Madhya Pradesh High Court
Omkar Prasad Patel vs State Of Madhya Pradesh on 4 October, 2024
Author: G.S. Ahluwalia
Bench: G. S. Ahluwalia, Vishal Mishra
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1 Cr.A. Nos.2874/2020 and 3171/2020
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 04th OF OCTOBER, 2024
CRIMINAL APPEAL No. 2874 of 2020
SAI LAL PATEL AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri R.S. Patel - Advocate for the appellants.
Shri A.S. Baghel - Government Advocate for the respondent/State.
WITH
CRIMINAL APPEAL No. 3171 of 2020
OMKAR PRASAD PATEL
Versus
STATE OF MADHYA PRADESH
Appearance:
Shri A.K. Shrivastava - Advocate for the appellant.
Shri A.S. Baghel - Government Advocate for the respondent / State.
Reserved on : 18/09/2024
Pronounced on : 04th/10/2024
JUDGMENT
Per: Justice G.S. Ahluwalia
By this common Judgment, Cr.A. No.2874 of 2020 filed by Sai Lal
Patel, Awdhesh Patel, Rakesh @ Tidku Patel, Rajendra @ Chiju Patel, and
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Pramod @ Bholi Patel and Cr.A. No.3171 of 2020 filed by Omkar Prasad
Patel shall be decided.
2. It is not out of place to mention here that initially the co-accused
Ram Kumar Patel and Shiv Kumar Patel were tried and the remaining co-
accused persons, who are appellants in Cr.A. Nos.2874 of 2020 and 3171
of 2020 were absconding.
3. Ram Kumar Patel and Shiv Kumar Patel were convicted for
offence under Sections 147, 452/149, 294, 323/149, 302/149 of IPC by
Judgment and Sentence dated 19-8-2010 passed by Add. Judge to the
Court of Add. Sessions Judge, Katni in S.T. No.172 of 2009. Against their
conviction, Ram Kumar preferred Cr.A. No.1670/2010 and Shiv Kumar
preferred Cr.A. No.2335/2010. Both the Criminal Appeals were dismissed
by co-ordinate bench of this Court by Judgment dated 14-9-2018.
4. Being aggrieved by dismissal of appeal, Ram Kumar preferred
Cr.A. No.424/2022, which was allowed by Supreme Court by order dated
14-3-2022 on the ground that the appeal was dismissed in the absence of
the appellant-Ram Kumar and his Counsel and the matter has been
remanded back. Cr.A. No.1670/2010 filed by Ram Kumar is also listed
with these Criminal Appeals for analogous hearing. Since, Ram Kumar
was tried separately, therefore, in the light of Judgment passed by Supreme
Court in the case of A.T. Mydeen Vs. The Asstt. Commissioner,
Customs Department, decided on 31/10/2021 passed in Cr.A. No. 1306
of 2021, the evidence led in the trial of Ram Kumar cannot be read in the
present case, therefore, the appeal filed by Ram Kumar, which has been
heard analogously, shall be decided separately.
5. So far as Shiv Kumar is concerned, he did not challenge the
dismissal of his appeal and it has been informed by Counsel for the
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Appellants that Shiv Kumar has been released from jail on 2nd of October,
2023 after undergoing the entire jail sentence.
6. Both the Criminal Appeals have been filed against the Judgment
and Sentence dated 30-1-2020 passed by IVth A.S.J., Katni in S.T. No.172
of 2009, by which all the appellants have been convicted and sentenced for
the following offences :
S.No. Convicted under Sentence
Section
1 147 of IPC 1 year R.I.
2 452/149 of IPC 1 year R.I. and fine of Rs.1000/- in
default 1 month R.I.
3 323/149 of IPC 1 year R.I.
4 302/149 of IPC Life Imprisonment and fine of
Rs.5000/- in default 3 months R.I.
All sentences to run concurrently
7. It is not out of place to mention here that although the incident took
place on 11-3-2009, but the appellant Sai Lal Patel was arrested on 17-8-
2012, Awdhesh Patel was arrested on 17-8-2012, Rakesh was arrested on
5-9-2012, Rajendra was arrested on 5-9-2012, Omkar was arrested on 16-
8-2012 and Pramod @ Bholi was arrested on 20-4-2011.
8. Since Pramod @ Bholi was arrested on 20-4-2011 and remaining
co-accused namely Sai Lal Patel, Awdhesh Patel, Rakesh, Rajendra and
Omkar were absconding, therefore, supplementary charge sheet was filed
against Pramod @ Bholi. Some of the witnesses were also examined,
however, after the arrest of all the remaining accused persons, the Trial of
Pramod @ Bholi was clubbed with the Trial of other appellants and
witnesses who were already examined in respect of Pramod @ Bholi were
re-summoned and they were examined in respect of other appellants. By
common judgment, the Trial of all the appellants was decided.
9. According to the prosecution case, on 11-3-2009, Biharilal lodged
an FIR alleging that he is the resident of village Kumharwara and is an
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agriculturist by profession. At 2:30 P.M, he was preparing fodder in his
courtyard situated in front of the house of his uncle Manraman Patel.
Manraman Patel was sitting outside his house. At that time, co-accused
Shiv Kumar Patel came. Manraman Patel scolded him as to why he is
creating ruckus through Sai Lal Patel and Awdhesh Patel (In the FIR,
exact abusive words have been used). In reply, Shiv Kumar responded that
he would throw him on the ground. This witness pacified the situation and
accordingly, Shiv Kumar went back and this witness also took Manraman
inside his house. After some time, Shiv Kumar Patel, his son Pramod @
Bholi, Ram Kumar Patel, his son Rajendra and Rakesh, Awdhesh Patel,
Omkar Patel and Sai Lal Patel came there. Thereafter Omkar Patel
instigated Shiv Kumar to drag the deceased out of his house and
accordingly, Shiv Kumar, Rakesh, Pramod, Rajendra and Ram Kumar
Patel, entered inside the house of Manraman and dragged him out. Shiv
Kumar Patel, Rakesh, Pramod, Rajendra, and Ram Kumar Patel, started
assaulting Manraman by fists. During this assault, Omkar Patel, and Sai
Lal Patel, were abusing Manraman and were instigating that he should be
killed and they will handle the situation. Thereafter, Shiv Kumar
strangulated Manraman with the help of the shirt of the deceased.
Awdhesh Patel twisted the hand of Manraman. At that time, Phoolwati and
Mohwati also reached on the spot in order to intervene. Rajendra and
Pramod pushed them. Jagroop Patel and Sudama Patel who were standing
there have witnessed the incident. Manraman died after 10 minutes.
Thereafter, all the accused persons ran away.
10. The police accordingly, registered the FIR in Crime No.52/2009
for offence under Sections 147, 149, 302, 452, 294, 506 of IPC. The dead
body was sent for post mortem. The statements of witnesses were
recorded. As only Ram Kumar and Shiv Kumar could be arrested
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therefore, filed the charge sheet against them. Thereafter, Pramod @ Bholi
was arrested and supplementary charge sheet was filed against him.
