IN THE HIGH COURT OF CHHATTISGARH JUDICATURE AT BILASPUR. CRIMINAL APPEAL €746 Z /2002 AgpgLgmTs z 1° Uttara Kumarps/O. Bhagat Ram Satnami, aged about 25 yrs. 2. Amm»§l‘<umar S/O. Bhagat Ram Sathami, aged about 35 years. (is F m;v,\,,.-.%‘ 3. Bhagat alias Dhalwa S/o. Sitaram r Satnami aged abGut 7O yrs. 1:? : VAN Resideniofvlll ‘ ‘ _Mamkpur: - PsNA E VAf‘trA ‘g: ; DIS‘H' ‘ ’ D If? 4g” H ‘ The State of Shhattisgarh (thmm ks. W W. W (WMK‘ f ., w VERSUS RESPONDENT QRIMINAL APPEAL UNDER SECTION 374 2 GF THE CRIMINAL PROCEDURE CGDE 1973. ‘ . W R? 5* J‘JDTURE ’ HEQH aQU I6A M ”a $§Q§ AND DRA MK5HRA, 33 ‘ «iaéiMw §*§QN’%L§ fu‘zk ”i: §% HQN‘EL§ m? QMIRE$~3 Crimina‘s Aggeai NGIM)? 0f 2902 U‘Hm Kumar & Ofhers Vs. Sfafz bf Chhaffwgcrh é%cm‘m 1. Crimincd Appaal Kumar, AmoX Kumar‘ No.69; 0'? 2002 prefewed by accuswfcxwallanfs U??m and Bhagcd‘ @ Dhaiwa mud C?imim1 Appea§ ND.739 m; ZCQZ m’rs 6end1al & Mahzhdm are being ciisposad a? by adégmpn whic‘ru ?hr*ee parsms nama iy Dae’nul Rama am: arising aw sf same Jr, a5 bafh ’rhwe agpeals pmfgr-red by accuseé/a;7pa§§ fhiss common judgmen judgmen'? sari fhe Same '1 and Bahcr‘m ware. écme. m cfecrm. ‘ AND Criminal Aggeai No.73? 01¢ ZOOZ @mdld & anofhzr' Vs. 51‘a1‘e 0f Chha‘rtisgarh in CnA. No.(-;é9 of ZGOZ. 5mt 5m? Hamida Rem Katha”, 5iééique, Advoca‘i’e: Advoca‘m: Far Rm apwnan‘ts appeHaMs ‘m CaA. N973? of 2002. A .112 3hr“: ?rq$a¢u1‘0r U.N.§. wi’rh Dw, 5hri Atidifiona} Aisha! Mishr’a, PubEc P. L.: ?or ‘rhe. Stafe/responden‘r. GWQL JUQéwXENT ‘ {Daavareex m 13* April 200a) éaEiver‘ad by Jgsffw $.55. ‘i'hz fGHciwing judgmem m‘ we §ourf mm By fhese appeals, fhe accused/afapelianfs have ques‘ricmed legaiify and cormcmess af ‘fhv: judgmem cf convicfion and or'a‘er' af semenca defect ‘ 14—6—2002 passed by ’r‘ne 3rd Addiiionai Sassions Judga {Fasf Track Cour'i} Eemamm m SI Ne.219/93 whereby iaamed Addifiom! Sessians Judge affer‘ holding aacused/appalicnfs (Eendhi, Mahendr‘a; U’rw'a Kunmr, Arm)! Kumat" and Qhagai‘ @ Dha!wa gamy for commisgim 01‘ o‘ffeme under Sacfiom‘ 148 and 392 read wifh 5acfion 149 oé‘ fha IP13. for commif’rmg murders a‘f Deahu, Ewan and Bahumn' san‘fenced each gr? i‘he accusgd/appdmnm f0 underga RI. fGr 6 mm‘i‘hs am‘ fa uwdergo Emprésanmem for We far 2min murder, mspec?§vaiy. l? was furfher‘ ordered 1‘ha‘? mH Hae sawancas impGSad upon f‘he accusea‘ perscms shaH run coacur‘r‘emly. , T'ne case n‘f ins pmsewiion, in brief, newssm‘y fsr The éisposal G‘E ihesa appaais was ?hai* Dakaiha Bai wa$ ’rha awner of The agricuhural kind ad maasuring 2G8 dacimal 0f viHaga Manikpur. A3 $he was; i$3ueia$3, mewfam, shg aciopi‘ed one La‘f accu3ed Jagcfish, £on of hat“ br0?hav. Afi‘er her e‘eafh, Jagréish was; in pwszssien 01‘ fha’r Earld and evan his mmz was enfered in #he Ravanue Recovd as: a hgir af Dukalha aai‘ Bro?her-inaiaw Rzvar‘am, brmWler 01‘ husbcmd 0f Dukaiha Bai was claiming M3 righ‘? an The said land a£ ha was mSidmg in viiiage Sariywpur, Tamil Larmi, Ms'witf: Biiaspur, $‘haref5re, he axacufad a pawer cri" afmrnay in favaur