Madhya Pradesh High Court
Ramavtar vs State Of M.P. on 6 January, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
CRIMINAL APPEAL No.161 of 2001
BETWEEN:-
1. SHRIGOVIND, S/O RAM GOPAL, AGED 35
YEARS, RESIDENT OF VILLAGE SIKODA,
P.S. CIVIL LINES, MORENA.
2. BRAJMOHAN, S/O RAM GOPAL SHARMA,
AGED 33 YEARS, RESIDENT OF
NAINAGARH ROAD, CITY KOTWALI,
MORENA.
.....APPELLANTS
(BY SHRI A.P.S. CHOUHAN - ADVOCATE )
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION CIVIL LINES, MORENA
(MADHYA PRADESH)
.....RESPONDENT
(BY DR. ANJALI GYANANI - PUBLIC PROSECUTOR)
AND
CRIMINAL APPEAL No.201 of 2001
2
BETWEEN:-
1. RAMAWTAR SON OF BIRBAL, AGED 55
YEARS,
2. LOKENDRA SON OF BIRBAL, AGED 35
YEARS, BOTH RESIDENT OF VILLAGE
SIKRODA P.S. CIVIL LINES, MORENA
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI R.K. SHARMA - SENIOR ADVOCATE WITH SHRI
M.K. CHOUDHARY SHRI V.K. AGRAWAL & MS. BHAVYA
SHARMA )
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION CIVIL LINES, MORENA
(MADHYA PRADESH)
.....RESPONDENT
(BY DR. ANJALI GYANANI- PUBLIC PROSECUTOR )
AND
CRIMINAL APPEAL No.261 of 2001
BETWEEN:-
RAGHUNATH, S/O BIRBAL, AGED 32
YEARS, OCCUPATION: AGRICULTURIST,
R/O CIVIL LINES, MORENA (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI SUSHIL GOSWAMI - ADVOCATE )
3
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION CIVIL LINES, MORENA
(MADHYA PRADESH)
.....RESPONDENT
(BY DR. ANJALI GYANANI - PUBLIC PROSECUTOR )
--------------------------------------------------------------------------------
Reserved on 15.11.2022
Pronounced on 06.01.2023
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These appeals coming on for hearing this day, Hon'ble
Shri Justice Milind Ramesh Phadke, passed the following:
JUDGMENT
1. The judgment passed in this appeal shall also govern the
disposal of connected Criminal Appeal No.201/2001 (Ramawtar
& another Vs. State of Madhya Pradesh) and Cr.A. no. 261/2001
(Raghunath Vs. State of Madhya Pradesh) since the connected
appeal has arisen from the common judgment passed by the
learned trial Court.
2. All the three appeals are directed against the judgment of
conviction and order of sentence dated 17/03/2001 passed in
Sessions Trial No.67/1995 passed by 2 nd, Additional Sessions
Judge, District Morena, whereby Appellant Shrigovind in the
present appeal was convicted u/s 148 and 302 I.P.C. and
Appellant Brijmohan, Appellant Ramawtar and Lokendra in
Criminal Appeal no.201/2001 and Appellant Raghunath in
Criminal Appeal no.261/2001 had been held guilty u/s 148,
302/149 I.P.C., for a period of 1 year and for life respectively,
with a fine of Rs.2,000/- and Rs.10,000/- each respectively. In
default of payment of fine amount the Appellants were directed
to further undergo a further period of 6 months and 1 year each
respectivley. Other accused person namely Ramgopal was
acquitted from the charge u/s 30 of the Arms Act, since the
charges were held not to be proved against him.
3. The case of the prosecution in nutshell is that on
03/09/1994 complainant Rambhajan at about 7.30 brought his
injured brother Banwari to the Police Station, Civil Lines on a
cot, in a tractor trolly, in a state of unconsciousness. PW/1
Rambhajan then lodged a complaint that he along with his
brother when were sitting in front of his house, at that very
moment Lokendra, Raghunath, Ramawtar, Brajmohan and
Shrigovind came over there and started abusing them on some
trivial issue of leaving the cattles for grazing in their fields.
Lokendra and Shrigovind were armed with Mouzer gun,
Raghunath with bhala, Ramawtar with Farsa and Brajmohan
with country made pistol. Raghunath abused them and shouted
at them stating that why they had left cattle's in their fields for
grazing? Rambhajan (PW/1) denied the allegation. On the said
trivial issue Ramawtar ran towards them but was caught by
PW/1 Rabhajan. At the very moment Raghunath inflicted a
bhala blow to Banwari, which landed on his chest and he fell
down. Rest of the accused persons thereafter went away from
the spot firing in air. Ramlakhan Brahmin and Rambabu
Brahmin saw the incident. Ramlakhan went and brought the
tractor of Sarpanch and Banwari was carried to the Police
Station and the matter was reported to the Police.
