Nikki Ajgalle Vs State of Chhattisgarh

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N A F R HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1811 of 2022

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Virendra @ Dhirendra Jangde S/o Shri Gorelal Jangde Aged About 18 Years R/o Village Mudpar, Thana- Bilaigarh District - BalodabazarBhatapara Chhattisgarh.

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Gorelal Jangde S/o Agarman Jangde Aged About 18 Years R/o Village Mudpar, Thana- Bilaigarh District - Balodabazar-Bhatapara Chhattisgarh.

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Dhaniram Jangde S/o Shri Agarman Jangde Aged About 47 Years R/o Village Mudpar, Thana- Bilaigarh District - BalodabazarBhatapara Chhattisgarh.

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---- Appellants

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Versus

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State of Chhattisgarh Through The District Magistrate Balodabazar District - Balodabazar-Bhatapara Chhattisgarh.

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---- Respondent

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(Cause Title taken from Case Information System)

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For Appellant : Mr. Sunil Sahu, Advocate. For Respondent/State : Mr. R.S.Marhas, Additional Advocate General

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CRA No. 1818 of 2022

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Dhananjay Kurrey S/o Radheyshayam Kurrey Aged About 23 Years R/o Village Mudpar, Police Station Bilaigarh, District : BalodabazarBhathapara, Chhattisgarh

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Radheyshayam Kurrey S/o Jhaduram Kurrey Aged About 60 Years R/o Village Mudpar, Police Station Bilaigarh, District : BalodabazarBhathapara, Chhattisgarh

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Bhupendra Ratnakar S/o Shayamlal Ratnakar Aged About 30 Years R/o Village Mudpar, Police Station Bilaigarh, District : BalodabazarBhathapara, Chhattisgarh

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Bhagirathi Kurrey S/o Radheyshayam Kurrey Aged About 24 Years R/o Village Mudpar, Police Station Bilaigarh, District : BalodabazarBhathapara, Chhattisgarh

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Mangalavat Bai Kurrey W/o Radheyshayam Kurrey Aged About 50 Years R/o Village Mudpar, Police Station Bilaigarh, District : Balodabazar-Bhathapara, Chhattisgarh

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---- Petitioner

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Versus

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State of Chhattisgarh Through Station House Officer, Police Station Bilaigarh, District : Balodabazar-Bhathapara, Chhattisgarh

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---- Respondent

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(Cause Title taken from Case Information System)

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For Appellant : Mr. Hemant Gupta, Advocate. For Respondent/State : Mr. R.S.Marhas, Additional Advocate General

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CRA No. 2019 of 2022

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Nilesh Kumar Ajgalle S/o Shyamnarayan Ajgalle Aged About 21 Years R/o Village Mudpar, Police Station Bilaigarh, District Balodabazar - Bhatapara (C.G.)

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Shyamnarayan Ajgalle S/o Ramsai Ajgalle Aged About 40 Years R/o Village Mudpar, Police Station Bilaigarh, District Balodabazar - Bhatapara (C.G.)

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---- Appellants

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Versus

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State of Chhattisgarh Through Police Station Bilaigarh, District Balodabazar - Bhatapara (C.G.)

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---- Respondent

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(Cause Title taken from Case Information System)

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: Mr. Shikhar Sharma, Advocate. For Appellant For Respondent/State : Mr. R.S.Marhas, Additional Advocate General

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CRA No. 313 of 2023

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Nikki Ajgalle S/o Narayan Ajgalle Aged About 21 Years R/o Village Mudpar, Police Station Bilaigarh, District : Balodabazar-Bhathapara, Chhattisgarh

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Vikki Ajgalle S/o Late Ram Narayan Ajgalle Aged About 22 Years R/o Village Mudpar, Police Station Bilaigarh, District : BalodabazarBhathapara, Chhattisgarh

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Smt. Sukhsagar Ajgalle D/o Late Ram Narayan Ajgalle Aged About 45 Years R/o Village Mudpar, Police Station Bilaigarh, District : Balodabazar-Bhathapara, Chhattisgarh

