STATE OF MADHYA PRADESHversusKILLU @ KAILASH AND ORS.

                          [2019] 14 S.C.R. 95                            95


                 STATE OF MADHYA PRADESH                                 A
                                  v.
                 KILLU @ KAILASH AND ORS.
             (Criminal Appeal Nos. 1709-1710 of 2019)
                       NOVEMBER 19, 2019                                 B
    [UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
       Penal Code, 1860 – s.302 r/w. s.149 – Murder by members of
an unlawful assembly – Prosecution case that five accused persons
entered the house of victim in the midnight and inflicted injuries on
                                                                         C
him – Consequent to which, victim died – Trial court concluded that
all the five accused were members of an unlawful assembly and
had entered the house of the deceased with common object of
causing death – All five were convicted u/s. 302 r/w. 149 IPC –
High Court held that accused/appellants No.2 and 4 were armed
with deadly weapons and they inflicted blows on the vital parts of       D
the deceased – However, the remaining three accused/appellants
were convicted with the aid of s.149 IPC and allegation against
them was that they had entered the house and were armed with
lathis and Ballam – High Court held that no injuries were associated
with lathis and Ballam and acquitted the remaining three accused/
                                                                         E
appellants – On appeal, held: The presence of the respondents/
remaining three accused in the house of the deceased; the fact that
they were armed; the fact that all of them had entered the house
around midnight and further fact that two out of those five accused
used their deadly weapons to cause the death of deceased was
sufficient to attract principles of vicarious liability u/s. 149 IPC –   F
The High Court was not justified in granting a benefit to the three
accused – Therefore acquittal, as recorded by the High Court, set
aside and order of conviction passed by the Trial court restored –
Doctrines/Principles – Principle of vicarious liability.
      Allowing the appeals, the Court                                    G
       HELD : 1. On the strength of the principles accepted and
laid down in the Supreme Court cases, their liability is fully
established. Merely because the other three accused persons
i.e. the present respondents had not used their weapons does
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                                 95
96           SUPREME COURT REPORTS                    [2019] 14 S.C.R.


A    not absolve them of the responsibility and vicarious liability on
     which the very idea of charge under Section 149 IPC is founded.
     For the application of the principle of vicarious liability under
     Section 149 IPC what is material to establish is that the persons
     concerned were members of an unlawful assembly, the common
     object of which was to commit a particular crime. The fact that
B
     five persons were separately armed and had entered the house
     of the deceased during night time is clearly indicative that each
     one of them was a member of that unlawful assembly, the object
     of which was to commit the crime with which they came to be
     charged in question. The High Court was not justified in granting
C    benefit to those three accused. [Para 12] [104-F-H]
           2. The presence of the respondents in the house of the
     deceased; the fact that they were armed; the fact that all of them
     had entered the house around midnight and further fact that two
     out of those five accused used their deadly weapons to cause the
D    death of the deceased was sufficient to attract the principles of
     vicarious liability under Section 149 IPC. [Para 13] [105-B]
            3. The High Court was not justified in entertaining a doubt
     that it could not be ruled out that the respondents were merely
     named along with the other accused persons. There was absolutely
E    no room for such doubt. The testimony of the eye witnesses
     namely the wife and the son, who were occupants of the same
     house, was quite clear and cogent. [Para 14] [105-C]
          Masalti v. State of U.P. [1964] 8 SCR 133 ; State of
          Maharashtra v. Ramlal Devappa Rathod and others
F         (2015) 15 SCC 77 : [2015] 11 SCR 357 – relied on.
          Baladin v. State of Uttar Pradesh AIR 1956 SC 181
          – referred to.
                           Case Law Reference
     [1964] 8 SCR 133              relied on              Para 9
G
     AIR 1956 SC 181               referred to            Para 9
     [2015] 11 SCR 357             relied on              Para 10


