Mulua and others vs State of Madhya Pradesh

Conviction,Sentence

Under Section 148 of IPC.

Under Section 302/149 IPC.","R.I. for 2 years

Imprisonment for life and fine of Rs.2000/-

near neck on the upper side size 11x3x3 cm. There was wound on the face and there was injury on the jaw size 6x2x1.5 cm. There was also,

lacerated wound . Injury no.5 was a wound on the arms, which size was 5x2,5x1.5 cm. The injury no.6 was a scratch wound of the size 8x.5 cm",

on the left side of the abdomen. Another injury was found by him on the left side of the chest, the size of the same was 7x.5 cm.",

PW-9 Mohan Singh Patel was the Police Station Incharge. He stated that he had registered the Marg Intimation Ex.P-2 and thereafter, the FIR",

was registered vide Ex.P-1. He has sent the dead body for the postmortem. He proved the other seizure. PW-10 Veer Singh Yadav is the seizure,

witness as well as memo of arrest. He did not support the prosecution case. However, he admitted his signature on the exhibits. Another witness",

PW-11 Harish Chand is a witness of the seizure memo of axe from accused Harish Chand. He has supported the seizure of axe from Harish,

Chand and Farsa from Mulua. PW-12 Ram Prasad Ahirwar is Patwari of the village and he proved n about the spot map Ex. P-28. PW-13,

Suratpal Singh is the constable posted in the police station and he proved that he had sent the dead body for the postmortem. PW-15 Shiv Singh,

Yadav is the Investigating Officer who was posted later and carried out the investigation after 14-12-2004. He stated about the discovery,

statement of the witnesses and seizure of axe from accused Bhajju Ex.P-6 and also axe from accused Kamlu and axe from Chainu. He further,

proved the seized of the axe from accused Raju. He also proved the seizure from accused Harish Chand about the axe vide Ex.P-23. In para-8 of,

his deposition he stated that on the discovery statement of appellant Mulua, one farsa was seized vide Ex.P-25. Seized articles, which were",

marked as ''C, D, E, F, and H were axe and Farsa seized from Mulua was marked as Article-''G''. In all the weapons, human blood was found",

including on the cloths of the deceased.,

On the basis of the assimilation of facts and evidence it is difficult to accept the contention of the appellant that accused Mulua is entitled for the,

benefit of doubt because of the discrepancies in the statement of the eye witnesses. In support of his submissions he relied on the judgment passed,

by the Apex Court in the case of Jadu Yadav and others Vs. State of Bihar, AIR 1994 SC 957, where there was discrepancy in the ocular and",

medical evidence. Injuries were found to be caused by the sharp cutting weapon and no contusions were found on the person of the deceased and,

therefore, the Apex Court has held that 6 persons who were armed with lathis were entitled for the acquittal. Learned counsel for the appellants",

also relied on the judgment passed in the case of Smt. Kakko Vs. State of Haryana and another, AIR 1995 S.C. 1975, to bolster his submission",

that in a case where no overt act was committed by the accused and no specific injury attributed to the accused, mere omnibus allegation that she",

participated in crime , the case is not proved and the accused was acquitted. He also relied on the judgment passed in the case of Manoj alias",

Bhau and others Vs. State of Maharasthra AIR 1999 SC 1620, where there was specific allegation against some of the accused persons for",

causing specific injury, no specific overt act was alleged against the coaccused persons and they were held entitled for acquittal.",

In the facts and evidence of the present case, question arises for consideration whether the case of appellant Mulua can be segregated from the",

other co-accused persons and whether he can be granted benefits of doubt for acquittal. In the present case, the FIR was lodged immediately",

within 3 hours by PW-1 Rambagas Yadav, who lodged the FIR on the basis of the information given by Sugreeve, Maan Singh and Bablu. In the",

FIR itself he has named Mulua alongwith other accused persons. In the FIR also, specific allegation was made that he was present at the spot with",