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---- Appellants

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Versus

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State of Chhattisgarh Through - Police Station Bilaigarh, District : Balodabazar-Bhathapara, Chhattisgarh

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---- Respondent

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(Cause Title taken from Case Information System)

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For Appellant	: Mr. Shikhar Sharma,	Advocate.
For Respondent/State	: Mr. R.S.Marhas, General	Additional Advocate
Date of Hearing	: 26.02.2024
Date of Judgment	: 12.03.2024

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Hon'ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Arvind Kumar Verma, Judge

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C.A.V. Judgment

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Per Ramesh Sinha, Chief Justice

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1. The appellants have filed these appeals under Section 374(2) of the Code of Criminal Procedure, 1973 ( for short, the Cr.P.C. ) questioning the impugned judgment dated 15.11.2022 passed in Special Sessions Trial No. 36 of 2018 by which the learned First Additional Sessions Judge (F.T.C.) Balodabazar, District- BalodabazarBhatapara (C.G.), whereby the appellants have been convicted and sentenced as under:-

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Conviction under Section	Sentence (Rigorous imprisonment)	Fine	In default of payment of fine additional imprisonment
120-B IPC	2years	Rs. 200/-	02 months
147 IPC	2years	Rs. 200/-	02 months
148 IPC	2years	Rs. 200/-	02 months
452 IPC	2years	Rs. 200/-	02 months
302/149 IPC	Life imprisonment	Rs. 200/-	02 months
436/149 IPC	Life imprisonment	Rs. 200/-	02 months
435/149 IPC	2years	Rs. 200/-	02 months
201/149 IPC	2years	Rs. 200/-	02 months
307/149 IPC	2years	Rs. 200/-	02 months
25/27 Arms Act	2years	Rs. 200/-	02 months
All sentences have been d	irected to run co	ncurrently.

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2. There were total 16 accused in this case, however, two of the accused namely Chandan Jangde and Ram Say Ajgalley expired during the trial itself and one accused was a juvenile, and as such, 13 accused were convicted and sentenced by the learned trial Court.

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3. Case of the prosecution, in short, is that on 17.12.2017 at about 6 p.m., the complainant Priyanka Tandon (PW-6), her mother Neerabai Tandon ( hereinafter referred to as ‘the deceased’ ), father Yadram Tandon (PW-11), brother Gopichand (PW-8) and Satish were present in their house, at that time accused-Nikki Ajgalle and Chandan Ajgalle came to their house and called Gopichand for accompanying them in Gambling. When Gopichand denied to go alongwith them, the accused Nikki and Chandan started abusing him and threatened to kill him. Thereafter, they went away from the spot Later, the accused Nikki Ajgalley, Nilesh Ajgalley, Shyamnarayan Ajgalley, Ramsay Ajgalle, Sukhsagar Ajgalle, Bhagirathi Kurre, Dhannu Kurrey, Rujhu Kurrey, Radheshyam, Manglawat Bai, Gorelal

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Jangde, Vikky Jangde, Dhaniram Jangde, Chandan Jangde, came armed with Lathi, Danda, Axe, Battle Axe, Farsi, Gupti and because of some previous animosity, they started abusing the complainant party with filthy language and entered their house, assaulted the deceased and caused her death. Thereafter, the dead body was taken to the place where the paddy was kept and there, they set the body on fire by putting hay ( Paira ) on it with an intention to cause disappearance of evidence. The further case of the prosecution is that the accused had assaulted Yadram Tandon (PW-11) husband of the deceased, Kamlesh (PW-7) and Gopichand (PW-8) who are the sons of the deceased and caused several injuries to them.

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4. On the basis of information given by Priyanka Tandon (PW-6), Merg intimation No. 77/2017 (Exhibit P/25) was registered by Police of Police Station Bilaigarh, District Balodabazar, on 17.12.2017 at 20:30 hours. Thereafter, FIR (Exhibit P/22) bearing Crime No. 433/2017 was registered by the police at 20:40 hours for the offences under Sections 147, 148, 149, 120-B, 201, 452, 302, 307, 435, 436 of the Indian Penal Code and 25/27 of the Arms Act.

