STATE OF MADHYA PRADESH versus KILLU @ KAILASH AND ORS. on 19 November 2019

1. Leave granted.

2. These Appeals question the judgment and order dated 29.06.2018passed by the High Court of Madhya Pradesh at Jabalpur in CriminalAppeal Nos.2676 of 2008 and 158 of 2009.

3. The basic facts as stated in the judgment under appeal are asunder:- “3. Prosecution story, in brief is that, accused/appellant No.4Khushiram in Cr. Appeal No.2678 of 2008, who is uncle [mousia]of the son of the deceased, had some enmity with BalaprasadPathak [since deceased]. He along with other accused personsentered in the house of Balaprasad Pathak in the mid night [2 O’clock] of 23.05.2005. Deceased was sleeping with his familymembers. Accused/appellants [in Cr.Appeal No.2678/2008]namely; Khushiram and Himmu @ Hemchand were armed withaxe, appellant Devendra was armed with Ballam and other twoaccused namely Killu @ Kailash and Kailash Nayak were armedwith lathi. Two accused persons namely; Khushiram and Himmu@ Hemchand [appellants No.2 and 4 in Cr. Appeal No.2676/2008]inflicted injuries by axe on the person of deceased. Allegationagainst other accused persons is of exhortation. Deceased diedon the spot. Report of the incident was lodged by (PW-5)Rameshwar Pathak. Police conducted investigation and filedcharge-sheet. During trial, appellants abjured their guilt and pleadedinnocence. …”

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A4. In support of its case, the prosecution relied upon the testimonyof PW3-Prabha Rani, wife of the deceased, PW4-Devendra Kumar,son of the deceased and PW5-Rameshwar Pathak, a relative of thedeceased, who had lodged the First Information Report (‘the FIR’, forshort). It was narrated in the FIR that after having received informationabout the assault, the informant had gone to the house of the deceasedBwhere PW3 narrated the incident to him, based on which the reportingwas made by the informant. The medical evidence was unfolded throughthe testimony of PW2-Dr. R.K. Bhardwaj, who had conducted the post-mortem. He had found following injuries on the person of the deceased:- “(i)Incised wound over left anterior part of scalp 4”x1/2"Cunderlaying bone and brain matter cut inhacranial cavily pilledwith blood.

(ii) Incised wound 5" x 1" x 2 1/2" uppermost part of chest andadjoining anterior part of neck slightly left side obliquely placedundergone and blood vessels cut.”D

According to him, the injuries were ante-mortem and the deceasedhad died as a result of those injuries.

5. In due course, five accused were tried in connection with themurder of said Balaprasad Pathak for the offence punishable underSection 302 read with Section 149 IPC in Sessions Trial No.173 of 2005Ebefore the First Additional Sessions Judge, Damoh, Madhya Pradesh.After considering the evidence on record, the Trial Court concluded thatall the five accused were members of an unlawful assembly and hadentered the house of the deceased on the fateful night with the commonobject of causing death of the deceased and as such, they were guilty ofFthe offence punishable under Section 302 read with Section 149 IPC.Holding them guilty of the aforesaid offence, by its judgment dated19.12.2001, the Trial Court sentenced them to suffer life imprisonmentand to pay fine in the sum of Rs.500/- each, in default whereof, each ofthe convicts was to undergo further rigorous imprisonment of threeGmonths. The view so taken by the Trial Court was challenged by way ofCriminal Appeal No.2676 of 2008 by four accused while Criminal AppealNo.158 of 2009 was filed by accused Kailash Nayak.

6. Insofar as accused Himmu @ Hemchand and Khushiram, whowere armed with sharp cutting weapons, the High Court found as under:- H

STATE OF MADHYA PRADESH v. KILLU @ KAILASH AND ORS.[UDAY UMESH LALIT, J.]

