HIGH COURT OF MADHYA PRADESH : JABALPUR (Division Bench) [CASE NUMBER] [ENTITY] and others -Versus- [ENTITY] Shri [ENTITY], amicus curiae for the appellants. Smt. [ENTITY], Govt. Advocate for the State. CORAM : Hon'ble Shri Justice [ENTITY], Chief Justice. Hon'ble Shri Justice [ENTITY], Judge. JUDGMENT
( Jabalpur, dtd.27.06.2018) Per : [ENTITY], J.-
In the present appeal filed under [SECTION] of the [ACT], challenge has been made to the order of conviction and sentence dated 8-02-2008 passed by the learned I Additional Sessions Judge, Khandwa District Khandwa in [CASE NUMBER], whereby the accused-appellants have been convicted and sentenced as under:
Conviction Sentence Under [SECTION] of the [ACT] for 1 year and fine [ACT]. of Rs.200/- each, in default, further [ACT] for three months to each.
Under [SECTION] of the [ACT] for six months and [ACT]. fine of Rs.100/- each, in default, further [ACT] for one month each.
Under [SECTION] of the [ACT] for 5 years and fine [ACT]. of Rs.200/- each, in default, to undergo further [ACT] for six months.
Under [SECTION] of Imprisonment for life the [ACT]. and fine of Rs.500/- each, in default, further [ACT] for 1 year to each. Under [SECTION] of [ACT] for three months the [ACT], as regards and fine of Rs.100/-, in [ENTITY]. default, further [ACT] for fifteen days.
Under [SECTION] of [ACT] for three months and the [ACT], as regards Amar fine of Rs.100/-, in Singh. default, further [ACT] for fifteen days.
Under [SECTION] of [ACT] for 3 years and fine the [ACT] of Rs.200/- to each, in default, to suffer further [ACT] for six months each.
(substantive sentence to run concurrently)
2. The prosecution case, succinctly stated, is that on 28-12- 2005 the complainant - [ENTITY] went to the field for sowing gram crops along with her sister-in-law, [ENTITY], [ENTITY] and [ENTITY]. At about 5:00 PM, her uncle - [ENTITY] (Kaka) came at the spot and started abusing the brother of the complainant, namely, [ENTITY] and had also hit him with the butt of the axe over his thigh. Because of the said incident, all were terrified and went back to their house. It is further alleged that around 05:30 PM the accused persons, namely, [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY], formed an unlawful assembly and armed wirth lethal weapons viz. axe and `lathis' came to the house of the complainant. The family of the complainant had closed the front and back doors of the house. The accused [ENTITY] had broken the front door with the help of an axe. Thereafter other accused persons, namely, [ENTITY], [ENTITY], [ENTITY] entered into the house of the complainant from the back door after breaking it. It is alleged that the accused persons, [ENTITY] and [ENTITY] had beaten [ENTITY] and the accused [ENTITY], [ENTITY] and [ENTITY] had beaten [ENTITY] (since the deceased). Thereafter, [ENTITY] was also beaten with the help of `lathis' and the brother of the complainant, [ENTITY] was beaten by [ENTITY]. Thereafter, the deceased [ENTITY] was dragged from the room to the courtyard by the accused persons - [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. She was brutally assaulted with the help of `lathis' by [ENTITY] and [ENTITY] and when she had fallen down, she was also beaten by the accused - [ENTITY], [ENTITY] and others.
3. It is alleged that at that point of time the accused - [ENTITY] smashed the head of the deceased - [ENTITY] with a heavy stone and she died at the spot. Thereafter, all the accused persons had fled away from the house towards the forest. The complainant and other family members confined themselves in the house and in the morning they went to their relatives at Village - Eda and the father of the complainant - [ENTITY] came and thereafter police was informed on phone. The Investigating Officer - [ENTITY] came to the Village on 29-12-2005 and at about 13:30 hrs. a `[ENTITY]' (Ex.P/1) was lodged. Telephonic intimation was recorded in [ENTITY], vide Ex.P/33 at the Police Station, Piplond District Khandwa.