11. The Trial Court by order dated 10-10-2011, framed charges under
Sections 147, 452, 294, 323/149, 302/149 of IPC. The appellant Pramod
@ Bholi abjured his guilt and pleaded not guilty.
12. After the other appellants were arrested, a supplementary charge
sheet was filed and Trial Court by order dated 10-6-2013 framed charges
under Section 147, 452/149, 294, 323/149, 302/149 of IPC against Sai Lal
Patel, Awdhesh Patel, Rajendra Patel, Rakesh Patel, and Omkar Patel.
13. The Appellants abjured their guilt and pleaded not guilty.
14. As already pointed out, some of the witnesses were examined when
Pramod @ Bholi was facing trial all alone. Chintamani (P.W.1) was
examined on 21/11/2011, Jagroop Prasad (P.W.2) was examined on 22-11-
2011, Phoolwati (P.W.3) was examined on 24-12-2011, Biharilal (P.W.4)
was examined on 15-2-2012, Mohan Singh (P.W.5) was examined on 16-
2-2012, Mohwati (P.W.6) was examined on 27-6-2012, Sudama Prasad
(P.W.7) was examined on 6-11-2012.
15. Thereafter, these witnesses were re-summoned after the arrest of
remaining accused persons and Biharilal (P.W.1) was examined on 15-7-
2013, Jagroop (P.W.2) was examined on 24-2-2016 and 29-4-2016,
Chintamani Patel (P.W.2) was examined on 12-12-2014, Prahlad Patel
(P.W.3) was examined on 22-1-2016, Phoolmati (P.W.4) was examined on
23-2-2016, Mohwati (P.W.6) was examined on 24-2-2016, Mohan Singh
Gadkare (P.W.7) was examined on 2-4-2016, Yogendra Singh (P.W.8)
was examined on 29-7-2016, Sudama Prasad (P.W.9) was examined on 6-
9-2017, Ram Singh (P.W.10) was examined on 4-12-2012, Dr. Anil
Jhamnani (P.W.11) was examined on 16-2-2018, Dev Raj Sharma
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(P.W.12) was examined on 31-7-2018, S.K. Jharia (P.W.13) was examined
on 31-7-2018, and Arvind Dubey (P.W.14) was examined on 3-12-2019.
16. The Appellants examined Ram Narayan Patel (D.W.1) and Ram
Pankaj Patel (D.W.2) in their defence.
17 The Trial Court by the impugned Judgment and Sentence, has
convicted and sentenced the appellants for the offences mentioned above.
18. Challenging the Judgment and Sentence awarded by the Trial
Court, it is submitted by Counsel for the appellants, that if the entire
incident is taken on its face value, then it is clear that it was the deceased
Manraman who scolded the co-accused Shiv Kumar. Thus, it is clear that
the incident was triggered by the deceased himself. Thereafter, all the
accused came to the house of the deceased and none of them were having
any weapon. The deceased was taken out of his house and was assaulted
by fists and blows. None of the appellant had any idea that co-accused
Shiv Kumar would strangulate the deceased by using the shirt of the
deceased himself. The allegation of instigation by Omkar and Awdhesh is
not reliable. Thus, it is clear that the accused persons were not sharing
common object to strangulate the deceased and even if they had formed an
Unlawful Assembly, then it was only for the purposes of thrashing the
deceased by fists and blows. Thus, their conviction under Section 302/149
of IPC is bad in law.
19. Per contra, it is submitted by Counsel for the State that since, all
the accused persons had come together and they not only dragged the
deceased out of his house but also assaulted him and during the assault,
Shiv Kumar strangulated the deceased, and Omkar and Awdhesh had
instigated to kill the deceased, thus, it is clear that all the accused persons
had formed an Unlawful Assembly with common object to kill the
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deceased. Accordingly, the State Counsel has supported the findings
recorded by the Trial Court.
20. Heard the learned Counsel for the parties.
21. Before considering the facts of the case, this Court would like to
consider as to whether the death of Manraman was homicidal in nature or
not?
22. Dr. Anil Chhawani (P.W.11) has conducted the postmortem of the
dead body of Manraman. He found the following injuries on the dead
body of Manraman :
Eyes Closed, Mouth Closed, Tongue inside teeth;
Ecchymosis contusions in front of neck 5 cm x 10 cm
Ecchymosis present beneath neck skin
Trachea ruptured.
Stern mastoid muscle damaged. Large Ecchymosis present
mark just below thyroid cartilage.
On opening thoracic and abd cavity nothing significant
finding. Brain healthy.
The cause of death is Asphyxia due to throttling. However,
Viscera preserved for precautionary measure.
The Post mortem report is Ex. P.22.
23. In cross-examination, this witness clarified that no ligature mark
was found around the neck. The injury which was found on the neck could
be caused by pressing the neck with hard and blunt object.
24. Thus, it is clear that the death of Manraman was homicidal in
nature.
25. In the present case, the prosecution has relied upon five
eyewitnesses, namely Biharilal, Jagroop, Phoolmati, Mohwati and Sudama
Prasad. Since, partial trial of Pramod @ Bholi had taken place separately,
therefore, evidence led by prosecution in the trial of Pramod @ Bholi shall
be considered separately.
Appellant Pramod
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26. Vinay @ Bihari (P.W.4) who was examined on 15-2-2012 in
respect of Pramod @ Bholi, stated that about 3 years back, it was 2-2:30
P.M. He was fetching water from the handpump. At that time Shiv Kumar
came nearer to his house. Manraman scolded him as to why he is creating
ruckus. It was further stated by this witness that two days prior thereto,
dispute had taken place between Manraman and the accused persons. On
this, Shiv Kumar started abusing Manraman. This witness pacified the
situation and took the deceased inside his house and Shiv Kumar also went
back to his house. After 10 minutes, all the eight persons came there and
took the deceased Manraman out of his house and started assaulting him.
The Appellant Pramod @ Bholi was also there and he was trying to save
Manraman from the remaining accused persons. This witness further
clarified that he could not understand as to whether Pramod @ Bholi had
caught hold of Manraman with an intention to save him or not, but he had
caught hold of Manraman. Thereafter, Shiv Kumar, Omkar and Awdhesh
twisted the neck of Manraman. Omkar was also instigating to kill him.
The accused persons ran away after the deceased Manraman died. The
FIR, Ex P.6 was lodged and spot map, Ex.P.3 was prepared. This witness
was declared hostile by the public prosecutor. In cross-examination, he
accepted the suggestion that it was Shiv Kumar who strangulated the
deceased. He also admitted that the appellant Pramod @ Bholi had also
dragged the deceased out of his house. He further stated that the appellant
Pramod @ Bholi and other accused persons had come with pre-plan. In
cross-examination, this witness again stated that appellant Pramod @
Bholi was trying to save the deceased and clarified that since, he could not
understand the same, therefore, he did not mention this fact in his police
statement. Then again he stated that it is incorrect to say that the appellant
Pramod @ Bholi was not involved in the incident.
