☐The case involves the conviction and sentence of several appellants for killing three. The High Court of Chhattisgarh upheld their conviction and sentence which was later appealed to the Supreme ...
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Page 1 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
Page 2 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.
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Page 3
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
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Page 4 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 16
th
& 17
th
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
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Page 5 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
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Page 6 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
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Page 7 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
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Page 8 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
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Page 9 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
9
Page 10 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
ACCUSED-APPELLANT
ACQUITTAL /
CONVICTION
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
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Page 11 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,
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Page 12 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
12
Page 13 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
13
Page 14 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-
14
Page 15 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,
15
Page 16 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
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Page 17 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 Baladin
2
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
17
Page 18 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 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
18
Page 19 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
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Page 20 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
20
Page 21 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:
21
Page 22 “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 NamdeoVs.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
22
Page 23 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
23
Page 24 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.
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Page 25 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]
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Page 26 .….…...............................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
October 31, 2014.
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