Jai Singh And Others vs Jai Singh And Others

Conviction,Sentence

Under Section 148 of the

IPC.","R.I. for 1 year and fine

of  Rs.200/-  each,  in

default, further R.I. for

three months to each.

,

Under Section 427 of the

IPC.","R.I. for six months and

fine of Rs.100/- each, in

default, further R.I. for

one month each.

Under Section 449 of the

IPC.","R.I. for 5 years and fine

of  Rs.200/-  each,  in

default, to undergo

further R.I. for six

months.

Under Section 302/149 of

the IPC.","Imprisonment for life

and fine of Rs.500/- each,

in default, further R.I. for

1 year to each.

Under Section 323/149 of

the  IPC,  as  regards

Taraibai.","R.I. for three months

and fine of Rs.100/-, in

default, further R.I. for

fifteen days.

,

Under Section 325/149 of

the IPC","R.I. for 3 years and fine

of Rs.200/- to each, in

default, to suffer further

R.I. for six months each.

given `lathi’ blows and with the help of butt of the axe over his thigh and thereafter, they all had come the house. In the evening at about 05:30",

PM the accused persons â€" Roop Singh, Haru, Mohan, Bhairam, Jaisingh and Abhay Singh came to their house armed with lethal weapons viz.",

`lathis’ and axe. The accused â€" Roop Singh and Jaisingh were armed with axes whereas other accused persons were having `lathis’ in their,

hands. The complainant’s family had closed the front and back doors of the house, as they were terrified. The accused Jai Singh has broken the",

front door of the house with the help of an axe and thereafter the accused persons entered into the house by breaking the doors and the wall. Some of,

the accused persons, namely, Ram Singh and others entered into the house after breaking the back doors. The complainant was beaten by the",

accused Haru, Ramsingh with the help of `lathis’ whereas the accused â€" Roop Singh, Abhay Singh and Mohan had beaten Parubai and Najaibai",

with `lathis’. When her brother â€" Amar Singh tried to stop them he was also beaten. Thereafter, he had run away from the house. Her mother",

â€" Parubai was dragged by the accused Haru, Ramsingh, Mohan and Abhay Singh from the room to the courtyard and thereafter the accused",

persons â€" Haru and Ramsingh had beaten her with the help of `lathis’ and when she had fallen down, other accused persons â€" Jaisingh,",

Bhairam etc. also beat her. It is alleged that the accused â€" Ramsingh smashed her head with the help of a big stone. Thereafter, the accused",

persons had gone from the house of the complainant but family members were so terrified that they had gone to forest to save their lives. In the,

morning they had taken shelter in the Village â€" Eda. When the father of the complainant â€" PW-1, Taraibai and Narsingh came then the police",

was given intimation about the incident on telephone which was recorded in the Roznamcha, Ex.P/33 by PW-10. He came at the spot and the",

Dehatinalish (Ex.P/1) was recorded by him. Her statement has been corroborated by other injured witnesses viz. PW-2, PW-3; Sunita and Amarsingh",

respectively. They have also stated that the accused persons entered into the house after breaking the doors and had beaten the family members and,

dragged the deceased to the courtyard and all the accused persons had beaten the deceased with the help of `lathis’. Statements of PW-2 and,

PW-3 are well supported by another injured witness â€" Najaibai who is the daughter of the complainant. There is also an independent eye witness,",

Sher Singh who has also stated that he had seen the accused persons killing the deceased and beating the family members of the complainant. The,

intimation to the police and registration of `Dehati-nalish’ is proved by the Investigating Officer, PW-10. These injured witnesses were sent for",

medical examination by the Investigating Officer and they were examined by Dr. Anil Kumar (PW-2).,

PW-9, Dr. Anil Kumar has stated that on 29-12-2005 he was posted to Civil Dispenasary, Piplound. He had examined Taraibai and vide his",

medical report, Ex.P/27 he found 9 injuries on the person of Taraibai (PW-1). He also examined PW-2, Sunita and her medical report is Ex.P/28. He",

examined another injured witness PW-3, Amar Singh and found four external injuries on his person, vide medical report - Ex.P/29. The same doctor",

also examined another witness, Najaibai and the medical report is Ex.P/30. He found three injuries on her person. Dr. Anil Kumar had done autopsy",

of the dead-body of the deceased on 30-12-2005 and found 21 external injuries on the person of the deceased. There was smashed wound of 5 ½,

cm x 1 cm and 10 cm x 1 ½ cm frontal bone region of skull and temporal, parietal and occipital bone region. There were other three smashed",

wounds on the skull running 5 cm x 1 cm on left parietal occipital bone region. There were lacerated wounds, contusion and other injuries on the",

person of the deceased. He also found 9 to 12 internal injuries on frontal bone region, parietal bone region, right parietal occipital bone and other",

injuries on the parietal bones. He had carried out the postmortem of the deceased with the help of Dr. M. Choudhary. The cause of death was found,

excessive bleeding due to fracture on the skull and grievous injuries. The postmortem report, Ex.P/31 was proved by him. He had also given a report",

the injuries could have been caused by the seized weapons, i.e., `lathis’ and butt of the axe. Further test of fracture and other injuries were proved",

by Dr. Azad Jain (PW-12). The injury of Najaibai was proved by Dr. Nitesh Kumar (PW-13) who had treated her in M.Y. Hospital Indore. These,

injured persons are eye witnesses, namely, Taraibai (PW-01), Amar Singh (PW-3) and Najaibai (PW-6). They are stamp witnesses as they received",

injuries in the incident and their presence cannot be disputed and doubted. Their testimonies cannot be discarded merely on the ground that they are,

related with the deceased. The incident had taken place in the house of the deceased and, therefore, non-presence of other villagers in the house",

would not be fatal. Even statements of these injured witnesses are also supported by testimony of Sher Singh (PW-4) who is not relative and is an,

independent witness. Thus, testimonies of these witnesses cannot be discarded.",

The contention of the counsel for the appellants that there was no common object to kill the deceased but intention was only to threaten the,

complainant’s side and at the most, their intention could have been to cause simple or grievous injuries to the deceased, cannot be accepted in light",

of the testimonies of these witnesses and in the facts and circumstances of the present case.,

