MEHTAB SINGH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This appeal, by special leave, arises out of a judgment of the High Court of Madhya Pradesh. Twenty-three persons were prosecuted in the Court of the Third Additional Sessions Judge, Bhopal on various charges under Section 147 and Section 302 read with Section 149 of the Indian Penal Code. Out of these twenty-three persons, seventeen, including Than Singh and Bhawani, were acquitted by the Sessions Court, of the remaining six Pyare was convicted under Sections 302 and 147 and sentenced to rigorous imprisonment for life for the former offence and two years rigorous imprisonment for the latter, both sentences being directed to run concurrently. The remaining five, namely, Mehtab Singh, Ram Singh, Sukhram, Maniram and Nandram were found guilty only under S. 147 and sentenced to rigorous imprisonment for two years. Being aggrieved by the order of conviction and sentence, Pyare, Mehtab Singh, Ram Singh, Sukhram, Maniram and Nandram preferred Criminal Appeal No. 672 of 1967 anal the State of Madhya Pradesh also preferred Criminal Appeal No. 777 of 1967 against the acquittal of Mehtab Singh, Ram Singh, Sukhram, Maniram and Nandram under Section 302 read with Section 149 and the acquittal of Than Singh and Bhawani under Section 147 as well as Section 302 read with Section 149. The appeal of Pyare was partly allowed and his conviction was altered to one under Section 304, Part II and sentence reduced to a term of seven years rigorous imprisonment, while the appeal of the other accused was rejected. The appeal of the State was accepted and Mehtab Singh, Ram Singh, Sukhram, Maniram, Nandram, Than Singh and Bhawani were convicted under Section 147 and Section 304, Part II read with Section 149 and while maintaining the sentence under Section 147, the High Court directed that Mehtab Singh should be sentenced to rigorous imprisonment for five years, while each of the other accused should suffer rigorous imprisonment for three years. Pyare accepted the judgment of the High Court, but Mehtab Singh, Ram Singh, Sukhram, Maniram, Nandram, Than Singh and Bhawani preferred the present appeal with special leaves obtained from this Court

(2.) The incident out of which the present appeal arises took place in the evening at about 6 p. m. on 27th March, 1967 in a village called Khajuri Kalan in the State of Madhya Pradesh. That day was the second day after Holi-what the witnesses have called Dooj of Holi. There were admittedly two factions in this village, one of Thakurs led by Mehtab Singh and the other of Chamars led by Ram Singh and there was animosity between these two factions. The prosecution case was that at about 6 p. m. in the evening Halku, Nanoo (P. W. 4), Misri (P. W. 11), Somat and some other chamars were sitting on a slightly raised ground in front of Halku's hut when all the twenty-three accused, including the appellants, came from the direction of the temple. Mehtab Singh and Than Singh started abusing the Chamars and shouted "Chamars, let us finally settle the score". Mithulal (P. W. 1), who belonged to the faction of the Chamars and was sitting there with Halku and others, entreated the accused with folded hands but that had no effect and Mehtab Singh, Than Singh and others started pelting stones at the Chamars. Misri (P. W. 11) was injured by one of the stones pelted by Mehtab Singh. In the meantime, the accused picked up sticks and farsas from the hut of Jagannath for attacking the Chamars and on seeing this the Chamars ran to their houses. Halku, Nanoo and Mithulal took shelter in a room in the hut of Halku and Prembai wife of Halku locked the room from outside. Mehtab Singh, Ram Singh, Pyare and some of the other accused, however, broke open the lock and Ram Singh, Pyare, Sukhram, Maniram and Nandram entered the room and dragged out Halku, Nanoo (P. W. 4) and Mithulal (P. W. 1). The other accused were at that time standing in the courtyard. Mehtab Singh then gave a knife blow on the neck of Halku and Pyare picked up a leg of bed-stead which was lying there and struck a blow with it on the head of Halku. Than Singh abused and shouted:"all these persons should be beaten and finished off" and then Halku, who had in the meantime fallen on the ground, as also Nanoo (P. W. 4) and Mithulal (P. W. 1) were all beaten by the accused. It appears that there had also been some incident between Thakurs and the Chamars earlier in the garden of the temple and one Chandan Singh had given information about that incident to the Sub-Inspector of Police at Govindpura Police Station and he had stated that still both parties "are trying to make criminal assault on others and hence action should be taken by the Police". L. S. Rathor, therefore, came down to the village but by the time he arrived, the incident resulting in the attack on Halku, Nanoo(P. W. 4) and Mithulal (P. W. 1) had already taken place and Halku, Nanoo and Mithulal were lying injured in the court-yard. L. S. Rathor thereupon wrote down a village complaint Ex. P-1 as dictated by Prema (P. W. 2) and forwarded it to the Govindpura Police Station where it was recorded as first information report Ex. P-30. L. S. Rathor thereafter sent Halku, Nanoo, Mithulal, Misri and other injured persons to Hamidia Hospital, Bhopal where Dr. R. C. Joshi examined them and issued reports Exs. P-3 to P-l9 noting their injuries. The injuries received by Halku were serious and he died the next morning. The post-mortem examination of the dead body of Halku was performed by Dr. C. N. Dafal and he noted the external as well as internal injuries caused to Halku. The Police thereafter recorded the statements of the witnesses and after the investigation was completed, a criminal case was filed which ultimately resulted in the conviction of the appellants and Pyare.

