The unlawful assembly's common object did not support the charge of murder; liability under Section 149 requires proof of foresight for the act committed, demonstrated through individual roles during the incident.

JUDGMENT :

G.S. AHLUWALIA, J.

1. By this common Judgment, Cr. Appeal No. 2874 of 2020 filed by Sai Lal Patel, Awdhesh Patel, Rakesh @ Tidku Patel, Rajendra @ Chiju Patel and Pramod @ Bholi Patel and Cr. Appeal No. 3171 of 2020 filed by Omkar Prasad Patel shall be decided.

2. It is not out of place to mention here that initially the co-accused Ram Kumar Patel and Shiv Kumar Patel were tried and the remaining co-accused persons, who are appellants in Cr. Appeal Nos. 2874 of 2020 and 3171 of 2020 were absconding.

3. Ram Kumar Patel and Shiv Kumar Patel were convicted for offence under Sections 147 , 452/149, 294, 323/149, 302/149 of IPC by Judgment and Sentence dated 19-8-2010 passed by Add. Judge to the Court of Add. Sessions Judge, Katni in S.T. No. 172 of 2009. Against their conviction, Ram Kumar preferred Cr. Appeal No. 1670/2010 and Shiv Kumar preferred Cr. Appeal No. 2335/2010. Both the Criminal Appeals were dismissed by co-ordinate bench of this Court by Judgment dated 14-9-2018.

4. Being aggrieved by dismissal of appeal, Ram Kumar preferred Cr. Appeal No. 424/2022, which was allowed by Supreme Court by order dated 14-3-2022 on the ground that the appeal was dismissed in the absence of the appellant-Ram Kumar and his Counsel and the matter has been remanded back. Cr. Appeal No. 1670/2010 filed by Ram Kumar is also listed with these Criminal Appeals for analogous hearing. Since, Ram Kumar was tried separately, therefore, in the light of Judgment passed by Supreme Court in the case of A.T. Mydeen Vs. The Assistant Commissioner, Customs Department, decided on 31.10.2021 passed in Cr. Appeal No. 1306 of 2021, the evidence led in the trial of Ram Kumar cannot be read in the present case, therefore, the appeal filed by Ram Kumar, which has been heard analogously, shall be decided separately.

5. So far as Shiv Kumar is concerned, he did not challenge the dismissal of his appeal and it has been informed by Counsel for the Appellants that Shiv Kumar has been released from jail on 2nd of October, 2023 after undergoing the entire jail sentence.

6. Both the Criminal Appeals have been filed against the Judgment and Sentence dated 30-1-2020 passed by IVth A.S.J. Katni in S.T. No. 172 of 2009, by which all the appellants have been convicted and sentenced for the following offences:

All sentences to run concurrently

7. It is not out of place to mention here that although the incident took place on 11-3-2009, but the appellant Sai Lal Patel was arrested on 17-8-2012, Awdhesh Patel was arrested on 17-8-2012, Rakesh was arrested on 5-9-2012, Rajendra was arrested on 5-9-2012, Omkar was arrested on 16-8-2012 and Pramod @ Bholi was arrested on 20-4-2011.

8. Since Pramod @ Bholi was arrested on 20-4-2011 and remaining co-accused namely Sai Lal Patel, Awdhesh Patel, Rakesh, Rajendra and Omkar were absconding, therefore, supplementary charge sheet was filed against Pramod @ Bholi. Some of the witnesses were also examined, however, after the arrest of all the remaining accused persons, the Trial of Pramod @ Bholi was clubbed with the Trial of other appellants and witnesses who were already examined in respect of Pramod @ Bholi were re-summoned and they were examined in respect of other appellants. By common judgment, the Trial of all the appellants was decided.

9. According to the prosecution case, on 11-3-2009, Biharilal lodged an FIR alleging that he is the resident of village Kumharwara and is an agriculturist by profession. At 2:30 P.M. he was preparing fodder in his courtyard situated in front of the house of his uncle Manraman Patel. Manraman Patel was sitting outside his house. At that time, co-accused Shiv Kumar Patel came. Manra