DAUWALAL @ GANESH DEVANGAN & ORS. versus STATE OF MADHYA PRADESH (NOW STATE OF CHHATTISGARH) on 15 March 2019

[2019] 4 S.C.R. 247

DAUWALAL @ GANESH DEVANGAN & ORS.

v.

STATE OF MADHYA PRADESH

(NOW STATE OF CHHATTISGARH)

(Criminal Appeal Nos. 478-479 of 2019)

MARCH 15, 2019

[UDAY UMESH LALIT AND DINESH MAHESHWARI, JJ.]

Penal Code, 1860 – s.302 r/w s.149 and s.147, 148, 323,342, 450 – FIR lodged by Informant-PW-2 that his cousin was fatallyassaulted – 17 persons including the appellants were tried for theoffences punishable u/ss.147, 148, 323, 342 & 450 and u/s.302 r/w.149, IPC – Found guilty by the Trial Court – High Court in appealsby all the accused persons affirmed the view taken by the TrialCourt – Special Leave Petition (Crl.) Nos.457-458 of 2016 filed by9 accused before Supreme Court wherein no ground was found forinterference with respect to 5 petitioners – As regards the presentappellants (four accused persons), held: In a crime committed byan unlawful assembly, by principle of vicarious liability, everymember of the unlawful assembly would be guilty of the offence,even if he himself had not done the actual act – But the facts mustindicate with clarity that such person was in fact member of theunlawful assembly – Prosecution did not allege that any of theappellants had stormed inside the house and had dragged PW-2’scousin – Their presence, at best, going by the version of PWs 2 and4 (deceased’s son) was outside the house in the street where 25-30persons had gathered – Out of such gathering, 17 persons werenamed to be accused and sent for trial – PW-2 in his FIR had notnamed any of the appellants whereas in his statement in Court thenames of the appellants did occur, however even then he did notattribute any overt act to the appellants – PW-3 (deceased’s widow)also did not name any of the appellants – Evidence of PW-4 didindicate some role but that part of the assertion is to be seen in thelight of the fact that he and his brother were hidden by PW-3 assoon as the first part of the transaction occurred and some 7 personsstormed inside the house – This is perhaps why PW-3 also could notname any of the appellants – Not established beyond reasonable

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Adoubt that the appellants were guilty of the offences with whichthey were tried – Benefit of doubt granted to the appellants –Acquitted of all the charges levelled against them.

Allowing the appeals, the Court

HELD: 1.1 In a crime committed by an unlawful assemblyBby principle of vicarious liability, every member of the unlawfulassembly would be guilty of the offence, even if he himself hadnot done the actual act. But the facts must indicate with claritythat such person was in fact a member of the unlawful assembly.The prosecution did not allege that any of the appellants hadCstormed inside the house and had dragged the deceased Parasram.The presence of the appellant, at best, going by the version ofPWs 2 and 4 was outside the house in the street where 25-30persons had gathered. Out of such gathering, 17 persons werenamed to be accused and sent up for trial. It is crucial to notethat PW-2 in his First Information Report had not named any ofDthe appellants whereas in his statement in Court the names ofthe appellants did occur in his testimony. Even then he did notattribute any overt act to the appellants. PW-3 also did not nameany of the appellants. The evidence of PW-4 did indicate somerole but that part of the assertion is required to be seen in theElight of the fact that he and his brother were hidden by their motheras soon as the first part of the transaction had occurred and some7 persons had stormed inside the house. This is perhaps whythe mother also could not name any of the appellants.[Paras 10, 11][252-H; 253-A-D]

F1.2 It is not established beyond reasonable doubt that theappellants were guilty of the offences with which they were tried.Therefore, benefit of doubt granted to the appellants. Theappellants are acquitted of all the charges levelled against them.[Para 12][253-E]

GCRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 478-479 of 2019.

From the Judgment and Order dated 15.06.2015 of the High Courtof Chhattisgarh at Bilaspur in Criminal Appeal Nos.410 of 2000 and 698of 2000.

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Ajit Sharma(AC), Navin Prakash, Meetu Singh, AnshumanShrivastava, Abhijeet Shrivastava, B. Ramana Murthy, Advs. for theAppellants.

Sumeer Sodhi, Aman Nandrajog, Ashish Tiwari, SuryakamalMishra, Advs. for the Respondents.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J. 1. These appeals, at the instance offour original Accused namely Santosh Kumar, Dauwalal @ GaneshDevangan, Manohar Verma and Puneetram Verma (Original AccusedNos.6, 12, 13 and 16 respectively) seek to challenge the commonjudgment and order dated 15.06.2015 passed by the High Court[1]dismissing Criminal Appeal Nos.410 and 698 of 2000 as against theappellants.