Counsel for the appellants vehemently relied on the judgment of the Apex Court rendered in the case of Shivlingappa Kallayanappa vs. State of,

Karnataka, AIR 1995 SC 254 to contend that since the accused persons have not used the sharp-edged side of the axe, therefore, it cannot be held",

that they had intention to kill the deceased. He further referred to the judgment passed in the case of Shivjee Singh and ors. vs. State of Bihar,",

(Criminal Appeal No.1494 of 2004, decided on 30-7-2008) to contend that on the basis of mere possibility the accused persons cannot be convicted for",

murder. It is also contended by him that the deceased was smashed by only one of the appellants, namely, the accused â€" Ramsingh by means of a",

heavy stone and not by other accused persons, as there was no overtact or active participation by other accused persons, therefore, they cannot be",

held liable for the individual act of one of the accused persons.,

The learned counsel appearing for the appellants further placed reliance upon the judgment of the Apex Court rendered in the case of Allauddin,

Mian and Sharif Miyan and another vs State of Bihar, AIR 1989 SC 1456 in support of his contention that all the appellants cannot be held guilty with",

the aid of Section 149 of the Indian Penal Code for common object to kill the deceased.,

On assimilation of entire facts and testimonies of the eye witnesses, we find that all the accused persons were aggressor and they went to the",

house of the complainant’s side armed with lethal weapons viz. `lathis’ and axe. They had broken the front and back doors of the house. They,

had beaten all the family members of the deceased and the deceased was dragged from the room to the courtyard and thereafter, all the accused",

persons had beaten them by means of `lathis’. It is alleged that thereafter Ramsingh had also smashed the head of the deceased. The manner in,

which the offence has been committed that the accused persons had gone to the house of the deceased armed with lethal weapons and thereafter had,

broken the doors and trespassed into the house of the deceased and had beaten her and other witnesses. We are of the considered view, the",

prosecution has proved that all these persons had formed an unlawful assembly with common object to kill the deceased. Contention of the appellant,

cannot be accepted that it was an individual act of Ramsingh who had smashed the head of the deceased because all the accused persons are alleged,

to be armed with `lathis’ and axes and had beaten the deceased and other witnesses. Further human blood has been found present in the,

`lathi’ and the axe seized from the accused persons. Testimony of the four eye witnesses who are injured witnesses â€" Taraibai (PW-1), Sunita",

(PW-2), Amar Singh (PW-3) and Najaibai (PW-6) cannot be discarded because of some minor contradictions and because they are relatives of the",

deceased. Once the prosecution has established that an unlawful assembly was formed and the accused persons were armed with deadly weapons,

and had broken into the house of the deceased, it is not necessary to prove the overtact by every persons.",

In the case of Laljee Vs State of U.P. (1989)1SCC 437 the Apex Court has held as under:,

“19. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section,

created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the",

unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the",

unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of",

the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the,

section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand,

commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be,

likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of,

the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons,

assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific",

overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each,",

and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person",

perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that",

the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.â€​",

In Yunis Vs. State of M.P. (2003) 1 SCC 425, learned counsel appearing for the appellant therein argued that no overt act was imputed to his",

client and he was being implicated only on the basis of Section 149 IPC. This Court ascribing no merit to the argument, held that :",

“……...even if no overt act is imputed to a particular person, when the charge is under Section 149 IPC, the presence of the accused as part of",

an unlawful assembly is sufficient for convictionâ€​. Accordingly the Courtâ€​,

Accordingly the Court in that case observed that the appellant was a member of the unlawful assembly which itself is sufficient to hold him guilty,

when his presence has not been disputed.,

Relying on Lalji Vs. State of U.P. this Court in Subal Ghorai Vs. State of W.B. (2013) 4 SCC 607 held;,

“ 52. ….. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful",

assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the,

commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all",

may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence",

with the aid of Section 149 IPC if they shared common object of the unlawful assemblyâ€​,

Following the aforesaid judgments the Apex Court reiterated the principle in the cases of Anup Lal Yadav and another Vs. State of,

Bihar (2014)10 SCC 275, regarding constructive liability for being part of the unlawful assembly held that it is well settled that once it is established",

that unlawful assembly had a common object it is not necessary that every member of an unlawful assembly must be shown to have committed some,

overt act, rather they can be convicted under Section 149 of IPC.",

In view of the aforesaid delineation of facts, the judgments relied upon by the learned counsel for the appellants would not apply in the facts and",

circumstances of the present case, especially when the prosecution case is proved by four injured eye witnesses, who are the stamp witnesses in the",

present case.,

In view of the aforesaid enunciation of law, we do not find any error in the findings recorded by the Court below convicting and sentencing the",

accused-appellants, warranting any interference of this Court in the present appeal.",

Ex-consequenti, the appeal deserves to and is hereby dismissed.",

Before parting with the case, unreserved appreciation for the valuable learned amicus curiae. The High Court we must put on record our",

assistance rendered by the Legal Services Committee shall remit fees of Rs.4000/- (Rs. four thousand only) to the learned counsel who has assisted,

this Court.,