IMPORTANT POINT
Section 149 IPC - applicability.

JUDGMENT

Ranjan Gogoi, J.-Four of the seven accused persons whose conviction under Section 302 IPC and the sentence of life imprisonment has been affirmed by the High Court of Chhattisgarh have filed the instant appeals challenging Judgment and Order dated 30th November, 2009 of the High Court. We have heard the learned counsels for the appellants as well as the learned counsel for the State.

2. The short case of the prosecution is that on 05.12.2000 at about 8.55 p.m., Santosh (PW-4) lodged a FIR in the Ambikapur Police Station stating that a short while ago i.e. at about 8.40 p.m. while he was standing in front of his house alongwith deceased Vinod and Amit (PW-13), accused Gopi Ghasia(A-6) and Ranu(A-5) had come there in a state of intoxication. According to the first informant, an altercation took place in the course of which he as well as Vinod had slapped accused Gopi. Enraged, the accused persons went away threatening to kill them. According to the first informant, after about an hour, the four accused appellants. i.e. Bharat, Dhruv, Sanjay and Rupesh accompanied by accused Ranu, Gopi and Jitender came to the place armed with different kinds of dangerous weapons. Specifically it was mentioned that accused Gopi had come armed with a Nepali Khukhri; accused Ranu had a knife with him whereas accused Jitender was armed with a Nan Chaku. In so far as accused Bharat and Dhruv are concerned, it was claimed by the first informant that while the former was armed with an iron rod, accused Dhruv had carried a leather belt in his hand. In the FIR it was further alleged that accused Ranu had assaulted the first informant Sanjay (PW-4) with a knife but he had escaped without any serious injuries. However, accused Gopi and Ranu gave knife blows to the deceased Vinod on his chest and stomach whereas accused Dhruv and Bharat had assaulted Amit Kashyap (PW-13) with the belt and iron rod that they had carried. According to the first informant, accused Rupesh and Sanjay had instigated the other accused to kill the deceased Vinod. Due to the assault committed on Vinod, he had sustained injuries for which reason he had to be taken to the hospital.

3. On receipt of the FIR a case under Sections 147,148, 149 and 307 of the IPC was registered. However as the injured Vinod died at about 9.15 p.m. on the same night, the offence under Section 302 was added in the FIR. The crime alleged was duly investigated and on completion thereof all the seven accused were charge sheeted under Section 147, 148, 302/149 of IPC. Thereafter, the case was committed for trial to the court of sessions and charges under Sections 147, 148, 302/149 IPC were framed against the accused persons. As the accused claimed innocence a regular trial was held, at the conclusion of which all the seven accused were found guilty of the charge under Section 147, 148, 302/149 IPC. They were accordingly sentenced. The separate appeals filed by the seven accused before the High Court having been dismissed by the impugned order dated 30.11.2009, the accused Bharat, Dhruv, Sanjay and Rupesh have challenged the aforesaid order of the High Court in the appeals filed by them before this Court.

4. Before adverting to the core legal issue arising in the present appeals, namely, the liability of the accused appellants for the offence under Section 302 IPC on the basis of their constructive liability, if any, under Section 149 IPC, it will be necessary to notice, though very briefly, the salient part of the evidence adduced by the prosecution in support of the charges levelled.

5. Of the fifteen witnesses examined by the prosecution, the evidence of Sonu Kewat (PW-1), Suraj Dass (PW-2), (though declared hostile), Ram Naresh (PW-3), Prakash Suryavanshi (PW-5), Imtiaz Ali (PW-6) and Dr. S.K. Sinha (PW-7) would be relevant. Equally, the evidence of (PW-4) and PW-13 who had been examined as the eye-witnesses to the incident will have to be noticed in some details.

6. From the deposition of PW-1, PW