Madhya Pradesh High Court
Rambabu vs State Of M.P. on 22 February, 2022
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
DEEPAK KUMAR AGARWAL J.J.
Cr.A. No. 724 of 2010
Rambabu & Ors.
Vs.
State of M.P.
Cr.A. No. 764 of 2010
Halkai & Ors.
Vs.
State of M.P.
Cr.A. No. 770 of 2010
Atmaram & Ors.
Vs.
State of M.P.
2
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
_______________________________________
Shri R.K.S. Kushwaha Counsel for the Appellants in Cr.A. No. 724
of 2010 and 764 of 2010
Shri N.P. Dwivedi Senior Counsel with Shri Gagan Sharma, Counsels
for Appellants in Cr.A. No. 770 of 2010
Shri C.P. Singh, Counsel for the State.
Shri M.K. Chaudhary, Counsel for the complainant.
Date of Hearing : 10-02-2022
Date of Judgment : 22-02-2022
Approved for Reporting : Yes
Judgment
22nd - February -2022
Per G.S. Ahluwalia J.
1. Cr.A. No. 724 of 2010 has been filed by Rambabu, Pola @
Jainarayan and Kailash, Cr.A. No. 764 of 2010 has been filed by
Halkai and Rakesh, and Cr.A. No. 770 of 2010 has been filed by
Atmaram, Batol @ Makhanlal, Pappu @ Sitaram, Sanjeev, Mahesh,
Rajesh and Dinesh. The Appellants Raju and Jagmohan have died
during the pendency of the appeal and therefore, their appeals have
already been dismissed as abated.
2. All the three appeals have been filed under Section 374 of
Cr.P.C. against the Judgment and Sentence dated 31 st -Aug-2010
passed by 1st Additional Judge to the Court of Additional Sessions
Judge, Sironj, Distt. Vidisha in S.T. No. 167 of 2005, by which the
Appellants have been convicted under Section 148,302/149 of I.P.C.
and have been sentenced to undergo 1 year R.I. for offence under
3
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
Section 148 of IPC and for Life Imprisonment and a fine of Rs.
5000/- with default imprisonment of 3 months R.I. for offence under
Section 302/149 of IPC.
3. The prosecution story in short is that on 13-6-2005 at about
18:30, the complainant Datar Singh lodged a Dehati Nalishi alleging
that in the afternoon, Babulal Sharma was beaten on account of old
enmity and therefore, they had gone to Police Station. Since, buses
were not plying therefore, they were going on motor cycles to Sironj
Hospital along with Babulal for his medical examination. When they
crossed village Chadholi and reached in front of Govt. park, the
accused persons namely Atmaram, Mahesh, Pappu, Sanjeev, Kailash,
Rakesh, Rambabu, Dinesh, Batol, Jagmohan, Raju, Pola all armed
with sword and knives came on three motor cycles and waylaid them.
Atmaram assaulted Babulal by knife in his stomach and thereafter, all
started assaulting the deceased. The accused persons also chased and
Mahesh and hurled a knife at him, but it did not hit him. At that time,
Mukesh, Rajkumar, Suresh also came there and all the accused
persons ran away. On this Dehati Nalishi, FIR was lodged.
4. The dead body of Babulal was sent for post-mortem, Lash
Panchnama was prepared, Statements of witnesses were recorded, the
seized articles were sent to F.S.L. After completing the investigation,
the police filed charge sheet for offence under Sections 341, 294, 147,
148,149,302 of IPC and under Section 25 of Arms Act. The Appellant
4
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
Dinesh was absconding, however, he too was arrested during the
pendency of the Trial, and accordingly, Supplementary charge sheet
was also filed against him and some of the witnesses who were
examined in his absence were recalled.
5. The Trial Court by order dated 7-1-2006 framed charges under
Sections 148,302/149 of Cr.P.C. against the Appellants except Dinesh
and by order dated 17-10-2006, framed charges under 148, 302/149
of IPC against Dinesh also.
6. Thereafter, Dinesh filed an application, claiming that he was
juvenile on the date of incident, and accordingly, enquiry was done
and by order dated 30-6-2007, it was found that Dinesh was not
juvenile on the date of incident.
7. The appellants abjured their guilt and pleaded not guilty.
8. The prosecution examined Datar Singh (P.W.1), Rajkumar
Sharma (P.W.2), Mukesh Sharma (P.W.3), Dr. Vivek Agrawal (P.W.4),
Suresh Kumar Sharma (P.W.5), Mahesh Sharma (P.W.6), Rakesh
(P.W.7), Sohan Lal Damade (P.W.8), Mohan Babu Sharma (P.W.9),
Bhagirath (P.W.10), Man Mohan Ahirwar (P.W.11), Kailash Singh
(P.W.12), and Ramesh Shukla (P.W.13).
9. The appellants examined Dr. Rakesh Saxena (D.W.1), Ashok
Dubey (D.W.2), Hari Om Sharma (D.W.3), Avinash Tiwari (D.W.4),
Raj Kumar Gour (D.W.5), Rajendra Singh Chouhan (D.W.6),
Shyamlal Patel (D.W.7), Dr. Milind Rakede (D.W.8) and Dr. Rekha
5
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
Sharma (D.W.9).
10. The Trial Court, by impugned judgment has convicted and
sentenced the appellants for the offences mentioned above.
11. Challenging the impugned judgment, it is submitted by the
Counsels for the Appellants, that in fact none of the so-called eye
witnesses had witnessed the incident. According to the prosecution,
the deceased Babulal was beaten in the morning and he had allegedly
sustained injury on the thumb, but in the post-mortem, no such injury
was found. The police has falsely concocted the story and some
unknown persons might have killed the deceased. Even otherwise,
the prosecution has failed to prove that the Appellants Rakesh, Batol,
Pappu, Sanjeev, Rajesh, Pola @ Jainarayan, Halkai and Dinesh were
the members of Unlawful Assembly or were sharing any Common
Object. It is further submitted that no statement of Appellant Rakesh
was recorded under Section 313 of Cr.P.C. because no answers have
been written in the questionnaire, which clearly shows that no
question was put to Rakesh to explain the circumstances. Even
otherwise, there are material omissions and contradictions in the
evidence of the witnesses.
12. Per contra, the State Counsel has supported the findings
recorded by the Trial Court, however, he fairly conceded that the
questionnaire which was prepared for Rakesh doesnot contain any
answers.
6
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
13. Heard the learned Counsel for the parties.
14. Before adverting to the facts of the case, this Court would like
to consider the submissions made by the Counsel for the Appellant,
that the questionnaire which was prepared under Section 313 of
Cr.P.C., doesnot contain the answers of Rakesh.
15. This Court has gone through the original record, and it is clear
that 222 questions were prepared requiring answers by Appellant
Rakesh. However, Questions No. 1-3 and 220,221,222 contain
answers. The remaining questionnaire is blank with no answers to
the questions. However, the interesting thing is that the entire
questionnaire runs in 29 pages. Each page contains the signature of
the Appellant Rakesh as well as that of Shri G.S. Kakodia, Add.
Sessions Judge, Sironj, Distt. Vidisha. Thus, it is clear that the
signatures of Appellant Rakesh were obtained on blank Questionnaire
and above all, the Presiding Judge, also signed each page of
questionnaire without asking any question to the Appellant Rakesh.
16. It appears that the Trial Court, took the proceedings under
Section 313 of Cr.P.C. in a most casual manner, as if, it is a mere
ritual. The Trial Courts must realize that in a criminal jurisprudence,
the accused is entitled to answer each and every circumstance alleged
against him. Therefore, there should not be any lapse in putting
questions to the accused under Section 313 of Cr.P.C., because if a
circumstance is not put to the accused in his statement under Section
7
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
313 of Cr.P.C., then it has to be excluded from consideration.
17. The Supreme Court in the case of Sharad Birdhichand
Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116 has
held as under :
143. Apart from the aforesaid comments there is one vital
defect in some of the circumstances mentioned above and
relied upon by the High Court viz. Circumstances 4, 5, 6, 8,
9, 11, 12, 13, 16 and 17. As these circumstances were not
put to the appellant in his statement under Section 313 of
the Criminal Procedure Code, 1973 they must be
completely excluded from consideration because the
appellant did not have any chance to explain them. This has
been consistently held by this Court as far back as 1953
where in the case of Hate Singh Bhagat Singh v. State of
Madhya Pradesh this Court held that any circumstance in
respect of which an accused was not examined under
Section 342 of the Criminal Procedure Code cannot be used
against him. Ever since this decision, there is a catena of
authorities of this Court uniformly taking the view that
unless the circumstance appearing against an accused is put
to him in his examination under Section 342 of the old
Code (corresponding to Section 313 of the Criminal
Procedure Code, 1973), the same cannot be used against
him. In Shamu Balu Chaugule v. State of Maharashtra this
Court held thus: [SCC para 5, p. 440: SCC (Cri) p. 58]
"The fact that the appellant was said to be absconding,
not having been put to him under Section 342,
Criminal Procedure Code, could not be used against
him."
144. To the same effect is another decision of this Court in
Harijan Megha Jesha v. State of Gujarat where the
following observations were made: [SCC (Cri) p. 653, para
3]
"In the first place, he stated that on the personal search
of the appellant a chedi was found which was blood
stained and according to the report of the serologist, it
contained human blood. Unfortunately, however, as
this circumstance was not put to the accused in his
statement under Section 342, the prosecution cannot be
permitted to rely on this statement in order to convict
the appellant...."
8
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
145. It is not necessary for us to multiply authorities on this
point as this question now stands concluded by several
decisions of this Court. In this view of the matter, the
circumstances which were not put to the appellant in his
examination under Section 313 of the Criminal Procedure
Code, 1973 have to be completely excluded from
consideration.
18. The Supreme Court in the case of Ghulam Din Buch v. State
of J&K, reported in (1996) 9 SCC 239 has held as under :
54. The aforesaid does show that Hafeezullah was not
asked, in any form, about his having entered into conspiracy
with anybody. He was not even asked that the rates at which
poles were carried by him were unreasonable or high. As
these allegations/circumstances are the crux of the
prosecution case insofar as he is concerned, the non-
providing of opportunity to him to explain the same has
rendered his conviction unsustainable.
19. The Supreme Court in the case of Rautu Bodra v. State of
Bihar, reported in 1999 SCC (Cri) 1319 has held as under:
4. Though the above findings of the trial court and the High
Court are based on proper appreciation of the evidence, we
are unable to sustain the conviction of the appellants in view
of the grave error committed by the trial court, in that, while
examining the appellants under Section 313 CrPC, it did not
ask them to explain any of the circumstances appearing in
the evidence against them. Indeed, except one question as to
what they have got to say about the prosecution case, the
trial court did not put any other question to the appellants. In
the context of the facts of the instant case, it was obligatory
on the part of the trial Judge, in view of Section 313 CrPC,
to put questions to the appellants relating to the evidence of
PW 6 and their going to the police station with the head of
the deceased and the weapons of offence immediately after
the occurrence. What would be the effect of such non-
compliance was considered by a three-Judge Bench of this
Court in Sharad Birdhichand Sarda v. State of Maharashtra
and it was held, following earlier decisions of this Court,
that the circumstances which are not put to the accused in
his examination under Section 313 CrPC must be
completely excluded from consideration because he did not
9
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
have any chance to explain them.
5. We have given our anxious consideration to the question
whether in view of the above serious lacunae for which the
conviction of the appellants is liable to be set aside, we
should, considering the ghastly nature of the crime allegedly
committed, remit the matter to the trial court, after setting
aside their conviction, to further and properly examine them
under Section 313 CrPC and then proceed with the trial
from that stage. But having regard to the fact that since the
alleged offence was committed, more than 15 years have
elapsed and the appellants have already served more than 4
years of imprisonment, we feel, we will not be justified in
resorting to such a course of action at this distant point of
time. For the foregoing discussion, we are left with no other
alternative but to allow this appeal and set aside the
conviction and sentence recorded against the appellants. The
appellants who are on bail are discharged from their bail
bonds.
20. The Supreme Court in the case of Ranvir Yadav v. State of
Bihar, reported in (2009) 6 SCC 595 has held as under :
11. Above being the position the appeal deserves to be
allowed. It is a matter of regret and concern that the trial
court did not indicate the incriminating material to the
accused. Section 313 of the Code is not an empty formality.
There is a purpose behind examination under Section 313 of
the Code. Unfortunately, that has not been done. Because of
the serious lapse on the part of the trial court the conviction
as recorded has to be interfered with.
21. The Supreme Court in the case of State of U.P. Vs. Raghuvir
reported in (2018) 13 SCC 732 has held as under :
11. Moreover, for relying upon the opinion of the ballistic
expert, the High Court observed that no question was put to
the accused under Section 313 CrPC about ballistic expert
report (Ext. A-14). The object of Section 313 CrPC is to put
a circumstance against the accused so that he may meet out
the prosecution case and explain the circumstances brought
out by the prosecution to implicate him in the commission
of the offence. If any circumstance had not been put to the
accused in his statement, the same shall be excluded from
consideration. Of course, this is subject to a rider whether
10
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
omission to put the question under Section 313 CrPC has
caused miscarriage of justice or prejudice to the accused.