m: Aghnu G‘F viiiage Manikpur an 1$—11—?1 for baking m‘?2r fhe said Sand 9f Duimiha Bai, rm accoun‘i (if iha? were were 2 pariies, (me belmgmg is fhe $eciian m‘ Jagdish arid efher beienging i‘o fhe powar Q‘F m’mrney hslder Aghm. Even 3%: mafi‘er regarding air-mamhip a”? ihe iand fiiad by Revamm was; pending in ?ha Cour? of Tahsiidar- cma S.D.O., Ravenua Uii'imai‘eiy, i‘hk‘: mai‘far‘ was dasided in favour 9f Jagdish. v The accussd/appeiianfs were Tim members of Jugdish pariy wharsas, fha daceased per‘ser’is ware i’he member's of Aghnu pari'y. . 0n $42-92 m“ abauf 7 am. when Déehu wen? i9 fafch waier from a well which was Hear ‘ihe muse of 6endu 5amami, Pokhmj, who Iadged ihe raper‘i‘, was aisa going iawards his Muse fmm ‘rhe side of fhe said wsii, Hg saw ‘ihai’ in f'ne Muse m‘ éensu 5a'mamil Amai, Asha, Uf‘im Kumar’, Bansi and Ehagvmi were hiding ‘ihemselves armed wi‘ih Tabboi and Laihi. Accused Mahendm and @endu carrying Tabbai wen? nearlbashu and assaulied him wifn The baiih cf . Tabba! an his‘ hand, as a re$u§f M which Deahu fa“ dwm A? ‘tha? wag, Rnhn anfi Bahamn, 5cm of Dzehu came ori fhe swne of aacur‘renae, an which §elidu Safmmi cmé Mnhendm assaulfad kamn wh‘h TabBcal on his neck unc} hand, as a Eesuh of which Rafan aisa feii c‘own. They ciso assauifed Bahomn wifh Tabbul and Lai‘hé. He sii3o faii <§oxfm Thereaffer, ‘f‘he maffer was repor‘fgd by Pekhm} in f§1e Paiica 51’afien Navagar'r1 cm ’rhe same day a1‘ 9.30 am. véde f§rs? mforma’vion rapor'? (EXrP/i). 5‘?m*ion Housw Cffker Ashak Sharma affar rwagis’raring fhe Crime No.147/92, lef?‘ far *rhe scam cf accurrenm, affar‘ giving nefica (Ex—W4) 1‘0 ‘i‘he Panchas, prepared Pamhmamas Ex.—P/5 of i‘he botiy cf Bchcran, E><.—P/6 0f ?h2 'mdy of Rafan and ExmP/‘l' cf fhe bady of Deehu; Um§er EEK—W8, he Took infQ pas3es3ion cme piece 0% Lungi shined wifh biced frnm we phce near ‘me body of Rama, cme Dho‘i’i sfained wifh biood', and cne pair of ghee of Rama Undar' Ex.“P/9, he fook infa possession bkmd s'rained Dhox‘i, one pair of shoe. and Kurfa of deceased Bahomn. Under Ex,— P/lG, he ‘i‘oek im‘o pawessim ane Garncha, one Dhoi'i, ano‘rher Dhofi and one pair of ehoe 0f deceasea‘ Deehu. While En The poiice cwfody, accused Gendla! gmle memerandum Ex.-P/11, amused Mahencira gave memorandum Ex.~P/12, accused U‘h‘ra Kumar gave memorandum Ex.«P/13, accused Amol Kumar gave memorandum Ex.—P/14, accused Jagdish gave memorandum Ex.-D/15: accused Eunsi gave memorandum Ex.-P/16, accused ghagaf gave memorandum Ex.-P/’17 and accused Asharam gave memarandum §x.—P/18. in pursuance cf above memarandums, he recovered one iron Tabba! a? The inserance m‘ accused Mahendra under EXrV/lg, He recovered One La1‘hi m‘ *he insranee cf accused Uffra Kumar under ExnP/ZO. Under Ex.-P/21,. he recevered one iren Tabbal ad‘ $he $ns‘é‘ance 6f accused Arno! Kumar‘ Under Ex.-P/22, he recovered one iron Tabbai a? ?he ins‘rance of aocused As’naram Under Ex.—Pl23, he recovered one iron Tabba§ a? *fhe inefance of accused Jagdish. Under Ex.