Madhya Pradesh High Court
Parshuram And Ors. vs The State Of M.P. on 14 March, 2018
Bench: Sanjay Yadav, Ashok Kumar Joshi
1 Cra.243.2005 & Cra.260.2005
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE ASHOK KUMAR JOSHI
CRIMINAL APPEAL 243 OF 2005
Parshuram and others
Vs.
State of Madhya Pradesh
*******************
Shri Shailendra Singh Sengar, learned counsel for the
appellants.
Shri Vivek Jain, learned Public Prosecutor, for the
respondent/State.
******************
&
CRIMINAL APPEAL 260 OF 2005
Jalim Singh
Vs.
State of Madhya Pradesh
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Shri R.K. Sharma, learned Senior Counsel with Shri V.K.
Agrawal, learned counsel for the appellant.
Shri Vivek Jain, learned Public Prosecutor, for the
respondent/State.
******************
Whether approved for reporting : Yes/No.
2 Cra.243.2005 & Cra.260.2005
JUDGMENT
(14/03/2018) Per Justice Sanjay Yadav:
These two appeals arise from the judgment dated 30.03.2005 passed by the I Additional Sessions Judge, Shivpuri (M.P.) in Sessions Trial No.09/2002. One more appeal [Cr.A. No.362/2005], arising from said judgment, preferred by Mangal Singh S/o Matadeen has been abated due to his death.
(2) These appellants, viz., Parashuram, Ramsahai, Ramswaroop @ Roopa, Ramlakhan, Ramsevak @ Sevak and Jalim Singh along with Diwan Singh and Siyaram were tried for an offence punishable under Sections 147, 148, 302/149, 326/149, 324/149, 323/149 on the allegations that on 06.10.2001 at 09:15 AM each one of them armed with lethal weapons: barchi, sword, spear, lathi (stick), country-made bomb (hathgola) forming unlawful assembly and sharing common object caused injuries to Chironji (PW-6), Madan (the deceased), Raghuveer, Patiram (PW-13), Leelabai (died natural death during pendency of trial), Ramhet (PW-12), Gyani (PW-14) and Kailash (PW-15). As a result whereof Madan succumbed to the injuries.
(3) It is pertinent to note at this stage that in respect of said incident of 06/10/2001, one FIR was also lodged by Ramlakhan (Appellant No.4 in Cr.A.243/2005) at 09:55 AM (Ex.D-9) against Madan, Chironji (PW-6), Gyani (PW-14), Patiram (PW-13), Ramhet (PW-12), Raghuveer, Kailash (PW-15) which led to registration of offence under Sections 323, 341, 294, 147, 148, 149 IPC forming subject matter of Sessions Trial No.235/2002 resulting in acquittal by judgment dated 30.03.2005.
3 Cra.243.2005 & Cra.260.2005 (4) The prosecution story is that, on 06.10.2001 Chironji (PW-6) lodged an FIR to the effect that the accused persons being annoyed with complainant's buffaloes causing damage to their hutment in the night in the agricultural fields of Jalim and Lakhan, Sevak, Roopa, Lakhan, Parshuram, Ramsahai, Mangal Singh, Jalim Singh armed with Barchi, Sword, lathi, spear and country-made bomb (hathgola) came to their house and entered their house by breaking the door; but went back as the complainant and other victims ran away from their house. However, when the victims were going to Police Station, Kolaras on a tractor to lodge report, the accused persons stopped their tractor on way. Lakhan carrying barchi caused injury to Madan on his left side of chest, as a result whereof he fell down unconscious. Sevak caused injuries with gupti to complainant Chironji (PW-6) on his right side of the torso and another blow was hit on his head. Roopa caused injury to the complainant with sword. Other accused persons who were also armed with lethal weapons caused injuries to the victim party resulting in grievous injuries. (5) The complaint led to registration of offences under Sections 307, 323, 452, 147, 148, 149 IPC. However, with the death of Madan, immediately after lodging report led to conversion of offence under Section 307 to that of under Section 302 IPC. That Panchnama of the body of Madan was prepared and was sent for post mortem. Report whereof is Ex.P-6/Ex.P-34. Statements of injured, viz., Chrionji, Khachera Dhobi, Kailash Dhakad, Patiram, Gyani Dhobi, Badami Dhakad, Babulal Dhakad were recorded. On the basis of memorandum statements of accused persons, the weapons used in commission of 4 Cra.243.2005 & Cra.260.2005 offence were seized vide Ex.P-5, Ex.P-13, Ex.P-14, Ex.P- 15, Ex.P-16, Ex.P-17 and Ex.P-18. Accused persons were arrested. After completing the investigation, charge- sheet was filed which was committed before the Sessions Court.
