1 2026:CGHC:2402-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 330 of 2017 1 - Guddu @ Shivdayal S/o Gajanand Suryawanshi, Aged About 45 Years R/o Jarhabata, Police Station Civil Line, Tahsil And District Bilaspur, Chhattisgarh., Chhattisgarh --- Appellant(s) versus 1 - State Of Chhattisgarh Through S.H.O. Civil Line Bilaspur, District Bilaspur, Chhattisgarh., Chhattisgarh --- Respondent(s) CRA No. 282 of 2023 1 - Narad Suryawanshi S/o Late Deendayal Suryawanshi, Aged About 38 Years R/o Near Jatiya Talab Jarhabhata, Tahsil And District Bilaspur, Chhattisgarh. ---Appellant(s) Versus 1 - State Of Chhattisgarh Through S.H.O. Civil Line Bilaspur, District Bilaspur Chhattisgarh. --- Respondent(s) For Appellant(s) : Mr. Raj Kumar Gupta, Advocate. For Respondent/State : Mr. Dharmesh Shrivastava, Dy. Advocate General. For Complainant/Objector: Mr. Ajay Chandra, Advocate. ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2026.01.21 12:24:29 +0530 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 15/01/2026 1. Both these appeals arise out of the same crime number and the same incident; therefore, they are being heard and decided together. 2. The Criminal Appeal no. 330/2017 filed by the appellant Guddu alias Shiv Dayal against the impugned judgment of conviction and sentence dated 28.01.2017, passed by learned First Additional Sessions Judge, Bilaspur in Sessions Case No. 151/2005, whereby the appellant Guddu alias Shiv Dayal has been convicted and sentenced in the following manner with a direction to run all the jail sentence run concurrently: Conviction Sentence Under Section 147 of IPC 01 year RI Under Section 148 of IPC 02 year RI Under Section 323/149 of IPC 06 months RI Under Section 452 of IPC 03 year RI and fine of Rs. 100/- in default of 06 months RI Under Section 302/149 of IPC Life imprisonment and fine of Rs. 100/- in default of 06-06 months RI 3 3. The Criminal appeal No. 282/2023 filed by the appellant Narad Suryavanshi against the impugned judgment of conviction and sentence dated 23.01.2023, passed by learned First Additional Sessions Judge, Bilaspur in Sessions Case No. 151/2005, whereby the appellant Narad Suryavanshi has been convicted and sentenced in the following manner with a direction to run all the jail sentence run concurrently: Conviction Sentence Under Section 147 of IPC 01 year RI and fine of Rs. 500/-, in default of payment of fine 06 month RI Under Section 148 of IPC 02 year RI and fine of Rs. 500/-, in default of payment of fine 06 month RI Under Section 323/149 of IPC (3 times) 06 months RI and fine of Rs. 500/-, in default of payment of fine 02 months Under Section 452 of IPC 03 year RI and fine of Rs. 1000/-, in default of payment of fine 06 months RI Under Section 302/149 of IPC Life imprisonment and fine of Rs. 1000/- in default of payment of fine 01 year RI 4. On 26.11.2004 at about 20:00-20:30 hours, the deceased Ramu alias Ramkumar was murdered, and four other persons were injured by the accused persons with an axe, rod, iron pipe, etc. The FIR Ex.P/8 was registered against the 11 accused persons, including the present appellants, at the time of filing of the 4 charge-sheet 05 accused persons, namely Mohan, Ramkushal, Daraslal, Narad Suryavanshi and Ganesh, were arrested, and a charge-sheet was filed against them. At that time, the other co- accused persons, namely Sharad, Chota alias Ram Dayal, Guddu alias Shiv Dayal, Sita Bai, Devki Bail and Sarita Bai were absconding, and a charge-sheet was filed against them showing them as absconding. During the trial, the accused Guddu alias Shiv Dayal was arrested on 04.08.2005, and a trial against him was also carried out. After the conclusion of the trial, the learned trial Court has acquitted all the accused persons of the alleged offences vide its judgment dated 10.08.2006. 5. The judgment of acquittal dated 10.08.2006, passed by the learned First Additional Sessions Judge, Bilaspur, in Sessions Case No. 151/2005, was challenged by one of the injured, namely Badri Prasad Garhewal PW-7/PW-3, before the High Court by filing Criminal Revision No. 618/2006. 6. During the pendency of the Criminal Revision No. 618/2006, the other absconding accused persons, namely Sharad, Chota alias Ram Dayal, Smt. Sita Bai, Smt. Devki Bai and Smt. Sarita Bai were arrested on 13.06.2007 and 12.07.2007, and they were also put to trial before the learned trial Court. After the conclusion of the trial, on 18.06.2008, the learned trial Court passed its judgment with respect to these 05 accused persons, and they have been convicted and sentenced in the following manner: 5 Sharad and Chota alias Ram Dayal Conviction Sentence Under Section 147 of IPC 01 year RI Under Section 148 of IPC 02 year RI Under Section 452 of IPC 03 year RI and fine of Rs. 200/- in default of payment of fine 01 month additional imprisonment. Under Section 302/149 of IPC Life imprisonment and fine of Rs. 500/- in default of payment of fine 02 month additional imprisonment. Smt. Sita Bai and Smt. Devki Bai Conviction Sentence Under Section 147 of IPC They have been sentenced for the period already undergone by them and fine of Rs. 200/- only for the offence under Section 452 of IPC in default of payment of fine additional 01 month SI. Under Section 148 of IPC Under Section 452 of IPC Sarita Bai Conviction Sentence Under Section 147 of IPC SI for 1-1 year for all the offences with fine of Rs. 200/- in default of payment of fine additional SI for 01 month. Under Section 148 of IPC Under Section 323 of IPC Under Section 452 of IPC 7. Against the judgment of conviction and sentence dated 18.06.2008, accused Smt. Sarita Bai preferred Criminal Appeal No. 697/2008, and the two other accused persons Sharad and Chota alias Ram Dayal, preferred Criminal Appeal No. 713/2008, 6 before this Court, challenging their conviction and sentence awarded by the learned trial Court. 8. The coordinate bench of this Court decided the Criminal Revision No. 618/2006, filed by the injured Badri Prasad Garhewal, the Criminal Appeals No. 697/2008, filed by the accused Smt. Sarita Bai and Criminal Appeal No. 713/2008, filed by accused Sharad and Chota alias Ram Dayal, on 18.01.2016. The Criminal Appeal No. 697/2008 was partly allowed, while maintaining the conviction of the appellant, Smt. Sarita Bai, for the offence under Section 148, 452 and 323 of IPC, her sentence is reduced for the period already undergone by her. 9. The criminal appeal No. 713/2008, filed by the accused persons Sharad and Chota alias Ram Dayal, is dismissed, and their conviction and sentence for the offence under Sections 147, 148, 452 and 302/149 of IPC are maintained. On the same day, by a separate judgment, the Criminal Revision No. 618/2006, filed by injured Bardi Prasad Garhewal, was allowed, and the matter was remitted back to the learned trial Court to re-hear both the parties and to pass the judgment afresh. 