[Cites 24, Cited by 0]
Bombay High Court
Shivmohan S/O Ramkrupal Malik vs State Of Maharashtra Thr. P.S.O. P.S. ... on 16 March, 2026
Author: Anil L. Pansare
Bench: Anil L. Pansare
2026:BHC-NAG:4361-DB
926-apeal-268-2020.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 268 OF 2020
Shivmohan s/o Ramkurpal Malik,
aged 23 years, Occ. Sanitary Worker,
R/o Vinoba Bhave Nagar, Near Nagsenvan
Water Tank, Galli No. 3, Nagpur.
...APPELLANT
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station - Jaripatka, Nagpur.
...RESPONDENT
WITH
CRIMINAL APPEAL NO. 466 OF 2020
Prashant s/o Arjun Chamke,
aged 38 years, Occ. Sanitary Worker,
R/o Plot No. 133, Ambatoli,
Samta Nagar, Nagpur.
(At present in Central Jail, Nagpur)
...APPELLANT
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station - Jaripatka, Nagpur.
...RESPONDENT
WITH
CRIMINAL APPEAL NO. 227 OF 2020
1] Zanak s/o Munnalal Tomaskar,
aged 43 years, Occ. Service.
2] Ankush s/o Zanak Tomaskar,
aged 19 years, Occ. Nil.
Both are R/o Ambatoli, Near Durga
Mata Mandir, Samta Nagar, Nagpur.
...APPELLANTS
926-apeal-268-2020.odt 2
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station - Jaripatka, Nagpur.
...RESPONDENT
Mr. R.K. Tiwari with Mr. Abhijeet A. Korpenwar and Mr. Vedant V.
Raut, Counsel for the appellants.
Mr. S.S. Doifode, A.P.P. for the respondent/State.
.....
CORAM : ANIL L. PANSARE AND
NIVEDITA P. MEHTA, JJ.
ARGUMENTS WERE HEARD ON : 20/2/2026
JUDGMENT IS PRONOUNCED ON : 16/3/2026
JUDGMENT (PER : ANIL L. PANSARE, J.) :
By these three appeals, the appellants (hereinafter
referred to as accused nos. 1 to 4) have challenged the
judgment and order dated 25/2/2020 passed by the District
Judge - 3 and Additional Sessions Judge, Nagpur, in Sessions
Trial No. 425/2016, thereby convicting the appellants as
follows :
Sr. No. Offence Sentence
1 Section 302 read Imprisonment for life and to pay
with Section 149 fine of Rs.2,000/- each, in default,
of IPC to suffer rigorous imprisonment for
one year each.
2 Section 304 Part Rigorous imprisonment for five
- II read with years and to pay fine of Rs.1,000/-
Section 149 of each, in default, to suffer rigorous
IPC imprisonment for six months each.
3 Section 143 of Simple imprisonment for three
IPC months and to pay fine of Rs.500/-
each, in default, to suffer rigorous
imprisonment for fifteen days each.
4 Section 148 of Rigorous imprisonment for one year
IPC and to pay fine of Rs.100/- each, in
default, to suffer rigorous
imprisonment for ten days each.
2] Accused no.1 is Prashant, accused no.2 is Ankush,
accused no.3 is Zanak, and accused no.4 is Shivmohan. Along
with accused nos. 1 to 4, two more persons were tried for the
offences punishable under Sections 143, 147, 148, 302, 307
and 324 read with Section 149 of the Indian Penal Code, 1860
(IPC). They were arrayed as accused nos. 5 and 6. They are
sisters of accused no.1. Accused no.5 is the wife of accused
no.3 as well. These two accused, i.e., accused nos. 5 and 6,
were convicted for the offence punishable under Section 323
read with Section 34 of IPC, and were sentenced to suffer
simple imprisonment for one month, and to pay fine of
Rs.500/- each. They have not challenged the judgment. The
facts leading to their conviction have, therefore, attained
finality, consequences of which shall be dealt with in due
course.
3] The facts relevant to decide the appeals are as
under :
The informant - Sunita - PW2 was residing with
her husband - Imrat Rana (since deceased) and two minor
children at Samta Nagar, Ambatoli, Nagpur. The accused
persons, namely, Zanak, his son Ankush, son-in-law
Shivmohan, brother-in-law Prashant, and sisters of accused
no.1, namely, Mina and Vandana, were residing just behind her
house. Accused no.1 is brother of accused nos. 5 and 6, while
accused no.3 is father of accused no.2 and father-in-law of
accused no.4.
