Madhya Pradesh High Court
Gangaram And Others vs State Of M.P. on 24 October, 2017
Bench: Sanjay Yadav, S.K. Awasthi
1 Cra.457.1999
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE S.K. AWASTHI
CRIMINAL APPEAL 457 OF 1999
Gangaram and others
Vs.
State of Madhya Pradesh
*******************
Shri V.K. Saxena, learned Senior Counsel with Shri T.C.
Bansal and Shri Aditya Singh, learned counsel for the
appellants.
Shri Raghvendra Dixit, learned Public Prosecutor, for
respondent/State.
******************
Whether approved for reporting : Yes/No
JUDGMENT
(24/10/2017) Per Justice Sanjay Yadav:
This appeal is directed against the order of conviction and sentence recorded in Sessions Trial No.346/1995 on 11.08.1999 by the Additional Sessions Judge, Chachauda Camp Guna (M.P.); whereby the appellants have been convicted having been found guilty of offence under Sections 147, 302/149, 325/149, 324/149, 323/149, 323/149, 323/149, 323/149, 323/149,
2 Cra.457.1999 323/149 IPC and sentenced respectively for one year's RI and a fine of Rs.500/-, rigorous life imprisonment and a fine of Rs.5,000/-, three years' RI and a fine of Rs.3,000/-, Two Years' RI and a fine of Rs.1,000/-, six months' RI and a fine of Rs.500/- on each of six counts and the default sentence.
(2) That crime for offence punishable under Sections 307, 324, 325, 147, 148, 149 IPC was registered vide Crime No.48/95 (Ex.P-3) against appellants on the complaint of one Solal S/o Girdhari (PW-10) at Police Station Kumbhraj on 19.08.1995 that in the morning fight had taken place between Shankarlal, Babulal Lodha with Sarpanch Shriram's Son Ramnarayan. In the evening at sunset Shriram Sarpanch (A-20), Biram (A-
18), Devlal (A-5), Gyarasiram (A-6), Shrilal (A-7), Gangaram (A-1), Kamarlal (A-8), Ramesh (A-9), Nathulal (A-10), Laxminarayan (A-17), Solal (A-11), Kanhaiyalal, Moolchand (A-19), Navneet Ram (A-3), Daula (A-12), Bhima (A-13), Hiralal (A-21), Dhurya (A-4), Bansilal (A-2), Hazari (A-14), Parmanand (A-16), Bala Bux (A-15), Ram Narayan Lodha armed with farsi, lathi, ballam, spear came there and A-1, A-2, A-19, A-3, A-4 bet Shankarlal (PW-11) and Babu Lodha (since deceased). Hearing the noises Sushilabai (PW-5) daughter of Amarlal gave a call that Babulal and Shankarlal are killed. On this, Solal (PW-10), Babulal S/o Girdhari (PW-6), Bala Bux (PW-7), Pana Bai (PW-4), Shantibai (PW-2), Rodibai (PW-1), Kesharbai (PW-9), Gendilal, Panchulal (PW-8) came to intervene, they too were beaten by Shriram A-20, Devlal A-5, Gyarasi A-6, Shrilal A-7, Kamarlal A-8, Ramesh @ Barya A-9, Nathulal A-10, Sholal A-11, Kanhaiyalal, 3 Cra.457.1999 Daula @ Daulatram A-12, Bhima A-13, Hira Lal A-21, Hazari A-14, Parmanand A-16, Bala Bux A-15, Ramnarayan, Laxmi Narayan A-17 and Viram @ Virma A- 18 by lathis, farsi, ballam and spear with an intention to kill causing multiple injuries.