2. First Information Report (Ext.P-60) was lodged with PoliceStation Bhatapara (Rural), District Raipur pursuant to informationreceived at the Police Station around 12:05 a.m. on 24.02.1997 fromInformant Netram (later examined as PW-2). According to theinformation, the cousin of the Informant named Parasram Yadav, DeputySarpanch, Village Jarod, Bhatapara was assaulted fatally on 23.02.1997at about 9.00 p.m. The relevant information had named certain personsto be responsible for the crime from the assembly of 25-30 persons whohad gathered outside the house of the deceased. The information was:- “Bhuneshwar Verma, Kamta Prasad Yadav, Mohan Verma,Kaushal verma, Gayaram Verma, Santosh Verma, Bihari LalVerma, Shanker Lal Verma, Bharat Lal Verma, Virendra aliasTatku Verma, Daulal alias Ganesh Dewagan, Puneet RamVermaetc 25-30 people of his village came at the house of mybrother Parasram Yadav, Deputy Sarpanch, Village-Panchayat,Jarod, due to enmity and with intention to kill him and beingunanimous and being armed with Laathi, Danda, Khotlaetc startedgiving filthy abuse and by entering into the house of Parasramassaulted him and they dragged Parasram from his house andtook him out in the courtyard and beat him with Laathi, Dandaand Bhuneshwar Verma hit stone of about 15-20 kg weight on thehead of Parasram and caused his death, due to which his braingot scattered out of skull.”

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A3. During the course of investigation, names of 17 persons surfacedas suspects. Those 17 persons including the appellants were tried forthe offences punishable under Sections 147, 148, 323, 342 and 450 IPCas well as under Section 302 read with 149 IPC in Sessions Case No.359of 1997.

B4. PW-1 Dr. A.D. Purena who had conducted post-mortem onthe dead body of the deceased deposed that there were external injuriesall over the body. The head was crushed, lacerated with compoundmultiple fractures on the skull bone, the brain material was absent andthe skull bones were fractured in various sizes, multiple in number.

C5. The eye witness account was as under:-

I. PW- 2 - Netram, cousin of the deceased in his examination-in-chief deposed: -

“I heard sound of Laathi (stick) at the door of my brotherParasram, then I came out and saw that Dayaram, Roshan, Onkar,Vinod, Tatku, Dauwa, Manohar, Mohan, Bhuwan and Punit werethere. My brother Parasram is Deputy Sarpanch of Village Jarod.Due to which the accused persons had enmity/quarrel since then.When I saw, at that time the accused persons were loudly shoutingsaying ‘nikalo saale ko’. The door was open and seven personsnamely Bihari, Shanker, Hari, Vinod, Suneshwar, Bharat and Kamtawere beating my brother inside the house. I reached on the spotand requested the accused persons not to beat my brother, Irequested them with folded hand. Thereafter, Bihari was draggedand pulled out my brother, to which I resisted, then Bihari hit atmy head. Thereafter, Kamta came from behind and hit Laathi atmy head. On this I shivered and got perplexed. Then my wifeDulari Bai caught me by both hand and took me to my room andlocked the door and I saw the incident peeping through the gap ofdoor. All the accused persons dragged out my brother from Parchhiand hit Laathi due to which my brother got unconscious and felldown. Thereafter, Bihari told that he could be alive so hit thestone. Thereafter, Bhaneshwar, Bihari, Shanker, Tetku, Vinod hitstone and went away laughing.”

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II. PW-3 - Urmila, widow of deceased Parasram, deposed:- H

DAUWALAL @ GANESH DEVANGAN v. STATE OF M.P. (NOW STATE OF CHHATTISGARH) [UDAY UMESH LALIT, J.]

“At that time accused Bihari, Kaushal, Hari, Bharat,Bhuwaneshwar, Tetku, Kamta, Mote etc. came. They werearmed with Laathi. Accused persons came to my house andassaulted my husband. At that time my husband was sleeping onTakhat. They got him lifted down and assaulted. When I stoppedaccused persons from assaulting, then Bihari told me to run awayotherwise they could kill me also. Thereafter, they dragged myhusband from the house to the Parchhi and assaulted there. Thenthey dragged him from Parchhi to the courtyard and then Bihari,Bhuwneshwar sworn to hit stone on the head of the deceasedParasram and then they brought stone kept at my house and hit atthe head of my husband Paras. Bihari, Hari, Bharat hit the stoneon the head, due to which the head of my husband was brokenand his death was caused.”