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5. The body was sent for postmortem on 18.12.2017 to Community Health Centre, Bilaigarh, District Balodabazar-Bhatapara and Dr. Narayan Singh (PW-10) conducted the postmortem.

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6. The police of Police Station Bilaigarh investigated the matter and arrested the accused persons and recorded their memorandum statement and in presence of witnesses, seized the weapons used in commission of offence and after completing the investigation, filed charge-sheet before the Judicial Magistrate, First Class, Bilaigarh. However, the matter was committed to the Court of Sessions on 29.06.2018. The learned First Additional Sessions Judge (FTC)

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Balodabazar, framed charges against the appellant/accused for the offences under Sections 147, 148, 452, 302, 149, 436/149, 435/149, 201/149, 307/149 of the IPC and Section 25 / 27 of the Arms Act against the appellants on 24.08.2018. The appellants/accused abjured the guilt and prayed for trial.

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7. Amongst others, the prosecution has exhibited the following documents in support of its case:

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Nuksani Panchnama (Exhibit P/1 and P/2)

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Memorandum (Exhibit P/3 to P/9)

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Property Seizure Memo (Exhibit P/10 to P/20)

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Absconding Panchnama (Exhibit P/21)

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First Information Report (Exhibit P/22)

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Crime Details Form (Exhibit P/23 and P/24)

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Merg Intimation (Exhibit P/25)

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Spot Map (Exhibit P/26)

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Panchnama (Exhibit P/27)

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P.M. Report (Exhibit P/28)

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Query Report (Exhibit P/29)

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Dead Body Supurdnama (Exhibit P/30)

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Application for medical examination of Priyanka and medical examination report (Exhibit P/31A and P/31)

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Application for medical examination of Yadram and medical examination report (Exhibit P/32A and P/32)

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Application for medical examination of Kamlesh Tandon and medical examination report (Exhibit P/33A and P/33)

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Application for medical examination of Gopichand and medical examination report (Exhibit P/34A and P/34)

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Query Report (Exhibit P/35)

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Summons under Section 175 of Cr.P.C. (Exhibit P/35)

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Duty Certificate (Exhibit P/36)

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Inquest Report (Exhibit P/36)

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Application for P.M. Report (Exhibit P/37)

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Arrest/Court Surrender Memo (Exhibit P/38 to P/51)

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Memo for query report (Exhibit P/52)

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Memo for query report (Exhibit P/52A to P/52E).

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Memo for F.S.L. report (Exhibit P/53)

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Receipt of Exhibits (Exhibit P/54)

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F.S.L. report (Exhibit P/55)

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8. In order to bring home the offence, prosecution examined as many as 17 witnesses namely, Pukram Tandon (PW-1), Bhupendra (PW-2), Leela Tandon (PW-3), Toran Lal (PW-4), Govind Tandon (PW-5), Priyanka Tandon (PW-6), Kamlesh Tandon (PW-7), Gopichand Tandon (PW-8), Dilip Kumar Khairwar (PW-9), Dr. Narayan Singh (PW-10), Yadram Tandon (PW-11), Dr. Suresh Kumar Khuntey (PW12), Prasann Kumar Swai (PW-13), Dhaneshwar Verma (PW-14), Devnarayan Sahu (PW-15), K.S. Usendi (PW-16) and Jaidev Bhoi (PW-17).

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9. The statement of the convict/appellants was recorded under section 313 CrPC on 17.08.2022. They have expressed their ignorance about most of the questions, however, some of them were denied as well. They stated that they are innocent and have been falsely implicated.

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10. In support of their case, the appellants have exhibited the statement of Priyanka Tandon (DW-1), Kamlesh Tandon (DW-2), Gopichand Tandon (DW-3) and the judgment dated 26.02.2018 of the JMFC, Bilaigarh and examined the witnesses namely Shiv Kumar (DW-1), Teras Ram (DW-2), Sadewar (DW-3) and Chanda Bai (DW-4).

