Chattisgarh High Court
Jageshwar vs State Of Chhattisgarh on 16 November, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Acquittal Appeal No. 148 of 2016
State of Chhattisgarh through Station House Officer, Police
Station Saamripaat, Distt. Balrampur-Ramanujganj,
Chhattisgarh.
---Appellant
Versus
1. Jageshwar S/o Bigan Korwa, Aged about 30 years.
2. Laldeo Korwa S/o Bhairaw Korwa, Aged about 39 years.
3. Bhuisa Korwa S/o Bhairaw Korwa, Aged about 37 years.
4. Paras Korwa S/o Kishun Korwa, Aged about 21 years.
5. Virendra Korwa S/o Bhairaw Korwa, Aged about 26 years.
6. Antu Korwa S/o Bhairaw Korwa, Aged about 24 years.
7. Smt. Lalpati W/o Bhairaw Korwa, Aged about 38 years.
8. Smt. Amita W/o Virendra Korwa, Aged about 26 years.
Respondents No. 1 to 8, all are R/o Village Sabaag,
Pokhrapara, Police Station Saamripaat, Distt. Balrampur-
Ramanujganj, Chhattisgarh.
---Respondents
For Appellant/State :- Mr. Ashish Tiwari, G.A.
For Respondents 1 & 5 :- Mr. Amarnath Pandey, Advocate
Criminal Appeal No. 1622 of 2015
Jageshwar S/o Bigan Korwa, Aged about 30 years, R/o
Village Sabag, Pokhrapara, Police Station Samripat, Civil
2
District Surguja and Revenue District Balrampur-
Ramanujganj, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through the Station House Officer,
Police Station Samripat, Distt. Balrampur-Ramanujganj,
Chhattisgarh.
---Respondent
For Appellant :- Mr. Amarnath Pandey, Advocate
For Respondent/State:- Mr. Ashish Tiwari, G.A.
Criminal Appeal No. 1524 of 2015
Virendra Korwa S/o Bhairav Korwa, Aged about 26 years,
R/o Village Sabag, Pokhrapara, Police Station Samripat,
Civil District Surguja and Revenue District Balrampur-
Ramanujganj, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through the Station House Officer,
Police Station Samripat, Distt. Balrampur-Ramanujganj,
Chhattisgarh.
---Respondent
For Appellant :- Mr. Amarnath Pandey, Advocate
For Respondent/State:- Mr. Ashish Tiwari, G.A.
3
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
16/11/2022
Sanjay K. Agrawal, J.
1. Since common question of law and fact is involved in this
acquittal appeal as well as these two criminal appeals and
they have been filed assailing the impugned judgment dated
23/09/2015 passed in Sessions trial No. 167/2012,
therefore, they have been clubbed together, heard together
and are being decided by this common judgment.
2. All the eight accused persons namely Jageshwar (A-1),
Laldeo Korwa (A-2), Bhuisa Korwa (A-3), Paras Korwa (A-4),
Virendra Korwa (A-5), Antu Korwa (A-6), Smt. Lalpati (A-7)
and Smt. Amita (A-8) were charge-sheeted for offences
punishable under Sections 148, 302/149, 201/149 of IPC
and Section 4/5 of the Tonahi Pratadna Nivaran Act, 2005
(hereinafter, 'the Act of 2005') and after conducting a full-
fledged trial in Sessions Trial No. 167/2012, learned
Additional Sessions Judge, Ramanujganj, vide impugned
judgment dated 23/09/2015 though acquitted all the
accused persons for offences under Sections 148, 302/149
and 201/149 of IPC, however, convicted them for offence
punishable under Section 4 of the Act of 2005 and
sentenced to undergo rigorous imprisonment for 3 years
with fine of Rs. 200/- each and in default of payment of
fine, additional R.I. for 20 days and further convicted the
two accused persons namely Jageshwar (A-1) and Virendra
Korwa (A-5) for offence punishable under Section 302 (two
times) and sentenced them to undergo life imprisonment
with fine of Rs. 200/- + Rs. 200/- each and in default of
payment of fine additional R.I. for 40 days.
