Madhya Pradesh High Court
Killu @ Kailash vs The State Of Madhya Pradesh on 29 June, 2018
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
DIVISION BENCH: Hon'ble Shri Justice S.K. Gangele &
Hon'ble Shri Justice Rajendra Kumar Srivastava.
Cr. Appeal No. 2676 of 2008
Killu @ Kailash and others
Versus.
State of through P.S Raneh, District Damoh
AND
Cr. Appeal No.158 of 2009
Kailash Nayak
Versus.
State of through P.S Raneh, District Damoh
In Cr. Appeal No.2676/2008.
Shri Pradeep Naveria, counsel for the appellants no.1 and 2.
Shri Abhishek Tiwari, [amicus-curiae] for the appellants No.3 and 4.
In Cr. Appeal No.158 of 2009.
Shri Anshul Tiwari, counsel for the appellant.
Shri Vijay Soni, Government Advocate for the State/respondents in both
appeals.
Reserved on: 21.06.2018.
JUDGMENT
[Pronounced on 29 .06.2018] As per S.K. Gangele, J:
1. These two appeals have been filed against the common judgment dated 19.12.2008 passed in Sessions Trial No.173/2005, by the Court of Ist Addl. Sessions Judge, Damoh. Five accused were prosecuted for commission of offence punishable under Section 302/149 of IPC.2
2. Cr. Appeal No.2678 of 2008 has been filed by the appellants namely; Killu @ Kailash, Himmu @ Hemchand, Devendra and Khushiram and Cr. Appeal No.158 of 2009 has been filed by appellant namely; Kailash Nayak. All the appeals are heard together and decided by this common judgment.
3. Prosecution story, in brief is that, accused/appellant No.4 Khushiram in Cr. Appeal No.2678 of 2008, who is uncle [mousia] of the son of the deceased, had some enmity with Balaprasad Pathak [since deceased]. He along with other accused persons entered in the house of Balaprasad Pathak in the mid night [2 O'clock] of 23.05.2005. Deceased was sleeping with his family members.
Accused/appellants in [Cr. Appeal No.2678/2008] namely; Khushiram and Himmu @ Hemchand were armed with axe, appellant Devendra was armed with Ballam and other two accused namely Killu @ Kailash and Kailash Nayak were armed with lathi. Two accused persons namely; Khushiram and Himmu @ Hemchand [appellants No. 2 and 4 in Cr. Appeal No.2676/2008] inflicted injuries by axe on the person of deceased. Allegation against other accused persons is of extortion. Deceased was died on the spot. Report of the incident was lodged by (PW-5) Rameshwar Pathak. Police conducted investigation and filed chargesheet. During trial, appellants abjured their guilt and pleaded innocence. Trial Court after trial held the appellants guilty and awarded sentence as mentioned. 3
4. Learned counsel for the appellants has submitted that trial Court relied on the evidence of related witnesses. The evidence is not reliable and is not sufficient to held the appellants guilty for commission of offence. It is further submitted that except appellants No.4 and 2 namely; Khushiram and Himmu @ Hemchand, the other accused persons were convicted with the aid of Section 149 of IPC. Their act is not covered under Section 149 of IPC. They have been falsely implicated with the case. There is no overtact of the aforesaid appellants in commission of offence. In support of the aforesaid contentions, learned counsel relied on the following judgments.
(i) Shivalingappa Kallayanappa and vs. State of Karnataka, AIR 1995 SC 254.
(ii) Allauddin Mian and others vs. Sharif Mian and another, 1989 AIR 1456.
(iii) Shivjee Singh and others vs. State of Bihar, 2009 AIR 417.
(iv) Shambhu Nath Singh and others vs. State of Bihar, AIR 1960 SC 725.
5. Learned counsel for the State has submitted that there are eye witnesses, the witnesses are natural. There is sufficient evidence against the appellants. FIR was lodged promptly. In the FIR, names of accused persons have been mentioned. Accused persons entered the house of deceased with a pre-plan. They shared common intention. They were armed with deadly weapons hence, the trial Court has rightly held them guilty and awarded proper sentence. In 4 support of the aforesaid contentions, learned counsel relied on the following judgments.
