Raju @ Rajesh vs The State Of Madhya Pradesh
2023 Latest Caselaw 2753 MP

                                     1
            IN THE HIGH COURT OF MADHYA PRADESH
                          AT INDORE
                            CRA No. 5200 of 2019
             (RAJU @ RAJESH AND OTHERS Vs THE STATE OF MADHYA PRADESH)

Dated : 15-02-2023
      Shri Vinay Saraf, learned Senior Advocate with Shri Mohammad

Ibrahim, learned counsel for the appellant no.2 Satyanarayan.
      Shri Kamal Kumar Tiwari, learned Govt. Advocate for the
respondent/State.

Heard on I.A.No.12621/2022, which is first application for suspension

of sentence and grant of bail filed under section 389 of the Cr.P.C. on behalf of appellant-Satyanarayan.

The trial Court has convicted the appellant and sentenced by the Additional Sessions Judge, Badnagar, District Ujjain vide its judgment dated 25.05.2019 passed in S.T. No.485/2016 as under:-

    Conviction under                                         Imprisonment in lieu
                         Imprisonment        Fine Amount
        section                                                     of fine

       148 of IPC         2 years R.I.        Rs.2,000/-         2 months R.I.

     302/149 of IPC    Life Imprisonment      Rs.5,000/-          1 year R.I.

       307 of IPC         10 years R.I.        Rs.4000/-         6 months R.I.

As per prosecution case, Munnalal and complainant Babulal are co- owners and possession holder of the agriculture land. On 30.06.2016, Munnalal had called the Patwari and Chowkidar for demarcation of land. Munnalal arrived at the spot with his sons Ramnarayan, Shantilal, Satyanarayan, Kanha and Raju. Vasudev, Shantilal, Bhagirath, Mithun was also present at the place of incident. A verbal altercation took place between the parties. Deceased Shantilal protested against Munnalal and his sons thereafter, appellant and co-accused

persons had attacked on the deceased Shantilal and when Babulal came to intervene, appellant-Satyanarayan inflicted knife injury on Babulal-P.W.-3 and all the accused persons assaulted deceased Shantilal by means of knife, kicks and fists. Due to numerous injuries the deceased died.

Learned counsel for the appellant submits that initially report of the incident was lodged against seven accused persons. During investigation, police had found that accused persons Munnalal Yadav and Shantilal were not present at the place of incident. One unknown person has not been identified during the investigation therefore, chargesheet has been filed against the appellants. Hence, appellants who were less than 5 persons cannot be convicted with the aid of

Section 149 of the IPC. The incident had occurred due to sudden quarrel between the parties. Hence, act of the appellants comes under Exception IV of Section 300 of the IPC. Babulal and Shantilal have criminal past and a murder case had been pending against them. There are material contradictions and omissions in the statement of eye witnesses therefore, statement of the witnesses is not reliable. Learned counsel for the appellant has placed reliance on the case law of [email protected] Vs. State of M.P. passed in Criminal Appeal No.1052/2009 Judgement dated 06.05.2022 and Ranvir Singh etc. vs. State of M.P. reported in 2023 SCC Online SC 94 . The appellant is in custody since 01.07.2016. Final hearing of this appeal is not possible in near future therefore, it is prayed that remaining sentence may be suspended and the appellant may be released on bail.

Per contra learned Govt. Advocate for the respondent/State has Objected the prayer of the appellant and submits that the case depends upon the statement of eye witnesses. Statement of eye witnesses Vasudev, P.W.-1, Babulal, P.W.-3, Iqbal, P.W.4 and Raju, P.W.-5 is supported by medical

evidences therefore, application for suspension of jail sentence of the appellants deserves to be rejected.

We have heard learned counsel for both the parties and perused the record.

The Apex Court in case of Ranvir Singh etc (Supra) in paragraph-36 has observed as under:-

Section 149 of Penal Code,1860

36. The witnesses clearly speak about the presence of a large group of persons belonging to the side of the accused. In fact, the evidence is to the effect that they also participated in the occurrence. In a case involving the applicability of Section 149 IPC, a little more scrutiny is required on the part of the Court as there may be a tendency to implicate persons along with the actual accused who committed the offence. The Courts will have to be very circumspect while sifting through the evidence in such cases. In the case on hand, we find that it would be unsafe to implicate the accused persons under Section 149 IPC which obviously deals with an element of vicarious liability, as held by this Court in Arvind Kumar (supra), Scope of Section 149

50. Section 149 of the Code deals with a common object. To attract this provision there must be evidence of an assembly with the common object becoming an unlawful one. The concept of constructive or vicarious liability is brought into this provision by making the offense committed by one member of the unlawful assembly to the others having the common object. It is the sharing of the common object which attracts the offense committed by one to the other members. Therefore, the mere presence in an assembly per se would not constitute an offense, it does become one when the assembly is unlawful.

