Criminal Appeal No. 1063 of 2003 · High Court of Chhattisgarh
Case Details
;?;ISNI^It%^l%®ili^®:%^^@iSHII^ IN THE fflGH ^OIJCT OF CHH^TISGARII AT BELASPUR CrimmatAppealrio..lt?.?7./2003 ppellairt's 1. PanehBai W/o late. Soinnath gond, aged about 25 ypars 2. DropadiBai sahu W/opuToshatam Agedabout k^ BothareR^ofBandha Talab,ShivparaDistt.Durg(C.G.) iAdv°cate .^^ -^^ Versus ^ ^edo"-- M.bY^V-"; NonAppellaat : StateofChhatdsgarh Through p.s. Durg (C.G.) »N( Grimin^ ^peal^ 374fa ofcc^e bfcriimnai^ P^ HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. Criminal Appeal No.1063 of 2003 APPELLANTS: (In Jail) 1. 2. Smt.UshaBai Sonsai Versus ^^< RESPONDENT: State of Chhattisgarh APPELLANTS: (In Jail) Criminal Appeal No.1068 of 2003 1. 2. Smt. Vimla Bai Lakshminath Gond Versus RESPONDENT: The State of Chhattisgarh Criminal Appeal No.1152 of 2003 APPELLANTS: (In Jail) &. 1. 2. Panch Bai Dropadi Bai Versus NON-APPELLANT: State of Chhattisgarh Criminal Appeal No.1200 of 2003 APPELLANT/: (Accused No.5) Smt. Rajbati Bai Versus RESPONDENT: State of Chhattisgarh Criminal Appeal No.1307 of 2003 APPELLANT: (InJail) Santosh Sinha Versus NON-APPELLANT: State of Chhattisgarh AND |W-^-» ^-/ Cr.A.Nos.1063, 1068, 1152, 1200, 1307 & 1337/2003 Page 2 of 26 Crimjnal Appeal No.1337 of2003 APPELLANTS: (In Jail) 1. 2. Raju Anil Bairagi Versus RESPQNDENT: State of Chhattisgarh {Criminal appeals under Section 374 (2) of the Code of Criminal Procedure, 1973} Present:
Legal Reasoning
Mr. Goutam Khetrapal with Mr. Anand Kumar Gupta, counsel for the appellants in Cr.A.No. 1063/2003. Mr. Goutam Khetrapal, counsel for the appellants ^ in CT;,~t.<_ Nos. 1068/2003, 1152/2003 & 1200/2003. Mr. Goutam Khetrapal with Mr. G.P. Kurre, counsel for the appellant inCr.A.No.1307/2003. Mr. Goutam Khetrapal with Mr. Devershi Thakur, counsel for the appellants in CrA.No. 1337/2003. Mr. Sushil Dubey, Govt. Advocate with Mr. Ashish Gupta, Panel Lawyer for the State/respondent in Cr.A.Nos. 1063/2003, 1307/2003 & 1337/2003. Mr. Sushil Dubey, Govt. Advocate with Mr. Rajendra Tripathi, Panet Lawyer for the State/respondent in Cr.A.Nos. 1068/2003, 1152/2003 S< 1200/2003. JUDGMENT (28InofJanuary,2013) »th The Judgment ofthe Court was delivered bv T.P. Sharma, J: - 1. Since all the above criminal appeals have been filed by different
Decision
accused/appellants against the common judgment of conviction & order of sentence dated 10-9-2003 passed by the 1st Additional Sessions in Sessions Trial No. 16/2003, they are being disposed of Judge, Durg, by this common judgment. 2. By the aforesaid criminal appeals, the appellants have challenged legality & propriety of the judgment of conviction & order of sentence in dated 10-9-2003 passed by the 1st Additional Sessions Judge, Durg, Sessions Trial No. 16/2003, whereby & whereunder learned Additional x ^^./ -vs's^'' Cr.A.Nos.1063, 1068,1152, 1200,1307 & 1337/2003 Page 3 of 26 Sessions Judge after holding the appellants guilty for formation of unlawful assembly armed with deadly weapons having its common object to commit murder of Salman Khan and to causesimple injury to Zahida Khan, and in furtherance of common object of the assembly for committing the murder of Salman Khan and causing simple injury to Zahida Khan, convicted the appellants underSectJons 147, 148, 302 read with Section 149 & 323 read with Section 149 of the IPC and sentenced each of them to undergo Rl for one year; Rl for one year; imprisonment for life & pay fine of Rs.300/-, in default of payment pf fine to further undergo Rl for one month; and to undergo Rl for three months, '^r< respectively. 3. Conviction is impugned on the ground that wjthout any iota of evidence, convicted & sentenced the appellants as the trial Court has (gg^ aforementioned and thereby committed illegality. 4. As per case of the prosecution, deceased Salman Khan having criminal antecedents and several criminal cases pending before different courts was present in his house at Ganjpara, Durg on 6-1 1-2002 at 6 p.m. along with his mother Zahida Khan (PW-6). Appellants Santosh, Sonsai, Anil, Raju & Laxminath came to the house of Salman Khan, they were holding axe, stick & stone, they quarrelled with him and assaulted him by stick, axe & stone, at the same time, other women accused came and •^ assaylted him by stone, and thereby caused his instantaneous death. Zahida Khan (PW-6) tried to save her son, but the appellants assaulted her atso. She went to Police Station Durg and lodged morgue vide Ex.P- 8 and FIR vide Ex. P-9. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-6, prepared inquest over the dead body of the deceased vide Ex. P-7. Dead body was sent for autopsy to Government Hospital, Durg vide Ex.P-1A. Dr. P. Bal Kishore (PW-1) conducted autopsy vide Ex.P-1 and found following jnjuries: - (1) Compound fracture of both tibia & fibula. (2) 3 lacerated wounds over left medial surface of foot 1 ^ x V2X Yi, 2 xy2xy2&iox3x1/2. (3) Compound fracture of right head. (4) Abrasion over left leg 17x11 c.m. with skin deep. \. l^ v ^/ Cr.A.Nos.1063, 1068, 1152, 1200, 1307 & 1337/2003 Page4of26 (5) Compound fracture of ring finger with abrasion of skin, little finger compound fracture and left middle finger compound fracture. (6) Compound fracture of left hand. (7)Multiple abrasions with contusion 10 c.m. x 3 c.m. over left arm with multiple contusions over left upper arm & shoulder. (8) Multiple contusion with swelling and contusion with abrasion at right upper limb with multiple abrasions over right side of chest & shoulder. (9) Multiple contusionsof variable size & shape 3x12. (10) Lacerated wound over left ear7 x2 x 1 c.m. (11) Supra orbital compound fracture of bone with lacerated wound 3 x 2 x bone deep over right side. ( (12) Compound fracture of nasal bone with lacerated wound over ch( ^ 4x1 1/2 xz 1 c.m. (13) Abrasion over right side offace 12x8 c.m. (14) Lacerated wound 2x2 c.m. over right fronto parietal region over scalp. (15) Mark at neck over thyroid and below 10 c.m. x 1 cm. Mode of death was shock and haemorrhage. 