(i) Rajkishore Purohit vs. State of Madhya Pradesh, [2017] 9 SCC 483
(ii) Ganga Ram Sah and others vs. State of Bihar, [2017] 12 SCC 707
6. (PW-1) Manoj Pathak, turned hostile. (PW-3) Prabha Rani, is the wife of deceased. She deposed that her husband-Balaprasad Pathak [since deceased], sons and daughters were sleeping in the night in a courtyard of the house. I wake up after hearing some sound and I had seen that accused Khushiram was armed with axe, accused Devendra was armed with Ballam, accused Kailash Pathak and Kailash Nayak were armed with lathi and accused Himmu @ Hemchand. Khushiram had inflicted blow on the head of deceased and Himmu @ Hemchand also inflicted blow of axe on my husband. The other accused persons were saying that we want to kill Balaprasad Pathak. Due to aforesaid injuries, deceased was died on the spot. I informed the incident to my brother-in-law (Dever) [PW-5] Rameshwar. He went to lodge report at the Police Station. My husband had ill will with Hemchand. Appellant Khushiram had committed theft of Rs.50,000/- of my husband. Balaprasad [since deceased] lodged the report against him. Khushiram pressured the deceased for compromise in the case. She further admitted that a case under Section 302 of IPC was also pending against her husband 5 in regard to commission of death of Rammilan Pathak. She further admitted that he had ill will with Kailash Pathak and Rameshwar Pathak, is the son of uncle of my husband.
7. (PW-4) Devendra Kumar is another eye witness. He is the son of the deceased. He deposed the same facts as deposed by PW-3. He further deposed that I asked Khushiram, who is my uncle [mousia] what had happened, then he replied that we want to kill Balaprasad [since deceased]. He admitted his signatures on Ex.P-3 and Ex-P-4 and spot map Ex-P-5.
8. (PW-5) Rameshwar Pathak is another relative of the deceased. He deposed that deceased was his cousin brother i.e. son of the uncle. He lodged the report at the Police Station Ex-P-6. In his cross- examination, he admitted that he did not mention names of appellants Himmu, Devendra Pathak, Kailash Pathak and Kailash Nayak. He denied the fact that he lodged the report (Ex-P-6) as it is. He further deposed that wife of the deceased told him that accused Khushiram had killed the deceased. He has not been declared hostile.
9. (PW-6) Ramphool Pathak is the younger brother of the deceased. He deposed that Prabharani (PW-3) told me that accused Khusiram had beaten the deceased by axe. Accused Himmu @ Hemchand had also inflicted a blow of axe. Accused Devendra, Kailash Nayak and Kailash Pathak were present on the spot. 6
10. (PW-7) Gourishankar Pathak is the witness of seizure. He turned hostile. (PW-8) Virendra Pathak, is the son of the deceased. He deposed the same facts as deposed by (PW-3) wife of the deceased. (PW-9) Rajani Pathak, is the daughter of deceased. She also deposed the same facts as deposed by other eye witnesses.
11. From the possession of accused Hemchandra on his memorandum, an axe was seized. Similarly, from the possession of accused Khusiram, an axe was seized. From Devendra, Kailash Nayak and Kailash Pathak, Ballam and lathis were seized on their memorandum. Lathis and Ballam were not sent for chemical examination to FSL.
12. (PW-2) Dr. R.K. Bhardwaj, posted as Medical Officer at Community Health Center, Hatta District Damoh, performed the post- mortem of the deceased. He deposed that he noticed following injuries on the person of body of the deceased.
"(i) Incised wound over left anterior part of scalp 4"x1/2" underlaying bone and brain matter cut inhacranial cavily pilled with blood.
(ii) Incised wound 5" x 1"x2 ½" upper most part of chest and adjoining anterior part of neck slightly left side obliquely placed under gone and blood vessels cut."
Injuries were antimortem in nature. Deceased was died due to aforesaid injuries.
