1

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Criminal Appeal No. 827 of 2016

1.Kamleshwar Painkra S/o Shri Kripashankar Painkra, Aged

about 35 years.

2.Kripashankar Painkra S/o Shri Laluram Painkra, Aged

about 57 years.

3.Jagendra Kumar S/o Shri Laluram Painkra, Aged about 45

years.

4.Shivlal Gond, S/o Shri Bokha Gond, Aged about 35 years.

5.Baldev S/o Shri Devsai Kodaku, Aged about 45 years.

6.Dhanushdhari S/o Shri Birjanram, Aged about 50 years.

All R/o Village Gotgawan, Police Station Pratappur, Distt.

Surajpur, Chhattisgarh.

---Appellants

Versus

State of Chhattisgarh through Station House Officer, Police

Station Pratappur, Distt. Surajpur, Chhattisgarh.

---Respondent

For Appellants :-Mr. R.S. Marhas, Advocate

For State :-Ms. Ruchi Nagar, Dy. G.A.

Criminal Appeal No. 1133 of 2016

1.Shyam Painkra S/o Thururam Paikra, Aged about 45 years.

2.Ramkumar Painkra S/o Ramprasad Painkra, Aged about 32

years. 2022:CGHC:24539-DB

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Both R/o Village Goatganwa, Police Station Pratappur,

Distt. Surajpur, Chhattisgarh.

---Appellants

Versus

State of Chhattisgarh through District Magistrate, Surajpur,

District (Revenue and Civil) – Surajpur, Chhattisgarh.

---Respondent

For Appellants :-Mr. A.N. Pandey, Advocate

For State :-Ms. Ruchi Nagar, Dy. G.A.

Hon'ble Shri Justice Sanjay K. Agrawal

Hon'ble Shri Justice Deepak Kumar Tiwari

Judgment on Board

02/11/2022

Sanjay K. Agrawal, J.

1.Since both of these criminal appeals have arisen out of

impugned judgment dated 27/05/2016 passed by learned

Additional Sessions Judge Pratappur, Distt. Surajpur in

Sessions Trial No. 27/2015, therefore, they have been

clubbed together, heard together and are being decided by

this common judgment.

2.The six appellants in Criminal Appeal No. 827/2016 namely

Kamleshwar Painkra (A-1), Kripashankar Painkra (A-2),

Jagendra Kumar (A-3), Shivlal Gond (A-4), Baldev (A-7) and

Dhanushdhari (A-8) as well as the two appellants in

Criminal Appeal No. 1133/2016 namely Shyam Painkra (A- 2022:CGHC:24539-DB

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5) and Ramkumar Painkra (A-6); all have preferred these

appeals under Section 374(2) of CrPC calling in question the

validity, legality and correctness of the judgment impugned

whereby each one of them have been convicted and

sentenced as under :-

Conviction Sentence

U/s 148 of IPC 1 year R.I. with fine of Rs.

500/- in default of payment of

fine, additional R.I. for 6

months.

U/s 353 of IPC 6 months R.I. with fine of Rs.

1000/- in default of payment of

fine, additional R.I. for 6

months.

U/s 302/149 of IPC Imprisonment for life with fine

of Rs. 5000/- in default of

payment of fine, additional R.I.

for 6 months.

Prosecution case :-

3.Case of the prosecution, in brief, is that on 11/06/2015 in

between 11PM-12AM, the eight appellants herein along with

two other co-accused persons namely Smt. Shanti and Smt.

Abha Painkra constituted an unlawful assembly in the

forest range of Chitkabahra at Village Gotgaon with the

intention of obstructing Forester Motilal Kushwaha

(deceased), Forester Hemlal Sahu (P.W.-7), Beat Guard

Sohan (P.W.-10) and Forest Guard Jaikaran (P.W.-11) from

performing governmental work and assaulted them with

deadly and dangerous weapons and in furtherance of their

common intention, caused the death of Motilal Kushwaha 2022:CGHC:24539-DB

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and injured Hemlal Sahu (P.W.-7), Sohan (P.W.-10) and

Jaikaran (P.W.-11) and thereby, committed the aforesaid

offences.

4.Further case of the prosecution is that on 11/06/2015 at

about 10 PM, deceased Motilal Kushwaha made a call to

Hemlal Sahu (P.W.-7) and informed him that he had

received the information that wood was being stolen at

forest range Chitkabahra and directed him to go to the place

of the incident along with barrier guard Jaikaran (P.W.-11).

As directed, when Hemlal Sahu (P.W.-7) and barrier guard

Jaikaran (P.W.-11) went to the Chitkabahra forest range,

they heard the sound of wood being unloaded from the

tractor and they immediately informed about this to Circle

Incharge deceased Motilal Kushwaha. After being informed,

deceased Motilal Kushwaha reached the spot along with

beat guard Sohan (P.W.-10) and when all of them went near

the courtyard of Kamleshwar Painkra (A-1), they found that

Kamleshwar Painkra (A-1), Kripashankar Painkra (A-2) and

Jagendra (A-3) were unloading wood from a tractor bearing

registration No. CG 15-AI/4322. Upon this, deceased Motilal

Kushwaha asked them to again reload the tractor with

illegal wood and send it to the Range Office but Kamleshwar

Painkra (A-1) replied that he also worked in Forest

Department and he would see who takes the wood to Range

Office. Thereafter, deceased Motilal Kushwaha informed

about the incident to the Ranger and after telling them that 2022:CGHC:24539-DB

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action will be taken against them in the morning, he started

going back but at that time, Kamleshwar Painkra (A-2) and

Jagendra (A-3) came back with 8-10 people along with them

and while abusing and obstructing deceased Motilal

Kushwaha from performing their governmental duties, with

the intention of causing death, assaulted him with clubs

and murdered him. The accused persons also assaulted

Sohan (P.W.-10) and Jaikaran (P.W.-11) with clubs and

injured them.

5.The said incident was reported at Pratappur Police Station

wherein merg was registered at the instance of Hemlal Sahu

(P.W.-7) vide Ex. P/27 and first information report (Ex.

P/26) was lodged against Kamleshwar Painkra (A-1),

Kripashankar Painkra (A-2), Jagendra (A-3) and 8-10

persons for offences punishable under Sections 147, 148,

149, 186, 353, 332, 307 and 302 of IPC pursuant to which

the wheels of investigation started running. Nazri naksha

was prepared vide Ex. P/40 and summons were issued to

the witnesses vide Ex. P/21. Inquest was conducted vide

Ex. P/22 and the dead body of deceased Motilal Kushwaha

was subjected to postmortem which was conducted by Dr.

Rajesh Shresth (P.W.-19) and as per the postmortem report

(Ex. P/46), the cause of death is said to be cardiorespiratory

arrest due to subarachnoid hemorrhage and the nature of

death is said to be homicidal. 2022:CGHC:24539-DB

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6.Pursuant thereof, all the ten accused persons were taken

into custody and after recording their memorandum

statements, following seizure was made from them :-

Appellant/Accused Memorandum Seizure

Kamleshwar Painkra

(A-1)

Ex. P/1 Tangi (Ex. P/2)

Kripashankar Painkra

(A-2)

Ex. P/3 Lathi (Ex. P/4)

Jagendra

(A-3)

Ex. P/5 Tangi, blood stained

banyan (Ex. P/6)

Shivlal

(A-4)

Ex. P/7 Wooden Stick (Ex. P/8)

Shyam Painkra

(A-5)

Ex. P/9 Bamboo Stick (Ex. P/10)

Ram Kumar Painkra

(A-6)

Ex. P/11 Bamboo Stick (Ex. P/12)

Baldev

(A-7)

Ex. P/13 Bamboo Stick (Ex. P/14)

Dhanushdhari

(A-8)

Ex. P/15 Wooden Stick, blood

stained shirt (Ex. P/16)

Smt. Shanti

(A-9)

Ex. P/17 Wooden Stick (Ex. P/18)

Smt. Abha

(A-10)

Ex. P/19 Wooden Stick (Ex. P/20)

7.The aforesaid seized articles were sent for chemical

examination and as per the FSL report (Ex. P/81), blood

was found on soil (Article B), banyan seized from Jagendra

(Article D), shirt seized from Dhanushdhari (Article E) and

dress worn by the deceased Motilal Kushwaha (Article F)

and as per the Serological report (Ex. P/83), human blood of

'A' blood group was found on soil (Article B) as well as in the

banyan seized from Jagendra (A-3) (Article D) whereas the 2022:CGHC:24539-DB

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blood spots found on shirt seized from Dhanushdhari (A-8)

(Article E) and the dress worn by the deceased (Article F)

were found to be disintegrated and therefore, the origin of

blood found on these two articles could not be ascertained.

