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Saturday, April 20, 2013

sec.149 common intention = where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under the second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as to what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. The number and nature of injuries is also relevant to be considered. “Common object” may also be developed at the time of incident.” ; Delay in sending F.I.R. not fatal = when there is delayed despatch of the FIR, it is necessary on the part of the prosecution to give an explanation for the delay. We may further state that the purpose behind sending a copy of the FIR to the concerned magistrate is to avoid any kind of suspicion being attached to the FIR. Such a suspicion may compel the court to record a finding that there was possibility of the FIR being ante-timed or ante-dated. The court may draw adverse inferences against the prosecution. However, if the court is convinced as regards to the truthfulness of the prosecution version and trustworthiness of the witnesses, the same may not be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case.


Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 223 OF 2008
Rattiram & Ors. ...
……..Appellants
Versus
State of M. P. Through
Inspector of Police ………Respondent
WITH
CRIMINAL APPEAL NO. 458 OF 2008
Satyanarayan & ors. …......Appellants
Versus
The State of Madhya Pradesh Through
Incharge, Police Station Cantt. ………Respondent
J U D G M E N T
Dipak Misra, J.
In these two appeals assail is to the judgment of
conviction and order of sentence passed by the Division
Bench of the High Court of Judicature, Madhya Pradesh atPage 2
Jabalpur, in Criminal Appeal No. 1568 of 1996 whereby the
High Court concurred with the judgment of conviction and
order of sentence passed by the learned Additional
Sessions Judge, Sagar, in Sessions Trial No. 97 of 1995,
except in respect of one Gorelal, Appellant No. 2 before
the High Court and Accused No. 2 before the trial court,
wherein the present appellants along with Gorelal stood
convicted for offences under Section 302 read with
Section 149 Indian Penal Code and other offences and
sentenced to imprisonment for life with fine of Rs.1000/-,
in default of payment of fine, to further undergo rigorous
imprisonment for three months.
2. The factual score, as depicted, is that on 29.9.1995,
deceased Dhruv @ Daulat along with Ashok Kumar,
PW-5, Dheeraj, PW-6, Naresh, PW-7, and Leeladhar,
PW-12, was returning home about 11.00 p.m. after
attending a wrestling event which was organised at
“Kher Mata” (temple) in Makronia, a village in the
district of Sagar. As Ashok Kumar, PW-5, complained
of pain in the stomach, all of them went to the shop
of Gorelal for purchasing medicine and when they
2Page 3
reached the shop, all the accused persons coming
from the house of Chhotelal surrounded deceased
Daulat and started assaulting him and despite the
beseeching and imploring by the companions the
accused persons continued the assault, as a result of
which the deceased fell unconscious. As the
prosecution story proceeds, he was taken to the
hospital and, eventually, succumbed to his injuries.
On an FIR being lodged, the criminal law was set in
motion and after investigation the appellants were
charge-sheeted under Section 3(1)(x) of the
Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (for short “the
Act”), but, eventually, charges were framed under
Sections 147, 148 and 302 read with Section 149 IPC.
The accused persons pleaded innocence and false
implication and claimed to be tried.
3. The prosecution, in order to establish its case,
examined 13 witnesses and exhibited number of
documents. The defence chose not to adduce any
evidence.
3Page 4
4. The learned trial Judge, appreciating the evidence on
record, came to hold that the prosecution had
brought home the charges against accused, Mohan,
under Sections 148 and 302 IPC and against the
remaining accused persons under Sections 147 and
302 IPC read with Section 149 IPC and apart from
imposing separate sentences under Section 147 IPC
sentenced each of them to suffer imprisonment for
life as stated hereinbefore.
