STATE OF M.P.versusASHOK & OTHERS ETC.

                  '



                      [2015] 7 S.C.R. 1073


                    STATE OF M.P.                                 A
                          v.
                 ASHOK & OTHERS ETC.
         (Criminal Appeal Nos.2096-2098of2009)
                      JULY01,2015                                 B
             [PINAKI CHANDRA GHOSE AND
                 UDAY UMESH LALIT, JJ.]

     Penal Code, 1860: s. 302 rlw s. 149 - Murder -
Prosecution case that the victim-deceased was caught by           C
the accused and petrol poured over him and lit fire -
Deceased ran from the spot- Respondents surrounded him
and attacked him with sword and burning tyre - Trial court
convicted all the accused - High Court granted benefit of
                                                                  0
doubt to the respondents on the premise that they had
reached the spot after the commission of offence and as such
the charge of formation of unlawful assembly by them was
not established -Appeal against acquittal of respondents -
Held: Role cf respondents in the commission of crime was          E
clearly made out from the dying declaration as well as
testimony of the eye witness - The sequence of narration
certainly showed that they were waiting in ambush - It may
be that only two of them set the deceased afire but the others
definitely ensured by surrounding the deceased that he would      F
not be allowed to escape- It was a crime which was committed
by all of them guided by same purpose, acting in concert
achieving the result that was desired- The intent of the entire
assembly was clear, eloquently established by their
presence, preparedness and participation - The order of           G
acquittal is set aside and convict(on order by trial court is
restored -Appeal - State's appeal against acquittal.


                             1073                                 H
1074        SUPREME COURT REPORTS              [2015) 7 S.C.R.

 A        Allowing the appeals, the Court

       HELD: 1. Statement Ext. P-20 leading to the
   registration of crime as well as statement Ext. P-17
   recorded by the Executive Magistrate are dying
 B declarations by the victim-deceased. Both these
   statements are consistent and name the respondents
   and state the role played by them in surrounding the
   deceased and giving cries that he be beaten and should
   not be left. In the face of such assertions, it is impossible
 C to accept that these respondents arrived at the scene of
   occurrence after the crime was completed. Their role is
   that of participants in the crime who did not allow the
   deceased to escape by encircling him. The finding
   rendered by the High Court is against the record. [Para
 D 9][1081-A-C]

            2. Both the statements clearly referred to the
       presence of PW13. It was PW13 who immediately ran
       home and intimated the fact that the deceased was set
 E     afire, to the inmates of the house. Consequently PW4
       and PW15 arrived at the scene of occurrence. The
       deceased was then removed to the hospital. In his
       testimony PW13 stated that while the deceased was
       burning, respondent 'V' threw a burning tyre upon him
 F     and original accused threw a sword at him. The post
       mortem clearly showed an incised injury in the back
       suffered by the deceased, which completely supported
       such assertion. The presence of said PW13 was
       completely established. He was eye witness to the
 G     occurrence. In the light of the eye witness account and
       the post mortem report, it is quite clear that the
       respondents were present when the deceased was
       burning alive. The sequence of narration certainly
 H     showed that they were waiting in ambush. It may be that
       only two of them set the deceased afire but the others
        STATE OF M.P. v. ASHOK & OTHERS ETC.                  1075


definitely ensured by surrounding the deceased that he A
would not be allowed to escape. Further, throwing of
burning tyre and the sword would also indicate the
active role played by them. Even if one of them was ready
with a sword, that is clearly indicative of the level of
preparedness on their part and there is no reason how B
they could not be said to be members of unlawful
assembly. It was a crime which was committed by all of
them guided by same purpose, acting in concert
achieving the result that was desired. The intent of the
entire assembly was clear, eloquently established by C ·
their presence, preparedness and participation. [Paras
10, 11] [1081-0-H; 1082-A-C]
    CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
Nos. 2096-2098of2009.                               D

    From the Judgment and Order dated 11.01.2007 of the
High Court of Judicature of M. P. at Jabalpurin Criminal Appeal
Nos. 170/95, 841/95 and 369/96.
                                                                  E
    Vanshaja Shukla, Mishra Saurabh for the Appellant.

    Akshat Shrivastava, Sarabjit Dutta for the Respondents.