4. On the basis of the complaint F.I.R. was registered by the
Police Station Civil Lines, Morena vide Crime no.280/94 Ex.P/4
u/s 307, 147, 148 I.P.C. P.S. Civil Lines prepared a mulahiza
form Ex. P-12A and send injured Banwari to hospital for
treatment Dr. Rakesh Sharma PW/6 on 03/09/1994 at 7.30 in his
medical report Ex.P-12 declared Banwari as dead. During the
investigation conducted by the Investigating Officer Jainarayn
Singh Parihar (PW/8) in the presence of PW/1 Rambhajan
prepared the spot map Ex.P-5 on 04/09/1994 at 11.00 a.m. After
issuance of Safina form Ex. P/6 dated 04/09/1994 dead body
panchnama Ex.P-7 was prepared. From the spot normal soil and
blood soaked soil was gathered in a kulhad (mud pot) and
seizure memo Ex. P-8 was prepared. For post mortem of the
dead body of Banwari an application Ex. P/13 was prepared and
the dead body was sent for post mortem. Dr. K.K.Shah
conducted the autopsy and submitted the report Ex.P-14.
5. On 15/09/1994 the investigating officer arrested accused
Raghunath, Lokendra and Ramawtar vide arrest memo Ex. P-
15, accused Shrigovind and Brijmohan were arrested on
23/10/1994 vide Ex. P/19 and accused Ramgopal was arrested
on 16/11/1994 vide Ex. P-20. From the possession of accused
Ramawtar one stick was recovered on 16/09/1994 vide Ex. P-9,
from accused Raghunath one bhala vide Ex.P-10, from the
custody of Raghunath one 315 bore mouser (rifle) was
recovered vide Ex.P/-16 and from Ramgopal one 315 bore
mouser (rifle) and two live cartridges were recovered.
Statements of accused Raghunath and Ramawtar u/s 27 of the
Evidence Act were recorded vide Ex.'s P-17 & P-18
respectively. Cloths of deceased Banwari vide Ex. P-11 were
seized by PW/5 Head Constable Suresh Sharma, on 04/09/1994.
The investigatng officer PW/8 Jai Narayan Parihar send the
seized article for FSL on 30/11/1994 through Superintendent of
Police, Morena to Regional Legal Science Laboratory, Gwalior
vide letter dated 30/11/1994 vide Ex.P.22. The opinion of the
State Forensic Laboratory, Sagar is marked as Ex.P-1, P-3 and
P-25.
6. After completion of the investigation, the investigating
Officer PW/8 Jai Narayan Parihar submitted a charge sheet u/s
302, 147, 148, 149 I.P.C. and sections 29 & 30 of the Arms Act,
before the concerned Magistrate, whereupon since the matter
was triable by sessions, it was committed to the sessions court.
7. Charges u/s 148, 302 of IPC against accused Raghunath
and charges u/s 148, 302/149 IPC against accused Shrigovind,
Brijmohan, Ramawtar and Lokendra and charge u/s 30 of Arms
Act against Ramgopal were framed, which were read over to the
accused persons, but were denied by them and in their
statements u/s 313 of Cr.P.C. they submitted in defense that the
dead body of Banwari was found in open (Haar) and due to
previous enmity and court cases they had been roped in and they
are innocent. In defense u/s 315 Cr.P.C. statements of accused
persons, DW/1 Ramgopal Sharma, DW/2 Govind Sharma and
DW/3 Gouri Shankar were recorded.
8. To bring home the charge, the prosecution examined in all
eight witnesses and brought on record the relevant documentary
evidences through the aforesaid witnesses. According to the
case of the prosecution, PW/1 Rambhajan and PW/2 Ramlakhan
and PW/3 Jagdish were the eye witnesses to the incident. PW/4
Ramakhtiyar was a witness to the seizure memo, PW/5 Suresh
Kumar Sharma was a Police witness to seizure of clothes of
deceased. PW/6 Dr. Rakesh Sharma who initially examined the
deceased Banwari and declared him dead, PW/7 Dr. K.K. Shah,
who did the autopsy of deceased Banwari and lastly PW/8 Jai
Narayan Singh Parihar, the investigating Officer.
9. The Sessions was put to trial and after detailed scrutiny
the appellants herein were convicted for the aforementioned
offence for the sentence as mentioned above. Accused
Ramgopal, who was charged with offence u/s 30 of the Arms
Act was acquitted from the said charge, as not held proved.
Aggrieved these appeals had been preferred.
ARGUMENTS
10. The only point argued by the counsel for the Appellants in
the present Appeal and Criminal Appeal No.201/2001 was that
these appellants could not have been fastened with the liability
under Section 302 read with Section 149 IPC for the death of
Banwari, which was caused by the accused Raghunath.