5. Injured Zahida Khan was examined by Dr. P. Akhtar (PW-2) vide Ex.P-3 and following injuries were found: - (1)Swelling with tenderness over right restriction of movement. fist, 8 c.m. x 4 c.m. with '< (2) Abrasion over left knee, 4 c.m. x 4 c.m. (3) Swelling over left calf muscle, 6" x 4" with bluish discolouation of skin. (4) Swelling with tenderness over right side front of thigh, 6" x 2 " with bluish discolouration of skin. 6. Spot maps were prepared vide Exs.P-10 & P-11. During the course of investigation, accused Sonsai was taken into custody, he made discloser statementof axe vide Ex. P-12 and same was recovered at his instance vide Ex.P-31. Appellant Anil made discloser statement of knife vide Ex.P-13 and same was recovered at his instance vide Ex.P-29. Accused Raju made discloser statement of stick vide Ex.P-14 and same was recovered at his instance vide Ex.P-30. Accused Usha Bai made discloser statement ofstone vide Ex.P-15 and same was recovered at 't) Page 5 of 26 Cr.A.Nos.1063,1068, 1152, 1200, 1307 & 1337/2003 her instance vide Ex.P-26. Accused Panch Bai made discloser statement of stick vide Ex.P-16 and same was recovered at her instance vide Ex. P-28. Accused Dropadi made discloser statement of stick vide Ex.P-17 and same was recovered at her instance vide Ex.22. Accused Vimla Bai made discloser statement of stone vide Ex.P-18 and same was recovered at her instance vide Ex.P-27. Accused Laxminath made discloser statement of stick vide Ex.P-19 and same was recovered at his instance vide Ex. P-25. Accused Santosh made discloser statement of stick vide Ex.P-20 and same was recovered at his instance vide Ex.P-24. Accused Rajbati Bai made discloser statement of stick vide Ex. P-21 and same was recovered at her instance vide Ex.P-23. Bloodstained and plain soil were seized from the spot vide Ex.P-32. Seized articles were sent forchemical examination to Forensic Science Laboratory, Raipur vide Ex. P-44. Statements of the witnesses were recorded under Section 161 oftheCr.P.C.. 7. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Durg, who committed the case to the Court of Sessions, Durg from where the 1st Additional Sessions Judge, Durg, received the caseon transfer for trial. ^o 8. ' In order to prove the guilt of the accused/appellants, the prosecution has examined as many as twelve witnesses. The accused persons were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them and pleaded innocence & false implication. 9. The accused/appellants have examined defence witnesses Vishnu Sahu (DW-1). Neerabai Sahu (DW-2), Smt. Sukhbati Bai (DW-3), Smt. Fagni Bai (DW-4), L.M. Mishra (DW-5) - Sub Inspector & R.L. Badh (DW-6) Sub Inspector, and have taken spedfic defence that deceased Salman Khan, who was having criminal antecedents and a manof bad character and against whom several cases were pending before different courts, was in the habit of outraging the modesty of women of the vicinity. Zahida Khan (PW-6), his mother, antecedents and she is also having criminal cases pending before different courts. On the date of incident, Yadavas were celebrating their is also a woman of criminal festival of Matar, they used to worship God and distribute kheer. Cr.A.Nos.1063, 1068, 1152, 1200, 1307 & 1337/2003 Page6of26 Thousands of people were collected near the place of incident. Salman Khan outraged the modesty of appellant Panch Bai. After hearing her sound, persons collected to celebrate Matar festival gathered and on account of annoyance and provocation, they assaulted Salman Khan. The appellants herein havenot causedany injury to Satman Khan. They made written complaint Ex.D-4 to the police. Panch Bai went to the police station and lodged report against Salman Khan in Crime No. 102/2002 on the same day at 6.30 p.m. vide Ex.D-8. lO.After providing opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the appellants in the aforesaid manner. 11.We have heard learned counsel for the parties, perused the judgrt?ient and record of the trial Court. 12.Learned counsel for the appellants vehemently argued that evidence adduced on behalf of the prosecution is not sufficient to connect the appellants with the crime in question. The appellants have not caused any injury to Salman Khan or Zahida Khan. Yadavas were celebrating their festival Matar. Thousands of Yadavas and other persons were Salman Khan, who was having gathered to celebrate the festival. criminal antecedents and against whom several cases were pending before different courts, has outraged the modesty of appellant Panch Bai on which the persons gathered to celebrate the Yadava function collected and on account of annoyance and provocation, they have caused injuries to Salman Khan & Zahida Khan. Salman Khan was beaten by the mob on account of his mischievous act and offence committed against the body of appellant Panch Bai. The appellants have not caused any injury to him or to Zahida Khan (PW-6). Even otherwise, Salman Khan was beaten when he outraged the modesty of a woman and assaulted another woman. The mob have not caused any injury to Salman Khan with intent to cause his death, but the injuries have been caused to teach a lesson to the offender. Panch Bai has lodged FIR against Salman Khan. Even otherwise, Panch Bai and other persons were having the right of private defence, therefore, if it is considered that the appellants have caused injury, then they are liable for causing homicidal death on account of availability of the right of exercise of ^ -^' Cr.A.Nos.1063,1068,1152,1200.1307 & 1337/2003 Page 7 of 26 private defence. Learned counsel furtherargued that even in absence of any motive or intention and the fact that with a view to teach a lesson to the habitual offender, the appellants have caused injury and their act may be the offence under Section 304 Part-11 of the IPC. Learned counsel also argued that the prosecution has failed to prove the fact that there was meeting of mind and the appellants were having common object to commit murder of Salman Khan. In absence of such evidence, the appellants are not liable for conviction with the aid of Section 149 of the IPC. 13.Learned counsel for the appellants placed reliance in the matter of Ravishwar Manjhi & Ors. v. State ofjharkhand1 in which the Supreme Court has held that in case of attempt to outrage the modesty of a woman, the woman and her relatives were having the right of private defence and in case of exercise of such right causing death of a person would not be termed as homicidal death because they have caused injury in exerciseof the right of private defence. Learned counsel further placed reliance in the matter of Daya Kishan v. State of Haryana2 in which the Supreme Court has dealt with nature, scope and essential ingredients of Section 149 ofthe IPC and restated thesame. 14.0n the other hand, learned State counsel opposed the appeals and submitted that undisputedly, on the date of incident, Salman Khan was €:? present inside his house, the appellants came, they assaulted him and injuries by stick, axe & dragged him out of his house and caused fatal stone resulting in multiple fractures and instantaneous death of Salman Khan. When Zahida Khan (PW-6) tried to save her son, the appellants assautted her also. These evidences show that the appellants have caused homicidal death of deceased Salman Khan in furtherance of common object of the unlawful assembly and they have formed unlawful assembly before entering into the house of Salman Khan, otherwise, there was no propriety for the appellants to enter into the house of Salman Kham, jointly, armed with deadly weapons. Evidence adduced on behalf of the prosecution is sufficient for proving the guilt of the appellants. After appreciating the evidence available on record, learned Additional Sessions Judge convicted & sentenced the appellants. K 1 2008 (16)8cale 45 2 (2010)58cc 81 ^ X t^-r ^/ Cr.A.Nos.1063, 1068, 1152, 1200, 1307 & 1337/2003 Page 8 of 26 15.