Full Judgment Text
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REPORTABLE
2023 INSC 889
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1786 OF 2023
NARESH @ NEHRU .... APPELLANT
VERSUS
STATE OF HARYANA …. RESPONDENT
WITH
CRIMINAL APPEAL NOS.1787-1788OF 2023
IRSHAD AND ANOTHER .... APPELLANTS
VERSUS
STATE OF HARYANA …. RESPONDENT
J U D G M E N T
Aravind Kumar, J.
1. Judgment dated 09-01-2020 rendered in Criminal Appeal
Signature Not Verified
Digitally signed by
NEETA SAPRA
Date: 2023.10.19
17:06:48 IST
Reason:
Nos.1063 of 2017, 997 & 1043 of 2017 by the High Court of Punjab
and Haryana, Judicature at Chandigarh is under challenge in these
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appeals, whereunder the accused Nos.4, 5 and 6 (appellants herein)
who were convicted for the offences punishable under Section 302
read with Section 149 of the Indian Penal Code (for short ‘IPC’) by
the Sessions Court came to be affirmed.
GIST OF PROSECUTION CASE:
2. On 22-04-2016, ASI Ram Kishan while on patrolling duty at 75
feet road, had received a telephonic information that in the village
Maheshwari certain persons had fired a gun-shot at a boy and upon
reaching there, statement of Mohit @ Kala came to be recorded which
was to the effect that at about 6.40 pm his cousins Ajay and Suraj were
talking in front of the house of Ex. Sarpanch Karan Singh and they
were near the house of Dharmender and he (Mohit) saw Ajay and Suraj
running towards the house of Dharmender as they were being chased
by three youngsters on a bullet motorcycle. It was also stated by Mohit
@ Kala that bullet motorcycle was being driven by Ravi, Shoaib Khan
was the pillion rider and one unknown person was sitting behind them.
It was further stated that two more motorcycles having two riders each,
with batons in their hands were following the Bullet motorcycle. It was
also alleged that unknown person sitting on the Bullet motorcycle got
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down and fired at Ajay with country-made revolver, which hit his head
and Ajay fell in front of the house of Dharmender. Suraj hid in
Dharmender’s house and on raising the alarm the assailants sped away
on their motorcycles towards Bhiwadi; it is also stated by Mohit @
Kala that injured Ajay was shifted to the hospital; it is further stated
that Ravi was studying in his school and was his junior and he used to
bully and threaten all. Mohit also stated that Ajay and Suraj had a fight
with Ravi on the day of ‘Dulhandi’ and he had threatened to kill them
and Ravi along with his companions had fired at Ajay with intend to
kill him. Based on the said statement FIR under Sections 148, 149, 307
of IPC and Section 25 of the Arms Act came to be registered and on the
death of Ajay (on 23-04-2016) Section 302 of IPC was substituted in
place of Section 307 IPC and accused persons were apprehended; on
the disclosure statement of first accused (Pawan) country made pistol
was recovered and as per the statement of accused No.2 (Dharmender)
wooden stick was recovered apart from four motorcycles. One of the
accused-Shoaib was produced before the Juvenile Justice Board and
Ravi was tried by the Children’s Court under the provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2015. The
charge was framed against six accused persons and in all 18 witnesses
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were examined on behalf of the prosecution. The statements of the
accused under Section 313 of the Code of Criminal Procedure (for
short ‘Cr.P.C.’) came to be recorded and the accused having denied the
incriminating material appearing in evidence against them, had pleaded
not guilty. After hearing the learned advocates appearing for the
accused persons and the public prosecutor and on appreciation of the
evidence laid before the court, the learned Sessions Judge by judgment
dated 06-10-2017 convicted the accused persons for the offences
already noticed hereinabove and said order of conviction and sentence
imposed came to be affirmed by the High Court under the impugned
order vide judgment dated 09-01-2020. Hence, these appeals have
been preferred by accused Nos.4 to 6.
3. We have heard Mr. Siddharth Mittal and Mr. Vikas Walia,
learned Advocates appearing for the accused-appellants in Criminal
Appeal Nos.1786 of 2023 and 1787-1788 of 2023 respectively, and
Ms. Manisha Aggarwal Narain, learned Additional Advocate General
appearing for the State of Haryana, Respondent.