10. The judgment of conviction and sentence was passed against the accused persons. Sharad and Chota alias Ram Dayal have not been challenged by them in any higher forum, and their conviction and sentence attains its finality, and they have undergone the entire sentence awarded to them by the learned trial Court. learned counsel appearing for the appellants has also 7 not disputed the fact that these two accused persons have undergone the entire sentence awarded to them. 11. When the matter was remitted to the learned trial Court pursuant to the order dated 18.01.2016 passed in Criminal Revision No. 618/2006, only one accused, Guddu alias Shiv Dayal, was arrested on 28.02.2016, and he was put to trial before the learned trial Court. After the conclusion of the trial, the judgment was passed by the learned trial Court on 28.01.2017, and he was convicted for the offence under Section 147, 148, 323/149, 452 and 302/149 of IPC and sentenced as mentioned in the earlier part of this judgment. Against the said conviction and sentence, he filed Criminal Appeal No. 330/2017. 12. Subsequent to the judgment passed by the learned trial Court on 28.01.2017, another accused, Ganesh, was arrested on 04.09.2018, and he was also put to trial, and he too has been convicted by the learned trial Court vide judgment dated 04.02.2019 for the offence under Sections 147, 148, 452, 302/149, 323/149 (on three counts). The accused Ganesh has also preferred Criminal Appeal No. 290/2019, but during the pendency of the Criminal appeal he died on 26.09.2020 and therefore, his appeal is declared as abated by a separate order passed by this Court today itself. 13. The co-accused Narad Suryavanshi was also arrested on 13.12.2021, and he too was put to trial before the learned trial Court. vide judgment dated 23.01.2023, the accused Narad 8 Suryavanshi has also been convicted for the offence under Sections 147, 148, 452, 302/149 and 323/149 (on three counts) and sentenced as mentioned in the earlier part of this judgment. 14. Thus, at present, two criminal appeals bearing Criminal Appeal No. 330/2017 (Guddu alias Shiv Dayal vs. State of Chhattisgarh) and Criminal Appeal No. 282/2023 (Narad Suryavanshi vs. State of Chhattisgarh) are pending for its consideration, which is being decided together by this judgment. 15. Brief facts of the case are that on 25.11.2004, at about 08:00- 08:30 pm, there was an altercation between the deceased Ramu alias Ram Kumar and the accused Sharad. On 26.11.2004, at about 08:00 pm, when the deceased have had his dinner along with his family members, on the issue of altercation of 25.11.2004, the accused persons Narad, Ganesh, Sharad, Mohan, Guddu, Ram Kushal, Sarita Bai, Devki Bai and Sita Bai and other persons trespassed the house of the deceased armed with axe, rod, hockey stick and iron rod and started assaulting the deceased and his other family members. By the assault made by the accused persons, the deceased Ramu alias Ram Kumar, Naina Garhewal, Badri Prasad, Vinay and Dev Kumari received injuries on their bodies. Ramu alias Ram Kumar received grievous injuries, and he died on the same day at about 10:30 pm. The merg intimation Ex.P/9 was given by Dev Kumari. At the same time, at about 08:30 pm, the injured Naina Garhewal lodged FIR Ex.P/8 against 11 accused persons, on which the FIR 9 for the offence under Sections 307, 147, 148, 149 and 323 of IPC was registered. The injured persons Naina Garhewal, Badri Prasad, Vinay and Dev Kumari, were sent for their medical examination to CIMS Hospital, Bilaspur, where Dr. B. K. Bais medically examined them and gave MLC report Ex.P/4 to Ex.P/7 respectively. Notice for inquest Ex.P/10 was given to the witnesses, and inquest of the dead body of the deceased Ex.P/11 was prepared in the presence of the witnesses. 16. The dead body of the deceased was sent for its post-mortem to CIMS Hospital, where Dr. P. Sahini conducted the post-mortem of the dead body of the deceased and gave a post-mortem report, Ex.P/19. During the post-mortem, the doctor noticed various lacerated wounds, contusions and incised wounds all over the body, including the fracture of skull bone and opined that the cause of death is due to extensive craniocerebral injury, haemorrhage and coma. The injuries are homicidal in nature, caused by combination of a sharp, heavy cutting weapon and a hard blunt weapon. The time since death is 12 to 24 hours. Blood-stained and plain soil have been seized from the spot vide seizure Ex.P/1, clothes of the deceased were seized vide seizure memo Ex.P/2. From the accused Ram Kushal one iron rod and his full shirt have been seized vide seizure memo Ex.P/3, from the accused Daraslal, one axe and his full shirt have been seized vide seizure memo Ex.P/12, from the accused Narad Suryavanshi, one scooter rod and his full shirt have been seized 10 vide seizure memo Ex.P/14. From Ganesh Suryavanshi, one Iron pipe and his full shirt have been seized vide seizure memo Ex.P/15. From the accused Mohan, one axe and a full shirt have been seized vide seizure memo Ex.P/22. The seized weapon and clothes were sent for their chemical examination to FSL, Raipur, from where the report Ex.P/26 was received. According to the FSL report, no blood was found on plain soil, the full shirt of the accused Narad and full shirt of the accused Ganesh and the rest of the articles were found to be stained with blood. 17. Statements of the witnesses were recorded, and after completion of the usual investigation charge-sheet was filed before the learned Additional Chief Judicial Magistrate, Bilaspur. The case was committed to the learned Sessions Court, from where the same has been transferred to the learned trial Court for its trial. 18. The learned trial Court has framed charges on 20.05.2005 against the accused Mohan, Ganesh Sarve, Darash Lal, Narad Gadhewal, Ramkushal, and on 11.08.2005 against Shivdayal for the offence under Sections 147, 148, 452/149, 302/149, 323/149 (on three counts) and on 06.11.2007 against the accused persons Sharad, Chhota @ Ramdayal, Sita Bai, Devki Bai and Sarita Bai for the offence under Sections 147, 148, 452, 302/149, 323/149 (on three counts). The accused persons denied the charge and claimed trial. 19. In order to prove the charge against the accused persons, the prosecution initially examined 18 witnesses. Statements of the 11 accused persons under Section 313 of the Cr.P.C. have also been recorded, in which they denied the circumstances that appear against them, pleaded innocence and have submitted that, they have been falsely implicated in the offence. 20. One defence witness Pardeshi Sarthi/DW-1 was examined by the defence on 19.07.2006. When the matter was remitted back after the judgment dated 18.01.2016, in Criminal Revision No. 618/2006 by this Court, Pardeshi Sarthi/DW-1 has been re- examined. 21. After appreciation of oral as well as documentary evidence produced by the parties, the learned trial Court passed the judgment on 10.08.2006 with respect to 06 accused persons namely; Mohan, Ramkushal, Darash Lal, Narad Suryawanshi, Ganesh and Guddu @ Shivdayal, who have been arrested at that time, and they have been acquitted by the learned trial Court. When the other accused persons were arrested and put to trial, the judgment was passed by the learned trial Court on 18.06.2008 with respect to the accused persons Sharad, Chhota @ Ramdayal, Smt. Sita Bai, Smt. Devki Bai and Smt. Sarita Bai and they have been convicted and sentenced as mentioned in the earlier part of the judgment. Against the order of acquittal dated 10.08.2006, the injured Badri Prasad filed Criminal Revision No. 618/2006, which was allowed on 18.01.2016 and the matter was remitted back to the learned trial Court for rehearing of the parties and to pass a judgment afresh. 