Full Judgment Text
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NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s).1887 OF 2019
(arising out of SLP (Crl.) No(s). 5666 of 2017)
STATE OF UTTAR PRADESH ...APPELLANT(S)
VERSUS
RAVINDRA @ BABLOO AND OTHERS ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The State as appellant assails the acquittal of the three
respondents by the High Court, reversing their conviction under
Sections 302/149, 307/149, 147, 148 and 452 of the Indian Penal
Code ordered by the Trial Court.
Signature Not Verified
Digitally signed by
ASHWANI KUMAR
Date: 2019.12.18
16:14:07 IST
Reason:
2. The assault took place on 10.01.2002 at about 4.30 PM. Two
persons Mahendra Singh and Lokesh, who were father and son
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respectively, have been deceased. PW1, Smt. Mahendri, wife of
deceased Mahendra Singh, is an injured eye witness. PW3, the wife
of deceased Lokesh is also an eye witness. Five persons were originally
accused. One of the accused Satyendra @ Mintoo was deceased during
the course of the trial. The three respondents were armed with spade,
iron rod and countrymade pistol respectively. The injuries found on
the deceased and the injured PW1 are as follows:
Injuries of deceased Mahendra:
i) Multiple incised wounds of various sizes 18 cm x 4.5 cm x
bone deep and 6 cm x 2 cm x bone deep on the back of left
and right side of head, back of head and fresh blood was
oozing from the head. The cleavage of the wound was clean
out.
ii)
Multiple incised wounds 16 cm x 5 cm. The depth of the
wound cannot be said. There was fresh bleeding from the left
side face and neck. The edge was clean out.
Injuries of deceased Lokesh:
i)
Incised wound 13 cm x 2 cm x bone deep on the back of right
head just 3 cm above the right ear.
ii) Incised wound 10 cm x 4 cm x bone deep on the back of head
just above the right ear and above the back hairline. The
largest incised wound was 18 cm x 1 cm and the smallest
wound was 5 cm x 1 cm.
iii) Incised wound 9 cm x 2 cm x bone deep on left side face just
beside the nose which was extended from the beginning of left
eye till chin.
iv) Incised wound 8 cm x 2.5 cm was found on left side neck. One
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blood vessel under this wound was cut.
v) Incised wound 5 cm x 5 cm x muscle deep in front of left
shoulder.
vi) Incised wound 3 cm x 25 cm x muscle deep in the middle of
right hand.
vii)
Multiple contusions in the area of 14 cm x 8 cm in front of
right shoulder.
viii)
Incised wound 25 cm x 1 cm x muscle deep in the middle of
right hand.
ix)
Multiple straight abrasions of 24 cm found in the middle of
navel, stomach and chest.
x)
3 cm x 1.5 cm punctured wound in the left gallinule region
(part of belly which connect waist) for which the intestine was
coming out.
xi)
Abrasion 3 cm x 1 cm was found on the front part of penis.
Injuries of PW1, Mahendri:
i) Incised wound 5 cm x 1 cm x bone deep on the let head,
back of left ear. There was fresh bleeding from the injuries
and the edge of the injury was clean cut.
ii) Incised wound 10 cm x 6 cm x bone deep on left wrist and
left forearm. There was fresh bleeding from the injuries and
the edge of the injury was clean cut.
Iii) Incised wound 7 cm x 2 cm x bone deep on right wrist.
There was fresh bleeding from the injury and the edge of the
injury was clean cut.
iv) Incised wound 3 cm x 1 cm x muscle deep on right wrist.
There was fresh bleeding from the injury and the edge of the
injury was clean cut.
3. The occurrence fueled by enmity occasioned due to a land
dispute is an admitted fact. The High Court opined that in absence of
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injuries on the two deceased and the injured not being commensurate
to the nature of weapons possessed by the three respondents entitled
them to acquittal.
4. Mr. Ravindra Kumar Raizada, learned counsel appearing for the
appellant, submitted that the High Court erred in setting aside a well
considered order of conviction. PW1 was injured in the same
incident. The presence of PW3 as an eye witness has also not been
doubted. The number of injuries found on the injured and the two
deceased cumulatively corroborates the number of assailants. The
conviction of the coaccused Prem, on the evidence of the same
witnesses has not been interfered with. The allegations of assault by
the respondents is specific. Acquittal of the respondents, in view of the
nature of ocular evidence available, is unsustainable.
5. Mr. Ankul Chandra Pradhan, learned senior counsel appearing
for the respondents, submitted that the order of acquittal by the High
Court is well reasoned. There is discrepancy between the ocular and
medical evidence, which is a sufficient to sustain the acquittal. If two
views are possible, the acquittal may not be interfered with.
