Amelal & Ors. Vs. State of Chhattisgarh
EmailIndian Penal Code, 1860
a) Sections 302, 149 – Evidence Act, 1872 – Sections 3, 145 – Murder – Common object – 22 persons attacking two deceased – Accused ‘A’ using tabbal and accused ‘J’ using same weapon on other deceased – All remaining having lathis – Medical evidence showing no injury on deceased with lathi. Held that conviction of others under section 302 with help of section 149, cannot be sustained. (Para 5)
b) Sections 324, 326, 302, 149 – Causing injury – Accused ‘J’ inflicting injury on PW 7 with sharp edged weapon – Another accused (A22) causing fracture of another PW, (PW16) – A22 not using lathi on deceased, but accused ‘J’ causing injuries to deceased with sharp object. Held that accused ‘J’ and A-22 cannot be roped for murder under section 149 but accused ‘J’ convicted under section 324 and A-22, under section 326, apart from ‘J’ being convicted for murder. (Paras 6, 7)
1. There were 22 accused initially and 21 among them were tried before the sessions court for the offence punishable under section 302 read with section 149 I.P.C. besides some other lesser offences in respect of the murder of two brothers (Narayan and Adhnu). One of the accused (A20) was absconding and hence, the trial could not proceed against him. The sessions judge convicted all the 21 persons for various offences charged, principally under section 302 read with section 149 I.P.C. and sentenced all of them to imprisonment for life thereto. All of them preferred appeal (except A11 Bodhiram). During the pendency of the appeal, A16 Mahettar alias Baigh died. The High Court confirmed the conviction and sentence only in respect of the six appellants before us.
2. The incident happened on 5.10.1987 around 7.00 a.m. in a field which was almost barren. The prosecution case in short is that Narayan, the deceased, in the company of PW 7 Dhallu, went to the field for easing themselves and they were later joined by PW 16 Shaniram. While so Adhnu (the other deceased) went and reported that A.1 Amelal and his men had set out to this field. By that time all the assailants reached the field and they launched an attack on the two deceased with weapons called tabbal and lathis. When PW 7 and PW 16 tried to intervene, they were also attacked with lathis. The injuries sustained by Narayan and Adhnu were so severe that both of them succumbed to those injuries.
3. In this appeal under Article 136 of the Constitution, we are not disposed to interfere with the fact finding that the two deceased were attacked on the date in question and that they were killed and that PW 7 and PW 16 were also attacked.
4. The only question is, whether the appellants were the assailants who caused murder of the two deceased? PW.7 and PW.16 said in clear terms that appellant Amelal attacked Narayan with tabbal (a sharp cutting weapon) and appellant Jhadiram attacked Adhnu with a similar weapon. The postmortem report prepared by PW 9 Dr. Abhijeet Sen proves that the deceased had sustained a lot of incised injuries. We have, therefore, no difficulty to confirm the sentence passed on appellants Amelal and Jhadiram.
5. Regarding the remaining appellants, the two witnesses said that all of them inflicted blows with lathis on the deceased. But we did not find a single injury on any of the deceased which can be attributed to lathi blows. It is , therefore, difficult to sustain the conviction of those other appellants with the help of section 149 of the Indian Penal Code.
6. Mr. Rudreshwar Singh, learned counsel for the State of Chhattisgarh contended that A22 Phagua and A6 Jhadiram had attacked PW 7 and PW 16 with lathis and those two witnesses have sustained injuries due to lathi blow. It is true that PW 11, Dr. Hemant Dixit had examined them and found such injuries on their persons. Those two witnesses said that they were attacked when they were leaving the place, but that aspect is not sufficient to absolve A6 Jhadiram and A22 Phagua from criminal liability. However, the question is, whether they can also be convicted under section 302 with the help of section 149 I.P.C.?
7. As we find that neither A6 nor A22 could have inflicted any blow with lathi on the deceased, we find it difficult to use section 149 I.P.C. for convicting them under section 302 IPC. Interest of justice would be served if we alter the conviction of A6 to section 324 IPC and A22 under section 326 IPC (one of the injuries sustained by PW 16 was the result of an attack made by A22 and it was a fracture of the right forearm). We, therefore, impose sentence of RI for 3 years on A6 and A22 for the aforesaid offences.
8. In the result, we dismiss the appeal filed by the appellants Amelal and Jhadiram.
9. We alter the conviction of A6 and A22 in the manner indicated above and sentence them also as specified above. The remaining appellants are acquitted and we direct them to be set at liberty forthwith, unless they are involved in any other case. If A6 Jhadiram and A22 Phagua have by now undergone the sentence imposed on them, we direct the jail authorities to release them also.