7
13. (PW-18) Dr. Umesh Singh Yadav, is the Investigating Officer. He deposed that FIR was lodged at the Police Station and I seized axe from accused Khushiram and he was arrested. (PW-20) V.P. Upadhyay, is another Investigating Officer. He deposed that [PW-5] Rameshwar Pathak lodged the report at the Police Station which is Ex.P-6. I conducted investigation and prepared spot map Ex-P-5. Thereafter, I recorded statements of the witnesses and arrested accused Himmu @ Hemchand, on his memorandum axe and shirt was seized. From Kailash Nayak, a lathi was seized on his memorandum. Similarly, from Devendra Pathak, on his memorandum a Ballam was seized and from accused Kailash, a lathi was seized. Articles were sent for FSL. Ex-P-6 is the First Information Report, it was lodged by (PW-5) Rameshwar Pathak. In the FIR, names of the accused persons have been mentioned.
14. Hon'ble apex Court in the matter of Jodhan Vs. State of M. P. reported in (2015) 11 SCC 52 has held as under in regard to appreciation of evidence of interested witnesses :.
"The evidence of an interested witness can be relied upon if it is found to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious if ought to be rejected. That apart, when a witness has a motive or makes false implication, the Court before relying upon his testimony should seek corroboration in regard to material particulars.
In the instant case, the witnesses who have deposed against the accused persons are close relatives and had suffered injuries in the 8 occurrence. Their presence at the scene of occurrence cannot be doubted, their version is consistent and nothing has been elicited in the cross- examination to shake their testimony. There are some minor or trivial discrepancies, but they really do not create a dent in their evidence warranting to treat the same as improbable or untrustworthy."
15. (PW-3) Smt. Prabha Rani, (PW-4) Devendra Kumar, (PW-8) Virendra Pathak and (PW-9) Rajni Pathak are related eye witnesses. Their presence on the place of incident is natural because they are family members and they were sleeping along with the deceased. They have specifically deposed that appellants Himmu @ Hemchand and Khushiram inflicted blows by axe on the head of deceased. Accused Khushiram had ill will against the deceased because on the report of Balaram a case of theft was registered against accused/Khushiram and he was pressuring deceased to compromise. Deceased and Khushiram both were relatives.
15. (PW-2) Dr. R.K. Bhardwaj who performed the postmortem verified the fact that he noticed two incised injuries on the person of the body of e deceased. Injuries could be caused by axe. He further opined that deceased was died due to aforesaid injuries.
16. Appellants No.2 and 4 namely Himmu @ Hemchand and Khushiram were armed with axe, i.e. deadly weapons. They inflicted blows on the vital part of deceased as a result of which, deceased was died on the spot. Evidence of causing injury by axe is against the appellants Himmu @ Hemchand and Khushiram. Hence, in our 9 opinion, the trial Court has rightly held the appellants guilty for commission of offence of murder. Other three accused persons namely; Killu @ Kailash, and Devendra (appellants No.1 and 3 in Cr. A No.2676/2008) and appellant Kailash Nayak (appellant in Cr. A No.158/2009) have been convicted with the aid of Section 149 of IPC. Allegation against them is that they entered in the house and they were armed with lathis and Ballam. From the evidence, this fact has also been proved that deceased was facing trial of Section 302 of IPC because he had killed one Rammilan Pathak.
17. Apex Court in the case of Rajkishore Purohit vs. State of Madhya Pradesh, reported in (2017) 9 SCC 483 has held as under in regard to Section 149 of IPC.
"10. Common intention is a state of mind. It is not possible to read a person's mind. There can hardly be direct evidence of common intention. The existence or non-existence of a common intention amongst the accused has to be deciphered cumulatively from their conduct and behavior in the facts and circumstances of each case. Events prior to the occurrence as also after, and during the occurrence, are all relevant to deduce if there existed any common intention. There can be no straight jacket formula. The absence of any overt act of assault, exhortation or possession of weapon cannot be singularly determinative of absence of common intention.