4. The Investigating Officer, PW-10 executed site plan, Ex.P/3 and also seized blood-stained soil and wooden pieces - vide Ex.P/4. The injured persons - [ENTITY], [ENTITY], [ENTITY] and [ENTITY] were sent for medical examination and the dead-body of the deceased - [ENTITY] was sent for postmortem examination. On 13-12- 2005 the accused persons were arrested and on the discovery statements of the accused - [ENTITY], an axe was seized, vide Ex.P/13. `Lathis' were seized on the discovery statements of [ENTITY] and [ENTITY], vide Ex.P/14 and Ex.P/15 respectively. From the accused, [ENTITY], [ENTITY] and [ENTITY] `lathis' were seized, vide Ex.P/15 to Ex.P/19 and also other accused persons. An axe was also seized on the discovery statement of the accused - [ENTITY] and `lathis' from [ENTITY] and [ENTITY] - vide Ex.P/22 and Ex.P/23. From other persons also `lathis' were seized. There was blood stain on the butt of the axe seized from the accused [ENTITY].
5. The injured persons were examined by Dr. [ENTITY], PW-9 and some of the injured witnesses were further referred for x-ray and other ancillary tests. The autopsy of the dead-body was carried out and the report is Ex.P/31. In the autopsy report 21 external injuries and 9 internal injuries were found and the cause of death was found to be excessive bleeding as a result of shock. The seized `lathis' were sent for further opinion of the doctor that whether the injuries received by the deceased and the injures witnesses could have been caused by those `lathis'. A report was submitted vide Ex.P/32 by PW-9 that the injuries to the deceased and the witnesses could have been caused by these seized articles. Further medical tests were carried out. X-ray was conducted by Dr. [ENTITY] (PW-12). X-ray and other reports were submitted vide Ex.P/49. The injured witness [ENTITY] was also examined by Dr. [ENTITY] (PW-13). The seized articles were sent for chemical examination and its report is Ex.P/46. In the seized weapon - an axe from the accused [ENTITY], a `lathi' from [ENTITY] and human blood was found on the cloths of the deceased.
6. After due investigation and completing necessary formalities, the charge-sheet was filed against the accused persons before the competent court of jurisdiction, which in turn committed the matter to the Court of Sessions. The accused, namely, [ENTITY] being a juvenile was tried separately by the Juvenile Court.
7. All the accused persons abjured their guilt and pleaded that they are innocent and they have been falsely implicated because of dispute and rivalry in the family.
8. Counsel for the appellants submitted that there is no evidence to prove that there was any common object to murder the deceased - [ENTITY] and their intention was only to teach the lesson to the complainant's side and since the prosecution could not prove common object to murder, therefore, all the appellants cannot be convicted for commission of the offence of murder, as there intention was only to teach the lesson. At the most, intention could be held intention to cause a grievous hurt. It is further submitted that there is previous enmity and all the eye witnesses are family members, therefore, their testimonies are liable to be discarded.
9. Per contra, counsel for the State submitted that conviction and sentence is based on ocular and medical evidence and there is no illegality in the impugned judgment and, therefore, no interference of this Court is warranted in the present appeal.
10. We have heard learned counsel for the parties and in order to appreciate the contention of the counsel for the appellants that whether the unlawful assembly had no intention to kill the deceased, we have to appreciate the evidence of the eye witnesses and medical evidence in proper perspective.