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SUBMISSIONS ON BEHALF OF THE APPELLANTS:
4. Mr. Siddharth Mittal, learned counsel for the appellant
appearing for Naresh @ Nehru Accused No.4, contends that the trial
court and High Court had committed an error in convicting him
without considering the statement of Mohit @ Kala (PW-9) in proper
perspective whereunder he had not named the appellant and the CCTV
footage did not conform to Section 65 B of the Indian Evidence Act
which even otherwise did not reflect A-4’s of presence. He also
contends that no Test Identification Parade (TIP ‘for short’) was
conducted, and PW-9 had only identified this accused (A-4) in the
court. Mr. Mittal learned counsel would also contend that said witness
(PW-9) was shocked or perplexed when his statement came to be
recorded as admitted by him and reliance could not have been placed
on said evidence for convicting the appellant. He would further
contend that A-4 had no common object to share with the main
accused, Pawan (PW-1), who is said to have fired at Ajay (deceased).
Mr. Mittal, learned counsel would also contend that PW-9 was an
interested witness as he was a close relative of the deceased, and
various discrepancies, including the improvement in his statement
made before court, ought to have been the ground to summarily brush
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aside his testimony. Mr. Mittal, learned advocate would point out that
discrepancies in PW-9's statement had clearly surfaced which was
evident from his admission of not informing the police about the
Splendor vehicle being driven by the appellant and this fact was
conveniently ignored by the courts below. Mr. Mittal, learned counsel
would also contend that CCTV footage relied upon by prosecution
was recorded on a mobile phone by PW-8 and converted into a CD,
which was not in conformity with Section 65B of the Evidence Act
and it was allegedly recorded on 26.04.2016 but handed over to the
police on 01.06.2016 and during this interregnum period the
possibility of said recording being tampered could not have been ruled
out. Even otherwise the face of the assailants was not identifiable in
the CCTV footage as found by the trial court itself and, therefore, no
inference could have been drawn to implicate the appellant(A-4).
5 . He would contend that the alleged motive attributed to the
accused persons is due to a quarrel that had ensued between the
deceased, Suraj, Ravi, and Nabbu on the day of Dulhandi and there was
no evidence placed on record by prosecution to suggest any common
object had been shared by the appellants with other accused persons.
He would contend that appellant has not been alleged to have been
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armed with any weapon, so no inference could have been drawn about
the common object to commit the offence. He would submit that the
reasoning adopted by the courts below to convict the accused by
overlooking the fact that TIP had not been conducted and only on the
ground of PW-9 having known the remaining accused by face before
the incident was erroneous, though the testimony of PW-9 would
suggest that accused persons were not previously known to him and his
admission in evidence that came to know about them only when they
were arrested and their names were published in the newspaper. The
non-disclosure of the names of the accused persons at the first instance
creates reasonable doubts as to the appellant's identity. The learned
counsel for the appellant (A-4) would also contend that there was
unexplained delay in recording PW-9's statement, namely it was
recorded at 11:30 p.m., despite the incident having taken place at 6:30
p.m. and PW-9 was present during this period. The alleged confessional
statement of the appellant is of no value in the light of Section 25 of the
Evidence Act and said statement does not indicate any common object
having been shared by the appellant with other assailants. Hence, he
prays for his appeal being allowed and the appellant (A-4) being
acquitted.
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6. Mr. Vikas Walia, learned counsel appearing for the appellants,
namely, Irshad and Sonu Kumar (accused numbers 5 and 6
respectively) in Criminal Appeal Nos.1787-1788 of 2023, contends that
courts below had erred in not considering the fact that a person liable
for being punished for the offence of being a member of an unlawful
assembly under Section 149 IPC would be necessary to prove that such
persons had acted in pursuance of a common object. He would further
contend that prosecution had failed to prove that appellants were aware
of Pawan's (Accused No.1) possessing the pistol and he had the
intention/object to kill Ajay and such intention could not be inferred.
He would contend that appellants' involvement in the unlawful
assembly and sharing a common object to kill Ajay could not be
inferred in the circumstances of the case, particularly when there was
no evidence to support the stand of the prosecution that appellants were
aware of pistol being in possession of Pawan (A-1).
7 . He would further contend that the prosecution failed to prove
that the members of the unlawful assembly had assembled to
accomplish the common object of killing Ajay, as attributed to them.