It is the common object to commit an offense which results in the said offense being committed. Therefore, though it is committed by one, a deeming fiction is created by making it applicable to the others as well due to the commonality in their objective to commit an offense. Thus, it is for the prosecution to prove the factors such as the existence of the assembly with a requisite number, the common object for everyone, the object being unlawful, and an offense committed

by one such member. Courts will have to be more circumspect and cautious while dealing with a case of accused charged under Section 149 IPC, as it involves a deeming fiction. Therefore, a higher degree of onus is required to be put on the prosecution to prove that a person charged with an offense is liable to be punished for the offence committed by the others under section 149 IPC. The principle governing the aforesaid aspect is taken note of by this court in Ranjit Singh v. State of Punjab, (2013) 16 SCC 752:

35. Baladin v. State of U.P. [AIR 1956 SC 181 : 1956 Cri LJ 345] was one of the early cases in which this Court dealt with Section 149 IPC. This Court held that mere presence in an assembly does not make a person a member of the unlawful assembly, unless it is shown that he had done or omitted to do something which would show that he was a member of the unlawful assembly or unless the case fell under Section 142 IPC. Resultantly, if all the members of a family and other residents of the village assembled at the place of occurrence, all such persons could not be condemned ipso facto as members of the unlawful assembly. The prosecution in all such cases shall have to lead evidence to show that a particular accused had done some overt act to establish that he was a member of the unlawful assembly. This would require the case of each individual to be examined so that mere spectators who had just joined the assembly and who were unaware of its motive may not be branded as members of the unlawful assembly.

36. The observations made in Baladin case [AIR 1956 SC 181 : 1956 Cri LJ 345] were considered in Masalti v. State of U.P. [AIR 1965 SC 202 :(1965) 1 Cri LJ 226] where this Court explained that cases in which persons who are merely passive witnesses and had joined the assembly out of curiosity, without sharing the common object of the assembly stood on a different footing; otherwise it was not necessary to prove that the person had committed some illegal act or was guilty of some omission in pursuance of the common object of the assembly before he could be fastened with the consequences of an act committed by any other member of the assembly with the help of Section 149 IPC. The following passage is apposite in this regard : (Masalti case [AIR 1965 SC 202 : (1965) 1 Cri LJ 226], AIR p. 211, para 17) " 17. ... The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While

determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in Baladin [AIR 1956 SC 181 : 1956 Cri LJ 345] assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes it clear 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; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. "

(emphasis supplied)

37. Again in Bajwa v. State of U.P. [(1973) 1 SCC 714] this Court held that while in a faction-ridden society there is always a tendency to implicate even the innocent with the guilty, the only safeguard against the risk of condemning the innocent with the guilty lies in insisting upon acceptable evidence which in some measure implicates the accused and satisfies the conscience of the court.

39. That in a faction-ridden village community, there is a tendency to implicate innocents also along with the guilty, especially when a large number of assailants are involved in the commission of an offence is a matter of common knowledge. Evidence in such cases is bound to be partisan, but while the courts cannot take an easy route to rejecting out of hand such evidence only on that ground, what ought to be done is to approach the depositions carefully and scrutinise the evidence more closely to avoid any miscarriage of justice. "

The Coordinate Bench of this Court in case of [email protected] (Supra) in paragraph 12 has observed as under:-

[12] Depu and Jogu assaulted the Rupesh by means of the

knife on his thy which is not a vital part of the body, the treating doctor did not opine that the injuries could have been fatal. Had there been the intention to kill Rupesh they would have stabbed his vital part of the body, therefore, they have wrongly been convicted under Section 302 and 307 with the aid of section 34 of I.P.C. Rupesh was examined by Dr Anil Sinha (PW-8) who found incised wound 1 1/2 / 1/2 on his thy and did not give opinion that these injuries are sufficient to cause death, therefore, Jogu and Depu are liable to be convicted under section 324 of I.P.C. for causing injury to Rupesh, hence, their conviction accordingly liable to modify. But they all have been convicted with the aid of 34 I.P.C. So far as section 34 of I.P.C. is concerned, there is no material that appellants shared a common intention to attack Manish (the deceased) and Rupesh (the injured). Learned Additional Session Judge has convicted them with the aid of section 34 of I.P.C. because after the acquittal of three accused the number of accused has been reduced to 4. There is no evidence led by the prosecution that all 4 appellants shared the common intention to commit this crime, therefore, all the appellants have wrongly been convicted under section 302/34 and 307/34 of I.P.C. We find support from the judgment passed by the Apex court which is reproduced below with relevant paras:-