According to the learned counsel for the appellants, the
prosecution has not proved that common object of the unlawful
assembly was to cause death of the deceased Banwari, but at
best it can be said that it was proved by the prosecution that
common object of the assembly was to teach Rambhuj (brother
of the deceased) a lesson and in that process was caused to
injury him and, therefore, the instant appeal should be accepted.
11. It was maintained that the act of Raghunath of causing a
solitary injury by means of bhala was his individual act and,
therefore, the other appellants should not have been convicted
for murder of Banwari with the aid of Section 149 IPC. The
learned counsel emphasised that the prosecution has failed to
prove that the appellant knew that death of Banwari was likely
to be caused by any member of the unlawful assembly in
prosecution of the common object because common object of
the unlawful assembly was to teach a lesson to Rambhajan and,
therefore, the conviction of the appellant under Section 302 with
the aid of Section 149 IPC should be set aside.
12. With regard to Appellant Raghunath in Cr.A.No.
261/2001 it was argued that in the heat of the moment people
sometimes do act which aren't premeditated, but are result of
instant anger, which looking to the rural background of the
appellant is not unnatural. Further, the mental background
created by the previous act of the victim may also be taken into
consideration in ascertaining whether the subsequent act caused
grave and sudden provocation for committing the offence and
for this even the law provides that while those who commit acts
in a fit or anger should also be punished, their punishment
should be lesser than that of premeditated offences. The act of
the Appellant thought had caused death of Banwari, is to be seen
in the context of his mental state caused due to the alleged
previous act of the PW/1 Rambhajan and since the bhala blow
given by the Appellant was in a heat of passion of some alleged
previous act done by the complainant, his act do not attract 302
IPC rather it would be covered under the 304 Part I or II IPC
and accordingly the conviction should be modified and
punishment should be reduced.
13. Per Contra the learned counsel for the State contented that
the appellants were armed with guns, farsa, bhala etc, were
members of an unlawful assembly, common object of which
was to cause death of Rambhajan as well as those who were
accompanying him and, therefore, it is not correct to say that the
provisions of Section 149 IPC would not apply to the facts of
the case. According to the learned counsel for the State, the
appellants, who were members of an unlawful assembly, had
come with other three accused persons and were armed deadly
weapons and after fatal injury was caused to Banwari and he
was seriously injured, with others the appellants had left the
place of incident and, therefore, the Trial Court had committed
no error in convicting the appellants under Section 302 with the
aid of Section 149 IPC for causing death of deceased Banwari.
Same is the act of Appellants in Criminal Appeal No.201/2001.
What was maintained was that sufficient evidence was brought
on record by the prosecution to prove that the appellants had
known that death of the deceased Banwari was likely to be
caused by any member of unlawful assembly in prosecution of
the common object and, therefore, well recorded conviction of
the appellant under Section 302 read with Section 149 IPC
should be upheld by this Court.
14. It was also contended that Section 149 IPC creates a
constructive or vicarious liability on the members of the
unlawful assembly for the unlawful acts committed pursuant to
the common object by any other member of that assembly. The
basis of the constructive guilt under Section 149 IPC is mere
membership of the unlawful assembly, with the requisite
common object or knowledge. This Section makes a member of
the unlawful assembly responsible as a member for the acts of
each and all, merely because he is a member of an unlawful
assembly. While overt act and active participation may indicate
common intention of the person perpetrating the crime, the mere
presence in the unlawful assembly may fasten vicariously
criminal liability under Section 149 of IPC.
15. While referring to section 149 I.P.C. it was contended that
there are two essential ingredients of Section 149, viz., (1)
commission of an offence by any member of an unlawful
assembly and (2) such offence must have been committed in
prosecution of the common object of that assembly or must be
such as the members of that assembly knew to be likely to be
committed. Once the court finds that these two ingredients are
fulfilled, every person, who at the time of committing that
offence was a member of the assembly has to be held guilty of
that offence. After such a finding, it would not be open to the
court to see as to who actually did the offensive act nor it would
be open to the Court to require the prosecution to prove which
of the members did which of the offensive acts. Whenever a
court convicts any person of an offence with the aid of Section
149 IPC, 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 that in pursuance
of such common object the offence was committed. There is no
manner of doubt that before recording the conviction under
Section 149 IPC, the essential ingredients of Section 149 IPC
must be established and if the act of the Appellants are observed
on the touch stone of the said principle it would as clear as a day
light that all of them had gathered in front of the house of PW/1
Rambhajan with a common object to kill him, thus, their
conviction u/s 302 I.P.C. with the aid of section 149 I.P.C. is
justified.