8.After due investigation, the ten appellants/accused persons

were charge-sheeted for offences punishable under Sections

148, 302, 307, 353, 332/149 of IPC which was committed

to the Court of Sessions for hearing and disposal in

accordance with law. The appellants/accused persons

abjured their guilt and entered into defence.

9.In order to bring home the offence, prosecution examined as

many as 19 witnesses and exhibited 83 documents on

record. The statements of the accused persons were

recorded wherein they denied guilt and examined 2

witnesses and exhibited 13 documents in their defence.

10.Learned trial Court, after appreciating the oral and

documentary evidence on record, though acquitted two

accused persons namely Smt. Shanti (A-9) and Smt. Abha

Painkra (A-10) form the charges levelled agianst them, but

convicted the eight present appellants/accused persons for

offences punishable under Sections 148, 353 and 302/149

of IPC and sentenced as aforesaid against which these two

appeals have been preferred by them. 2022:CGHC:24539-DB

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Submissions on behalf of the parties :-

11.Mr. R.S. Marhas, learned counsel for the

appellants/accused persons in Criminal Appeal No.

827/2016 would make the following submissions :-

i) that the testimonies of injured witnesses Hemlal Sahu

(P.W.-7), Sohan (P.W.-10) and Jaikaran (P.W.-11), who are

said to be eye-witnesses, cannot be relied upon as the

incident took place in dense forest in between 11PM-12AM

and in the dark night, there was no source of light available

therein. Sohan (P.W.-10) has stated before the Court that he

had seen the incident with the help of torch light, however,

he did not make any such statement in his statement under

Section 161 of CrPC. As such, in absence of sufficient light

in the place of offence, the injured eye-witnesses Hemlal

Sahu (P.W.-7), Sohan (P.W.-10) and Jaikaran (P.W.-11)

could not have identified the persons involved in the crime

in question.

ii) that, prosecution has miserably failed to prove the

presence of Shivlal Gond (A-4), Shyam Painkra (A-5),

Ramkumar Painkra (A-6), Baldev (A-7) and Dhanushdhari

(A-8) at the date and time of the incident on the place of

offence beyond reasonable doubt, as such, the trial Court

has legally erred in convicting these accused persons for the

aforesaid offences with the aid of Section 149 of IPC stating 2022:CGHC:24539-DB

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that they were members of unlawful assembly as even in

the first information report (Ex. P/26) lodged by Hemlal

Sahu (P.W.-7), he has not named these five accused persons

(A-4 to A-8) as assailants. As such, with regard to the

identity of these accused persons who were neither named

in the merg intimation (Ex. P/27) nor in the first

information report (Ex. P/26), no credible evidence is on

record to prove their presence especially in absence of any

test identification parade conducted at the instance of the

prosecution.

iii) that, the trial Court has gravelly erred in convicting

Kamleshwar Painkra (A-1), Kripashankar Painkra (A-2) and

Jagendra (A-3) for offence punishable under Section

302/149 of IPC as pursuant to their memorandum

statements, tangi has been recovered from Kamleshwar

Painkra (A-1), lathi has been recovered from Kripashankar

Painkra (A-2) and tangi has been recovered from Jagendra

(A-3) whereas as per the medical opinion of Dr. Rajesh

Shreshtha (P.W.-19) and as per the postmortem report (Ex.

P/46), no incised wound has been inflicted on the deceased

and only single injury has been inflicted on him which

could have been caused by a hard and blunt object.

He would further submit that at the most, the

appellants/accused persons namely Kamleshwar Painkra

(A-1) and Kripashankar Painkra (A-2) could have been

convicted for offence punishable under Section 304 part I or 2022:CGHC:24539-DB

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Part II of IPC as their act is covered with Exception 4 to

Section 300 of IPC and since they are in jail since

12/06/2015 i.e. for more than 7 years, they be sentenced

for the period already undergone.

12.Mr. A.N. Pandey, learned counsel for the

appellants/accused persons in CRA/1133/2016, would

adopt the submission made by Mr. R.S. Marhas and submit

that the presence of Shyam Painkra (A-5) and Ramkumar

Painkra (A-6) has not been established and their names

have neither been mentioned in the merg intimation (Ex.

P/27) nor in the first information report (Ex. P/26),

therefore, it cannot be said that they had constituted an

unlawful assembly along with the other appellants/accused

persons and learned trial Court has erred in convicting

them for offence punishable under Section 302 with the aid

of Section 149 of IPC.

13.Ms. Ruchi Nagar, learned State counsel, would support the

impugned judgment and submit that prosecution has been

able to prove that appellants/accused persons had

constituted an unlawful assembly and in furtherance of

their common intention, they have murdered Motilal

Kushwaha as Kamleshwar Painkra (A-1), Kripashankar

Painkra (A-2) and Jagendra (A-3) are key perpetrators of the

crime in question and they were unloading stolen wood

when deceased along with three injured eye-witnesses

namely Hemlal Sahu (P.W.-7), Sohan (P.W.-10) and 2022:CGHC:24539-DB

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Jaikaran (P.W.-11) had gone to enquire the matter, they did

not co-operate and called 8-10 more persons and assaulted

them due to which Motilal Kushwaha died on the spot and

the other three witnesses got injured. She would further

submit that pursuant to the memorandum statements of

the appellants/accused persons, tangi has been seized from

Kamleshwar Painkra (A-1), laathi has been seized from

Kripashankar Painkra (A-2) and tangi and banyan has been

seized from Jagendra (A-3) and as per the FSL report (Ex.

P/86) and Serological report (Ex. P/87), human blood has

been found on the banyan seized from Jagendra (A-3).

Moreover, human blood of 'A' blood group has also been

found on the clothes seized from Dhanushdhari (A-8) vide

Ex. P/15, as such, his presence on the spot has also been

established and therefore, the trial Court has rightly

convicted the appellants/accused for offence punishable

under Section 302 with the aid of Section 149 of IPC and

the instant appeals deserve to be dismissed.

14.We have heard learned counsel for the parties, considered

their rival submissions made herein-above and went

through the records with utmost circumspection.

15.The first question for consideration is whether the death of

deceased Motilal Kushwaha was homicidal in nature, which

has been answered in affirmative by the trial Court relying

upon the expert medical opinion of Dr. Rajesh Shrestha

(P.W.-19) as well as the postmortem report (Ex. P/46) in 2022:CGHC:24539-DB

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which cause of death is said to be cardiorespiratory arrest

due to subarachnoid hemorrhage and the nature of death is

said to be homicidal. As such, relying upon the postmortem

report (Ex. P/46) as well as the statement of Dr. Rajesh

Shreshtha (P.W.-19), it can safely be inferred that the death

of deceased was indeed homicidal in nature, more so, when

it has also not been refuted by learned counsel for the

appellants. In that view of the matter, we are of the

considered opinion that learned trial Court has rightly held

that death of deceased Motilal Kashyap was homicidal in

nature.

16.The next question that arises for consideration is whether

the appellants/accused persons (A-1 to A-8) constituted

unlawful assembly in terms of Section 141 of IPC and in

furtherance of their common intention, they assaulted the

deceased with dangerous and deadly weapons and

murdered him ?

17.In order to answer this question, it would be relevant to

notice Section 141 of IPC, which defines “unlawful

assembly” as under :-

“141. Unlawful assembly.— An assembly of five or

more persons is designated an “unlawful assembly”,

if the common object of the persons composing that

assembly is-

(First)— xxxx;

(Second)— xxx;

(Third)— To commit any mischief or criminal

trespass, or other offence; or

(Fourth)— xxx;

(Fifth)— xxxx.” 2022:CGHC:24539-DB

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18.Section 141 of IPC states that an “unlawful assembly” is an

assembly of five or more persons, if their common object is

to commit mischief, criminal trespass or any other offence.

