Full Judgment Text
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CASE NO.:
Appeal (crl.) 830 of 2005
PETITIONER:
MOHINDER SINGH AND ORS.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT: 24/03/2006
BENCH:
S.B. SINHA & P.P. NAOLEKAR
JUDGMENT:
JUDGMENT
P.P. NAOLEKAR, J.
The accused-appellants belong to Sakkanwali Village,
Police Station Sadar Muktsar, District Muktsar, Punjab. The
deceased Harbans Singh was the neighbour of the
appellants. There was a dispute on the demarcation of the
Shamlat land. Some portion of this land is claimed by the
accused-appellants and some of the land was being claimed
by Harbans Singh, the deceased. The Shamlat land has not
been demarcated nor a particular portion of the land was in
exclusive possession of either the appellants or the
complainant party. As per the First Information Report
lodged by Harvinder Kaur at 10.30 P.M. on 23rd February,
1996, the prosecution story unfolded is, that on 23rd
February 1996 at about 5.30 P.M., the complainant
Harvinder Kaur (PW-1) along with Jasvinder Kaur (PW-2),
wife of Jaspal Singh, were making cow-dung cakes in the
Shalmat land. Harbans Singh after providing fodder to the
cattle was talking to Jaspal Singh. In the meantime,
Mohinder Singh (A-1) and Nasib Singh (A-3), armed with
licensed 12 bore double barrel guns, Naginder Singh (A-6)
armed with dang, Sukhdev Singh (A-5) armed with kassia,
Beant Singh (A-2) armed with kirpan and Nirbhai Singh
(A-4) armed with kassruli came to the spot. Mohinder Singh
(A-1) raised lalkara that the complainant party be taught a
lesson for grabbing and making addition of the land of the
accused with that of the land of the complainant party.
Then Mohinder Singh fired shot from his licensed gun at
Harbans Singh, which hit him on the left side of the chest.
When the complainant (PW-1) ran towards her husband to
save him, Nasib Singh (A-3) fired a shot from his double
barrel 12 bore gun, which hit her on the ankle of left foot.
At that time Mohinder Singh fired another shot, which hit on
the interior side of the right thigh of Harbans Singh, the
deceased. At the same time Naginder Singh (A-6) gave
dang blows to Jaspal Singh and Nasib Singh again fired shot
on the right leg of Jasvinder Kaur. An alarm was raised
which attracted Gurbans Singh and Mander Singh sons of
Gurdev Singh, Pritam Singh and Gurmit Singh sons of Bhag
Singh, Madan Singh son of Avtar Singh and Mukhtiar Singh
son of Mehar Singh, residents of Sakkanwali Village. When
they tried to intervene and rescue the members of the
complainant party, Mohinder Singh and Nasib Singh fired
shots at them hitting the right flank of Madan Singh and left
leg of Pritam Singh. Similarly, Sukhdev Singh, Beant Singh
and Nirbhai Singh caused injuries to Mander Singh, Gurbans
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Singh, Mukhtiar Singh and Gurmit Singh. After causing the
aforesaid injuries, all the accused ran away with their
respective weapons. Thereafter, Gurmit Singh arranged for
the vehicle and took the injured to the Civil Hospital,
Muktsar. However, Harbans Singh succumbed to his injuries
on his way to the hospital. The remaining injured were got
admitted to the Civil Hospital at Muktsar.
The inquest report of the dead body of Harbans Singh
was prepared in the presence of Jaspal Singh and Mander
Singh. The special report reached the Illaqa Magistrate at
5.00 A.M. on 24th February, 1996. After the investigation
the accused persons were arrested and prosecuted.
