Parshuram vs State Of M.P.

2023 INSC 973 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 524 OF 2021

PARSHURAM …APPELLANT(S) VERSUS STATE OF M.P. …RESPONDENT(S) WITH CRIMINAL APPEAL NO. OF 2023 [Arising out of SLP (Crl.) No. 1718 of 2022]

JUDGMENT

B.R. GAVAI, J.

1. Leave granted in appeal arising out of SLP (Criminal) No.

1718 of 2022.

2. These appeals challenge the common judgment and

order dated 14th March 2018, passed by the Division Bench of

the High Court of Madhya Pradesh at Gwalior, in Criminal

Appeal Nos. 243 and 260 of 2005, whereby, the High Court

Signature Not Verified upheld the judgment and order dated 30th March 2005, passed Digitally signed by Narendra Prasad

by the 1st Additional Sessions Judge, Shivpuri (Madhya Date: 2023.11.03 17:10:13 IST Reason:

Pradesh) (hereinafter referred to as the “trial court”) in 1 Sessions Trial No. 09/2002, convicting the appellants and

sentencing them to imprisonment for life for the offences

punishable under Section 302 read with Section 149 of the

Indian Penal Code, 1860 (hereinafter referred to as “IPC”), to

undergo rigorous imprisonment for seven years for the offence

punishable under Section 326 read with Section 149 of IPC,

to undergo rigorous imprisonment for six months for the

offence punishable under Section 324 read with Section 149

of IPC, to undergo rigorous imprisonment for three months for

the offence punishable under Section 323 read with Section

149 of IPC, and to undergo rigorous imprisonment for three

months for the offence punishable under Section 148 of IPC.

3. Shorn of details, the facts leading to the present appeals

are as under:

3.1 It is the prosecution case that the appellant Jalim Singh

had constructed a shed (taparia) on the passage of the village

which is used by the cattle. Since the said shed (taparia) was

damaged by a buffalo belonging to the complainant party,

appellant Jalim Singh had beaten that buffalo with lathi and

drove that buffalo away. Thereafter, appellant Jalim Singh,

Ram Sewak @ Sewak, Ram Lakhan @ Lakhan, Ramrup @

2 Roopa, Ram Sahai, Parshuram (appellant in Criminal Appeal

No. 524 of 2021) and Mangal Singh came to the house of

Chironji (PW-6). On seeing this, Chironji (PW-6) ran away from

the house out of fear. Thereafter, accused persons broke the

doors and entered his house. It is the prosecution case that

the accused persons caught and beat Madan, Leelabai and

Kailash. Thereafter, all the accused persons fled from there.

When Chironji (PW-6) came back to his house, he was

informed about the incident.

3.2 It is further the prosecution case that on 6th October

2001 at 09.15 am, when Chironji (PW-6), Madan (deceased),

Raghuveer, Patiram (PW-13), Leelabai (died natural death

during pendency of trial), Ramhet (PW-12), Gyani (PW-14) and

Kailash (PW-15), from the complainant party were going on a

tractor to the Police Station to lodge the complaint, the

accused persons, armed with lethal weapons like barchi,

sword, spear, lathi and country-made bomb (hathgola),

waylaid them to cause injuries to them.

3.3 After intercepting the victims, Ram Lakhan who was

carrying a barchi, stabbed Madan on the left side of his chest,

as a result of which Madan fell down unconscious; thereafter,

3 Ram Sewak @ Sewak, who was carrying a gupti, caused

injuries to the complainant on the right side of his torso

(Bakha), and gave another blow on his head; and thereafter,

Ramrup @ Roopa who was carrying a sword, caused injury to

the complainant on his shoulder. Other accused persons,

including the appellants herein, who were also armed with

lethal weapons, caused grievous injuries.

3.4 The original First Information Report (for short, “FIR”)

was registered for the offences punishable under Sections 307,

323, 452, 147, 148 and 149 of IPC. However, on the death of

Madan, the same came to be converted to the one under

Section 302 IPC.

3.5 The accused persons were arrested, and after completion

of investigation, the chargesheet was filed in the Court of

Judicial Magistrate 1st Class, Kolaras. Since the case was

exclusively triable by the Sessions Court, the case was

committed to the Court of 1st Additional Sessions Judge,

Shivpuri, on 10th January 2002.

3.6 Before the trial court, the accused persons (in total nine),

denied the charges levelled against them, stating that they

have been falsely implicated because of a land dispute.

