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Madhya Pradesh High Court · body

2018 DIGILAW 857 (MP)

Mithailal v. State of M. P.

2018-10-04

R.S.JHA, SANJAY DWIVEDI

body2018
JUDGMENT Jha, J.--1. This appeal has been filed by the appellants being aggrieved by the judgment dated 11.7.2008 passed by the Special Judge Shahdol, District Shahdol in S.T. No. 286/2000 whereby the trial Court has held each of the appellants guilty of the offences punishable under sections 302 read with sections 149, 307 read with section 149 and section 148 of the Indian Penal Code and have been sentenced to undergo life imprisonment with fine of Rs. 2,000/- each, rigorous imprisonment for ten years with fine of Rs. 1000/- each and rigorous imprisonment for one year with fine of Rs. 500/- each, respectively, with default stipulations. 2. The prosecution case, in brief, is that on 15.10.1999 in the afternoon the appellants, arming themselves with farsa, axe and sticks, stopped the deceased Bhoora @ Afsar and the injured eye witness Hakim Singh (PW11) while they were going on a scooter and a motorcycle from village Lohasur to Kotma along with Jeevan (PW3), Ramesh Kumar (PW9) and Trilok Singh (PW14) and thereafter assaulted the deceased Bhoora @ Afsar and Hakim Singh (PW11) with the farsa and axe. According to the prosecution, the appellants inflicted as many as ten injuries on the person of the deceased Bhoora @ Afsar and as many as five injuries on the person of Hakim Singh (PW11), as a result of which the deceased Bhoora @ Afsar died while Hakim Singh (PW11) sustained grievous injuries which resulted in severance of the index finger of his left hand. 3. The report of the incident was lodged by Laxmi Devi (PW1), who is the wife of Hakim Singh (PW11) on 15.10.1999 at Police Station Kotma whereafter criminal law was set in motion. 4. The trial Court, on the basis of the statements of the four eye witnesses; Laxmi Devi (PW1), Jeevan Singh (PW3), Ramesh Kumar (PW9) and injured eye witness Hakim Singh (PW11) as well as on the basis of the statement of Dr. Smt. S. Kori (PW4), the FSL report (Ex.P-56) and the recovery of the offending weapons from some of the appellants, has recorded a finding of conviction against all of them. Smt. S. Kori (PW4), the FSL report (Ex.P-56) and the recovery of the offending weapons from some of the appellants, has recorded a finding of conviction against all of them. The trial Court, on the basis of the clear statement of Jeevan Singh (PW3) and Hakim Singh (PW11), has also recorded a finding that all the appellants were present on the spot, formed an unlawful assembly with a common object to commit the crime and held all the appellants guilty for the offences under sections 302 read with section 149 and 307 read with section 149 of IPC as well as under section 148 of the IPC. 5. The learned counsel appearing for the appellants submits that Laxmi Devi (PW1) does not name any of the appellants in the FIR nor does she name all the appellants in the statement before the Court. He has also pointed out that Ramesh Kumar (PW9), who was moving along with the deceased and injured eye witness when the incident occurred, has also not named all the appellants and in such circumstances, the finding recorded by the trial Court regarding the commission of the crime by all of the appellants is perverse. The learned counsel for the appellants also submits that there are several omissions and contradictions between the statements of the eye witnesses in respect of the person who has delivered the first blow and there is no statement given by the eye witnesses attributing the active participation of any of the appellants and in such circumstances, in the absence of any specific statement made by the eye witnesses attributing specific and clear act of inflicting injuries upon the deceased and the injured eye witness, the findings arrived at by the trial Court and the consequent conviction of the appellants are unsustainable. 6. We have heard the learned counsel for the parties at length and perused the record. 7. On a perusal of the statement of Laxmi Devi (PW1) it is evident that while she has specifically named the appellants Ramadeen, Lalla, Mithailal, Mohan, Ram Singh, Maha Singh, Suryakant and Ramdayal, she has clearly stated that she did not know the names of the other appellants though she has recognized them as the persons who were present on the spot and participated in the commission of the crime. In para-1 of her deposition she has clearly stated that all the appellants who are present in the Court had participated in the commission of crime. She has made similar statement in paragraphs 4, 5, 6, 7, and 8 of her statement and, therefore, the contentions of the learned counsel for the appellants that she has not named all the appellants is not borne out from the statement of Laxmi Devi (PW1). Similarly Ramesh Kumar (PW9), while not naming the appellants individually, has clearly stated before the Court that he recognized all the appellants and that all of them were present and have actively participated in the commission of the crime and all of them were shouting and extolling each other to make sure that the deceased Bhoora @ Afsar and Hakim Singh (PW11) be murdered. 