On 12/6/2016, at about 9:00 am, accused no.1
Prashant called Imrat and asked him to clean the rivulet, as
there was a programme in his house. Imrat told him that he
will clear the rivulet later on. However, he insisted to clear the
rivulet then and there only. Meanwhile, other accused persons,
namely, Zanak, his son Ankush, son-in-law Shivmohan, and
sisters of accused no.1 came there and started quarreling with
Imrat. All the accused started beating Imrat. At that time, wife
of Imrat, i.e., the informant came there. She was also beaten.
Somehow, they rescued themselves and ran away, but the
accused persons threw stones towards them. Both, the
informant and her husband, took shelter in their house.
However, accused Prashant entered the house of the informant
from back side along with a long knife and asked the informant
as to where her husband was. The informant replied that he is
outside. Accused Prashant immediately came out of the house.
The informant Sunita followed him. In the mean time, other
accused also reached there. The accused no.4 was also having
knife in their hand. They all attacked Imrat. Accused Zanak and
Ankush started beating Imrat by fist and kick blows and
accused Prashant and Shivmohan inflicted blow of knife on the
abdomen of Imrat. As the informant tried to save her husband,
accused Mina and Vandana caught hold of her tuft and beat
her. Meanwhile, brother of Imrat, Puranlal, who was neighbour
of the informant, came there to rescue his brother, but he too
was assaulted by accused Prashant and Shivmohan by means of
knife. Imrat and Puranlal fell unconscious. The brother of the
informant immediately called an auto and admitted Imrat and
Puranlal to hospital. The husband of the informant was
declared dead and Puranlal was seriously injured. The
informant approached Police Station - Jaripatka and lodged
report, in pursuance of which, offences punishable under
Sections 302, 307, 147 and 148 read with Section 149 of IPC
came to be registered against the accused persons. Later on,
Puranlal succumbed to the injuries.
4] PW15 - Ishwar took up the investigation, which
was carried forward by PW16 - Mukhtar, PW17 - Keshav, and
lastly by PW19 - Ramesh. Accordingly, chargesheet was filed.
The accused pleaded not guilty. The prosecution examined in
all nineteen witnesses to bring home guilt of the accused. The
defence of accused is of total denial and false implication. The
trial Court considered all attending circumstances, and held
accused nos. 1 to 4 guilty of the offences punishable under
Section 302 of IPC, amongst other offences, as mentioned
above. The said finding is challenged before us.
5] We have heard Mr. R.K. Tiwari, learned Counsel for
the appellants, and Mr. S.S. Doifode, learned A.P.P. for the
respondent/State. We have gone through the evidence,
documents, impugned judgment, etc. We will refer to the same
to the extent necessary to decide following points that arise for
our consideration. We have recorded our findings thereon for
the reasons to follow.
Sr. No. Points Finding
1 Has the prosecution proved that on In the negative.
12/6/2016, accused nos. 1 to 4,
along with accused nos. 5 and 6,
were Members of unlawful
assembly ?
2 Has the prosecution proved that on In the negative.
the aforesaid day, accused nos. 1 to
4, being Members of unlawful
assembly, were armed with deadly
weapons, and in prosecution of
common object, committed offence
of rioting ?
3 Has the prosecution proved that on Partly in the
the aforesaid day, accused nos. 1 to affirmative, viz.,
4, being Members of unlawful murder with
assembly, and in prosecution of common
common object, committed murder intention is
of Imrat Rana ? proved, but not
being members
of unlawful
assembly.
4 Has the prosecution proved that on Partly in the
the aforesaid day, accused nos. 1 to affirmative, viz.,
4, being Members of unlawful culpable
assembly, and in prosecution of homicide with
common object, committed common
culpable homicide not amounting intention is
to murder of Puranlal. proved, but not
being member of
unlawful
assembly.
5 Whether interference is called for in Partly in the
the impugned judgment ? affirmative
6 What order ? As per final order
REASONS
As to point nos. 1 to 4
6] All points are interlinked, and hence, are decided
by common reasoning.
7] The prosecution was under an obligation to prove
that accused nos. 1 to 4 were Members of unlawful assembly,
and pursuant thereto, with common object, have committed
offence of rioting by means of deadly weapons, and also
committed murder of Imrat, and have further committed
culpable homicide not amounting to murder of Puranlal.
8] The prosecution has applied theory of unlawful
assembly on the ground that along with accused nos. 1 to 4,
two other accused, i.e., accused nos. 5 and 6, had joined them
in commissioning the crime. The trial Court, however,
acquitted accused nos. 5 and 6 of all the offences, including
offence punishable under Section 149 of IPC, but convicted
them for the offence punishable under Section 323 read with
Section 34 of IPC. The argument of the prosecution is that in
such cases, even if couple of accused are acquitted of the
offence punishable under Section 149 of IPC, conviction of
other accused, though less than five in number, can be
maintained; present case, according to the prosecution, is one
such case.
