Madhya Pradesh High Court
Rohit & Ors. vs The State Of Madhya Pradesh on 11 July, 2018
Bench: Hemant Gupta, Vijay Kumar Shukla
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HIGH COURT OF MADHYA PRADESH : JABALPUR
(i) Criminal Appeal No.2400/2005
Rohit and others
-Versus-
State of Madhya Pradesh
(ii) Criminal Appeal No.2413/2005
Sudama and others
-Versus-
State of Madhya Pradesh
(iii) Criminal Appeal No.2645/2005
Hari Singh and another
-Versus-
State of Madhya Pradesh
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CORAM :
Hon'ble Shri Justice Hemant Gupta, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
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Shri P.S.Gaharwar, Advocate for the appellants in
Cri.Appeal No.2400/2005 and Amicus Curiae in Cr.Appeal
No.2413/2005 and Cr.Appeal No.2645/2005.
Shri Shivendra Pandey, Government Advocate for the State.
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JUDGMENT
(Jabalpur dt.: 11.07.2018) Per : V.K. Shukla, J.-
All three above mentioned appeals are filed against the common order of conviction and sentence dated 2 25-10-2005, passed by 4th Additional Sessions Judge Sagar, Camp Rehli in S.T.No.117/2002. There were total 12 accused persons, out of those, 2 were juvenile and they were tried by the Juvenile Court. The present appeals are filed by 10 accused persons in different 3 appeals. They have been convicted and sentenced as under :
Criminal Appeal No.2400/2005 Conviction Sentence Under Section Imprisonment for life 302/149 of IPC. and fine of Rs.100/- in default of payment of fine, R.I. for one year each.
Under Section 147 of R.I. for 6 months. IPC to appellant no.3 Under Section 148 of R.I. for one year each. IPC
(Substantive sentence to run concurrently) Criminal Appeal No.2413/2005 Conviction Sentence Under Section Imprisonment for life 302/149 of IPC. and fine of Rs.100/- in default of payment of fine, R.I. for one year each.
Under Section 148 of R.I. for one year each. IPC (Substantive sentence to run concurrently) 3 Criminal Appeal No.2645/2005 Conviction Sentence Under Section Imprisonment for life 302/149 of IPC. and fine of Rs.100/- in default of payment of fine, R.I. for one year each Under Section 148 of R.I. for one year each IPC (Substantive sentence to run concurrently) Out of 10 appellants, 2 were enlarged on bail (Appellant no.3 Amolrani and Appellant no.4 Raghuveer in Criminal Appeal No.2400/2005). Since all the appeals are arising out of the common order of conviction and sentence, they are being disposed of by the common order.
2. It is alleged by the prosecution that in village Marpani, there is 30 acres of land owned by Pt.Gopal Bhargava. In the year 1998-99, the said land was taken by accused Raghuveer Ghoshi for cultivation purposes. Prior to one month of the incident, the said piece of land was given to Ballu Patel by said Pt.Gopal Bhargava. Deceased Ballu Patel and his family was looking after cultivation of the said land and was also living alongwith his family on the said field. Thus, he was engaged by the land owner to look after the crops field and to save crops from animals. Because the 4 said land was given to the deceased family from accused Raghuvir Ghoshi, therefore, they developed enmity with the deceased family. The incident is said to have taken place on 29-11-2001 at night when Ballu Patel alongwith his wife Gendarani, daughter Saraswati and son Gullai (PW-3) in the first hut and Videsh (PW-2) alongwith his 2 years old son Raghunath and wife Anitarani in the second hut and in third hut Pinto alias Devendra were sleeping, is alleged that about 14.00 hours in the night upon hearing barking of dogs, Videsh (PW-2) and Gullai(PW-3) got up and came out from their huts and they saw 12 people coming towards their huts. They witnessed the incident by hiding in the side of walls in the hutments. They saw that accused Rohit armed with 'Tabal', Chambal with 'Ballam', Roshan with 'Katarna', Raghuvir, Amar Singh and Ashok Rathi with 'lathis', accused Karan Singh with 'Farsa' and Sudama with 'Ballam'. It is further stated by them that accused Raju and Hari Singh were carrying lathis and accused Amolrani wife of Raghuvir Singh Ghoshi was having a torch. All these accused persons forcibly entered into all the 3 hutments and assaulted Ballu Patel and his family sleeping in the three hutments. These persons having been scared with the accused persons had run to the jungle.
