Partly allowed

Bhikhar and Others v. State of Chhattisgarh

Chhattisgarh HC14 Jun 2016CRA/328/2003

Case brief

AI extract

What is this about?

In a criminal appeal against conviction for murder and rioting, the High Court upheld convictions under Sections 302/149 IPC and 148 IPC but set aside the conviction under Section 3(2)(v) of the Protection of Civil Rights Act due to lack of evidence regarding caste-based motive.

What did the court decide?

Conviction under Sections 148, 452, 302/149 IPC maintained; conviction under Section 3(2)(v) of the Act of 1989 set aside and appellants acquitted of that charge.

Bhikhar and Others Vs State of Chhattisgarh — Cheque Dishonour | Chhattisgarh HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT BILASPUR(C.G.)

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CRMNAL APPEALgy—g72003

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APPELLANTS <sup>kx$1;-H} /~¥) L<b \ \9 ( .......... cam-kg wad \QCvQ §y^Sh“ a, m ‘3) Rx“^u i tar»^</sup>

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,1. Bhikhar, S/o Ramu Lodhi,

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a aged about 50 year,

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¢ 2 Bhaglrathl S/o Kulyshwar aged about 25 years

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1. Manharan, S/o Rameshwar, aged

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4/ about 45 years

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4.^{ChhotanS/oRameshar,agedabout} / 35 years,

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All R/o Village Kanai, Thanaj Arang, Distt. Raipur (C. G.)

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VERSUS

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RESPONDENT : State of Chhattisgarh CRHVHNAL APPEAL UNDER SECTION 3 4 (2) OF THE CODE CWALPROCFDURE 197%

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occurred in which one Gopal Lodhi was murdered and Radhelal & Gorelal had sustained injuries. Body Qf^deceased Gopai^{Lodhiwasbroughtto} the Primary Health Centre, Arang for post-mortam examination. Radhelai & Gorelal were also taken to the hospital for treatment. When Sub-Inspector P.S. Netam (PW-21)^was preparing inquest over the body of deceased Gopal Lodhi at the Primary Health Centre, Arang, a crowd of about 100150 persons carrying dangerous weapons reached there. The crowd was raismg slogans^“Radhelal ko maar dalo" and about 50 60 persons armed With deadly weapons forcrbly entered rnSide the hospital In search of Radhelal Despite efforts bem “made by PS Netam (PW~21) and other police persons presen t oUi d catch Radhelal and assaulted him mercilessly. Gorel a‘lr m anaged to save himself. Dehati iod Nalishi (Ex.P.—.53) was Netam (PW—21);:at‘about 10.45 am. naming accused/appellant herein and several other persons. At about 11.25 a.m. FIR (EX s registered by P.S. Netam (PW—21) against 39 persons for the offence punishable under Sections 147, 148, 149, 294, 452, 307, 353, 332 6f iPc and Section 3 (1) (x) or the Act, 1989. Looking to the serious condition of Radhelal, he was referred to the Government Hospital, Raipur where he died during the course of treatment. Merg lntimation (EXP-65) was registered at the instance of Mohan Pat‘el (PW—23) on 19.4.2001 itself at 1.30 p.m. inquest over the body of deceased was prepared. Dr. Sanjay Kumar Dadu (PW-25) conducted post-mortem examination over the dead body vide EXP-69 and noticed following injuries:— 1 . incised wound on the right lateral aspect of head of 6X1cm. incised wound on right ear of 3x0.2cm size, bone deep.

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Lacerated wound of 3x0.5cm at‘the posterior end of injury No.1.

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Lacerated wound in front of lateral parietal eminence of 5.5x 0.5cm.

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<VA

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Lacerated wound on vault region of 4.0.5cm size. Bone deep

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echymosis was present.

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Abrasion on right side of face of 3x0.1cm.

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Abrasion on right side of face of 0.5cm diameter.

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o Contusion present on anterior aspect of mid of

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Contusion present on anterior aspect of mid of rightjaw of 4x0.5cm.

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Abrasion on the right forearm of 3.5x0.2cm

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Abrasion at the right wristjoint laterally size 1cm diameter.

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- Abrasion present on anterior aspect of chest of 8 x0.3cm.

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Abrasion on the right» forearm, lower transverse limb 7X03cm, vertical limb 3X‘O.r3 c __ ‘upperitrfanSVerse limb 1.5x0.5cm.

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Multiple abrasions on dorsum of right hand.