22. Thus, it is clear that if no prejudice is caused to the accused,
then non putting of that circumstance under Section 313 of Cr.P.C.
may not have any adverse effect, but otherwise, if a circumstance is
not put to the accused in his statement under Section 313 of Cr.P.C.,
then the said circumstance cannot be considered against him.
However, the consequence of not putting any question to the
Appellant Rakesh shall be considered at a later stage.
23. Before adverting to the facts of the case, this Court would like
to consider as to whether the death of Deceased Babulal was
homicidal in nature or not?
24. Dr. Vivek Agrawal (P.W.4) has conducted the post-mortem of
the dead body of the deceased and found the following injuries :
(i) Incised wound 3 inch x 1inch x muscle deep,
horizontally placed left side lower neck started from lateral
border of sternocleidomastoid muscle horizontally back to
nape of neck ;
(ii) Incised wound 4 inch x 1 inch x bone deep, obliquely
placed about 3 inch below right nipple running downward
and laterally towards midline ;
(iii) Incised wound 3 inch x 1 inch x muscle deep left
infrascapular area horizontally placed ;
(iv) Abrasion 1 ½ inch x ¼ inch x SC over right cheek
below right medial canthus of eye.
No other external injury seen.
The mode of death was hemorrhagic shock due to multiple
incised wound. 12-18 hours prior to autopsy.
The post-mortem report is Ex. P. 5.
25. This witness was cross-examined. In cross-examination, he
11
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
admitted that in the requisition for Post-mortem, the police had not
mentioned the names of the assailants. The weapons were not sent to
him for examination as to whether the injuries sustained by the
deceased, could have been caused by them or not? He further
admitted that in case if a person is assaulted by 8-9 persons by fists
and blows then the victim would suffer contusions, and in the post-
mortem report, Ex. P.5, no contusions were found. He further stated
that no injuries except those which are mentioned in the post-mortem
report, Ex. P.5 were found. The injury no. 4 could have been
sustained due to fall on hard surface. There was no injury which
could have been caused by repeated blows by weapons. No injury in
the abdominal region was found. No punctured wound was found.
He admitted that the injury sustained by deceased could have been
caused by double edged weapon. He further stated that the deceased
could have survived, if the punctured wound which was found on left
Carotid Artery had been tied. He further stated that it is possible that
the death might have taken place within half an hour of sustaining
injuries. This witness was once again examined in respect of
Appellant Dinesh Sharma. In cross-examination, he stated that injury
no. 4 could not have been caused by any sharp edged weapon and
could have been caused by friction. No internal organ was damaged
due to injury no. 2 and 3. Death takes place only if 1/3 rd of blood is
drained out. He further stated that he cannot say as to whether any
12
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
injury was caused by double edged weapon or not?
26. No question was put to this witness with regard to nature of
death. Thus, it is clear that the prosecution has established beyond
reasonable doubt, that the death of the deceased Babulal was
homicidal in nature.
27. The next question for consideration is that whether the
appellants have committed the offence or not?
28. For the sake of convenience, we can bifurcate the Appellants in
two category i.e., the Appellants who had allegedly assaulted the
deceased by weapons and the Appellants who had allegedly assaulted
the deceased by fists and blows.
29. According to the Dehati Nalishi, Ex. P.1, the Appellant
Atmaram assaulted the deceased by causing injury in the abdominal
region of the deceased. As per the evidence of the witnesses,
Appellants Atmaram, Rambabu, Kailash, and Mahesh caused injuries
by sharp edged weapons whereas Halkai assaulted on the head of
deceased by lathi, and all other appellants assaulted by fists and
blows :
Appellants who used weapons either sharp or lathi
(a) Atmaram
(b) Kailash
(c) Mahesh
(d) Rambabu
13
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
(e) Halkai
Appellants who assaulted by fists and blows
(a) Pola @ Jai Narayan
(b) Raju (Dead)
(c) Rakesh
(d) Batol
(e) Pappu
(f) Sanjeev
(g) Rajesh
(h) Dinesh
(I) Jagmohan (Dead)
30. Datar Singh (P.W.1) is the eye-witness as well as the
complainant who lodged FIR. This witness has stated that he had
gone to village Deepnakheda at about 12-1:00 P.M. for casting his
vote. He heard about some quarrel that Babulal and Rajkumar have
been assaulted by Kalyan, Kailash, Pappu, Basori. Thereafter, he,
Mukesh, Ramgopal and Rajkumar went to Police Station along with
Babulal and lodged the report. There was no conveyance and by that
time, Suresh, the son of Babulal also came there. The S.H.O. said
that they may go by their vehicles for medical examination.
Accordingly, they were going to Sironj. Babulal was sitting on his
motor cycle, whereas Rajkumar and Mukesh were riding on another
motor cycle along with Bhagirath. Ramgopal and Suresh were on the
14
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
third motor cycle. All the motor cycles were following each other by
maintaining some distance. As soon as they reached in front of Govt.
Park, the appellants Atmaram, Jagmohar, Pappu, Mahesh, Batol,
Sanjeev, Dinesh, Halkai, Raju, Rakesh, Rambabu, Pola, Kailash total
13 persons were standing along with 2-3 motor cycles. Mahesh,
Atmaram and Kailash were having knives, whereas Rambabu was
having sword. Halkai was having lathi. As soon as they reached
there, the appellants challenged and accordingly, this witness moved
towards the ditch. Atmaram assaulted Babulal by knife on his
abdominal region, whereas Mahesh assaulted on the neck of Babulal,
Kailash assaulted on left side of back by knife, whereas Rambabu
assaulted by sword on left side of neck and Halkai assaulted the
deceased by lathi on his head. The remaining Appellants started
assaulting Babulal by fists and blows. Thereafter, Mahesh hurled a
knife towards this witness, therefore, he ran away. In the meanwhile,
Rajkumar, Suresh, Mukesh, and Bhagirath also reached on the spot.
Some of the appellants escaped on motor cycles whereas some of
them ran away. Thereafter, one police jeep reached there and he
lodged the Dehati Nalishi, Ex. P.1. The Lash Panchnama, Ex. P.2 was
prepared. The spot map, Ex. P.3 was prepared. The blood stained
and plain earth was seized vide seizure memo Ex. P.4. Babulal had
died on the spot. This witness was cross-examined.
In cross-examination, this witness stated that earlier, the
15
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
deceased was the Sarpanch of Gram Panchayat Deepnakheda. He
further admitted that during his tenure of Sarpanch, food grains at the
subsidized rates were given to the beneficiaries. He denied that
S.D.O., Sironj had caught the food grain which was meant to be
distributed to the beneficiaries. However, he admitted that charge
sheet was filed in the Court of J.M.F.C. against him, Secretary, Gram
Panchayat and grain merchant Vinod. He further admitted that
Atmaram is a witness in the said case. He further stated that a police
jeep had come after 15-20 minutes of the incident, but he did not
inform the police officers that Babulal has been killed in his presence.
The jeep had come from the side of Sironj and went towards
Chatholi. About 45 minutes thereafter, the S.H.O., Deepankheda also
came on the spot. He wrote the Dehati Nalishi. It was 5-5:30 P.M.
When he lodged the Dehati Nalishi, Ex. P.1, Suresh, Rajkumar, and
Mukesh were present. He denied that Constable Bhagirath was not
present. He could not explain as to why the name of Bhagirath as a
witness is not mentioned in Dehati Nalishi, Ex. P.1. He denied
Mahesh had not assaulted on the neck of the deceased Babulal, but
could not explain as to why it is not mentioned in Dehati Nalishi, Ex.
P.1. He could not explain as to why the assault by Kailash, Rambabu,
Halkai has not been mentioned in his Dehati Nalishi, Ex. P.1. The
ditch is about 4-5 ft.s below the road. Babulal was beaten in village
Deepnakheda. He was told by Babulal about said incident. Babulal
16
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
had lodged the FIR (about the incident which took place in the earlier
part of the day) in his presence. He admitted that Babulal had
disclosed in Police Station Deepnakheda that he had sustained
injuries on his hand, cheek and head. He further stated that he
himself had seen the injuries. He further stated that he went nearer to
Babulal after Rajkumar, Suresh and Mukesh also came on the spot.
They reached on the spot within 2-3-4 minutes of the incident. Blood
was oozing out of the injuries. The dead body was removed after
1:30-1:45 hours of the incident. The dead body was picked up by this
witness, Suresh, Mukesh, Ramgopal and Rajkumar but their cloths
did not get stained with blood. The dead body was shifted on the jeep
of Babulal. He stated that since he was frightened, therefore, he did
not notice the tyre marks of motor cycles. He could not see that
which appellant ran on foot and which appellant escaped on motor
cycle, as he was frightened. They had received the dead body on the
next morning. He denied that the names of 12 persons were
mentioned after due deliberations. He stated that there are two roads
for going towards Sironj from Deepnakheda i.e., one from Chitholi
and another from Patharia and bus plies on Patharia route. Only the
members of Mandi can caste their votes. He denied that the food
grains were caught on the report of Atmaram. He could not see that
how many persons were sitting in the police jeep which had come
from the side of Sironj. Since he was frightened, therefore, he did not
17
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
talk to the police. Bhagirath had informed on wireless. Police Jeep
had stopped at the place of incident for a period of 10-15 minutes and
thereafter went towards polling booth. He admitted that the road
from Deekanakheda to Deepnakheda is Kaccha road and results in
dust blowing. He further stated that the S.H.O. had told that since,
the buses are not plying therefore, they may go by Chatholi route.
When he reached on the spot, all the 13 accused persons were
standing. The S.H.O. had given the requisition to Bhagirath for
medical examination of Babulal. He admitted that Atmaram and his
family members donot have a motor cycle. Blood had fallen on the
ground where Babulal was lying and there were trails of blood from
the place of incident upto the ditch, where his dead body was thrown.
His motor cycle was lying about 2-3 steps away from the place where
the dead body of Babulal was lying. He denied that on account of old
enmity, the appellants have been falsely implicated. Thereafter, he
was again examined and cross-examined on behalf of the appellant
Dinesh. He admitted that he, Mukesh and Vinod had remained in jail
for a period of 2 months in connection with case registered under
Essential Commodities Act. He further admitted that Atmaram and
Dinesh are the witnesses in the said case. He further admitted that
after the registration of the offence, he was removed from the post of
Sarpanch, Gram Panchayat, Deepnakheda and Mukesh was removed
from the post of Secretary. Shri M.P. Shukla was the S.H.O. and he
18
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
had informed that buses are not plying and denied that buses were
available. He took about 10-15 minutes to lodge the report.
31. Rajkumar Sharma (P.W.2) has also narrated the same
prosecution story. He stated that after casting his vote in Mandi
election, he was coming back to his house. Kailash, Pappu, Kalyan
had a scuffle with Babulal and Batol assaulted on the neck of Babulal
however, Babulal succeeded in saving by his hand as a result he
sustained injuries. Kailash had assaulted by lathi on his cheek. He
rushed to save Babulal, then Kailash also assaulted him by lathi as a
result he lost his teeth. Thereafter, he went to the house of Babulal
along with him. Datar Singh (P.W. 1) also came to the house of
Babulal. Thereafter, he, Babulal, Datar Singh, Mukesh and
Ramgopal went to Police Station Deepnakheda. After about 10-15
minutes, they reached police station Deepnakheda. By that time,
Suresh, son of Babulal also reached there. Report was lodged by
Babulal. Thereafter they were going to Sironj Hospital for medical
examination. Babulal was sitting on the motor cycle of Datar Singh,
whereas he, and police personell Bhagirath were sitting on the motor
cycle of Mukesh. Suresh and Ramgopal were coming on the motor
cycle of Suresh. Since, dust was blowing therefore, they were
maintaining distance between two motor cycles. As soon as they
reached Chatholi road, 13 persons were standing with 3 motor cycles.
Those 13 accused persons are Atmaram, Pappu, Batol, Mahesh,
19
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
Sanjeev, Halkai, Rambabu, Rakesh, Kailash, Bhola, Raju, Dinesh.
The motor cycle of Datar Singh (P.W.1) was at the front. His motor
cycle was forcibly got stopped and the accused persons started
scuffling with Babulal. Atmaram assaulted by knife in the abdomen
of Babulal, whereas Mahesh assaulted on the neck. Rambabu
assaulted by sword below the left ear, Halkai assaulted by lathi on the
head, whereas Kailash assaulted on the back. The witnesses shouted
therefore, the appellants ran away. After about 10-15 minutes, one
police jeep came from the side of Sironj. The S.H.O., Police Station
Deepnakheda also reached there about 30 minutes thereafter. Babulal
had died on the spot. This witness was also cross-examined in detail.
In cross-examination, he stated that the knife of Atmaram was
double edged. This witness was at a distance of 10 steps when
Atmaram had assaulted. As the accused persons were having
weapons, therefore, they did not try to intervene in the matter.
