RISHIRAJ @ TUTUL MUKHARJEE & ANR. VS STATE OF CHHATTISGARH SC CASE

RISHIRAJ @ TUTUL MUKHARJEE & ANR. VS STATE OF CHHATTISGARH SC CASE

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1301 OF 2019

RISHIRAJ @ TUTUL MUKHARJEE & ANR. ..Appellants

VERSUS

STATE OF CHHATTISGARH ..Respondent

WITH

CRIMINAL APPEAL NO.1302 OF 2019

HANI @ KOUSTUBH SAMDARIYA ..Appellant

VERSUS

STATE OF CHHATTISGARH ..Respondent

AND

CRIMINAL APPEAL NO.1303 OF 2019

VIJAY @ HALLO JAISWAL & ANR. ..Appellants

VERSUS

STATE OF CHHATTISGARH & ANR. ..Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1. These appeals by special leave, at the instance of accused, named; (1)

Rishiraj @ Tutul Mukharjee, (2) Samrat @ Laltu Mukharjee, (3) Vijay @

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Hallo Jaiswal, (4) Ajay @ Chhotu @ Jijji Jaiswal and (5) Hani @ Koustubh

Samadriya, challenge the common judgment and order dated 10.08.2018

passed by the High Court of Chhattisgarh at Bilaspur in Criminal Appeal

Nos.452, 492, 522 and 538 of 2012.

2. The present proceedings arise out of the registration of crime pursuant to

First Information Report No.187 of 2010 dated 09.06.2010, lodged with Torwa

Police Station, District Bilaspur, Chhattisgarh, in respect of offences

punishable under Sections 148, 148, 149, 302 of the Indian Penal Code, 1860

(“IPC”, for short) read with Sections 25 and 27 of the Arms Act, 1959 (“Arms

Act”, for short). The Report made by one Jugal Kishore @ Gappu

(subsequently examined as PW-12 in the trial) was to the following effect:

“I reside in the aforementioned address. I run Smoker Club in

front of Geeta Hotel. On 08.06.2010, at night, I was in Surya

Hotel and at that time at 12:06 in the night I got phone call from

Gudda Sonkar, he said, “come immediately to Hotel Intercity.” I

alongwith my friend Alok Singh reached Hotel Intercity in 5 -7

minutes in a Scorpio car and saw that outside the hotel bar at car

parking Jai Jaiswal along-with his friends Manoj Agrawal, Hallo

Jaiswal, Jijji @ Chotu Jaiswal, Rishi Mukherjee, Samrat

Mukherjee and Hani Samdariya and with 2-3 other, whom I do

not know, were standing surrounding Gudda Sonkar and his Jija

Nanka Ghore and all were having altercation with Gudda Sonkar

and in the meantime, Vijay @ Hallo with their friends started

pushing Gudda Sonkar and Nanka Ghore, at that time Manoj

Agrawal, who was standing near, said to Jai @ Gudda Jaiswal

that you people cannot kill him, give me pistol, I will kill this …

(Expression used, is not reproduced), saying so he snatched

pistol from the hand of Jai Jaiswal and caused a gun-shot injury

on the face (cheek) of Gudda Sonkar, as a result, Gudda fell on

the ground. Thereafter, Jai Jaiswal snatched that pistol from the

hand of Manoj Agrawal and caused two gunshot injury on the

chest of Nanka Ghore, who has come to intervene in the matter,

as a result of which Nanka fell on the ground. People started

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running here and there. Then, people standing near there started

shouting, “ Gudda Sonkar is still alive, kill him”, on which, Jai

Jaiswal after putting his leg on the chest of Gudda Sonkar caused

a gunshot injury on his chest. In this way, with preplanned

manner, Jai Jaiswal along-with his companions(friends) has

killed Gudda and Nanka by firing 546 gunshot; and in this way,

Vijay @ Hallo Jaiswal fled away driving his white Endeavour

car bearing No.CG 10 F – 4499 and Jai Jaiswal fled away

driving his white Ritz car bearing no. CG 10 FA 4499 with their

friends. They all were armed with weapons. Jai @ Gudda Jaiswal

has pistol, Vijay @ Hallo Jaiswal has 315 bore rifle, Ajay Jaiswal

@ Jijji @ Chotu has .22 bore rifle, Rishi Mukherjee has 12 bore

rifle and Hani Samdariya has 12 bore rifle. Alok Singh, Lallan,

Mangal Singh, Bashir, Naim Memon, Praveen Keshri, Vinay

Ghore and employees of Hotel Intercity have seen the incident.