5. Being dissatisfied with the judgment of conviction,
the appellants along with others preferred a singular
criminal appeal. In appeal, apart from raising various
contentions on merits, it was submitted that the
entire trial was vitiated as it had commenced and
concluded without committal of the case to the Court
of Session by the competent court inasmuch as the
Sessions Court could not have directly taken
cognizance of the offence under the Act without the
case being committed for trial. To bolster the said
contention reliance was placed on Gangula Ashok
4Page 5
and Another v. State of Andhra Pradesh1
, Moly
and Another v. State of Kerala2
 and
Vidyadharan v. State of Kerala3
. The High Court
relied on decision in State of M. P. v. Bhooraji &
Ors.4
 and treated it to be a binding precedent and
declined to set aside the conviction or remit the
matter for de novo trial. The High Court proceeded
to deal with the appeals on merits and came to hold
that except accused Gorelal all other accused
persons were present on the scene of occurrence and
had participated in the assault and, accordingly,
maintained the conviction and sentence in respect of
other accused persons and acquitted appellant No. 2
before the High Court.
6. For the sake of completeness, it is necessary to state
that when the matter was listed before a two-Judge
Bench, it was noticed that there was a conflict
between two lines of judgment of this Court and,
accordingly, referred the matter to the larger Bench.
1 AIR 2000 SC 740
2 AIR 2004 SC 1890
3
(2004) 1 SCC 215
4 AIR 2001 SC 3372
5Page 6
The three-Judge Bench noticed that the real conflict
or discord was manifest between Moly and Another
(supra), Vidyadharan (supra) on one hand and
Bhooraji & Ors. (supra) on the other and after due
deliberation in Rattiram and others v. State of
Madhya Pradesh through Inspector of Police5
,
came to hold as follows: -
“66. Judged from these spectrums and
analyzed on the aforesaid premises, we
come to the irresistible conclusion that the
objection relating to non-compliance of
Section 193 of the Code, which eventually
has resulted in directly entertaining and
taking cognizance by the Special Judge
under the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989, does not vitiate the trial and on
the said ground alone, the conviction
cannot be set aside or there cannot be a
direction of retrial and, therefore, the
decision rendered in Bhooraji (supra) lays
down the correct law inasmuch as there is
no failure of justice or no prejudice is
caused to the accused.
67. The decisions rendered in Moly
(supra) and Vidyadharan (supra) have
not noted the decision in Bhooraji (supra),
a binding precedent, and hence they are
per incuriam and further, the law laid down
therein, whereby the conviction is set
aside or matter is remanded after setting
aside the conviction for fresh trial, does
not expound the correct proposition of law
5
(2012) 4 SCC 516
6Page 7
and, accordingly, they are hereby, to that
extent, overruled.”
7. As the controversy on the said score has been put to
rest, we are presently required to advert to the
merits of the appeal. At this juncture, we may state
that Chhotelal died after pronouncement of the
decision in appeal by the High Court and Babulal has
expired during the pendency of the appeal before
this Court and, therefore, the appeal, as far as
Babulal is concerned, stands abated.
8. Mr. Fakhruddin, learned senior counsel for the
appellants in Criminal Appeal No. 223 of 2008, has
contended that the finding by the trial court which
has been accepted by the High Court that all the
accused persons had assaulted is founded on
absolutely non-appreciation of evidence inasmuch as
there is nothing to implicate them in any of the overt
acts. It is his alternative submission that all the
accused were not present at the scene of occurrence
and, therefore, the conviction in aid of Section 149
7Page 8
IPC of all the appellants herein is wholly
unsustainable.
9. Mr. Anis Ahmed Khan, learned counsel appearing for
the appellants in Criminal Appeal No. 458 of 2008,
has submitted that there has been delay in lodging
the FIR and further copy of the report had not been
sent to the Magistrate as required under Section 157
of the Code and, therefore, the trial is vitiated. It is
also his submission that due to previous animosity
the informant has tried to rope in number of persons
though they had no role to play in the commission of
the crime in question and, hence, they deserve to be
acquitted.
10. Per contra, Ms. Vibha Dutta Makhija, learned counsel
for the State, would contend that there is evidence
implicating all the accused persons in the assault and
even assuming no overt act is attributed to them,
they were a part of the unlawful assembly being
aware of the common object of assault and, hence,
the conviction under Section 149 IPC does not
warrant any interference.
8Page 9
11. First, we shall advert to the issue whether all the
accused persons had participated in the assault or
not. Be it noted, the learned trial Judge as well as the
High Court has taken into consideration that Ext. P-7,
the FIR and relied on the testimony of PW-5, Ashok
Kumar and PW-12, Leeladhar, to record a finding that
all the accused persons had assaulted the deceased.