Atmaram, Kailash and Mahesh were having knives, whereas
Rambabu was having sword and Halkai was having Lathi. He further
stated that he had informed the police that Rambabu had assaulted
below the ear, but could not explain as to why said fact is not
mentioned in his police statement, Ex. D.2. Babulal had sustained
injuries while he was lying on the ground. He had not seen that all
the appellants were having Sword, Knife, and lathis. He had seen
weapons only in the hands of 5-6 persons. He was also sent for
20
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
medical examination as his teeth had broken. He further admitted
that his uncle Ramgopal was also going to the hospital along with this
witness. He denied that Babulal had not sustained any injury in the
earlier incident. He further stated that initially assault was made
while Babulal was standing and thereafter he fell down. They were
instructed by S.H.O., that they may go via Chatholi road. Bhagirath
had given the information of incident by wireless set. The dead body
of Babulal was lying about 3 fts away from the road. The police
personell who had come from Sironj side, did not see the dead body
and went away after talking to Bhagirath.
32. Mukesh Sharma (P.W.3) has also stated that at about 2 P.M.,
Babulal was assaulted and accordingly, he also went to police station
Deepnakheda to lodge the report. Rajkumar had also sustained injury
in the said incident. Datar Singh (P.W.1) and Ramgopal had also
gone for lodging FIR. After they reached police station, Suresh also
came to the police station. After the report was lodged, the S.H.O.,
Police Station Deepnakheda instructed them to go to Sironj Hospital
for medical examination. Since, no conveyance was available,
therefore, they were instructed to go by their own motor cycles. The
deceased Babulal was sitting on the motor cycle of Datar Singh,
whereas he, Rajkumar and Bhagirath were sitting on his motor cycle.
Suresh and Ramgopal were sitting on the motor cycle of Suresh. They
left police station at about 4 P.M. when they reached village Chitholi
21
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
they started moving by maintaining distance as dust was blowing.
The appellants were standing and they forced Datar Singh to stop the
motor cycle. Atmaram assaulted in the abdomen of Babulal, whereas
Mahesh assaulted on the neck. Kailash assaulted on the back,
Rambabu assaulted on the neck and Halkai assaulted on the head. All
the remaining accused persons started assaulting Babulal by fists and
blows. He and Suresh, Bhagirath, Rajkumar and Ramgopal rushed to
save Babulal and then all the accused persons ran away. After 10-15
minutes of the incident, one police jeep came on the spot from Sironj
side. The said jeep was deployed for election purpose. Information
was given by wireless set. About 45 minutes, the S.H.O., Police
Station Deepnakheda also came on the spot and Dehati Nalishi was
recorded. Lash Panchnama, Ex. P.2 was prepared. The blood stained
and plain earth was seized vide seizure memo Ex. P.4.
In cross-examination, he admitted that all the accused persons
are the family members of Atmaram. He was the Secretary of Gram
Panchayat, Deepnakheda. Although he denied that food grains meant
for poor persons were being sold in black market but admitted that on
the report of C.M.O., a criminal case is pending in the Court of
J.M.F.C. for offence under Sections 406, 408/34 of IPC. He admitted
that Atmaram is a witness in the said case. He further stated that
Rajkumar had also sustained injury in the incident, which took place
in the earlier part of the day, but he had not seen his injury. He
22
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
further admitted that the remaining accused persons were bare
handed. He further admitted that Rajesh is relative and all other
appellants are the family members of Atmaram.
33. Suresh (P.W.5) is the son of the deceased. He reached to the
police station at the time, when Babulal was lodging the report. This
witness was also accompanying the deceased when they were going
to Sironj Hospital. This witness has also narrated the same story.
This witness was also cross-examined, but no discrepancy in the
evidence of the witness could be pointed out. This witness has also
stated that Atmaram had assaulted on the abdomen of Babulal by
knife whereas Mahesh assaulted on neck by knife. Rambabu also
assaulted below the left ear by sword, whereas Kailash assaulted by
knife on the back of Babulal. Halkai assaulted on the head of
Babulal and other accused persons assaulted by fists and blows. He
denied that Atmaram had given a written report to District Magistrate
that he has an apprehension. The photo copy of the said application
was shown to this witness, which was denied by him for want of
knowledge, but surprisingly, the said photo copy was marked as Ex.
D.6. The Counsel for the appellants could not justify that when a
document was denied by a witness, then how the said document can
be exhibited unless and until its execution is proved.
34. Bhagirath (P.W. 10) is the police personell who was sent along
with Babulal for getting him medically examined in Sironj Hospital.
23
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
At the beginning of the evidence, he was asked to identify Atmaram,
but he wrongly identified Halkai as Atmaram. Thereafter, an
objection was raised that since, all the accused persons are not
present therefore, his examination may be deferred. Accordingly,
recording of his evidence was deferred. Thereafter, on the next date
of his examination, he rightly identified Atmaram. He stated that on
13-6-2005, he was posted in Police Station Deepnakheda. Babulal
along with Datar Singh (P.W.1) and 4-5 persons came to the police
station for lodging the FIR. Thereafter, they were sent to Sironj
Hospital for medical examination. Since, Mandi elections were going
on, therefore, buses were not plying. Accordingly, he was going to
Sironj Hospital on the motor cycles of the witnesses. Datar Singh
(P.W.1) and deceased Babulal were sitting on one motor cycle,
whereas he, Mukesh and Rajkumar were sitting on one motor cycle.
Suresh Sharma and Ramgopal were sitting on the motor cycle of
Suresh. They started from Police Station at about 4:15 P.M. As soon
as they reached in front of Govt. Park, Village Chitholi, 14-15
persons stopped the motor cycle and started assaulting by knives and
sword. As soon as they reached on the spot, all the accused persons
ran away. Since, the Mandi elections were going on, therefore, the TI
was on patrolling. He also passed from the place of incident. He was
informed about the incident. Thereafter, S.D.O.(P) and S.H.O. also
came on the spot. The dead body of Babulal was sent for Post-
24
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
mortem. Datar Singh (P.W.1) had lodged the Dehati Nalishi on the
spot. The 14-15 persons who were present on the spot are the same
persons who are present in the Court. In cross-examination, he
admitted that he was suspended as he had left Babulal alone. He
further admitted that on 13-6-2005, he was posted in Police Station
Deepnakheda and Atmaram had lodged the report and was sent to
Sironj Hospital for medical examination. The report was written by
Head Constable Kailash Singh.
35. On appreciation of evidence of eye-witnesses, it is clear that all
the eye-witnesses are consistent that in the earlier part of the day,
some fight took place and accordingly, Atmaram and the deceased
Babulal lodged the report. The report lodged by Atmaram was at
earlier point of time. Atmaram was also sent for medical
examination. According to Bhagirath (P.W.10) Atmaram was taken
by S.H.O. in police vehicle. The deceased Babulal, Datar Singh
(P.W.1), Rajkumar (P.W.2), Mukesh (P.W.3), Suresh (P.W.5) and
Bhagirath (P.W.10) were going on three motor cycles. Babulal was
sitting on the motor cycle of Datar Singh (P.W.1), whereas Rajkumar
(P.W.2), Bhagirath (P.W.10) were sitting on the motor cycle of
Mukesh (P.W.3) and Suresh (P.W. 5) and Ramgopal were going on
one motor cycle. Since, dust was blowing therefore, motor cycles
were following each other by maintaining distance. The motor cycle
of Datar Singh (P.W.1) was in the front. When the motor cycle of
25
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
Datar Singh (P.W.1) reached in front of the Govt. Park, it was forcibly
got stopped and Atmaram assaulted Babulal by knife on his abdomen,
whereas Mukesh assaulted by knife on his neck. Rambabu assaulted
by sword below left ear. Kailash assaulted on the back of Babulal and
Halkai assaulted on the head of Babulal by Lathi. It is alleged that all
the other accused persons started assaulting by fists and blows. A
knife was hurled by Mukesh towards Datar Singh (P.W.1), but it did
not hit him. A police jeep which was already on patrolling, came
from the side of Sironj and information was given from the wireless
set installed in the jeep. Thereafter, Ramesh Shukla, S.I. who was
incharge of Deepnakheda Police Station, also reached on the spot.
36. Kailash Singh (P.W. 12) has stated that he was posted as Head
Constable in Police Station Deepnakheda. On 13-6-2005, he had sent
Babulal to Sironj Hospital for medical examination along with
requisition Ex. P.24. FIR, Ex. P.25 was registered by him for offence
under Sections 147, 148,149 and 302 of IPC on the basis of Dehati
Nalishi. On 13-6-2005, he had sent Police Constable Bhagirath for
getting the medical examination of Babulal. The duty certificate, Ex.
P.27 was issued. In cross-examination, he admitted that on 13-6-
2005, at about 11 A.M., Atmaram had lodged a report, which is
mentioned in Rojnamcha sanha no. 283. He had alleged that he was
beaten by Mukesh, Dinesh, Madho and Vakil. He was sent to Sironj
Hospital for medical examination along with constable Nawab Singh.
26
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
On the same day, at about 2:40 P.M., Babulal also lodged the report.
In the report lodged by Babulal, there is no mention that Rajkumar
too was beaten. In rojnamcha sanha No. 287, it is mentioned that
S.H.O. had informed that some one has been killed in village
Chatholi and accordingly, constable Prabhu Singh was sent with
necessary documents. As per the duty certificate issued to Bhagirath,
it is mentioned that the constable was sent at 15:00. In cross-
examination, this witness proved that the report lodged by Atmaram
is Ex. D.15 and its photo copy is Ex. D.15(c). As per Rojnamcha
sanha no. 286, Atmaram was sent for medical examination, which is
Ex. P. 16(c).
Whether the Medical Evidence is contrary to Ocular Evidence
37. It is submitted by the Counsel for the appellants, that according
to the prosecution story, the deceased Babulal was beaten in the
earlier part of the day and accordingly, he lodged the FIR according
to which he had sustained injuries on his hand and cheek, but in the
post-mortem report, no injury on the hand was found. Thus, it is
submitted that the post-mortem report, Ex. P. 5, completely rules out
the allegation of assault on Babulal on the earlier part of the day.
38. Considered the submissions made by the Counsel for the
appellants.
39. The post-mortem report, Ex. P.5 has already been reproduced
in para 24 of this judgment and no injury on the hand of the deceased
27
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
Babulal was found. However, in the Lash Panchnama, Ex. P. 2, it is
mentioned as under :
vaxqfy;ka [kwu ls yFkiFk gS nkfgus gkFk ds vaxBw s o dyds okyh
vaxqyh ds chp es pksV ds fu'kku gksdj [kwu fudyk gSA
40. Thus, it is clear that the Panchas had found injury in the right
hand of the deceased Babulal, but the post-mortem report, Ex. P.5 is
completely silent about that injury.
41. Further more, Kailash Singh (P.W.12) has proved the
requisition form, Ex. P.24 for medical examination of Babulal.
Constable Bhagirath was sent along with Babulal to Sironj Hospital,
for medical examination of Babulal and the duty certificate is Ex.
P.27. Thus, it is clear that Babulal was sent by the Police Station
Deepnakheda for medical examination. Kailash Singh (P.W.12) is an
independent witness being a police personell. He has no personal
interest in preparing false documents. Similarly Bhagirath (P.W.10) is
also an independent witness having no personal interest in the matter.
Why they would create a false evidence to the extent mentioned
above? Thus, it is clear that Babulal had sustained injury on his right
hand, but it appears that either Dr. Vivek Agrawal (P.W.4) did not
conduct the post-mortem properly or he has suppressed some facts.
42. It is submitted by the Counsel for the appellant that Since, Dr.
Vivek Agrawal (P.W.4) is a prosecution witness, therefore, his
evidence is binding on the prosecution.
28
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
43. Considered the submissions made by the Counsel for the
appellants.
44. The moot question for consideration is that whether the Court
is bound by the medical opinion of the Doctor, or the Court can make
the overall assessment of the evidence, in order to reach to the truth?
45. The Supreme Court in the case of Dayal Singh Vs. State of
Uttaranchal reported in (2012) 8 SCC 263 has held as under :
30. With the passage of time, the law also developed and
the dictum of the Court emphasised that in a criminal case,
the fate of proceedings cannot always be left entirely in the
hands of the parties. Crime is a public wrong, in breach and
violation of public rights and duties, which affects the
community as a whole and is harmful to the society in
general.
31. Reiterating the above principle, this Court in NHRC v.
State of Gujarat held as under: (SCC pp. 777-78, para 6)
"6. ... '35. ... The concept of fair trial entails familiar
triangulation of interests of the accused, the victim and
the society and it is the community that acts through
the State and prosecuting agencies. Interest of society
is not to be treated completely with disdain and as
persona non grata. The courts have always been
considered to have an overriding duty to maintain
public confidence in the administration of justice--
often referred to as the duty to vindicate and uphold
the 'majesty of the law'. Due administration of justice
has always been viewed as a continuous process, not
confined to determination of the particular case,
protecting its ability to function as a court of law in
the future as in the case before it. If a criminal court is
to be an effective instrument in dispensing justice, the
Presiding Judge must cease to be a spectator and a
mere recording machine by becoming a participant in
the trial evincing intelligence, active interest and elicit
all relevant materials necessary for reaching the
correct conclusion, to find out the truth, and
administer justice with fairness and impartiality both
to the parties and to the community it serves. The
29
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
courts administering criminal justice cannot turn a
blind eye to vexatious or oppressive conduct that has
occurred in relation to proceedings, even if a fair trial
is still possible, except at the risk of undermining the
fair name and standing of the Judges as impartial and
independent adjudicators.' (Zahira Habibullah case,
SCC p. 395, para 35)"
32. In State of Karnataka v. K. Yarappa Reddy this Court
occasioned to consider the similar question of defective
investigation as to whether any manipulation in the station
house diary by the investigating officer could be put against
the prosecution case. This Court, in para 19, held as
follows: (SCC p. 720)
"19. But can the above finding (that the station house
diary is not genuine) have any inevitable bearing on
the other evidence in this case? If the other evidence,
on scrutiny, is found credible and acceptable, should
the court be influenced by the machinations
demonstrated by the investigating officer in
conducting investigation or in preparing the records so
unscrupulously? It can be a guiding principle that as
investigation is not the solitary area for judicial
scrutiny in a criminal trial, the conclusion of the court
in the case cannot be allowed to depend solely on the
probity of investigation. It is well-nigh settled that
even if the investigation is illegal or even suspicious
the rest of the evidence must be scrutinised
independently of the impact of it. Otherwise the
criminal trial will plummet to the level of the
investigating officers ruling the roost. The court must
have predominance and pre-eminence in criminal trials
over the action taken by the investigating officers.
