Hunga Kawasi Vs State of Chhattisgarh

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 143 of 2020

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Hunga Kawasi, S/o Budra Kawasi, Aged About 33 Years, Caste Madiya,

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Sonu Kawasi, S/o Late Dora Kawasi, Aged About 34 Years, Caste Madiya ,

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Budra Kawasi, S/o Late Ware Kawasi, Aged About 55 Years, Caste Madiya ,

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Jholu Kawasi, S/o Late Payka Kawasi, Aged About 28 Years, Caste Madiya , All are resident of Village Jheeram , Dorapara, Police StationDarbha , District- Bastar Chhattisgarh.

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---- Appellants Versus

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State of Chhattisgarh Through the Police Station Darbha , District Bastar Chhattisgarh.

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---- Respondent

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(Cause title taken from Case Information System)

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For Appellants : Mr. Vivek Shrivastava, Advocate For State/Respondent : Mr. R.K. Gupta, Addl. A.G.

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Hon'ble Shri Goutam Bhaduri, Judge Hon'ble Smt. Rajani Dubey, Judge Judgment on Board

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Per Goutam Bhaduri, Judge

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10.06.2024

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1 . This appeal under Section 374(2) has been filed by the appellants against the judgment of conviction and order of sentence dated 30.11.2019 passed by the learned 2 nd Additional Sessions Judge, Jagdalpur, District- Bastar in Sessions Trial No. 80/2018 whereby

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the appellants stand convicted and sentenced as under:-

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	Sentence		Conviction
Under	Section 302/34 of	R.I. for	Life and fine of
IPC		Rs.1,000	/- each, in default to
		undergo months	additional RI for 03
Under	Section 201/34 of	R.I. for	1 year and fine of
IPC		Rs.1,000	/- each, in default to
		undergo month	additional RI for 1

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(Both the sentences to run concurrently)

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2 . Case of the prosecution is that on 17.08.2018, the complainantPojje Markam along with her husband Gangaram Markam (deceased) and son Sukhram were drinking country-made liquor. At that time, 4 accused/appellants namely Hunga Kawasi, Sonu Kawasi, Budra Kawasi and Jholu Kawasi came there and called the deceased Gangaram as previous land dispute was existing between them. The allegation is that the deceased occupied the field forcefully belonged to the accused. The appellants dragged the deceased and took him towards one canal named Silkajhodi. At that time, the complainant went out to save her husband, thereafter all the accused took the deceased to the field and she saw that they assaulted the deceased by way of an axe turn by turn. She tried to intervene and requested not to kill, however, they did not accede to it and instead complainant and her son were threatened that if she does not leave the place, she would also be eliminated. After killing the deceased, they dragged the dead body and threw it into the canal which was seen by the wife and son. Merg intimation was registered on 18.08.2018 at the instance of wife of the deceased and based on the merg, the FIR was registered at Police Station- Darbha on the same day under Sections 302, 201, 34 and 506-B of IPC. Thereafter, the dead body was recovered and was subjected to postmortem. After arrest of the accused/appellants, on the basis of their memorandum statements, the weapon was

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seized. The statements of the eye-witnesses were recorded and charge-sheet was filed.

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3 . During the course of trial, the prosecution had examined as many as 17 witnesses and exhibited 38 documents. The appellants abjured their guilt and claimed to be tried.

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4 . Learned Sessions Judge on the basis of statement of the eyewitnesses i.e. (P.W.-7)- Pojje Markam & (P.W.-8)- Sukhram Markam convicted and sentenced the accused/appellants as stated in para 1 of the judgment. Hence, this appeal.

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5 . Learned counsel for the appellants would submit that it would be quite strange to note that the eye-witness-(P.W.-7)- Pojje Markam who is wife of the deceased though claimed to have seen the incident but did not report the incident to any of the villagers for a considerable time. He would further submit that the eye-witnesses though claimed to be present on the spot but statement of (P.W.-8)Sukhram Markam would reveal that he was inside the home while the incident happened and (P.W.-7)- Pojje Markam, the mother was also with him. Therefore, it is a case of no evidence and only on the basis of the circumstantial evidence and presumption, the conviction has been made.