8. A perusal of the statement of Jeevan Singh (PW3) and the injured eye witness Hakim Singh (PW11) clearly establishes the fact that all the appellants were present on the spot and both these witnesses have clearly and specifically named all the appellants, not just before the Court, but also in their case diary statements. All the four eye witnesses have also stated that all the appellants were extolling each other to commit the crime and all were present on the spot with a common object of doing so. 9. A perusal of the statement of Dr. Smt. S. Kori (PW4) clearly establishes that as many as ten injuries were inflicted upon the deceased Bhoora @ Afsar and all of them had been inflicted with hard and sharp weapons and that most of these injuries were on the head. According to the postmortem report (Ex.P-5) vertebral column of the deceased as well as his main arteries were severed as a result of which he died. 10. The statement of Dr. Smt. S. Kori (PW4) also indicates that out of the five injuries inflicted upon the injured eye witness Hakim Singh (PW11), three were simple while two were grievous, resulting in severance of the index finger and fracture on the metacarpal bone of the small finger of the left hand. Ex.P-7 is the medico-legal report in respect of Hakim Singh (PW11). Smt. S. Kori (PW4) also indicates that out of the five injuries inflicted upon the injured eye witness Hakim Singh (PW11), three were simple while two were grievous, resulting in severance of the index finger and fracture on the metacarpal bone of the small finger of the left hand. Ex.P-7 is the medico-legal report in respect of Hakim Singh (PW11). Ex.P-56 which is the FSL report also establishes the fact that the farsa, seized on the memorandum of the appellants Ram Dayal, Suryakant and Chotka @ Amarchand and the stick seized from the appellant Mohan contained stains of human blood. 11. From a perusal of the aforesaid oral and documentary evidence, it is apparent that the appellants got together and inflicted several injuries on the person of the deceased Bhoora @ Afsar as a result of which he died and also inflicted injuries upon the person of Hakim Singh (PW11) which resulted in severance of his index finger and fracture on the small finger of his left hand. The statements of the witnesses indicate that all the appellants had got together with the common object of committing the crime and all of them knew that the likely outcome of such unlawful assembly could be the death of the persons who were assaulted. In the circumstances, the Court below has rightly applied the provisions of section 149 of IPC to record a finding of guilt and conviction against the appellants under section 302 read with section 149 and section 307 read with section 149 of the IPC. Moreso, as in such cases, it is not necessary to analyze and record a finding in respect of the act or crime committed by each of the appellants as this is not the requirement of section 149 of IPC. 12. The decisions of the Supreme Court rendered in the cases of Ramesh and other v. State of Haryana [ AIR 2011 SC 169 ], and Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel and others [ (2018) 7 SCC 743 ], support the view taken by the trial Court wherein the Supreme Court has analyzed the provisions of sections 148 and 149 of the Indian Penal Code in paragraphs 27 to 35 in the following terms : "27. Section 148 declares that rioting armed with deadly weapons is a distinct offence punishable with the longer period of imprisonment (three years). Section 148 declares that rioting armed with deadly weapons is a distinct offence punishable with the longer period of imprisonment (three years). There is a distinction between the offences under sections 146 and 148. To constitute an offence under section 146, the members of the "unlawful assembly" need not carry weapons. But to constitute an offence under section 148, a person must be a member of an unlawful assembly, such assembly is also guilty of the offence of rioting under section 146 and the person charged with an offence under section 148 must also be armed with a deadly weapon. 28. Section 149 propounds a vicarious liability in two contingencies by declaring that (i) if a member of an unlawful assembly commits an offence in prosecution of the common object of that assembly, then every member of such unlawful assembly is guilty of the offence committed by the other members of the unlawful assembly, and (ii) even in cases where all the members of the unlawful assembly do not share the same common object to commit a particular offence, if they had the knowledge of thefact that some of the other members of the assembly are likely to commit that particular offence in prosecution of the common object. 