SANTOSH versus THE STATE OF MADHYA PRADESH

SANTO SH

THE STATE OF MADHYA PRADESH Februafly 7, 1975

[M. H. BEG AND A. ALAGIRISWAMI, JJ.J

Indian Pe11al Code Section 302/149-Common objecr-Concurrent (t•1dings of fac.t-Vicario11s liability of members of an 1111!awf11/ as~embly.

118 persons were prosecuted for participation in serious riot. 5 a~cused were. dis·charged by the Committing Magistrate. The Additional Sessions Judge acquitted 61 accused and convicted 52 ur.der section 147 and sentenced them to 2 years' rigorous imprisonment. The appellant was held guilty under section 304p) read with 149. and sentenced to 5 years rigorous imprisonment, under sectlon 325 /149 sentenced. to 2 years rigorous impri;omnent and under section 323/149 sentenced to month's rigorous imprisonment.

The convicted persons and the State filed appeal~ l)efore the High Court. The High Court convicted 14 persons including the appellant and altered his conviction under section 304/1/149 into 302/149 for the murder of 3 persons and sentenced the appellant to life imprisonment.

The Learned Counsel for the appellant before this Court contended that the appellant did not participate in the riot.

HELD : This Court is unable to disturb the concurTcnt findings of the two courts below about appellant's participation in the riot. The High Court how-ever, was wrong in holding that the common object of the unlawful :mcm-bly was necessarily to cause death of three individuals. In case like the pre-sent there were two factions; one of the oppressors :rnd the other of the opp-ressed, and the i11te·1tion of members of the oppressed faction could be initially, to demonstrate quite lawfully. The circumstances ,ho•ved that the appellant's intention may have been confined to joining procession for purposes of pro-E test. If it is doubtful that the common object uf ti1e unlawful assembly was to cause death, persons other than those who actually cominitted the acts resulting in death could not be held vicariously liable for murder. [464F-G; 564H-466D] .

[The judgment of the High Court as far as appellant is concerned was set aside and that of the Sessions Court restored.] [ 446G]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 22 of 1971.

(Appeal by Special Leave from the Judgment & Order dated the 30th March, 1970 of the Madhya Pradesh High Court in Criminal Appeal No. 536 of 1 %6).

P. P. Juneja for the app~llant.

Ram P1mjwa!!i and H. S. Parihar, for the respondent.

The Judgment of the Court was dctivcred by

BEG, J. This is an appeal by special leave by one out of 118 per-sons wb') were prosecuted for participation in serious riot on Augu>t l, 1965; in village Ganiari, Tehsil Bilaspur, in the State of Madhya Pm·· c1csh, as result of which several persons were attacked with sharp edged weapons and three of them died of wounds sustained by them. Five •accused persons were discharged by the Committing Magistrate. One hundred and thirteen persons were jointly tried for various offen-ces punishable under Sections 147, 148, 302, 307, 325 and 323 Indian Penal Code. Charges were also alternatively framed under Section

302/149, 307/~49, 323/149 an~ 325/149 a¥ainst ~11 of them. An Additional Sess10ns' Judge of Bilaspur acquitted sixty one accused persons and convicted fifty two persons. He found all the conv~~ted persons guilty under Section 147 .P.C. and senrenced them to two years rigorous imprisonment. We need only mention the other con-victions of the appellant before us. He was held guilty under Section 304(1 )/149 IPC and ·se.ntenced to five years rigorous imprisonrt1ent and under Section 325/149 IPC and sentenced to t«'.o.lears rigoi:dus impriSj)nment, and under Section 323/149 IPC and sentenced t1) month's rigorous imprisonment.On appeals by the convicted persons as well as by the State Govern-ment, the High Court, while convicting only fourt~en persons, includ-ing the appellant, altered his conviction under section 304(1) /149 IPC into three convictions under Section 302/149 for the murder of three persons Badlu, Santu, Chhote Bhurwa, but it m•ade the :;en-tences of life impriso•ament concurrent for the three offences. It m.t1in-tained the other convictions and sentences passed by the learned Ses-:;ions' Judge.

learned Counsel for the appellant has tried to advance some arguments to assail the conviction of the appellant for participation in rioting. But, we are not impressed by any of the criticisms levelled against six witnesses relied upon by the Trial Court as well as the High Court: Baliram, PW 1, Ganesh Rao, PW 2, Gangaram, PW 3, Bade Bhurwa, PW 4, Kabra, PW 5, and Lulwa, PW 7. The unshaken evidence of these witnesses had established that the appellant had participated in the riot, and chased the victims, and even inflicted some minor injuiries on Baliram, PW 1. But, beyond that, the parti-cipation of the appellant in the actual acts of cutting the limbs of the three persons, who eventually died of profuse bleeding, was not de-posed to by any prosecution witness. Although we are un:able to disturb the concurrent finding of the fact by the Trial Court and the High Court of the participation of the appellant in the serious riot which took place on 1-8-1965 in village Ganiari, we are alsn unable to concur with the view of the High Court that o'.1 facts established, the common object of the unlawful assem-blv was necessarily to cause the death of the three individuals who, unfortunately, lost their lives as result of the out-burse of frenzy of •an outraged mob against persons who, according to the. learned Ses-sions·' Judge, had given c~use to the villagers to be seriously displeased with their nefarious activities. ·

· !he learned Sess;ioas' Judge, while convicting the -appellant under Sect::m 304 (l), had obs1~rved : . ·

"I . am inclined to take lenient view of ·these klilings ' because the persons killed had become ·a nuisance to the ··'!lage community \Uid their crirrrtnal acts. knew oo houoo~ or rationali~y. titne ~omes when even an orde!1y society' Tl?volts findr.ig no rellef m the regqlar course. Thougli such 2:;t·; rrr;: riot permissible even in such cases and ranno1' be c,~.:,uragi?d yet due discrmfrmtion was not lost sight·of bt

the assailants and severe. penalty is thus not called for in the present case.'

