Chattisgarh High Court
Yudhistthir Painkra And Ors vs State Of Chhattisgarh on 9 November, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1103 of 2013
1. Yudhistthir Painkra S/o Trilochan Painkra, by occupation
Agriculturist, Aged about 18 years, R/o Sakin
Bhaisamunda, Chandagarh, Police Station Pathalgaon, Civil
and Revenue District Jashpur, Chhattisgarh.
2. Trilochan Painkra S/o Sadar Sai, Aged about 50 years, by
occupation Agriculturist, R/o Sakin Bhaisamunda,
Chandagarh Police Station Pathalgaon, Civil and Revenue
District Jashpur, Chhattisgarh.
3. Sainath Ram S/o Sadar Sai, Aged about 45 years, by
occupation Agriculturist, R/o Sakin Bhaisamunda,
Chandagarh Police Station Pathalgaon, Civil and Revenue
District Jashpur, Chhattisgarh.
4. Vijay Ram Painkra (died and deleted).
5. Murlidhar S/o Karam Sai, Aged about 42 years, by
occupation Agriculturist R/o Sakin Bhaisamunda,
Chandagarh Police Station Pathalgaon, Civil and Revenue
District Jashpur, Chhattisgarh.
---Appellants
Versus
State of Chhattisgarh through Police Station Pathalgaon,
Civil and Revenue District Jashpur, Chhattisgarh.
---Respondent
For Appellants 1 & 3 :- Mr. Akhilesh Kumar, Advocate
For Appellants 2 & 5 :- Mr. Sanjay Agrawal, Advocate
For Respondent/State :- Mr. Animesh Tiwari, Dy. A.G.
and Mr. Ishan Verma, P.L.
2
Criminal Appeal No. 515 of 2014
1. Bhuneshwar Painkra S/o Karam Say, Aged about 42 years,
Occupation Agriculturist.
2. Tejram (died and deleted).
3. Rohit S/o Murlidhar Painkra, Aged about 20 years,
Occupation Agriculturist.
4. Dilip Kumar S/o Tejram, Aged about 40 years, Occupation
Agriculturist.
All R/o Village Bhaisamunda, Chandagarh, Police Station
Pathalgaon, Civil and Revenue District Jashpur,
Chhattisgarh.
---Appellants
Versus
State of Chhattisgarh Acting through Officer-in-charge,
Police Station Pathalgaon, Civil and Revenue District
Jashpur, Chhattisgarh.
---Respondent
For Appellants :- Mr. Sanjay Agrawal, Advocate
For State :- Mr. Animesh Tiwari, Dy. A.G. and
Mr. Ishan Verma, P.L.
Criminal Appeal No. 199 of 2016
1. Arjun Singh S/o Trilochan Singh, Aged about 22 years.
2. Bhagirathi Painkra S/o Lodhiram, Aged about 50 years.
Both are Occupation Agriculturist, R/o Village
Bhaisamunda, Chandagarh, Thana Pathalgaon, Distt.
Jashpur, Civil and Revenue District Jashpur, Chhattisgarh.
---Appellants
3
Versus
State of Chhattisgarh through P.S. Pathalgaon, Distt.
Jashpur, Chhattisgarh.
---Respondent
For Appellants :- Mr. Sanjay Agrawal, Advocate
For State :- Mr. Animesh Tiwari, Dy. A.G. and
Mr. Ishan Verma, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
09/11/2022
Sanjay K. Agrawal, J.
1. Since all the three criminal appeals have arisen out of
impugned judgment dated 08/08/2013 passed by learned
Upper Sessions Judge, Kunkuri, District Jashpur in
Sessions Trial No. 11/2012, therefore, they have been
clubbed together, heard together and are being decided by
this common judgment.
2. The appellants in Criminal Appeal No. 1103 of 2013 namely
Yudhistthir Painkra (A-1), Trilochan Painkra (A-2), Sainath
Ram (A-3), Vijay Ram Painkra (A-4)(now deceased) and
Murlidhar (A-5); the appellants in Criminal Appeal No. 515
of 2014 namely Bhuneshwar Painkra (A-6), Tejram (A-9)
(now deceased), Rohit (A-10) and Dilip Kumar (A-11); and
the appellants in Criminal Appeal No. 199 of 2016 namely
Arjun Singh (A-7) and Bhagirathi Painkra (A-8); all have
preferred these appeals under Section 374(2) of CrPC calling
in question the validity, legality and correctness of the
judgment impugned whereby each one of them has been
convicted and sentenced as under :-
Conviction Sentence
U/s 148 of IPC R.I. for 1 year
U/s 302/149 of IPC Life imprisonment with fine of
Rs. 5000/- in default of
payment of fine, further R.I. for
1 year.