There was no evidence suggesting a sharing of common object between
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the accused. The CCTV footage, which was relied upon by the
prosecution, does not inspire confidence to accept the story of the
prosecution, since, faces appearing in the video was not clear and this
itself would be a good ground to allow appeals and set aside the
conviction of the appellants. He would also contend that appellants
were not residents of the village where the incident took place and
there is no whisper in the statement of PW-9 recorded under Section
161 of Cr.P.C. on this aspect. Hence, he prays for appeal preferred by
A-5, and A-6 be allowed by setting aside the impugned judgment.
ANALYSIS AND CONCLUSION:
8 . Having heard the learned counsels appearing for the parties and
on perusal of the judgments of the courts below, it would emerge
therefrom, that conviction of all the accused is based on the testimony
of PW-9 and recovery of the motor-cycles and the motive for the crime
attributed by PW-9 in his statement recorded on the date of incident. In
this background, we have perused the judgments of the courts below by
bestowing our anxious consideration to the rival contentions raised at
the Bar.
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9 . At the outset, it requires to be noticed that motive that has been
attributed against the accused persons for the killing of Ajay was, he
(Ajay) and Suraj had a fight with Ravi on the day of Dulhandi, where
Ravi had threatened to kill them and in furtherance of said threat, he is
said to have come along with other co-accused, and a person sitting on
the bullet motor-cycle had fired at Ajay from the pistol, while Ravi
was driving the Bullet motorcycle. PW-9 had also deposed that Ajay
was in the company of Suraj, who ran alongside the deceased and hid
himself in Dharmender's house. However, the police did not record the
statement of Suraj, and he was not even cited as a witness on behalf of
the prosecution. This would be the first gap in the prosecution story or
a defective investigation.
9.1 The prosecution relied on Statement of Mohit @ Kala
(PW-9) and courts below accepted him as a star witness to convict the
accused. PW-9's testimony was shrouded with inconsistencies and
he had not named the appellants in the FIR and had failed to identify
Naresh @ Nehru as the driver of the Splendor motorcycle. He had
identified Irshad and Sonu Kumar in court but had not named them in
his statement Ex.PM made before police. In his cross-examination,
PW-9 admitted of not informing the police about the Pulsar
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motorcycle and two other Splendor motorcycles. He stated in his
statement Ex.PM that victim Ajay and his friend Suraj were being
chased by three motorcycles, namely Bullet, Splendor and Pulsar
motorcycles respectively. However, in the statement made before the
court, he improvised his version by deposing that the victim was
being chased by four motorcycles. In the cross-examination, PW-9
admitted to have informed the police about deceased having been
chased by four motorcycles and reiterated the contents of his
statement in Ex.PM as true. These inconsistencies give rise to
suspicion and raises doubt in the prosecution story.
9.2 PW-9 had named only Ravi and Shoaib in his statement Ex.PM,
and for the first time before court he had identified Naresh (A-4),
Irshad and Sonu (A-9 and A-6). He admitted in his cross-examination
that he only knew Ravi and Shoaib before the incident, and had known
about the names of the other accused persons when they were arrested.
This raises doubts about PW-9's presence at the scene of the incident
itself. Undisputedly no recovery was made from Irshad and Sonu.
Contradictions in PW-9's statement is glaring. In his deposition he
admits his statement was written by the police at 10:45 PM on
22.04.2016, whereas PW-12 (ASI Ram Kishan) deposed that written
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statement EX.PM was handed over to the police by the complainant’s
party at 11:30 PM on 22.04.2016. PW-9 and also deposes that police
arrived at the scene of crime between 10:30-11:00 PM, creating serious
doubt about the recording of PW-9's statement at the place of crime as
claimed by the prosecution.
9.3 As noticed hereinabove, the evidence of the eye-witness should
be of very sterling quality and calibre and it should not only instil
confidence in the court to accept the same but it should also be a
version of such nature that can be accepted at its face value. This Court
in the case of Rai Sandeep @ Deepu alias Deepu Vs. State (NCT of
Delhi) (2012) 8 SCC 21 has held:
“22. In our considered opinion, the “sterling witness”
should be of very high quality and caliber whose version
should, therefore, be unassailable. The court considering
the version of such witness should be in a position to
accept it for its face value without any hesitation. To test
the quality of such a witness, the status of the witness
would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness. What
would be more relevant would be the consistency of the
statement right from the starting point till the end, namely,
at the time when the witness makes the initial statement
and ultimately before the court. It should be natural and
consistent with the case of the prosecution qua the accused.