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11. The learned trial Judge, after considering the statement of witnesses and evidence available on record, convicted and sentenced the

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appellants/accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellants/convicts.

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12. Mr. Sunil Sahu, Mr. Hemant Gupta and Mr. Shikhar Sharma, learned counsel appearing for the respective appellants submit that the judgment passed by the learned trial Court is contrary to the facts, law and circumstances of the case. The allegation is that a group of people attacked the injured and deceased but which appellant attacked which injured and with which weapon has not been clearly stated. Some of the appellants have been implicated in this case with the aid of Section 149 of the IPC though their presence at the spot is also doubtful. It has also been argued that the deceased had sustained only five ante-mortem injuries whereas the allegation is that 15 accused assaulted the deceased with Lathi, Danda, axe , battle axe, and sword and the number of injuries sustained by the deceased should have been much more. Due to previous animosity with regard to the land dispute, the female members namely Manglawat Bai and Sukhsagar Bai have also been roped in this case.

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13. According to Mr. Sunil Sahu, learned counsel for the appellants, as per the evidence of the complainant Priyanka Tandon (PW-6), the appellant Bhagirathi, Radheshyam, Nilesh, Dhannu, Vikki, Ramsay and Shyamnarayan caused the injuries to the deceased Neera Bai Tandon using Sword, Tabbal etc. and the allegation of setting the body on fire is against the appellant Smt. Sukhsagar Bai, Manglawat Bai, Nikky, Radheshyam, Bhagirathi, Ramsay and Shyamnarayan but there is no active role of the appellants namely Virendra, Gorelal and Dhaniram neither any weapons have been seized from them. Kamlesh (PW-7), Gopichand (PW-8) and Yadram (PW-11) are the injured witnesses who have deposed before the Court which is

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contrary to the statement made under Section 161 Cr.P.C. (Exhibits D-1 to D-4). Further, there is no seizure from the appellants as the seizure witnesses Tukaram (PW-1) and Bhupendra (PW-2) have turned hostile. The learned trial Court has convicted the appellants with the aid of Section 149 of the IPC which is unjust.

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14. Mr. Hemant Gupta, learned counsel for the appellants {in Cr.A. No. 1818/2022} submits that though according to the prosecution case, the allegation is that Radheshyam Kurrey had assaulted the injured and the deceased with sword but a Danda has been recovered from him. The land dispute was only with the Bhagirathi Kurrey because of which there could have been some rivalry but the other appellants have also been dragged in this case.

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15. It has been further argued by learned counsel for the respective appellants that all the appellants/accused have been convicted for the offence punishable under Section 302 of the IPC with the aid of Section 149 of the IPC which is unjust and improper. The prosecution could not prove that the appellants herein had shared a common object with other members of the alleged unlawful assembly. For convicting a person under Section 149 IPC, the prosecution should have established with the help of evidence that firstly they had a common object and were part of unlawful assembly and that they were aware of the offences likely to be committed is to achieve the said common object and both such circumstances did not exist in the case in hand. Hence, convicting and sentencing all the appellants for the offence of murder, was uncalled for. In support of their contentions, they rely on the decision of the Supreme Court in Naresh @ Nehru v. State of Haryana {Cr.A. No. 1786/2023, decided on

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09.10.2023} and the decision rendered in Javed Shaukat Ali Qureshi v. State of Gujarat {(2023) 12 SCR 220}.

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16. On the other hand, Mr. R.S.Marhas, learned Additional Advocate General appearing for the State/respondent submits that the learned trial Court was fully justified in convicting and sentencing the convict/appellants as mentioned in the opening paragraph. There is ample evidence on record to hold the appellants guilty of the offence. The order passed by the learned trial Court needs no interference and the appeal filed by the convict/appellants be dismissed.

