2021 Supreme(SC) 732

SUPREME COURT OF INDIA
(From the High Court of Judicature at Allahabad)
L. NAGESWARA RAO, SANJIV KHANNA, B.R. GAVAI, JJ.
Hari & Anr. - Appellants
Versus
The State of Uttar Pradesh - Respondent
Criminal Appeal No. 1553-1556, 186 to 192 of 2018, 420 of 2021, Criminal Appeal No. 1503 of 2021 (@SLP (Crl.) No. 1975 of 2018)
Decided on : 26-11-2021.

IMPORTANT POINTS
(1) It is not the practice of Apex Court to reappreciate evidence for the purpose of examining whether finding of fact concurrently arrived at by High Court and subordinate courts is correct or not.
(2) Evidence of prosecution witnesses cannot be rejected in toto merely because prosecution chose to treat them as hostile and cross-examined them – Evidence of such witnesses cannot be treated as effaced or washed off record altogether.
(3) Ghastly murders of three youngsters which are honour killings squarely falls under head of anti-social and abhorrent nature of crime.
(4) Right to life guaranteed to people of this country also includes in its fold right to live in a society which is free from crime and fear and right of witnesses to testify in Courts without fear or pressure.

Headnote:

(A) Constitution of India – Article 136 – Appeal – Scope and ambit – Article 136 of Constitution of India is an extraordinary jurisdiction which this Court exercises when it entertains an appeal by special leave and this jurisdiction, by its very nature, is exercisable only when this Court is satisfied that it is necessary to interfere in order to prevent grave or serious miscarriage of justice – Mere errors in appreciation of evidence are not enough to attract this invigilatory jurisdiction – It is not the practice of Apex Court to reappreciate evidence for the purpose of examining whether finding of fact concurrently arrived at by High Court and subordinate courts is correct or not – It is only in rare and exceptional cases where there is some manifest illegality or grave and serious miscarriage of justice that this Court would interfere with such finding of fact – Concurrent findings of fact pertaining to commission of crime and involvement of appellant cannot be subjected to further scrutiny by Apex Court. (Paras 19 and 20)

(B) Criminal Law – Appreciation of evidence – Evidence of prosecution witnesses cannot be rejected in toto merely because prosecution chose to treat them as hostile and cross-examined them – Evidence of such witnesses cannot be treated as effaced or washed off record altogether but same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof – It is for Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, witness stands thoroughly discredited or can still be believed in regard to a part of his testimony – If Judge finds that in the process, credit of witness has not been completely shaken, he may, after reading and considering evidence of witness, as a whole, with due caution and care, accept, in light of other evidence on record, that part of testimony which he finds to be creditworthy and act upon it – Even if witnesses have turned hostile, their evidence can be accepted, if they are natural and independent witnesses and have no reason to falsely implicate accused. (Paras 25 and 26)

(C) Constitution of India – Articles 19(1)(a) and 21 – Witness Protection Scheme, 2018 – Protection of witnesses – Right to testify in Courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today – If one is unable to testify in Courts due to threats or other pressures, then it is clear violation of Article 19 (1) (a) and Article 21 of Constitution – Right to life guaranteed to people of this country also includes in its fold right to live in a society which is free from crime and fear and right of witnesses to testify in Courts without fear or pressure – One of main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by State – It is a harsh reality, particularly, in those cases where accused persons/criminals are tried for heinous offences, or where accused persons are influential persons or in a dominating position that they make attempts to terrorise or intimidate witnesses because of which these witnesses either avoid coming to Courts or refrain from deposing truthfully – This unfortunate situation prevails because of reason that State has not undertaken any protective measures to ensure safety of these witnesses – State has a definite role to play in protecting witnesses, to start with, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty – As a protector of its citizens, it has to ensure that during a trial in court witness could safely depose truth without any fear of being haunted by those against whom witness had deposed – Every State has a constitutional obligation and duty to protect life and liberty of its citizens – That is fundamental requirement for observance of rule of law – There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology. (Paras 28 and 29)