    The Judgment of the Court was delivered by
                                                             F
     UDAY UMESH LALIT, J. 1. These appe"als by special
leave challenge the Judgment and Order dated 11.01.2007
passed by the High Court of Judicature of Madhya Pradesh,
Jabalpur bench at Jabalpur in Criminal Appeals Nos. 170 of
1995, 841 of 1995 and 369 of 1996 by which respondents G
Ashok s/o Banshilal Vedehi, Raju @ Rajendra s/o Banshilal
Vedehi, Gullu@ Rajesh s/o Banshilal Ve.:Jehi, Gouri Shankar
s/o Banshilal Vedehi, Vidhna@ Ramdas s/o Lallulal Kewat,
Surendra s/o Harilal Vedehi were acquitted by the High Court
of all the charges leveled against them.                     H
1076        SUPREME COURT REPORTS                   [2015] 7 S.C.R.


 A         2. According to the prosecution one Tikaram son of Chote
      Lal Pandey after finishing his duty was returning home at 8:00
      p.m. on 11.04.1989. On the way he met his younger brother
      PW13 Sheetal Prasad. Both were coming on bicycles, PW13
     being 10-15 feet behind said Tikaram. When Tikaram reached
 B   Tilwaraghat he was stopped in front of the house of Hari Maharaj
     by Dibbu @ Devendra by catching his bicycle. Said Dibbu
     then poured petrol over him and Jittu@ Jitendra burnt him by
     igniting a match stick. Tikaram started burning and ran from
     the spot. He was surrounded by present respondents and two
C    others namely Harilal and Banshilal. All of them exhorted to
     beat him and to burn him and that he should not be allowed to
     run from the spot. Respondent Vidhna @ Ramdas threw a
     burning tyre upon him. While Tikaram was running helter-
D    skelter, Harilal threw a sword at him. Tikaram ran to the house
     of PW3 Vined and fell there. PW3 extinguished the fire. The
     incident was witnessed by PW13 who ran to the house and
     conveyed the fact of Tikaram having been set afire to the
     inmates of the house. As a result, PW4 Ravindra Kumar
 E   Pandey son of said Tikaram and PW15 Laxmi Prasad Pandey
     rushed to the scene of occurrence. Tikaram disclosed to both
     PWs 4 and 15 that he was set afire in the aforesaid manner
     and by ttie persons mentioned above. Tikaram was then
     removed to Medical College Hospital, Jabalpur.
 F
        3. On receiving information, PW16 inspector R.P. Singh
   went to the casualty ward and enquired about the condition of
   Tikaram with letter Ext.P-30. PW18 Dr. A.C. Nagpal gave
   certificate that Tikaram was conscious and in a position to
 G speak. PW16 inspector RP. Singh thereafter took the
   statement of said Tikaram, translation of which is to the
   following effect:

            "Sir, I am residing at Ramnagra. Today I was going to
          Ramnagra after performing my duty on Petrol Pump. This
 H
        STATE OF M.P. v. ASHOK & OTHERS ETC.                  1077
               [UDAY UMESH LAUT, J.]

     incident occurred at Tilwaraghat opposite the house of       A
     Hari Maharaj. I was going by my cycle. My brother Sheetal
     Prasad was following me. Dibbu caught hold my cycle and
     stopped me and poured petrol on me from a Jug and Jeetu
    set fire on me by a Match Box. My body started burning.
    Hari, Surendra, Bigna, Ashok, Bansi, Raju and the son of      B
    sister of Bansi Maharaj who lives in Kamla Nagar who
    has beard, the younger son of Bansi Gullu and 2-3 other
    persons from city their names I do not know, surrounded
    me. I ran away and entered into a room of house ofVinod
    Kumar situated nearest and they all were crying ''Maaro       C
    Maaro Sale Ko, Bachne Na Paye" and I fell down there.
    There were so many persons present who have seen this
    incident. There is an old enmity and quarrel was going on
    between us and Dibbu etc. For taking revenge from the
                                                                  0
    said enmity today they poured petrol on me and set on
    fire, in order to kill me. My whole body has been burnt. My
    clothes also have been burnt. Report has been read over
    and the same has been written as stated by me. Please
    investigate the matter."                                      E

     4. Pursuant to the aforesaid statement recorded at 8:30
p.m. · Dehati Nalishi Ext. P-20 was lodged and crime was
registered. Tikaram was shifted to ward no. 11 for further
treatment. On the same night panchnama was prepared by F
said PW16. In the night of 11.04.1989 and 12.04.1989 PW5
Executive Magistrate S.P. Meshram recorded statement Ext.
P-17 of said Tikaram. The statement was recorded after due
certification from doctor about consciousness and fitness of
said Tikaram. The translation of the statement Ext. P-17 is as G
under:-

    "On 11.04.1989 at about 8 O'clock in the evening I was
    going to my home in Ramnagra from Jabalpur. Near
    Tilwaraghat Dibbu alias Devendra poured petrol on my H
1078      SUPREME COURT REPORTS                     [2015] 7 S.C.R.