(3.) The appellants before us are divisible into two groups, one group consisting of Mehtab Singh, Ram Singh, Sukhram, Maniram and Nandram and the other consisting of Than Singh and Bhawani, So far as Mehtab Singh, Ram Singh, Sukhram, Maniram and Nandram are concerned, both the Sessions Court as well as the High Court found that they were members of an unlawful assembly and force and violence was used by members of the unlawful assembly in prosecution of its common object and hence they were guilty of the offence under Section 147 and since this finding is a concurrent finding of fact based on appreciation of evidence we do not think we would be justified in reviewing it. It is true that the Sessions Court acquitted Mehtab Singh, Ram Singh, Sukhram, Maniram and Nandram of the offence under Section 302 read with Section 149 on the ground that the evidence did not show that the common object of the unlawful assembly was to kill Halku and in prosecution of that common object the murder of Halku was committed, but the High Court took the view that whatever might have beer the original common object of the unlawful assembly when the accused started abusing and pelting stones, it developed into the common object of killing Halku and it was in prosecution of that common object that Pyare killed Halku and committed the offence under Section 304, Part II and, therefore, Mehtab Singh, Ram Singh, Sukhram Maniram and Nandram were guilty of the offence under Section 304, Part II read with Section 149. This finding of the High Court was based primarily on the evidence of the eye-witnesses and particularly Mithulal (P. W. 1) and Prembai (P. W. 3). We have gone through the evidence of the eye-witnesses and though it might be possible to find fault with the evidence, in one respect or another, so far as Prema (P. W. 2), Nanoo (P. W.4) and Misri (P. W. 11) are concerned, the evidence of Mithulal (P. W. 1) and Prembai (P. W. 3) is satisfactory and worthy of credence and must be regarded as sufficient to sustain the conviction of Mehtab Singh, Ram Singh, Sukhram, Maniram and Nandram. Both Mithulal (P. W. 1) and Prembai (P. W. 3) are natural witnesses whose presence at the scene of the incident cannot be doubted and nothing has been brought out in the cross examination which would shake their testimony in regard to the role played by Mehtab Singh, Ram Singh, Sukhram, Maniram and Nandram. The evidence of Prema, (P. W. 2), Nanoo (P. W. 4) and Misri (P. W. 11) also supports the broad features of the prosecution case against Mehtab Singh, Ram Singh, Sukhram, Maniram and Nandram, though there may be some minor infirmities in their evidence. The version of the prosecution in its essential features also receives support from the village complaint Ex. P-1 which was recorded by Sub-Inspector L. S. Rathor within an hour and a half from the commission of the offence. It is possible that when the accused started abusing and pelting stones at the Chamars, their common object was only to cause hurt to the Chamars, but when they went after Halku and dragged him out of the room and Mehtab Singh struck him with a knife and Pyare picked up a leg of a bed-stead and gave a blow with it on the head of Halku and others also gave stick blows to Halku after he had fallen there can be no doubt that they developed the common object to kill Halku or at least to give him a beating with full knowledge that it would be likely to cause death of Halku and it was in prosecution of this common object that Halku was killed and an offence under Section 304, Part II was committed. This would be sufficient to sustain the conviction of Mehtab Singh, Ram Singh, Sukhram, Maniram and Nandram under Section 304, Part II read with Section 149. The learned Counsel appearing on behalf of the appellants, however, contended in a last desperate argument that according to the evidence on record, there were more persons than one by the name of Ram Singh and Sukhram in the village and since there was no identification of Ram Singh and Sukhram, appellants No. 2 and 6, at an identification parade which would connect them with the crime, they at any rate were entitled to be acquitted. But this argument is also without force and cannot be accepted. The necessity for holding an identification parade can arise only where the accused are not previously known to the witnesses. But here Mithulal (P. W. 1), Prema (P. W. 2), Prembai (P. W. 3), Nanoo (P. W. 4) and Misri (P. W. 11), all knew the appellants and it was with reference to Ram Singh and Sukhram, appellants Nos. 2 and 6, that they gave evidence. It is clear from their evidence that they meant to refer not to any other Ram Singh or Sukhram, but to Ram Singh and Sukhram who were the accused before the Court. They actually assigned specific roles to Ram Singh and Sukhram who were arraigned as accused in the case. There was also no cross-examination directed against the identification of Ram Singh and Sukhram, appellants Nos. 2 and 6. This argument cannot, therefore, avail Ram Singh and Sukhram to escape conviction. We must, therefore, hold that Mehtab Singh, Ram Singh, Sukhram, Maniram and Nandram were rightly convicted by the High Court under Section 304, Part II read with Section 149 and the appeal in so far as it relates to them must be dismissed.