Page 1

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 223 OF 2008

Rattiram & Ors.        ... ……..Appellants

Versus

State of M. P. Through  Inspector of Police ………Respondent  

WITH

CRIMINAL  APPEAL NO. 458 OF 2008

Satyanarayan & ors.         …......Appellants

Versus

The State of Madhya Pradesh Through  Incharge, Police Station Cantt. ………Respondent  

J U D G M E N T

Dipak Misra, J.

In  these  two  appeals  assail  is  to  the  judgment  of  

conviction and order of sentence passed by the Division  

Bench of the High Court of Judicature, Madhya Pradesh at

Page 2

Jabalpur, in Criminal Appeal No. 1568 of 1996 whereby the  

High Court concurred with the judgment of conviction and  

order  of  sentence  passed  by  the  learned  Additional  

Sessions Judge, Sagar,  in Sessions Trial No. 97 of 1995,  

except in respect of one Gorelal, Appellant No. 2 before  

the High Court and Accused No. 2 before the trial court,  

wherein the present appellants along with Gorelal  stood  

convicted  for  offences  under  Section  302  read  with  

Section  149  Indian  Penal  Code  and  other  offences  and  

sentenced to imprisonment for life with fine of Rs.1000/-,  

in default of payment of fine, to further undergo rigorous  

imprisonment for three months.

2. The factual score, as depicted, is that on 29.9.1995,  

deceased Dhruv @ Daulat along with Ashok Kumar,  

PW-5, Dheeraj, PW-6, Naresh, PW-7, and Leeladhar,  

PW-12, was returning home about 11.00 p.m. after  

attending a wrestling event which was organised at  

“Kher  Mata”  (temple)  in  Makronia,  a  village in  the  

district of Sagar.  As Ashok Kumar, PW-5, complained  

of pain in the stomach, all of them went to the shop  

of  Gorelal  for  purchasing  medicine  and  when  they  

2

Page 3

reached the  shop,  all  the  accused persons coming  

from the  house  of  Chhotelal  surrounded  deceased  

Daulat  and started assaulting him and despite  the  

beseeching  and  imploring  by  the  companions  the  

accused persons continued the assault, as a result of  

which  the  deceased  fell  unconscious.   As  the  

prosecution  story  proceeds,  he  was  taken  to  the  

hospital  and, eventually,  succumbed to his injuries.  

On an FIR being lodged, the criminal law was set in  

motion  and after  investigation  the  appellants  were  

charge-sheeted  under  Section  3(1)(x)  of  the  

Scheduled  Castes  and  the  Scheduled  Tribes  

(Prevention  of  Atrocities)  Act,  1989  (for  short  “the  

Act”),  but,  eventually,  charges  were  framed  under  

Sections 147, 148 and 302 read with Section 149 IPC.  

The  accused  persons  pleaded  innocence  and  false  

implication and claimed to be tried.

3. The  prosecution,  in  order  to  establish  its  case,  

examined  13  witnesses  and  exhibited  number  of  

documents.   The defence chose not to adduce any  

evidence.

3

Page 4

4. The learned trial Judge, appreciating the evidence on  

record,  came  to  hold  that  the  prosecution  had  

brought home the charges against accused, Mohan,  

under  Sections  148  and  302  IPC  and  against  the  

remaining accused persons under Sections 147 and  

302 IPC read with Section 149 IPC and apart  from  

imposing separate sentences under Section 147 IPC  

sentenced each of them to suffer imprisonment for  

life as stated hereinbefore.

5. Being  dissatisfied  with  the  judgment  of  conviction,  

the appellants along with others preferred a singular  

criminal appeal.  In appeal, apart from raising various  

contentions  on  merits,  it  was  submitted  that  the  

entire  trial  was  vitiated as  it  had commenced and  

concluded without committal of the case to the Court  

of Session by the competent court inasmuch as the  

Sessions  Court  could  not  have  directly  taken  

cognizance of the offence under the Act without the  

case being committed for trial.  To bolster the said  

contention reliance was placed on  Gangula Ashok  

4

Page 5

and Another v. State of Andhra Pradesh1, Moly  

and  Another  v.  State  of  Kerala2  and  

Vidyadharan v. State of Kerala3.  The High Court  

relied on decision in State of M. P.  v. Bhooraji &  

Ors.4 and treated it to be a binding precedent and  

declined  to  set  aside  the  conviction  or  remit  the  

matter for  de novo trial.  The High Court proceeded  

to deal with the appeals on merits and came to hold  

that  except  accused  Gorelal  all  other  accused  

persons were present on the scene of occurrence and  

had  participated  in  the  assault  and,  accordingly,  

maintained the conviction and sentence in respect of  

other accused persons and acquitted appellant No. 2  

before the High Court.