H
STATE OF MADHYA PRADESH v. KILLU @ KAILASH AND ORS.                            97


      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                        A
Nos. 1709-1710 of 2019.
      From the Judgment and Order dated 29.06.2018 of the High Court
of Madhya Pradesh, Main Seat Jabalpur in CRA Nos. 2676 of 2008 and
158 of 2009.
      Varun K. Chopra, Dy. AG (M.P.), Gurtej Pal Singh, Rahul Kaushik,         B
Advs. for the Appellant.
      S.K. Shrivastva, Ms. K.N. Sinha, Abhishek Sharma, Dr. S. K.
Verma, R.R. Rajesh, Y.K. Prasad, Rajesh Kumar Chaurasia, Advs. for
the Respondents.
                                                                               C
      The Judgment of the Court was delivered by
      UDAY UMESH LALIT, J.
      1. Leave granted.
      2. These Appeals question the judgment and order dated 29.06.2018
                                                                               D
passed by the High Court of Madhya Pradesh at Jabalpur in Criminal
Appeal Nos.2676 of 2008 and 158 of 2009.
      3. The basic facts as stated in the judgment under appeal are as
under:-
      “3. Prosecution story, in brief is that, accused/appellant No.4          E
      Khushiram in Cr. Appeal No.2678 of 2008, who is uncle [mousia]
      of the son of the deceased, had some enmity with Balaprasad
      Pathak [since deceased]. He along with other accused persons
      entered in the house of Balaprasad Pathak in the mid night [2 O’
      clock] of 23.05.2005. Deceased was sleeping with his family
      members. Accused/appellants [in Cr.Appeal No.2678/2008]                  F
      namely; Khushiram and Himmu @ Hemchand were armed with
      axe, appellant Devendra was armed with Ballam and other two
      accused namely Killu @ Kailash and Kailash Nayak were armed
      with lathi. Two accused persons namely; Khushiram and Himmu
      @ Hemchand [appellants No.2 and 4 in Cr. Appeal No.2676/2008]            G
      inflicted injuries by axe on the person of deceased. Allegation
      against other accused persons is of exhortation. Deceased died
      on the spot. Report of the incident was lodged by (PW-5)
      Rameshwar Pathak. Police conducted investigation and filed
      charge-sheet. During trial, appellants abjured their guilt and pleaded
      innocence. …”                                                            H
98                SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A           4. In support of its case, the prosecution relied upon the testimony
     of PW3-Prabha Rani, wife of the deceased, PW4-Devendra Kumar,
     son of the deceased and PW5-Rameshwar Pathak, a relative of the
     deceased, who had lodged the First Information Report (‘the FIR’, for
     short). It was narrated in the FIR that after having received information
     about the assault, the informant had gone to the house of the deceased
B
     where PW3 narrated the incident to him, based on which the reporting
     was made by the informant. The medical evidence was unfolded through
     the testimony of PW2-Dr. R.K. Bhardwaj, who had conducted the post-
     mortem. He had found following injuries on the person of the deceased:-
           “(i) Incised wound over left anterior part of scalp 4”x1/2"
C               underlaying bone and brain matter cut inhacranial cavily pilled
                with blood.
           (ii)    Incised wound 5" x 1" x 2 1/2" uppermost part of chest and
                   adjoining anterior part of neck slightly left side obliquely placed
                   undergone and blood vessels cut.”
D
           According to him, the injuries were ante-mortem and the deceased
     had died as a result of those injuries.
            5. In due course, five accused were tried in connection with the
     murder of said Balaprasad Pathak for the offence punishable under
E    Section 302 read with Section 149 IPC in Sessions Trial No.173 of 2005
     before the First Additional Sessions Judge, Damoh, Madhya Pradesh.
     After considering the evidence on record, the Trial Court concluded that
     all the five accused were members of an unlawful assembly and had
     entered the house of the deceased on the fateful night with the common
     object of causing death of the deceased and as such, they were guilty of
F    the offence punishable under Section 302 read with Section 149 IPC.
     Holding them guilty of the aforesaid offence, by its judgment dated
     19.12.2001, the Trial Court sentenced them to suffer life imprisonment
     and to pay fine in the sum of Rs.500/- each, in default whereof, each of
     the convicts was to undergo further rigorous imprisonment of three
G    months. The view so taken by the Trial Court was challenged by way of
     Criminal Appeal No.2676 of 2008 by four accused while Criminal Appeal
     No.158 of 2009 was filed by accused Kailash Nayak.
           6. Insofar as accused Himmu @ Hemchand and Khushiram, who
     were armed with sharp cutting weapons, the High Court found as under:-
H
STATE OF MADHYA PRADESH v. KILLU @ KAILASH AND ORS.                            99
              [UDAY UMESH LALIT, J.]