“16. Appellants No.2 and 4 namely Himmu @ Hemchand andKhushiram were armed with axe, i.e. deadly weapons. Theyinflicted blows on the vital part of deceased as a result of which,deceased died on the spot. Evidence of causing injury by axe isagainst the appellants Himmu @ Hemchand and Khushiram.Hence, in our opinion, the Trial Court has rightly held the appellantsguilty for commission of offence of murder. Other three accusedpersons namely; Killy @ Kailash and Devendra (appellants No. 1and 3 in Cr. A No. 2676/2008) and appellant Kailash Nayak(appellant in Cr.A.No. 158/2009) have been convicted with theaid of Section 149 of IPC. Allegation against them is that theyentered in the house and they were armed with lathis and Ballam.From the evidence, this fact has also been proved that deceasedwas facing trial of Section 302 of IPC because he had killed oneRammilan Pathak.”

7. The High Court further found that the other three accusedwere stated to be armed with lathis and Ballam but there were no injurieswhich could be associated with lathis and Ballam. The High Court,therefore, gave benefit to said three accused as under:- “21. From the aforesaid quoted judgment, the principle of law isthat “the member of unlawful assembly may have committed forthe offence caused by another accused, if he has knowledge aboutthe act committed by the main accused”. In the present case,evidence is that the accused entered the house of deceased andthereafter, two accused had inflicted blow by axe. The otheraccused persons did not give any blow on the deceased. It isalleged that they were present on the spot. There was previousenmity between the accused persons and the deceased, he wasalso facing criminal trial. Hence, it cannot be ruled out that otherthree persons, who had not inflicted any injury may have beennamed along with the other accused persons.

22. Looking to the evidence on record, in our opinion, the convictionof three appellants namely; Killu @ Kailash, Devendra and KailashNayak, who were armed with lathis and Ballam and did not inflictany blow with the aid of Section 149 of IPC, is not proper. Thereis lack of sufficient evidence to prove them guilty for commissionof offence under Section 149 of IPC beyond reasonable doubt.

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Hence, the appeal filed by appellant Kailash Nayak (Cr. AppealNo. 158/2009) is hereby allowed.

23. Cr. Appeal No.2676/2008, filed by four accused/ appellants ispartly allowed. Appeal filed by appellants No. 2 and 4 namely;Himmu @ Hemchand and Khushiram is hereby dismissed. TheyBare convicted for commission of offence punishable under Section302 of IPC and awarded a sentence of life. Appellant No.2 Himmu@ Hemchand is on bail. His bail bonds are hereby cancelled. Heis directed to surrender before the Trial Court for facing remainingjail sentence.

C24. Appeal filed by the appellants No.1 and 3 namely; Killu @Kailash and Devendra [Cr.Appeal No.2676/2008] is herebyallowed. They are acquitted from the charge of Section 302/149of IPC. The judgment passed by the trial Court in regard toappellants No.1 and 3 namely; Killu @ Kailash and Devendra, ishereby set aside. Appellants Killu @ Kailash, Devendra andDKailash Nayak, are on bail, their bail bonds are hereby discharged.”

8. The State, being aggrieved by the order of acquittal of accusedKillu @ Kailash, Devendra and Kailash Nayak, has preferred the instantappeals. We heard Mr. Varun K. Chopra, Deputy Advocate General(Madhya Pradesh), in support of the Appeal and Mr. S.K. ShrivastavaEand Mr. R.R. Rajesh, learned Advocates who appeared for threeacquitted accused.

9. Since the instant case depends upon the extent and applicationof the principle of vicarious liability under Section 149 of the IPC, at theoutset, we may consider the leading case of Masalti vs. State of U.P.[1]FThe submission of the appellants therein was that mere presence in anassembly would not make a person member of an unlawful assemblyunless it was shown that he had done something or omitted to do somethingwhich would make him a member of unlawful assembly. Reliance wasplaced by said appellants on the earlier judgment of this Court in BaladinGvs. State of Uttar Pradesh[2] . The issue was dealt with as under:- “… … The observation of which Mr. Sawhney relies, prima facie,does seem to support his contention; but, with respect, we oughtto add that the said observation cannot be read as laying down a 1 (1964)8 SCR 133H2 AIR 1956 SC 181

