HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.209 of 2002 Yugal Kishor and others — Versus — State of Chhattisgarh JUDGMENT FdR CONSIDERATION / 5d:- L.c.BHAD00 Judge 7 14—9—2007 HoN’BLE MR. gusTICE sUNIL KUMAR SINHA/f/ ' / s I ar Smha 3 ~. N N Sun“ Kum , Judge Pos'r FOR JUDGMENT ON 17TH SEPTEMBER 2007 _,¥__~/ MI ’ Sdl- L.C.BHADOO [/r HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANTS / : . (Accused) l. Yugal Kishor, son of Ravishankar Devangan, aged about 21 years, resident of Village Changorabhatha, Police Station Purani Basti, Distt. Raipur, C.G. Umesh, son of Kailash Yadav, aged about 19 years. Laxmichand, son of Bhagela Ram Yadav, aged’ about 23 years. Shankar Lal, son of Bhoj Ram Yadav, aged. about 23 years. Above three are residents of Village Near Changorabhatha, Police Station Purani Basti, Distt. Raipur, C.G. RESPONDENT/z (Prosecution) — Versus — Present: — Mrs. Savita Tiwari, Advocate: Mr. Janak Ram Verma, Advocate: Mr. Ashish Shukla, Addl; Public Prosecutor with Mr. Akhil Mishra, Panel Lawyer: State of Chhattisgarh, Through PoliCe Station Incharge Purani Basti, Distt. Raipur, C.G. {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure} For appellants No.1 81, 2. For appellants No.3 85 41 whereby learned Additional Sessions Judge after holding the accused/ \ \ . \ appellants guilty for commission of offence under Sections 148, 302 read For the State / respondent. Coram: - Hon’ble Mr. L.C. Bhadoo and Hon’ble Mr. Sunil Kumar Sinha, JJ. JUDGMENT The following judgment of the Court was delivered by L.C. Bhadoo, J: - 1 The appellants have preferred this appeal against the Judgment of conv1ction and order of sentence dated 20th December 2001 passed by the 7m Additional Sessions Judge, Raipur 1n Sessmns Trial No.71/2001, (Delivered 0n 17th September, 2007) Criminal Appeal No.209 of 2002 with Section 149 85 323 read with Section 149 of the I.P.C., sentenced each of the accused/appellants to undergo R.I. for two years, imprisonment for life and pay a fine of Rs.500/—, in default of payment of fine to further undergo R.I. for six months and R.I. for one year, respectively. 2. Case of the prosecution, in brief, is that on 25th October, 2000 some altercation took place between Ashish Dubey (since deceased) and accused Yugal. Ashish Dubey called accused Yugal as Bhootnath, therefore, Yugal abused Ashish Dubey whereupon, Ashish Dubey gave beating to Yugal on which Yugal threatened Ashish that he will see him. On the fateful day 1e 27 10 2000 Ashish Dubey 85 Bharat (eyew1tness) were standing at Changorabhatha 1n the field of boys hostel Accused ‘ Yugal, Laxmi, Umesh, Shankar, 20 other named accused persons and one juvenile offender Neelu @ Tulsiram came there abusing and carrying Lathi, Danda, rod & Farsi in their hands. They were talking to attack» Ashish Dubey, therefore, Ashish Dubey ran towards the house of Sarpanch. The accused persons chased him, after encircling him started abusing and saying that he had beaten Yugal, therefore, they will not leave him. All the accused persons started attacking Ashish Dubey with Lathi, club, Gupti, rod 8r, sword. When Bharat ran towards Ashish Dubey to intervene, they attacked Bharat also. Ashish Dubey became unconscious and fell doWn. He sustained multiple injuries and died instantaneously. Bharat also sustained simple injuries on head 8L hand. Manish Thakur 8G Parmanand were also present there, they witnessed the incident. 3. The Police were informed and receiving the information, they took Ashish Dubey 8r Bharat to Medical College Hospital, Raipur where the doctor declared Ashish Dubey brought dead: Bharat was got medically examined. On the information given by Bharat, Dehati Nalishi EXP—3 was registered. Based on the Dehati Nalishi, first information report EXP-4 was registered. The Investigating Officer after giving notice EXP—1, prepared inquest EXP—2 on the body of Ashish. Body of Ashish Dubey w’as sent for post-mortem examination to Forensic Medicine Department, Mekahara Hospital, Raipur, where Dr. Sanjay Kumar Dadu (PW-9) conducted post-mortem on the body of Ashish Dubey. The doctor noticed \ 26 injuries on his body and opined that cause of death was shock 85 \\\ \ 75 ' haemorrhage as a result of stab injury t0 abdomen, injury caused by hard, sharp 85 penetrating object. He opined that the death was homicidal in nature. Injuries No.1 to 24 were caused by hard 85 blunt object. Based on the memorandum of accused persons various weapons of offence were seized. Bharat was examined by Dr. SuBist who prepared injury report EXP-49 and noticed twolacerated wounds on scalp 86 forehead. . After completion of investigation, charge sheet was flled in the Court of Judicial Magistrate, First Class, Raipur, against 30 accused persons including the four appellants, who in turn committed the case to the Sessions Judge, Raipur, from where learned 7th Additional Sessions 1 Judge, Raipur received the case on transfer for trial. s t‘ . In order t0 establish charges against the accusedpersons, the prosecution examined 16 witnesses. Statements of the accused persons were recorded under Séction 313 of the Cr.P.C. in which they denied the material appearing against them in the prosecution evidence and stated that they“ have been implicated in a false case. Learned Additional Sessions Judge after.hearing counsel for respective parties, convicted and