Crl. Appeal Nos. 1709-1710 of 2019 (@ SLP [Crl.]Nos.2497-2498 of 2019) The State of Madhya Pradesh   vs.  Killu  @ Kailash & Ors.

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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.  1709-1710 O  F 2019 (Arising out of Special Leave Petition (Crl.)Nos.2497-2498 of 2019)

STATE OF MADHYA PRADESH       …Appellant

VERSUS

KILLU @ KAILASH AND ORS.   …Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1. Leave granted.

2. These Appeals question the judgment and order dated 29.06.2018

passed  by  the  High  Court  of  Madhya  Pradesh  at  Jabalpur  in  Criminal

Appeal Nos.2676 of 2008 and 158 of 2009.   

3. The  basic  facts  as  stated  in  the  judgment  under  appeal  are  as

under:-

Crl. Appeal Nos. 1709-1710 of 2019 (@ SLP [Crl.]Nos.2497-2498 of 2019) The State of Madhya Pradesh   vs.  Killu  @ Kailash & Ors.

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“3. Prosecution  story,  in  brief  is  that, accused/appellant  No.4  Khushiram  in  Cr.  Appeal No.2678 of 2008, who is uncle [mousia] of the son of the  deceased,  had  some  enmity  with  Balaprasad Pathak [since deceased].  He along with other accused persons entered in the house of Balaprasad Pathak in the mid night [2 O’ clock] of 23.05.2005.  Deceased was  sleeping  with  his  family  members. Accused/appellants  [in  Cr.Appeal  No.2678/2008] namely; Khushiram and Himmu @ Hemchand were armed with axe, appellant Devendra was armed with Ballam  and  other  two  accused  namely  Killu  @ Kailash  and  Kailash  Nayak  were  armed  with  lathi. Two accused persons namely; Khushiram and Himmu @ Hemchand [appellants No.2 and 4 in Cr.  Appeal No.2676/2008] inflicted injuries by axe on the person of deceased.  Allegation against other accused persons is of exhortation.  Deceased died on the spot.  Report of  the  incident  was  lodged  by  (PW-5)  Rameshwar Pathak.   Police  conducted  investigation  and  filed charge-sheet.   During  trial,  appellants  abjured  their guilt and pleaded innocence. …”

4. In support of its case, the prosecution relied upon the testimony of

PW3-Prabha Rani, wife of the deceased, PW4-Devendra Kumar, son of the

deceased and PW5-Rameshwar Pathak, a relative of the deceased, who had

lodged the First Information Report (‘the FIR’, for short).  It was narrated

in the FIR that  after  having received information about  the assault,  the

informant had gone to the house of the deceased where PW3 narrated the

incident to him, based on which the reporting was made by the informant.

The  medical  evidence  was  unfolded through the  testimony of  PW2-Dr.

Crl. Appeal Nos. 1709-1710 of 2019 (@ SLP [Crl.]Nos.2497-2498 of 2019) The State of Madhya Pradesh   vs.  Killu  @ Kailash & Ors.

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R.K.  Bhardwaj,  who  had  conducted  the  post-mortem.   He  had  found

following injuries on the person of the deceased:-  

“(i) Incised  wound over  left  anterior  part  of  scalp 4”x1/2” underlaying bone and brain matter cut inhacranial cavily pilled with blood.

(ii) Incised wound 5” x 1” x 2 1/2” uppermost part of  chest  and  adjoining  anterior  part  of  neck slightly left side obliquely placed undergone and blood vessels cut.”

According to him, the injuries were ante-mortem and the deceased

had died as a result of those injuries.

5. In  due  course,  five  accused  were  tried  in  connection  with  the

murder of said Balaprasad Pathak for the offence punishable under Section

302 read with Section 149 IPC in Sessions Trial No.173 of 2005 before the

First  Additional  Sessions  Judge,  Damoh,  Madhya  Pradesh.   After

considering the evidence on record, the Trial Court concluded that all the

five accused were members of an unlawful assembly and had entered the

house  of  the  deceased  on  the  fateful  night  with  the  common object  of

causing death of the deceased and as such, they were guilty of the offence

punishable under Section 302 read with Section 149 IPC.  Holding them

guilty of the aforesaid offence, by its judgment dated 19.12.2001, the Trial

Court sentenced them to suffer life imprisonment and to pay fine in the sum

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of Rs.500/- each, in default whereof, each of the convicts was to undergo

further rigorous imprisonment of three months.  The view so taken by the

Trial Court was challenged by way of Criminal Appeal No.2676 of 2008 by

four accused while Criminal Appeal No.158 of 2009 was filed by accused

Kailash Nayak.