The Constitution Bench of the Supreme Court in the matter

of Mohan Singh and another vs. State of Punjab

1

held

that it is only where five or more persons constituted an

assembly that an unlawful assembly is born, provided, of

course, the other requirements of the said section as to the

common object of the persons composing that assembly are

satisfied. In other words, it is one of the essential condition

of an unlawful assembly that its membership must be five

or more. The assembly must consist of five or more persons

having one of the five specified objects as their “common

object”. Further, their Lordships while dealing with as to the

applicability of Section 149 of IPC in such case held that it

is necessary to bear in mind the several categories of cases

which come before the Criminal Courts for their decision. If

five or more persons are named in the charge as composing

an unlawful assembly and evidence adduced by the

prosecution proves those charge against all of them it is

very clear that Section 149 IPC can be invoked.

19.Since all the convicted accused persons/appellants herein

(A-1 to A-8) have been convicted for offence punishable

under Section 302 with the aid of Section 149 of IPC, it is

relevant to notice Section 149 of IPC here, which reads as

1AIR 1963 SC 174 2022:CGHC:24539-DB

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under:

“149.Every member of unlawful assembly guilty

of offence committed in prosecution of common

object.—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.”

20.A careful perusal of the aforesaid provision would show that

following ingredients are required to be established in order

to convict an accused person for offence under Section 149

of IPC: (i) there must be an unlawful assembly; (ii)

Commission of an offence by any member of an unlawful

assembly and (iii) Such offence must have been committed

in prosecution of the common object of the assembly; or

must be such as the members of the assembly knew to be

likely to be committed.

21.Section 149 is applicable only in case of members of

unlawful assembly i.e. assembly of 05 or more persons the

common object of whom is any of the objects specified in

Section 141 of IPC. In case of such an assembly every

person who is member of the assembly, is guilty of every

offence committed by any member of the assembly (1) if

such offence is committed in prosecution of the common

object of such assembly or (2) if the offence is such as the

members knew likely to be committed in prosecution of the

common object, provided the person was a member of such 2022:CGHC:24539-DB

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assembly when that offence was committed. Thus, the

liability under this provision attaches to every member of

the assembly even when such member had nothing to do

with the actual commission of the offence, and even a

knowledge about the likelihood of the offence being

committed in prosecution of the common object of the

assembly is sufficient to impose the liability for the offence

when committed by any member of the assembly.

22.The first part of Section 149 of IPC speaks of the

commission of an offence in prosecution of the common

object of the assembly, whereas the second part takes

within its fold knowledge of likelihood of the commission of

the offence in prosecution of the common object. The

knowledge contemplated by the second part does not mean

knowledge of mere possibility of the commission of the

offence. The commission of offence must be reasonably

likely. Such knowledge may be collected from the nature of

the assembly, its common object, the kind of arms which its

members bear and their behaviour at or before the actual

conflict (See: State of Assam vs. Darga Dewani

2

).

23.The Supreme Court in the matter of Rajendra Shantaram

Todankar vs. State of Maharashtra

3

explained the scope of

Section 149 and held in Para-14 as under:

“14.Section 149 of the Indian Penal Code provides

that if an offence is committed by any member of an

unlawful assembly in prosecution of the common

2 1970 (3) SCC 236 [Para-8]

3 (2003) 2 SCC 257 2022:CGHC:24539-DB

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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. The

two clauses of Section 149 vary in degree of

certainty. The first clause contemplates the

commission of an offence by any member of an

unlawful assembly which can be held to have been

committed in prosecution of the common object of

the assembly. The second clause embraces within

its fold the commission of an act which may not

necessarily be the common object of the assembly

nevertheless the members of the assembly had

knowledge of likelihood of the commission of that

offence in prosecution of the common object. The

common object may be commission of one offence

while there may be likelihood of the commission of

yet another offence the knowledge whereof is

capable of being safely attributable to the members

of the unlawful assembly. In either case every

member of the assembly would be vicariously liable

for the offence actually committed by any other

member of the assembly. A mere possibility of the

commission of the offence would not necessarily

enable the Court to draw an inference that the

likelihood of commission of such offence was within

the knowledge of every member of the unlawful

assembly. It is difficult indeed, though not

impossible, to collect direct evidence of such

knowledge. An inference may be drawn from

circumstances such as the background of the

incident, the motive, the nature of the assembly, the

nature of the arms carried by the members of the

assembly, their common object and the behaviour of

the members soon before, at or after the actual

commission of the crime. Unless the applicability of

Section 149 either clause is attracted and the Court

is convinced, on facts and in law both, of liability

capable of being fastened vicariously by reference to

either clause of Section 149 of IPC merely because a

criminal act was committed by a member of the

assembly every other member thereof would not

necessarily become liable for such criminal act. The

inference as to likelihood of the commission of the

given criminal act must be capable of being held to

be within the knowledge of another member of the

assembly who is sought to be held vicariously liable

for the said criminal act.” 2022:CGHC:24539-DB

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24.Similarly, in the matter of Joseph v. State, represented by

Inspector of Police

4

their Lordships of Supreme Court

defined the scope of Section 149 of IPC in two parts in Para-

11.1 & 11.2, which reads as under:

“11.1The first part of the section means that there

exists common object and that the offence has been

committed in prosecution of the common object. In

order that the offence may fall within the first part,

the offence must be connected immediately with the

common object of the unlawful assembly of which

the accused was member.

11.2The second part of the section means that

even if the offence committed is not in direct

prosecution of the common object of the assembly,

it may yet fall under Section149, if it can be shown

that the offence was such as the members knew

was likely to be committed.”

25.Section 149 of IPC declares the principle of vicarious

criminal liability. Upon an offence being committed by any

member of an unlawful assembly in prosecution of the

common object, every person, who at the time of the offence

being committed is a member of such assembly is guilty of

such offence. Equally, in the second part of Section 149, the

law-makers have provided that upon an offence being

committed by any member of the unlawful assembly which

was such that members of that assembly (unlawful

assembly), knew to be likely to be committed in prosecution

of that object, every member of the assembly, though he

may not have committed the offence, is rendered guilty of

the offence (See: Somasundaram @ Somu vs. State

4 (2018) 12 SCC 283 2022:CGHC:24539-DB

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represented by the Deputy Commissioner of Police

5

).

26.It is well settled that since Section 149 IPC imposes a

constructive penal liability, it must be strictly construed as

it seeks to punish members of an unlawful assembly for the

offence or offences committed by their associate or

associates in carrying out the common object of the

assembly and there must be a nexus between the common

object and the offence committed. The Supreme Court in

the matter of Allauddin Mian vs. State of Bihar

6

has held

in Para-08 as under:

“8.….. Therefore, in order to fasten vicarious

responsibility on any member of an unlawful

assembly the prosecution must prove that the act

constituting an offence was done in prosecution of

the common object of that assembly or the act done

is such as the members of that assembly knew to be

likely to be committed in prosecution of the common

object of that assembly. Under this section, therefore,

every member of an unlawful assembly renders

himself liable for the criminal act or acts of any other

member or members of that assembly provided the

same is/are done in prosecution of the common

object or is/are such as every member of that

assembly knew to be likely to be committed. This

section creates a specific offence and makes every

member of the unlawful assembly liable for the

offence or offences commit- ted in the course of the

occurrence provided the same was/were committed

in prosecution of the common object or was/were

such as the members of that assembly knew to be

likely to be committed. Since this section imposes a

con- structive penal liability, it must be strictly

construed as it seeks to punish members of an

unlawful assembly for the offence or offences

committed by their associate or associ- ates in

carrying out the common object of the assembly.

What is important in each case is to find out if the

offence was committed to accomplish the common

object of the assembly or was one which the

5 (2020) 7 SCC 722

6 (1981) 2 SCC 755 2022:CGHC:24539-DB

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members knew to be likely to be committed. There

must be a nexus between the common object and the

offence committed and if it is found that the same

was committed to accomplish the common object

every member of the assembly will become liable for

the same. Therefore, any offence committed by a

member of an unlawful assembly in prosecution of

anyone or more of the five objects mentioned in

Section 141 will render his companies constituting

the unlawful assembly liable for that offence with the

aid of Section 149, I.P.C.”

