Full Judgment Text
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CASE NO.:
Appeal (crl.) 728 of 1997
PETITIONER:
Chanakya Dhibar (Dead)
RESPONDENT:
State of West Bengal and Ors.
DATE OF JUDGMENT: 19/12/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT,J
The informant has filed this appeal questioning judgment of
acquittal rendered by a learned Single Judge of the Calcutta High Court
acquitting five respondents (hereinafter referred to as the ’accused’ by
their respective names). Since he has died during the pendency of the
appeal, an application for substitution by his legal representatives has
been filed which is allowed.
The trial Court found the respondents guilty of offences
punishable under Sections 148 and 304 Part I read with Section 149 of
the Indian Penal Code, 1860 (in short the ’IPC’). Law was set in motion
by PW-1(Chanakya) on the accusation that Jaba Dhibar (hereinafter
referred to as the ’deceased’) was assaulted severely by five
respondents on the date of occurrence i.e. on 16.9.1985 at about 9.45
p.m. Naran Dhibar (PW-3) who was accompanying him saw the assault by
accused Mana Bhattacharjee and fearing assaults on him ran away and
informed the family members of the deceased. On hearing about the
assaults, the informant, his elder brother Naran and Sandhya, wife of
the deceased (PW-2) went to the spot. When they arrived there finding
the deceased with bleeding injuries, took him to the Bankura hospital on
police jeep. Apart from PW-3, a rickshaw puller Pradip Das (PW-5) was
examined to show that he has seen the deceased being surrounded by
accused persons and assaulted him. The first information report was
lodged at about 10.25 p.m. in which the names of the five respondents
were indicated. Sub-Inspector (PW-9) attached to the Bankura Police
Station took up investigation. The doctor (PW-4) who examined the
deceased found a sharp cut injury on top of the deceased’s skull. He was
attended to by other doctor (PW-15). He continued to be under treatment
till 13.10.1985 when he was shifted to S.S.K.M. hospital, Calcutta and
ultimately he breathed his last on 8.11.1985. Post mortem was conducted
by PW-18 who opined that the death was due to septicemia. The injury
was, according to him, sufficient in the ordinary course of nature to
cause death and that it was homicidal. After completion of
investigation, charge sheet was placed for commission of offence
punishable under Sections 147, 148, 304 read with Section 149 IPC.
Charges were framed under Sections 148 and 304 Part I read with Section
149 IPC. Accused persons pleaded innocence. According to the defence
plea as evident from the cross examination of prosecution witnesses and
statement of the accused persons recorded under Section 313 of the Code
of Criminal Procedure, 1973 (in short the ’Code’) the accused persons
were falsely implicated out of grudge. People of Pathakpara locality
made attempts to evict the prostitutes from the locality in between
Pathakpara and Keotpara, which was strongly opposed by Chanakya (PW-1).
After considering the evidence on record, the trial Court held
that accused persons were guilty of offence punishable under Sections
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148 and 304 Part I read with Section 149 IPC. Each of the accused was
sentenced to undergo rigorous imprisonment for seven years and to pay a
fine of Rs.1,000/- with default stipulation so far as offence punishable
under Section 304 Part I read with Section 149 IPC and two years for the
offence punishable under Section 148 IPC.
The convicted accused persons filed appeal before the Calcutta
High Court. The High Court by the impugned judgment held that the two
witnesses on whose evidence prosecution heavily relied on were not
truthful witnesses. It was not explained as to how the accused persons
would know the movements of the deceased, when both PWs 1 and 3 accepted
their presence nearby the place of occurrence was not known to anybody.
PW-5 could not have also seen the occurrence which was far away from the
road. PW-3 could not also have seen the occurrence as he accepted to
have run away after the accused persons stabbed the deceased. The
inmates of the nearby houses were not examined as prosecution witnesses.