(6) The accused persons abjured their guilt and pleaded that they are falsely implicated. In defence examined two witnesses, viz., Ramkrishna Pandey (DW-
1) and Dr. Nisar Ahmed (DW-2) exhibited D-11 to D-13 which are the MLCs of appellants Ramsevak, Ramlakhan and Ramswaroop to establish the discrepancy and falsity of prosecution story.
(7) Prosecution, to bring home the charges, examined 21 witnesses. Out of these Chironji (PW-6), Ramhet (PW-
12), Partiram (PW-13), Gyani (PW-14) and Kailash (PW-
15) were injured eyewitnesses. Dr. S.K. Majeji (PW-4) was examined as doctor who carried out post mortem of the deceased Madan. Ex.P-6/Ex.P-34 is his post mortem report. Following injuries were found on the body of deceased Madan:-
"(1) Punctured wound 1''x1/2'' deep upto lung matter, on the chest left side exterior & upper part about 3'' below the mid point clavicle left line haemorrhage in muscle, pleural cavity lung left, lung of left side also cut 1''x1/2''x2'';
(2) Abrasion 4''x1'' middle of back;
(3) Abrasion 1/2''x1/2''. Left hand.
All injuries ante-mortem in nature. Injury No.1 caused by sharp cutting edged pointed instrument."
(8) Dr. P.D. Gupta (PW-9) was examined to prove the MLCs of Chironji (PW-6), Raghuveer, Patiram, Kailash who respectively were found to have sustained injuries 5 Cra.243.2005 & Cra.260.2005 vide Ex.P-36, Ex.P-37,Ex.P-38 and Ex.P-42. (9) Pertinent it is to note that in the cross-case, the accused persons also filed documents and examined the doctor who carried out MLC of the injuries, sustained in the same incident, to Ramsewak and Ramlakhan Ex.D-11 and Ex.D-12. The doctor who carried out MLC, Dr. Nisar Ahmed was examined as (DW-2).
(10) The trial court, on the basis of the evidence on record found that the prosecution has succeeded in establishing charges against the present appellants, acquitting two persons, viz., Deewan Singh and Siyaram. (11) Taking us through the entire evidence on record, it is contended on behalf of the appellants that the prosecution having deliberately suppressed the genesis of the entire incident proceeded on a different version ignoring the fact that it was the alleged victim party who were the assailants and the accused persons were only defending themselves and exercising their right of private defence. It is contended that since there was a free fight in which the members of both the parties sustained injuries, the prosecution was not fair in not recording and investigating true version and instead resorted to concocted story.
(12) It is contended that the accused persons who are Kachchi by caste had purchased the land in the village of complainant who happened to be of Dhakad community. As the complainant's buffaloes had caused damage to the hut located in the agricultural field at 5 led them to the house of the complainant to inform about the damage wherein they were beaten by the complainant party which led the accused persons lodge complaint at Police Station Kolaras and while returning therefrom the 6 Cra.243.2005 & Cra.260.2005 accused persons were haulted by the complainant party who were on tractor armed with weapons and they being aggressor the accused persons had to defend themselves and while exercising their right of private defence to save themselves from the beating by the complainant party injuries were sustained by the members of both the parties. It is urged that Madan (deceased) succumbed to one such injuries.
