2004(1) Crimes 196 (SC)
Supreme Court of India
(From Calcutta High Court)
Doraiswamy Raju & Arijit Pasayat, JJ.
Chanakya Dhibar (Dead) —Appellant
versus
State of West Bengal and Ors. —Respondents
Criminal Appeal No. 728 of 1997
Decided on 19-12-2003

Important point
Where all the accused persons were armed, their conduct before, during and after the occurrence clearly brings about the object, that the assembly was unlawful, mere fact that only one of them used the weapon does not rule out ­application of Section 149 IPC.

Headnote:(i) Indian Penal Code, 1860—Sections 148 and 304 I rw/s 149—Respondents held guilty for offences under—High Court acquitting five respondents—Appeal by informant (PW1)—Prosecution case that deceased was assaulted severely by five respondents—PW3 who was accompanying him saw the occurrence—On hearing about assaults, informant, elder brother of deceased and PW2, wife of deceased went to the spot—FIR lodged immediately in which names of five respondents were indicated—High Court held that witnesses on whose evidence prosecution relied on were not truthful witnesses—Perusal of High Court’s judgment revealed that it was based more on surmises and conjectures—Some of the conclusions were contrary to record—No delay in lodging FIR—Whether judgment of acquittal as recorded by the High Court is sustainable—(No)—High Court was wrong in holding the accused persons to be not guilty.

       Held : A bare perusal of the High Court’s judgment shows that the same is based more on surmise and conjectures than making an attempt to analyse the evidence. Some of the conclusions rightly submitted by learned counsel for the appellant are contrary to record. The evidence of PW-5 has been disbelieved on the ground that he could not have possibly seen the occurrence being far away from the road where he claimed to be sitting. The evidence on record shows that the distance is even less than 10 yards. Another factor which seems to have weighed with the High Court is the statement of PW-3 that he had taken to his needs after the accused persons stopped the deceased. The High Court has clearly over-looked the categorical evidence of PW-3, who during cross examination has stated that after seeing the assault he had run away. The statement to the effect that he ran way after the accused persons stopped the deceased is to be read along with other parts of the evidence and not in an isolated way The statement made in the cross examination to the effect that he ran away after seeing the assaults is significant. The High Court has also raised suspicion over PW-3’s conduct in not lodging the information first and going to the house of the deceased and not his own house which was nearer. This according to us is really of no consequence. The deceased was closely related to him and, therefore, as explained in evidence he thought it proper to inform the relatives of deceased first so that medical treatment could be immediately provided. There was also no delay in lodging the FIR. The occurrence took place a about 9.45 p.m. and the information with the police was lodged at about 10.15 p.m. There was no evidence to show that the temple goers were passing on the roads. The hypothetical conclusion of the High Court that people must be passing is without any foundation. The evidence of PW-5 has been discarded because of his antecedents. When the evidence has been analysed carefully by the trial Court to find that he is a truthful witness, his antecedents should not have weighed with the High Court to completely discard his evidence. There is also no material to support the conclusion of the High Court that he was a tutored witness. The most vulnerable conclusion of the High Court relates to its view regarding PW-3 because he claimed to have accompanied the deceased. Such a conclusion to say the least borders on absurdity and is without any foundation for such a conclusion. The High Court should not have recorded such a finding. The High Court also doubted PW-3’s evidence on the ground that he did not accompany the deceased to the hospital. The witnesses PW-2 and PW-3 have categorically stated that PW-2 had seen the deceased in an injured condition and therefore PW-3 accompanied her to th deceased’s house when the deceased was shifted to the hospital. (Para 8)

       All the accused persons were armed. Their conduct before, during and after the occurrence clearly brings about the object. The assembly was patently unlawful. It is inconceivable that persons armed would surround the persons without any criminal object in mind. Mere fact that only one of them used the weapon does not really rule out application of Section 149 IPC, Learned counsel for the accused persons submitted that contrary to the evidence of PWs 3 and 5 there was only one injury found by the doctor. PWs 3 and 5 have stated about assaults and if five persons were really assaulting the result would not have been only one injury. The definition of “assault” as given in Section 351 IPC makes the plea unacceptable. The trial Court had rightly and in proper legal perspective convicted the accused-respondents under section 148 and 304 Part I read with Section 149 IPC. The High Court’s judgment suffers from serious infirmities making it indefensible and is therefore, set aside. (Para 19)

       (ii) Indian Penal Code, 1860—Section 149—Unlawful Assembly—Common object—Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object—Where common object of an unlawful assembly is not proved, accused persons cannot be convicted with the help of Section 149. (Paras 11 to 13)

       (iii) Indian Penal Code, 1860—Section 149—Unlawful Assembly—Vicarious liability—Mere presence in unlawful assembly may fasten vicariously criminal liability under Section 149—Plea that definite roles have not been ascribed to the accused and, therefore, Section 149 is not applicable, held not sustainable. (Para 14)

       (iv) Evidence Act, 1872—Section 3—Chance witness—Evidentiary value —In a murder trial by describing independent witnesses as ‘chance witnesses’ it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful.

       Held : Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere ‘chance witnesses’. The expression ‘chance witness’ is borrowed from countries where every man’s home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man’s castle. It is quite unsuitable an expression in a country where people are less formal and more casual. (Para 17)

       (v) Criminal Procedure Code, 1973—Section 374—Appeal against acquittal—Scope—No embargo on appellate Court reviewing evidence upon which an order of acquittal is based—Principles to be followed by appellate Court.

       Held : There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process. It is a compelling reason for interference. (Para 18)

       Result : Appeal allowed.