9] We will refer to this contention a little later. Prior
thereto, it will be necessary to understand the consequences of
conviction of accused nos. 5 and 6, which has attained finality.
10] As stated earlier, they are convicted for the offence
punishable under Section 323 read with Section 34 of IPC.
Thus, assault and common intention to the extent of accused
nos. 5 and 6 stands proved. The role attributed to them in
commissioning the crime has attained finality.
11] The informant, who is the wife of deceased Imrat,
has given details of their role, and also the role played by other
accused. She deposed that the incident occurred on
12/6/2016. Accused no.1 had come to her house, and called
her husband Imrat. Accused no.1 said that the water drainage
was dirty, and they (PW2 and Imrat) should clean it. Imrat told
him that he has to go to work, and could not clean the
drainage at that time. Accused no.1 started hurling towards her
abuse, and called Imrat outside the gate. He informed Imrat
that his guests will arrive at home, and Imrat should clean
drainage on that day, to which he refused. Accused no.1 then
slapped Imrat. PW2 went to rescue Imrat. Accused no.1 caught
hold of neck of PW2, and pushed her. Thereafter, accused nos.
2 to 6 came there, and started beating Imrat. They assaulted
PW2 as well. Accused no.1 assaulted Imrat by means of knife
on his stomach. Accused no.3 assaulted him by means of stones
and brickbats. Imrat went inside the house. PW2 followed him.
After some time, accused no.1 came in the house from rear
gate. He was holding knife in his hand. He pushed the door
with his leg, while she was trying to push it from inside. He
asked her as to where her husband is, to which, she said he is
outside. Accused no.1 strangled her, and pushed her. She fell
down. Accused no.1 went towards front side of the house. She
got up and followed him. Other five accused also came there.
They started quarreling with Imrat. Accused nos. 1, 2 and 4
stabbed Imrat by means of knife. At that time, Imrat's brother,
namely, Puranlal, came out of the house to save Imrat. Accused
nos. 1 to 4 caught hold of him. Thereafter, they stabbed him by
means of knife. Accused no.3 assaulted Puranlal by means of
stones and brickbats. She went to rescue Puranlal. At that time,
accused nos. 5 and 6 caught hold of her hair, and assaulted her.
Imrat and his brother became unconscious, and fell down.
They were bleeding. They were then shifted to hospital, where
they succumbed to the injuries. In the evening, at about 7:00 to
8:00 pm, she lodged FIR (Exh. 44).
12] This is how the entire incident is narrated by the
informant. The trial Court held all the accused guilty, but under
different provisions of IPC. What is important is that conviction
of accused nos. 5 and 6 has attained finality. Their conviction
under Section 323 is based on the incident, as narrated by PW2
and other witnesses. These two accused are relatives of other
accused. As stated earlier, accused nos. 5 and 6 are sisters of
accused no.1. Accused no.5 is wife of accused no.3 as well.
They all assaulted Imrat and Puranlal, and also the informant.
13] The entire incident, as narrated by PW2, as regards
role of accused nos. 5 and 6, has attained finality. The incident
is such that the role of accused nos. 5 and 6, vis-a-vis, role of
other four accused is inseparable, because their role arises out
of one and the same incident. In such circumstances, when the
finding of the trial Court, as regards involvement of accused
nos. 5 and 6 in the incident, as narrated by the prosecution
witnesses, has attained finality, the incident is proved. The
question will be only of identification of other accused. PW2
and other witnesses have deposed that all the accused are
known to them, as they are neighbors. They identified all of
them in the Court. They also identified the weapons, i.e.,
knives (Articles 6, 9 and 12). We will, accordingly, examine
testimony of other witnesses.
14] Before we delve upon the testimony of the
witnesses, we will first highlight a portion of cross-examination
of PW1 - Khushi. She is a child witness, aged around 12 years,
and is Imrat and Puran's niece. She has witnessed the incident
and deposed in tune with PW2. In cross-examination, following
facts are brought on record :
"10. There was no knife in the hand of accused Zanak.
Witness volunteers that the knife was in the hand of
his son-in-law. Police had not never brought son-in-law
of Zanak for identification in my presence. As the son-
in-law of Zanak would come in front of our home, I
know him by face. Article 12 knife was in the hand of
the accused Prashant, Article 6 knife was in the hand
of accused Ankush, and Article 9 knife was in the hand
of son-in-law of Zanak."