4 Defence examined two witnesses and the prosecution

examined twenty-one witnesses. Out of the twenty-one

prosecution witnesses, Chironji (PW-6), Ramhet (PW-12),

Partiram (PW-13), Gyani (PW-14) and Kailash (PW-15) were

injured eyewitnesses.

3.7 The trial court, thereafter, framed five issues for its

consideration in connection with the charges framed against

the accused persons. Vide judgment dated 30th March 2005,

the trial court held, that the evidence adduced by the

prosecution proved that the accused persons Parshuram, Ram

Sahai, Mangal Singh, Ram Lakhan, Ramrup @ Roopa, Ram

Sewak @ Sewak and Jalim Singh, formed an unlawful

assembly on the date of the incident and thereafter they

grievously assaulted the complainant and his family members,

thereby killing one of them in furtherance of the common

intention of their unlawful assembly, using deadly weapons.

The abovenamed seven accused were held guilty of the charges

under Section 302 read with Section 149, Section 326 read

with Section 149, Section 324 read with Section 149, Section

323 read with Section 149, Section 147 and Section 148 of

5 IPC, and the remaining two accused, namely Diwan Singh and

Siyaram were acquitted of the charges.

3.8 Consequently, the trial court, after considering the facts

and circumstances of the case, convicted and sentenced the

accused persons as aforesaid. All the sentences awarded to

the accused were to run concurrently.

3.9 Aggrieved by the judgment of the trial court, the accused

persons (Parshuram & Others), preferred Criminal Appeal No.

243 of 2005, and accused Jalim Singh preferred Criminal

Appeal No. 260 of 2005 before the High Court. The High Court

vide common impugned judgment and order dated 14th March

2018, dismissed both the criminal appeals and affirmed the

judgment and order of conviction as recorded by the trial

court. Aggrieved thereby, the present appeals are filed by

accused Parshuram and Jalim Singh.

4. We have heard Shri Rishi Malhotra, learned counsel

appearing for the appellant-Parshuram in Criminal Appeal No.

524 of 2021, Shri A. Sirajudeen, learned Senior Counsel

appearing for the appellant-Jalim Singh in appeal arising out

of SLP (Crl.) No. 1718 of 2022 and Shri Abhimanyu Singh,

6 learned counsel appearing on behalf of the respondent-State

of Madhya Pradesh.

5. Shri Malhotra submitted that both the High Court and

the trial court have grossly erred in convicting the appellants.

He submitted that the prosecution has failed to attribute any

specific role to the appellants herein. In the absence of the

same, he submitted that the conviction recorded under

Section 302 of IPC would not be tenable. The learned counsel

submitted that the role attributed to the present appellant

Parshuram was only holding the lathi and as such, no injuries

which had caused the death of the deceased, can be attributed

to the appellant Parshuram. The learned counsel further

submitted that two of the accused persons, who were

attributed the role of holding hand-bombs, were acquitted by

the trial court. As such, conviction of the present appellants

was not sustainable.

6. Shri Malhotra submitted that many accused persons had

sustained injuries. These injuries were not at all explained by

the prosecution. He submitted that the FIR which was lodged

by the accused persons against the complainant party arising

out of the same incident was prior in point of time. The

7 learned counsel, relying on a recent judgment of this Court in

the case of Nand Lal and Others v. State of Chhattisgarh1,

submitted that non-explanation of injuries is fatal to the

prosecution case and the appellants are entitled to be

acquitted on the ground of non-explanation of such injuries.

7. Shri Sirajudeen, learned Senior Counsel for the

appellant-Jalim Singh in appeal arising out of SLP (Crl.) No.

1718 of 2022, also advanced arguments on the same lines.

8. Shri Singh, on the contrary, submitted that both the trial

court and the High Court have concurrently found that the

prosecution has proved its case beyond reasonable doubt. He

submitted that since the appellants were a part of the unlawful

assembly, it was not necessary for the prosecution to attribute

a specific role to each of them. It is submitted that the object

of the unlawful assembly was to kill the members of the

complainant party and as such, no interference would be

warranted in the finding of conviction recorded by the trial

court as affirmed by the High Court. He further submitted

that the injuries sustained by the deceased was on vital parts

caused with deadly weapons.

1 2023 SCC OnLine SC 262

8

9. With the assistance of the learned counsel for the parties,

we have perused the material placed on record.