Criminal justice should not be made a casualty for the
wrongs committed by the investigating officers in the
case. In other words, if the court is convinced that the
testimony of a witness to the occurrence is true the
court is free to act on it albeit the investigating
officer's suspicious role in the case."
33. In Ram Bali v. State of U.P. the judgment in Karnel
Singh v. State of M.P. was reiterated and this Court had
observed that: (Ram Bali case, SCC p. 604, para 12)
"12. ... In case of defective investigation the court has
to be circumspect [while] evaluating the evidence. But
it would not be right in acquitting an accused person
solely on account of the defect; to do so would
30
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
tantamount to playing into the hands of the
investigation officer if the investigation is designedly
defective."
34. Where our criminal justice system provides safeguards
of fair trial and innocent till proven guilty to an accused,
there it also contemplates that a criminal trial is meant for
doing justice to all, the accused, the society and a fair
chance to prove to the prosecution. Then alone can law and
order be maintained. The courts do not merely discharge the
function to ensure that no innocent man is punished, but
also that a guilty man does not escape. Both are public
duties of the Judge. During the course of the trial, the
learned Presiding Judge is expected to work objectively and
in a correct perspective. Where the prosecution attempts to
misdirect the trial on the basis of a perfunctory or
designedly defective investigation, there the Court is to be
deeply cautious and ensure that despite such an attempt, the
determinative process is not subverted. For truly attaining
this object of a "fair trial", the Court should leave no stone
unturned to do justice and protect the interest of the society
as well.
46. Thus, it is clear that the Court can make overall assessment to
reach to a conclusion and is not bound by the evidence by
prosecution. This Court has already held that in the Lash
Panchnama, Ex. P.2, the witnesses have specifically stated that the
fingers of the deceased Babulal are stained with blood and an injury
in between the thumb and finger is visible. Further, Babulal was sent
by the Police Station to Sironj Hospital for medical examination, and
in the requisition for medical examination, Ex. P.24, it is mentioned
that the injured claims to have sustained injury in the middle of
thumb and finger. Thus, it is clear that either Dr. Vivek Agrawal
(P.W.4) had conducted the post-mortem, Ex. P. 5 in a most causal
manner or he has suppressed some thing.
31
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
47. Whatever it may be. This Court cannot ignore the description
of injury in the Lash Panchnama, Ex. P.2 as well as in the requisition
for medical examination, Ex. P.24. Both the documents were
prepared either by the police personell or by the investigating officer
and the Panchas. Thus, it is clear that non-mentioning of injury in
the post-mortem report, Ex. P.5 by Dr. Vivek Agrawal (P.W. 4) would
not give any dent to the prosecution story and the case of the
prosecution that Babulal was beaten in the earlier part of the day, is
held to be reliable.
48. It is next contended by the Counsel for the appellants that as
per the prosecution case, the Appellant Atmaram had caused injury to
the deceased Babulal on his abdominal region, whereas no injury in
the abdominal region was found.
49. Considered the submissions made by the Counsel for the
appellants.
50. The injury no. 2 sustained by the deceased Babulal is as under :
Incised wound 4 inch x 1 inch x bone deep, obliquely
placed about 3 inch below right nipple running downward
and laterally towards midline.
51. Thus, it is clear that the injury was placed 3 inches below right
nipple running downward and laterally towards midline. The length
of the injury was 4 inches x 1 inch x bone deep. Thus, it is clear that
the injury no. 2 was situated near the abdominal region of the
deceased and thus, it cannot be said that the evidence of the witnesses
32
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
with regard to injury caused by Atmaram was not corroborated by the
medical evidence. Even otherwise, the law is settled that unless and
until, the medical evidence completely rules out the ocular evidence,
preference has to be given to the ocular evidence.
52. The Supreme Court in the case of Palani v. State of T.N.,
reported in (2020) 16 SCC 401 has held as under :
15. As per the alleged variance between the medical
and ocular evidence concerned, it is well settled that
oral evidence has to get primacy and the medical
evidence is basically opinionative and that the medical
evidence states that the injury could have been caused
in the manner alleged and nothing more. The testimony
of the eyewitness cannot be thrown out on the ground
of inconsistency. In State of Haryana v. Bhagirath, it
was held as under:
"15. The opinion given by a medical witness need not
be the last word on the subject. Such an opinion shall
be tested by the court. If the opinion is bereft of logic
or objectivity, the court is not obliged to go by that
opinion. After all opinion is what is formed in the mind
of a person regarding a fact situation."
When the opinion given is not inconsistent with the
probability of the case, the court cannot discard the
credible direct evidence otherwise the administration
of justice is to depend on the opinionative evidence of
medical expert. The medical jurisprudence is not an
exact science with precision; but merely opinionative.
In the case in hand, the contradictions pointed out
between the oral and medical evidence are not so grave
in nature that can prove fatal to the prosecution case.
53. The Supreme Court in the case of State of Uttarakhand v.
Darshan Singh, reported in (2020) 12 SCC 605 has held as under :
43. In Abdul Sayeed v. State of M.P., this Court
discussed elaborately the case law on the subject of
conflict between medical evidence and ocular
evidence: (SCC pp. 272-74, paras 32-39)
33
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
"Medical evidence versus ocular evidence
32. In Ram Narain Singh v. State of Punjab this Court
held that where the evidence of the witnesses for the
prosecution is totally inconsistent with the medical
evidence or the evidence of the ballistics expert, it
amounts to a fundamental defect in the prosecution
case and unless reasonably explained it is sufficient to
discredit the entire case.
33. In State of Haryana v. Bhagirath it was held as
follows: (SCC p. 101, para 15)
'15. The opinion given by a medical witness need not
be the last word on the subject. Such an opinion shall
be tested by the court. If the opinion is bereft of logic
or objectivity, the court is not obliged to go by that
opinion. After all opinion is what is formed in the
mind of a person regarding a fact situation. If one
doctor forms one opinion and another doctor forms a
different opinion on the same facts it is open to the
Judge to adopt the view which is more objective or
probable. Similarly if the opinion given by one doctor
is not consistent with probability the court has no
liability to go by that opinion merely because it is said
by the doctor. Of course, due weight must be given to
opinions given by persons who are experts in the
particular subject.'
34. Drawing on Bhagirath case, this Court has held
that where the medical evidence is at variance with
ocular evidence, 'it has to be noted that it would be
erroneous to accord undue primacy to the hypothetical
answers of medical witnesses to exclude the
eyewitnesses' account which had to be tested
independently and not treated as the "variable"
keeping the medical evidence as the "constant".'
35. Where the eyewitnesses' account is found credible
and trustworthy, a medical opinion pointing to
alternative possibilities cannot be accepted as
conclusive. The eyewitnesses' account requires a
careful independent assessment and evaluation for its
credibility, which should not be adversely prejudged
on the basis of any other evidence, including medical
evidence, as the sole touchstone for the test of such
credibility.
'21. ... The evidence must be tested for its inherent
consistency and the inherent probability of the story;
consistency with the account of other witnesses held to
34
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
be creditworthy; consistency with the undisputed facts,
the "credit" of the witnesses; their performance in the
witness box; their power of observation, etc. Then the
probative value of such evidence becomes eligible to
be put into the scales for a cumulative evaluation.'
[Vide Thaman Kumar v. State (UT of Chandigarh) and
Krishnan v. State at SCC pp. 62-63, para 21.]
36. In Solanki Chimanbhai Ukabhai v. State of
Gujarat this Court observed: (SCC p. 180, para 13)
'13. Ordinarily, the value of medical evidence is only
corroborative. It proves that the injuries could have
been caused in the manner alleged and nothing more.
The use which the defence can make of the medical
evidence is to prove that the injuries could not
possibly have been caused in the manner alleged and
thereby discredit the eyewitnesses. Unless, however,
the medical evidence in its turn goes so far that it
completely rules out all possibilities whatsoever of
injuries taking place in the manner alleged by
eyewitnesses, the testimony of the eyewitnesses cannot
be thrown out on the ground of alleged inconsistency
between it and the medical evidence.'
37. A similar view has been taken in Mani Ram v.
State of U.P., Khambam Raja Reddy v. Public
Prosecutor and State of U.P. v. Dinesh.
38. In State of U.P. v. Hari Chand this Court reiterated
the aforementioned position of law and stated that:
(SCC p. 545, para 13)
'13. ... In any event unless the oral evidence is totally
irreconcilable with the medical evidence, it has
primacy.'
39. Thus, the position of law in cases where there is a
contradiction between medical evidence and ocular
evidence can be crystallised to the effect that though
the ocular testimony of a witness has greater
evidentiary value vis-à-vis medical evidence, when
medical evidence makes the ocular testimony
improbable, that becomes a relevant factor in the
process of the evaluation of evidence. However, where
the medical evidence goes so far that it completely
rules out all possibility of the ocular evidence being
true, the ocular evidence may be disbelieved."
(emphasis in original)
35
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
54. The Supreme Court in the case of CBI v. Mohd. Parvez
Abdul Kayuum, reported in (2019) 12 SCC 1 has held as under :
64. In Ram Narain Singh the Court observed that the
prosecution has to prove that injury was caused by the
weapon in the manner as alleged. There is no dispute with
the aforesaid proposition. However, the applicability of
ratio has to be seen in the facts and circumstances of each
case. In the instant case, the ocular evidence of PW 55 is
not discredited by the medical evidence.
65. Even otherwise as submitted on behalf of the
prosecution that in case of any discrepancy between the
ocular or medical evidence, the ocular evidence shall
prevail, as observed in Yogesh Singh v. Mahabeer Singh:
(SCC pp. 217-18, para 43)
"43. The learned counsel appearing for the
respondents has then tried to create a dent in the
prosecution story by pointing out inconsistencies
between the ocular evidence and the medical
evidence. However, we are not persuaded with this
submission since both the courts below have
categorically ruled that the medical evidence was
consistent with the ocular evidence and we can safely
say that to that extent, it corroborated the direct
evidence proffered by the eyewitnesses. We hold that
there is no material discrepancy in the medical and
ocular evidence and there is no reason to interfere
with the judgments of the courts below on this ground.
In any event, it has been consistently held by this
Court that the evidentiary value of medical evidence is
only corroborative and not conclusive and, hence, in
case of a conflict between oral evidence and medical
evidence, the former is to be preferred unless the
medical evidence completely rules out the oral
evidence. [See Solanki Chimanbhai Ukabhai v. State
of Gujarat, Mani Ram v. State of Rajasthan, State of
U.P. v. Krishna Gopal, State of Haryana v. Bhagirath,
Dhirajbhai Gorakhbhai Nayak v. State of Gujarat,
Thaman Kumar v. State (UT of Chandigarh),
Krishnan v. State, Khambam Raja Reddy v. Public
Prosecutor, State of U.P. v. Dinesh, State of U.P. v.
Hari Chand, Abdul Sayeed v. State of M.P. and Bhajan
Singh v. State of Haryana.]"
36
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
66. The ocular evidence to prevail has also been observed in
Sunil Kundu v. State of Jharkhand thus: (SCC p. 432, para
24)
"24. In Kapildeo Mandal v. State of Bihar, all the
eyewitnesses had categorically stated that the deceased
was injured by the use of firearm, whereas the medical
evidence specifically indicated that no firearm injury
was found on the deceased. This Court held that while
appreciating variance between medical evidence and
ocular evidence, oral evidence of eyewitnesses has to
get priority as medical evidence is basically
opinionative. But, when the evidence of the
eyewitnesses is totally inconsistent with the evidence
given by the medical experts then evidence is
appreciated in a different perspective by the courts. It
was observed that when medical evidence specifically
rules out the injury claimed to have been inflicted as
per the eyewitnesses' version, then the court can draw
adverse inference that the prosecution version is not
trustworthy. This judgment is clearly attracted to the
present case."
(emphasis supplied)
67. Similarly, in Bastiram v. State of Rajasthan, it was
observed: (SCC pp. 407 & 408, paras 33 & 36)
"33. The question before us, therefore, is whether the "medical
evidence" should be believed or whether the testimony of the
eyewitnesses should be preferred? There is no doubt that
ocular evidence should be accepted unless it is completely
negated by the medical evidence. This principle has more
recently been accepted in Gangabhavani v. Rayapati Venkat
Reddy.