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17. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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18. The merg intimation (Exhibit P-25) was recorded by Head Constable Devnarayan Sahu (PW-15) on the information given by Priyanka Tandon (PW-6). Thereafter, K.S.Usendi (PW-16) the then Inspector and Station House Officer, Bilaigarh had registered the FIR (Exhibit P/22) against the 16 accused persons vide Crime No. 433/2017. Inquest (Exhibit P/36) was prepared after giving notice (Exhibit P/35) to the witnesses. The body of the deceased was sent to Community Health Centre, Bilaigarh for postmortem and had also prepared the spotmap. On 18.12.2017, he had also prepared the Nuksani Panchnama (Exhibit P/1) in presence of the witnesses. This witness had recorded the memorandum statement of Bhagirathi, Nilesh Kumar Ajgalle, Ramsay Ajgalle, Radheshyam Kurrey, Vikki Ajgalley, Nikki Ajgalley. He had recovered one axe from Nilesh Kumar Ajgalle, a bamboo stick from Radheshyam Kurrey, an iron rod (Sabbal) from Vikki Ajgalle, one sword like sharp weapon from Nikki Ajgalley, one iron sword from Bhagirathi Kurrey. He also seized the clothes of the

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injured Kamlesh Tandon which had blood stains on it. He also seized one nose pin, two teeth, hair of a woman, plain soil and blood stained soil from the spot, the ashes of the paddy and hay, one old motor cycle in burnt condition, one plastic can of 5 liters containing kerosene about 100 m.l. match box, match stick, one old mobile was also seized from the house of the deceased. He also seized one tractor and bi-cycle in burnt condition. He also seized one bamboo stick from accused Ramsay Ajgalley. He had also arrested the accused/ appellants. This witness further states that during the course of investigation, he had recorded the statements of Priyanka Tandon, Gopichand Tandon, Kamlesh Tandon, Yadram Tandon, Bhupendra Tandon, Leela Tandon, Govind Tandon, Pukram Tandon, Toran Kurrey. He had also sent the seized articles to the FSL and also to the Community Health Centre, Bilaigarh, raising certain queries.

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19. The injured witnesses namely Priyanka Tandon (PW-6), Yadram (PW-11), Kamlesh (PW-7) and Gopichand (PW-8) were sent for MLC at C.H.C. Bilaigarh. Exhibit P/31 is the MLC report with regard to Priyanka Tandon (PW-6) wherein the Dr. Suresh Kumar Khuntey (PW-12) did not found any external injury, hence she cannot be said to be an injured eye witness but only an eye witness. So far as injured Yadram (PW-11) is concerned, the Doctor found lacerated wound on the dorsal aspect of left wrist caused by hard and sharp object (Exhibit P/32). With regard to Kamlesh (PW7), Dr. Khuntey found two lacerated wounds caused by hard and sharp object (Exhibit P/33) and similar injuries were found with respect to Gopichand (PW-8).

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20. Exhibit P/35 is the query report with regard to Gamchha, Baniyan and Lungi regarding which Dr. Suresh Kumar Khuntey (PW-12) had advised for FSL examination. The Investigating Officer K.S. Usendi

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(PW-16) had made various queries vide Exhibit P/52, P/52A to E. He had also sent the seized articles i.e. hairs of the deceased, blood stained soil, plain soil from the place of incident, the clothes seized from the injured Kamlesh Tandon, sword seized from appellantBhagirathi Kurrey, sword seized from appellant-Nikki Ajgalle, sabbal seized from appellant-Vikki, one bamboo stick seized from appellantRadheshyam Kurrey, one axe seized from appellant-Nilesh and one axe seized from a juvenile in conflict with law. The said articles were marked as Article B, C, D, E, F, G, H, I, J, K. In the report (Exhibit P/55), it was opined that the hair was a human hair, and except the plain soil i.e. Article D, the danda seized from appellantVikki, and bamboo stick seized from appellant-Ramsay, blood was found in all other articles. In the blood stained soil and the clothes of the injured, human blood was found.