Appellants Mohinder Singh, Sukhdev Singh and
Naginder Singh had taken the plea of alibi stating that on
the date of occurrence they along with Bachittar Singh and
Harmanjit Singh had gone to the village Jharriwala to see a
match for the grand daughter of Naginder Singh and had
returned late in the night. As such they were not present on
the date at the place of occurrence and had been falsely
implicated by the complainant side. The other appellants
while admitting the incident asserted that Harvinder Kaur
had given wrong version of the facts, in fact, Nasib Singh
was present at his house. Nirbhai Singh and Beant Singh
came to know that Harbans Singh (deceased), Jaspal Singh
(PW-9), Gurdev Singh, Mander Singh armed with gandasas
along with some other persons were placing cow-dung cakes
in their plot/land to take forceful possession of the land and
when Nirbhai Singh and Beant Singh went to the spot to
make enquiries, the aforesaid persons attacked them and
caused injuries. Nasib Singh, Gurmail Singh and Angrez
Singh intervened to save Nirbhai Singh and Beant Singh.
Gurmail Singh and Angrez Singh caused injuries to the
complainant’s side. It was further asserted that in the
meanwhile, some other persons collected there and Nasib
Singh in self-defence of his property and person fired shots
which hit the complainant’s side.
The prosecution has mainly based its case on the eye
witnesses’ account of the incident deposed by Harvinder
Kaur (PW-1), Jasvinder Kaur (PW-2), Jaspal Singh (PW-9)
and Pritam Singh (PW-10), the injured witnesses. The post-
mortem of the deceased Harbans Singh was conducted by
Dr. Kirandeep (PW-4) and she had found fire-arm injuries on
the person of the deceased. In her opinion, the cause of
death was shock and haemorrhage as a result of injury to
pericardium and heart, which was sufficient to cause death
in the ordinary course of nature. Dr. M.G. Sharma (PW-3)
had examined Mukhtiar Singh and Jaspal Singh. On 23rd
February, 1996, Dr. Tarlochan Singh (PW-15) examined
Harvinder Kaur (PW-1), Gurmit Singh, Pritam Singh,
Jasvinder Kaur (PW-2) and Mander Singh. The doctors
found the injuries on the person of the persons examined by
them. Nirbhai Singh (A-4) and Beant Singh (A-2) were also
examined by Dr. APS Kochar (DW-1) who had found some
injuries on the person of A-4 and A-2. At the instance of
the accused Mohinder Singh and Nasib Singh, licensed guns
were recovered from their possession. After appreciation of
the evidence on record, the trial court convicted all the
accused persons as under:
(i)
Mohinder
Singh
Beant
Singh
Nasib
Singh
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Nirbhai
Singh
Sukhdev
Singh
Naginder
Singh
U/s
148 of
the
I.P.C.
To undergo rigorous
imprisonment for a period of one
year, each.
(ii)
Mohinder
Singh
U/s
302 of
the
I.P.C.
To undergo rigorous
imprisonment for life and to pay
a fine of Rs. 10,000/- and in
default of payment of fine to
further undergo rigorous
imprisonment for a period of one
year for committing the murder
of Harbans Singh.
(iii)
Beant
Singh
Nasib
Singh
Nirbhai
Singh
Sukhdev
Singh
Naginder
Singh
U/s
302
r/w S.
149
I.P.C.
To undergo rigorous
imprisonment for life and to pay
a fine of Rs. 10,000/- each and in
default of payment of fine to
further undergo rigorous
imprisonment for a period of one
year each for committing the
murder of Harbans Singh.
(iv)
Nasib
Singh
Mohinder
Singh
U/s
307
I.P.C.
To undergo rigorous
imprisonment for a period of
seven years and to pay a fine of
Rs. 2000/- each, and in default of
payment of fine to further
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undergo rigorous imprisonment
for six months each, for
attempting to murder Harvinder
Kaur, Jasvinder Kaur, Modan
Singh & Pritam Singh by causing
gun shot injuries.
(v)
Beant
Singh
Nirbhai
Singh
Sukhdev
Singh
Naginder
Singh
U/s
307
r/w S.
149
I.P.C.
