1 CRA No. 319 of 2025 2025:CGHC:52171-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 319 of 2025 1 - Keval Singh Rathiya @ Keval Rathiya S/o Garun Singh Rathiya Aged About 21 Years R/o Gram Khamhar, Chawki Jobi, Thana Kharsiya, District Raigarh (C.G.). 2 - Kaleshwar Prasad Rathiya S/o Garun Singh Aged About 29 Years R/o Gram Khamhar, Chawki Jobi, Thana Kharsiya, District Raigarh (C.G.). 3 - Akhilesh Rathiya S/o Udhashwar Prasad Aged About 21 Years R/o Gram Khamhar, Chawki Jobi, Thana Kharsiya, District Raigarh (C.G.). 4 - Chabilal S/o Sankuta Prasad Aged About 19 Years R/o Gram Khamhar, Chawki Jobi, Thana Kharsiya, District Raigarh (C.G.). 5 - Dhanurjay Rathiya S/o Chandrahas Singh Aged About 20 Years R/o Gram Khamhar, Chawki Jobi, Thana Kharsiya, District Raigarh (C.G.). 6 - Horilal Rathiya S/o Late Pithram Rathiya Aged About 45 Years R/o Gram Khamhar, Chawki Jobi, Thana Kharsiya, District Raigarh (C.G.). 7 - Tribhuvan Rathiya S/o Horilal Rathiya Aged About 25 Years R/o Gram Khamhar, Chawki Jobi, Thana Kharsiya, District Raigarh (C.G.). SOURABH BHILWAR Digitally signed by SOURABH BHILWAR Date: 2025.10.29 10:51:08 +0530 2 CRA No. 319 of 2025 8 - Hemant Kumar Rathiya S/o Sankuta Prasad Rathiya Aged About 24 Years R/o Gram Khamhar, Chawki Jobi, Thana Kharsiya, District Raigarh (C.G.). ... Appellant (s) versus State Of Chhattisgarh Through The Police Station Chowki Jobi, P.S. Kharsia District Raigarh (C.G.). ... Respondent(s) (Cause-title taken from the Case Information System) For Appellant(s) : Mr. T. K. Jha, Advocate alongwith Mr. Abhishek Saraf, Advocate For Respondent(s) : Mr. Shashank Thakur, Dy. Advocate General Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Bibhu Datta Guru, Judge 27/10/2025 1. This criminal appeal preferred under Section 415 of the B.N.S.S. is against impugned judgment of conviction and order of sentence dated 16.01.2025 passed in Sessions Trial No. 38/2022 by the learned 6th Additional Sessions Judge, Raigarh, C.G., whereby the appellants have been convicted and sentenced as under:- Name of Accused Conviction Sentence Keval Singh Rathiya Kaleshwar Rathiya U/s 148 of the IPC R. I. For 2-2 years and fine of Rs. 100/- each with default stipulation. Akhilesh Rathiya Chabilal Rathiya U/s 147 of the IPC R. I. For 2-2 years and fine of Rs. 100/- each with 3 CRA No. 319 of 2025 Dhanurjay Rathiya Horilal Rathiya Tribhuvan Rathiya Hemant Kumar default stipulation. Keval Singh Rathiya Kaleshwar Rathiya Akhilesh Rathiya Chabilal Rathiya Dhanurjay Rathiya Horilal Rathiya Tribhuvan Rathiya Hemant Kumar U/s 341 of the IPC S. I. For 1-1 month and fine of Rs. 100/- each with default stipulation. Keval Singh Rathiya Kaleshwar Rathiya Akhilesh Rathiya Chabilal Rathiya Dhanurjay Rathiya Horilal Rathiya Tribhuvan Rathiya Hemant Kumar U/s 302/149 of the IPC R. I. For Life and fine of Rs. 100/- each with default stipulation. All the sentences were directed to run concurrently. 2. Case of the prosecution in brief is that on 19/03/2022, the complainant Hemsingh Rathiya (PW/1) appeared at the Police Chowki, Jobi and lodged a report to the effect that on 18.03.2022 at about 2.00 pm his grandson Gaurav Rathiya and Madhav Rathiya had gone to village Khamhar and after coming home they told him that Kaleshwar Rathiya, was teasing him and threatened him in the name of his cousin David Rathiya (since deceased) and he asked him to apologize then they would not apologize and on saying that he would talk to David Rathiya and 4 CRA No. 319 of 2025 they made him talk to Kaleshwar Rathiya. Thereafter his grandson came alone on a motorcycle to village Khamhar at about 8 pm and after that at about 9 pm he got information on his mobile that David Rathiya had become unconscious after being hit with a sharp weapon by Kaleshwar Rathiya in village Khamhar. On receiving this information, the complainant, Bholashankar Rathiya, along with Hemant Rathiya, came to the road in front of Kewal Rathiya's house in village Khamhar. He saw his grandson David Rathiya lying unconscious on the motorcycle. He had suffered a serious injury on the left side of his neck and a lot of blood had spilled on the road. David Rathiya was taken to Kharsiyan Civil Hospital for treatment where the doctor examined him and declared him dead. According to the prosecution, when the grand son of the complainant David Rathiya asked the accused not to talk with his sister, the accused persons together blocked the way of David Rathiya and hit him on the left side of the neck with a sharp weapon, resulting in his death. On the written report given by the doctor, Merg intimation (inquest No. 0/2022, which has been registered as inquest No. 36/2022 in Kharsiya police station) has been registered in Kharsiya Chowki. In connection with the above incident, FIR (Ex.P-1) under Section 341, 302, 34 IPC was registered in Police Station Jobi, and later Crime No. 122/2022 under Section 341, 302, 34 IPC was registered in Kharsiya police station vide FIR (Ex.P-27). 