—P/24, he recovered one bambeo m’rhi af The insfance of aocused BansiA Under Ex.- P/25, he recovered one iron Tabbai cn‘ ihe ins‘‘iance of accused Shagaf. Under Ex.-P/26, he recovered one iron Tabbal ai‘ ihe insfance of accused 6endiai‘ These Tabbals were sem‘ for i'he docioris opinion and ‘ihe doc’ror vide Ex.~ P/3G d W31 gave his opinion ihaf injuries received by Aghnu, Deehu, Rai‘an and gahoran couid be caused hv 'i‘he recovered Tabbais. The si‘ie pian (Ex.~ $ 5:51 P/38*A) was prepared by #ha LO. as we“ a$ Pafwari‘ Tm deaé bodias of Deehu, Ramn and Bahoran were senf for fha pas‘i'morfem examina‘rion f0 The Primary Heal‘i‘h (Jenfre, Navagarh where Dr. V.K. Tamrakar, Assisfan‘r 5urgeon, canducfeci The postmorfem 0a fhe dead bodies m‘ ”the dacaased persons arid prepared ‘?‘he posfmorl‘fem repem‘ Ex.—P/27 cf The body o'f Rafan, Ex.nP/28 Of fhe body of Deehu and Ex.-=P/29 of fhe bady m‘ Bahomn. He opined ‘rhm‘ mode of deo‘rh of Ram? was syncope due *o haemorrhage. Abou‘r ‘rhe deafh of Deehu, he opined fha‘r canoe of dea?‘n Wag due “m syncope due i‘o haemorrhage. Abouf Eahoran, he opined The? cause of deofh was coma due To head injury. PM“ soii and bieod sfuined soii was faken im‘o possessiew from fhe place of occurrence Lmder Ex.nP/42, W43 and W44. Mukhfiyamama executed by Revaram in favour of Aghnu was foken im‘o possession umder‘ Ex.— P/45‘ The ar?icies were sen‘r for chemico! exomino+ion fa fhe Forensic Science Laborcfmr'y/ Sagor' from where repor? Ex—F/EE woe received. Affee compiefion of ihe invesfigaficm, cg‘mrge sheef was filed agaiosf accuseoi Ashomm, Uf‘i‘m Kumar, Amoi Kumor, Bhagaf, 6endiai, Mohendm, ané Jagdish m i’he Cour? of Judicial Magisi’rafet I” Class, Bemeiam who in furn commii‘ied #ifie case i6 ‘i’he Sessicne Judge Duwg, from where iearned Adcii‘i‘iomi Sessions Judge. Eeme’mra receiveci fhe case cm frong‘fer for Mai. Accused Asharam am‘ Eonsi died ciuring friai. However, accused Jagdish was ocquii‘i‘ed ef aii fhe charges and §ive occused/appeiiani's were convided one semenced as mem‘ioned in para-2 of ihis Judgmen‘i. The prosecuiien in order ‘i'o es’rabiish ‘i‘he chorge agoinsi‘ 'i'he accused persons: examined 16 wifnesses. On The oi‘her hand, Sia‘i'emeni‘s of The mowed persons were recorded unoer Seciiori 313 of i‘he Cr.?.C. in which ihey denied i‘he prosecu‘iioo evidence appearing againsf fhem and Sim-ed ”rhoi They are ionooeni and have been foioeiy impiioai'eo in ihe crime. Accused @endioi has sfaied ihai oi ihe fime of fine inciden‘i 'ne had gone 'io offend fhe caii of noiure When he reiorned, he sow ‘i‘ho‘i‘ Roi‘on, gohoron and Deehu were quorreiiing wiii‘i Eansi and Aeha. Accuseo Mahenoro hac erai‘ed i‘hof i‘ie is innoceni‘ and has been falsely implicgzfed in The crime. Similar woe The denial of accuseei Amoi Kumorr Jogdish and ghagcxf. They examined é wiinesses in defence. Accused Jagdish examined‘himseif as DW-3. He sfafed ihoi‘ a? ihe 4‘ i'mwe cf fhe incident he was in village @una. The accused perScms aiso axamine§ DW-4 Dr. Shrikan’r