 A      body and Jittu alias Jitendra burnt me by igniting the
        matchstick. At that time I was going on a bicycle on the
        road. They stopped me and did this act. My younger
        brothers Sheetal and Manohar were about 15 Ft. behind
        me. I had enmity with Dibbu and Jittu from before. So they
 B      did this to me. Hari, Banshi, Ashok, Raju, Gaurishankar,
        Gullu, Surendra and Vidhna were the persons who
        assaulted me."

        5. On 12.04.1989 atabout8:15 p.m. Tikaram succumbed
 C to his injuries. On 13.04.1989 at 10:30 a.m. post mortem on
   the body of said Tikaram was conducted by PW17 Dr. D.K.
   Sakalle. According to the post mortem following facts were
   noticed:

 D      "There were third degree burns on the body of the
        deceased on the scalp, all around neck, facie, ears, lips,
        all over the trunk except the upper joint of the thighs, over
        scrotum and penis all around both upper limbs except tips
        and nails of fingers on right side. Third de!gree burns
 E      present all around left thigh, on right thigh all around except
        the back part and over upper part of the left leg and the
        middle part of the right leg. There were blisters in some
        parts of the left leg due to burns. Similarly there were some
        blisters on the back of the right leg. There was inflammation
 F      around the burn injuries. The deceased was burnt about
        90%. Apart from the bum injuries the following injuries were
        also there on the body of the deceased. Incised wound
        obliquely on back of chest. It was 4" long, 1" broad and
        maximum depth was 3/4". It contained a clot of blood and
 G      there was an abrasion on its left side. There was no injury
        in any internal organ of the deceased."

        6. After due investigation charge sheet was filed and 10
  . accused persons were sent for trial. The prosecution examined
 H twenty witnesses while three witnesses were examined in
        STATE OF M.P. v. ASHOK & OTHERS ETC.                  1079
               [UDAY UMESH LAUT, J.]

defence. Dying declarations namely statements Exts.P-20 and       A
P-17, so also oral declarations as deposed by PWs 4 and 15
and the eye-witness account through PW13 were principally
relied upon by the prosecution. Accepting the case of
prosecution, the trial court convicted all the accused. Accused
Dibbu@ Devendra and accused Jittu @ Jitendra were found           B
guilty under section 302 l.P.C. and section 148 l.P.C. while
others namely the present respondents along with Harilal and
Banshilal were found guilty under section 302 read with section
1491.P.C. Accused Dibbu@ Devendra and accused Jittu@
Jitendra were sentenced to life imprisonment under section        C
302 l.P.C. and to rigorous imprisonment of one year under
section 1481.P.C.All the other accused were sentenced to life
imprisonment under section 302 read with section 1491.P.C.
and to rigorous imprisonment for 6 month under section 147        D
l.P.C.

      7. All convicted accused persons challenged their
conviction and sentence by filing CriminalAppeal Nos. 170 of
1995, 841 of 1995 and 369 of 1996. During the pendency of
said appeals it was reported that accused Harilal and Banshilal E
had died and as such their appeals were declared to have
abated. The High Court after going through the record found
that the case of the prosecution was fully established as against
accused Dibbu @ Devendra and accused Jittu @ Jitendra. F
The High Court however gava benefit of doubt to the
respondents on the premise that they had reached the spot
after the commission of offence and as such the charge of
formation of unlawful assembly by them was not established.
The observations by the High Court in that behalf were as under: G

    "Considering the over-all evidence on record, it is proved
              ..
    beyond reasonable doubt that Dibbu alias Devendra and
    Jittu alias Jitendra have committed the offence. The case
    of Dibbu and Jittu is established by the prosecution beyond H
    reasonable doubt in commission of offence. As regards
1080       SUPREME COURT REPORTS                   [2015] 7 S.C.R.


