Madhya Pradesh High Court
Banshilal vs The State Of Madhya Pradesh on 16 October, 2024
Author: Vishal Mishra
Bench: G.S. Ahluwalia, Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:51047
1
CRA No. 2459 of 2010
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPU R
BEFORE
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
CRIMINAL APPEAL No. 2459 of 2010
TULSIRAM AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
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Appearance :
Shri Jafar Khan - Advocate for the appellants.
Shri Akshay Namdeo - Government Advocate for the
respondent/State.
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Reserved on : 19.09.2024
Pronounced on : 16.10.2024 09
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JUDGMENT
Per Vishal Mishra, J.
The present appeal has been filed under Section 374(2) of the CrPC against the judgment of conviction and order of sentence dated 29.11.2010 passed by the VIIth Additional Sessions Judge (Fast Track Court), Sagar District Sagar (M.P.) in Sessions Trial No.681 of 2009 whereby each one of the appellants was convicted and sentenced as under with the direction that the jail sentences shall run concurrently :
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 2 CRA No. 2459 of 2010 Convicted under Sentenced to Section 302/149 of IPC undergo R.I. for Life and to pay fine of Rs.500/- and in default, to suffer R.I. for 6 months.
326/149 of IPC undergo R.I. for 4 years and to pay fine of (for causing grievous Rs.300/- and in default, to suffer R.I. for 2 hurt to Virendra) months.
326/149 of IPC undergo R.I. for 4 years and to pay fine of ((for causing grievous Rs.300/- and in default, to suffer R.I. for 2 hurt to Ramkali) months.
323/149 of IPC undergo R.I. for 1 year and to pay fine of (for causing injuries Rs.200/- and in default, to suffer R.I. for 1 to injured Munnalal) month.
2. It is pointed out that the appellant No.2-Banshilal S/o Lallu Ram Ahirwar has passed away on 21.02.2015 while taking treatment. As per the report received from Jail Superintendent, Sagar dated 22.08.2024, the appellant No.1-Tulsiram S/o Lallu Ram Ahirwar has completed 20 years in custody and after granting remission/commutation, he has been released on 02.10.2023. Vide order dated 19.09.2024, the appeal qua appellant no.2-Banshilal stood dismissed as abated consequent to his death. Moreover, as the appellant-Tulsiram has already completed the entire jail sentence, there is no requirement for going into the merits of the case insofar appellant No.1-Tulsiram is concerned. As such, arguments heard on merits in respect of the remaining appellants.
3. It is relevant to note that a cross-case has been registered against the complainant party at Crime No.628 of 2009 for the offence under Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 3 CRA No. 2459 of 2010 Sections 294, 323, 324, 506B read with 34 of the IPC. The copy whereof is filed as Ex.D/5. It is informed by the State counsel that in the cross-case, the accused have been acquitted and against their acquittal, no appeal has been preferred.
4. As per the prosecution story, the incident is stated to have occurred on 23.09.2009 at about 9.00 a.m. On the same day, the FIR (Ex.P/9) has been lodged by injured Virendra (PW2) who stated that on 23.09.2009 at about 9.00 a.m., when he was at his home and having a conversion with his father Ramnath, appellant No.1-Tulsiram Ahirwar, armed with sword, appellant No.2-Banshilal, armed with axe, appellant No.3-Ramesh, armed with rod and appellant No.4-Bablu, armed with lathi came there and abused him and at that time, Ramnath came out of his house and asked them not to shout and abused him. On this, Tulsiram inflicted injuries by means of a sword on the head of the complainant Virendra. When Ramnath came to his rescue, Banshilal hit him by means of an axe on his head. Thereafter, Bablu picked him up and threw him on the ground. Thereafter, all four accused inflicted injuries by hands and legs, lathi, rod, axe and sword. They were shouted. On hearing the scream, Kanti Bai (PW7) and Murat Yadav (PW13) rushed to the spot and on seeing them, the accused ran away from the spot. After some time, appellant No.5-Sitaram armed with Baka, appellant No.6-Jairam and appellant No.7-Gangaram, both having lathis in their hands, came to the spot. They abused the complainant party and inflicted injuries by means of baka, lathis and hands & legs and threatened them that if they lodged a complaint against them, they would kill them. Thereafter, the complainant went to Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 4 CRA No. 2459 of 2010 the police station and lodged the FIR (Ex.P/9). Accordingly, a case for the offence under Sections 294, 323, 324, 506 read with 34 of IPC was registered against the appellants. The injured i.e. Virendra (PW1), Ramkali (PW15), Munnalal (PW4) and Ramnath were sent for medical examination. During the treatment, Ramnath passed away on 23.09.2009 at 3.55 p.m. The merg intimation regarding death of Ramnath was sent and hence, the offence under Section 302 of IPC was enhanced. During the course of investigation, Investigating Officer B.S. Dhurve (PW10) visited the spot; prepared the spot map; seized ordinary and blood-stained soil; recorded statements of the witnesses; recovered weapons of offence at the instance of appellants and arrested the accused-appellants. After completion of the investigation, the charge sheet in respect of the offence under Sections 294, 323, 324, 325, 302, 506 read with 34 of the IPC and Section 25 of the Arms Act has been submitted in the Court of Judicial Magistrate First Class, Sagar who committed the case to the Court of Sessions for trial.
