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Saturday, July 4, 2015

In the light of the eye witness account and the post mortem report it is quite clear that the respondents were present when Tikaram was burning alive. The sequence of narration certainly shows that they were waiting in ambush. It may be that only two of them set Tikaram afire but the others definitely ensured by surrounding Tikaram that he would not be allowed to escape. Further, throwing of burning tyre and the sword would also indicate the active role played by them. Even if one of them was ready with a sword, that is clearly indicative of the level of preparedness on their part and we see no reason how they could not be said to be members of unlawful assembly. It was a crime which was committed by all of them guided by same purpose, acting in concert achieving the result that was desired. The intent of the entire assembly was clear, eloquently established by their presence, preparedness and participation. Though we are conscious that while considering an appeal against acquittal we should be extremely slow in interfering, in our considered view the assessment made by the High Court in the present case is completely unsustainable and against the record.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL Nos.2096-2098 of 2009


State of M.P.                                    …. Appellant

                                   Versus

Ashok & Others etc.                                      …. Respondents


                               J U D G M E N T


Uday Umesh Lalit, J.


1.    These appeals by special leave challenge the Judgment and Order  dated
11.01.2007 passed by  the  High  Court  of  Judicature  of  Madhya  Pradesh,
Jabalpur bench at Jabalpur in Criminal Appeals Nos.  170  of  1995,  841  of
1995 and 369 of 1996 by which respondents Ashok s/o Banshilal  Vedehi,  Raju
@ Rajendra s/o Banshilal Vedehi, Gullu @ Rajesh s/o Banshilal Vedehi,  Gouri
Shankar s/o Banshilal Vedehi, Vidhna @ Ramdas s/o Lallulal  Kewat,  Surendra
s/o Harilal Vedehi were acquitted by the  High  Court  of  all  the  charges
leveled against them.

2.    According to the prosecution one  Tikaram  son  of  Chote  Lal  Pandey
after finishing his duty was returning home at 8:00 p.m. on  11.04.1989.  On
the way he met his younger brother PW13 Sheetal Prasad. Both were coming  on
bicycles, PW13 being 10-15 feet behind said Tikaram.  When  Tikaram  reached
Tilwaraghat he was stopped in front of the house of Hari Maharaj by Dibbu  @
Devendra by catching his bicycle. Said Dibbu then  poured  petrol  over  him
and Jittu @ Jitendra burnt him by igniting a match  stick.  Tikaram  started
burning and ran from the spot. He was surrounded by present respondents  and
two others namely Harilal and Banshilal. All of them exhorted  to  beat  him
and to burn him and that he should not be allowed  to  run  from  the  spot.
Respondent Vidhna @ Ramdas threw a burning tyre upon him. While Tikaram  was
running helter-skelter,  Harilal threw a sword at him. Tikaram  ran  to  the
house of PW3 Vinod and fell there. PW3 extinguished the fire.  The  incident
was witnessed by PW13 who ran to the house and conveyed the fact of  Tikaram
having been set afire to  the  inmates  of  the  house.  As  a  result,  PW4
Ravindra Kumar Pandey son of said  Tikaram  and  PW15  Laxmi  Prasad  Pandey
rushed to the scene of occurrence. Tikaram disclosed to both PWs  4  and  15
that he was set afire in the aforesaid manner and by the  persons  mentioned
above. Tikaram was then removed to Medical College Hospital, Jabalpur.

3.    On receiving information,  PW16  inspector  R.P.  Singh  went  to  the
casualty ward and enquired about the condition of Tikaram with letter Ext.P-
30.  PW18 Dr. A.C. Nagpal gave certificate that Tikaram  was  conscious  and
in a position to speak.  PW16  inspector  R.P.  Singh  thereafter  took  the
statement of said Tikaram, translation of which is to the following  effect:

      “Sir, I am residing at Ramnagra. Today I was going to  Ramnagra  after
performing my duty on Petrol Pump. This  incident  occurred  at  Tilwaraghat
opposite the house of Hari Maharaj. I was going  by  my  cycle.  My  brother
Sheetal Prasad was following me. Dibbu caught hold my cycle and  stopped  me
and poured petrol on me from a Jug and Jeetu set fire on me by a Match  Box.
My body started burning. Hari, Surendra, Bigna, Ashok, Bansi, Raju  and  the
son of sister of Bansi Maharaj who lives in Kamla Nagar who has  beard,  the
younger son of Bansi Gullu and 2-3 other persons from city their names I  do
not know, surrounded me. I ran away and entered into  a  room  of  house  of
Vinod Kumar situated nearest and they all were crying “Maaro Maaro Sale  Ko,
Bachne Na Paye” and I fell down there. There were so  many  persons  present
who have seen this incident. There is an old enmity and  quarrel  was  going
on between us and Dibbu etc. For taking revenge from the said  enmity  today
they poured petrol on me and set on fire, in order  to  kill  me.  My  whole
body has been burnt. My clothes also have been burnt. Report has  been  read
over and the same has been written as stated by me. Please  investigate  the
matter.”