11. Though judicial precedents with regard to common intention stand well entrenched, it will be sufficient to refer State of Rajasthan vs. Shobha Ram, (2013) 14 SCC 732, observing as follows :-10
"10. Insofar as common intention is concerned, it is a state of mind of an accused which can be inferred object- ively from his conduct displayed in the course of com- mission of crime and also from prior and subsequent at- tendant circumstances. As observed in Hari Ram v. State of U.P.6 (SCC p. 622, para 21), the existence of direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. Therefore, in order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence before a person can be vicariously convicted for the act of the other."
18. Hon'ble Supreme Court in the case of Allauddin Mian and others vs. State of Bihar reported in AIR 1989 SC 1456 has held as under in regard to Section 149 of IPC.
"Section 142 states: whoever, 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. Section 143 sets out the punishment for being a member of an unlawful assembly. Section 144 prescribes the punishment for joining an unlaw- ful assembly armed with deadly weapons. Section 145 pre- scribes the punishment for joining or continuing in an unlawful assembly which has been commanded to disperse. Section 146 defines rioting. It says that whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assem- bly, every member of such assembly is guilty of the offence of rioting. Section 11 147 then prescribes the punishment for rioting. Section 148 prescribes the punishment for rioting by members of an unlawfully assembly armed with deadly weapons. Then comes Section 149 which reads as under:
"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 commit- ting of that offence, is a member of the same assembly, is guilty of that offence."
Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences commit- ted in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. 12 What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of anyone or more of the five objects mentioned in Section 141 will render his companies constituting the unlawful assembly liable for that offence with the aid of Section 149, I.P.C. In the present case, the common object of the unlawful assembly as alleged in the charge was to kill PW 6 Baharan Mian. To accomplish that objective accused Nos. 1 and 2 went after PW 6. Sensing danger PW 6 ran into the adjoining room to fetch a spear to defend himself. His wife PW 5, however, blocked his way and did not permit him to go out. When accused Nos. 1 and 2 realised that PW 6 was beyond their reach, they, frustrated at their failure to accomplish their mission, wielded their weapons on the innocent girls who were playing in the Dalan. The common object having thus been frustrated, accused Nos. 1 and 2 took out their wrath on the innocent girls which was no part of the common object of the unlawful assembly. It was not necessary to kill these girls to accomplish their object of killing PW 6 as these two girls had not prevented them from reaching PW 6. The learned counsel for the accused, therefore, rightly submit- ted that while accused Nos. 1 and 2 can be punished for their individual acts committed after the common object stood frustrated and abandoned on PW 6 placing himself beyond their reach, the other members of the unlawful assembly could not be punished for the acts of accused Nos. 1 and 2 as the killing of the girls was no part of the common object of the assembly. Once PW 6was beyond the reach of his two tormenters, 13 the common object to kill him stood frustrated and whatever the individual members did thereafter could not be said to have been done in prosecution of the common object of the assembly. It is not the intention of the legislature in enacting Section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to invoke Section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common Object is committed to accomplish the common object of the unlawful assembly it must be within the knowledge of other members as one likely to be committed in 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, I.P.C. In the instant case, however, the members constituting the unlawful assembly had gone to the house of PW 6 to kill him. That was the common object of the unlawful assembly. For accomplishing that common object it was not necessary to kill the two girls who were not an hindrance to accused Nos. 1 and 2 accomplishing their common object. We are, therefore, of the opinion that accused Nos. 3 to 6 cannot be convicted for the injuries caused to the two minor girls by accused Nos. 1 and 2 with the aid of Section 149, I.P.C. We, therefore, set aside the conviction under Section 326/149, I.P.C., and also the sentence imposed on accused Nos. 3 to 6 on that count. We, however, hold accused Nos. 3 and 4 guilty under Sections 447 and 148, I.P.C., and confirm the sentences awarded to them on those counts. So also we hold accused Nos. 5 and 6 guilty under Sections 447 and 147, IPC and confirm their sentences for the said offences." 14
19. The apex Court in the aforesaid judgment has held that "in order to invoke section 149 of IPC, it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly".