On a perusal of the FIR, it is seen that the allegation
against Ramesh, Kanchedi, Babulal, Ramcharan and
Rattiram is that they came with lathis to assault the
deceased. There is mention in the FIR that Kanchedi
Kurmi hit the deceased with a big piece of stone and
Ramcharan Kurmi hit with a stick. The accused
Babulal, Rattiram, Satyanarayan and Ramesh gave
blows with fists and kicks. In the FIR it has been
mentioned that Chhotelal exhorted to kill the
deceased and Dhaniram Kurmi, Govardhan Kurmi,
Badri Kurmi and Mohan Kurmi assaulted and specific
overt acts have been attributed to them. Ashok
Kumar, PW-5 in examination-in-chief has deposed
that Dhaniram hit Daulat on the head with a stick,
9Page 10
Mohan gave a blow on the head with a sword and
Badri and Govardhan hit him on the back and hand.
Thereafter, he has proceeded to depose that rest of
the accused gave fists and kick blows. In the crossexamination, this witness, who had lodged the FIR,
has stated that accused Chhotelal, Kanchedi,
Ramcharan, Ramesh and Gorelal did not possess
sticks. Thus, he has not stated that Kanchedi hit with
a big stone. Leeladhar, PW-12, has stated about the
exhortation made by Chhotelal and the blows given
by Dhaniram and Mohan. As far as Chhotelal,
Babulal, Satyanarayan, Rattiram and Gorelal are
concerned, he has stated that they hit the deceased
with their feet and clenched fists. In the crossexamination he has deposed that Babulal was not
present at the place of occurrence. He has also
stated that Daulat did not sustain any lathi blow on
his legs. He has admitted that some persons were
unarmed. Dheeraj, PW-6, and Naresh, PW-7, who
were cited as eye-witnesses, have turned hostile.
The learned trial Judge, as is evident from the
10Page 11
judgment, has not adverted to this facet and reached
the conclusion that all the accused persons were
armed and had assaulted the deceased. The High
Court in one line has stated that considering the
overall evidence on record it could be said that
barring Gorelal all the other accused persons were
present and jointly assaulted the deceased. The
concurrence of the High Court, we may respectfully
state, is bereft of any scrutiny of evidence. On a
studied evaluation of the evidence on record, we are
of the considered opinion that Chhotelal exhorted
and he along with Dhaniram, Mohan, Badri and
Govardhan assaulted the deceased. We are disposed
to think so because there is clear cut evidence of
their involvement and PW-5 and PW-12 have
categorically spoken about their overt acts whereas
as far as others are concerned, there are material
contradictions about their assaulting the deceased.
Thus, their involvement in any overt act is not proven
by the prosecution and, therefore, we are unable to
accept the view of the learned trial Judge which has
11Page 12
been concurred with by the High Court that all the
accused persons had assaulted the deceased.
12. The next limb of submission relates to justifiability of
conviction of all the accused persons in aid of Section
149 IPC. The learned trial Judge has held that all the
accused persons were present and had assaulted the
deceased. The High Court has opined that there is
no evidence against the appellant Gorelal. Ms.
Makhija, learned counsel for the State would contend
that there is ample material that the accusedappellants were present at the place of occurrence
and their common object is clear from the facts and
circumstances that they shared the common object
to assault the deceased and they were in know of the
act to be done. Elaborating the same, it is urged by
her that it is not a case where the accused persons
were just bystanders but, in fact, came with others
being aware that some of the accused persons were
carrying lathis amd Mohan was carrying a sword. Mr.
Fakhruddin and Mr. Anis Ahmed Khan, learned
counsel for the appellants, per contra, would
12Page 13
vehemently urge that the prosecution has really not
proven, barring the people who were involved in the
assault, that the other accused persons were really
present and further assuming that they were present,
their mere presence would not attract the concept of
common object as engrafted under Section 149 IPC.