There must have been temple goers passing along the road. As PW-5 was
earlier prosecuted by the police, his antecedents were not very clean
and he appeared to be a tutored witness. There is no motive attributed
as to why the accused persons would attack the deceased. On the other
hand, the needle of suspicion could be raised against Naran Dhibar (PW-
3) who was the companion of the deceased and was his partner in the fish
business. Though the death was due to the injury sustained, yet it has
not been proved that the vital injury was caused by the accused persons.
Accordingly, the conviction made and sentences imposed were set aside.
In support of the appeal, Mr. Ranjit Kumar, learned senior counsel
submitted that the High Court’s judgment is based more on surmises and
conjectures, than analysing the evidence on record. Even the evidence
has not been properly appreciated. Since the judgment of the High Court
is bereft of acceptable reasoning, the same is liable to be set aside
and the judgment of the trial Court should be restored.
In response, Mr. U.R. Lalit, learned senior counsel for the
accused submitted that the view taken by the High Court is a possible
view. It is not that the High Court has not analysed the evidence. It
has arrived at the right conclusions. The evidence of PWs 3 and 5
clearly show that they could not have seen the occurrence as claimed.
PW-3 has accepted that he had run away after the accused had stopped the
deceased. The first information report does not detail as to the
respective roles played by the accused persons. In any event, the
evidence is not sufficient to bring in application of Section 149 IPC.
There is no sound reasoning indicated to hold that there was any
unlawful assembly which is a sine qua non for the application of Section
149. The identification as claimed by PWs 3 and 5 is improbabilised by
the evidence of the Investigating Officer. He clearly stated that he had
not mentioned anything about the street light or the torch light claimed
to have been carried by PW-3 in the case diary. PW-5’s presence at the
spot of occurrence has also not been explained and he at the most is a
chance witness and, therefore, his evidence could not have been acted
upon.
In essence, it was submitted that in an appeal against acquittal
the jurisdiction under Article 136 of the Constitution of India, 1950
(in short the ’Constitution’) should not be exercised. Learned counsel
for the State of West Bengal supported the stand taken by the informant-
appellant.
A bare perusal of the High Court’s judgment shows that the same is
based more on surmises and conjectures than making an attempt to analyse
the evidence. Some of the conclusions as rightly submitted by learned
counsel for the appellant are contrary to record. The evidence of PW-5
has been disbelieved on the ground that he could not have possibly seen
the occurrence being far away from the road where he claimed to be
sitting. The evidence on record shows that the distance is even less
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than 10 yards. Another factor which seems to have weighed with the High
Court is the statement of PW-3 that he had taken to his heels after the
accused persons stopped the deceased. The High Court has clearly over-
looked the categorical evidence of PW-3, who during cross examination
has stated that after seeing the assault he had run away. The statement
to the effect that he ran away after the accused persons stopped the
deceased is to be read along with other parts of the evidence and not in
an isolated way. The statement made in the cross examination to the
effect that he ran away after seeing the assaults is significant. The
High Court has also raised suspicion over PW-3’s conduct in not lodging
the information first and going to the house of the deceased and not his
own house which was nearer. This according to us is really of no
consequence. The deceased was closely related to him and, therefore, as
explained in evidence he thought it proper to inform the relatives of
deceased first so that medical treatment could be immediately provided.
There was also no delay in lodging the FIR. The occurrence took place at
about 9.45 p.m. and the information with the police was lodged at about
10.15 p.m. There was no evidence to show that the temple goers were
passing on the roads. The hypothetical conclusion of the High Court that
people must be passing is without any foundation. The evidence of PW-5
has been discarded because of his antecedents. When the evidence has
been analysed carefully by the trial Court to find that he is a truthful
witness, his antecedents should not have weighed with the High Court to
completely discard his evidence. There is also no material to support
the conclusion of the High Court that he was a tutored witness. The most
vulnerable conclusion of the High Court relates to its view regarding
PW-3 because he claimed to have accompanied the deceased. Such a
conclusion to say the least borders on absurdity and is without any
foundation for such a conclusion. The High Court should not have
recorded such a finding. The High Court also doubted PW-3’s evidence on
the ground that he did not accompany the deceased to the hospital. The
witnesses PW-2 and PW-3 have categorically stated that PW-2 had seen the
deceased in an injured condition and therefore PW-3 accompanied her to
the deceased’s house when the deceased was shifted to the hospital.