To undergo rigorous
imprisonment for a period of
seven years and to pay a fine of
Rs. 2000/- each and in default of
payment of fine to further
undergo rigorous imprisonment
for six months, each for
attempting to murder Harvinder
Kaur, Jasvinder Singh, Modan
Singh and Pritam Singh by
causing fire arm injuries.
(vi)
Beant
Singh
Sukhdev
Singh
U/s
326
I.P.C.
To undergo rigorous
imprisonment for a period of
three years and to pay a fine of
Rs. 1500/- each and in default of
payment of fine to further
undergo rigorous imprisonment
for 3 months each, for causing
grievous hurt to Gurbans Singh &
Mukhtiar Singh.
(vii)
Mohinder
Singh
Nasib
Singh
Nirbhai
Singh
Naginder
Singh
U/s
326
r/w S.
149
I.P.C.
To undergo rigorous
imprisonment for a period of
three years and to pay a fine of
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Rs. 1500/- each and in default of
payment of fine to further
undergo rigorous imprisonment
for three months, each for
causing grievous hurt to Gurbans
Singh and Mukhtiar Singh.
(viii)
Naginder
Singh
Sukhdev
Singh
U/s
325
I.P.C.
To undergo rigorous
imprisonment for a period of two
years and to pay a fine of Rs.
1000/- each and in default of
payment of fine to further
undergo rigorous imprisonment
for 3 months, each for causing
grievous hurt with blunt weapon
to Jaspal Singh and Mukhtiar
Singh.
(ix)
Mohinder
Singh
Nasib
Singh
Nirbhai
Singh
Beant
Singh
U/s
325
r/w S.
149
I.P.C.
To undergo rigorous
imprisonment for a period of two
years and to pay a fine of Rs.
1000/- each and in default of
payment of fine to further
undergo rigorous imprisonment
for 3 months, each for causing
grievous hurt with blunt weapon
to Jaspal Singh and Mukhtiar
Singh.
(x)
Beant
Singh
Sukhdev
Singh
U/s
324
I.P.C.
To undergo rigorous
imprisonment for a period of one
year and to pay a fine of Rs.
500/- each and in default of
payment of fine to further
undergo rigorous imprisonment
for two months each for causing
simple hurt to Mander Singh &
Mukhtiar Singh.
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(xi)
Mohinder
Singh
Nasib
Singh
Nirbhai
Singh
Naginder
Singh
U/s
324
r/w S.
149
I.P.C.
To undergo rigorous
imprisonment for a period of one
year and to pay a fine of Rs.
500/- each and in default of
payment of fine to further
undergo rigorous imprisonment
for 2 months, each for causing
simple hurt to Mander Singh &
Mukhtiar Singh.
(xii)
Naginder
Singh
Beant
Singh
Nirbhai
Singh
Sukhdev
Singh
U/s
323 of
I.P.C.
To undergo rigorous
imprisonment for a period of six
months and to pay a fine of Rs.
200/- each and in default of
payment of fine to further
undergo rigorous imprisonment
for 15 days, each for causing
simple hurt to Jaspal Singh,
Mander Singh, Jasvinder Kaur,
Gurmit Singh & Mukhtiar Singh.
(xiii)
Mohinder
Singh
Nasib
Singh
U/s
323
r/w S.
149
I.P.C.
To undergo rigorous
imprisonment for a period of six
months and to pay a fine of Rs.
200/- each and in default of
payment of fine to further
undergo rigorous imprisonment
for 15 days, each for causing
simple hurt to Jaspal Singh,
Mander Singh, Jasvinder Kaur,
Gurmit Singh & Mukhtiar Singh.
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The entire sentence was directed to run concurrently.
However, the period of detention already undergone by the
accused convicts during investigation or trial was directed to
be deducted from the period of their substantive sentences.