(3) The injured Babulal S/o Prabhulal was escorted in unconscious state to PHC, Kumbhraj where he was examined by Dr. A.D. Vinchurkar (PW-13) who vide injury report (Ex.P-56) found following five injuries on his person:
"1. Lacerated wound y shaped, full scalp thickness deep 8cmx2cmx1.5cm over left parietal bone area of scalp head; 1/3 rd of left iliac crest Hard & Blunt object with surface may be triangular;
2. A contused abrasion 1 cm x 0.5 cm area back of right elbow joint; hard and blunt object rough surface;
3. A contused abrasion 2 cm x 1 cm area below left knee upper 1/3rd front area; hard and blunt object rough surface;
4. A contusion 8cmx3cm obliquely placed at front side of chest wall; hard and blunt object like lathi;
5. Multiple contusion sizing 12cmx 3 cm over back of body; hard and blunt object like lathi."
(4) The injured Babulal S/o Prabhulal was referred to District Hospital, Guna where he died on 20.08.1995 which led to adding of Section 302 of IPC on 20.08.1995.
4 Cra.457.1999 (5) Autopsy was conducted by Dr. Hariom Sharma (PW-
3). The post-mortem report is Ex.P-1. That following injuries were found on the body of the deceased:-
"1. Stitch wound present on left parietal region at middle, size 3-1/2";
2. Contusion present on left parietal bone at middle 3"x2";
3. Contusion present on left parietal region slightly Ant. 3"x 1-1/2";
4. Contusion on middle of chest L size 3"x1", traverse in size;
5. Abrasion on left knee size 1" x 1"; 6 Contusion on right scapular region 2"x1/2"
(6) As per opinion of Dr. Hariom Sharma (PW-3), the injuries were ante-mortem and the cause of death was due to coma as a result of head injury.
(7) Investigation was set in motion. Blood stained and simple soil was collected and seized vide Ex.P-27, Kurtas, Bandis, lathis, Ballam, Farsis, sword were seized vide Ex.P-28 to Ex.P-52. The injured persons, viz. Babulal S/o Girdharilal, Shankarlal, Babulal S/o Prabhulal (the deceased), Kesharbai, Bala Bux, Shantibai, Panabai, Rodibai, Solal were medically examined vide MLC Ex.P- 54 to Ex.P-62. After completion of investigation, the prosecution filed the charge-sheet. The case was committed for trial. Charges under Sections 302, 307, 324, 147, 148, 149 IPC were framed. Appellants abjured their guilt and pleaded that they were falsely implicated. Kanhaiyalal and Ramnarayan, the co-accused were 5 Cra.457.1999 separately tried by the Juvenile Court.
(8) Appellants/accused abjured their guilt. They took a plea that they have falsely been implicated in the present matter. They have examined Shrilal (DW-1) as defence witness.
(9) Prosecution examined Rodibai (PW-1), Shantibai (PW-2), Panabai (PW-4), Sushilabai (PW-5), Babulal S/o Girdharilal (PW-6), Bala Bux S/o Girdhari (PW-7), Panchulal (PW-8), Kesharbai (PW-9), Solal (PW-10) and Shankarlal S/o Balmukund (PW-11) as the witnesses of the incident. The doctor i.e. A.D. Vinchurkar who examined the injuries of the deceased and other injured persons was examined as (PW-13) and Dr. Hariom Sharma who performed autopsy was examined as (PW-
3).
(10) The trial court placing reliance on the testimony of prosecution witnesses convicted and sentenced the appellants. The trial court overruled the defence contention that though these prosecution witnesses have made omnibus statements as to accused persons causing multiple injuries on the body of the deceased and other injured persons with sharp edged and pointed weapons such as farsa, ballam and talwar; however, these ocular evidence do not get corroborated with the medical evidence as none of the persons said to be injured and even the deceased was having any injury caused by sharp edged weapon or of ballam. The trial court also overruled the contentions that none of the accused was sharing common object to cause murder of the deceased.