(13) The appellants have adverted to Ex.P-8 and Ex.D-9 and the site plan Ex.P-10 and Ex.D-10 to establish that both the parties had lodged complaint with the Police Station Kolaras for the same incident which, it is contended, has been admitted by the Investigating Officer Ramashankar Dubey (PW-19) in paragraph 17 of his deposition in Court. It is urged that Ex.D-11, Ex.D-12 and Ex.D-13 are MLCs relating to the injuries sustained by the accused persons viz Ramsewak S/o Govindi Kushwah, Ramlakhan S/o Govindi Kushwah and Ramswaroop S/o Govindi Kushwah. It is urged that these injuries are denied by the complainant party. Reference has been made to the statement of Chironji (PW-6) (Paragraph 4), Khachera (PW-7) (Paragraph 13), Ramhet (PW-12) (Paragraph 8), Patiram (PW-13) (Paragraph 2), Gyani (PW-14) (Paragraph 6), Kailash (PW-15) (Paragraph 2) and Badami (PW-16) (Paragraph 8). It is urged that the prosecution having failed to explain the injuries on the accused persons creates doubt about the credibility of the injured executers. In this context, reference is made to the observation made by the Hon'ble Supreme Court in "Rukma (Smt.) and others Vs. Jala and others [(1997) 11 SCC 579]" wherein their Lordships were pleased to observe:
7 Cra.243.2005 & Cra.260.2005 "7. The fact that as many as six accused had received injuries during the incident cannot be disputed in view of the medical evidence on record. All the injuries received by Jala (A-1) and Vishnu (A-2) were not minor. Vishnu (A-2) had received an incised injury on his hand and Jala (A-1) had received a lacerated wound on his head. They were bleeding injuries. All the injured eye witnesses who were with deceased Anna have denied to have caused any injury to any of the accused. They flatly denied that they had weapons with them at the time of the incident. If under these circumstances the High Court thought it fit not to place, any reliance on Sua, Mohan, Panna, Arjun and Rukam, it cannot be said that the High Court was not justified in doing so."
(14) It is further contended on the basis of FIR Ex.D/9 and the statement of Chironji (PW-6) (Paragraph 2), Khachera (PW-7) (Paragraph 20), Ramhet (PW-12) (Paragraph 1), Patiram (PW-13) (Paragraph 1) and the statement of the Investigating Officer Ramashankar Dubey (PW-19) (Paragraph 20) that though there was no use of "hathgola" at the place of incident, yet the prosecution witnesses in their depositions in the Court stated that use of "hathgola", which is not supported even by the Investigating Officer creates doubt over the credibility of the prosecution witnesses and that they are not giving the correct and apt version. (15) It is contended that as the accused persons had first gone to the police station to report about the beating given to them in the morning when they had gone to the house of the complainant as to the damage caused to the hut, and while coming back from the police station the complainant party, who had no cause to go to the police station had come on tractor and were the aggressors. It is at that moment when the accused persons were 8 Cra.243.2005 & Cra.260.2005 assaulted had to protect themselves, as a result whereof there was a free fight resulting in injuries to the members of both the parties and causing death of Madan. It is that as the accused persons were not the assailants the prosecution failed to establish that they had formed an unlawful assembly and were sharing common intention. To bring home these submissions, appellants have relied upon "State of Haryana Vs. Chandvir and others [AIR 1996 SC 3344]" and "Pundalik Mahadu Bhane and others Vs. State of Maharashtra [(1997) 11 SCC 567]". In Chandvir & Ors (supra), it is held:
"3. Having gone through the evidence and the reasoning given by the High Court, we do not think that the case warrants interference. It is seen that the prosecution has deliberately separated two incidents which occurred at 5.45 p.m and 6 p.m. on that date. A reading of the evidence clearly goes to show that after the first incident of quarrel between the ladies had taken place, when the deceased-Rajpal was passing through the road and had come near the house of the accused there appears to have arisen a quarrel between the accused party and the prosecution party. Both the incidents had taken place during the course of the same transaction. The question then is whether it is possible to believe the evidence of the injured witnesses implicitly to base the conviction of the respondents? It would appear from the evidence adduced that there is no common object or intention to kill the deceased. It would appear that it is a case of free fight between the accused party and the prosecution party on account of the quarrels between the two families. There is evidence that some of the accused suffered injuries in the same transaction and the prosecution has not explained injuries on them. In those circumstances, the liability of each of the accused has to be considered independently. In