3. During investigation, Spot Map was prepared. Statements of witnesses were recorded. Subsequently after completing the investigation, a 5 CRA No. 319 of 2025 charge-sheet was submitted before the Court. After framing the charges against the accused/appellants, the charges were read out and explained to the appellants, they denied committing the crime and demanded trial. 4. In order to bring home the offence, the prosecution has examined 23 witnesses in its support. Statement of the accused/appellants under Section 313 Cr.P.C was recorded, wherein they have pleaded their innocence and false implication in the matter. 5. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 16.01.2025 convicted and sentenced the appellants as mentioned aforesaid. Hence, this appeal. 6. Learned counsel for the appellants submits that the appellants have been falsely implicated in the present case. He would submit that the conviction against the appellants is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt. He would submit that the judgment of conviction passed by the learned trial Court is bad in law and contrary to the evidence on record. The trial Court failed to properly appreciate the material evidence and documents, resulting in a miscarriage of justice. It is contended that the finding regarding unlawful assembly and conviction under Section 149 IPC is erroneous, as there is no evidence to establish any common object among the appellants. The prosecution witness Hem Singh Rathiya (PW- 1) was not an eyewitness and lodged the FIR based on information received from Dil Mohan Rathiya, who was never examined. Hence, the prosecution version is based on hearsay and is unreliable. Therefore, 6 CRA No. 319 of 2025 conviction under Section 302 IPC is not sustainable. It is lastly submitted that there was no motive or intention on the part of the appellants to commit the alleged offence. Hence, the conviction recorded by the trial Court deserves to be set aside, and the appellants may kindly be acquitted of all the charges leveled against them. 7. Learned counsel appearing for the State opposes the submissions made by the counsel for the appellants and submits that the conviction of the appellants is well merited which does not call for any interference, therefore, this appeal deserves to be dismissed. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 9. First of all, it has to be seen whether the deceased David Rathiya is murdered or not. 10. In this regard, the complainant Hemsingh Rathiya (PW-1) has stated that the deceased David Rathiya had gone to village Khamhar on a motorcycle at around 8 pm on the night of the incident. Thereafter, at 9 pm, he received information on his mobile phone that Kaleshwar Rathiya and Kewal Rathiya had killed David Rathiya with a sharp weapon. After receiving this information, he, Bholashankar and Hemant Rathiya left for village Khamhar. On reaching village Khamhar, the deceased David Rathiya was found lying unconscious on his motorcycle on the road in front of Keval Rathiya's house. He had suffered serious injuries to the left side of his neck, his back, and the back of his neck. 7 CRA No. 319 of 2025 Police arrived at the scene. David Rathiya was taken to Kharsiyan Civil Hospital for treatment. Upon arrival, the doctor examined him and declared him dead. 11. Sunil Rathiya (PW-3) being an eye-witness stated that he was present at the scene of the incident between 8:30 and 9:00 pm on March 18th, 2022. When he arrived, the deceased was sitting on his motorcycle. The deceased and Kewal Singh were arguing over their sister, Lalima. Then Kaleshwar Rathiya (A-2) came running and stabbed David Rathiya in the back with a sickle. When Kaleshwar Rathiya was about to stab David again, he tried to stop him, while Kewal Rathiya was stabbing David with a knife, which pierced David's neck. Seeing this, he panicked and ran away from the scene. He called Bhupendra Rathiya (PW-22) and told him that David was being stabbed. After some time of the call, Bhupendra Rathiya came to him, and his father informed David Rathiya's family and the police. 12. Bholeshvar Kumar Rathiya (PW-8) stated that Kaleshwar came with a sickle to kill David. Bhupendra, who was present there, caught Kaleshwar and took him away for a while. Kaleshwar then freed himself and hit David on the back with the sickle, thereafter, Keval Rathiya (A- 1) stabbed David with a knife. Fearing this, he came to Bhupendra's house and told Dilmohan that David was being killed. David's family then came to village Khamhar and they took David to Kharsiyan Hospital. 