5. The trial Court framed the charges against the appellants under Sections 294, 302/149, 326/149 (on two counts), 323/149 and 506 Part II of the IPC. The accused abjured the guilt and claimed to be tried. In examination under Section 313 of the CrPC, they stated that they are innocent and have been falsely implicated in the case. In fact, it was the complainant party that was aggressor and only in order to escape from the counter case, the present report has been lodged.
6. To bring home the charges, the prosecution examined as many as 15 witnesses namely MLC Dr. H.L. Bhuriya (PW1), injured Virendra (PW2), Parasram (PW3), injured-Munnalal (PW4), Nandkishore Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 5 CRA No. 2459 of 2010 (PW5), Hemant (PW6), Kantibai (PW7), Radiologist Dr. Jinesh Diwakar (PW8), Patwari Awad Kumar Shrivastava (PW9), Investigating Officer B.S. Dhurve (PW10), Autopsy Surgeon Dr. Sudhir Jain (PW11), Medical Officer Dr. R.K. Jain (PW12), Murat Yadav (PW13), ASI M.L. Choudhary (PW14) and injured-Ramkali (PW15) and exhibited various documents in support of the case. In defence, appellant No.6-Jairam examined himself.
7. On consideration of the entire evidence on record, the learned trial Judge, after going through oral as well as documentary evidence on record, though acquitted the appellants of the charge under Sections 294 and 506 Part II but found them guilty of the other charges and accordingly convicted and sentenced them in the manner as indicated hereinabove. Being aggrieved, the appellants have preferred the present appeal.
8. Legality and propriety of the impugned convictions have been challenged on the ground that the statements of the prosecution witnesses are contradictory to each other and do not corroborate to the circumstances narrated by the prosecution. It is pointed out that (i) the fatal injury which resulted into death of Ramnath was caused by appellant No.2-Banshilal by means of an axe. As appellant No.2- Banshilal expired during pendency of the appeal and hence, the appeal qua appellant No.-Banshilal stood abated and (ii) the appellant No.1- Tulsiram has already completed his entire jail sentence and has been released from jail on 02.10.2023.
9. Now it is required to be seen whether the other accused persons namely appellant No.3-Ramesh, appellant No.4-Bablu, appellant No.5- Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 6 CRA No. 2459 of 2010 Sitaram, appellant No.6-Jairam and appellant No.7-Gangaram, as per the prosecution case, who are alleged to have inflicted injuries on the victims and participated in the assault, are liable for committing the offence punishable under Sections 302, 326 (on two counts) and 323 of IPC with the aid of Section 149 of IPC and whether they are sharing any common intention.
10. There is a significant distinction between Section 34 and Section 149 of IPC. Section 34 requires active participation and prior meeting of minds whereas Section 149 assigns liability merely by membership of an unlawful assembly and has a wider scope than Section 34 IPC. The Supreme Court in Virendra Singh vs State of M.P reported in (2010) 8 SCC 407 noted the differences as under:
"46(i) Section 34 does not by itself create any specific offence, whereas Section 149 does so;
(ii) Some active participation, especially in crime involving physical violence, is necessary under Section 34, but Section 149 does not require it and the liability arises by reason of mere membership of the unlawful assembly with a common object and there may be no active participation at all in preparation and commission of the crime;
(iii) Section 34 speaks of common intention, but Section 149 contemplates common object which is undoubtedly wider in its scope and amplitude than intention; and
(iv) Section 34 does not fix a minimum number of persons who must share the common intention, whereas Section 149 requires that there must be at least five persons who must have the same common object."