Prosecution case :-
3. Case of the prosecution, in brief, is that on 30/12/2011 at
about 8 AM at Village Bhaisamunda, the appellants herein
constituted an unlawful assembly armed with deadly
weapons like tangi, tabli etc. with the common intention of
causing death of Devnarayan and in furtherance of their
said common intention, they used criminal force and
assaulted Devnarayan due to which he suffered grievous
injuries and succumbed to death.
4. Further case of the prosecution is that there was ongoing
dispute between the appellants and the deceased with
regard to land. Prior to the date of the incident, the villagers
of Kawar Para used to make a barn and thrash their paddy
on the land which belonged to the deceased, and he had
already asked them not to use his land. On 30/12/2011 at
about 8 AM, appellant Trilochan Painkra (A-2) was
thrashing paddy in the said barn upon which deceased
Devnarayan, his wife Parwati Painkra (P.W.-1) and his son
Govind (P.W.-2) reached the said spot and stopped the
appellant Trilochan Painkra (A-2) and further asked him to
remove his paddy. Thereafter, all the appellants/accused
persons came there armed with deadly weapons like tangi,
tabli and kalari and in furtherance of their common
intention, they started assaulting Devnarayan. When
deceased Devnarayan tried to run away, appellant/accused
Yudhistthir (A-1) inflicted a blow on his right ear with kalari
due to which deceased Devnarayan fell on the ground.
Thereafter, all the appellants/accused persons assaulted
him with tangi, tabli and kalari and inflicted grievous
injuries all over his body. Sainath Ram (A-3) even took out
his right eyeball and blood started oozing out due to which
deceased Devnarayan succumbed to death.
5. The said incident was reported at Police Station Pathalgaon
by Parvati Painkra (P.W.-1), wife of the deceased on the
basis of which dehati merg intimation was registered vide
Ex. P/1 which was later on registered as numberi merg
intimation vide Ex. P/2 and first information report was
lodged against the appellants for offences punishable under
Sections 147, 148 and 302/149 of IPC vide Ex. P/53.
Summons were issued to the witnesses under Section 175
of CrPC vide Ex. P/6 and in the presence of the witnesses,
inquest was conducted vide Ex. P/5. Thereafter, the dead
body was subjected to postmortem which was conducted by
Dr. J. Minj (P.W.-8) and as per the postmortem report (Ex.
P/8) cause of death is due to head injury and damage of
vital organs like brain, etc., mode of death is hemorrhage
shock due to multiple injuries and the nature of death is
homicidal.
6. Pursuant thereof, memorandum statement of Trilochan
Painkra (A-2) was recorded vide Ex. P/21 and the following
recovery was made from the appellants/accused persons :-
Appellant/Accused Exhibit Seizure
Trilochan Painkra P/22 Blood stained Tangi
(A-2)
Yudhistthir Painkra P/23 Blood stained Tabli
(A-1)
Sainath Ram P/24 Kalari
(A-3)
Vijay Ram Painkra P/25 Tangi
(A-4)
Murlidhar P/26 Tangi
(A-5)
Bhuneshwar Painkra P/27 Kalari
(A-6)
Arjun Singh P/28 Tangi
(A-7)
Bhagirathi Painkra P/29 Tangi
(A-8)
Tejram P/30 Tangi
(A-9)
Rohit P/31 Tangi
(A-10)
Dilip Kumar P/32 Tangi
(A-11)
7. The aforesaid seized articles were though sent for FSL vide
Ex. P/48 but no FSL report has been brought on record to
prove the blood found on the articles. After due
investigation, all the eleven appellants/accused persons
were charge-sheeted for offences punishable under Sections
148 and 302/149 of IPC which was placed before the Court
of Judicial Magistrate First Class Pathalgaon and it was
then committed to the Court of Sessions for hearing and
disposal in accordance with law. The appellants/accused
persons abjured their guilt and entered into defence.
8. In order to bring home the offence, prosecution examined as
many as 17 witnesses and exhibited 53 documents on
record. The statements of the accused persons were
recorded wherein they denied guilt, they did not examine
any witness, however, exhibited the statement of Parwati
Painkra under Section 161 of CrPC as D/1 in their defence.
9. Learned trial Court, after appreciating the oral and
documentary evidence on record, convicted all the
appellants/accused persons for offences punishable under
Sections 148 and 302/149 of IPC and sentenced them as
aforesaid against which these three appeals had been
preferred by the 11 appellants, however, during the
pendency of the appeals, two appellants namely Vijay Ram
Painkra (A-4) and Tejram (A-9) died, as such, the appeals so
far as it relates to them have been dismissed as abated.
