CRM-M- No. 14736 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M- No. 14736 of 2011 (O&M) Date of Decision : May 17, 2011 Mahipal Singh ...... Petitioner Versus State of Haryana ...... Respondent **** CORAM : HON'BLE MR. JUSTICE ALOK SINGH 1. Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present : Mr. Y.P. Singh, Advocate, for the petitioner. **** Alok Singh, J (Oral) This is an application seeking anticipatory bail in FIR No.117 dated 20.3.2010, under Sections 147,148,149,323,458,459,302 of Indian Penal Code, registered at Police Station Sadar, Bhiwani, District Bhiwani. The first bail application was dismissed by this Court on 10.2.2011 as withdrawn. As per prosecution story on 20.3.2010 at about 9.30 P.M. Ranbir s/o Mange Ram Chamar, resident of Dhana Ladanpur armed with iron rod, Ram Avtar s/o Mange Ram Chamar armed with sword, Lila s/o Chander armed with jelli, Mahabir s/o Mange Ram armed with lathi, Ashok s/o Jai Lal armed with iron rod, younger brother of Ashok namely Pardeep @ Pappu armed with gandasi, Pawan s/o Rohtash armed with a lathi, CRM-M- No. 14736 of 2011 (O&M) 2 Mainpal @ Deshraj s/o Parkash armed with cycle chain and Mosam s/o Dalu Ram armed with kulhari, Bhajan lal s/o Sheo Chand armed with a lathi and middle son of Tulsi armed with sariya and 2-3 other persons all were residents of Dhana Ladanpur, caste Chamar, came with common intention and entered into the house after breaking the door and Ram Avtar who was having a sword gave a sword blow on the neck of complainant brother Sandeep, then Pardeep @ Pappu son of Jai Lal who was having a pharsi (gandasi) gave a pharsi blow above the right ear of complainant brother Sandeep, Rajbir who was having iron rod gave blow on the left paw and Mosam gave a kulhari blow on the right paw of Sandeep and others also cause injuries to complainant’s brother Sandeep. Complainant mother Maya Devi tried to save complainant’s brother, then they also caused injuries to her. The above said Ram Avtar etc. have caused injuries to Umed Singh s/o Mal Singh, Mal Singh s/o Birda Caste Rajput, resident of Dhana Ladanpur came on motor cycle with complainant brother Sandeep to General Hospital, Bhiwani for treatment where doctors declared complainant brother Sandeep as dead. Petitioner was one of the member of the unlawful assembly and has entered into the house of deceased by breaking the door of the house of the deceased Sandeep; Accused was armed with jelli. Sandeep was killed by inflicting various injuries. Mother of the deceased was attacked and injured. All the accused left the spot together. Hon’ble Apex Court in the case of Ramesh and others vs. State of Haryana reported in 2011(1) R.C.R. (Criminal) 259 in paras 9 and 10 has observed as under :- 9. We do not find any substance in the submission of the learned counsel. In our opinion the common object of an unlawful assembly CRM-M- No. 14736 of 2011 (O&M) 3 has to be gathered from the nature of the assembly, arms possessed by them and the behaviour of the assembly at or before the occurrence. It is an inference which has to be deduced from the facts and circumstances of each case. To attract the mischief of Section 149 of the Indian Penal Code, it is not necessary that each of the accused must commit some illegal overt act. When the assembly is found to be unlawful and if offence is committed by any member of the unlawful assembly in prosecution of the common object, every member of the unlawful assembly shall be guilty of the offence committed by another member of the assembly. It has to be borne in mind that an assembly which is not unlawful when assembled may subsequently become an unlawful assembly. In the present case there is overwhelming material to show that the appellants variously armed, including the fire arms assembled at one place and thereafter came to the place of occurrence and started assault together and when protested by the deceased, one of the members of the unlawful assembly shot him dead and some of them caused injury by fire arm, gandasa, lathi, etc. to others. All of them have come and left the place of occurrence together. From what has been found above, there is no escape from the conclusion that appellants were the members of the unlawful assembly and offences have been committed in pursuance of the common object and hence, each of them shall be liable for the offence committed by any other member of the assembly. In our opinion, the trial court correctly held them guilty with the aid of Section 149 of the Indian Penal Code, which has rightly been affirmed in appeal by the High Court. CRM-M- No. 14736 of 2011 (O&M) 4 10. In view which we have taken finds support from the decision of Chandra Bihari Gautam and others v. State of Bihar, 2002 (9) SCC 208, in which it has been held as follows :- “8. Section 149 has two parts. First part deals with the commission of an offence by a member of an unlawful assembly in prosecution of the common object of that assembly and the second part deals with the liability of the members of the unlawful assembly who knew that an offence was likely to be committed in prosecution of the object for which they had assembled. Even if the common object of the unlawful assembly is stated to be apprehending Nawlesh Singh only, the fact that the accused persons had attacked the house of the complainant at the dead of night and were armed with deadly weapons including the guns, and used petrol bombs, proves beyond doubt that they knew that in prosecution of the alleged initial common object, murders were likely to be committed. The knowledge of the consequential action in furtherance of the initial common object is sufficient to attract the applicability of Section 149 for holding the members of the unlawful assembly guilty for the commission of the offence by any member of such assembly. In this case the appellants, along with others, have been proved to have formed an unlawful assembly, the common object of which was to commit murder and arson and in prosecution of the said common object they raided the house of the informant armed with guns and committed offence. The courts below have, therefore, rightly held that the accused persons formed an unlawful assembly, the common object of which was to commit the murder of the informant and his family members and in prosecution of the said common object six persons were killed. The appellants were also proved to have hired the services of some extremists for the purposes of eliminating the family of the complainant.” Coming to the facts of the present case accused armed with jelly has entered into the house of Sandeep by breaking door and has left the CRM-M- No. 14736 of 2011 (O&M) 5 house together with other accused after committing murder of Sandeep. Therefore, even if no specific injury is attributed to the petitioner, as argued by learned counsel for the petitioner his involvement in the offence cannot be brushed aside. He was one of the member of the unlawful assembly and with common object has participated in the incident. In the opinion of this Court he is not entitled for the bail. Clarifying that observations made hereinabove are only for the purpose of deciding present petition, present petition is directed to be dismissed. Dismissed. (Alok Singh) Judge May 17, 2011 Anand