      “16. Appellants No.2 and 4 namely Himmu @ Hemchand and                   A
      Khushiram were armed with axe, i.e. deadly weapons. They
      inflicted blows on the vital part of deceased as a result of which,
      deceased died on the spot. Evidence of causing injury by axe is
      against the appellants Himmu @ Hemchand and Khushiram.
      Hence, in our opinion, the Trial Court has rightly held the appellants
                                                                               B
      guilty for commission of offence of murder. Other three accused
      persons namely; Killy @ Kailash and Devendra (appellants No. 1
      and 3 in Cr. A No. 2676/2008) and appellant Kailash Nayak
      (appellant in Cr.A.No. 158/2009) have been convicted with the
      aid of Section 149 of IPC. Allegation against them is that they
      entered in the house and they were armed with lathis and Ballam.         C
      From the evidence, this fact has also been proved that deceased
      was facing trial of Section 302 of IPC because he had killed one
      Rammilan Pathak.”
      7. The High Court further found that the other three accused
were stated to be armed with lathis and Ballam but there were no injuries      D
which could be associated with lathis and Ballam. The High Court,
therefore, gave benefit to said three accused as under:-
      “21. From the aforesaid quoted judgment, the principle of law is
      that “the member of unlawful assembly may have committed for
      the offence caused by another accused, if he has knowledge about         E
      the act committed by the main accused”. In the present case,
      evidence is that the accused entered the house of deceased and
      thereafter, two accused had inflicted blow by axe. The other
      accused persons did not give any blow on the deceased. It is
      alleged that they were present on the spot. There was previous
      enmity between the accused persons and the deceased, he was              F
      also facing criminal trial. Hence, it cannot be ruled out that other
      three persons, who had not inflicted any injury may have been
      named along with the other accused persons.
      22. Looking to the evidence on record, in our opinion, the conviction
      of three appellants namely; Killu @ Kailash, Devendra and Kailash        G
      Nayak, who were armed with lathis and Ballam and did not inflict
      any blow with the aid of Section 149 of IPC, is not proper. There
      is lack of sufficient evidence to prove them guilty for commission
      of offence under Section 149 of IPC beyond reasonable doubt.
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100               SUPREME COURT REPORTS                         [2019] 14 S.C.R.


A              Hence, the appeal filed by appellant Kailash Nayak (Cr. Appeal
               No. 158/2009) is hereby allowed.
               23. Cr. Appeal No.2676/2008, filed by four accused/ appellants is
               partly allowed. Appeal filed by appellants No. 2 and 4 namely;
               Himmu @ Hemchand and Khushiram is hereby dismissed. They
B              are convicted for commission of offence punishable under Section
               302 of IPC and awarded a sentence of life. Appellant No.2 Himmu
               @ Hemchand is on bail. His bail bonds are hereby cancelled. He
               is directed to surrender before the Trial Court for facing remaining
               jail sentence.
C              24. Appeal filed by the appellants No.1 and 3 namely; Killu @
               Kailash and Devendra [Cr.Appeal No.2676/2008] is hereby
               allowed. They are acquitted from the charge of Section 302/149
               of IPC. The judgment passed by the trial Court in regard to
               appellants No.1 and 3 namely; Killu @ Kailash and Devendra, is
               hereby set aside. Appellants Killu @ Kailash, Devendra and
D              Kailash Nayak, are on bail, their bail bonds are hereby discharged.”
            8. The State, being aggrieved by the order of acquittal of accused
      Killu @ Kailash, Devendra and Kailash Nayak, has preferred the instant
      appeals. We heard Mr. Varun K. Chopra, Deputy Advocate General
      (Madhya Pradesh), in support of the Appeal and Mr. S.K. Shrivastava
E     and Mr. R.R. Rajesh, learned Advocates who appeared for three
      acquitted accused.
             9. Since the instant case depends upon the extent and application
      of the principle of vicarious liability under Section 149 of the IPC, at the
      outset, we may consider the leading case of Masalti vs. State of U.P.1
F     The submission of the appellants therein was that mere presence in an
      assembly would not make a person member of an unlawful assembly
      unless it was shown that he had done something or omitted to do something
      which would make him a member of unlawful assembly. Reliance was
      placed by said appellants on the earlier judgment of this Court in Baladin
G     vs. State of Uttar Pradesh2 . The issue was dealt with as under:-
               “… … The observation of which Mr. Sawhney relies, prima facie,
               does seem to support his contention; but, with respect, we ought
               to add that the said observation cannot be read as laying down a
      1
          (1964)8 SCR 133
      2
H         AIR 1956 SC 181
STATE OF MADHYA PRADESH v. KILLU @ KAILASH AND ORS.                         101
              [UDAY UMESH LALIT, J.]

