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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos.2096-2098 of 2009

State of M.P.     …. Appellant

Versus

Ashok & Others etc.                        …. Respondents          

J U D G M E N T  

Uday Umesh Lalit, J.

1. These  appeals  by  special  leave  challenge  the  Judgment  and

Order dated 11.01.2007 passed by the High Court  of  Judicature of

Madhya Pradesh, Jabalpur bench at Jabalpur in Criminal Appeals Nos.

170 of  1995, 841 of  1995 and 369 of  1996 by which respondents

Ashok s/o Banshilal Vedehi, Raju @ Rajendra s/o Banshilal Vedehi,

Gullu @ Rajesh s/o Banshilal  Vedehi,  Gouri Shankar s/o Banshilal

Vedehi, Vidhna @ Ramdas s/o Lallulal Kewat, Surendra s/o Harilal

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Vedehi were acquitted by the High Court of all the charges leveled

against them.  

2. According to  the prosecution  one  Tikaram son of  Chote  Lal

Pandey after finishing his duty was returning home at 8:00 p.m. on

11.04.1989. On the way he met his younger brother PW13 Sheetal

Prasad. Both were coming on bicycles, PW13 being 10-15 feet behind

said Tikaram. When Tikaram reached Tilwaraghat he was stopped in

front of the house of Hari Maharaj by Dibbu @ Devendra by catching

his  bicycle.  Said  Dibbu  then  poured  petrol  over  him  and  Jittu  @

Jitendra burnt him by igniting a match stick. Tikaram started burning

and ran from the spot. He was surrounded by present respondents and

two others namely Harilal and Banshilal. All of them exhorted to beat

him and to burn him and that he should not be allowed to run from the

spot. Respondent Vidhna @ Ramdas threw a burning tyre upon him.

While Tikaram was running helter-skelter,  Harilal threw a sword at

him. Tikaram ran to the house of  PW3 Vinod and fell  there.  PW3

extinguished the fire. The incident was witnessed by PW13 who ran to

the house and conveyed the fact of Tikaram having been set afire to

the inmates of the house. As a result, PW4 Ravindra Kumar Pandey

son of said Tikaram and PW15 Laxmi Prasad Pandey rushed to the

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scene of occurrence. Tikaram disclosed to both PWs 4 and 15 that he

was set afire in the aforesaid manner and by the persons mentioned

above.  Tikaram  was  then  removed  to  Medical  College  Hospital,

Jabalpur.

3. On receiving information, PW16 inspector R.P. Singh went to

the casualty ward and enquired about the condition of Tikaram with

letter Ext.P-30.  PW18 Dr. A.C. Nagpal gave certificate that Tikaram

was conscious and in a position to speak. PW16 inspector R.P. Singh

thereafter took the statement of said Tikaram, translation of which is

to the following effect:  

“Sir, I am residing at Ramnagra. Today I was going to Ramnagra after performing my duty on Petrol Pump. This incident occurred at Tilwaraghat opposite the house of Hari Maharaj. I was going by my cycle. My brother Sheetal Prasad was following me. Dibbu caught hold my cycle and stopped me and poured petrol on me from a Jug and Jeetu set fire on me by a Match Box. My body started  burning.  Hari,  Surendra,  Bigna,  Ashok,  Bansi, Raju and the son of sister of Bansi Maharaj who lives in Kamla Nagar who has beard, the younger son of Bansi Gullu and 2-3 other persons from city their names I do not know, surrounded me. I ran away and entered into a room of house of Vinod Kumar situated nearest and they all  were  crying  “Maaro  Maaro  Sale  Ko,  Bachne  Na Paye” and I fell down there. There were so many persons

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present  who  have  seen  this  incident.  There  is  an  old enmity and quarrel was going on between us and Dibbu etc. For taking revenge from the said enmity today they poured petrol on me and set on fire, in order to kill me. My whole body has been burnt.  My clothes also have been burnt. Report has been read over and the same has been  written  as  stated  by  me.  Please  investigate  the matter.”        