6 Cra.457.1999 The trial court found that each of the accused forming a group armed with the deadly weapon had assaulted Babulal and Shankarlal (PW-11) and none of them refrained themselves from not causing the injuries on the deceased and other persons who had come to rescue the deceased and Shankarlal (PW-11) exhorting to kill. These findings led the trial court held the accused persons guilty of causing murder of Babulal S/o Prabhulal and grievous injuries to others viz. Babulal (PW-6), Shankarlal (PW-11), Kesharbai (PW-9), Bala Bux (PW-7), Shanti Bai (PW-2), Panabai (PW-4), Rodibai (PW-
1) and Solal (PW-10), by sharing common object.
(11) The verdict has been criticized on the ground that the trial court ignored the vital facts that as there were no injuries caused to the deceased and other injured persons by sharp-edged weapon as established by the medical evidence and that there was exaggeration in the evidence led by the prosecution, it is urged that, the trial court ought to have been slow in arriving at a finding that the assailants i.e. appellants were armed with deadly weapons. Had it been so, it is contended, each one or any of the victims could have sustained injuries from such weapons. It is urged that as none of the assailants were shown to have carried sharp edged weapons, the drawing of conclusion of sharing common object is inferential and not based on any material evidence. It is urged that even if the prosecution witnesses are to be believed, the prosecution could be said to have made out a case of lesser offences for which each of the appellants has undergone substantial sentence.
7 Cra.457.1999 (12) The State counsel has supported the conviction and the sentence. It is urged that there exists a credible ocular evidence as the offence has been committed in full public view and none of the victims was carrying any arm. It is contended that even if there exists any minor contradiction in the prosecution evidence the same does not belie the facts of the accused persons duly armed with farsi, lathi, ballam and sword in group had caused injuries not only to Babulal S/o Prabhulal (the deceased) but also to others who had come to rescue him. It is urged that merely because there is no injury of any sharp edged weapon on the body of the deceased does not rule out the fact that the appellants were carrying deadly weapons because one of the injured viz. Babulal S/o Girdharilal (PW-6) did sustain an incised wound (Ex.P-54) caused by hard and sharp cutting object. It is urged that the prosecution having succeeded in establishing the case of murder and the grievous injuries caused to the victims, the convictions and corresponding sentence do not warrant any indulgence.
(13) Considered rival submissions. Perused the record.
(14) The injuries on deceased Babulal S/o Prabhudayal as per Ex.-P/56 were:-
"1. Lacerated wound y shaped, full scalp thickness deep 8cmx2cmx1.5cm over left parietal bone area of scalp head; 1/3 rd of left iliac crest Hard & Blunt object with surface may be triangular;
2. A contused abrasion 1 cm x 0.5 cm area back of right elbow joint; hard and blunt object
8 Cra.457.1999 rough surface;
3. A contused abrasion 2 cm x 1 cm area below left knee upper 1/3rd front area; hard and blunt object rough surface;
4. A contusion 8cmx3cm obliquely placed at front side of chest wall; hard and blunt object like lathi;
5. Multiple contusion sizing 12cmx 3 cm over back of body; hard and blunt object like lathi."
(15) These injuries being the cause of death get corroborated with the injuries found on his body on post- mortem which as per report (Ex.P-1) were:-
1. Stitch wound present on left parietal region at middle, size 3-1/2";
2. Contusion present on left parietal bone at middle 3"x2";
3. Contusion present on left parietal region slightly Ant. 3"x 1-1/2";
4. Contusion on middle of chest L size 3"x1", traverse in size;
5. Abrasion on left knee size 1" x 1";
6. Contusion on right scapular region 2"x1/2"."
(16) That besides Babulal (the deceased), Shankarlal (PW-11), as per prosecution story, was also present on the spot when the assailants, the accused, opened the assault. Following injuries were found on Shankarlal (PW-11) as per Ex.-P-55:-
1. A lacerated wound 3cmx0.5cmx0.5cm on the back side of right parietal bone area of 9 Cra.457.1999 scalp; hard and blunt object;
2. A lacerated wound 2.5cmx0.5cmx0.5cm on the back of left parietal bone area of scalp; hard and blunt object;
3. A superficial wound 2 cm linear on upper 1/3rd back of left forearm below elbow; hard and bunt object;
4. There is swelling 5cmx5cm around the lower 1/3rd of left forearm; hard and blunt object;
5. Swelling all over back of right hand with restricted finger movements; # may be advised X ray opinion;
6. Multiple contusions sizing 10cmx3cm over front & Outer and medial side of left thigh; hard and blunt object like lathi.
