1. Criminal appeal Nos. 1845/2007, 2257/2007 and 2451/2007 arise out of the same incident and, therefore, heard and decided concomitantly.
These three appeals arise out of judgment dated 10.08.2007 passed by Special Judge (Atrocity), Betul in Special case No.61/2006.
2. Appellant Sachin of Cr.A. No.1845/2007 has been found guilty for the offence under Sections 302/149, 147 and 460 of the Indian Penal Code
and has been sentenced to imprisonment for life and fine of Rs.5,000/- under Section 302/149 of the I.P.C. with a stipulation for 2 years rigorous
imprisonment in case of default, rigorous imprisonment for one year under Section 147 of the I.P.C. and rigorous imprisonment for 10 years and
fine of Rs.2,000/- under Section 460 of the I.P.C. with a stipulation for one year rigorous imprisonment in case of default.
3. Appellants Shyam Bahadur, Ullu @ Sant Bahadur and Kali @ Suresh of Cr.A. No.2257/2007 have been found guilty for the offence under
Sections 148, 460 and 302/149 of the Indian Penal Code and have been sentenced to rigorous imprisonment for three years under Section 148 of
the I.P.C., rigorous imprisonment for 10 years and fine of Rs.2,000/- under Section 460 of the I.P.C. with a stipulation for one year rigorous
imprisonment in case of default and imprisonment for life and fine of Rs.5,000/- under Section 302/149 of the I.P.C. with a stipulation for 2 years
rigorous imprisonment in case of default.
4. Appellant Basant of Cr.A. No. 2451/2007 has been found guilty for the offence under Sections 148, 460 and 302/149 of the Indian Penal
Code and has been sentenced to rigorous imprisonment for three years under Section 148 of the I.P.C., rigorous imprisonment for 10 years and
fine of Rs.2,000/- under Section 460 of the I.P.C. with a stipulation for one year rigorous imprisonment in case of default and imprisonment for life
and fine of Rs.5,000/- under Section 302/149 of the I.P.C. with a stipulation for 2 years rigorous imprisonment in case of default.
5. This batch of appeals arise out of an incident, which is alleged to have been taken place on the intervening night of 15-16 January, 2006 at
12.30 A.M., in which one Ramlal lost his life.
6. The case of prosecution is that 4 accused persons, namely Kali, Ullu, Shyam and Sachin with deadly weapons alongwith 4-5 other unknown
persons formed an unlawful assembly with the common object of causing the death of Ramlal (deceased), on account of previous enmity. They
broke open the door of his house and in pursuance of their unlawful object of that assembly had beaten up the deceased to death.
7. As per prosecution, on the fateful night, Kamlabai (P.W.-6), her husband (deceased), two sons and four daughters were sleeping in the house.
At 11 P.M. in the night, someone pelted stones at her house and thereafter at 12.30 A.M., appellants alongwith other co-accused persons broke
open the door and forcibly entered her house, whereas other climb over the roof. Seeing this, Ramlal sent his daughters outside from the back
door to hide. According to prosecution, appellants Kali, Ullu, Shyam and Sachin, who were carrying axe, sword, rod and ballam respectively,
assaulted Ramlal and inflicted injuries on his head and body and thereafter dragged unconscious Ramlal outside, in the courtyard, where he was
again assaulted by all of them. Thereafter the accused persons fled from the scene. As per prosecution, the incident was witnessed by Kamlabai
(P.W.-6) and her sons Dhandhu @ Rakesh (P.W.-7) and Mukesh.
8. The injured was taken to the hospital, where he was declared dead. Merg was recorded and the body of the deceased was sent for
postmortem.
9. Report (Ex.P-10) to this effect was lodged by Kamlabai (P.W.-6). On the basis of FIR (Ex.P-10), the criminal law was set into motion. The
accused persons were arrested and on their disclosure statement, iron rod was recovered from Shyam, axe from Kali, ballam from Sachin and
sword from Ullu.
10. On completion of the investigation, the charge sheet was submitted against 6 persons namely Manjubai, Sachin, Kali, Ullu, Shyam and Basant,
as the rest of assailants could not be identified.