Gudda Sonkar was taken to CIMS Hospital in Scorpio and

Nanka was taken to Apollo Hospital in police jeep, where both

were declared dead by the doctor. I have seen the incident

closely with my friend Alok Singh. I hid behind the car with my

friends otherwise they would have also killed me.”

3. In the consequential investigation undertaken, following items were

seized from the place of occurrence: -

“Blood-Stained Cement Brick.

5 Blank Cartridges of 7.65 MM Pistol, which bears the following

KP 7.65 MM.

2 Mobile Phones of Nokia Company having SIM Cards.

1 White Maruti Suzuki Ritz bearing No. CG10H-7

1 Maroon Honda Activa bearing No. CG 10 EH 5326.”

4. The post-mortem on the body of deceased Gudda Sonkar was conducted

by Dr. Chaturbhuj Mishra, (subsequently examined as PW-9 in the trial) who

in Post-Mortem Report Ex.P/24 noticed following ante mortem injuries:

“(i) an entry wound with inverted margins 0.8 cm x 1 cm

elliptical in shape 7 cm away from left nipples directed

downwards medially towards sternum.

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(ii) two parallel abrasions marks over left side of chest about 4

cm long and 3 cm long respectively, about 9 cm above nipple.

(iii) an entry wound over left cheek circular shape 0.8 cm x 0.8

cm tattooing present around it size approx. 8 cm x 6 cm, margins

are inverted.

(iv) contusion mark below right eye on right cheek 0.5 x 0.6

cm.

(v) another contusion over nostrils right side 0.2 x 0.2 cm,

bleeding from nose present.

(vi) abrasion mark over back near 7-8 inter-vertebral space in

inter scapular region over left side about 1.5 cm x 1 cm.”

Dr. Chaturbhuj Mishra also noticed fracture of mandible bone and that a

bullet was stuck in the 6th cervical spine. In his opinion, the cause of death

was due to multiple gunshot injuries resulting in damage to internal vital

organs and hemorrhagic shock. However, the final opinion was deferred till

the receipt of biochemical analysis report and ballistic expert opinion. The

nature of death was opined to be homicidal.

5. On the same day, Dr. Chaturbhuj Mishra conducted post-mortem on the

body of deceased Nanka Ghore and the Post Mortem report Ex.P/25 noticed

following ante-mortem injuries:

“(i) an entry wound on left side of neck elliptical in shape

0.9 x 1 cm margins inverted and tattooing of skin.

(ii) an exit wound on right side of neck with inverted

margins size 1.3 cm x 1 cm.

(iii) one entry wound over sternum at level of lower end of

areola.

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(iv) second entry wound over sternum level 7½ cm below

1st injury.

(v) 3 ECG ports attached to chest, one on left side and two

on right side.

(vi) two exit wounds on back over right subscapular region

one on 7th and one on 8th inter-vertebral level, each of 0.9 x 0.9

cm size.

(vii) bullet was present just below (beneath) 2nd exit wound

at level of 8th inter-vertebral space, bullet has become flat and

dorsal pointed flattened.”

In the opinion of Dr. Chaturbhuj Mishra, the cause of death was due to

multiple gunshot injuries resulting in damage to internal vital organs i.e. liver,

right lung and great vessels of neck, and hemorrhage (massive internal).

However, the exact cause of death was to be ascertained after receipt of

histopathological, biochemical and ballistic expert reports. The nature of death

was opined to be homicidal.

6. The recoveries of certain fire-arms as dealt with by the High Court in

paragraph 6 of its judgment were:

“06. Memorandum of accused No.1 Jai @ Gudda (Ex.P/12)

recorded on 9.6.2010 led to seizure of one pistol of 7.66 MM in

which UNIQUE MQD/51 CQL-7.065 MM has been written,

bearing body No.5323404, one magazine containing five live

cartridges of 7.65 MM pistol and one white coloured Maruti

Suzuki Car (Ritz) bearing registration No.CG 10-FA 4499 vide

Ex.P/13. On the memorandum of accused No.7 Hani (Ex.P/25,

which appears to have been wrongly marked), one 12 bore pistol

bearing body No.MPABR/I-159/52-ZI having two round live

cartridges in its barrel and two other live cartridges were seized

vide Ex.P/26.

It is relevant to note here that this weapon was registered in

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the name of father of accused No.7, which is clear from Ex.P/5

and admittedly, no fire was made from this weapon in the crime

in question.

From accused No.2 one 315 bore rifle bearing body

No.MPRGH11/107/6/1967 with magazine having five live

cartridges, one empty cartridge in the barrel and one white

coloured Ford Company Endeavour car bearing registration

No.CG 10F-4499 were seized.

