Madhya Pradesh High Court
Ram Kripal Singh & Ors. vs The State Of M.P. on 24 November, 2017
Author: J.P. Gupta
Bench: J.P.Gupta
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
(DIVISION BENCH : HONâÂÂBLE SHRI JUSTICE
sh
J.K.MAHESHWARI &
HON'BLE SHRI JUSTICE J.P.GUPTA)
e
ad
Criminal Appeal No. 2558/2000
Pr
Ramkripal Singh and 4 others
Vs.
a
hy
State of Madhya Pradesh
ad
Shri Manish Datt, learned Senior Advocate with Shri Rahul
M
Sharma, Advocate for the appellants-accused.
Shri Rajesh Kumar Tiwari, Public Prosecutor for respondent-
of
State.
rt
ou
Criminal Appeal No. 2572 / 2000
Narendra Singh
C
Vs.
h
State of Madhya Pradesh
ig
Shri Manish Datt, learned Senior Advocate with Shri Rahul
H
Sharma, Advocate for the appellant-accused.
Shri Rajesh Kumar Tiwari, Public Prosecutor for respondent
â State.
&
Criminal Appeal No.2601/2000
Ram Suhavan Singh
Vs.
State of Madhya Pradesh
Shri Jagat Sher Singh, Advocate for the appellant âÂÂ
accused.
Shri Rajesh Kumar Tiwari, Public Prosecutor for respondent
sh
â State
e
ad
Whether approved for reporting : (Yes / No).
JUDGMENT
Pr (Delivered on 24th day of November, 2017) a hy Per J.P. Gupta, J :
This judgment shall govern the disposal of all the ad aforesaid three criminal appeals arising out of a common M judgment dated 29.9.2000 passed by the trial court in S. T. No.123/1996, whereby the appellants (criminal appeal no.
of 2558/2000) are alleged to have formed an unlawful assembly rt having common object and in furtherance of common object of ou that assembly, they used lathis in commission of offence, for which, they have been convicted for the offence punishable under C Sections 147, 506-B/149, 302/149 and 307/149 of IPC and have h been sentenced to undergo RI for 6 months, RI for 1 year along ig with fine of Rs.300/-, RI for life along with fine of Rs.1000/- and RI H for 10 years along with fine of Rs.500/- ; appellant Narendra Singh (criminal appeal no. 2572/2000) is alleged to have committed murder of the deceased Arunandra by fire arm has been convicted for the offence punishable under Sections 148, 506-B/149, 302 and 307/149 of IPC and has been sentenced to undergo RI for 1 year, RI for 1 year along with fine of Rs.300/-, RI for life along with fine of Rs.1000/- and RI for 10 years along with fine of Rs.500/- and appellant Ramsuhavan Singh (criminal appeal no.2601/2000) is alleged to have made attempt to commit murder of one Babulal by fire arm has been convicted for the offence punishable under Sections 148, 506-B/149, 302/149 and 307 of IPC and has been sentenced to undergo RI for 1 year, RI for 1 sh year along with fine of Rs.300/-, RI for life along with fine of e Rs.1000/- and RI for 10 years along with fine of Rs.500/-, with ad default stipulation as mentioned in the impugned judgment.
2. In brief, the relevant facts of the case are that on Pr 13.3.1996 between 9 P.M. to 10 P.M., deceased Arunandra Singh, a injured Babulal (PW-5), complainant Bhimsen (PW-1) and some hy other persons were sitting at the house of Ramniranjan Singh and ad chit-chatting about cultivation. Babulal, deceased Arunandra and Bhimsen got up to go to their home then Narendra Singh S/o.