15] Thus, the defence has brought on record that
Article 12 - knife was in the hand of accused no.1, Article 6 -
knife was in the hand of accused no.2, and Article 9 - knife
was in the hand of accused no.4. Thus, in a way, not only the
presence of these three accused is admitted by the defence, but
the weapons, by which Imrat and Puranlal were assaulted, are
also certified through cross-examination.
16] That apart, the incident has been also witnessed by
six other witnesses, namely, PW3 - Ankit, PW4 - Hastakala,
PW5 - Rekhlal, PW6 - Shamrao, PW7 - Bhuma and PW8 -
Pustbala. They all are residents of same locality, and therefore,
their presence at the spot is natural. Their testimony is
consistent with PW2.
17] In the circumstances, the argument that PW2 had
informed about the incident to the police in the hospital, and
her statement having been not recorded, is of no help to the
accused persons. It is so because lapse, if any, is at the hands of
the Investigating Agency, the witnesses cannot be blamed for
such lapses. Further, the contentions of accused nos. 1 to 4 that
there occurred delay of thirteen hours in lodging FIR, despite
police officials arrived at the spot immediately after the
incident is also of no significance. The learned A.P.P. has rightly
argued that PW2, being wife of Imrat, would first make an
attempt to save his life. Her focus was to extend treatment to
the injured persons, which is natural. Once she came to know
that Imrat had expired, she approached Police Station and
lodged FIR, and in that sense, she promptly lodged FIR.
18] Having held that FIR was lodged in time, the
reliance placed by the Counsel for accused nos. 1 to 4 on the
judgments of the Hon'ble Supreme Court and High Courts on
the point of delay in FIR will be of no help. The Counsel has
relied upon following judgments :
I] Nallabothu Ramulu and Ors. Vs. State of Andhra Pradesh
[(2014) 12 SCC 261].
II] K.A. Kotrappa Reddy Vs. Rayara Manjunatha Reddy alias
N.R. Manjunatha [AIR 2015 SC (Criminal) 1857].
III] Raju and Ors. Vs. State of Maharashtra
[MANU/MH/0070/2017].
19] The Hon'ble Supreme Court in the peculiar facts
and circumstances of cases before it held that delay in lodging
FIR will create doubt on prosecution's version.
20] Thus, what is important is to show consequences of
delay in lodging FIR. In the present case, it appears that police
had visited the spot immediately after the incident. This visit is
naturally to take stock of the situation at the spot. The police in
such circumstances will gather preliminary information relating
to the incident. As such, during such enquiry, if a cognizable
offence is disclosed, the police should take down the
information as report under Section 154 of the Code of
Criminal Procedure, 1973. Experience, however, show that the
police is in a habit of projecting injured or victim of the crime
as informant. Such approach, in a given case, results in delay in
registering FIR. Such lapse, in our view, will not automatically
attract theory of collusion between police and the witnesses to
contend that delay is fatal. The defence will have to show as to
how delay in lodging FIR will render the prosecution's case
unacceptable. It is well settled that merely because there is
delay, the prosecution's case cannot be thrown out. At times,
delay is explained, and at times, there is no delay at all, like in
the present case. Though FIR is registered after thirteen hours,
one cannot say that PW2 approached police belatedly. As stated
earlier, PW2, being wife of Imrat and sister-in-law of Puranlal,
would first attend them and ensure immediate treatment to
them. She has, accordingly, taken necessary steps to save their
lives, but in vain. In such cases, the affected persons may not
be in a position to lodge FIR on the same day, considering the
emotional and psychological impact of death of relatives.
However, in the present case, PW2 approached police station
on the same day and lodged FIR. The argument of defence that
there is delay in lodging FIR is, therefore, without any
substance, and stands rejected accordingly.
21] The Counsel for accused nos. 1 to 4 contends that
PW2's testimony is not worthy of acceptance because of certain
omissions and contradictions. In FIR, she stated that accused
nos. 1 and 2 have assaulted Imrat by means of knife, and
before Court, she roped accused no.4 as well. The Counsel
further argued that there is variance in the testimony of PW1
and PW2. According to PW2, accused nos. 1, 2 and 4 assaulted
Imrat and his brother by means of knife, whereas PW1 stated
that accused nos. 1 and 2 assaulted deceased Imrat by knife
and accused nos. 3 and 4 assaulted deceased Puranlal by knife.