11. It is argued that if the entire prosecution story is seen and the statement of witnesses are considered including the medical reports, it Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 7 CRA No. 2459 of 2010 is clear that there was no intention to cause death of Ramnath. The accused persons armed with deadly weapons such as sword, axe, rod and lathi went to the house of Ramnath and accused-Tulsiram, Banshilal, Ramesh and Bablu abused them and on refusal, they inflicted injuries to Virendra and Ramnath and after inflicting the injures, they ran away saying that in case they reported the matter to police, they would be killed. As a cross-case being Crime No.628 of 2009 for the offence under Sections 294, 323, 324, 506, 341 and 34 of IPC at Cantt. Police Station Sagar was registered against the complainant party, therefore, as per settled proposition of law, the individual act is required to be taken note of. The allegations against the other accused are that they have inflicted injuries by means of rod and lathi and legs & fists jointly and since there is no specific overt act attributed to them, the benefit should have extended to them. The injuries caused to the accused has not been explained by the prosecution and therefore, the benefit should have extended to the accused persons. It is prayed that the appeal be allowed.
12. Per contra, counsel appearing for the respondent-State has vehemently opposed the contentions and has supported the impugned judgment of conviction stating that the accused-appellants went to the house of Virendra and hurled abuses and when Ramnath came out of the house asking them not to abuse, at the relevant time, the injuries were inflicted initially by accused-Tulsiram to Virendra who was seriously injured and thereafter to Ramnath on his head by accused- Banshilal who subsequently expired during treatment. The participation of all the accused persons is not disputed. As the presence is clearly Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 8 CRA No. 2459 of 2010 established, even if the cross-case is taken note of, however, in the cross-case registered against the complainant party, they have already been acquitted. Therefore, no benefit of the said judgment or trial can be extended to them. He has drawn attention of this Court to the statement of the eyewitness including injured Virendra, Ramkali and Munnalal who have supported the case of the prosecution. Their statements are consistent insofar as the incident is concerned and inflicting of injuries by the appellants is concerned. Therefore, the participation of the accused is clearly reflected. Their intention and sharing of common object is also reflected from the fact that they armed with deadly weapons came to the house of the deceased Ramnath and thereafter, have inflicted injuries. Therefore, sharing of common intention by the accused is also reflected. He has supported the judgment passed by the trial Court and has prayed for dismissal of the appeal.
13. Heard learned counsel for parties and perused the records.
14. As already mentioned hereinabove that appellant No.2-Banshilal against whom allegation of inflicting of injuries by means of an axe to the deceased Ramnath is concerned, he has already expired, therefore, the appeal stood abated as against him. As regards appellant No.1- Tulsiram is concerned, the allegation against him was inflicting injuries by means of sword initially to Virendra who is an injured and complainant and thereafter the other injured persons including deceased. Appellant No.1-Tulsiram has completed his entire jail sentence and was released from jail on 02.10.2023. Insofar the allegations against the other accused-appellants are concerned, there are Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 9 CRA No. 2459 of 2010 allegations that they have actively participated in commission of the offence in furtherance of sharing a common intention and common object. Therefore, the appeal insofar other appellants are concerned, has to be examined whether they are part of unlawful assembly and have participated in commission of the offence in furtherance to the common object/intention or not.
15. As per the prosecution story, the incident is said to have taken place on 23.09.2009 and the FIR has been registered by injured Virendra (PW2) on the same date who stated that on 23.09.2009 when he was at his home and having a conversion with his father Ramnath, at that time, accused Tulsiram armed with sword, accused-Banshilal armed with axe, accused-Ramesh armed with rod and accused-Bablu armed with lathi came there and hurled abused at him and at that time Ramnath came out of his house and asked them not to shout and abused him. At that time, accused-Tulsiram inflicted injuries by means of a sword on the head of the complainant Virendra and when Ramnath came to his rescue, accused-Banshilal hit him with axe on his head. Thereafter, accused-Bablu picked Virendra up and has thrown him on the ground. Thereafter, all four inflicted injuries assaulted them by hands and legs, lathi and rod, axe and sword. They were shouted. At that time, Murat Yadav and Kanti Bai rushed to the spot and on seeing them, the accused ran away. After some time, accused-Sitaram armed with Baka, accused-Gangaram armed with lathi, accused-Jairam armed with lathi again came at the spot. They abused them and inflicted injuries by means of hands & legs and baka and lathi and threatened Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 10 CRA No. 2459 of 2010 them if they lodged a report against them, they would kill them. On the basis of the said report, the FIR (Ex.P/9) has been registered.