 A       other appellants in all the connected appeals are
         concerned, they are entitled for the benefit of doubt. It is
         narrated in the dying declaration and Dehati Nalishi that
         they reached the spot after the commission of offence.
         Therefore, formation of unlawful assembly by them is not
 B       established."

        The judgment of the High Court affirming their conviction
   and sentence has not been challenged by the accused Jittu @
   Jitendra and Dibbu @ Devendra. The judgment to the extent it
 C acquitted the present respondents of all the offences is
   presently under challenge at the instance of the State of Madhya
   Pradesh in these appeals by special leave.

        8. Ms. Vanshaja Shukla, learned advocate appearing for
 o the State submitted that the role of the present respondents in
   the commission of crime was clearly made out from the dying
   declarations as well as from the testimony of the eye witness.
   The Injury as found in the post mortem also supported the eye
   witness account, which in turn indicated the role played by
 E accused other than those who stand convicted by the High
   Court. In her submission, theviewtaken by the High Court was
   completely unsustainable. Mr. Akshat Srivastava learned
   advocate appearing for the respondent supported the
   judgment of the High Court. It was submitted that the principal
 F role as alleged in the dying declarations was not as regards
   the present respondents and as such they were rightly granted
   benefit of doubt by the High Court.

         During the course of hearing it was submitted that
 G respondent no.6 namely Surendra s/o Harilal Vedehi had died
    during the pendency of these appeals. The learned coun~el
    appearing for the State was directed to ascertain the fact.
    Accordingly death certificate of said respondent no.6 has been
    filed on record indicating that he died on 01.10.2014. We
 H· therefore direct that the proceedings stand abated as against
        STATE OF M.P. v. ASHOK & OTHERS ETC.               1081
               [UDAY UMESH LAUT, J.]

said respondent no.6.                                         A

     9. Statement Ext. P-20 leading to the registration of crime
as well as statement Ext. P-17 recorded by the Executive
Magistrate are dying declarations by Tikaram. Both these
statements are consistent and name the present respondents B
and state the role played by them in surrounding Tikaram and
giving cries that he be beaten and should not be left. In the
face of such assertions, it is impossible to accept that these
respondents arrived at the scene of occurrence after the crime
was completed. Their role is that of participants in the crime C
who did not allow Tikaram to escape by encircling him. The
finding rendered by the High Court is against the record.

     10. Both the statements clearly referred to the presence
of PW13 It was PW13 who immediately ran home and o
intimated the fact that Tikaram was set afire, to the inmates of
the house. Consequently PW4 and PW15 arrived at the scene
of occurrence. Tikaram was then removed to the hospital. In
his testimony PW13 stated that While Tikaram was burning,
respondent Vidhna @ Ram Das threw a burning tyre upon him E
and original accused Harilal threw a sword at him. The post
mortem clearly shows an incised injury in the back suffered by
said Tikaram, which completely supports such assertion.
Having gone through the record we find the presence of said
PW13 completely established and accept him to be eye F
witness to the occurrence. It is relevant to note that the High
Court has also not disbelieved the testimony of PW13 ..

     11. In the light of the eye witness account and the post
mortem report it is quite clear that the respondents were G
present when Tikaram was burning alive. The sequence of
narration certainly shows that they were waiting in ambush. It
may be that only two of them set Tikaram afire but the others
definitely ensured by surrounding Tikaram that he would not
be allowed to escape. Further, throwing of burning tyre and H
1082          SUPREME COURT REPORTS             [2015] 7 S.C.R.


 A the sword would also indicate the active role played by them.
   Even if one of them was ready with a sword, that is clearly
   indicative of the level of preparedness on their part and we
   see no reason how they could not be said to bie members of
   unlawful assembly. It was a crime which was committed by all
 B of them guided by same purpose, acting in concert achieving
   the result that was desired. The intent of the entire assembly
   was clear, eloquently established by their presence,
   preparedness and participation. Though we are conscious that
   while considering an appeal against acquittal we should be
 C extremely slow in interfering, in our considered view the
   assessment made by the High Court in the present case is
   completely unsustainable and againstthe record.

            12. We therefore allow these appeals, set-aside the
 D judgment and order of acquittal rendered by the High Court
   and restore the judgment of conviction and sentence as
   recorded by the trial Court against the respondents. The
   respondents shall be taken in custody forthwith to serve the
   sentence awarded to them.
 E
       Devika Gujral                               Appeals allowed.