* * *
36. Similarly, a fact stated by a doctor in a post-
mortem report could be rejected by a court relying on
eyewitness testimony, though this would be quite
infrequent. In Dayal Singh v. State of Uttaranchal, the
post-mortem report and the oral testimony of the
doctor who conducted that examination was that no
internal or external injuries were found on the body of
the deceased. This Court rejected the "medical
evidence" and upheld the view of the trial court (and
the High Court) that the testimony of the eyewitnesses
supported by other evidence would prevail over the
post-mortem report and testimony of the doctor. It was
held: (SCC p. 286, para 41)
37
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
'41. ... [T]he trial court has rightly ignored the
deliberate lapses of the investigating officer as well as
the post-mortem report prepared by Dr C.N. Tewari.
The consistent statement of the eyewitnesses which
were fully supported and corroborated by other
witnesses, and the investigation of the crime,
including recovery of lathis, inquest report, recovery
of the pagri of one of the accused from the place of
occurrence, immediate lodging of FIR and the
deceased succumbing to his injuries within a very
short time, establish the case of the prosecution
beyond reasonable doubt. These lapses on the part of
PW 3 [doctor] and PW 6 [investigating officer] are a
deliberate attempt on their part to prepare reports and
documents in a designedly defective manner which
would have prejudiced the case of the prosecution and
resulted in the acquittal of the accused, but for the
correct approach of the trial court to do justice and
ensure that the guilty did not go scot-free. The
evidence of the eyewitness which was reliable and
worthy of credence has justifiably been relied upon by
the court.'"
(emphasis supplied)
55. The Supreme Court in the case of Yogesh Singh v. Mahabeer
Singh, reported in (2017) 11 SCC 195 has held as under :
43. The learned counsel appearing for the respondents has
then tried to create a dent in the prosecution story by
pointing out inconsistencies between the ocular evidence
and the medical evidence. However, we are not persuaded
with this submission since both the courts below have
categorically ruled that the medical evidence was consistent
with the ocular evidence and we can safely say that to that
extent, it corroborated the direct evidence proffered by the
eyewitnesses. We hold that there is no material discrepancy
in the medical and ocular evidence and there is no reason to
interfere with the judgments of the courts below on this
ground. In any event, it has been consistently held by this
Court that the evidentiary value of medical evidence is only
corroborative and not conclusive and, hence, in case of a
conflict between oral evidence and medical evidence, the
former is to be preferred unless the medical evidence
completely rules out the oral evidence. [See Solanki
Chimanbhai Ukabhai v. State of Gujarat, Mani Ram v.
38
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
State of Rajasthan, State of U.P. v. Krishna Gopal, State of
Haryana v. Bhagirath, Dhirajbhai Gorakhbhai Nayak v.
State of Gujarat, Thaman Kumar v. State (UT of
Chandigarh), Krishnan v. State, Khambam Raja Reddy v.
Public Prosecutor, State of U.P. v. Dinesh, State of U.P. v.
Hari Chand, Abdul Sayeed v. State of M.P. and Bhajan
Singh v. State of Haryana.]
56. The Medical Evidence is merely a corroborative piece of
evidence whereas the eye-witnesses are eyes and ears of the Court. In
the present case, an injury was found near the abdominal region of
the deceased starting from 3 cms below right nipple and going
downwards and the length of the injury was 4 cm. Thus, it is held
that the evidence of the prosecution witnesses is corroborated by
medical evidence and their testimony cannot be rejected on the
ground of variance in medical evidence.
57. It is next contended by the Counsel for the appellants that
according to the witnesses, Mahesh had caused an injury on the neck
of Babulal and Rambabu assaulted below the left ear of Babulal, but
only one injury was found on the neck of the deceased Babulal
therefore, the ocular evidence is ruled out by the medical evidence. It
is further submitted that Dr. Vivek Agrawal (P.W.4) has stated that
injury on the neck was not result of two assaults.
58. Considered the submissions made by the Counsel for the
appellants.
59. The injury no. 1 which was found on the left side of the neck
reads as under :
39
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
Incised wound 3 inch x 1inch x muscle deep, horizontally
placed left side lower neck started from lateral border of
sternocleidomastoid muscle horizontally back to nape of
neck
60. The allegations against Mahesh are that he assaulted by knife
on the neck and Rambabu assaulted by sword below the left side of
neck of Babulal. The sternocleidomastoid muscle originates from
two locations: the manubrium of the sternum and the clavicle. It
travels obliquely across the side of the neck and inserts at the mastoid
process of the temporal bone of the skull by a thin aponeurosis. The
sternocleidomastoid is thick and narrow at its centre, and broader and
thinner at either end. Thus, sternocleidomastoid muscle is connected
with sternum and clavicle. One end of sternocleidomastoid muscle is
below the ear and another end is at sternum after passing through the
neck. Thus, not only an injury below the left ear of the deceased
Babulal was found but it was also found on the neck of the deceased
Babulal. This Court is not bound by the opinion expressed by the
Doctor. This Court is required to consider as to whether the medical
evidence is such which completely rules out the ocular evidence or
not? As already pointed out, according to the prosecution case, two
persons caused injuries on the neck and the corresponding injury was
found on the body of the deceased. Merely because Dr. Vivek
Agrawal (P.W. 4) has stated that injury no. 1was caused by single
assault, would not be sufficient to discard the direct evidence
specifically when this Court has already come to a conclusion that
40
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
Dr. Vivek Agrawal (P.W.4) was atleast negligent in conducting Post-
mortem.
61. The allegation against Kailash is that he had caused injury on
the back of Babulal and corresponding injury was found. Thus, it is
held that there is no variation in the ocular and medical evidence.
Role of Atmaram, Kailash, Rambabu, and Mahesh
62. In Dehati Nalishi, Ex. P.1, it is alleged that Atmaram assaulted
by knife on the abdomen of the deceased Babulal and the remaining
accused persons assaulted the deceased and caused injuries which
were dangerous to life. It is true, that no overtact was assigned to
appellants Kailash, Rambabu, and Mahesh, but Datar Singh (P.W.1)
in his evidence has explained that since, he was very much
frightened, therefore, he did not narrate all the overt acts of the
appellants in detail.
63. The explanation given by Datar Singh (P.W.1) appears to be
plausible. If some one is killed in the presence of a witness, then it
cannot be said that all the persons would react in an uniform manner.
Few witnesses would certainly get frightened. Further more, it is
well established principle of law that FIR is not an encyclopedia.
The Supreme Court in the case of Ravi Kumar v. State of Punjab,
reported in (2005) 9 SCC 315 has held as under :
15......It has been held time and again that the FIR is not a
substantive piece of evidence and can only be used to
corroborate the statement of the maker under Section 161
of the Evidence Act, 1872 (in short "the Evidence Act") or
41
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
to contradict him under Section 145 of that Act. It can
neither be used as evidence against the maker at the trial if
he himself becomes an accused nor to corroborate or
contradict other witnesses. It is not the requirement of law
that the minute details be recorded in the FIR lodged
immediately after the occurrence. The fact of the state of
mental agony of the person making the FIR who generally
is the victim himself, if not dead, or the relations or
associates of the deceased victim apparently under the
shock of the occurrence reported has always to be kept in
mind. The object of insisting upon lodging of the FIR is to
obtain the earliest information regarding the circumstance
in which the crime was committed.
(Underline supplied)
64. Since the mental agony of complainant is an important aspect
which is also to be kept in mind while appreciating the FIR,
therefore, the explanation given by Datar Singh (P.W.1) that he was
very much frightened, cannot be said to be unrealistic.
65. Further, according to the prosecution, Atmaram had also
sustained injuries in the incident, which took place in the earlier part
of the day, therefore, he was sent to Sironj Hospital for medical
examination. The deceased Babulal and witnesses were also going to
Sironj Hospital for medical examination. The appellants have relied
upon the M.L.C. of Atmaram, Ex. D.13C according to which a
lacerated wound was found on the occipital region and the M.L.C.
was done at 3:10 P.M., whereas the incident in question took place at
17:00. Thus, it is clear that Atmaram, Mahesh, Rambabu, and Kailash
must be returning back from Sironj Hospital, and when they saw that
Babulal and others are going towards Sironj, then they attacked
42
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
Babulal. Thus, the presence of Appellants Atmaram, Mahesh,
Rambabu and Kailash on the place of incident is also possible.
Whether buses were plying on the date of incident.
66. It is the prosecution case, that buses were not plying because
of Mandi Elections, therefore, the deceased Babulal and other
witnesses were going on their motor cycles. However, it is
contended by the Counsel for the Appellants that they have examined
Ashok Dubey (D.W.2) to prove that buses were plying and the case
of the prosecution that only because of non-availability of public
conveyance, they were going on their motor cycles is false.
67. Considered the submissions made by the Counsel for the
appellants.
68. Ashok Dubey (D.W.2) claims himself to be Supervisor of
Tirupati Travels. He has stated that three buses of Tirputai Travels
operate on Bamori Shala to Sironj. The Third bus reaches
Deepnakheda at 4 P.M. and on 13-6-2005, the buses were operational
and in support of his contention, he has proved conductor sheet of all
the three buses, which were marked as Ex. D 13 C and the original
conductor sheets are Ex. D.13.
69. In cross-examination, this witness admitted that the conductor
Sheets were prepared by the Conductor and he has obtained the
conductor sheet from the owner of the Tirupati Travels. He further
stated that after checking the passengers, he returns the conductor
43
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
sheet to the conductor. Thus, it is clear that the conductor sheets, Ex.
D.13C were not prepared by him. The conductor who had prepared
those sheets, Ex. D.13C has not been examined. He has admitted that
the Conductors Pran Singh, Khemchandra and Rakesh are still alive
and they are still working with them, but even then, they were not
examined. Even the owner of the Tirupati Travels has not been
examined. Thus, it is held that the Appellants have failed to prove
that buses were plying on the date of incident.
Enmity
70. It is submitted by the Counsel for the Appellants that since, on
the report of Atmaram, Datar Singh (P.W.1) and Mukesh (P.W.3) were
prosecuted under Section 3/7 of Essential Commodities Act, and they
had also remained in jail for 2 months and Datar Singh (P.W.1) was
removed from the post of Sarpanch, whereas Mukesh (P.W.3) was
also removed from the post of Secretary, Gram Panchayat, therefore,
they have falsely implicated the Appellant Atmaram.
71. Considered the submissions made by the Counsel for the
Appellants.
72. Enmity is a double edged weapon. If enmity provides a reason
to falsely implicate a person, then it also provides a motive for
committing offence. The Supreme Court in the case of Kunwarpal
v. State of Uttarakhand, reported in (2014) 16 SCC 560 has held as
under :
44
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
16. According to the complainant there was litigation
between them and the accused persons leading to enmity.
PW 3 Atmaram has also stated that there was litigation
between them and it culminated in the occurrence.
Animosity is a double-edged sword. While it can be a basis
for false implication, it can also be a basis for the crime
(Ruli Ram v. State of Haryana and State of Punjab v. Sucha
Singh). In the instant case there is no foundation established
for the plea of false implication advanced by the accused
and on the other hand evidence shows that enmity has led to
the occurrence.
73. Admittedly, animosity was going on between the parties. Even
in the earlier part of the day, Atmaram was beaten and similarly,
Babulal was also beaten. Both the parties had lodged FIRs against
each other. Therefore, this Court is of the considered opinion, that the
incident took place only because of animosity between the parties,
and in view of specific allegations against Atmaram, it cannot be held
that the Appellant Atmaram, was falsely implicated.
Whether Rambabu has proved his plea of alibi ?
74. The appellants have examined Rajkumar Goud (D.W.5). He
has stated that he and the Appellant Rambabu are real brothers.
Badriprasad who is family member of Babulal had expired and an
invitation of 13th day ceremony was received.
75. However, this witness has not stated that Rambabu had
attended the said 13th day ceremony. In cross-examination, he further
admitted that condolence messages are never kept and after the
written invitation is received, then either it is torn or a corner of the
said invitation is torn. He admitted that the corner of the written
45
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
invitation, Ex. D6 is not torn. He also could not clarify the reasons
for preserving the written condolences invitation.
76. In absence of any evidence that Rambabu had also attended the
13th day ceremony of Badriprasad, it is held that the Appellants have
failed to prove plea of alibi of the Appellant Rambabu.
Role of Halkai
77. According to the prosecution witnesses, the Appellant Halkai
gave a lathi blow on the head of deceased Babulal. No injury on
head was found. Although, this Court has already come to a
conclusion that Dr. Vivek Agrawal (P.W.4) was negligent in
performing post-mortem, but the question for determination is that
whether Dr. Vivek Agrawal (P.W. 4) had committed a mistake in not
noticing the injury on the head of Babulal or Halkai has been falsely
implicated.
78. The name of Halkai is not mentioned in the FIR. It is true that
FIR is not an encyclopedia and each and every minute detail is not
expected, but where only 5 accused persons (including Halkai) had
assaulted the deceased Babulal by weapons, then non-mention of
name of Halkai in the FIR assumes importance. The incident had
taken place on 13-6-2005 and the statements of the witnesses were
recorded on 14-6-2005 i.e., on the next day. The witnesses had ample
opportunity to over implicate some other persons also. Further vide
seizure memo Ex. P.16, a lathi was seized from Halkai on 7-7-2005,
46
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
however, in the seizure memo, it is not mentioned that any blood
stains were there on the lathi or not? As per F.S.L. report, blood was
found on the lathi but it was not sufficient for serum Examination.