Submissions on behalf of the parties :-
10. Mr. Sanjay Agrawal, learned counsel appearing for
appellants/accused persons (A-2, A-5 to A-8, A-10 and A-
11) as well as Mr. Akhilesh Kumar, learned counsel
appearing for appellants/accused persons (A-1 and A/3),
would submit that the trial Court is absolutely unjustified
in convicting the appellants/accused persons for offence
punishable under Section 302 of IPC with the aid of Section
149 of IPC relying upon the statements of Parwati Painkra
(A-1) and Govind (A-2), who are said to be eye-witnesses, as
first of all they are relative witnesses of the deceased,
therefore, their testimonies cannot be trustworthy and
secondly, as per the statement of Sukhwaro Bai (P.W.-3),
she has admitted that when the incident took place, Parwati
Painkra (P.W.-1) as well as Govind (P.W.-2), both were
inside the house, as such, they could not have witnessed
the incident. They would further submit that so far as
seizure of blood stained tangi from Trilochan (A-2) vide Ex.
P/22 is concerned, both the seizure witnesses namely
Padum Sai (P.W.-12) and Dilsai (P.W.-13) have turned
hostile and have not supported the case of the prosecution
and moreover, the articles seized from the
appellants/accused persons were though sent for FSL, but
no FSL report has been brought on record by the
prosecution to connect the appellants/accused persons
with the crime in question. They would also submit that
prosecution has miserably failed to prove that the
appellants/accused persons constituted unlawful assembly
in terms of Section 141 of IPC, as such, the conviction of
the appellants/accused persons for offence punishable
under Section 302 of IPC with the aid of Section 149 of IPC
is liable to be set aside.
11. Mr. Animesh Tiwari and Mr. Ishan Verma, learned State
counsel, would support the impugned judgment and submit
that the trial Court has rightly convicted the
appellants/accused persons for the aforesaid offences
relying upon the statements of eye-witnesses Parwati
Painkra (A-1) and Govind (A-2), as such, the instant appeals
deserve to be dismissed.
12. We have heard learned counsel for the parties, considered
their rival submissions made herein-above and went
through the records with utmost circumspection.
13. The first question for consideration is whether the death of
deceased Devnarayan was homicidal in nature, which has
been answered in affirmative by the trial Court relying upon
the expert medical opinion of Dr. J. Minj (P.W.-8) as well as
the postmortem report (Ex. P/8) in which cause of death is
said to be due to head injury and damage of vital organs
like brain, etc., mode of death is hemorrhage shock due to
multiple injuries and the nature of death is homicidal. A
careful perusal of the statement of Dr. J. Minj (P.W.-8)
would show that there were 11 injuries on the body of the
deceased out of which 10 injuries were incised wounds
which would have been caused by a sharp object and his
right eye-ball had also been removed from the socket. As
such, relying upon the postmortem report (Ex. P/8) as well
as the statement of Dr. J. Minj (P.W.-8) and looking to the
injuries suffered by the deceased, it can safely be inferred
that the death of deceased was indeed homicidal in nature,
more so, when it has also not been refuted by learned
counsel for the appellants. In that view of the matter, we are
of the considered opinion that learned trial Court has
rightly held that death of deceased Devnarayan was
homicidal in nature.
14. The next question that arises for consideration is whether
the appellants/accused persons (A-1 to A-11) constituted
unlawful assembly in terms of Section 141 of IPC and in
furtherance of their common intention, they assaulted the
deceased with dangerous and deadly weapons and
murdered him ?
15. In order to answer this question, it would be relevant to
notice Section 141 of IPC, which defines "unlawful
assembly" as under :-
"141. Unlawful assembly.--An assembly of five or
more persons is designated an "unlawful assembly",
if the common object of the persons composing that
assembly is-
(First)-- xxxx;
(Second)-- xxx;
(Third)-- To commit any mischief or criminal
trespass, or other offence; or
(Fourth)-- xxx;
(Fifth)-- xxxx."
16. Section 141 of IPC states that an "unlawful assembly" is an
assembly of five or more persons, if their common object is
to commit mischief, criminal trespass or any other offence.
The Constitution Bench of the Supreme Court in the matter
of Mohan Singh and another vs. State of Punjab 1 held
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 one of the essential condition
of an unlawful assembly that its membership must be five
or more. The assembly must consist of five or more persons
having one of the five specified objects as their "common
object". Further, their Lordships while dealing with as to the
applicability of Section 149 of IPC in such case held that it
is necessary to bear in mind the several categories of cases
which come before the Criminal Courts for their decision. If
five or more persons are named in the charge as composing
an unlawful assembly and evidence adduced by the
prosecution proves those charge against all of them it is
very clear that Section 149 IPC can be invoked.
17. Since all the convicted accused persons/appellants herein
(A-1 to A-11) have been convicted for offence punishable
under Section 302 with the aid of Section 149 of IPC, it is
1AIR 1963 SC 174
relevant to notice Section 149 of IPC here, which reads as
under:
"149. Every member of unlawful assembly guilty
of offence committed in prosecution of common
object.--If an offence is committed by any member
of 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, every
person who, at the time of the committing of that
offence, is a member of the same assembly, is guilty
of that offence."