As per Ex.P/5, it is not in dispute that accused No.2 had the

licence to hold the above weapon.

From the possession of accused No.3 Rishiraj, one 12 bore

double barrel rifle of Royals Arms & Company, bearing

No.9895A/2-Y2002, was seized vide Ex.P/15. As per Ex.P/5,

this is also a licensed weapon in the name of accused No.3.

From accused No.6, Ajay @ Chhotu, one .22 rifle bearing body

No.

CAL22LONG/RIFLE/0147064JGANSCHITZGMBHWAFFEN

ABRIK/UIM/D/GERMANY, having a magazine containing

three live cartridges were seized vide Ex.P/14. As per Ex.P/5,

the said weapon was licensed in the name of accused No.6.”

7. Upon completion of investigation, seven persons, namely, Jai @ Gudda

Jaiswal s/o. Late Bajrant Pasad Jaiswal, Vijay @ Hallo Jaiswal s/o. Late

Bajrant Prasad Jaiswal, Rishiraj @ Tutlu Mukherji s/o. Ashok Mukherji,

Samrat @ Laltu Mukherji s/o. Ashok Mukherjee, Manoj Aggarwal s/o.

Shankar Lal Aggarwal, Ajay @ Chhoti @ Jijji Jaiswal, and, Honey @

Kaustubh Samdariya s/o. Dr. N.K. Samdariya, were sent up to face trial in

Sessions Trial No.169 of 2010 in the Court of Sessions Judge, Bilaspur,

Chhattisgarh for having committed the offences stated above.

8. According to the prosecution, only one weapon, namely, pistol recovered

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from accused No.1 Jai @ Gudda vide Ex.P/12 was used in the commission of

murders of Gudda Sonkar and Nanka Ghore. In order to prove its case, the

prosecution mainly relied upon the eye-witness account through PW1, PW2,

PW4 and PW12. As regards the incident and the role played by the concerned

accused, following statements made by the concerned witnesses are material:

“PW1 – Lallan Dhole son of Shri Niranjan Dhole.

2. Gudda Sonkar and Nanaka were also standing there. There

had been abusive talk between accused persons, Gudda Sonkar

and Nanaka. I and my friend were standing there and seeing

them. I saw that Gudda Sonkar was talking on mobile phone.

After ten minutes of this continuing argument, Gappu Sonkar

and Alok had also come there. The exchange of abusive language

had increased when they came there. Thereafter accused Gudda

and Jai had picked up pistol. During this time, exchange of

abusive language between them continued. Thereafter accused

Manoj also came there in between. Accused Manoj took away

pistol from accused Jai and Gudda and had opened the fire.

Accused Manoj opened fire on deceased Gudda Sonkar. Accused

Jai taken pistol from accused Manoj and opened fire upon

Nanaka. Gudda Sonkar and Nanaka had fallen on earth on being

hit by the gun shot. Again accused Jai @ Gudda opened one

bullet shot on the chest of deceased Gudda Sonkar. Both the

deceased persons were shot with two gunshots each. After

opening this gun shot on them, accused persons boarded their

vehicle and had run away from the spot.”

PW2 – Ram Narayan son of Late Shri Anand Kumar

“1. I know accused persons. Both have died on 8.6.2010. In the

fateful night of incident around 10.30 pm in the night, I along

with Praveen Kesari, Prashant Gulahare and Ravish Narsingh

had visited Hotel Intercity for having our dinner. When we came

out of the hotel after we had our dinner, there was quarrel going

on in the parking. This quarrel was going on between Gudda @

Jai, Hallo @ Vijay, Hanny Samadariya, Rishi Mukherjee, Samrat

Mukherjee, Manoj Aggarwal, Jijji @ Ajay and between deceased

persons. Accused persons had encircled the deceased persons

from all around and they were using abusive languages.

Deceased Gudda Sonkar had also abused the accused persons.

Accused Jai then took out his pistol from his pocket and put it on

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Gudda Sonkar and started abusing him. In the same time accused

Manoj came from behind and snatched the gun from Jai and

opened fire on deceased Gudda. Again, accused Jai took the gun

from accused Manoj back and he opened two fires on deceased

Nanaka who was trying to interfere in between. In the meantime

other accused persons started saying loudly that Guddda is alive.

Accused Jai while putting his leg on the chest of deceased Gudda

and opened a fire on him again while abusing him ‘Sale Sonkar’.

Thereafter they flew away from the spot through their vehicles.

