PARSHURAM    [APPELLANT(S)]  Vs.  STATE OF M.P.  [RESPONDENT(S)]

CRIMINAL APPEAL NO. 524 OF 2021

(3JB, B.R. GAVAI, B.V. NAGARATHNA and PRASHANT KUMAR MISHRA, delivered by B.R. GAVAI, J.)

Facts: The present appeals challenge the common judgment and order dated 14th March 2018, passed by the Division Bench of the High Court of Madhya Pradesh at Gwalior, in Criminal Appeal Nos. 243 and 260 of 2005, whereby, the High Court upheld the judgment and order dated 30th March 2005, passed by the 1st Additional Sessions Judge, Shivpuri (Madhya Pradesh) convicting the appellants and sentencing them to imprisonment for life for the offences punishable under Section 302 read with Section 149 of the Indian Penal Code, 1860, to undergo rigorous imprisonment for seven years for the offence punishable under Section 326 read with Section 149 of IPC, to undergo rigorous imprisonment for six months for the offence punishable under Section 324 read with Section 149 of IPC, to undergo rigorous imprisonment for three months for the offence punishable under Section 323 read with Section 149 of IPC, and to undergo rigorous imprisonment for three months for the offence punishable under Section 148 of IPC.

Issue: Whether, the conviction under Section 302 of IPC would be tenable or not?

Arguments on behalf of counsel for appellant: Shri Rishi Malhotra

Shri Malhotra submitted that both the High Court and the trial court have grossly erred in convicting the appellants. He submitted that the prosecution has failed to attribute any specific role to the appellants herein. In the absence of the same, he submitted that the conviction recorded under Section 302 of IPC would not be tenable. The learned counsel submitted that the role attributed to the present appellant Parshuram was only holding the lathi and as such, no injuries which had caused the death of the deceased, can be attributed to the appellant Parshuram. The learned counsel further submitted that two of the accused persons, who were attributed the role of holding hand-bombs, were acquitted by the trial court. As such, conviction of the present appellants was not sustainable. Shri Malhotra submitted that many accused persons had sustained injuries. These injuries were not at all explained by the prosecution. He submitted that the FIR which was lodged by the accused persons against the complainant party arising out of the same incident was prior in point of time. The learned counsel, relying on a recent judgment of this Court in the case of Nand Lal and Others v. State of Chhattisgarh, submitted that non-explanation of injuries is fatal to the prosecution case and the appellants are entitled to be acquitted on the ground of non-explanation of such injuries.

Arguments on behalf of counsel for respondent:

Shri Singh, on the contrary, submitted that both the trial court and the High Court have concurrently found that the prosecution has proved its case beyond reasonable doubt. He submitted that since the appellants were a part of the unlawful assembly, it was not necessary for the prosecution to attribute a specific role to each of them. It is submitted that the object of the unlawful assembly was to kill the members of the complainant party and as such, no interference would be warranted in the finding of conviction recorded by the trial court as affirmed by the High Court. He further submitted that the injuries sustained by the deceased was on vital parts caused with deadly weapons.

Held: The court allowed the present appeal and held that, “the appellants are entitled to benefit of doubt. The conviction under Section 302 IPC would not be sustainable. The prosecution has failed to prove beyond reasonable doubt that the unlawful assembly had an intention to cause the death of the deceased. As such, we find that the case would fall under Part-II of Section 304 of IPC.”

The court observed that, “It could thus clearly be seen that the Constitution Bench has held that it is not necessary that every person constituting an unlawful assembly must play an active role for convicting him with the aid of Section 149 of IPC. What has to be established by the prosecution is that a person has to be a member of an unlawful assembly, i.e., he has to be one of the persons constituting the assembly and that he had entertained the common object along with the other members of the assembly, as defined under Section 141 of IPC. As provided under Section 142 of IPC, 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