The main legal point established in the judgment is the application of Section 149 IPC to determine the common object of the unlawful assembly and the vicarious liability of the accused, as well as the consideration of Exception 4 to Section 300 IPC to determine the nature of the offence committed by the accused.

JUDGMENT :

GOUTAM BHADURI, J.

1. The present appeals are against the judgment dated 24.01.2020 passed by the II Addl. Judge to the Court of I Addl. Sessions Judge, Raipur in Sessions Trial No. 86/2019 whereby the appellants have been convicted and sentenced as under:

Conviction and Sentence of Appellant Devesh in Cr. Appeal No. 310/2021

Conviction & sentence of Appellants Vikas Verma, Karan Rathore, Rupesh Kumar Verma, Sanjay @ Monu in Cr. Appeal No. 399/2020

2. Both these appeals are decided together by this common judgment as the facts and evidence collected by the prosecution against all the accused are similar.

3. The brief facts of the case are that on 21.12.2018 one Sonu Meshram lodged a report informing that while he was standing near a Baba Shop namely Krishna Provisions situated near his house and was talking with his friend, his tenant Krishna Nepal the deceased, was going towards the shop. At that time, all the accused came and started assaulting Krishna Nepali with Club, Lathi (Danda), Cricket Bat and further assaulted by knife. Four people were named in the FIR i.e. Vikash Verma (A-1), Karan Rathore (A-2), Rupesh Verma (A-3) and Monu Porte @ Sanjay (A-4) who were residents of Vikas Nagar. After the assault was made, Krishna Nepali fell down on the ground. He was rushed to the hospital but succumbed to the injuries. The FIR (Ex.P-5) was initially lodged under section 302 read with section 34 IPC against 3 accused. Subsequently, the investigation was conducted and while the charge sheet was filed u/s 147, 148, 149, 302 IPC against all the accused and in respect of 3 other juveniles Sandeep Mule, Ritik Mulchandani & Kishan Chandel, the trial commenced separately before the Juvenile Board. Before the Court of Sessions the present accused abjuried the guilt and the trial commenced on denial of charges.

4. The prosecution on its behalf examined as many as 13 witnesses and exhibited 41 documents. The prosecution has primarily relied on the statements of PW-3 Yogesh Meshram, PW-4 Aditya Lonharkar, PW-7 Avinash Kosle & PW-9 Ranjit Singh @ Golu as eye-witnesses. No evidence was adduced on behalf of the defence. The learned trial Court after evaluating the facts and evidence convicted and sentenced the accused as aforesaid. Hence this appeal.

5...... (i) Learned counsel for the appellants in both the appeals would submit that the conviction u/s 302 IPC with the aid of section 149 IPC is not made out as the evidence adduced by the prosecution do not suggest that there was meeting of mind and there was no common object to kill deceased Krishna Nepali.

(ii) He would further submit without prejudice that the way the incident happened would show that the quarrel took place in the wake of an earlier dispute and had there been any intention to kill, the accused would have armed with the lethal weapons. He went through the statements of witnesses and submits that no inference can be drawn from the statements of witnesses and the prosecution has failed to prove the same.

(iii) He further submits that there exists difference of time of incident as in the FIR (Ex.P-5) lodged by PW-3 Yogesh Meshram the time of incident is shown as 4.30 p.m. whereas he has stated in his evidence before the Court that