13. Before we proceed to analyse the evidence on this
score, we think it appropriate to refer to certain
pronouncements pertaining to attractability of
Section 149 IPC. In Baladin and others v. State of
Uttar Pradesh6
, a three-Judge Bench has opined as
follows: -
“It is well settled that mere presence in an
assembly does not make such a person a
member of an unlawful assembly unless it
is shown that he had done something or
omitted to do something which would
make him a member of an unlawful
assembly, or unless the case falls under
section 142, Indian Penal Code.”
14. The dictum in the aforesaid case was considered by a
four-Judge Bench in Masalti v. The State of Uttar
Pradesh7
, wherein the Bench distinguished the
6 AIR 1956 SC 181
7 AIR 1965 SC 202
13Page 14
observations made in the case of Baladin (supra) on
the ground that the said decision must be read in the
context of special facts of that case and may not be
treated as laying down an unqualified proposition of
law. The four-Judge Bench, after explaining the said
decision, proceeded to lay down as follows: -
“It would not be correct to say that before
a person is held to be a member of an
unlawful assembly, it must be shown that
he had committed some illegal overt act or
had been guilty of some illegal omission in
pursuance of the common object of the
assembly. In fact, S. 149 make it clear
that if an offence is committed by any
member of an unlawful assembly in
prosecution of the common object of that
assembly, or such as the members of that
assembly knew to be likely to be
committed in prosecution of that object,
every person who, at the time of the
committing of that offence, is a member of
the same assembly, is guilty of that
offence; and that emphatically brings out
the principle that the punishment
prescribed by S. 149 is in a sense vicarious
and does not always proceed on the basis
that the offence has been actually
committed by every member of the
unlawful assembly.”
15. In Lalji v. State of U.P.8
 it has been observed that
common object of the unlawful assembly can be
8
(1989) 1 SCC 437
14Page 15
gathered from the nature of the assembly, arms used
by them and the behaviour of the assembly at or
before scene of occurrence. It is an inference to be
deduced from the facts and circumstances of each
case.
16. In Bhargavan and others v. State of kerala 9
it
has been held that it cannot be laid down as general
proposition of law that unless an overt act is proved
against a person who is alleged to be a member of an
unlawful assembly, it cannot be said that he is a
member of an assembly. The only thing required is
that he should have understood that the assembly
was unlawful and was likely to commit any of the
acts which fall within the purview of Section 141 IPC.
The Bench emphasised on the word “object” and
proceeded to state that it means the purpose or
design and, in order to make it “common”, it must be
shared by all. 
17. In Debashis Daw and others v. State of West
Bengal10, this Court, after referring to the decision in
9
(2004) 12 SCC 414
10 (2010) 9 SCC 111
15Page 16
Akbar Sheikh v. State of W.B.11
, observed that
the prosecution in a case of such nature is required
to establish whether the accused persons were
present and whether they shared a common object.
18. In Ramachandran and others v. State of
Kerala12, this Court has opined thus: -
“27. Thus, this Court has been very
cautious in a catena of judgments that
where general allegations are made
against a large number of persons the
court would categorically scrutinise the
evidence and hesitate to convict the large
number of persons if the evidence
available on record is vague. 
It is
obligatory on the part of the court to
examine that if the offence committed is
not in direct prosecution of the common
object, it yet may fall under the second
part of Section 149 IPC, if the offence was
such as the members knew was likely to
be committed. 
Further inference has to be
drawn as to what was the number of
persons; how many of them were merely
passive witnesses; what were their arms
and weapons. The number and nature of
injuries is also relevant to be considered.
“Common object” may also be developed
at the time of incident.”