2. First fire was shot at his cheek on deceased Gudda. Accused

Manoj was having gun like weapon at the time of incident. Rishi

was in possession of revolver type weapon. Both the injured

persons were lying on the spot. They were dead. Police had

recorded my statement.”

PW4 – Praveen Kesari son of Shri Gaya Prasad Kesari

“1. I know deceased persons. Both these persons have died on

8.6.2010. Both these persons had died in the Hotel Intercity in

the night around 11.30 to 12.30 am in the night. I was there, for

my dinner in the Hotel Intercity along with Ram Narayan,

Prashant Gulahare and Ravish Narsingh were also there. When

we reached parking for taking our vehicles, quarrel between

accused Gudda Jaiswal, Manoj, Hanny, Hallo, Samrat, Vijay,

Ajay @ Jijji, Laltu and Gudda Sonakar and Nanaka. Both the

sides were abusing each other and argument in this way was

going on. We were seeing the argument while standing there.

During the course of argument, accused persons, ‘gherowed’

Gudda Sonkar and Nanka. Accused Jai while abusing him took

out his pistol and pointed it towards Gudda Sonkar. During

course of argument, accused Manoj snatched the pistol from

accused Jai and shot it upon the deceased Gudda Sonkar. This

gunshot was inflicted upon face of Gudda Sonkar. Thereafter

accused Jai took away the pistol from accused Manoj and in the

meantime Nanka brother-in-law of Gudda Sonkar came there for

interfering. On this accused Jai hit upon him two bullets shot.

Nanka suffered two gunshots at his chest and in the mid of

stomach. Both the injured persons had fallen on earth.

2. After both were fell down, accused persons cried with each

other that Gudda is alive. Kill him. Then accused Jai put his leg

upon the Gudda’s chest and had opened one fire on his chest and

which was inflicted upon his chest. After this incident, accused

persons ran away in three-four vehicles. There were weapons in

the hands of accused persons which were the guns. After this

incident police had interrogated me. Police had also recorded my

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statement.”

PW12 – Jugal Kishore @ Gappu son of Shri Kaushal Kishor

“1. I identify the accused persons who is present in the court.

Deceased Gudda Sonkar and Nanka were also known to me.

Incident is of 8.6.2010. It was time of around 12 am in the night.

Incident had taken place in the Intercity Hotel. I was there in

Hotel Surya along with Alok Singh Thakur. When Gudda Sonkar

had called me on my mobile and had informed me that there is

quarrel going on with him. Therefore, I should go there. I and my

friend went to the Hotel Intercity. When I reached Hotel

Intercity, I saw that quarrel between accused persons and Gudda

Sonkar was going on. This quarrel was going on outside bar. I

saw that fighting is also with accused Jai and Manoj. They were

saying ‘kill them, kill them’.

3. I had reported the incident in the police station Torwa. Report

is Ex P-33 which bears my signature at point A to A. I had also

given death information of both. My information was recorded

which is Ex P-34 and 35. Which bears my signature at point A to

A. police had recorded my statement.”

9. After considering the material on record, the Trial Court by its judgment

and order dated 30.04.2012, convicted and sentenced accused Jai @ Gudda

and Manoj Aggarwal under Sections 147, 148, 302, 302/149 IPC and Sections

25 & 27 of the Arms Act; accused Vijay @ Hallo, Ajay @ Chhotu, Hani,

Samrat and Rishiraj were convicted under Sections 147, 148, 302/149 of IPC;

Vijay @ Hallo, Ajay @ Chhotu, Hani & Rishiraj were also convicted under

Section 25 of the Arms Act; while accused Samrat @ Laltu Mukherji was

acquitted of the charges under Section 25 of the Arms Act. The substantive

sentence imposed for the offences punishable under Sections 302 and Section

302 read with 149 of the IPC was life imprisonment on both counts with other

term sentences for other offences, which need not be stated here in detail.