8 CRA No. 319 of 2025 13. Dilip Kumar Rathiya (PW-9) stated that while Bhupendra was taking Kaleshwar Rathiya away, he freed himself from his grip and ran towards David with a sickle, stabbing him in the back. Kewal stabbed David in the left side of the neck with a sharp knife, while the remaining accused surrounded him. David was bleeding profusely from his neck after being attacked by accused Kaleshwar and Kewal, and he was lying unconscious in the vehicle. Seeing David Rathiya lying there, he called Hem Singh Rathiya and informed him that David had been stabbed with a sickle and knife, and to come immediately. Shortly after, Hem Singh Rathiya and his family members arrived at the scene and took David Rathiya to Kharsiyan Hospital for treatment. Later, he got that David Rathiya had died. 14. Bhupendra Kumar Rathiya (PW-22) stated that David Rathiya was his friend who has since passed away. The incident occurred on the 18th of January, 2022, on Holi. He corroborated the whole story and stated in his deposition that the accused Kewal Rathiya's brother, Kaleshwar Rathiya, came with a sickle to attack David. Seeing him, he caught hold of Kaleshwar Rathiya's hand and took him some steps away. Then he asked accused Kaleshwar Rathiya that Kewal Rathiya and David Rathiya are talking, then why are you running with a sickle to kill him. Accused Kaleshwar Rathiya again took the sickle and ran to kill David Rathiya, but he was rescued by him and caught hold of him and took him away. Accused Akhilesh Rathiya, Chhabilal Rathiya, Dhanurjay Rathiya, Horilal Rathiya, Tribhuvan Rathiya and Hemand Kumar Rathiya 9 CRA No. 319 of 2025 (Appellants No. 3 to 8 respectively) came running from Kewal Rathiya's house and surrounded David Rathiya with their bikes and all of them surrounded David and started beating him. At that time, he stood holding Kaleshwar and was watching these people. The others were beating with their hands and Kewal was hitting with a knife. He was stabbed near the neck with a knife and he got scared seeing the blood. Then Kaleshwar Rathiya freed his hand; ran; and hit David Rathiya with a sickle, which frightened him. He stood there for a while, then when he shouted, all the accused ran away. From there, he called Hemsingh Rathiya and told him that Kewal had killed David Rathiya. Thereafter, he ran to his house and asked his father to make a call. After a little while, Hemsingh Rathiya and Bholashankar Rathiya arrived, took David Rathiya in their car, and took him to Kharsia. Thereafter, they received a phone call confirming that David Rathiya had died. 15. Perusal of the above statements reveals that there was a quarrel and ongoing dispute between the appellants No.1, 2 and the deceased, which indicates the existence of strained relations and animosity between them. The depositions of the prosecution witnesses, coupled with the documentary evidence available on record, lend full support to the prosecution’s version of events. The sequence of incidents narrated by the witnesses, the medical evidence, and the circumstances surrounding the occurrence of the offence collectively point towards the direct involvement of appellants No.1 and 2 in the commission of the murder of the deceased. 10 CRA No. 319 of 2025 16. Next question for consideration arises before this Court whether the death of deceased David Rathiya was murderous. 17. In this regard, Dr. Shishir Rathore (PW-17) has stated that he is posted in Civil Hospital Kharsia from February 2019 till date and currently he has come to Hyderabad to pursue PG course. He serves as a medical officer. The examination of the body, which was brought to him at 9:30 a.m. on March 19th, 2022, began at 9:40 a.m. The deceased appeared to be young. Blood was spread on the body's neck, face, upper chest, back, and clothing. The following injuries were present on the deceased's body: Injury No. 1 - IW, measuring 4 cm in length and 2 cm in width and depth, located in the center of the right side of the back. The injuries appeared to have been caused by a hard, sharp weapon, occurring 12 to 16 hours before the autopsy. The nature of the injuries was simple. Injury No. 2-IW, measuring 4 x 2 x 1 cm, was located 5 cm below the neck in the middle of the back and appeared to be caused by a sharp, sharp weapon which was 12 to 16 hours before the autopsy was performed. The type of injury was simple. Injury No. 3-IW, measuring 4 x 1 x 1 cm, was located on the left side of the back, 10 cm from the base of the neck. It appeared to be caused by a sharp, blunt weapon, occurring 12 to 16 hours before the autopsy. The injury was simple in nature. 