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3. In the morning, these two witnesses PW-2 Videsh and PW-3 Gullai returned to the hutments, they saw their parents and other family members lying smeared with blood. They went to the village and narrated the story to Ganpat (PW-4) and other relations. Thereafter the report was lodged to the police station, which was recorded in Dehatinalshi (Ex.P-2). Six family members including two years old child Raghunath were killed by these persons. The police started the investigation on the basis of Dehatinalshi Ex.P-2 registered at Police Station Garhakota, District Sagar by PW-21 B.S.Dubey. The same was sent to the police station vide Ex. P-70 to P-75 in respect of death of these persons. On the basis of that marg dehatinalshi, intimation was reduced in writing in Ex.P-69 and thereafter FIR was registered which is Ex.P-76. PW-21 B.S.Dubey, prepared the dead body panchnama and vide Ex. P-4, P-6, P-8, Ex.P- 10, Ex.P-12 and Ex.P-14, all the six dead bodies were sent for autopsy. The same was conducted by Dr. M,L,Chauda (PW-5) and the postmortem report of 6 persons is Ex.P-15 to Ex.P-20.He also prepared the crime seen map and seized the blood stained soil. The other seizures were also effected by him. On the basis of the disclosure statement, the weapon used in the commission of offence and garments of the accused persons were also seized. The seizure memo 6 was filed as Ex.P-24, P-26, P-28 and P-30. The seizure of Ballam is Ex.P-38 and the seizures of lathis are Ex.. P-36, P-63, P-34, P-40 and P-42. The torch was seized vide Ex.P-
43. The accused persons were arrested vide Ex.P-49 to Ex.P-59. The Incharge of Seen of Crime Unit Vinod Shrivastava (PW-9) inspected the spot and the inspection report is Ex.P-61. The map was prepared by Patwari Kaluram Sen. The seized articles were sent for chemical examination and the report is Ex.P-1. Dr. M.L.Chauda(PW-
5) appeared as a witness and stated that on the dead body of deceased Gendarani, he found incised wound 8x2x3 cm. at the right palm and another injury was incised wound 12x3x3 cm. over the left side of shoulder. The cause of death was due to excessive bleeding and shock. He also found one contusion 12x7 cm. Present around the injury no.1. In respect of deceased Saraswati alias Boti, he stated that he found 5 incised wound injuries, over the right shoulder 10x4x2 cm. and 16x5x5 cm. Incised wound 12x2x4 cm. on back portion of the head and was injury on the brain. 4th incised wound was 3x2x1 cm. over the right shoulder and 5th injury was incised wound 5x2x1 cm on the right palm. The cause of her death was due to excessive bleeding and spinal shock. All the injuries were opined to be caused by shard edged weapons. In respect of deceased 7 Ballu, he found 2 incised wound injuries on the shoulder 27x10x7 cm. and other one 5x1x1/2 cm. The cause of death was due to excessive bleeding and spinal shock. The injuries were caused by sharp and edged weapons. In respect of deceased Raghunath, fracture over the right portion of the head in temporal and occipital region was found. In respect of deceased Anita Rani, one stab wound 8x3 cm. inside on the chest was found and the cause of death was due to excessive bleeding and shock. In respect of 6th deceased Devendra, incised wound 18x5x8 cm over the right part of the shoulder caused by sharp and edged weapon was found. The cause of death was due to cut of spinal chord, excessive and spinal shock.
4. After the investigation, the charge sheet was filed in the court of competent jurisdiction and they were charge- sheeted for the alleged offence of murder of 6 persons of the same family with the aid of section 149 of IPC. They were also charg-sheeted for sections 147 and 148 of the IPC. All the persons abjured their guilt and pleaded innocence and submitted that they have been falsely implicated.