Mala Singh v. State of Haryana, reported in (2019) 2 SCC (Cri) 452

43. This principle of law was then reiterated after referring to law laid down in Willie (William) Slaney [Willie (William) Slaney v. State of M.P. AIR 1956 SC 116 : 1956 Cri LJ 291] in Chittarmal v. State of Rajasthan [Chittarmal v. State of Rajasthan, (2003) 2 SCC 266 : 2003 SCC (Cri) 514] in the following words: (Chittarmal case [Chittarmal v. State of Rajasthan, (2003) 2 SCC 266 : 2003 SCC (Cri) 514] , SCC p. 273, para 14) " 14. It is well settled by a catena of decisions that Section 34 as well as Section 149 deal with liability for constructive criminality i.e.vicarious liability of a person for acts of others. Both the sections deal with combinations of persons who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a pre- arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior

meeting of minds or preconcert. Though there is substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both Section 34 and Section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does involve a common intention then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non-applicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all. (See Barendra Kumar Ghosh v. King Emperor [Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49 : (1924-25) 52 IA 40 : AIR 1925 PC 1] ; Mannam Venkatadari v. State of A.P. [Mannam Venkatadari v. State of A.P., (1971) 3 SCC 254 : 1971 SCC (Cri) 479] ; Nethala Pothuraju v. State of A.P. [Nethala Pothuraju v. State of A.P., (1992) 1 SCC 49 : 1992 SCC (Cri) 20] and Ram Tahal v. State of U.P. [Ram Tahal v. State of U.P., (1972) 1 SCC 136 : 1972 SCC (Cri) 80] ) "

44. In the light of the aforementioned principle of law stated by this Court which is now fairly well settled, we have to now examine the evidence of this case with a view to find out as to whether the High Court was justified in convicting Appellants 2 and 3 herein for commission of offence of murder with the aid of Section 34 IPC which was initially not the charge framed against the appellants herein by the Sessions Judge.

45. Having perused the entire evidence and legal position governing the issues arising in the case, we have formed an opinion that the appeal filed by Appellants 2 and 3 deserves to be allowed and the conviction of Appellants 2 and 3 deserves to be altered to Section 324 IPC. This we say for the following reasons:

45.1. First, once eight co-accused were acquitted by the High Court under Sections 302/149 IPC by giving them the benefit of doubt and their acquittal attained finality, the charge under Section 149 IPC collapsed against the three appellants also because there could be no unlawful assembly consisting of less than five accused persons. In other words, the appellants

(3 in number) could not be then charged with the aid of Section 149 IPC for want of numbers and were, therefore, rightly not proceeded with under Section 149 IPC. 45.2. Second, keeping in view the law laid down by this Court in the cases referred to supra, the High Court though had the jurisdiction to alter the charge from Section 149 IPC to Section 34 IPC qua the three appellants, yet, in our view, in the absence of any evidence of common intention qua the three appellants so as to bring their case within the net of Section 34 IPC, their conviction under Sections 302/34 IPC is not legally sustainable.

46. In other words, in our view, the prosecution failed to adduce any evidence against the three appellants to prove their common intention to murder Mahendro Bai. Even the High Court while altering the charge from Section 149 IPC to Section 34 IPC did not refer to any evidence nor gave any reasons as to on what basis these three appellants could still be proceeded with under Section 34 IPC notwithstanding the acquittal of remaining eight co-accused.

47. It was the case of the prosecution since inception that all the eleven accused were part of unlawful assembly and it is this case, the prosecution tried to prove and to some extent successfully before the Sessions Judge which resulted in the conviction of all the eleven accused also but it did not sustain in the High Court.

48. In our view, the evidence led by the prosecution in support of charge under Section 149 IPC was not sufficient to prove the charge of common intention of three appellants under Section 34 IPC though, as mentioned above, on principle of law, the High Court in its appellate jurisdiction could alter the charge from Section 149 to Section 34 IPC.

49. Section 34 IPC does not, by itself, create any offence whereas it has been held that Section 149 IPC does. As mentioned above, the prosecution pressed their case since inception and accordingly adduced evidence against all the accused alleging that all were the members of unlawful assembly under Section 149 IPC and not beyond it. The Sessions Court, therefore, rightly framed a charge to that effect. If the prosecution was successful in proving this charge in the Sessions Court against all the accused persons, the prosecution failed in so proving in the High Court.

50. The prosecution, in our view, never came with a case that all the 11 accused persons shared a common intention under Section 34 IPC to eliminate Mahendro Bai and nor came with

a case even at the appellate stage that only 3 appellants had shared common intention independent of 8 co-accused to eliminate Mahendro Bai.

51. When the prosecution did not set up such case at any stage of the proceedings against the appellants nor adduced any evidence against the appellants that they (three) prior to date of the incident had at any point of time shared the " common intention " and in furtherance of sharing such common intention came on the spot to eliminate Mahendro Bai and lastly, the High Court having failed to give any reasons in support of altered conviction except saying in one line that conviction is upheld under Sections 302/34 IPC in place of Sections 302/149 IPC, the invoking of Section 34 IPC at the appellate stage by the High Court, in our view, cannot be upheld.

We have considered the observations given in the aforesaid case laws. In the instant case, considering the statement of eye witnesses which is supported by medical evidences, therefore, we are not inclined to suspend the jail sentence and grant bail to the appellant. Accordingly, I.A.No.12621/2022 is rejected.

List the matter for final hearing in due course.

               (S. A. DHARMADHIKARI)                        (PRAKASH CHANDRA GUPTA)
                        JUDGE                                        JUDGE

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Date: 2023.02.16 17:26:59
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