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27. Jagroop Prasad (P.W.2) who was examined on 22-11-2011, stated
that all the eight accused persons dragged the deceased out of his house
and started assaulting him by fists and he was also strangulated. However,
in para 3 of his examination in chief, he clarified that Shiv Kumar had
caught hold of neck of Manraman whereas Omkar was instigating the
accused persons. All the accused persons had assaulted the deceased.
However, in cross-examination, he admitted that the appellant Pramod @
Bholi was not present on the spot, when the murder of Manraman took
place. He also could not explain as to why the fact that all the accused
persons had twisted the neck of deceased was not mentioned in his police
statement, Ex. D.1. He admitted that except Shiv Kumar, nobody else had
caught hold of neck of Manraman. The appellant Pramod @ Bholi is the
son of co-accused Shiv Kumar.
28. Phoolmati (P.W.3) who was examined on 24-12-2011 has stated
that it was a festival of Holi. She was in her house. Her Daughter-in-law
Mohwati was also in the house. Jagroop was feeding his cattles. It was
about 1:30 P.M. Shiv Kumar was coming after taking bath and abused her
husband on account of old enmity. When it was objected by her husband,
then Shiv Kumar started assaulting her husband by fists and blows and
also twisted his hand. At that time, except Shiv Kumar no body else was
there. She started crying. Only Shiv Kumar had assaulted her husband and
nobody else had assaulted him. Shiv Kumar had dragged her husband to
the courtyard where he had assaulted him. This witness was declared
hostile. She denied that any allegation was made by her against the
appellant Pramod @ Bholi. In para 9 of her cross-examination, she further
stated that the appellant Pramod @ Bholi was not present on the spot.
29. Mohwati (P.W.6) who was examined on 27-6-2012 has stated that
all the eight accused persons, including the appellant Pramod @ Bholi
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came on the spot and dragged her father-in-law Manraman out of the
house and took him to the courtyard of Matadeen and started assaulting
him by fists and blows. Shiv Kumar strangulated her father-in-law and
Awdhesh had broken the hand of her father-in-law. In cross-examination,
She stated that she cannot explain as to why the allegation that the accused
persons dragged the deceased to the courtyard of Matadeen is not
mentioned in her police statement. It is not out of place to mention that this
witness in her police statement, Ex. D.1 had stated that the accused
persons took the deceased to the courtyard of Surendra Patel. She denied
that appellant Pramod @ Bholi was not present on the spot.
30. Sudama Prasad (P.W.7) who was examined on 6-11-2012 has
stated that he was going back to his house and saw that Omkar Patel,
Pramod @ Bholi, Sai Lal, Awdhesh Patel, Rajendra, Rakesh, Ram Kumar
etc were abusing. Thereafter, he went back to his house. After 20-25
minutes, he came to know that Manraman has been killed. He was
informed by daughter-in-law of Manraman that the above named persons
had killed the deceased. This witness was declared hostile. However, even
in his cross-examination by the Public Prosecutor, he did not support the
prosecution case. In cross-examination by the appellant, this witness stated
that he had told the police that Omkar, Awdhesh, Pramod @ Bholi, Sai
Lal, Rajendra, Rakesh and Ram Kumar were abusing, but could not
explain as to why this fact is not mentioned in his police statement, Ex.
P.11.
31. Thus, it is clear that Sudama Prasad (P.W.7) and Phoolmati
(P.W.3) have turned hostile with regard to the role played by the appellant
Pramod @ Bholi. Although the evidence of Biharilal (P.W.2) is slightly
shaky with regard to the role played by the appellant Pramod @ Bholi, but
Mohwati (P.W. 6) has specifically stated that appellant Pramod @ Bholi
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also came on the spot and dragged the deceased out of his house and
assaulted him by fists and blows. But, the allegation of strangulating the
deceased is against Shiv Kumar.
32. The FIR, Ex. P.2 was lodged at 19:00 whereas the incident took
place at about 14:30. The place of incident is approximately 25 Kms away
from the police station, and the reasons for delay in lodging the FIR has
been disclosed as non-availability of conveyance.
33. Even otherwise, the FIR was lodged within a period of 4 hours of
the incident. Under these circumstances, it cannot be said that there was
any delay in lodging the FIR. Since, the appellant Pramod @ Bholi is
specifically named in the FIR, and it has been alleged that he along with
other accused persons, dragged the deceased out of his house and assaulted
him by fists and blows, therefore, in the light of evidence of Bihari
(P.W.2) and Mohwati (P.W.6), it is held that the prosecution has proved
beyond reasonable doubt, that the deceased was dragged out of his house
by the appellant Pramod @ Bholi along with other co-accused persons,
and he had also assaulted the deceased. But, there is no allegation that the
appellant Pramod @ Bholi had either instigated the co-accused or
strangulated the deceased.
34. It is not out of place to mention here that no injury except on the
neck of the deceased was found. No fracture of his hand was found.
Appellants Sai Lal, Awdhesh, Rakesh, Omkar and Rajendra
35. Biharilal (P.W.1) who was examined on 15-7-2013 has stated that
the accused Omkar Prasad Patel, Rakesh Patel, Rajendra Prasad, Pramod,
Sai Lal, Awdhesh and Shiv Kumar are known to him. On 11-3-2009 at
about 2:30 P.M., he was fetching water from the hand pump. Shiv Kumar
came from the side of Narba and Manraman was also sitting near his
house. At that time, Shiv Kumar started abusing Manraman. When he tried
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to pacify the situation, then Shiv Kumar asked him as to why he is not
pursuing Manraman. Thereafter, he took Shiv Kumar back to his house.
Thereafter, co-accused Omprakash Patel called Rajendra, Rakesh,
Awdhesh, Sai Lal, Ram Kumar, Rajendra, Rakesh and Pramod. At that
time, Manraman was inside his house. Thereafter, all the accused persons
went inside the house of Manraman and dragged him out to his courtyard.
All the accused persons started assaulting him by fists. Manraman was
shouting for his help. Thereafter, Omkar Patel caught hold the collar of
Manraman and twisted his neck. Thereafter, this witness stated that in fact
Shiv Kumar had pressed the neck after catching hold of collar of
Manraman. Thereafter, he narrated the incident to other villagers. He went
to police station to lodge the FIR. Merg intimation is Ex. P.1. The police
registered the FIR, Ex. P.2. On the next day, Lash Panchnama Ex. P.3 was
prepared. At the time of preparation of Lash Panchnama, he had seen that
right hand of the deceased was broken and ligature marks were seen
around the neck. Thereafter, Naksha Panchnama Ex. P.4 was prepared.
The dead body was sent for post mortem. He also stated that spot map, Ex.
P.6 was prepared. This witness was cross-examined in detail. He could not
explain as to why the fact that he was fetching water from hand pump,
Shiv Kumar started abusing the deceased, Omprakash Patel had
summoned the other accused person, Omkar Patel had caught the collar of
the deceased and had twisted his neck were not mentioned in his FIR, Ex.