27.The aforesaid principle of law laid down by their Lordships

of Supreme Court in the matter of Allauddin Mian v. State

of Bihar

7

has been followed in the matter of Kuldip Yadav

and others v. State of Bihar

8

.

28.In the matter of Vijay Pandurang Thakre and others v.

State of Maharashtra

9

the Supreme Court has reiterated

the expression “in prosecution of the common object”

occurring in Section 149 IPC, postulates that it must be one

which has been done with a view to accomplish the common

object attributed to the members of the unlawful assembly.

Their Lordships of Supreme Court further held that this

expression is to be strictly construed as equivalent to in

order to attain common object. It must be immediately

connected with common object by virtue of nature of object

and held in Para-17 as under:

“17.In the facts of the present case, we find that

common object of the assembly, even if it is

presumed that there was an unlawful assembly,

has not been proved. The expression 'in prosecution

of the common object' occurring in this Section

7 (1981) 2 SCC 755

8 (2011) 5 SCC 324

9 (2017) 4 SCC 377 2022:CGHC:24539-DB

Neutral Citation

20

postulates that the act must be one which have

been done with a view to accomplish the common

object attributed to the members of the unlawful

assembly. This expression is to be strictly construed

as equivalent to in order to attain common object. It

must be immediately connected with common

object by virtue of nature of object. In the instant

case, even the evidence is not laid on this aspect. As

pointed out above, the courts below were influenced

by the fact that one of the injuries on the person of

Ashok was on his head which became the cause of

death and from this, common object is inferred.”

29.Apart from the above, Section 149 creates a specific offence.

So, there should be a clear finding as to what was the object

of the unlawful assembly and if so whether the object was

unlawful, that is, to commit murder, grievous hurt or

simple hurt (See: Bhudeo Mandal vs. State of Bihar

10

). It

is now well settled law that whenever a Court convicts any

person for an offence with the aid of section 149 of IPC, a

clear finding regarding a common object of the unlawful

assembly must be given and the evidence discussed must

show not only the nature of the common object but also

that the object was unlawful. (See: Irengbam Labej Singh

vs. State of Manipur

11

).

30.The aforesaid principle laid down has been followed by the

Supreme Court in the matter of Kuldip Yadav (supra) in

following words:

“36.….. The above provision makes it clear that

before convicting accused with the aid of Section

149 IPC, the Court must give clear finding

regarding nature of common object and that the

object was unlawful. In the absence of such finding

as also any overt act on the part of the accused

10 (1981) 2 SCC 755

11 1993 Suppl. (3) SCC 653 2022:CGHC:24539-DB

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21

persons, mere fact that they were armed would not

be sufficient to prove common object. Section 149

creates a specific offence and deals with

punishment of that offence. Whenever the court

convicts any person or persons of an offence with

the aid of Section 149, a clear finding regarding the

common object of the assembly must be given and

the evidence discussed must show not only the

nature of the common object but also that the

object was unlawful. Before recording a conviction

under Section 149 IPC, essential ingredients of

Section 141 IPC must be established. The above

principles have been reiterated in Bhudeo Mandal

and Others vs. State of Bihar (1981) 2 SCC 755.

**** **** ****

39.It is not the intention of the legislature in

enacting Section 149 to render every member of

unlawful assembly liable to punishment for every

offence committed by one or more of its members.

In order to attract Section 149, it must be shown

that the incriminating act was done to accomplish

the common object of unlawful assembly and it

must be within the knowledge of other members as

one likely to be committed in prosecution of the

common object. If the members of the assembly

knew or were aware of the likelihood of a particular

offence being committed in prosecution of the

common object, they would be liable for the same

under Section 149 IPC.”

31.The Supreme Court in the matter of Sikhar Behera and

other vs. State of Orissa

12

while deciding the question of

common object, their Lordships have held that the nature of

participation, the weapon used and the injuries caused

would be relevant to infer the nature of common object.

32.Reverting to the facts of the present case in light of the

aforesaid principles of law laid down by their Lordships of

the Supreme Court, it is quite vivid that in order to invoke

Section 149 of IPC, it is required to consider whether the

12 1994 Supp (1) SCC 493 2022:CGHC:24539-DB

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22

appellants/accused persons (A-1 to A-8) had constituted

unlawful assembly in terms of Section 141 of IPC and they

had the common object of causing hurt to the deceased and

the act of the appellants/accused persons (A-1 to A-8) was

done to accomplish the said common object of the unlawful

assembly and it was within their knowledge that the offence

is likely to be committed in prosecution of their said

common object and in furtherance thereof, they committed

the murder of deceased Motilal Kushwaha and injured

Hemlal Sahu (P.W.-7), Sohan (P.W.-10) and Jaikaran (P.W.-

11). Admittedly, charges were framed by the trial Court

against the appellants/accused persons for offences

punishable under Sections 148, 302, 307, 353, 332/149 of

IPC and the trial Court, after appreciating the oral and

documentary evidence on record, recorded an affirmative

finding with regard to the constitution of unlawful assembly

by the appellants/accused persons (A-1 to A-8) and thereby

committing the murder of the deceased in furtherance of

their common object and convicted them for offence

punishable under Section 302 of IPC with the aid of Section

149 of IPC.

33.The first and foremost argument raised by learned counsel

for the appellants is that prosecution has not been able to

prove the presence of appellants/accused persons namely

Shivlal Gond (A-4), Shyam Painkra (A-5), Ramkumar

Painkra (A-6), Baldev (A-7) and Dhanushdhari (A-8) on the 2022:CGHC:24539-DB

Neutral Citation

23

place of incident on the date and time of the offence as they

have neither been named in the first information report (Ex.

P/26) lodged by Hemlal Sahu (P.W.-7) nor in the merg

intimation (Ex. P/27) and as such, the fact of constitution

of unlawful assembly in terms of Section 141 of IPC has

also not been proved beyond reasonable doubt. Both the

first information report as well as merg intimation have

been registered against Kamleshwar Painkra (A-1),

Kripashankar Painkra (A-2) , Jagendra (A-3) and 8-10 other

persons. Moreover, the three injured eye-witnesses namely

Hemlal Sahu (P.W.-7), Sohan (P.W.-10) and Jaikaran (P.W.-

11) have not named the appellants/accused persons (A-4 to

A-8) in their statements under Section 161 of CrPC and

they have only stated that after enquiry, they came to know

about the involvement of appellants/accused persons (A-4

to A-8) in the offence.

34.In order to run forth their plea, the first ground taken by

learned counsel for the appellants is that the incident

happened in the Chitkabahra forest range in between 11PM

to 12 AM and there was neither any natural light nor any

source of electricity available in the forest, as such, Hemlal

Sahu (P.W.-7), Sohan (P.W.-10) and Jaikaran (P.W.-11)

could not have identified the appellants/accused persons in

darkness. At this stage, it would be relevant to notice the

statements of these three injured eye-witnesses one-by-one.

2022:CGHC:24539-DB

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24

35.Hemlal Sahu (P.W.-7) is one of the witnesses who is said to

have seen the incident and who has lodged first information

report (Ex. P/26) as well as registered merg intimation (Ex.

P/27) at the Police Station. In his statement before the

Court, Hemlal Sahu (P.W.-7) has admitted that on account

of darkness, he could not see the registration number of the

tractor from which wood was unloaded by the

appellants/accused persons. In his statement under

Section 161 of CrPC (Ex. D/3), he has stated that at the

time of lodging first information report, he did not know

about the identity of the other accused persons and when

the dead body of Motilal Kushwaha could not be found, he

again went in the forest and thereafter, he came to know

that appellants/accused persons (A-4 to A-8) were also

involved in the commission of offence along with

appellants/accused persons (A-1 to A-3) and that is the

reason why, he did not name the appellants/accused

persons (A-4 to A-8) in the first information report (Ex.

P/26) or in the merg intimation (Ex. P/27).