(D) Indian Penal Code, 1860 – Section 149 – Common object of unlawful assembly – Section 149 of Indian Penal Code is declaratory of vicarious liability of members of an unlawful assembly for acts done in prosecution of common object of that assembly or for such offences as members of unlawful assembly knew would be committed in prosecution of that object – If an unlawful assembly is formed with common object of committing an offence, and if that offence is committed in prosecution of object by any member of unlawful assembly, all members of assembly will be vicariously liable for that offence even if one or more, but not all committed offence – If an offence is committed by a member of an unlawful assembly and that offence is one which members of unlawful assembly knew to be likely to be committed in prosecution of common object, every member who had that knowledge will be guilty of offence so committed – It is not necessary for prosecution to prove each of members’ involvement especially regarding which or what act – While overt act and active participation may indicate common intention of person perpetrating crime, mere presence in unlawful assembly may fasten vicariously criminal liability under Section 149 – Common object is different from common intention as it does not require a prior concert and a common meeting of minds before attack – It is enough if each has same object in view and their number is five or more and that they act as an assembly to achieve that object – Common object of an assembly is to be ascertained from acts and language of members composing it, and from a consideration of all the surrounding circumstances – It may be gathered from course of conduct adopted by members of assembly. (Paras 35 and 36)

(E) Indian Penal Code, 1860 – Sections 147, 302 read with 149, 323 read with 149, 324 read with Sections 149 and 201 read with Section 149 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 3(3)(10) – Honour killing of three persons – Death sentence – Testimonies of the eye-witnesses are credible and have been rightly accepted by Courts below – Recovery of white Tahmad and clothes of deceased, half burnt pieces of bones, ribs, spinal cord, parts of intestine and burnt pieces of flesh support prosecution’s version about burning of bodies of deceased – Murder of deceased persons is established beyond doubt – Harrowing torture of three deceased which commenced at 9 pm and continued till 9 am on next day, with participation of Appellants in Panchayat, was proved by testimony of eye-witnesses – Specific overt acts have been ascribed to some of appellants for physically assaulting deceased and their family members – Courts below committed no error in convicting appellants under Section 302 with aid of Section 149 IPC – Even in respect of those who are not assigned any active role or overt act, they shared common object to punish deceased and kill them – Two young men and a woman were physically assaulted for nearly 12 hours and killed by accused for violating caste-ridden societal norms – Honour killings have not stopped in this country and it is high time that civil society reacts and responds with strong disapproval about ghastly crimes committed in name of caste – Ghastly murders of three youngsters which are honour killings squarely falls under head of anti-social and abhorrent nature of crime – High Court converted death sentence of Appellants to that of life imprisonment till their last breath, on the grounds of age of some of Appellants, passage of long time after commission of crime and mental sufferings that they have undergone – Judgment of High Court upheld – Conviction and sentence modified. (Paras 22, 38, 39, 46, 47, 48, 49 and 50)

Facts of the case:

By a judgment dated 14.11.2011, the Trial Court held accused persons guilty of offences under Sections 147, 302 read with 149, 323 read with 149, 324 read with Sections 149 and 201 read with Section 149 of Indian Penal Code and Section 3(3)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Criminal appeals were filed by convicted persons in which the conviction was upheld by High Court. However, the death sentence imposed on eight accused persons others was altered to imprisonment for life. Aggrieved by their conviction and sentence, the appellants have approached this Court by filing the above criminal appeals.

Findings of Court:

In India, imposition of death sentence can be only after special reasons are recorded as per Section 354 (3) of Code of Criminal Procedure, 1973. While ascertaining existence or absence of the special reasons, Court must pay due regard both to the crime and criminal. Relative weightage has to be given to the aggravating and mitigating factors depending upon the facts and circumstances of each case.

Result : Criminal Appeals disposed of.