Full Judgment Text
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CASE NO.:
Appeal (crl.) 371-372 of 2003
PETITIONER:
Ram Dular Rai & Ors.
RESPONDENT:
State of Bihar
DATE OF JUDGMENT: 27/11/2003
DORAISWAMY RAJU & ARIJIT PASAYAT.
J U D G M E N T
ARIJIT PASAYAT,J
The appellant No.1 (Ram Dular Rai) faced trial for the commission
of offences punishable under Sections 302 and 307 of the Indian Penal
Code, 1860 (for short the ’IPC’). The other appellants were tried for
offences relatable to Section 302 read with Section 149 IPC and Section
307 read with Section 149 IPC. Each of the appellants was also tried for
commission of offence punishable under Section 148 IPC and Section 27 of
the Arms Act, 1959 (in short the ’Arms Act’). They were found guilty and
sentenced to undergo imprisonment for life for the offence relatable to
Section 302 or Section 302 read with Section 149 IPC, as the case may
be. Appellant No.1 was further sentenced to undergo imprisonment for 10
years for the offence relatable to Section 307 IPC and other three
appellants were sentenced to five years imprisonment for the offence
relatable to Section 307 read with Section 149 IPC. Each of them were
sentenced to undergo imprisonment for three years for the offence
relatable to Section 148 IPC and Section 27 of the Arms Act. In appeal
by the impugned judgment, appeal of the appellant Ram Dular Rai was
dismissed. In respect of other appellants, conviction for offences
relatable to Section 307 read with Section 149 IPC was set aside. The
background facts leading to the trial is as follows:
The informant Baleshwar Nath Singh (PW-6) in his fardbayan
recorded on 17.3.1988 at about 1.05 a.m. stated that he was sleeping in
the night on the Dalan of the house where a lantern and a dhibri were
burning giving sufficient light in the Dalan. He was sleeping at the
eastern extreme on a cot and near him his son Kamla Singh, daughter of
Kamla Singh, Renu Devi (PW-2), were also sleeping. Other members of the
family were sleeping inside the rooms. At about 12.30 a.m. the accused-
appellants each armed with double barrel gun came to the Dalan along
with ten to eleven other persons and standing outside the Dalan, were
also armed with guns. On being asked by the informant about their
identity, appellant Lalu Rai scolded him and placed his gun on his
chest. Accused-appellant Ram Dular Rai fired three times on his son
Kamla Singh (hereinafter referred to as the ’deceased’) grievously
injuring him, whereafter accused fired on Renu Devi, injuring her.
Thereafter all the assailants fled away. Other members of the family and
co-villager Jai Narain Singh (PW-3) also had seen the occurrence. Kamla
Singh died due to the injuries soon thereafter. According to the
informant, the reason for the assaults was that they had been opposing
one Madho Singh since the election of Mukhiya of their Panchayat, for
which reason the assailants had committed the offence.
The accused persons denied their alleged role in the alleged
occurrence claiming that they have been falsely implicated. Accused-
appellant Lallan Rai in his examination under Section 313 of the Code of
Criminal Procedure, 1973 (for short the ’Code’) claimed that he was not
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even present, for which he placed reliance on medical certificate. One
witness was also examined as DW-1. The said witness Narain Chaupal was a
constable who was deputed for the security for accused-appellant Ram
Dular Rai after a dacoity was allegedly committed in his house. The
witness (DW-1) claimed that on hearing gunshots he had called appellant-
Ram Dular Rai and his brother Lal Mohar Rai and at his call they came
out from their house. In essence, the stand was that since they were at
their residence at that time, they could not have committed the alleged
offence. Prosecution examined 13 witnesses, out of whom Renu Devi (PW-2)
is an injured witness and the informant was PW-6. There were two other
eye-witnesses namely Ramji Singh and Jai Narain Singh (PWs 1 and 3
respectively). Placing reliance on their evidence, the trial Court
convicted the appellants as noted supra.