16. Before proceeding further, it is to be examined that whether the death of Ramnath was homicidal in nature.
17. Injured Virendra (PW2) being the author of FIR (Ex.P/9) has deposed in his statement that accused-Tulsiram armed with sword, accused-Banshilal armed with axe, accused-Ramesh armed with rod and accused-Bablu armed with lathi abused him and said that you are having lot of money and at that time when his father Ramnath asked him not to abuse, accused-Tulsiram gave a blow on the head of Virendra by means of sword and when Ramnath tried to intervene, accused-Banshilal hit him on his head by an axe and thereafter, accused-Bablu caught hold of Virendra and lifted him up and threw him on the ground. Thereafter, all the four started beating with hands and legs. On hearing the hue and cry, Murat Yadav (PW13) and Kantibai (PW7) rushed to the spot and on seeing them, the accused fled away from the spot. After some time, accused-Sitaram armed with baka, accused-Jairam and Gangaram, both having lathis in his hands, came there and again inflicted injuries to Virendra and his father Ramnath and gave threatening that in case they reported the matter to the police, they would kill them. Therefore, the matter was reported to the police. The injured were sent for medical examination. The injuries which are caused are medically corroborated.
18. Dr. H.K. Bhuriya (PW1) who conducted the MLC found following injuries :
On the body of Virendra :Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25
NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 11 CRA No. 2459 of 2010
(i) Incised wound at left frontoparietal region 10 cm x 05 cm x scalp deep
(ii) Lacerated wound on left pareital 6 cm x 1 cm x scalp deep
(iii) Contusion on right abdomen laterially 6 cm x 4 cm
(iv) Contusion on left thumb 3 cm x 1 cm
(v) Abrasion over right FA post vertical 12 cm x 2 cm
(vi) Contusion over right FA size 4 cm x 1 cm On the same day, he examined Ramnath and found following injuries :
On the body of Ramnath :
(i) Lacerated wound over right fronto-parietgal region AP size 10 cm x 05 cm x scap deep
(ii) Deformity at FA L/3 post fractures
(iii) Incised wound over right arm AP size 5 cm x 0.2 cm x mid deep
(iv) Incised wound over right wrist post 6 cm x 0.8 cm x mid deep
19. The medical expert further examined Munnalal (PW4) and Ramkali (PW15) and has found following injuries :
On the body of Munnalal :
(i) Contusion over left chest and 2 cm dia
(ii) Contusion over right thigh size 12 cm x 4 cm
(iii) Contusion over right chest size 8.5 cm x 0.2 cm vertical
(iv) Abrasion on right lower chest transverally 3 cm x 0.2 cm
(v) Abrasion over left lower chest oblique size 8 cm x 0.2 cm On the body of Ramkali :
(i) Incised wound between right thumb and index finger size 5 cm x 2 cm x mid deep Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 12 CRA No. 2459 of 2010
(ii) Contusion over left clavicle region middle bony ends
20. Subsequently, during treatment, Ramnath succumbed to the injuries so received and his post-mortem was carried out by Autopsy Surgeon Dr. Sudhir Jain (PW11) who found injuries as is reflected from his report vide Ex.P/38. The medical expert reported the death to be caused by injuries inflicted on the head resulting into coma. The cause of death was opined to be the head injury. Under these circumstances, the death is homicidal in nature.
21. Now it is to be examined whether overt act of the appellants No.3, 4, 5, 6 and 7 falls under the purview of Section 149 of the IPC.