12 Thereafter, on different occasions some of the accused persons have been arrested and judgment with respect to them have been passed on 28.01.2017, 04.02.2019 and 23.01.2023, which have been described in the earlier part of this judgment. Hence these appeals. 22. Mr. Raj Kumar Gupta, learned counsel for the respective appellants would submit that, the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses and they are inconsistent. Considering their inconsistency, earlier the learned trial Court has acquitted the present appellants, and when the matter was remitted back for rehearing of the case, they have been convicted. He would further submit that, there is no specific overt act against the present appellants, but omnibus allegations have been leveled by the complainant party. No any weapon of offence has been seized from the appellant Guddu @ Shivdayal and on the iron rod seized from accused Narad, no any human blood was found. The seizure of weapon of offence and clothes from other accused persons are also doubtful and only to show the involvement of the accused persons in the offence. He would also submit that there are material exaggeration in the evidence of PW-5/1 with that of her 161 CRPC statement. There is no allegation that the present appellants have caused any injury to the deceased. The witnesses are close relative of the deceased and there is no independent witness. The entire 13 investigation is suspicious right from very beginning and there are serious lacuna in the investigation of the case. There is reason of false implication of the accused persons in the offence, as there exists previous dispute with respect to the property and both the parties were residing in the same vicinity. The impugned judgment of conviction and sentence against the present appellants suffers from perversity and illegality and the same are liable to be set aside and the appellants are entitled for their acquittal. 23. On the other hand, Mr. Dharmesh Shrivastava, Dy. Advocate General, appearing for the State and Mr. Ajay Chandra, learned counsel appearing for the objector in Criminal Appeal No. 330/2017 vehemently oppose the submissions made by learned counsel for the appellants and submitted that, there are sufficient evidence against the appellants that they along with other accused persons have committed the offence. But for minor omissions and contradictions, their evidence are fully supported the prosecution’s case. PW-5/1 Naina Gadhewal, PW-7/3 Badri Prasad and PW-6/2 Dev Kumari are the injured eyewitnesses, who have duly supported the prosecution’s case and their presence on the spot are quite natural, as they are the family members of the deceased and they were having dinner along with the deceased in their house. In a situation like in the present case, one cannot specifically say about who has assaulted whom by what weapon and on what part of their body, however in the 14 present case, there is sufficient evidence that the present appellants have assaulted the deceased and injured witnesses along with other accused persons. At the time of incident, they trespassed the house of the deceased with common object to commit the offence, armed with weapons and therefore, they can also be held liable under the vicarious liability under the common object to commit the offence. They formed unlawful assembly and then committed the offence, and their active participation in the offence have been proved by the witnesses. The number of injuries found on the body of the deceased would also show that the assault was made by number of accused persons including the present appellants. The appellants could not be able to rebut the evidence of the witnesses, therefore, the prosecution has proved its case beyond reasonable doubt. He would also submit that the two other co-accused persons namely; Sharad and Chhota @ Ramdayal have been convicted by the learned trial Court for commission of murder of the deceased Ramu @ Ramkumar and causing injuries to the injured witnesses. Their conviction have been upheld by the coordinate Bench of this Court and they undergone the entire sentence as has been disclosed by the learned counsel appearing for the appellants. Therefore, there is no merit in the present appeals and the same are liable to be dismissed. 24. We have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection and 15 judgments passed by the learned trial Court on different occasions as well as order dated 18.01.2016, passed by coordinate Bench in Criminal Revision No. 618/2006 and the judgment dated 18.01.2016 passed by coordinate Bench in Criminal Appeal No. 697 of 2008 and Criminal Appeal No. 713 of 2008. 25. The first and foremost question for consideration would be, whether the death of the deceased Ramu @ Ramkumar is homicidal or not. 26. PW-16, Dr. Neeraj Shende treated the deceased at CIMS Hospital, Bilaspur. He stated in his evidence that on 26.11.2004, Ramkumar was admitted in the hospital and his condition was not good. He was unconscious and brain matter coming out. He was given initial treatment, however after sometime his relatives took him to another hospital against the medical advise. His bedhead ticket is exhibit P-18. The injured Ramkumar was received grievous injuries on his head. 27. The prosecution, in order to prove the homicidal death of the deceased, examined Dr. Preetam Sahni/PW-17, who conducted the postmortem of the dead body of the deceased. He stated in his evidence that on 27.11.2004, the dead body of deceased Ramu @ Ramkumar brought before him for postmortem and he noticed en number of lacerated wound, contusions and incised wounds all over the body of the deceased. He also found Hematoma over whole of the skull, fracture of skull running along 16 coronal plank from left mastoid process over vertex to midline. Commuted fracture of right parietal bone, right temporal and frontal bone. Gross laceration of meningeal and brain underneath with thick SD/H over whole of brain. He opined that all injuries are antemortem in nature. Injury No. 3 and 4 on skull caused by hard, sharp and heavy cutting weapon, commuted fracture on skull caused by force impact transmitted through the bonny skull or other hard blunt force. Injury No.10 caused by sharp cutting object, injuries No. 7, 8, 9 and 11 caused by hard and blunt force impact. He further opined that cause of death is extensive cranio- cerebral injury hemorrhage and coma. Injuries are homicidal in nature caused by a combination of sharp, heavy cutting weapon and hard blunt weapon and his postmortem report is exhibit P-19. He further stated that he examined two axes and gave his query report (exhibit P-20) opined that the injuries found on the body of the deceased could have been caused by the said axes. In cross- examination, the defence could not be able to extract any discrepancy, so that the evidence of the doctor could be disbelieved. He being the independent witness proved the postmortem report and the injuries found on the body of the deceased, by which he died. 28. From the evidence of the doctor as well as postmortem report (exhibit P-19), the prosecution has proved that the death of the deceased Ramu @ Ramkumar was homicidal. 