Thus, there is nothing on record to suggest that the blood found on
the lathi seized from Halkai was having Human blood or not?
Therefore, when the name of Halkai was not mentioned in the FIR,
and his name figured for the first time on 14-6-2005 (i.e., on the next
day) and the allegations of assault by Halkai by lathi on the head of
deceased is also not corroborated by Medical evidence, this Court is
of the considered opinion, that the prosecution has failed to prove
the involvement of Halkai in the offence.
Role of Pola @ Jainarayan, Rakesh, Batol @ Makhanlal, Pappu
@ Sitaram, Sanjeev, Rajesh and Dinesh
79. All the witnesses have stated that these Appellants had
assaulted the deceased by fists and blows. The witnesses have also
stated that these Appellants were bare handed. Thus, the question is
that whether the above mentioned Appellants were the members of
Unlawful Assembly with Common Object or not?
80. Before considering the aforesaid aspect of the matter, this
Court would like to consider the law governing the field.
81. The Supreme Court in the case of Sukhbir Singh Vs. State of
Haryana reported in (2002) 3 SCC 327 has held as under :
12. ........An accused is vicariously guilty of the offence
committed by other accused persons only if he is proved to
47
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
be a member of an unlawful assembly sharing its common
object. There is no dispute to the legal provision that once
the existence of common object of unlawful assembly is
proved, each member of such an assembly shall be liable
for the main offence notwithstanding his actual
participation in the commission of the offence. It is not
necessary that each of the accused, forming the unlawful
assembly, must have committed the offence with his own
hands.
13. Unlawful assembly has been defined under Section 141
of the Penal Code, 1860 as under:
"141. Unlawful assembly.--An assembly of five or
more persons is designated an 'unlawful assembly', if
the common object of the persons composing that
assembly is--
First.--To overawe by criminal force, or show of
criminal force, the Central or any State Government or
Parliament or the Legislature of any State, or any
public servant in the exercise of the lawful power of
such public servant; or
Second.--To resist the execution of any law, or of any
legal process; or
Third.--To commit any mischief or criminal trespass,
or other offence; or
Fourth.--By means of criminal force, or show of
criminal force, to any person to take or obtain
possession of any property, or to deprive any person of
the enjoyment of a right of way, or of the use of water
or other incorporeal right of which he is in possession
or enjoyment, or to enforce any right or supposed
right; or
Fifth.--By means of criminal force, or show of
criminal force, to compel any person to do what he is
not legally bound to do, or to omit to do what he is
legally entitled to do.
Explanation.--An assembly which was not unlawful
when it assembled, may subsequently become an
unlawful assembly."
14. The prosecution in the instant case could not
specifically refer to any of the objects for which the accused
are alleged to have formed the assembly. It appears, from
the circumstances of the case, that after altercation over the
splashing of mud on his person and receiving two slaps on
his face from the complainant party, Sukhbir Singh declared
48
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
to teach the complainant party, a lesson and went home.
Immediately thereafter he along with others came on the
spot and as held by the High Court wanted to remove the
obstructions caused in the flow of water. As the common
object of the assembly is not discernible, it can, at the most,
be held that Sukhbir Singh intended to cause the fatal blow
to the deceased and the other accused accompanied him for
the purpose of removing the obstruction or at the most for
teaching a lesson to Lachhman and others. At no point of
time any of the accused persons threatened or otherwise
reflected their intention to commit the murder of the
deceased. Merely because the other accused persons were
accompanying him when the fatal blows were caused by
Sukhbir Singh to the deceased, cannot prove the existence
of the common object specifically in the absence of any
evidence of the prosecution in that behalf. The members of
the unlawful assembly can be held liable under Section 149
IPC if it is shown that they knew before hand that the
offence actually committed was likely to be committed in
prosecution of the common object. It is true that the
common object does not require prior concert and a
common meeting of mind before the attack. It can develop
even on spot but the sharing of such an object by all the
accused must be shown to be in existence at any time before
the actual occurrence.
(Underline supplied)
82. The Supreme Court in the case of Manjit Singh Vs. State of
Punjab reported in (2019) 8 SCC 529 has held as under :
14.3. We may also take note of the principles enunciated
and explained by this Court as regards the ingredients of an
unlawful assembly and the vicarious/constructive liability
of every member of such an assembly. In Sikandar Singh,
this Court observed as under: (SCC pp. 483-85, paras 15 &
17-18)
"15. The provision has essentially two ingredients viz.
(i) the commission of an offence by any member of an
unlawful assembly, and (ii) such offence must be
committed in prosecution of the common object of the
assembly or must be such as the members of that
assembly knew to be likely to be committed in
prosecution of the common object. Once it is
established that the unlawful assembly had common
object, it is not necessary that all persons forming the
49
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
unlawful assembly must be shown to have committed
some overt act. For the purpose of incurring the
vicarious liability for the offence committed by a
member of such unlawful assembly under the
provision, the liability of other members of the
unlawful assembly for the offence committed during
the continuance of the occurrence, rests upon the fact
whether the other members knew beforehand that the
offence actually committed was likely to be committed
in prosecution of the common object.
* * *
17. A "common object" does not require a prior
concert and a common meeting of minds before the
attack. It is enough if each member of the unlawful
assembly has the same object in view and their number
is five or more and that they act as an assembly to
achieve that object. The "common object" of an
assembly is to be ascertained from the acts and
language of the members composing it, and from a
consideration of all the surrounding circumstances. It
may be gathered from the course of conduct adopted
by the members of the assembly. For determination of
the common object of the unlawful assembly, the
conduct of each of the members of the unlawful
assembly, before and at the time of attack and
thereafter, the motive for the crime, are some of the
relevant considerations. What the common object of
the unlawful assembly is at a particular stage of the
incident is essentially a question of fact to be
determined, keeping in view the nature of the
assembly, the arms carried by the members, and the
behaviour of the members at or near the scene of the
incident. It is not necessary under law that in all cases
of unlawful assembly, with an unlawful common
object, the same must be translated into action or be
successful.
18. In Masalti v. State of U.P. a Constitution Bench of
this Court had observed that: (AIR p. 211, para 17)
'17. ... Section 149 makes 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
50
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
that offence; and that emphatically brings out the
principle that the punishment prescribed by Section
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.'"
14.4. In Subal Ghorai, this Court, after a survey of leading
cases, summed up the principles as follows: (SCC pp. 632-
33, paras 52-53)
"52. The above judgments outline the scope of Section
149 IPC. We need to sum up the principles so as to
examine the present case in their light. Section 141
IPC defines "unlawful assembly" to be an assembly of
five or more persons. They must have common object
to commit an offence. Section 142 IPC postulates that
whoever being aware of facts which render any
assembly an unlawful one intentionally joins the same
would be a member thereof. Section 143 IPC provides
for punishment for being a member of unlawful
assembly. Section 149 IPC provides for constructive
liability of every person of an unlawful assembly if an
offence is committed by any member thereof in
prosecution of the common object of that assembly or
such of the members of that assembly who knew to be
likely to be committed in prosecution of that object.
The most important ingredient of unlawful assembly is
common object. Common object of the persons
composing that assembly is to do any act or acts stated
in clauses "First", "Second", "Third", "Fourth" and
"Fifth" of that section. Common object can be formed
on the spur of the moment. Course of conduct adopted
by the members of common assembly is a relevant
factor. At what point of time common object of
unlawful assembly was formed would depend upon the
facts and circumstances of each case. Once the case of
the person falls within the ingredients of Section 149
IPC, the question that he did nothing with his own
hands would be immaterial. If an offence is committed
by a member of the unlawful assembly in prosecution
of the common object, any member of the unlawful
assembly who was present at the time of commission
of offence and who shared the common object of that
assembly would be liable for the commission of that
offence even if no overt act was committed by him. If a
large crowd of persons armed with weapons assaults
51
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
intended victims, all may not take part in the actual
assault. If weapons carried by some members were not
used, that would not absolve them of liability for the
offence with the aid of Section 149 IPC if they shared
common object of the unlawful assembly.
53. But this concept of constructive liability must not
be so stretched as to lead to false implication of
innocent bystanders. Quite often, people gather at the
scene of offence out of curiosity. They do not share
common object of the unlawful assembly. If a general
allegation is made against large number of people, the
court has to be cautious. It must guard against the
possibility of convicting mere passive onlookers who
did not share the common object of the unlawful
assembly. Unless reasonable direct or indirect
circumstances lend assurance to the prosecution case
that they shared common object of the unlawful
assembly, they cannot be convicted with the aid of
Section 149 IPC. It must be proved in each case that
the person concerned was not only a member of the
unlawful assembly at some stage, but at all the crucial
stages and shared the common object of the assembly
at all stages. The court must have before it some
materials to form an opinion that the accused shared
common object. What the common object of the
unlawful assembly is at a particular stage has to be
determined keeping in view the course of conduct of
the members of the unlawful assembly before and at
the time of attack, their behaviour at or near the scene
of offence, the motive for the crime, the arms carried
by them and such other relevant considerations. The
criminal court has to conduct this difficult and
meticulous exercise of assessing evidence to avoid
roping innocent people in the crime. These principles
laid down by this Court do not dilute the concept of
constructive liability. They embody a rule of caution."
14.5. We need not expand on the other cited decisions
because the basic principles remain that the important
ingredients of an unlawful assembly are the number of
persons forming it i.e. five; and their common object.
Common object of the persons composing that assembly
could be formed on the spur of the moment and does not
require prior deliberations. The course of conduct adopted
by the members of such assembly; their behaviour before,
during, and after the incident; and the arms carried by them
52
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
are a few basic and relevant factors to determine the
common object.
14.6. The facts of the present case, as established by the
prosecution, make it clear that on the relevant date i.e. 3-3-
2001 and at the relevant time i.e. 11.15 a.m., at least five of
the accused persons, including the present appellants were
present at the Barnala Court Complex. The members of the
complainant party purportedly came to the very same court
complex to attend the hearing of the aforesaid rape and
murder case of the village girl in which, their kith and
relatives were the accused persons and the case was being
pursued by the appellant Manjit Singh. It is also established
that when the persons related with the complainant party
were about to board their vehicle, the accused persons
attacked them with weapons. Significantly, the attack on the
complainant party was triggered with exhortation by the
appellant Manjit Singh to avenge the rape and murder of the
village girl in the expressions "aj eh bach ke naa jaan KK*
da badla lai kay rahenge". This clearly brings out the
motive for the attack as also the object of the assembly.
Moreover, the blows hurled by the accused persons on the
members of the complainant party had been of wide range,
sufficient force and chosen aims. The appellant Manjit
Singh himself had given two blows to the witness PW 5 on
either of his hands. Labh Singh gave kirpan-blow on the
head of Beant Singh. The appellant Sukhwinder Singh
aimed the first blow on Dalip Singh but hit the right hand of
the victim. The appellant Sukhvinder Singh caused yet
another injury to PW 6 Gurnam Singh by the handle of his
kirpan. These were apart from the repeated blows by the
accused Bakhtaur Singh on the head of the deceased Dalip
Singh with his ghop and then three blows to PW 6 Gurnam
Singh. That apart, Bakhtaur Singh also gave the blow of his
kirpan on the left leg of Gurnam Singh. It is beyond the pale
of doubt that the accused persons had acted in concert and
the object had clearly been to ensure casualties amongst the
members of the complainant party. On the applicable
principles, we have no hesitation in concluding that the
accused persons did constitute an unlawful assembly; did
indulge in rioting in the Court Complex with deadly
weapons; and did cause grievous bodily injuries to members
of the complainant party. The deceased Dalip Singh was
attacked rather repeatedly by the members of this unlawful
assembly and he sustained grievous injury on the head that
proved fatal. The background aspects as also the conduct of
53
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
the accused persons at and during the incident leaves
nothing to doubt that each of the member of this assembly
remains liable for the offence committed by himself as also
by every other member of the assembly.
83. The Supreme Court in the case of Bhagwan Jagannath
Markad v. State of Maharashtra, reported in (2016) 10 SCC 537
has held as under :
20. Exaggerated to the rule of benefit of doubt can result in
miscarriage of justice. Letting the guilty escape is not doing
justice. A Judge presides over the trial not only to ensure
that no innocent is punished but also to see that guilty does
not escape.
21. An offence committed in prosecution of common object
of an unlawful assembly by one person renders members of
unlawful assembly sharing the common object vicariously
liable for the offence. The common object has to be
ascertained from the acts and language of the members of
the assembly and all the surrounding circumstances. It can
be gathered from the course of conduct of the members. It
is to be assessed keeping in view the nature of the assembly,
arms carried by the members and the behaviour of the
members at or near the scene of incident. Sharing of
common object is a mental attitude which is to be gathered
from the act of a person and result thereof. No hard-and-fast
rule can be laid down as to when common object can be
inferred. When a crowd of assailants are members of an
unlawful assembly, it may not be possible for witnesses to
accurately describe the part played by each one of the
assailants. It may not be necessary that all members take
part in the actual assault. In Gangadhar Behera, this Court
observed: (SCC pp. 398-99, para 25)
"25. The other plea that definite roles have not been
ascribed to the accused and therefore Section 149 is
not applicable, is untenable. A four-Judge Bench of
this Court in Masalti case observed as follows: (AIR
p. 210, para 15)
'15. Then it is urged that the evidence given by the
witnesses conforms to the same uniform pattern and
since no specific part is assigned to all the assailants,
that evidence should not have been accepted. This
criticism again is not well founded. Where a crowd of
54
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
assailants who are members of an unlawful assembly
proceeds to commit an offence of murder in pursuance
of the common object of the unlawful assembly, it is
often not possible for witnesses to describe accurately
the part played by each one of the assailants. Besides,
if a large crowd of persons armed with weapons
assaults the intended victims, it may not be necessary
that all of them have to take part in the actual assault.