22. Section 149 of IPC postulates an assembly of five or more persons having a common object i.e. one of those named in Section 141 of IPC and then doing of the act as by the members of it in prosecution of that object. The basis of constructive guilt under Section 149 is mere membership of an unlawful assembly. Under Section 149, if the accused is a member of an unlawful assembly, the common object of which is to commit a certain crime, and such a crime is committed by one or more of the members of that assembly, every person who happens to be a member of that assembly would be liable for the commission of the crime being a member of it irrespective of the fact whether he has actually committed the criminal act or not. There is a distinction between the common object and common intention. The common object need not require prior concert and a common meeting of minds before the attack, and an unlawful object can develop after the assembly gathered before the commission of the crime at the spot itself. There Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 13 CRA No. 2459 of 2010 need not be prior meeting of the mind. It would be enough that the members of the assembly which constitutes five or more persons, have common object and that they acted as an assembly to achieve that object. In substance, section 149 makes every member of the common unlawful assembly responsible as a member for the act of each and all, merely because he is a member of the unlawful assembly with common object to be achieved by such an unlawful assembly. At the same time, one has to keep in mind that mere presence in the unlawful assembly cannot render a person liable unless there was a common object and that is shared by that person. The common object has to be found and can be gathered from the facts and circumstances of each case (See. Rabindra Mahto vs State of Jharkhand reported in (2006) 10 SCC 432).
23. In Devi Lal vs State of Rajasthan reported in (1971) 3 SCC 471, the Hon'ble Supreme Court has held as under :
13. .. Under Section 34, when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The words "in furtherance of the common intention of all" are a most essential part of Section 34 of the Penal Code, 1860. It is common intention to commit the crime actually committed. This common intention is anterior in time to the commission of the crime. Common intention means a pre-arranged plan. On the other hand. Section 149 of the Penal Code, 1860 speaks of an offence being committed by any member of an unlawful assembly in prosecution of the common object of that assembly. The distinction between "common intention" under Section 34 and "common object" under Section 149 is of vital importance. ...".Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25
NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 14 CRA No. 2459 of 2010
24. As per the prosecution story, participation of all the accused persons is reflected. They all were armed with deadly weapons like sword, axe, rod and lathi and inflicted injuries. The incident has taken place in two parts; initially four persons namely accused-Tulsiram, Bhansilal, Ramesh and Bablu were rushed to the place of incident and have inflicted injuries and thereafter, accused-Sitaram, Jairam and Gangaram came there and again inflicted injuries. Though it is true that the assault on Ramkali (PW15) and Munnalal (PW4) was not reflected in the FIR (Ex.P/9) lodged by complainant Virendra (PW2) but from the perusal of the statements of the injured persons i.e. Ramkali and Munnalal recorded during investigation as well as during trial as well as from the medical evidence, it is clear that they were beaten by accused- Sitaram, Gangaram and Jairam by means of baka and lathis.
25. Virendra (PW2) being the injured and complainant in the case clearly deposed regarding inflicting of injuries by means of sword to him by accused-Tulsiram and inflicting of injuries by means of an axe by accused-Bhansilal to deceased Ramnath on his head. The injuries are medically corroborated. There is specific allegation of inflicting of injuries by all the accused persons to the injured Virendra, Ramkali, Munnalal and Ramnath who subsequently passed away. MLC was got conducted on 23.09.2009 and Dr H.L. Bhuriya found as many as six injuries on the body of Virendra and four injuries on the body of Ramnath. The details are already provided hereinabove.
26. It is the stand taken by the complainant with respect to the incident to the effect that appellant No.6-Jairam registered a counter case at Crime No.628 of 2009 for the offence under Sections 294, 323, Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 15 CRA No. 2459 of 2010 324, 506, 341/34 of IPC. The FIR of cross-case is Ex.D/5. The said FIR was recorded by ASI M.L. Choudhary (PW14). In the FIR which is lodged by appellant No.6-Jairam, wherein there is allegation of inflicting of injuries by means of knife by Virendra and others inflicted injuries by means of lathis, hands and legs. Tulsiram, Bablu and others tried to save him and they are also beaten. Therefore, the report was made. However, the fact remains that the accused have been acquitted in the counter case as per the statement of the State counsel. No appeal has been preferred against their acquittal. Thus, the presence and participation of the accused persons is established in the matter.
27. The factum of previous enmity is reflected from the statements of the prosecution witnesses. A criminal case for offence under Section 326 of IPC was registered against Virendra as he has thrown acid on Tulsiram, Sitaram etc. Even in the cross-case, he has clearly stated that initially four persons have inflicted on him. He has also denied the allegation made against him for causing injuries to the accused persons.
