BABBOO ALIAS KALYANDAS Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellants in this appeal by special leave are original accused No. 1 Babboo alias Kalyandas, accused No. 3 Gopi son of Ubdha Maina, accused No. 5 Kamal son of Devi Ram Teli, and accused No. 7 Jawahar son of Devi Ram Teli, all of whom were convicted for having committed an offence under section 302 read with section 149 of the Indian Penal Code and each of them was sentenced to suffer imprisonment for life. They were also convicted for having committed an offence under section 148 of the Indian Penal Code and each of them was sentenced to suffer rigorous imprisonment for two years by the learned II Additional Sessions Judge, Bhopal in Sessions Trial No. 16/74. Their Appeal No. 243/74 was summarily dismissed by the Madhya Pradesh High Court.

(2.) The appellants alongwith four others (acquitted by the Additional Sessions Judge) were tried for committing murder of one Diwan Singh on 21st September 1973. The prosecution case against them was that around 10 p.m. to 11 p.m. on the date of occurrence Diwan Singh was at his house, relaxing on a cot, after taking his food. His wife Phoola Bai (P. W. 6) was sitting on the cot. At about that time, accused No. 8 Mohandas and accused No. 9 Kashidas (both acquitted by the Additional Sessions Judge) came to the house of Diwan Singh and informed him that he was required by one Prabhu. On receipt of this intimation Diwan Singh started from his house and Phoola Bai (P. W. 6) followed him. When Diwan Singh reached near the house of Devi Ram Modi, he was accosted by the appellants and four acquitted accused. All the accused were armed with Katarnas. Accused No. 1 Babboo alias Kalyandas struck a blow with Katarna on the shoulder of Diwan Singh. Immediately, thereafter all the rest of the accused also gave blows with Katarnas to Diwan Singh, P. W. 6 Phoola Bai was threatened that if she were to raise shouts, she would be killed. However, Phoola Bai screamed which attracted the attention of one Lachhman (P. W. 7) and Lachhman interceded and implored the accused not to beat Diwan Singh. At that time accused No. 4 Teekaram pushed the wooden handle of Katarna into the mouth of Lachhman. Diwan Sing fell down on the ground. Accused No. 2 queried if Diwan Singh had been done away with and when informed it was so, all the accused went away and entered the house of Devi Ram Modi, Phoola Bai (P.W. 6) went to the house of Ram Singh (P. W. 10), uncle of deceased Diwan Singh and informed him that her husband Diwan Singh was killed and was lying near the house of Devi Ram. Ram Singh (P. W. 10) called one Rati Ram and Gandharva Singh (P. W. 11). Gandharva Singh is the cousin of Diwan Singh, Phinsa (P. W. 5) the chowkidar of the village was sent for, and he soon arrived at the spot where the dead body of Diwan Singh was lying and at that time Phoola Bai (P. W. 6) and mother of Diwan Singh were also present there. Ram Singh (P. W. 10) and Gandharv Singh (P. W. 11) asked Phinsa (P. W. 5) to go to the police station and lodge a report and accordingly Phinsa went to Dehgaon Police Station and lodged report Exhibit P-25 on the basis of which an offence was registered and investigation was undertaken. Ultimately nine accused were charge-sheeted for the aforementioned offences.

(3.) The learned Additional Sessions Judge on a concession by the learned Government Pleader acquitted accused Nos. 8 and 9 holding that they had not participated in the actual assault and no deadly weapon was recovered from either of them and therefore they could not be said to be sharing the common object of the unlawful assembly. Similarly, in case of accused No. 2 and No. 4 the learned Additional Sessions Judge was of the opinion that merely because they caught hold of Phoola Bai they could not be said to be sharing the common object of the unlawful assembly. With these observations accused Nos. 2, 4, 8 and 9 were acquitted. In respect of accused Nos. 1, 3, 5, 6 and 7, the learned Additional Sessions Judge held that evidence of Phoola Bai corroborated by the evidence of Lachhman (P. W. 7) as also the evidence of Kanhaiyalal (P. W. 8) would affirmatively establish that the aforementioned five accused formed an unlawful assembly the common object of which was to commit murder of Diwan Singh and in prosecution of the common object of all of them, they simultaneously beat and belaboured Diwan Singh who died in consequence of the injuries suffered by him and therefore they were guilty of committing an offence under section 302 read with section 149 of the Indian Penal Code as also for committing an offence under section 148 of the Indian Penal Code and they were convicted and sentenced as mentioned above.