M Indrabhan (PW-7) and Bhole Singh (PW-9) also accompanied them of to some distance. When they reached near a garden known as âÂÂPhutha BagichaâÂÂ, complainant Bhimsen who was rt having a torch, noticed the presence of some people and in the ou torch light, he saw the appellants and acquitted accused persons C Ramsukh Singh, Pushpendra Singh, Rampal Singh, Ramnarayan h Singh and Ashok Singh. Accused Narendra and Ramsuhavan were ig armed with guns and rest of the accused persons were having H lathis and acquitted accused persons were unarmed. On asking by accused Rambhagwan, deceased Arunandra replied that it was he. Soon thereafter, accused Narendra fired on Arunandra and caused gunshot injury, due to which, he fell down and then a second fire alleged to have been made by accused Ramsuhavan hit Babulal (PW-5) and Babulal also sustained gun shot injury but he ran towards the house of Ramniranjan. Bhimsen (PW-1) also ran away and thereafter, appellants / accused persons along with others also ran away by abusing. On hearing noise of firing, Ramniranjan Singh (PW-2) and other people gathered at the place of incident. Babulal (PW-5) informed Ramniranjan Singh that accused Ramkripal Singh and his companions fired on Arunandra sh and caused his death and he also sustained gun shot injury.
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3. Thereafter, Ramniranjan Singh (PW-2) informed ad the Police Station Semariya, district Rewa, on which, Police reached at the spot where on the information of Bhimsen (PW-1), Pr Dehati merg intimation Ex.P/6 and Dehati Nalishi Ex.P/1 were a recorded and thereafter, on the basis of Dehati Merg Intimation, hy in the police station Semaria, FIR Ex.P/8 and merg intimation ad Ex.P/9 were registered at Crime No.33/96 under Sections 147, 148, 149, 307 and 302 of IPC against the appellants / accused M persons. Injured Babulal (PW-5) was sent to the hospital for of treatment. Thereafter, inquest report Ex.P/2 was prepared and on 14.3.1996 two empty cartridges of 12 bore gun were found lying rt on the spot which were seized and in this regard, seizure memo ou Ex.P./11 was prepared and dead body of the deceased was sent C for postmortem examination to the Additional Health Centre, h Semaria where Dr. Prakash Singh Parihar (PW-8), Assistant ig Surgeon, conducted postmortem on the dead body of deceased H Arunandra and injured Babulal was also examined by Dr. A.K. Khare (PW-13).
4. Thereafter, during the investigation, all the accused persons including the appellants except Ramsuhavan were arrested and from the possession of appellant / accused Narendra S/o. Ganesh Singh one 12 bore gun was seized and in this regard, seizure memo Ex.P/7 was prepared. From the possession of the appellants / accused Ramkripal Singh, Gajadhar Singh, Virendra Singh, Brajendra Singh and Rambhagwan Singh, lathis were seized. Appellant / accused Ramsuhavan was absconded. A gun seized from the possession of the appellant / accused Narendra S/o. Ganesh Singh and the empty cartridges recovered from the sh spot were sent for report of ballistic expert to the FSL vide letter e Ex.P/27 dated 13.9.1996 and the FSL report is Ex.P/28, according ad to which, the empty cartridges were fired by the gun which was seized from the possession of the appellant / accused Narendra.
5. Pr After completion of the investigation, the police a filed a charge sheet against the appellants / accused before the hy Court having jurisdiction from where the case was committed to ad the court of Sessions Judge for trial. Appellant / accused Ramsuhavan surrendered before the court on 17.12.1996 and he M was also tried simultaneously along with other accused persons.
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6. The learned trial Court framed charge for the offence under Sections, 147, 148, 506-B/149, 307 in alternative rt 307/149 and 302 in alternative 302/149 of the IPC against the ou appellants / accused persons. However, the appellants / accused C including the acquitted accused persons abjured their guilt and h pleaded for trial. On behalf of the appellants / accused Narendra ig and Ramsuhavan, plea of alibi was taken and in their defense, H they adduced witnesses before the trial court.
7. Learned trial court after trial of the case acquitted accused Ramsukh Singh, Pushpendra Singh, Rampal Singh, Ramnarayan Singh and Ashok Singh on the ground that they were unarmed at the time of incident. Therefore, their presence at the time of incident sharing common object of the unlawful assembly has not been found proved beyond reasonable doubt. Although, the appellants / accused persons have been convicted and sentenced as mentioned earlier placing reliance on the evidence of Bhimsen (PW-1), Babulal Singh (PW-5), Narendra Singh S/o. Indrabhan Singh (PW-7), Bhole Singh (PW-9) and recovery of the empty cartridges from the spot and recovery of the gun from sh appellants -accused Narendra Singh S/o. Ganesh singh and e ballistic expert report Ex.P/28.