11. It is relevant to mention here that there are five eye witnesses and out of five eye witnesses, four are injured witnesses. PW-1, [ENTITY] has stated that for going to their field they have to pass through the field of the accused - [ENTITY]. He used to stop them from going to their agriculture field. She has stated that on 28-12- 2005 at about 05:00 PM her uncle - [ENTITY] came in the field and started abusing [ENTITY] and thereafter had given `lathi' blows and with the help of butt of the axe over his thigh and thereafter, they all had come the house. In the evening at about 05:30 PM the accused persons - [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] came to their house armed with lethal weapons viz. `lathis' and axe. The accused - [ENTITY] and [ENTITY] were armed with axes whereas other accused persons were having `lathis' in their hands. The complainant's family had closed the front and back doors of the house, as they were terrified. The accused [ENTITY] has broken the front door of the house with the help of an axe and thereafter the accused persons entered into the house by breaking the doors and the wall. Some of the accused persons, namely, [ENTITY] and others entered into the house after breaking the back doors. The complainant was beaten by the accused [ENTITY], [ENTITY] with the help of `lathis' whereas the accused
- [ENTITY], [ENTITY] and [ENTITY] had beaten [ENTITY] and [ENTITY] with `lathis'. When her brother - [ENTITY] tried to stop them he was also beaten. Thereafter, he had run away from the house. Her mother - [ENTITY] was dragged by the accused [ENTITY], [ENTITY], [ENTITY] and [ENTITY] from the room to the courtyard and thereafter the accused persons - [ENTITY] and [ENTITY] had beaten her with the help of `lathis' and when she had fallen down, other accused persons - [ENTITY], [ENTITY] etc. also beat her. It is alleged that the accused - [ENTITY] smashed her head with the help of a big stone. Thereafter, the accused persons had gone from the house of the complainant but family members were so terrified that they had gone to forest to save their lives. In the morning they had taken shelter in the Village - Eda. When the father of the complainant - PW-1, [ENTITY] and [ENTITY] came then the police was given intimation about the incident on telephone which was recorded in the [ENTITY], Ex.P/33 by PW-10. He came at the spot and the [ENTITY] (Ex.P/1) was recorded by him. Her statement has been corroborated by other injured witnesses viz. PW-2, PW-3; [ENTITY] and [ENTITY] respectively. They have also stated that the accused persons entered into the house after breaking the doors and had beaten the family members and dragged the deceased to the courtyard and all the accused persons had beaten the deceased with the help of `lathis'. Statements of PW-2 and PW-3 are well supported by another injured witness - [ENTITY] who is the daughter of the complainant. There is also an independent eye witness, [ENTITY] who has also stated that he had seen the accused persons killing the deceased and beating the family members of the complainant. The intimation to the police and registration of `[ENTITY]' is proved by the Investigating Officer, PW-10. These injured witnesses were sent for medical examination by the Investigating Officer and they were examined by Dr. [ENTITY] (PW-2).
12. PW-9, Dr. [ENTITY] has stated that on 29-12-2005 he was posted to Civil Dispenasary, Piplound. He had examined [ENTITY] and vide his medical report, Ex.P/27 he found 9 injuries on the person of [ENTITY] (PW-1). He also examined PW-2, [ENTITY] and her medical report is Ex.P/28. He examined another injured witness PW-3, [ENTITY] and found four external injuries on his person, vide medical report - Ex.P/29. The same doctor also examined another witness, [ENTITY] and the medical report is Ex.P/30. He found three injuries on her person. Dr. [ENTITY] had done autopsy of the dead-body of the deceased on 30-12-2005 and found 21 external injuries on the person of the deceased. There was smashed wound of 5 cm x 1 cm and 10 cm x 1 cm frontal bone region of skull and temporal, parietal and occipital bone region. There were other three smashed wounds on the skull running 5 cm x 1 cm on left parietal occipital bone region. There were lacerated wounds, contusion and other injuries on the person of the deceased. He also found 9 to 12 internal injuries on frontal bone region, parietal bone region, right parietal occipital bone and other injuries on the parietal bones. He had carried out the postmortem of the deceased with the help of Dr. [ENTITY]. The cause of death was found excessive bleeding due to fracture on the skull and grievous injuries. The postmortem report, Ex.P/31 was proved by him. He had also given a report the injuries could have been caused by the seized weapons, i.e., `lathis' and butt of the axe. Further test of fracture and other injuries were proved by Dr. [ENTITY] (PW-12). The injury of [ENTITY] was proved by Dr. [ENTITY] (PW-13) who had treated her in M.Y. Hospital Indore. These injured persons are eye witnesses, namely, [ENTITY] (PW-01), [ENTITY] (PW-3) and [ENTITY] (PW-6). They are stamp witnesses as they received injuries in the incident and their presence cannot be disputed and doubted. Their testimonies cannot be discarded merely on the ground that they are related with the deceased. The incident had taken place in the house of the deceased and, therefore, non-presence of other villagers in the house would not be fatal. Even statements of these injured witnesses are also supported by testimony of [ENTITY] (PW-4) who is not relative and is an independent witness. Thus, testimonies of these witnesses cannot be discarded.
13. The contention of the counsel for the appellants that there was no common object to kill the deceased but intention was only to threaten the complainant's side and at the most, their intention could have been to cause simple or grievous injuries to the deceased, cannot be accepted in light of the testimonies of these witnesses and in the facts and circumstances of the present case.