36.Similarly, Sohan (P.W.-10), the next eye-witness, in his

statement under Section 161 of CrPC (Ex. D/8), has

nowhere stated about the source of light in the place of the

incident but thereafter, in his statement before the Court,

he has stated that he along with Hemlal Sahu (P.W.-7),

Jaikaran (P.W.-11) and deceased Motilal Kushwaha reached

the spot after seeing the light coming from the headlights of 2022:CGHC:24539-DB

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25

the tractor and he has further stated that they were in

possession of torch but he has failed to explain why he

omitted the said fact in his statement under Section 161 of

CrPC.

37.The third and last eye-witness Jaikaran (P.W.-11) has also

not stated anything about the source of light available in

the spot either by the headlights of the tractor or by the

torch. In paragraph 3 of his statement, he has clearly

admitted that when 10-12 came along with Kamleshwar

Painkra (A-1) armed with clubs and when they started

assaulting the deceased, he ran away. Thereafter, he has

admitted that 3 -4 people came towards him and assaulted

him out of which he could only identify Shivlal Gond (A-3)

and Jagendra (A-4) and he could not identify the rest of the

persons on account of darkness. In his cross-examination,

in paragraph 5, he has clearly admitted that when he along

with Hemlal Sahu (P.W.-7), Sohan (P.W.-10) and deceased

Motilal Kushwaha reached the spot, it was late night and

dark all around. He has also stated that at that time, it was

also raining lightly and the house of Kamleshwar Painkra

(A-1) was near about 200 meters away from the spot and he

has further admitted that it would be difficult to identify

any person from a distance of 200 meters in late night

darkness. He has then stated that when he noticed 10-15

people coming in a group, he absconded from the spot and

reached the place where his motorcycle was parked which is 2022:CGHC:24539-DB

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26

also near about 200 meters away from the spot and

thereafter, he does not know as to what happened on the

spot of the incident.

38.As such, from the testimonies of the aforesaid three injured

eye-witnesses namely Hemlal Sahu (P.W.-7), Sohan (P.W.-

10) and Jaikaran (P.W.-11), following facts have been

established :-

i) that, the place of offence is courtyard of Kamleshwar

Painkra (A-1) which is near about 200 meters away from his

house and that too, in the forest range Chitkabahra.

ii) that, the incident took place between 11 PM to 12 AM

and at that time, it was raining.

iii) that, the three eye-witnesses have claimed to have seen

the appellants/accused persons (A-4 to A-8) comitting the

offence in question, however, they have not stated about the

source of light in the spot rather they have clearly

mentioned that it was late night and there was darkness.

iv) that, in the first information report (Ex. P/26) lodged by

Hemlal Sahu (P.W.-7) he had only named Kamleshwar

Painkra (A-1), Kripashankar Painkra (A-2) and Jagendra (A-

3) as the assailants and thereafter, in his statement under

Section 161 of CrPC (Ex. D/3), he has admitted that he

could not identify other persons at that time and later on

after enquiry, he got to know that appellants/accused

persons (A-4 to A-8) were also involved in the crime in

question. 2022:CGHC:24539-DB

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27

39.Moreover, it is also relevant to notice that the spot map

prepared by the Investigating Officer vide Ex. P/28 as well

as the nazri naksha prepared by the Patwari vide Ex. P/40

do not indicate anything about the source of light present in

the spot at the time of the incident and the first information

report (Ex. P/26) is also particularly silent in this regard. As

such, considering the aforesaid evidence available on

record, it is established that there was insufficient light on

the spot at the time of the offence.

40.It is well-settled law that identification in insufficient light is

also possible if the culprit was known to the witness

beforehand. It is also well-settled that even if there is

insufficient light, a witness can identify a person, with

whom he is fairly acquainted or is in intimate terms, from

his voice, gait, features, etc. (see: paragraph 11 of Dalbir

Singh v. State of Haryana

13

)

41.In the matter of Hindu Singh v. State

14

, it has been held by

the Rajasthan High Court that where the dacoity takes

place at night and there is no sufficient light in which the

accused can be identified and the accused is alleged to have

been moving to and fro and not standing at any fixed place

near the identifying witness it is very possible that the

witness might make a mistake about the identity of the

accused. It has further been held that it would be very risky

to base conviction only on the evidence of identification in

13 (2008) 11 SCC 425

14 1952 Raj LW 130 2022:CGHC:24539-DB

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28

such a case.

42.Dealing with torch light, the Allahabad High Court in the

matter of Salik Ram v. State of U.P.

15

has held that it must

not be probable for a witness to see the accused from a

distance of 50 paces particularly when they were in a

moving state.

43.Reverting to the facts of the present case in light of the

aforesaid legal position, particularly, the principle of law

laid down by their Lordships of the Supreme Court in

Dalbir Singh (supra), it is quite vivid from a careful perusal

of the entire evidence available on record that the incident

took place in the dense forest of Chitkabahra forest range in

between 11PM to 12 AM and there was darkness all around

and it was also raining and no particular source of light

which was available at that time has been established either

in the first information report (Ex. P/26) or in the

statements of eye-witnesses Hemlal Sahu (P.W.-7), Sohan

(P.W.-10) and Jaikaran (P.W.-11) or in the spot map

prepared by the Investigating Officer (Ex. P/28) or in the

nazri naksha (Ex. P/40) prepared by the Patwari. In the first

information report (Ex. P/26), which has been lodged by

Hemlal Sahu (P.W.-7), he has only named

appellants/accused persons (A-1 to A-3) and not named the

appellants/accused persons (A-4 to A-8) and explaining

15 1976 ACJ (All) 72 2022:CGHC:24539-DB

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29

about the same, in his statement under Section 161 of CrPC

(Ex. D/3), he has stated that at the time, he could not

identify the other accused persons apart from A-1 to A-3

and later on, after enquiry, he came to know that

appellants/accused persons (A-4 to A-8) were also involved

in the commission of the offence. As such, we are of the

considered opinion that the three eye-witnesses Hemlal

Sahu (P.W.-7), Sohan (P.W.-10) and Jaikaran (P.W.-11) have

failed to identify the appellants/accused persons (A-4 to A-

8) on account of darkness in the spot of the incident and

moreover, it is also not the case of the prosecution that even

though there was insufficient light on the spot, the said

three witnesses were already acquainted with the voices,

gaits and features of appellants/accused persons (A-4 to A-

8) so as to identify them without a doubt/mistake.

44.In such a circumstance, where the said three eye-witnesses

were unable to identify the rest of the accused persons

apart from appellants/accused persons (A-1 to A-3),

prosecution was obliged to conduct test identification

parade which is admissible in evidence under Section 9 of

the Indian Evidence Act, 1872, which provides as under :-

“9. Facts necessary to explain or introduce

relevant facts. - Facts necessary to explain or

introduce a fact in issue or relevant fact, or which

support or rebut an inference suggested by a fact in

issue or relevant fact, or which establish the identity

of any thing or person whose identity is relevant, or

fix the time or place at which any fact in issue or

relevant fact happened, or which show the relation

of parties by whom any such fact was transacted, 2022:CGHC:24539-DB

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30

are relevant in so far as they are necessary for that

purpose.”

45.The Supreme Court in the matter of Jadunath Singh and

another v. The State of U.P.

16

has held that failure to hold

test identification of accused is not fatal in all cases and if

the accused is well known to prosecution witnesses it would

be waste of time to put him up for identification. If,

however, there is any doubt in the matter the prosecution

should hold identification parade. Paragraphs 17, 18 and

21 of the report state as under :-

“17. In Kanta Prasad v. Delhi Administration, 1958

SCR 1218 at p. 1221 : (AIR 1958 SC 350 at p. 351),

a point was made regarding non-holding of test

identification parade by the police and this Court

observed :

“As for the test identification parade, it is true

that no test identification parade was held. The

appellants were known to the police officials

who had deposed against the appellants and the

only persons who did not know them before

were the persons who gave evidence of

association, to which the High Court did not

attach much importance. It would no doubt

have been prudent to hold a test identification

parade with respect to witnesses who did not

know the accused before the occurrence, but

failure to hold such a parade would not make

inadmissible the evidence of identification in

court. The weight to be attached to such

identification would be a matter for the courts

of fact and it is not for this court to reassess the

evidence unless exceptional grounds were

established necessitating such a course.”

