STATE OF MADHYA PRADESH versus KILLU @ KAILASH AND ORS.

Citation: [2019] 14 S.C.R. 95 · Decided: 19-11-2019 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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95
STATE OF MADHYA PRADESH
v.
KILLU @ KAILASH AND ORS.
(Criminal Appeal Nos. 1709-1710 of 2019)
NOVEMBER 19, 2019
[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
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
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/
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 –
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
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
   [2019] 14 S.C.R. 95
95
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SUPREME COURT REPORTS
[2019] 14 S.C.R.
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
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
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
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
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
(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
AIR 1956 SC 181
referred to
Para 9
[2015] 11 SCR 357
relied on
Para 10
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97
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
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,
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.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. Leave granted.
2. These Appeals question the

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