In appeal, as noted supra a Division Bench of the Patna High Court
upheld the conviction of accused-appellant Ram Dular Rai while allowing
the appeals of other three appellants before it. The conviction under
Section 307/149 IPC was set aside and rest of the convictions were
upheld. The High Court held that the accused persons, all armed with
guns had come to Dalan. Ram Dular Rai fired at the deceased in
furtherance of a common object and, therefore, the others were to be
convicted under Section 302 read with Section 149 IPC. However, the
assault on Renu Devi (PW-2) was a separate offence by Ram Dular Rai and
there was no common object involved.
In support of the appeals, learned counsel for the accused-
appellants submitted that in view of the admitted animosity the evidence
does not inspire confidence. There was nothing to bring in application
of Section 149 IPC. Accused-appellants 2 to 4 did not make any attempt
to enter into the house and did not commit any overt act. Only one
witness (PW-6) has stated that all the persons came together. In view of
the acquittal of appellants 2 to 4 in respect of accusations under
Section 307 read with Section 149 IPC, Renu Devi (PW-2) ceased to be an
injured witness and only evidence was that of the informant (PW-6). The
so- called eyewitnesses could not have identified the persons as
claimed. There was no scope for recognizing any of the accused. A person
lying on a bed immobilized could not have made any recognition. As the
other witnesses were beyond doors they could not have seen who was
coming and who was going and, therefore, their evidence should be
discarded. In any event, the number of accused persons does not exceed
five and merely because some people were claimed to be unidentified
persons they were only introduced to bring in application of Section 149
IPC. If Section 149 IPC is kept out then Section 34 IPC can be pressed
into service and for that there must be a participation. There is no
evidence of any participation or showing sharing of common object. The
evidence of DW-1 has not been duly considered as his evidence clearly
rules out the presence of accused appellants Ram Dular Rai and Lal Mohar
Rai. Even if for the sake of arguments it is accepted that there was
definite role attributed to accused appellants 1 and 4, that is not
sufficient to rope in others. The presence of any dhibri or lantern as
stated has not been established. The prosecution has introduced these
two articles to make identification possible. The FIR was ante dated as
has been clearly noted by the trial Court; but the reason given by the
investigating officer has been accepted; which should not have been
done.
In response, learned counsel for the State submitted that the
evidence of DW-1 does not in any way rule out presence of the accused
appellants 1 and 4. The High Court has analysed the evidence in detail
as the evidence of eyewitnesses was categorized to be of partisan
nature. The High Court has held that the witnesses were natural
witnesses. The conviction and consequentially the sentences imposed are
well merited and do not deserve any interference.
Coming to the question whether Section 149 has application when
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presence of more than five persons is established, but only four are
identified, Section 149 does not require that all the five persons must
be identified. What is required to be established is the presence of
five persons with a common intention of doing an act. If that is
established merely because the other persons present are not identified
that does not in any way affect applicability of Section 149 IPC.
Another plea which was emphasized relates to the question whether
Section 149, IPC has any application for fastening the 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 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
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
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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 co instanti.
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 called out, it may
reasonably be collected from the nature of the assembly, arms it carries
and behaviour at or before or after the scene of incident. The word
’knew’ used in the second branch 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 first offences committed in
prosecution of the common object, but would be generally, if not always,
with the second, namely, offences which the parties knew to be likely
committed in the prosecution of the common object. (See Chikkarange
Gowda and others v. State of Mysore, AIR 1956 SC 731.)
The other plea that definite roles have not been ascribed to the
accused and, therefore, Section 149 is not applicable, is untenable. A
4-Judge Bench of this Court in Masalti and Ors. v. State of U.P. (AIR
1965 SC 202) observed as follows:
"Then it is urged that the evidence given by
the witnesses conforms to the same uniform pattern
and since no specific part is assigned to all the
assailants, that evidence should not have been
accepted. This criticism again is not well founded.