18. It seems to us that it has been clearly laid down

by this Court in Criminal Appeal No. 92 of 1956,

D/-15-1-1957 (SC) that the absence of test

identification in all cases is not fatal and if the

accused person is well known by sight it would be

waste of time to put him up for identification. Of

16 AIR 1971 SC 363 2022:CGHC:24539-DB

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31

course if the prosecution fails to hold an

identification on the plea that the witnesses already

knew the accused well and it transpires in the

course of the trial that the witnesses did not know

the accused previously, the prosecution would run

the risk of losing its case. It seems to us that if there

is any doubt in the matter the prosecution should

hold an identification parade specially if an accused

says that the alleged eye-witnesses did not know

him previously. It may be that there is no express

provision in the Code of Criminal Procedure

enabling an accused to insist on an identification

parade but if the accused does make an application

and that application is turned down and it

transpires during the course of the trial that the

witnesses did not know the accused previously, as

pointed out above the prosecution will, unless there

is some other evidence, run the risk of losing the

case on this point.

21. It is stated in Phipson on the Law of Evidence,

9

th

Ed., p. 415, as follows:

“In criminal cases it is improper to identify the

accused only when in the dock; the police

should place him, beforehand, with others, and

ask the witness to pick him out. Nor should the

witness be guided in any way, nor asked “ Is

that the man”?”

46.Likewise, in the matter of Dana Yadav alias Dahu and

others v. State of Bihar

17

, their Lordships of the Supreme

Court considered the issue threadbare and laid down the

law in this regard in paragraph 38 as under :-

“38. In view of the law analysed above, we conclude

thus:

(a) If an accused is well known to the prosecution

witnesses from before, no test identification parade

is called for and it would be meaningless and sheer

waste of public time to hold the same.

(b) In cases where according to the prosecution the

accused is known to the prosecution witnesses from

before, but the said fact is denied by him and he

challenges his identity by the prosecution witnesses

by filing a petition for holding test identification

parade, a court while dealing with such a prayer,

17 (2002) 7 SCC 295 2022:CGHC:24539-DB

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32

should consider without holding a mini-inquiry as

to whether the denial is bona fide or a mere

pretence an/or made with an ulterior motive to

delay the investigation, question for grant of such a

prayer would not arise. Unjustified grant or refusal

of such a prayer would not necessarily ensure to the

benefit of either party nor the same would be

detrimental to their interest. In case prayer is

granted and test identification parade is held in

which a witness fails to identify the accused, his so-

called claim that the accused was known to him

from before and the evidence of identification in

court should not be accepted. But in case either

prayer is not granted or granted but no test

identification held, the same ipso facto cannot be a

ground for throwing out evidence of identification of

an accused in court when evidence of the witness,

on the question of identity of the accused from

before, is found to be credible. The main thrust

should be on answer to the question as to whether

evidence of a witness in court to the identity of the

accused from before is trustworthy or not. In case

the answer is in the affirmative, the fact that prayer

for holding test identification parade was rejected or

although granted, but no such parade was held,

would not in any manner affect the evidence

adduced in court in relation to identity of the

accused. But if, however, such an evidence is not

free from doubt, the same may be relevant material

while appreciating the evidence of identification

adduced in court.

(c) Evidence of identification of an accused in court

by a witness is substantive evidence whereas that of

identification in test identification parade is, though

a primary evidence but not substantive one, and the

same can be used only to corroborate identification

of the accused by a witness in court.

(d) Identification parades are held during the course

of investigation ordinarily at the instance of

investigating agencies and should be held with

reasonable dispatch for the purpose of enabling the

witnesses to identify either the properties which are

the subject-matter of alleged offence or the accused

persons involved in the offence so as to provide it

with materials to assure itself if the investigation is

proceeding on right lines and the persons whom it

suspects to have committed the offence were the

real culprits.

(e) Failure to hold test identification parade does not

make the evidence of identification in court

inadmissible, rather the same is very much 2022:CGHC:24539-DB

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33

admissible in law, but ordinarily identification of an

accused by a witness for the first time in court

should not form the basis of conviction, the same

being from its very nature inherently of a weak

character unless it is corroborated by his previous

identification in the test identification parade or any

other evidence. The previous identification in the

test identification parade is a check value to the

evidence of identification in court of an accused by a

witness and the same is a rule of prudence and not

law.

(f) In exceptional circumstances only, as discussed

above, evidence of identification for the first time in

court, without the same being corroborated by

previous identification in the test identification

parade or any other evidence, can form the basis of

conviction.

(g) Ordinarily, if an accused is not named in the first

information report, his identification by witnesses in

court, should not be relied upon, especially when

they did not disclose name of the accused before the

police, but to this general rule there may be

exceptions as enumerated above.”

47.Highlighting the object of test identification parade, their

Lordships of the Supreme Court in the matter of Mulla and

another v. State of Uttar Pradesh

18

have held as under :-

“55. The identification parades are not primarily

meant for the court. They are meant for

investigation purposes. The object of conducting a

test identification parade is twofold. First is to

enable the witnesses to satisfy themselves that

the accused whom they suspect is really the one

who was seen by them in connection with the

commission of the crime. Second is to satisfy the

investigating authorities that the suspect is the

real person whom the witnesses had seen in

connection with the said occurrence. Therefore,

the following principles regarding identification

parade emerge:

(1) an identification parade ideally must be

conducted as soon as possible to avoid any

mistake on the part of witnesses;

(2) this condition can be revoked if proper

explanation justifying the delay is provided; and

(3) the authorities must make sure that the delay

18 (2010) 3 SCC 508 2022:CGHC:24539-DB

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34

does not result in exposure of the accused which

may lead to mistakes on the part of the

witnesses.”

48.Applying the principles of law laid down by their Lordships

of the Supreme Court in Jadunath Singh (supra), Dana

Yadav (supra) and Mulla (supra) to the facts of the present

case, it is quite vivid that as we have already held that the

three eye-witnesses namely Hemlal Sahu (P.W.-7), Sohan

(P.W.-10) and Jaikaran (P.W.-11) could not see and identify

the appellants/accused persons (A-4 to A-8) on the spot as

they were not even known to these prosecution witnesses

and there is serious doubt about the involvement of

appellants/accused persons (A-4 to A-8) in the commission

of the crime in question, the prosecution should have held

test identification parade as laid down by the Supreme

Court in the aforesaid cases (supra). In absence of test

identification parade, merely on the basis of suspicion, it

would be really unsafe to convict the appellants/accused

persons (A-4 to A-8) for a serious offence under Section 302

of IPC with the aid of Section 149 of IPC.

Case of appellants/accused persons namely Shivlal

Gond (A-4), Shyam Painkra (A-5), Ramkumar Painkra (A-

6), Baldev (A-7) :-

49.After going through the entire evidence available on record

with utmost circumspection and after a thorough legal

analysis as stated herein-above, we are of the considered

opinion that the trial Court has legally erred in convicting 2022:CGHC:24539-DB

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35

the appellants/accused persons namely Shivlal Gond (A-4),

Shyam Painkra (A-5), Ramkumar Painkra (A-6), Baldev (A-7)

and Dhanushdhari (A-8) for the offence punishable under

Section 302/149 of IPC particularly when the prosecution

has failed to conduct test identification parade and prove

the involvement of these appellants/accused persons in the

crime in question beyond reasonable doubt. As such, we

hereby set aside the conviction recorded and sentence

awarded to these appellants/accused persons (A-4 to A-8)

for offence punishable under Section 302/149 of IPC.

Case of appellant/accused Dhanushdhari (A-8) :-

50.So far as the case of appellant/accused Dhanushdhari (A-8)

is concerned, though the eye-witnesses Hemlal Sahu (P.W.-

7), Sohan (P.W.-10) and Jaikaran (P.W.-11) have failed to

identify him, but since pursuant to his memorandum

statement (Ex. P/15), wooden stick as well as blood stained

shirt has been seized from him vide Ex. P/16 and as per the

FSL report (Ex. P/80), human blood has been found on it, it

has been contended by learned State counsel that he has

rightly been implicated for offence punishable under Section

302 with the aid of Section 149 of IPC.