Aggrieved by the order of conviction and sentence an
appeal was preferred in the High Court of Punjab and
Haryana. It was urged before the High Court that there was
a delay in lodging the FIR, which was lodged at 10.30 P.M.
whereas the alleged incident took place at 5.30 P.M. on 23rd
February, 1996 and the report to the Illaqa Magistrate had
reached at 5.00 A.M. on 24th February, 1996, which goes to
show that the complainant party had consumed time in
coining up a story of their choice in connivance with the
police. That non-explanation of the injuries on the person
of Beant Singh and Nirbhai Singh, dented the prosecution
case and because of non-explanation of the injuries by the
witnesses on the person of the accused, it can be inferred
that the complainant’s side was suppressing the genesis of
fight. That there was a discrepancy between the eye-
witnesses’ version and medical evidence. That the plea of
alibi taken by Sukhdev Singh, Naginder Singh and Mohinder
Singh was proved by the defence and as such they could not
have been convicted. It was lastly submitted that their
presence at the spot was not unnatural as the houses of the
appellants were adjoining to the place of occurrence and
unlawful assembly with a common object to commit the
murder of Harbans Singh and cause injuries to other
persons, cannot be inferred. The High Court recorded the
findings that in the circumstances of the case, merely
because there was some delay in lodging the FIR, it cannot
be said that the prosecution had manufactured a story to
falsely implicate the appellants, particularly so when the
occurrence was admitted by the appellants, maybe with the
denial of the presence of Mohinder Singh, Sukhdev Singh
and Naginder Singh at the spot. The so called delay would
at best call for more care and caution while scanning the
entire evidence so that there would not be chances of false
implication. The element of delay in registering the
complaint or sending the same to the jurisdictional
Magistrate by itself would not be fatal to the prosecution, if
the evidence adduced by the prosecution was worthy of
credence. The High Court found the eye- witnesses’ version
credible and trustworthy. As for non-explanation of the
injuries on the appellants Beant Singh and Nirbhai Singh,
the High Court has found that there were no injuries on their
person by gandasa, which was claimed in defence.
According to the High Court, the injuries were superficial in
nature except one on the person of Beant Singh which was
in the shape of diffused swelling and the doctor had opined
that there was no visible injury mark seen, which showed
that no injury was caused by the blunt side of the gandasa
otherwise it would have left some mark of violence. The
effect of the non-explanation of the injuries on the person of
the accused had to be judged from the entire factual
position, and having done so, in view of the High Court, the
prosecution had not suppressed the genesis of fight. The
High Court opined that the appellants in the shape of
aggressors formed an unlawful assembly causing the murder
of Harbans Singh and caused injuries to nine persons. As
per the High Court, there was no discrepancy in the medical
evidence and the eye-witnesses’ account for the injuries
caused by the use of firearm. The distance between the
assailants and the injured, as per the prosecution witnesses
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was 7-8 karams, whereas according to the medical evidence
the shots fired were not from more than a distance of 4 ft.
from the muzzle end of the gun. This is on account of
blackening around the wound. The High Court has held that
the witnesses are rustic villagers from whom accuracy about
the exact distance cannot be expected. All the four injured
witnesses examined have categorically stated in one voice
that Mohinder Singh along with Nasib Singh armed with
licensed guns came and fired at Harbans Singh, the
deceased. On perusal of the site plan, it is clear that the
place of occurrence is of very small in dimension. Five
persons from the complainant’s side including the deceased
were present on the plot, whereas the other five persons,
who had received injuries, had also reached the spot after
hearing the commotion. From the appellants’ side, six
persons entered the said plot. Thus, in all 16 persons were
present at the time of incident and in such a situation it
would not be possible for the witnesses to make the correct
assessment of the distance, from where the shots were fired
and in these circumstances the gun fires and the resultant
injuries thereof, witnessed by the witnesses present and
injured, cannot be disbelieved. Coupled with the fact that
the licensed guns of the accused persons were recovered at
the instance of the accused and the user of the same being
confirmed by Forensic Science Lab, the witnesses’ version
cannot be disbelieved. It was obvious that two guns had
been used in the occurrence.