9 Cra.243.2005 & Cra.260.2005 that attempt, we have scanned the evidence of injured witness carefully vis-a-vis the reasoning given by the High Court. It would appear that all the witnesses have improved upon their version stated in the statement recorded under Section 161, Cr.P.C. In fact, the Sessions Court itself has noted that some of the witnesses have spoken falsely in their evidence with regard to some of the accused. Under those circumstances, would it be possible to place implicit reliance on the evidence of these injured witnesses, though their presence stands confirmed? We have given our anxious consideration to the facts in this case. We Find that it is absolutely difficult to place implicit reliance on their evidence. It is true that falsus in uno, falsus in omnibus has no application in criminal trial. Court has to endeavour to separate the grain from the chaff and accept that part of the evidence which is found to be truthful and consistent. Having made that attempt, we find that on the facts of this case, it is very difficult to separate the grain from the chaff. It is seen that the participation of five of the accused is totally disbelieved by the Sessions Court as well as the High Court. As regard the participation of the eight accused in the commission of the crime, it is seen that witnesses fabricated and improved their version from stage to stage. Therefore, it would be very difficult to place implicit reliance on each of their evidence or cumulatively to convict accused 1 and 2. The two accused are alleged to have attacked the deceased. Each of the injuries is not independently sufficient to cause death. Moreover, in a case of free fight, Section 149 cannot be applied. It is difficult to accept the prosecution case to hold that A1 and A2 alone had attacked the deceased in the melee. It might be that some other had attacked the deceased. PW.9, father of the deceased is found to have given false evidence. On the facts and circumstances, neither Section 32 (34?) nor Section 149 can be applied to any of the accused."
(16) In Pundalik Mahadu Bhane (supra), it is 10 Cra.243.2005 & Cra.260.2005 observed:
"6. After having gone through the entire record we are of the opinion that the above concurrent findings of the learned Courts below are substantially correct and are based upon reasonable appreciation of the evidence. But then, having recorded such findings the learned courts below were not justified in convicting the appellants for rioting, for the law is now well-settled that in the case of a sudden and free fight each of the persons involved therein can be held liable for his individual act and not vicariously liable for the acts of others. [Lalji and Ors. Vs. The State of U.P. AIR 1973 S.C. 2505, Ishwar Singh Vs. The State of U.P. AIR 1976 S.C. 2423 ]. The convictions of the two surviving appellants under Section 148 IPC cannot, therefore, be sustained."
(17) Furthermore, while referring to the injuries sustained by the deceased Madan and the statement of Chronji (PW-6) (Paragraph 3), Khachera (PW-7) (Paragraph 1 and 12), Ramhet (PW-12) (Paragraph 1), Patiram (PW-13) (Paragraph 1, 5 and 7), the entire act is attributed to Mangal (since died) and Ramlakhan (appellant No.4 in Criminal Appeal 243/2005). (18) As regard to injuries sustained by Raghuveer (not examined), Gyani (PW-14), Leela (not examined & since deceased), Chironji (PW-6), Patiram (PW-13), Ramhet (PW-12) and Kailash (PW-15), it is contended that injuries on Raghuveer (who is not examined because of his losing voice due to said injuries) as per MLC Ex.P-37 were the "(i) incised wound with bleeding and brain matter coming on left parietal region (ii) abrasion on the back of left palm; these injuries, it is contended on the basis of the statements of Khachera (PW-7) (Paragraph
2), Ramhet (PW-12) (Paragraph 1), Patiram (PW-13) 11 Cra.243.2005 & Cra.260.2005 (Paragraph 1) and Kailash (PW-15) (Paragraph 1) is attributed to Mangal of causing injury over the head with Farsa. As to the injuries on Gyani (PW-14), it is contended that the MLC is not proved. It is urged that this witness (i.e. PW-14) in paragraph 8 of deposition in Court categorically stated as to who caused injury to him, he did not see. Even in respect of the injuries on Leelabai (not examined by the prosecution) it is urged that none of the eyewitnesses deposed as to who caused injuries on her. It is contended that similarly the prosecution could not establish as to who caused injuries on Patiram (PW-13), Ramhet (PW-12) and Kailash (PW-
15). As to the injuries caused to Chironji (PW-6), as per his own statement, it is urged, that the injuries have been attributed to Roopa and Sevak i.e. Ramswaroop and Ramsevak.
