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SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDU MALHOTRA, JJ.
State Of Madhya Pradesh - Appellant
Versus
Killu @ Kailash And Ors. - Respondents
Criminal Appeal Nos.1709-1710 of 2019 (Arising out of Special Leave Petition (Crl.) Nos.2497-2498 of 2019)
Decided on : 19-11-2019
Indian Penal Code, 1860 – Sections 302/149 – Murder – Common object – Appeal against acquittal – Case of prosecution that five accused had entered house of deceased on fateful night is accepted – It is also found that each one of them was separately armed and two of them were armed with sharp cutting weapons – Evidence on record fully establishes that present respondents had also accompanied those two accused persons who were found responsible for crime and all of them had entered house of deceased around midnight – Incident did not happen in any public place where presence of a non-participating accused could, at times, be labelled as that of an innocent bystander – Role played by each one of them was clear and specific – They had stormed into house in dead of night – Merely because other three accused persons i.e. present respondents had not used their weapons does not absolve them of responsibility and vicarious liability on which very idea of charge under Section 149 IPC is founded – For application of principle of vicarious liability under Section 149 IPC what is material to establish is that persons concerned were members of an unlawful assembly, common object of which was to commit a particular crime – High Court was not justified in granting benefit to those three accused – Presence of respondents in house of deceased; fact that they were armed; fact that all of them had entered house around midnight and fact that two out of those five accused used their deadly weapons to cause death of deceased was sufficient to attract principles of vicarious liability under Section 149 IPC – Testimony of eye witnesses, wife and son, who were occupants of same house, was quite clear and cogent – Acquittal as recorded by High Court set aside and judgment and order of conviction passed by Trial Court against respondents restored. (Paras 11, 12, 13, 14 and 15)
Facts of the case:
State, being aggrieved by the order of acquittal of accused has preferred instant appeals. After considering the evidence on record, the Trial Court concluded that all five accused were members of an unlawful assembly and had entered house of the deceased on the fateful night with the common object of causing death of the deceased and as such, they were guilty of the offence punishable under Section 302 read with Section 149 IPC.
Findings of Court:
High Court was not justified in entertaining a doubt that it could not be ruled out that the respondents were merely named along with other accused persons. There was absolutely no room for such doubt. The testimony of the eye witnesses namely the wife and the son, who were occupants of the same house, was quite clear and cogent.
Result : Appeals allowed.
JUDGMENT :
Uday Umesh Lalit, J.
1. Leave granted.
2. These Appeals question the judgment and order dated 29.06.2018 passed by the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal Nos.2676 of 2008 and 158 of 2009.
3. The basic facts as stated in the judgment under appeal are as under:-
“3. Prosecution story, in brief is that, accused/appellant No.4 Khushiram in Cr. Appeal No.2678 of 2008, who is uncle [mousia] of the son of the deceased, had some enmity with Balaprasad Pathak [since deceased]. He along with other accused persons entered in the house of Balaprasad Pathak in the mid night [2 O’clock] of 23.05.2005. Deceased was sleeping with his family members. Accused/appellants [in Cr.Appeal No.2678/2008] namely; Khushiram and Himmu @ Hemchand were armed with axe, appellant Devendra was armed with Ballam and other two accused namely Killu @ Kailash and Kailash Nayak were armed with lathi. Two accused persons namely; Khushiram and Himmu @ Hemchand [appellants No.2 and 4 in Cr. Appeal No.2676/2008] inflicted injuries by axe on the person of deceased. Allegation against other accused persons is of exhortation. Deceased died on the spot. Report of the incident was lodged by (PW-5) Rameshwar Pathak. Police conducted investigation and filed charge-sheet. During trial, appellants abjured their guilt and pleaded innocence. …”
4. In support of its case, the prosecution relied upon the testimony of PW3-Prabha Rani, wife of the deceased, PW4-Devendra Kumar, son of the deceased and PW5-Rameshwar Pathak, a relative of the deceased, who had lodged the First Information Report (‘the FIR’, for short). It was narrated in the FIR that after having received information about the assault, the informant had gone to the house of the deceased where PW3 narrated the incident to him, based on which the reporting was made by the informant. The medical evidence was unfolded through the testimony of PW2-Dr. R.K. Bhardwaj, who had conducted the post-mortem. He had found following injuries on the person of the deceased:-
“(i) Incised wound over left anterior part of scalp 4”x1/2” underlaying bone and brain matter cut inhacranial cavily pilled with blood.
(ii) Incised wound 5” x 1” x 2 1/2” uppermost part of chest and adjoining anterior part of neck slightly left side obliquely placed undergone and blood vessels cut.”
According to him, the injuries were ante-mortem and the deceased had died as a result of those injuries.
5. In due course, five accused were tried in connection with the murder of said Balaprasad Pathak for the offence punishable under Section 302 read with Section 149 IPC in Sessions Trial No.173 of 2005 before the First Additional Sessions Judge, Damoh, Madhya Pradesh. After considering the evidence on record, the Trial Court concluded that all the five accused were members of an unlawful assembly and had entered the house of the deceased on the fateful night with the common object of causing death of the deceased and as such, they were guilty of the offence punishable under Section 302 read with Section 149 IPC. Holding them guilty of the aforesaid offence, by its judgment dated 19.12.2001, the Trial Court sentenced them to suffer life imprisonment and to pay fine in the sum of Rs.500/-each, in default whereof, each of the convicts was to undergo further rigorous imprisonment of three months. The view so taken by the Trial Court was challenged by way of Criminal Appeal No.2676 of 2008 by four accused while Criminal Appeal No.158 of 2009 was filed by accused Kailash Nayak.
6. Insofar as accused Himmu @ Hemchand and Khushiram, who were armed with sharp cutting weapons, the High Court found as under:-
“16. Appellants No.2 and 4 namely Himmu @ Hemchand and Khushiram were armed with axe, i.e. deadly weapons. They inflicted blows on the vital part of deceased as a result of which, deceased died on the spot. Evidence of causing injury by axe is against the appellants Himmu @ Hemchand and Khushiram. Hence, in our opinion, the Trial Court has r
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