Chattisgarh High Court
Arjun Singh & Another vs State Of Chhattisgarh on 9 November, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1103 of 2013
1. Yudhistthir Painkra S/o Trilochan Painkra, by occupation
Agriculturist, Aged about 18 years, R/o Sakin
Bhaisamunda, Chandagarh, Police Station Pathalgaon, Civil
and Revenue District Jashpur, Chhattisgarh.
2. Trilochan Painkra S/o Sadar Sai, Aged about 50 years, by
occupation Agriculturist, R/o Sakin Bhaisamunda,
Chandagarh Police Station Pathalgaon, Civil and Revenue
District Jashpur, Chhattisgarh.
3. Sainath Ram S/o Sadar Sai, Aged about 45 years, by
occupation Agriculturist, R/o Sakin Bhaisamunda,
Chandagarh Police Station Pathalgaon, Civil and Revenue
District Jashpur, Chhattisgarh.
4. Vijay Ram Painkra (died and deleted).
5. Murlidhar S/o Karam Sai, Aged about 42 years, by
occupation Agriculturist R/o Sakin Bhaisamunda,
Chandagarh Police Station Pathalgaon, Civil and Revenue
District Jashpur, Chhattisgarh.
---Appellants
Versus
State of Chhattisgarh through Police Station Pathalgaon,
Civil and Revenue District Jashpur, Chhattisgarh.
---Respondent
For Appellants 1 & 3 :- Mr. Akhilesh Kumar, Advocate
For Appellants 2 & 5 :- Mr. Sanjay Agrawal, Advocate
For Respondent/State :- Mr. Animesh Tiwari, Dy. A.G.
and Mr. Ishan Verma, P.L.
2
Criminal Appeal No. 515 of 2014
1. Bhuneshwar Painkra S/o Karam Say, Aged about 42 years,
Occupation Agriculturist.
2. Tejram (died and deleted).
3. Rohit S/o Murlidhar Painkra, Aged about 20 years,
Occupation Agriculturist.
4. Dilip Kumar S/o Tejram, Aged about 40 years, Occupation
Agriculturist.
All R/o Village Bhaisamunda, Chandagarh, Police Station
Pathalgaon, Civil and Revenue District Jashpur,
Chhattisgarh.
---Appellants
Versus
State of Chhattisgarh Acting through Officer-in-charge,
Police Station Pathalgaon, Civil and Revenue District
Jashpur, Chhattisgarh.
---Respondent
For Appellants :- Mr. Sanjay Agrawal, Advocate
For State :- Mr. Animesh Tiwari, Dy. A.G. and
Mr. Ishan Verma, P.L.
Criminal Appeal No. 199 of 2016
1. Arjun Singh S/o Trilochan Singh, Aged about 22 years.
2. Bhagirathi Painkra S/o Lodhiram, Aged about 50 years.
Both are Occupation Agriculturist, R/o Village
Bhaisamunda, Chandagarh, Thana Pathalgaon, Distt.
Jashpur, Civil and Revenue District Jashpur, Chhattisgarh.
---Appellants
3
Versus
State of Chhattisgarh through P.S. Pathalgaon, Distt.
Jashpur, Chhattisgarh.
---Respondent
For Appellants :- Mr. Sanjay Agrawal, Advocate
For State :- Mr. Animesh Tiwari, Dy. A.G. and
Mr. Ishan Verma, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
09/11/2022
Sanjay K. Agrawal, J.
1. Since all the three criminal appeals have arisen out of impugned judgment dated 08/08/2013 passed by learned Upper Sessions Judge, Kunkuri, District Jashpur in Sessions Trial No. 11/2012, therefore, they have been clubbed together, heard together and are being decided by this common judgment.