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 16.1n the present case, homicidal death of the deceased as a result of fatal injuries found on his person has not been substantially disputed on behalf of the appellants. Evenotherwise, it is established by evidence of Dr. P. Bal Kishore (PW-1) and autopsy report Ex.P-1 that death of the deceased was homicidal in nature. Similarly, simple injuries found over the body of Zahida Khan (PW-6) have also not been substantially disputed on behalf of the appellants, even otherwise, same are also established by evidence of Dr. P. Akhtar (PW-2) and injury report Ex. P-3. 17.As regards complicity of the appellants in the crime in question, conviction of the appellants is substantially based on the evidence of Zahida Khan (PW-6), the injured witness. Undisputedly, as per her evidence, especially para 7, more than five criminal cases were pending against her. Deceased Salman Khan was having criminal antecedents. They were having more than fifteen cases of theft and other offences pending before different courts. This evidence and admission of Zahida Khan (PW-6) are sufficient for drawing inference that Salman Khan was having criminal antecedents and was a man of bad character, but same is not the ground forcausing his homicidal death. 18.Zahida Khan (PW-6) is injured witness, Her injuries have been proved by Dr. P. Akhtar (PW-2) and by herself. Even otherwise, nothing has been shown in the defence to presume that Zahida Khan (PW-6), injured witness, was not present on the spot at the time of inddent. She is mother of deceased Salman Khan. On the ground of her relation, her evidence cannot be discarded. Her evidence only requires minute scrutiny. 19.Zahida Khan (PW-6) is injured and relative witness which ensures her presence at the time of incident. Although she is also having criminal antecedents, but on the ground of her conduct and character, her evidence cannot be discarded. Her evidence also cannot be discarded on the ground of relation. Even otherwise, relatives are the last persons to screen the real culprit and implicate the innocent person falsely. Cr.A.Nos.1063, 1068,1152,1200, 1307 & 1337/2003 Page 9 of 26 20.While dealing with the questionof evidentiary value of interested and in the matter of Ramanand the Supreme Court relative witnesses, y X" Yadav v. Prabhu Nath Jha and others3 has observed in para 15 as under: - "But at the same time if the relatives or interested witnesses are examined, the Court has a duty to analyze the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused foundation for the same has to be laid. If the materials there is partisan approach, as indicated show that above the Court has to analyze the evidence with care and caution." 21.While dealing with same question in the light of relationship, the Supreme Court in the matter of Mst. Dalbir Kaur and others v. State of Punjab4 has held in para 13 as follows: - "A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness'. The term "interested" postulates the person concerned must have some direct that interest in seeing that the accused person is somehow or the other convicted either because had some animus with the accused or for some other reason." 22.1n the light of aforesaid proposition of law, we have examined the evidence of Zahida Khan (PW-6). As per her evidence, on the fateful day of 6-11-2002 at about 5.30 p.m., herself and her son Salman Khan were present in the house, at the same time, accused Sukhram, Anil, Laxmi, Santosh, Sonsai ^St Raju came to her house, they caught hold of the hands of her son, other women accused namely Rajbati, Vimla Bai, Draupadi Bai, Panch Bai & Usha Bai, who were holding axe also came to her house, they assaulted Salman by axe over his knee and cause.d fracture of both legs, thereafter, appellant Draupadi Bai took out a big size stone and assaulted Salman Khan by stone over his head. Thereafter, all appellants assaulted him by stick. They also poured kerosene oil over her chunri and set her ablaze. Sukhram torn her cloth which she was wearing. They dragged Salman Khan towards the house of Somesh. They were telling, "kill this person like Sangeet". They thrusted liquor in the mouth of Salman Khan and crushed him. Appellant 3AIR2004SC1053 4AIR 1977 SC 472 p\:\ "%. >r-(. Cr.A.Nos.1063,1068, 1152, 1200, 1307 & 1337/2003 Page 106f26 Anil caused injury over brain by knife. They caused instantaneous death of Salman Khan. Thereafter, she covered the body of her son and went to Bajrangpara and then she went to the Police Station. At the same time, Draupadi Bai, Panch Bai, Usha Bai, Vimla Bai & Rajbati also reached to the police station along with other persons by motorcycle. She has further deposed that she has lodged morgue vide Ex.P-8 and FIR vide Ex.P-9. She hasspecifically deposed in para 6 that all appellants have caused homicidal death of her son. 23.Defence has cross-examined this witness at length. In para 7 of her cross-examination, she has specifically admitted pendency of several criminal cases against her and her son Salman Khan which reveals that both were persons of criminal antecedents. In para 9, she has d^nied the suggestion that appellants PanchBai, Draupadi Bai, Rajbati, Usha 3 Vimla had lodged FIR against Salman Khan relating to outraging the modesty of woman. She has further denied the suggestion that Panch Bai has lodged FIR against Salman Khan. She has also denied that her son was in the habit of outraging the modesty of women of the vicinity. 24. Defence has cross-examined this witness in detail and has tried to show that on account of bad character and criminal antecedents of Salman Khan, the Yadavas gathered near the place of incident to celebrate their festival of Matar had caused homicidal death of the deceased, but defence has not been able to establish aforesaid facts in cross- examination of Zahida Khan (PW-6). Her evidence is well corboborated by the FIR lodged by her, though there is small discrepancy especially relating to the fact that firstly, FIR has not been recorded by the Investigating Officer who reached to the spot and only thereafter, the FIR has been recorded. 