Rqjimwale, Assisiani' Surgeon of Gavemmznf Poiy €imic, Ruipur. He has sfm‘ed fhu‘i on 1542-92 a? 5 pm. he, examined aar‘isi and fmmd Thai“ on ’rhe back cf body f'nei‘e mm$ abrwion m‘ 4" in iewgfh. T‘mr-e wa$ bruise and nbmsirm on ‘iha chest Them wa$ iacemi‘ed weuw on T‘ha head. Thesie injuries were caused by hard cmd biunf object He has furi‘her Sio‘i‘ed fha‘i on ‘ihe same day he examined Mahendra and fauna! fha‘i‘ ihere was: lacerafed wound m1 ‘ihe ief'i hand, His reporfs are Ex.-D/3 & D/4. We have heard iearnea counsel far i‘he pari‘iee. The hemicidai dea‘ihs cf deceased persone Deehu, Ra‘hm and achamn have no? been dispuieei by iearned counsel for i'he accused/appeiianfs. 10. es far as invoivemen‘i‘ ef ‘i‘he accused/appeiiam's in cammission 0‘1" fhe crime in que$fion is eancerned, SmT. Hamia‘a Siu'dique, iearnea cmunsei, argued +hai’ campieinan? PW~1 Pek‘nmj, injured wifnees PW—2 Aghnu, PW-4 Prem Bai, wife of deceasea Reian, PWeé whim Bai and PW'8 Bhagwaf have Turned has?iie. ihe pmseeui'ian has no? been abie f0 esi‘abiish wifh iegai evidence as “in haw ihe incideni‘ siarfea‘. The case againsi‘ i‘he accused/appeiiani's resfs en The aeuiar eviaence of PW-3 Kanhaiya, PW—7 L’i‘fam, sen of Kanhaiya and PW~13 Haiimm, sari a‘f Uii-am and grandeon of Kanhaiya From The evidence of ‘ihese 3 wifnesees, i? has no? been eefablished Thai accusee U‘Vwa Kumar, Amoi (union onu‘ ghaga? were +he members of uniawful assembiy and ihey had paniicipai‘ed in i‘he manpeei in any manner. From fheir- eviiienee, ii has no? been egfa‘niisheé The? *ihese accused persens were knowing Thai accueed €egdiai Gnu Mai‘iendno were going fo commi? murders of The deceased persons, There is no evicience i'ha‘i ‘i‘hey were sharing common objec‘i” wifh 6endlai and Mahemira. She also argued fha‘i“ from i'he sire pion Ex.-P/38—A preporee’ by The Invesi'iga‘i'ing Officer! ii‘ is esiablished fha‘i The piace of occurrence as shown by ‘i'he 1.0. was near +he house and in fhe fieid of accused oendiai. in fhis incident accused Bansi and Mahendra aiso received injuries, The deceased persons were carrying La‘ihi and Tabbai. She furw‘her argued “rho? from ‘ihe evidence, ii is esi‘abiished i‘hai ali “i’he. 3 wd‘nesses are from one Tamiiy ie grandfa’rher, son and grandson and They awr wa;s were having inimicai relcficns wifh We accused parfy. The houm (if Wifness Ufmm was aboufl km from Th3 place of occurmnce. In The circumsi'anca’ if was m‘f possible for ‘i'hese parsons fa WifnasS The crima in quesfbn a? abom‘ 7 a.m., Thara‘i‘are, convicfien m‘ fhese accused/appellani‘s for ‘i‘he vqm‘ous affemes is m? based (m any §egal evis‘eme and same is erromeus. 12. 