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21. The witness Pukram Tandon (PW-1) though admits his signature on seizure memorandum Exhibit P/10 to P/16 and P/20 but he denies that the police had seized anything in his presence from the accused persons and as such, he was declared hostile. Bhupendra (PW-2) has also made similar deposition. Leela Tandon (PW-3) and Toranlal (PW-4) are the witnesses to Farari Panchnama (Exhibit P/21), however, they have turned hostile but have admitted their signatures on it. Govind Tandon (PW-5) is the neighbour of the deceased who has deposed that he is unaware of what had happened and turned hostile.

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22. Priyanka Tandon (PW-6) had lodged the FIR (Exhibit P/22). She has deposed before the Court that on 17.12.2017 at about 6 p.m. the accused Nikky and Chandan came to her house to call her brother Gopichand. Her father Yadram Tandon and mother Neera Bai

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Tandon were present at that time, they all told the accused persons that they are in a habit of gambling and they should not come to their house. Later, accused Nikky and Chandan went to the house of Bhagirathi for gambling. His mother scolded them. Because of the said incident, Bhagirathi, Rujhu Kurre, Dhannu Kurre, Radheshyam Kurrey, Manglawat Bai Kurrey, Nikki Ajgalle, Vickey Ajgalle, Shyamnarayan Ajgalley, Ramsay Ajgalley, Nilesh Ajgalley, Sukhsagar Bai Ajgalley, Gorelal Jangde, Dhaniram Jangde, Vicky Jangde, Chandan Jangde and Bhupendra Ratnakar, came towards their house and started hurling abuses. This witness clearly states that Bhagirathi was carrying a sword, Radheshyam a tabbal, Rujhu an axe, Dhannu a battle axe, Nikki a sword, Vickey an iron rod, Shyamnarayan a tabbal, Ramsay a sword, Nilesh Ajgalle an axe, Gorelal a long knife, Dhaniram a knife, Chandan a sword, Vikki Jangde an axe. When the father (PW-11) of this witness saw them coming towards them armed heavily, he said that they should run away from that spot. While they were running away from that spot, she saw that her mother was trying to hide in the house of Govind Tandon but she was caught by the accused persons and they killed her in front of the house of Govind Tandon. Accused Bhagirathi assaulted the deceased on her private part with a sword, Radheshyam assaulted with a sword on her neck, Rujhu assaulted on the stomach with an axe, Dhannu with a sword on her shoulders and back, Nikki with a sword on the head, Vikki with an iron rod on the lips and face, Ramsay with a sword on the hands, Shyamnarayan with tabbal on both the hands near shoulder of the deceased because of which she died on the spot. After causing murder, the accused picked her and threw the dead body in the courtyard of their house. Thereafter,

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accused Sukhsagar Bai and Manglawat Bai covered the dead body with hay and poured kerosene and set the dead body on fire. Accused Nikki, Radheshyam, Bhagirathi, Ramsay and Shyamnarayan also put the dead body on fire.

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23. Priyanka Tandon (PW-6) further goes to state that she and her father were hiding inside the house when the accused broke open the door and entered the house and set the entire house on fire. When she called the '108 Ambulance', on hearing the sound of the ambulance, the accused ran away. One tractor, one motor cycle, one bi-cycle, three heaps of paddy, one heap of hay were also set on fire. They were also assaulted by the accused appellants. She states that she had received burn injuries on her forehead, her father had sustained injuries with a sword on his left hand and her brother Kamlesh and Gopichand had received injuries with a sword on their left hand. In the cross examination, this witness states that Manglawat Bai is the wife of accused Radheshyam and their sons are Bhagirathi, Dhannu and Rujhu. The father of PW-6 was having some land dispute with them since 2016.

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24. Kamlesh (PW-7) is one of the injured eye witness and brother of Priyanka Tandon (PW-6). He had stated that Bhagirathi had caused injuries on his left hand near the palm with a sword. He stated that when the accused were assaulting the deceased, he ran away to save his life and hide himself in the fields and he is not aware as to what happened thereafter.