sentenced the four accused/appellants as aforementioned, whereas acquitted other 26 accused persons of all the charges. . We have heard Mrs. Savita Tiwari, learned counsel for appellants No.1 8L 2, Mr. Janak Ram Verma, learned counsel for appellants No.3 85 4 and Mr. Ashish Shukla, learned Additional Public Prosecutor with Mr. Akhil Mishra, learned Panel Lawyer for the State. . Learned counsel for the appellants have not disputed the homicidal death of Ashish Dubey. Moreover, Bharat (PW—3), injured eyewitness, has stated in his evidence that the accused/appellants along with other accused persons attacked the deceased with Lathi, club, rod, sword 8L knife, therefore, the deceased sustained injuries and died instantaneously. Above ocular evidence is corroborated by the medical evidence of Dr. Sanjay Kumar Dadu (PW—9) who has stated that on 27—10-2000 he was working as Assistant Professor, Forensic Medicine Department, Medical Gtllege Hospital, Raipur, on that day, the body of Ashish Dubey was brOught for post-mortem examination. He conducted post-mortem and has stated that he noticed as many as 26 injuries out of which 8 were \ lacerated wounds on head 8a parietal region, at 14 places there were \\abrasions and two stab wounds on stomach. Clotted blood was found \ 4 ' beneath muscles 85 veins of neck, there were multiple fractures of thyroid cartilage, 6th 85 8th ribs were fractured, lot of blood was present behind the peritoneum and blood vessels of Vigentric membrane was ruptured. Cause of death was excessive bleeding and shock as a result of stab wound. The death was homicidal in nature. Post—mortem report is EXP— 50. Therefore, in view,of the above ocular and medical evidence, it is established that the death of Ashish was homicidal in nature. . As far as involvement of the accused/appellants in the commission of crime is concerned, learned Additional Sessions Judge has acquitted 26 accused persons on the ground t'hat Bharat (PW—3) has not identified those 26 accused persons. Learned Additional Sessions Judge further held thaft since na‘mes of four accused persons have been mentioned in i Dehati Nalishi EXP-3 and in the Court evidence also Bharat (PW-3) has stated about the four accused persons, Yuvraj was acquitted giving him benefit of doubt and further held that identification of accused Hemlal 8a,. other accused persons was not conducted. . The prosecution examined three witnesses as eyewitness namely, Bharat (PW-3), Manish (PW-10) 81, Parmanand Sahu (PW—ll). Presence of all the three witnesses on the spot is established because, PW—3 is injured witness who had lodged Dehati Nalishi EXP—3. Bharat has stated in his evidence that Manish 85 Parmanand Sahu were also present on the spot, but they have turned hostile and they have not supported the prosecution case. Manish (PW—10), however, has stated in his evidence that when he was standing in the ground, about 50-60 persons came carrying bamboo - stick in their hands saying/crying ‘Maaro Maaro’, thereafter, he left for his residence. In cross-examination, he has stated that Bharat was present there. 10.Bharat (PW-3) has stated in his evidence that out of 3O accused persons he can identify accused Laxmi, Shankar, Umesh, Yugal 85 Yuvraj, after indicating towards accused Hemlal, he said that he can recognize him by face. He cannot recognize remaining 24 accused persons. He has further sgated that Yuvraj informed him that people are playing cards in the field, therefore, he along with Yuvraj, Manish 85 Parmanand came in the field for playing cards. After some time, Ashish Dubey also came there. Manish 85 \ \\ Parmanand were playing cards. They were watching them. At that time, . about 30—40 persons of old Changorabhatha came there. Accused Laxmi \ caught the collar of Ashish and started abusing him. He can recognize only four persons out of the persons who attacked Ashish and they were Yugal, Umesh, Shankar 8s Laxmi. Number of persons were attacking Ashish, he is unable to recognize them except these four persons. He did not see accused Yuvraj attacking Ashishr Accused Hemlal attacked him that is why he can recognize him. Number of persons attacked him also. Accused Laxmi was carrying Danda, accused Yuvraj was carrying Patia and accused Umesh was carrying iron instrument. He sustained injuries on head at 2~3 places and on hands 8a forehead, blood started oozing out of the injuries, he was not able to‘see the injuries of Ashish. Police took Ashish in a vehicle; he was also taken to the hospital and admitted. Ashisl’i died.‘ He lodged report EXP-3, and based on that, F.I.R. EXP—4 was registered. In cross—examination para 20, he has again stated that he saw accused Laxmj, Shankar, Yugal 85 Umesh attacking the deceased. In cross~examination of this witness defence has not been able to bring on record any circumstance which discredits the evidence of this witness regarding involvement of four named accused/ appellants in the crime in question. 