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8. Being aggrieved by the aforesaid impugned judgment of conviction and order of sentence, the appellants have Pr filed this appeal challenging the findings of the learned trial a court on the ground that all the witnesses are partisaned as it is hy admitted fact that they had strained relationship on account of ad criminal litigation and political rivalry with regard to election of Sarpanch. Their statements are full of material contradictions and M omissions. The incident had taken place in the dark night. The of evidence with regard to having torch by Bhimsen (PW-1) at the time of incident is not reliable as the alleged torch has not been rt seized. The FIR is also antedated. At the time of incident, ou appellant â accused Narendra was busy doing his job as C medical practitioner and appellant â accused Ramsuhavan h was ill and admitted in the hospital at Raipur. So far as other ig accused persons are concerned, they have been also implicated in H the incident on account of rivalry because if they had been present at the time of incident they would have also assaulted somebody by their weapons. Their overt act has not been proved. Hence, it cannot be said that they were the member of an unlawful assembly. The evidence with regard to recovery of gun from the possession of appellant / accused Narendra S/o. Ganesh Singh is also not reliable. The gun was not recovered from the possession of accused / appellant Narendra. It was recovered from an agriculture field which was an open place and the seized gun is a licensee gun of Chhangeshwar Singh (DW-10) who has stated that the gun was taken by the Investigating Officer Khurshid Khan (PW-11) on 13.3.1996 with cartridge under the sh pretext of investigation and the same was not returned to him. In e the aforesaid circumstances, the prosecution has failed to ad establish the charges against the appellants. Hence, in the view of the facts and circumstances of the case, prayer is made to Pr allow the appeal and set-aside the impugned judgment of a conviction and order of sentence.
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9. Learned PL appearing for the respondent / State ad has argued in support of the impugned judgment and stated that the finding of conviction and sentence of the learned trial court is M in accordance with law. Hence, the appeal be dismissed.
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10. Having considered the rival contentions of both the parties and on perusal of the record it is found that in this rt case there is no controversy that the deceased Arunandra had ou died on 13.3.1996 in the intervening night of 13/14.3.1996 in C village Kushwar near a garden situated on the way the house of h Ramniranjan Singh and Babulal on account of gunshot injury ig caused by accused Narendra S/o. Ganesh Singh and at the same H time, Babulal (PW-5) also received gunshot injury. These facts are also proved by the prosecution by the evidence of autopsy surgeon Dr. Prakash Singh Parihar (PW-6) who has proved his PM report Ex.P/10 and Dr. A.K. Khare (PW-13) who has proved MLC report Ex.P/30 of injured Babulal. Dr. Munshi Khan (PW-8) has proved the documents relating to the treatment of Babulal vide Bed Head ticket Ex.P/13. Therefore, there is no hesitation to hold that the deceased Arunandra Singh was killed by gunshot injury and at the same time, injured Babulal (PW-5) was also attempted to commit his murder by gunshot injury.
11. In this case appellant / accused Narendra is the main accused against whom injured witness Babulal (PW-5), sh Bhimsen (PW-1), Narendra Singh S/o. Indrabhan Singh (PW-7) e and Bhole Singh (PW-9) have categorically stated that in the light ad of torch which was having by Bhimsen (PW-1), they saw appellant / accused Narendra S/o. Ganesh Singh armed with gun and on Pr asking by accused Rambhagwan, deceased Arunandra replied a that it was he then appellant / accused Narendra fired by gun on hy Arunandra Singh and on receiving gunshot injury, he fell down.
