Full Judgment Text
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CASE NO.:
Appeal (crl.) 123 of 2005
PETITIONER:
Sunil Kumar and Anr.
RESPONDENT:
State of Rajasthan
DATE OF JUDGMENT: 19/01/2005
BENCH:
ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (CRl.) No.544 of 2004)
With
Crl. Appeal No.124 of 2005(Arising out of SLP (Crl.)No.1774/2004, Crl.
Appeal No.125 of 2005(Arising out of SLP (Crl.)1481/2004, Crl. Appeal
No.126 of 2005 (Arising out of SLP (Crl.) 2537/2004), Crl. Appeal
No.127 of 2005 (Arising out of SLP (Crl.) 2542/2004 and Crl. Appeal
No.128 of 2005 (Arising out of SLP (Crl.) 2543/2004))
ARIJIT PASAYAT, J.
Leave granted.
All these appeals are directed against common judgment of the
Rajasthan High Court by which the appeals preferred by eight accused
persons including present appellants were disposed of. While Ramesh,
son of Harish Chandra was convicted for offence punishable under
Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’) and was
sentenced to undergo imprisonment for life and to pay a fine of
Rs.1,000/- with default stipulation, the other seven i.e. present
appellants were convicted for offence punishable under Section 302 IPC
read with Section 149 IPC and were each sentenced to undergo
imprisonment for life and to pay a fine of Rs.1,000/- each with default
stipulation. Each of the eight accused persons were convicted in terms
of Section 148 IPC and sentenced to undergo two years’ rigorous
imprisonment. Ramesh, son of Harish Chandra who was convicted in terms
of Section 302 IPC, has not preferred any appeal, while the rest seven
accused persons have preferred the present appeals.
Prosecution version as unfolded during trial is as follows:
On October 29, 1998 around 11 A.M. informant Yogendra Singh (PW-
1) submitted written report to one Phool Chand, Police Officer at
Roadways Bus stand Jhunjhunu. It was, inter alia, stated in the report
that on the said day at about 10.00 A.M. the informant was standing at
the Traffic point near bus stand. Two other witnesses i.e. Surendra and
Ajay were also there. Suddenly they heard ruckus coming from the front
of a tea stall nearby. All the three rushed to the spot where they saw
that the nephew of informant, namely, Sumer Singh (hereinafter referred
to as the ’deceased’) was surrounded by the appellants who were
equipped with hockies, iron rods and pipes etc., while Ramesh Kumar had
a knife. Ramesh Kumar inflicted several blows on the abdomen of the
deceased with knife and others belaboured him with hockies, iron rods
and pipes. After causing injuries to the deceased the assailants fled
away from the scene of occurrence in a red jeep bearing No. RJ\026
19/C-6255 in which they had come together. The incident had been
witnessed by other witnesses Chandra Shekhar and Krishna Kumar. It was
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also alleged in the report that deceased was belaboured on account of
previous enmity. On the basis of said report, formal FIR was
registered at Police Station Jhunjhunu for offences punishable under
Sections 302, 147, 148 and 149 IPC and investigation commenced. Site
plan of the incident was drawn. Deceased was subjected to post mortem
examination. Blood stained clothes of the deceased were seized. Control
soil and blood stained soil were lifted from the place of incident. The
accused persons were taken into custody and at their instance certain
weapons as also the jeep got recovered. Charge sheet was filed after
completion of investigation. Trial was conducted by learned Sessions
Judge, Jhunjhunu. Charges under Sections 147, 148,302 in the alternate
302/149 IPC were framed against the appellants and Ramesh who denied
the charges and claimed trial. The prosecution in support of its case
examined 21 witnesses and got exhibited 61 documents. In their
explanation under Section 313 of the Code of Criminal Procedure, 1973
(in short the ’Cr.P.C’.), the accused persons pleaded innocence and
stated that the witnesses were partisan and were telling lies as they
happened to be close relatives of the deceased and on account of
groupism there had been blatant false implication. On consideration of
materials on record learned Sessions Judge convicted and sentenced the
appellants as indicated herein above. All the eight accused persons
preferred appeals before the High Court which as noted above dismissed
the appeals and upheld the conviction and sentence.