general proposition of law that unless an overt act is proved againsta person who is alleged to be a member of an unlawful assembly,it cannot be said that he is a member of such an unlawful assembly.In appreciating the effect of the relevant observation on whichMr. Sawhney has built his argument, we must bear in mind thefacts which were found in that case. It appears that in the case ofBaladin[2], the members of the family of the appellants and otherresidents of the village had assembled together; some of themshared the common object of the unlawful assembly, while otherswere merely passive witnesses. Dealing with such an assembly,this Court observed that the presence of a person in an assemblyof that kind would not necessarily show that he was a member ofan un- lawful assembly. What has to be proved against a personwho is alleged to be a member of an unlawful assembly is that hewas one of the persons constituting the assembly ,and heentertained along with the other members of the assembly thecommon object as defined by s.141, I.P.C. Section 142 providesthat whoever, being aware of facts which render any assemblyan unlawful assembly, intentionally joins that assembly, or continuesin it, is said to be a member of an unlawful assembly. In otherwords, an assembly of five or more persons actuated by, andentertaining one or more of the common objects specified by thefive clauses of s. 141, is an unlawful assembly. The crucial questionto determine in such a case is whether the assembly consisted offive or more persons and whether the said persons entertainedone or more of the common objects as specified by s.141. Whiledetermining this question, it becomes relevant to consider whetherthe assembly consisted of some persons who were merely passivewitnesses and had joined the assembly as a matter of idle curiositywithout intending to entertain the common object of the assembly.It is in that context that the observations made by this Court in thecase of Baladin[2] assume significance; otherwise, in law, it wouldnot be correct to say that before a person is held to be a memberof an unlawful assembly, it must be shown that he had committedsome illegal overt act or had been guilty of some illegal omissionin pursuance of the common object of the assembly. In fact, s.149makes it clear that if an offence is committed by any member ofan unlawful assembly in prosecution of the common object of that ABCD

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Aassembly, or such as the members of that assembly knew to belikely to be committed in prosecution of that object, every personwho, at the time of the committing of that offence. is a member ofthe same assembly, is guilty of that offence;and that emphaticallybrings out the principle that the punishment prescribed by s.149 isin a sense vicarious and does not always proceed on the basisBthat the offence has been actually committed by every memberof the unlawful assembly. Therefore, we are satisfied that theobservations made in the case of Baladin[2] must be read in thecontext of the special facts of that case and cannot be treated aslaying down an unqualified proposition of law such as Mr. SawhneyCsuggests.”

(underlined by us)

10. After considering the cases on the point including Masalti[1],the order of acquittal passed by the High Court was set aside by thisCourt in State of Maharashtra vs. Ramlal Devappa Rathod andDothers[3]. Relevant paragraphs of the decision are:- “22. We may at this stage consider the law of vicarious liabilityas stipulated in Section 149 IPC. The key expressions in Section149 IPC are:

E(a) if an offence is committed by any member of an unlawfulassembly; (b) in prosecution of common object of that assembly;

(c) which the members of that assembly knew to be likely tobe committed in prosecution of that object; F

(d) every person who is a member of the same assembly isguilty of the offence.

This section makes both the categories of persons, those whocommitted the offence as also those who were members of thesame assembly liable for the offences under Section 149 IPC, ifGother requirements of the section are satisfied. That is to say, ifan offence is committed by any person of an unlawful assembly,which the members of that assembly knew to be likely to becommitted, every member of that assembly is guilty of the offence.

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The law is clear that membership of unlawful assembly is sufficientto hold such members vicariously liable.

23. It would be useful to refer to certain decisions of this Court.In State of U.P. v. Kishanpal[4] it was observed: (SCC p. 93, para47)

“47. … It is well settled that once a membership of an unlawfulassembly is established it is not incumbent on the prosecutionto establish whether any specific overt act has been assignedto any accused. In other words, mere membership of theunlawful assembly is sufficient and every member of anunlawful assembly is vicariously liable for the acts done byothers either in the prosecution of the common object of theunlawful assembly or such which the members of the unlawfulassembly knew were likely to be committed.”

Further, in Amerika Rai v. State of Bihar[5] it was observed asunder: (SCC p. 682, para 13)

“13. The law of vicarious liability under Section 149 IPC iscrystal clear that even the presence in the unlawful assembly,but with an active mind, to achieve the common object makessuch a person vicariously liable for the acts of the unlawfulassembly.”