ad Thereafter, a second fire was made which hit Babulal (PW-5) who ran away in injured condition. Khurshid Khan, Investigating M officer (PW-11) has stated that during the investigation on of 14.3.1996 from the place of incident two empty cartridges of 12 bore gun were found and the same was seized as per seizure rt memo Ex.P/11. This statement has been supported by Bhole Singh ou (PW-9) and Narendra Singh S/o. Indrabhan Singh (PW-7) as C Punch witness. Further, Khurshid Khan, Investigating officer h (PW-11) has also stated that on 9.6.1996 appellant / accused ig Narendra was followed by him with a view to arrest but he ran H away leaving 12 bore gun in the field. The gun was seized as per seizure memo Ex.P/7 in the presence of Bhole Singh (PW-9) and Dalpratap Singh (PW-3). Punch witness Dalpratap Singh (PW-3) has also stated that in front of him the gun was seized from the field of accused Narendra which he left running away to avoid his arrest.
12. According to the statement of Khurshid Khan (PW-11), two empty cartridges were seized from the spot and the seized gun was sent for FSL and FSL report is Ex.P/28. As per the FSL report Ex.P/28, the empty cartridges were fired by the seized gun. This fact establishes that at the spot both fires were made by the seized gun which was left by appellant / accused Narendra sh S/o. Ganesh Singh and against whom all the eye witnesses have e said that he fired on Arunandra Singh and the FSL report ad establishes that the both fires were made by one gun. Hence, it is also established that second fire on Babulal (PW-5) was also made Pr by appellant / accused Narendra Singh S/o. Ganesh Singh.
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13. In the statements of the aforesaid eye witnesses hy there is no material contradictions and omissions. Their ad statements are reliable and their testimony cannot be thrown out only on the ground that when the first time Ramniranjan Singh M (PW-2) asked Babulal (PW-5) about the incident, he did not of disclose the name of appellant / accused Narendra. At that time he was in injured condition and told Ramniranjan Singh that rt Ramkripal Singh and his companions killed Arunandra by firearm ou and the police reached on the spot without any delay and C recorded Dehati merg intimation Ex.P/6 and Dehati Nalishi h Ex.P./1. So far as non-compliance of Section 157 of Cr.P.C. is ig concerned, testimony of eye witnesses cannot be thrown out H merely on the ground that compliance of Section 157 of Cr.P.C. has not been proved. On behalf of appellant / accused Narendra, in defence Rambakhat Singh (DW-1) and Maniranjan Singh (DW-7) were produced to prove the fact that at the time of incident he was busy doing his job as medical practitioner and both the witnesses have stated that on the date of incident they were taking treatment from him. But on record there is no evidence regarding competence of the working as medical practitioner of appellant Narendra S/o. Ganesh Singh or having any license or permission with regard to operating dispensary and nursing services. Hence, the statements of the aforesaid defence witnesses cannot be relied upon. Prima facie it appears to be sh created evidence after thought.
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14. On behalf of appellant Narendra Singh S/o. Ganesh ad Singh, Chhangeshwar Singh (DW-10) and his daughter-in-law Dayawati (DW-11) and Ramprakash Singh (DW-12) have been Pr produced in defence with a view to prove the fact that the seized a gun was taken from Chhangeshwar Singh (DW-10) in the hy intervening night of 13/14th of March 1996 by the Investigating ad officer Khurshid Khan (PW-11) under the pretext of investigation M with live cartridge without giving any receipt and the Investigating officer had abused him and thereafter, he took of Chhangeshwar Singh forcibly to the police station and later on, rt after getting Rs.20,000/- from her daughter-in-law Dayawati ou (DW-11), he was released and the amount was managed by Dayawati (DW-11) from the Bank with the help of Ramprakash C (DW-12). These witnesses have narrated the aforesaid facts in h their statements and also produced Bank Pass-book Ex.D/19 ig showing withdrawal of Rs.20,000/- on 14.3.1996. Chhangeshwar H Singh (DW-10) has also stated that he also filed an application Ex.D/15 but the certified copy of the application Ex.D/15 has not been proved in accordance with law. It is a private document which was required to be proved by calling original document before the court below. Further, there is no endorsement about the presentation of the application before the court below. Merely on the basis of date mentioned in the application it cannot be ascertained that the application was filed on the date mentioned in the application. It may be possible that this application