(19) As to the act of Jalim singh, appellant in Criminal Appeal No.260/2005, it is contended on his behalf that none of the eyewitnesses have adverted to any overt act of Jalim Singh. It is urged that Chironji (PW-6), Khachera (PW-7), Ramhet (PW-12) and Patiram (PW-13), Gyani (PW-14), Kailash (PW-15) and Badami (PW-16) made an omnibus statement. It is urged that he (Jalim Singh) being an eyewitness of the cross-case registered against the complainant party; therefore, he was roped in.
On these submissions, the appellants plead acquittal.
(20) The prosecution, on its turn, has to submit that the prosecution having succeeded in establishing that the accused persons forming unlawful assembly and sharing common intention to cause death had inflicted injuries on the complainant party who were on their way to 12 Cra.243.2005 & Cra.260.2005 police station to lodge complaint against the accused persons against their overt act of attacking at their house in the early hours. It is urged that as per the nature of injuries caused on the members of the complainant party, the accused were armed with lethal weapons. It is further contended that even if the defence version that the complainant party was also armed with weapons, the injuries, vide Ex.D-11, Ex.D-12, Ex.D-13 on the appellants Ramsevak, Ramlakhan and Ramswaroop were simple in nature as would give any credence to the defence version that the complainant party were the assailants and the accused were defending themselves. It is further contended that a minor exaggeration of the eyewitness count will not belie the entire prosecution story as to the incident which took place on 06.10.2001 at 09:15 am which having been established beyond any reasonable doubt the charges levelled against the appellants of having formed an unlawful assembly and shared common intention of causing grievous injuries to the complainant party and death of Madan. (21) Considered the rival submissions, perused the entire record and the decisions cited at bar. (22) The question is whether the prosecution has distorted the version and the genesis as would create any doubt about the prosecution story. Ex.P-8 and Ex.D-9 reveal the starting point of the happenings i.e. some buffaloes belonging to the accused persons had caused damage to the hut in agricultural field of the accused persons. Thus, it were the accused who were aggrieved and instead of going to police station first, they went to the house of the complainant; this fact is established from both the FIRs i.e. Ex.P-8 and Ex.D-9. The only 13 Cra.243.2005 & Cra.260.2005 difference is that in FIR Ex.P-8 it is stated that the complainant had run away from their village and later when they were going to lodge the complaint to the police station at 09:15 am were assailed by the accused. Whereas as per Ex.D-9 since the accused persons were beaten by the complainant party when they went to their village and while coming back from the Police Station after lodging complaint, they were encircled and beaten. Since the accused persons had taken the defence by placing on record Ex.D-9 to demolish the prosecution story as to second event in the chain of happenings, the onus was on them to have placed on record the copy of FIR which they had allegedly lodged with the police as regard to alleged beating given to them when they had gone to the victim party's house to complain of the damages caused to their hut. In absence whereof, no dent is caused to the prosecution story as to complainant party running away from the village when the accused persons had come to their village and caused damages to their houses. Thus, there is no distortion of version by the prosecution as to the genesis. In view whereof if were the accused persons who were anguished and the prosecution succeeded in establishing the fact beyond the reasonable doubt that besides being armed with deadly weapons had formed an unlawful assembly sharing common object and when the complainant party was on its way to lodge complaint were attacked; and the nature of injuries sustained by the members of both the parties establish the fact that the accused persons were the aggressors and not the members of complainant party who were on tractor and were pulled down from it.