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Multiple abrasions 6cm above lateral end of right suproable margin in area of 3.0 cm

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0 “ Contusion on late” ,

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ft arm of 9x5 cm

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Superficial incised W ck of 3.5 x 0.76m

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- Multiple abrasions p u pper^halfofback.

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- Old contusions, on e g in of upper 3'“ & another at upper

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margin of lower gh of 9x2cm & 6x2Cm respectively. The autopsy surgeon has opined the cause of death to be shock & haemorrhage as a result of injuries caused by hard, sharp, heavy and blunt object and the death was homicidal in nature. Statements of witnesses were recorded in the course of investigation. . After.investigation, charge sheet against 53 accused persons including present^{appellantswasfiled.} The Court below framed the charges under Sections 147, 148, 452, 302/149, 353, 332 of IPC and Section 3 (2) (V)^of the Act, 1989 against the accused persons. The prosecution in order to bring home the charges levelled against the accused persons examined 25 witnesses in all. Statements of accused persons were recorded under Section 313 of Cr.P.C. in which they abjured their guilt and pleaded innocence & false implication. They have’examined three witness in their l defence.

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After hearing counsel for the parties and^{consideringthemateriaiavailable} on record, the triai Court while acquitting^co-accused persons^from all the charges, convicted & sentenced the accused/appellants herein vide impugned judgment in the manner as described above.

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. Co-accused Naresh, son of Ghasu, remained absconded^duringtrial

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. Placing reliance on the judgment of the Hon'ble^{SupremeCourtdelivered} x

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in the matter of S.P. Sinha & others^vs. State^{ofMaharashtrareportedin} AIR 1992 SC 1751, learned counsel for accused/appellantssubmits^that;

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the appellants cannot be convicted with the aid of Section 149 IPC because there is no evidence that any^{unlawfulassemblywasformed.}

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- there is nothing on r' that the appellants were members^of unlawful assembly wit‘ht *o’n object of attacking the deceased.

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- no specific‘overt acts ar d to any of the appellants^andthere is nothing to show that:~they»inflicted any^{fatalblowonthedeceased.}

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' recovery of handle ofipiekax‘e from appellant No.4-Chhotan is of no consequence, particularly where there^is no report^{ofFSLonrecord.}

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0 in absence of test identification parade, the appellants cannot be convicted only on the basis of Doc identification.

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‘ on the same set of evidence co—accused persons^{havebeenacquitted} by giving benefit of doubt, therefore, present appellants are also A

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entitled for acquittal.

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. On the other hand, supporting the impugned judgment^{learnedcounselfor} the State submits that conviction of accused/appellants is strictly in accordance with law and there is no illegality or infirmity in the same warranting interference by this Court: He further submits that it is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled^{together,armed}

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with several weapons and were parties^{totheassaulton} the deceased, the prosecution is not obiiged to prove which specific overt act was^done by which of the accused. In the present case, the prosecution has duly proved^{thatatthetimeofoccurrence,theappellantswerethemembersof} unlawful assembly and they have assaulted deceased Radhelal by pickaxe, spade, club in pursuance of the common object ofkthat assembly.

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We have heard learned counsel for the parties and perused the^impugned judgment^{andrecordofthetrialCourt.}

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Dr. Abhay Singh Parihar (PW~1) is the person who medically examined P.S. Netam (PW-21),^{Shyam'Narayan} Ratre (PW-6) & Yadumani Mishra (PW—10).

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Jaipal Singh Bariha (PW—2)._hfas re ared^thespotmap (EXP-5). ' 11. Dr. Gyanesh^.Kumar Cho‘ub 3 ) is the person who, looking to the serious condition of deceased’IR‘adhelal, had referred him to the hospital at Raipur.

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.Lal Singh Sidar (PW~4) is a Police Constable. He has stated that at the relevant time he was posted as Constable in Police Station Arang. On the date of incident, he had gone to the Primary Health Centre, Arang for medical examination of deceased Radhelal & Gorelal. While the doctor was examining Radhelal & Gorelal, a crowd of 100-150 persons of^village Kalai carrying deadly weapons like spade, pickaxe, spade etc. reached “Radhelal there shouting slogans k0 maar do”. About 6O persons carrying stick, club, spade, pickaxe etc. forcibly entered into the hospital and started assaulting Radhelal. When he tried to intervene, he too was assaulted by them. He has further stated that when lnSpector Netam & Constable Shyam Narayan had intervened, they^{werealsobeatenbythe} members of unlawful assembly. This witness has identified the present