2. The appellants in Criminal Appeal No. 1103 of 2013 namely Yudhistthir Painkra (A-1), Trilochan Painkra (A-2), Sainath Ram (A-3), Vijay Ram Painkra (A-4)(now deceased) and Murlidhar (A-5); the appellants in Criminal Appeal No. 515 of 2014 namely Bhuneshwar Painkra (A-6), Tejram (A-9) (now deceased), Rohit (A-10) and Dilip Kumar (A-11); and the appellants in Criminal Appeal No. 199 of 2016 namely Arjun Singh (A-7) and Bhagirathi Painkra (A-8); all have 4 preferred these appeals under Section 374(2) of CrPC calling in question the validity, legality and correctness of the judgment impugned whereby each one of them has been convicted and sentenced as under :-
Conviction Sentence
U/s 148 of IPC R.I. for 1 year
U/s 302/149 of IPC Life imprisonment with fine of
Rs. 5000/- in default of
payment of fine, further R.I. for
1 year.
Prosecution case :-
3. Case of the prosecution, in brief, is that on 30/12/2011 at about 8 AM at Village Bhaisamunda, the appellants herein constituted an unlawful assembly armed with deadly weapons like tangi, tabli etc. with the common intention of causing death of Devnarayan and in furtherance of their said common intention, they used criminal force and assaulted Devnarayan due to which he suffered grievous injuries and succumbed to death.
4. Further case of the prosecution is that there was ongoing dispute between the appellants and the deceased with regard to land. Prior to the date of the incident, the villagers of Kawar Para used to make a barn and thrash their paddy on the land which belonged to the deceased, and he had already asked them not to use his land. On 30/12/2011 at about 8 AM, appellant Trilochan Painkra (A-2) was 5 thrashing paddy in the said barn upon which deceased Devnarayan, his wife Parwati Painkra (P.W.-1) and his son Govind (P.W.-2) reached the said spot and stopped the appellant Trilochan Painkra (A-2) and further asked him to remove his paddy. Thereafter, all the appellants/accused persons came there armed with deadly weapons like tangi, tabli and kalari and in furtherance of their common intention, they started assaulting Devnarayan. When deceased Devnarayan tried to run away, appellant/accused Yudhistthir (A-1) inflicted a blow on his right ear with kalari due to which deceased Devnarayan fell on the ground. Thereafter, all the appellants/accused persons assaulted him with tangi, tabli and kalari and inflicted grievous injuries all over his body. Sainath Ram (A-3) even took out his right eyeball and blood started oozing out due to which deceased Devnarayan succumbed to death.
5. The said incident was reported at Police Station Pathalgaon by Parvati Painkra (P.W.-1), wife of the deceased on the basis of which dehati merg intimation was registered vide Ex. P/1 which was later on registered as numberi merg intimation vide Ex. P/2 and first information report was lodged against the appellants for offences punishable under Sections 147, 148 and 302/149 of IPC vide Ex. P/53. Summons were issued to the witnesses under Section 175 of CrPC vide Ex. P/6 and in the presence of the witnesses, inquest was conducted vide Ex. P/5. Thereafter, the dead 6 body was subjected to postmortem which was conducted by Dr. J. Minj (P.W.-8) and as per the postmortem report (Ex. P/8) cause of death is due to head injury and damage of vital organs like brain, etc., mode of death is hemorrhage shock due to multiple injuries and the nature of death is homicidal.
6. Pursuant thereof, memorandum statement of Trilochan Painkra (A-2) was recorded vide Ex. P/21 and the following recovery was made from the appellants/accused persons :-
Appellant/Accused Exhibit Seizure
Trilochan Painkra P/22 Blood stained Tangi
(A-2)
Yudhistthir Painkra P/23 Blood stained Tabli
(A-1)
Sainath Ram P/24 Kalari
(A-3)
Vijay Ram Painkra P/25 Tangi
(A-4)
Murlidhar P/26 Tangi
(A-5)
Bhuneshwar Painkra P/27 Kalari
(A-6)
Arjun Singh P/28 Tangi
(A-7)
Bhagirathi Painkra P/29 Tangi
(A-8)
Tejram P/30 Tangi
(A-9)
Rohit P/31 Tangi
(A-10)
Dilip Kumar P/32 Tangi
(A-11)
7
7. The aforesaid seized articles were though sent for FSL vide Ex. P/48 but no FSL report has been brought on record to prove the blood found on the articles. After due investigation, all the eleven appellants/accused persons were charge-sheeted for offences punishable under Sections 148 and 302/149 of IPC which was placed before the Court of Judicial Magistrate First Class Pathalgaon and it was then committed to the Court of Sessions for hearing and disposal in accordance with law. The appellants/accused persons abjured their guilt and entered into defence.