In view of the aforesaid position, clearly the High Court was
wrong in holding the accused persons to be not guilty.
However, one plea which was urged with some amount of vehemence
was the applicability of Section 149 IPC.
The emphasis in Section 149 IPC 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
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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
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 culled 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
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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
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".
Coming to the plea of the accused that PW-5 was ’chance witness’
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who has not explained how he happened to be at the alleged place of
occurrence it has to be noted that the said witness was an independent
witness. There was not even a suggestion to the witness that he had any
animosity towards any of the accused. In a murder trial by describing
the independent witnesses as ’chance witnesses’ it cannot be implied
thereby that their evidence is suspicious and their presence at the
scene doubtful. Murders are not committed with previous notice to
witnesses; soliciting their presence. If murder is committed in a
dwelling house, the inmates of the house are natural witnesses. If
murder is committed in a street, only passersby will be witnesses. Their
evidence cannot be brushed aside or viewed with suspicion on the ground
that they are mere ’chance witnesses’. The expression ’chance witness’
is borrowed from countries where every man’s home is considered his
castle and everyone must have an explanation for his presence elsewhere
or in another man’s castle. It is quite unsuitable an expression in a
country where people are less formal and more casual.
There is no embargo on the appellate Court reviewing the evidence
upon which an order of acquittal is based. Generally, the order of
acquittal shall not be interfered with because the presumption of
innocence of the accused is further strengthened by acquittal. The
golden thread which runs through the web of administration of justice in
criminal cases is that if two views are possible on the evidence adduced
in the case, one pointing to the guilt of the accused and the other to
his innocence, the view which is favourable to the accused should be
adopted. The paramount consideration of the Court is to ensure that
miscarriage of justice is prevented. A miscarriage of justice which may
arise from acquittal of the guilty is no less than from the conviction
of an innocent. In a case where admissible evidence is ignored, a duty
is cast upon the appellate Court to re-appreciate the evidence where the
accused has been acquitted, for the purpose of ascertaining as to
whether any of the accused really committed any offence or not. [See
Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme
567). The principle to be followed by appellate Court considering the
appeal against the judgment of acquittal is to interfere only when there
are compelling and substantial reasons for doing so. If the impugned
judgment is clearly unreasonable and relevant and convincing materials
have been unjustifiably eliminated in the process, it is a compelling
reason for interference. These aspects were highlighted by this Court in
Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (AIR 1973 SC
2622), Ramesh Babulal Doshi v. State of Gujarat (1996 (4) Supreme 167),
Jaswant Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore
Jha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of Punjab
v. Karnail Singh (2003 (5) Supreme 508 and State of Punjab v. Pohla
Singh and Anr. (2003 (7) Supreme 17) and Suchand Pal v. Phani Pal and
Anr. (JT 2003 (9) SC 17).
All the accused persons were armed. Their conduct before, during
and after the occurrence clearly brings about the object. The assembly
was patently unlawful. It is inconceivable that persons armed would
surround the persons without any criminal object in mind. Mere fact that
only one of them used the weapon does not really rule out application of
Section 149 IPC. Learned counsel for the accused persons submitted that
contrary to the evidence of PWs 3 and 5 there was only one injury found
by the doctor. PWs 3 and 5 have stated about assaults and if five
persons were really assaulting the result would not have been only one
injury. The definition of "assault" as given in Section 351 IPC makes
the plea unacceptable. The trial Court had rightly and in proper legal
perspective convicted the accused-respondents under Section 148 and 304
Part I read with Section 149 IPC. The High Court’s judgment suffers from
serious infirmities making it indefensible and is therefore, set aside.
The judgment of the trial Court recording conviction and imposing
sentences is restored. The appeal is allowed.
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