Chattisgarh High Court
Bhanu vs State Of Madhya Pradesh on 9 April, 2010
Author: T.P.Sharma
Bench: T.P.Sharma
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal 637 of 1991
1 Bhanu
2 Manorath
3 Premdas
4 Dasau
5 JAhdish
6 Shaila
7 Peela
8 Sukhchain
9 Chaitia
10 Tijauram
11 Trilochan
12 Chandrabhan
13 Jeevan
14 Chaitram
15 Tirathram
16 Bodhiram
17 Birajo
18 Madhav
19 Dayal
20 Chadru
21 Tilak
22 Bhalau
...Petitioners
Versus
State of Madhya Pradesh
...Respondents
! Mr Dheerendra Pandey, Mr G P Kurre
^ Mr Ashish Shukla
CORAM: HON'BLE MR T P SHARMA,HON'BLE MR N K AGRAWAL JJ
Dated: 09/04/2010
: JUDGEMENT
CRMINAL APPEAL UNDER SECTION 374 2 OF THE CODE OF CRIMINAL PROCEDURE 1973 The judgment of the Court was delivered by T.P.Sharma, J.:-
1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 11.5.91 passed by the 2nd Additional Sessions Judge, Bilaspur, in Sessions Case No.156/86, whereby and whereunder learned 2nd Additional Sessions Judge after holding 25 accused persons guilty for formation of unlawful assembly having its common object of commission of culpable homicide amounting to murder of Balwant, Sawant and Vishram (since deceased), they were armed with deadly weapons and for causing injury to Vidram, Santosh and Khorbahra and in furtherance of common object of unlawful assembly, the appellants and other members of unlawful assembly have committed culpable homicide amounting to murder of Balwant, Sawant and Vishram and also caused injury by sharp edged weapons to Vedram and simple injury to Santosh and Khorbhara convicted the appellants under Sections 148, 302/149, 302/149, 302/149, 324/149 & 324/149 of the Indian Penal Code and convicted accused Bhanu under Section 27 of the Arms Act and sentenced them to undergo imprisonment for life, imprisonment for life, imprisonment for life, rigorous imprisonment for one year, rigorous imprisonment for one year, rigorous imprisonment for one year and rigorous imprisonment for one year, respectively.
2. Conviction is impugned on the ground that without there being any iota of credible and clinching evidence sufficient for formation of unlawful assembly having its common object for commission of murder of Balwant, Sawant and Vishram and injuries to others and in furtherance of common object of unlawful assembly, murder and the aforesaid injuries took by members of unlawful assembly, the Court below has convicted and sentenced the appellants as aforementioned and thereby committed illegality.
3. Case of the prosecution, in brief, is that after murder of one Gangaram, the appellants and deceased Balwant, Sawant, Vishram and their families were in inimical terms with Vedram, Lokaeram, Kamalnarayan, Shatrughan, Fhaguram, Damla, Jai Singh Gond. Deceased Sawant, deceased Vishram and deceased Balwant were accused in Gangaram murder case. On the fateful day of 8.12.85, Kuteliyabai (PW-17), deceased Sawant and Santosh were uprooting tivra crop in the field at about 4 p.m., accused Birojo cried and called to other accused that "nkSMks&nkSMks rsyh HkMq, vdssys vius [ksr esa frojk dkV jgs gS". After hearing sound of Birojo, all the appellants reached to the field, and they were holding dangerous weapons. Accused Bhanu was holding gun and rests accused were holding betel axe and sticks, appellant Chirounji was holding pistol, Kuteliyabai saw that accused persons were coming towards her, then Kuteliyabai and Santosh tried to flee from the field, but accused persons surrounded them and assaulted Sawant by stick and betel axe, Kuteliyabai requested the accused for not to assault them, but accused chopped the neck of Sawant, accused Bhanu fired gun upon Sawant, Santosh shouted for help, then another deceased Balwant and Vishram, witness Vedram, Khorbahra and Panchram rushed to the spot, appellants also assaulted them by sticks and betel axe. Accused Bhanu fired upon Vishram by gun, Vishram fell down, then other accused persons assaulted Vishram. Accused Bhagwat directed accused Bhanu to kill Balwant, then Chirounji fired upon Balwant by pistol.