11. The prosecution, relied mainly on the evidence of P.W.-6 Kamlabai and P.W.-7 Dhandhu @ Rakesh, the eye witnesses, medical evidence on
record and the FSL report (Ex.P-10). The accused persons, when examined under Section 313 Cr.P.C., denied the offence and pleaded false
implication.
12. The trial Court after detailed scrutiny of the evidence on record, came to the conclusion that the charge under Section 3(2)(v) of the SC/ST
(Prevention of Atrocities) Act was not proved. On analysis of the evidence, the trial Court came to the conclusion that the case of prosecution as
against accused Manjubai was not established and acquitted her of all the charges leveled against her. However, the present appellants were found
guilty of the offence as charged and sentenced as aforesaid.
13. Shri S.C. Datt, learned Senior Counsel appearing for appellant Sachin in Cr.A. No.1845/2007 contended that the appellant was falsely
implicated. He was not present at the spot. Taking this court through the statement of Kamlabai (P.W.-6) and P.W.-7 Dhandhu @ Rakesh, it is
urged that appellant Sachin was standing outside the house. He never associated himself with the assembly and had not taken part in assaulting the
deceased. It is urged that in absence of any premeditation and common object, the trial Court was not justified in convicting the appellant applying
the Section 149 of the I.P.C. It is further urged that P.W.-6 Kamlabai and P.W.-7 Dhandhu @ Rakesh are related witnesses and their evidence
should be carefully examined.
14. Shri S.K. Gangrade, learned counsel appearing for appellants Shyam, Ullu and Kali in Cr.A. No. 2257/2007 has confined his arguments to
appellant No.1 Shyam only. It is stated that involvement of appellant No.1 in the incident is not established, as there was no injury on the body of
the deceased by iron rod, which was recovered from appellant No.1 Shyam. It is further urged that there was no common object for committing
the murder of the deceased. Under the circumstances, the conviction of the appellants under Section 302/149 of the I.P.C. was not proper.
15. Shri Ajay Tamrakar, learned counsel appearing for appellant Basant in has contended that the appellant has been falsely implicated. He was
not named in the FIR and the witnesses P.W.-6 Kamlabai has not recognized him. It is stated that no overtact has been attributed to him and no
recovery was made from him.
16. Shri Sudeep Deb, learned Govt. Advocate appearing for the respondent/State has made submissions in support of the impugned judgment,
contending that view taken by the trial Court was reasonable having regard to the evidence on record.
17. We have heard the learned counsel for the parties at length and meticulously perused the record.
18. Before proceeding further, it would be just and proper to mention the ante-mortem injuries recorded by P.W.-11 Dr. M.J. Biswas, in the
postmortem. The same are reproduced as under:-
(1) Swelling 5""x 2"" irregular manner on 5"" below the right knee joint
(2) Fracture of bone Tibia and fibula compound level fracture on that swelling 5"" below the right knee joint.
(3) Multiple number of abrasions on back of body about 10 in number on whole at back 6"" x 1/2"" in breadth superficial.
(4) Abrasion on right knee on back part 2""x 2"".
(5) Abrasion on right thigh 7""x 6"" on length and breadth.
(6) Abrasion on right thigh 1""x 1"" on length and breadth.
(7) Abrasion on right wrist area 1""x 2"" with swelling on abrasion 2""x 2"".
(8) Cut wound 1"" length x bone depth on back part at right elbow.
(9) Cut wound base of skull 1/2"" length x 1/2"" breadth 5"" from left ear.
(10) Cut wound on skull on occipital region 6"" on length x 1"" on breadth x upto bone depth.
(11) Cut wound on occipital region of head just later to No.10 wound 6""x1""x upto bone depth.
(12) Cut wound on skull below the No.11 wound 6""x1/2"" near nuilal line.
In the opinion of the doctor, the cause of death was excessive loss of internal and external blood due to fracture of occipital part of skull and
fracture of tibia and fibula. According to the doctor, death was homicidal in nature and the injuries suffered by the deceased were sufficient to
cause death in ordinary course.