The plea of alibi was disbelieved by the High Court on
the grounds that the onus to prove the same heavily rests
on the accused which they failed to discharge. On these
findings, the High Court has reached an irresistible and
unequivocal conclusion that the appellants’ conviction as
recorded by the learned trial court on different counts
deserves to be upheld and accordingly the appeal was
dismissed.
Aggrieved by the same, the present appeal by special
leave is preferred before us. It may be mentioned that the
accused appellant Mohinder Singh has been released by the
State considering his age and his appeal is not being pressed
by the counsel for the appellant. The other accused-
appellant Nasib Singh has been informed to have died, by
the counsel for the appellant and as such his appeal stands
abated. Thus, we are considering the appeal as regards
Beant Singh, Nirbhai Singh, Sukhdev Singh and Naginder
Singh.
It is contended by the learned counsel for the
appellants that the prosecution has failed to explain the
injuries caused to Nirbhai Singh (A-4) and Beant Singh (A-2)
and, therefore, the prosecution has failed to establish the
genesis of offence. The failure of the prosecution to offer
any explanation regarding the injuries found on the accused
would mean that the evidence led by the prosecution
relating to the incident is not true or at any rate is not
wholly true and thus reliance could not have been placed on
that evidence to convict the accused persons. To prove the
fact that Beant Singh and Nirbhai Singh have received
injuries, the defence has examined Dr. APS. Kochar, District
T.B. Officer, Civil Surgeon Office, Faridkot. The doctor
stated that he had examined Beant Singh at 10.30 P.M. on
23rd February, 1996 at Faridkot and found four injuries on
his person. The injuries were caused by a blunt weapon.
Injury No.4 was declared as simple. On X-Ray examination
report, injury Nos. 1 and 2 were also found as simple in
nature and injury No.3 was grievous in nature. On the same
day at 11.00 P.M., he examined Nirbhai Singh and found
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three injuries on his person. Injury No.1 was caused by a
sharp weapon and rest of the injuries were caused by a
blunt weapon. Injury Nos. 1 and 2 were simple and after
getting X-Ray examination report injury No.3 was found to
be grievous in nature. On cross-examination, it was
admitted by him that he attached no X-Ray report on his
record. Similarly X-Ray report and skiagraph report were
not on the judicial file. Injury on the person of Beant Singh
could possibly be caused as a result of falling on the hard
surface. Injury No.1 on the person of Nirbhai Singh could be
caused with the blade of a razor. Injury No.2 could be
caused if the nail struck at a hard surface. Injury No.3 on
the person of Nirbhai Singh could be caused by falling on the
hard surface. From the evidence of (DW-1), it is apparent
that the injuries were simple in nature and the grievous
nature of injury could not be proved by the doctor by
producing the X-Rays and skiagraph, on the basis of which
he had formed the opinion of the grievous nature of the
injury on Beant Singh as well as on Nirbhai Singh.
In the case of Lakshmi Singh and Ors. vs. State of
Bihar (1976) 4 SCC 394, it is observed that any non-
explanation of the injuries on the accused by the prosecution
may affect the prosecution case. But such non-explanation
may assume greater importance where the evidence
consisted of interested or inimical witnesses or where the
defence gives a version which competes in probability with
that of the prosecution. But where the evidence is clear,
cogent and credit-worthy and where the Court can
distinguish the truth from the falsehood, the mere fact that
the injuries are not explained by the prosecution, cannot
itself be a sole basis to reject such evidence and
consequently the whole case.
In Rizan and Anr. vs. State of Chhattisgarh (2003) 2
SCC 661, this Court has held that non-explanation of the
injuries sustained by the accused at about the time of
occurrence or in the course of altercation is a very important
circumstance. But mere non-explanation of the injuries by
the prosecution may not affect the prosecution case in all
cases. This principle applies to a case where the injuries
sustained by the accused are minor and superficial or where
the evidence is so clear and cogent, so independent and
disinterested, so probable, consistent and creditworthy, that
if far outweighs the effect of the omission on the part of the
prosecution to explain the injuries. This principle was
discussed in Sekar alias Raja Sekharan vs. State
represented by Inspector of Police, T.N. (2002) 8 SCC 354
and was reiterated in Anil Kumar vs. State of U.P., (2004)
13 SCC 257.
All the three aforesaid judgments have approved the
statement of law enunciated in Lakshmi Singh’s Case
(supra).