8. In order to bring home the offence, prosecution examined as many as 17 witnesses and exhibited 53 documents on record. The statements of the accused persons were recorded wherein they denied guilt, they did not examine any witness, however, exhibited the statement of Parwati Painkra under Section 161 of CrPC as D/1 in their defence.
9. Learned trial Court, after appreciating the oral and documentary evidence on record, convicted all the appellants/accused persons for offences punishable under Sections 148 and 302/149 of IPC and sentenced them as aforesaid against which these three appeals had been preferred by the 11 appellants, however, during the pendency of the appeals, two appellants namely Vijay Ram Painkra (A-4) and Tejram (A-9) died, as such, the appeals so far as it relates to them have been dismissed as abated. 8 Submissions on behalf of the parties :-
10. Mr. Sanjay Agrawal, learned counsel appearing for appellants/accused persons (A-2, A-5 to A-8, A-10 and A-
11) as well as Mr. Akhilesh Kumar, learned counsel appearing for appellants/accused persons (A-1 and A/3), would submit that the trial Court is absolutely unjustified in convicting the appellants/accused persons for offence punishable under Section 302 of IPC with the aid of Section 149 of IPC relying upon the statements of Parwati Painkra (A-1) and Govind (A-2), who are said to be eye-witnesses, as first of all they are relative witnesses of the deceased, therefore, their testimonies cannot be trustworthy and secondly, as per the statement of Sukhwaro Bai (P.W.-3), she has admitted that when the incident took place, Parwati Painkra (P.W.-1) as well as Govind (P.W.-2), both were inside the house, as such, they could not have witnessed the incident. They would further submit that so far as seizure of blood stained tangi from Trilochan (A-2) vide Ex. P/22 is concerned, both the seizure witnesses namely Padum Sai (P.W.-12) and Dilsai (P.W.-13) have turned hostile and have not supported the case of the prosecution and moreover, the articles seized from the appellants/accused persons were though sent for FSL, but no FSL report has been brought on record by the prosecution to connect the appellants/accused persons with the crime in question. They would also submit that 9 prosecution has miserably failed to prove that the appellants/accused persons constituted unlawful assembly in terms of Section 141 of IPC, as such, the conviction of the appellants/accused persons for offence punishable under Section 302 of IPC with the aid of Section 149 of IPC is liable to be set aside.
11. Mr. Animesh Tiwari and Mr. Ishan Verma, learned State counsel, would support the impugned judgment and submit that the trial Court has rightly convicted the appellants/accused persons for the aforesaid offences relying upon the statements of eye-witnesses Parwati Painkra (A-1) and Govind (A-2), as such, the instant appeals deserve to be dismissed.
12. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
13. The first question for consideration is whether the death of deceased Devnarayan was homicidal in nature, which has been answered in affirmative by the trial Court relying upon the expert medical opinion of Dr. J. Minj (P.W.-8) as well as the postmortem report (Ex. P/8) in which cause of death is said to be due to head injury and damage of vital organs like brain, etc., mode of death is hemorrhage shock due to multiple injuries and the nature of death is homicidal. A careful perusal of the statement of Dr. J. Minj (P.W.-8) would show that there were 11 injuries on the body of the 10 deceased out of which 10 injuries were incised wounds which would have been caused by a sharp object and his right eye-ball had also been removed from the socket. As such, relying upon the postmortem report (Ex. P/8) as well as the statement of Dr. J. Minj (P.W.-8) and looking to the injuries suffered by the deceased, it can safely be inferred that the death of deceased was indeed homicidal in nature, more so, when it has also not been refuted by learned counsel for the appellants. In that view of the matter, we are of the considered opinion that learned trial Court has rightly held that death of deceased Devnarayan was homicidal in nature.
