JammubMay-29-2023:- The Division Bench of Jammu & Kashmir and Ladakh High Court Comprising Justice Sanjay Dhar and Justice Rajesh Sekhri uphold life-imprisonment of four accused namely Rattan Lal, Dharam Pal, Bachan Lal and Kamla Devi.
Division Bench after hearing Sr. Adv MA Goni for the appellants whereas AAG Amit Gupta for the UT, observed that it is not necessary for the prosecution to prove particular acts of the members of an unlawful assembly. Common object of unlawful assembly can be gathered from the nature of the assembly, the kind of arms used by them and the behaviour of assembly at or before the scene of occurrence and inference in this regard can be deduced from the facts and circumstances of the case and overt act or active participation may indicate common intention of the person perpetrating the crime. Mere presence in the unlawful assembly may fasten vicarious criminal liability under Section 149 of the IPC and the time of forming an unlawful intent is not material. An assembly of persons which may at its initiation be lawful, may become unlawful subsequently as it can develop such an object even during the currency of the occurrence.
DB further observed that coming to the facts that have been established in the instant case, it has to be noted that the occurrence has taken place at 10 PM in the courtyard of the deceased and it has also been established that the appellants were not residing in the vicinity of the house of the deceased meaning thereby that they had come together from a distance to the house of the deceased. It has also been established that the appellants were carrying arms like iron rod, ‘Kai’, ‘Dah’, spade and clubs with them and all of them came together to the site of the occurrence. In the first instance, the appellant-Rattan Lal gave blows of iron rod on the head of deceased Jia Lal, who was challenged by the appellants. The other appellants even after watching the deceased fall down continued to attack PW- Ram Dayal who tried to rescue the deceased. Thereafter, all the appellants attacked PWs Khushal Chand and Shallu Ram who tried to rescue PW Ram Dayal. This clearly shows that none of the appellants made any attempt to stop the assembly from pursuing the object nor did they dissuade themselves from the assembly. The evidence on record shows that all the appellants actively participated in the crime and they continued to beat the injured in spite of deceased-Jia Lal having fallen down after receiving head injury. In the face of these proved circumstances, the inescapable inference that can be drawn is that the appellants shared a common object of committing murder of the deceased and they being part of the unlawful assembly, each one of them is vicariously liable for the death of the deceased and also for causing injuries to other prosecution witnesses. For the foregoing discussion, the Division Bench does not find any ground to interfere in the well reasoned and lucid judgment of conviction and order of sentence passed by the learned trial court. The impugned judgment of conviction and order of sentence is, therefore, upheld. Accordingly, the reference made by the trial court is accepted and the order of sentence passed by the said court is confirmed.
DB further ordered that the bail bonds of the appellants are cancelled and they are directed to surrender before the learned trial court within a period of 15 days from the date of this judgment. The learned trial court shall upon their surrender, send the appellants to jail for serving the balance sentence. In case, the appellants do not surrender before the trial court during the aforesaid period, the learned trial court shall adopt coercive measures for securing their presence, where-after they shall be sent to jail for serving the balance sentence. JNF