2020 Supreme(SC) 710

SUPREME COURT OF INDIA
N.V. Ramana, Surya Kant, Aniruddha Bose, JJ.
Rohtas & Anr. – Appellant(s)
Versus
State of Haryana – Respondent
Criminal Appeal No. 38 of 2011
With
Bijender – Appellant
VERSUS
State of Haryana – Respondent
Criminal Appeal No. 775 of 2011
Decided on : 10-12-2020

IMPORTANT POINTS
(1) Improper, or non-framing of charge by itself is not a ground for acquittal under Section 464 of Cr.P.C.
(2) Whereas Section 34 requires active participation and a prior meeting of minds, Section 149 IPC assigns liability merely by membership of unlawful assembly.
(3) Any adverse inference against non-examination of independent witnesses needs to be assessed upon facts and circumstances of each case.
(4) Any misplaced sympathy with accused is likely to cause injustice to victim of crime.

Headnote:

(A) Criminal Procedure Code, 1973 – Sections 211 to 224 and Section 386 – Alteration of charge – Sections 211 to 224 of Cr.P.C. which deal with framing of charges in criminal trials, give significant flexibility to Courts to alter and rectify charges – Only controlling objective while deciding on alteration is whether new charge would cause prejudice to accused – Emphasis of Chapter XVII of Cr.P.C. is to give a full and proper opportunity to defence but at the same time to ensure that justice is not defeated by mere technicalities – Similarly, Section 386 of Cr.P.C. bestows even upon appellate Court such wide powers to make amendments to charges which may have been erroneously framed earlier – Improper, or non-framing of charge by itself is not a ground for acquittal under Section 464 of Cr.P.C. – It must necessarily be shown that failure of justice has been caused in which case retrial may be ordered. (Para 16)

(B) Indian Penal Code, 1860 – Section 34 and 149 – Common intention and common object – Although both Section 34 and 149 of the IPC are modes for apportioning vicarious liability on individual members of a group, there exist a few important differences between these two provisions – Whereas Section 34 requires active participation and a prior meeting of minds, Section 149 IPC assigns liability merely by membership of unlawful assembly – In reality, such ‘common intention’ is usually indirectly inferred from conduct of individuals and only seldom it is done through direct evidence. (Para 22)

(C) Indian Penal Code, 1860 – Sections 307 and 148 – Attempt to murder and rioting – Conviction and sentence – Before members of an ‘unlawful assembly’ can be vicariously held guilty of an offence committed in furtherance of common object, it is necessary to establish that not less than five persons, as mandatorily prescribed under Section 141 read with Section 149 of IPC had actually participated in occurrence – It is not uncommon when although number of accused is more than five at the time of charge-sheeting, but owing to acquittals of some of them over course of trial, remaining number of accused falls below five – In such cases, charge under Sections 148 and 149 IPC would not survive – Both common object and common intention are traced back to same evidence – In Section 313 Cr.P.C. appellants were expressly confronted with their specific role in offence that each of them had individually attacked complainant with a deadly object in furtherance of the common intention of killing him – Appellants have not suffered any adverse effect when High Court held three of them individually guilty for offence of attempted murder, without aid of Section 149 IPC – On facts, offence under Section 307 IPC is clearly made out against each of three appellants – Medical experts have in their depositions clearly explicated that weapons used and the injuries inflicted were more than sufficient to cause death in ordinary course of nature – It manifests appellant’s intention to inflict bodily injury knowing fully that such injuries would ordinarily lead to complainant’s death – Injuries have led to amputation of an entire limb, leaving complainant permanently disabled – This by itself shows very likely possibility of complainant dying if not for timely intervention of PW-3 and appropriate medical care – That apart, even requirements of Section 34 of IPC are well established as attack was apparently premeditated – Incident was not in a spur of moment – Appellants had previously threatened complainant with physical harm if he were to attempt to irrigate his fields – Appellants and their deceased co-accused were all armed with deadly weapons – They surrounded complainant and in a brutal attack caused him gruesome injuries and disabled him for life – Appellants have not undergone even half of their sentence period – Having enjoyed more productive part of their lives outside jail cannot be, per se, taken as a mitigating factor – Any misplaced sympathy with appellants is likely to cause injustice to victim of crime – No justification to show leniency and reduce sentence – Appeal dismissed – However, conviction under Section 148 set aside. (Paras 15, 23, 24, 25, 26, 29 to 32)

(D) Criminal Law – Appreciation of evidence – It is true that duty of prosecution is to seek not just conviction but to ensure that justice is done – Prosecution must put forth best evidence collected in course of investigation – Although it is always ideal that independent witnesses come forward to substantiate prosecution case but it would be unfair to expect the presence of third parties in every case at the time of incident, for most violent crimes are seldom anticipated – Any adverse inference against non-examination of independent witnesses needs to be assessed upon facts and circumstances of each case – In fact, it must first be determined whether best evidence though available, has been actually withheld by prosecution for oblique or unexplained reasons. (Para 27)

Facts of the Case:

These two criminal appeals, which have been heard through video conferencing, are directed against the judgment dated 15.03.2010 of High Court of Punjab and Haryana whereby conviction of Rohtas and Sanjay (appellants in Criminal Appeal No. 38 of 2011) and Bijender (appellant in Criminal Appeal No. 775 of 2011) under Sections 307 and 148 of the Indian Penal Code, 1860 has been upheld, though the sentence of seven years rigorous imprisonment awarded by Additional Sessions Judge, Sonepat has been reduced to five years, with a fine of Rs. 1,00,000 (Rupees One Lakh) payable as compensation to victim-complainant.

Findings of Court:

Appellants have in fact been blowing both hot and cold with their arguments. Earlier in the trial they had tried to discredit the ocular testimony of PW3 by claiming that he might not have been able to witness the incident owing to standing crops in field. Nonetheless, they expect this Court to believe that there could have been others who witnessed the incident but have deliberately been suppressed by the prosecution.

Result : Appeals dismissed.