We do not consider these reasons of the learned Sessions Judge, who had given them for convicting the appdlant togethel" with other accused persons under Section 304 (I)/ 149 IPC and sentencing them to five years' rigorous imprisoo,1ment, to be at all sound or relevant in justifying •a conviction under Section 304(1) /149 IPC. ·

The learned Sessions' Judge had relied upon Kapur Singh v. State of Pepsu('), to hold that, as injuries were inflicted upon the limbs of · the three men, who die4"of bleeding, but infliction of injuries on vital parts of the body \"\'.~.s d6ilberately avoided, an intention of anybody to murder was not established. The learned Session's Judge appears to have overlooked the vadous clauses of Section 300 IPC. An inten-C . tion to kill is not required in every case. knowledge that the natural and probable consequences of an act would be death will suffice for conviction under· Section 302 IPC.The question on whifb we entertain serious doubts, after examin-. ·ing the natur~ of "the case 'and the relevant evidence on record is whether the killing {)f -.arty" of the three men who died was within the common dbject of the large number of persons who took part in the riot in , various w~ys in fairly wide-spread area. It may well be that those who actuall.y Inflicted the injuries on the three men who died could be · . held Jiable for, causing death in particularly cruel manner. Th~ ques-tion, nevertheless, remains whether each of the large ,number of other .: f~oters in the village, who took part in various ways in what appeared "·to be an ,ipsqpge of r;esentmlcnt and hostility against party three of ... which lost-' their lives,'..:.shared the common object to kill th~m or to .'do acts w])ose: natural and probable results would be their 'deaths. refor~nce made to Chikkarange Gowda & Ors. v. State of Mysoree), would show that each member of mob needLnot bi:,neces-' -sarily be lieldfliable for the actions of every other meinber of that: mob . .-It may be. easier; in some respects, to prove cominon '~eJ'· as ' basis for ~i~ri?us lia?il!ty under Se~tion _149 I.PC,' than t'O. f'St~blish :: common 1htent10n w1thm the meaning of· Sect10n 34 IPC .. -' Never-theless, as was 'Pointed out by this Coµrf in Chikkarange Gowda's case (supra)~ the princ;:iplc h.as. been well r~_c·ogn.· ised, since the decision in 1873 'in Queen v. Sabed Ali ([3]), that e~y offence which may be committed by merriber of an unlawful assembly will not be neces-sarily asceribed to or vicariously fastened upon every other member ~that assembly by using Section 149 IPC. The likelihood of causing of_ death by the nature of the actions of the members of the assembly must be, sho\S{t! to be within the knowledge of member who is to be . made vicariously' liable for death. Such knowledge may be inferred from the nature of the actions committed by others in ap unlawful assembly Which the memb_er held vicariously liable continues to asso-ciate himself with ;;Iespite 'these actions seen by him or knowii to him,

In case sucHs the one before us, in which there were two fac-H tions in village, one of~he oppressors and the other of the 0ppr<:ssed,

(I) AIR 1956 S.C. 654. (2) AIR 1956 S.C. 73t. (3) 20 Sut. W .. R. (Cr.) 5 (A).

smarting under the pain of injuries i_nflicted by their oppressors, the inte1ltion of member of an assembly could be initially quite lawful. His object may not go beyond joining procession for purposes of protest. We are convinced, on the evidence on record, that the parti-cipation of the appellant before us went beyond exhibiting mere intention to protest. It not only embraced knowledge of likelihood of hurt of some kind to members of the party attacked, but it includ·~d an attack by the appellant on Baliram, PW 1. The nature of that attack was, however. relatively mild. At most, from the concerted action of so 'many men member of the unlawful assembly, on th('. facts and circumstances of the case before us, could be reasonably held to be aware that grievous hurt would result. After examining all the evid·~nce relating to the participation of the appellant and others in the riot we are left in grave doubt whe-. ther the assembly had common object of killing any one at all, even if such was really the object of any particular member or mem-bers of the unlawful assembly. It may be that those who cut the limbs of men who lost their lives due to bleeding could reasonably be held liable for murder. But, it seems to be unlikely that each member, considering the nature of the riot and the different acts of different members of the riotous assembly, had such an object. This was exactly the view adopted by this Court in Chikkarange Gowda's case (supra).As we are doubtful whether the appellant could be held guilty of participation in an unlawful assembly which had the common object of kiiling or even maiming the three men who lost their lives, we think that the appellant could not be convicted under Section 302/149 IPC. We also think that the learned Sessions' Judge was in error in holding that th.~ appellant could be convicted under Section 304(1) /149 IPC. For conviction under Section 304( 1) IPC., it has to be shown that the case of the convicted person falls within one of the five Excep-tions found in Section 300 IPC. It is obvious that the case of the appellant does not fall under any of these Exceptions. If it is doubtful whether the com111on object of the unlawful assembly joined by the appellant was to commit any acts which were either intended to cause death, or, froin which knowledg:c of likelihood of death could be inferred, we think that persons othetthan those who actually com-mitted the ~cts resulting in death could not be held vicariously liable for murder. The result is that we allow this appeal to the extent that we set aside the convictions and sentences of the appellant under Section 3C.2/149 IPC. We maintained his convictions and sentences under Section 147, 323/149 and 325/149 IPC. Subject to the modification indicated here this appeal is dismiss.ed. We understand that the appel-lant has already undergone imprisunment longer than the longest one imposed for the convictions sustained by us. We therefore, ctirect that he be released forthwith unless wanted in some other connection.

Agpea/ allowed.