19. The evidence on record discloses that FIR (Ex. P-10) was registered promptly at 1.15 A.M. in the night of 16.01.2006 itself on the
information of Kamlabai (P.W.-6), wherein she has clearly stated that at 12.30 in the night, Kali, Ullu, Shyam, Sachin and 4- 5 other persons
forcibly entered their house. Kali and Ullu, using abusive language caught hold of her hair and asked her to compromise. Seeing this, Ramlal sent
his daughters outside from back door. The accused persons then assaulted Ramlal with axe, sword, ballam and iron rod, as a result of which
Ramlal became unconscious. He was then dragged outside and beaten up by all the assailants, who thereafter fled from the scene. According to
her, Dhandhu @ Rakesh (P.W.-7) and Mukesh had also witnessed the incident. Thereafter she brought the injured to the hospital.
20. So far as the presence of appellants Sachin and Shyam is concerned, Kamlabai (P.W.-6) had clearly stated that it was moonlit night and the
light in her room and veranda were on and she clearly identified Kali, Ullu, Sachin and Shyam. In her statement recorded under Section 161
Cr.P.C., as well as her statement before the Court, had clearly stated that Kali, Ullu, Shyam and Sachin had broke open the door and entered into
their house. She had asserted that Ullu was carrying sword, whereas Kali was having axe, Shyam was carrying iron rod and Sachin was carrying
ballam. According to her, they had assaulted the deceased on head and all other parts of the body and caused him grievous injuries. These four
persons then dragged him outside where he was punched and kicked by all the members of the assembly. According to Kamlabai (P.W.-6),
appellants had earlier sold her daughter Neetu in Gwalior and a report to that effect was lodged against them at P.S. Patherkheda. The appellants
were pressurizing her to compromise that matter. She had further stated that there were 4-5 other unidentified persons, one of which she was later
told was Basant Katia. P.W.-6 Kamlabai in her court statement has asserted seeing appellant Sachin when the deceased was assaulted by the
appellants.
21. P.W.-7 Dhandhu @ Rajesh in his statement under Section 161 Cr.P.C. has stated that Kali had axe, Ullu had sword, Shyam had iron rod and
Sachin had ballam in his hand. They forcibly entered their house and all four of them assaulted his father with their weapons. The deceased was
then dragged out of the house and punched and kicked by all the members of that assembly. He has further stated that his mother in the report had
mentioned about 4-5 other unidentified persons, who kicked and punched his deceased father, whose name she would report once they are
identified, one of whom, it was told, was Basant Katia. However, in his court statement, he had stated that Sachin was standing there and used
only fists and kicks. P.W.-7 Dhandhu @ Rakesh, who is also a witness to the seizure memo (Ex.P-13) has initially denied recovery from appellant
Sachin, but in his cross-examination has admitted that memorandum was read over to him and the same was signed by him. He has stated about
the previous enmity with the appellants and further stated that Sachin has agreed to appear as witness from their side. This minor contradiction
about Sachin is not enough to brush aside the testimony of P.W.-7 Dhandhu @ Rakesh, as he had admitted that he did not see the complete
incident as he ran away from back door to call police. Moreover, it does not affect the credibility of the main version that the accused persons
caused the death of the deceased.
22. In (2016) 10 SCC 537 Bhagwan Jagannath Markad and others Vs. State of Maharashtra, the Supreme Court has held :-
19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep
in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching
the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when
discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the
Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence
Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for
contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at
variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the
creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The court
has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted [Leela Ram v. State of Haryana,
(1999) 9 SCC 525] . Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness
being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may
be closely scrutinised to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a ""partisan"" or
interested"" witness may lead to failure of justice. It is well known that principle ""falsus in uno, falsus in omnibus"" has no general acceptability
[Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381 ]. On the same evidence, some accused persons may be acquitted while others may be
convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A
witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of
observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy
does not affect the credibility of a witness.
23. From the evidence that has come on record, it is undisputed and established that there was dispute between the deceased and the present
appellants on account of the fact that earlier daughter of deceased was sold by the appellants and a case in this regard was pending against them.
24. Both these witnesses P.W.-6 Kamlabai and P.W.-7 Dhandhu @ Rakesh, though related, are natural witnesses and their presence at the place
of occurrence could not be doubted. They had asserted that it was moonlit night and the house of deceased was well lit as the lights were on in the
rooms and veranda. Hence, the witnesses had no difficulty in recognizing the accused persons namely, Kali, Ullu, Sachin and Shyam. However,
she could not identify the rest of the five members of that assembly. The clear, consistent, unimpeachable testimony of these witnesses clearly
establish the presence and involvement of Sachin and Shyam alongwith Ullu and Kali and other unidentified persons in the incident.