53m. Rem; Kochar, learned coumse¥ appearing 0n %ehaif of accused/appeHams (36mm! and Mahéndrtz, argued fha? fhe place 01‘ occurrence was near- fhe house of accused Gendial. From *rhe evidence, if is esfabHshed fha? accused Mahana‘ra and Bansi received injuries. The compiainam par’ry was aggressor. They wsaui‘ied i‘i‘ie accused pariy. As per ihe evidence 0f PW—H Ashok Shawna ciiarge sheei‘ has aiready baan fiied agains? Agi‘mu, Deahu, Quinn, Kaiihniya, gahamn, Pckhraj, Dhcmnu, Ishwar and Uiiam for 'H'ie commission of affehce undar 3eci‘iom 147, 148, 323 and 324/149 of i‘he 1.13.6. m“ ‘E‘he same ‘fime which has baen admiiiec‘ by The prasecufion wi‘Messes fha‘f case is pending agains‘i' Them. Ai‘ fha mosi‘, fhe accused persons exercisgd i'he righi‘ of privafe defame; as ‘i‘hz deceased persons came f0 Their fieid and affacked accused Mahendr-a & Bans}, iherefor'e, in ihe nigh? of privcri’e defence in order Vie save Themseives, They assaulied. She furiher‘ argued ii‘im‘ fire? informa‘rion repom‘ iodged by PW—l Pokhmj has no? been proved as Pokhmj has iui‘ned hosiiie, fherefore, conviciicn of fhese accused/appeiianR is also QPFOHEQU$ . On hie oi‘her hand, Shri UNS. Deo' Add-iiionai Pubiic Prosecu‘i‘or‘ wifh Shri Akhil Mishr'd, Pane) Lawyer for fhe Sfm‘e/responden? suppari‘ed ‘ihe judgmen? ha OJ of‘fhe i‘riai Count 14. Having heard iear‘ned counsei for “ihe pariies, we have scr'ui'inized evidence, documenis and fhe judgmem‘ of fhe iriai Court 15. Now, mining f0 ihe invoivemen‘i‘ cf accused/appeiiczn‘is Ufi‘m Kumar, Amoi 1 human and Shagm‘ @ Dhaiwn in crime in ques‘i’ion, PW-3 Kanhaiya has sfai‘ed *‘rhai 'ihe inciden‘i ‘rocrk piace a'i ‘i’he iime af sunrise. He was a‘i his residence and on hearing ihe sound, he weni‘ near ihe we” of Gendidi. iher'e ihe quarrel j fook piace from we” up “i0 ihevpaddy field of Gendiai. Deena, Raian and achoran were ifhere. From ofher periy, Gendiai, Mahendra, Ashe, Bansi, ?Vg! ; Bhcxguf U‘Hm ami Amol fofa) 8 persons ware Were, Accused Gemdld and Mahendm were hmdmg Tabbed Accused Ashc and acnsi were dso holding mbbd whers were ho‘dmg Iafhi Firs? of a“ may cssaui‘fed Rafan, GendM assauHed \mh Tabba‘ Mahandm aasauhed Saharan wwh Tabbal and ramaining persons were sfcmdmg Thermffer Jagdish came md he assumed Dgehu wifh iabba‘. He hw fur‘fher s‘i‘a'red fha? al The died on *he spot The Emidenf WGS saw by U‘Hr‘a Bai, Prem‘ Pokhraj, W'mm and by him. Hawever‘. in ’rhe cross~axaminmian he has sm‘rw fhaf Were is berewweH bafween we house of Dzahu and 6endla‘ There is we“ in fhe backyard of fhe hcusa of Deehu, Deehu f2} m i'he *hreshmg %!eh:l mf 6and Ha saw buckef in ’rhe hands Qf heahu The we“ which is adJacem‘ fo fhe House :nf eamici is m1“ of §endiai bm‘ if is fhe pubhc we“ Eahomn fell down afier receivmg she mJumes near fhe house of Gendlai. He fell down a? a dis‘hmce of 20—25 s‘reps from fha weii. Rafao was iying deaé in ”me. wreaking fieid a“? 66ndiai. In *rhe cross» axariina‘i‘ion he has fur‘iher- sfai‘ed ”mm“ if he has si‘afed in fhe examina‘i‘ion- iwchw‘f fha‘? §afcm fail down irs’r of all “men if is incorrect Gandhi ussauh‘ad Eahor‘on as a resu ‘r of which he fei down I? is :nrorrec? fha‘i‘ Mohendm ossaui‘i'ed Bahor-an ercep‘? Gandiai and Mohendm nobody eise ossaui‘ied Ramn and Bahama If is also aarreci fhaf Deehu was no? assauh'ed by anyooe eisa axcep‘r Jagdish. PW—7 U’rmm has s‘ra’red fho’t fhe