4. Pursuant to the aforesaid statement recorded at 8:30 p.m. Dehati

Nalishi Ext. P-20 was lodged and crime was registered. Tikaram was

shifted  to  ward  no.  11  for  further  treatment.  On  the  same  night

panchnama was prepared by said PW16.  In the night of 11.04.1989

and 12.04.1989 PW5 Executive  Magistrate  S.P. Meshram recorded

statement Ext. P-17 of said Tikaram. The statement was recorded after

due certification from doctor about consciousness and fitness of said

Tikaram. The translation of the statement Ext. P-17 is as under:-

“On 11.04.1989 at about 8 O’clock in the evening I was going to my home in Ramnagra from Jabalpur. Near Tilwaraghat Dibbu alias Devendra poured petrol on my body  and  Jittu  alias  Jitendra  burnt  me  by  igniting  the matchstick. At that time I was going on a bicycle on the road.  They  stopped  me  and  did  this  act.  My  younger brothers Sheetal and Manohar were about 15 Ft. behind me. I had enmity with Dibbu and Jittu from before. So

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they  did  this  to  me.  Hari,  Banshi,  Ashok,  Raju, Gaurishankar,  Gullu,  Surendra  and  Vidhna  were  the persons who assaulted me.”

5. On 12.04.1989 at about 8:15 p.m. Tikaram succumbed to

his injuries. On 13.04.1989 at 10:30 a.m. post mortem on the

body  of  said  Tikaram  was  conducted  by  PW17  Dr.  D.K.

Sakalle.  According  to  the  post  mortem following  facts  were

noticed:  

“There were third degree burns on the body of the deceased on the scalp, all around neck, face, ears, lips, all over the trunk except the upper joint of the thighs, over scrotum and penis all around both upper limbs except tips and  nails  of  fingers  on  right  side.  Third  degree  burns present  all  around left  thigh,  on right  thigh all  around except the back part and over upper part of the left leg and the middle part of the right leg. There were blisters in some parts of the left leg due to burns. Similarly there were some blisters on the back of the right leg. There was inflammation around the burn injuries. The deceased was burnt  about  90%.  Apart  from  the  burn  injuries  the following  injuries  were  also  there  on  the  body  of  the deceased.  Incised wound obliquely on back of chest.  It was 4” long, 1” broad and maximum depth was 3/4". It contained a clot of blood and there was an abrasion on its left side. There was no injury in any internal organ of the deceased.”  

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6. After due investigation charge sheet was filed and 10 accused

persons  were  sent  for  trial.  The  prosecution  examined  twenty

witnesses  while  three  witnesses  were  examined  in  defence.  Dying

declarations  namely  statements  Exts.P-20  and  P-17,  so  also  oral

declarations as deposed by PWs 4 and 15 and the eye-witness account

through  PW13  were  principally  relied  upon  by  the  prosecution.

Accepting the case of  prosecution,  the trial  court  convicted all  the

accused.  Accused Dibbu @ Devendra and accused Jittu @ Jitendra

were  found  guilty  under  section  302  I.P.C.  and  section  148  I.P.C.

while others namely the present respondents along with Harilal and

Banshilal were found guilty under section 302 read with section 149

I.P.C.  Accused Dibbu @ Devendra and accused Jittu @ Jitendra were

sentenced  to  life  imprisonment  under  section  302  I.P.C.  and  to

rigorous imprisonment of one year under section 148 I.P.C. All the

other accused were sentenced to life imprisonment under section 302

read with section 149 I.P.C. and to rigorous imprisonment for 6 month

under section 147 I.P.C.  

7. All convicted accused persons challenged their conviction and

sentence by filing Criminal Appeal Nos. 170 of 1995, 841 of 1995 and

369 of 1996. During the pendency of said appeals it was reported that

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accused Harilal and Banshilal had died and as such their appeals were

declared  to  have  abated.  The  High  Court  after  going  through  the

record found that the case of the prosecution was fully established as

against accused Dibbu @ Devendra and accused Jittu @ Jitendra. The

High Court however gave benefit of doubt to the respondents on the

premise that they had reached the spot after the commission of offence

and as such the charge of formation of unlawful assembly by them

was not established. The observations by the High Court in that behalf

were as under:

“Considering the over-all evidence on record, it is proved  beyond  reasonable  doubt  that  Dibbu  alias Devendra  and  Jittu  alias  Jitendra  have  committed  the offence. The case of Dibbu and Jittu is established by the prosecution beyond reasonable doubt in commission of offence. As regards other appellants in all the connected appeals are concerned, they are entitled for the benefit of doubt. It is narrated in the dying declaration and Dehati Nalishi that they reached the spot after the commission of offence.  Therefore,  formation of  unlawful  assembly by them is not established.”        