25. However, the case of appellant Basant in Cr.A. No.2451/207 stands on a different footing. FIR (Ex.P-10) lodged by P.W.-6 Kamlabai
specifically mentions the name of only four appellants i.e, Sachin, Shyam, Ullu and Kali alongiwth 4-5 unidentified persons. There is no mention of
Basant in the FIR. Later on, P.W.-6 Kamlabai in her statement under Section 161 of the Cr.P.C. has stated that apart from the named assailants,
4-5 other unknown persons assaulted the deceased with fists and kicks, one of whom she was later told was appellant Basant. However, P.W.-6
Kamlabai did not recognize appellant Basant in the Court when a specific query was put to her in this regard.
26. P.W.-7 Dhandhu @ Rakesh in his case diary statement has clearly named the other four accused persons as Kali, Ullu, Sachin and Shyam, but
regarding appellant Basant, he had stated that according to his mother P.W.-6 Kamlabai, 4-5 other unidentified persons had also assaulted the
deceased, one of whom she was later told was Basant Katia. Contrary to his case diary statement, P.W.-7 Dhandhu @ Rakesh has deposed that
he recognized appellant Basant, who was holding a rod, however, no recovery has been made from Basant. Apart from this bald statement, there
is no evidence on record against this appellant. P.W.-7 Dhandhu @ Rakesh admitted that he did not see the entire incident and ran away from the
back door to inform the police and the fact that P.W.-6 Kamlabai later on came to know about the name of Basant Katia makes it clear that if
P.W.-7 Dhandhu @ Rakesh knew or had seen or recognized the appellant on the date of incident, there was no reason for not mentioning his
name in the FIR. The law is well settled that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused
and the other towards his innocence, the view which is favourable to the accused should be adopted. Under the circumstances, appellant Basant is
entitled to the benefit of reasonable doubt, as his identity could not be established by the prosecution.
27. For the appellants Sachin and Shyam, it has been contended that the trial Court was not justified in convicting them under Section 302 by
applying Section 149 of I.P.C. P.W.-6 Kamlabai has asserted that Sachin and Basant were carrying iron rod, Shyam was carrying ballam and they
alongwith Kali and Ullu, who were carrying axe and sword respectively had assaulted the deceased and dragged him outside, where again he was
assaulted by all the members of the assembly. Apart from this, the weapons recovered from the appellants have found to have human blood on
them. It has been argued on behalf of the appellants that the common object was to make the deceased agree for the compromise and there was
no common object to kill the deceased and they could only be punished for the individual acts.
28. In order to understand the rival claims, it is apposite to refer to Section 149 of I.P.C., which reads as under :-
Section 149: Every member of unlawful assembly guilty of offence committed in prosecution of common object --
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.
29. A perusal of above Section makes it clear that Section 149 of I.P.C. applies not only to offences actually committed in pursuance of the
common object but also to offences that members of the assembly knew to be likely to be committed.
30. In Bhagwan Jagannath Markad (supra) the Supreme Court has held:
21.An offence committed in prosecution of common object of an unlawful assembly by one person renders members of unlawful assembly sharing
the common object vicariously liable for the offence. The common object has to be ascertained from the acts and language of the members of the
assembly and all the surrounding circumstances. It can be gathered from the course of conduct of the members. It is to be assessed keeping in
view the nature of the assembly, arms carried by the members and the behavior of the members at or near the scene of incident. Sharing of
common object is a mental attitude which is to be gathered from the act of a person and result thereof. No hard and fast rule can be laid down as
to when common object can be inferred. When a crowd of assailants are members of an unlawful assembly, it may not be possible for witnesses to
accurately describe the part played by each one of the assailants. It may not be necessary that all members take part in the actual assault[21]. In
Gangadhar Behera (supra), this Court observed :
25. The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable. A four-
Judge Bench of this Court in Masalti case [AIR 1965 SC 202] observed as follows:
15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the
assailants, that evidence should not have been accepted. This criticism again is not well founded. Where a crowd of assailants who are members of
an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not
possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with
weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for
instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough
to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful
assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no
doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide
which part of it is true and which is not.