16. So far as act of Accused/Appellant in Cr.A no. 261/2001
is concerned, there is clear evidence of the eyewitness PW/1
Rambhajan that he was armed with bhala and when he hurled
abuses and exhorted that Ramawtar ran towards the
complainant, but he was caught by the complainant, but in the
mean while the Appellant gave a bhala blow to deceased
Banwari, which hit him on his right side of the chest and which
resulted in injury to vital organ i.e. heart/lungs, which caused
haemorrhage and shock leading to his death. Thus, since a man
had lost his life no leniency is required to be shown to the
Appellants and their Appeals should be dismissed.
DISCUSSION
17. Firstly, let as see whether the death of Banwari was
suicidal or homicidal.
18. PW/1 Rambhajan in his court statement had specifically
deposed that Raghunath had given a bhala blow on the chest of
his brother Banwari, due to which he died. Dr. Rakesh Sharma
(PW/6) who had first examined the deceased had stated that
when he saw the deceased he was already dead. PW/7 Dr. K.K.
Shah, who did the autopsy Ex-P-14 found a clean cut on the
right side of the chest of ½ inch deep and 1 inch width and
cavity deep. The right lung was found collapsed with a wound
of 1 ½ inch deep and ½ inch width.
19. From the statements of PW/1 Rambhajan, PW/6 Dr.
Rakesh Sharma and PW/7 Dr. K.K. Shah and the post mortem
report Ex. P/14, it is amply clear that the death of Banwari was
caused by means of hard, sharp and pointed object which
resulted in excessive bleeding and later on death, which leads to
only one conclusion that the death of Banwari was homicidal.
20. There is no serious dispute about the occurrence of the
incident as all the eye witnesses especially PW/1 Rambhajan
had deposed about the Appellant causing injury by means of
bhala. The question which arises to be answered is that as to
whether the case of Appellant Raghunath in Cr.A.No. 261/2001
falls under section 302 I.P.C. or under Part I or II of section 304
I.P.C. as has been argued.
21. But before adverting to the above proposition it would be
appropriate to throw light on the interpretation of relevant
provisions of Sections 299 and 300 of Indian Penal Code, in the
light of Judgments of Supreme Court.
22. In the case of Arun Nivalaji More vs. State of
Maharashtra (Case No.Appeal (Cri.) 1078-1079 of 2005),
Supreme Court has been observed as under :-
"11. First it has to be seen whether the
offence falls within the ambit of Section
299 IPC. If the offence falls under Section
299 IPC, a further enquiry has to be made
whether it falls in any of the clauses,
namely, clauses 'Firstly' to 'Fourthly' of
Section 300 IPC. If the offence falls in any
one of these clauses, it will be murder as
defined in Section 300 IPC, which will be
punishable under Section 302 IPC. The
offence may fall in any one of the four
clauses of Section 300 IPC yet if it is
covered by any one of the five exceptions
mentioned therein, the culpable homicide
committed by the offender would not be
murder and the offender would not be
liable for conviction under Section 302
IPC. A plain reading of Section 299 IPC
will show that it contains three clauses, in
two clauses it is the intention of the
offender which is relevant and is the
dominant factor and in the third clause the
knowledge of the offender which is
relevant and is the dominant factor.
Analyzing Section 299 as aforesaid, it
becomes clear that a person commits
culpable homicide if the act by which the
death is caused is done (i) with the
intention of causing death; or (ii) with the
intention of causing such bodily injury as
is likely to cause death; or (iii) with the
knowledge that the act is likely to cause
death." If the offence is such which is
covered by any one of the clauses
enumerated above, but does not fall within
the ambit of clauses Firstly to Fourthly of
Section 300 IPC, it will not be murder and
the offender would not be liable to be
convicted under Section 302 IPC. In such
a case if the offence is such which is
covered by clauses (i) or (ii) mentioned
above, the offender would be liable to be
convicted under Section 304 Part I IPC as
it uses the expression "if the act by which
the death is caused is done with the
intention of causing death, or of causing
such bodily injury as is likely to cause
death" where intention is the dominant
factor. However, if the offence is such
which is covered by clause (iii) mentioned
above, the offender would be liable to be
convicted under Section 304 Part II IPC
because of the use of the expression "if the
act is done with the knowledge that it is
likely to cause death, but without any
intention to cause death, or to cause such
bodily injury as is likely to cause death"
where knowledge is the dominant factor.
12. What is required to be considered here
is whether the offence committed by the
appellant falls within any of the clauses of
Section 300 IPC.
