Madhya Pradesh High Court
Ram Kumar @ Ramku vs The 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. No.1670/2010
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. 1670 of 2010
RAM KUMAR @ RAMKU
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri R.S. Patel - 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
This Criminal Appeal under Section 374(2) of Cr.P.C. has been
filed against the Judgment and Sentence dated 19-8-2010 passed by Add.
Judge, Katni to the Court of Additional Sessions Judge, Katni in S.T.
No.172 of 2009, by which the appellant has 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.100/- in default
1 month R.I.
3 323/149 of IPC 1 month R.I.
4 302/149 of IPC Life Imprisonment and fine of Rs.500/- in
default 2 months R.I.
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5 294 of IPC 1 month R.I.
All sentences to run concurrently.
2. It is not out of place to mention here that by impugned Judgment
and Sentence passed by the Trial Court, the appellant as well as co-
accused Shiv Kumar were convicted who preferred two separate appeals.
The present appeal is the appeal filed by Ram Kumar whereas Shiv
Kumar preferred Cr.A. No.2335/2010. Co-ordinate bench of this Court by
Judgment dated 14-9-2018 dismissed the appeals filed by the appellant
Ram Kumar and co-accused Shiv Kumar.
3. Being aggrieved by dismissal of appeal, although Ram Kumar
preferred Cr.A. No.424/2022 before Supreme Court, but the co-accused
Shiv Kumar did not challenge the dismissal of his appeal. The appeal filed
by appellant was allowed by Supreme Court by order dated 14-3-2022 on
the ground that the appeal was dismissed in the absence of appellant-Ram
Kumar and his Counsel and accordingly, remanded back to the High
Court. Accordingly, this appeal has been listed after remand by the
Supreme Court.
4. It is also not out of place to mention here that co-accused Sai Lal,
Awdhesh Patel, Rakesh Patel, Rajendra Patel, Pramod @ Bholi and Omkar
Patel were arrested subsequently. They were tried subsequently, and by
Judgment and Sentence dated 30-1-2020 passed by IVth A.S.J., Katni in
S.T. No.172 of 2009, they have also been convicted. The co-accused
persons have filed Cr.A. Nos.2874 of 2020 and 3171 of 2020. 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 co-
accused persons cannot be read in the present case, therefore, the appeals
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filed by co-accused persons which have been heard analogously, shall be
decided separately.
5. 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
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.
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6. 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
therefore, filed the charge sheet against them. The Trial Court by order
dated 6-11-2009 framed charges under Sections 147, 452/149, 294,
323/149 and 302/149 of IPC.
7. The Appellant and co-accused Shiv Kumar abjured their guilt and
pleaded not guilty.
8. The prosecution in order to prove its case, examined Jagroop
(P.W.1), Chintamani (P.W.2), Biharilal (P.W.3), Ram Naresh (P.W.4),
Mohwati (P.W.5), Sudama Prasad (P.W.6), Ashok Kumar (P.W.7), Mohan
Singh Barkade (P.W.8), Phoolmati (P.W.9), Ram Singh (P.W.10), Dr. Anil
Chhawnani (P.W.11) and Arvind Dubey (P.W.12).
9. The appellant and co-accused Shiv Kumar did not examine any
witness in their defence.
10. The Trial Court by the impugned Judgment, convicted the
appellant Ram Kumar and Shiv Kumar for offence under Sections 147,
452/149, 294, 323/149 and 302/149.
11. As already pointed out, Cr.A. No.2335/2010 filed by Shiv Kumar
was already dismissed by co-ordinate bench of this Court by judgment
dated 14-9-2018 and Shiv Kumar did not challenge the same. As per the
information provided by the Counsel for the State, Shiv Kumar has been
released from jail after undergoing the entire jail sentence.
12. Therefore, this appeal filed by Ram Kumar shall be considered.
Even otherwise, the role played by Shiv Kumar was completely different,
therefore, the conviction of Shiv Kumar will not have any bearing on the
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outcome of this appeal and similarly Shiv Kumar will not get benefit, if
the present appeal is allowed.
13. Challenging the Judgment and Sentence passed by the Trial Court,
it is submitted by Counsel for the Appellant that it is clear from the
prosecution case, that the appellant Ram Kumar was not sharing common
object to kill Manraman, therefore, the conviction of appellant Ram
Kumar for offence under Section 302/149 of IPC is liable to be set aside.
14. Per contra, the Counsel for the respondent has supported the
findings recorded by the Trial Court.
15. Heard the learned Counsel for the parties.
16. 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?
17. Dr. Anil Chhawnani (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.12
18. In cross-examination, this witness clarified that since Ecchymosis
was found, therefore, the injury was ante-mortem in nature. 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. It was
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denied that the mark of strangulation was not found on the neck.
19. Thus, it is clear that the death of Manraman was homicidal in
nature.
20. Now the question is that whether Ram Kumar is the author of
injury caused to the deceased Manraman and whether he was sharing
common object to kill Manraman or the common object of Unlawful
Assembly was only to assault the deceased by fists and blows.