Accused Damla, Dashru, Manorath and Jagdish assaulted Balwant by betel axe and chopped his leg, Vedram fled from the spot and went inside the house and closed the door from inside. After commission of offence, the appellants/accused went from the spot. Sawant, Balwant and Vishram died instantaneously on the spot. After hearing sound, Kotwar Milaudas (PW-16) reached to the spot, Kuteliyabai was present on the spot who narrated the incident to Milaudas, Milaudas went to the police station and lodged the F.I.R. vide Ex.P/66. Merg intimation was recorded vide Exs.P/67 to P/70. Investigating officer proceeded for the scene of occurrence and after summoning the witnesses vide Exs.P/1 to P/3, inquest over the dead bodies of Sawant, Balwant and Vishram were prepared vide Exs.P/4 to P/6. Dead bodies of the deceased were sent for autopsy to Government Hospital, Mungeli vide Exs.P/39, P/40 and P/41A. Dr.S.S.Sisodiya (PW-9) conducted autopsy over the dead body of deceased Sawant vide Ex.P/39A and found following injuries:-
i) fracture of left leg;
ii) One incised wound over left leg. Leg was chopped;
iii) Incised wound of 5 cm. x 2 cm. x bone deep over right leg;
iv) Incised wound of 9 cm. x 3 cm. x bone deep over right leg;
v) Incised wound of 9 cm. x 3 cm. x bone deep over right hand;
vi) Incised wound of 8 cm. x 3 cm. x muscle deep on right elbow joint;
vii) Incised wound of 9 cm. x 3.5 x bone deep on the right forearm;
viii) Incised wound of 7 cm. x 2 cm. x muscle deep, 6 cm.
x 2 cm. x bone deep and 5 cm. x 2 cm. x muscle deep over left forearm, both the bones were fractured;
ix) Neck was chopped and head was attached from the body;
x) Incised wound on the right jaw of 6 cm. x 1 cm. x bone deep, two teethes were broken;
xi) Incised wound of 7 cm. x 2 cm. x bone deep including fracture of maxilla bone
xii) Two incised wounds over the face of 14 cm. x 2 cm. x bone deep and 12 cm. x 2 cm. x bone deep, brain matters were coming out;
xiii) Swelling of 13 cm. x 1.5 cm. over the chest. Internal organs of scalp were found cut.
Mode of death was shock and death was homicidal in nature. Dr.S.S.Sisodiya (PW-9) conducted autopsy over the dead body of deceased Vishram vide Ex.P/40A and found following injuries
i) Incised wound with fracture of both bones of left leg of 12.5 cm. x 3 cm. x bone deep;
ii) Incised wound of 9 cm. x 3 cm. x bone deep with including fracture of both bones of left leg;
iii) Incised wound of 12 cm. x 3.5 cm. x bone deep including fracture of right shoulder;
iv) Two incised wounds of 8 cm. x 2 cm. x bone deep and 7 cm. x 2.5 cm. x bone deep including fracture of right hand in both the place;
v) Abrasion of 5 cm. x 1 cm. over right hand;
vi) Multiple contusions over back of the chest of 5 cm. x 2 cm. to 14 cm. x 2 cm.;
vii) Multiple black spot over the body of .5 cm. x .5 cm., especially on the right side of buttock, left greater tracketer, left thigh and right side of the chest below nipple on dissection. Blackness was also found below the skin;
Injures were caused by sharp and blunt object and firearm. Mode of death was neurogenic shock and death was homicidal in nature. Dr.S.S.Sisodiya (PW-9) conducted autopsy over the dead body of deceased Balwant vide Ex.P/41 and found following injuries:-
i) Right leg was chopped;
ii) Incised wound over left leg of 15 cm. x 7 cm. x bone deep including fracture of both the bones;
iii) Incised wound of 1.5 cm. x .5 cm. over left index finger. Left hand was chopped;
iv) Incised wound of 5 cm. x 1 cm. x muscle deep over right buttock;
v) Incised wound of 5 cm. x 2 cm. x muscle deep over right shoulder;
vi) Two incised wounds over back side of the neck of 8 cm. x 2 cm. x muscle deep and 5 cm. x 2 cm. x bone deep;
vii) Incised wound over occipital region of 7 cm. x 2 cm. x bone deep;
viii) Abrasion over left middle finger of 1.5 cm. x .5 cm.