There should not be any prevarication in the version of
such a witness. The witness should be in a position to
withstand the cross-examination of any length and
howsoever strenuous it may be and under no circumstance
should give room for any doubt as to the factum of the
occurrence, the persons involved, as well as the sequence
of it. Such a version should have co-relation with each and
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every one of other supporting material such as the
recoveries made, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion.
The said version should consistently match with the version
of every other witness. It can even be stated that it should
be akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in the
chain of circumstances to hold the accused guilty of the
offence alleged against him. Only if the version of such a
witness qualifies the above test as well as all other such
similar tests to be applied, can it be held that such a
witness can be called as a “sterling witness” whose
version can be accepted by the court without any
corroboration and based on which the guilty can be
punished. To be more precise, the version of the said
witness on the core spectrum of the crime should remain
intact while all other attendant materials, namely, oral,
documentary and material objects should match the said
version in material particulars in order to enable the court
trying the offence to rely on the core version to sieve the
other supporting materials for holding the offender guilty
of the charge alleged.”
PW-9, the cousin of the deceased, was examined as an eyewitness to
the crime. However, the presence of PW-9 at the scene raises doubt
due to contradictions. Although Suraj, who was also the deceased's
cousin, was accompanying the deceased, PW-9 never tried to contact
him to ascertain the names of the accused persons. This raises a
serious doubt about his presence that has been ignored by the courts
below. The presence of PW-9 at the scene raises doubts and raises
questions about the veracity of his evidence. This is the second
lacunae in the prosecution case.
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9.4 The courts below have relied on CCTV footage to convict the
appellants and co-accused persons. However, we are of the considered
view that said evidence could not have been relied upon, as it was
infested with serious doubts and the very manner in which it came into
existence itself would raise a serious doubt not only about its source
but also raises a serious doubt about the presence of the appellants at
the scene of crime. PW-8, who made a video from his mobile phone of
the CCTV footage on 22.04.2016 and has claimed to have handed over
the recorded CD (Ex.P.3) to the police on 01.06.2016. However, the
video (CD) has not been forwarded by the police to the Forensic
Science Laboratory. He (PW-8) claims to have downloaded the video
from his mobile phone and transferred to his laptop and then prepared
CD (Ex.P.3). Neither laptop nor mobile phone was produced by
prosecution or had been seized by the police during the course of
investigation. The trial court's conclusion is based on inconsistent
evidence and there is lack of clarity in the evidence of PW.8. He has
identified his signature on the certificate Ex. P-L (furnished as required
under Section 65-B of the Evidence Act) which certificate was
prepared by police official Mr. Aman and he has not been examined.
The CD(Ex.P.3) was played in the trial court and observation recorded
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by Sessions Judge which is to the following effect would acquire great
significance.
“COURT OBSERVATION:- from the video clips the faces
of assailants and complainants are not decipherable.”
(Emphasis supplied by us)
9.5 He (PW-8) admits in his cross-examination that certificate Ex.
PL was prepared by a police official, and he (PW-8) had affixed his
signature to Ex.PL. He also admits that faces of the assailants are not
visible and identifiable and the registration numbers of the
motorcycles are also not visible. It is pertinent to note at this juncture
itself that Investigating Officer (PW-15) also admits in his cross-
examination that faces of the accused are not identifiable from the
video. The said video according to PW-8 was taken from the CCTV
camera located in the house of Dharmendra and he (Dharmendra) was
never cited as a witness by the prosecution. This is the third stage of
the deficient investigation and blame has to be necessarily laid at their
door and the benefit of the doubt has to be extended to the accused
persons.
9.6 The confessional statement of the accused and co-accused came
to be recorded when they were in police custody. This court in
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Mehboob Ali & Another Vs. State of Rajasthan (2016) 14 SCC 640
has held:
“12. Section 25 of the Evidence Act provides that no
confession made to a police officer shall be
proved as against a person accused of any offence. Section
26 provides that no confession made by any person while he
is in the custody of a police officer, unless it be made in the
immediate presence of a Magistrate, shall be proved as
against such person. Section 27 is in the form of a proviso, it
lays down how much of an information received from
accused may be proved.