Where a crowd of assailants who are members of an
unlawful assembly proceeds to commit an offence of
murder in pursuance of the common object of the
unlawful assembly, it is often not possible for
witnesses to describe accurately the part played by
each one of the assailants. Besides, if a large
crowd of persons armed with weapons assaults the
intended victims, it may not be necessary that all of
them have to take part in the actual assault. In the
present case, for instance, several weapons were
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carried by different members of the unlawful
assembly, but it appears that the guns were used and
that was enough to kill 5 persons. In such a case, it
would be unreasonable to contend that because the
other weapons carried by the members of the unlawful
assembly were not used, the story in regard to the
said weapons itself should be rejected. Appreciation
of evidence in such a complex case is no doubt a
difficult task; but criminal courts have to do their
best in dealing with such cases and it is their duty
to sift the evidence carefully and decide which part
of it is true and which is not."
To similar effect is the observation in Lalji v. State of U.P.
(1989 (1) SCC 437). It was observed that:
"Common object of the unlawful assembly can be
gathered from the nature of the assembly, arms used
by them and the behaviour of the assembly at or
before the scene of occurrence. It is an inference to
be deduced from the facts and circumstances of each
case."
In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC 747) it was
observed that it is not necessary for the prosecution to prove which of
the members of the unlawful assembly did which or what act. Reference
was made to Lalji’s case (supra) where it was observed that "while
overt act and active participation may indicate common intention of the
person perpetrating the crime, the mere presence in the unlawful
assembly may fasten vicariously criminal liability under Section 149".
In the present case the evidence of eye-witnesses which has been
analysed in great detail by both the trial Court and the High Court
shows that though four appellants were specifically identified, other
persons carrying weapons were present along with the appellants at the
time and place of occurrence. That being so, Section 149 has been
rightly applied.
One of the pleas raised with emphasis related to the evidence of
DW-1. On a closer reading of his evidence it is clear that the same does
not in any way improbabilises the presence of the appellants at the time
of occurrence. He only has stated that on hearing his call, appellants 1
and 4 came near him. The place of occurrence and the place of residence
of A-1 are in close proximity. The possibility, as has been highlighted
by the trial Court and the High Court, of the aforesaid two accused
appellants coming to their respective place of residence after
committing the offence cannot be ruled out and is not physical
impracticability or impossibility. In respect of appellant Lallan Rai it
is submitted that he did not fire the gun. Nothing has been shown about
his intention or to show that the deceased was the target. This plea is
clearly untenable because when some persons came with guns and their
actions preceding and succeeding the assault indicate the existence of a
common intention to do an act as stipulated in Section 149, the
liability under Section 149 is clearly attracted. The eyewitnesses to
the occurrence as held by the trial Court and the High Court are natural
witnesses and their presence at the spot of occurrence or nearby is
quite normal. Nothing suspicious has been indicated as to why their
evidence which stood firm in spite of incisive cross-examination is to
be discarded on the hypothesis that they are inimical to the accused
persons. Looked at from any angle the judgment of the High Court does
not warrant any interference and the appeals fail and are dismissed.
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+
5 4075-4081 1998
!
Nair Service Society
Vs.
Dist. Officer, Kerala Public Ser. Comm. And Ors.
@
November 17, 2003.
BENCH:
S.B. Sinha.