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He would further submit that it is also not clear from the statements as to who made the assault and only omnibus statements have been made. Therefore, in absence of such clarity

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of evidence, all the accused/appellants cannot be convicted with the aid of Section 34 of IPC and benefit of doubt should be extended to the accused/appellants. Hence, the appeal deserves to be allowed.

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6 . Per contra , learned State counsel would submit that the statement of the eye-witness remains unrebutted which is duly corroborated by postmortem report (Ex.P/19) and also by evidence of Dr. Mahendra Prasad (P.W.-11). He would submit that in view of the statements of the eye-witnesses read with postmortem report and statement of doctor who conducted the postmortem, no ambiguity is left out. He would further submit that the weapon i.e. the axe was used at the instance of one of the appellants namely Hunga Kawasi. The query report also affirmed the fact that the injury of the like nature which was found on the body of the deceased could have been caused by the axe. Therefore, the conviction is well merited and does not call for any interference by this Court.

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7 . We have heard learned counsel for the parties and perused the evidence available on record.

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8 . Primarily, the eye-witnesses in this case are (P.W.-7)- Pojje Markam & (P.W.-8)- Sukhram Markam who are the wife and son of the deceased respectively. (P.W.-7)- Pojje Markam stated that the deceased was her husband. She further named all the four accused/appellants- Hunga Kawasi, Sonu Kawasi, Budra Kawasi & Jholu Kawasi and stated that they quarreled with her husband and

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caused assault on various parts of his body i.e. on head, waist by way of axe and killed him. She further stated that allegations were made that the deceased used to perform witchcraft in the village and thereafter, the dead body was thrown into the canal. She further stated that she has seen all the four accused inflicting assault on the deceased. She was there and tried to protect her husband but was threatened and received injury. Despite that the accused/appellants continued to assault and killed her husband. In the cross-examination of this witness, nothing has been elicited to negate the role attributed by the accused/appellants.

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9 . This statement of eye-witness was followed by statement of another eye-witness P.W.- 8 Sukhram Markam who is aged about 13 years. His statement would reveal that before recording his statement, his intellect capacity was tested by the trial Court and after satisfying itself that he is able to depose, the statement was recorded. He stated that all the four accused/appellants were quarreling with his father, thereafter they assaulted by way of axe and threw the dead body into the canal and while the assault was being made, he was present inside the house along with his mother- (P.W.-7) – Pojje Markam. In his cross-examination, he stated that before the incident, the deceased and mother were having liquor and other villagers were also drinking and at that time, he was inside the house along with his mother.

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10. The statement of (P.W.-7)- Pojje Markam goes to show that the

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four accused/appellants had made the assault. This is followed by the postmortem report which corroborated the statement of the eye-witness. The postmortem report is Ex. P/19. According to Dr. Mahendra Prasad (P.W.-11) following injuries were found:-

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1. Lacerated wound over right side of neck above clavicle oblique running 9cmx 4cmx muscle deep, vessels of neck lacerated.

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2. Incised wound behind right ear oblique running 7cmx 2cmx muscle deep.

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3. Incised would over anterior portion of neck between larynx & chin transverse running of sizes 8cmx 2.5cmx muscle deep, 7cmx 2.5cmx muscle deep, 7cmx 2.5cmx muscle deep trachea lacerated.

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4. Lacerated wound over left side of chin in the size of 2”x1”x muscle deep.

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5. Incised wound vertical running over right cheek in size of 7cmx 3cmx M.D.

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6. Lacerated wound oblique running over right zygomatic & frontal area of size 7cmx 3cmx M.D.

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7. lacerated wound over left ear pinna in size of 3x1 cm, 4x 1cm.

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8. Lacerated wound over left face vertically in front of left ear in size of 2 “ x 2cmx M.D.

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9. Lacerated wound over left eye (orbital region) oblique running 4”x 1” with maceration of left eye ball fractured of left infraorbital bone.

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10. Lacerated wound over left mandible transverse running 3cmx 1cmx M.D.

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11. Lacerated wound vertically over left leg upper 1/3 region over skin anteriorly 3cmx 1cmx skin deep.

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12. Incised wound over upper part of nose transverse 1”x 2cmx bone deep with fracture of nasal bone.

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13.Multiple lacerated wounds obliquely over right face extending from right zygomatic area to oral cavity with fracture of facial bone, mandible, maxillary area, teeth of right side collectively of size 5”x3”x bone & muscle deep.

