Madhya Pradesh High Court
The State Of M.P. & Ors vs Mohan & Ors. on 27 November, 2017
Author: Anurag Shrivastava
Bench: Anurag Shrivastava
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. CRA No.1561/1994,
CRA No.1803/1995 &
CRR No.848/1994
Parties Name Mohan and others
vs
State of Madhya Pradesh,
The State of M.P.
vs
Mohan and others
&
Lakhan
vs
Mohan and others.
Bench Constituted Hon'ble Shri Justice S.K. Gangele &
Hon'ble Shri Justice Anurag Shrivastava
Judgment delivered by Hon'ble Shri Justice S.K. Gangele
Whether approved for Yes/No
reporting
Name of counsels for parties For appellants: Shri R.S. Patel,
Advocate.
For State: Shri Ajay Tamrakar, Panel
Lawyer.
For complainant/Lakhan: None.
Law laid down
Significant paragraph
numbers
(J U D G M E N T)
Pronounced on :27.11.2017
1.Aforementioned three cases have been filed against the common judgment dated 29.11.1994 passed in Criminal Sessions Trial No.880/1992. Criminal Appeal No.1561/1994 has been filed by the accused persons. Criminal Revision No.848/1994 has been
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CRA No.1561/1994, CRA No.1803/1995 & CRR No.848/1994 filed by the complainant/Lakhan for enhancement of sentence and Criminal Appeal No.1803/1995 has been filed by the State for enhancement of sentence. Hence, all the cases are tagged together and heard together and same are being decided by this common judgment.
2. The accused persons/appellants were prosecuted for commission of offence punishable under Sections 148, 302 or 302/149, 307 or 307/149, 324 and 323 or 324/149, 323/149 of Indian Penal Code. During pendency of appeal four accused persons namely Mohan, Satyam, Surya Narayan and Ramaswami have been died. Their appeal stands abated. Appellant No.3 Swami Prasad @ Chitti Babu and appellant No.5 Kurala @ Kurlaiya are alive. Hence, this judgment is in regard to appellant No.3 Swami Prasad @ Chitti Babu and appellant No.5 Kurala @ Kurlaiya.
3. The trial Court held the appellant No.3 Swami Prasad @ Chitti Babu guilty for commission of offence punishable under Sections 304 Part II r/w 149, 148, 307 r/w 149, 324 and 323 r/w 149 of IPC and awarded sentence of RI seven years, RI two years, RI five years, RI two years and RI one year respectively. The trial Court also held the appellant No.5 Kurala @ Kurlaiya guilty for commission of offence punishable under Sections 304 Part II r/w 149, 148, 307 r/w 149, 324/149 and 323 of IPC and awarded
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CRA No.1561/1994, CRA No.1803/1995 & CRR No.848/1994 sentence of RI seven years, RI two years, RI five years, RI two years and RI one year respectively. The trial Court ordered that the sentences shall run concurrently.
4. Prosecution case in brief is that on 10.09.1992 Lakhan was standing alongwith his friends near marghatai (necropolis) at Ganesha Temple and he asked Ramaswami to pay the money for milk. Ramaswami told him to come to his house, where he would pay the money. Accused persons had gone to the house of Ramaswami. At that time, Ramaswami came out from his house armed with a sword. He had inflicted a blow of sword on the head of Lakhan. Thereafter, other accused persons came there and they had beaten other persons. Ramaswami had inflicted a blow of sword on the leg of Jogendra (deceased), due to which he was died. Report of the incident was lodged at the police station.
Police conducted investigation and filed charge-sheet.
5. The appellants abjured their guilt and pleaded innocent during trial. The trial Court after appreciation of evidence held both the appellants guilty and awarded sentence as mentioned above in the judgment.
6. Learned counsel for the appellants has submitted that both the appellants have wrongly been convicted for commission of offence punishable under Section 148 and 149 of IPC and other Sections as well. They are responsible for their individual acts
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CRA No.1561/1994, CRA No.1803/1995 & CRR No.848/1994 because the assembly was not unlawful and even if the evidence of prosecution be believed as it is, the appellants are liable to be convicted for commission of offence punishable under Section 324 of IPC. They have already suffered jail sentence of near about three years, hence, sentence of the appellants could be modified as already undergone.
7. Learned counsel for the State has submitted that the trial Court has rightly convicted the appellants for commission of offence punishable under Sections 148 and 149 of IPC. The appellants were the members of unlawful assembly. They were armed with deadly weapons.
8. PW-1 Lakhan Kewat, PW-2 Balwant, PW-4 Rameshwar Prasad @ Ramesh and PW-6 Mahendra Kumar Kewat are the injured eye witnesses. PW-1 Lakhan Kewat deposed that on the date of incident in the night I was standing near necropolis at Ganesha Temple. Narayan was also with me. At around 12:15 AM Ramaswami came to me and I had asked money of milk. He told me that he would pay the money at his house. His house is near church. I and Narayan had gone to the house of Ramaswami. Ramaswami went inside the house. He came out with a sword and he had inflicted a blow of sword on my head. I cried. Thereafter, other accused persons i.e. Kurala, Surya Narayan, Mohan and Chitti Babu came there. Chitti Babu was armed with baka and
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CRA No.1561/1994, CRA No.1803/1995 & CRR No.848/1994 Kurala was armed with sword. Chitti Babu had inflicted blow of baka on my leg and Kurala on my right arm. Other accused persons had also inflicted injuries. I lodged the report Ex.P1 at the police station and I singed the same. Jogendra died on next date.
9. PW-2 Balwant (injured) deposed the same facts. He deposed that when I tried to save Lakhan, Satyam had inflicted blow of pharsa on the head of Jogendra. Kurala had inflicted a blow of sword on my head. He inflicted two more blows, which had hit my forehead.