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accused/appellants in the Court by touching them ahd stated that they were present^{onthespot.InPara-19hehaestatedthataccused/appellant} Nos.2 tom4^werecarrying pickaxe.^{Hehasfurtherstatedthatasheusedto} visit village Kaiai to serve warrant etc., therefore, he knew all the appellants. There are some contradictions & omissions in the Court statement^{ofthiswitnessfromhisdiarystatementbuthehasclarifiedthe} same. He has further^{statedthathedid} disclose in his diary^statement on the spot, however, if the about the presence of^{accused/appellants} same is not^{mentionedinhisstatement,hecouldnottellreason.} .Shyam Narayan^Ratre (PW— 6‘ a s also posted^{asConstableinthePolice} Station Arang at the re’lf’evan, I h is witness^has statedithat^on the yt the Primary^{HealthCentre,Arangfor} date of incident^hehadalsoi gio' post-mortem^examination o ceased^{GopalLodhiarid'Whentheinquest} was being prepared byr‘P tPW-21), a mob of^100-150 persons “Radhelal e club, came^{thereraisingslogans} armed with pick-axe,^spad ko maar dalo". He has further stated that about 50-60 persons forcily entered^{thehospitalandstartedassaulting} Radhelal^by pick—axe, spade, He has^{furtherstated} club as a result^{ofwhichhebecameunconscious.} that when^heandother police personnel^{triedtointervene} in the matter, they were^{alsobeatenbythemob.} By touching^{theaccused/appellants,} J handle of this witness^has stated they^were present^{onthespothaving} club in their hands. There appears to be some pick—axe, pick—axe, contradictions in the lengthy cross-examination of this witness but he remained^{veryfirmwhiledeposingnamesofpresentaccused/appellants.} 14. Smt. Satibai (PW—7) is the Sarpanch,^{ofGramPanchayatKhamtaraiand} she has proved^{thecasteofdeceasedRadhelal.} of 15.Mukut Singh (PW-8) is the witness of memorandum (EXP-13)

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7 on^which handle of pick—^axewasseized ' accused/appell^{ant‘NoAbased} vide^{seizurememoofEXP-14.} that^onthe d ate of has stated of^deceased, brother moorem (PW—13), Chhotan^{assaultedhimbyaxeandatthattime} incident^{accused/appellant} Bharat Co-accused ent^there. other^{accused/appellantswerealsopres} After^{lodgmentofthereportofthesaid} had^{assaultedRadheiaibystiok.} -Primary Health^{Centredbythepolicefor} ere^takentothe incident,^theyw the^{accusedpersonscameandcommitted} medical^{examinationwhere} that his brother stated has further This witness of Radhelal. murder No.1, 3, 4^& other^accused Radhelal^was killed by accused/appellants persons. Constable^whowas e Police io ranother Mishra (Pwe 1‘7.Yadumani 'spot. as made^{almostsimilarstatementas} Thisf Wi of^the present^onthe ln^Para-2 el present^onthespot e made^{byotherpolicep} & 4 by making appe^llant N053 has identified this Witness statement specific^{allegationsagainstthem.} o^EXP-14. is the^{witnessofseizuremern} Ramlal^(PW—14) who did major is the person .Jeeva n Bhalekar (PW—15) 20c investigation^{l.H.Khan(PW16)istheinvestigatingofficerwhodidtheinvestigationand} has^{dulyprovedtheprosecutioncase} —i 8) & lshwari abhatt^{Karmkar(PW—17),Smt.RubinaBegum(PW} the 21.^Smt.Pr where i of the hospital i Sahu (PW—1⁹ ) are the employees l Prasad thes Though occurred. incident b^{enteredthehospital.} mitted^{thefactthatamo} prosecution^casebutad Surgeonⁱⁿ was posted^asASSistant 22.Dr.^{GP.Chandrakar(PW-20),who} has^{alsosupported} the^{PrimaryHealthCentre,Arangattheretevanttime}

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100 persons entered the hospital and seeing body of Gopa! Lodhi the mob got^enraged and started searching Radhelal to km him. He has further

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in Para 27 of his cross—examination 24 A S Thakur (PW 22) is the person who recorded merg (Ex^P 65) on the 25 Mohan Patel (PW~23) isth e _ ,ers on at whose instance merg was recorded. » I & haemorrhage due to injuries present on the body of deceased and the death was homicidai in nature. 27. The witnesses examined in defence by the accused/appellants are of no help to them.