Mode of death was shock and death was homicidal in nature. Dr.S.S.Sisodiya (PW-9) has also examined injured Vedram vide Ex.P/42 and found one abrasion and multiple black abrasions of 1/3 cm. x 1/3 cm. to + cm. x + cm. under nose, left side of chest and cheek, abrasion of 2 cm. x 1 cm. over left shoulder. Injuries were caused by firearm. He has also examined Khorbahra vide Ex.P/43 and found blackness over right thumb and left metacarpoflegiyar joint. It was suspected that injuries have been caused by firearm. He has also examined Santosh vide Ex.P/44 and found abrasion over head and thigh. Bamboo stick, empty cartridges, plain & bloodstained soil were recovered from the spot vide Ex.P/7. During the course of investigation, accused persons were taken into custody and interrogated. On the basis of confessional statements of accused Manorath Ex.P/9, Jagdish Ex.P/11, Mitau Ex.P/13, Trilochan Ex.P/15, Shaila Ram Ex.P/17, Sukhchain Ex.P/19, Chaitiya Ex.P/21, Peela Ex.P/23, Dashru Ex.P/25, Bhanu Ex.P/27, Santosh Ex.P/33, Dayal Das Ex.P/74, Bhallu Ex.P/76, weapons were seized vide Exs.P/10, P/12, P/14, P/16, P/18, P/20, P/22, P/24, P/26, P/28, P/29, P/30, P/31, P/32, P/34, P/75, P/76, P/77 and P/78. Sealed clothes of the deceased were seized vide Exs.P/68 to P/70. One register was seized from Balakdas vide Ex.P/38. Seized articles were examined by doctor. Empty cartridges, plain and bloodstained soil, bamboo stick were seized from the spot vide Exs.P/62 and P/63. Clothes and one betel axe were seized from accused Premdas vide Ex.P/64. One 12 bore gun and cartridges were seized from Devprasad vide Ex.P/65. Copies of rojnamchas were also filed along with charge sheet vide Exs.P/71 and P/72. Viscera were seized vide Ex.P/22. Seized articles were sent for chemical examination vide Ex.P/81 and presence of blood was confirmed over the weapons seized from the accused persons vide Exs.P/87 to P/90.
4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code') and after completion of investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Bilaspur, who in turn committed the case to the Court of the Sessions, Bilaspur from where the 2nd Additional Sessions Judge, Bilaspur received the case on transfer for trial.
5. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 22 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code where they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question.
6. After affording opportunity of hearing to the parties, the 2nd Additional Sessions Judge has convicted and sentenced the appellants as aforementioned.
7. We have heard Mr.Dheerendra Pandey, counsel for appellant No.12 Chandrabhan, Mr.G.P.Kurre, counsel for appellant No.17 Birajo Bai, Mr.Ashish Shukla, Government Advocate for the State/respondent, perused the judgment impugned and record of the Court below.
8. Mr.Dhreerendra Pandey, counsel for appellant No.12 Chandrabhan and Mr.G.P.Kurre, counsel for appellant No.17 Birajo Bai argued that although this is the case of brutal murder of three persons but only on account of murder of three persons, liability cannot be fastened upon the appellants on the moral ground without any credible and clinching evidence. In case of enmity and rivalry, the prosecution is under obligation to prove its case strictly beyond all shadow of doubt, especially on the ground that in case of enmity, rival groups in a tendency to implicate their opposite party. In the present case, the evidence adduced on behalf of the prosecution reveals that Birajo Bai was not holding any weapon, she has not assaulted any person, she was alone present near the place of incident and she has not formed the unlawful assembly having its common object of murder of three persons. Likewise, appellant Chandrabhan has also not caused any injury, he was not present on the spot, he has not formed any unlawful assembly having its common object of commission of murder of three persons, therefore, even the persons present near the place of incident as spectator or stranger like other witnesses and persons after hearing the sound for help and sound of quarrel would not make appellant Chandrabhan liable for commission of the offence.
9. On the other hand, learned State counsel supported the judgment impugned and argued that in the present case, according to the evidence adduced on behalf of the prosecution, the complainant party were uprooting tivra crop, then appellant Birajo Bai was the person who had called other all accused persons for killing the complainant party, then all appellants armed with country-made pistil, gun and other dangerous weapons betel axe and sticks came to the spot and committed murder of three persons. This fact is sufficient for drawing an inference that all the appellants armed with deadly weapons came at the instance of Birajo Bai and committed murder of three persons shows that they have formed with common object of unlawful assembly, they were armed with deadly weapons and in furtherance of common object of the unlawful assembly they have committed murder of three persons who were armless and were not in a position to defend or take recourse of the authorities for themselves.
10. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution, especially in the light of defence taken by the accused persons. In the present case, homicidal deaths as a result of ante-mortem fatal injuries of deceased Balwant, Sawant and Vishram have not been substantially disputed on behalf of the appellants, on the other hand, also established by the evidence of Dr.S.S.Sisodiya (PW-9), autopsy report of Sawant Ex.P/39, autopsy report of Vishram Ex.P/40 and autopsy report of Balwant Ex.P/41 which reveal that deaths of the aforesaid deceased were homicidal in nature and injuries by dangerous weapons to injured Vedram and simple injury to Santosh have also not been substantially disputed on behalf of the appellants, same is also established by the evidence of Dr.S.S.Sisodiya (PW-9) and injury report of Vedram Ex.P/42 and injury report of Santosh Ex.P/44.
11. As regards the complicity of the appellants in the crime in question, originally all the appellants have challenged the legality & propriety of their conviction, but after releasing appellants No.1 to 11, 13 to 16 and 18 to 25 after completion of sentence and remission given by them by the appropriate Government, learned counsel for the respective appellants had withdrawn the appeal filed against themselves and only appeal filed on behalf of appellant Nos.12 and 17 is remained for consideration before us. The conviction is substantially based on the evidence of eyewitness Kusuba (PW-
2), injured witness Santosh Kumar (PW-6), injured witness Vedram (PW-15), Kuteliya Bai (PW-17), wife of deceased Sawant, Uttejan (PW-18), son of deceased Sawant, who have deposed in their evidence that deceased Sawant, injured Santosh and witness Kuteliya Bai were uprooting tivra crop in their field, appellant Birajo Bai was going towards her house through village road (dharsa) who cried that nkSMks&nkSMks rsyh HkMqok dks ekjks. Complainant party and the deceased were by caste Teli, then accused persons including appellant Chandrabhan rushed to the place of incident from Satnami Ward, they were holding gun, pistol, betel axe and sticks, Chandrabhan was holding stick, injured Santosh, deceased Sawant and witness Kuteliya Bai tried to rush towards their house, then all accused persons surrounded them and caused fatal injuries to Sawant, at that time, Vishram, Balwant , Panchuram and Khorbahra also came to the spot after hearing sound for help, the accused persons also killed Balwant and Vishram and caused injuries to Vedram and Khorbahra. Appellant Bhanu fired upon the complainant party and killed firstly Sawant and then Vishram and also caused injury to Vedram. Accused Chirounji fired from pistol upon Balwant. All accused assaulted the aforesaid three persons who died and other persons. Defence has cross-examined these witnesses in detail. There are some contradictions and omissions in their previous statement recorded under Section 161 of the Code and the evidence recorded in the Court. They have admitted the enmity between both the parties relating to the land. All the witnesses are members of the complainant party.
12. Admittedly, in the present case, some witnesses are relatives and all are interested witnesses on account of rivalry group, but their evidence cannot be discarded only on the ground of their relation and enmity. In case of enmity, interestedness and relation, the Court is required to scrutinize their evidence minutely to exclude possibility of false implication on account of enmity. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. Inimical witnesses have a tendency to implicate their enemy along with real culprit, but not at the cost of real culprit.
13. In the present case, according to the case of the prosecution, 25 persons have caused injuries to three deceased and three injured persons. According to the evidence of Dr.S.S.Sisodiya (PW-9) about 17 to 18 injuries were found over the body of deceased Sawant, more than 20 injuries were found over the body of deceased Vishram, about 20 injuries were found over the body of deceased Balwant, more than 4 injuries over the body of injured Vedram, two injuries were found over the body of Khorbahra and two injuries were found over the body of Santosh. Huge numbers of injuries were found over the body of three deceased and three injured persons.
14. In case of assault of 25 persons by different weapons, it is difficult for the person who is also receiving injury has seen the incident, but describes the fact that who has caused injury by which weapon over which part of body of which person. It may be simply excepted that the witnesses should be in a position to say the presence of the person/assailant, what weapon he was holding and whom he has caused injury.