51.It is appropriate to mention here that in cases of

circumstantial evidence, the five golden principles for

proving a case based on circumstantial evidence must be

proved by the prosecution and since the appellant/accused

Dhanushdhari (A-8) could not be identified by the eye- 2022:CGHC:24539-DB

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36

witnesses, therefore, merely on the basis of only one of the

circumstances found proved against him, he cannot be

implicated for offence punishable under Section 302 read

with Section 149 of IPC. Accordingly, his conviction and

sentence for offence punishable under Section 302/149 of

IPC is also set aside.

52.Since we have already held that prosecution has failed to

prove that appellants/accused persons constituted an

unlawful assembly and in furtherance of their common

intention, they committed the murder of deceased Motilal

Kushwaha and since we have already acquitted the

appellants/accused persons for offence punishable under

Section 302 read with Section 149 of IPC, as such, rest of

the three appellants/accused persons namely Kamleshwar

Painkra (A-1), Kripashankar Painkra (A-2) and Jagendra (A-

3) cannot be convicted with the aid of Section 149 of IPC.

However, they can be convicted with the aid of Section 34 of

IPC or for offence punishable under Section 302 of IPC

simpliciter. Considering the facts of the case, we will first

consider the case of Jagendra (A-3).

Case of Jagendra (A-3) :-

53.Pursuant to the memorandum statement of Jagendra (A-3)

vide Ex. P/5, tangi and blood stained banyan was seized

from his possession vide Ex.P/6. The said seized articles

were sent for chemical examination and as per the FSL

report (Ex. P/80), there was no blood found on tangi (Article 2022:CGHC:24539-DB

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37

C) whereas blood was found in the banyan (Article D) and

as per the Serological report (Ex. P/83), human blood of A

blood group was found on the said banyan.

54.A careful perusal of the statement of Dr. Rajesh Shreshth

(P.W.-19) as well as the postmortem report (Ex. P/46) would

show that there was a single injury on the body of the

deceased and he had suffered comminuted fracture on his

upper temporal bone near right temple due to which he had

suffered subarachnoid hemorrhage and succumbed to

death. As stated by Dr. Rajesh Shreshth (P.W.-19) in his

statement before the Court, the said injury could have been

caused by a hard and blunt object. Thus, as noticed herein,

no incised would has been found on the body of the

deceased that could have been caused by the seized tangi

and moreover, there is no such evidence available on record

that appellant/accused Jagendra (A-3) inflicted the injury

upon the deceased by the hard and blunt side of the tangi

as no blood has either been found on it as per the FSL

report. In that view of the matter, we extend the benefit of

doubt to the appellant/accused Jagendra (A-3) and hereby

set aside his conviction for offence punishable under

Section 302/149 of IPC.

Cases of Kamleshwar Painkra (A-1) and Kripashankar

Painkra (A-2) :-

55.Admittedly, pursuant to the memorandum statement of

Kamleshwar Painkra (A-1) vide Ex. P/1, recovery of tangi 2022:CGHC:24539-DB

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has been made from him vide Ex. P/2 and on the basis of

the memorandum statement of Kripashankar Painkra (A-2)

vide Ex. P/3, laathi has been seized from him vide Ex. P/4

but, for the reasons best known to the prosecution, both of

these seized articles were not sent for chemical examination

even though other articles were sent for the same and FSL

report is available on record. However, considering the

testimonies of eye-witnesses Hemlal Sahu (P.W.-7), Sohan

(P.W.-10) and Jaikaran (P.W.-11) and particularly

considering that both of these appellants/accused persons

have been clearly named in the first information report (Ex.

P/26) and furthermore considering that motive of offence

has also been proved by the prosecution beyond reasonable

doubt as the both of these appellants/accused persons were

unloading stolen wood from the forest and when the

deceased as well as the eye-witnesses tried to stop them,

the appellants/accused persons assaulted them due to

which deceased Motilal Kushwaha died on the spot and the

three eye-witnesses got injured, we are of the considered

opinion that appellants/accused persons Kamleshwar

Painkra (A-1) and Kripashankar Painkra (A-2) are the

perpetrators of the crime in question.

56.The question that arises herein is whether the trial Court is

justified in convicting these two appellants/accused persons

namely Kamleshwar Painkra (A-1) and Kripashankar

Painkra (A-2) for offence punishable under Section 302 of 2022:CGHC:24539-DB

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IPC or their case would fall within Exception 4 to Section

300 of IPC and as such, their conviction ought to be altered

to Section 304 Part II of IPC, as contended by learned

counsel for the appellants ?

57.At this stage, it would be relevant to notice Exception 4 to

Section 300 of IPC, which provides as under :-

“Exception 4. - Culpable homicide is not murder if

it is committed without premeditation in a sudden

fight in the heat of passion upon a sudden quarrel

and without the offender having taken undue

advantage or acted in a cruel or unusual manner.”

58.Thus, to invoke Exception 4 to Section 300 of IPC, the

following four ingredients must be fulfilled :-

a) that, it was a sudden fight;

(b) that, there was no premeditation on the part of the

assailant;

(c) that, the act was done in a heat of passion; and

(d) that, the assailant did not take any undue advantage or

did not act in a cruel or unusual manner.

59.In order to consider whether the case of the

appellants/accused persons namely Kamleshwar Painkra

(A-1) and Kripashankar Painkra (A-2) is covered with

Exception 4 to Section 300 of IPC, it would be appropriate

to notice the decision rendered by the Supreme Court in the

matter of Sukhbir Singh v. State of Haryana

19

wherein it

has been observed as under :-

19 (2002) 3 SCC 327 2022:CGHC:24539-DB

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“21. Keeping in view the facts and circumstances of

the case, we are of the opinion that in the absence

of the existence of common object Sukhir Singh is

proved to have committed the offence of culpable

homicide without premeditation in a sudden fight in

the heat of passion upon a sudden quarrel and did

not act in a cruel or unusual manner and his case

is covered by Exception 4 of Section 300 IPC which

is punishable under Section 304 (Part I) IPC. The

finding of the courts below holding the aforesaid

appellant guilty of offence of murder punishable

under Section 302 IPC is set aside and he is held

guilty for the commission of offence of culpable

homicide not amounting to murder punishable

under Section 304 (Part I) IPC and sentenced to

undergo rigorous imprisonment for 10 years and to

pay a fine of Rs. 5000. In default of payment of fine,

he shall undergo further rigorous imprisonment for

one year.”

60.In the instant case, admittedly, deceased Motilal Kushwaha,

who was the Circle Incharge of the Chitkabahra Forest

Range where the incident took place, got the information

that wood was being stolen from the said forest and

thereafter, he informed about the same to Hemlal Sahu and

asked him to go to the place of the incident with Barrier

Guard Jaikaran (P.W.-11). Hemlal Sahu (P.W.-7) and

Jaikaran (P.W.-11) heard the sound of wood being unloaded

from the tractor and immediately informed the deceased

about the same pursuant to which deceased Motilal

Kushwaha also reached the spot along with Beat Guard

Sohan (P.W.-10) and when they all reached the spot which

was near about 200 meters away from the house of

appellant/accused Kamleshwar Painkra (A-1), they found

that he along with appellant/accused Kripashankar Painkra

(A-2) was unloading wood from the tractor. Thereafter, when 2022:CGHC:24539-DB

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deceased Motilal Kushwaha asked the appellants/accused

persons to reload the illegal wood on the tractor and send it

to the Range Office, Kamleshwar Painkra (A-1) said that he

also works in the Forest Department and he would see who

takes the wood to the Range Office. Thereafter, deceased

informed about this to the Ranger and started coming back

saying that action will be taken against the

appellants/accused persons on the next morning. At that

time, the appellants/accused persons Kamleshwar Painkra

(A-1) and Kripashankar Painkra (A-2) along with 8-10 other

persons (who have not been identified) assaulted the

deceased and the three injured eye-witnesses namely

Hemlal Sahu (P.W.-7), Sohan (P.W.-10) and Jaikaran (P.W.-

11) due to which deceased Motilal Kushwaha suffered

grievous injuries and died on the spot whereas the other

three witnesses got injured and absconded from the spot.