11 CRA No. 319 of 2025 Injury No. 4—IW—was a 1 x 1 x 0.05 cm injury on the outer left side of the middle of the neck, apparently caused by a sharp, blunt weapon, dating from 12 to 16 hours before the autopsy. The injury was simple in nature. Injury No. 5 - IW - measuring 4 cm x 1 cm was located in the temporal region of the scalp, 5 cm above the right ear, and appeared to be caused by a sharp, blunt weapon, approximately 12 to 16 hours before the autopsy. The injury was simple in nature. Injury No. 6 - SW measured 3 x 2 x 5 cm, with a length of 3 cm, a width of 2 cm, and a depth of 5 cm. The injury was located 3 cm above the center of the manubrium sternum and 3 cm on the left side of the neck. The above injury appears to have been caused by a sharp, blunt weapon, occurring 12 to 16 hours before the autopsy, and is a serious injury. Injury No. 6 is a serious injury, causing the left internal jugular muscle of the neck to be severed, penetrating and lacerating the trachea. Vital structures of the neck were severed. All the above injuries occurred before death. 18. Dr. Shishir Rathore (PW-17) further stated that his opinion regarding the post-mortem examination was that the deceased's death appeared to be due to internal bleeding and cutting of the vital structures of the neck due to a sharp-edged weapon on the neck. The deceased died 12 to 16 hours prior to the post-mortem examination and the nature of death was 12 CRA No. 319 of 2025 homicidal. The post-mortem report prepared by him is Exhibit P-24. 19. The doctor also stated that after conducting a curie regarding the seized sharp knife, whether the injuries on the left side of the neck, back of the neck and other places of deceased David Rathiya could have been caused by the seized steel sharp knife, whether the seized steel sharp knife has human blood stains on it and if there is any other evidence, please mention it. On 09.04.2022, the said written report along with the seized knife was presented before him, in respect of which he gave his opinion as per the aforesaid written complaint, which is as follows- Opinion- 01 Yes, the deceased was killed with the seized steel sharp knife. The injuries on the left side of David Rathiya's neck, behind the neck, and injuries number 01 to 06 mentioned in the postmortem report could have been caused by this knife. 02- Red and brown spots are present on many parts of this knife which was sent for FSL report to find out whether the blood was human blood or not? 20. The evidence on record clearly establishes that appellants No.1 and 2 had both motive and opportunity to commit the crime. Their prior disputes with the deceased, coupled with the subsequent conduct and corroborating testimonies, form a chain of circumstances so complete that it leaves no reasonable ground for any possibility consistent with their innocence. Thus, their complicity in the crime stands proved beyond reasonable doubt. 13 CRA No. 319 of 2025 21. However, upon careful scrutiny of the entire record, it is evident that no cogent or reliable evidence has been adduced by the prosecution to establish the involvement of appellants No.3 to 8 in the commission of the said offence. None of the prosecution witnesses have attributed any overt act, participation, or presence of these appellants at the time of the incident. Even their names have not been mentioned in the First Information Report (FIR), which further weakens the prosecution’s claim against them. The subsequent inclusion of their names during investigation appears to be an afterthought and lacks corroboration from any independent or reliable source. In the absence of any credible evidence or testimony linking appellants No.3 to 8 with the commission of the alleged offence, their implication appears to be merely based on suspicion or general allegations. Therefore, it can safely be concluded that no case is made out against appellants No.3 to 8, and their conviction for the alleged offence of murder cannot be sustained in the eyes of law. 22. Further it has to be seen that whether the appellants No.3 to 8 (Akhilesh, Chhavilal, Dhanurjay, Horilal, Tribhuvan, Hemant Kumar respectively) constitute an unlawful assembly and commit riot by using force and violence in furtherance of a common object. 