CRIMINAL APPEAL NOS. 478-479 .OF 2019 (@ SLP (Crl) Nos.457-458 OF 2016) Dauwalal @ Ganesh Devangan & Ors. v. State of Madhya Pradesh (Now State of Chhattisgarh)

                                      1 Reportable

          IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 478-479   OF 2019 (Arising out of Special Leave Petition (Criminal) Nos.457-458 of 2016)

DAUWALAL @ GANESH DEVANGAN & ORS.                    …Appellants

VERSUS

STATE OF MADHYA PRADESH  (NOW STATE OF CHHATTISGARH)         …Respondent

J U D G M E N T

Uday Umesh Lalit, J.

1. These  appeals,  at  the  instance  of  four  original  Accused  namely

Santosh  Kumar,  Dauwalal  @  Ganesh  Devangan,  Manohar  Verma  and

Puneetram Verma (Original Accused Nos.6, 12, 13 and 16 respectively) seek

to challenge the common judgment and order dated 15.06.2015 passed by the

CRIMINAL APPEAL NOS. 478-479 .OF 2019 (@ SLP (Crl) Nos.457-458 OF 2016) Dauwalal @ Ganesh Devangan & Ors. v. State of Madhya Pradesh (Now State of Chhattisgarh)

                                      2 High Court1 dismissing Criminal Appeal Nos.410 and 698 of 2000 as against

the appellants.

2. First  Information Report (Ext.P-60) was lodged with Police Station

Bhatapara  (Rural),  District  Raipur  pursuant  to  information received at  the

Police Station around 12:05 a.m. on 24.02.1997 from Informant Netram (later

examined  as  PW-2).   According  to  the  information,  the  cousin  of  the

Informant named Parasram Yadav, Deputy Sarpanch, Village Jarod, Bhatapara

was  assaulted  fatally  on  23.02.1997  at  about  9.00  p.m.   The  relevant

information had named certain persons to be responsible for the crime from

the assembly of 25-30 persons who had gathered outside the house of the

deceased.  The information was:-

“Bhuneshwar Verma, Kamta Prasad Yadav, Mohan Verma, Kaushal verma, Gayaram Verma, Santosh Verma, Bihari Lal Verma,  Shanker  Lal  Verma,  Bharat  Lal  Verma,  Virendra alias  Tatku Verma, Daulal  alias  Ganesh Dewagan,  Puneet Ram Vermaetc 25-30 people of his village came at the house of my brother Parasram Yadav, Deputy Sarpanch, Village- Panchayat, Jarod, due to enmity and with intention to kill him  and  being  unanimous  and  being  armed  with  Laathi, Danda, Khotlaetc started giving filthy abuse and by entering into the house of Parasram assaulted him and they dragged Parasram from his house and took him out in the courtyard and beat him with Laathi, Danda and Bhuneshwar Verma hit stone of about 15-20 kg weight on the head of Parasram and caused his death, due to which his brain got scattered out of skull.”   

1 High Court of Chhattisgarh at Bilaspur

CRIMINAL APPEAL NOS. 478-479 .OF 2019 (@ SLP (Crl) Nos.457-458 OF 2016) Dauwalal @ Ganesh Devangan & Ors. v. State of Madhya Pradesh (Now State of Chhattisgarh)

                                      3

3. During the course of investigation, names of 17 persons surfaced as

suspects.   Those  17  persons  including  the  appellants  were  tried  for  the

offences punishable under Sections 147, 148, 323, 342 and 450 IPC as well as

under Section 302 read with 149 IPC in Sessions Case No.359 of 1997.   

4. PW-1 Dr. A.D. Purena who had conducted post-mortem on the dead

body of the deceased deposed that there were external injuries all over the

body.  The head was crushed, lacerated with compound multiple fractures on

the  skull  bone,  the  brain  material  was  absent  and  the  skull  bones  were

fractured in various sizes, multiple in number.  