22] We do not find any merit in the aforesaid
submissions, inasmuch as, the defence itself has brought on
record the presence of these three accused persons at the spot
holding knives in their hands. The witnesses have categorically
stated that these knives were used in the crime. All the eye-
witnesses have consistently deposed of role played by these
accused. The discrepancies pointed out by the defence are
insignificant and unrealistic. The incident involved a series of
actions in which the accused performed different roles. They
together mounted attack. Three accused persons were holding
knives. They assaulted Imrat and Puranlal. The other accused
assaulted by means of stones and bricks. Accused nos. 5 and 6
caught hold of PW2 by holding her hair and assaulted her. In
such situation, where PW2 was also assaulted, she may not
notice every minute details of the incident. She saw three
accused persons holding knives in their hands and assaulting
her husband Imrat and her brother-in-law Puranlal. In such
circumstances, she will be fully justified in saying that these
three accused have assaulted both Imrat and Puranlal.
23] So far as PW1 is concerned, her testimony will have
to be considered in the light of her age as also the place from
where, she has witnessed the incident. She was standing at the
gate of her house. Thus, she witnessed the incident from some
distance, whereas PW2 was entangled in fight itself. The
version would, thus, depend on multiple factors including how
the witnesses were positioned at the time of incident. In the
present case, eight witnesses have seen the incident and have
blamed the accused persons for the offence. In such
circumstances, the discrepancies highlighted by defence
appears to us to be natural. Such discrepancies will not render
their testimony unreliable.
24] Taking further this issue, the Counsel for accused
nos. 1 to 4 submits that even medical evidence does not
support PW2's version. The doctor's evidence indicates that
Imrat suffered two injuries and two abrasions. The Counsel
submits that PW2 deposed that accused nos. 1, 2 and 4
assaulted Imrat by knives. If her evidence is true, there should
be three knife injuries. Absence of third stab injury would
render her testimony inadmissible. He further submits that
other witnesses have deposed that Imrat was assaulted by
means of brickbat and fist and kick blows, whereas, except for
two abrasions, no other injury was found on the person of
Imrat.
25] This argument, in our view, requires rejection. As
stated earlier, the witnesses have deposed that accused nos. 1,
2 and 4 have assaulted Imrat and Puranlal by means of knives
and accused no.3 assaulted by means of stones and bricks. In
such circumstances, by highlighting injuries of Imrat and
ignoring injuries sustained by Puranlal the PW2's testimony
cannot be doubted. It is pertinent to note that Puranlal
sustained 14 injuries, out of which, three were stab injuries.
Thus, in total, there were five stab injuries. In the backdrop of
these injuries, if the evidence is appreciated, the alleged
discrepancies pointed out by the defence appears to be nothing
but a natural tendency of describing the incident.
26] The Hon'ble Supreme Court in the case of Sohrab
s/o Beli Nayata And Another Vs. State of Madhya Pradesh
[(1972) 3 SCC 751], while dealing with appreciation of
evidence of the witnesses, observed as under :
"8. We have at some length pointed out that the
Sessions Judge and the High Court were in agreement
on certain aspects of the case in respect of which
witnesses tried to embellish and exaggerate. But that
by itself, in our view, does not assist the accused, nor
can the broad features of the evidence of the
prosecution case be doubted in respect of the version
that on the day of the occurrence both the appellants
and the deceased were in the field where the dead
body was found, that Sohrab was riding a mare, that he
chased the deceased, that Nadar came with a gun and
handed it over to Sohrab and that Sohrab fired at the
deceased, which also caused injury to Nadar. The
position of the eye-witnesses in relation to the
occurrence may have been such that all the details
could not have been noticed, but that the salient
features of the prosecution story were true is
established by the evidence of the eye witnesses. It
appears to us that merely because there have been
discrepancies and contradictions in the evidence of
some or all of the witnesses does not mean that the
entire evidence of the prosecution has to be discarded.
It is only after exercising caution and care and sifting
the evidence to separate the truth from untruth,
exaggeration, embellishments and improvement, the
Court comes to the conclusion that what can be
accepted implicates the appellants it will convict them.
This Court has held that falseus in uno falsus in
omnibus is not a sound rule for the reason that hardly
one comes across a witness whose evidence does not
contain a grain of untruth or at any rate exaggeration,
embroideries or embellishments. In most cases, the
witnesses when asked about details venture to give
some answer, not necessarily true or relevant for fear
that their evidence may not be accepted in respect of
the main incident which they have witnessed but that is
not to say that their evidence as to the salient features
of the case after cautious scrutiny cannot be considered
though where the substratum of the prosecution case or
material part of the evidence is disbelievable it will not
be permissible for the Court to reconstruct a story of its
own out of the rest. ....."
(Emphasis supplied)
27] Thus, the Supreme Court held that where salient
features of prosecution story are proved to be true, the
prosecution's case cannot be discarded on account of certain
discrepancies and contradictions in the evidence of some or all
the witnesses. In such cases, the Court has to sift the evidence
to separate the truth from untruth, exaggeration,
embellishment and improvement, and to draw a conclusion
whether the evidence implicates the accused persons.