Thus, after taking account the facts and circumstances of

the case and after going through the entire evidence

available on record, it is quite vivid that all the four

ingredients of Exception 4 to Section 300 of IPC are fulfilled

in the instant case as there was no premeditation on the

part of the appellants/accused persons to assault the

deceased and cause his death and in sudden quarrel that

took place between the appellants and the deceased with

regard to stolen wood from the forest, out of sudden anger

and in heat of passion, the appellants/accused persons 2022:CGHC:24539-DB

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assaulted the deceased and inflicted injury on his head due

to which he succumbed to death. Moreover, as per the

postmortem report (Ex. P/26), it is evident that the

deceased suffered a single injury on his head i.e.

comminuted fracture on his upper temporal bone near right

temple due to which he had suffered subarachnoid

hemorrhage and succumbed to death which could have

been caused by a hard and blunt object as opined by Dr.

Rajesh Shreshth (P.W.-19) which goes to show that the

appellants/accused persons did not take any undue

advantage and did not act in cruel manner.

61.Now, what has to be considered is, whether the

appellants/accused persons namely Kamleshwar Painkra

(A-1) and Kripashankar Painkra (A-2) would be convicted for

Section 304 Part I or Part II of IPC, as their case is covered

with Exception 4 to Section 300 of IPC ?

62.In the matter of Gurmukh Singh v. State of Haryana

20

,

Their Lordships of the Supreme Court have laid down

certain factors which are to be taken into consideration

before awarding appropriate sentence to the accused which

state as under :-

“23. These are some factors which are required to be

taken into consideration before awarding appropriate

sentence to the accused. These factors are only

illustrative in character and not exhaustive. Each

case has to be seen for its special perspective. The

relevant factors are as under :

(a) Motive or previous enmity;

20 (2009) 15 SCC 635 2022:CGHC:24539-DB

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(b) Whether the incident had taken place on the spur

of the moment;

(c) The intention/knowledge of the accused while

inflicting the blow or injury;

(d) Whether the death ensued instantaneously or the

victim died after several days;

(e) The gravity, dimension and nature of injury;

(f) The age and general health condition of the

accused;

(g) Whether the injury was caused with

premeditation in a sudden fight;

(h) The nature and size of weapon used for inflicting

the injury and the force with which the blow was

inflicted;

(i) The criminal background and adverse history of

the accused;

(j) Whether the injury inflicted was not sufficient in

the ordinary course of nature death but the death

was because of shock;

(k) Number of other criminal cases pending against

the accused;

(l) Incident occurred within the family members or

close relations;

(m) The conduct and behaviour of the accused after

the incident.

Whether the accused had taken the injured/the

deceased to the hospital immediately to ensure that

he/she gets proper medical treatment ?

These are some of the factors which can be taken

into consideration while granting an appropriate

sentence to the accused.

24. The list of circumstances enumerated above is

only illustrative and not exhaustive. In our

considered view, proper and appropriate sentence to

the accused is the bounded obligation and duty of

the court. The endeavour of the court must be to

ensure that the accused receives appropriate

sentence, in other words, sentence should be

according to the gravity of the offence. These are

some of the relevant factors which are required to be

kept in view while convicting and sentencing the

accused.” 2022:CGHC:24539-DB

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63.Likewise, in the matter of State v. Sanjeev Nanda

21

, their

Lordships of the Supreme Court have held that once

knowledge that it is likely to cause death is established but

without any intention to cause death, then jail sentence

may be for a term which may extend to 10 years or with fine

or with both. It is further been held that to make out an

offence punishable under Section 304 Part II of the IPC, the

prosecution has to prove the death of the person in question

and such death was caused by the act of the accused and

that he knew that such act of his is likely to cause death.

64.Further, the Supreme Court in the matter of Arjun v. State

of Chhattisgarh

22

has elaborately dealt with the issue and

observed in paragraphs 20 and 21, which reads as under :-

“20. To invoke this Exception 4, the requirements that

are to be fulfilled have been laid down by this Court in

Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217

: 1989 SCC (Cri) 348], it has been explained as

under :(SCC p. 220, para 7)

“7. To invoke this exception four requirements

must be satisfied, namely, (I) it was a sudden fight;

(ii) there was no premeditation; (iii) the act was

done in a heat of passion; and (iv) the assailant had

not taken any undue advantage or acted in a cruel

manner. The cause of the quarrel is not relevant

nor its I relevant who offered the provocation or

started the assault. The number of wounds caused

during the occurrence is not a decisive factor but

what is important is that the occurrence must have

been sudden and unpremeditated and the offender

must have acted in a fit of anger. Of course, the

offender must not have taken any undue advantage

or acted in a cruel manner. Where, on a sudden

quarrel, a person in the heat of the moment picks

up a weapon which is handy and causes injuries,

one of which proves fatal, he would be entitled to

21 (2012) 8 SCC 450

22 (2017) 3 SCC 247 2022:CGHC:24539-DB

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the benefit of this exception provided he has not

acted cruelly.”

21. Further in Arumugam v. State [(2008) 15 SCC 590

: (2009) 3 SCC (Cri) 1130], in support of the

proposition of law that under what circumstances

Exception 4 to Section 300 IPC can be invoked if

death is caused, it has been explained as under :

(SCC p. 596, para 9)

“9. …. '18. The help of exception 4 can be invoked

if death is caused (a) without premeditation; (b) in

a sudden fight; (c) without the offender's having

taken undue advantage or acted in a cruel or

unusual manner; and (d) the fight must have been

with the person killed. To bring a case within

Exception 4 all the ingredients mentioned in it

must be found. It is to be noted that the “fight”

occurring in Exception 4 to Section 300 IPC is not

defined in the Penal Code, 1860. It takes two to

make a fight. Heat of passion requires that there

must be no time for the passions to cool down and

in this case, the parties had worked themselves

into a fury on account of the verbal altercation in

the beginning. A fight is a combat between two or

more persons whether with or without weapons. It

is not possible to enunciate any general rule as to

what shall be deemed to be a sudden quarrel. It is

a question of fact and whether a quarrel is sudden

or not must necessarily depend upon the proved

facts of each case. For the application of Exception

4, it is not sufficient to show that there was a

sudden quarrel and there was no premeditation. It

must further be shown that the offender has not

taken undue advantage or acted in cruel or

unusual manner. The expression “undue

advantage” as used in the provisions means

“unfair advantage”.

65.In the matter of Arjun (supra), the Supreme Court has held

that when and if there is intent and knowledge, the same

would be case of Section 304 Part-I IPC and if it is only a

case of knowledge and not the intention to cause murder

and bodily injury, then same would be a case of Section 304

Part-II IPC. 2022:CGHC:24539-DB

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66.Reverting to the facts of the present case in light of the

aforesaid principle of law laid down by their Lordships of

the Supreme Court in the matter of Arjun (supra), it is quite

vivid that as is evident from the entire evidence available on

record, the appellants/accused persons did not have any

intention to cause the death of the deceased and they

assaulted him in sudden fight and in heat of passion,

however, looking to the injury inflicted by them on the head

of the deceased, which is a vital part of the body, they must

have had the knowledge that their act would likely cause

the death of the deceased. As such, the conviction of both

the appellants/accused persons namely Kamleshwar

Painkra (A-1) and Kripashankar Painkra (A-2) for offence

punishable under Section 302/149 of IPC and the sentence

awarded accordingly is hereby set aside and they are rather

convicted for offence punishable under Section 304 Part II

of IPC with the aid of Section 34 of IPC and since they are in

jail since 12/06/2015 i.e. more than 7 years, they are

sentenced to the period already undergone by them.

Conclusion :-

67.The conviction recorded and sentence awarded by the

impugned judgment against all the appellants/accused

persons for offences punishable under Sections 148 and

302/149 of IPC is hereby set aside. However, their

conviction for offence punishable under Section 353 of IPC

is well-merited and it is hereby maintained. 2022:CGHC:24539-DB

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Appellants/accused persons namely Kamleshwar Painkra

(A-1) and Kripashankar Painkra (A-2) are convicted for

offence punishable under Section 304 Part II read with

Section 34 of IPC and are sentenced for the period already

undergone as stated above. However, their fine sentence

shall remain intact. All the appellants/accused persons be

released forthwith, if their detention is not required in any

other case.

68.Accordingly, both of these criminal appeals are allowed to

the extent indicated herein-above.

Sd/- Sd/-

(Sanjay K. Agrawal) (Deepak Kumar Tiwari)

Judge Judge

Harneet 2022:CGHC:24539-DB

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