6. Insofar as accused Himmu @ Hemchand and Khushiram, who were

armed with sharp cutting weapons, the High Court found as under:-

“16.   Appellants  No.2  and  4  namely  Himmu  @ Hemchand and Khushiram were armed with axe, i.e. deadly weapons.   They inflicted blows on the  vital part of deceased as a result of which, deceased died on the  spot.   Evidence  of  causing  injury  by  axe  is against  the  appellants  Himmu  @  Hemchand  and Khushiram.  Hence,  in our  opinion,  the Trial  Court has rightly held the appellants guilty for commission of offence of  murder.   Other  three  accused persons namely;  Killy  @ Kailash  and Devendra  (appellants No. 1 and 3 in Cr. A No. 2676/2008) and appellant Kailash Nayak (appellant in Cr.A.No. 158/2009) have been convicted with the aid of Section 149 of IPC. Allegation  against  them is  that  they  entered  in  the house and they were armed with lathis and Ballam. From the evidence, this fact has also been proved that deceased  was  facing  trial  of  Section  302  of  IPC because he had killed one Rammilan Pathak.”

7. The High Court  further  found that  the other  three accused were

stated to be armed with lathis and Ballam but there were no injuries which

could be associated with lathis and Ballam.  The High Court,  therefore,

gave benefit to said three accused as under:-

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“21.From  the  aforesaid  quoted  judgment,  the principle  of  law  is  that  “the  member  of  unlawful assembly may have committed for the offence caused by another accused, if he has knowledge about the act committed by the main accused”.  In the present case, evidence  is  that  the  accused  entered  the  house  of deceased  and  thereafter,  two  accused  had  inflicted blow by axe.  The other accused persons did not give any blow on the deceased.  It is alleged that they were present  on  the  spot.   There  was  previous  enmity between the accused persons and the deceased, he was also facing criminal trial.  Hence, it cannot be ruled out that other three persons, who had not inflicted any injury  may  have  been  named  along  with  the  other accused persons.

22.   Looking  to  the  evidence  on  record,  in  our opinion,  the  conviction  of  three  appellants  namely; Killu @ Kailash, Devendra and Kailash Nayak, who were armed with lathis and Ballam and did not inflict any blow with the aid of Section 149 of IPC, is not proper.  There is lack of sufficient evidence to prove them guilty for commission of offence under Section 149  of  IPC  beyond  reasonable  doubt.   Hence,  the appeal filed by appellant Kailash Nayak (Cr. Appeal No. 158/2009) is hereby allowed.

23. Cr. Appeal No.2676/2008, filed by four accused/ appellants  is  partly  allowed.   Appeal  filed  by appellants No. 2 and 4 namely; Himmu @ Hemchand and  Khushiram  is  hereby  dismissed.   They  are convicted for commission of offence punishable under Section 302 of IPC and awarded a sentence of life. Appellant No.2 Himmu @ Hemchand is on bail.  His bail  bonds are  hereby cancelled.   He  is  directed  to surrender before the Trial Court for facing remaining jail sentence.   

24.   Appeal  filed  by  the  appellants  No.1  and  3 namely;  Killu  @ Kailash  and Devendra  [Cr.Appeal No.2676/2008] is hereby allowed.  They are acquitted from  the  charge  of  Section  302/149  of  IPC.   The

Crl. Appeal Nos. 1709-1710 of 2019 (@ SLP [Crl.]Nos.2497-2498 of 2019) The State of Madhya Pradesh   vs.  Killu  @ Kailash & Ors.

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judgment  passed  by  the  trial  Court  in  regard  to appellants No.1 and 3 namely; Killu @ Kailash and Devendra,  is  hereby set  aside.   Appellants  Killu  @ Kailash,  Devendra  and Kailash  Nayak,  are  on  bail, their bail bonds are hereby discharged.”

8. The State,  being aggrieved  by the  order  of  acquittal  of  accused

Killu @ Kailash, Devendra and Kailash Nayak, has preferred the instant

appeals.   We  heard  Mr.  Varun  K.  Chopra,  Deputy  Advocate  General

(Madhya Pradesh), in support of the Appeal and Mr. S.K. Shrivastava and

Mr.  R.R.  Rajesh,  learned  Advocates  who  appeared  for  three  acquitted

accused.