28] If the testimony of eye-witnesses is examined in the
light of the above, we do not find that the discrepancies
highlighted by the defence would render their evidence
inadmissible, rather we find a ring of truth, viz., involvement of
accused persons in the crime as narrated by the eye-witnesses.
29] Considering above, and the fact that the incident,
as described by the witnesses, has attained finality, though to
the extent of accused nos. 5 and 6, coupled with cross-
examination of PW1 certifying presence of accused persons
with deadly weapons used in the crime at the spot, will leave
no room to doubt involvement of accused in the crime.
30] Another argument of accused nos. 1 to 4 is that
there is delay in recording statement of eye-witnesses. PW1's
statement was recorded after five days, and statement of some
of the witnesses was recorded after enormous delay.
31] We may reiterate that merely on account of delay in
recording statement of eye-witnesses, the prosecution's case
cannot be doubted. It is well settled law that delay in recording
statement of witnesses does not necessarily discredit their
testimony. The Court may rely on their evidence, if it is cogent
and credible, and delay explained to the satisfaction. The
defence did not afford any opportunity to explain the delay to
the Investigating Officer. Had that been done, the Investigating
Officer would have explained the same.
32] In any case, what is relevant is substantive piece of
evidence. The witnesses have narrated the incident before the
Court with complete clarity. There is nothing in the cross-
examination to disbelieve their testimony, rather, the defence
has brought on record presence of accused persons at the spot
with deadly weapons in their hands, and thus, cemented the
prosecution's version. The delay in recording statement of some
of the witnesses will be, therefore, of no advantage to the
accused persons.
33] The Counsel for accused nos. 1 to 4 has referred to
following judgments in support of his argument that delay in
recording statement of eye-witnesses is fatal, wherein the
Hon'ble Supreme Court held that unexplained delay in
recording statements of witnesses give rise to suspicion when
the witnesses were available for examination.
I] Jagjit Singh Vs. State of Punjab [(2005) 3 SCC
689].
II] Harbeer Singh and Ors. Vs. Sheeshpal and Ors.
[(2016) 16 SCC 418].
34] In said cases, the evidence of eye-witnesses was not
truthful, reliable and trustworthy. Their presence at the scene
of occurrence was found highly unnatural, as also, their ability
to identify each accused. Thus, under peculiar facts of the case,
the unexplained delay in recording statement gave rise to
suspicion.
35] Such is not the case here. The accused persons are
known to the witnesses. Their identity is clearly established.
The incident occurred in a broad day light. It lasted for
reasonable time. The witnesses had ample opportunity to see
accused persons. Their roles have been clearly narrated. In the
circumstances, only because there occurred delay in recording
statement of few eye-witnesses, that too without affording
opportunity to explain the same, will not render their
testimony doubtful. The judgments, therefore, will be of no
assistance to the accused.
36] Thus, the involvement of the accused in the crime
has been established through first eight witnesses. The role of
other witnesses is limited. We will, accordingly, refer to the
same to the extent necessary.
37] PW9 - Rupesh is a panch witness to discovery of
weapon under Section 27 of the Indian Evidence Act, 1872, at
the instance of accused nos. 3 and 4. He did not support the
prosecution version. PW10 - Swapnil is also a panch witness to
disclosure statement by accused no.1. The kinfe - Article 12
was recovered at his instance from his house concealed
beneath the cot. The clothes of accused no.1 were also seized
in his presence. This evidence in the light of the defence
bringing on record the presence of accused with knife will only
substantiate prosecution's case.
38] PW11 - Pruthviraj and PW12 - Puneshwar are
panch witnesses to discovery of weapon at the instance of
accused no.2. They both turned hostile. PW13 - Prasad is a
doctor, who conducted postmortem of Imrat. He has given
description of injuries sustained by Imrat saying that the stab
wounds were cavity deep with sharp margins and pointed
angles. He described about internal injuries as well. He
deposed that all the injuries were antemortem and the cause of
death was shock due to stab injuries. PW14 - Pramod is also a
doctor. He conducted postmortem of Puranlal. He deposed that
there were 14 injuries on his person of which three were stab
injuries. All the injuries were antemortem. The cause of death
was stab injuries to vital organs. The evidence of both the
doctors will support the prosecution case on homicidal death,
which even otherwise is not disputed by the accused persons.
Their evidence will further support prosecution's case on the
point of injuries sustained by victims in the incident.