5. The main contention of the learned counsel for the appellants is that as per the medical report, the injuries 8 sustained by the deceased persons were caused by sharp edged weapons whereas certain accused persons were carrying lathis and since there is no injury caused by lathi, the prosecution case ought to have been disbelieved and the oral evidence is not corroborated with the medical evidence. It is also submitted that owing the previous enmity amongst the accused persons and the deceased family, the testimony of PW-2 Videsh and Pw-3 Gullai ought not to have been believed by the trial court. Lastly, it is contended that PW-2 Videsh and Pw-3 Gullai have not stated the specific role attributed to the accused persons and they have also not specified that which accused had caused injury to which deceased and what weapon was used by particular accused person.
6. Per contra, learned counsel for the State supported the order of conviction and sentence and submitted that all the accused persons had formed an unlawful assembly with an object to finish the entire family and because of that 6 persons of the same family including 2 years old child has been murdered. The manner of committing offence is also brutal and since they had formed an unlawful assembly, therefore, all the members of unlawful assembly shall be responsible for the act done by any member of the assembly 9 irrespective of specific role attributed to any individual.
7. We have heard the learned counsel for the parties, we do not find any force in the contentions of the learned counsel for the appellants. In order to appreciate the contentions, we propose to first examine oral evidence. PW-2 Videsh stated that all the accused persons were known to him. He was given land for cultivation and to supervise by owner of the land. In para-4 of his statement, he stated that when he was sleeping alongwith the other family members, after hearing the barking of the dogs, he and Gullai got up and they came out from huts, they saw that the accused persons armed with weapons like lathi, tabal, katarna and ballam were coming towards the huts of the accused persons first went to hut where his father Ballu, mother Gendarani and sister Saraswati were sleeping. They killed them first and thereafter they went to the other hutment where his wife Anitarani and son Raghunath were sleeping. They had beaten them and thereafter they went to the third hutment where his brother Pintu alias Devendera was sleeping. They had beaten him also. He had seen the incident by hiding inside of wall in the hutments. He stated that there was moonlight and the electric bulbs were fitted in the hutments and therefore, he 10 had seen the accused persons armed with weapons and beating the deceased persons. It is stated that he was terrified and therefore, he had run away to the forest alongwith Gullai. Despite long and extensive cross- examination, he was firm that he was in position of witnessing the incident and there was sufficient light. In the cross examination, there is nothing to disbelieve the testimony of this witness. In respect of his position in the field to witness the incident and about the sufficiency of light, he has clearly stated that he had seen the accused persons armed with weapons and beating them. In paras 22 and 24 of the cross-examination, he has stated that he could not see that which accused was carrying which weapon and also could not see that who had caused which injury to the deceased with what weapon. His testimony seems to be natural and honest because 12 persons in the night armed with different weapons entered into the field, certainly he must have not seen that who was carrying which weapon and who had caused which injury to which deceased. But he was firmed to the incident that he had recognized all the 12 accused persons, as they were known to him and they were armed with different weapons and had beaten the deceased persons by entering into one by one hut. PW-3 Gullai is another eye witness of the incident. He 11 has also stated that after hearing barking of the dogs, he also got up alongwith his brother PW-2 Videsh and had seen that Amolrani was on front with torch and all other accused persons were after her armed with ballam, katarna, tabal, farsa and lathis. He has further stated that all the accused persons had gone first to the hut, where his father Ballu, mother Gendarani and sister Saraswati were sleeping. The accused persons had beaten these persons and thereafter, they had gone to the other hutment where her sister-in-law Anitarani, nephew Raghunath were sleeping. They had beaten them and thereafter they went to the third hut and had beaten his brother Pintu alias Devendra. He has also stated that he witnessed the incident by hiding himself in the side of walls in the hutment. In her cross-examination about, an attempt was made to suggest that he was not in a position to witness the incident from the spot where he was hiding and about the light also there was cross-examination. But he stated that there was sufficient light as it was moonlight and there was electric bulbs. From his cross-examination also, there is nothing to prove contrary that he was not in position to witness the incident. The spot map was prepared by PW-1 Kaluram Sen Patwari. Upon perusal of the spot map Ex.P-1 and from the testimony of PW-1 Kaluram Sen, it is clear that the location 12 of the witnesses PW-2 Videsh and PW-3 Gullai was on such place where all the three huts could be easily seen.