23. At the time of incident, mere presence at the scene does not ipso facto render a person a member of the unlawful assembly, unless it is established that such an accused also shared its common object. A mere bystander, to whom no specific role is attributed, would not fall within 14 CRA No. 319 of 2025 the ambit of Section 147, 148 & 149 of the IPC. The prosecution has to establish, through reasonably direct or indirect circumstances that the accused persons shared a common object of the unlawful assembly. The test to determine whether a person is a passive onlooker or an innocent bystander is the same as that applied to ascertain the existence of a common object. The existence of a common object is to be inferred from the circumstances of each case, such as: a. the time and place at which the assembly was formed; b. the conduct and behaviour of its members at or near the scene of the offence; c. the collective conduct of the assembly, as distinct from that of individual members; d. the motive underlying the crime; e. the manner in which the occurrence unfolded; f. the nature of the weapons carried and used; g. the nature, extent, and number of the injuries inflicted, and other relevant considerations. 24. Thus, from the above evidence presented by the prosecution in the present case and perusal of the medical evidence adduced by Dr. Shishir Rathore (PW-17) by giving postmortem report, has stated that during the postmortem serious injuries were found on various parts of the deceased’s body, due to which, he succumbed to death. It has been proved that the prosecution has been successful in proving beyond reasonable doubt that on the date of incident, the appellants No. 1 & 2 with the intention of causing death of the deceased or causing such bodily injury to him, which is likely to cause death, or with the 15 CRA No. 319 of 2025 knowledge that it is likely, to cause the death of the deceased by that act, caused the death of David Rathiya by beating him with a sickle and attacking him with a sharp knife, this Court comes to the conclusion that the appellants No.1 & 2 had murdered the deceased. It has been conclusively proved that on the date of incident, appellants No.1 and 2, with the intention of causing the death of the deceased or causing such bodily injuries as were likely to result in death, assaulted him with a sickle and a sharp knife, leading to his death. Accordingly, their act clearly falls within the ambit of Section 302 of the IPC, and their conviction by the learned trial court is well-founded and justified in law. 25. On the other hand, the prosecution has failed to prove the involvement of appellants No.3 to 8 in the commission of the said offence beyond reasonable doubt. There is no cogent, reliable, or independent evidence to establish that these appellants participated in the occurrence or shared any common object with appellants No.1 and 2. Their names do not even appear in the FIR, and none of the witnesses have attributed any specific role or overt act to them. The mere presence of these appellants, without proof of their participation or common object, cannot make them liable under Sections 147, 148, or 149 of the IPC. Their alleged involvement appears to be based merely on suspicion and general allegations, which are insufficient to sustain a conviction. Therefore, appellants No.3 to 8 deserve to be acquitted of all the charges. 26. Considering the entire facts and circumstances of the case and upon cumulative analysis of the evidence available on record, this Court 16 CRA No. 319 of 2025 comes to the conclusion as follows : a). The prosecution has proved its case beyond reasonable doubt against appellants No.1 and 2, and their conviction and sentence imposed by the learned trial Court for the murder of the deceased David Rathiya is hereby affirmed. b). The prosecution has failed to prove its case beyond reasonable doubt against appellants No.3 to 8, and consequently, they are acquitted of all charges, as their conviction cannot be sustained in the eyes of law. 27. In view of foregoing; i) the appeal is partly allowed; ii) conviction & sentence imposed upon the appellants No.1 & 2 are hereby upheld and affirmed. They are in jail. They shall continue to remain in custody to serve out the sentence awarded to them by the learned trial Court. iii) appellants No.3 to 8 are acquitted from all the charges levelled against them. They are also in jail. They be released forthwith if not required in any other case, on furnishing a personal bond for a sum of Rs.25,000/- with one surety in the like sum to the satisfaction of the trial Court. The bail bond shall remain in operation for a period of six months as required under the provisions of Section 481 of the BNSS. The appellants shall appear before the higher Court as and when directed 17 CRA No. 319 of 2025 28. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants No.1 & 2 are undergoing the jail sentence to serve the same on the said appellants informing them that they are at liberty to assail the present judgment passed by this Court, if so advised, by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 29. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice S. Bhilwar