39] PW15 - Ishwar is a police official attached to
Jaripatka Police Station. He has registered FIR and drawn
inquest panchanama. The investigation was thereafter taken
over by PW16 - Mukhtar. He has given details of the
investigation carried on by him. PW17 - Keshav is another
police official, who has drawn spot panchanama. The spot of
incident is not in dispute, and therefore, no further assessment
is required. PW18 - Himanshu is a doctor, who has examined
PW2, who sustained minor injuries in the assault at the hands
of accused no.1 along with accused nos. 5 and 6. His testimony
is relied upon by the trial Court to convict accused nos. 5 and
6. Their conviction has attained finality and its consequences
are taken into account. PW19 - Ramesh is also the Investigating
Officer, who has completed remaing investigation and filed
chargesheet. He has given details of the investigation done by
him. There is nothing in the cross-examination of the
Investigating Officer, except minor discrepancies on the point
of delay in recording statement of witnesses, etc., which we
have dealt with in earlier paragraphs. That apart, the forensic
evidence in the form of CA report indicates that the blood
group of Puranlal is 'B' and that of deceased Imrat is 'A'. The
blood stains on Articles - 6 and 12 were having blood group 'B'
and on Article - 9 knife of blood group 'A'. The weapons were
used to assault both Imrat and Puranlal. Multiple injuries were
inflicted. The blood stains appearing on the weapons would
naturally be of last injury caused to Imrat or Puranlal, as the
case may me.
40] Thus, what transpires is that the incident occurred
on 12/6/2016. Accused no.1 had come to the house of PW2.
There occurred quarrel between accused no.1 and PW2's
husband Imrat on account of cleaning the drainage. The other
accused persons joined accused no.1. They all assaulted Imrat.
In doing so, accused no.1 pushed PW2 by holding her neck.
Accused nos. 5 and 6 have also assaulted PW2. Accused nos. 1,
2 and 4 caused stab injury to Imrat and also to Puranlal, who
intervened to stop fight. Accused no.3 assaulted by means of
stones and bricks.
41] Puranlal suffered death for intervening to stop
fight. He was otherwise not involved in the quarrel. The
accused had no reason to kill him but in the heat of the
moment assaulted him with deadly weapon. The trial Court,
therefore, correctly held that accused had no intention to
commit his (Puranlal) murder, but their act caused his death to
attract ingredients of Section 304 Part - II of IPC. Role of
accused no.3 is also described, who assaulted both the victims
by means of stones and bricks. The manner in which these
accused built up assault on Imrat indicates that they had
common intention to kill him. The trial Court found the
assembly of six persons unlawful, as defined under Section 141
of IPC. The trial Court, however, acquitted accused nos. 5 and 6
under Section 141 read with Section 149 of IPC.
42] Thus, out of six accused, two were found not guilty
of offence punishable under Section 149 of IPC. The question,
therefore, is whether the other four accused, i.e., the present
appellants, could be held guilty for the offence punishable
under Section 141 read with Section 149 of IPC.
43] The learned A.P.P. submits that even if accused nos.
5 and 6 are acquitted, the remaining accused, though less than
five in number, can be convicted under Section 141 read with
Section 149 of IPC, considering the fact that assembly was
unlawful. In support, he has relied upon following judgments :
I] Surendra Singh Vs. State of Rajasthan [AIR 2023
SC 1889].
II] Khem Karan And Others Vs. The State of U.P. And
Another [(1974) 4 SCC 603].
III] Dharam Pal And Others Vs. The State of U.P.
[(1975) 2 SCC 596].
IV] Masalti & Ors. Vs. State of Uttar Pradesh [AIR 1965
SC 202].
44] We have gone through the judgments. The essential
ingredients to attract unlawful assembly, as defined under
Section 141 of IPC, is assembly of five or more persons with
common illegal object. Thus, the prosecution is under an
obligation to prove that all the Members had assembled with
identical common object, which is unlawful.
45] In the present case, the prosecution came up with a
theory of common object of committing offence. The object will
be common if all assembled to commit one and the same
offence. The trial Court held that accused nos. 5 and 6 were
not guilty of common object of committing murder of Imrat,
and accordingly, acquitted them for the offence punishable
under Section 141 read with Section 149 of the IPC.
46] That being so, we find it difficult to accept the
argument of the learned A.P.P. that even if the acquitted
accused would reduce the members of assembly below five,
they can be convicted for the offence punishable under Section
149 of IPC.