14. The next question that arises for consideration is whether the appellants/accused persons (A-1 to A-11) constituted unlawful assembly in terms of Section 141 of IPC and in furtherance of their common intention, they assaulted the deceased with dangerous and deadly weapons and murdered him ?
15. In order to answer this question, it would be relevant to notice Section 141 of IPC, which defines "unlawful assembly" 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)-- xxxx;
(Second)-- xxx;
(Third)-- To commit any mischief or criminal trespass, or other offence; or (Fourth)-- xxx;11
(Fifth)-- xxxx."
16. Section 141 of IPC states that an "unlawful assembly" is an assembly of five or more persons, if their common object is to commit mischief, criminal trespass or any other offence. The Constitution Bench of the Supreme Court in the matter of Mohan Singh and another vs. State of Punjab 1 held that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. In other words, it is one of the essential condition of an unlawful assembly that its membership must be five or more. The assembly must consist of five or more persons having one of the five specified objects as their "common object". Further, their Lordships while dealing with as to the applicability of Section 149 of IPC in such case held that it is necessary to bear in mind the several categories of cases which come before the Criminal Courts for their decision. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves those charge against all of them it is very clear that Section 149 IPC can be invoked.
17. Since all the convicted accused persons/appellants herein (A-1 to A-11) have been convicted for offence punishable under Section 302 with the aid of Section 149 of IPC, it is 1AIR 1963 SC 174 12 relevant to notice Section 149 of IPC here, which reads 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."
18. A careful perusal of the aforesaid provision would show that following ingredients are required to be established in order to convict an accused person for offence under Section 149 of IPC: (i) there must be an unlawful assembly; (ii) Commission of an offence by any member of an unlawful assembly and (iii) Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed.
19. Section 149 is applicable only in case of members of unlawful assembly i.e. assembly of 05 or more persons the common object of whom is any of the objects specified in Section 141 of IPC. In case of such an assembly every person who is member of the assembly, is guilty of every offence committed by any member of the assembly (1) if such offence is committed in prosecution of the common object of such assembly or (2) if the offence is such as the members knew likely to be committed in prosecution of the 13 common object, provided the person was a member of such assembly when that offence was committed. Thus, the liability under this provision attaches to every member of the assembly even when such member had nothing to do with the actual commission of the offence, and even a knowledge about the likelihood of the offence being committed in prosecution of the common object of the assembly is sufficient to impose the liability for the offence when committed by any member of the assembly.
20. The first part of Section 149 of IPC speaks of the commission of an offence in prosecution of the common object of the assembly, whereas the second part takes within its fold knowledge of likelihood of the commission of the offence in prosecution of the common object. The knowledge contemplated by the second part does not mean knowledge of mere possibility of the commission of the offence. The commission of offence must be reasonably likely. Such knowledge may be collected from the nature of the assembly, its common object, the kind of arms which its members bear and their behaviour at or before the actual conflict (See: State of Assam vs. Darga Dewani2).
21. The Supreme Court in the matter of Rajendra Shantaram Todankar vs. State of Maharashtra3 explained the scope of Section 149 and held in Para-14 as under:
"14. Section 149 of the Indian Penal Code provides 2 1970 (3) SCC 236 [Para-8] 3 (2003) 2 SCC 257 14 that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. 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 nevertheless the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the Court to draw an inference that the likelihood of 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 commission of the crime. Unless the applicability of Section 149 either clause is attracted and the Court is convinced, on facts and in law both, of liability capable of being fastened vicariously by reference to either clause of Section 149 of IPC merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act."15
22. Similarly, in the matter of Joseph v. State, represented by Inspector of Police4 their Lordships of Supreme Court defined the scope of Section 149 of IPC in two parts in Para- 11.1 & 11.2, which reads as under:
"11.1The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member.
11.2 The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section149, if it can be shown that the offence was such as the members knew was likely to be committed."