4.    Pursuant to the aforesaid  statement  recorded  at  8:30  p.m.  Dehati
Nalishi Ext. P-20 was lodged and crime was registered. Tikaram  was  shifted
to ward no. 11 for further  treatment.  On  the  same  night  panchnama  was
prepared by said PW16.  In  the  night  of  11.04.1989  and  12.04.1989  PW5
Executive Magistrate S.P. Meshram  recorded  statement  Ext.  P-17  of  said
Tikaram. The statement was recorded  after  due  certification  from  doctor
about consciousness and fitness of said  Tikaram.  The  translation  of  the
statement Ext. P-17 is as under:-

“On 11.04.1989 at about 8 O’clock in the evening I was going to my  home  in
Ramnagra from Jabalpur. Near Tilwaraghat Dibbu alias Devendra poured  petrol
on my body and Jittu alias Jitendra burnt me by igniting the matchstick.  At
that time I was going on a bicycle on the road.  They  stopped  me  and  did
this act. My younger brothers Sheetal and Manohar were about 15  Ft.  behind
me. I had enmity with Dibbu and Jittu from before. So they did this  to  me.
Hari, Banshi, Ashok, Raju, Gaurishankar, Gullu,  Surendra  and  Vidhna  were
the persons who assaulted me.”


5.    On 12.04.1989 at about 8:15 p.m. Tikaram succumbed  to  his  injuries.
On 13.04.1989 at 10:30 a.m. post mortem on the  body  of  said  Tikaram  was
conducted by PW17 Dr. D.K. Sakalle. According to the post  mortem  following
facts were noticed:
      “There were third degree burns on the body  of  the  deceased  on  the
scalp, all around neck, face, ears, lips, all  over  the  trunk  except  the
upper joint of the thighs, over scrotum and  penis  all  around  both  upper
limbs except tips and nails of fingers on right  side.  Third  degree  burns
present all around left thigh, on right thigh all  around  except  the  back
part and over upper part of the left leg and the middle part  of  the  right
leg. There were blisters in some  parts  of  the  left  leg  due  to  burns.
Similarly there were some blisters on the back of the right leg.  There  was
inflammation around the burn injuries. The deceased  was  burnt  about  90%.
Apart from the burn injuries the following injuries were also there  on  the
body of the deceased. Incised wound obliquely on back of chest.  It  was  4”
long, 1” broad and maximum depth was 3/4". It contained a clot of blood  and
there was an abrasion on its left side. There was no injury in any  internal
organ of the deceased.”

6.    After due investigation charge sheet was filed and 10 accused  persons
were sent for trial. The prosecution examined twenty witnesses  while  three
witnesses were examined in defence.  Dying  declarations  namely  statements
Exts.P-20 and P-17, so also oral declarations as deposed by  PWs  4  and  15
and the eye-witness account through PW13 were  principally  relied  upon  by
the  prosecution.  Accepting  the  case  of  prosecution,  the  trial  court
convicted all the accused. Accused Dibbu @  Devendra  and  accused  Jittu  @
Jitendra were found guilty under section 302 I.P.C. and section  148  I.P.C.
while  others  namely  the  present  respondents  along  with  Harilal   and
Banshilal were found guilty under section 302 read with section  149  I.P.C.
Accused Dibbu @ Devendra and accused Jittu  @  Jitendra  were  sentenced  to
life imprisonment under section 302 I.P.C. and to rigorous  imprisonment  of
one year under section 148 I.P.C. All the other accused  were  sentenced  to
life imprisonment under section 302 read with  section  149  I.P.C.  and  to
rigorous imprisonment for 6 month under section 147 I.P.C.

7.     All  convicted  accused  persons  challenged  their  conviction   and
sentence by filing Criminal Appeal Nos. 170 of 1995, 841 of 1995 and 369  of
1996. During the pendency of said  appeals  it  was  reported  that  accused
Harilal and Banshilal had died and as such their appeals  were  declared  to
have abated. The High Court after going through the record  found  that  the
case of the prosecution was fully established as  against  accused  Dibbu  @
Devendra and accused Jittu @ Jitendra. The High Court however  gave  benefit
of doubt to the respondents on the premise that they had  reached  the  spot
after the commission of offence and as  such  the  charge  of  formation  of
unlawful assembly by them was not established. The observations by the  High
Court in that behalf were as under:
      “Considering the over-all evidence on  record,  it  is  proved  beyond
reasonable doubt that Dibbu alias Devendra and  Jittu  alias  Jitendra  have
committed the offence. The case of Dibbu and Jittu  is  established  by  the
prosecution beyond reasonable doubt in commission  of  offence.  As  regards
other appellants in all  the  connected  appeals  are  concerned,  they  are
entitled for the benefit of doubt. It is narrated in the  dying  declaration
and Dehati Nalishi that they  reached  the  spot  after  the  commission  of
offence.  Therefore,  formation  of  unlawful  assembly  by  them   is   not
established.”

