NAGESARversusSTATE OF CHHATISGARH

                    [2014] 6 S.C.R. 637

                         NAGESAR                               A
                             v.
                 STATE OF CHHATISGARH
             (Criminal Appeal No. 1096 of 2014)
                        MAY 5, 2014
                                                               B
         [T.S. THAKUR AND C. NAGAPPAN, JJ.]

     PENAL CODE, 1860:

       ss. 304 (Part II}, 147 and 148 - Out of seven convicts, c
 two filed appeals stating that they were not named in FIR and
 their presence at place of occurrence was not established -
 Held: Mere presence or association of a person with other
 members alone is not per se sufficient to hold him criminally
 liable for the offences committed by the ot(lers unless there 0
 was sufficient evidence to show that he a/so intended to or
 knew the likelihood of commission of such an offending act
 - In the instant case, there is no legally acceptable material
 to prove that appellants either were present on the spot or they
 acted as members of unlawful assembly to connect them with
 the death of deceased - Appellants are, accordingly, given E
 benefit of doubt and acquitted of all the charges.

      The two appellant along with five others were
  prosecuted for commission of offences punishable u/ss.
  147,148 and 302 IPC. The prosecution case was that on F
  the date of incident in the evening while one 'KR' with PW-
  1 and another were sitting in the market chowk, accused
  nos. 1 to 7 were consuming 'ganja' and liquor there,
  which was objected to by 'KR', and in the altercation 'KR'
  slapped A-4 and left the place with PW1 and another. 'KR' G
  again returned to the saia place where the juvenile
! accused threw chilli powder in the eyes of 'KR' and
  assaulted him with sword, and when the victim fell down,
  he dropped a stone on his head, and other accused also
                               637                            H
    638       SUPREME COURT REPORTS            (2014] 6 S.C.R.


A   assaulted hiln. Accused no. 1 was said to have attacked
    'KR' with a stick. When PWB intervened, he was assaulted
    by A-1 with a sword. 'KR' was taken to hospital where he
    died. The case of juvenile accused was referred to
    Juvenile Justice Board. The trial court convicted A-1 to
B   A-7 of the offences charged and sentenced them to
    imprisonment for life. The High Court converted the
    offence from s. 302 to 304 (Part II) IPC and sentenced
    each of the accused persons to six years R.I.

         In the instant appeals filed by two of the accused
C   persons, namely, A-6 and A-7, it w.as contended for the
    appellants that they were not named in the FIR; that PW9
    did not mention them as having been present during the
    occurrence; and that PWB did not attribute any overt act
    to them, in the attack and, as such, their presence at the
D   place of occurrence was not established.
          Allowing the appeals, the Court
         HELD: 1.1. It is settled law that mere presence or
    association of a person with other members alone is not
E   per se sufficient to hold him criminally liable for the
    offences committed by the others unless there was
    sufficient evidence on record to show that he also
    intended to or knew the likelihood of commission of such
    an c-ffending act. [para 13] [644-G-H; 645-A]
F
       K.M Ravi and others vs. State of Karnataka (2009) 16
    sec 337 - relied on.
        1.2. In the instant case, there is no legally acceptable
    material to prove that the appellants acted as members
G   of unlawful assembly to connect them with the death of
    the deceased. At any rate in the absence of reliable
    evidence to prove that the appellants were either present
    on the spot or that they had committed any overt act that
    could show that they shared the common object of the
H   unlawful assembly it is not possible to support their
       NAGESAR v. STATE OF CHHATISGARH                     639


conviction and benefit of doubt has to be given to them. A
The appellants are, accordingly, given benefit of doubt
and the conviction and sentences imposed on them are
set aside and'they are acquitted of all the charges. [para
13-14] [645-A-D]
                   Case Law Reference:                     B

    (2009)16 sec 337           relied on             para 13
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1096 of 2014)  ·
                                                                  c
    From the Judgment and Order dated 31.01.2012 in CRA
No. 14/2007, 42/2007, 331/2007 of the High Court of
Chhattisgarh at Bilaspur.
                               WITH
Criminal Appeal No. 1082 of 2014
                                                                  D