was filed on different date and deliberately in the application earlier date has been mentioned showing presentation of the application on the date of his choice as Chhangeshwar Singh (DW-10) has sh neither taken any step to make any complaint to the Higher e officer of the Police. The fact of taking bribe of Rs.20,000/- in lieu ad of his release has also not been mentioned in the application Ex.D/16. In these circumstances, the aforesaid evidence cannot be Pr said to be reliable one as admitted by Khurshid Khan (PW-11) a Investigating officer that the seized gun was the licensee gun of hy Chhangeshwar Singh (DW-10) and appellant / accused Narendra ad is close relative (nephew) and for giving his licensee gun to his nephew (appellant Narendra) unauthorizedly, Chhangeshwar M Singh (DW-10) was prosecuted for committing offence under of Section 30 of the Arms Act. Khurshid Khan (PW-11) Investigating officer has also stated that Chhangeshwar Singh (DW-10) made a rt complaint against him and also filed different affidavit. The ou concerned Magistrate rejected that complaint and the allegations C leveled by the witnesses against him with regard to seizure of the h gun from Chhangeshwar (DW-10) and falsely showing seizure of ig the gun from appellant / accused Narendra S/o. Ganesh Singh. H These facts and circumstances show that the defence is not believable.
15. In view of the aforesaid discussion it is found that the recovery of the gun and its uses for commission of the aforesaid incident / offence corroborates the evidence of the eye witnesses who have categorically stated that appellant / accused Narendra S/o. Ganesh Singh fired on the deceased Arunandra Singh and at the same time, Babulal was also injured by the second gun fire made by Narendra.
16. So far as other accused / appellants persons are concerned, none of the eye witnesses has said that at the time of incident, accused Ramsuhavan was also armed with gun. There is sh no circumstantial evidence to indicate the fact that at the time of e incident more than 2 gun shots were made. Similarly, none of the ad eye witnesses has stated that any other appellants / accused except Ramsuhavan had done any overt act. So far as accused Pr Ramkripal Singh is concerned, during the trial, all the eye a witnesses have stated that accused Ramkripal abused by saying to hy kill all. No one be left alive. But this fact has not been mentioned ad even in their police statements. Bhimsen (PW-1) has also not mentioned this fact in the Dehati Nalishi Ex.P/1. Therefore, the M alleged overt act attributed to accused Ramkripal is not of believable.
17. Learned trial court has acquitted other accused rt persons Ramsukh Singh, Pushpendra Singh, Rampal Singh, ou Ramnarayan Singh and Ashok Singh because they were unarmed C at the time of incident and appellant / accused persons Ramkripal h Singh, Gajadhar Singh, Virendra Singh, Brajendra Singh and ig Rambhagwan Singh have been convicted as they were armed with H lathis at the time of incident. In view of the facts and circumstances of the case, the conviction of the aforesaid accused persons only on the aforesaid basis cannot be said to be justifiable in absence of their overt act. All the aforesaid accused persons / appellants and acquitted accused persons at the time of incident were present on the spot and as per the evidence, they were coming from opposite direction and they had no previous knowledge about passing of the deceased and eye witnesses nearby the place of incident. Hence, it cannot be said that they had any pre-meditation. If they had shared any common object to commit murder or assault to any one at the time of incident with appellant / accused Narendra S/o. Ganesh Singh then definitely sh they would have assaulted or chased the deceased and the eye e witnesses but they had not done anything. The the HonâÂÂble ad Apex court in the cases of Kuldip Yadav and others Vs. State of Bihar (2011) 5 SCC 324 has held in paragraphs 35 to 41 Pr which are relevant and reproduced here as under :-
a âÂÂ35. Apart from conviction under hy Section 302, all the accused were also ad convicted under Section 149 IPC. The M learned counsel appearing for the appellants demonstrated that, first of all, of there was no common object, even if it is rt admitted that there was a common object, ou the same was not known to anybody, in such circumstances, punishment under C Section 149 IPC is not warranted. On the h other hand, the learned counsel ig appearing for the State submitted that H when the charge is under Section 149 IPC, the presence of the accused as part of unlawful assembly is sufficient for conviction, even if no overt act is imputed to them. In other words, according to him, mere presence of the accused as part of unlawful assembly is sufficient for conviction.