25.Appellants Panch Bai, Draupadi Bai, Rajbati, Usha & Vimla have not disputed their presence at the time of incident. They have atso not disputed the presence of Zahida Khan (PW-6) and deceased Salman Khan. 26. Defence has also cross-examined defence witnesses Vishnu Sahu (DW- 1), Neerabai Sahu (DW-2), Smt. Sukhbati Bai (DW-3) & Smt. Fagni Bai (DW-4), L.M. Mishra (DW-5) & R.L. Badh (DW-6) to show that thousands of persons of Yadava community were present at the time of incident to / £,' Wa^ Cr.A.Nos.1063, 1068,1152, 1200, 1307 & 1337/2003 Page11 of26 celebrate their Matar festival. Deceased Salman Khan was in the habit of outraging the modesty of women and he has outraged the modesty of Panch Bai, therefore, members of the Yadava community gathered to celebrate their function had assaulted the deceased and caused his homicidal death. 27.As per evidence ofVishnu Sahu (DW-1), Councillor ofthe same ward, he has not named the woman whose modesty has been outraged by the deceased, even as per his evidence, he was not present on the spot and he came to know after the incident. Therefore, his hearsay evidence is not retevant. As per evidence of Neerabai Sahu (DW-2), the deceased was a man of bad character, he used to knock the door of women and used to outrage the modesty of women. She has further deposed that she was not present at the time of incident. Her evidence is also not relevant. (DW-3) has Another defence witness Smt. Sukhbati Bai deposed that the deceased has outraged the modesty of Panch Bai with whom she went to the police station for lodging report. She has further deposed that she has not heard about the death of the deceased and she does not know who has caused the death of the deceased. Except the fact that she has gone to the police station for lodging report along with Panch Bai, her evidence is not relevant in the present case. Smt. Fagni Bai (DW-4) has deposed that mob has caused injuries to the deceased, butshe has not seen as to who has caused injuries. Even she does not know what was the dispute with Panch Bai. Her evidence is also not relevant. L.M. Mishra (DW-5), Sub Inspector of Police, Durg, has deposed that he has written the FIR Ex. D-8 at the instance of Panch Bai who came along with 4-5 women, for the offence punishable under Section 354 of the IPC. R.L. Badh (DW-6), Assistant Sub Inspector, has deposed that Ex. D-9 has been issued by his police station. He has further deposed that several cases were registered against deceased Salman Khan. 28-Evidence adduced on behalf of the defence did not disclose that any of the witnesses was present at the time of incident or Zahida Khan (PW-6), injured witness, was not present on the spot at the time of inddent or that the appellants have not caused injuries to Salman Khan & Zahida Khan. Cr.A.Nos.1063, 1068, 1152, 1200, 1307 & 1337/2003 Page12of26 29. Evidence of Zahida Khan (PW-6) corroborated by medical evidence and FIR lodged by her are sufficient to establish the fact that the appellants have caused homicidal death ofthe deceased. 30.As regards formation of unlawful assembly having its common object to commit murder of Salman Khan, constitution of unlawful assembly is a question of fact and the prosecution is required to prove constitution of unlawful assembly and its common object. Unlawful assembly may be constituted at any moment and person may join unlawful assembly at any time, even at the prosecution is the time of causing injury, but required to prove the aforesaid fact by adducing cogent and reliable evidence that the persons have formed the unlawful assembly or joined in unlawful assembly having its common object and was havirtg its common object for commission of the aforesaid offence. Mere presenc^ as a stranger, by passer or gathered on the spot to see quarrel or the incident would not make the person liable for formation of unlawfut assembly or liable for the commission of offence. 31. While dealing with the question of formation of unlawful assembly, the Supreme Court in the matter of Chandra Bihari Gautam & Ors. v. State of Bihar has held that unlawful assembly may be constituted at any moment and even assembled of accused, but the existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. Para 6 of the said judgment reads as under: ^ "6. It has been argued alternatively that even if the occurrence is held to have taken place in the manner alleged by the prosecution and the accused persons were seen on spot, they cannot be convicted and sentenced as the prosecution allegedly failed to establish the accused persons. Section 149 is an exception to the criminal law whereunder a person can be convicted and sentenced for his vicarious liability only on proof of his being a member of the unlawful assembly, sharing the common object, notwithstanding as to whether he had actually participated in the commission of the crime or not. Common object does not require prior concert and a common meeting of minds before the attack. An unlawful object can •develop after the accused assembled. The existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each JT 2002 (4) 62 ^" Cr.A.Nos.1063, 1068rri52, 1200, 1307 & 1337/2003 Page13of26 case. It is true that the mere presence of the accused is not sufficient to hold them guilty for the sharing of common object as the prosecution has to further established that they were not mere by-standers but in fact were sharing the common object. When a concerted attack is made by a large number of persons, it is often difficult to determine the actual part played by each of the accused but on that account, for an offence committed by a member of the uniawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons provide to be members cannot escape the consequences arising from the doing of that act which amounts to an offence. There may not be a common object in a sudden fight but in a planned attack on the victim, the presence of the common object amongst the persons forming the unlawful assembly can be inferred." 