    Dr. Rajesh Pandey, Jitender Kumar, Priyanka Panpe.y,
Mridula Ray Bharadwaj for the Appellant.
    Atul Jha, Sandeep Jha, Dharmendra Kumar Sinha for the
Respondent.                                                       E
    The Judgment of the Court was delivered by
    C. NAGAPPAN, J. 1. Leave granted in both the special
leave petitions.
     2. Both the appeals have been preferred against the F
common judgment dated 31.1.2012 of the Division Bench of
the High Court of Chhatisgarh, Bilaspur, in Criminal Appeal
No.12 of 2007 and Criminal Appeal No.331 of 2007. The
appellants herein Nagesar and Khetro accused Nos. 6 and 7
respectively, in Sessions Trial No.232 of 2005 on the file of 10th G
Additional Sessions 'Judge (FTC) Durg, were tried along witt1
five other accused and all of them were convicted for Hk
offence under Sections 147, 148 and 302 IPC and each r,·
them was sentenced to undergo rigorous imprisonment for one:
year and pay a fine of Rs.1000/-and in default to undergc
             '
    640      SUPREME COURT REPORTS                 [2014] 6 S.C.R.


A   rigorous imprisonment for two months for offence under Section
    147 IPC; one year rigorous imprisonment and to pay a fine of
    Rs.2000/-each and in default to undergo rigorous imprisonment
    for three months for the offence under Section 148 IPC and life
    imprisonment and to pay a fine of Rs.3000/-in default to
B   undergo six months imprisonment for the offence under Section
    302 IPC and the sentences were directed to run concurrently.
         3. Aggrieved by the conviction and the sentences accused
    Nos. 1 to 7 preferred five criminal appeals and the High Court
    by the impugned common judgment dated 31.1.2012 partly
C   allowed the appeals by setting aside the conviction and
    sentence imposed upon them and acquitted them for the
    offence under Section 148 IPC and also altered conviction
    under Section 302 IPC to Section 304 Part II of IPC and
    sentenced each of them to undergo rigorous imprisonment for
D   a period of 6 years and imposed a fine of Rs. 3000/-on each
    of them and in default to undergo rigorous imprisonment for six
    months and maintained the conviction and sentence imposed
    on them for the offence under Section 147 IPC. Challenging the
    same accused Nos.6 and 7 have preferred the present
E   appeals.

         4. Background facts of the case in a nutshell are as follows:
    On 13.6.2004 in the evening Korma Rao was sitting along with
    PW1 P(amod and Pradeep near Priyadarshini Market Chowk,
    Khursipar, Bhilai. Accused Nos. 1 to 7 were consuming 'Ganja"
F
    and liquor in the above said place and this was objected to by
    Karma Rao and in the altercation Korma Rao slapped accused
    No.4 Rajendra Prasad Shukla @ Tukna. Korma Rao left the
    place with PW1 Promod & Pradeep by scooter. Again at 11.45
    PM he came back to the same place where juvenile accused
G   Pitambar @ Panto threw chilli powder on the eyes of Karma
    Rao and assaulted him on the head with sword. When Karma
    Rao fell down juvenile Pitambar took out a stone and dropped
    it over his head and the other accused assaulted him. Accused
    No.1 Bhimsen @ Bhim attacked Korma Rao with stick. When
H
        NAGESAR v. s·TATE OF CHHATISGARH                      641
               [C. NAGAPPAN, J.]