The judgment of the High Court affirming their conviction and  sentence  has
not been challenged by the accused Jittu @ Jitendra and  Dibbu  @  Devendra.
The judgment to the extent it acquitted the present respondents of  all  the
offences is presently under challenge  at  the  instance  of  the  State  of
Madhya Pradesh in these appeals by special leave.

8.     Ms.  Vanshaja  Shukla,  learned  advocate  appearing  for  the  State
submitted that the role of the present  respondents  in  the  commission  of
crime was clearly made out from the dying declarations as well as  from  the
testimony of the eye witness. The Injury as found in the  post  mortem  also
supported the eye witness account, which in turn indicated the  role  played
by accused other than those who stand convicted by the High  Court.  In  her
submission, the view taken by the High Court was  completely  unsustainable.
Mr.  Akshat  Srivastava  learned  advocate  appearing  for  the   respondent
supported the judgment  of  the  High  Court.  It  was  submitted  that  the
principal role as alleged in the dying declarations was not as  regards  the
present respondents and as such they were rightly granted benefit  of  doubt
by the High Court.

      During the course of hearing it was  submitted  that  respondent  no.6
namely Surendra s/o Harilal Vedehi had died during  the  pendency  of  these
appeals. The learned  counsel  appearing  for  the  State  was  directed  to
ascertain the fact. Accordingly death certificate of  said  respondent  no.6
has been  filed  on  record  indicating  that  he  died  on  01.10.2014.  We
therefore  direct  that  the  proceedings  stand  abated  as  against   said
respondent no.6.

9.    Statement Ext. P-20 leading to the registration of crime  as  well  as
statement  Ext.  P-17  recorded  by  the  Executive  Magistrate  are   dying
declarations by Tikaram. Both these statements are consistent and  name  the
present respondents and  state  the  role  played  by  them  in  surrounding
Tikaram and giving cries that he be beaten and should not be  left.  In  the
face of such assertions, it is impossible to accept that  these  respondents
arrived at the scene of occurrence after  the  crime  was  completed.  Their
role is that of participants in the crime  who  did  not  allow  Tikaram  to
escape by encircling him. The finding rendered by the High Court is  against
the record.

10.   Both the statements clearly referred to the presence of PW13.  It  was
PW13 who immediately ran home and intimated the fact that  Tikaram  was  set
afire, to the inmates of the house. Consequently PW4  and  PW15  arrived  at
the scene of occurrence. Tikaram was then removed to the  hospital.  In  his
testimony PW13 stated that while Tikaram was burning,  respondent  Vidhna  @
Ram Das threw a burning tyre upon him and original accused Harilal  threw  a
sword at him. The post mortem clearly shows an incised injury  in  the  back
suffered by said Tikaram, which completely supports such  assertion.  Having
gone through the record  we  find  the  presence  of  said  PW13  completely
established and accept him to be  eye  witness  to  the  occurrence.  It  is
relevant to note that the High Court has also not disbelieved the  testimony
of PW13.

11.   In the light of the eye witness account and the post mortem report  it
is quite clear that the respondents were present when  Tikaram  was  burning
alive. The sequence of narration certainly shows that they were  waiting  in
ambush. It may be that only two of them set Tikaram  afire  but  the  others
definitely ensured by surrounding Tikaram that he would not  be  allowed  to
escape. Further, throwing of burning tyre and the sword would also  indicate
the active role played by them. Even if one of them was ready with a  sword,
that is clearly indicative of the level of preparedness on  their  part  and
we see no reason how they could not  be  said  to  be  members  of  unlawful
assembly. It was a crime which was committed by all of them guided  by  same
purpose, acting in concert  achieving  the  result  that  was  desired.  The
intent of the entire assembly was clear,  eloquently  established  by  their
presence, preparedness and  participation.  Though  we  are  conscious  that
while considering an appeal against acquittal we should  be  extremely  slow
in interfering, in our considered view  the  assessment  made  by  the  High
Court in the present  case  is  completely  unsustainable  and  against  the
record.

12.   We therefore allow these appeals, set-aside the judgment and order  of
acquittal rendered by the High Court and restore the judgment of  conviction
and sentence as recorded by the trial Court  against  the  respondents.  The
respondents shall be taken  in  custody  forthwith  to  serve  the  sentence
awarded to them.


                                                                …………………………J.
                                        (Pinaki Chandra Ghose)



                                                                …………………………J.
                                        (Uday Umesh Lalit)

New Delhi,
July 01, 2015
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