18. A careful perusal of the aforesaid provision would show that
following ingredients are required to be established in order
to convict an accused person for offence under Section 149
of IPC: (i) there must be an unlawful assembly; (ii)
Commission of an offence by any member of an unlawful
assembly and (iii) Such offence must have been committed
in prosecution of the common object of the assembly; or
must be such as the members of the assembly knew to be
likely to be committed.
19. Section 149 is applicable only in case of members of
unlawful assembly i.e. assembly of 05 or more persons the
common object of whom is any of the objects specified in
Section 141 of IPC. In case of such an assembly every
person who is member of the assembly, is guilty of every
offence committed by any member of the assembly (1) if
such offence is committed in prosecution of the common
object of such assembly or (2) if the offence is such as the
members knew likely to be committed in prosecution of the
common object, provided the person was a member of such
assembly when that offence was committed. Thus, the
liability under this provision attaches to every member of
the assembly even when such member had nothing to do
with the actual commission of the offence, and even a
knowledge about the likelihood of the offence being
committed in prosecution of the common object of the
assembly is sufficient to impose the liability for the offence
when committed by any member of the assembly.
20. The first part of Section 149 of IPC speaks of the
commission of an offence in prosecution of the common
object of the assembly, whereas the second part takes
within its fold knowledge of likelihood of the commission of
the offence in prosecution of the common object. The
knowledge contemplated by the second part does not mean
knowledge of mere possibility of the commission of the
offence. The commission of offence must be reasonably
likely. Such knowledge may be collected from the nature of
the assembly, its common object, the kind of arms which its
members bear and their behaviour at or before the actual
conflict (See: State of Assam vs. Darga Dewani2).
21. The Supreme Court in the matter of Rajendra Shantaram
Todankar vs. State of Maharashtra3 explained the scope of
Section 149 and held in Para-14 as under:
"14. Section 149 of the Indian Penal Code provides
2 1970 (3) SCC 236 [Para-8]
3 (2003) 2 SCC 257
that if an offence is committed by any member of 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, every person who at the
time of the committing of that offence, is a member
of the same assembly is guilty of that offence. The
two clauses of Section 149 vary in degree of
certainty. The first clause contemplates the
commission of an offence by any member of an
unlawful assembly which can be held to have been
committed in prosecution of the common object of
the assembly. The second clause embraces within
its fold the commission of an act which may not
necessarily be the common object of the assembly
nevertheless the members of the assembly had
knowledge of likelihood of the commission of that
offence in prosecution of the common object. The
common object may be commission of one offence
while there may be likelihood of the commission of
yet another offence the knowledge whereof is
capable of being safely attributable to the members
of the unlawful assembly. In either case every
member of the assembly would be vicariously liable
for the offence actually committed by any other
member of the assembly. A mere possibility of the
commission of the offence would not necessarily
enable the Court to draw an inference that the
likelihood of commission of such offence was within
the knowledge of every member of the unlawful
assembly. It is difficult indeed, though not
impossible, to collect direct evidence of such
knowledge. An inference may be drawn from
circumstances such as the background of the
incident, the motive, the nature of the assembly, the
nature of the arms carried by the members of the
assembly, their common object and the behaviour of
the members soon before, at or after the actual
commission of the crime. Unless the applicability of
Section 149 either clause is attracted and the Court
is convinced, on facts and in law both, of liability
capable of being fastened vicariously by reference to
either clause of Section 149 of IPC merely because a
criminal act was committed by a member of the
assembly every other member thereof would not
necessarily become liable for such criminal act. The
inference as to likelihood of the commission of the
given criminal act must be capable of being held to
be within the knowledge of another member of the
assembly who is sought to be held vicariously liable
for the said criminal act."
22. Similarly, in the matter of Joseph v. State, represented by
Inspector of Police4 their Lordships of Supreme Court
defined the scope of Section 149 of IPC in two parts in Para-
11.1 & 11.2, which reads as under:
"11.1The first part of the section means that there
exists common object and that the offence has been
committed in prosecution of the common object. In
order that the offence may fall within the first part,
the offence must be connected immediately with the
common object of the unlawful assembly of which
the accused was member.
11.2 The second part of the section means that
even if the offence committed is not in direct
prosecution of the common object of the assembly,
it may yet fall under Section149, if it can be shown
that the offence was such as the members knew
was likely to be committed."
23. Section 149 of IPC declares the principle of vicarious
criminal liability. Upon an offence being committed by any
member of an unlawful assembly in prosecution of the
common object, every person, who at the time of the offence
being committed is a member of such assembly is guilty of
such offence. Equally, in the second part of Section 149, the
law-makers have provided that upon an offence being
committed by any member of the unlawful assembly which
was such that members of that assembly (unlawful
assembly), knew to be likely to be committed in prosecution
of that object, every member of the assembly, though he
may not have committed the offence, is rendered guilty of
4 (2018) 12 SCC 283
the offence (See: Somasundaram @ Somu vs. State
represented by the Deputy Commissioner of Police5).