24. The liability of those members of the unlawful assemblywho actually committed the offence would depend upon thenature and acceptability of the evidence on record. Thedifficulty may however arise, while considering the liability andextent of culpability of those who may not have actuallycommitted the offence but were members of that assembly.What binds them and makes them vicariously liable is thecommon object in prosecution of which the offence wascommitted by other members of the unlawful assembly.Existence of common object can be ascertained from theattending facts and circumstances. For example, if more thanfive persons storm into the house of the victim where only fewof them are armed while the others are not and the armedpersons open an assault, even unarmed persons are vicariously 4 (2008) 16 SCC 73

5 (2011) 4 SCC 677

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Aliable for the acts committed by those armed persons. In sucha situation it may not be difficult to ascertain the existence ofcommon object as all the persons had stormed into the houseof the victim and it could be assessed with certainty that allwere guided by the common object, making every one of themliable. Thus when the persons forming the assembly are shownBto be having same interest in pursuance of which some of themcome armed, while others may not be so armed, such unarmedpersons if they share the same common object, are liable forthe acts committed by the armed persons.”

11. If we now consider the facts in the present matter, the caseClies in a short compass. The case of the prosecution that five accusedhad entered the house of the deceased on the fateful night is accepted.It is also found that each one of them was separately armed and two ofthem were armed with sharp cutting weapons. As far as other threeaccused i.e. the present respondents were concerned, the first one hadDa Ballam while the other two were having lathis. It is true that thedeceased had only two injuries on the person which were the cause ofdeath. To the extent that the persons who were armed with sharp cuttingweapons were found responsible for causing the death is also not disputedor challenged. The evidence on record fully establishes that the presentrespondents had also accompanied those two accused persons who wereEfound responsible for the crime and all of them had entered the house ofthe deceased around midnight. It is crucial to note that the incident didnot happen in any public place where the presence of a non-participatingaccused could, at times, be labelled as that of an innocent bystander.The role played by each one of them was clear and specific. They hadFstormed into the house in the dead of the night.

12. On the strength of the principles accepted and laid down inthe cases as aforementioned, their liability is fully established. Merelybecause the other three accused persons i.e. the present respondentshad not used their weapons does not absolve them of the responsibilityGand vicarious liability on which the very idea of charge under Section149 IPC is founded. For the application of the principle of vicariousliability under Section 149 IPC what is material to establish is that thepersons concerned were members of an unlawful assembly, the commonobject of which was to commit a particular crime. The fact that fivepersons were separately armed and had entered the house of the H

deceased during night time is clearly indicative that each one of themwas a member of that unlawful assembly, the object of which was tocommit the crime with which they came to be charged in question. TheHigh Court was not justified in granting benefit to those three accused.

13. The presence of the respondents in the house of the deceased;the fact that they were armed; the fact that all of them had entered thehouse around midnight and further fact that two out of those five accusedused their deadly weapons to cause the death of the deceased wassufficient to attract the principles of vicarious liability under Section149 IPC.

14. The High Court was not justified in entertaining a doubt that itcould not be ruled out that the respondents were merely named alongwith the other accused persons. There was absolutely no room for suchdoubt. The testimony of the eye witnesses namely the wife and the son,who were occupants of the same house, was quite clear and cogent.

15. We have, therefore, no hesitation in allowing these Appeals.We, thus, set aside the view taken by the High Court insofar as thepresent respondents namely Killu @ Kailash, Devendra and KailashNayak are concerned. We set aside their acquittal as recorded by theHigh Court and restore the judgment and order of conviction passed bythe Trial Court in Sessions Trial No. 173 of 2005 against said respondents.

16. The respondents shall surrender within three weeks, failingwhich the concerned police shall immediately arrest them and send themto custody to undergo the sentence imposed upon them. A copy of thisJudgment shall be sent to the concerned Chief Judicial Magistrate andthe Police Station for immediate compliance.

Ankit Gyan

Appeals allowed.

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