In support of the present appeals common points were urged by
learned counsel appearing for the various appellants. The pivotal
question raised related to applicability of Section 149 IPC.
Additionally, it was submitted that the High Court did not properly
consider the various pleas which were raised i.e. (1) unexplained delay
in sending the copy of FIR to Ilaka Magistrate; (2) non-examination of
independent witnesses; (3) discrepancies in the evidence of witnesses
claimed to be eye witnesses, who in fact were related to the deceased;
and (4) the prosecution witnesses, more particularly the relatives as
to how they happened to be at the place of occurrence at a particular
time.
It was pointed out that the basic elements necessary to bring in
application of Section 149 IPC did not exist. There was no evidence
that there was any common object which was pursued by the appellants.
Even if it is conceded to the position, as claimed by the prosecution
that they came in the same jeep and were armed with various weapons
that does not per se establish that they shared a common object. The
prosecution has failed to prove that in pursuance of such common object
Ramesh who is stated to have given the fatal knife blows carried out
the objective of the alleged unlawful assembly. Out of the five
witnesses who were claimed to be eye witnesses three were closely
related. Their statements also were not recorded immediately after the
investigation stated and in fact were recorded in some cases two days
after, and in one case after about two weeks. The fact that the FIR
was dispatched to the magistrate long after the FIR was lodged itself
goes to establish that there was deliberation on the part of the police
officials and the relatives of the deceased including the informant and
so called eye witnesses, and the accused persons have been falsely
implicated. There was no perceivable motive for the present appellants
to have any animosity towards the deceased. If the persons who claimed
to be eye witnesses were really present at the spot, their normal and
natural conduct would have been to rescue the deceased which has not
been done. Even though the prosecution version is that indiscriminately
the appellants assaulted the deceased, only three abrasions were found.
As is evident from the conclusions of the trial court, the second part
of Section 149 IPC which relates to knowledge of likelihood that
alleged offence would be committed there was no definite finding
recorded in that regard. From the evidence no common object is
discernible. The object may have been at the most, even if it is
accepted that same existed, to chastise the deceased, rough him up or
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cause some hurt. These probabilities have not been ruled out by the
prosecution. It has not been shown that the real objective was murder
of the deceased. There is no evidence to show that the present
appellants knew that murder was likely to be committed. The conclusion
of the trial court and the High Court that the present appellants
facilitated the killing or aborted efforts of others to save the
deceased are not supported by any cogent evidence. The genesis of the
incident is shrouded in mystery and there is no proximate cause
established as to why the accused appellants would do away with the
life of the deceased by pursuing a common objective. It was submitted
that even if there was any pre-conceived object, that may at the most
attract Section 304 IPC and not Section 302 IPC.
In response, learned counsel for the State submitted that the
statements of the PWs. clearly establish the role played by the
appellants. Their conduct before the incident, during the incident and
after the incident clearly establishes the common object which was
being pursued by them. No specific question was put to the I.O. as to
why there was delay, as claimed by the appellants and on the contrary
witnesses themselves have indicated the reasons as to why they were at
the spot of incident and why their statements were recorded after some
time. To similar effect is the plea of learned counsel appearing for
the informant.
The pivotal question is applicability of Section 149 IPC. Said
provision has its foundation on constructive liability which is the
sine qua non for its operation. The emphasis is on the common object
and not on common intention. Mere presence in an unlawful assembly
cannot render a person liable unless there was a common object and he
was actuated by that common object and that object is one of those set
out in Section 141. Where common object of an unlawful assembly is not
proved, the accused persons cannot be convicted with the help of
Section 149. The crucial question to determine 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 in Section
141. It cannot be laid down as a general proposition of law that unless
an overt act is proved against a person, who is alleged to be a member
of unlawful assembly, it cannot be said that he is a member of such an
assembly. The only thing required is that he should have understood
that the assembly was unlawful and was likely to commit any of the acts
which fall within the purview of Section 141. The word ’object’ means
the purpose or design and, in order to make it ’common’, it must be
shared by all. In other words, the object should be common to the
persons, who compose the assembly, that is to say, they should all be
aware of it and concur in it. A common object may be formed by express
agreement after mutual consultation, but that is by no means necessary.