32.While dealing with same question, the Supreme Court in the matter of Pandurang Chandrakant Mhatre v. State of Maharashtra6 has held that conduct of each member of unlawful assembly before and at the time of attack is relevant consideration. Object of unlawful assembly is a question of fact which has to be determined keeping in view nature of assembly, arms carried by members, and behavior of members at or near scene of incident. Mere presence on the spot will not make the person liable for commission of the offence with aid of Section 149 of the Indian Penal Code. 33.Whi1e dealing with same question, the Supreme Court in the matter of Masalti v. State of U.P.7 has held in para 17 as under- "17. .....What has to be proved against a person who is alleged to be a member of an unlawful assembly is the persons constituting the that he was one of assembly and he entertained along with the other the assembly the common object as members of defined by Section 141 IPC. Section 142 provides that facts which render any whoever, being aware of assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of In other words, an assembly of an unlawful assembly. five or more persons actuated by, and entertaining one or more of the common objects specified by the five is an unlawful assembly. The clauses of Section 141, 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 6 7AIR1965SC202 (2009)108cc 773 '^ \ \ ^^"1 Cr.A.Nos.1063, 1068, 1152, 1200, 1307 & 1337/2003 Page 14of26 it becomes relevant commonobjects as specified by Section 141. Whife determining this question, 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." 34.While dealing with same question, the Supreme Court in the matter of "4. Sherey andothers v. State of U.P.8 has held in para 4 as under:- .........But when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we reasonable to circumstance which lends assurance. From that point of view it is safe only to convict the abovementioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom over acts are attributed......." some have find , 35.While dealing with the question of need of overt act or active participation the Supreme Court in the matter of of member of unlawful assembly, Lalji and others v. State of U.P.9 has held that once formation of unlawful assembly is established, then no overt act or active participation of any member of unla^A^ul assembly is required and mere meeting of five or more persons for carrying out common object reasonable apprehension of viotence, even without doing any overt act is involving sufficient to constitute offence. Paras 8 and 9 of the said judgment read as under- "8. the same assembly, Section 149 IPC provides 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 the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence is a member of that offence. As has been defined in Section 141 IPC, an assembly of five or more persons is designated an "Unlawful the persons composing that assembly is to do any act or "Third", acts "Fourth", and "Fifth" of that section. An assembly, as the exptanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is the common object of is guilty of Assembly", stated in "Second", clauses "First", if / 8 1991 Supp (2) SCC 437 (1989)18cc 437 9 "^ p<* b^^'i' "^7 -<" Cr.A.Nos.1063: ,1152, 1200, 1307 & 1337/2003 Page 15of26 the mere fact of said to be a member of an unlawful assembly. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to invotve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their common object, their having thus met will constitute an offence. Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm persons of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the that assembly knew to be likely to be members of committed. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141 IPC. Common object the unlawful assembly can be gathered from the of nature of the assembly. arms used by them and the the assembly at or before scene of behaviour of occurrence. It is an inference to be deduced from the facts and circumstances of each case. it In other words, Section 149 makes every member of an unlawful 9. assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and created a distinct offence. constructive or vicarious liability of the members of the the unlawful acts committed unlawful assembly for pursuant to the common object by any other member of the vicarious liability of the that assembly. However, members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members the unlawful assembly knew to be likely to be of committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the the unlawful assembly or such as the members of assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the It ^, \, Cr.A.Nos.1063, 1068, 1152, 1200, 1307 & 1337/2003 Page 16of26 prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible for the acts of each, and all, merely as a principal because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge." liability under Section 149. 36.While dealing with the question of intention/common object of unlawful in the matter of State of U.P. v.^ Dan the Supreme Court assembly, Singh and others has held that intent of members of assaulting party can be gathered from number and nature of injuries and arms used L 7 them. An assembly which is initially lawful may subsequently become unlawful. Paras 30 and 31 ofthe saidjudgment read as under:- "30. of alt per let us examine whether From the aforesaid facts, as found by the High there existed any Court, unlawful assembly and what was its common object. It is possible that there was no unlawful assembly in the time when the "doli" was stopped. existence at Nevertheless the as the evidence eyewitnesses, a large number of villagers had gathered there and they had with them lathis and sticks. According to the explanation to Section 141 IPC an assembly which is not unlawful when it assembles msy subsequently become an unlawful assembly. As observed by this Court in Lalji v. State of U.P. {(1989) 1 SCC 437 : 1989 SCC (Cri) 211} "that common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour It of the assembly at or before the scene of occurrence. is an inference to be deduced from the facts and circumstances of each case". What has happened in the present case is precisely what has been envisaged in the explanation to Section 141 IPC. With Khima Nand being injured, all hell broke loose. A cry was raised that the Doms should be burnt and killed, and this is precisely what happened. The marriage party was assaulted by the villagers. Six of the members of the marriage party were burnt, five of them having been locked inside the house of the only Dom resident of the village whose house was also burnt. Eight others were pursued and then mercilessly beaten and were killed to appreciate how elsewhere in the village. We fail anyone, under the circumstances, can possibly come to '^. (1997)38cc747 Cr.A.Nos.1063, 1068, 1152, 1200, 1307 & 1337/2003 Page17of26 the conclusion that an unlawful assembly having the common object of killing the Doms did not exist when fourteen people have been killed without the use of any weapon more lethal than a stick or stone. Considering the number of injuries on the persons who had died, it is evident that a large number of persons must have taken part in the assault. Even if the assembly of villagers was initially lawful, the same, undoubtedly, became unlawful when the riot started after Khima Nand was injured. All