6. For the sake of completeness, it is necessary to state  

that when the matter was listed before a two-Judge  

Bench,  it  was  noticed  that  there  was  a  conflict  

between  two  lines  of  judgment  of  this  Court  and,  

accordingly, referred the matter to the larger Bench.  

1 AIR 2000 SC 740  2 AIR 2004 SC 1890  3 (2004) 1 SCC 215 4 AIR 2001 SC 3372

5

Page 6

The three-Judge Bench noticed that the real conflict  

or discord was manifest between Moly and Another  

(supra),  Vidyadharan (supra)  on  one  hand  and  

Bhooraji & Ors. (supra) on the other and after due  

deliberation in  Rattiram and others v.  State of  

Madhya Pradesh through Inspector of  Police5,  

came to hold as follows: -

“66. Judged  from  these  spectrums  and  analyzed  on  the  aforesaid  premises,  we  come to the irresistible conclusion that the  objection  relating  to  non-compliance  of  Section 193 of the Code, which eventually  has  resulted  in  directly  entertaining  and  taking  cognizance  by  the  Special  Judge  under  the  Scheduled  Castes  and  the  Scheduled Tribes (Prevention of Atrocities)  Act, 1989, does not vitiate the trial and on  the  said  ground  alone,  the  conviction  cannot be set aside or there cannot be a  direction  of  retrial  and,  therefore,  the  decision rendered in Bhooraji (supra) lays  down the correct law inasmuch as there is  no  failure  of  justice  or  no  prejudice  is  caused to the accused.   

67. The  decisions  rendered  in  Moly  (supra)  and  Vidyadharan (supra)  have  not noted the decision in Bhooraji (supra),  a binding precedent,  and hence they are  per incuriam and further, the law laid down  therein,  whereby  the  conviction  is  set  aside or matter is remanded after setting  aside  the  conviction  for  fresh  trial,  does  not expound the correct proposition of law  

5 (2012) 4 SCC 516

6

Page 7

and, accordingly, they are hereby, to that  extent, overruled.”

7. As the controversy on the said score has been put to  

rest,  we  are  presently  required  to  advert  to  the  

merits of the appeal.  At this juncture, we may state  

that  Chhotelal  died  after  pronouncement  of  the  

decision in appeal by the High Court and Babulal has  

expired  during  the  pendency  of  the  appeal  before  

this  Court  and,  therefore,  the  appeal,  as  far  as  

Babulal is concerned, stands abated.

8. Mr.  Fakhruddin,  learned  senior  counsel  for  the  

appellants in Criminal Appeal No. 223 of 2008, has  

contended that the finding by the trial  court which  

has  been  accepted  by  the  High  Court  that  all  the  

accused  persons  had  assaulted  is  founded  on  

absolutely non-appreciation of evidence inasmuch as  

there is nothing to implicate them in any of the overt  

acts.   It  is  his  alternative  submission  that  all  the  

accused were not present at the scene of occurrence  

and, therefore, the conviction in aid of Section 149  

7

Page 8

IPC  of  all  the  appellants  herein  is  wholly  

unsustainable.

9. Mr. Anis Ahmed Khan, learned counsel appearing for  

the appellants in Criminal Appeal No. 458 of 2008,  

has submitted that there has been delay in lodging  

the FIR and further copy of the report had not been  

sent to the Magistrate as required under Section 157  

of the Code and, therefore, the trial is vitiated.  It is  

also his  submission that due to previous animosity  

the informant has tried to rope in number of persons  

though they had no role to play in the commission of  

the crime in question and, hence, they deserve to be  

acquitted.

10. Per contra, Ms. Vibha Dutta Makhija, learned counsel  

for the State, would contend that there is evidence  

implicating all the accused persons in the assault and  

even assuming no overt  act  is  attributed to  them,  

they  were  a  part  of  the  unlawful  assembly  being  

aware of the common object of assault and, hence,  

the  conviction  under  Section  149  IPC  does  not  

warrant any interference.

8

Page 9

11. First,  we  shall  advert  to  the  issue  whether  all  the  

accused persons had participated in  the assault  or  

not.  Be it noted, the learned trial Judge as well as the  

High Court has taken into consideration that Ext. P-7,  

the FIR and relied on the testimony of PW-5, Ashok  

Kumar and PW-12, Leeladhar, to record a finding that  

all the accused persons had assaulted the deceased.  