It may be formed at any stage by all or a few members of the assembly
and the other members may just join and adopt it. Once formed, it need
not continue to be the same. It may be modified or altered or abandoned
at any stage. The expression ’in prosecution of common object’ as
appearing in Section 149 have to be strictly construed as equivalent to
’in order to attain the common object’. It must be immediately
connected with the common object by virtue of the nature of the object.
There must be community of object and the object may exist only up to a
particular stage, and not thereafter. Members of an unlawful assembly
may have community of object up to certain point beyond which they may
differ in their objects and the knowledge, possessed by each member of
what is likely to be committed in prosecution of their common object
may vary not only according to the information at his command, but also
according to the extent to which he shares the community of object, and
as a consequence of this the effect of Section 149, IPC may be
different on different members of the same assembly.
’Common object’ is different from a ’common intention’ as it does
not require a prior concert and a common meeting of minds before the
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attack. It is enough if each has the same object in view and their
number is five or more and that they act as an assembly to achieve that
object. The ’common object’ of an assembly is to be ascertained from
the acts and language of the members composing it, and from a
consideration of all the surrounding circumstances. It may be gathered
from the course of conduct adopted by the members of the assembly. What
the common object of the unlawful assembly is at a particular stage of
the incident is essentially a question of fact to be determined,
keeping in view the nature of the assembly, the arms carried by the
members, and the behaviour of the members at or near the scene of the
incident. It is not necessary under law that in all cases of unlawful
assembly, with an unlawful common object, the same must be translated
into action or be successful. Under the Explanation to Section 141, an
assembly which was not unlawful when it was assembled, may subsequently
become unlawful. It is not necessary that the intention or the purpose,
which is necessary to render an assembly an unlawful one comes into
existence at the outset. The time of forming an unlawful intent is not
material. An assembly which, at its commencement or even for some time
thereafter, is lawful, may subsequently become unlawful. In other words
it can develop during the course of incident at the spot eo instante.
Section 149, IPC consists of two parts. The first part of the
section means that the offence to be committed in prosecution of the
common object must be one which is committed with a view to accomplish
the common object. In order that the offence may fall within the first
part, the offence must be connected immediately with the common object
of the unlawful assembly of which the accused was member. Even if the
offence committed is not in direct prosecution of the common object of
the assembly, it may yet fall under Section 141, if it can be held that
the offence was such as the members knew was likely to be committed and
this is what is required in the second part of the section. The purpose
for which the members of the assembly set out or desired to achieve is
the object. If the object desired by all the members is the same, the
knowledge that is the object which is being pursued is shared by all
the members and they are in general agreement as to how it is to be
achieved and that is now the common object of the assembly. An object
is entertained in the human mind, and it being merely a mental
attitude, no direct evidence can be available and, like intention, has
generally to be gathered from the act which the person commits and the
result therefrom. Though no hard and fast rule can be laid down under
the circumstances from which the common object can be culled out, it
may reasonably be collected from the nature of the assembly, arms it
carries and behaviour at the time of or before or after the occurrence.
The word ’knew’ used in the second limb of the section implies
something more than a possibility and it cannot be made to bear the
sense of ’might have been known’. Positive knowledge is necessary. When
an offence is committed in prosecution of the common object, it would
generally be an offence which the members of the unlawful assembly knew
was likely to be committed in prosecution of the common object. That,
however, does not make the converse proposition true; there may be
cases which would come within the second part but not within the first
part. The distinction between the two parts of Section 149 cannot be
ignored or obliterated. In every case it would be an issue to be
determined, whether the offence committed falls within the first part
or it was an offence such as the members of the assembly knew to be
likely to be committed in prosecution of the common object and falls
within the second part. However, there may be cases which would be
within the first part but offences committed in prosecution of the
common object would also be generally, if not always, be within the
second part, namely, offences which the parties knew to be likely to be
committed in the prosecution of the common object. (See Chikkarange
Gowda and others v. State of Mysore AIR 1956 SC 731).
