Ramdayal & Ors. vs The State Of M.P.
2021 Latest Caselaw 7013 MP

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR



CRIMINAL APPEAL NO.                                 1366/1998
APPELLANTS                     RAM DAYAL
                               AND
                               OTHERS

                                              VS.

                               STATE OF M.P.
Bench Constituted              Single Bench
Judgment delivered By          HON'BLE SHRI JUSTICE VISHAL DHAGAT
Whether       approved   for
reporting
Name of counsel for parties For appellants: Shri Surendra Singh, Senior Counsel with
                            Shri Shivam Singh, Advocate

                               For Respondent : Shri V. S. Choudhary, Panel Lawyer

Law laid down Significant paragraph number

( J U D G M E N T ) 29/10/2021

Appellants have filed this appeal being aggrieved by

judgment dated 09/05/1998 passed by learned Second

Additional Sessions Judge, Seoni, in Sessions Trial

No.100/1997, convicting and sentencing the appellants

under sections 148, 323/149 and 325/149 of Indian Penal

Code and sentencing them to undergo R.I for 6 months; R.I

for 6 months; and R.I for 3½ years and fine of Rs.500/- and

in default, to undergo further R.I for 3 months for aforesaid

offences consecutively.

2. As per prosecution case, Town Inspector of Police

Station Kanhiwada received an information on 4.3.1996 at

10.00 P.M that there is law and order situation in Gehrutola

village Jheelpipariya near house of one Sabir Khan

Musalman. Said house has been surrounded by 100-150

people and they may burn the said house. On said

information Town Inspector alongwith his team proceeded on

spot. On reaching the spot it was found that 100-125

persons gathered in front of house of Sabir Khan Musalman.

On being asked why they have gathered there, public got

enraged and said that police has come to help Muslims and

exhorted to assault them. Thereafter revolver of R. K.

Bundela, T.I was snatched by one person and his team was

abused and assaulted.

In said assault, number of police persons received

injuries. Police jeep was also damaged by the crowd. Police

personnel ran away from spot to save their lives.

Dehati Nalishi was lodged by R. K. Bundela, T.I. (Exhibit

P-24) at Reserve Centre, Seoni at Crime No.0/1996.

Thereafter F.I.R was lodged on basis of said Dehati Nalishi at

Crime No.23/1996. R. K. Bundela, Mishrilal and Mahendra

suffered serious injuries.

During investigation police seized lathi from Kishorilal

(Exhibit P-6), Ramdayal (Exhibit P-25), Persu (Exhibit P-26),

Narsu (Exhibit P-27), Naresh (Exhibit P-28) and Sitaram

(Exhibit P-29) and revolver was seized on 29.8.1996 near

temple (Exhibit P-30). Spot map was prepared and after

recording the statements, charge-sheet was filed.

3. Before the trial court as many as 17 witnesses were

examined to prove the prosecution case. Injuries were

found on police personnels and Dr. K. K. Sevate (PW-12)

proved the same. Fracture was found on left ulna and

metacarpal bone of R. K. Bundela. Other constables had

also received serious injuries. Injured witnesses namely;

Mahendra Mishra (PW-2), Mishrilal (PW-3), Bheemsingh (PW-

4), Jagdish (PW-5), Mangal Singh (PW-7) and R. K. Bundela

(PW-15) did not identify the appellants in court.

Mahendra Mishra (PW-2) has stated that Ramdayal,

Narsu, Parsu and Sitaram Chandan Master had assaulted

him but he did not identify said accused persons in Court

and stated that one person in the hospital has informed him

about their names. Evidence of Mahendra Mishra (PW-2) is

hear-say. Rest of the injured eye-witnesses had stated that

it was dark in the night and there were 100-125 people who

started assaulting them but due to darkness they were not

able to identify the persons who assaulted them.

Only R. K. Bundela (PW-15) who was Investigating

Officer, had stated that Chandan Master, Sarpanch of

Jheelpipariya, Ramdayal, Dhoop Singh, Amar Singh, Jhalariya

and Champae were present on the spot. Chandan Master

and one other person has exhorted to assault. On

exhortation, all persons started assaulting the police team.

In cross-examination he had stated that Chandan and

Sarpanch of Jheelpipariya had assaulted him. Ramdayal and

Amar Singh also assaulted him on his left hand. Thereafter

other persons assaulted him. It was stated by R. K. Bundela

(PW-15) that Sarpanch of Jheelpipariya is not present in

court. He has categorically stated that he cannot tell the

name of accused persons who are present in court as

incident is two years old.

4. Learned Trial Judge, appreciating the aforesaid

evidence available on record, held that R.K. Bundela (PW-15)

had stated that appellants were present on spot and he also

named some of the persons who assaulted him. Version of

R.K. Bundela (PW-15) was corroborated by evidence of

seizure of lathi from the accused persons. Doctor has

corroborated injuries on R.K. Bundela (PW-15). Name of

appellants were mentioned in Dehati Nalishi (Exhibit P-24)

and on basis of Dehati Nalishi, F.I.R (Exhibit P-36) was

registered. On basis of aforesaid findings, trial court

convicted appellants under sections 148, 323/149 and

325/149 of Indian Penal Code and sentenced them as

aforesaid.