On a perusal of the FIR, it is seen that the allegation  

against Ramesh, Kanchedi, Babulal, Ramcharan and  

Rattiram is that they came with lathis to assault the  

deceased.  There is mention in the FIR that Kanchedi  

Kurmi hit the deceased with a big piece of stone and  

Ramcharan  Kurmi  hit  with  a  stick.   The  accused  

Babulal,  Rattiram,  Satyanarayan and  Ramesh  gave  

blows with fists  and kicks.   In  the FIR it  has  been  

mentioned  that  Chhotelal  exhorted  to  kill  the  

deceased  and  Dhaniram  Kurmi,  Govardhan  Kurmi,  

Badri Kurmi and Mohan Kurmi assaulted and specific  

overt  acts  have  been  attributed  to  them.   Ashok  

Kumar,  PW-5  in  examination-in-chief  has  deposed  

that Dhaniram hit Daulat on the head with a stick,  

9

Page 10

Mohan gave a blow on the head with a sword and  

Badri and Govardhan hit him on the back and hand.  

Thereafter, he has proceeded to depose that rest of  

the accused gave fists and kick blows.  In the cross-

examination, this witness, who had lodged the FIR,  

has  stated  that  accused  Chhotelal,  Kanchedi,  

Ramcharan,  Ramesh  and  Gorelal  did  not  possess  

sticks.  Thus, he has not stated that Kanchedi hit with  

a big stone.  Leeladhar, PW-12, has stated about the  

exhortation made by Chhotelal and the blows given  

by  Dhaniram  and  Mohan.   As  far  as  Chhotelal,  

Babulal,  Satyanarayan,  Rattiram  and  Gorelal  are  

concerned, he has stated that they hit the deceased  

with  their  feet  and  clenched  fists.   In  the  cross-

examination  he  has  deposed  that  Babulal  was  not  

present  at  the  place  of  occurrence.   He  has  also  

stated that Daulat did not sustain any lathi blow on  

his legs.  He has admitted that some persons were  

unarmed.   Dheeraj,  PW-6,  and  Naresh,  PW-7,  who  

were  cited  as  eye-witnesses,  have  turned  hostile.  

The  learned  trial  Judge,  as  is  evident  from  the  

10

Page 11

judgment, has not adverted to this facet and reached  

the  conclusion  that  all  the  accused  persons  were  

armed and had assaulted the deceased.   The High  

Court  in  one  line  has  stated  that  considering  the  

overall  evidence  on  record  it  could  be  said  that  

barring Gorelal  all  the other accused persons were  

present  and  jointly  assaulted  the  deceased.   The  

concurrence of the High Court, we may respectfully  

state,  is  bereft  of  any scrutiny of  evidence.   On a  

studied evaluation of the evidence on record, we are  

of  the  considered  opinion  that  Chhotelal  exhorted  

and  he  along  with  Dhaniram,  Mohan,  Badri  and  

Govardhan assaulted the deceased.  We are disposed  

to  think so  because there  is  clear  cut  evidence of  

their  involvement  and  PW-5  and  PW-12  have  

categorically spoken about their overt acts whereas  

as  far  as  others are concerned,  there are material  

contradictions  about  their  assaulting the deceased.  

Thus, their involvement in any overt act is not proven  

by the prosecution and, therefore, we are unable to  

accept the view of the learned trial Judge which has  

11

Page 12

been concurred with by the High Court that all  the  

accused persons had assaulted the deceased.   

12. The next limb of submission relates to justifiability of  

conviction of all the accused persons in aid of Section  

149 IPC.  The learned trial Judge has held that all the  

accused persons were present and had assaulted the  

deceased.  The High Court has opined that there is  

no  evidence  against  the  appellant  Gorelal.   Ms.  

Makhija, learned counsel for the State would contend  

that  there  is  ample  material  that  the  accused-

appellants were present at the place of occurrence  

and their common object is clear from the facts and  

circumstances that they shared the common object  

to assault the deceased and they were in know of the  

act to be done.  Elaborating the same, it is urged by  

her that it is not a case where the accused persons  

were just bystanders but, in fact, came with others  

being aware that some of the accused persons were  

carrying lathis amd Mohan was carrying a sword.  Mr.  

Fakhruddin  and  Mr.  Anis  Ahmed  Khan,  learned  

counsel  for  the  appellants,  per  contra,  would  

12

Page 13

vehemently urge that the prosecution has really not  

proven, barring the people who were involved in the  

assault, that the other accused persons were really  

present and further assuming that they were present,  

their mere presence would not attract the concept of  

common object as engrafted under Section 149 IPC.   