15. In the present case, conviction is substantially based on the ground of formation of unlawful assembly having its common object of commission of culpable homicide amounting to murder of Sawant, Balwant and Vishram and injuries to other persons and they were armed with deadly weapons.
16. In the present case, the evidence of the aforesaid witnesses clearly established that firstly Chandrabhan and other accused persons were not present on the spot, appellant No.17 Birajo, while coming to her house, saw Sawant and other persons who were uprooting tivra crop, may be on her field, then she shouted and called the appellants for assaulting the complainant party, then all appellants came to the spot, they were holding gun, country-made pistol, betel axe and sticks, all were armed with deadly weapons. This evidence clearly establishes that under the command of appellant No.17 Birajo, all appellants came with deadly weapons and assaulted the aforesaid injured persons. This is not the case where the appellants were already present in their work like agricultural work or gathered for other purpose. This is not the case in which the appellants took out the weapons/object present on the spot like spade, kudari, sticks wooden club and wooden plank which was lying on the field, then they assaulted the injured. The appellants came with deadly weapons i.e., betel axe, sticks, pistol and gun which were not for common use or for common bearing and they assaulted the deceased persons. By holding betel axe, gun and country- made pistol and joining such group who were holding betel axe, gun and pistol, the definite inference would be drawn that they were having knowledge or they were having common object of killing the persons.
17. Constitution of unlawful assembly is a question of fact and the prosecution is required to prove constitution of unlawful assembly and its common object. Unlawful assembly may be constituted at any moment and person may join unlawful assembly at any time, even at the time of causing injury, but the prosecution is required to prove the aforesaid fact by adducing cogent and reliable evidence that the persons have formed the unlawful assembly or joined in unlawful assembly having its common object and was having its common object for commission of the aforesaid offence. Mere presence as a stranger, by passer or gathered on the spot to see quarrel or the incident would not make the person liable for formation of unlawful assembly or liable for the commission of offence.
18. While dealing with the question of formation of unlawful assembly, the Apex Court in the matter of Chandra Bihari Gautam & Ors. v. State of Bihar1 has held that unlawful assembly may be constituted at any movement and even assembled of accused, but the existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. Para 6 of the said judgment reads as under:
"6. It has been argued alternatively that even if the occurrence is held to have taken place in the manner alleged by the prosecution and the accused persons were seen on spot, they cannot be convicted and sentenced as the prosecution allegedly failed to establish the accused persons. Section 149 is an exception to the criminal law whereunder a person can be convicted and sentenced for his vicarious liability only on proof of his being a member of the unlawful assembly, sharing the common object, notwithstanding as to whether he had actually participated in the commission of the crime or not. Common object does not require prior concert and a common meeting of minds before the attack. An unlawful object can develop after the accused assembled. The existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. It is true that the mere presence of the accused is not sufficient to hold them guilty for the sharing of common object as the prosecution has to further established that they were not mere by- standers but in fact were sharing the common object. When a concerted attack is made by a large number of persons, it is often difficult to determine the actual part played by each of the accused but on that account, for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons provide to be members cannot escape the consequences arising from the doing of that act which amounts to an offence. There may not be a common object in a sudden fight but in a planned attack on the victim, the presence of the common object amongst the persons forming the unlawful assembly can be inferred."
19. While dealing with the same question, the Apex Court in the matter of Pandurang Chandrakant Mhatre v. State of Maharashtra2 has held that conduct of each member of unlawful assembly before and at the time of attack is relevant consideration. Object of unlawful assembly is a question of fact which has to be determined keeping in view nature of assembly, arms carried by members, and behavior of members at or near scene of incident. Mere presence on the spot will not make the person liable for commission of the offence with aid of Section 149 of the Indian Penal Code.
20. While dealing with the same question, the Apex Court in the matter of Masalti v. State of U.P.3 has held in para 17 as under:-
"17...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 along with the other members of the assembly the common object as defined by Section 141 IPC. 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 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."
21. While dealing with the same question, the Apex Court in the matter of Sherey v. State of U.P.4 has held in para 4 as under:-
"4..But when there is a general allegation against a large number of persons the court naturally hesitates to convict all of them on such vague evidence. Therefore we have no find some reasonable circumstance which lends assurance. From that point of view it is safe only to convict the abovementioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom over acts are attributed."