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25. Similar deposition has been made by another injured eye witness namely Gopichand Tandon (PW-8) who was assaulted by Bhagirathi and Nikki with tabbal. He further stated that these two accused had assaulted his father and his brother Kamlesh also.

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26. Yadram Tandon (PW-11) is also one of the injured eyewitness who knew all the accused/appellants. He is the husband of the deceased. He stated that all the accused came heavily armed and assaulted his wife and his sons Kamlesh and Gopichand and also her daughter Priyanka Tandon. His wife died because of the assault made by the appellants.

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27. Dilip Kumar Khairwar (PW-9) is the Patwari who had prepared the spot map.

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28. Dr. Narayan Singh (PW-10) conducted the postmortem of the deceased. On the basis of his report (Exhibit P/28), he deposed that on examination, he found that rigor mortis was present. The body was burnt from head till knees. The burns were post-mortem. On both the parietal bones of her head, fracture was found which was brain deep, wind pipe was found to be broken, fracture was present in both the wrists, incised wound was present on the stomach which was deep upto the intestine, incised wound was also present on her private part. These injuries were sufficient to cause death in ordinary course. Cause of death was because of grievous injuries sustained on the head.

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29. Though the appellant-Radheshyam had examined Shivkumar Narang (DW-1) in support of his case who states that on the date of incident, the appellant Radheshyam was alongwith him at village Damakheda. Terasram (DW-2) stated that he knew the appellants Gorelal and Dhaniram. In December, 2017, the accused Dhaniram, Gorelal, Chadan, Dhirendra and Birju had gone to participate in a programme of former Chief Minister, Ajit Jogi. In the evening, when they were returning, night had fallen and when he asked them to stay there only, they did not stayed there but went to village Navrang where they

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stayed in the night. However, he further states that whether they stayed there or not is not known to him. Sadewar (DW-3) states that he knew the the accused Dhaniram and Gorelal. On 17.12.2017, he had gone to participate in a programme of former Chief Minister where he met Dhaniram and Gorelal. They stayed in his house in the night and went back on the next day. Another defence witness Chanda Bai (DW-4) states that she knew the accused Shyam Narayan who was in Jammu on 17.12.2017 as she alongwith her husband had gone to Jammu for earning their livelihood. Accused Shyamnarayan was residing in Jammu 4 months before 17.12.2017. The evidence of the defence witness does not inspire confidence and appears to be false as their presence has been stated on the spot on the date of incident by the injured eye witnesses.

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30. There is no reason to disbelieve the evidence of the injured eye witnesses namely Yadram (PW-11), Kamlesh (PW-7) and Gopichand (PW-8) and also the evidence of the eye witness Priyanka Tandon (PW-6) on whose instance the FIR was lodged. The injuries sustained by the deceased and the injured eye witnesses are incised wounds, fractures and the injuries sustained by the deceased are also such which could be caused by axe, sword, sabbal, tabbal, bamboo stick etc. and from the evidence of the prosecution witness, it is apparent that there existed some land dispute between the appellants and the deceased family since long. On the date of incident, there had a scuffle between the family of the deceased and Nikki Ajgalley and Chandan Jangde who later on came alongwith other accused persons/appellants armed heavily with axe, iron rod, sword, bamboo stick etc. and mercilessly assaulted the deceased who could not escape or run to save her life. The witnesses Priyanka Tandon,

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Kamlesh, Gopichand and Yadram could save their lives only after they locked themselves in the house from inside.

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31. The statement of an injured eye-witness is an important piece of evidence which cannot be easily discarded by a Court. Minor discrepancies do not matter. In State of M.P. v. Mansingh and Others {(2003) 10 SCC 414} where conviction of the accused by the trial court, inter alia, under Section 302, was set aside by the High Court on the so called discrepancies of an injured witness, the Hon’ble Supreme Court, while allowing the State’s appeal against the acquittal said this :

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“9. The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Merely because there was no mention of a knife in the first information report, that does not wash away the effect of the evidence tendered by the injured witnesses PWs 4 and 7. Minor discrepancies do not corrode the credibility of an otherwise acceptable evidence. The circumstances highlighted by the High Court to attach vulnerability to the evidence of the injured witnesses are clearly inconsequential.”