29. The scope of section 149 IPC was enunciated by this Court in Masalti [Masaltiv. State of U.P., AIR 1965 SC 202 : (1965) 1 Cri LJ 226] : "17. … 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. 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 Baladin [Baladin v. State of U.P. [ AIR 1956 SC 181 : 1956 Cri LJ 345], 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, 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." 30. It can be seen from the above, sections 141, 146 and 148 create distinct offences. Section 149 only creates a vicarious liability. However, sections 146, 148 and 149 contain certain legislative declarations based on the doctrine of vicarious liability. The doctrine is well known in civil law especially in the branch of torts, but is applied very sparingly in criminal law only when there is a clear legislative command. To be liable for punishment under any one of the provisions, the fundamental requirement is the existence of an unlawful assembly as defined under section 141 made punishable under section 143 IPC. 31. The concept of an unlawful assembly as can be seen from section 141 has two elements : (i) The assembly should consist of at least five persons; and (ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein. 32. 31. The concept of an unlawful assembly as can be seen from section 141 has two elements : (i) The assembly should consist of at least five persons; and (ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein. 32. For recording a conclusion, that a person is (i) guilty of any one of the offences under sections 143, 146 or 148 or (ii) vicariously liable under section 149 for some other offence, it must first be proved that such person is a member of an "unlawful assembly" consisting of not less than five persons irrespective of the fact whether the identity of each one of the 5 persons is proved or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the 5 enumerated objects specified under section 141 IPC. 33. The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual members of the assembly, in our opinion is impermissible. For example, if more than five people gather together and attack another person with deadly weapons eventually resulting in the death of the victim, it is wrong to conclude that one or some of the members of such assembly did not share the common object with those who had inflicted the fatal injuries (as proved by medical evidence); merelyon the ground that the injuries inflicted by such members are relatively less serious and non-fatal. 34. For mulcting liability on the members of an unlawful assembly under section 149, it is not necessary that every member of the unlawful assembly should commit the offence in prosecution of the common object of the assembly. Mere knowledge of the likelihood of commission of such an offence by the members of the assembly is sufficient. 34. For mulcting liability on the members of an unlawful assembly under section 149, it is not necessary that every member of the unlawful assembly should commit the offence in prosecution of the common object of the assembly. Mere knowledge of the likelihood of commission of such an offence by the members of the assembly is sufficient. For example, if five or more members carrying AK 47 rifles collectively attack a victim and cause his death by gunshot injuries, the fact that one or two of the members of the assembly did not in fact fire their weapons does not mean that they did not have the knowledge of the fact that the offence of murder is likely to be committed. 35. The identification of the common object essentially requires an assessment of the state of mind of the members of the unlawful assembly. Proof of such mental condition is normally established by inferential logic. If a large number of people gather at a public place at the dead of night armed with deadly weapons like axes and firearms and attack another person or group of persons, any member of the attacking group would have to be a moron in intelligence if he did not know murder would be a likely consequence." 13. In view of the aforesaid analysis of the oral and documentary evidence on record; the finding and conclusion recorded by the trial Court and the law relating to section 149 of the IPC, we do not find any perversity or illegality in the impugned judgment passed by the trial Court or the finding in respect of the guilt of the appellants. 14. The appeal filed by the appellants being meritless is, accordingly, dismissed. The judgment dated 11.7.2008 passed by the Special Judge Shahdol, District Shahdol in S.T. No. 286/2000 convicting the appellants under sections 302 read with section 149, 307 read with section 149 and section 148 of the Indian Penal Code, is affirmed and confirmed. 15. It is informed that all the appellants are on bail. Their bail bonds shall stand cancelled and they shall be taken into custody forthwith or shall surrender to undergo the remaining part of the sentences.