22. While dealing with the question of need of overt act or active participation of member of unlawful assembly, the Apex Court in the matter of Lalji and others v. State of U.P.5 has held that once formation of unlawful assembly is established, then no overt act or active participation of any member of unlawful assembly is required and mere meeting of five or more persons for carrying out common object involving reasonable apprehension of violence, even without doing any overt act is sufficient to constitute offence. Paras 8 and 9 of the said judgment reads as under:-
"8. Section 149 IPC provides 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 the 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. As has been defined in Section 141 IPC, an assembly of five or more persons is designated an "Unlawful Assembly", if the common object of the persons composing that assembly is to do any act or acts stated in clauses "First", "Second", "Third", "Fourth", and "Fifth" of that section. An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. 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. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence. Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm persons of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141 IPC. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.
9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge."
23. While dealing with the question of intention/common object of unlawful assembly, the Apex Court in the matter of State of U.P. v. Dan Singh and others6 has held that intent of members of assaulting party can be gathered from number and nature of injuries and arm used by them. An assembly which is initially lawful may subsequently become unlawful. Paras 30 and 31 of the said judgment reads as under:-
"30. From the aforesaid facts, as found by the High Court, let us examine whether there existed any unlawful assembly and what was its common object. It is possible that there was no unlawful assembly in existence at the time when the "doli"
was stopped. Nevertheless as per the evidence of all the eyewitnesses, a large number of villagers had gathered there and they had with them lathis and sticks. According to the explanation to Section 141 IPC an assembly which is not unlawful when it assembles may subsequently become an unlawful assembly. As observed by this Court in Lalji v. State of U.P.1 "that common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case". What has happened in the present case is precisely what has been envisaged in the explanation to Section 141 IPC. With Khima Nand being injured, all hell broke loose. A cry was raised that the Doms should be burnt and killed, and this is precisely what happened. The marriage party was assaulted by the villagers. Six of the members of the marriage party were burnt, five of them having been locked inside the house of the only Dom resident of the village whose house was also burnt. Eight others were pursued and then mercilessly beaten and were killed elsewhere in the village. We fail to appreciate how anyone, under the circumstances, can possibly come to the conclusion that an unlawful assembly having the common object of killing the Doms did not exist when fourteen people have been killed without the use of any weapon more lethal than a stick or stone. Considering the number of injuries on the persons who had died, it is evident that a large number of persons must have taken part in the assault. Even if the assembly of villagers was initially lawful, the same, undoubtedly, became unlawful when the riot started after Khima Nand was injured. All the eyewitnesses have said that fifty or more villagers had taken part in the attack. Who were members of the assembly will be considered later but what is relevant to note is that a large number of villagers were present, duly armed with lathis and sticks, when the occurrence started and except six people who were burnt, eight others were beaten to death by blows from lathis, sticks and stones. It is difficult to appreciate the conclusion of the High Court that, under the circumstances, the attackers probably had a similar object but not a common object.
31. It was sought to be contended that there is nothing to show that the unlawful assembly continued to exist during the course of the entire incident. It is not possible to accept this considering that when all that remained in the village, of the marriage party, were fourteen corpses. It is only those members of the marriage party who had run away were able to save their lives. The only conclusion which we can arrive at, in the instant case, is that there was an unlawful assembly which attacked the marriage party and which had the common object of killing them, and they succeeded in their endeavour to a large extent."
24. While dealing with the question of common object and necessity of overt act of members of unlawful assembly, the Apex Court in the matter of Gangadhar Behera and others v. State of Orissa7 has held that evidence relating to common object generally not available and same has to be gathered from the act committed and result therefrom. Likewise once assembly is formed, then overt act of any member of assembly is not assembled and even an assembly which is initially lawful may subsequently become unlawful. Paras 22, 23 and 24 of the said judgment reads as under:-
"22. Another plea which was emphasized 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 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 an 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 a 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.
23. "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 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 on the spot eo instanti.
24. 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 a 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 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 the first, offences committed in prosecution of the common object would be generally, if not always, within the second, namely, offences which the parties knew were likely to be committed in the prosecution of the common object. (See Chikkarange Gowda v. State of Mysore25.)"