36. In order to understand the rival claim, it is useful to refer to Section 149 which reads as follows:
âÂÂ149.Every member of unlawful sh assembly guilty of offence committed e in prosecution of common ad object.âÂÂIf an offence is committed Pr by any member of an unlawful assembly in prosecution of the common object of a that assembly, or such as the members of hy that assembly knew to be likely to be ad committed in prosecution of that object, M every person who, at the time of the committing of that offence, is a member of of the same assembly, is guilty of that rt offence.â ou The above provision makes it clear that before convicting the accused with the C aid of Section 149 IPC, the Court must h give clear finding regarding nature of ig common object and that the object was H unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not sh only the nature of the common object but e also that the object was unlawful. Before ad recording a conviction under Section 149 IPC, the essential ingredients of Section Pr 141 IPC must be established. The above a principles have been reiterated in Bhudeo hy Mandal v. State of Bihar [(1981) 2 SCC ad 755 : 1981 SCC (Cri) 595] .
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37. In Ranbir Yadav v. State of Bihar [(1995) 4 SCC 392 : 1995 SCC (Cri) 728] of this Court highlighted that where there rt are party factions, there is a tendency to ou include the innocent with the guilty and it is extremely difficult for the court to C guard against such a danger. It was h pointed out that the only real safeguard ig against the risk of condemning the H innocent with the guilty lies in insisting on acceptable evidence which in some measure implicates such accused and satisfies the conscience of the court.
38. In Allauddin Mian v. State of Bihar [(1989) 3 SCC 5 : 1989 SCC (Cri) 490] this Court held: (SCC pp. 16-17, para 8) âÂÂ8. ⦠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 sh prosecution of the common object of that e assembly or the act done is such as the ad members of that assembly knew to be likely to be committed in prosecution of Pr the common object of that assembly.
a Under this section, therefore, every hy member of an unlawful assembly renders ad himself liable for the criminal act or acts of any other member or members of that M assembly provided the same is/are done of in prosecution of the common object or is/are such as every member of that rt assembly knew to be likely to be ou committed. This section creates a specific C offence and makes every member of the h unlawful assembly liable for the offence ig or offences committed in the course of the H 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. What is important in each case is to find out if the sh offence was committed to accomplish the e common object of the assembly or was ad one which the members knew to be likely to be committed. There must be a nexus Pr between the common object and the a offence committed and if it is found that hy the same was committed to accomplish ad the common object every member of the assembly will become liable for the same.
M Therefore, any offence committed by a of member of an unlawful assembly in prosecution of any one or more of the five rt objects mentioned in Section 141 will ou render his companions constituting the C unlawful assembly liable for that offence h with the aid of Section 149 IPC.â ig
39. It is not the intention of the H 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 prosecution of the common object. If the members of the assembly knew or were sh aware of the likelihood of a particular e offence being committed in prosecution of ad the common object, they would be liable for the same under Section 149 IPC.