9. Since the instant case depends upon the extent and application of

the principle  of  vicarious liability  under  Section 149 of  the IPC,  at  the

outset, we may consider the leading case of Masalti vs.  State of U.P.1  The

submission of the appellants therein was that mere presence in an assembly

would not make a person member of an unlawful assembly unless it was

shown  that  he  had  done  something  or  omitted  to  do  something  which

would make him a member of unlawful assembly.  Reliance was placed by

said appellants on the earlier judgment of this Court in Baladin vs.  State

of Uttar Pradesh2 .  The issue was dealt with as under:-

“… … The observation of which Mr. Sawhney relies, prima facie, does seem to support his contention; but,

1 (1964)8 SCR 133 2 AIR 1956 SC 181

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with respect, we ought to add that the said observation cannot be read as laying down a general proposition of  law that  unless  an  overt  act  is  proved against  a person who is alleged to be a member of an unlawful assembly,  it  cannot  be said that  he is  a  member of such an unlawful assembly. In appreciating the effect of the relevant observation on which Mr. Sawhney has built  his  argument,  we must bear  in mind the facts which were found in that case. It appears that in the case of  Baladin2,  the members of  the family of the appellants  and  other  residents  of  the  village  had assembled together; some of them shared the common object  of  the  unlawful  assembly,  while  others  were merely  passive  witnesses.  Dealing  with  such  an assembly, this Court observed that the presence of a person  in  an  assembly  of  that  kind  would  not necessarily  show that  he  was  a  member  of  an  un- lawful  assembly.  What  has  to  be  proved  against  a person who is alleged to be a member of an unlawful assembly  is  that  he  was  one  of  the  persons constituting  the  assembly  ,and he  entertained  along with the other members of the assembly the common object as defined by s.141, I.P.C. Section 142 provides that whoever, being aware of facts which render any assembly  an  unlawful  assembly,  intentionally  joins that  assembly,  or  continues  in  it,  is  said  to  be  a member of an unlawful assembly. In other words, an assembly  of  five  or  more  persons  actuated  by,  and entertaining  one  or  more  of  the  common  objects specified by the five clauses of s. 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by s.141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined  the  assembly  as  a  matter  of  idle  curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this  Court  in the case of  Baladin2 assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of

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an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal  omission  in  pursuance  of  the  common object of the assembly. In fact, s.149 makes it clear that 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; and that emphatically  brings  out  the  principle  that  the punishment prescribed by s.149 is in a sense vicarious and  does  not  always  proceed  on  the  basis  that  the offence  has  been  actually  committed  by  every member of the unlawful assembly. Therefore, we are satisfied  that  the  observations  made  in  the  case  of Baladin2 must  be read in the context of  the special facts of that case and cannot be treated as laying down an  unqualified  proposition  of  law  such  as  Mr. Sawhney suggests.”

(underlined by us)

10. After  considering the  cases  on the  point  including  Masalti1, the

order of acquittal passed by the High Court was set aside by this Court in

State of Maharashtra vs.  Ramlal Devappa Rathod and others3. Relevant

paragraphs of the decision are:-

“22. We  may  at  this  stage  consider  the  law  of vicarious  liability  as  stipulated in  Section 149 IPC. The key expressions in Section 149 IPC are:

(a) if an offence is committed by any member of an unlawful assembly;

3 (2015) 15 SCC 77

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(b)  in  prosecution  of  common  object  of  that assembly; (c) which the members of that assembly knew to be likely to be committed in prosecution of that object; (d) every person who is a member of the same assembly is guilty of the offence.

This  section  makes  both  the  categories  of  persons, those who committed the offence as also those who were  members  of  the  same assembly  liable  for  the offences under Section 149 IPC, if other requirements of the section are satisfied. That is to say, if an offence is committed by any person of an unlawful assembly, which the members of that assembly knew to be likely to be committed,  every member of that  assembly is guilty  of  the  offence.  The  law  is  clear  that membership of unlawful assembly is sufficient to hold such members vicariously liable.

23. It would be useful to refer to certain decisions of this  Court.  In  State  of  U.P. v.  Kishanpal4 it  was observed: (SCC p. 93, para 47)

“47. … It is well settled that once a membership of an unlawful assembly is established it  is not incumbent  on  the  prosecution  to  establish whether any specific overt act has been assigned to any accused. In other words, mere membership of the unlawful assembly is sufficient and every member of an unlawful  assembly is  vicariously liable  for  the  acts  done  by others  either  in  the prosecution of the common object of the unlawful assembly  or  such  which  the  members  of  the unlawful  assembly  knew  were  likely  to  be committed.”