14 Cra.243.2005 & Cra.260.2005 (23) In Rukma & Ors (supra) wherein it is held in paragraph 7 that the denial of grievous injuries to the accused persons by the prosecution witnesses would render the credibility of such witnesses doubtful is of no assistance to the appellants in the present case; as the injuries to the accused persons, as evident from Ex.D-11, Ex.D-12 and Ex.D-13 are simple and insignificant and if not noticed in the melee and where the complainant party has sustained grievous injuries will not discredit their evidence merely because they have not noticed the injuries on the accused persons. It is a natural phenomena that when meted with aggression the party at receiving end will first defend itself and if serious injuries are sustained to their members will first attend them rather witness the injuries sustained by the assailants. Even the decision in "Lakshmi Singh and others Vs. State of Bihar [AIR 1976 SC 2263]" is of no assistance, as it turns on its own facts. (24) Furthermore, Section 149 IPC stipulates that:
"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."
(25) 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--
15 Cra.243.2005 & Cra.260.2005 (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.
(26) 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 16 Cra.243.2005 & Cra.260.2005 of each case."
(Please See Major Law Lexicon, 4th Edn. 2010 Page 1294.) (27) 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 17 Cra.243.2005 & Cra.260.2005 "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 18 Cra.243.2005 & Cra.260.2005 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 19 Cra.243.2005 & Cra.260.2005 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.) (28) 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 20 Cra.243.2005 & Cra.260.2005 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."
21 Cra.243.2005 & Cra.260.2005 (29) 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
22 Cra.243.2005 & Cra.260.2005 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 23 Cra.243.2005 & Cra.260.2005 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 24 Cra.243.2005 & Cra.260.2005 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 25 Cra.243.2005 & Cra.260.2005 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.
(30) 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
26 Cra.243.2005 & Cra.260.2005 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."
(31) 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
27 Cra.243.2005 & Cra.260.2005 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 28 Cra.243.2005 & Cra.260.2005 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 29 Cra.243.2005 & Cra.260.2005 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".
(32) 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....."
(33) In Chanda and others Vs. State of U.P. and another [(2004) 5 SCC 141], it is observed:
30 Cra.243.2005 & Cra.260.2005 "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 31 Cra.243.2005 & Cra.260.2005 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."
(34) Though reliance is placed on the decisions in Chandvir and others (supra), Pundalik Mahadu Bhane (supra) and Manoj Kumar and others (supra), however, close reading of the decisions in these cases reveals the concurrent finding of sudden and free fight which is not in the case at hand. (35) The chain of events starts from early morning when the complainant's buffaloes causing damage to the hut in the agricultural field of the accused persons. Then accused persons forming an assembly with lethal weapons and attacking and causing damages to the house of the complainant party and thereafter an attempt to prevent them from lodging complaint at police station suggests that besides forming unlawful assembly each member shared common object to cause injuries and death of the complainant and Madan respectively.
(36) Since the prosecution has succeeded in establishing the charge of forming unlawful assembly, sharing common intention and causing grievous injuries and the death, the Trial Court is justified in convicting the appellants and sentencing them to imprisonment for life 32 Cra.243.2005 & Cra.260.2005 under Section 302/149 IPC with Rs.5,000/- as penalty and the default sentence; Seven years' RI for the offence under Section 326/149 IPC and Rs.2,000/- as penalty and the default sentence, six months' RI under Section 324/149 IPC and Rs.500/- penalty and the default sentence, three months' RI under Section 323/149 IPC. (37) In view whereof, both the appeals i.e. Criminal Appeal 243/2005 and Criminal Appeal 260/2005 fail and are dismissed.
(38) Appellants-accused No.1, 2, 3 and 5 in CRA.243/2005 and appellant-accused in CRA.260.2005 are on bail. Their bail bonds are cancelled and 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) (Ashok Kumar Joshi)
Judge Judge
(14/03/2018) (14/03/2018)
pd
Digitally signed by
PAWAN DHARKAR
Date: 2018.03.14
18:30:43 -07'00'