    general proposition of law that unless an overt act is proved against   A
    a person who is alleged to be a member of an unlawful assembly,
    it cannot be said that he is a member of such an unlawful assembly.
    In appreciating the effect of the relevant observation on which
    Mr. Sawhney has built his argument, we must bear in mind the
    facts which were found in that case. It appears that in the case of
                                                                            B
    Baladin2, the members of the family of the appellants and other
    residents of the village had assembled together; some of them
    shared the common object of the unlawful assembly, while others
    were merely passive witnesses. Dealing with such an assembly,
    this Court observed that the presence of a person in an assembly
    of that kind would not necessarily show that he was a member of         C
    an un- lawful assembly. What has to be proved against a person
    who is alleged to be a member of an unlawful assembly is that he
    was one of the persons constituting the assembly ,and he
    entertained along with the other members of the assembly the
    common object as defined by s.141, I.P.C. Section 142 provides
                                                                            D
    that whoever, being aware of facts which render any assembly
    an unlawful assembly, intentionally joins that assembly, or continues
    in it, is said to be a member of an unlawful assembly. In other
    words, an assembly of five or more persons actuated by, and
    entertaining one or more of the common objects specified by the
    five clauses of s. 141, is an unlawful assembly. The crucial question   E
    to determine in such a case is whether the assembly consisted of
    five or more persons and whether the said persons entertained
    one or more of the common objects as specified by s.141. While
    determining this question, it becomes relevant to consider whether
    the assembly consisted of some persons who were merely passive
                                                                            F
    witnesses and had joined the assembly as a matter of idle curiosity
    without intending to entertain the common object of the assembly.
    It is in that context that the observations made by this Court in the
    case of Baladin2 assume significance; otherwise, in law, it would
    not be correct to say that before a person is held to be a member
    of an unlawful assembly, it must be shown that he had committed         G
    some illegal overt act or had been guilty of some illegal omission
    in pursuance of the common object of the assembly. In fact, s.149
    makes it clear that if an offence is committed by any member of
    an unlawful assembly in prosecution of the common object of that
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102               SUPREME COURT REPORTS                        [2019] 14 S.C.R.


A              assembly, or such as the members of that assembly knew to be
               likely to be committed in prosecution of that object, every person
               who, at the time of the committing of that offence. is a member of
               the same assembly, is guilty of that offence; and that emphatically
               brings out the principle that the punishment prescribed by s.149 is
               in a sense vicarious and does not always proceed on the basis
B
               that the offence has been actually committed by every member
               of the unlawful assembly. Therefore, we are satisfied that the
               observations made in the case of Baladin2 must be read in the
               context of the special facts of that case and cannot be treated as
               laying down an unqualified proposition of law such as Mr. Sawhney
C              suggests.”
                                                               (underlined by us)
            10. After considering the cases on the point including Masalti1,
      the order of acquittal passed by the High Court was set aside by this
      Court in State of Maharashtra vs. Ramlal Devappa Rathod and
D     others3. Relevant paragraphs of the decision are:-
               “22. We may at this stage consider the law of vicarious liability
               as stipulated in Section 149 IPC. The key expressions in Section
               149 IPC are:

E                 (a) if an offence is committed by any member of an unlawful
                  assembly;
                  (b) in prosecution of common object of that assembly;
                  (c) which the members of that assembly knew to be likely to
                  be committed in prosecution of that object;
F
                  (d) every person who is a member of the same assembly is
                  guilty of the offence.
               This section makes both the categories of persons, those who
               committed the offence as also those who were members of the
               same assembly liable for the offences under Section 149 IPC, if
G              other requirements of the section are satisfied. That is to say, if
               an offence is committed by any person of an unlawful assembly,
               which the members of that assembly knew to be likely to be
               committed, every member of that assembly is guilty of the offence.
      3
          (2015) 15 SCC 77
H
STATE OF MADHYA PRADESH v. KILLU @ KAILASH AND ORS.                             103
              [UDAY UMESH LALIT, J.]