5. 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 brother Parasram, then I came out and saw that Dayaram, Roshan, Onkar, Vinod, Tatku, Dauwa, Manohar, Mohan, Bhuwan and Punit were there. 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 shouting saying ‘nikalo saale ko’.  The door was open and seven persons namely Bihari, Shanker, Hari, Vinod, Suneshwar, Bharat and Kamta were beating my brother inside the house.  I reached on

CRIMINAL APPEAL NOS. 478-479 .OF 2019 (@ SLP (Crl) Nos.457-458 OF 2016) Dauwalal @ Ganesh Devangan & Ors. v. State of Madhya Pradesh (Now State of Chhattisgarh)

                                      4 the spot and requested the accused persons not to beat  my  brother,  I  requested  them  with  folded hand.  Thereafter, Bihari was dragged and pulled out my brother, to which I resisted, then Bihari hit at my head.  Thereafter, Kamta came from behind and hit Laathi at my head.  On this I shivered and got perplexed.  Then my wife Dulari Bai caught me by both hand and took me to my room and locked the door and I  saw the incident peeping through the gap of door.  All the accused persons dragged  out  my  brother  from  Parchhi  and  hit Laathi due to which my brother got unconscious and  fell  down.   Thereafter,  Bihari  told  that  he could  be  alive  so  hit  the  stone.   Thereafter, Bhaneshwar,  Bihari,  Shanker,  Tetku,  Vinod  hit stone and went away laughing.”

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

“At  that  time  accused  Bihari,  Kaushal,  Hari, Bharat, Bhuwaneshwar, Tetku, Kamta, Mote etc. came.  They were armed with Laathi.   Accused persons  came  to  my  house  and  assaulted  my husband.  At that time my husband was sleeping on  Takhat.   They  got  him  lifted  down  and assaulted.  When I stopped accused persons from assaulting,  then  Bihari  told  me  to  run  away otherwise  they  could  kill  me  also.   Thereafter, they dragged my husband from the house to the Parchhi and assaulted there.  Then they dragged him  from  Parchhi  to  the  courtyard  and  then Bihari,  Bhuwneshwar  sworn to  hit  stone on the head  of  the  deceased  Parasram  and  then  they brought stone kept at my house and hit at the head of my husband Paras.  Bihari, Hari, Bharat hit the stone on the head, due to which the head of my husband was broken and his death was caused.”

CRIMINAL APPEAL NOS. 478-479 .OF 2019 (@ SLP (Crl) Nos.457-458 OF 2016) Dauwalal @ Ganesh Devangan & Ors. v. State of Madhya Pradesh (Now State of Chhattisgarh)

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III. PW-4  -  Narender,  11  years  old  son  of  deceased

Parasram  stated that he had seen 7 persons who came inside the

house and then dragged his father out.  After the father

was  so  dragged  out,  the  accused  had  assaulted  his

father.  He did not name any of the appellants in the

first part of the incident but the appellants were named

to  be  part  of  the  assembly  which  had  assaulted  his

father outside the house.    

6. The Second Additional Sessions Judge, Baloda Bazar, District Raipur

by his judgment and order dated 29.01.2000 found that the prosecution had

established its case completely.  All 17 accused persons were found guilty of

the offences with which they were charged and the order of sentence was as

under:- “… … … every accused person is punished for one year rigorous  imprisonment  under  Section  148,  five  years rigorous  imprisonment  under  Section  450  and  fine  of Rs.1000/-  each,  and  under  Section  342  section  323  is included, therefore, accused persons are punished with life imprisonment under Section 302/149 and fine of Rs.1000/- each.   In  case  of  non-deposit  of  fine,  additional  simple imprisonment of 6 months is awarded to each of the accused person and in case of payment of Rs.20,000/- may be paid to the wife of deceased out of the fine received from the accused persons as compensation under section 357 Cr.P.C.

CRIMINAL APPEAL NOS. 478-479 .OF 2019 (@ SLP (Crl) Nos.457-458 OF 2016) Dauwalal @ Ganesh Devangan & Ors. v. State of Madhya Pradesh (Now State of Chhattisgarh)

                                      6 All sentences shall run concurrently and period of judicial custody be adjusted from the period of sentence.”

7. Criminal Appeal Nos.410 and 698 of 2000 were preferred against the

aforesaid conviction and sentence by 10 convicted accused and 7 convicted

accused respectively in the High Court.  Original Accused No.10, Birendra

Kumar was found to be Juvenile on the date of occurrence and his case was

accordingly separated.  By its judgment and order which is presently under

appeal,  the  High  Court  affirmed  the  view  taken  by  the  Trial  Court  and

dismissed  both  the  appeals.   Thereafter,  Special  Leave  Petition  (Crl.)