24. It is well settled that since Section 149 IPC imposes a
constructive penal liability, it must be strictly construed as
it seeks to punish members of an unlawful assembly for the
offence or offences committed by their associate or
associates in carrying out the common object of the
assembly and there must be a nexus between the common
object and the offence committed. The Supreme Court in
the matter of Allauddin Mian vs. State of Bihar 6 has held
in Para-08 as under:
"8. ..... Therefore, in order to fasten vicarious
responsibility on any member of an unlawful
assembly the prosecution must prove that the act
constituting an offence was done in prosecution of
the common object of that assembly or the act done
is such as the members of that assembly knew to be
likely to be committed in prosecution of the common
object of that assembly. Under this section, therefore,
every member of an unlawful assembly renders
himself liable for the criminal act or acts of any other
member or members of that assembly provided the
same is/are done in prosecution of the common
object or is/are such as every member of that
assembly knew to be likely to be committed. This
section creates a specific offence and makes every
member of the unlawful assembly liable for the
offence or offences commit- ted in the course of the
occurrence provided the same was/were committed
in prosecution of the common object or was/were
such as the members of that assembly knew to be
likely to be committed. Since this section imposes a
con- structive penal liability, it must be strictly
construed as it seeks to punish members of an
unlawful assembly for the offence or offences
committed by their associate or associ- ates in
carrying out the common object of the assembly.
What is important in each case is to find out if the
5 (2020) 7 SCC 722
6 (1981) 2 SCC 755
offence was committed to accomplish the common
object of the assembly or was one which the
members knew to be likely to be committed. There
must be a nexus between the common object and the
offence committed and if it is found that the same
was committed to accomplish the common object
every member of the assembly will become liable for
the same. Therefore, any offence committed by a
member of an unlawful assembly in prosecution of
anyone or more of the five objects mentioned in
Section 141 will render his companies constituting
the unlawful assembly liable for that offence with the
aid of Section 149, I.P.C."
25. The aforesaid principle of law laid down by their Lordships
of Supreme Court in the matter of Allauddin Mian v. State
of Bihar7 has been followed in the matter of Kuldip Yadav
and others v. State of Bihar8.
26. In the matter of Vijay Pandurang Thakre and others v.
State of Maharashtra9 the Supreme Court has reiterated
the expression "in prosecution of the common object"
occurring in Section 149 IPC, postulates that it must be one
which has been done with a view to accomplish the common
object attributed to the members of the unlawful assembly.
Their Lordships of Supreme Court further held that this
expression is to be strictly construed as equivalent to in
order to attain common object. It must be immediately
connected with common object by virtue of nature of object
and held in Para-17 as under:
"17. In the facts of the present case, we find that
common object of the assembly, even if it is
presumed that there was an unlawful assembly,
7 (1981) 2 SCC 755
8 (2011) 5 SCC 324
9 (2017) 4 SCC 377
has not been proved. The expression 'in prosecution
of the common object' occurring in this Section
postulates that the act must be one which have
been done with a view to accomplish the common
object attributed to the members of the unlawful
assembly. This expression is to be strictly construed
as equivalent to in order to attain common object. It
must be immediately connected with common
object by virtue of nature of object. In the instant
case, even the evidence is not laid on this aspect. As
pointed out above, the courts below were influenced
by the fact that one of the injuries on the person of
Ashok was on his head which became the cause of
death and from this, common object is inferred."
27. Apart from the above, Section 149 creates a specific offence.
So, there should be a clear finding as to what was the object
of the unlawful assembly and if so whether the object was
unlawful, that is, to commit murder, grievous hurt or
simple hurt (See: Bhudeo Mandal vs. State of Bihar10). It
is now well settled law that whenever a Court convicts any
person for an offence with the aid of section 149 of IPC, a
clear finding regarding a common object of the unlawful
assembly must be given and the evidence discussed must
show not only the nature of the common object but also
that the object was unlawful. (See: Irengbam Labej Singh
vs. State of Manipur11).
28. The aforesaid principle laid down has been followed by the
Supreme Court in the matter of Kuldip Yadav (supra) in
following words:
"36. ..... The above provision makes it clear that
before convicting accused with the aid of Section
149 IPC, the Court must give clear finding
regarding nature of common object and that the
10 (1981) 2 SCC 755
11 1993 Suppl. (3) SCC 653
object was unlawful. In the absence of such finding
as also any overt act on the part of the accused
persons, mere fact that they were armed would not
be sufficient to prove common object. Section 149
creates a specific offence and deals with
punishment of that offence. Whenever the court
convicts any person or persons of an offence with
the aid of Section 149, a clear finding regarding the
common object of the assembly must be given and
the evidence discussed must show not only the
nature of the common object but also that the
object was unlawful. Before recording a conviction
under Section 149 IPC, essential ingredients of
Section 141 IPC must be established. The above
principles have been reiterated in Bhudeo Mandal
and Others vs. State of Bihar (1981) 2 SCC 755.