21. The prosecution in order to prove the allegations against the
appellant has examined five eyewitnesses namely, Jagroop (P.W.1),
Biharilal (P.W.3), Mohwati (P.W.5), Sudama Prasad (P.W.6) and
Phoolmati (P.W. 9).
22. Jagroop (P.W.1) has stated that along with two accused persons
(Appellant Ram Kumar and co-accused Shiv Kumar) 6 other persons,
dragged the deceased Manraman out of his house and assaulted him by
fists and strangulated him by twisting his neck. The incident took place in
front of the house of Manraman. Since, the cattles of Awdhesh and Sai Lal
had entered in the field of Manraman and they had caused damage to the
crop, therefore, Manraman had lodged an FIR and on this issue, there was
an enmity between the parties. The police had prepared Lash Panchnama
Ex. P.2. One leg and One hand of the deceased was broken. The spot map
is Ex. P.3. In cross-examination, he admitted that he had told the police
that cattles had caused damage to the crop, but could not explain as to why
that fact was not mentioned in his police statement, Ex. D.1. He further
admitted that he had informed the police, that co-accused Shiv Kumar had
strangulated the deceased, but could not explain as to why that fact is not
mentioned in his police statement, Ex. D.1. He admitted that Appellant
Ram Kumar and co-accused Shiv Kumar are real brothers, whereas
Pramod and Rajendra who are the sons of Ram Kumar are agriculturist.
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Only Bholi had criminal antecedents. He further stated that he had
informed the police that the cattles of Sai Lal and Awdhesh had caused
damage to the crop of Manraman, but could not explain as to why this fact
is not mentioned in his police statement, Ex. D.1.
23. It is not out of place to mention here that no fracture of hand or leg
was found in the post mortem report of the deceased Manraman.
24. Biharilal (P.W.3) is also an eye-witness. He has stated that the
incident took place on 11-3-2009. It was about 2-2:30 P.M. He was
preparing fodder for his cattles, and Manraman was sitting in front of his
house. At that time, the co-accused Shiv Kumar came. Manraman scolded
him as to why he is involved in quarrel. In reply, it was stated by Shiv
Kumar, that you are alleging that he abuses him, and now he would fuck
his mother. Thereafter, Shiv Kumar and Manraman started quarreling with
each other. They were separated by this witness. Thereafter, Shiv Kumar
went back to his house. After 10 minutes, Omkar Patel came to the house
of Manraman and also called Rajendra, Shiv Kumar, Ram Kumar,
Awdhesh, Sai Lal, Rakesh and Pramod. All of them started abusing
Manraman. Manraman was inside his house. The accused persons dragged
Manraman out of his house and started assaulting him in the courtyard of
Surendra. All the accused persons were assaulting by fists. Manraman was
shouting for help, but Omkar replied that now he is pleading for mercy but
he would be killed. Thereafter, Shiv Kumar strangulated Manraman with
the help of his shirt and Awdhesh had caught hold of hand of Manraman.
All the accused persons were assaulting Manraman. In cross-examination
he could not explain as to why the allegation that Rajendra called Shiv
Kumar, Ram Kumar, Awdhesh, Sai Lal, Rakesh and Pramod is not
mentioned in his police statement, Ex. D.2. He could not explain as to
why the allegation that Manraman was pleading for mercy but Omkar had
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threatened to kill him is not mentioned in his police statement Ex. D2.
Thus, from the evidence of Biharilal, it is clear that he had merely stated
that deceased Manraman was dragged from his house and he was assaulted
by fists. No further allegation was leveled against the appellant Ram
Kumar and the allegation of strangulating the deceased Manraman is
against Shiv Kumar.
25. Mohwati (P.W.5) has also narrated the same theory. She stated that
Shiv Kumar was abusing her father-in-law. Thereafter, Shiv Kumar
dragged her father-in-law out of his house and accused persons started
assaulting him. It was further stated that Omkar strangulated the deceased.
Since, this witness had not supported the prosecution case in its entirety,
therefore, She was declared hostile and in cross-examination by public
prosecutor, She admitted that after initial abusing of deceased, Pramod,
Shiv Kumar, Ram Kumar, Rajendra, Rakesh, Awdhesh, Omkar and Sai
Lal came there and Omkar Patel instigated that the deceased be brought
out of his house and accordingly, the accused Shiv Kumar, Rakesh,
Pramod, and Rajendra entered inside the house and dragged the deceased
out of his house. She further stated, that thereafter, deceased was beaten by
Appellant Ram Kumar and other accused persons by fists. She could not
recollect as to whether Shiv Kumar had strangulated the deceased or not.
Thus, it is clear that except alleging that appellant Ram Kumar had also
come to the spot and had also assaulted the deceased by fists along with
others, no other allegation has been leveled against him.
26. Sudama Prasad (P.W.6) has merely stated that he had seen that
Omkar, Shiv Kumar, Ram Kumar, Pramod, Rakesh, Rajendra, Sai Lal and
Awdhesh were assaulting Manraman and did not support the prosecution
in respect of any other allegation. Even in cross-examination by public
prosecutor, nothing could be elicited from this witness, which may support
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the prosecution case. In cross-examination he has admitted that deceased
was being assaulted by fists. Thus, it is clear that except alleging that Ram
Kumar along with others was assaulting Manraman by fists, no other
allegation has been made by this witness.