3. Acquittal Appeal No. 148 of 2016 has been preferred by the
State against the impugned judgment so far as acquittal of
all the accused persons for offences punishable under
Sections 148, 302/149, 201/149 of IPC as well as Section 5
of the Act of 2005 is concerned. Criminal Appeals No.
1622/2015 and 1524/2015 have been preferred by
appellants/accused persons namely Jagenshwar (A-1) and
Virendra Korwa (A-5) respectively, for their conviction for
offence punishable under Section 302
Prosecution story :-
4. Case of the prosecution, in brief, is that 8 accused persons
identified Smt. Fulmaniya and Bheekhu Korwa as
tonhi/tonha who practiced witchcraft and on 11/03/2012 at
about 10 AM at village Sabag, Pokhrapaat which comes
within the ambit of Police Station Samripat, they
constituted an unlawful assembly armed with danda and
laathi with a common object of causing death of Smt.
Fulmaniya and Bheekhu Korwa and in furtherance of their
common object, they assaulted and murdered Smt.
Fulmaniya and Bheekhu Korwa and in order to screen
themselves, buried their bodies, and thereby, committed the
aforesaid offences.
5. Further case of the prosecution is that Kamlesh (P.W.-1)
registered merg intimation at Police Station Samripat vide
Ex. P/2 on 12/03/2012 at 06:15 AM that on 11/03/2012
at about 8 AM, the accused persons had called a panchayat
meeting in the village on the subject that deceased Smt.
Fulmaniya and Bheekhu Korwa were harassing the people
of the village by practicing witchcraft. Thereafter, the
accused persons assaulted both of the deceased persons by
hands, fists, laathis and dandas on the pretext that son of
one Laldev had died due to their witchcraft and because of
their practice, the children and elderlies of the village were
also becoming unwell. On account of their assault, both
Smt. Fulmaniya and Bheekhu Korwa succumbed to death
pursuant to which the accused persons buried their dead
bodies in the cemetery. On the basis of the said information,
first information report was lodged against the accused
persons vide Ex. P/1 and the wheels of the investigation
started running. After reaching at the spot, the police
officers exhumed their dead bodies and after conducting
inquest vide Ex. P/7 and after necessary proceeding, sent
the dead bodies for postmortem, which was conducted by
Dr. Bhupesh Bhagat (P.W.-12), and as per the postmortem
report (Ex. P/22), cause of death is neurogenic shock and
nature of death is homicidal. Nazri naksha of the spot was
prepared vide Ex. P/4 and from the spot, plain soil as well
as blood stained soil was seized vide Ex. P/25. After taking
the accused persons into custody, their memorandum
statements were recorded vide Ex. P/26 to P/32 and seizure
of dandas and laathis was made from their possession vide
Ex. P/33 to P/40, which were sent for chemical examination
and the FSL report, though has been brought on record, but
it has not been exhibited. After due investigation, all the
eight accused persons were charge-sheeted for offences
punishable under Sections 148, 302/149 and 201/149 of
IPC and Section 4/5 of the Act of 2005 which was
committed to the Court of Sessions for trial in accordance
with law in which the accused persons abjured their guilt
and entered into defence.
6. In order to bring home the offence, prosecution examined as
many as 12 witnesses and exhibited 57 documents. The
statements of the accused persons were recorded under
Section 313 of CrPC wherein they denied guilt, however,
they examined none in their defence.
7. Learned trial Court, after appreciating the oral and
documentary evidence on record, though acquitted all the
accused persons for offences punishable under Sections
148, 302/149, 201/149 of IPC and Section 5 of the Act of
2005, but convicted all of them for offence punishable under
Section 4 of the Act of 2005 and also convicted two accused
persons namely Jageshwar (A-1) and Virendra (A-5) for
offence punishable under Section 302 of IPC (two times) and
sentenced them as aforesaid.
Submission of the parties :-
In Acquittal Appeal No. 148/2016 :-
8. Mr. Ashish Tiwari, learned State counsel appearing on
behalf of the appellant/State, would submit that the trial
Court is absolutely unjustified in acquitting all the
respondents for offences punishable under Sections 148,
302/149 and 201/149 of IPC and Section 5 of the Act of
2005 as Kamlesh (P.W.-1), who is the eye-witness of the
incident, has clearly supported the case of the prosecution
in his statement before the Court and since all the accused
persons were members of the unlawful assembly, even
though overt act has not been found proved against some of
the accused persons, they cannot be acquitted from the
offence in question. They ought to have been subjected to
constructive liability under Section 149 of IPC and they
ought to have been convicted with the aid of Section 149 of
IPC.
