2006 Supreme(SC) 182

2006(2) Supreme 420
Supreme Court of India
(From Gauhati High Court)
S.B. Sinha & Dalveer Bhandari, JJ.
Munna Chanda —Appellant
versus
State of AssamMunna Chanda —Respondent
Criminal Appeal No. 49 of 2005
With
Criminal Appeal Nos. 840, 841, 842 and 251/2005
Decided on 24-2-2006
Counsel for the Parties :
For the Appellant : J.C. Gupta, Sr. Advocate, Manish Goswami (for M/s. Map & Co.), Sanjay Hegde, Azim H. Laskar, Anand, Rajneesh Singh, A.K. Mishra, A.R. Singh, Abhijit Sengupta and Ramesh Chandra Pandey, AC (NP) Advocates.
For the Respondent : Sidharth Luthra, Krishna Sharma, V.K. Sidharthan, Ms. Rajni Gupta and M/s. Corporate Law Group, Advocates.

Headnote:Indian Penal Code, 1860—Section 302/149—Four appellants with unknown persons were alleged to have assaulted deceased and caused his death—PW2 and PW3 took shelter in a shop when appellants assaulted deceased and deceased ran to save himself and appellants chased him—PW2 and PW3 came out of shop after half an hour and body of deceased was discovered in next morning lying near canal—Conviction recorded by Courts below on circumstances that appellants with others chased deceased and that they had prepared and forced prosecution witnesses to sign a sulhanama (compromise) to effect that they would not file any complaint—Appeal—In FIR lodged by brother of deceased, two of the appellants were even not named and they were not identified in dock by any prosecution witness and no prosecution witness attributed any role to them—Appellants were not armed with weapons when initially they assaulted deceased—They could not be said to have had common object to kill deceased—Nothing to show what role the appellants either conjointly or separately played—Conviction could not be sustained.

       Held : The learned Sessions Judge as also the High Court recorded the judgment of conviction and sentence relying on or on the basis of the depositions of PW-2 and PW-3. It was accepted that there was no direct evidence in regard to the role played by any of the appellants in causing the death of Moti (deceased). As noticed hereinbefore, the finding of guilt of the appellants was arrived at only on the basis of two circumstantial evidence that (1) they had chased the deceased; (2) they had prepared and forced the prosecution witnesses to sign a sulhanama wherein a statement was made that they would not file any complaint against the accused. Homicidal death of Moti is undisputed. There is no evidence as to who had assaulted him. Role played by the accused either conjointly or individually in causing death of the deceased is not known. Some offence was committed, but who did so is not known. Whether in the aforementioned situation, all the accused would be convicted with the aid of Section 149 of the Indian Penal Code is the question. (Para 9)

       The appellants herein were not armed with weapons. They except Bhuttu were not parties to all the three stages of the dispute. At the third stage of the quarrel, they wanted to teach the deceased and others a lesson. For picking up quarrel with Bhuttu, they might have become agitated and asked for apologies from Moti. Admittedly, it was so done at the instance of Nirmal, Moti was assaulted by Bhuttu at the instance of Rattan. However, it cannot be said that they had common object of intentional killing of the deceased Moti, however, while being assaulted could free himself from the grip of the appellants and fled from the scene. The deceased, was being chased not only by the appellants herein but by many others. He was found dead next morning. There is, however, nothing to show as to what role the appellants either conjointly or separately played. It is also not known as to whether if one or all of the appellants were present, when the last blow was given. Who are those, who had assaulted the deceased is also not known. At whose hands he received injuries is again a mystery. Neither Section 34 nor Section 149 of the Indian Penal Code is, therefore, attracted. [See Dharam Pal and Others v. State of Haryana (1978) 4 SCC 440 and Shambhu Kuer v. State of Bihar AIR 1982 SC 1228]. We are, however, not obliviously that in Bishna @ Bhiswadeb Mahato & Ors. v. State of West Bengal [2005 (9) SCALE 204], it was stated :

       "For the purpose of attracting Section 149 and/or 34 IPC, a specific overt act on the part of the accused is not necessary. He may wait and watch inaction on the part of an accused may some time go a long way to hold that he shared a common object with others."

       Furthermore, it is evident that no evidence has been brought on records to establish that the appellants Munna and Ujjal had committed any offence. As noticed hereinbefore, they were not named in the FIR. They were not identified in the dock. No witness has taken their names as the persons who committed any overt act. No recovery has been made from them. There is also no evidence that they had chased the deceased. As it had not been established that the appellants were members of an unlawful assembly, in our opinion, they could not have been convicted for commission of an offence under Section 302/149 I.P.C. (Paras 13 to 15)