III. PW-4 - Narender, 11 years old son of deceased Parasram stated that he had seen 7 persons who came inside the house andthen dragged his father out. After the father was so dragged out,the accused had assaulted his father. He did not name any of theappellants in the first part of the incident but the appellants werenamed to be part of the assembly which had assaulted his fatheroutside the house.

6. The Second Additional Sessions Judge, Baloda Bazar, DistrictRaipur by his judgment and order dated 29.01.2000 found that theprosecution had established its case completely. All 17 accused personswere found guilty of the offences with which they were charged and theorder of sentence was as under:-

“… … … every accused person is punished for one year rigorousimprisonment under Section 148, five years rigorous imprisonmentunder Section 450 and fine of Rs.1000/- each, and under Section342 section 323 is included, therefore, accused persons are punishedwith life imprisonment under Section 302/149 and fine of Rs.1000/- each. In case of non-deposit of fine, additional simpleimprisonment of 6 months is awarded to each of the accusedperson and in case of payment of Rs.20,000/- may be paid to thewife of deceased out of the fine received from the accused personsas compensation under section 357 Cr.P.C. All sentences shallrun concurrently and period of judicial custody be adjusted fromthe period of sentence.”

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A7. Criminal Appeal Nos.410 and 698 of 2000 were preferredagainst the aforesaid conviction and sentence by 10 convicted accusedand 7 convicted accused respectively in the High Court. Original AccusedNo.10, Birendra Kumar was found to be Juvenile on the date ofoccurrence and his case was accordingly separated. By its judgmentand order which is presently under appeal, the High Court affirmed theBview taken by the Trial Court and dismissed both the appeals. Thereafter,Special Leave Petition (Crl.) Nos.457-458 of 2016 was preferred by 9convicted Accused in this Court. On 29.01.2016 this Court found noground for interference with respect to 5 petitioners namely Kamta Prasad,Shankerlal Verma, Bharatlal Verma, Hariram Verma and Vinod VermaCand dismissed their Special Leave Petition. However, as regards thepresent appellants, notice was issued whereafter both the sides wereheard in the matter.

8. Mr. Naveen Prakash, learned Advocate appearing for theappellants submitted:-D

I.The appellants were not named by PW-2 Netram in his firstreporting.

II. However, in his examination in Court said Netram had namedthe appellants but did not attribute any specific overt act tothem.E

III. PW-3, Urmila, widow of deceased did not name the appellantsin her testimony.

IV. PW-4 did name the appellants as part of the mob which hadgathered outside the house and was responsible for assault onthe deceased. However, in his cross examination, he hadFaccepted that while the accused were assaulting his father, hismother had kept him and his brother hidden inside the house.

9. The learned counsel for the State on the other hand submittedthat the material on record clearly pointed towards the involvement ofthe appellants. He submitted that the appellants were named by bothGPWs 2 and 4 and as such the appellants were rightly convicted.

10. It is true that in a crime committed by an unlawful assemblyby principle of vicarious liability, every member of the unlawful assemblywould be guilty of the offence, even if he himself had not done the actualact. But the facts must indicate with clarity that such person was in factH

a member of the unlawful assembly. The prosecution did not allege thatany of the appellants had stormed inside the house and had dragged thedeceased Parasram. The presence of the appellant, at best, going bythe version of PWs 2 and 4 was outside the house in the street where25-30 persons had gathered. Out of such gathering, 17 persons werenamed to be accused and sent up for trial.

11. It is crucial to note that PW-2 Netram in his First InformationReport had not named any of the appellants whereas in his statement inCourt the names of the appellants did occur in his testimony. Even thenhe did not attribute any overt act to the appellants. PW-3 - Urmila alsodid not name any of the appellants. The evidence of PW-4 Narenderdid indicate some role but that part of the assertion is required to be seenin the light of the fact that he and his brother were hidden by their motheras soon as the first part of the transaction had occurred and some 7persons had stormed inside the house. This is perhaps why the motheralso could not name any of the appellants. In the backdrop of thesesalient features, the question arises as to the involvement of the appellantsin the crime.

12. Considering all the factual aspects, in our considered view, itis not established beyond reasonable doubt that the appellants were guiltyof the offences with which they were tried. We, therefore, grant benefitof doubt to the appellants. The appeals are, therefore, allowed and theappellants are acquitted of all the charges levelled against them. Theybe set at liberty unless their presence is required in connection with anyother offence.

Kalpana K. Tripathy

Appeals allowed.

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