47] The Constitution Bench in the case of Mohan Singh
And Anr. Vs. State of Punjab [AIR 1963 SC 174] had an
occasion to delve upon this issue, wherein, in paragraph 8, it
held thus :
"8. The true legal position in regard to the essential
ingredients of an offence specified by Section 149 are
not in doubt. Section 149 prescribes for vicarious or
constructive criminal liability for all members of an
unlawful assembly where an offence is committed by
any member of such 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. It would
thus be noticed that one of the essential ingredients of
Section 149 is that the offence must have been
committed by any member of an unlawful assembly,
and Section 141 makes it clear that it is only where five
or more persons constituted an assembly that an
unlawful assembly is born, provided, of course, the
other requirements of the said section as to the
common object of the persons composing that assembly
are satisfied. In other words, it is an essential condition
of an unlawful assembly that its membership must be
five or more. The argument, therefore, is that as soon
as the two Piara Singhs were acquitted, the
membership of the assembly was reduced from five to
three and that made Section 141 inapplicable which
inevitably leads to the result that Section 149 cannot be
invoked against the appellants. In our opinion, on the
facts of this case, this argument has to be upheld. We
have already observed that the point raised by the
appellants has to be dealt with on the assumption that
only five persons were named in the charge as persons
composing the unlawful assembly and evidence led in
the course of the trial is confined only to the said five
persons. If that be so, as soon as two of the five named
persons are acquitted, the assembly must be deemed to
have been composed of only three persons and that
clearly cannot be regarded as an unlawful assembly."
48] As could be seen, in the aforesaid case, the
chargesheet was filed against five persons, of which, two were
acquitted reducing the Members of assembly to three, and
therefore, the Supreme Court held that Section 141 of IPC will
be not applicable, and consequently Section 149 cannot be
invoked.
49] Similar is the case here. The prosecution
chargesheeted six accused, of which, two are acquitted for the
offence punishable under Section 149 of IPC. Thus, the number
of Members of assembly got reduced to four. In turn, the
ingredients of Section 141 of IPC will be not attracted.
Consequently, conviction under Section 149 of IPC would
become unsustainable.
50] Nonetheless, the manner in which these four
accused have built up assault on Imrat and Puranlal, common
intention is clearly spelt out. Out of four accused, three came
prepared with deadly weapons and fourth used stones and
bricks and was actively involved in the assault throughout.
They all did not spare Puranlal, who intervened to prevent
further damage. Thus, the accused may not suffer
consequences of Section 149 of IPC, but are definitely liable to
punishment in terms of Section 34 of IPC.
51] The judgments relied upon by the learned A.P.P. are
distinguishable, inasmuch as, the number of Members of
assembly in the cases cited by him were more than five, but
remained unidentified. The Supreme Court found that large
number of accused were acquitted, but there were other
persons, who might not have been identified or convicted but
were party to the crime, and together constituted statutory
number.
52] Thus, it appears that in the cases relied upon by the
learned A.P.P., unidentified accused coupled with chargesheeted
accused were more than five. In the circumstances, though few
accused were acquitted, and convicted accused were below five
in number, the ingredients of Section 141 of IPC stood proved
in the light of proof that along with chargesheeted accused,
some other identified persons also assembled with common
object of committing the offence.
53] In the present case, only six persons were
chargesheeted on the count that they were Members of
unlawful assembly. It is not the case of the prosecution that
some unidentified persons had also assembled on that day with
common object. That being so, once, two out of six accused
were acquitted for the offence punishable under Section 149 of
IPC, the assembly of other four, i.e., the present appellants, will
not attract ingredients of Section 141 of IPC. The trial Court
failed to notice this important fact. Accordingly, conviction of
accused nos. 1 to 4 under Sections 143 and 148 of IPC is
unsustainable. Their conviction for other offences will have to
be modified by replacing Section 149 by Section 34 of IPC.
54] Accordingly, point nos. 1 and 2 are answered in the
negative, and point nos. 3 and 4 are answered in partly
affirmative.
As to point no.5
55] Having answered first four points in the manner
hereinabove, the appeals are partly allowed. The order of
conviction of appellants for the offences punishable under
Sections 143 and 148 of IPC is quashed and set aside. The
appellants are acquitted for the offences punishable under
Sections 143 and 148 of IPC. Rest of the order stands intact
with modification to the extent of replacing Section 149 by
Section 34 of IPC.
56] The bail bonds of accused nos. 2 and 3 stand
cancelled. They shall surrender before the trial Court within
two weeks from today, who shall commit them to prison for
undergoing remaining sentence. If they fail to surrender, the
trial Court shall take necessary steps to secure their presence.
57] The appeals are disposed of in terms of above.
JUDGE JUDGE
Signed by: Mr. Sumit Agrawal
Sumit
Designation: PS To Honourable Judge
Date: 16/03/2026 19:37:31
