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SUPREME COURT OF INDIA
B.R. GAVAI, B.V. NAGARATHNA, PRASHANT KUMAR MISHRA, JJ.
Parshuram - Appellant
Versus
State of M.P. - Respondent
Criminal Appeal No. 524 of 2021 With Criminal Appeal No. 3416 of 2023 [Arising out of SLP (Crl.) No. 1718 of 2022]
Decided On : 03-11-2023
(A) Indian Penal Code, 1860 – Section 149 – Common object of unlawful assembly – It is not necessary that every person constituting unlawful assembly must play active role for convicting him with aid of Section 149 of IPC – What has to be established by prosecution is that a person has to be a member of unlawful assembly – Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. (Para 14)
(B) Indian Penal Code, 1860 – Sections 302/149, 326/149, 324/149, 323/149 and 148 – Murder, grievous hurt and rioting – Common object of unlawful assembly – Life sentence – There is no specific role attributed to appellants of assaulting deceased – However, since appellants were members of unlawful assembly, it is not necessary that such a person, for being convicted, must have actually assaulted deceased – No fatal weapons were used by complainant party in assaulting accused persons – However, on the contrary, accused persons had used fatal weapons – Non-explanation of injuries on persons of accused would create doubt, as to, whether, prosecution has brought on record real genesis of incident or not – Cross case was also registered against complainant party for injuries sustained by accused persons – It is quite possible that accused persons did not have intention to cause death of anybody from complainant party – It is possible that accused persons only assembled to teach a lesson to complainant party on account of happening on a day prior to day of occurrence of present incident – Appellants are entitled to benefit of doubt – Conviction under Section 302 IPC would not be sustainable – Prosecution has failed to prove beyond reasonable doubt that unlawful assembly had an intention to cause death of deceased – As such, case would fall under Part-II of Section 304 of IPC – Conviction under Section 302 IPC altered to Part-II of Section 304 of IPC – Appellants sentenced to suffer rigorous imprisonment for 7 years. (Paras 15, 19, 23, 26 and 27)
Facts of the case:
Present appeals challenge the common judgment and order dated 14th March 2018, passed by Division Bench of High Court of Madhya Pradesh at Gwalior, in Criminal Appeal Nos. 243 and 260 of 2005, whereby, High Court upheld judgment and order dated 30th March 2005, passed by Trial Court convicting appellants and sentencing them to imprisonment for life for the offences punishable under Section 302 read with Section 149 of Indian Penal Code, 1860, to undergo rigorous imprisonment for seven years for offence punishable under Section 326 read with Section 149 of IPC, to undergo rigorous imprisonment for six months for offence punishable under Section 324 read with Section 149 of IPC, to undergo rigorous imprisonment for three months for offence punishable under Section 323 read with Section 149 of IPC, and to undergo rigorous imprisonment for three months for the offence punishable under Section 148 of IPC.
Findings of Court:
Witnesses are interested witnesses. The injuries sustained by three accused persons are not at all explained. Trial court and the High Court have not considered this aspect of the matter.
Result : Appeals disposed of with directions.
JUDGMENT :
B.R. Gavai, J.
1. Leave granted in appeal arising out of SLP (Criminal) No. 1718 of 2022.
2. These appeals challenge the common judgment and order dated 14th March 2018, passed by the Division Bench of the High Court of Madhya Pradesh at Gwalior, in Criminal Appeal Nos. 243 and 260 of 2005, whereby, the High Court upheld the judgment and order dated 30th March 2005, passed by the 1st Additional Sessions Judge, Shivpuri (Madhya Pradesh) (hereinafter referred to as the “trial court”) in Sessions Trial No. 09/2002, convicting the appellants and sentencing them to imprisonment for life for the offences punishable under Section 302 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”), to undergo rigorous imprisonment for seven years for the offence punishable under Section 326 read with Section 149 of IPC, to undergo rigorous imprisonment for six months for the offence punishable under Section 324 read with Section 149 of IPC, to undergo rigorous imprisonment for three months for the offence punishable under Section 323 read with Section 149 of IPC, and to undergo rigorous imprisonment for three months for the offence punishable under Section 148 of IPC.
3. Shorn of details, the facts leading to the present appeals are as under:
3.1 It is the prosecution case that the appellant Jalim Singh had constructed a shed (taparia) on the passage of the village which is used by the cattle. Since the said shed (taparia) was damaged by a buffalo belonging to the complainant party, appellant Jalim Singh had beaten that buffalo with lathi and drove that buffalo away. Thereafter, appellant Jalim Singh, Ram Sewak @ Sewak, Ram Lakhan @ Lakhan, Ramrup @ Roopa, Ram Sahai, Parshuram (appellant in Criminal Appeal No. 524 of 2021) and Mangal Singh came to the house of Chironji (PW-6). On seeing this, Chironji (PW-6) ran away from the house out of fear. Thereafter, accused persons broke the doors and entered his house. It is the prosecution case that the accused persons caught and beat Madan, Leelabai and Kailash. Thereafter, all the accused persons fled from there. When Chironji (PW-6) came back to his house, he was informed about the incident.
3.2 It is further the prosecution case that on 6th October 2001 at 09.15 am, when Chironji (PW-6), Madan (deceased), Raghuveer, Patiram (PW-13), Leelabai (died natural death during pendency of trial), Ramhet (PW-12), Gyani (PW-14) and Kailash (PW-15), from the complainant party were going on a tractor to the Police Station to lodge the complaint, the accused persons, armed with lethal weapons like barchi, sword, spear, lathi and country-made bomb (hathgola), waylaid them to cause injuries to them.
3.3 After intercepting the victims, Ram Lakhan who was carrying a barchi, stabbed Madan on the left side of his chest, as a result of which Madan fell down unconscious; thereafter, Ram Sewak @ Sewak, who was carrying a gupti, caused injuries to the complainant on the right side of his torso (Bakha), and gave another blow on his head; and thereafter, Ramrup @ Roopa who was carrying a sword, caused injury to the complainant on his shoulder. Other accused persons, including the appellants herein, who were also armed with lethal weapons, caused grievous injuries.
3.4 The original First Information Report (for short, “FIR”) was registered for the offences punishable under Sections 307, 323, 452, 147, 148 and 149 of IPC. However, on the death of Madan, the same came to be converted to the one under Section 302 IPC.
3.5 The accused persons were arrested, and after completion of investigation, the chargesheet was filed in the Court of Judicial Magistrate 1st Class, Kolaras. Since the case was exclusively triable by the Sessions Court, the case was committed to the Court of 1st Additional Sessions Judge, Shivpuri, on 10th January 2002.
3.6 Before the trial court, the accused persons (in total nine), denied the charges levelled against them, stating that they have been falsely implicated becaus
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