P.2. He also stated that the deceased had not abused Shiv Kumar and had
also not scolded as to why he creates ruckus with the help of Sai Lal and
Awdhesh, but could not explain as to why aforesaid allegations were made
in his FIR, Ex. P.2 and police statement, Ex. D.1. He admitted the
suggestion that Shiv Kumar had twisted the neck of Manraman Patel. He
admitted that elder son of Manraman namely Rajesh @ Kodu was in the
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house. He further stated that hand pump is situated near the courtyard
where the dispute took place. He had witnessed the incident from a
distance of 50 ft.s. He further stated that after 2-3 hours of the incident, he
went to the police station to lodge the FIR. He clarified that as no
conveyance was available, therefore, he went after 2-3 hours. He denied
that during this period he was tutoring the witnesses. He also stated that
for preparing fodder he was fetching water. He denied that villagers had
made a complaint to senior police officers that the accused have been
falsely implicated. However, he admitted that his statements before S.P.
were recorded. He denied that Crime branch had also come to investigate
but admitted that his statements were also recorded by crime branch. The
wife and daughter in law of Manraman took him back to his house under a
hope and belief, that he might be alive. He denied that he, Jagroop and
Sudama kept the body of Manraman back in the house and thereafter he
went to lodge FIR. The spot map, Ex. P.5 was prepared on his instructions.
He denied that the accused persons were falsely implicated on account of
enmity. One door of the house of Manraman is in front of hand pump. He
admitted that Manraman never participated in any election and he also had
no enmity with any villager. He went to police station on the motorcycle
of Sunil. He admitted that Omkar Patel had won the election of BDC and
his wife had won the election of Sarpanch. He further admitted that Ram
Kumar who is the father of Rakesh and Rajendra had won the election of
Panch.
36. Jagroop (P.W.2) in his evidence recorded on 29-4-2016 turned
hostile. However, on cross-examination by Public Prosecutor, he admitted
that on the day of Holi, all the eight accused persons had dragged
Manraman out of his house and assaulted him. He admitted that earlier
some dispute took place between accused and Manraman on the question
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of cattles and Manraman had lodged a report in this regard. He admitted
that he was in his courtyard when Manraman was being assaulted. He also
admitted that he too was assaulted by the accused persons. Safina form,
Ex. P.9 contains his signatures, and spot map Ex. P.11 was prepared.
Omkar Prasad was instigating the accused persons, whereas Shiv Kumar
had caught hold of neck of Manraman and others were assaulting by fists
and blows. Thereafter, the accused persons killed Manraman by twisting
his neck. In cross-examination, he clarified that Shiv Kumar had
strangulated the deceased whereas Rajendra and Rakesh had assaulted
him.
37. Phoolmati (P.W.4) was examined on 23-2-2016. She has stated that
on the date of incident, She was in her house. Omkar Prasad Patel, Sai Lal
Patel, Awdhesh Patel, Rakesh Patel, Rajendra Patel are known to her.
Deceased Manraman was her husband. It was about 6 years back. Rakesh
Patel, Omkar Patel, Bholi, Sikku all eight persons came to her house.
They assaulted her husband Manraman by fists and blows and killed him
by twisting his neck. The incident took place on the issue of cattles. When
She tried to intervene, then She was pushed. Since, this witness was an old
lady, therefore, permission was granted to the Public Prosecutor to ask
questions. She admitted that when Shiv Kumar was coming from the side
of Nala, he was scolded by her husband as to why he creates ruckus with
the help of Sai Lal and Awdhesh. Thereafter, Shiv Kumar started talking
to her husband in high pitch and also abused him. Biharilal pacified the
situation and accordingly, Shiv Kumar went away. Thereafter, Shiv
Kumar, his son Pramod @ Bholi, Ram Kumar Patel, his son Rajendra,
Rakesh Awdhesh Patel, Omkar Patel, Sai Lal came there. She further
stated that Omkar Patel had instigated Sai Lal Patel that the deceased be
dragged out of the house and accordingly, Shiv Kumar, Rakesh, Pramod,
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Rajendra, Ram Kumar Patel entered inside the house and dragged her
husband out of the house. She further admitted that her husband was taken
to the courtyard of Surendra. There, Shiv Kumar Patel, Rakesh Patel,
Pramod Patel, Rajendra Patel, and Ram Kumar Patel started assaulting her
husband by fists and blows. She further admitted that Omkar and Sai Lal
were instigating that the deceased should be killed. Thereafter, Shiv
Kumar strangulated the deceased. In cross-examination, she stated that
since, certain allegations were reminded by the Public Prosecutor,
therefore, She has stated the same. She further stated that 7 years have
passed. She admitted that none of the accused was armed with any
weapon. She further stated that her son came after the incident and
Biharilal (P.W.1) came after the arrival of her son. The incident was
narrated by her to Biharilal. Thereafter, Biharilal went to lodge the FIR.
38. If the evidence of this witness is considered, then it is clear that
earlier She did not say about the instigation by Omkar Prasad and Sai Lal.
After her examination was recorded, a note was appended by the Court
that since, the witness is an old lady and the incident took place about 6
years back, therefore, the Public Prosecutor was permitted to ask Leading
Question.
39. Now the question for consideration is that whether the Trial Court
could have permitted the Public Prosecutor to put leading question to this
witness. It is made clear that this witness was never declared hostile.
40. Sections 142, 154 of Evidence Act, read as under :
142. When they must not be asked.--Leading questions
must not, if objected to by the adverse party, be asked in an
examination-in-chief, or in a re-examination, except with
the permission of the Court.
The Court shall permit leading questions as to matters
which are introductory or undisputed, or which have, in its
opinion, been already sufficiently proved.
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154. Question by party to his own witness.--(1) The
Court may, in its discretion, permit the person who calls a
witness to put any questions to him which might be put in
cross-examination by the adverse party.
(2) Nothing in this section shall disentitle the person so
permitted under sub-section (1), to rely on any part of the
evidence of such witness.
