2006 Supreme(SC) 271

2006(5) Supreme 62
Supreme Court of India
(From Punjab and Haryana High Court)
S.B. Sinha & P.P. Naolekar, JJ.
Mohinder Singh & Ors. — Appellants
versus
State of Punjab — Respondent
Criminal Appeal No. 830 of 2005
Decided on 24-3-2006
Counsel for the Parties :
For the Appellants : J.P. Dhanda, Mrs. Raj Rani, Advocates.
For the Respondent : Arun K. Sinha, Rakesh Singh, Mukesh Kr. Sinha, Advocates.

Important point
Where evidence is clear, cogent and credit-worthy and where Court can distinguish the truth from falsehood, mere fact that injuries are not explained by prosecution cannot itself be a sole basis to reject such evidence and consequently the whole case.

Headnote:(i) Indian Penal Code, 1860 — Sections 148, 302, 302/149, 307/149, 326, 325, 324/149 — Appellants A1 and A3 armed with licenced guns, A6 armed with dang, A5 holding kassia and A2 with kirpan, A4 with kassruli assaulted complainant party in a dispute over Shamlat land — Deceased, husband of PW1, was hit with gun shot injuries and died and others were injured — Three of appellants pleaded a defence of alibi and rest of the accused took a plea of self defence — Conviction by trial Court upheld by High Court — Appeal — Non explanation of injuries on accused by prosecution — Where evidence is clear, cogent and creditworthy and where Court can distinguish truth from falsehood, mere fact that injuries were not explained by prosecution could not itself to be a sole basis to reject evidence — Credit worthy evidence of four eye witnesses who were injured in incident — Minor injuries suffered by two accused would not dislodge prosecution case — Ocular version of witnesses found support from medical evidence — Eye witnesses were wholly reliable and conviction was not liable to be interfered with on such evidence.

       Held : From the evidence of (DW-1), it is apparent that the injuries were simple in nature and the grievous nature of injury could not be proved by the doctor by producing the X-Rays and skiagraph, on the basis of which he had formed the opinion of the grievous nature of the injury on Beant Singh as well as on Nirbhai Singh. In the case of Lakshmi Singh and Ors. vs. State of Bihar (1976) 4 SCC 394, it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such non-explanation may assume greater importance where the evidence consisted of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and credit-worthy and where the Court can distinguish the truth from the falsehood, the mere fact that the injuries are not explained by the prosecution, cannot itself be a sole basis to reject such evidence and consequently the whole case. (Paras 8 and 9)

       The cross-examination of these witnesses could not show any contradiction or discrepancy in their version in regard to the participation of the accused-appellants in the crime and the part played by them. The ocular version of the witnesses find support from the medical evidence of Dr. Kirandeep (PW-4) who has conducted the post-mortem on the deceased Harbans Singh. Statement of Dr. M.G. Sharma (PW-3), who examined Mukhtiar Singh and Jaspal Singh and statement of Dr. Tarlochan Singh (PW-15), who examined Harvinder Kaur Gurmit Singh, Pritam Singh, Jasvinder Kaur and Mander Singh, fully corroborated the ocular version of the eye-witnesses. We find that the eye-witnesses were wholly reliable and supported the case of the prosecution to the hilt. (Para 17)

       (ii) Indian Penal Code, 1860 — Section 149 — Conviction of appellants for offence of murder with aid of Section 149 IPC — Appeal — Scope and ambit of Section 149 IPC — Members of unlawful assembly could be held liable if it was shown that they knew before hand that offence actually committed was likely to be committed in prosecution of common object — Common object could develop even on spot but sharing of object by all accused must be shown to be in existence before actual occurrence — Mere possibility of commission of offence would not necessarily enable Court to draw an inference that likelihood of commission of such offence was within knowledge of every member of unlawful assembly — All accused-appellants came to spot carrying deadly weapons and all of them participated in assault on complainant party — Common object of assembly stood established and conviction could not be interfered with.

       Held : The members of the unlawful assembly can be held liable under Section 149 IPC, if it is shown that they knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. It is true that the common object does not require prior concert and a common meeting of mind before the attack. It can develop even on spot but the sharing of such an object by all the accused must be shown to be in existence at any time before the actual occurrence. (Para 22)

       The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 - either clause - is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly, every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act. (Para 23)

       The prosecution has established that all the accused-appellants came to the spot of incident together. All the accused-appellants were carrying deadly weapons. Two of them had carried 12 bore guns. Immediately on reaching the spot Mohinder Singh one of the accused had opened fire followed by firing by another accused-appellant Nasib Singh and in the same transaction the accused-appellants had caused several injuries to various persons, not only to the persons who were present at the spot but also to the persons who had reached the spot after hearing the commotion. The facts found in the case clearly established the common object of the assembly. The knowledge of assembly that grievous hurt or death would be caused can be safely attributed to the members of the unlawful assembly because of the fact that two of the members of the assembly have carried the licensed guns. An inference can be drawn of the knowledge of common object and formation of common object from the behaviour of the members of the assembly of the accused persons, who came together with deadly weapons and immediately started attacks indiscriminately on the persons present there. As many as nine persons have received 31 injuries, which clearly establishes the common object of the unlawful assembly to do away with Harbans Singh and cause injuries to any person who tried to intervene. (Para 27)