Pr
40. In Rajendra Shantaram Todankar v.
a State of Maharashtra [(2003) 2 SCC 257 :
hy 2003 SCC (Cri) 506] this Court has once ad again explained Section 149 and held as M under: (SCC pp. 263-64, para 14) âÂÂ14. Section 149 of the Penal Code of provides that if an offence is committed rt by any member of an unlawful assembly ou in prosecution of the common object of that assembly, or such as the members of C that assembly knew to be likely to be h committed in prosecution of that object, ig every person who at the time of the H committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, sh nevertheless, the members of the e assembly had knowledge of likelihood of ad the commission of that offence in prosecution of the common object. The Pr common object may be commission of one a offence while there may be likelihood of hy the commission of yet another offence, ad the knowledge whereof is capable of being safely attributable to the members M of the unlawful assembly. In either case, of every member of the assembly would be vicariously liable for the offence actually rt committed by any other member of the ou assembly. A mere possibility of the C commission of the offence would not h necessarily enable the court to draw an ig inference that the likelihood of H commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual sh commission of the crime. Unless the e applicability of Section 149âÂÂeither ad clauseâÂÂis attracted and the court is convinced, on facts and in law, both, of Pr liability capable of being fastened a vicariously by reference to either clause hy of Section 149 IPC, merely because a ad criminal act was committed by a member of the assembly every other member M thereof would not necessarily become of liable for such criminal act. The inference as to likelihood of the commission of the rt given criminal act must be capable of ou being held to be within the knowledge of C another member of the assembly who is h sought to be held vicariously liable for the ig said criminal act.â H
41. In the earlier part of our order, we have analysed the evidence led in by the prosecution and also pointed out several infirmities therein. In our view, no overt act had been attributed to any other accused persons except Brahamdeo Yadav (A-1) towards the murder of Suresh Yadav. Had the other accused persons intended or shared the common object to kill Suresh Yadav, they must have used the weapons allegedly carried by them to facilitate the alleged common object of sh committing murder.â e
18. In view of the aforesaid legal proposition, merely ad the presence of the accused persons having arms at that time of incidence are not sufficient to hold that they were the member of Pr unlawful assembly sharing common object with accused Narendra a S/o. Ganesh Singh for committing murder of Arunandra or making hy attempt to commit murder of Babulal.
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19. Defence witnesses produced on behalf of appellant / accused Ramsuhavan with regard to his illness and to be M admitted in the hospital at Raipur at the time of incident is of concerned, learned trial court has analyzed this fact in paragraph 18 of its judgment and after giving cogent reasons found the same rt to be unbelievable. After scrutiny of the record, in view of this ou court, learned trial court has not committed any error coming to C the aforesaid conclusion.
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20. In view of the aforesaid discussion, the findings of ig the learned trial court with regard to conviction of the appellants H / accused in criminal appeal no.2558/2000 and appellant / accused Ramsuhavan Singh in criminal appeal no.2601/2000 regarding committing murder of the deceased Arunandra and making attempt to commit murder of Babulal (PW-5) are not sustainable. Hence, criminal appeal no.2558/2000 filed by the appellants Ramkripal Singh, Gajadhar Singh, Virendra Singh, Brajendra Singh and Rambhagwan Singh and criminal appeal no. 2601/2000 filed by the appellant Ramsuhavan Singh deserve to be and are allowed. They are acquitted of the offences under Sections 147, 148, 506-B/149, 302/149, 307 and 307/149 of IPC. They are on bail. Their bail bonds stand discharged.
21. So far as appellant / accused Narendra S/o.
sh Ganesh Singh is concerned, it is found that the prosecution has e succeeded to prove the fact that he committed murder of the ad deceased Arunandra Singh and also made attempt to commit murder of Babulal (PW-5). Hence, the appellant Narendra S/o.
Pr Ganesh Singh is convicted for the offence punishable under a Sections 302 and 307 of the IPC in place of 148, 506-B/149, 302 hy and 307/149 of the IPC and sentenced to undergo RI for life along ad with fine of Rs.1000/- and RI for 10 years along with fine of Rs.500/-; in default of payment of fine, he shall further suffer RI M for 6 months, respectively. Both the sentences shall run of concurrently.
22. Consequently, criminal appeal no.2572/2000 filed rt by appellant Narendra S/o. Ganesh Singh is disposed of with the ou aforesaid modification. As per the record, appellant Narendra is C in jail. He shall suffer entire jail sentence as directed above by h this Court.
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23. A copy of this order be sent to the trial court and H the jail authorities concerned for information and necessary action.
(J.K.MAHESHWARI) (J.P.GUPTA) JUDGE JUDGE Digitally signed by JITENDRA KUMAR PAROUHA Date: 2017.11.28 11:55:31 +05'30' JP/-
sh e ad Pr a hy ad M of rt ou C h ig H