28. The statement of Virendra is duly supported by the statements of his brother Munnalal (PW4) and mother Ramkali (PW15). He has specifically named the accused person inflicting the injuries by weapons to Ramnath. Accused-Gangaram, Sitaram and Jairam inflicted injuries to his mother Ramkali by means of lathis. In para 10 of his cross-examination, he stated that after all four accused persons have inflicted injuries, they went away and thereafter, accused-Gangaram, Sitaram and Jairam came there who have inflicted injuries to him as well as to his mother. He has not stated that any injury was inflicted to Virendra and Ramnath by Jairam, Gangaram and Sitaram.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 16 CRA No. 2459 of 2010
29. Nandkishore (PW5) who is the son of deceased Ramnath has supported the prosecution story. He clearly stated that accused- Tulsiram, Banshi, Ramesh and Bablu were armed with sword, axe, rod and lathi respectively and were demanding Rs.1 lakh and on refusal, they were shouting to kill him. From his statement, it is clear that he is not the witness to the initial incident rather subsequently when other three persons namely Sitaram, Gangaram and Jairam who were having baka and lathis respectively were inflicting injuries to his brother Virendra, father Ramnath and mother Ramkali. He has stated that during treatment, Ramnath passed away.
30. Ramkali (PW15) who is one of the injured has supported the prosecution story. She has given statement similar to that of Virendra (PW2) who is injured in the matter. She has stated that Sitaram, Gangaram and Jairam came to the spot and inflicted injuries to her. She has not made any statement with respect to injuries being inflicted by Sitaram, Gangaram and Jairam to the injured Virendra or deceased Ramnath.
31. Munnalal (PW4) does not appear to be eyewitness of the first incident. He has supported the prosecution story and the statements given by injured Virendra (PW2) and Ramkali (PW15). He has categorically stated regarding assault being made by accused-Tulsiram by means of sword, accused-Bhansi by means of axe, accused-Ramesh by means of rod and accused-Bablu by means of lathi to Ramnath and Virendra. He has further stated that as soon as he reached the place of incident, four accused persons ran away. Thereafter, accused-Sitaram armed with baka, accused-Gangaram & Jairam, both having lathis, Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 17 CRA No. 2459 of 2010 came there and started inflicting injuries. Accused-Sitraram assaulted his mother Ramkali by means of baka, Gangaram & Jairam inflicted injuries by means of lathis to his mother Ramkali. Accused-Gangaram and Jairam inflicted assaulted him by means of lathis. There is no specific averment made in the deposition regarding inflicting of injuries to either injured Virendra or the deceased Ramnath.
32. Thus, from the statements of the eyewitnesses, it is apparently clear that the incident has taken place in two parts, initially four accused persons viz. Tulsiram, Bhansi, Ramesh and Bablu rushed to the place of incident armed with sword, axe, rod and lathi respectively and assaulted Virendra and deceased Ramnath and thereafter when they ran away, accused-Sitaram, Gangaram & Jairam armed with baka and lathis came there and inflicted injuries to Ramkali (PW15) and Munnlal (PW4).
33. There is consistency in the statements of these witnesses as far as inflicting of injuries initially by four accused persons to the Virendra and his father Ramnath is concerned. Thus, it can easily be gathered that four persons i.e. accused-Tulsiram, Bhansi, Ramesh and Bablu who initially came to the spot and inflicted injuries have shared a common intention. It is a case wherein they have inflicted multiple injuries to the injured Virendra as well as to the deceased. The doctor has found six injuries on the body of injured Virendra and four injuries on the body of Ramnath which are medically corroborated. They came to the place of incident armed with deadly weapons, started hurling abuses to Virendra and when his father tried to intervene, they started inflicting injuries to him. Thus, the entire incident has not taken place on a spur of moment rather with pre-meeting of minds and having a common intention, they Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 18 CRA No. 2459 of 2010 came to the place of incident armed with sword, axe, rod and lathi and inflicted injuries to Virendra and his father Ramnath. Thus, it can easily be said that they have shared a common intention in the case. However, insofar as the act of accused-Sitaram, Gangaram and Jairam is concerned, their presence at the place of occurrence is shown subsequently after the initial four accused ran away. They came to the spot armed with baka and lathis and inflicted injuries to Ramkali (PW15) and Munnalal (PW4). Both sustained multiple injuries. The injured witnesses have not made any statement with respect to inflicting of injuries to injured Virendra and the deceased Ramnath. Therefore, it cannot be said that they were having any common intention with the other accused to commit murder of Ramnath and to cause injuries to Virendra. The nature of injuries caused to Ramkali and Virendra were found to be grievous in nature. The aforesaid aspect has not been disputed by the State counsel. Under these circumstances, it cannot be said that all the seven accused persons were members of an unlawful assembly.