17 29. To prove the involvement of the present appellants in the offence in question, the prosecution has examined the injured eyewitnesses PW-5/1 Naina Gadhewal, PW-6/2 Dev Kumari and PW-7/3 Badri Prasad. 30. On 11.08.2005, Naina Gadhewal, who is the sister of the deceased, has been examined as PW-5. She stated in her evidence that, on the day of Ekadashi festival, when her brother burning crackers in his house, the accused persons came out from their house, started abusing them. When her brother and other family members asked them not to to abuse, because it is the day of Ekadashi festival, they walked away to their house. After four days i.e. on 26.11.2004, at about 8 PM, when he was taking her dinner along with other family members, her sister-in- law rushed to her house by saying that, the accused persons are assaulting the deceased Ramkumar. The accused persons entered into the house and took the deceased out of his house. The accused Mohan, Ramdayal, Sharad were having axe and assaulted Ramkumar. Shiv Dayal, Darash, Ramkushal, Ganesh and Narad were having iron pipe and rod and they assaulted the deceased Ramu @ Ramkumar on all over his body. When she along with other family members intervened, they too have been assaulted by Sita Bai, Sarita and Devki. Sarita was having iron plate, by which she assaulted her and Devki assaulted her by danda. Sita assaulted her by hockey stick. The accused persons threatened them that, if they disclosed the incident to police, all 18 the family members would be killed. Her father and other family members took her brother Ramu @ Ramkumar to the hospital and she and her brother Shiv Kumar had gone to Police Station to lodge report, where FIR (exhibit P-8) is lodged by her. She too was sent for her medical examination to the hospital. In cross- examination, she remained firm in the assault made by the accused persons and lodging of the report by her. She specifically stated that the accused persons Ramdayal, Sharad and Mohan were assaulted the deceased by axe and other accused persons were also assaulted the deceased by the weapons, which they were having at that time. Her brother has received multiple injuries all over his body and the persons of the vicinity were witnessing the incident. She also stated that after lodging of the report, she was sent for her medical examination. Nothing substantive could be extracted from her evidence, which makes her evidence doubtful. 31. On 01.12.2007, Naina Gadhewal was again examined after the arrest of other accused persons Sharad, Chhota @ Ramdayal, Sita Bai, Devki Bai and Sarita Bai, as PW-1. She reiterated that, on the date of incident her sister in law shouted for help, then she and her parents rush to the house of sister-in-law and saw that the accused persons including Mohan, Sharad, Ramkushal, Ganesh, Narad, Devki, Sarita, Sita and others entered into her house and abusing her brother Ramu by filthy language and they dragged him outside of the house and Sharad, Ramdayal, Mohan 19 and others assaulted her brother by axe, Shivdayal assaulted by rod, Ramkushal and Ganesh assaulted by pipe and Narad and Darash assaulted by iron plate. Devki, Sarita and Sita assaulted her by danda and iron plate. By the assault made by the accused persons, her brother Ramu @ Ramkumar fell down and Ramdayal threatened her, that if she lodged the report, he will also kill her. Ramu received grievous injuries on all over the body. He was taken to CIMS Hospital, where he died during treatment. She lodged a report (exhibit P-8). In her cross-examination, she again remained firm in saying that the accused persons assaulted the deceased by axe, rod, pipe and her family members were also assaulted by the accused persons, when they intervened in the incident. The defence tried to brought omission and contradiction in the evidence of this witness, but such omission or contradiction are trivial in nature and does not affect the credibility of this witness. She being the injured witness and sister of the deceased, clearly deposed about the incident and the persons involved in the assault made by them to the deceased and injured witnesses. 32. It is necessary here to reproduce the contents of the FIR (exhibit P-8) lodged by this witness to show that there is no material discrepancy in her evidence, which reads as under:- “eS tjgkHkkBk tkfr;k rkykc ds ikl vius ek¡ cki ds lkFk jgrh gwa¡ rFkk d{kk 6 oha rd i<+h gw¡ fd fnukad 22-11-2004 dks jkf= esa QVkdk QksM+us ij esjs iMkslh 'kjn ds lkFk esjs HkkbZ jkew firk cnzhizlkn ds lkFk >xM+k ekjihV gqvk Fkk fd vkt fnukad 22-11-2004 dks djhc 8 cts jkf= ge yksx ifjokj lfgr [kkuk [kkus cSBs Fks] mlh fnu ds fookn dks ysdj ’kjn] 20 ukjn] nj’k eksgu] x.ks’k] xqMMw] jkedq’ky] jken;ky] lfjrk] nsodh lhrkckbZ cxSjg jkM] gkdh fLVd] pn~nj iV~Vh cxSjg ysdj gekjs ?kj vanj ?kql x;s jken;ky mQZ NksVk vius gkFk esa Vafx;k j[kk] tks ;g dgrs eknjpksn rqe yksx ml fnu gekjs lkFk ekjihV fd;s Fks] vkt iwjs ifjokj dks tku ls [kRe dj nsxsa] ekjihV djuk pkyw dj fn;s] jken;ky esjs cM+s HkkbZ jkew dks Vkafx;k ls ekjk tks flj esa yxk fd ’kjn] nj’k ukjn cxSjg ykBh fLVd oxSjg ls ekjihV djus yxs] fd lfjrk] nsodh ,oa lhrk ckbZ eq>s idM+ dj [khap fy;k rFkk yksgs dh iV~Vh ls esjs flj ds ihNs fgLls esa ekjs] tks esjs flj esa ihNs rjQ yxh] os yksx lHkh ,d jk; gksdj Vkafx;k] ykBh fLVd oxSjg] ge yksxks dks tku ls ekj Mkyus dh fu;r ls ekjihV fd;s] ftles esjs cMs+ HkkbZ jkew mQZ jkedqekj dks dkQh pkasVs vkbZ ekjihV djus NksVw lq;Z ,oa esjs ifjokj mifLFkr rFkk vklikl ds vU; yksx ns[ks lqus gSA esjs HkkbZ jkew ds flj gkFk iSj oxSjg es dkQh pksV vkbZ Fkh] ftlls og csgks’k gks x;k gS] fd eSa vius HkkbZ f’ko us lkFk Fkkuk fjiksVZ djkus vkbZ gSw] esjs c;ku vuqlkj lgh fy[kh xbZ gS] tks tkap fd;k tkosA” 33. The other injured witnesses is PW-6 Dev Kumari has been examined on 11.08.2005. She is the wife of the deceased. She stated in her evidence that on 22.11.2004 there was a quarrel took place between them and the accused persons, when the deceased was burning crackers in his house. On 26.11.2004, at about 8 PM, her husband Ramu @ Ramkumar came back from his work, at the same time, the accused persons suddenly entered into her house and started assaulting her husband and took him out of the house. She called her in-laws and other family members and all of them tried to intervene. By the assault made by the accused persons, she, her sister-in-law and in-laws have also received injuries. Mohan, Ramdayal and Sharad assaulted her husband by axe, Shivdayal and Darash assaulted by rod and Ganesh, Narad and Ramkushal assaulted by pipe. The accused Devki, Sita and Sarita were having danda and iron plate and they assaulted by said weapons. After assaulting them, the accused persons fled away. Her husband was being taken to police 21 station, from where he was taken to hospital and during treatment, he died. She too has been injured and lodged merg intimation (exhibit P-9). In cross-examination, she also remained firm with respect to involvement of the accused persons in the offence in question. Though the defence tried to extract some discrepancy in her 161 CRPC statement, but from perusal of the 161 CRPC statement of this witness (exhibit D-3), it transpires that she made allegation against the accused persons about the incident. Although it is not in the same manner, but substantively she alleged about the entire incident. She is also an injured witness, wife of the deceased and her presence is natural. 