7. An incised wound 2 cmx 1cm x 1.5 cm over middle 1/3rd front of left leg; sharp cutting weapon;
8. Below Injury No.7 Incised wound 2cm x 0.5cm x 0.5cm same object;
9. Abraded contusion lower 1/3rd front of right side leg above ankle joint. Hard and blunt rough surface object."
(17) In his case diary statement (Ex.-D/9), he states that he alongwith Babulal Lodha (the deceased) had come to village- Karaiya to attend their relatives where some verbal argument took place between Babulal and Ramnarayan S/o Sitaram Sarpanch on that while they i.e. Babulal and Shankarlal were standing near the house of Birma Lodha were assaulted by the accused persons 10 Cra.457.1999 carrying lathi, ballam, farsi with an intention to cause death. It was stated-
"esjs flj esa nks txg] ck;k¡ gkFk dh dksguh] nkgus gkFk ds iksgpk] ck;sa isj dh Tkk¡?k o ?kksVw o nkgus isj ds Vduk] nkssuks dwYgks ,oa ihB esa pksVsa vkbZ ,oa ckcwyky dks flj nkgus gkFk dh dksguh ck;s isj ds ?kksVw o Vduk] Nkrh o ihB esa pksVs vkbZ"
(18) In his evidence in Court where he is examined as PW-11, he contradicts certain facts. Though he does not dispute that all the accused persons got together and started beating, he states:-
"'kke ds le; dh ckr gS fnu Mwck ugh Fkk Mwcrk tk jgk Fkk FkksMk cgqr fnu Fkk eSa vkSj ckcwyky ugka dj vk jgs Fks ohje th vkjksih ds yMds us tnkZ [kkus cqyk fy;k fQj eSa ogka cSB x;k brus es vkjksihx.k lc bdVBs gksdj vk x;s vkSj gesa ekjus ihVus yxsA eSaus e`rd ckcwyky dks vkjksihx.k }kjk ekjrs ihVrs ns[kkA "
(19) In cross-examination, there are some contradictions that he names only five persons causing assault, viz. Dhurya @ Dhurelal (A-4), Ramesh (A-9), Balabux (A-15), Shiram (A-20) and Navnitram (A-3). However, he does not deny the presence of other accused on the spot armed with lathi, farsa and ballam and exhorting to kill. Though he states in his cross-examination that about 50- 60 persons have gathered at the scene of crime but whether they participated in crime, he has not seen. Thus, clear it is from the evidence of Shankarlal (PW-11) that besides being the victim he saw all the assailants armed with lathi, ballam and farsa present at the spot and exhorting to kill. Though there is some improvement and exaggeration from the case diary statement and the 11 Cra.457.1999 statements made in the Court. And contradiction and omission of similar nature occurs in the statements of other witnesses who were present at the scene of crime and sustained injuries. However presence of each and every accused person armed with lathi, ballam and farsi is not denied. It is natural on the part of these witnesses in the melee as to who was carrying what. But the fact remains that evidence discloses that each one of them was armed and initially assaulted Babulal (the deceased) and Shankarlal (PW-11) and all those who came to rescue them. Coupled with the fact that there is no iota of evidence to establish any of these appellants getting any injury. Meaning thereby that all the victims were unarmed and were taken by surprise when the appellants forming a common group had assaulted in furtherance to commission of offence.
(20) When the presence of all the accused forming common group armed with lethal weapons and causing injuries to the Babulal (who later succumbed to these injuries), Shankarlal (PW-11) and others, viz Babulal S/o Girdharilal, Kesharbai, Bala Bux, Shantibai, Panabai, Rodibai and Solal who caused rescue is established beyond any pale of doubt, can it be said that they were not sharing common object and some of them be given the benefit of doubt?