41. The Supreme Court in the case of Varkey Joseph Vs. State of
Kerala reported in 1993 Supp (3) SCC 745 has held as under :
10. The most startling aspect we came across from the
record is that the criminal trial was unfair to the appellant
and the procedure adopted in the trial is obviously illegal
and unconstitutional. The Sessions Court in fairness
recorded the evidence in the form of questions put by the
prosecutor and defence counsel and answers given by each
witness. As seen the material part of the prosecution case
to connect the appellant with the crime is from the
aforestated witnesses. The Sessions Court permitted even
without objection by the defence to put leading questions
in the chief examination itself suggesting all the answers
which the prosecutor intended to get from the witnesses to
connect the appellant with the crime. For instance, see the
evidence of PW 1, ―Then I saw Jose (appellant) coming
from the north and going towards south‖. Did you notice
his dress then? Yes. He had worn a white Dhoti ... Did you
notice his Dhoti? Yes. I had seen two or three drops of
blood on his Dhoti. Suddenly I had a doubt‖. Similarly PW
4 also at that time ―Did anyone from Ramanattu House
come for tea? Yes. Jose came. When did Jose came to have
tea? I do not remember ... Did Jose come on the previous
day. Yes came about 6 p.m. in the evening. Did he say
anything? He brought a bag and said let it be here I shall
take this bag after some time ... What was the dress of the
accused when he came to the shop? He was wearing white
Dhoti and tied a cloth on his hand. Have you noticed
anything particular on the Dhoti? No‖. Similar leading
questions were put to other witnesses also to elicit on
material part of the prosecution case in the chief
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examination itself without treating any of the witnesses
hostile. Section 141 of the Indian Evidence Act, 1872
defined leading question to mean ―any question suggesting
the answer which the person putting it wishes or expects to
receive, is called a leading question‖. Section 142 provides
leading questions must not, if objected to by the adverse
party, be asked in an examination-in-chief, or in a re-
examination, except with the permission of the court. The
court shall permit leading questions as to matters which are
introductory or undisputed, or which have, in its opinion,
been already sufficiently proved. Section 143 envisages
that leading questions may be asked in cross-examination.
Section 145 gives power to cross-examine a witness as to
previous statements made by him in writing or reduced into
writing, and relevant to matters in question, without such
writing being shown to him, or being proved; but if it is
intended to contradict him by the writing, his attention
must, before the writing can be proved, be called to those
parts of it which are to be used for the purpose of
contradicting him.
11. Leading question is one which indicates to the
witnesses the real or supposed fact which the prosecutor
(plaintiff) expects and desires to have confirmed by the
answer. Leading question may be used to prepare him to
give the answers to the questions about to be put to him for
the purpose of identification or to lead him to the main
evidence or fact in dispute. The attention of the witness
cannot be directed in chief examination to the subject of
the enquiry/trial. The court may permit leading question to
draw the attention of the witness which cannot otherwise
be called to the matter under enquiry, trial or investigation.
The discretion of the court must only be controlled towards
that end but a question which suggests to the witness the
answer the prosecutor expects must not be allowed unless
the witness, with the permission of the court, is declared
hostile and cross-examination is directed thereafter in that
behalf. Therefore, as soon as the witness has been
conducted to the material portion of his examination, it is
generally the duty of the prosecutor to ask the witness to
state the facts or to give his own account of the matter
making him speak as to what he had seen. The prosecutor
will not be allowed to frame his questions in such a manner
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that the witness by answering merely ―yes‖ or ―no‖ will
give the evidence which the prosecutor wishes to elicit.
The witness must account for what he himself had seen.
Sections 145 and 154 of the Evidence Act are intended to
provide for cases to contradict the previous statement of
the witnesses called by the prosecution. Sections 143 and
154 provide the right to cross-examination of the witnesses
by the adverse party even by leading questions to
contradict answers given by the witnesses or to test the
veracity or to drag the truth of the statement made by him.
Therein the adverse party is entitled to put leading
questions but Section 142 does not give such power to the
prosecutor to put leading questions on the material part of
the evidence which the witness intends to speak against the
accused and the prosecutor shall not be allowed to frame
questions in such a manner to which the witness answer
merely ―yes‖ or ―no‖; but he shall be directed to give
evidence which he witnessed. The question shall not be put
to enable the witness to give evidence which the prosecutor
wishes to elicit from the witness nor the prosecutor shall
put into witness's mouth the words which he hoped that the
witness will utter nor in any other way suggest to him the
answer which it is desired that the witness would give. The
counsel must leave the witness to tell unvarnished tale of
his own account. Sample leading questions extracted
hereinbefore clearly show the fact that the prosecutor led
the witnesses to what he intended that they should say on
the material part of the prosecution case to prove against
the appellant which is illegal and obviously unfair to the
appellant offending his right to fair trial enshrined under
Article 21 of the Constitution. It is not a curable
irregularity.
42. If the evidence of Phoolmati (P.W.4) which was recorded after the
Public Prosecutor was permitted to ask leading question, then it is clear
that suggestions were given to this witness which were accepted. For
example:
6. ;g dguk lgh gS fd rc vksedkj iVsy us lkbZyky dks cksyk fd
eknjpksn dks /kj ls [khapdj ckgj ykvks rc f'kodqekj jkds'k izeksn jktsUnz
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jkedqekj iVsy esjs /kj ds vanj /kql vk;s vkSj esjs ifr dks /kj ds vanj
[khapdj ckgj ys x;sA ;g dguk lgh gS fd lHkh yksx esjs ifr dk
/klhVdj ikl gh lqjsUnz iVsy dh ckMh ys x;sA ;g dguk lgh gS fd ogka
ij f'kodqekj iVsy jkds'k iVsy izeksn iVsy jktsUnz iVsy ,oa jkedqekj
iVsy lHkh yksx esjs ifr dk gkFk eqDdks ls ekjuk 'kq: dj fn;sA ;g
dguk lgh gS fd esjs ifr dks dkQh ekjk ogh ij [kMk vksedkj o lkbZ
yky dgrs jgs eknjpksn dks vkt tku ls [kRe dj nksA
43. Thus, it is clear that the permission granted by the Trial Court to
ask leading question was certainly not in the light of Section 154 of
Evidence Act, because the aforesaid leading questions would not have
been put to her in cross-examination by the adverse party. Further, the
provision of Section 142 of Evidence Act also would not apply because
the allegations in respect of which leading questions were allowed to be
put to the witness were neither introductory or undisputed, nor were
already sufficiently proved.
44. Therefore, the answers which were elicited by putting leading
questions to Phoolmati (P.W.4) cannot be read because the permission to
put leading question was granted without declaring the witness as hostile.
45. Therefore, the allegation against Omkar Prasad and Sai Lal that
they were instigating the other accused persons to kill cannot be read.
46. Mohwati (P.W.6) was examined on 24-2-2016. She stated that the
incident took place about 7 years back. Her father-in-law was in the
house. Omkar Patel, Sai Lal Patel, Awdhesh Patel, Rajendra Patel, Rakesh
Patel came to her house and took her father-in-law out of the house.
Initially She was assaulted by them. Thereafter, her father in law was
assaulted. Sai Lal, Awdhesh, Rakesh, Rajendra, Shiv Kumar, Ram Kumar,
Pramod, Omkar had assaulted her father in law by fists and blows.
Thereafter, Shiv Kumar and Omkar strangulated her father.
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47. This witness in her police statement, had not stated that Omkar had
also strangulated her father-in-law, but unfortunately she was not
confronted with her earlier statement. Section 145 of Evidence Act reads
as under :
145. Cross-examination as to previous statements in
writing.--A witness may be cross-examined as to previous
statements made by him in writing or reduced into writing,
and relevant to matters in question, without such writing
being shown to him, or being proved; but, if it is intended
to contradict him by the writing, his attention must, before
the writing can be proved, be called to those parts of it
which are to be used for the purpose of contradicting him.