The  judgment  of  the  High  Court  affirming  their  conviction  and

sentence has not been challenged by the accused Jittu @ Jitendra and

Dibbu  @  Devendra.  The  judgment  to  the  extent  it  acquitted  the

present respondents of all the offences is presently under challenge at

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the  instance  of  the  State  of  Madhya  Pradesh  in  these  appeals  by

special leave.   

8. Ms. Vanshaja Shukla, learned advocate appearing for the State

submitted that the role of the present respondents in the commission

of crime was clearly made out from the dying declarations as well as

from the testimony of the eye witness. The Injury as found in the post

mortem  also  supported  the  eye  witness  account,  which  in  turn

indicated  the  role  played  by  accused  other  than  those  who  stand

convicted by the High Court. In her submission, the view taken by the

High  Court  was  completely  unsustainable.  Mr.  Akshat  Srivastava

learned advocate appearing for the respondent supported the judgment

of the High Court. It was submitted that the principal role as alleged in

the dying declarations was not as regards the present respondents and

as such they were rightly granted benefit of doubt by the High Court.  

During the course of hearing it was submitted that respondent

no.6  namely  Surendra  s/o  Harilal  Vedehi  had  died  during  the

pendency  of  these  appeals.  The  learned  counsel  appearing  for  the

State was directed to ascertain the fact. Accordingly death certificate

of said respondent no.6 has been filed on record indicating that he

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died on 01.10.2014. We therefore direct  that  the proceedings stand

abated as against said respondent no.6.  

9. Statement Ext. P-20 leading to the registration of crime as well

as statement Ext. P-17 recorded by the Executive Magistrate are dying

declarations  by  Tikaram.  Both  these  statements  are  consistent  and

name the present  respondents and state the role played by them in

surrounding Tikaram and giving cries that he be beaten and should not

be left. In the face of such assertions, it is impossible to accept that

these respondents arrived at the scene of occurrence after the crime

was completed. Their role is that of participants in the crime who did

not allow Tikaram to escape by encircling him. The finding rendered

by the High Court is against the record.  

10. Both the statements clearly referred to the presence of PW13. It

was  PW13 who immediately  ran home and intimated the  fact  that

Tikaram was set afire, to the inmates of the house. Consequently PW4

and  PW15  arrived  at  the  scene  of  occurrence.  Tikaram  was  then

removed  to  the  hospital.  In  his  testimony PW13 stated  that  while

Tikaram was burning, respondent Vidhna @ Ram Das threw a burning

tyre upon him and original accused Harilal threw a sword at him. The

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post mortem clearly shows an incised injury in the back suffered by

said Tikaram, which completely supports such assertion. Having gone

through the record we find the presence  of  said PW13 completely

established and accept him to be eye witness to the occurrence. It is

relevant  to  note  that  the  High  Court  has  also  not  disbelieved  the

testimony of PW13.  

11. In the light  of  the eye witness account  and the post  mortem

report it is quite clear that the respondents were present when Tikaram

was burning alive. The sequence of narration certainly shows that they

were waiting in ambush. It may be that only two of them set Tikaram

afire but the others definitely ensured by surrounding Tikaram that he

would not be allowed to escape. Further, throwing of burning tyre and

the sword would also indicate the active role played by them. Even if

one of them was ready with a sword, that is clearly indicative of the

level of preparedness on their part and we see no reason how they

could not be said to be members of unlawful assembly. It was a crime

which was committed by all of them guided by same purpose, acting

in  concert  achieving  the  result  that  was  desired.  The intent  of  the

entire assembly was clear, eloquently established by their presence,

preparedness and participation. Though we are conscious that while

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considering an appeal against acquittal we should be extremely slow

in interfering,  in  our  considered view the  assessment  made by the

High Court in the present case is completely unsustainable and against

the record.   

12. We therefore allow these appeals,  set-aside the judgment and

order  of  acquittal  rendered  by  the  High  Court  and  restore  the

judgment of conviction and sentence as recorded by the trial Court

against  the respondents.  The respondents  shall  be taken in custody

forthwith to serve the sentence awarded to them.  

…………………………J. (Pinaki Chandra Ghose)

…………………………J. (Uday Umesh Lalit)

New Delhi, July 01, 2015

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