13. Before we proceed to analyse the evidence on this  

score,  we  think  it  appropriate  to  refer  to  certain  

pronouncements  pertaining  to  attractability  of  

Section 149 IPC.  In Baladin and others v. State of  

Uttar Pradesh6, a three-Judge Bench has opined as  

follows: -

“It is well settled that mere presence in an  assembly does not make such a person a  member of an unlawful assembly unless it  is  shown that he had done something or  omitted  to  do  something  which  would  make  him  a  member  of  an  unlawful  assembly,  or  unless  the  case  falls  under  section 142, Indian Penal Code.”

14. The dictum in the aforesaid case was considered by a  

four-Judge Bench in Masalti v. The State of Uttar  

Pradesh7,  wherein  the  Bench  distinguished  the  6 AIR 1956 SC 181 7 AIR 1965 SC 202

13

Page 14

observations made in the case of Baladin (supra) on  

the ground that the said decision must be read in the  

context of special facts of that case and may not be  

treated as laying down an unqualified proposition of  

law.  The four-Judge Bench, after explaining the said  

decision, proceeded to lay down as follows: -

“It would not be correct to say that before  a  person  is  held  to  be  a  member  of  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  make  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.”  

15. In Lalji v. State of U.P.8 it has been observed that  

common  object  of  the  unlawful  assembly  can  be  8 (1989) 1 SCC 437

14

Page 15

gathered from the nature of the assembly, arms used  

by  them and the  behaviour  of  the  assembly  at  or  

before scene of occurrence.  It is an inference to be  

deduced from the facts and circumstances of each  

case.

16. In  Bhargavan and others v.  State of kerala9 it  

has been held that it cannot be laid down as 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 an assembly.  The only thing required is  

that  he should have understood that  the assembly  

was unlawful  and was likely  to  commit  any of  the  

acts which fall within the purview of Section 141 IPC.  

The  Bench  emphasised  on  the  word  “object”  and  

proceeded  to  state  that  it  means  the  purpose  or  

design and, in order to make it “common”, it must be  

shared by all.  

17. In  Debashis Daw and others  v.  State of West  

Bengal10, this Court, after referring to the decision in  9 (2004) 12 SCC 414 10 (2010) 9 SCC 111

15

Page 16

Akbar  Sheikh  v.  State of  W.B.11,  observed that  

the prosecution in a case of such nature is required  

to  establish  whether  the  accused  persons  were  

present and whether they shared a common object.

18. In  Ramachandran  and  others  v.  State  of  

Kerala12, this Court has opined thus: -

“27. Thus,  this  Court  has  been  very  cautious  in  a  catena  of  judgments  that  where  general  allegations  are  made  against  a  large  number  of  persons  the  court  would  categorically  scrutinise  the  evidence and hesitate to convict the large  number  of  persons  if  the  evidence  available  on  record  is  vague.   It  is  obligatory  on  the  part  of  the  court  to  examine that if  the offence committed is  not  in  direct  prosecution  of  the  common  object,  it  yet  may  fall  under  the  second  part of Section 149 IPC, if the offence was  such as the members knew was likely to  be committed.  Further inference has to be  drawn  as  to  what  was  the  number  of  persons; how many of them were merely  passive  witnesses;  what  were  their  arms  and weapons.  The number and nature of  injuries is also relevant to be considered.  “Common object” may also be developed  at the time of incident.”

19. Applying the aforesaid principles, we are required to  

see whether all  the appellants were present at the  11 (2009) 7 SCC 415 12 (2011) 9 SCC 257