These aspects were recently highlighted in Chandra & Ors. v.
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State of U.P. and Anr. [2004 (5) SCC 141].
In the factual scenario noticed above, the trial court and the
High Court have referred to several relevant aspects to hold that
Section 149 IPC is applicable.
It has been established by the evidence of the eye witnesses that
all the eight accused persons were armed with weapons, they surrounded
the deceased and in fact prevented others from going near the deceased
to rescue him. They had arrived together in the same jeep and left by
the jeep after the incident. One important and relevant factor, which
has been noticed by the trial court and the High Court, is that the
jeep was kept in starting position. Significantly the defence in the
cross examination brought out the fact that the accused persons
surrounded the deceased and prevented those who wanted to go to rescue
the deceased by threatening them with dire consequences. The trial
court and the High Court have analysed the factual position in great
detail and have pointed out the aforesaid relevant factors. Therefore,
there is no infirmity in the conclusion of the courts below about the
applicability of Section 149 IPC.
Great stress was laid on the alleged delay in dispatch of the FIR
to the Ilaka Magistrate. FIR was recorded on 29.10.1999 at about 11.00
A.M. and reached the Magistrate on 30.10.1999 at about 12 noon. It
cannot be laid down as a rule of universal application that whenever
there is some delay in sending the FIR to the concerned magistrate, the
prosecution version becomes unreliable. It would depend upon the facts
of each case. In the instant case as appears from the records the
investigation was taken up immediately and certain steps in
investigation were taken. Therefore, the plea that there was no FIR in
existence at the relevant time has no substance. Additionally, no
question was asked to the investigating officer as to the reason for
the alleged delayed dispatch of the FIR. Had this been done,
investigating officer could have explained the circumstances. That
having not been done, no adverse inference can be drawn.
So far as the delayed recording of statement of the witnesses is
concerned, here again no question was put to the investigating officer
specifically as to why there was delay in recording the statement. On
the contrary, the witnesses themselves have indicated as to why there
was delay. The plea of the appellants in this regard, therefore, has no
substance.
Learned counsel for the appellants have also pointed about that
though the place where the alleged incident took place, was in a busy
locality, no independent witness was examined. It was also submitted
that the relatives have not explained as to how they happened to be at
the spot. Here again the factual position is otherwise. Out of the
witnesses who were claimed to be eye witnesses, Chandra Shekhar (PW-3)
and Narendra singh (PW-5) were not relatives and in any event belonged
to some other places. Even if PWs. 1, 2 and 4 were related to the
deceased, PW-1 was a traffic constable and as the evidence on record
clearly establishes he was posted at a place nearby the place of
occurrence as a traffic constable. Therefore, his presence cannot be
doubted. Other witnesses have also stated as to how they happened to
be at the spot of occurrence. That being so, the plea that independent
witnesses have not been examined is without any substance. Two
independent witnesses have been examined who have lent the
corroboration to the evidence of the relatives.
The criticism levelled that the relatives did not come forward to
save the deceased is also without any substance, in view of the
evidence as noted above to the effect that accused persons threatened
those who wanted to intervene with dire consequences.
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Where a group of assailants who were members of the unlawful
assembly proceeds to commit the crime in pursuance of the common object
of that assembly, it is often not possible for witnesses to describe
the actual part played by each one of them and when several persons
armed with weapons assault the intended victim, all of them may not
take part in the actual assault. Therefore, it was not necessary for
the prosecution to establish as to the specific overt act was done by
each accused.
In view of the factual position as noticed by the courts below
and the legal principles governing application of Section 149 IPC, the
inevitable conclusion is that courts below were justified in applying
Section 149 IPC to the case of the appellants. They have been rightly
convicted under Section 302 read with Section 149 IPC. That being so,
the appeals deserve dismissal which we direct.