23. Section 149 of IPC declares the principle of vicarious criminal liability. Upon an offence being committed by any member of an unlawful assembly in prosecution of the common object, every person, who at the time of the offence being committed is a member of such assembly is guilty of such offence. Equally, in the second part of Section 149, the law-makers have provided that upon an offence being committed by any member of the unlawful assembly which was such that members of that assembly (unlawful assembly), knew to be likely to be committed in prosecution of that object, every member of the assembly, though he may not have committed the offence, is rendered guilty of 4 (2018) 12 SCC 283 16 the offence (See: Somasundaram @ Somu vs. State represented by the Deputy Commissioner of Police5).
24. It is well settled that since Section 149 IPC 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 and there must be a nexus between the common object and the offence committed. The Supreme Court in the matter of Allauddin Mian vs. State of Bihar 6 has held in Para-08 as under:
"8. ..... 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 con- structive 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 associ- ates in carrying out the common object of the assembly. What is important in each case is to find out if the 5 (2020) 7 SCC 722 6 (1981) 2 SCC 755 17 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."
25. The aforesaid principle of law laid down by their Lordships of Supreme Court in the matter of Allauddin Mian v. State of Bihar7 has been followed in the matter of Kuldip Yadav and others v. State of Bihar8.
26. In the matter of Vijay Pandurang Thakre and others v. State of Maharashtra9 the Supreme Court has reiterated the expression "in prosecution of the common object"
occurring in Section 149 IPC, postulates that it must be one which has been done with a view to accomplish the common object attributed to the members of the unlawful assembly.
Their Lordships of Supreme Court further held that this expression is to be strictly construed as equivalent to in order to attain common object. It must be immediately connected with common object by virtue of nature of object and held in Para-17 as under:
"17. In the facts of the present case, we find that common object of the assembly, even if it is presumed that there was an unlawful assembly, 7 (1981) 2 SCC 755 8 (2011) 5 SCC 324 9 (2017) 4 SCC 377 18 has not been proved. The expression 'in prosecution of the common object' occurring in this Section postulates that the act must be one which have been done with a view to accomplish the common object attributed to the members of the unlawful assembly. This expression is to be strictly construed as equivalent to in order to attain common object. It must be immediately connected with common object by virtue of nature of object. In the instant case, even the evidence is not laid on this aspect. As pointed out above, the courts below were influenced by the fact that one of the injuries on the person of Ashok was on his head which became the cause of death and from this, common object is inferred."
27. Apart from the above, Section 149 creates a specific offence.
So, there should be a clear finding as to what was the object of the unlawful assembly and if so whether the object was unlawful, that is, to commit murder, grievous hurt or simple hurt (See: Bhudeo Mandal vs. State of Bihar10). It is now well settled law that whenever a Court convicts any person for an offence with the aid of section 149 of IPC, a clear finding regarding a common object of the unlawful assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. (See: Irengbam Labej Singh vs. State of Manipur11).
28. The aforesaid principle laid down has been followed by the Supreme Court in the matter of Kuldip Yadav (supra) in following words:
"36. ..... The above provision makes it clear that before convicting accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the 10 (1981) 2 SCC 755 11 1993 Suppl. (3) SCC 653 19 object was 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 only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, essential ingredients of Section 141 IPC must be established. The above principles have been reiterated in Bhudeo Mandal and Others vs. State of Bihar (1981) 2 SCC 755.
**** **** ****
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 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."
29. The Supreme Court in the matter of Sikhar Behera and other vs. State of Orissa12 while deciding the question of common object, their Lordships have held that the nature of participation, the weapon used and the injuries caused would be relevant to infer the nature of common object.
30. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that in order to invoke 12 1994 Supp (1) SCC 493 20 Section 149 of IPC, it is required to consider whether the appellants/accused persons (A-1 to A-11) had constituted unlawful assembly in terms of Section 141 of IPC and they had the common object of causing hurt to the deceased and the act of the appellants/accused persons (A-1 to A-11) was done to accomplish the said common object of the unlawful assembly and it was within their knowledge that the offence is likely to be committed in prosecution of their said common object and in furtherance thereof, they committed the murder of deceased Devnarayan. Admittedly, charges were framed by the trial Court against the appellants/accused persons for offences punishable under Sections 148 and 302/149 of IPC and the trial Court, after appreciating the oral and documentary evidence on record, recorded an affirmative finding with regard to the constitution of unlawful assembly by the appellants/accused persons (A-1 to A-11) and thereby committing the murder of the deceased in furtherance of their common object and convicted them for the aforesaid offences. In order to prove constitution of unlawful assembly against the appellants/accused persons (A-1 to A-11), three eye-witnesses have been examined on behalf of the prosecution. We shall consider the testimonies of each of them one-by-one.
31. Parwati Painkra (P.W.-1), wife of the deceased, in her statement before the Court, has firstly stated that in 21 paragraph 2 that all the appellants/accused persons assaulted the deceased with deadly weapons and thereafter, they absconded from the spot, however, in her cross- examination, she has stated in paragraph 34 that at the time of the incident, she was at her house and she knows about the incident because her son Govind (P.W.-2) told her so. It is also pertinent to mention that as per the statement of Govind (P.W.-2), the place of the incident is about 500 meters away from the house of the deceased. As such, Parwati Painkra (P.W.-1) cannot be said to be an eye- witness, which has also been recorded by the trial Court in paragraph 18 of the impugned judgment stating that it is possible that Parwati Painkra (P.W.-1) has not seen the entire incident. Therefore, the statement of Parwati Painkra (P.W.-1) stating that all the appellants/accused persons (A- 1 to A-11) were present on the spot at the time of the incident and they had constituted an unlawful assembly in terms of Section 141 of IPC cannot be accepted.
32. Sukwaro Bai (P.W.-3), mother of the deceased, has clearly stated that at the time of the incident, she was inside the house and when she went to the spot, she only saw the body of the deceased lying on the ground and she has clearly admitted that she has not seen the incident. Moreover, in her cross-examination, she has stated that at the time of the incident, her daughter-in-law Parwati Painkra (P.W.-1) as well as her grandson Govind (P.W.-2), 22 both were also inside the house.
33. Govind (P.W.-2), son of the deceased, is a child witness aged about 11 years. In paragraph 1 of his statement, he has clearly stated that though he knew all the 11 appellants/accused persons but he did not know the names of some of them. In paragraph 3, he has stated that Yuddhistthir (A-1), who was armed with tangi, had firstly started assaulting the deceased and Sainath (A-3) had taken out his eye-ball with kalari. Even in paragraph 11, he has only named Yudhistthir (A-1) as the assailant. As such, from the close scrutiny of the testimonies of these three eye- witnesses, it is evident that only Yudhistthir (A-1) and Sainath (A-3) have been named to be the assailants of the deceased and no other appellant/accused has been named as such whereas in order to constitute unlawful assembly in terms of Section 141 of IPC, assembly of 5 or more persons is required whose common object is to commit an offence. Therefore, prosecution has failed to establish that appellants/accused persons had constituted unlawful assembly and in furtherance of their common intention, they committed the murder of the deceased. As such, the trial Court has erred in convicting the appellants/accused persons with the aid of Section 149 of IPC. Now, we shall consider the case of each of them separately. 23 Case of Trilochan (A-2) :-
34. Furthermore, though blood stained tangi was seized from Trilochan (A-2) vide Ex. P/22 pursuant to his memorandum statement vide Ex. P/21, but both the seizure witnesses namely Padum Sai (P.W.-12) and Dilsai (P.W.-13) have turned hostile and have not supported the case of the prosecution and even though blood was found on the tangi but no FSL report has been brought on record to connect the said appellant/accused with the crime in question. As such, the trial Court has erred in convicting him for offences punishable under Sections 148 and 302/149 of IPC. We hereby set aside his conviction and sentence for the aforesaid offences.