Farsa. It is true that PW-2 Sugreeve Yadav has not mentioned the presence of the accused Mulua at the spot but admittedly two other eye,

witnesses PW-3 Maan Singh and PW-4 Bablu was also disclosed in the FIR that they had disclosed the incident to PW-1 Rambagas . Specially,

Bablu (PW-4) says that after seeing the incident he had run away from the spot and had informed the incident to PW-1 Rambagas Yadav. Thus,",

the testimony of PW-3 Maan Singh and PW-4 Bablu Yadav becomes more relevant. PW-3 in para-1 of his deposition states that he recognized,

accused Bhajju, Chainu, Raju, Harish Chand, Mulua and Kamtu and they had taken the deceased alongwith them. Thus, PW-3 Maan Singh has",

confirmed the presence of appellant Mulua also alongwith other accused persons at the spot. PW-4 Bablu has deposed in his statement that,

accused Harish Chand, Mulua, Raju Chainu, Kamtu and Bhajju had come to the spot, other accused persons were armed with axe and Mulua",

was having Farsa in his hand. In para-2 of his statement, he specified that Mulua had given beating by ''Thusa'' of the farsa (back side of the farsa.",

The seizure of farsa has also been proved from Mulua also. In addition to that on the the seized farsa weapon, human blood has been reported in",

addition to the other weapon seized from other accused persons. The appellants have been convicted with the aid of Section 148 and with the aid,

of section 149 of IPC. All the witnesses have stated that all the accused persons armed with deadly weapons came at the spot and they started,

immediately beating the deceased with the help of deadly weapons. Thus, the prosecution has established the unlawful assembly and its common",

object to murder the deceased. The case of appellant Mulua can also not be segregated from the other appellants.,

In the case of Laljee Vs State of U.P. (1989)1SCC 437 the Apex Court has held as under:,

Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section",

created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for",

the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the 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 of the unlawful assembly knew to be likely to be 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 unlawful assembly or such as the members of the,

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. It 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 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 as a principal for the acts of each, and all, merely 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 liability under Section 149. 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.",

In Yunis Vs. State of M.P. (2003) 1 SCC 425, learned counsel appearing for the appellant therein argued that no overt act was imputed to his",

client and he was being implicated only on the basis of Section 149 IPC. This Court ascribing no merit to the argument, held that :",

even if no overt act is imputed to a particular person, when the charge is under Section 149 IPC, the presence of the accused as part of an",

unlawful assembly is sufficient for conviction"". Accordingly the Court""",

Accordingly the Court in that case observed that the appellant was a member of the unlawful assembly which itself is sufficient to hold him guilty,

when his presence has not been disputed.,

Relying on Lalji Vs. State of U.P. this Court in Subal Ghorai Vs. State of W.B. (2013) 4 SCC 607 held:,

52...... If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful",

assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the,

commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims,",

all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the",

offence with the aid of Section 149 IPC if they shared common object of the unlawful assembly""",

Following the aforesaid judgments the Apex Court reiterated the principle in the cases of Anup Lal Yadav and another Vs. State of Bihar,

(2014)10 SCC 275, regarding constructive liability for being part of the unlawful assembly held that it is well settled that once it is established that",

unlawful assembly had a common object it is not necessary that in the presence unlawful assembly must be shown to have committed some overt,

act, rather they can be convicted under Section 149 of IPC.",

The judgment relied by the counsel for the appellants would not apply in the facts and evidence of the present case.,

In the conspectus of the above facts and evidence, we find that the prosecution has successfully proved its case beyond any doubt. There is no",

error in the order of conviction and sentence. Therefore, both the appeals are dismissed.",

Before parting, we must put on record our unreserved appreciation for the valuable assistance rendered by the learned amicus curiae. The",

High Court Legal Services Authority shall remit fee of Rs.4000/-(Rs. four thousand) to the amicus curiae who assisted this court.,