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
The mode and manner of selection and method of appointment to the
post of Sub-Engineer (Civil) in the Kerala State Electricity Board as
also the terms and conditions thereof indisputably are governed by
Kerala State and Subordinate Service Rules, 1958 (’the Rules’). The
Rules also provide for reservation being governed by Rules 14 to 17
thereof. Rule 14(c) provides for the manner in which the order of
rotation shall be worked out. In terms of Rule 15, it is provided that
if a suitable candidate is not available for selection from any
particular community or group of communities specified in the Annexure,
the said community or group shall be passed over and the post shall be
filled up by a suitable candidate from the community or group of
communities immediately next to the passed over community or group in
the said Annexure, as the case may be, in the order of rotation. In the
Annexure appended to Rule 15 for direct recruitment to the posts other
than those included in the Kerala Last Grade Service, a 100 point roster
is given. Once, however, the benefit of the turn in terms of Rule 15 is
forfeited to a particular community or a group of community having been
passed over, the same shall be restored to it at the earliest possible
opportunity, if a suitable candidate from the particular community or
group is available for selection upon making adjustment therefor against
the claims of that community or group, as the case may be. The proviso
appended to the said Rule in no uncertain terms restricts reservation
including carrying forward vacancy to a category of posts in the year of
recruitment in question not exceeding 50% of the total number of
vacancies.
By reason of a note appended to Rule 15, it is provided that for
purposes of application of the proviso to Rule 15 limiting the number of
vacancies to be reserved in a year as 50 per cent in respect of a
category of post, the period of one year shall commence on and from the
day on which the ranked list of candidates prepared by the Commission in
respect of that post comes into force. The matter relating to
reservation is governed thereunder and the Public Service Commission was
under a statutory duty to follow the principles laid down in the said
rules.
The Public Service Commission of the State of Kerala framed the
Kerala Public Service Commission Rules of Procedure which is non-
statutory in nature. Rule 2(g) of the said Rules defined "Ranked List"
as:
"Ranked List" means list of candidates arranged
in the order of merit, either on the basis of
the interview or examination or by both;
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Rule 4 of the said Rules which is material for the purpose of
determining the issues raised in this matter reads thus:
"Where a written examination and/ or a practical
test is conducted by the Commission for
recruitment to a service or post, the Commission
shall -
(i) announce:
(a) the qualifications required of
the candidates for the
examination,
(b) the conditions of admission to
the examination including the
fees,
(c) the subjects, scheme or syllabus
of the examination, and
(d) the number of vacancies to be
filled from among the candidates
for the examination;
Provided that where the exact number of
vacancies to be filled is not ascertainable, the
Commission may either announce the approximate
number of vacancies to be filled or state that
the number of vacancies has not been estimated.
(ii) invite applications and consider all
the applications so received,
(iii) make all arrangements for the
conduct of the examination for the
candidates whose applications are
found to be in order, and
(iv) prepare a list in the order of merit
of such number of candidates as the
Commission may determine from time
to time;
Provided that the Commission may also
prepare separate ranked lists in the order of
merit of candidates coming under separate groups
in accordance with the qualifications or other
conditions as stipulated in the notification;
Provided further that for the purpose of
satisfying the rules of reservation of
appointment to Scheduled Castes, Scheduled
Tribes and other Backward Classes also the
Commission may prepare such supplementary lists
as found necessary from time to time in the
order of merit of the candidates belonging to
such classes."
Relevant part of Rules 12 and 13 of the said Rules read as under:
"12. All the candidates interviewed and who
obtained not less than the minimum marks fixed
by the commission shall be included in the
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ranked list prepared in the order of merit;
Provided where the candidates have been
called for interview for the purpose of
satisfying the rules of reservation alone such
candidates who have got not less than the
prescribed minimum marks in the interview shall
be included in the supplementary list or lists
arranged in the order of merit among the
candidates belonging to each class;
Provided further that the Commission may
also prepare list or lists of such categories of
candidates who have got not less than the
prescribed minimum marks in the interview and
who are entitled to priority according to the
terms of the notification inviting applications;
Provided further that the Commission may
also prepare lists of overaged candidates who
have secured not less than the prescribed
minimum marks in the interview and who are
eligible to be considered for appointment in the
absence of candidates who conform to the rules
regarding age limits...