27. Phoolmati (P.W.9) has also stated that Shiv Kumar came from the
side of the river and started abusing her husband. Her husband was
alleging about the dispute with regard to cattles of Sai Lal. Thereafter,
Biharilal pacified the situation. Thereafter, Omkar, Shiv Kumar, Tahku,
Chippu, Tidka, Sailal and Awdhesh came there and dragged her husband
out of the house and started assaulting her husband by fists and blows.
Shiv Kumar strangulated the deceased, whereas Omkar twisted his hand.
All were assaulting by fists and blows. She did not narrate anything about
Ram Kumar.
28. Thus, if the entire evidence led by prosecution against appellant
Ram Kumar is considered, then at the most it can be held that when Shiv
Kumar came, then he was scolded by the deceased. In reply, it was stated
by Shiv Kumar, that you are alleging that he abuses him, and now he
would fuck his mother.Thereafter, Shiv Kumar and Manraman started
quarreling with each other. They were separated by Biharilal (P.W.3).
Thereafter, Shiv Kumar went back to his house. After 10 minutes, Omkar
Patel came to the house of Manraman and also called Rajendra, Shiv
Kumar, Ram Kumar, Awdhesh, Sai Lal, Rakesh and Pramod. All of them
started abusing Manraman. Manraman was inside his house. The accused
persons dragged Manraman out of his house and started assaulting him in
the courtyard of Surendra. All the accused persons assaulted by fists. The
allegation of strangulating the deceased with the help of his shirt is against
the co-accused Shiv Kumar.
29. Now the only question is that whether the appellant Ram Kumar
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was the member of Unlawful Assembly and if yes, then what was the
common object of the said Unlawful Assembly. Whether Ram Kumar was
sharing common object with Shiv Kumar to kill the deceased by
strangulating him or not?
30. 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
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
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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
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
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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
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
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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
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.
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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.
31. 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)
„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
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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.‟"
32. 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
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
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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
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.).
NEUTRAL CITATION NO. 2024:MPHC-JBP:47428
33. 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.
34. Thus, the law is, therefore, clear 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.
35. 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.
Furthermore, except entering inside the house and dragging the deceased
out of the house and giving a beating to him by fists, nothing else was
alleged against them. Even Shiv Kumar was unarmed and he strangulated
the deceased with the help of shirt of deceased himself. Therefore, it is
clear that although the appellant formed an Unlawful Assembly with
NEUTRAL CITATION NO. 2024:MPHC-JBP:47428
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 the appellant never knew that this
incident may occur. Even at the time of strangulation, no overt act was
attributed to the appellant. Thus, it is held that the appellant Ram Kumar is
guilty of committing offence under Section 147, 294, 323/149, and
452/149 of IPC, but he is acquitted for the offence under Section 302/149
of IPC.
36. So far the question of sentence is concerned, the appellant Ram
Kumar has been sentenced to undergo R.I. of 1 year for offence under
Section 147 of IPC, R.I. of 1 year and a fine of Rs.100/- with default
imprisonment of 1 month for offence under Section 452/149 of IPC, R.I.
of 1 month for offence under Section 294 of IPC, R.I. of 1 month for
offence under Section 323/149 of IPC. The sentence awarded by the Trial
Court does not require any interference and it is hereby affirmed. The
Sentences shall run concurrently.
37. Ex-consequenti, the Judgment and Sentence dated 19-8-2010
passed by Add. Judge, Katni to the Court of Additional Sessions Judge,
Katni in S.T. No.172 of 2009 is affirmed to the extent of conviction of
appellant Ram Kumar for offence under Sections 147, 294, 323/149 and
452/149 of IPC and is set aside to the extent of conviction under Section
302/149.
38. As per the certificate issued by the Trial Court under Section 428
of Cr.P.C., the appellant Ram Kumar had remained in jail from 1-7-2009
till 12-1-2010.
39. The Appellant Ram Kumar was convicted by Judgment and
Sentence dated 19-8-2010. He was granted bail by order dated 8-11-2010.
Thereafter, it is clear from order dated 16-10-2020 passed by Supreme
NEUTRAL CITATION NO. 2024:MPHC-JBP:47428
Court in Cr.A. No.424/2020, the appellant surrendered on 22-2-2020.
Thus, it is clear that the appellant Ram Kumar has already undergone the
entire jail sentence of 1 year. Accordingly, his bail bonds are hereby
discharged. He is no more required in this case.
40. By way of abundant caution, it is clarified that if the appellant Ram
Kumar was not released after his Cr.A. No.424/2020 was allowed by
Supreme Court, then he be released immediately.
41. Let a copy of this judgment be sent back to the Trial Court along
with its record for necessary information and compliance.
42. This Cr.A. is hereby allowed to the extent mentioned above.
(G.S. AHLUWALIA) (VISHAL MISHRA)
JUDGE JUDGE
Arun*