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32. The Supreme Court, in an earlier decision rendered in Rammi v.

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State of M.P. {(1999) 8 SCC 649}, had held as under:

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“24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.”

¶137

33. There is no quarrel with regard to the ratio laid down by the Supreme

¶138

Court in Naresh @ Nehru (supra) and Javed Shaukat Ali Qureshi

¶139

18

¶140

(supra), however, the said judgments are not of any help to the appellants and they are distinguishable on facts.

¶141

34. Section 149 of the IPC reads as under:

¶142

“149. Every member of unlawful assembly guilty of offence committed in prosecution of common object .—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.”

¶143

35. When a person is attacked by a group of persons, it is difficult to establish the part played by each and every member during the commission of the offence. In such cases, all the accused persons can be charged with Section 149. The crux of this provision is that every member of an unlawful assembly sharing a common objective will be liable for the offence committed by the group. They would also be guilty if they knew that an offence was likely to be committed and actively participated in it.

¶144

36. In the present case, as per the evidence of the eye witness Priyanka Tandon (PW-6) and other injured eye witnesses Yadram (PW-11), Kamlesh (PW-7) and Gopichand (PW-8), after the verbal duel took place between the deceased and the accused/appellants Nikki Ajgalle and Chandan Jangde, all the other accused came like a mob armed with axe, lathi, danda, tabbal, sabbal, sword etc. A merciless attack was initiated by the accused on the deceased and the injured witnesses. They not only attacked the deceased but also the injured eye witnesses. From such act, it can safely be said that the intention of the such unlawful assembly was to cause death of the deceased and other injured eye witnesses who could anyhow manage to escape from the spot. Hence, the ingredients required for convicting the

¶145

19

¶146

accused with the aid of Section 149 IPC is very much present in this case as every member of the said unlawful assembly could easily understand the consequences of assault given by such weapons.

¶147

37. When such incident occurred, it is quite natural that there can be some error in narration of the facts as to which accused was carrying what weapon and which accused caused injuries on which part of the body of the deceased and the injured. It cannot be expected that in such a horrible and dreadful situation, a victim who has nothing in his mind but to run for his life, would be able to recall the entire incident in correct sequence with all minute details. There may be some minor variations in the statement of witnesses but the fact that all the witnesses have named the assailants and their presence has also been found to be proved on the spot on the date of incident.

¶148

38. The act of the appellants/accused in causing murder of a woman in a brutal manner and thereafter setting the body on fire in order to cause disappearance of evidence is a grave offence for which the learned trial Court, after proper appreciation of evidence available on record, has rightly convicted and sentenced the appellants as aforementioned. We do not find any illegality or infirmity in the judgment of conviction and order of sentence passed by the learned trial Court.

¶149

39. In view of the above discussion, this Court is of the considered opinion that the judgment passed by the learned trial Court needs no interference and as such, the judgment of conviction and order of sentence awarded to the appellant are hereby affirmed.

¶150

40. Resultantly, these appeals are hereby dismissed.

¶151

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¶152

41. All the appellants/convicts, except Gorelal Jangde, are stated to be in jail. They shall serve out the remaining period of jail sentence as has been awarded by the learned trial Court.

¶153

42. Accused/appellant-Gorelal Jangde was granted temporary bail for a period of two months vide order dated 12.02.2024 by this Court on the ground that there was infection in his left leg and the same was amputated. He is directed to surrender before the learned trial Court or be taken into custody forthwith for serving out the remaining period of jail sentence.

¶154

43. Registry is directed to transmit the trial Court record along with a copy of this order to the court concerned forthwith for necessary information and compliance.

¶155

Sd/Sd/(Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice

¶156

Amit

Nikki Ajgalle v. State of Chhattisgarh

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Nikki Ajgalle v. State of Chhattisgarh

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