(21) As to unlawful assembly, it is defined under Section 141 of IPC which means:
"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--
12 Cra.457.1999 (First) - To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or (Second) - To resist the execution of any law, or of any legal process; or (Third) - To commit any mischief or criminal trespass, or other offence; or (Fourth) - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or (Fifth) - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
(22) As to common object, it means:
"The phrase "Common object" is the central fact on which the liability of persons other than the actual doer of the act depends. The word "object" means the purpose, intention or design, and in order to make it "common", it must be possessed by all. There must be a community of an object which may, however, exist up to a certain point only 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 the common object will vary not only according to the information at their command but also according to the extent to which he shares the community of objects. The common object has to be determined with reference to the facts and circumstances 13 Cra.457.1999 of each case."
(Please See Major Law Lexicon, 4th Edn. 2010 Page 1294.) (23) In Chanakya Dhibar (Dead) Vs. State of W.B. and others [(2004) 12 SCC 398], it is held:
11. The emphasis in Section 149 IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section
141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section
149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur with it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 have to be strictly construed as equivalent to 14 Cra.457.1999 "in order to attain the common object". It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter.
Members of an unlawful assembly may have community of object up to 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 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, IPC may be different on different members of the same assembly.
12. "Common object" is different from a "common intention" as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one 15 Cra.457.1999 comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti.
13. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish 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. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word "knew" used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of "might 16 Cra.457.1999 have been known". Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object, but would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and others v. State of Mysore, AIR 1956 SC 731.) (24) In State of Maharashtra Vs. Kashirao and others [(2003) 10 SCC 434], it is held:
"12. A plea which was emphasized by the respondents relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section
141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section
149. The crucial question to determine is whether the assembly consisted of five or 17 Cra.457.1999 more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 have to be strictly construed as equivalent to "in order to attain the common object". It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to 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 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 IPC may be different on different members of the same assembly."
18 Cra.457.1999 (25) In Masalti Vs. The State of Uttar Pradesh [AIR 1965 SC 202], it is held:
"17. Mr. Sawhney then attempted to argue that the High Court failed to give effect to the principles enunciated by this Court in the case of Baladin v. State of Uttar Pradesh(AIR 1956 SC 181). In that case, it was observed by Sinha, J., who spoke for the Court, that it is well-settled that mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under s.142, I.P.C. The argument is that evidence adduced by the prosecution in the present case does not assign any specific part to most of the accused persons in relation to any overt act, and so, the High Court was in error in holding that the appellants were members of an unlawful assembly. The observation of which Mr. Sawhney relies, prima facie, does seem to support his contention; but, with respect, we ought to add that the said observation cannot be read as laying down a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of such an unlawful assembly. In appreciating the effect of the relevant observation on which Mr. Sawhney has built his argument, we must bear in mind the facts which were found in that case. It appears that in the case of Baladin, (S) AIR 1956 SC 181 the members of the family of the appellants and other residents of the village had assembled together; some of them shared the common object of the unlawful assembly, while others were merely passive witnesses. Dealing with such an assembly, this Court observed that the presence of a person in an assembly of that kind would not necessarily show that he was a member of an unlawful assembly. What has to be proved against a person who is alleged to be a
19 Cra.457.1999 member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by s.141, I.P.C. Section 142 provides that 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. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of s. 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by s.141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin, (S) AIR 1956 SC 181 assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, s.149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by s.149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every 20 Cra.457.1999 member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of Baladin (S) 1956 SC 181 must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law such as Mr. Sawhney suggests.
18. In this case, the High Court has carefully examined the evidence and has made a finding that the whole group of persons who constituted the assembly were members of the faction of Laxmi Prasad and they assembled together, armed with several weapons, because they entertained a common object in pursuance of which the five murders were committed on that day. Therefore, there is no substance in the argument that the conclusion of the High Court that the appellants are guilty of the offences charged is not supported by the principles of law enunciated by this Court in the case of Baladin, (S) AIR 1956 SC 181.