31. In AIR 1956 SC 241, K.C. Mathew and others Vs. State of Travancore-Cochin, the Supreme Court has held :
17. Even if it be assumed that the common object was only to rescue the two accused who were in-the lock up, it is obvious that the use of
violence was implicit in that object. People do not gather together at the dead of night armed with crackers and choppers and sticks to rescue
persons who are guarded by armed police without intending to use violence in order to overcome the resistance of the guards; and a person would
have to be very naive and simple- minded if he did not realise that the sentries posted to guard prisoners at night are fully armed and are expected
to use their arms should the need arise; and he would have to be a moron in intelligence if be did not know that murder of the armed guards would
be a likely consequence in such a raid; and what holds good for murder also holds good for looting in general.
32. In the present case, as per the prosecution, there were more than five persons, who constituted the unlawful assembly and participated in
committing the crime in furtherance of the common object of all. Though, the identify of all the persons has not been established except for the
accused Kali, Ullu, Sachin and Shyam, whom the eye witnesses P.W.-6 Kamlabai and P.W.-7 Dhandhu @ Rakesh had clearly identified at the
time of occurrence. The fact that the assailants were more than five in number is also established from the number of injuries on the person of the
deceased. From the evidence on record, it is clear that the common object of these persons was to commit murder of the victim. The appellants
when armed with axe, sword, iron rod and ballam, went to the house of deceased in the middle of the night and forced their entry into the house of
the deceased by breaking open the door, it cannot be said that they had no intention to use violence or use these weapons in order to achieve their
object. Even if, their common object was to force the deceased to compromise, the appellants could have stopped and returned when the
deceased and P.W.-6 Kamlabai requested the appellants with folded hands and agreed to do compromise in the morning, but as seen from the
record, that had no effect on the appellants. Instead the deceased was assaulted with axe, sword, iron rods and dragged outside where he was
again assaulted by all the appellants. This ocular evidence is also corroborated by the medical evidence by the number of injuries received by the
deceased. It cannot be believed that even after seeing the deceased being hit 4-5 times on head with axe, the other co-accused/appellants Sachin
and Shyam did not realize that the murder of the deceased was likely to be committed. There was nothing on record to show that these appellants
disassociated themselves from the unlawful assembly or tried to stop the other co-accused from assaulting the deceased.
33. It is thus clear that whatever might have been the original common object of the appellants, it developed into common object of killing Rampal
when the appellants started abusing and assaulting him with the weapons, they were carrying and it was in pursuance of that common object,
Rampal was killed. Therefore, the trial Court has rightly convicted the appellants Sachin, Shyam, Kali and Ullu under Section 302 read with 149 of
the I.P.C. This finding of the trial Court is based on the evidence of P.W.-6 Kamlabai and P.W.-7 Dhandhu @ Rakesh who being natural
witnesses, their presence at the scene of incident could not be doubted. Nothing has been brought out in the cross-examination, which could shake
the testimony of these witnesses.
34. The question before us, now is whether less than five persons can be convicted by applying Section 149 I.P.C. This issue had been put to rest
by the Constitution Bench in the case of Mohan singh Vs. State of Punjab AIR 1963 SC 174, where the question before the constitution Bench
was whether two persons could be convicted by applying Section 149 I.P.C. and the Supreme Court has held :-
9. In dealing with the question as to the applicability of s. 149 in such cases, it is necessary to bear in mind the several categories of
cases which come before the Criminal Courts for their decision. If five or more persons are named in the charge as composing an
unlawful assembly and evidence adduced by the prosecution proves that charge against all of them, that is a very clear case where s.
149 can be invoked. It is, however, not necessary that five or more persons must be convicted before a charge under s. 149 can be
successfully brought home to any members of the unlawful assembly. It may be that less than five persons may be charged and
convicted under s. 302/149 if the charge is that the persons before the Court along with others named constituted an unlawful
assembly; the other persons so named may not be available for trial along with their companions for the reason, for instance, that they
have absconded. In such a case, the fact that less than five persons are before the Court does not make section 149 inapplicable for
the simple reason that both the charge and the evidence seek to prove that the persons before the court and others number more than
five in all and as such, they together constitute an unlawful assembly. Therefore, in order to bring home a charge under s. 149 it is not
necessary that five or more persons must necessarily be brought before the court and convicted. Similarly, less than five persons may
be charged under s. 149 if the prosecution case is that the persons before the Court and others numbering in all more than five
composed an unlawful assembly, these others being persons not identified and so not named. In such a case, if evidence shows that
the persons before the Court along with unidentified and un-named assailants or members composed an unlawful assembly, those
before the Court can be convicted under section 149 though the un-named and un-identified persons are not traced and charged.
Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful
assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons
so named two or more are acquitted leaving before the court less than five persons to be tried, then s. 149 cannot be invoked. Even
in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may
nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In
such cases, either the trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of
the persons named in the charge and tried will not necessarily displace the charge under section 149 because along with the two or
three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been
named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under
section 149 because on the evidence the court of facts is able to reach the conclusion that the persons composing the unlawful
assembly nevertheless were five or more than five. It is true that in the last category of cases, the court will have to be very careful in
reaching the said conclusion. But there is no legal bar which prevents the court from reaching such a conclusion. The failure to refer in
the charge to other members of the unlawful assembly unnamed and unidentified may conceivably raise the point as to whether
prejudice would be caused to the persons before the Court by reason of the fact that the charge did not indicate that un-named
persons also were members of the unlawful assembly. But apart from the question of such prejudice which may have to be carefully
considered, there is no legal bar preventing the court of facts from holding that though the charge specified only five or more persons,
the unlawful assembly in fact consisted of other persons who were not named and identified. That appears to be the true legal position
in respect of the several categories of cases which may fall to be tried when a charge under section 149 is framed.
10. In this connection, we may refer to three representative decisions of this Court. In Dalip Singh v. State of Punjab ((1954) S.C.R.
145.) this Court has held that before section 149 can be applied, the Court must be satisfied that there were at least five persons
sharing the common object. It has also been held that this does not mean that five persons must always be convicted before s. 149
can be applied. If the Judge concludes that five persons were unquestionably present and shared the common object, though the
identity of some of them is in doubt, the conviction of the rest would be good. In that case, this Court took the view that the evidence
adduced by the prosecution did not satisfactorily prove the fact that the unlawful assembly was composed of five or more persons,
and so, s. 149 was held to be inapplicable. In other words, on facts relevant for the purpose of applying s. 149 this case is similar to
the case with which we are concerned in the present appeal.
11. In Bharwad Mepa Dana v. State of Bombay this Court was dealing with a case where twelve named persons were charged with
having formed an unlawful assembly with the common object of committing the murder of three persons. At the trial before the
Sessions Judge, seven of the named persons were acquitted and five were convicted under s. 302/149 and s. 302/34. On appeal, the
High Court acquitted one of the convicted persons but maintained the conviction and sentence passed on the rest. The validity of the
said order of conviction and sentence was challenged before this Court on several grounds, one of which was that s. 149 became
inapplicable as soon as eight out of the twelve persons named as members of the unlawful assembly were acquitted. In rejecting this
argument, this Court referred to the finding recorded by the High Court that the unlawful assembly in question consisted of ten to
thirteen persons out of whom only four were identified and not the rest; and held that it was open to the High Court to come to such a
finding. The argument which was urged against the validity of such finding was put alternatively in two forms. It was first contended
that the prosecution case must be confined to the charge framed against the accused persons and the charge in the Sessions Court
referred to twelve named persons as composing the unlawful assembly, and so, as soon as eight of them were acquitted, s. 149
became inapplicable. It was also urged that in coming to the conclusion that the unlawful assembly consisted of ten to thirteen
persons, the High Court was making out a case of a new unlawful assembly and that was not permissible in a criminal trial. Both these
arguments were repelled by this Court and it was held that there was no legal bar which prevented the High Court from coming to the
conclusion that apart from the persons who were acquitted and excluding them, evidence adduced by the prosecution showed the
presence of more than five persons who composed the unlawful assembly. The assembly about the existence of which the High Court
has made a finding is not a new assembly but the same assembly as alleged by the prosecution. The only difference is that according
to the charge, all the members of the assembly were alleged to be known, whereas on the evidence the High Court has reached the
conclusion that the identity of all the members of the assembly has not been established, though the number of the members
composing the assembly is definitely found to be five or more. It is on this reasoning that this Court confirmed the conviction of the
appellants under s. 302/149. Thus, this decision illustrates how s. 149 can be applied even if two or more of the persons actually
charged are acquitted.