16

Page 17

time of  occurrence.   We have already  opined that  

Chhotelal  exhorted  and  other  accused  persons,  

namely, Dhaniram, Mohan, Badri and Govardhan had  

assaulted the deceased and there is ample evidence  

on  record  to  safely  conclude  that  they  formed  an  

unlawful assembly and there was common object to  

assault the deceased who, eventually, succumbed to  

the injuries inflicted in the assault.  As far as other  

accused  persons,  namely,  Babulal,  Satyanarayan,  

Rattiram,  Kanchedi,  Ramcharan  and  Ramesh  are  

concerned, there are really contradictory statements  

with regard to the presence of the accused persons  

because  PW-12  has  stated  that  Babulal  was  not  

present at the place of occurrence.   Ashok Kumar,  

PW-5,  has  contradicted himself  about  the weapons  

carried  by  Kanchedi,  Ramcharan,  Ramesh  and  

Gorelal.   Leeladhar,  PW-12,  has  not  mentioned  

anything about Ramesh and Govardhan.  From the  

apparent contradictions from the depositions of PW-5  

and  PW-12  it  seems  that  they  have  implicated  

Babulal,  Satyanarayan,  Rattiram,  Ramesh  and  

17

Page 18

Ramcharan  in  the  crime.   As  far  as  Govardhan  is  

concerned, PW-5 has clearly stated that he and Badri  

hit Daulat with sticks on the back and the neck.  The  

medical  evidence  corroborates  the  same.   Nothing  

has been elicited in the cross-examination of PW-5 to  

discard  his  testimony.   It  has  come  out  in  the  

evidence of PW-13 that PW-5 was going along with  

Babulal, Kanchedi and his brother.  We are referring  

to the same only to highlight that there is an attempt  

to implicate number of persons.  It is borne out in the  

evidence  that  the  deceased was  involved in  many  

criminal  offences  and  there  was  some  bad  blood  

between the accused persons and the deceased.  In  

such a situation it is not unusual to implicate some  

more  persons  as  accused  along  with  the  real  

assailants.   

20. Regard being had to the totality of the evidence on  

record, filtering the evidence of PW-5 and PW-12 and  

on  studied  evaluation  we  are  of  the  considered  

opinion that it is not safe to hold that the accused-

appellants  Ramesh,  Kanchedi,  Rattiram  and  

18

Page 19

Satyanarayan  were  present  at  the  spot  and,  

therefore,  it  will  be  inappropriate  to  record  a  

conviction  in  aid  of  Section  149  IPC  and  we  are  

inclined  to  think  so  as  we  entertain  a  reasonable  

doubt  about  their  presence  at  the  scene  of  

occurrence.   

21. We will be failing in our duty if we do not deal with  

the contention of Mr. Khan that when there has been  

total non-compliance of Section 157 of the Code of  

Criminal Procedure, the trial is vitiated.  On a perusal  

of the judgment of the learned trial Judge we notice  

that  though such a  stance had been feebly  raised  

before the learned trial Judge, no question was put to  

the Investigating Officer in this regard in the cross-

examination.  The learned trial Judge has adverted to  

the  same  and  opined,  regard  being  had  to  the  

creditworthiness of  the testimony on record that  it  

could not be said that the FIR,  Ext.  P-7,  was ante-

dated or embellished. It is worth noting that such a  

contention  was  not  raised  before  the  High  Court.  

Considering the facts and circumstances of the case,  

19

Page 20

we are disposed to think that the finding recorded by  

the learned trial  Judge cannot  be found fault  with.  

We may hasten to add that when there is delayed  

despatch of the FIR, it is necessary on the part of the  

prosecution to give an explanation for the delay.  We  

may further state that the purpose behind sending a  

copy  of  the  FIR  to  the  concerned magistrate  is  to  

avoid any kind of suspicion being attached to the FIR.  

Such a suspicion may compel the court to record a  

finding  that  there  was  possibility  of  the  FIR  being  

ante-timed  or  ante-dated.   The  court  may  draw  

adverse  inferences  against  the  prosecution.  

However, if the court is convinced as regards to the  

truthfulness  of  the  prosecution  version  and  

trustworthiness of the witnesses, the same may not  

be regarded as detrimental to the prosecution case.  

It  would depend on the facts and circumstances of  

the case.  In the case at hand, on a detailed scrutiny  

of  the  evidence  upon  bestowing  our  anxious  

consideration, we find that the evidence cannot be  

thrown  overboard  as  the  version  of  the  witnesses  

20

Page 21

deserves  credence  as  analysed  before.   Thus,  this  

colossal  complaint  made  by  Mr.  Khan  pales  into  

insignificance and the submission is repelled.  

22. In the result, we allow the appeals in part and affirm  

the  judgment  of  conviction  and  order  of  sentence  

recorded against the appellants, namely, Dhaniram,  

Mohan, Badri  and Govardhan.  Accused Mohan has  

been  released  after  completing  fourteen  years  of  

imprisonment  on  getting  the  benefit  of  remission  

under  Section  433A  of  the  Code  of  Criminal  

Procedure.  As far as Dhaniram is concerned, he is in  

custody.  The accused-appellants, namely, Badri and  

Govardhan  are  on  bail.   Their  bail  bonds  are  

cancelled and they be taken into custody forthwith.  

The  accused-appellants,  namely,  Satyanarayan,  

Ramesh, Kanchedi and Rattiram are acquitted and as  

they are on bail, they be discharged from their bail  

bonds.

……………………………….J. [K. S. Radhakrishnan]

21

Page 22

….………………………….J.                                            [Dipak Misra]

New Delhi; April 18, 2013.

22