13. For application of Section 27 of the Evidence Act,
admissible portion of confessional statement has to be found
as to a fact which were the immediate cause of the discovery,
only that would be part of legal evidence and not the rest. In
a statement if something new is discovered or recovered
from the accused which was not in the knowledge of the
police before disclosure statement of the accused is recorded,
is admissible in the evidence.
14. Section 27 of the Evidence Act refers when any “fact” is
deposed. Fact has been defined in Section 3 of the Act. Same
is quoted below:
“‘ Fact ’.— ‘Fact’ means and includes—
(1) any thing, state of things, or relation of things, capable of
being perceived by the senses;
(2) any mental condition of which any person is conscious.
Illustrations
( a ) That there are certain objects arranged in a certain order
in a certain place, is a fact.
( b ) That a man heard or saw something, is a fact.
( c ) That a man said certain words, is a fact.
( d ) That a man holds a certain opinion, has a certain
intention, acts in good faith or fraudulently, or uses a
particular word in a particular sense, or is or was at a
specified time conscious of a particular sensation, is a fact.
( e ) That a man has a certain reputation, is a fact.
‘ Relevant ’.—One fact is said to be relevant to another when
the one is connected with the other in any of the ways
referred to in the provisions of this Act relating to the
relevancy of facts.”
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In the instant case, the confessional statement of the accused relied
upon by the prosecution was admittedly recorded after the arrest of
those accused persons when accused 4, 5, and 6 were in police
custody. Hence, said statement would become inadmissible having
regard to the provisions of Sections 25 and 26 of the Evidence Act,
of 1872. Section 25 of the Act in no uncertain terms makes it clear
that no confession made to a police officer shall be proved as against
a person accused of any offence. Likewise, Section 26 states that any
such statement is inadmissible if given while in police custody. For
this proposition, the judgment of this Court in Indra Dalal vs. State
of Haryana (2015) 11 SCC 31 can be looked up.
10 . As already noticed hereinabove prosecution has attempted to
drive home the guilt of the accused based on accused persons having
shared a common object, by pressing into service Section 149 of
IPC. This provision does not create a separate offence but only
declares vicarious liability of all members of unlawful assembly for
acts done in common object. Thus, in order to attract Section 149 of
the Code it must be shown by the prosecution that the incriminating
act was done to accomplish the common object by such unlawful
assembly. It must be within the knowledge of the other members as
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one likely to be committed in furtherance of the common object.
Even if no overt act is imputed to the accused, the presence of the
accused as part of the unlawful assembly is sufficient for conviction.
The inference of a common object has to be drawn from various
factors such as the weapons with which the members were armed,
their movements, the acts of violence committed by them, and the
end result. This court in Roy Fernandes vs. State of Goa and Others
(2012) 3 SCC 221 has held:
“18. That leaves us with the question whether the
commission of murder by a member of an unlawful
assembly that does not have murder as its common object
would attract the provisions of Section 149 IPC?
19. Section 149 IPC reads:
“ 149. Every member of unlawful assembly guilty of offence
committed in prosecution of common object .—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.”
A plain reading of the above would show that the provision
is in two parts. The first part deals with cases in which an
offence is committed by any member of the assembly “in
prosecution of the common object” of that assembly. The
second part deals with cases where the commission of a
given offence is not by itself the common object of the
unlawful assembly but members of such assembly “knew
that the same is likely to be committed in prosecution of the
common object of the assembly”.
20. As noticed above, the commission of the offence of
murder of Felix Felicio Monteiro was itself not the common
object of the unlawful assembly in the case at hand. And yet
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the assembly was unlawful because from the evidence
adduced at the trial it is proved that the common object of the
persons comprising the assembly certainly was to either
commit a mischief or criminal trespass or any other offence
within the contemplation of clause (3) of Section 141 IPC,
which may to the extent the same is relevant for the present
be extracted at this stage:
“ 141. Unlawful assembly .—An assembly of five or more
persons is designated an ‘unlawful assembly’, if the common
object of the persons composing that assembly is—
First .—*
Second .—*
Third .—To commit any mischief or criminal trespass, or
other offence;”
21. From the evidence on record, we are inclined to hold
that even when commission of murder was not the common
object of the accused persons, they certainly had come to the
spot with a view to overawe and prevent the deceased by use
of criminal force from putting up the fence in question. That
they actually slapped and boxed the witnesses, one of whom
lost his two teeth and another sustained a fracture only
proves that point.