PW8 Gopi Rao intervened he was attacked on the head with             A
sword by accused No.1 Bhimsen @ Shim. PW9 Ram Lalit
Yadav also witnessed the occurrence. PW 8 Gopi Rao
informed PW5 Bhaskar Rao, who is the brother of Korma Rao
about the occurrence and they took injured Korma Rao to BSP
Hospital, Bhilai. Korma Rao was examined by PW4 S.K. Bhoi            B
and Ex.84 wounds Certificate was issued by him. He also
examined PW 8 Gopi Rao and found a lacerated wound over
the back of his head and issued Exh.P5 Injury Certificate. Korma
Rao died at 3.00 P.M .. PW5 Bhaskar Rao lodged complaint
and the death of Korma Rao was intimated by the Doctor vide          c
Exh. P32 and FIR Exh.P21 came to be recorded. The
Investigating Officer conducted inquest over the body vide
Exh.P8 Inquest Report. He seized blood stained earth, blood
stained stone and broken bricks by Exh. P13 and sent the body
for post-mortem.                                                     D
     5. PW13 Dr. Padmakar Mishra conducted the autopsy on
the body of Korma Rao and found the following injuries:
      (i)     Incised wound of 4 c.m. x 1 c.m. x 1 c.m. over back
              of head with fracture of bone.
                                                                     E
      (ii)    Two incised wounds of 2 c.m. x % c.m. x 1
      c.m. and 2 c.m. x % c.m. over back of head.
      (iii)   Incised wound of 7.5 c.m. over left temporo parietal
              region.
                                                                     F
      (iv)    Incised wound of 9 c.m. length over right parietal
              region.
      (v)     Incised wound of 4 c.m. length just below right eye.
      (vi)    Incised wound over upper part of nose.
                                                                     G
      (vii)   Fracture of right and left mandible bone.
      (viii) Incised wound over ring finger of 2 c.m. in length
             with fracture of metacarpal bone.

      (ix)    Incised wound of 2 c.m. x % c.m. over wrist.           H
    642          SUPREME COURT REPORTS              (2014) 6 S.C.R.


A         (x)     Incised wound of 20 c.m. x % c.m. over back.

          (xi)    Haematoma of fronto parietal bone of 20 c.m.
                  length.

         He expressed opinion that death has occurred due to
B   shock on account of ante-mortem injuries and issued Exh.P20
    post-mortem certificate.

        6. Pursuant to Ex.P.10 disclosure statement of accused
  No.4 Rajender Prasad wooden plank was recovered under
c Ex.P22. Pursuant to the disclosure statement of accused No.3
  Pradeep stone was recovered under Exh.P.11. On Exh.P.12
  disclosure statement of PW1 Bhimsen stick was recovered
  under Exh.P.16. On the disclosure statement of juvenile
  accus~ Pitambar sword and clothes Exh.P.23 were recovered

0 under   Exh.P.14 and Exh.P15. Blood stained clothes of other
  accused were also seized. The seized articles were sent for
  clinical examination under Exh.P38 and Exh.P40 is the report.
  On completion of investigation final report was filed. The case
  against the juvenile accused Pitambar was filed before the
E Juvenile Justice Board.

          7. In order to prove the guilt of the accused the prosecution
    examined PWs 1 to 17 and marked the documents. No
    evidence was adduced by 1:he accused. The trial court found
    !311 the accused guilty of charges and sentenced them as
F   narrated above. The appeal preferred by them was partly
    allowed as indicated above. Challenging the same accused
    No.6 Nagesar and accused No. 7 Khetro have preferred the
    present appeals.

G       8. The learned counsel appearing for the appellants
   submitted that both the appellants were not named in the First
   Information Report and the eye witness Ram Lalit Yadav in his
   testimony has not mentioned the names of the appellants as
   having been present during the occurrence and even the other
H ·eye witness has not attributed any overt act to the appellants
       NAGESAR v. STATE OF CHHATISGARH                      643
              [C. NAGAPPAN, J.]
in the attack made on the deceased and their presence at the        A
occurrence place is itself doubtful and they are entitled to an
acquittal. Per contra the learned counsel appearing for the
respondent-State contended that the appreciation of evidence
by the Courts below was proper and did not, thereby, call for
any interference.                                                   B