19. It is thus clear that the general grounds of attack urged before us by Mr. Sawhney in challenging the validity of the conclusions recorded by the High Court fail, and so, there would be no occasion or justification for this Court to consider the evidence for itself.
20. That leaves one question still to be considered and that has relation to the sentence of death imposed on 10 persons. Mr. Sawhney argues that in confirming the sentences of death imposed by the trial Court on 10 accused persons in this case, the High Court has adopted a mechanical rule. The High Court has held that the 10 persons who carried fire-arms should be ordered to be hanged, whereas others who have also been convicted under s. 302/149, should be sentenced to imprisonment for life. It is true that except for Laxmi Prasad, the charge under s. 302/149 rests against the other accused persons on the ground that five murders have been committed by some members of the unlawful assembly of which 21 Cra.457.1999 they were members, and the argument is that unless it is shown that a particular accused person has himself committed the murder of one or the other of the victims, the sentence of death should not be imposed on him. In other words, the contention is that if a person is found guilty of murder under s. 302/149 and it is not shown that he himself committed the murder in question, he is not liable to be sentenced to death. In support of this argument, Mr. Sawhney has relied on certain observations made by Bose J., who spoke for the Court in Dalip Singh v. State of Punjab(AIR 1953 SC 364'). In that case, what this Court observed was that the power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest reasons; and it was added that it is not enough for the appellate court to say or think that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial Judge, and the only ground on which the appellate court can interfere is that the discretion has been improperly exercised. These observations have no relevance in the present case, because we are not dealing with a case where the High Court has enhanced the sentence imposed by the trial Judge at all. In fact, both the trial Court and the High Court are agreed that the sentences of death imposed on 10 persons are justified by the circumstances of the case and by the requirements of justice. As a mere proposition of law, it would be difficult to accept the argument that the sentence of death can be legitimately imposed only where an accused person is found to have committed the murder himself. Whether or not sentences of death should be imposed on persons who are found to be guilty not because they themselves committed the murder, but because they were members of an unlawful assembly and the offence of murder was committed by one or more of the members of such an assembly in pursuance of the common object of that assembly, is a 22 Cra.457.1999 matter which had to be decided on the facts and circumstances of each case. In the present case, it is clear that the whole group of persons belonged to Laxmi Prasad's faction, joined together armed with deadly weapons and they were inspired by the common object of exterminating the male members in the family of Gayadin, 10 of these persons were armed with fire-arms and the others with several other deadly weapons, and evidence shows that five murders by shooting were committed by the members of this unlawful assembly. The conduct of the members of the unlawful assembly both before and after the commission of the offence has been considered by the courts below and it has been held that in order to suppress such fantastic criminal conduct on the part of villagers it is necessary to impose the sentences of death on 10 members of the unlawful assembly who were armed with firearms. It cannot be said that discretion in the matter has been improperly exercised either by the trial Court or by the High Court. Therefore we see no reason to accept the argument urged by Mr. Sawhney that the test adopted by the High Court in dealing with the question of sentence is mechanical and unreasonable.
(26) In Sheo Prasad Bhor alias Sri Prasad Vs. State of Assam [(2007) 3 SCC 120], it is held:
"6. ......Small contradiction and omission are natural when body of persons attacked the deceased. One has to only assure that there should not be overimplication. After review of statements both the courts below have correctly appreciated the testimony of witnesses. We have also perused the statements made by the witnesses, it is clear that some took part in the assault while others actively assisted them. When charge under Section 149 IPC is there, it is not necessary that each one should be assigned independent part played in the beating. If it
23 Cra.457.1999 is found that one of them was a member of the unlawful assembly and that unlawful assembly assaulted the deceased which ultimately caused the death of the deceased, then all who were members of the unlawful assembly can be held liable."