9. Mr. Amarnath Pandey, learned counsel for respondents No.
1 and 5, would submit that the trial Court has rightly
acquitted the accused persons for the aforesaid offences
with the aid of Section 149 of IPC as the prosecution has
miserably failed to prove the ingredients of Section 149 of
IPC that the accused persons had constituted unlawful
assembly and they caused the death of the deceased
persons in furtherance of their common object, as such, the
instant appeal deserves to be dismissed.
In Criminal Appeals No. 1622/2015 & 1524/2015 :-
10. Mr. Amarnath Pandey, learned counsel for both the
appellants/accused persons, would submit that there is no
evidence against the accused persons except for the self-
serving statement of Kamlesh (P.W.-1) and in his statement
before the Court, he has not supported the case of the
prosecution. Even otherwise, seizure of laathis made from
Jageshwar (A-1) and Virendra (A-5) vide Ex. P/33 and P/37
respectively, has also not been proved in accordance with
law as seizure witness namely Naleshwar Korwa (P.W.-7)
has turned hostile and has not supported the case of the
prosecution and the same has also not been accepted by the
trial Court. Furthermore, though the said seized articles
were sent for chemical examination, but the FSL report has
been rendered insubstantial as no blood has been found on
the said seized articles. Therefore, conviction of both of
these accused persons namely Jageshwar (A-1) and
Virendra (A-5) for offence punishable under Section 302 of
IPC (two times) is liable to be set aside. In alternative, he
would submit that at the best, the case of both of these
accused persons would fall within Exception 4 to Section
300 of IPC and as such, their conviction be altered to either
Part I or Part II of Section 304 of IPC and since they are in
jail since 13/03/2012 i.e. for more than 10 years, therefore,
they be sentenced for the period already undergone. As
such, the instant appeals be allowed in full or in part.
11. Per contra, Mr. Ashish Tiwari, learned State counsel, would
submit that there is direct evidence available against these
two appellants/accused persons in the form of the
testimony of eye-witness Kamlesh (P.W.-1), who has clearly
named both of these appellants/accused persons in
commission of the crime in question, as such, they have
rightly been convicted by the trial Court for offence
punishable under Section 302 of IPC (two times) and
therefore, the instant appeals deserves to be dismissed,
more so, as it is not a case which would fall within
Exception 4 to Section 300 of IPC.
12. We have heard learned counsel for the parties, considered
their rival submissions made herein-above and went
through the record with utmost circumspection.
13. In order to competently decide the appeals, we will take up
these appeals one-by-one and since the Acquittal Appeal
has been preferred by the State against acquittal of the
accused persons for offences punishable under Sections
148, 302/149 and 201/149 of IPC and Section 5 of the Act
of 2005, it would be appropriate to first take up the appeal
against acquittal for consideration.
Acquittal Appeal No. 148/2016 :-
14. At the outset, it would be appropriate to notice the scope of
interference in an appeal against acquittal before dealing
with the facts and circumstances of the case at hand.
15. It is well-settled law that appellate Court can reappreciate,
review and reconsider the evidence before it, but the scope
of interference in an appeal against acquittal is narrower
than an appeal against conviction because presumption of
innocence gets further fortified by an order of acquittal.
Thus, unless there are substantial and compelling reasons
to differ from findings of acquittal, appellate Court is not
required to substitute its findings in case findings recorded
by the trial Court are plausible. (See: Ramesh v. State of
Haryana1)
16. In Ramesh (supra), their Lordships of the Supreme Court,
relying upon their earlier decisions rendered in the matters
of Sanwat Singh v. State of Rajasthan 2 and Govindraju v.
