2000 Supreme(SC) 700

2000(3) Supreme 320
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
D.P. Wadhwa & Ruma Pal, JJ.
Jaswant Singh -Appellants
versus
State of Haryana -Respondent
Criminal Appeal No. 722 of 1993
With
Criminal Appeal No. 723 of 1993
With
Criminal Appeal No. 1704 of 1995
Decided on 4-4-2000
Counsel for the Parties :
For the Appellants : Mr. A.K. Sen, Mr. B.K. Mehta and Mr. P.S. Mishra, Sr. Advocates, Mr. Prem Malhotra, Mr. A. Sharan, Mr. Goodwill Indeever (A.C.), Ms. Madhu Sharma and Mr. Alok Vagrecha, Advocates.
For the Respondent : Mr. K.C. Bajaj, Mr. I.S. Goyal, Ms. Indu Malhotra, Mr. Mahabir Singh, Mr. J.P. Dhanda and Mr. Rishi Malhotra, Advocates.

Headnote:(i) Code of Criminal Procedure, 1973-Section 378-Appeal against acquittal by High Court-Offence under Sections 302/149-Charge against 9 accused-Motive long standing enmity-All accused persons to take revenge formed unlawful assembly armed with guns, spears, lathi, axes and kirpan-Two accused inflicted fatal wound-Defence of false implication and self defence-Conviction by trial Court of two accused who inflicted fatal wound under Section 302 and all other accused under Section 302/149-High Court acquitting five accused on ground charge against them not proved and altering conviction of remaining accused-Appeal by complainant against acquittal order of High Court-Demonstrated perversity in decision of High Court particularly in appreciation and application of Section 34 and 149 IPC-High Court accepting that all accused chased deceased-Accepted evidence that there was unlawful assembly of accused with common object or premeditated plan to murder deceased-All elements of both Sections 149 and 34 IPC were present-No evidence as regards false implication and self defence-Acquittal order of High Court reversed and conviction order of trial Court restored.

       Held : The principle to be followed by Appellate Courts considering an appeal against an order of acquittal is to interfere only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable" it is a compelling reason for interference. (Para 21)

       In the instant case, we have found such demonstrable perversity in the decision of the High Court, particularly in its appreciation and application of the provisions of Sections 34 and 149 IPC. We allow the appeal of the complainant by setting aside the order of acquittal and restoring the decision of the Sessions Court and dismiss the appeals filed by Shisha Singh, Baksha Singh, Amrik Singh and Jaswant Singh. Consequent upon our allowing the complainant s appeal, all the appellants are also convicted under Section 302/149 IPC. (Paras 22 and 51)

       (ii) Indian Penal Code, 1860-Sections 34 and 149-Vicarious liability of an accused for offence committed by another-Similarity and difference beteen Sections 34 and 149.

       Both Sections 34 and 149 deal with the vicarious liability of an accused for an offence committed by another. Under Section 34 IPC "when a criminal act is done by several persons in furtherance of the contemplation of all, each of such persons is liable for that act in the same manner as if it were done by him alone". Similarly Section 149 IPC provides for the guilt of every member of an unlawful assembly if in prosecution of a common object an offence is committed, or which the members know would be likely to be committed in prosecution of that object. The similarity of the sections lies in the requirement of a common object or intention or a pre-arranged plan in furtherance of which the act is done. The difference lies in the degree of actual participation required in the criminal enterprise. The emphasis is on physical presence, and promotion or facilitation of the crime. As far as Section 149 IPC is concerned in addition to the common object, merely being a member of an unlawful assembly within the meaning of Section 141 IPC may be sufficient. (Paras 23 to 25)

       (iii) Code of Criminal Procedure, 1973-Sections 161(2) and 162-Contradiction in statement-Omission to state a fact in statement-Omission in order to be significant must depend upon whether the specific question, the answer to which is omitted, was asked of the witness.

       Section 161(2) of the Code requires the person making the statements to answer truly all questions relating to such case, put to him by such officer...". It would, therefore, depend on the questions put by the police officer. It is true that a certain statement may now be used under Section 162 to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872. Now the Explanation to Section 162 provides that an omission to state a fact in the statement may amount to contradiction. However, the explanation makes it clear that the omission must be a significant one and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. Reading Section 161(2) of the Criminal Procedure Code with the Explanation to Section 162, an omission in order to be significant must depend upon whether the specific question, the answer to which is omitted, was asked of the witness. (Paras 46 to 48)

       In this case the Investigating Officer, PW13 was not asked whether he had put questions to Gurdeep Kaur asking for details of the injuries inflicted or of the persons who had caused the injuries. As already noted Gurdeep Kaur s testimony in this regard was believed by both Courts. Both the trial Court as well as the High Court were of the view that although Gurdeep Kaur had not given to the Police particulars of who had caused which injury she had not deviated from the actual occurrence and the manner in which it had happened. This Court has also held that "an incident where a number of persons assaulted three persons at one and the same time with different weapons, some contradictions as to who assaulted whom and with what weapon were not unlikely, and such contradictions could not be made a ground to reject the evidence of eyewitnesses, if it was otherwise reliable. (Paras 48 and 49)