48. Thus, it is clear that if a party intends to contradict a witness, then
his attention must be invited to those parts of the previous statements,
which are to be used for the purpose of contradicting him.
49. The Supreme Court in the case of Major Som Nath v. Union of
India, reported in (1971) 2 SCC 387 has held as under :
24.......The only question is, what use can be made of such
statements even where the witness admits having signed
the statements made before the Military Authorities. They
can at best be used to contradict in the cross-examination
of such a witness when he gives evidence at the trial court
of the accused in the manner provided under Section 145 of
the Evidence Act. If it is intended to contradict the witness
by the writing, the attention of the witness should be called
before the writing can be proved to those parts of it which
are to be used for the purpose of contradicting him. If this
is not done, the evidence of the witnesses cannot be
assailed in respect of those statements by merely proving
that the witness had signed the document. Then the
witnesses are contradicted by their previous statements in
the manner aforesaid, then that part of the statements which
has been put to the witness will be considered along with
the evidence to assess the worth of the witness in
determining his veracity. The whole of the previous
statement however cannot be treated as substantive
evidence.
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50. The Supreme Court in the case of V.K. Mishra v. State of
Uttarakhand, reported in (2015) 9 SCC 588 has held as under :
19. Under Section 145 of the Evidence Act when it is
intended to contradict the witness by his previous statement
reduced into writing, the attention of such witness must be
called to those parts of it which are to be used for the
purpose of contradicting him, before the writing can be
used. While recording the deposition of a witness, it
becomes the duty of the trial court to ensure that the part of
the police statement with which it is intended to contradict
the witness is brought to the notice of the witness in his
cross-examination. The attention of witness is drawn to
that part and this must reflect in his cross-examination by
reproducing it. If the witness admits the part intended to
contradict him, it stands proved and there is no need to
further proof of contradiction and it will be read while
appreciating the evidence. If he denies having made that
part of the statement, his attention must be drawn to that
statement and must be mentioned in the deposition. By this
process the contradiction is merely brought on record, but
it is yet to be proved. Thereafter when investigating officer
is examined in the court, his attention should be drawn to
the passage marked for the purpose of contradiction, it will
then be proved in the deposition of the investigating officer
who again by referring to the police statement will depose
about the witness having made that statement. The process
again involves referring to the police statement and culling
out that part with which the maker of the statement was
intended to be contradicted. If the witness was not
confronted with that part of the statement with which the
defence wanted to contradict him, then the court cannot suo
motu make use of statements to police not proved in
compliance with Section 145 of the Evidence Act that is,
by drawing attention to the parts intended for contradiction.
51. Therefore, it is held that although Mohwati (P.W.6) had not stated
in her police statement, that Omkar had also instigated the accused persons
to kill Manraman, but as this witness was not confronted with her previous
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statement, therefore, the omission in police statement, Ex. D.1 cannot be
read in favor of the appellants.
52. Now the question is that whether the allegation of Mohwati
(P.W.6) that Omkar had also instigated the accused persons is reliable or
not?
53. This witness in para 8 of her examination-in-chief has stated that
after the accused persons entered inside the house, they assaulted this
witness and thereafter, took away Manraman with them. In para 22 of her
cross examination, She has stated that after She was pushed by the accused
in the room, She fell down. Thereafter, when She reached to the courtyard
of Matadeen, by that time, the entire incident had taken place. She further
stated in the same para that when She was pushed, she fell unconscious
therefore, could not see that who had taken her father-in-law out of the
house.
54. Thus, the evidence of this witness that Omkar had also strangulated
the deceased Manraman is not reliable and hence, it is disbelieved.
55. Sudama Prasad (P.W.9) who was examined on 6/9/2017 has stated
that at about 2:30 P.M. he was coming from the side of community hall.
Manraman Patel (deceased) was abusing the accused persons and Pramod,
Awdhesh Patel, Sai Lal, Rajendra Patel, Rakesh Patel, Omkar Patel were
also abusing him. Thereafter, this witness went away and expressed that
thereafter he does not know as to how the incident took place. This witness
was declared hostile. But, nothing could be elicited by the Public
Prosecutor which may support the prosecution case.
56. Thus, if the evidence of eye-witnesses are considered, then it is
clear that initially Manraman scolded Shiv Kumar as to why he is creating
ruckus with the help of Sai Lal and Awdhesh Patel. Thereafter, all the
appellants came there and dragged Manraman out of his house and
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assaulted him by fists and blows. None of them was armed with any
weapon. At that time, Shiv Kumar strangulated the deceased with the help
of shirt of deceased. Thus, it is clear that even Shiv Kumar was also not
armed with any weapon.
57. Now the only question for consideration is that whether all the
appellants had formed an Unlawful Assembly by sharing common object
to kill Manraman, or it was an independent act of Shiv Kumar and
Whether the appellants knew that such an act of killing Manraman is likely
to take place.
58. The Supreme Court in the case of Manjit Singh v. State of
Punjab, reported in (2019) 8 SCC 529 has held as under :
14.1. The relevant part of Section 141 IPC could be usefully
extracted 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--
***
Third.--To commit any mischief or criminal trespass, or
other offence; or
***
Explanation.--An assembly which was not unlawful when it
assembled, may subsequently become an unlawful
assembly.‖
14.2. Section 149, rendering every member of unlawful
assembly guilty of offence committed in prosecution of
common object 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.‖
14.3. We may also take note of the principles enunciated and
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explained by this Court as regards the ingredients of an
unlawful assembly and the vicarious/constructive liability of
every member of such an assembly. In Sikandar Singh, this
Court observed as under : (SCC pp. 483-85, paras 15 & 17-
18)
―15. The provision has essentially two ingredients viz. (i) the
commission of an offence by any member of an unlawful
assembly, and (ii) such offence must be committed in
prosecution of the common object of the assembly or must be
such as the members of that assembly knew to be likely to be
committed in prosecution of the common object. Once it is
established that the unlawful assembly had common object, it
is not necessary that all persons forming the unlawful
assembly must be shown to have committed some overt act.
For the purpose of incurring the vicarious liability for the
offence committed by a member of such unlawful assembly
under the provision, the liability of other members of the
unlawful assembly for the offence committed during the
continuance of the occurrence, rests upon the fact whether
the other members knew beforehand that the offence actually
committed was likely to be committed in prosecution of the
common object.
***
17. A ―common object‖ does not require a prior concert and a
common meeting of minds before the attack. It is enough if
each member of the unlawful assembly has the same object
in view and their number is five or more and that they act as
an assembly to achieve that object. The ―common object‖ of
an assembly is to be ascertained from the acts and language
of the members composing it, and from a consideration of all
the surrounding circumstances. It may be gathered from the
course of conduct adopted by the members of the assembly.
