Kallu Yadav @ Dilip Singh Yadav & Ors. vs The State Of Madhya Pradesh

Per: Justice Vivek Agarwal

This appeal is filed being aggrieved of judgment dated 20.02.2013 passed by learned IVth Additional Sessions Judge, Chhatarpur (M.P.) in ST No.149/2011 whereby learned trial Court has convicted the appellants, namely, Kallu Yadav alias Dilip Singh Yadav, Murat Singh, Heera Singh, Devi Singh, all sons of Hukum Singh Yadav and Amar Singh Yadav S/o Sundarlal Yadav as under :-Accused/appellant No.1 Kallu Yadav alias Dilip Singh Yadav.

2 . It is submitted that prosecution case, in short, is that deceased Jagat Raj was residing with his family at village Nahdoura and was carrying out his agricultural operations. There were four-five buffaloes in his house which were taken for grazing by Mahadev Sahu. On 06.04.2011, at about 7:00 a.m., Jagat Raj along with his son Anil had taken his buffaloes from his house and was going towards the fields of Mahadev Sahu for grazing when on way he crossed fields of Amar Singh Yadav in which one of the buffaloes strayed, as a result of which Amar Singh started abusing Jagat Raj and when Jagat Raj asked him not to abuse him then they saw that from behind Amar Singh armed with an axe and others armed with lathi reached the place of the incident where Amar Singh had hit Jagat Raj with an axe, as a result of which he had fallen down. Seeing this incident Anil had run away to save his life and had raised an alarm then Mahadev Sahu reached the place of the incident.

Thus, Ms. Deeksha Shrivastava, learned counsel for the appellants, submits that when total facts of the case and the evidence which has come on record is taken into consideration, firstly, there are no injury marks on the body of Jagat Raj caused by hard and blunt object, like, lathi.

Thus, it is submitted that when the incident took place suddenly and at the spur of moment on account of cattle of deceased Jagat Raj straying in the fields of Amar Singh Yadav, merely bystanders cannot be convicted with the aid of Sections 148 and 149 of IPC.

It is submitted that as far as Amar Singh is concerned, he withdrew his appeal on completion of his sentence vide order dated 24.09.2025.

Learned Public Prosecutor for the State opposes the prayer made by learned counsel for the appellants and prays for dismissal of the present appeal filed by the appellants.

7 . After hearing learned counsel for the parties and going through the record, it is evident that as per postmortem doctor, Dr. S.K. Gupta (PW-2), Jagat Raj had one abrasion on left hand side of his face measuring 2 x 1 inch. There was a incised wound on the right shoulder measuring 3.5 cm x 1/2 cm bone deep, as a result of which scapula bone was cut. There was an incised wound on the rear side of the neck C-7/D-1 vertebra in an oblique fashion measuring 6 x 1 x bone deep. Blood vessels under C-7/D-1 were cut and spinal cord was also completely detached. Fourth injury was incised wound on the occipital region in an oblique manner measuring 2 x 1/2 cm bone deep, 2.50 cm x 1/2 cm bone deep, 3.50 cm x 1/2 cm bone deep, so also 2 cm x 1/2 cm bone deep, as a result of which outer table of occipital bone was cut. There was a cut injury below the right hand side mastoid process measuring 1 cm x 1/2 cm bone deep. Doctor opined that cause of death was spinal shock as a result of cutting of the spinal cord. Death had occurred within six hours of postmortem, it was homicidal in nature.

Evidence of Anil alias Anni (PW-3) is very important. He is the eye witness to the incident. Anil Patel (PW-3) has admitted in his testimony that he had not mentioned that other than Amar Singh others were also armed with axe.

This witness stated, in para 19, that when his father was beaten that time he was with him, he had not seen any injury marks caused with a lathi on the body of his father. He further states that he had not seen as to which of the accused were armed with which of the weapons.

In para 22, this witness admits that his brother Ashok was one of the contestants to the Panchayat Election along with Chaturesh, Harish Chandra. He admitted that uncle of accused Amar Singh, namely, Bhagwat Singh had also contested Election. Harish Chandra Patel had won the Election of Sarpanch.