19. Applying the aforesaid principles, we are required to
see whether all the appellants were present at the
11 (2009) 7 SCC 415
12 (2011) 9 SCC 257
16Page 17
time of occurrence. We have already opined that
Chhotelal exhorted and other accused persons,
namely, Dhaniram, Mohan, Badri and Govardhan had
assaulted the deceased and there is ample evidence
on record to safely conclude that they formed an
unlawful assembly and there was common object to
assault the deceased who, eventually, succumbed to
the injuries inflicted in the assault. As far as other
accused persons, namely, Babulal, Satyanarayan,
Rattiram, Kanchedi, Ramcharan and Ramesh are
concerned, there are really contradictory statements
with regard to the presence of the accused persons
because PW-12 has stated that Babulal was not
present at the place of occurrence. Ashok Kumar,
PW-5, has contradicted himself about the weapons
carried by Kanchedi, Ramcharan, Ramesh and
Gorelal. Leeladhar, PW-12, has not mentioned
anything about Ramesh and Govardhan. From the
apparent contradictions from the depositions of PW-5
and PW-12 it seems that they have implicated
Babulal, Satyanarayan, Rattiram, Ramesh and
17Page 18
Ramcharan in the crime. As far as Govardhan is
concerned, PW-5 has clearly stated that he and Badri
hit Daulat with sticks on the back and the neck. The
medical evidence corroborates the same. Nothing
has been elicited in the cross-examination of PW-5 to
discard his testimony. It has come out in the
evidence of PW-13 that PW-5 was going along with
Babulal, Kanchedi and his brother. We are referring
to the same only to highlight that there is an attempt
to implicate number of persons. It is borne out in the
evidence that the deceased was involved in many
criminal offences and there was some bad blood
between the accused persons and the deceased. In
such a situation it is not unusual to implicate some
more persons as accused along with the real
assailants.
20. Regard being had to the totality of the evidence on
record, filtering the evidence of PW-5 and PW-12 and
on studied evaluation we are of the considered
opinion that it is not safe to hold that the accusedappellants Ramesh, Kanchedi, Rattiram and
18Page 19
Satyanarayan were present at the spot and,
therefore, it will be inappropriate to record a
conviction in aid of Section 149 IPC and we are
inclined to think so as we entertain a reasonable
doubt about their presence at the scene of
occurrence.
21. We will be failing in our duty if we do not deal with
the contention of Mr. Khan that
when there has been
total non-compliance of Section 157 of the Code of
Criminal Procedure, the trial is vitiated. On a perusal
of the judgment of the learned trial Judge we notice
that though such a stance had been feebly raised
before the learned trial Judge, no question was put to
the Investigating Officer in this regard in the crossexamination. 
The learned trial Judge has adverted to
the same and opined, regard being had to the
creditworthiness of the testimony on record that it
could not be said that the FIR, Ext. P-7, was antedated or embellished.
 It is worth noting that such a
contention was not raised before the High Court.
Considering the facts and circumstances of the case,
19Page 20
we are disposed to think that the finding recorded by
the learned trial Judge cannot be found fault with.
We may hasten to add that when there is delayed
despatch of the FIR, it is necessary on the part of the
prosecution to give an explanation for the delay. We
may further state that the purpose behind sending a
copy of the FIR to the concerned magistrate is to
avoid any kind of suspicion being attached to the FIR.
Such a suspicion may compel the court to record a
finding that there was possibility of the FIR being
ante-timed or ante-dated. 
The court may draw
adverse inferences against the prosecution.
However, if the court is convinced as regards to the
truthfulness of the prosecution version and
trustworthiness of the witnesses, the same may not
be regarded as detrimental to the prosecution case.
It would depend on the facts and circumstances of
the case. In the case at hand, on a detailed scrutiny
of the evidence upon bestowing our anxious
consideration, we find that the evidence cannot be
thrown overboard as the version of the witnesses
20Page 21
deserves credence as analysed before. Thus, this
colossal complaint made by Mr. Khan pales into
insignificance and the submission is repelled.
22. In the result, we allow the appeals in part and affirm
the judgment of conviction and order of sentence
recorded against the appellants, namely, Dhaniram,
Mohan, Badri and Govardhan. Accused Mohan has
been released after completing fourteen years of
imprisonment on getting the benefit of remission
under Section 433A of the Code of Criminal
Procedure. As far as Dhaniram is concerned, he is in
custody. The accused-appellants, namely, Badri and
Govardhan are on bail. Their bail bonds are
cancelled and they be taken into custody forthwith.
The accused-appellants, namely, Satyanarayan,
Ramesh, Kanchedi and Rattiram are acquitted and as
they are on bail, they be discharged from their bail
bonds.
……………………………….J.
[K. S. Radhakrishnan]
21Page 22
….………………………….J.
[Dipak Misra]
New Delhi;
April 18, 2013.
22

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