State3, have concluded in paragraph 28 as under :-
"28. The appellate court, therefore, is within its
power to reappreciate or review the evidence on
which the acquittal is based. On reconsideration of
the evidence on record, if the appellant court finds
the verdict of acquittal to be perverse or against the
settled position of law, it is duly empowered to set
aside the same. On the other hand, if the trial court
had appreciated the evidence in right perspective
and recorded the findings which are plausible and
the view of the trial court does not suffer from
perversity, simply because the appellate court
comes to a different conclusion on the appreciation
1 (2017) 1 SCC 529
2 AIR 1961 SC 715
3 (2012) 4 SCC 722
of the evidence on record, it will not substitute its
findings to that of findings recorded by the trial
court."
17. In light of the aforesaid parameters laid down by the
Supreme Court for scope of interference in an appeal
against acquittal, it would be appropriate to notice the
findings recorded by the trial Court while acquitting the
accused persons for offence punishable under Section
148/149 of IPC in paragraph 44 of the impugned judgment,
which states as under :-
"44. अभभययजन कक ओर सस पसततत ससकय सस यह सपष हह कक
अभभयतकगण एक हह पररवसर कस सदसय हह, उनकक आपस मह ररशतसदसरह हह।
जहसस कक कमलसश नस बतसयस हह कक पपचसयत मम करहब सस कक सपखयस मम गसगव
कस लयग मसजजद थस, अभभयतकगण भह थस, तय इससस कस वल यह हह दरशरत
हयतस हह कक मसकस पर अभभयतकगण मसजजद थस। ससकय कस आधसर पर यह
सपष नहह हह कक अभभयतकगण नस पपचसयत बतलसयस थस। अभभयतकक कक मसकस
पर उपभसथभत कस आधसर पर यह नहह मसनस जस सकतस हह कक उनहकनस भवभध
भवरद जमसव कस गठन ककयस, भजसकस ससमसनय उदसशय फत लमभनयस और
भहखज कक हतयस करनस थस, कयककक कमलसश नस मतखय परहकण मम बतसयस हह
कक गसगव कस लयग पपचसयत मम भहखज व फत लमभनयस कय टयनहह-डसयन बयल
रहस थस। ससकय सस यह भह सपष नहह हह कक सभह अभभयतकगण लसठह, डपडस
यस घसतक आयतध सस सतसभजत हयकर पपचसयत मम आयस हयस थस। इसभलए
अभभयतकगण कस दसरस घसतक आयतध सस सतसभजत हयकर घटनस कदनसपक कय
बलवस कसररत ककयस गयस हह यह ससकय समरथरत तथस भवशसनहय व
सवहकसर ययगय नहह हह। जगसशर एवप वहरमद कय अनय अभभयतकगण कस दसरस
भहखज व फत लमभनयस कय मसरपहट करनस कस भलए कहस यस उकससयस गयस,
यह भह ससकय सस पकट नहह हयतस हह। "
18. Learned trial Court, in paragraph 44 of the impugned
judgment, has clearly recorded the finding that though the
accused persons were present on the spot, but it cannot be
held that they had constituted unlawful assembly with
common object and in furtherance of their common object,
they murdered Smt. Fulmaniya and Bheekhu Korwa and
they were only branding the two deceased persons as
tonhi/tonha having been involved in the practice of
witchcraft. The trial Court has further recorded the finding
that it has also not been proved that the accused persons
were armed with deadly weapons. As such, since
prosecution has failed to prove beyond reasonable doubt
that the accused persons had constituted unlawful
assembly and in furtherance of their common object, they
assaulted the deceased persons and murdered them, the
trial Court has rightly acquitted them for offences
punishable under Sections 148/149 of IPC.