Nos.457-458 of 2016 was preferred by 9 convicted Accused in this Court.  On

29.01.2016  this  Court  found  no  ground for  interference  with  respect  to  5

petitioners  namely  Kamta  Prasad,  Shankerlal  Verma,  Bharatlal  Verma,

Hariram Verma and Vinod Verma and dismissed their Special Leave Petition.

However, as regards the present appellants, notice was issued whereafter both

the sides were heard in the matter.

8. Mr. Naveen Prakash, learned Advocate appearing for the appellants

submitted:- I. The appellants were not  named by PW-2 Netram in his first

reporting.

CRIMINAL APPEAL NOS. 478-479 .OF 2019 (@ SLP (Crl) Nos.457-458 OF 2016) Dauwalal @ Ganesh Devangan & Ors. v. State of Madhya Pradesh (Now State of Chhattisgarh)

                                      7 II. However, in his examination in Court said Netram had named

the  appellants  but  did  not  attribute  any  specific  overt  act  to

them.   

III. PW-3, Urmila, widow of deceased did not name the appellants

in her testimony.   

IV. PW-4 did name the appellants as part of the mob which had

gathered outside the house and was responsible for assault on

the  deceased.   However,  in  his  cross  examination,  he  had

accepted that while the accused were assaulting his father, his

mother had kept him and his brother hidden inside the house.   

9. The learned counsel for the State on the other hand submitted that the

material on record clearly pointed towards the involvement of the appellants.

He submitted that the appellants were named by both PWs 2 and 4 and as

such the appellants were rightly convicted.  

10. It  is  true  that  in  a  crime  committed  by  an  unlawful  assembly  by

principle of vicarious liability, every member of the unlawful assembly would

be guilty of the offence, even if he himself had not done the actual act.  But

the facts must indicate with clarity that such person was in fact a member of

CRIMINAL APPEAL NOS. 478-479 .OF 2019 (@ SLP (Crl) Nos.457-458 OF 2016) Dauwalal @ Ganesh Devangan & Ors. v. State of Madhya Pradesh (Now State of Chhattisgarh)

                                      8 the  unlawful  assembly.   The  prosecution  did  not  allege  that  any  of  the

appellants  had  stormed  inside  the  house  and  had  dragged  the  deceased

Parasram.  The presence of the appellant, at best, going by the version of PWs

2 and 4 was outside the house in the street where 25-30 persons had gathered.

Out of such gathering, 17 persons were named to be accused and sent up for

trial.   

11. It is crucial to note that PW-2 Netram in his First Information Report

had not named any of the appellants whereas in his statement in Court the

names of the appellants did occur in his testimony.  Even then he did not

attribute any overt act to the appellants.   PW-3 - Urmila also did not name

any of the appellants.  The evidence of PW-4 Narender did indicate some role

but that part of the assertion is required to be seen in the light of the fact that

he and his brother were hidden by their mother as soon as the first part of the

transaction had occurred and some 7 persons had stormed inside the house.

This is perhaps why the mother also could not name any of the appellants.  In

the  backdrop  of  these  salient  features,  the  question  arises  as  to  the

involvement of the appellants in the crime.   

12. Considering all the factual aspects, in our considered view, it is not

established beyond reasonable doubt that  the appellants were guilty of the

offences with which they were tried.  We, therefore, grant benefit of doubt to

CRIMINAL APPEAL NOS. 478-479 .OF 2019 (@ SLP (Crl) Nos.457-458 OF 2016) Dauwalal @ Ganesh Devangan & Ors. v. State of Madhya Pradesh (Now State of Chhattisgarh)

                                      9 the appellants.   The appeals  are,  therefore,  allowed and the appellants  are

acquitted  of  all  the  charges  levelled  against  them.   They be  set  at  liberty

unless their presence is required in connection with any other offence.

..………….……………J.                                 (Uday Umesh Lalit)

..………….……………J.                                 (Dinesh Maheshwari)

New Delhi, March 15, 2019.