10. PW-3 Jagannath deposed the same facts that when I tried to save Lakhan, accused persons had beaten me also. He deposed that accused Chitti Babu had inflicted injury on the right hand of Ramesh by baka. PW-4 Rameshwar Prasad and PW-6 Mahendra Kumar Kewat also deposed the same facts.
11. From the evidence of the injured eye witnesses, this fact has been established that accused Swami @ Chitti Babu had inflicted injury on the leg of Lakhan by baka. He also inflicted injury to Rameshwar Prasad @ Ramesh (PW-4) on his right hand by baka. Another accused Kurala had inflicted injury by sword on the head of Balwant and on right hand of Lakhan. PW-15 Dr. J.N. Sen, who examined Lakhan, Balwant, Rameshwar Prasad @ Ramesh, had verified the fact that Ramaswami had inflicted incised injury on the left leg of the deceased. Lakhan had received incised injury
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CRA No.1561/1994, CRA No.1803/1995 & CRR No.848/1994 on his leg. He was admitted in the hospital. PW-16 Dr. Taki Raja deposed that there was a compound fracture of tibia in the left leg of Lakhan and he was discharged after plaster. This fact is proved that Lakhan had received grievous injury which was caused by sharp edged weapon.
12. On the basis of aforesaid evidence, in our opinion, Swami @ Chitti Babu is liable to be convicted for commission of offence punishable under Section 326 of IPC and Kurala is liable to be convicted for commission of offence punishable under Section 324 of IPC.
13. In regard to another aspect that whether the aforesaid accused persons are liable to be convicted for commission of offence punishable under Sections 148 and 149 of IPC alongwith other co-accused persons. The Apex Court in the case of Rattiram and others vs State of Madhya Pradesh through Inspector of Police and Satyanarayan and others vs State of Madhya Pradesh through Incharge, Police Station Cantt., (2013) 12 SCC 316 has held as under in regard to attractability of Section 149 of IPC:
"17. Before we proceed to analyse the evidence on this score, we think it appropriate to refer to certain pronouncements pertaining to attractability of Section 149 IPC. In Baladin and others v. State of Uttar Pradesh AIR 956 SC 181, a three-Judge Bench has opined as follows: -
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CRA No.1561/1994, CRA No.1803/1995 & CRR No.848/1994 "19. ... It is well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under section 142, Indian Penal Code."
18. The dictum in the aforesaid case was considered by a four-Judge Bench in Masalti v. The State of Uttar Pradesh AIR 1956 SC 202, wherein the Bench distinguished the observations made in the case of Baladin (supra) on the ground that the said decision must be read in the context of special facts of that case and may not be treated as laying down an unqualified proposition of law. The four-Judge Bench, after explaining the said decision, proceeded to lay down as follows: -
"17. ... It would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, S. 149 make it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by S. 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly."
19. In Lalji v. State of U.P.(1989) 1 SCC 437, it has been observed that "8.... common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of
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CRA No.1561/1994, CRA No.1803/1995 & CRR No.848/1994 occurrence. It is an inference to be deduced from the facts and circumstances of each case.
20. In Bhargavan and others v. State of Kerala (2004) 12 SCC 414, it has been held that "13.... it cannot be laid down as general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141 IPC.
The Bench emphasised on the word "object"
and proceeded to state that it means the purpose or design and, in order to make it "common", it must be shared by all.
21. In Debashis Daw and others v. State of West Bengal(2010) 9 SCC 111, this Court, after referring to the decision in Akbar Sheikh v. State of W.B. (2009) 7 SCC 415, observed that the prosecution in a case of such nature is required to establish whether the accused persons were present and whether they shared a common object.
22. In Ramachandran and others v. State of Kerala (2011) 9 SCC 257, this Court has opined thus:
"27. Thus, this Court has been very cautious in a catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under the second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as to what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. The number and nature of injuries is also relevant to be considered.
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CRA No.1561/1994, CRA No.1803/1995 & CRR No.848/1994 "Common object" may also be developed at the time of incident."
14. From the aforesaid judgment, principle of law is that number and nature of injuries is relevant to be considered for common object and it may be developed at the time of incident. In the present case, the deceased received only one injury on his left leg, due to which arteries were cut. The deceased was died due to aforesaid injuries. The injury was caused by accused Ramaswami, who has been died. The aforesaid injury was inflicted under sudden provocation that's why the trial Court convicted the appellant Ramaswami for commission of offence punishable under Section 304 part II of IPC. It was neither the intention of the present appellants nor the object of unlawful assembly was to kill the deceased Jogendra. However, the appellants were armed with deadly weapons i.e. baka and sword alongwith other accused persons and near about four persons received injuries, hence, they were members of unlawful assembly. Hence, both the appellants are liable to be convicted for commission of offence punishable under Sections 326/149 of IPC and 324/149 of IPC. The appellants have already undergone the jail sentence of more than three years including remission, hence, they are awarded jail sentence of RI three years as already undergone.
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CRA No.1561/1994, CRA No.1803/1995 & CRR No.848/1994
15. Consequently, the appeal filed by the appellants is partly allowed. Their conviction and sentence awarded by the trial Court is hereby set aside. They are convicted for commission of offence punishable under Section 326/149 of IPC and 324/149 of IPC and awarded RI for three years i.e. already undergone. They are on bail. Their bail bonds are hereby discharged.
16. On the basis of aforesaid analysis, Criminal Appeal No.1803/1995 and Criminal Revision No.848/1994 are hereby dismissed being devoid of merit.
(S.K. Gangele) (Anurag Shrivastava)
Judge Judge
Digitally signed by VINOD KUMAR
TIWARI
Date: 2017.11.29 16:28:15 +05'30'
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