Case of appellants/accused persons namely Vijay Ram Painkra (A-4), Murlidhar (A-5), Bhuneshwar (A-6), Arjun Singh (A-7), Bhagirathi (A-8), Rohit (A-10) and Dilip Kumar (A-11) :-
35. After going through the entire evidence available on record with utmost circumspection and after a thorough legal analysis, we are of the considered opinion that the trial Court has also erred in convicting the appellants/accused persons namely Vijay Ram Painkra (A-4), Murlidhar (A-5), Bhuneshwar (A-6), Arjun Singh (A-7), Bhagirathi (A-8), Rohit (A-10) and Dilip Kumar (A-11) for the offences punishable under Sections 148 and 302 of IPC particularly when none of these appellants have been identified by any 24 of the eye-witnesses and though seizure of some weapons have been made from them, but since they were not stained with blood, they were not even sent for FSL and the seizure witnesses have also turned hostile and have not supported the case of the prosecution.
36. Even otherwise, in the matter of Nagarjit Ahir v. State of Bihar13 their Lordships of the Supreme Court applied the rule of caution and in the facts and circumstance of the case held that "it may be safe to convict only those persons against whom overt act is alleged with the aid to Section 149 IPC lest some innocent spectators may get involved". Thereafter, all these judgments in the matters of Musa Khan (supra) and Nagarjit Ahir (supra) have been followed by their Lordships in the matter of Pandurang Chandrakant Mhatre and others v. State of Maharashtra14 and the accused persons therein against whom overt act was not there, applied the rule of caution and held in paragraph 74 as under :-
"74. In a case such as the present one, although having regard to facts, the number of participants could not be less than five, it is better to apply rule of caution and act on the side of safety and convict only A-2, A-3 and A-12 under Section 302 read with Section 149 I.P.C whose presence as members of party of assailants is consistently mentioned and their overt acts in chasing and assaulting the deceased are clearly proved. A-4, A-5, A-6, A-10 and A-11 get the benefit of doubt with regard to offence under Section 302 read with Section 149 I.P.C. since evidence against them in chasing and assaulting the deceased is not consistent. However, all the eight 13 (2005) 10 SCC 369 14 (2009) 10 SCC 773 25 appellants are guilty of the offences punishable under Section 148 and Section 326 read with Section 149, I.P.C. This is proved beyond doubt and the High Court cannot be said to have erred in holding so."
37. As such, in any case, it has been established that these appellants/accused persons were not members of unlawful assembly and even if, they were held to be members of unlawful assembly, rule of caution would apply and in view of the aforesaid decisions rendered by the Supreme Court, it would be unsafe to convict them for offences punishable under Sections 148 and 302/149 of IPC. We hereby set aside their conviction and sentence as recorded by the trial Court.
Case of appellants/accused persons namely Yudhistthir (A-1) and Sainath (A-3) :-
38. Govind (P.W.-2), son of the deceased, in his statement before the Court, has clearly named these appellants/accused persons and stated that Yudhistthir (A-
1) who was armed with tangi firstly started assaulting his father on his neck and thereafter, Sainath (A-3) took out his eye-ball from the socket with a kalari. In cross-examination, when it was suggested to him that his father fell from a ridge and thereby suffered injuries, Govind (P.W.-2) refused and stated himself that when Yudhistthir (A-1) inflicted a blow on his father's head with a tangi, he fell on the ground and when an injury was inflicted on his neck, he 26 succumbed to death. Furthermore, from the statement of Dr. J. Minj (P.W.-8), it is evident that at the time of postmortem, he found as many as 11 injuries over the body of the deceased out of which, 10 injuries were incised wounds caused by sharp edged weapon. As stated by him, injuries No. 1, 6, 9 and 10 were inflicted in his head and injuries No. 2 and 4 were inflicted on his neck. As such, the statement of Govind (P.W.-2) is also corroborated by medical evidence of Dr. J.Minj (P.W.-8).
39. At this stage, it is argued by learned counsel for the appellants that from the possession of Yudhistthir (A-2), recovery of tabli has been made whereas the prosecution witnesses have stated that he assaulted the deceased with tangi.