12. The same principle has been enunciated by this Court in Kartar Singh v. State of Punjab. According to this decision, it is only
when the number of alleged assailants is definite and all of them are named and the number of persons found to be proved to have
taken part in the incident is less than five, that it cannot be held that the assailants, party must have consisted of five or more persons.
It is true that having stated this position, this Court has also observed that the fact that certain persons are named in the charge as
composing an unlawful assembly, excludes the possibility of other persons to be in the said assembly especially when there is no
occasion to think that the witnesses who named all the accused could have committed mistakes in recognising the assailants. It is on
this observation that Mr. Raghubir Singh relies. We, however, think that it would be unreasonable to read this statement as laying
down an unqualified proposition that whenever persons named in the charge are alleged to constitute an unlawful assembly it is legally
not permissible to the prosecution to prove during the trial that persons in addition to those named in the charge also were members
of the said assembly. In other words, what this observation intends to suggest is that where persons named in the charge are alleged
to compose an unlawful assembly, the court of facts would be slow to come to the conclusion that persons other than those named in
the charge were members of the said assembly. If however, it appears on evidence that persons not so named in the charge were
members of the unlawful assembly, there is no legal bar which prevents the courts from reaching that conclusion. This position can
and does arise where some of the persons composing the unlawful assembly are not identified by the witnesses and they are not
named. In fact, the decision in the case of Kartar Singh itself shows that this Court rejected the appellants contention that their
conviction under ss. 302 and 307, read with s. 149 was invalid. Therefore, we see no inconsistency between the observations made
in this case and the earlier decisions to which we have just referred. The result is that in the circumstances of the present case, the
appellants are entitled to contend that s. 149 cannot be invoked against them.
35. Similar is the view held in the cases of Haradhan Das Vs. State of West Bengal (2013) 2 SCC 197, Raj Kumar @ Raju Vs. State of
Uttaranchal (2008) 11 SCC 709, Shaji & others Vs. State of Kerala (2011) 5 SCC 423, Dalip Singh and others Vs. State of Punjab AIR 1953
SC 364, Ram Bihar Singh & others Vs. State of Bihar 1964 (1) SCR 775, Nar Singh and another Vs. State of Uttar Pradesh AIR 1954 SC 457,
Khem Karan and Others Vs. State of Uttar Pradesh and another AIR 1974 SC 1567, Bharwad Mepa Dana and another Vs. the State of
Bombay AIR 1960 SC 289 and Superintendent and Remembrancer Legal Affairs, W.B. Vs. Mangal Pathak & others (1995) supp(1) SCC
1567.
36. In the present case, from the evidence on record, it is clearly established that more than five persons participated in the occurrence though 4-5
of them could not be identified and charged. Therefore, in the light of the aforesaid settled position, there is no difficulty in convicting the appellants
Kali, Ullu, Sachin and Shyam under Section 302/149 of the I.P.C.
37. As a result, appeal filed by appellant Basant (Cr.A. No.2451/2007) is allowed, his conviction and sentence is set aside. While, Cr.A. No.
1845/2007 and Cr.A. No. 2257/2007 are dismissed. The judgment passed by the trial Court, so far as it relates to appellant Sachin in Cr.A.
No.1845/2007 and appellants Shyam Bahadur, Ullu @ Sant Bahadur and Kali @ Suresh in Cr.A. No. 2257/2007 are upheld and affirmed.
38. Appellant Basant in Cr.A. No.2451/2007 is in jail. He is directed to be released forthwith, if not required in any other case.
39. It is informed that appellant Sachin in Cr.A. No. 1845/2007 and appellant No.1 Shyam Bahadur in Cr.A.No.2257/2007 are on bail. Their bail
bonds shall stand cancelled and they are directed to be taken into custody forthwith to undergo the remaining part of jail sentence. Appellants
No.2 and 3 in Cr.A.No. 2257/2007, namely, Ullu @ Sant Bahadur and Kali @ Suresh, who are in jail shall remain incarcerated to undergo the
remaining part of their jail sentence.
40. A copy of this judgment be also kept in the record of Cr.A. Nos. 2257/2007 and 2451/2007.