inciden? fook piuce of abcu? 7 am. in has housz of 6endiui. There is a pubiic weii in ihe house of 6zndial. Gendia asscuiizd achomn wii'h Tabbol. Jagdish assauh'ed Daehu with Tubing. Mahzndr'a assauiied Rm‘cm wifh Tobbai. He saw iha’r oii ‘rhe 3 persons were ?yihg on ihe ground, and ihereufi‘er, he hemmed To his heuse. Ashe Ui‘i‘ml Amoi, Bansi, ioiai $ persons were i‘here. ?W-13 Hoiimm has s‘i‘o‘ied ihm“ Eagdish assauli'ed Deehu wiih Tabba @endiai assauH-ed Bahoran wiih Tabbui and Mahendm osseui’red Rariah wiih mbbai Ui‘i’ra Kumar‘ Dhalwa lisha, Bensi came afier Deehu Paton and Saharan had died. PW 3 has caiegoncaii sided in The cross—exammahon m pare-13 ihm‘ Deehu Raion and Bahor-cm were assauiied oniy by 6endia Mehehdm <§ Jaqdish mid ofhers had noi‘ asseuiied ihem 5imiiariy PW~7 has simpiy si’aied ihaf ihese 3 accused persehs ue'saui‘ied +he deceased nersms He has also shied fha’r Ashe, Uiir‘a, Amei, aahsi were aiso +her-e bm‘ he has mi sided “rhai In any mariner 16‘ They ware hslding my weapon whereas, PW-3 has sfa‘i‘ed fha‘l‘ fhey were havmg Whi in Their hanci‘S, PWwls‘ has s‘rm‘ed fha‘r Jagc!ish, (kiddid and Mahendm assaulfed +hz deceased persom and %hese accu5¢d/appeHanfs came ’ m‘wr 'i’he deafhs of Deehu, Rawn and Bahama Morecver, Dr. Vincxy Kumar' Tammkar‘ (PW—9), who conduc‘red The pesfmsri‘em, has s‘mfed fhaf injuries, whinh were inflici‘ed an ’rhe body of Deehu, were caused by hard and sharp cbjec‘i‘. Simiiarly, he has sfafed i‘haf Enjuriw susfamed by gahar'an wart; also cauwd by hard and sharp object Simiiar na‘fure of imjuries were found cH fix“ #he bsdy 5f Ewan. Therefore, fhere was no chance +ha+ ‘rhose injuries were i infiicfed by any blum‘ objec’r Hke laihi, whereas, PW-3 Kanhmya has skrrec! Tho? These perstms ware hoidmg !a?his. In mew 0f “Hm above evidence, if is es‘iabiished “rim? m injury was infiic‘i‘ed m1 ihe bodies of Daehu, Rainy; and Buhomn by any hard and biun‘i object 17. Moreovar, if we iock info #he recavery memos, fwm Ui‘i‘m Kumar‘ one loihi was recovered whereas, from Amoi Kumor one Tabbai was recovered under Ex.~P/21, from ghagai one Tabbai was recovered under Ex.-P/25, whereas, eyewi‘inesses have noi sfaied ihoi‘ Bhogo’r and U‘h‘ra were hoiding Tabbois. As per The evidence of eyewi‘inesses, i‘hese 3 oppellanis were carrying iofhis, ‘ou‘i ihey have no? sfaied ‘iha'i ihey assoui‘ied wi‘i'h iafhi and ‘ihe injuries found on i‘ne bodies of ihe deceased persons, as per i‘he medical evidence, were caused by hard and sharp object Con’rrary i'o ihe ocuiar evidence, ’rhe LO. had recovered Tubbai from +he possession of Uf‘i'ra and Bhoga‘i, iherefore, from ihe prosecui’ion evidence, ihe assaui‘i made by ihese persons to fhe deceased persons has no? been esfobiished. l 18. As for as ?heir convici‘ion wifh The aid of Seciion 149 of i‘he IRS. is concerned, in order 1'0 grime? ii’ie provisions of Seci‘ion 149 of fhe I.P.C., Seciion 149 EPC creoies a specific and disiinc? offence, fhere ore Two essenfiai ingredien‘is doereof— (1) commission of on offence by any member of an uniawfui assembiy, (2) such offence mus? hove been eommif‘i‘ed in prosecu‘i‘ion of ine common objec‘i of iha? assembiy or mus? be such as ‘ihe members of ‘i‘hai‘ assembly knew lo be iikely i‘o be commi‘ifed, 'i’here‘fore, in order ‘i‘o bring ‘i‘he ac‘i of accused imi‘ihin ‘i'he mischief of secfion 149 of The ERCH ‘‘ihe accused mus? be, of ‘fhe fime of commission of offence, The mm‘m v.