In the present case, for instance, several weapons were
carried by different members of the unlawful
assembly, but it appears that the guns were used and
that was enough to kill 5 persons. In such a case, it
would be unreasonable to contend that because the
other weapons carried by the members of the unlawful
assembly were not used, the story in regard to the said
weapons itself should be rejected. Appreciation of
evidence in such a complex case is no doubt a difficult
task; but criminal courts have to do their best in
dealing with such cases and it is their duty to sift the
evidence carefully and decide which part of it is true
and which is not.'"
84. The Supreme Court in the case of Dev Karan v. State of
Haryana, reported in (2019) 8 SCC 596 has held as under :
11. The learned counsel took us through the provisions of
Chapter VIII of IPC, dealing with "Offences against the
Public Tranquility". It was his submission that the
provisions have to be read holistically, and in sequence.
Thus, Section 141 IPC defines an "unlawful assembly" as
an assembly of five or more persons with a common object.
Such common objects are specified in the section, and what
would be applicable, in this case, would be the third aspect
i.e. "to commit any mischief or criminal trespass, or other
offence". Section 142 IPC provides that a person who,
being aware of facts which render any assembly an
unlawful assembly, intentionally joins that assembly, or
continues in it, is said to be a member of an unlawful
assembly, while Section 143 IPC provides the punishment
for being part of such an unlawful assembly. Section 144
IPC deals with joining an unlawful assembly, armed with
deadly weapon, which is likely to cause death; Section 146
IPC deals with rioting; Section 147 IPC deals with
punishment for rioting while Section 148 IPC deals with
rioting, armed with deadly weapon. Section 149 IPC reads
55
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
as under:
"149. Every member of unlawful assembly guilty of
offence committed in prosecution of common object.
--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."
12. It was, thus, the submission advanced that unless there
is infliction of punishment under Section 143 IPC, as a
sequitur to forming an unlawful assembly under Section
141 IPC, there could be no cause to apply Section 149 IPC.
13. The learned counsel referred to the judgment in
Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel
to elucidate his submission. The concept of vicarious
liability, as a result of which a large number of accused
constituting an unlawful assembly can be held guilty, has
been discussed, to hold that it is not necessary that each of
the accused inflict fatal injury or any injury at all; the mere
presence of an accused in such an assembly is sufficient to
render him vicariously liable under Section 149 IPC, for
causing the death of the victim of the attack, provided that
the accused are told that they are to face the charge,
rendering them so vicariously liable. The principle of this
vicarious liability, under Section 149 IPC has been set out
in para 28 of the judgment and reads as under: (SCC p. 755)
"28. Section 149 propounds a vicarious liability
[Shambhu Nath Singh v. State of Bihar] in two
contingencies by declaring that (i) if a member of an
unlawful assembly commits an offence in prosecution
of the common object of that assembly, then every
member of such unlawful assembly is guilty of the
offence committed by the other members of the
unlawful assembly, and (ii) even in cases where all the
members of the unlawful assembly do not share the
same common object to commit a particular offence, if
they had the knowledge of the fact that some of the
other members of the assembly are likely to commit
that particular offence in prosecution of the common
object."
(emphasis in original)
14. The concept of unlawful assembly under Section 149
IPC was, thus, as per para 31, opined to have two elements:
56
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
(Vinubhai Ranchhodbhai Patel case, SCC p. 756)
"(i) The assembly should consist of at least five
persons; and
(ii) They should have a common object to commit an
offence or achieve any one of the objects enumerated
therein."
15. In that context, in paras 32 and 33, it has been observed
as under: (Vinubhai Ranchhodbhai Patel case, SCC p. 756)
"32. For recording a conclusion, that a person is (i) guilty of
any one of the offences under Sections 143, 146 or 148 or
(ii) vicariously liable under Section 149 for some other
offence, it must first be proved that such person is a
member of an "unlawful assembly" consisting of not less
than five persons irrespective of the fact whether the
identity of each one of the 5 persons is proved or not. If that
fact is proved, the next step of inquiry is whether the
common object of the unlawful assembly is one of the 5
enumerated objects specified under Section 141 IPC.
33. The common object of assembly is normally to be
gathered from the circumstances of each case such as
the time and place of the gathering of the assembly,
the conduct of the gathering as distinguished from the
conduct of the individual members are indicative of
the common object of the gathering. Assessing the
common object of an assembly only on the basis of the
overt acts committed by such individual members of
the assembly, in our opinion is impermissible. For
example, if more than five people gather together and
attack another person with deadly weapons eventually
resulting in the death of the victim, it is wrong to
conclude that one or some of the members of such
assembly did not share the common object with those
who had inflicted the fatal injuries (as proved by
medical evidence); merely on the ground that the
injuries inflicted by such members are relatively less
serious and non-fatal."
(emphasis in original)
85. The Supreme Court in the case of Vinubhai Ranchhodbhai
Patel v. Rajivbhai Dudabhai Patel, reported in (2018) 7 SCC 743
has held as under :
57
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
15. It was held by a three-Judge Bench of this Court in
Shambhu Nath Singh v. State of Bihar: (AIR p. 727, para 6)
"6. Section 149 of the Penal Code is declaratory of the
vicarious liability of the members of an unlawful
assembly for acts done in prosecution of the common
object of that assembly or for such offences as the
members of the unlawful assembly knew to be likely
to be committed in prosecution of that object."
(emphasis supplied)
However, there are Benches of a lesser smaller
strength which have observed that Section 149 creates
a specific and distinct offence. In view of the fact that
decision in Shambhu Nath Singh was decided by a
larger Bench, the law declared therein must be taken to
be declaring the correct legal position. With utmost
respect, we may also add that the same is in accord
with the settled principles of the interpretation of the
statutes having regard to the language of Section 149
and its context.
* * * *
20. In cases where a large number of accused constituting
an "unlawful assembly" are alleged to have attacked and
killed one or more persons, it is not necessary that each of
the accused should inflict fatal injuries or any injury at all.
Invocation of Section 149 is essential in such cases for
punishing the members of such unlawful assemblies on the
ground of vicarious liability even though they are not
accused of having inflicted fatal injuries in appropriate
cases if the evidence on record justifies. The mere presence
of an accused in such an "unlawful assembly" is sufficient
to render him vicariously liable under Section 149 IPC for
causing the death of the victim of the attack provided that
the accused are told that they have to face a charge
rendering them vicariously liable under Section 149 IPC for
the offence punishable under Section 302 IPC. Failure to
appropriately invoke and apply Section 149 enables large
number of offenders to get away with the crime.
* * *
33. The common object of assembly is normally to be
gathered from the circumstances of each case such as the
time and place of the gathering of the assembly, the conduct
of the gathering as distinguished from the conduct of the
individual members are indicative of the common object of
58
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
the gathering. Assessing the common object of an assembly
only on the basis of the overt acts committed by such
individual members of the assembly, in our opinion is
impermissible. For example, if more than five people gather
together and attack another person with deadly weapons
eventually resulting in the death of the victim, it is wrong to
conclude that one or some of the members of such assembly
did not share the common object with those who had
inflicted the fatal injuries (as proved by medical evidence);
merely on the ground that the injuries inflicted by such
members are relatively less serious and non-fatal.
34. For mulcting liability on the members of an unlawful
assembly under Section 149, it is not necessary that every
member of the unlawful assembly should commit the
offence in prosecution of the common object of the
assembly. Mere knowledge of the likelihood of commission
of such an offence by the members of the assembly is
sufficient. For example, if five or more members carrying
AK 47 rifles collectively attack a victim and cause his death
by gunshot injuries, the fact that one or two of the members
of the assembly did not in fact fire their weapons does not
mean that they did not have the knowledge of the fact that
the offence of murder is likely to be committed.
35. The identification of the common object essentially
requires an assessment of the state of mind of the members
of the unlawful assembly. Proof of such mental condition is
normally established by inferential logic. If a large number
of people gather at a public place at the dead of night armed
with deadly weapons like axes and firearms and attack
another person or group of persons, any member of the
attacking group would have to be a moron in intelligence if
he did not know murder would be a likely consequence.
86. Thus, it is clear that it is not necessary that each and every
member of the Unlawful Assembly must play some overt act in the
commission of offence. The essential aspect is as to whether the
Assembly was unlawful or not and whether the members of the
Unlawful Assembly have acted in furtherance of common Object or
not? In order to find out as to whether the object was unlawful or
59
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
not, the role played by an individual coupled with language used by
them, arms carried by the members and behavior of the members
prior to, during and after the incident along with surrounding
circumstances, plays an important role. Common object is in the
minds of the participants and therefore, the said mental attitude is to
be deciphered from the over all circumstances. In some case, a silent
presence may be an innocent presence, and in some case, a silent
presence may be an Unlawful Assembly with common object.
87. By referring to the judgment passed by Supreme Court in the
case of Kuldip Yadav and others Vs. State of Bihar reported in
(2011) 5 SCC 324 it is submitted that in the said case, the co-accused
persons were allegedly armed with deadly weapon and it was found
that none of them had used their weapons, then it can be held that
neither they were the members of Unlawful Assembly for committing
murder of the deceased, nor they were sharing common object.
88. Considered the submissions made by the Counsel for the
appellants.
89. The Supreme Court in the case of Kuldip Yadav (Supra) has
held as under :
39. It is not the intention of the legislature in enacting Section
149 to render every member of unlawful assembly liable to
punishment for every offence committed by one or more of its
members. In order to attract Section 149, it must be shown that
the incriminating act was done to accomplish the common
object of unlawful assembly and it must be within the
knowledge of other members as one likely to be committed in
60
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
prosecution of the common object. If the members of the
assembly knew or were aware of the likelihood of a particular
offence being committed in prosecution of the common object,
they would be liable for the same under Section 149 IPC.
90. Thus, it is clear that allegations made against members of
Unlawful Assembly are to be considered independently in order to
find out as to whether they were sharing common object or not?
91. As already held Atmaram was referred to Sironj Hospital for
medical examination, and they were returning back. Thus, it is clear
that even if the Appellants Pola @ Jainarayan, Rakesh, Batol @
Makhanlal, Pappu @ Sitaram, Sanjeev, Rajesh and Dinesh were along
with the Appellants Atmaram, Mahesh, Rambabu and Kailash, then it
cannot be said that they were the members of the Unlawful Assembly.
In fact, it cannot be said that there was any Unlawful Assembly at all.
But, an Assembly which was not Unlawful at the very inception, may
become unlawful at the later stage. The Supreme Court in the case of
Kashiram v. State of M.P., reported in (2002) 1 SCC 71 has held as
under :
30.....An assembly though lawful to begin with may in the
course of events become unlawful.....
92. Datar Singh (P.W.1) has admitted in para 9 of his cross-
examination, that the Appellants Mahesh, Batol and Pappu are the
brothers of the Appellant Atmaram, whereas Sanjeev and Dinesh are
the sons of Appellant Atmaram. The Appellants Raju and Rakesh are
the sons of Appellant Halkai. The Appellant Halkai is the cousin
61
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
brother of Atmaram. Mukesh Sharma (P.W.3) has also admitted that
all the Appellants are the family members of Atmaram. Thus, even if
the Appellants Pola @ Jainarayan, Rakesh, Batol @ Makhanlal,
Pappu @ Sitaram, Sanjeev, Rajesh and Dinesh were present on the
spot, then it was merely an innocent presence, as they were returning
back from Sironj Hospital, after getting Atmaram medically
examined.
93. The next question is that whether the Lawful Assembly became
Unlawful or not?