**** **** ****
39. It is not the intention of the legislature in
enacting Section 149 to render every member of
unlawful assembly liable to punishment for every
offence committed by one or more of its members.
In order to attract Section 149, it must be shown
that the incriminating act was done to accomplish
the common object of unlawful assembly and it
must be within the knowledge of other members as
one likely to be committed in prosecution of the
common object. If the members of the assembly
knew or were aware of the likelihood of a particular
offence being committed in prosecution of the
common object, they would be liable for the same
under Section 149 IPC."
29. The Supreme Court in the matter of Sikhar Behera and
other vs. State of Orissa12 while deciding the question of
common object, their Lordships have held that the nature of
participation, the weapon used and the injuries caused
would be relevant to infer the nature of common object.
30. Reverting to the facts of the present case in light of the
aforesaid principles of law laid down by their Lordships of
the Supreme Court, it is quite vivid that in order to invoke
12 1994 Supp (1) SCC 493
Section 149 of IPC, it is required to consider whether the
appellants/accused persons (A-1 to A-11) had constituted
unlawful assembly in terms of Section 141 of IPC and they
had the common object of causing hurt to the deceased and
the act of the appellants/accused persons (A-1 to A-11) was
done to accomplish the said common object of the unlawful
assembly and it was within their knowledge that the offence
is likely to be committed in prosecution of their said
common object and in furtherance thereof, they committed
the murder of deceased Devnarayan. Admittedly, charges
were framed by the trial Court against the
appellants/accused persons for offences punishable under
Sections 148 and 302/149 of IPC and the trial Court, after
appreciating the oral and documentary evidence on record,
recorded an affirmative finding with regard to the
constitution of unlawful assembly by the
appellants/accused persons (A-1 to A-11) and thereby
committing the murder of the deceased in furtherance of
their common object and convicted them for the aforesaid
offences. In order to prove constitution of unlawful
assembly against the appellants/accused persons (A-1 to
A-11), three eye-witnesses have been examined on behalf of
the prosecution. We shall consider the testimonies of each
of them one-by-one.
31. Parwati Painkra (P.W.-1), wife of the deceased, in her
statement before the Court, has firstly stated that in
paragraph 2 that all the appellants/accused persons
assaulted the deceased with deadly weapons and thereafter,
they absconded from the spot, however, in her cross-
examination, she has stated in paragraph 34 that at the
time of the incident, she was at her house and she knows
about the incident because her son Govind (P.W.-2) told her
so. It is also pertinent to mention that as per the statement
of Govind (P.W.-2), the place of the incident is about 500
meters away from the house of the deceased. As such,
Parwati Painkra (P.W.-1) cannot be said to be an eye-
witness, which has also been recorded by the trial Court in
paragraph 18 of the impugned judgment stating that it is
possible that Parwati Painkra (P.W.-1) has not seen the
entire incident. Therefore, the statement of Parwati Painkra
(P.W.-1) stating that all the appellants/accused persons (A-
1 to A-11) were present on the spot at the time of the
incident and they had constituted an unlawful assembly in
terms of Section 141 of IPC cannot be accepted.
32. Sukwaro Bai (P.W.-3), mother of the deceased, has clearly
stated that at the time of the incident, she was inside the
house and when she went to the spot, she only saw the
body of the deceased lying on the ground and she has
clearly admitted that she has not seen the incident.
Moreover, in her cross-examination, she has stated that at
the time of the incident, her daughter-in-law Parwati
Painkra (P.W.-1) as well as her grandson Govind (P.W.-2),
both were also inside the house.
33. Govind (P.W.-2), son of the deceased, is a child witness aged
about 11 years. In paragraph 1 of his statement, he has
clearly stated that though he knew all the 11
appellants/accused persons but he did not know the names
of some of them. In paragraph 3, he has stated that
Yuddhistthir (A-1), who was armed with tangi, had firstly
started assaulting the deceased and Sainath (A-3) had
taken out his eye-ball with kalari. Even in paragraph 11, he
has only named Yudhistthir (A-1) as the assailant. As such,
from the close scrutiny of the testimonies of these three eye-
witnesses, it is evident that only Yudhistthir (A-1) and
Sainath (A-3) have been named to be the assailants of the
deceased and no other appellant/accused has been named
as such whereas in order to constitute unlawful assembly in
terms of Section 141 of IPC, assembly of 5 or more persons
is required whose common object is to commit an offence.