In the present case, there is a creditworthy evidence
of PW-1, PW-2, PW-9 and PW-10 viz., Harvinder Kaur,
Jasvinder Kaur, Jaspal Singh and Pritam Singh, who have
vividly described the incident and the part played by each of
the accused-appellants. All the four witnesses are injured
witnesses and their presence at the spot cannot be doubted.
The evidence led by the defence at best shows minor
injuries suffered by Beant Singh and Nirbhai Singh which
would not dislodge the prosecution case, which is
established by the evidence of creditworthy witnesses and
non-explanation of the injuries by the prosecution, if any,
sustained by the accused-appellants would not result in
disbelieving the prosecution version.
To prove the case, the prosecution has examined four
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eye-witnesses. Harvinder Kaur (PW-1), w/o Harbans Singh
(deceased) has deposed that on the relevant day, her
husband and Jaspal Singh were present at the place of
incident where they were preparing cow-dung cakes. She
saw the accused-appellants proceeding towards the
shamlat land. Mohinder Singh and Nasib Singh were armed
with licensed 12 bore guns, Naginder Singh with dang,
Sukhdev Singh with Kassia, Beant Singh with Kirpan, Nirbhai
Singh with Kassruli. Mohinder Singh raised a lalkara that
they would teach us a lesson for adding their land with our
land. Mohinder Singh accused fired from his 12 bore gun
towards her husband Harbans Singh which hit him on the
left side of his chest. She ran towards her husband and
Nasib Singh fired at her by his gun which hit her on her left
ankle. Mohinder Singh fired another shot which hit her
husband on his right thigh while lying on the ground.
Naginder Singh-accused gave dang blows to Jaspal Singh by
hitting him but she could not tell the place of injuries on the
person of Jaspal Singh. Nasib Singh then fired from his 12
bore gun hitting Jasvinder Kaur on her right leg above her
right ankle on the front side. Nirbhai Singh-accused caused
injuires to Jasvinder Kaur with kassruli. They raised alarm.
On hearing noise Mander Singh, Gurbans Singh, Gurmit
Singh, Pritam Sikngh, Madan Singh and Mukhtiar Singh
came to the spot to rescue them from the accused. At that
time Mohinder Singh fired from his gun hitting on the right
flank of Madan Singh and left leg of Pritam Singh. Then
Naginder Singh, Beant Singh, Sukhdev Singh and Nirbhai
Singh with their respective weapons caused injuries to
Mander Singh, Gurbans Singh, Gurmit Singh and Mukhtiar
Singh. She has further stated in cross-examination that she
was present at the spot 25-30 minutes prior to the
occurrence and she had seen the accused at a distance of 7-
8 karams. The accused persons came carrying guns with
them. The other accused were also with them and they
came together. Mohinder Singh accused fired with the gun
from a distance of 7-8 karams at Harbans Singh. Nasib
Singh was at a distance of 7-8 karams from Jasvinder Kaur
when he fired. Nasib Singh and Mohinder Singh had fired
from 7-8 karams at Madan Singh and Pritam Singh.
Further, Jasvinder Kaur (PW-2), another injured eye-
witness, fully supports the version given by PW-1 of the
incident. She specifically stated that Nasib Singh fired from
his 12 bore gun towards her which hit her on her right leg
above the ankle and the pellets hit her on abdomen and
Nirbhai Singh gave kassruli blows on her left foot.
Jaspal Singh (PW-9) is another injured eye-witness
examined by the prosecution who had described the incident
and the participation of the accused persons in the incident
as described by PW-1 and PW-2. He had specifically
deposed that accused-Naginder Singh gave three dang
blows to him, first blow hit on his shoulder and second blow
was received by him on the back side at right hand.