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10. All the convicted accused preferred Criminal Appeal Nos.452, 492, 522

and 538 of 2012 in the High Court, which were dealt with by the judgment

presently under challenge. After considering the entirety of the matter, the

High Court observed:

“41. In the case in hand, from the unrebutted evidence of the

eyewitnesses (PWs-1, 2, 4 & 12) it is apparent that all the

accused persons were standing surrounding the deceased persons

and during the course of altercation between the two groups,

accused/appellant Jai pointed pistol at deceased Gudda Sonkar,

which was subsequently snatched by accused/appellant Manoj

who caused gunshot injury to Gudda Sonkar and thereafter with

the same weapon, accused/appellant Jai caused gunshot injury to

Nanka who came to the rescue of Gudda Sonkar. All these

witnesses have further stated that thereafter, the other accused

persons exhorted that Gudda Sonkar is alive, shoot him. Thus,

from their conduct during the course of incident it is evident that

they were well aware of the act likely to be committed by the

said assembly. Furthermore, there is no evidence that the other

accused persons in any manner tried to pacify the dispute or

prevent accused Jai and Manoj from firing. Thus, in light of the

aforesaid principles of law as to the scope of Section 149 of IPC,

from the evidence of the eyewitnesses coupled with the conduct

of these accused persons, it is clear that all the accused persons

had a common object of committing murder of the deceased

persons.”

11. Thus, affirming the view taken by the Trial Court, the High Court

dismissed the appeals.

12. All seven convicted accused preferred Special Leave Petitions in this

Court, which were dealt with by this Court in its order dated 27.08.2019. No

case was found to have been made out in respect of principal accused Manoj

Aggrawal and Jai @ Gudda Jaiswal [petitioners in SLP (Crl.) Diary No.11603

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of 2019], and their Special Leave Petitions were rejected at the admission

stage, while Special Leave to Appeal was granted in favour of the other

accused, namely, Rishiraj @ Tutul Mukharjee and Samrat @ Laltu Mukharjee

[appellant in Criminal Appeal No.1301 of 2019]; Vijay @ Hallo Jaiswal and

Ajay @ Chhotu @ Jijji Jaiswal [Criminal Appeal No.1303 of 2019]; and, Hani

@ Koustubh Samdariya [Criminal Appeal No.1302 of 2019].

13. In these appeals, we have heard Mr. Siddharth Luthra, learned Senior

Advocate for the appellants and Mr. Saurabh Roy, learned Advocate for the

respondents.

14. It is submitted by Mr. Luthra, learned Senior Advocate that:

(i) Going by the narration of all the prosecution witnesses, the

principal role in the crime was attributed to Manoj Aggarwal and Jai @ Gudda

Jaiswal, whose challenge was rejected at the admission stage itself.

(ii) In so far as the appellants before this Court are concerned, at best,

the role attributed to them was being part of the group which was having an

oral altercation.

(iii) There was no commonality in action so as to hold the appellants

before this Court guilty with the aid of vicarious liability under Section 149 of

the IPC.

On the other hand, it is submitted by Mr. Roy, learned Advocate that the

evidence indicates complete participation of the appellants in the crime and as

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such they cannot escape the liability under Section 302 read with 149 of the

IPC.

15. The presence of the appellants stands established all through, which was

referred to in the First Information Report and in the evidence of all the

concerned eye-witnesses.

The question that now arises is about the participation of these

appellants in the crime.

As stated by the eye-witnesses, these appellants were taking part in the

initial scuffle and Gudda Sonkar and Nanka Ghore were being pushed by all

the accused. While this scuffle was going on, a firearm was taken out by

accused Jai @ Gudda Jaiswal. The evidence further discloses that this firearm

was snatched by Manoj Aggarwal, who fired at Gudda Sonkar. Thereafter, the

weapon was snatched back by accused Jai @ Gudda Jaiswal and he fired upon

Nanka Ghore. As a result of the gunshot injury received by him, Gudda

Sonkar had fallen down but was still alive. What is material is the exhortation

attributed to the appellants who were shouting that Gudda Sonkar was alive

and that he be killed. The second shot was then fired at Gudda Sonkar.

16. The presence of the witnesses was established. The eye-witness account

shows participation of the appellants in the initial scuffle in which the

deceased were pushed as well as in the exhortation as stated above. The

evidence unfolded through the eye-witness account about the exhortation by

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the appellants was consistent and cogent. Nothing effective could be drawn

from the cross-examination of the witnesses. Thus, it can certainly be said that

the participation of the appellants was not just as bystanders or only in the oral

altercation or scuffle. There was not even a suggestion that after the first shot

was fired, any of the appellants backtracked or wanted to dissociate himself

from what was unfolding.

Their participation was full and effective and as such the appellants

cannot escape the vicarious liability. They were thus rightly convicted under

Section 302 read with 149 of the IPC.

17. In the premises, we affirm the view taken by the Courts below and

dismiss these criminal appeals.

.....………………………………………….J.

 (UDAY UMESH LALIT)

.....………………………………………….J.

 (S. RAVINDRA BHAT)

…………………………………………….J.

 (PAMIDIGHANTAM SRI NARASIMHA)

New Delhi,

May 20, 2022.

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