Therefore, prosecution has failed to establish that
appellants/accused persons had constituted unlawful
assembly and in furtherance of their common intention,
they committed the murder of the deceased. As such, the
trial Court has erred in convicting the appellants/accused
persons with the aid of Section 149 of IPC. Now, we shall
consider the case of each of them separately.
Case of Trilochan (A-2) :-
34. Furthermore, though blood stained tangi was seized from
Trilochan (A-2) vide Ex. P/22 pursuant to his memorandum
statement vide Ex. P/21, but both the seizure witnesses
namely Padum Sai (P.W.-12) and Dilsai (P.W.-13) have
turned hostile and have not supported the case of the
prosecution and even though blood was found on the tangi
but no FSL report has been brought on record to connect
the said appellant/accused with the crime in question. As
such, the trial Court has erred in convicting him for
offences punishable under Sections 148 and 302/149 of
IPC. We hereby set aside his conviction and sentence for the
aforesaid offences.
Case of appellants/accused persons namely Vijay Ram
Painkra (A-4), Murlidhar (A-5), Bhuneshwar (A-6), Arjun
Singh (A-7), Bhagirathi (A-8), Rohit (A-10) and Dilip
Kumar (A-11) :-
35. After going through the entire evidence available on record
with utmost circumspection and after a thorough legal
analysis, we are of the considered opinion that the trial
Court has also erred in convicting the appellants/accused
persons namely Vijay Ram Painkra (A-4), Murlidhar (A-5),
Bhuneshwar (A-6), Arjun Singh (A-7), Bhagirathi (A-8),
Rohit (A-10) and Dilip Kumar (A-11) for the offences
punishable under Sections 148 and 302 of IPC particularly
when none of these appellants have been identified by any
of the eye-witnesses and though seizure of some weapons
have been made from them, but since they were not stained
with blood, they were not even sent for FSL and the seizure
witnesses have also turned hostile and have not supported
the case of the prosecution.
36. Even otherwise, in the matter of Nagarjit Ahir v. State of
Bihar13 their Lordships of the Supreme Court applied the
rule of caution and in the facts and circumstance of the
case held that "it may be safe to convict only those persons
against whom overt act is alleged with the aid to Section
149 IPC lest some innocent spectators may get involved".
Thereafter, all these judgments in the matters of Musa
Khan (supra) and Nagarjit Ahir (supra) have been followed
by their Lordships in the matter of Pandurang
Chandrakant Mhatre and others v. State of
Maharashtra14 and the accused persons therein against
whom overt act was not there, applied the rule of caution
and held in paragraph 74 as under :-
"74. In a case such as the present one, although
having regard to facts, the number of participants
could not be less than five, it is better to apply rule
of caution and act on the side of safety and convict
only A-2, A-3 and A-12 under Section 302 read with
Section 149 I.P.C whose presence as members of
party of assailants is consistently mentioned and
their overt acts in chasing and assaulting the
deceased are clearly proved. A-4, A-5, A-6, A-10 and
A-11 get the benefit of doubt with regard to offence
under Section 302 read with Section 149 I.P.C. since
evidence against them in chasing and assaulting the
deceased is not consistent. However, all the eight
13 (2005) 10 SCC 369
14 (2009) 10 SCC 773
appellants are guilty of the offences punishable
under Section 148 and Section 326 read with
Section 149, I.P.C. This is proved beyond doubt and
the High Court cannot be said to have erred in
holding so."
37. As such, in any case, it has been established that these
appellants/accused persons were not members of unlawful
assembly and even if, they were held to be members of
unlawful assembly, rule of caution would apply and in view
of the aforesaid decisions rendered by the Supreme Court, it
would be unsafe to convict them for offences punishable
under Sections 148 and 302/149 of IPC. We hereby set
aside their conviction and sentence as recorded by the trial
Court.
Case of appellants/accused persons namely Yudhistthir
(A-1) and Sainath (A-3) :-
38. Govind (P.W.-2), son of the deceased, in his statement
before the Court, has clearly named these
appellants/accused persons and stated that Yudhistthir (A-
1) who was armed with tangi firstly started assaulting his
father on his neck and thereafter, Sainath (A-3) took out his
eye-ball from the socket with a kalari. In cross-examination,
when it was suggested to him that his father fell from a
ridge and thereby suffered injuries, Govind (P.W.-2) refused
and stated himself that when Yudhistthir (A-1) inflicted a
blow on his father's head with a tangi, he fell on the ground
and when an injury was inflicted on his neck, he
succumbed to death. Furthermore, from the statement of
Dr. J. Minj (P.W.-8), it is evident that at the time of
postmortem, he found as many as 11 injuries over the body
of the deceased out of which, 10 injuries were incised
wounds caused by sharp edged weapon. As stated by him,
injuries No. 1, 6, 9 and 10 were inflicted in his head and
injuries No. 2 and 4 were inflicted on his neck. As such, the
statement of Govind (P.W.-2) is also corroborated by medical
evidence of Dr. J.Minj (P.W.-8).