Pritam Singh (PW-10), another injured eye-witness,
had supported the statements of the eye-witnesses in toto.
The cross-examination of these witnesses could not
show any contradiction or discrepancy in their version in
regard to the participation of the accused-appellants in the
crime and the part played by them. The ocular version of
the witnesses find support from the medical evidence of Dr.
Kirandeep (PW-4) who has conducted the post-mortem on
the deceased Harbans Singh. Statement of Dr. M.G.
Sharma (PW-3), who examined Mukhtiar Singh and Jaspal
Singh and statement of Dr. Tarlochan Singh (PW-15), who
examined Harvinder Kaur Gurmit Singh, Pritam Singh,
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Jasvinder Kaur and Mander Singh, fully corroborated the
ocular version of the eye-witnesses. We find that the eye-
witnesses were wholly reliable and supported the case of the
prosecution to the hilt.
The counsel then has urged before us that the
appellants before us have not caused any injury to Harbans
Singh, the deceased, and, therefore, they could not have
been convicted under Section 302 read with Section 149 of
IPC for causing homicidal death of Harbans Singh. The
conviction under Section 302/149 could not be supported on
the basis of the evidence led by the prosecution.
The scope and ambit of Section 149 of IPC was the
subject of discussion in various authorities of this Court.
In Sukhbir Singh v. State of Haryana, (2002) 3 SCC
327, it is held by this Court that an accused is vicariously
guilty of the offence committed by other accused persons
only if he is proved to be a member of an unlawful assembly
sharing its common object. Once the existence of common
object of unlawful assembly is proved, each member of such
an assembly shall be liable for the main offence
notwithstanding his actual participation in the commission of
the offence. It is not necessary that each of the accused,
forming the unlawful assembly, must have committed the
offence with his own hands.
The members of the unlawful assembly can be held
liable under Section 149 IPC, if it is shown that they knew
beforehand that the offence actually committed was likely to
be committed in prosecution of the common object. It is true
that the common object does not require prior concert and a
common meeting of mind before the attack. It can develop
even on spot but the sharing of such an object by all the
accused must be shown to be in existence at any time
before the actual occurrence.
In Rajendra Shantaram Todankar v. State of
Maharashtra and Ors., (2003) 2 SCC 257, this Court has
held that Section 149 of the Indian Penal Code provides
that if an offence is committed by any member of an
unlawful assembly in prosecution of the common object of
that assembly, or such as the members of that assembly
knew to be likely to be committed in prosecution of that
object, every person who at the time of the committing of
that offence, is a member of the same assembly is guilty of
that offence. The two clauses of Section 149 vary in degree
of certainty. The first clause contemplates the commission of
an offence by any member of an unlawful assembly which
can be held to have been committed in prosecution of the
common object of the assembly. The second clause
embraces within its fold the commission of an act which may
not necessarily be the common object of the assembly,
nevertheless, the members of the assembly had knowledge
of likelihood of the commission of that offence in prosecution
of the common object. The common object may be
commission of one offence while there may be likelihood of
the commission of yet another offence, the knowledge
whereof is capable of being safely attributable to the
members of the unlawful assembly. In either case, every
member of the assembly would be vicariously liable for the
offence actually committed by any other member of the
assembly. A mere possibility of the commission of the
offence would not necessarily enable the court to draw an
inference that the likelihood of commission of such offence
was within the knowledge of every member of the unlawful
assembly. It is difficult indeed, though not impossible, to
collect direct evidence of such knowledge. An inference may
be drawn from circumstances such as the background of the
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incident, the motive, the nature of assembly, the nature of
the arms carried by the members of the assembly, their
common object and the behaviour of the members soon
before, at or after the actual commission of the crime.