         The law is clear that membership of unlawful assembly is sufficient    A
         to hold such members vicariously liable.
         23. It would be useful to refer to certain decisions of this Court.
         In State of U.P. v. Kishanpal4 it was observed: (SCC p. 93, para
         47)
            “47. … It is well settled that once a membership of an unlawful     B
            assembly is established it is not incumbent on the prosecution
            to establish whether any specific overt act has been assigned
            to any accused. In other words, mere membership of the
            unlawful assembly is sufficient and every member of an
            unlawful assembly is vicariously liable for the acts done by        C
            others either in the prosecution of the common object of the
            unlawful assembly or such which the members of the unlawful
            assembly knew were likely to be committed.”
         Further, in Amerika Rai v. State of Bihar5 it was observed as
         under: (SCC p. 682, para 13)                                           D
            “13. The law of vicarious liability under Section 149 IPC is
            crystal clear that even the presence in the unlawful assembly,
            but with an active mind, to achieve the common object makes
            such a person vicariously liable for the acts of the unlawful
            assembly.”                                                          E
            24. The liability of those members of the unlawful assembly
            who actually committed the offence would depend upon the
            nature and acceptability of the evidence on record. The
            difficulty may however arise, while considering the liability and
            extent of culpability of those who may not have actually            F
            committed the offence but were members of that assembly.
            What binds them and makes them vicariously liable is the
            common object in prosecution of which the offence was
            committed by other members of the unlawful assembly.
            Existence of common object can be ascertained from the
            attending facts and circumstances. For example, if more than        G
            five persons storm into the house of the victim where only few
            of them are armed while the others are not and the armed
            persons open an assault, even unarmed persons are vicariously
4
    (2008) 16 SCC 73
5
    (2011) 4 SCC 677                                                            H
104            SUPREME COURT REPORTS                         [2019] 14 S.C.R.


A              liable for the acts committed by those armed persons. In such
               a situation it may not be difficult to ascertain the existence of
               common object as all the persons had stormed into the house
               of the victim and it could be assessed with certainty that all
               were guided by the common object, making every one of them
               liable. Thus when the persons forming the assembly are shown
B
               to be having same interest in pursuance of which some of them
               come armed, while others may not be so armed, such unarmed
               persons if they share the same common object, are liable for
               the acts committed by the armed persons.”
              11. If we now consider the facts in the present matter, the case
C     lies in a short compass. The case of the prosecution that five accused
      had entered the house of the deceased on the fateful night is accepted.
      It is also found that each one of them was separately armed and two of
      them were armed with sharp cutting weapons. As far as other three
      accused i.e. the present respondents were concerned, the first one had
D     a Ballam while the other two were having lathis. It is true that the
      deceased had only two injuries on the person which were the cause of
      death. To the extent that the persons who were armed with sharp cutting
      weapons were found responsible for causing the death is also not disputed
      or challenged. The evidence on record fully establishes that the present
      respondents had also accompanied those two accused persons who were
E     found responsible for the crime and all of them had entered the house of
      the deceased around midnight. It is crucial to note that the incident did
      not happen in any public place where the presence of a non-participating
      accused could, at times, be labelled as that of an innocent bystander.
      The role played by each one of them was clear and specific. They had
F     stormed into the house in the dead of the night.
              12. On the strength of the principles accepted and laid down in
      the cases as aforementioned, their liability is fully established. Merely
      because the other three accused persons i.e. the present respondents
      had not used their weapons does not absolve them of the responsibility
G     and vicarious liability on which the very idea of charge under Section
      149 IPC is founded. For the application of the principle of vicarious
      liability under Section 149 IPC what is material to establish is that the
      persons concerned were members of an unlawful assembly, the common
      object of which was to commit a particular crime. The fact that five
      persons were separately armed and had entered the house of the
H
STATE OF MADHYA PRADESH v. KILLU @ KAILASH AND ORS.                             105
              [UDAY UMESH LALIT, J.]

deceased during night time is clearly indicative that each one of them          A
was a member of that unlawful assembly, the object of which was to
commit the crime with which they came to be charged in question. The
High Court was not justified in granting benefit to those three accused.
       13. The presence of the respondents in the house of the deceased;
the fact that they were armed; the fact that all of them had entered the        B
house around midnight and further fact that two out of those five accused
used their deadly weapons to cause the death of the deceased was
sufficient to attract the principles of vicarious liability under Section
149 IPC.
       14. The High Court was not justified in entertaining a doubt that it     C
could not be ruled out that the respondents were merely named along
with the other accused persons. There was absolutely no room for such
doubt. The testimony of the eye witnesses namely the wife and the son,
who were occupants of the same house, was quite clear and cogent.
       15. We have, therefore, no hesitation in allowing these Appeals.         D
We, thus, set aside the view taken by the High Court insofar as the
present respondents namely Killu @ Kailash, Devendra and Kailash
Nayak are concerned. We set aside their acquittal as recorded by the
High Court and restore the judgment and order of conviction passed by
the Trial Court in Sessions Trial No. 173 of 2005 against said respondents.
                                                                                E
       16. The respondents shall surrender within three weeks, failing
which the concerned police shall immediately arrest them and send them
to custody to undergo the sentence imposed upon them. A copy of this
Judgment shall be sent to the concerned Chief Judicial Magistrate and
the Police Station for immediate compliance.
                                                                                F
Ankit Gyan                                                   Appeals allowed.




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