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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