40. True it is that recovery of tabli has been made from the possession of the appellant/accused Yudhistthir (A-2), however, it is pertinent to note that both tabli as well as tangi are sharp edged weapons and moreover, eye-witness Govind (P.W.-2) is only aged about 11 years and it cannot be expected from him to differentiated between a tabli and a tangi when both of them are sharp edged weapons particularly when his own father (deceased) was being assaulted by appellant/accused Yudhistthir (A-1) as he may be in a state of anger and shock. As such, the testimony of Govind (A-2) cannot be discarded merely because he made a mistake in differentiating between a tabli and a tangi and 27 on that basis, it cannot be held that appellant/accused Yudhistthir (A-1) was not involved in the crime in question.
41. So far as appellant/accused Sainath (A-3) is concerned, Govind (P.W.-2), in his statement before the Court, has clearly stated that he scraped out his father's eye-ball from the socket with a kalari, which has also been seized from his possession vide Ex. P/24. As such, on the testimony of Govind (P.W.-2) corroborated by the statement of Dr. J. Minj (P.W.-8) and partly supported by the statement of Parwati Painkra (P.W.-1), it is held that appellants/accused persons namely Yudhistthir (A-1) as well as Sainath (A-3), both are the perpetrators of the crime in question and they assaulted the deceased with deadly weapons due to which he suffered grievous injuries and succumbed to death. As such, though their conviction for offences with the aid of Sections 148 and 149 are hereby set aside, however, they are convicted for offence punishable under Section 302 read with Section 34 of IPC in light of the decision rendered by the Supreme Court in the matter of Rohtas and another v. State of Haryana15 wherein the question, whether a charge framed with the assistance of Section 149 of the IPC can later be converted to one read with Section 34 of the IPC or even a simplicitor individual crime, was considered and their Lordships considered and reviewed all the earlier case laws on the point including the Constitution Bench decision in 15 AIR 2021 SC 114 28 the matter of Willie (William) Slaney v. State of M.P.16 and relying upon the decision in the matter of Nallabothu Venkaiah v. State of Andhra Pradesh 17 holding that "the conviction under Section 302 simpliciter without aid of Section 149 is permissible if overt act is attributed to the accused resulting in fatal injury which is independently sufficient in the ordinary course of nature to cause the death of the deceased and is supported by medical evidence" and observed in paragraph 21 as under :-
"21. This position of law has finally been summed up very succinctly in Nallabothu Venkaiah v. State of Andhra Pradesh:
"24. Analytical reading of catena of decisions of the Court, the following broad proposition of law clearly emerges; (a) the conviction under Section 302 simpliciter without aid of Section 149 is permissible if overt act is attributed to the accused resulting in the fatal injury which is independently sufficient in the ordinary course of nature to cause the death of the deceased and is supported by medical evidence; (b) wrongful acquittal recorded by the High Court, even if it stood, that circumstance would not impede the conviction of the appellant under Section 302 r/w Section 149 I.P.C. (c) charge under Section 302 with the aid of Section 149 could be converted into one under Section 302 r/w Section 34 if the criminal act done by several persons less than five in number in furtherance of common intention is proved."
Conclusion :-
42. In view of the aforesaid legal analysis, appellants/accused persons namely Yudhistthir (A-1) and Sainath (A-3) are convicted for offence punishable under Section 302 r/w 34 of IPC and the sentence awarded by the trial Court for this offence is hereby maintained. All the other
16 AIR 1956 SC 116 17 (2002) 7 SCC 117 29 appellants/accused persons namely Trilochan (A-2), Murlidhar (A-5), Bhuneshwar (A-6), Arjun Singh (A-7), Bhagirathi (A-8), Rohit (A-10) and Dilip Kumar (A-11) are acquitted of the charges punishable under Sections 148, 302/149 of IPC. They be released forthwith if their detention is not required in any other case.
43. Accordingly, Criminal Appeals No. 515/2014 and 199/2016 stand allowed and Criminal Appeal No. 1103/2013 stands allowed so far as it relates to Trilochan (A-2) and Murlidhar (A-5) whereas it stands dismissed so far as it relates to Yudhistthir (A-1) and Sainath (A-3).
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Harneet