10. Chironji (PW-6) is the first informant. He has narrated

about the incident which had taken place on a day prior to the

day of occurrence of the present incident. He has stated that,

after the accused persons assaulted Madan, Lila (sic Leelabai)

and Kamlesh (sic Kailash), when they were going on a tractor

to the Police Station for lodging the complaint, they were

waylaid by Mangal, Roopa, Sewak, Ram Sahai, Parshuram,

Lakhan, Jalim, Diwan and Siya and 4-5 other persons. All of

them stopped their tractor and thereafter hurled hand bombs.

He further stated that Sewak beat with Gupti on his chest and

also hit Gupti on his head. He stated that Roopa stabbed him

with sword on his shoulder. He stated that Madan was

stabbed in the chest by Lakhan with barchi, on which, he

became unconscious. He stated that thereafter, they went to

the Police Station. Madan died at 10.00 am. His evidence is

corroborated by Ramhet (PW-12).

11. Dr. S.K. Majeji (PW-4) has performed autopsy on the

deceased. Injuries sustained by the deceased are thus:

9

“Injury no. 1: Deep punctured wound l'' X 1/2" X

Lung Deep in the chest on the left side. The skin and

muscles below this injury and left lung of the

deceased had ripped apart because of this injury. The

size of ripped lung was 1" X 2" X 2";

Injury no.2: Peeled wound 4" X l" in the center of the

back; and

Injury no.3: Peeled wound ½'' X l/2" on left arm.”

12. It is sought to be urged on behalf of the appellants that

the testimonies of Chironji (PW-6) and Ramhet (PW-12) are not

reliable inasmuch as there are material contradictions in their

evidence. No doubt that there are certain inconsistencies in

the evidence of Chironji (PW-6) and Ramhet (PW-12).

However, it is to be noted that the witnesses are rustic villagers

and they cannot be expected to give minute details identical

with each other.

13. The law with regard to conviction under Section 302 read

with Section 149 of IPC has been succinctly discussed by a

Constitution Bench of this Court in the locus classicus of

Masalti v. State of U.P.2, wherein this Court observed thus: 2

[1964] 8 SCR 133

10 “17. …….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 IPC. 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 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 [AIR 1956 SC 181] 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

11 that the offence has been actually committed by every member of the unlawful assembly……..”

14. It could thus clearly be seen that the Constitution Bench

has held that it is not necessary that every person constituting

an unlawful assembly must play an active role for convicting

him with the aid of Section 149 of IPC. What has to be

established by the prosecution is that a person has to be a

member of an unlawful assembly, i.e. he has to be one of the

persons constituting the assembly and that he had

entertained the common object along with the other members

of the assembly, as defined under Section 141 of IPC. As

provided under Section 142 of IPC, 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.

15. Undisputedly, from the evidence of Chironji (PW-6) and

Ramhet (PW-12), it is clear that the present appellants were

members of the unlawful assembly. No doubt that there is no

specific role attributed to the present appellants of assaulting

the deceased Madan. However, since the appellants were

members of the unlawful assembly, in view of the law laid

down by this Court in the case of Masalti (supra), it is not 12 necessary that such a person, for being convicted, must have

actually assaulted the deceased.

16. Having held that, the question which we are left to

answer is, as to, whether, the conviction under Section 302 of

IPC would be tenable or not.

17. The defence taken by the appellants and the other

accused persons was that in fact the accused persons had first

lodged the complaint with regard to the attack made by the

complainant party. It is their defence that after lodging the

complaint, when they were coming back from the Police

Station, the complainant party had come on a tractor and

assaulted the accused persons. It is their contention that the

accused persons tried to save themselves. As a result whereof,

there was a free fight resulting in injuries to the members of

both the parties and unfortunately deceased Madan

succumbing to the injuries.

18. It is to be noted that the defence side has also examined

two witnesses. Ram Krishan Pandey (DW-1) is the police

Constable who had registered the FIR lodged by one of the

accused persons. Dr. Nisar Ahmed (DW-2), the Medical

Officer, Shivpuri, who has deposed about the injuries

13 sustained by accused Ram Sewak @ Sewak, Ram Lakhan and

Ramrup @ Roopa. The injuries suffered by accused Ram

Sewak @ Sewak are thus:

(i) Incised wound 7 cm X 1 cm on the deep bone on the front of the forehead;

(ii) Torn wound 3 cm X 1 cm was skin deep at the back and right side of the head.