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14. Lacerated wound over lower lip right side 3cmx 1cmx M.D.

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15. Incised wound over left chest obliquely over anterior axillary line 2.5cmx0.5cmx muscle deep (Penetrating stab injury).

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16. Penetrating stab injury over Right infrascapular region obliquely 2”x2.5cmx M.D. lateral aspect.

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17. Oblique running parallel lacerated wound over right infrascapular region 3”x2cmxM.D.

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18. Stab injury vertically over back above renal area 60 th sides 4cmx 1cmx M.D., 5cmx 1cmx M.D. with abrasion 5cmx 2cmx S.D. medially to wound of right side.

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19. Incised wound transverse running over right flank 3.5cmx 1cmx M.D.

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20. Oblique running incised wound over left posterior axillary line 6-7 I.C.S. of size 2.5”x2.5cmx M.D.

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21. Incised wound over right gluteal area lower portion medially of size 2.5”x 2cmx M.D. and over right side of scrotum 2cmx0.5cmx S.D.

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11. As per the postmortem report, as many as 21 incised wounds were found all over the body of the deceased and cause of death was hemorrhage as a result of fatal injury to the vital organs. The photographs of the deceased produced by the prosecution which are Ex. P/37 also show the injuries on the dead body which is also corroborated by the eye-witnesses’ statement. Therefore, the author of causing the injuries was attributed to the accused/appellants.

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12. Though the arguments have been made that who caused the injury has not been stated specifically but the statement of P.W.-7 Pojje Markam would show that simultaneously there was consensus of the mind of four persons participating in the crime inasmuch as all the accused went to the house of the deceased and dragged him out. Thereafter, the statement of eye-witness wife (P.W.-7) Pojje Markam would show that firstly, they started quarrelling with the deceased over the land dispute and thereafter started beating him and he was dragged towards a place. As per P.W.-7 Pojje Markam, the allegation of witchcraft was one of the reasons apart from the land dispute. Therefore, the ultimate felony was intentionally committed by the accused in furtherance of their common intentions and the fact that all of them went to the house of the deceased would show that the deceased was not an aggressor and that there was meeting of mind of all the accused/appellants which lead to a constructive liability and it would not be necessary for the prosecution to disclose that out of

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21 incised injuries on the body of the deceased, which particular injury was caused by whom.

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13. The Supreme Court in the matter of Ram Naresh Vs. State of Uttar Pradesh reported in (2024) 1 SCC 443 has laid down the principles of joint liability of Section 34 of IPC reiterating the principles laid down in the case of Krishnamurthy Vs. State of Karnataka; (2022) 7 SCC 521 in paras 11 and 12 as under:-

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11. Assistance has been taken of para 26 of the decision of this Court in Krishnamurthy v. State of Karnataka; (2022) 7 SCC 521 , which is reproduced herein below:

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"26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co- perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that coperpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived,

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mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the coassailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. We must remember that Section 34, IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoke to implicate and fasten joint liability on other coparticipants."

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A plain reading of the above paragraph of Krishnamurthy case reveals that for applying Section 34 IPC there should be a common intention of all the co-accused persons which means community of purpose and common design. Common intention does not mean that the co-accused persons should have engaged in any discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. Common intention is a psychological fact and it can be formed a minute before the actual happening of the incidence or as stated earlier even during the occurrence of the incidence.”

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14. Applying the aforesaid principles of law laid down by Hon’ble Supreme Court to the facts of the present case coupled with the statements of the eye-witnesses, it was not necessary to show the individual act of the appellants in commission of crime and looking to the manner in which the assault was made causing as many as

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21 incised injuries to the deceased and he was done to death, common intention of the appellants for commission of murder of the deceased and causing disappearance of evidence of the crime can safely be inferred. Being so, this Court finds no illegality or infirmity in the impugned judgment of the trial Court warranting any interference by this Court.

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15. In the result, the appeal being without any substance is liable to be and is hereby dismissed.

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Sd/Sd/-

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(Goutam Bhaduri) (Rajani Dubey) Judge Judge

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Ruchi

Hunga Kawasi v. State of Chhattisgarh

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Hunga Kawasi v. State of Chhattisgarh

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