34. On 03.03.2008, Dev Kumari was again examined after the arrest of other accused persons Sharad, Chhota @ Ramdayal, Sita Bai, Devki Bai and Sarita Bai, as PW-2. She stated in her evidence that, on the date of incident, on the issue of burning crackers, quarrel raised by the accused persons and after sometime, when they convinced the accused persons, they walked away. On the date of incident, i.e. on 26.11.2004, at about 8 PM, when her husband came back from his work, the accused persons, Ramdayal, Shivdayal, Darash, Sharad, Narad, Mohan, Ganesh, Ramkishan, Sita, Sarita and Devki entered into her house and started assaulted her husband. They dragged him outside of the house and at that time, she shouted for help. Her in-laws and sister-in-law came out from their house and they tried to intervene in the incident. Mohan, Ramdayal and Sharad assaulted her 22 husband by axe, Shivdayal, Darash assaulted by rod, Ganesh, Narad and Ramkushal assaulted by pipe. Devki, Sita and Sarita having pipe and iron plate, by which they assaulted her husband. Her husband has received injuries all over his body. They too have been assaulted by the accused persons and then her sister- in-law Naina Bai and in-laws have also received injuries. After assaulting them, the accused persons went away towards lane. They had gone to Police Station Civil Lines, from where the injured persons were sent to the hospital and at CIMS Hospital, he died during treatment. She also received injuries on her body and medically examined by the doctor. She lodged the merg intimation (exhibit P-9). In her detailed cross-examination, she too remained firm in saying that, the accused persons entered into their house and assaulted the deceased by axe, rod and pipe and they too have been assaulted by them. She is the wife of the deceased and reiterated the incident, which occurred on the date of incident and the involvement of the accused persons, who assaulted her husband. Her 161 CRPC statements (exhibit D-3) is also bears with the names of the accused persons and the manner, in which the incident occurred. 35. The another witness PW-7 Badri Prasad is also the injured eyewitness, who is the father of deceased and examined on 12.08.2005. He stated in his evidence that, on 26.11.2004, at about 8 PM, he heard the noise of quarrel coming from the house of his daughter-in-law Dev Kumari. When he along with his other 23 family members went to the house of his son Ramu, they saw that all the accused persons inside the house of Ramu and they abusing them. They dragged Ramu outside of his house. The accused Sarita was holding iron plate, Sita holding hockey stick, Devki Bai holding danda, Mohan, Ramdayal @ Chhota and Sharad were having axes, the other accused persons were having iron rod and pipe. The accused Sarita, Sita and Devki Bai assaulted his daughter Nainvati and they exhorted the other accused persons to assault them and then, they started assaulting his son Ramu. By the assault made by the accused persons, his son Ramu, Naina, Bedin Bai @ Devki Bai and he himself received injuries. When they shouted for help, the accused persons fled away. His son Ramu was being taken to police station, from where he was sent to hospital, where he died during treatment. Report has been lodged by Amravati and Dev Kumari in the hospital. In his cross-examination, he also stand in his allegation that the accused persons have assaulted the deceased as well as the witnesses by weapons, which they were having at the time of incident. But for minor omissions or contradictions, the defence could not extract any material from this witness also, so that the credibility of the evidence of this witness could be doubted. He being the father of the deceased and injured eyewitness, his evidence could not be disbelieved by saying that he is the interested witness. 24 36. On 03.03.2008, Badri Prasad was again examined after the arrest of other accused persons Sharad, Chhota @ Ramdayal, Sita Bai, Devki Bai and Sarita Bai, as PW-3. He is the father of the deceased and injured witness. He stated in his evidence that on 26.11.2004, at about 8 PM, when he was in his house, his daughter-in-law started shouting that Darash and Ramkushal quarreling with her husband inside the house. When they rush to her house, they saw that Mohan, Ramkushal, Sharad, Dashrath, Narad, Shivdayal, Ramdayal @ Chhota and three ladies Sarita, Sita and Devki by abusing his son Ramu and they dragged him outside of his house. Sarita was having iron plate, Sita was having hockey stick and Devki was having danda and dragged Nainawati and assaulted her by their weapon. They exhorted the other accused persons to assault and then they started assaulting his son Ramu. Mohan, Ramdayal @ Chhota and Sharad have assaulted him by axe, Narad, Shivdayal, Darash, Ganesh, Ramkushal assaulted them by iron rod and pipe. His son Ramu received multiple injuries all over his body and he went in unconsciousness. They too have been assaulted by the accused persons. They have taken the injured person to Civil Line Police Station, from where they were sent to the hospital. During treatment, his son Ramu has died. In his cross- examination also, the defence tried to extract the material to disbelieve the evidence of this witness, but they could not succeed to extract any substantive material, which makes his 25 evidence doubtful. He is the father of the deceased and his presence on the spot cannot be doubted, particularly when he is also injured in the incident. 37. PW-1, Shyam Kumar Suryavanshi is the another eyewitness, who is the brother of the deceased. He initially examined on 12.07.2005 at the time when the accused persons Mohan, Ramkushal, Darash Lal, Narad Suryavanshi, Ganesh and Guddu @ Shivdayal were arrested and put to trial. When the other accused persons Sharad, Chhota @ Shyamdayal, Sita Bai, Devki Bai and Sarita Bai were arrested, Shyam Kumar Suryavanshi again examined as PW-4 on 04.03.2008. In both these occasions, he deposed that on 26.11.2004, when he came back from his work at about 8 PM, he saw that his sister-in-law Dev Kumari shouting for help, and when he went there, he saw that his brother was lying unconscious having multiple injuries on all over his body and his sister-in-law informed him that, Sharad, Ramdayal and Mohan assaulted him by axe and Shivdayal, Darash, Narad, Ramkushal, Ganesh assaulted him by pipe, rod and hockey. He also named three ladies/accused persons Sita, Sarita and Devki. When he saw backside, the accused persons Ramdayal, Shivdayal, Narad, Sharad, Mohan, Ramkushal, Ganesh, Darash, Devki, Sita and Sarita were standing near the pole. They were exhorting to kill them the other members by hurling abuses. He took the injured persons to police station and after lodging of the report, they took the deceased Ramkumar to 26 the Hospital, but on the way he died. Though, he did not state about witnessing the actual assault made by the accused persons, but came on the spot immediately after the incident and saw the accused persons together armed with weapons, standing near the pole and hurling abuses that, they will kill the other members. From his 161 CRPC statement (exhibit D-1), his evidence is duly corroborated that when he reached on the spot, he saw his brother lying in injured condition and the accused persons were standing together near electric pole having armed with weapons and hurling threats. The defence in their detailed cross-examination could not be able to bring any material to disbelieve the evidence of this witness except for the minor variations in his evidence. His evidence is duly supported to the evidence of other injured witnesses. 