11. Mr. Janak Ram Verma, learned counsel for appellants Laxmichand 86 Shankarlal, argued that as per the evidence of Dr. Sanjay Kumar Dadu (PW—9), Ashish Dubey died on account of stab wound on stomach, whereas there is no evidence that these accused persons had attacked with any sharp 85 pointed weapon on the stomach of Ashish, some other persons had inflicted those injuries and all other accused persons have been acquitted. Only four accused persons have been convicted. Therefore, Section 149 of the I.P.C. is not applicable. Those fatal injuries which were responsible for causing the death of Ashish Dubey are not attributed to these accused persons, therefore, they are also entitled for acquittal. Learned counsel placed reliance on the decision of the Apex Court in the matter of Sukhbir Singh v. State of Haryanal‘. 12.Mrs. Savita Tiwari, learned counsel for appellants Yugal Kishor 86 Umesh, wby placing reliance on the judgment of the Apex Court in the matter of Atmaram Zingaraji v. State of Maharashtra2 argued that as other 26 persons have been acquitted and only four accused persons have been convicted, therefore, the accused/appellants can be convicted for their ‘AIR 2002 sc 1168 2 1997 (7) Supreme 363 \ \ ' individual action and they cannot be convicted with the aid of Section 149 of the I.P.C. 13.0n the other hand, Mr. Ashish Shukla, learned Additional Public Prosecutor supported the judgment of the trial Court. Placing reliance on the judgment of the Apex Court in the matter of Kallu alias Masih 8a others v. The State of Madhya Pradesh3 argued that from evidence and record it is established that more than five persons attacked the deceased, these appellants were members of that unlawful assembly, therefore, they have been rightly convicted with the aid of Section 149 of the I.PZC. 14.Having heard learned counsel for the parties, we have considered the rival contentions made by counsel for respective parties. i15.As per the provisions of Section 149 of the IPC it is necessary that an assemblytof 5 or more persons having a common object i.e. one of those named in Section 141 of the Penal Code and then doing of the act by the“ members of it in prosecution of that object. Therefore, foundation of constiructive liability under Section 149 is only membership of an unlawful assembly. As per the provisions of Section 149, if a person is 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 in furtherance of the common object, then every person who happens to be a member of that assembly would be liable for the commission of the crime being a member of that assembly irrespective of the fact whether he has actually committed the criminal act or not. 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 has gathered before the commission of the crime at the spot itself. Prior meeting of the mind of the members of the assembly is not necessary. The only requirement is 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. Therefore, in order to constitute offence under Section 149 of the I.P.C. sine qua non is that there must be assembly of five or more persons with a common object and if some body acts in furtherance of the common object then every member of the unlawful assembly is responsible as a member for the act of each and all merely because he is a member of the unlawful assembly with 3 AIR 2006 SC 831 \ common object: to be achieved by such an unlawful assembly. 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. A 16.The Apex Court in the rHatter of Bikau Pandey and others v. State of Bihar4 held that “In order to attract the provisions of Section 149 IPC and fastening constructive liability on the members of the assembly, it is to be seen 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. The only requirement is that member should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section ~141. The word “object” means the purpose or design and, in order to make it “common”, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur with it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression “in prosecution of ‘common object” as appearing in Section 149 has 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. 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, 4 (2003) 12 SCC 616 ‘\ \ the accused persons cannot be convicted with the help of Section 149.” 17.In the light of the above principle, if we scrutinize the evidence, Bharat (PW—3) has categorically stated in his evidence that about 30—40 persons of Village: Old Changorabhatha came on rthe spot, accused Laxmi caught Ashish of collar andabused him, thereafter all the persons started attacking, but he could identify only four persons, remaining persons were not identified by him. Even though, Manish (PW—10) has been declared hostile as he has not supported the prosecution case in relation to the attack made by the accused/appellants and other persons, but he has in a definite voice stated that when he was standing in the field about 50—60 personstcame carrying Lathis in their hands crying/ saying ‘Maaro Maaro’. Bharat (PW—3) immediately lodged Dehati Nalishi EXP-3, in that Dehati Nalishi also he has mentioned that accused Yugal, Laxmi, Umesh 85 Shankar came on” the scene of occurrence along with other persons carrying Lathi, club, rod, Gupti 86 Farsi in their hands. Apart from that; Dr. Sanjay Kumar Dadu (PW-9), who conducted post—mortem on the body of AShish Dubey, has stated in his evidence that there were 26 injuries on almo‘st all the parts of the body, right side 6th 85 8th ribs were fractured and there were multiple fractures in the trachea bone. The number of injuries also establishes the fact that Ashish Dubey was attacked by large number of persons and the number of those persons was definitely more