13. Having regard to the facts of the case
it can legitimately be urged that clauses
Firstly and Fourthly of Section 300 IPC
were not attracted. The expression "the
offender knows to be likely to cause
death" occurring in clause Secondly of
Section 300 IPC lays emphasis on
knowledge. The dictionary meaning of the
word 'knowledge' is the fact or condition
of being cognizant, conscious or aware of
something; to be assured or being
acquainted with. In the context of criminal
law the meaning of the word in Black's
Law Dictionary is as under: -
"An awareness or understanding of a fact
or circumstances; a state of mind in which
a person has no substantial doubt about the
existence of a fact. It is necessary ... to
distinguish between producing a result
intentionally and producing it knowingly.
Intention and knowledge commonly go
together, for he who intends a result
usually knows that it will follow, and he
who knows the consequences of his act
usually intends them. But there may be
intention without knowledge, the
consequence being desired but not
foreknown as certain or even probable.
Conversely, there may be knowledge
without intention, the consequence being
foreknown as the inevitable concomitant
of that which is desired, but being itself an
object of repugnance rather than desire,
and therefore not intended." In
Blackstone's Criminal Practice the import
of the word 'knowledge' has been
described as under: -
'Knowledge' can be seen in many ways as
playing the same role in relation to
circumstances as intention plays in
relation to consequences. One knows
something if one is absolutely sure that it
is so although, unlike intention, it is of no
relevance whether one wants or desires the
thing to be so. Since it is difficult ever to
be absolutely certain of anything, it has to
be accepted that a person who feels
'virtually certain' about something can
equally be regarded as knowing it."
23. In the above context lets now see to Section 299 of Indian
Penal Code which runs as under:-
"299. Culpable homicide -- Whoever
causes death by doing an act with the
intention of causing death, or with the
intention of causing such bodily injury as
is likely to cause death, or with the
knowledge that he is likely by such act to
cause death, commits the offence of
culpable homicide.''
24. Thus section 299 of IPC lays down Culpable homicide as
the first kind of unlawful homicide. It is the causing of death by
doing :
(i) an act with the intention of causing death;
(ii) an act with the intention of causing such bodily
injury as is likely to cause death; or
(iii) an act with the knowledge that it is was likely to
cause death.
Without one of these elements, an act, though it may be by its
nature criminal and may occasion death, will not amount to the
offence of culpable homicide. 'Intent and knowledge' as the
ingredients of Section 299 postulate, the existence of a positive
mental attitude and the mental condition is the special mens rea
necessary for the offence. The knowledge of third condition
contemplates knowledge of the likelihood of the death of the
person. Culpable homicide is of two kinds: one, culpable
homicide amounting to murder, and another, culpable homicide
not amounting to murder. In the scheme of the Indian Penal
Code, culpable homicide is genus and murder is species. All
murders are culpable homicide, but not vice versa. Generally
speaking, culpable homicide sans the special characteristics of
murder is culpable homicide not amounting to murder. In this
section, both the expressions 'intent' and 'knowledge' postulate
the existence of a positive mental attitude which is of different
degrees.
25. Section 300 of Indian Penal Code is also relevant in the
present context, which runs as under :-
"300. Murder.-- Except in the cases
hereinafter excepted, culpable homicide is
murder, if the act by which the death is
caused is done with the intention of
causing death, or--
Secondly.-- If it is done with the intention
of causing such bodily injury as the
offender knows to be likely to cause the
death of the person to whom the harm is
caused, or--
Thirdly.-- If it is done with the intention
of causing bodily injury to any person and
the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature
to cause death, or--
Fourthly.-- If the person committing the
act knows that it is so imminently
dangerous that it must, in all probability,
cause death or such bodily injury as is
likely to cause death, and commits such act
without any excuse for incurring the risk
of causing death or such injury as
aforesaid."
26. Indian Penal Code recognizes two kinds of homicide:
(1) Culpable homicide, dealt with between
Sections 299 and 304 of IPC
(2) Not-culpable homicide, dealt with by
Section 304-A of IPC.
27. Likewise, there are two kinds of culpable homicide;
(i) Culpable homicide amounting to murder
(Section 300 read with Section 302 of IPC),
and
(ii) Culpable homicide not amounting to
murder (Section 304 of IPC).
28. A bare perusal of the said Section makes it clear like a day
light that the first and the second clauses of the section 299
I.P.C. refers to intention apart from the knowledge and the third
clause refers to knowledge alone and not the intention. Both the
expression "intent" and "knowledge" postulate the existence of
a positive mental attitude which is of different degrees. The
mental element in culpable homicide i.e., mental attitude
towards the consequences of conduct is one of intention and
knowledge. If that is caused in any of the aforesaid three
circumstances, the offence of culpable homicide is said to have
been committed.