8. The learned counsel for the appellants could not point out any material from the evidence of the cross-examination of the witnesses that PW-2 Videsh and PW-3 Gullai that they were not in a position to witness the incident. PW-4 Ganpat is uncle of PW-2 Videsh and PW-3 Gullai. He stated that in the morning PW-2 Videsh and PW-3 Gullai had come to him and had informed about the incident. PW- 16 Krishankant was examined who is the Manager of the owner of the land and MLA and MLA Gopal Bhargava. He stated that earlier in the year 1998-98, the accused Raghivir was given the land for cultivation and supervision but since he was not honest to his duty and he was not giving the correct information of production and income of agricultural produce, therefore, he was removed and in his place, the land was given to deceased Ballu Patel, the said reason became a cause and motive to finish the entire family of deceased Ballu by the accused persons. Thus, all the prosecution witnesses have proved the fact that there was motive with the accused persons and in furtherance of their common object to kill and finish the entire family of Ballu, they formed an unlawful assembly and with lethal 13 weapons they entered into the field and killed 6 persons of the same family. PW-2 Videsh and PW-3 Gullai have clearly deposed that they had seen all the accused persons entering into the field armed with weapons and Alomrani was leading them by showing the torch in her hand and thereafter all the accused persons went into different 3 hutments and had beaten the deceased persons. Thus formation of unlawful assembly for common object to finish the entire family of the deceased has been established by the prosecution. The presence of all the accused persons could not be otherwise proved by the defence. All these accused persons were admittedly known to the deceased family and witnesses PW-2 Videsh and PW-3 Gullai and their presence and active participation have been proved by the prosecution.
9. The argument of the learned counsel for the appellants that the appellants could not have been convicted because the witnesses have not specified particular role and overt act played by them in the commission of offence and that the oral evidence is not supported by the medical evidence as there is no lathi injury on the person of the deceased and all the injuries have been found caused by the sharp and edged weapon cannot be accepted, once the prosecution has 14 established that all the accused persons were members of the unlawful assembly, individual act of each accused person is not required to be established.
10. In the case of Laljee Vs State of U.P. (1989)1SCC 437 the Apex Court has held as under:
"19. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the 15 assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge."
11. In Yunis Vs. State of M.P. (2003) 1 SCC 425 , learned counsel appearing for the appellant therein argued that no overt act was imputed to his client and he was being implicated only on the basis of Section 149 IPC. This Court ascribing no merit to the argument, held that :
"even if no overt act is imputed to a particular person, when the charge is under Section 149 IPC, the presence of the accused as part of an unlawful assembly is sufficient for conviction". Accordingly the Court" Accordingly the Court in that case observed that the appellant was a member of the unlawful assembly which itself is sufficient to hold him guilty when his presence has not been disputed."
12. Relying on Lalji Vs. State of U.P. this Court in Subal Ghorai Vs. State of W.B. (2013) 4 SCC 607 held;
" 52. ..... If an offence is committed by a member of the unlawful assembly in 16 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 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"
13. Following the aforesaid judgments the Apex Court reiterated the principle in the cases of Anup Lal Yadav and another Vs. State of Bihar (2014)10 SCC 275, regarding constructive liability for being part of the unlawful assembly held that it is well settled that once it is established that unlawful assembly had a common object it is not necessary that all persons forming unlawful assembly must be shown to have committed some overt act, rather they can be convicted under Section 149 of IPC.
14. In view of the aforesaid assimilation of facts and evidence, the act of Amolrani or any other accused person cannot be segregated as the prosecution has established the common object and that all the appellants were members of the unlawful assembly, we do not find any error in the order of conviction and sentence. Accordingly, all the 17 appeal are dismissed.
15. Before parting, we must put on record our unreserved appreciation for the valuable assistance rendered by the learned amicus curiae. The High Court Legal Services Authority shall remit fee of Rs.4000/-(Rs. four thousand) to the amicus curiae who assisted this court.
(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
hsp.
Digitally signed by HARSAHAI
PATERIYA
Date: 2018.07.16 14:49:34
+05'30'