fifty or more villagers had taken part in the attack. Who were members of the assembly will be considered later but what to note is that a large number of villagers were present. duly armed with lathis and sticks, when the occurrence started and except six people who were burnt, eight others were beaten to death by blows from lathis, sticks and stones. It is difficult to appreciate the conclusion of the circumstances, the attackers probably had a similar object but not a common object. the eyewitnesses have said that the High Court that, under is relevant It was sought to be contended that there is 31. nothing to show that the unlawful assembly continued to exist during the course of the entire incident. It is not possible to accept this considering that when all that remained in the village, of the marriage party, were the fourteen corpses. marriage party who had run away were able to save their lives. The only conclusion which we can arrive at, in the instant case, there was an unlawful assembly which attacked the marriage party and which had the common object of killing them, and they succeeded in their endeavour to a large extent." is only those members of is that It 37-While dealing with the question of common object and necessity of overt act of members of unlawful assembly, the Supreme Court in the matter of Gangadhar Behera and others v. State of Orissa11 has held that evidence relating to common object generally not available and same has to be gathered from the act committed and result therefrom. Likewise once assembly is formed, then overt act of any member of assembly is not assembled and even an assembly which is initially lawful may subsequently become unlawful. Paras 22, 23 and 24 of the said judgment read as under:- "22. -Another plea which was emphasized relates to the question whether Section 149 IPC has any appljcation for fastening the constructive liabiljty which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. (2002) 8 SCC 381 L -e^^ Cr.A.Nos.1063, 1068, 1152, 1200, 1307 & 1337/2003 Page 18of26 Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or mpre persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as 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 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. The word "object" means the purpose or design and, in order to make it "common", it must be shared by alt. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is It may be formed at any stage by no means necessary. by all or a few members ofthe assembly and the.other members may just join and adopt it. Once formed, it It may be modified need not continue to be the same. or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 have to be strictly construed as equivalent to "in order to attain the common object"? It must be immediately connected with the common object by There must be virtue of community of object and the object may exist only up t6 a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC the same may be different on djfferent members of assembly. the nature of the object. from a "common "Common object" is different 23. intention" as it does not require a prior concert and a is common meeting of minds before the attack. . enough if each has the same object in view and their number is five or more and that they act as an assembly The "common object" of an to achieve that object. assembly is to be ascertained from the acts and language of the members composing it, and from a tt L x ^fi^ Cr.A.Nos.1063, 1068, 1152, 1200, 1307 & 1337/2003 Page19of26 the assembly. What consideration of all the surroundingcircumstances. It may be gathered from the course of conduct adopted by the members of the common object of the unlawful assembly is at a particular stage of the incident isessentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently It is not necessary that the intention become unlawful. the purpose, which is necessary to render an or assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or lawful, may even In other words it can subsequently become unlawful. develop during the course of incident on the spot eo instanti. some time thereafter, for is be the section means that Section 149 IPC consists of two parts. The first 24. the offence to be part of committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first connected the offence must part, immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence committed is not in direct prosecution of the it may yet fall under common object of the assembly, Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set If the object out or desired to achieve is the object. desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to is to be achieved and that is now the common how it object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard-and- fast rule can be laid down under the circumstances from it may which the common object can be culled out, the reasonably be collected from the nature of assembly, arms it carries and behaviour at or before or used in the after the scene of incident. The word second branch of the section implies something more than a possibility and it cannot be made to bear the sense of "might have been known". Positive knowledge "knew" / L Cr.A.Nos.1063, 1068, 1152, 1200, 1307 & 1337/2003 Fa^e 20 ot 2b is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the That, however, does not make the common object. there may be cases which converse proposition true; would come within thesecond part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first, offences committed in prosecution of the common object would if not always, within the second, namely, be generally, offences which the parties knew were likely to be committed in the prosecution of the common object. (See Chikkarange Gowda v. Stete of Mysore, AIR 1956 SC731 : 1956 Cn'LJ 1365.)" ^ 38.1n the light of law as propounded by the Supreme Court in aforesaid five or more than five for constitution of unlawful assembly, cases, members are required, their common objects must be for commission of the offence as envisaged in Section 141 of the Indian Penal Code. An assembly constituted la^A^ul may be converted into unlawful assembly at any moment. Normally the evidence relating to common object of unlawful assembly is not possible. committed by the unlawful assembly and if result of such act is once It may be inferred from the act proved that the unlawful assembly has been constituted, any ov^rt act or active participation of any member of unlawful assembly is nc5 necessary. All members would be liable for commission of offence or for the act committed by any member of unlawful assembly in accordance with Section 149 ofthe Indian Penal Code. 39.Specific