38. PW-5, Dinesh Kumar who is another brother of the deceased, has been examined on 04.03.2008 after arrest of the accused persons; Sharad, Chhota @ Ramdayal, Sita Bai, Devki Bai and Sarita Bai. At the time, when the other accused persons were arrested and their trial was concluded vide judgment dated 10.08.2006, this witness PW-5/Dinesh Kumar was not examined. He stated in his evidence that, on 26.11.2004, at about 8:15 PM, his sister-in-law shouted for help and when he along with his parents, brother and sisters had gone to the house of the deceased, they saw that his brother was being dragged by the accused persons outside of his house and the accused Darash, 27 Narad, Ramkushal assaulted his brother by pipe, crowbar and lathi. Sharad, Mohan and Ramdayal assaulted him by axe. Sita, Sarita and Devki were also present there having hockey stick and lathi in their hands and they assaulted his sister Naina @ Nainwati. He and his parents intervened in the quarrel and his brother lying on the ground after received injuries. His elder brother took him to hospital, but he died. In cross-examination, he stuck in saying that the accused persons have assaulted his brother by axe rod and pipe. Though this witness has been cross- examined by the defence with respect to certain discrepancies with that of his police statement (exhibit D-5), but from perusal of his police statement, it transpires that he made allegation that the accused persons have assaulted the deceased and injured witnesses. Though, the details of the manner in which the accused persons have assaulted the deceased is not in the same manner, but the substance is that, the accused persons have accused the deceased and injured witnesses, by which they received injuries. 39. From the accused Narad, one iron rod and shirt have been seized vide exhibit P-14. From the accused Ramkushal, iron rod has been seized vide seizure memo (exhibit P-3). From accused Darash, an axe has been seized vide seizure memo (exhibit P- 12). From the accused Ganesh, iron pipe and T-shirt have been seized vide seizure memo (exhibit P-15) and from accused Mohan, axe has been seized vide seizure memo (exhibit P-22). 28 Though the seizure witnesses have not supported the prosecution’s case, but they have admitted their signature in the seizure memo (exhibit P-14). In the FSL report (exhibit P-26), blood has been found on the rod seized from the accused Narad. 40. PW-18, D.P. Thakur is the investigating officer, who duly supported the investigation, which he carried out with respect to the alleged offence and he has proved the documents which he prepared during the investigation. 41. In the case, the witnesses are the family members of the deceased, who are also injured in the incident. The defence has raised a plea that, they being the interested witnesses, cannot be relied upon, as they are the close relatives of the deceased. The Hon'ble Supreme Court in the matter of “Laltu Ghosh v. State of West Bengal” 2019 (15) SCC 344, has held that:- “12. As regards the contention that the eyewitnesses are close relatives of the deceased, it is by now well- settled that a related witness cannot be said to be an "interested" witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between "interested" and "related" witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki, Amit v. State of U.P.3 and Gangabhavani v. Rayapati Venkat Reddy). 13. Recently, this difference was reiterated in Ganapathi v. State of T.N.5, in the following terms, by 29 referring to the three-Judge Bench decision in State of Rajasthan v. Kalki²: (Ganapathi case, SCC p. 555, para 14) "14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested".…" 14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements a with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, wherein this Court observed: (AIR p. 366. para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually b means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. 15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. State (UT of Pondicherry): (SCC p. 213, para 23) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and d accepting the evidence given 30 by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. 16. In the instant matter, as already discussed above, we find the testimony of the eyewitnesses to be consistent and reliable, and therefore reject the contention of the appellants that the testimony of the eyewitnesses must be disbelieved because they are close relatives of the deceased and hence interested.” 42. In the matter of “State of Uttar Pradesh v. Naresh and others” 2011 (4) SCC 324, the Hon'ble Supreme Court has considered the normal discrepancies in the evidence of witnesses and the minor contradictions or inconsistencies are bound to occur due to normal errors of observations, error of memory due to lapse of time and their mental disposition, such as shock and horror at the time of occurrence. In para 27 to 30 of its judgment, it has been held that:- 27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement # is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not flike or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there 31 are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.3) 28. The High Court disbelieved both the witnesses, Subedar (PW 1) and Balak Ram (PW 5) as being closely related to the deceased and for not examining any independent witnesses. In a case like this, it may be difficult the prosecution to procure an independent witness, wherein the accused had killed one person at the spot and seriously injured the other. The independent witness may not muster the courage to come forward and depose against such accused. 29. A mere relationship cannot be a factor to affect credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay b foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh, Vishnu v. State of Rajasthan and Balraje) 30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor d contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.” 