14. Counsel for the appellants vehemently relied on the judgment of the Apex Court rendered in the case of [PRECEDENT] to contend that since the accused persons have not used the sharp-edged side of the axe, therefore, it cannot be held that they had intention to kill the deceased. He further referred to the judgment passed in the case of [PRECEDENT], decided on 30-7-2008) to contend that on the basis of mere possibility the accused persons cannot be convicted for murder. It is also contended by him that the deceased was smashed by only one of the appellants, namely, the accused - [ENTITY] by means of a heavy stone and not by other accused persons, as there was no overtact or active participation by other accused persons, therefore, they cannot be held liable for the individual act of one of the accused persons.
15. The learned counsel appearing for the appellants further placed reliance upon the judgment of the Apex Court rendered in the case of [PRECEDENT] in support of his contention that all the appellants cannot be held guilty with the aid of [SECTION] of the [ACT] for common object to kill the deceased.
16. On assimilation of entire facts and testimonies of the eye witnesses, we find that all the accused persons were aggressor and they went to the house of the complainant's side armed with lethal weapons viz. `lathis' and axe. They had broken the front and back doors of the house. They had beaten all the family members of the deceased and the deceased was dragged from the room to the courtyard and thereafter, all the accused persons had beaten them by means of `lathis'. It is alleged that thereafter [ENTITY] had also smashed the head of the deceased. The manner in which the offence has been committed that the accused persons had gone to the house of the deceased armed with lethal weapons and thereafter had broken the doors and trespassed into the house of the deceased and had beaten her and other witnesses. We are of the considered view, the prosecution has proved that all these persons had formed an unlawful assembly with common object to kill the deceased. Contention of the appellant cannot be accepted that it was an individual act of [ENTITY] who had smashed the head of the deceased because all the accused persons are alleged to be armed with `lathis' and axes and had beaten the deceased and other witnesses. Further human blood has been found present in the `lathi' and the axe seized from the accused persons. Testimony of the four eye witnesses who are injured witnesses - [ENTITY] (PW-1), [ENTITY] (PW-2), [ENTITY] (PW-3) and [ENTITY] (PW-6) cannot be discarded because of some minor contradictions and because they are relatives of the deceased. Once the prosecution has established that an unlawful assembly was formed and the accused persons were armed with deadly weapons and had broken into the house of the deceased, it is not necessary to prove the overtact by every persons.
17. In the case of [PRECEDENT] the Apex Court has held as under:
"19. [SECTION] 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]. It must be noted that the basis of the constructive guilt under [SECTION] is mere membership of the unlawful assembly, with the requisite common object or knowledge."
18. In Yunis Vs. [ENTITY] (2003) 1 SCC 425, learned counsel appearing for the appellant therein argued that no overt act was imputed to his client and he was being implicated only on the basis of [SECTION] [ACT]. This Court ascribing no merit to the argument, held that :
" even if no overt act is imputed to a particular person, when the charge is under [SECTION] [ACT], the presence of the accused as part of an unlawful assembly is sufficient for conviction". Accordingly the Court"
Accordingly the Court in that case observed that the appellant was a member of the unlawful assembly which itself is sufficient to hold him guilty when his presence has not been disputed.
19. Relying on [PRECEDENT] this Court in [PRECEDENT] held;
" 52. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of [SECTION] [ACT] if they shared common object of the unlawful assembly"
20. Following the aforesaid judgments the Apex Court reiterated the principle in the cases of [PRECEDENT], regarding constructive liability for being part of the unlawful assembly held that it is well settled that once it is established that unlawful assembly had a common object it is not necessary that every member of an unlawful assembly must be shown to have committed some overt act, rather they can be convicted under [SECTION] of [ACT].
21. In view of the aforesaid delineation of facts, the judgments relied upon by the learned counsel for the appellants would not apply in the facts and circumstances of the present case, especially when the prosecution case is proved by four injured eye witnesses, who are the stamp witnesses in the present case.
22. In view of the aforesaid enunciation of law, we do not find any error in the findings recorded by the Court below convicting and sentencing the accused-appellants, warranting any interference of this Court in the present appeal.
23. Ex-consequenti, the appeal deserves to and is hereby dismissed.
24. Before parting with the case, we must put on record our unreserved appreciation for the valuable assistance rendered by the learned amicus curiae. The High Court Legal Services Committee shall remit fees of Rs.4000/- (Rs. four thousand only) to the learned counsel who has assisted this Court.
([ENTITY]) ([ENTITY]) Chief Justice Judge ac.