34. An unlawful assembly as per section 141 of IPC means an assembly of five or more persons if the common object of the assembly is (i) to overawe by using criminal force or show criminal force, to Central or any State Government or Parliament or any State Legislature or any public servant; or (ii) To oppose the performance of any law or legal process; or (iii) To carry out any mischief or criminal trespass or any other offence; or (iv) By use of criminal force takes possession of any property or deprives any person of the right to the way or the use of water or any incorporeal right; or (v) With the use or show of criminal Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 19 CRA No. 2459 of 2010 force compels any person to do any illegal act. As section 141 there has to be at least 5 members and should have any one or more than one common object as mentioned above, to constitute an unlawful assembly. The essence of section 141 requires 5 persons and their common object. Being simply present with other members without any common object does not amount to an unlawful assembly. The mere presence of any person in an assembly without any common object does not make him the member of the unlawful assembly. In Bhanwar Singh v. the State of M.P., the court held that the common object of an unlawful assembly depends firstly on whether such object can be classified as one of those described under section 141; secondly, such common object need not be the product of prior concert but may form on spur of the moment, finally, nature of such common object is a question of fact to be determined by considering the nature of arms, nature of assembly, behaviour of members etc. The common object essentially to be examined keeping in view the acts of the members and the surrounding circumstances of a particular case. Further, there is always a possibility that an assembly may be turned to an unlawful one.
35. Thus, for formation of an unlawful assembly, at least five or more than five persons' presence is required. From the evidence available on record, it is seen that the ingredients of Section 34 of IPC are fulfilled in the present case insofar as the four persons i.e. Tulsiram, Bhansi, Ramesh and Bablu are concerned. They shared a common intention and inflicted injuries by means of deadly weapons. There were repeated injuries which were inflicted by them. Thus, they initially have shared a common intention, therefore, they would fall under the category of Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 20 CRA No. 2459 of 2010 Section 34 of IPC. Therefore, their acts are squarely covered under Section 302 read with 34 of IPC. They are equally responsible for causing injuries to Virendra and causing death of Ramnath.
36. As far as inflicting of injuries by other accused i.e. accused- Sitaram, Gangaram and Jairam is concerned, they have not shared any common intention as they have not inflicted any injury to Virendra and deceased Ramnath. They have inflicted injuries to Ramkali and Munnalal. Therefore, their case does not fall under the category of Section 302 read with 34 of IPC. Hence, they cannot be held liable for causing murder of Ramnath and for causing injuries to Virendra.
37. As far as cross-case is concerned, their individual acts are not required to be seen because in the cross case, the accused have already been acquitted and no appeal being filed against their acquittal as stated by the State counsel, therefore, no benefit can be extended to the appellants in the present case. It is settled position of law that the evidence of relatives cannot be discarded simply on the ground that they are interested witnesses. Moreover, a minor or trifle omission or contradiction brought on record is not sufficient to disbelieve the witness's version.
38. Insofar as omission and contradiction is concerned, reference can be had of the decision of the Hon'ble Supreme Court in the case of Baldev Singh vs State of Punjab reported in (2014) 12 SCC 473 wherein it is held as under :
27. We may now consider the submission of Mr Sharan that there were improvements in the deposition of PW 3 over his statements recorded during the investigation under Section 161 CrPC. The Explanation under Section 162 CrPC provides that an Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 21 CRA No. 2459 of 2010 omission to state a fact or circumstance in the statement recorded by a police officer under Section 161 CrPC may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. Thus, unless the omission in the statement recorded under Section 161 CrPC of a witness is significant and relevant having regard to the context in which the omission occurs, it will not amount to a contradiction to the evidence of the witness recorded in court.