32 43. It is further held in para 32 of the judgment of “Naresh” (supra), it has been held that:- “32. It is a settled legal proposition that an FIR is not an encyclopaedia the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after b examining the entire factual scenario whether a person has participated in the crime or has falsely been implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from this. Some people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. (Vide Rotash v. State of Rajasthan and Ranjit Singh v. State of M.P.10).” 44. Further, considering the all circumstances, it cannot be said that the appellants had not participated to prosecute a common object. Their presence along with the weapon of offence have been duly proved by the witnesses and their active participation have also been described by them. The witnesses being the injured witnesses cannot be disbelieved. There is enough evidence on record to establish that the appellants were present, armed with weapons and their identification is not in issue. 45. In the case of “Amerika Rai and Others v. State of Bihar” 2011 (4) SCC 677, the Hon'ble Supreme Court has held in para 13 of its judgment that:- “13. The law of vicarious liability under Section 149 IPC is crystal clear that even the presence in the unlawful assembly, but with an active mind, to achieve the 33 common object makes such a person vicariously liable for the e acts of the unlawful assembly. In that light, when the evidence is examined, it is obvious that Amerika Rai (A-1) who was the elder in the family and father of Darbesh Rai (A-2), Mithilesh Rai (A-4) and Chulhan Rai (A-3), instead of acting in a responsible manner and preventing any unpleasant incident, exhorted the accused persons to bring the gun. The guns are normally not brought for making a show. The exhortation to bring the gun definitely! speaks about the guilty mind of Amerika Rai (A-1), so also the use of guns by Mithilesh Rai (A-4), Sanjay Rai (A-5) and Sipahi Rai (A-6) is very clear that they also had guilty mind. Mithilesh Rai (A-4) went to the extent of injuring Dineshwar Rai (PW 7). Therefore, even their presence and part played by them was obviously pointing towards the common object of committing murder of Shankar Rai. Unfortunately, Shankar Rai became the 9 victim of the circumstances. The accused persons had nothing to do with Shankar Rai. Their main ire was directed at Ram Babu (PW 6). But, perhaps because Shankar Rai took side of Ram Babu (PW 6), he became the victim of circumstances and had to pay with his own life. Therefore, at least insofar as these persons are concerned, their presence and their active participation would make them guilty under Section 149 IPC, though the author of the injury to Shankar Rai was Chulhan Rai (A-3) whose appeal has already been dismissed.” 46. The Hon'ble Supreme Court in the matter of Lakshman Singh Vs. State of Bihar, reported in 2021 (9) SCC 199, has observed in Para 12 to 17 of its judgment that:- "12. Now so far as the conviction of the accused under Section 147 IPC is concerned, the presence of all the accused persons at the time of incident and their active participation has been established and proved by the prosecution by examining the aforesaid witnesses who are the independent witnesses and injured witnesses also. The accused persons belong to another village. They formed an unlawful assembly in prosecution of common object, i.e., “to snatch the voters list and to cast bogus voting”. It has been established and proved that they used the force and, in the 34 incident, PW5, PW8, PW10 & PW12 sustained injuries. All the accused persons-appellants were having lathis. Section 147 IPC is a punishable section for “rioting”. 13.The offence of “rioting” is defined in Section 146 IPC, whichreads as under: "146. Rioting – Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.” 14. On a fair reading of the definition of “rioting” as per Section 146 IPC, for the offence of “rioting”, there has to be, (i) an unlawful assembly of 5 or more persons as defined in Section 141 IPC, i.e., an assembly of 5 or more persons and such assembly was unlawful; (ii) the unlawful assembly must use force or violence. Force is defined in Section 349 IPC; and (iii) the force or violence used by an unlawful assembly or by any member thereof must be in prosecution of the common object of such assembly in which case every member of such assembly is guilty of the offence of rioting. 15. “Force” is defined under Section 349 IPC. As per Section 349 IPC, “force” means “A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other…….” 16. As observed hereinabove, all the accused persons were the members of the unlawful assembly and the common intention was “to snatch the voters slips and to cast bogus voting”. They used force and violence also, as observed hereinabove. It is the case on behalf of the accused that there is no specific role attributed to them for the offence of rioting under Section 147 IPC. However, as observed hereinabove and as held by this Court in the case of Abdul Sayeed (supra), where there are large number of assailants, it can be difficult for witnesses to identify each assailant and attribute specific role to him. In the present case, the incident too concluded within few minutes and therefore it is natural that exact version of incident revealing every minute detail, i.e., meticulous exactitude of individual acts cannot be given by eyewitnesses. Even otherwise, as held by this Court in the case of Mahadev Sharma (supra), every member of the unlawful assembly is guilty of the offence of rioting even though he may not have himself 35 used force or violence. In paragraph 7, it is observed and held as under: “7. Section 146 then defines the offence of rioting. This offence is said to be committed when the unlawful assembly or any member thereof in prosecution of the common object of such assembly uses force or violence. It may be noticed here that every member of the unlawful assembly is guilty of the offence of rioting even though he may not have himself used force or violence. There is thus vicarious responsibility when force or violence is used in prosecution of the common object of the unlawful assembly.” 17. Thus, once the unlawful assembly is established in prosecution of the common object, i.e., in the present case, “to snatch the voters list and to cast bogus voting”, each member of the unlawful assembly is guilty of the offence of rioting. The use of the force, even though it be the slightest possible character by any one member of the assembly, once established as unlawful constitutes rioting. It is not necessary that force or violence must be by all but the liability accrues to all the members of the unlawful assembly. As rightly submitted by the learned counsel appearing on behalf of the State, some may encourage by words, others by signs while others may actually cause hurt and yet all the members of the unlawful assembly would be equally guilty of rioting. In the present case, all the accused herein are found to be the members of the unlawful assembly in prosecution of the common object, i.e., “to snatch the voters list and to cast bogus voting” and PW5, PW8, PW10 & PW12 sustained injuries caused by members of the unlawful assembly, the appellants- accused are rightly convicted under Section 147 IPC for the offence of rioting. 