(iii) Incised wound 4 cm X 2 cm was on the left shoulder posterior to the muscle depth;

(iv) Incised wound 1 X 1 cm/2 X 1 cm/ 2 cm on the outer and upper part of the left forearm;

(v) Incised wound 1 X 1 cm/ 2 X 1 cm was located on the left thumb;

(vi) Diffuse swelling in the upper left forearm;

(vii) Swelling of the right middle malleus and pain on pressure;

(viii) Diffuse swelling in the right thigh;

The injuries suffered by accused Ram Lakhan are thus:

(i) Diffuse swelling on the tendon in the back of the left leg.

The injuries suffered by accused Ramrup @ Roopa are thus:

(i) Cracked wound 6 X 1 cm blind skin deep in right parietal area of head;

14 (ii) The swelling and deformity in the lower part of the right forearm;

(iii) Swelling and pain on pressure in upper part of left scapula;

(iv) Diffuse swelling above the right knee.

19. Though the trial court has referred to the fact of the case

being registered against the complainant party for the offences

punishable under Sections 323, 341, 294, 147, 148 and 149

of IPC, the trial court observed that no fatal weapons were

used by the complainant party in assaulting the accused

persons. However, on the contrary, the accused persons had

used the fatal weapons.

20. We do not find the said observation of the trial court

correct. The injuries sustained by Ramrup @ Roopa is by a

sharp weapon. It will be trite to refer to the following

observations of this Court in the case of Lakshmi Singh and

Others v. State of Bihar3:

“12. ……. It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:

3 (1976) 4 SCC 394

15 “(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.” The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the court to rely on the evidence of PWs 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused.

Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima [(1975) 2 SCC 7 : 1975 SCC (Cri) 384] there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, 16 however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises.”

21. A similar view with regard to non-explanation of injuries

has been taken by this Court in the cases of State of

Rajasthan v. Madho and Another4, State of M.P. v.

Mishrilal (Dead) and Others5, Nagarathinam and Others

v. State Represented by Inspector of Police6 and recently in

the case of Nand Lal (supra).

22. Undisputedly, in the present case also, the witnesses are

interested witnesses. The injuries sustained by three accused

persons are not at all explained. The trial court and the High

Court have not considered this aspect of the matter.

23. Non-explanation of injuries on the persons of the accused

would create a doubt, as to, whether, the prosecution has

brought on record the real genesis of the incident or not.

Undisputedly, as observed hereinabove, a cross case was also

registered against the complainant party for the injuries

sustained by the accused persons.

4 1991 Supp (2) SCC 396 5 (2003) 9 SCC 426 6 (2006) 9 SCC 57

17

24. The defence taken by the accused persons is that when

they were coming back from the Police Station, it was the

complainant party which started assaulting them resulting

into a free fight. Their further case is that in the said free fight,

the persons from both the sides received injuries. As a result

of the injury caused in the said free fight, Madan died.

25. From the material placed on record, it is also not clear as

to whether the common object of the unlawful assembly was

to cause the death of the deceased or not. The entire incident

arose on account of the happening on a day prior to the day of

occurrence of the present incident, i.e. the buffalo of the

complainant party spoiling the taparia built by accused Jalim

Singh. It is quite possible that the accused persons did not

have an intention to cause death of anybody from the

complainant party. It is possible that the accused persons

only assembled to teach a lesson to the complainant party on

account of the buffalo from their party damaging the taparia

of the accused Jalim Singh.

26. We are therefore of the considered view that the

appellants are entitled to benefit of doubt. The conviction

under Section 302 IPC would not be sustainable. The

18 prosecution has failed to prove beyond reasonable doubt that

the unlawful assembly had an intention to cause the death of

the deceased. As such, we find that the case would fall under

Part-II of Section 304 of IPC.

27. In the result, the appeals are disposed of with the

following directions:

(i) The conviction under Section 302 IPC is altered to

Part-II of Section 304 of IPC;

(ii) The appellants are sentenced to suffer rigorous

imprisonment for 7 years.

28. Pending application(s), if any, shall stand disposed of in

the above terms.

….……..….......................J. [B.R. GAVAI]

.……..….........................J. [B.V. NAGARATHNA]

……………..….........................J. [PRASHANT KUMAR MISHRA]

NEW DELHI;

NOVEMBER 03, 2023.

19