‘ f! member of umawfu! assemb!y. As par- ?he se‘H‘led haw far comman objech m prbr cancer? is required. Commoa abjec? can ba formed a? fhe spur of fhe mcmérif. Caurse of conduc? adopfed by fhe members of we assembly, however, is a reievam‘ fnc‘for‘. M whm pain? af fime fhe cammon abject 0f fhg unlawful aSsembly was formeti weuld depend uym fhe fncfs & circums‘i’ances 0f aach case. If may be farmed a? any sfcige ar‘ by all 0r new member of fhe assembiy or ofher‘ member‘s may Jus? join er onne farmed if med no? To be confirmed wi?h we same, i’r may be modifieé or ah'ered a? any gageln ‘Fha ma?fer of RajeMm $hanMmm Todankar V, Sm'm of a%ahamsh'h*a & Gfhers reparfed in {2003) 2 3C6 257 ‘me Apex Cour? held 'E‘ha‘i‘:- “Sec‘i'ion 149 cf fhe Indian Penai Code provides fha‘i‘ if an offence is commi‘r‘red by any member of an unlawfu! aasembiy in prosecu‘i‘ion of ihe commen ebjec? sf iha’r assembly‘ or such as ’rhe members of fhai‘ assembly knew ta be likeiy $0 be commii-iec' in prosecuiion of “rho? objeef, every person who m‘ The fime of fhe commii'fing of fhui offence, is a member of fhe some nSsembly is guiify of fha‘f offence. The Two clauses of Sec‘rion 149 var‘y in degree of cerfainfy‘ T’ne firs? ciause confempiai‘es fhe commis5ion of an offence by any member of an unfawfu! assembiy which con be held fo have been commiffed in pmsecufion of fhe common objecf of fhe assembly. The second clause embraces wifhin ifs fold The commission of an aci' which mcry no? necessarily be fhe common objecf of fhe essembly/ neverfheless, the member's sf fhe assembiy had knowledge of iikelihooo' of ‘i‘he commission of fha‘i‘ offence in prosecufion of The common objeef. The common objecf may be commission of one offence while there may be likelihood of fhe oommisséon of ye‘i‘ onofher offence, The knowledge where of is capable of being safely offribu’roble To fhe member's of fhe uniowful assembly. In eifher case, every member of fhe assembly would be vicariously liable for fhe offence ocfuolly commiffed by any o‘iher member of ’fhe assembly. A mere possibilify of fhe commission of fhe offence would no? necessarily enable fhe cour"? fo drew on inference fhai' fhe likelihood of commission of such offence was wifhin fhe knowledge of every member of fhe unlawfui assembly. If is difficult indeed; fhough nof impossible, To coilecf direci‘ evioence of such knowiedge. An inference may be orown from oircumsfanoes such as fhe background of fhe incident fhe mof‘lve, The nofure of assembly, fhe nal‘ure of arms carried by fhe members of fhe assembly; fheir common objeci‘ onol‘fhe