2000 Supreme(AP) 207

2000 (4) Crimes 488
KERALA HIGH COURT (DB)
Arfjit Pasayat. C.J. and K.S.
Radhakrishnan, J.
Mohanan and Anr. -Appellants
versus
State -Respondent
Crl. A Nos. 541 and 546 of 1998
and Crl. R.P. No. 35 of 1999.
Decided on 22-3-2000
Counsel for the Parties:
For the Appellants: Mr. Sasthaman galam G. Gopalakrishnan Nair and Mr. R. Bindu (Sasthamangalam), Advocates.
For the Respondent: Mr. Ignatius, Kuriakose, P.P.

Headnote:(i) Evidence Act. 1872-Sections- Evidence of a witness - Method of appreciation - Approach must be whether evidence of the witness read as a whole appears to have a ring of truth - Minor discrepancies on trivial matters would not permit rejection of evidence as a whole.

       Held: While appreciating evidence of a witness the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief Minor discrepancies on trivial matters not touching the core of the case hypertechnical approach by taking sentences borne out of context here or there from the evidence attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the Appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Several honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation retention and reproduction differ with individuals. Cross-examination is some times an unequal duel between a rustic and refined Lawyer. If a case is proved perfectly, it is argued that it is unnatural; if a case has some flaws inevitably because human beings are prone to err, it is argued that it is too imperfect. (Para 7)

       (ii) Indian Penal Code 1860 Section 98 - Private defence - Right of accused - Availability - Court must consider all surrounding circumstances - Whether in a particular set of circumstances a person acted In exercise of right of private defence Is a question of fact to be determined on facts and circumstances of each case - It Is not necessary for the accused to plead that be acted In self defence - However burden of proof is on accused who sets of the plea of self defence - He can establish his plea by reference to circumstances transporting from prosecution evidence Itself - Burden stands discharged by showing preponderance of probabilities Number of injuries is not always a safe criterion for determining who the aggressor was - Non explanation of injuries on body of accused persons Whether affects prosecution case in an cases - (No).

       Held: Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available, to be considered from the material on record. Under Section 105 of the Indian Evidence Act. 1872 (in short 'Evidence Act'), the burden of proof is on the accused, who sets of the plea of self defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence and it shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The, question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the, accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. (Para 8)

       The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the Injuries so caused on the accused probabilised me version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very Important circumstance. But mere non-explanation of the injuries by me prosecution may not affect the prosecution case in all cases. This Principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. (See: Lakshmi Singh v. State of Bihar, AIR 1976 SC 2263). A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor in order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject-matter of right of private defence. The plea of right comprises the body or property, (1) of the person exercising the right; or (11) of any other person; and the right may be exercised in the case of any offence against the body and in the case of offences of theft, robbery, mischief or criminal trespass and attempts at such offences in relation to property. Section 99 lays down right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106, IPC is controlled by Section 99, IPC. To claim a right of private defence extending to voluntary causing of death the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused/ to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC define the limit and extent of right of private defence of body. (Para 9)

       The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt or threat, to commit the offence, although the offence may not have been committed but not until that there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev v. State of Punjab. AIR 1963 SC 612, it was observed that as soon as to the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence. Judged in the aforesaid background, it is clear that the protection afforded for an act done In exercise of private defence is not applicable to the facts of the present case, as established on evidence. (Para 10)

       (iii) Indian Penal Code 1860 Section 149-Unlawful assembled Determination of - Common object and common intention - Distinction - Constructive liability - Concept of - Where assaults by A1 and A10 could be linked to fatal blows - They were to be convicted under Section 302. IPC with application of Section 34 of the Code - Rest of the accused held liable for offence under Sections 326/149. IPC considering nature of injuries sustained by victims and weapons used by accused.

       Held: In a given case, prosecution has to prove that accused was not only a member of an unlawful assembly but also shared common object of such assembly at all crucial stages. Proof beyond reasonable doubt means just what it says. It does not admit tangible possibility, but it does admit a high degree of cogency consisted with an equal high degree of probability. Primary question that arises for consideration is whether Section 149. IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and the accused was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved: the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only upto a particular stage and not thereafter. Members of an unlawful assembly may have community of object upto certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149, IPC may be different on different 'members of the same' assembly. Intention is the volition of mind "immediately preceding the act, while object is the end to which effect is directed, the thing aimed at and that Which on of endeavours to attain and any on intention implies a. resolution of the mind while object means the purpose for which the resolution was made. (Para 11)

       Common object" is different from a "common intention" as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141 an assembly which was not unlawful when it was assembled. may subsequently become unlawful. It is not necessary that the intention or the purpose which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which at its commencement or even for sometime thereafter, is lawful, may subsequently become unlawful. In other words, it can develop during the course of incident at the spot co instanti. (Para 12)

       Factual position as highlighted by prosecution witnesses rules out application of Section 149, IPC in the case of all accused persons. Question, therefore, is whether Section 34, IPC can be pressed into service. Said provision refers to a criminal act done by several persons in furtherance of the common intention of all, as highlighted above. It embodies the common-sense principle that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. Constructive liability may arise in three well defined cases. A person may be constructively liable for an offence which he did not actually commit by reason of, (1) the common intention of all to commit such an offence (Section 34); (ii) his being a member of a conspiracy to commit such an offence (Section 120-A); and (iii) his being a member of an unlawful assembly, the members of, whereof knew that an offence was likely to be committed (Section 149). Obviously, Section 34 is framed to meet a case in which it may be difficult to distinguish between acts of individual members of a party or to prove exactly what part was taken by each of them. The apparent on why all are deemed guilty in such a case is that the presence of accomplices gives encouragement, support and protection to the person actually committing the act. Common intention implies coming in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. Sine qua non for application of Section 34 is existence of a pre-concert. (Para 14)

       Result: Appeals disposed of accordingly.