defence has been taken by appellant Panch Bai that deceased Salman Khan has outraged her modesty, therefore, she has gone to the police station for lodging FIR along with other female appellants, she has lodged FIR Ex.D-8 for the offence punishable under Section 354 of the IPC at 6.30 p.m., and she was not present at the time of alleged incident of homicidal death of Salman Khan. Zahida Khan (PW-6) herself has admitted in para 2 of her evidence that Panch Bai, Usha Bai, Vimla Bai, Rajbati, & Draupadi Bai were present at police station, Draupadi Bai was Cr.A.Nos.1063, 1068, 1152, 1200, 1307 & 1337/2003 Page21 of26 having head injury and she was sent to hospital for examination. Specific defence taken by aforesaid appellants, especially Panch Bai finds corroboration from the evidence of defence witnesses and FIR Ex. D-8 and also from the evidence of Zahida Khan (PW-6), who has admitted their presence at police station when she reached to the police station and also corroborated by para 7 of her evidence, reveal that the deceased has tried to outrage the modesty of appellant Panch Bai, Panch Bai reacted and has lodged FIR against Salman Khan, the deceased. 40.As regards the question of motive behind homicidal death of Salman Khan and injuries to Zahida Khan (PW-6), motive only aids in criminality and in case of direct evidence it loses its importance. Motive can be inferred on the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances. 41.1n the present case, as per para 1 ofthe evidence ofZahida Khan (PW- 6) - injured witness, appellants Anil, Laxmi, Santosh, Sonsai & Raju came to her house, Sonsai & Sukhram, who is not accused in the present case, caught hold of her son, Anil & Santosh were also holding her son, thereafter, Laxminath along with five women came to her house and caused injuries over knee of her son and also caused fracture of his legs. Draupadi has thrown a big stone over the head of the deceased, ^ thereafter, alt the appellants assaulted the deceased. When she tried to save her son, they also assaulted her. Sukhram has set her chunri ablaze and also torn her clothes which she was wearing. They dragged Salman Khan. The factum of setting chunri ablaze and tearing of her clothes do not find support from the FIR or other evidence. 42.As per Ex.D-8, Salman Khan has outraged the modesty of a woman at 6 p.m.. Present incident also took place at about 6 p.m.. Considering number of criminal cases pending against the deceased, his habits, his criminal antecedents and immediately lodged FIR Ex.D-8 for the offence punishable under Section 354 of the IPC by Panch Bai against deceased, the alleged incident was immediate it clearly reveals that the reaction of the appellants when the modesty of appellant Panch Bai has been outraged by the deceased. Appellant Draupadi Bai had also sustained head injury which has been admitted by Zahida Khan (PW-6) \ Cr.A.Nos.1063, 1068. 1152, 1200, 1307 & 1337/2003 Page 22 or 26 herself in para 2 of his evidence, though she has deposed that Draupadi Bai herself has caused injury and told to the police that Salman Khan has caused head injury to her. Head injury of Draupadi Bai has been specifically admitted by Zahida Khan (PW-6) in para 2 of her evidence. In absence of any evidence that Draupadi Bai herself has caused injury, without any material, it would be difficult to hold that injury found over the head of Draupadi Bai was self-inflicted. As per evidence of Zahida Khan (PW-6), motherofthe deceased, Draupadi Bai has informed to the police that Satman Khan has caused head injury to her. Draupadi Bai was also sent to the doctor for treatment. This part of evidence of mother of the deceased and injured witness cannot be discarded and this evidence is sufficient for drawing inference that Salman Khan has caused head jnjury to Draupadi Bai. Draupadi, Panch Bai, Usha, Vimla & Rajwati were aiso present at the police Station and Panch Bai has lodged FIR vide Ex.D-8. 43.Numbers of injuries have been noticed by Dr. P. Bal Kishore (PW-1) in There were multiple the autopsy report of Salman Khan, Ex.P-1. contusions, abrasions and other injuries. The doctor has noticed lacerated wound over left ear (injury No.10), lacerated wound & compound fracture of forehead, tacerated wound & compound fracture of nozzle bone, abrasion over left side of face, lacerated wound over right side of parietal region and contusion over thyroid cartilage. These are the injuries found over head, face and part of head of the deceased. As per evidence of Zahida Khan (PW-6), head injury has been caijsed by Draupadi Bai who has also sustained injury. Fracture of tibia & fibula rjf right hand and that of right ankle has been noticed by the doctor as injuries No.1 & 3. Fracture of fingers of left hand and fracture of left hand have also been noticed by the doctor as injuries No.5 & 6. These injuries are sufficient to presume that after receiving such injuries and head injury along with fracture, the deceased was not in a position to cause any injury to any person. This is also sufficient to presume that the deceased has precisely caused injuries to Draupadi Bai that too over her injuries have been caused to Salman Khan by the head, thereafter, appellants. Although the prosecution has not proved head injury of Draupadi Bai, but her injury has been admittedby solitary eyewitness Zahida Khan (PW-6) in para 2 of her evidence. / K^.^s^, ^ ^y^^, y'" i •/ Cr.A.Nos.1063,1068,1152,1200,1307 & 1337/2003 Page23of26 44.Head injury of Draupadi Bai and her immediate reaction and head injury caused by her to Salman Khan reveal that after receiving head injury, she was in a position to walk and she has caused injury over head of Salman Khan, when she was assaulted by Salman Khan without any propriety. Panch Bai has also caused injury to Salman Khan when he outraged her modesty. Other appellants have caused injuries to deceased Salman Khan as a result of immediate reaction when the deceased having criminal antecedents and several criminal cases, has caused head injury to Draupadi Bai and outraged the modesty of Panch Bai. They have not caused injury over vital part of the deceased. They have caused injuries mainly over hands, legs and back which reveal that ^ the appellants have caused injuries to the deceased when they lost their tolerance and reacted, when the deceased caused head injury to Draupadi Bai and outraged the modesty of Panch Bai. Reaction and injuries caused by the appellants was not unnatural. 45.As per evidence of Zahida Khan (PW-6), one Sukhram has torn her clothes which she was wearing and set her chunri ablaze. She has not named Sukhram in the FIR and the prosecution has also not made Sukhram as accused. 