29. Apart from that there are three species of mens rea in
culpable homicide (1) An intention to cause death; (2) An
intention to cause a dangerous injury; (3) Knowledge that death
is likely to happen. The fact that the death of a human being is
caused is not enough unless one of the mental state mentioned
in ingredient of the Section 299 I.P.C. is present. An act is said
to cause death results either from the act directly or results from
some consequences necessarily or naturally flowing from such
act and reasonably contemplated as its result. Nature of offence
does not only depend upon the location of injury caused on the
person of the deceased by the accused, the intention is to be
gathered from all facts and circumstances of the case, like if
injury is on the vital part, i.e., chest or head etc. and as per the
medical evidence that injury had proved fatal. It is relevant to
mention here that intention is question of fact which is to be
gathered from the act of the party.
30. Along with the aforesaid, ingredients of Section 300 IPC
are also required to be fulfilled for commission of offence of
murder and in absence there of it cannot be said that homicidal
death is murder.
31. The considerations that should weigh with courts, in
discerning whether an act is punishable as murder, or culpable
homicide, not amounting to murder, were outlined in Pulicherla
Nagaraju @ Nagaraja Reddy v State of Andhra Pradesh
reported in (2006) 11 SCC 444. This court observed that:
"29. Therefore, the Court should proceed to
decide the pivotal question of intention, with
care and caution, as that will decide whether
the case falls under Section 302 or 304 Part I
or 304 Part II. Many petty or insignificant
matters - plucking of a fruit, straying of cattle,
quarrel of children, utterance of a rude word
or even an objectionable glance, may lead to
altercations and group clashes culminating in
deaths. Usual motives like revenge, greed,
jealousy or suspicion may be totally absent in
such cases. There may be no intention. There
may be no premeditation. In fact, there may
not even be criminality. At the other end of
the spectrum, there may be cases of murder
where the accused attempts to avoid the
penalty for murder by attempting to put forth
a case that there was no intention to cause
death. It is for the courts to ensure that the
cases of murder punishable under Section
302, are not converted into offences
punishable under Section 304 Part I/II, or
cases of culpable homicide not amounting to
murder are treated as murder punishable
under Section 302. The intention to cause
death can be gathered generally from a
combination of a few or several of the
following, among other, circumstances; (i)
nature of the weapon used; (ii) whether the
weapon was carried by the accused or was
picked up from the spot; (iii) whether the
blow is aimed at a vital part of the body;(iv)
the amount of force employed in causing
injury; (v) whether the act was in the course
of sudden quarrel or sudden fight or free for
all fight; (vi) whether the incident occurs by
chance or whether there was any
premeditation; (vii) whether there was any
prior enmity or whether the deceased was a
stranger;(viii) whether there was any grave
and sudden provocation, and if so, the cause
for such provocation; (ix) whether it was in
the heat of passion; (x) whether the person
inflicting the injury has taken undue
advantage or has acted in a cruel and unusual
manner; (xi) whether the accused dealt a
single blow or several blows. The above list
of circumstances is, of course, not exhaustive
and there may be several other special
circumstances with reference to individual
cases which may throw light on the question
of intention."
32. The question is not whether the prisoner intended to
inflict a serious injury or a trivial one but whether he intended to
inflict the injury that is proved to be present. If he can show that
he did not, or if the totality of the circumstances justify such an
inference, then, of course the intent that the section requires is
not proved. But if there is nothing beyond the injury and the fact
that the appellant inflicted it, the only possible inference is that
he intended to inflict it. Whether he knew of its seriousness, or
intended serious consequences, is neither here nor there. The
question so far as the intention is concerned, is not whether he
intended to kill, or to inflict an injury of a particular degree of
seriousness, but whether he intended to inflict the injury in
question, and once the existence of the injury is proved the
intention to cause it will be presumed unless the evidence or the
circumstances warrant an opposite conclusion. But whether the
intention is there or not is one of fact and not one of law.
Whether the wound is serious or otherwise, and if serious, how
serious, is a totally separate and distinct question and has
nothing to do with the question whether the prisoner intended to
inflict the injury in question.
33. Coming to the facts of this case, as observed earlier, there
can be no serious dispute that the prosecution had established
the main elements of its factual allegations. All the essential
elements shows that the appellant Raghunath did not have any
previous quarrel with the deceased rather the dispute was on a
trivial issue of letting loose the cattle's in fields of the accused
persons and as such there was lack of animus. The act resulting
in Banwari's death was not pre-meditated. Though it cannot be
said that there was a quarrel, caused by sudden provocation, if
one considers that the accused persons had gathered to
threatened the victims but reacted disproportionately, which
resulted in the deceased, who was nowhere concerned with the
quarrel became the target. Such an act of Appellant in inflicting
a single blow without any further improvisation appears to have
been in the heat of passion, or rage. Therefore, it is held that the
appellant's conviction under Section 302 IPC was not
appropriate and but since he intended to cause injury he should
have been convicted rather u/s 304 Part I.