20. Three Judges Bench of of Hon'ble Supreme Court in the case of Shambhu Nath Singh and others vs. State of Bihar, reported in AIR 1960 SC 725 has held as under in regard to Section 149 of IPC.
"6. Section 149 of the Indian 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. If an unlawful assembly is formed with the common object of committing an offence, and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. But "members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only 15 according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly." Jahiruddin v. Queen Empress, ILR 22 Cal 306.
7. Therefore a conviction for an offence under Section 326 read with Section 149 of the Indian Penal Code may be recorded against the members of an unlawful assembly, even if it be established that an offence of murder was committed by a member of that assembly. The offence under Section 326 of the Indian Penal Code is in its relation to the offence of murder a minor offence and the language used in Section 149 of the Indian Penal Code does not prevent the court from convicting for that minor offence merely because an aggravated offence is committed. Counsel for the accused however sought to place reliance upon certain authorities in support of his contention. We may briefly deal with those authorities.
8. In Queen v. Sabid Ali, 20 Suth WR Cr 5 (FB), it was held, "Where a certain number of persons, members of an unlawful assembly Party A attacked another party B who were in occupation of land, with the view to drive them off the land by force, and one of the members in party A fired a gun at and killed one of the persons in party B, it was held (Ainslie, J., dissenting) on a consideration of the evidence that the persons composing party. A other than the person who fired the gun could not be convicted of murder under Section 149 Penal Code. The conviction was altered under the circumstances to one of rioting armed with a deadly weapon under Section 148 of the Indian Penal Code." But in that case, the unlawful assembly in prosecution of which the offence was committed was to take forcibly the possession of the land in dispute, and 16 the court on evidence found that the murder committed by one of the members of the unlawful assembly was not an offence such as the members of the unlawful assembly knew to be likely to be committed in prosecution of the object of the unlawful assembly. This case does not assist the appellants."
21. From the aforesaid quoted judgment, the principle of law is that "the member of unlawful assembly may have committed for the offence caused by another accused, if he has knowledge about the act committed by the main accused". In the present case, evidence is that other accused were entered the house of deceased and thereafter, two accused had inflicted blow by axe. The other accused persons did not give any blow on the deceased. It is alleged that they were present on the spot. There was previous enmity between the accused persons and the deceased, he was also facing criminal trial. Hence, it cannot be ruled out that other three persons, who had not inflicted any injury may have been named along with the other accused persons.
22. Looking to the evidence on record, in our opinion, the conviction of three appellants namely; Killu @ Kailash, Devendra and Kailash Nayak, who were armed with lathis and Ballam and did not inflict any blow with the aid of Section 149 of IPC, is not proper. There is lack of sufficient evidence to prove them guilty for commission of offence under Section 149 of IPC beyond reasonable 17 doubt. Hence, the appeal filed by appellant Kailash Nayak (Cr. Appeal No.158/2009) is hereby allowed.
23. Cr. Appeal No.2676/2008, filed by four accused/appellants is partly allowed. Appeal filed by appellants No.2 and 4 namely; Himmu @ Hemchand and Khushiram is hereby dismissed. They are convicted for commission of offence punishable under Section 302 of IPC and awarded a sentence of life. Appellant No.2 Himmu @ Hemchand is on bail. His bail bonds are hereby cancelled. He is directed to surrender before the trial Court for facing remaining jail sentence.
24. Appeal filed by the appellants No.1 and 3 namely; Killu @ Kailash and Devendra [Cr. Appeal No.2676/2008] is hereby allowed. They are acquitted from the charge of Section 302/149 of IPC. The judgment passed by the trial Court in regard to appellants No.1 and 3 namely; Killu @ Kailash and Devendra, is hereby set aside. Appellants Killu @ Kailash, Devendra and Kailash Nayak, are on bail, their bail bonds are hereby discharged.
(S.K. GANGELE) (RAJENDRA KUMAR SRIVASTAVA)
JUDGE JUDGE
PB
Digitally signed by
PRASHANT BAGJILEWALE
Date: 2018.06.29 04:27:48
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