For determination of the common object of the unlawful
assembly, the conduct of each of the members of the
unlawful assembly, before and at the time of attack and
thereafter, the motive for the crime, are some of the relevant
considerations. What the common object of the unlawful
assembly is at a particular stage of the incident is essentially
a question of fact to be determined, keeping in view the
nature of the assembly, the arms carried by the members, and
the behaviour of the members at or near the scene of the
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incident. It is not necessary under law that in all cases of
unlawful assembly, with an unlawful common object, the
same must be translated into action or be successful.
18. In Masalti v. State of U.P. a Constitution Bench of this
Court had observed that : (AIR p. 211, para 17)
‗17. ... 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.'‖
14.4. In Subal Ghorai, this Court, after a survey of leading
cases, summed up the principles as follows : (SCC pp. 632-
33, paras 52-53)
―52. The above judgments outline the scope of Section 149
IPC. We need to sum up the principles so as to examine the
present case in their light. Section 141 IPC defines ―unlawful
assembly‖ to be an assembly of five or more persons. They
must have common object to commit an offence. Section 142
IPC postulates that whoever being aware of facts which
render any assembly an unlawful one intentionally joins the
same would be a member thereof. Section 143 IPC provides
for punishment for being a member of unlawful assembly.
Section 149 IPC provides for constructive liability of every
person of an unlawful assembly if an offence is committed by
any member thereof in prosecution of the common object of
that assembly or such of the members of that assembly who
knew to be likely to be committed in prosecution of that
object. The most important ingredient of unlawful assembly
is common object. Common object of the persons composing
that assembly is to do any act or acts stated in clauses ―First‖,
―Second‖, ―Third‖, ―Fourth‖ and ―Fifth‖ of that section.
Common object can be formed on the spur of the moment.
Course of conduct adopted by the members of common
assembly is a relevant factor. At what point of time common
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object of unlawful assembly was formed would depend upon
the facts and circumstances of each case. Once the case of the
person falls within the ingredients of Section 149 IPC, the
question that he did nothing with his own hands would be
immaterial. If an offence is committed by a member of the
unlawful assembly in prosecution of the common object, any
member of the unlawful assembly who was present at the
time of commission of offence and who shared the common
object of that assembly would be liable for the commission of
that offence even if no overt act was committed by him. If a
large crowd of persons armed with weapons assaults intended
victims, all may not take part in the actual assault. If weapons
carried by some members were not used, that would not
absolve them of liability for the offence with the aid of
Section 149 IPC if they shared common object of the
unlawful assembly.
53. But this concept of constructive liability must not be so
stretched as to lead to false implication of innocent
bystanders. Quite often, people gather at the scene of offence
out of curiosity. They do not share common object of the
unlawful assembly. If a general allegation is made against
large number of people, the court has to be cautious. It must
guard against the possibility of convicting mere passive
onlookers who did not share the common object of the
unlawful assembly. Unless reasonable direct or indirect
circumstances lend assurance to the prosecution case that
they shared common object of the unlawful assembly, they
cannot be convicted with the aid of Section 149 IPC. It must
be proved in each case that the person concerned was not
only a member of the unlawful assembly at some stage, but at
all the crucial stages and shared the common object of the
assembly at all stages. The court must have before it some
materials to form an opinion that the accused shared common
object. What the common object of the unlawful assembly is
at a particular stage has to be determined keeping in view the
course of conduct of the members of the unlawful assembly
before and at the time of attack, their behaviour at or near the
scene of offence, the motive for the crime, the arms carried
by them and such other relevant considerations. The criminal
court has to conduct this difficult and meticulous exercise of
assessing evidence to avoid roping innocent people in the
crime. These principles laid down by this Court do not dilute
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the concept of constructive liability. They embody a rule of
caution.‖
14.5. We need not expand on the other cited decisions
because the basic principles remain that the important
ingredients of an unlawful assembly are the number of
persons forming it i.e. five; and their common object.
Common object of the persons composing that assembly
could be formed on the spur of the moment and does not
require prior deliberations. The course of conduct adopted by
the members of such assembly; their behaviour before,
during, and after the incident; and the arms carried by them
are a few basic and relevant factors to determine the common
object.
59. The Supreme Court in the case of Bhagwan Jagannath Markad
v. State of Maharashtra, reported in (2016) 10 SCC 537 has held as
under :
21. An offence committed in prosecution of common object
of an unlawful assembly by one person renders members of
unlawful assembly sharing the common object vicariously
liable for the offence. The common object has to be
ascertained from the acts and language of the members of the
assembly and all the surrounding circumstances. It can be
gathered from the course of conduct of the members. It is to
be assessed keeping in view the nature of the assembly, arms
carried by the members and the behaviour of the members at
or near the scene of incident. Sharing of common object is a
mental attitude which is to be gathered from the act of a
person and result thereof. No hard-and-fast rule can be laid
down as to when common object can be inferred. When a
crowd of assailants are members of an unlawful assembly, it
may not be possible for witnesses to accurately describe the
part played by each one of the assailants. It may not be
necessary that all members take part in the actual assault. In
Gangadhar Behera, this Court observed : (SCC pp. 398-99,
para 25)
―25. The other plea that definite roles have not been ascribed
to the accused and therefore Section 149 is not applicable, is
untenable. A four-Judge Bench of this Court in Masalti case
observed as follows : (AIR p. 210, para 15)
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‗15. Then it is urged that the evidence given by the witnesses
conforms to the same uniform pattern and since no specific
part is assigned to all the assailants, that evidence should not
have been accepted. This criticism again is not well founded.
Where a crowd of assailants who are members of an unlawful
assembly proceeds to commit an offence of murder in
pursuance of the common object of the unlawful assembly, it
is often not possible for witnesses to describe accurately the
part played by each one of the assailants. Besides, if a large
crowd of persons armed with weapons assaults the intended
victims, it may not be necessary that all of them have to take
part in the actual assault. In the present case, for instance,
several weapons were carried by different members of the
unlawful assembly, but it appears that the guns were used
and that was enough to kill 5 persons. In such a case, it
would be unreasonable to contend that because the other
weapons carried by the members of the unlawful assembly
were not used, the story in regard to the said weapons itself
should be rejected. Appreciation of evidence in such a
complex case is no doubt a difficult task; but criminal courts
have to do their best in dealing with such cases and it is their
duty to sift the evidence carefully and decide which part of it
is true and which is not.'‖
60. The Supreme Court in the case of Bhanwar Singh v. State of
M.P., reported in (2008) 16 SCC 657 has held as under :
43. Regarding the application of Section 149, the following
observations are extracted from Charan Singh v. State of
U.P.: (SCC pp. 209-10, paras 13-14)
―13. ... The crucial question to determine 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 in Section 141. ... The word ‗object' means the
purpose or design and, in order to make it ‗common', it must
be shared by all. In other words, the object should be
common to the persons, who compose the assembly, that is to
say, they should all be aware of it and concur in it. A
common object may be formed by express agreement after
mutual consultation, but that is by no means necessary. It
may be formed at any stage by all or a few members of the
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assembly and the other members may just join and adopt it.