19. Even otherwise, in the matter of Nagarjit Ahir v. State of
Bihar4 their Lordships of the Supreme Court applied the
rule of caution and in the facts and circumstance of the
case held that "it may be safe to convict only those persons
against whom overt act is alleged with the aid to Section
149 IPC lest some innocent spectators may get involved".
20. In the matter of Pandurang Chandrakant Mhatre and
others v. State of Maharashtra5, their Lordships of the
Supreme Court followed its earlier decisions in the matters
of Musa Khan v. State of Maharashtra 6 and Nagarjit Ahir
(supra) and acquitted the accused persons therein against
whom overt act was not there after applying the rule of
caution and held in paragraph 74 as under :-
4 (2005) 10 SCC 369
5 (2009) 10 SCC 773
6 (1971) 1 SCC 733
"74. In a case such as the present one, although
having regard to facts, the number of participants
could not be less than five, it is better to apply rule
of caution and act on the side of safety and convict
only A-2, A-3 and A-12 under Section 302 read
with Section 149 I.P.C whose presence as members
of party of assailants is consistently mentioned and
their overt acts in chasing and assaulting the
deceased are clearly proved. A-4, A-5, A-6, A-10
and A-11 get the benefit of doubt with regard to
offence under Section 302 read with Section 149
I.P.C. since evidence against them in chasing and
assaulting the deceased is not consistent. However,
all the eight appellants are guilty of the offences
punishable under Section 148 and Section 326
read with Section 149, I.P.C. This is proved beyond
doubt and the High Court cannot be said to have
erred in holding so."
21. As such, in any case, it has been established that the
accused persons were not members of unlawful assembly
and even if, they were held to be members of unlawful
assembly, rule of caution would apply and in view of the
aforesaid decisions rendered by the Supreme Court, it
would be unsafe to convict them for offences punishable
under Sections 148, 302/149 and 201/149 of IPC. In that
view of the matter, considering that the scope of
interference in an appeal against acquittal is extremely
limited, we are of the considered opinion that the trial Court
has taken a correct view of the matter. We do not find any
merit in this acquittal appeal. It deserves to be and is
accordingly dismissed.
Criminal Appeals No. 1524/2015 and 1622/2015 :-
22. As stated above, these criminal appeals have been preferred
by the two appellants/accused persons namely Jageshwar
(A-1) and Virendra (A-5) against their conviction for offences
punishable under Section 302 of IPC (two times) and
Section 4 of the Act of 2005.
23. The trial Court has clearly recorded a finding that seizure of
laathis from these two accused persons namely Jageshwar
(A-1) and Virendra (A-5) have not been proved in accordance
with law, as such, their conviction rests solely on the
testimony of eye-witness Kamlesh (P.W.-1) as even the FSL
report has been found inconsequential and furthermore, the
seizure witness namely Naleshwar Korwa (P.W.-7) has
turned hostile and has not supported the case of the
prosecution.
24. The question for consideration is whether the trial Court is
justified in convicting the appellants/accused persons
namely Jageshwar (A-1) and Virendra (A-5) for offence
punishable under Section 302 of IPC simpliciter relying
solely upon the testimony of Kamlesh (P.W.-1) ?
25. In examination-in-chief, Kamelsh (P.W.-1) has initially
named most of the accused persons, but later in paragraph
8, he has stated that he has seen Jageshwar (A-1) and
Virendra (A-5) assaulting the deceased persons. He has also
stated in paragraphs 1 and 4 that these two accused
persons assaulted both the deceased persons with laathis,
which have been seized vide Ex. P/33 and P/37 pursuant to
their memorandum statements, but the seizure witness
namely Naleshwar (P.W.-7) has not supported the case of
the prosecution. Although Dr. Bhupesh Bhagat (P.W.-12)
has clearly stated that deceased persons died due to
neurogenic shock and internal hemorrhage and the nature
of their death is homicidal and the injuries suffered by them
are lacerated wounds and upon query of the said laathis,
the Doctor has opined that the injuries suffered by the
deceased persons could have been caused by the said
laathis.
26. After considering the testimony of eye-witness Jageshwar
(A-1) and Virendra (A-5) as well as the statement of Dr.
Bhupesh Bhagat (P.W.-12), we are of the considered opinion
that learned trial Court has rightly held that these two
accused persons namely Jageshwar (A-1) and Virendra (A-5)
are the perpetrators of the crime in question.
27. Now, the question that requires consideration is whether
the case of the appellants/accused persons is covered with
Exception 4 of Section 300 of IPC and whether their
conviction under Section 302 of IPC can be altered to
Section 304 Part I or II of IPC, as contended by learned
counsel for the appellants ?