34. Now it is to be seen that whether the Trial Court had
appreciated the provisions of section 149 while convicting the
Appellants in present appeal and Appellants in Criminal Appeal
no. 201/2001 under section 302 with its aid. For that sections
141, 143, 147, 148 and 149 I.P.C. is required to be analysed.
Section 143 provides the punishment for being a member of an
unlawful assembly. Unlawful assembly is defined under Section
141 of Indian Penal Code. The essential ingredients to constitute
an unlawful assembly are:-
(1) an assembly of five or more persons
(2) they must have a common object and
(3) the common object must be one of the
five specified in the section.
The common objects as mention in section 141 I.P.C.
are:
(First) to overawe by criminal force, or
show of criminal force, the Central or any
State Government or Parliament or the
Legislature of any State, or any public
servant in the exercise of the lawful power
of such public servant; or
(Second) -- To resist the execution of any
law, or of any legal process; or
(Third)-- To commit any mischief or
criminal trespass, or other offence; or
(Fourth) -- By means of criminal force, or
show of criminal force, to any person, to
take or obtain possession of any property,
or to deprive any person of the enjoyment
of a right of way, or of the use of water or
other incorporeal right of which he is in
possession or enjoyment, or to enforce
any right or supposed right; or
(Fifth)-- By means of criminal force, or
show of criminal force, to compel any
person to do what he is not legally bound
to do, or to omit to do what he is legally
entitled to do. Explanation.--An assembly
which was not unlawful when it assem-
bled, may subsequently become an
unlawful assembly.
35. The common object required by the section is to be
established with reference to the evidence in each case. The
illegal object which the members have in common, must be one
of those specified in the Section. If the object does not fall under
either of those clauses, it is not be illegal and if the object is not
illegal, there can be no unlawful assembly. Therefore to
constitute an offence under section 143 the prosecution has to
prove that there was an assemblage of at least five persons, that
the object of the meeting was any of the five objects mentioned
in Section 141 and that the accused shared that object with at
least four others of the meeting and the accused intentionally
joined the meeting either having knowledge of its object or
continued therein after having that knowledge. The charge
framed by the court should specify the unlawful common object
of the assembly.
36. Section 147 provides the punishment for rioting. The
points required to be proved are :-
"(1) that five or more persons were
assembled
(2) that they constitute an unlawful
assembly within the meaning of Section
141 IPC.
(3) that the accused was a member of that
assembly,
(4) that force or violence was used by any
member of that assembly,
(5) that it was used in prosecution of its
common object."
Section 148 provides that whoever is guilty of rioting, being
armed with a deadly weapon or with anything which, used as a
weapon of offence, is likely to cause death, shall be punished as
provided therein. The ingredients are possession of a deadly
weapon, in addition to the ingredients provided under Section
147. Section 149 which is wide in its sweep requires deep
scrutiny and detailed and specific proof, for holding that the
accused persons were members of an unlawful assembly with a
common object with particular reference to the part played by
each of the accused persons who constituted the unlawful
assembly. It is to be born in mind that Section 149 is a distinct
offence, and deals with vicarious liability of the members of the
unlawful assembly for the acts done in prosecution of the
common object and for such offence as its members knew to be
likely to be committed in prosecution of that common object. It
must be proved that such objects were common to all the
members of the assembly and the accused joined and continued
as a member of the assembly.
A common object is different from a common intention
as it does not require prior concert and a common meeting of
minds before the attack. An unlawful object can develop after
the people get there. Persons who at the first instance assembled
at a particular place, may have a valid object in view. Suddenly
it may develop on the spur of the moment, a common purpose
of doing an unlawful thing. The facts thus to be proved to attract
Section 149 are:-
"(1) that there was an unlawful assembly,
(2) that the accused was a member thereof,
at the time of committing the offence.
(3) that he intentionally joined or
continued in the assembly,
(4) that he knew of the common object of
the assembly.
(5) that an offence was committed by a
member of such assembly,
(6) that it was either committed:
(a) in prosecution of the common object of
the assembly or
(b) was such as the members of the
assembly knew to be likely to be
committed in prosecution of their common
unlawful object."
37. The Constitution Bench in Mohan Singh Vs. State of
Punjab (AIR 1963 SC 174) which holds the field till date
enunciated the principles as follows:-
"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
assemblies 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."
38. A three Judge Bench of the Supreme Court in
Bhudeo Mandal and others v. State of Bihar (AIR 1981 SC
1219) held:-
"Before recording a conviction under
Section 149 of the Indian Penal Code, the
essential ingredient of Section 141 of the
Indian Penal Code must be established.
Section 149 creates a specific offence and
deals with the punishment of that offence.