47. The Hon'ble Supreme Court has also observed the scope of Section 149 of I.P.C. in the matter of State of M.P. Vs. Kallu, 2020 (16) SCC 375 in Para 8 and 9, the Hon'ble Supreme Court has held as under:- "8. Since the instant case depends upon the extent and application of the principle of vicarious liability under Section 149 of the IPC, at the outset, we may consider the leading case of Masalti vs. State of U.P. The submission of 36 the appellants therein was that mere presence in an assembly would not make a person member of an unlawful assembly unless it was shown that he had done something or omitted to do something which would make him a member of unlawful assembly. Reliance was placed by said appellants on the earlier judgment of this Court in Baladin vs. State of Uttar Pradesh. The issue was dealt with as under:- “17… … The observation of which Mr. Sawhney relies, prima facie, does seem to support his contention; but, with respect, we ought to add that the said observation cannot be read as laying down a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of such an unlawful assembly. In appreciating the effect of the relevant observation on which Mr. Sawhney has built his argument, we must bear in mind the facts which were found in that case. It appears that in the case of Baladin2, the members of the family of the appellants and other residents of the village had assembled together; some of them shared the common object of the unlawful assembly, while others were merely passive witnesses. Dealing with such an assembly, this Court observed that the presence of a person in an assembly of that kind would not necessarily show that he was a member of an un- lawful assembly. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly ,and he entertained along with the other members of the assembly the common object as defined by Section 141, I.P.C. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section. 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section.141. While determining this question, it becomes relevant to consider whether the assembly 37 consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin assume significance; otherwise, in law, 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, Section.149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence. is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section.149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of Baladin must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law such as Mr. Sawhney suggests.” 9. After considering the cases on the point including Masalti, the order of acquittal passed by the High Court was set aside by this Court in State of Maharashtra vs. Ramlal Devappa Rathod. Relevant paragraphs of the decision are:- “22. We may at this stage consider the law of vicarious liability as stipulated in Section 149 IPC. The key expressions in Section 149 IPC are: (a) if an offence is committed by any member of an unlawful assembly; (b) in prosecution of common object of that assembly; (c) which the members of that assembly knew to be likely to be committed in prosecution of that object; (d) every person who is a member of the same assembly is guilty of the offence. This section makes both the categories of persons, those who committed the offence as also those who were members of the same assembly liable for the offences 38 under Section 149 IPC, if other requirements of the section are satisfied. That is to say, if an offence is committed by any person of an unlawful assembly, which the members of that assembly knew to be likely to be committed, every member of that assembly is guilty of the offence. The law is clear that membership of unlawful assembly is sufficient to hold such members vicariously liable. 23. It would be useful to refer to certain decisions of this Court. In State of U.P. v. Kishanpal it was observed: (SCC p. 93, para 47) “47. … It is well settled that once a membership of an unlawful assembly is established it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. In other words, mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed." Further, in Amerika Rai v. State of Bihar5 it was observed as under: (SCC p. 682, para 13) “13. The law of vicarious liability under Section 149 IPC is crystal clear that even the presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.” 24. The liability of those members of the unlawful assembly who actually committed the offence would depend upon the nature and acceptability of the evidence on record. The difficulty may however arise, while considering the liability and extent of culpability of those who may not have actually committed the offence but were members of that assembly. What binds them and makes them vicariously liable is the common object in prosecution of which the offence was committed by other members of the unlawful assembly. Existence of common object can be ascertained from the attending facts and circumstances. For example, if more than five persons storm into the house of the victim where only few of them are armed while the others are not and the armed persons open an assault, even unarmed persons are vicariously liable for the acts committed by those armed persons. In such a situation it may not be difficult to 39 ascertain the existence of common object as all the persons had stormed into the house of the victim and it could be assessed with certainty that all were guided by the common object, making every one of them liable. Thus when the persons forming the assembly are shown to be having same interest in pursuance of which some of them come armed, while others may not be so armed, such unarmed persons if they share the same common object, are liable for the acts committed by the armed persons.” 48. Further, the co-accused Sharad and Chhota @ Ramdayal have been convicted by the learned trial Court vide its judgment dated 18.06.2008 and their Criminal Appeal No. 713/2008 has been dismissed by coordinate bench of this Court vide judgment dated 18.01.2016. As per the submissions made by learned counsel for the parties, they have already undergone the entire sentence, and their judgment of conviction and sentence attains finality, and thus, the incident, homicidal death of the deceased Ramu @ Ramkumar and involvement of the accused persons is established by the prosecution. The injured eyewitnesses duly supported the prosecution’s case and after adverting the entire facts and circumstances of the case as well as the evidence available on record, the learned trial Court convicted the appellants for the alleged offences, in which we do not find any perversity or illegality to interfere with the same. 49. Accordingly, the appeal filed by the appellants Guddu @ Shivdayal (CRA No. 330/2017) and Narad Suryavanshi (CRA No. 282/2023) are hereby dismissed. 40 50. The appellants are reported to be on bail. They shall be taken into custody to serve their remaining sentence, as awarded by the learned trial Court 51. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Ved/Alok