28. The Supreme Court in the matter of Arjun v. State of
Chhattisgarh7 has elaborately dealt with the issue and
observed in paragraphs 20 and 21, which reads as under :-
"20. To invoke this Exception 4, the requirements that
are to be fulfilled have been laid down by this Court in
Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217
: 1989 SCC (Cri) 348], it has been explained as
under :(SCC p. 220, para 7)
7 (2017) 3 SCC 247
"7. To invoke this exception four requirements
must be satisfied, namely, (I) it was a sudden
fight; (ii) there was no premeditation; (iii) the act
was done in a heat of passion; and (iv) the
assailant had not taken any undue advantage or
acted in a cruel manner. The cause of the quarrel
is not relevant nor its I relevant who offered the
provocation or started the assault. The number of
wounds caused during the occurrence is not a
decisive factor but what is important is that the
occurrence must have been sudden and
unpremeditated and the offender must have acted
in a fit of anger. Of course, the offender must not
have taken any undue advantage or acted in a
cruel manner. Where, on a sudden quarrel, a
person in the heat of the moment picks up a
weapon which is handy and causes injuries, one
of which proves fatal, he would be entitled to the
benefit of this exception provided he has not
acted cruelly."
21. Further in Arumugam v. State [(2008) 15 SCC 590
: (2009) 3 SCC (Cri) 1130], in support of the
proposition of law that under what circumstances
Exception 4 to Section 300 IPC can be invoked if
death is caused, it has been explained as under :
(SCC p. 596, para 9)
"9. .... '18. The help of exception 4 can be invoked
if death is caused (a) without premeditation; (b) in
a sudden fight; (c) without the offender's having
taken undue advantage or acted in a cruel or
unusual manner; and (d) the fight must have
been with the person killed. To bring a case
within Exception 4 all the ingredients mentioned
in it must be found. It is to be noted that the
"fight" occurring in Exception 4 to Section 300
IPC is not defined in the Penal Code, 1860. It
takes two to make a fight. Heat of passion
requires that there must be no time for the
passions to cool down and in this case, the
parties had worked themselves into a fury on
account of the verbal altercation in the beginning.
A fight is a combat between two or more persons
whether with or without weapons. It is not
possible to enunciate any general rule as to what
shall be deemed to be a sudden quarrel. It is a
question of fact and whether a quarrel is sudden
or not must necessarily depend upon the proved
facts of each case. For the application of
Exception 4, it is not sufficient to show that there
was a sudden quarrel and there was no
premeditation. It must further be shown that the
offender has not taken undue advantage or acted
in cruel or unusual manner. The expression
"undue advantage" as used in the provisions
means "unfair advantage".
[
29. In the matter of Arjun (supra), the Supreme Court has held
that when and if there is intent and knowledge, the same
would be case of Section 304 Part-I IPC and if it is only a
case of knowledge and not the intention to cause murder
and bodily injury, then same would be a case of Section 304
Part-II IPC.
30. Reverting to the facts of the present case in light of the
aforesaid principle laid down by their Lordships of the
Supreme Court in the matter of Arjun (supra), it is quite
vivid that in the instant case there was no previous enmity
between the two appellants/accused persons and the two
deceased persons and simply suspecting that the deceased
persons were involved in the act of witchcraft due to which
son of Virendra (A-5) was becoming unwell, out of sudden
anger and in heat of passion, both the appellants/accused
persons assaulted the deceased persons with hands and
fists and laathis which is evident from the injuries suffered
by the deceased persons all over their body. Though there
was no premeditation on the part of the appellants/accused
persons to cause the death of the deceased persons,
however, looking to the nature of injuries suffered by them,
the appellants/accused persons must have had the
knowledge that their act is likely to cause the death of the
deceased persons. As such, the case of the
appellants/accused persons is covered with Exception 4 of
the Section 300 of IPC and their conviction for offence
punishable under Section 302 of IPC (two times) is hereby
altered to Section 304 Part I of IPC and since they have
remained in jail since 13/03/2012 i.e. for more than 10
years, we hereby sentence them for the period already
undergone by them. Their conviction for offence punishable
under Section 4 of the Act of 2005 is hereby maintained,
being well-merited. Both the appellants/accused persons
namely Jageshwar (A-1) and Virendra (A-5) be released
forthwith, if their detention is not required in any other
case.
Conclusion :-
31. The Acquittal appeal, being devoid of merits, stands
dismissed whereas both the Criminal Appeals are allowed to
the extent indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Harneet