25. In the light of law as propounded by the Apex Court in the aforesaid cases for constitution of unlawful assembly, five or more than five members are required their common objects must be for commission of the offence as envisages in Section 141 of the Indian Penal Code. An assembly constituted lawful may be converted into unlawful assembly at any moment. Normally the evidence relating to common object of unlawful assembly is not possible. It may be inferred from the act committed by the unlawful assembly and result of such act once it is proved that unlawful assembly has been constituted, then any overt act or active participation of any member of unlawful assembly is not necessary. All members would be liable for the commission of offence or the act committed by any member of unlawful assembly in accordance with Section 149 of the Indian Penal Code.
26. If we have examined the present case in the light of the aforesaid legal propositions, then it would be clear that deceased Sawant, injured Santosh, witness Kuteliya Bai were uprooting tivra crop in their field, appellant No.17 Birajo Bai called other 24 accused persons and told that ekjks rsyh HkMok dks- The complainant party by caste Teli, then 24 accused persons rushed to the spot, then deceased Sawant, injured Santosh and Kuteliya Bai tried to run away from the spot, accused Bhanu was holding gun, accused Chirounji was holding pistol, accused Netu, Madho, Bhagwat, Santosh, Dayal, Manorath, Damla, Dasru, Shaila, Jagdish, Trilochan, Tijau, Sukhchain, Chaitiya, Peela and Manglu were holding betel axe and rests accused including appellant No.12 Chandrabhan were holding sticks, they surrounded Sawant and Santosh, they killed Sawant by the use of firearm, dangerous weapon betel axe and sticks. When the injured called to their relatives for rescue them, then they also killed Balwant and Vishram by firearm, dangerous weapon betel axe and sticks and caused huge numbers of injuries to other three injured persons. These evidence are sufficient to establish the fact that at the instance of appellant No.17 Birajo Bai, all accused came to the spot, they were armed with deadly weapons, they have not taken the object lying on the spot, but they came with firearm, sharp edged weapons and sticks, they gathered on the spot and they assaulted brutally and have killed three persons.
27. Gathered more than five persons arm with firearm, betel axe and sticks itself is sufficient to infer that the persons have gathered with definite object and their object was to kill the person by use of firearm and other dangerous weapons. In case of assault by firearm dangerous weapons betel axe and sticks, it would be possible for the person who is also received injury or whose husband/relatives are receiving injury and ultimately they died to describe the details of injury, details of weapons used and part of the body effected.
28. These evidence are sufficient to establish the fact that all the appellants have formed with common object of unlawful assembly and object of unlawful assembly was to commit culpable homicide amounting to murder of Sawant, Balwant and Vishram and cause injuries to Vedram, Santosh and Khorbahra and in furtherance of common object of unlawful assembly, they or members of unlawful assembly have caused fatal injuries to Vedram, Santosh and Khorbahra and caused deaths of Sawant, Balwant and Vishram.
29. The evidence adduced on behalf of the prosecution is sufficient for drawing inference that appellant No.12 Chandrabhan and appellant No.17 Birajo Bai were members of unlawful assembly having its common object to commit culpable homicide amounting to murder of Sawant, Balwant and Vishram and to cause injures to Vedram, Santosh and Khorbahra, therefore, appellants Nos.12 and 17 are liable for commission of the offence committed by unlawful assembly in accordance with Section 149 of the Indian Penal Code .
30. After appreciating the evidence available on record, learned 2nd Additional Sessions Judge, Bilaspur has arrived at a finding that appellant No.12 Chandrabhan and appellant No.17 Birajo Bai had constituted unlawful assembly with other 23 members armed with deadly weapons having its common object to commit culpable homicide amounting to murder of Sawant, Balwant and Vishram and to cause injuries to Vedram, Santosh and Khorbahra and in furtherance of common object of unlawful assembly they have committed culpable homicide amounting to murder of Sawant, Balwant and Vishram and caused injury to Vedram, Santosh and Khorbahra. The finding of the Court below is based on legal, clinching and credible evidence sustainable under the law. While arriving at such finding, the Court below has not committed any illegality and has rightly convicted the appellants for the commission of the aforesaid offence. The Court below has also imposed minimum sentence prescribed under the law.
31. For the foregoing reasons, we do not find any illegality in the judgment impugned. The appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. Appellant No. 17 Birajo Bai is on bail, she shall surrender immediately before the 2nd Additional Sessions Judge, Bilaspur for serving remaining part of sentence imposed upon her in Sessions Case No.156/86.
JUDGE