46.Circumstances and evidence adduced on behalf of the parties are sufficient for drawing inference that the alleged incident was immediate reaction of the act of outraging the modesty and causing injuries by Salman Khan to Panch Bai and Draupadi Bai, respectively. Injuries found over the body of deceased SalmanKhan, though were huge in number, except head injury caused by Draupadi Bai, other injuries are not fatal and were especialty caused upon hands, legs and back which shows that the appellants have not caused any injury with intent to cause the death of Salman Khan. However, the appellants have caused injuries with intent to teach a lesson to a hardened criminal. Except head injury, other injuries were not on vital part sufficient for causing death. Causing such injuries over hands, legs and back shows that the intention of the appetl^nts was not for causing homicidal death of the deceased, but, undisputedly, it was for causing grievous injury to teach a lesson or even to make him unable to commit further offence that too with the persons of the same vicinity. Draupadi Bai has caused head injury to the deceased when she was assaulted by the deceased and especially € ^ ": V. .. '^il-C^'" Cr.A.Nos.1063, 1068, 1152, 1200,1307 & 1337/2003 Page24of26 when the deceased caused head injury to her without any propriety. was her Jmmediate reaction that she has caused injury to the deceased. It Exercise of the right of private defence was available to her and in exercise of the right of private defence, when she sustained head injury, she has caused such injury to the deceased. Panch Bai has also caused injury to the deceased in exercise of the right of private defence which was available under Section 105 ofthe IPC. 47.Evidence adduced by the prosecution and evidence ofdefence witnesses especially, evidence of L.M. Mishra (DW-5) & R.L. Badh (DW- 6) - police officers posted at Police Station: Durg, reveal that at least nine criminal cases were pending against deceased Salman Khan and appellant Panch Bai has lodged FIR Ex.D-8 against Salman Khan for the il offence punishable under Section 354 of the IPC stating therein that the deceased has outraged her modesty. Pendency of about fifteen criminal cases against herself and deceased Salman Khan has been admitted by mother of Salman Khan Zahida Khan (PW-6) in para 7 of her cross- examination. These evidences are sufficient to prove that Salman Khan was a man of criminal antecedents and of bad character, and number of cases were pending against him. On that day, he has outraged the modesty of appellant Panch Bai, then she annoyed and came along with female accused/appellants Rajbati, Vimla Bai, Draupadi Bai, Panch Bai & Usha Bai, and Usha Bai has assaulted Salman Khan by stone and others assaulted him by axe and broke both the legs of the dfeceaced. This reveals that on account of criminal activity of deceased Salman Khan, especially when he outraged the modesty of Panch Bai, the female accused/appellants annoyed and caused injuries especially over legs of the deceased, not'on vital part which shows that these five female j accused were not having any intention to kill him, but undisputedly, they have caused grievous injuries by dangerous weapons with a view to teach him a lesson. Other appellants who are residents of same vicinity also got annoyed and on account of annoyance, caused any injury to the deceased with intent to kill him, but after causing they have also not injury by female accused, at the time of causing injury, at least they were knowing the fact that by their act the deceased may die. 48.These evidences are sufficient for drawing inference that at the time of causing injury although all the appellants were annoyed upon the ^^ ^^•^:- ^^^^ Cr.A.Nos.1063.1068,115CT200,1307 & 1337/2003 Page25of26 deceased, but they have formed unlawful assembly on the spot and they were having deadly weapons, but their common object was not same. Common object of appellants Rajbati, Vimla Bai, Draupadi Bai, Panch Bai & Usha Bai was to cause grievous injury and to teach the deceased a lesson. Common object of other accused/appellants was to cause injury but not amounting to death of the deceased. They have caused injury on sudden provocation, on the spur of the moment when they were provoked by the deceased. 49.1n the circumstances, the act of appellants Santosh, Laxminath, Raju, Sonsai & Anil squarely falls within the ambit of Section 304 Part-11 read c with Section 149 of the IPC, and the act attributed to appellants Rajbati. Vimla Bai, Draupadi Bai, Panch Bai & Usha Bai squarely falls within the ambit of Section 326 read with Section 149 of the IPC. The appellants have also caused injury to Zahida Khan in furtherance of common object. Therefore, all the appellants are liable for the offence punishable under Section 323 read with Section 149 of the IPC and for formation of unlawful assembly armed with deadly weapons they are also liable for punishment for committing the offence punishable under Section 148 of the IPC. 50.While convicting and sentencing the appellants, espedally under Section 302 read with Section 149 of the IPC, the trial Court has not considered the circumstances, criminal antecedents of the deceased and his instant act compelling the appellants for causing such injuries, and thereby committed illegality. 51.Consequently, all the criminal appeals are partly allowed. (a) Conviction & sentences ofthe appellants under Section 147 ofthe IPC are hereby set aside and the appellants are acquitted of the said charge. (b) Conviction & sentences of the appellants under Sections 148 & 323 read with Section 149 of the IPC are hereby maintained. (c) Conviction of appellant Rajbati in Cr.A. 1200/2003, appellant Vimla in Cr.A. in Cr.A.No. 1068/2003, appellants Draupadi & Panch Bai No. 1152/2003 and appellant Usha Bai under Section 302 read with Section 149 of the IPC is altered to Section 326 read with Section 149 of the IPC and they are in CrANo. 1063/2003 / Cr.A.Nos.1063, 1068, 1152, 1200, 1307 & 1337/2003 Page26of26 sentenced to Rl for the period already undergone by them. They were in custody for more than two years. (d) Conviction of appellant Santosh in Cr.A.No. 1307/2003, appellant Laxminath in CrA.No. 1068/2003, appellants Raju & Anil in Cr.A. No. 1337/2003 and appellant Sonsai in Cr.A.No. 1063/2003 under Section 302 read with Section 149 ofthe IPC is altered to Section 304 Part-11 read with Section 149 of the IPC and they are sentenced to Rl for six years. They are in custody since the year 2003 and have completed more than six years of jail sentence. They be released forthwith, if not required in any oth^Lcase. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge 1 ^.s ^.r'w^ ; .<* ^:.—r^- ^ s