be applied for convicting any
member of unlawful assembly, the prosecution was able to adduce
sufficient evidence to sustain the appellants’ conviction; and lastly,
looking to the gruesome murders committed by the appellants killing as
many as five persons with a pre-determined motive, this Court should
uphold the conviction and sentence of all the appellants, who are
sailing in the same boat and dismiss these appeals.
19. Coming first to the question as to whether the death of three
persons, which is the subject matter of these appeals, namely –
Jawahar Singh, Shailendra Singh & Bhupendra Singh is homicidal. We
are of the considered opinion that it is homicidal in nature. It is
amply established from the medical evidence of three doctors namely,
Dr. P.K. Narula (PW-12), Dr. U.C. Sharma (PW-13) and Dr. A.K. Paliwal
(PW-14) and their respective post-mortem reports (Exs-P-56, 59 and 61)
as also ocular evidence of two eye-witnesses, Smt. Madhubala Devi (PW-
1) & Saraswati Bai (PW-3). We, therefore, uphold the finding of two
courts below on this issue.
20. This takes us to the main question as to whether the courts
below were justified in holding the appellants guilty for committing
murder of three persons named above?
21. Before we peruse the ocular evidence adduced by the prosecution,
it is necessary to take note of the law on the question as to under
what circumstances, a member of an unlawful assembly can be held to
have committed an offence in pursuance of the common object of such
assembly of which he is a member.
22. While distinguishing on facts and then explaining the view taken
by this Court in Baladin and Ors. Vs. State of Uttar Pradesh, AIR 1956
SC 181, the four Judge-Bench speaking through Justice Gajendragadkar
in Masalti etc. etc. Vs. State of U.P., AIR 1965 SC 202, laid down the
following principle of law on the aforesaid question:
“17. ……….in the case of Baladin v. State of Uttar Pradesh, AIR
1956 SC 181, …….., it was observed by Sinha, J., who spoke for
the Court that it is well-settled that mere presence in an
assembly does not make a person, who is present, a member of an
unlawful assembly unless it is shown that he had done something
or omitted to do something which would make him a member of an
unlawful assembly, or unless the case falls under Section 142
IPC. The argument is that evidence adduced used by the
prosecution in the present case does not assign any specific
part to most of the accused persons in relation to any overt
act, and so, the High Court was in error in holding that the
appellants were members of an unlawful
assembly……………………………………………….
It appears that in the case of Baladin the members of the family
of the appellants and other residents of the village had
assembled together; some of them shared the common object of the
unlawful assembly, while others were merely passive witnesses.
Dealing with such an assembly, this Court observed that the
presence of a person in an assembly of that kind would not
necessarily show that he was a member of an unlawful assembly.
What has to be proved against a person who is alleged to be a
member of an unlawful assembly is that he was one of the persons
constituting the assembly and he entertained long with the other
members of the assembly the common object as defined by Section
141 IPC Section 142 provides that however, being aware of facts
which render any assembly an unlawful assembly intentionally
joins that assembly, or continue in it, is said to be a member
of an unlawful assembly. In other words, an assembly of five or
more persons actuated by, and entertaining one or more of the
common object specified by the five clauses of Section 141, is
an unlawful assembly. The crucial question to determine in such
a case is whether the assembly consisted of five or more persons
and whether the said persons entertained one or more of the
common objects as specified by Section 141. While determining
this question, it becomes relevant to consider whether the
assembly consisted of some persons who were merely passive
witnesses and had joined the assembly as a matter of idle
curiosity without intending to entertain the common object of
the assembly. It is in that context that the observations made
by this Court in the case of Baladin assume significance;
otherwise, in law, it would not be correct to say that before a
person is held to be a member of an unlawful assembly, it must
be shown that he had committed some illegal overt act or had
been guilty of some illegal omission in pursuance of the common
object of the assembly. In fact, Section 149 makes it clear that
if an offence is committed by any member of an unlawful assembly
in prosecution of the common object of that assembly, or such as
the members of that assembly knew to be likely to be committed
in prosecution of that object, every person who, at the time of
the committing of that offence, is a member of the same
assembly, is guilty of that offence; and that emphatically
brings out the principle that the punishment prescribed by
Section 149 is in a sense vicarious and does not always proceed
on the basis that the offence has been actually committed by
every member of the unlawful assembly. Therefore, we are
satisfied that the observations made in the case of Baladin2
must be read in the context of the special facts of that case
and cannot be treated as laying down an unqualified proposition
or law…..”
23. Recently, this Court in Om Prakash Vs. State of Haryana, (2014)
5 SCC 753, placed reliance on the aforesaid principle laid down in
Masalti (supra) in following words:

“15. The aforesaid enunciation of law was considered by a
four-Judge Bench in Masalti v. State of U.P.,AIR 1965 SC 202
which distinguished the observations made in Baladin AIR 1956 SC
181 on the foundation that the said decision should be read in
the context of the special facts of the case and may not be
treated as laying down an unqualified proposition of law. The
four-Judge Bench, after enunciating the principle, stated as
follows: (AIR p.  211, para 17)
“17. … it would not be correct to say that before a person
is held to be a member of an unlawful assembly, it must be
shown that he had committed some illegal overt act or had
been guilty of some illegal [pic]omission in pursuance of
the common object of the assembly. In fact, Section 149
makes it clear that if an offence is committed by any
member of an unlawful assembly in prosecution of the common
object of that assembly, or such as the members of that
assembly knew to be likely to be committed in prosecution
of that object, every person who, at the time of committing
of that offence, is a member of the same assembly, is
guilty of that offence; and that emphatically brings out
the principle that the punishment prescribed by Section 149
is in a sense vicarious and does not always proceed on the
basis that the offence has been actually committed by every
member of the unlawful assembly”.
24. Keeping the aforesaid principle of law in mind, when we peruse
the prosecution evidence, we have no hesitation in upholding the
findings of the courts below. We do this for the following reasons.
25. In the first place, names of these accused are mentioned in
Dehati Nalish (Ex-P-1). Secondly, their names are also mentioned in
the statements of P.W-1 and P.W-3, which were recorded under Section
161 of the Cr.P.C. Likewise these two witnesses (PWs 1 and 3) also
categorically stated in their evidence in Court about the overt act
played by the accused persons in committing the murders of Jawahar
Singh and his two sons, Bhupendra and Shailendra. In other words, a
conjoint reading of these two statements clearly establishes the overt
acts played by the accused persons while killing these three persons
one after another on the same day. Thirdly and most importantly, the
ocular evidence of two eye witnesses (PWs 1 and 3) conclusively prove
not only the involvement of the accused persons but their actual
active role played in killing these three persons. We have undertaken
the exercise of appreciating the evidence and especially of two eye
witnesses (PWs 1 and 3) and we find that their sworn testimonies
deserve to be accepted.
26. It is not in dispute, as it has come in evidence, that Madhubala
(PW-1) is the daughter of the deceased- Jawahar Singh, and sister of
the deceased Bhupendra and Shailendra, whereas Saraswati Bai (PW-3) is
the wife of the deceased Jawahar and mother of Madhubala (PW-1) and
the deceased Bhupendra and Shailendra.
27. In the case on hand, the mother and daughter saw from their
naked eyes that their father/husband and two sons/brothers were being
killed in their presence with the use of Lathis, battle axe, sword and
rods by the accused persons mercilessly and both the helpless ladies
standing in front of the mob (accused persons) with folded hands
praying “please do not kill them and leave them”. The accused persons
did not listen to their prayer and with a pre-determined motive killed
the deceased persons by beating them due to which two of them died on
the spot and one succumbed in the hospital after some time.
28. It will be a travesty of justice, if we do not believe the sworn
testimonies of these two eye-witnesses, which in our considered
opinion, remained consistent throughout on material issues. Indeed,
there is no valid reason for this Court to disbelieve them.
29. The submission of learned Counsel for the appellants that since
PWs 1 and 3 were in close relation with the deceased persons being
wife/mother or daughter/sister and that they should not be believed
for want of evidence of any independent witness, deserves to be
rejected in the light of the law laid down by this Court in Dalbir
Kaur and Ors. Vs. State of Punjab, (1976) 4 SCC 158, and Harbans Kaur
and Anr. Vs. State of Haryana, (2005) 9 SCC 195, which lays down the
following proposition:
“There is no proposition in law that relatives are to be treated
as untruthful witnesses. On the contrary, reason has to be shown
when a plea of partiality is raised to show that the witnesses
had reason to shield actual culprit and falsely implicate the
accused.”
In Namdeo?Vs.?State of Maharashtra, (2007) 14 SCC 150, this Court
further held:

“38. ………. it is clear that a close relative cannot be
characterised as an “interested” witness. He is a “natural”
witness. His evidence, however, must be scrutinised carefully.
If on such scrutiny, his evidence is found to be intrinsically
reliable, inherently probable and wholly trustworthy, conviction
can be based on the “sole” testimony of such witness. Close
relationship of witness with the deceased or victim is no ground
to reject his evidence. On the contrary, close relative of the
deceased would normally be most reluctant to spare the real
culprit and falsely implicate an innocent one.”
30. We follow this well settled principle of law for rejecting the
submissions of learned counsel for the appellants.
31. Yet another submission of learned counsel that due to
discrepancies in the evidence of PWs 1 and 3 and in their statements
recorded under Section 161, should not be relied on and deserves to be
rejected in the light of the law laid down by this Court in Munshi
Prasad and Ors. vs. State of Bihar, (2002) 1 SCC 351, which reads as
under:

“Incidentally, be it noted that while appreciating the evidence
of a witness, minor discrepancies on trivial matters without
affecting the core of the prosecution case, ought not to prompt
the court to reject evidence in its entirety. If the general
tenor of the evidence given by the witness and the trial court
upon appreciation of evidence forms opinion about the
credibility thereof, in the normal circumstances the appellate
court would not be justified to review it once again without
justifiable reasons. It is the totality of the situation, which
has to be taken note of, and we do not see any justification to
pass a contra-note, as well, on perusal of the evidence on
record.”
32. As mentioned above, we have not been able to notice any major
discrepancies in their statements and whatever discrepancies, which
were relied on by the learned counsel, were so minor and insignificant
that they do not, in any way, dilute their version.
33. In our considered view, when several people participate in
commission of an offence with deadly weapons and attack one or more
persons with an intention to kill them then the witnesses who are
closely related to the victim(s) are not expected to describe the
incident in graphic detail and with such precision that which member
and in what manner he participated in the commission of offence. Their
evidence is required to be appreciated in its totality.
34. In the case on hand, PWs-1 and 3 elaborately narrated the entire
incident by taking the names of every accused whom they knew to be the
residents of the same area. We, therefore, find no merit in the
submission of the learned counsel and accordingly reject it.
35. We are also not impressed by the arguments of the learned
counsel appearing for the appellants when he contended that one eye-
witness, Kariya was not examined and hence it has weakened the case of
the prosecution.
36. The law does not say that the prosecution must examine all the
eye-witnesses cited by the prosecution. When the evidence of two eye-
witnesses, PWs 1 and 3 was found worthy of acceptance to prove the
case then it was not necessary for the prosecution to examine any more
eye-witnesses. It is for the prosecution to decide as to how many and
who should be examined as their witnesses for proving their case.
Therefore, we find no merit in this submission.
37. In the light of the foregoing discussion, we find no merit in
the appeals, which fail and are accordingly dismissed. As a result,
the conviction and sentence awarded to the appellants by the courts
below are upheld.
……………………………………………………J.
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
.….…………………………….J.
[ABHAY MANOHAR SAPRE]

New Delhi;
October 31, 2014.

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