Once formed, it need not continue to be the same. It may be
modified or altered or abandoned at any stage. The
expression ‗in prosecution of common object' as appearing in
Section 149 has to be strictly construed as equivalent to ‗in
order to attain the common object'. It must be immediately
connected with the common object by virtue of the nature of
the object. There must be community of object and the object
may exist only up to a particular stage, and not thereafter....
14. 'Common object' is different from a 'common intention'
as it does not require a prior concert and a common meeting
of minds before the attack. It is enough if each has the same
object in view and their number is five or more and that they
act as an assembly to achieve that object. The ‗common
object' of an assembly is to be ascertained from the acts and
language of the members composing it, and from a
consideration of all the surrounding circumstances. It may be
gathered from the course of conduct adopted by the members
of the assembly. What the common object of the unlawful
assembly is at a particular stage of the incident is essentially
a question of fact to be determined, keeping in view the
nature of the assembly, the arms carried by the members, and
the behaviour of the members at or near the scene of the
incident. It is not necessary under law that in all cases of
unlawful assembly, with an unlawful common object, the
same must be translated into action or be successful. Under
the Explanation to Section 141, an assembly which was not
unlawful when it was assembled, may subsequently become
unlawful. It is not necessary that the intention or the purpose,
which is necessary to render an assembly an unlawful one
comes into existence at the outset. The time of forming an
unlawful intent is not material. An assembly which, at its
commencement or even for some time thereafter, is lawful,
may subsequently become unlawful. In other words it can
develop during the course of incident at the spot eo instanti.‖
(emphasis supplied)
44. Hence, the common object of the unlawful assembly in
question depends firstly on whether such object can be
classified as one of those described in Section 141 IPC.
Secondly, such common object need not be the product of
prior concert but, as per established law, may form on the
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spur of the moment (see also Sukha v. State of Rajasthan).
Finally, the nature of this common object is a question of fact
to be determined by considering nature of arms, nature of the
assembly, behaviour of the members, etc. (see also
Rachamreddi Chenna Reddy v. State of A.P.).
61. The Supreme Court in the case of Kirtan Bhuyan v. State of
Orissa, reported in 1993 Supp (1) SCC 558 has held as under :
4....The villagers may have been fraction ridden on caste
lines as suggested but the motive for the crime was so small
that there was no reason for the prosecution witnesses to
falsely implicate the accused persons. Besides, Kirtan
Bhuyan, the author of the injury on the deceased, must be
presumed to have intended the consequences of his act. The
sole injury caused to her on the neck cut the main artery. The
death was immediate due to hemorrhage. There is therefore
no escape from Section 302 IPC being attracted. The High
Court thus rightly singled Kirtan Bhuyan to be guilty under
Section 302 IPC and the remaining appellants under Section
147 read with Section 323/149 IPC. The conviction of the
appellants in these circumstances appears to us to be well
based requiring no interference.
62. Thus, the law is, therefore, clear on the point that the vicarious
liability of the members of the Unlawful Assembly will extend only to (1)
the acts done in pursuance of the common object of the Unlawful
Assembly, or (2) such offences as the members of the Unlawful Assembly
knew to be likely to be committed in prosecution of that object. Members
of an unlawful assembly can be held vicariously liable for acts committed
by others if those acts are in furtherance of the assembly's common object
or if they knew such acts were likely to occur.
63. This Court has already reproduced the sequence in which the
offence took place. This incident was not triggered by Shiv Kumar but it
was the deceased who initiated the dispute by abusing Shiv Kumar and
scolding that why he is creating ruckus with the help of Sai Lal and
NEUTRAL CITATION NO. 2024:MPHC-JBP:47428
Awdhesh. Furthermore, except entering inside the house and dragging the
deceased out of the house and giving a beating to him by fists and blows,
nothing else was alleged against them. Even Shiv Kumar was unarmed and
he strangulated the deceased with the help of shirt of deceased himself.
No overt act was attributed to any of the appellant while Shiv Kumar was
strangulating the deceased. No external or internal injury except on the
neck of the deceased was found, but if the person is not assaulted by fists
with great force, then generally no internal injury would be found.
Therefore, it is clear that although the appellants formed an Unlawful
Assembly with common object of assaulting the deceased, but the manner
in which the incident took place, it is clear that strangulation of the
deceased was the independent act of Shiv Kumar and none of the appellant
ever knew that this incident may occur. Even at the time of strangulation,
no overt act was attributed to any of the appellant. Thus, it is held that the
appellants are guilty of committing offence under Sections 147, 323/149,
and 452/149 of IPC, but they are acquitted for the offence under Section
302/149 of IPC.
64. So far the question of sentence is concerned, the appellants have
been sentenced to undergo R.I. of 1 year for offence under Section 147 of
IPC, R.I. of 1 year for offence under Section 323/149 of IPC and R.I. of 1
year and a fine of Rs.1000/- with default imprisonment of 1 month R.I. for
offence under Section 452/149 of IPC. The sentence awarded by the Trial
Court does not require any interference and it is hereby affirmed. The
Sentences shall run concurrently.
65. Ex-consequenti, the Judgment and Sentence dated 30-1-2020
passed by IVth A.S.J., Katni in S.T. No.172 of 2009 is affirmed to the
extent of conviction of appellants for offence under Sections 147, 323/149
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and 452/149 of IPC and is set aside to the extent of conviction under
Section 302/149.
66. As per the certificate issued by the Trial Court under Section 428
of Cr.P.C., the appellant Pramod @ Bholi had remained in jail for a period
of 167 days as an undertrial prisoner, the appellant Rajendra, Rakesh had
remained in jail for a period of 29 days as an undertrial prisoner, Awdhesh
had remained in jail for a period of 355 days as an undertrial prisoner, Sai
Lal Patel had remained in jail for a period of 158 days as an undertrial
prisoner, and Omkar Prasad Patel had remained in jail for a period of 117
days as an undertrial prisoner.
67. The Appellants were convicted by Judgment and Sentence dated
30-1-2020. Appellant Omkar Patel, Awdhesh Patel, Rajendra Patel and
Rakesh Patel were granted bail by order dated 25-2-2022, whereas
Appellant Pramod @ Bholi was granted bail by order dated 4-2-2022.
Omkar Patel was granted bail by order dated 25-11-2020. Thus, it is clear
that all the appellants have already undergone the Rigorous Imprisonment
of more than 1 year. Therefore, their bail bonds are hereby discharged.
They are no more required in the present case.
68. Let a copy of this judgment be sent back to the Trial Court along
with its record for necessary information and compliance.
69. The Cr.A. No.s 2874 of 2020 and 3171 of 2020 filed by Sai Lal,
Awdhesh, Rakesh @ Tidku Patel, Rajendra @ Chiju Patel, Pramod Patel
and Omkar Prasad Patel are hereby allowed to the extent mentioned
above.
(G.S. AHLUWALIA) (VISHAL MISHRA)
JUDGE JUDGE
Arun*