than five. 18.Therefore, from the above scrutiny of evidence and material available on record, we are of the considered opinion that the prosecution has been able to establish beyond reasonable doubt that Ashish Dubey was attacked by the members of an unlawful assembly who were more than flve in number. Accused/appellants Yugal, Laxmi, Umesh 85 Shankar were members of that assembly who attacked deceased Ashish Dubey. The common object of that assembly is also established that all these persons came carrying Lathi 8G other weapons, in the first instance, accused Laxmi caught Ashish of his collar and abused him, thereafter, all of} them attacked him. Motive behind the attack was that on 25-10-2000 some altercation took place between deceased Ashish Dubey and accused/appellant Yugal in which Ashish Dubey said Yugal as Bhootnath, therefore, accused Yugal abused Ashish on which Ashish attacked Yugal \_ and Yugal threatened Ashish with dire consequences. Therefore, on 27— a ilgr y 10-2000 Yugal came along with large number of persons and‘the objective 0f that assembly was to attack Ashish Dubey with deadly weapons to cause his death in order to teach him a lesson for his act of misbehaviour and beating accused/ appellant Yugal on 25~ 10—2000. 19.Now, coming to the question raised by learned counsel for the appellants that except the four appellants all other accused persons have been acquitted, therefore, the appellants can be held responsible for heir individual act as number of accused persons reduced to four, as such, the act of unlawful assembly goes away, Section 149 of the I.P.C. provides that “If an offence is committed by any member of an nlawful assembly in prosecution of the common i object of that assembly, or such as the members of that assembly knew to be likely to be committed 1n s 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 20.1n this connection, the judgment of the Apex Court in the matter of Kallu (supra) cited by learned Additional Public Prosecutor is relevant in which the above question has been specifically considered by the Apex Court and the Apex Court referred to the principle as stated in the matter of Dharam Pal and others v. The State of U.P.5 (para 10) “It is true that the acquittal of an accused person does raise, in the 'eye of law, a presumption that he is innocent even if he was actually‘guilty. But, it is only the acquitted accused person and not the convicted accused persons who can, as a rule, get the benefit of . such a presumption. The effect of findings on questions of fact depends upon the nature of those findings. If, for example, only five known persons are alleged to have participated in an attack but the courts find that two of them were falsely implicated, it would be quite natural and logical to infer or presume that the participants were less than five in number. On the other hand if the court holds that the assailants were actually five in number but there could be a doubt as to the identity of two of the alleged assailants, and therefore acquits two of them, the others Will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding, based on good evidence and sound reasoning, that the participants were five or more in number. Such a case is one of doubt only as to identity of some participants and not as to the total number of participants. It may be that a definite conclusion that the number of 5 AIR 1975 sc 1917 t \ 10 participants was at least five may b6 very difficult to reach Where the allegation of participation is confined to live known persons and there is doubt about the identity of even one. But, Where a large number of known persons (such as eighteen, as is the case before us), are alleged to have participated and the Court acts on the principle that it is better to‘ err on the side of safety, so that no injustice is done to a possibly wrongly implicated accused, and benefit of doubt is reaped by a large number, with the result that their acquittal, out of abundant caution, reduces the number of those about whose participation there can be no doubt to less than five, it may not be really difficult at all, as it is not in the case before us, to reach the conclusion th'at, having regard to undeniable facts, the number of participants could not possibly be less than five.” $f (Emphasis supplied) i21.Applying the above principle, if we examine the Evidence which has been discussed above, as per Dehati Nalishi EXP-3 and the evidence of Bharat (PW—3) 85 Manish (PW-10), the attack was made by 30-40 persons, they“ came carrying Lathi, club, rod, sword 81, Gupti which finds corroboration from the post-mortem report of Ashish Dubey in which injury N0s.25 8t 26 are stab wounds on stomach which establish that the injuries were inflicted by sharp 85 pointed weapon. Other multiple injuries were inflicted on the body of Ashish Dubey, there were multiple fractures of trachea bone and right side 6th 85 8th ribs were fractured which establish that the injuries were inflicted by more than five persons. Therefore, there were more than five named and unnamed accused persons who were members of the assembly. Acquittal of 26 accused persons leaving behind the four accused/ appellants, looking to the above facts and circumstances of the case, is of no help to the appellants for the reason that these 26 persons have been acquitted on the ground that