5. Learned Senior Counsel appearing for the appellants

submitted that none of the injured witnesses has identified

the appellants in Court. Lathi is a common tool which is

available in house of every villager, therefore, same cannot

be taken as corroborative evidence. R.K. Bundela (PW-15)

has stated about presence of appellants but their presence

itself is not sufficient to convict the appellants.

6. Learned Senior Counsel for appellants placed reliance

on judgment reported in Muthu Naicker and others etc.

vs. State of Tamil Nadu, AIR 1978 SC 1647, and

submitted that whenever in uneventful rural society

something unusual occurs, moreso where the local

community is faction ridden and a fight occurs amongst

factions, a good number of people appear on the scene not

with a view to participate in the occurrence but as curious

spectators. In such an event mere presence in the unlawful

assembly should not be treated as leading to the conclusion

that the person concerned was present in the unlawful

assembly as a member of the unlawful assembly. Vicarious

liability would attach to every member of the unlawful

assembly if that member of the unlawful assembly either

participates in the commission of the offence by overt-act or

knows that the offence which is committed was likely to be

committed by any member of the unlawful assembly in

prosecution of the common object of unlawful assembly.

7. Reliance has also been placed by learned Senior

Counsel for appellants on judgment reported in Amrika Bai

vs. State of Chhatisgarh, AIR 2019 SC 1831. Placing

reliance on para-14 of the judgment, learned Senior Counsel

argued and submitted that involvement of appellant as a

member of the unlawful assembly has itself been put to

doubt, the question of accused having common object for

assault. Appellants were not part of unlawful assembly,

therefore, it cannot be said that appellants had common

object to commit offences under sections 148, 323/149 and

325/149 of Indian Penal Code.

8. Reliance has also been placed in case of Masalti vs.

State of U.P. and others, AIR 1965 SC 202, wherein it

was held that members of passive spectators who were

member of assembly as a matter of idle curiosity without

intending to entertain the common object of assembly will

not form a part of unlawful assembly. Members of assembly

can only be held liable under section 149 IPC if members of

that assembly knew to be likely to be committed in

prosecution of that object.

9. Reliance had also been placed in judgment reported in

Kamaksha Rai and others vs. State of U.P., AIR 2000

SC 53, to drive the argument further that appellants were

not part of unlawful assembly and they cannot be held guilty

with aid of Section 149 IPC.

10. Learned Panel Lawyer appearing for the State

submitted that R.K. Bundela (PW-15) has taken the name of

appellants to be present on spot. He also named some

persons who had assaulted him. His evidence is further

corroborated by Dehati Nalishi (Exhibit P-24), seizure of lathi

from accused persons and injuries were also found on the

body of person by the doctor. In such circumstances trial

Judge has rightly convicted the appellants under sections

148, 323/149 and 325/149 of Indian Penal Code and

sentenced them as aforesaid.

11. Heard learned counsel for the parties.

12. After considering the evidence available on record

particularly material witnesses in this case R.K. Bundela (PW-

15) it is found that he had named Chandan Master,

Ramdayal, Dhoop Singh, Amar Singh, Jhalariya and Champae

who were present on the spot. Chandan Master is said to

have exhorted and thereafter assault was made on police

team. Chandan Master also assaulted him. Ramdayal and

Amar Singh also assaulted him but despite said statement,

R.K. Bundela (PW-15) failed to identify them in Court. In

para-5 of his cross-examination R.K. Bundela (PW-15) has

stated that he cannot recognize accused persons by their

names in Court. He even failed to recognize Ramdayal,

Amar Singh and Chandan Master who were said to have

assaulted him.

13. Learned trial court committed an error in drawing

presumption that since he was Town Inspector and visiting

the village, therefore, he must be knowing the persons. In

absence of identification of appellants by R.K. Bundela (PW-

15) such presumption was illegally drawn by trial court. It

was also argued by learned Senior Counsel for appellants

that though names have been mentioned in Exhibit P-24 but

thereafter in Court, prosecution has failed to show that the

persons who were named in Dehati Nalishi were infact

present on spot as none of them has been identified.

14. After considering the totality of facts and circumstances

of the case and the judgments cited by learned Senior

Counsel for the appellants, I am of the considered opinion

that prosecution has failed to prove the case against the

appellants beyond reasonable doubt.

15. Resultantly, appeal is allowed. Judgment dated

09/05/1998 passed by learned Second Additional Sessions

Judge, Seoni, in Sessions Trial No.100/1997, convicting and

sentencing the appellants under sections 148, 323/149 and

325/149 of Indian Penal Code, is hereby set aside.

Appellants are acquitted of the charges. The appellants are

on bail. Their bail bonds shall stand discharged.

(VISHAL DHAGAT) JUDGE mms

Digitally signed by MONSI M SIMON Date: 2021.10.30 11:28:20 +05'30'