39. At this stage, it is argued by learned counsel for the
appellants that from the possession of Yudhistthir (A-2),
recovery of tabli has been made whereas the prosecution
witnesses have stated that he assaulted the deceased with
tangi.
40. True it is that recovery of tabli has been made from the
possession of the appellant/accused Yudhistthir (A-2),
however, it is pertinent to note that both tabli as well as
tangi are sharp edged weapons and moreover, eye-witness
Govind (P.W.-2) is only aged about 11 years and it cannot
be expected from him to differentiated between a tabli and a
tangi when both of them are sharp edged weapons
particularly when his own father (deceased) was being
assaulted by appellant/accused Yudhistthir (A-1) as he may
be in a state of anger and shock. As such, the testimony of
Govind (A-2) cannot be discarded merely because he made a
mistake in differentiating between a tabli and a tangi and
on that basis, it cannot be held that appellant/accused
Yudhistthir (A-1) was not involved in the crime in question.
41. So far as appellant/accused Sainath (A-3) is concerned,
Govind (P.W.-2), in his statement before the Court, has
clearly stated that he scraped out his father's eye-ball from
the socket with a kalari, which has also been seized from
his possession vide Ex. P/24. As such, on the testimony of
Govind (P.W.-2) corroborated by the statement of Dr. J. Minj
(P.W.-8) and partly supported by the statement of Parwati
Painkra (P.W.-1), it is held that appellants/accused persons
namely Yudhistthir (A-1) as well as Sainath (A-3), both are
the perpetrators of the crime in question and they assaulted
the deceased with deadly weapons due to which he suffered
grievous injuries and succumbed to death. As such, though
their conviction for offences with the aid of Sections 148
and 149 are hereby set aside, however, they are convicted
for offence punishable under Section 302 read with Section
34 of IPC in light of the decision rendered by the Supreme
Court in the matter of Rohtas and another v. State of
Haryana15 wherein the question, whether a charge framed
with the assistance of Section 149 of the IPC can later be
converted to one read with Section 34 of the IPC or even a
simplicitor individual crime, was considered and their
Lordships considered and reviewed all the earlier case laws
on the point including the Constitution Bench decision in
15 AIR 2021 SC 114
the matter of Willie (William) Slaney v. State of M.P.16 and
relying upon the decision in the matter of Nallabothu
Venkaiah v. State of Andhra Pradesh 17 holding that "the
conviction under Section 302 simpliciter without aid of
Section 149 is permissible if overt act is attributed to the
accused resulting in fatal injury which is independently
sufficient in the ordinary course of nature to cause the
death of the deceased and is supported by medical
evidence" and observed in paragraph 21 as under :-
"21. This position of law has finally been summed up
very succinctly in Nallabothu Venkaiah v. State of
Andhra Pradesh:
"24. Analytical reading of catena of decisions of
the Court, the following broad proposition of law
clearly emerges; (a) the conviction under Section
302 simpliciter without aid of Section 149 is
permissible if overt act is attributed to the accused
resulting in the fatal injury which is independently
sufficient in the ordinary course of nature to cause
the death of the deceased and is supported by
medical evidence; (b) wrongful acquittal recorded
by the High Court, even if it stood, that
circumstance would not impede the conviction of
the appellant under Section 302 r/w Section 149
I.P.C. (c) charge under Section 302 with the aid of
Section 149 could be converted into one under
Section 302 r/w Section 34 if the criminal act
done by several persons less than five in number
in furtherance of common intention is proved."
Conclusion :-
42. In view of the aforesaid legal analysis, appellants/accused
persons namely Yudhistthir (A-1) and Sainath (A-3) are
convicted for offence punishable under Section 302 r/w 34
of IPC and the sentence awarded by the trial Court for this
offence is hereby maintained. All the other
16 AIR 1956 SC 116
17 (2002) 7 SCC 117
appellants/accused persons namely Trilochan (A-2),
Murlidhar (A-5), Bhuneshwar (A-6), Arjun Singh (A-7),
Bhagirathi (A-8), Rohit (A-10) and Dilip Kumar (A-11) are
acquitted of the charges punishable under Sections 148,
302/149 of IPC. They be released forthwith if their
detention is not required in any other case.
43. Accordingly, Criminal Appeals No. 515/2014 and 199/2016
stand allowed and Criminal Appeal No. 1103/2013 stands
allowed so far as it relates to Trilochan (A-2) and Murlidhar
(A-5) whereas it stands dismissed so far as it relates to
Yudhistthir (A-1) and Sainath (A-3).
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Harneet