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in the preseht case the crucial question for determination is whether the prosecution has established the conviction of accused—appellants under Sections 302/149 IPC? ln order to attract Section 149 IPC, it must be

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,/[£4

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must be one of the five objects mentioned in Section 141 IPC which reads

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thus;-

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Unlawful assembly. An assembly of five or more persOns is designated an^“unlawful assembly", if the common object of the persons composing that assembly is

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(First) —— To overawe by criminal force, or show of criminal force; 1[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or ‘Toresist (Second) the execution of any law, or of any legal \ prOceSS; Ol' (Third) To commit any mischief or criminal trespass, or other offence; or

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(Fourth) By: mea { criminal force, or show of criminal force, to any person‘l^to‘atake or obtain possession of any property,^{ortode‘p‘riv} any person of the enjoyment of a right of way, or ofthe u’s or other incorporeal right of which he is in possession‘br enjoyment, or to enforce any right or supposed right; io’r_-_ - flii' (Fifth) By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do."

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29.ln the present case on 19.4.2001 a large crowd consisting of 100-150 persons^{carryingvarietyofweaponsreachedthehospitalwheretreatment} of deceased Radhelal and hisbrother Go‘relal was going-on and seeing % the body of deceased Gopal Lodhi, the crowd got^enraged and started searching deceased Radhelal by raising slogans^“Radhelal ko maar dalo" and on finding Radhelal, the crowd assaulted him mercilessly thereby causing as many as 20 grievous injuries which resulted in his death. Presence of accused/appellants at the time of commission of offence is established from the evidence of Lal Singh Sidar (PW—4), Shyam Narayan Ratre (PW—6), Yadumani Mishra (PW-10) & P.S. Netam (PW-21), the

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police persons^whowere present^on the spot and identified the present appellants as having been members of the uniawfui assembly. According “Radhelal to these witnesses, the crowd was raising slogans ko maar dalo" and about 50-60 persons including the accused/appellants forcibly entered the hospital and assaulted the deceased with several weapons like pick-axe, spade, club thereby causing grievous injuries on various parts of his body and when they tried to intervene, they too were assaulted by them. The fact that a large crowd carrying dangerous g weapons reached the hospital shouting slogans^“Radhelal ko maar dalo" further gets corroboration fromtthe evidence of Smt. Prabhati Karmkar ‘8 (PW417),^{Smt.RubinaBegumPW} ):,&^{lshwariPrasadSahu} (PW-19), ‘ employees of the hospital. Nothing-incriminating could be elicited by the defence in the cross-exami n io 0f the aforesaid witnesses so as to make their testimonies un’reliable‘or‘ untrustworthy. This apart, as per 'of post-mortem report‘ Causeiof‘death the deceased was shock and haemorrhage as a result of injuries caused to him^by hard,^sharp,heavy& blunt object and the death was homicidal in nature. .Thus, keeping ln view the behaviour of the members of the assembly^at the scene of incident where they were raising slogans^{“Radhelalkomaar} dalo", the arms carried by the members and considering the injuries^found on the body of deceased, we are of the considered view that common object of the assembly was to make murderous attack on the deceased and the appellants, who were members of that assembly,ⁱⁿ prosecution^of the common object of that assembly had forcibly entered the hospital^with deadly weapons and inflicted injuries on deceased Radhelal along with others which ultimately led to his death.

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As regards the submission of counsel for the accused/appellants that no specific overt acts was attributed to any of the appellants, it is settled position that once a membership of an unlawful assembly is established it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused.

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As regards the acquittal of co-accused persons on the same set of evidence, the trial Court has extended them benefit of doubt on the ground that they have not been identified by any of the prosecution witnesses and apart from that, there was no other cogent and clinching ewdence to connect them With the crime in question Whereas present appellants have been duly identified by Lal Singh Sidar (PW 4) Shyam , Narayan Ratre (PW-6) Yadum ni Mishra (PW—10) & PS Netam (PW 21) So far as the conViction of accused/appellants under Section 3 (2) ( )^oftheAct 1989 is concerned in the present case there is no eVidence :t all to the effect that the accused/appellants had committed the offence on the ground that the deceased belonged to Scheduled Caste community. in absence of such ingredients, merely because the deceased happens to be member of scheduled caste automatically the offence under Section 3 (2) (v) of the Act of 1989 is not made out against the accused/appellants.

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.For the forego‘ing reasons, the appeal is allowed in part. Conviction of accused/appellants under Sections 148, 452, 302/149 IPC and sentences imposed under those sections are hereby maintained However, conviction of accused/appellants under Section 3 (2) (v) of the Act, 1989^is hereby set aside and they are acquitted of that charger

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remaining part ofthe sentences imposed on them.

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Judge

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Bhikhar and Others v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Bhikhar and Others v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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