Unless the applicability of Section 149 \026 either clause \026 is
attracted and the court is convinced, on facts and in law,
both, of liability capable of being fastened vicariously by
reference to either clause of Section 149 IPC, merely
because a criminal act was committed by a member of the
assembly, every other member thereof would not
necessarily become liable for such criminal act. The
inference as to likelihood of the commission of the given
criminal act must be capable of being held to be within the
knowledge of another member of the assembly who is
sought to be held vicariously liable for the said criminal act.
In State of Rajasthan v. Nathu and Ors., (2003) 5 SCC
537, this Court has held that if death had been caused in
prosecution of the common object of an unlawful assembly,
it is not necessary to record a definite and specific finding as
to which particular accused out of the members of the
unlawful assembly caused the fatal injury. Once an unlawful
assembly has come into existence, each member of the
assembly becomes vicariously liable for the criminal act of
any other member of the assembly committed in
prosecution of the common object of the assembly.
It is held in Parsuram Pandey and Ors. v. State of
Bihar, (2004) 13 SCC 189 that to attract Section 149 IPC
the prosecution must prove that the commission of the
offence was by any member of an unlawful assembly and
such offence must have been committed in prosecution of
the common object of the assembly or must be such that
the members of the assembly knew that it was likely to be
committed. Unless these three elements are satisfied by the
prosecution the accused cannot be convicted with the aid of
Section 149 IPC.
In Rabindra Mahto & Ors., v. State of Jharkhand, JT
2006 (1) SC 137, this Court has held that under Section 149
IPC, if the accused is a member of an unlawful assembly,
the common object of which is to commit a certain crime,
and such a crime is committed by one or more of the
members of that assembly, every person who happens to be
a member of that assembly would be liable for the
commission of the crime being a member of it irrespective of
the fact whether he has actually committed the criminal act
or not. There is a distinction between the common object
and common intention. The common object need not
require prior concert and a common meeting of minds before
the attack, and an unlawful object can develop after the
assembly gathered before the commission of the crime at
the spot itself. There need not be prior meeting of the mind.
It would be enough that the members of the assembly which
constitutes five or more persons, have common object and
that they acted as an assembly to achieve that object. In
substance, Section 149 makes every member of the
common unlawful assembly responsible as a member for the
act of each and all merely because he is a member of the
unlawful assembly with common object to be achieved by
such an unlawful assembly. At the same time, one has to
keep in mind that mere presence in the unlawful assembly
cannot render a person liable unless there was a common
object and that is shared by that person. The common
object has to be found and can be gathered from the facts
and circumstances of each case.
The prosecution has established that all the accused-
appellants came to the spot of incident together. All the
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accused-appellants were carrying deadly weapons. Two of
them had carried 12 bore guns. Immediately on reaching
the spot Mohinder Singh one of the accused had opened fire
followed by firing by another accused-appellant Nasib Singh
and in the same transaction the accused-appellants had
caused several injuries to various persons, not only to the
persons who were present at the spot but also to the
persons who had reached the spot after hearing the
commotion. The facts found in the case clearly established
the common object of the assembly. The knowledge of
assembly that grievous hurt or death would be caused can
be safely attributed to the members of the unlawful
assembly because of the fact that two of the members of the
assembly have carried the licensed guns. An inference can
be drawn of the knowledge of common object and formation
of common object from the behaviour of the members of the
assembly of the accused persons, who came together with
deadly weapons and immediately started attacks
indiscriminately on the persons present there. As many as
nine persons have received 31 injuries, which clearly
establishes the common object of the unlawful assembly to
do away with Harbans Singh and cause injuries to any
person who tried to intervene.
We are satisfied with the evidence led by the
prosecution that common object of all the accused
appellants of causing death of Harbans Singh was
established beyond any doubt and, therefore, the accused-
appellants were rightly convicted under Section 302 IPC with
the aid of Section 149 of IPC apart from other convictions
under other Sections of IPC for causing injuries to other
persons.
For the foregoing reasons, in our view there is no merit
in this appeal. The appeal is dismissed.