There is an assembly of five or more
persons having a common object and the
doing of acts by members is in prosecution
of that object. The emphasis is on common
object. In the instant case there is neither
any evidence nor any finding that any of
the ingredients of Section 149 have been
established by the prosecution."
39. Thus, section 149 makes every member of an unlawful
assembly at the time of committing of the offence guilty of that
offence and in a way this section created a specific and distinct
offence. In other words, it created a constructive or vicarious
liability of the members of the unlawful assembly for the
unlawful acts committed pursuant to the common object by any
other member of that assembly. However, the vicarious liability
of the members of the unlawful assembly extends only to the
acts done in pursuance of the common object of the unlawful
assembly, or to such offences as the members of the unlawful
assembly knew to be likely to be committed in prosecution of
that object. Once the case of a person falls within the ingredients
of the section the question that he did nothing with his own
hands would be immaterial. He cannot put forward the defence
that he did not with his own hands commit the offence
committed in prosecution of the common object of the unlawful
assembly or such as the members of the assembly knew to be
likely to be committed in prosecution of that object. Everyone
must be taken to have intended the probable and natural results
of the combination of the acts in which he joined. When the
accused persons assembled together, armed with guns, farsa,
bhala etc and were party to the assault on the complainant and
his brother deceased Banwari, the prosecution is not obliged to
prove which specific overt act was done by which of the
accused. While overt act and active participation may indicate
common intention of the person perpetrating the crime, the mere
presence in the unlawful assembly may fasten vicariously
criminal liability under section 149. It must be noted that the
basis of the constructive guilt under section 149 is mere
membership of the unlawful assembly, with the requisite
common object or knowledge.
40. Now if the acts of the Appellants/Accused in this appeal
and Criminal Appeal no.201/2001 are viewed at the pedestal of
the settled legal position as deliberated above, the common
object of the Appellants/accused persons being part of an
unlawful assembly can be gathered from the nature of their
assembly, arms used by them and their behaviour being a part of
the assembly at, before or after the scene of occurrence.
41. Thus, at the eyewitnesses account the inference deduced
from their individual acts, their language and from consideration
of all the surrounding circumstances, it is held that, all the
Appellants/accused were members of an unlawfully assembly
and in furtherance of its common object had acted thereupon.
Though it is argued that non of them had not caused any injury
to the deceased, they cannot be said to have common object to
kill them and thus, they cannot be a part of the unlawfully
assembly, thus, should not be held to be vicariously liable for
the act of other co-accused persons, has no force, as they all
came along together armed with deadly weapons and attacked
the complainant and his brother, they became a part of the
unlawful assembly, thus, from their individual acts it could be
inferred that they had common object too.
42. Thus, this Court holds that once accused persons formed
an unlawful assembly and an offence is committed by one of the
member of that assembly in prosecution of the common object
of that assembly, or such act as the members of the assembly
knew to be likely to be committed in prosecution of that object,
every person who at the time of committing of that offence was
a member of the same assembly is to be held guilty of that
offence. This, Court since had arrived at such a finding it would
not be open to see as to who actually did the offensive act or
require the prosecution to prove which of the members did
which of the offensive acts and the prosecution would have no
obligation to prove it.
43. As a result, the judgment of conviction and sentence dated
17/03/2001 passed by 2nd, Additional Sessions Judge, District
Morena (M.P.) in Sessions Trial No.67 of 1995, is hereby
modified and conviction of Appellant Raghunath in Cr.A.
261/2001 is converted from 302 to 304 Part I I.P.C. and that of
Appellants Shrigoving and Brajmohan in present appeal and
Appellants in Cr.A. 201/2001 Ramawtar and Lokendra is
modified from 302/149 to 304 Part I/149 I.P.C. So far as
conviction u/s 148 I.P.C. is concerned it is upheld.
44. Looking to the period of jail incarceration which the
Appellants had undergone, which is given in tabular form below
and the year of the incident, i.e. 03/09/1994:
S.No. Name of appellant/accused Judicial Custody
1 Shrigovind ( in Criminal 8 months
Appeal No.161/2001)
2 Brajmohan (in Criminal 9 months
Appeal No.161/2001)
3 Ramawtar (in Criminal Appeal 3 years 9 months and 6
No.201/2001) days.
4 Lokendra (in Criminal Appeal 3 years 8 months and 3
No.201/2001) days.
5 Raghunath (in Criminal 5 years 4 months and 26
Appeal No.261/2001) days
this Court deems it fit to modify the sentence to the period
already undergone.
45. Let a copy of this judgment be sent to the concerning jail
authorities forthwith and also a copy of this judgment along
with record be sent to concerning Trial Court for information
and compliance.
(Rohit Arya) (Milind Ramesh Phadke)
Judge Judge
06/01/2023 06/01/2023
Pawar/-