13. The ranked lists published by the Commission
shall remain in force for a period one year from
the date on which it was brought into force
provided that the said list will continue to be
in force till the publication of a new list
after the expiry of the minimum period of one
year or till the expiry of three years whichever
is earlier...;"
The Kerala Public Service Commission under a misconception
prepared a supplementary list only in relation to the reserved category
of candidates and did not prepare such list in terms of the open
category candidates. A bare perusal of the two provisos appended to both
Rules 4 and 12 clearly show that two separate ranked lists were required
to be prepared, one for the open category candidates and another for the
reserved category candidates. The purport and object of preparing such
separate ranked lists is absolutely clear and unambiguous. Such lists
should be in the nature of waiting list so that the vacancies arising
during the period when such list is prepared till the publication of a
new list as envisaged in Rule 13 can be filled up. In other words, in
terms of the aforementioned rules what was required to prepare was a
main list - a separate ranked list for open category candidates as also
a supplementary list for the purpose of satisfying the rules of
reservation of appointment of reserved category candidates. Non-
Statutory Rules framed by the Commission must be read in such a manner
which would fulfill the reservation criteria contained in the Statutory
Rules.
Preparation of only one supplementary list for filling up the
vacancies by the some candidates not joining their posts, only from the
reserved category of candidates, therefore, would be illegal, as thereby
the relevant provision relating to the percentage of reservation
contained in Rule 15 of the statutory rule would stand infringed.
Both the lists viz for the open category of candidates as also
the reserved category of candidates were necessary,
thus, required to be prepared in terms of the said Rules for
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maintaining the ratio of 50-50.
The respondents herein filed a writ petition before the High Court
for giving effect to the said purported supplementary list wherein the
following prayers were made:
"(i) to issue a writ of mandamus or any other
appropriate writ order or direction commanding
the 1st respondent to advice candidates against
the non-joining duty vacancies of Muslim
candidates advised on 20.8.1994 from Ext. P1
list and also to such vacancies of candidates,
advised on 21.12.1994.
(ii) to direct the 2nd respondent to report non-
joining duty among 89 candidates advised from
Ext. P1 list on 21.12.1994."
The High Court by reason of the impugned judgment granted the said
prayer inter alia holding that the rule of reservation is not affected
as the vacancies created by reason of non-joining of the posts belonging
to open category candidates may be filled up in the later year. The
hardship created to one category of candidates in terms of Rule 13 had
not been considered by the High Court inasmuch as such vacancies may not
be filled up for a period of three years. Furthermore, by reason
thereof, the reservation policy of the State as contained in the Kerala
State and Subordinate Service Rules, 1958 has been violated. This Court
in a large number of decisions has clearly held that for the purpose of
making the reservation policy a reasonable one the extent thereof should
not exceed 50% save in exceptional situation. The statutory rules also
contain such a prohibition. Article 16(4B)of the Constitution of
India is also a pointer to the said fact in terms whereof an enabling
provision has been created whereby and whereunder the State may consider
to fill up the unfilled vacancies of a year which are reserved for being
filled up in that year in accordance with the provisions made under
Clause (4) or (4A) as a separate class of vacancies to be filled up in
any succeeding year or years and such class of vacancies shall not be
considered together with the vacancies of the year in which they are
being filled up for determining the ceiling of 50% reservation on total
number of that year.
The judgment of the High Court, if implemented, would thus be
violative of Article 16(4B) of the Constitution as also the statutory
rules.
The High Court, therefore, committed an illegality in passing the
impugned judgment insofar as it failed to take into consideration that
in the event the same is given effect to, more than 50% of the vacancies
in a particular year will be filled up from amongst the reserved
category candidates. We, however, having regard to the facts and
circumstances of the case do not intend to set aside the appointments
made in favour of the private respondents herein only on the ground that
the judgment of the High Court has been acted upon.
For the reasons aforementioned, I agree that the appeal shall be
allowed to the extent as directed by my learned Brother Dr. Lakshmanan,
J. in his judgment.