22. What then remains to be considered is: whether the
appellant as a member of the unlawful assembly knew that
the murder of the deceased was also a likely event in
prosecution of the object of preventing him from putting up
the fence? The answer to that question will depend upon the
circumstances in which the incident had taken place and the
conduct of the members of the unlawful assembly including
the weapons they carried or used on the spot. It was so stated
by this Court in Lalji v. State of U.P. [(1989) 1 SCC 437 :
1989 SCC (Cri) 211] in the following words: (SCC p. 441,
para 8)
“ 8 . … 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 scene of
occurrence. It is an inference to be deduced from the facts
and circumstances of each case.”
23. The Court elaborated the above proposition in Dharam
Pal v. State of U.P. [(1975) 2 SCC 596 : 1975 SCC (Cri)
704] as: (SCC p. 603, para 11)
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“ 11 . Even if the number of assailants could have been less
than five in the instant case (which, we think, on the facts
stated above, was really not possible), we think that the fact
that the attacking party was clearly shown to have waited for
the buggi to reach near the field of Daryao in the early hours
of 7-6-1967, shows pre-planning. Some of the assailants had
sharp-edged weapons. They were obviously lying in wait for
the buggi to arrive. They surrounded and attacked the
occupants shouting that the occupants will be killed. We do
not think that more convincing evidence of a preconcert was
necessary. Therefore, if we had thought it necessary, we
would not have hesitated to apply Section 34 IPC also to this
case. The principle of vicarious liability does not depend
upon the necessity to convict a required number of persons.
It depends upon proof of facts, beyond reasonable doubt,
which makes such a principle applicable.
(See Yeshwant v. State of Maharashtra [(1972) 3 SCC 639 :
1972 SCC (Cri) 684] and Sukh Ram v. State of U.P. [(1974) 3
SCC 656 : 1974 SCC (Cri) 186] ) The most general and basic
rule, on a question such as the one we are considering, is that
there is no uniform, inflexible, or invariable rule applicable
for arriving at what is really an inference from the totality of
facts and circumstances which varies from case to case. We
have to examine the effect of findings given in each case on
this totality. It is rarely exactly identical with that in another
case. Other rules are really subsidiary to this basic verity and
depend for their correct application on the peculiar facts and
circumstances in the context of which they are enunciated.”
In the instant case by the impugned order, the High Court has held
that every member had inhibited the common intention to
accomplish the unlawful object. The facts on hand would disclose
that the motive alleged was a quarrel that ensued between Ravi and
Nabbu with Ajay and Suraj on the day of Dulhandi and Ravi is said
to have threatened to kill Ajay. This factor would clearly disclose
that the appellants herein were not involved in the fight that occurred
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on the day of Dulhandi and as such no motive could be attributed to
the appellants. The prosecution had failed to prove that the appellants
herein had shared a common object with other members of the
alleged unlawful assembly. To convict a person under Section 149
IPC prosecution has to establish with the help of evidence that firstly ,
appellants shared a common object and were part of unlawful
assembly and secondly , it had to prove that they were aware of the
offences likely to be committed is to achieve the said common
object. Both these ingredients are conspicuously absent and there is
no evidence to connect the petitioners with the deceased or the co-
accused. Undisputedly, no overt act has been attributed to the
appellants, and in unequivocal terms PW-9 admits in his cross-
examination that none of the accused except Pawan had caused
injury to the deceased and there was only a single shot fired from the
pistol. Hence, we are of the considered view that the prosecution had
failed to prove the guilt of the appellants herein beyond reasonable
doubt, and non-consideration of the lacuna in the prosecution case in
proper perspective by the Trial Court and the High Court as analysed
hereinabove has resulted in miscarriage in the administration of
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justice namely conviction of the appellants which cannot be
sustained.
11 . Resultantly, the appeals are allowed and the judgment passed
by the Sessions Court in SC No.21 of 2016 dated 09.05.2017 as
affirmed by the High Court of Punjab and Haryana at Chandigarh in
CRA-D Nos.1063 of 2017, 997 of 2017 and 1043 of 2017 are hereby
set aside and consequently appellants are acquitted of the offences
alleged and are ordered to be released forthwith if not required in any
other case.
……………………….J.
(S. Ravindra Bhat)
…………………..……J.
(Aravind Kumar)
New Delhi,
October 09, 2023