(27) In Nand Kumar Vs. State of Chhattisgarh [(2015) 1 SCC 776], it is held:
"19. Before we peruse the ocular evidence adduced by the prosecution, it is necessary to take note of the law on the question as to under what circumstances, a member of an unlawful assembly can be held to have committed an offence in pursuance of the common object of such assembly of which he is a member.
20. While distinguishing on facts and then explaining the view taken by this Court in Baladin and Ors. Vs. State of Uttar Pradesh, AIR 1956 SC 181, the four Judge-Bench speaking through Justice Gajendragadkar in Masalti etc. etc. Vs. State of U.P., AIR 1965 SC 202, laid down the following principle of law on the aforesaid question:
"17. ..........in Baladin v. State of Uttar Pradesh, AIR 1956 SC 181, ........, it was observed by Sinha, J., who spoke for the Court that it is well-settled that mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under Section 142 IPC. The argument is that evidence adduced by the prosecution in the present case does not assign any specific part to most of the accused persons in relation to any overt act, and so, the High Court was in error in holding that the appellants were members of an unlawful assembly...It appears that in the case of Baladin the members of the family of the appellants
24 Cra.457.1999 and other residents of the village had assembled together; some of them shared the common object of the unlawful assembly, while others were merely passive witnesses. Dealing with such an assembly, this Court observed that the presence of a person in an assembly of that kind would not necessarily show that he was a member of an unlawful assembly. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained long with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that however, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continue in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common object specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty 25 Cra.457.1999 of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of Baladin2 must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition or law....."
21. Recently, this Court in Om Prakash Vs. State of Haryana, (2014) 5 SCC 753, placed reliance on the aforesaid principle laid down in Masalti (supra) in following words:
"15. The aforesaid enunciation of law was considered by a four-Judge Bench in Masalti v. State of U.P., AIR 1965 SC 202 which distinguished the observations made in Baladin AIR 1956 SC 181 on the foundation that the said decision should be read in the context of the special facts of the case and may not be treated as laying down an unqualified proposition of law. The four- Judge Bench, after enunciating the principle, stated as follows: (AIR p. 211, para 17) "17. ... it would not be correct to say that before a person is held to be a 26 Cra.457.1999 member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly".
(28) In Madan Singh Vs. State of Bihar [(2004) 4 SCC 622], it is observed:
11. "Common object" is different from a "common intention" as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and the language and utterances of the members composing it, the nature of arms carried, and from a consideration of all the surrounding circumstances. It may be gathered also from the course of conduct adopted by and behaviour of the members of the assembly at or before the actual conflict....."
(29) In Chanda and others Vs. State of U.P. and another [(2004) 5 SCC 141], it is observed:
27 Cra.457.1999 "8. The pivotal question is applicability of Section 149 IPC. Said provision has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section
141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section
149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it.
Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 have to be strictly construed as equivalent to "in order to attain the common object". It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist 28 Cra.457.1999 only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to 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 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 IPC may be different on different members of the same assembly."
(30) The principle of law laid-down in these cases when are applied to the facts of the present case, it leaves no iota of doubt that the prosecution has succeeded in establishing the charges beyond any pale of doubt. And the Trial Court rightly appreciated the same and did not commit any error in convicting and imposing respective sentence as would warrant any indulgence. (31) Consequently, appeal fails and is dismissed. Appellants Gangaram, Vanshi Lal, Navneet Ram, Dhurya @ Dhure Lal, Dev Lal, Gyarasi Ram, Shrilal, Kamar Lal, Ramesh @ Barya, Nathulal, Sholal, Hazari, Parmanand, Laxmi Narayan, Viram @ Virma, Shriram and Moolchand who are on bail, their bail bonds stand cancelled. They are directed to forthwith surrender before the trial court to undergo remaining sentence. Let the copy of this Judgment be sent to the trial court for information and compliance.
(Sanjay Yadav) (S.K. Awasthi)
Judge Judge
(24/10/2017) (24/10/2017)
pd