behaviour of fhe members soon before, of or offer fhe oc‘l‘uol commission of the \‘a i i i 10 crime. Uniess +912 app¥icabi§ify of Sacfion 149 ei‘rher ciau3e is affmcfed and The coum‘ is canvinced, on facts and in iaw, bofh, of iiabilify capable of being fasfened vicariousiy by refzr'ence ’ro ai‘rher clause of Seci'ion 149 IPC, mereiy because a criminai ad" was commii-Ted by a member of fhe assembiy, every miner member ‘rher‘eef would n0? iiecessariiy hecame iiubie for such criminai acf. The inference as 1‘0 Iikeiihoad of fhe commission of fine given criminal ac? mus? be sapabie of being held +0 be Wifhin ii’za knowiedge of anofher member of ‘i‘he assembiy who is soughf fo be heid vicariousiy iiable for fhe said crimimi act” In file maffer of Parsumm Pana’ey anti o?hers Vs Sm‘i‘e e'? Bihar repem‘ad in (2$a4} 13 SCC 189 ihz Hon‘bie Apex Cour? hzid mat" “To a‘H‘r‘ac‘r Secfion 149 IPC five prosecm‘ian mus? peeve The? ihe commissicn of The offence was by any member of cm unlawfui assembiy and such offence musf have been commih‘ed in prosecufion of fhe common Objec‘r of ’rhe assembiy or musi‘ be such fhaf The members 0f fhe assembly knew That if was iikeiy f0 be cemmh‘ted. Unless fhese Three elemenTs are sa‘l'isfied by The presecul‘ion The accused cannoT be convicTed wiTh The aid of SecTion 149 IPC." 19“ Therefore, based on The above principle, we ore required To ascerTain from The facTs and evidence available on record as To wheTher The occused/appellonTs were The members of The unlawful'ossembly, offence of murders of Deehu, Refer: <3: Bahorcm was commiffed in prosecuTion of The cemmon objeel' of Tho? assembly or The accused persons being members of The assembly were knowing Thaf such offence is likely To be commiTTed. The evidence which has been reproduced above does neT Show, in any manner, Thaf ThEse accused persons were having any cemmon objecT wiTh accused Mmhendna :31 Gendlal or fhey were knowing The? such an offence is likely To be commiTTeci by Mahenclra & Gendlai. PW—3 Kanhaiyci PW-7 UTTam and PW—13 Holiram have noT sTaTed ThoT These persons, in any manner, in The firsT insfance porTicipaTed in The assaulT, Even cs per The evidence of Holirem (?Wn13) These persons come offer Deehu, RoTan and Bohoron eieol. Moreover, cs has been discussedcbove, cs per The evidence, They were carrying loThi, whereas, IO. had recovered Tcgbbol from UTTra and BhagoT. Even all The injuries found on The bodies of The deceased persons were caused by hard end sharp object Therefore'prosecuTion hos noT been able To esTablish 11 agamsf *hese persomg Thai fhey were members of an unkawfui assembly or fhere wag any common objecf befween 62ndlal, Mahehdr‘a and fhese accused/appellanfs or Thu? i'hese appeilahfs had knowledge fhaf murder of anyone wm be commif‘red by cafher mcused personsA Mareaver, fhe mam di5pm‘e was en accaun? of fhe iand [eff by Dukaihu Bai m “favour sf Jagdish, *i‘her'efore, i‘he dispufe was befween Jagclish and fhe deceasad purify and no? wh‘h $‘hese accused persons.