94. As already pointed out, the only allegations are that the
Appellants Pola @ Jainarayan, Rakesh, Batol @ Makhanlal, Pappu
@ Sitaram, Sanjeev, Rajesh and Dinesh had assaulted the deceased
Babulal by fists and blows. Dr. Vivek Agrawal (P.W.4) has stated that
in case of assault by fists and blows, the deceased may have sustained
contusions, but no contusion was found. Further more, according to
the prosecution itself, the witnesses and the deceased Babulal were
on three different motor cycles but as the dust was blowing, therefore,
the motor cycles were following each other by maintaining some
distance. It is also the case of the prosecution that when the other
witnesses who were on other two motor cycles reached on the spot,
all the Appellants ran away. Thus, it is clear that the witnesses
namely Mahesh (P.W. 6), Rajkumar (P.W.2), Mukesh (P.W.3)
Bhagirath and Suresh Kumar (P.W.5) had also reached on the spot,
62
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
within few minutes. Further, the Appellants were returning back
from Sironj Hospital. The incident took place, only when they saw
that Babulal and others are coming. Further, the prosecution has
failed to prove beyond reasonable doubt, that the Appellants Pola @
Jainarayan, Rakesh, Batol @ Makhanlal, Pappu @ Sitaram, Sanjeev,
Rajesh and Dinesh also participated in the incident by doing any
overt act. Therefore, the allegations that the Appellants Pola @
Jainarayan, Rakesh, Batol @ Makhanlal, Pappu @ Sitaram, Sanjeev,
Rajesh and Dinesh also assaulted the deceased Babulal by fists and
blows appear to be unreliable, specifically when the Appellants Pola
@ Jainarayan, Rakesh, Batol @ Makhanlal, Pappu @ Sitaram,
Sanjeev, Rajesh and Dinesh are the members of the family of
Atmaram and there presence on the spot was innocent one and was
not constituting Unlawful Assembly. Thus, it is held that the
prosecution has failed to prove that either the Appellants Pola @
Jainarayan, Rakesh, Batol @ Makhanlal, Pappu @ Sitaram, Sanjeev,
Rajesh and Dinesh where the members of Unlawful Assembly or they
acted in furtherance of any Common Object.
95. Further more, as already pointed out, the Trial Court did not
put any question to the Appellant Rakesh in his statement under
Section 313 of Cr.P.C. The only questions which were put to Rakesh
in his statement under Section 313 of Cr.P.C. were as under :
1- v-lk- 1 nkrkj flag dk dguk gS fd rqe vkjksih dks tkurk gS ,oa
63
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010)
Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010)
Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
vuqifLFkr vkjksih jkts'k dks Hkh tkurk gSA
lgh gSA
2 blh lk{kh dk dguk gS fiNys o"kZ tsB ds eghus dh ckr gS ml fnu
e.Mh pquko Fkk ,oa NBs eghus dh 13 rkjh[, Fkh
lgh gS
3- blh lk{kh dk dguk gS fd mlus oksV Mkyus ds ckn 12&1 cts ds
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clkSjh] us ekj fn;k Fkk A
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220- lk{kh vkids fo:} D;ks cksyrs gS jaft'k ds dkj.k >wBs dFku ns jgs gSA 221- D;k vkidks cpko es lk{; nsuk gSA nsuk gSA 222- vkidks dqN dguk gS eS /kVuk ds le; xzke Mksduk es [kMk eS e.Mh pquko gksus ls iksfyax M~;wVh ij lqcg 7 cts ls 'kke 7-30 cts rd jgk FkkA eq>s jaft'k ds dkj.k >wBk Qalk;k x;k gSA
96. Thus, it is clear that no explanation was sought from Rakesh under Section 313 of Cr.P.C. Thus, he is entitled for acquittal on that ground also.
97. Accordingly, it is held that the prosecution has failed to prove 64 Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010) Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010) Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010) the guilt of the Appellants Halkai, Pola @ Jainarayan, Rakesh, Batol @ Makhanlal, Pappu @ Sitaram, Sanjeev, Rajesh and Dinesh, therefore, they are acquitted of all the charges.
98. The next question for consideration is that when the charge under Section 34 of IPC was not framed, then whether the Appellants Atmaram, Mahesh, Kailash and Rambabu can be convicted with the aid of Section 34 of IPC or not?
99. The Supreme Court in the case of Mala Singh v. State of Haryana, reported in (2019) 5 SCC 127 has held as under :
32. Four questions arise for consideration in this appeal:
32.1. First, whether the High Court was justified in convicting the appellants under Section 302 read with Section 34 IPC when, in fact, the initial trial was on the basis of a charge under Section 302 read with Section 149 IPC?
32.2. Second, whether the High Court was justified in altering the charge under Section 149 to one under Section 34 in relation to three accused (the appellants herein) after acquitting eight co-accused from the charges of Sections 302/149 IPC and then convicting the three accused (the appellants herein) on the altered charges under Sections 302/34 IPC?
32.3. Third, whether there is any evidence to sustain the charge under Section 34 IPC against the three accused (the appellants herein) so as to convict them for an offence under Section 302 IPC?
32.4. And fourth, in case the charge under Section 34 IPC is held not made out for want of evidence and further when the charge under Section 149 is already held not made out by the High Court, whether any case against the three accused persons (the appellants herein) is made out for their conviction and, if so, for which offence?
33. Before we examine the facts of the case, it is necessary to take note of the relevant sections, which deal with alter of the charge and powers of the court/appellate court in such cases.65
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010) Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010) Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
34. Section 216 CrPC deals with powers of the court to alter the charge. Section 386 CrPC deals with powers of the appellate court and Section 464 CrPC deals with the effect of omission to frame, or absence of, or error in framing the charge. These sections are quoted below:
"216. Court may alter charge.--(1) Any court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the court, to prejudice the accused in his defence or the Prosecutor in the conduct of the case, the court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the court, to prejudice the accused or the prosecutor as aforesaid, the court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
* * *
386. Powers of the appellate court.--After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the appellate court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may--
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction--
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of 66 Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010) Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010) Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010) competent jurisdiction subordinate to such appellate court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;
(c) in an appeal for enhancement of sentence--
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or proper:
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:
Provided further that the appellate court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the court passing the order or sentence under appeal.
* * *
464. Effect of omission to frame, or absence of, or error in, charge.--(1) No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may--
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
67Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010) Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010) Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010) Provided that if the court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."
35. A combined reading of Sections 216, 386 and 464 CrPC would reveal that an alteration of charge where no prejudice is caused to the accused or the prosecution is well within the powers and the jurisdiction of the court including the appellate court.
36. In other words, it is only when any omission to frame the charge initially or till culmination of the proceedings or at the appellate stage results in failure of justice or causes prejudice, the same may result in vitiating the trial in appropriate case.
37. The Constitution Bench of this Court examined this issue, for the first time, in the context of old Criminal Procedure Code in a case in Willie (William) Slaney v. State of M.P.
38. The learned Judge Vivian Bose, J. speaking for the Bench in his inimitable style of writing, held: (Willie Slaney case, AIR p. 124, para 23) "23. ... Therefore, when there is a charge and there is either error or omission in it or both, and whatever its nature, it is not to be regarded as material unless two conditions are fulfilled both of which are matters of fact: (1) the accused has "in fact" been misled by it "and" (2) it has occasioned a failure of justice. That, in our opinion, is reasonably plain language."
39. In Kantilal Chandulal Mehta v. State of Maharashtra, this Court again examined this very issue arising under the present Code of Criminal Procedure with which we are concerned in the present case. Justice P. Jaganmohan Reddy, speaking for the Bench after examining the scheme of the Code held inter alia: (SCC p. 171, para 4) "In our view the Criminal Procedure Code gives ample power to the courts to alter or amend a charge whether by the trial court or by the appellate court provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about that charge or in not giving a full opportunity of meeting it and putting forward any defence open to him, on the charge finally preferred against him."
40. Now coming to the question regarding altering of the charge from Section 149 to Section 34 IPC read with 68 Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010) Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010) Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010) Section 302 IPC, this question was considered by this Court for the first time in Lachhman Singh v. State where Fazl Ali, J. speaking for the Bench held as under: (AIR p. 170, para
13) "13. It was also contended that there being no charge under Section 302 read with Section 34, Penal Code, the conviction of the appellants under Section 302 read with Section 149 could not have been altered by the High Court to one under Section 302 read with Section 34, upon the acquittal of the remaining accused persons. The facts of the case are however such that the accused could have been charged alternatively, either under Section 302 read with Section 149 or under Section 302 read with Section 34. The point has therefore no force."
41. This question was again examined by this Court in Karnail Singh v. State of Punjab wherein the learned Judge Venkatarama Ayyar, J. elaborating the law on the subject, held as under: (AIR p. 207, para 7) "7. Then the next question is whether the conviction of the appellant under Section 302 read with Section 34, when they had been charged only under Section 302 read with Section 149 was illegal. The contention of the appellants is that the scope of Section 149 is different from that of Section 34, that while what Section 149 requires is proof of a common object, it would be necessary under Section 34 to establish a common intention and that therefore when the charge against the accused is under Section 149, it cannot be converted in appeal into one under Section 34. The following observations of this Court in Dalip Singh v. State of Punjab were relied on in support of this position: (AIR p. 366, para 24) '24. Nor is it possible in this case to have recourse to Section 34 because the appellants have not been charged with that even in the alternative and the common intention required by Section 34 and the common object required by Section 149 are far from being the same thing.' It is true that there is substantial difference between the two sections but as observed by Lord Sumner in Barendra Kumar Ghosh v. King Emperor, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. If the common object which is the subject-matter of the charge under Section 149 does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in 69 Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010) Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010) Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010) prejudice to the accused and ought not therefore to be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under Section 149 would be the same if the charge were under Section 34, then the failure to charge the accused under Section 34 could not result in any prejudice and in such cases the substitution of Section 34 for Section 149 must be held to be a formal matter.
We do not read the observations in Dalip Singh v. State of Punjab as an authority for the broad proposition that in law there could be no recourse to Section 34 when the charge is only under Section 149. Whether such recourse can be had or not must depend on the facts of each case. This is in accord with the view taken by this Court in Lachhman Singh v. State, where the substitution of Section 34 for Section 149 was upheld on the ground that the facts were such 'that the accused could have been charged alternatively either under Section 302 read with Section 149, or under Section 302 read with Section 34' (AIR p. 170, para 13)."
42. The law laid down in Lachhman Singh and Karnail Singh was reiterated in Willie (William) Slaney wherein Vivian Bose, J. speaking for the Bench while referring to these two decisions, held as under: [Willie (William) Slaney case, AIR p. 129, para 49] "49. The following cases afford no difficulty because they directly accord with the view we have set out at length above. In Lachhman Singh v. State, it was held that when there is a charge under Section 302 of the Penal Code read with Section 149 and the charge under Section 149 disappears because of the acquittal of some of the accused, a conviction under Section 302 of the Penal Code read with Section 34 is good even though there is no separate charge under Section 302 read with Section 34, provided the accused could have been so charged on the facts of the case. The decision in Karnail Singh v. State of Punjab is to the same effect and the question about prejudice was also considered."
43. This principle of law was then reiterated after referring to law laid down in Willie (William) Slaney in Chittarmal v. State of Rajasthan in the following words: (Chittarmal case, SCC p. 273, para 14) "14. It is well settled by a catena of decisions that Section 34 as well as Section 149 deal with liability for constructive 70 Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010) Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010) Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010) criminality i.e. vicarious liability of a person for acts of others. Both the sections deal with combinations of persons who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or preconcert. Though there is substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both Section 34 and Section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does involve a common intention then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non- applicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all. (See Barendra Kumar Ghosh v. King Emperor; Mannam Venkatadari v. State of A.P.; Nethala Pothuraju v. State of A.P. and Ram Tahal v. State of U.P.)"
100. Thus, if charge under Section 149 of IPC was framed, and if it is found that in fact less than 5 persons were involved in the offence, then still the accused persons can be punished with the aid of Section 34 of IPC.
101. Accordingly, the Appellants Atmaram, Mahesh, Rambabu and Kailash are held guilty for offence under Section 302/34 of IPC.
However, they are acquitted of charge under Section 148 of IPC.71
Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010) Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010) Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010)
102. So far as the question of sentence is concerned, the minimum sentence for offence under Section 302 of IPC is Life Imprisonment.
Accordingly no interference is required.
103. Ex-consequenti, the Judgment and Sentence dated 31 st -Aug-
2010 passed by 1st Additional Judge to the Court of Additional Sessions Judge, Sironj, Distt. Vidisha in S.T. No. 167 of 2005 is hereby Affirmed qua the Appellants Atmaram, Mahesh, Rambabu and Kailash and is set aside qua the Appellants Halkai, Pola @ Jainarayan, Rakesh, Batol @ Makhanlal, Pappu @ Sitaram, Sanjeev, Rajesh and Dinesh.
104. The Appellants Halkai, Pola @ Jainarayan, Rakesh, Batol @ Makhanlal, Pappu @ Sitaram, Sanjeev, Rajesh and Dinesh are on bail. Their bail bonds and Surety bonds are hereby discharged. They are no more required in the present case.
105. The appellants Atmaram, Rambabu, Mahesh and Kailash are in jail. They shall undergo the remaining jail sentence.
106. Let a copy of this judgment be immediately provided to the appellants Atmaram, Rambabu, Mahesh and Kailash free of cost.
107. The record of the Trial Court be immediately sent back along with the copy of this judgment for necessary information and compliance.
108. Accordingly, the Cr.A. No. 724/2010 is Dismissed qua the Appellant Rambabu and Kailash and Cr.A. No. 770/2010 is 72 Rambabu & Ors Vs. State of M.P. (Cr.A. No. 724 of 2010) Halkai & Ors. Vs. State of M.P. (Cr.A. No. 764 of 2010) Atmaram & Ors. Vs. State of M.P. (Cr.A. No. 770 of 2010) Dismissed qua the Appellants Atmaram and Mahesh whereas the Criminal Appeals No. 764 of 2010, Cr.A. No. 724 of 2010 and Cr.A. No. 770/2010 filed by remaining Appellants are Allowed.
(G.S. Ahluwalia) (Deepak Kumar Agarwal)
Judge Judge
ARUN KUMAR MISHRA
2022.02.22 18:08:17 +05'30'