6. We have considered the submissions on behalf of the parties,
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perused the materials and evidence on record.
7. The original five accused are stated to have been armed with iron
rod, spade, sword, tabbal and country made pistol. The charge was
under Section 302 read with149, Section 307 read with 149. The
respondents fully armed, entered the house of the deceased Lokesh
and when the latter ran out for his safety, he was chased and
assaulted. One of the respondents fired at the deceased who fell down,
after which the others assaulted. Deceased Mahendra and PW1 fell
over the deceased Lokesh to save him when they were also assaulted.
Eleven injuries have been found on the person of deceased Lokesh. A
spade, sword and tabbal are well capable of causing incised injuries.
8. It is an undisputed fact evident from the allegations and the
evidence that the accused who were all well armed constituted an
unlawful assembly. The common object of the assembly and that it
was shared by all of them with awareness is also evident from their
conduct in having chased and assaulted the deceased Lokesh and
then in having persisted with the assault even after the deceased
Mahendra and PW1 fell over the former in an effort to protect him,
notwithstanding which the respondents persisted with the assault. In
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a case of a mob assault, especially when there is no doubt with regard
to the ocular evidence, to look for corroboration of each injury by
correlating it with the evidence of a prosecution witness to a particular
accused and then to discredit the prosecution case on that basis
cannot be upheld and is contrary to the principles of criminal
jurisprudence regarding common object and the necessary ingredients
for the same.
9. The manner of occurrence, the fact that all the accused were well
armed, they chased the deceased Lokesh coupled with the assault on
those who tried to come to the rescue of the deceased, the number of
injuries on the two deceased and the injured leaves no doubt in our
mind that the assailants were most definitely more than two persons.
In the nature and number of injuries, there can be no doubt that the
assailants may well have been five in number. Likewise, the fact that
there may not be any firearm injury on the deceased is considered
irrelevant for fixing vicarious liability as member of an unlawful
assembly once the presence of the accused possessed of a weapon of
assault chasing the deceased along with others stands established by
reliable ocular evidence.
10. The determinative factor is the assembly consisting of five or
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more persons fully armed and who 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 an unlawful assembly, it
cannot be said that he is a member of an assembly. The respondents
well understood that the assembly was unlawful and was likely to
commit any of the acts which fall within the purview of Section 141.
IPC. The word “object” means the purpose or design and, in order to
make it “common”, it must be shared by all.
11. The “common object” of an assembly is to be ascertained from
the acts and language of the members comprising 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. Sharing of common object is a mental
attitude which is to be gathered from the act of a person and result
thereof. It is not necessary under law that in all cases of unlawful
assembly, with an unlawful common object, the same must be
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translated into action or be successful.
12. In (1989) 1 SCC 437, it was
Lalji and ors. vs. State of U.P.,
observed:
“10. Thus, once the court holds that certain accused
persons formed an unlawful assembly and an offence is
committed by any member of that assembly in
prosecution of the common object of that assembly, or
such as the members of the assembly knew to be likely
to be committed in prosecution of that object, every
person who at the time of committing of that offence was
a member of the same assembly is to be held guilty of
that offence. After such a finding it would not be open to
the court to see as to who actually did the offensive act
or require the prosecution to prove which of the
members did which of the offensive acts. The
prosecution would have no obligation to prove it.”
13. We, therefore, are unable to hold that there is such gross
variation between the ocular evidence and the medical evidence so as
to discredit an injured witness and an eye witness to order acquittal.
In (2003) 12 SCC 155 , it was
Kamaljit Singh vs. State of Punjab,
observed:
“8. It is trite law that minor variations between medical
evidence and ocular evidence do not take away the
primacy of the latter. Unless medical evidence in its
term goes so far as to completely rule out all possibilities
whatsoever of injuries taking place in the manner stated
by the eyewitnesses, the testimony of the eyewitnesses
cannot be thrown out. When the acquittal by the trial
court was found to be on the basis of unwarranted
assumptions and manifestly erroneous appreciation of
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evidence by ignoring valuable and credible evidence
resulting in serious and substantial miscarriage of
justice, the High Court cannot in this case be found
fault with for its wellmerited interference.”
14. The order of the acquittal of the respondents is set aside and
they are directed to surrender within four weeks for serving out the
remaining period of their sentence. The appeal is allowed.
.……………………….J.
(Ashok Bhushan)
………………………..J.
(Navin Sinha)
New Delhi,
December 18, 2019