Further,  in  Amerika  Rai v.  State  of  Bihar5 it  was observed as under: (SCC p. 682, para 13)

4 (2008) 16 SCC 73 5 (2011) 4 SCC 677

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“13. The law of vicarious liability under Section 149 IPC is crystal clear that even the presence in the unlawful assembly, but with an active mind, to  achieve  the  common  object  makes  such  a person  vicariously  liable  for  the  acts  of  the unlawful assembly.”

24. The liability  of  those members  of  the  unlawful assembly who actually committed the offence would depend  upon  the  nature  and  acceptability  of  the evidence on record. The difficulty may however arise, while  considering  the  liability  and  extent  of culpability  of  those  who  may  not  have  actually committed  the  offence  but  were  members  of  that assembly.  What  binds  them  and  makes  them vicariously liable is the common object in prosecution of  which  the  offence  was  committed  by  other members  of  the  unlawful  assembly.  Existence  of common object can be ascertained from the attending facts  and circumstances.  For  example,  if  more than five persons storm into the house of the victim where only few of them are armed while the others are not and the armed persons open an assault, even unarmed persons are vicariously liable for the acts committed by those armed persons. In such a situation it may not be  difficult  to  ascertain  the  existence  of  common object as all the persons had stormed into the house of the victim and it could be assessed with certainty that all were guided by the common object, making every one of them liable.  Thus when the persons forming the assembly are shown to be having same interest in pursuance of which some of them come armed, while others may not be so armed, such unarmed persons if they share the same common object, are liable for the acts committed by the armed persons.”

11. If we now consider the facts in the present matter, the case lies in a

short compass.    The case of the prosecution that five accused had entered

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the house of the deceased on the fateful night is accepted.  It is also found

that each one of them was separately armed and two of them were armed

with sharp cutting weapons.  As far as other three accused i.e. the present

respondents were concerned, the first one had a Ballam while the other two

were having lathis.  It is true that the deceased had only two injuries on the

person which were the cause of death.  To the extent that the persons who

were armed with sharp cutting weapons were found responsible for causing

the death is also not disputed or challenged.  The evidence on record fully

establishes that the present respondents had also accompanied those two

accused persons who were found responsible for the crime and all of them

had entered the house of the deceased around midnight.  It is crucial to note

that the incident did not happen in any public place where the presence of a

non-participating accused could, at times, be labelled as that of an innocent

bystander.  The role played by each one of them was clear and specific.

They had stormed into the house in the dead of the night.

  12. On the strength of  the principles accepted and laid down in the

cases as aforementioned, their liability is fully established. Merely because

the other three accused persons i.e. the present respondents had not used

their weapons does not absolve them of the responsibility and vicarious

liability  on  which  the  very  idea  of  charge  under  Section  149  IPC  is

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founded. For the application of the principle of  vicarious liability under

Section 149 IPC what is material to establish is that the persons concerned

were members of an unlawful assembly, the common object of which was

to commit a particular crime.  The fact that five persons were separately

armed and  had entered  the  house  of  the  deceased  during night  time  is

clearly indicative that each one of them was a member of that unlawful

assembly, the object of which was to commit the crime with which they

came to  be  charged  in  question.   The  High  Court  was  not  justified  in

granting benefit to those three accused.

13. The presence of the respondents in the house of the deceased; the

fact that they were armed; the fact that all of them had entered the house

around midnight and further fact that two out of those five accused used

their deadly weapons to cause the death of the deceased was sufficient to

attract the principles of vicarious liability under Section 149 IPC.   

14. The High Court  was  not  justified in  entertaining a  doubt  that  it

could not be ruled out that the respondents were merely named along with

the other accused persons.  There was absolutely no room for such doubt.

The testimony of the eye witnesses namely the wife and the son, who were

occupants of the same house, was quite clear and cogent.

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15. We have, therefore, no hesitation in allowing these Appeals.  We,

thus,  set  aside the view taken by the High Court  insofar  as  the present

respondents  namely  Killu  @ Kailash,  Devendra and Kailash  Nayak are

concerned.  We set aside their acquittal as recorded by the High Court and

restore the judgment and order of conviction passed by the Trial Court in

Sessions Trial No. 173 of 2005 against said respondents.   

16. The respondents shall surrender within three weeks, failing which

the  concerned  police  shall  immediately  arrest  them  and  send  them  to

custody  to  undergo  the  sentence  imposed  upon  them.   A copy  of  this

Judgment shall be sent to the concerned Chief Judicial Magistrate and the

Police Station for immediate compliance.  

………………………J. [Uday Umesh Lalit]

………………………J. [Indu Malhotra]

New Delhi; November 19, 2019.