     9. Korma Rao suffered a homicidal death is sought to be
proved by the medical evidence adduced by the prosecution.
The autopsy was conducted by PW13 Dr. Padmakar Mishra
and as per his testimony, he found 6 incised wounds on the
head with fracture of right and left mandible bor\e and he opined   C
that death has occurred on account of the shock due to ante-
mortem injuries. Exh. P20 is the post-mortem certificate issued
by him. Thus it is amply clear that Korma Rao died of injuries
sustained .during the occurrence.
                                                                    D
     10. The prosecution case is that accused Nos. 1 to 7 in
furtherance of their common object attacked Korma Rao at the
time of occurrence and caused his death. PW8 Gopi Rao and
PW9 Ram Lalit Yadav were examined as having witnessed the
occurrence. According to PW8 Gopi Rao on 13.6.2004 late in E
the evening accused nos. 1 to 7 were sitting at Priyadarshini
Market Chowk and were consuming Ganja and Cigarette and
Korma Rao objected the same and in the altercation he
slapped accused No.4 Rajender Prasad Shukla and left the
place with PW1 Promod and Pradeep by scooter and again F
at 11.45 P.M. Korma Rao came back to the same place and
juvenile Pitambar threw chilli powder in the eyes of Korma Rao
and assaulted him on the head with sword and when he fell
down juvenile Pitambar dropped a stone over his head and the
other accused assaulted him. It is his further testimony that G
accused No.1 Bhimsen attacked Korma Rao with stick and
when he intervened he was attacked on the head with sword
by accused No.1 Bhimsen and he rushed to inform PW5
Bhaskar Rao, who is the brother of Korma Rao and they took
injured Korma Rao to hospital where he died at 3.00 A.M ..
                                                               H
    644      SUPREME COURT REPORTS                (2014] 6 S.C.R. .


A   According to PW8 Gopi Rao the appellants Nageswar and
    Khetro were found in inebriated state having consumed
    cigarette and Ganja. Though PW8 Korma Rao had mentioned
    the names of both the appellants in his testimony as having
    been present at the place of occurrence, he has not attributed
B   any overt act to them in the attack made on the deceased as
    well as himself..

         11. PW9 Ram Lalit Yadav is the other eye-witness and he
    has testified that he went to the place of occurrence: at about
    11.15 P.M. in the night and the accused persons were sitting
C   there and PW8 Gopi Rao also joined him and when Korma Rao
    came there, accused persons Khetro, Bhim, Pitambar and
    others attacked Korma Rao with sword and danda and Korma
    Rao sustained injuries on the head and other parts of his body
    and when PW8 Gopi Rao intervened he also sustained sword
D   injury on the head. It is his further testimony that he and PW8
    Gopi Rao informed the occurrence to the family members of
    Korma Rao and they took him to hospital where he succumbed
    to the injuries. PW9 Ram Lalit Yadav has not mentioned the
    names of the appellants as having been present during the
E   occurrence. In other words this witness, in his testimony has not
    stated about the presence of the appellants and did not attribute
    any role to them in the occurrence.

         12. Exh. P21 is the First Information Report lodged by
    PW5 Bhaskar Rao, the brother of deceased Korma Rao. Of
F
    course he has not witnessed the occurrence and the
    information was conveyed to him by PW8 Gopi Rao who is an
    eye-witness. The names of the appellants Nagesar and Khetro
    are not mentioned in the First Information Report and in the
    facts of the case a doubt is created in the mind as to whether
G   they could be really involved in the offence.

         13. It is settled law that mere presence or association with
    other members alone does not per se be sufficient to hold
    everyone of them criminally liable for the offences committed
H   by the others unless there was sufficient evidence on recprd to
       NAGESAR v. STATE OF CHHATISGARH                    645
              [C. NAGAPPAN, J.]
show that one such also intended to or knew the likelihood of A
commission of such an offending act. (K.M Ravi and others
Vs. State of Karnataka (2009) 16 SCC 337). As already seen
in this case there is no legally acceptable material to prove that
the appellants acted as members of unlawful assembly to
connect them with the murder of the deceased Karma Rao. At B
any rate in the absence of reliable evidence to prove that the
appellants were either present on the spot or that they had
committed any overt act that could show that they share the
common object of the unlawful assembly it is not possible to
support their conviction and benefit of doubt has to be given to c
them.

     14. In the result both the appeals are allowed and the
appellants are given benefit of doubt and the conviction and
sentences imposed on them are set aside and they are
acquitted of all the charges framed against them. They are D
directed to be released from the custody forthwith unless
otherwise required in connection with any other case.
Rajendra Prasad                                 Appeals allowed,