When evidence of Anil Patel is taken into consideration along with the evidence of the I.O., namely, Shri Mubarak Ali (PW-10), Shri Mubarak Ali has admitted, in para 25, that, in Ex.P-3, it is mentioned that Amar Singh was armed with an axe and other persons were armed with danda/lathi. He admits that except for Amar Singh, it is not mentioned as to with which arms other accused persons were armed.

Thus, it is also admitted fact that seized axes were not sent for FSL reporting. It is also an admitted fact that Makhan from whom an axe was seized and which was subjected to FSL reporting and in such FSL reporting, since human blood was found on the axe of Makhan yet he has been exonerated by the trial Court. When these facts are taken into consideration, then looking to the fact that firstly, there are no injuries caused by lathi on the body of the deceased Jagat Raj. Secondly, in the FIR, possession of axe and assault with axe is attributed only to Amar Singh and nobody else. Therefore, conviction of appellant Amar Singh under Section 302 appears to be justified. Other four accused persons are real brothers, they all are sons of one Shri Hukum Singh Yadav. False implication or over implication out of rivalry is not uncommon in Indian society. No overt act has been shown or attributed to other accused persons except Amar Singh. Therefore, when incident took place at the spur of the moment when one of the buffaloes belonging to the complainant party had ventured into the fields of Amar Singh for the purposes of grazing, it cannot be said that there was any common object or common intention to cause death of Jagat Raj. In fact, no injuries have been attributed to other accused persons.

When these facts are taken into consideration along with the fact that it is admitted that one of the buffaloes of Jagat Raj had unauthorizedly entered in the fields of Amar Singh, then merely saying that all the accused persons had formed common object to eliminate Jagat Raj is not made out. Firstly, incident took place at the spur of the moment and; secondly, one has to the cautious that constructive liability should not be so stretched as to lead to false implication of innocent bystanders.

In case of Subal Ghorai and Others Vs. State of West Bengal, (2013) 4 SCC 607, it is held that quite often, people gather at the scene of offence out of curiosity and they do not share the common object of the unlawful assembly. If a general allegation is made against large number of people, the Court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 of the Indian Penal Code. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The Court must have before it some material to form an opinion that the accused shared common object. The Criminal Court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime.

Similarly, in case of Roy Fernandes Vs. State of Goa, (2012) 3 SCC 221, it is held that sudden action of one of the member in the assembly will not render all others to be liable. It is held that sudden action of one of the members of the unlawful assembly constitutes an act in prosecution of the common object of unlawful assembly namely, preventing of erection of the fence in question and whether the members of the unlawful assembly knew that such an offence was likely to be committed by any member of the assembly, Supreme Court answered in negative.

Thus, when these facts are taken into consideration, then it is evident that as far as Amar Singh is concerned, there was a sudden action on part of Amar Singh. Secondly, when rule of caution is applied as laid down in Subal Ghorai (surpa), then we are of the opinion that neither the principles of unlawful assembly or common object can be deduced from the evidence produced by the prosecution witness but it will fall as a case of sudden provocation for Amar Singh which will be covered by the law laid down in case Roy Fernandes (supra) and, therefore, we have no hesitation that other appellants other than Amar Singh being bystanders, coupled with the fact that deceased had not sustained any lathi blow their conviction with the aid of Section 149 of IPC cannot be sustained in the eyes of law.

Accordingly, appeal is allowed. The impugned judgment dated 20.02.2013 passed by learned IVth Additional Sessions Judge, Chhatarpur (M.P.) in ST No.149/201 as regards the accused persons, namely, Kallu Yadav alias Dilip Singh Yadav, Murat Singh, Heera Singh and Devi Singh is set aside. They are acquitted from the charges under Sections 147 & 302 read with Section 149 of IPC. Appellant, namely, Kallu Yadav alias Dilip Singh Yadav, Murat Singh, Heera Singh and Devi Singh Ali are on bail, their bail bonds are hereby discharged.

Let record of the trial Court be sent back.