IMPORTANT POINT
Murder and rioting – Appellants cannot escape vicarious liability when their participation in crime was full and effective.

JUDGMENT :

Uday Umesh Lalit, J.

1. These appeals by special leave, at the instance of accused, named; (1) Rishiraj @ Tutul Mukharjee, (2) Samrat @ Laltu Mukharjee, (3) Vijay @ Hallo Jaiswal, (4) Ajay @ Chhotu @ Jijji Jaiswal and (5) Hani @ Koustubh Samadriya, challenge the common judgment and order dated 10.08.2018 passed by the High Court of Chhattisgarh at Bilaspur in Criminal Appeal Nos.452, 492, 522 and 538 of 2012.

2. The present proceedings arise out of the registration of crime pursuant to First Information Report No.187 of 2010 dated 09.06.2010, lodged with Torwa Police Station, District Bilaspur, Chhattisgarh, in respect of offences punishable under Sections 148, 148, 149, 302 of the Indian Penal Code, 1860 (“IPC”, for short) read with Sections 25 and 27 of the Arms Act, 1959 (“Arms Act”, for short). The Report made by one Jugal Kishore @ Gappu (subsequently examined as PW-12 in the trial) was to the following effect:

“I reside in the aforementioned address. I run Smoker Club in front of Geeta Hotel. On 08.06.2010, at night, I was in Surya Hotel and at that time at 12:06 in the night I got phone call from Gudda Sonkar, he said, “come immediately to Hotel Intercity.” I alongwith my friend Alok Singh reached Hotel Intercity in 5 -7 minutes in a Scorpio car and saw that outside the hotel bar at car parking Jai Jaiswal along-with his friends Manoj Agrawal, Hallo Jaiswal, Jijji @ Chotu Jaiswal, Rishi Mukherjee, Samrat Mukherjee and Hani Samdariya and with 2-3 other, whom I do not know, were standing surrounding Gudda Sonkar and his Jija Nanka Ghore and all were having altercation with Gudda Sonkar and in the meantime, Vijay @ Hallo with their friends started pushing Gudda Sonkar and Nanka Ghore, at that time Manoj Agrawal, who was standing near, said to Jai @ Gudda Jaiswal that you people cannot kill him, give me pistol, I will kill this … (Expression used, is not reproduced), saying so he snatched pistol from the hand of Jai Jaiswal and caused a gun-shot injury on the face (cheek) of Gudda Sonkar, as a result, Gudda fell on the ground. Thereafter, Jai Jaiswal snatched that pistol from the hand of Manoj Agrawal and caused two gunshot injury on the chest of Nanka Ghore, who has come to intervene in the matter, as a result of which Nanka fell on the ground. People started running here and there. Then, people standing near there started shouting, “ Gudda Sonkar is still alive, kill him”, on which, Jai Jaiswal after putting his leg on the chest of Gudda Sonkar caused a gunshot injury on his chest. In this way, with preplanned manner, Jai Jaiswal along-with his companions(friends) has killed Gudda and Nanka by firing 546 gunshot; and in this way, Vijay @ Hallo Jaiswal fled away driving his white Endeavour car bearing No.CG 10 F – 4499 and Jai Jaiswal fled away driving his white Ritz car bearing no. CG 10 FA 4499 with their friends. They all were armed with weapons. Jai @ Gudda Jaiswal has pistol, Vijay @ Hallo Jaiswal has 315 bore rifle, Ajay Jaiswal @ Jijji @ Chotu has .22 bore rifle, Rishi Mukherjee has 12 bore rifle and Hani Samdariya has 12 bore rifle. Alok Singh, Lallan, Mangal Singh, Bashir, Naim Memon, Praveen Keshri, Vinay Ghore and employees of Hotel Intercity have seen the incident. Gudda Sonkar was taken to CIMS Hospital in Scorpio and Nanka was taken to Apollo Hospital in police jeep, where both were declared dead by the doctor. I have seen the incident closely with my friend Alok Singh. I hid behind the car with my friends otherwise they would have also killed me.”

3. In the consequential investigation undertaken, following items were seized from the place of occurrence: -

“Blood-Stained Cement Brick.

5 Blank Cartridges of 7.65 MM Pistol, which bears the following KP 7.65 MM.

2 Mobile Phones of Nokia Company having SIM Cards.

1 White Maruti Suzuki Ritz bearing No. CG10H-7

1 Maroon Honda Activa bearing No. CG 10 EH 5326.”

4. The post-mortem on the body of deceased Gudda Sonkar was conducted by Dr. Chaturbhuj Mishra, (subsequen