39. The investigation of the case was entrusted to SHO B.S. Dhurve (PW10) who stated that after the incident, he visited the place of occurrence and prepared spot map. He recorded statements of Virendra, Parasram and Murat under Section 161 of CrPC. From the spot, he seized ordinary and blood-stained soil and recovered the weapons of offence i.e. sword, axe, rod, lathis, baka at the instance of respective appellants and recorded their memorandum statements and arrested them. He seized blood-stained cloth of deceased Ramnath and Virendra and sent these articles for forensic examination. He also recorded the statements of Hemant, Kantibai, Munnalal, Ramkali and Nandkishor. He further testified registration of counter case against the complainant party. He was cross-examined at length but nothing could be elicited in his cross examination so as to suggest that he was, in any way, interested in securing conviction of the appellants on absolutely false grounds.
40. Under these circumstances, after going through the entire evidence available on record, we arrive at a conclusion that the judgment passed by the learned trial Court convicting all the accused-
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 22 CRA No. 2459 of 2010 appellants with the aid of Section 149 IPC is unsustainable and hence, requires modification.
41. The appellants No.3 and 4 i.e. Ramesh and Bablu are held guilty of committing murder of Ramnath and causing injuries to Virendra. Therefore, their convictions under Sections 302/149, 326/149, 326/149 and 323/149 of IPC are altered to one under Section 302/34 of IPC (for causing death of Ramnath) and Section 326/34 of IPC (for causing injuries to Virendra). The consequent sentence part i.e. R.I. for Life and R.I. for 4 years, as awarded by the trial Court, are affirmed with the direction that the same shall run concurrently. The fine and default sentence remain unaltered.
42. As far as convictions of appellants No.5, 6 and 7 i.e. Sitaram, Jairam and Gangaram are concerned, their convictions with the aid of 149 of IPC are unsustainable rather it would fall under Section 34 of IPC. They are held guilty of causing grievous injuries to Ramkali (PW15) and causing injuries to Munnalal (PW4). Their convictions under Sections 302/149, 326/149, 326/149 and 323/149 of IPC are altered to one under Sections 326/34 of IPC (for causing grievous injuries to Ramkali) and 323/34 of IPC (for causing injuries to Munnalal). The consequent sentence part i.e. R.I. for 4 years and R.I. for 1 year, as awarded by the trial Court, are affirmed with the direction that the same shall run concurrently. The fine and default sentence remain unaltered.
43. It is reiterated that the appellant No.1-Tulsiram S/o Lallu Ram Ahirwar has completed 20 years in custody and after granting remission/commutation, he has been released on 02.10.2023. Hence, the Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 23 CRA No. 2459 of 2010 appeal qua appellant No.1-Tulsiram does not require consideration. The appeal qua appellant No.2-Banshilal S/o Lallu Ram Ahirwar stood dismissed as abated consequent to his death on 21.02.2015.
44. The bail bonds of the appellants No.3 and 4 namely Ramesh S/o Lallu Ram Ahirwar and Bablu S/o Lallu Ram Ahirwar, who are on bail, are cancelled. They are directed to surrender forthwith to serve the remaining part of the sentence, failing which the non-bailable warrants shall be issued against them by the concerned court for their arrest.
45. As per report dated 22.08.2024 received from the Jail Superintendent, Sagar, it reflects that appellants No.5, 6 and 7 i.e. Sitaram S/o Lallu Ram Ahirwar, Jairam S/o Banshilal Ahirwar and Gangaram S/o Sitaram Ahirwar are on bail. Since appellant No.5- Sitaram has already suffered 8 years, 11 months and 09 days in custody, he need not surrender, as he has undergone the entire sentence. His bail bonds stand discharged. Whereas, appellant No.6-Jairam has suffered 1 year, 1 month and 4 days in custody and appellant No.7-Gangaram has suffered 1 year, 1 month and 8 days in custody and as they are on bail, their bail bonds are cancelled. They (accused - Jairam and Gangaram) are directed to surrender forthwith to serve the remaining part of the sentence, failing which the non-bailable warrants shall be issued against them by the concerned court for their arrest.
46. For the reasons aforestated, the appeal is partly allowed and disposed of.
47. A copy of this judgment along with the record of the trial Court be sent to the court concerned for information and necessary action. Let Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:13:25 NEUTRAL CITATION NO. 2024:MPHC-JBP:51047 24 CRA No. 2459 of 2010 a copy of this judgment be also sent to the concerned jail authorities for compliance and necessary action.
(G.S. AHLUWALIA) (VISHAL MISHRA)
JUDGE JUDGE
VV
Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 17-10-2024
11:13:25