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SUPREME COURT OF INDIA
Dr. B.S. Chauhan and Dipak Misra, JJ
State of Rajasthan — Appellant
versus
Shiv Charan & Ors. — Respondents
Criminal Appeal Nos. 1425-1426 of 2007
Decided on : 01-7-2013
(b) Indian Penal Code, 1860- Section 149- Unlawful assembly - Common object-Section 149 IPC has its foundation on constructive liability which is the sine qua non for its application- It contains essentially only two ingredients, namely, (I) offence committed by any member of any unlawful assembly consisting five or more members and; (II) such offence must be committed in prosecution of the common object (Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. It is not necessary that for common object there should be a prior concert as the common object may be formed on spur of the moment- Common object would mean the purpose or design shared by all members of such assembly and it may be formed at any stage- Even if the offence committed is not in direct prosecution of the common object of the unlawful assembly, it may yet fall under second part of Section 149 IPC if it is established that the offence was such, as the members knew, was likely to be committed. (Para 16)
(c) Indian Penal Code, 1860- Section 149 - Its two parts- The court must keep in mind the distinction between the two parts of Section 149 IPC, and, once it is established that unlawful assembly had a common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act, rather they can be convicted for vicarious liability- However, it may be relevant to determine whether the assembly consist of some persons which were merely passive witnesses and had joined the assembly as a matter of ideal curiosity without intending to entertain the common object of the assembly- However, it is only the rule of caution and not the rule of law- Thus, a mere presence or association with other members alone does not per se be sufficient to hold everyone of them criminally liable for the offence committed by the others unless there is sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act, being a member of unlawful assembly as provided for under Section 142 IPC- It may also not be a case of group rivalry or sudden or free fight or an act of the member of unlawful assembly beyond the common object. (Para 16)
(d) Indian Penal Code 1860, Section 149 - Its applicability-For resorting to the provisions of Section 149 IPC, the prosecution has to establish that (i) there was an assembly of five persons; (ii) the assembly had a common object; and (iii) the said common object was to consist one or more of the five illegal objects specified in Section 141 IPC- In the instant case evidence showed that all the respondents had come together on a tractor- They started abusing deceased- Absconding accused hit the deceased, with an iron rod, on his head, and the respondents accused also hit him with lathis- Even after inflicting first injury on the head by absconding accused, beating by the respondents went on and thereafter, the accused ran away- The common object of the unlawful assembly stood translated into action and the members of the unlawful assembly are liable to be punished under Section 302 read with Section 149 IPC. (Para 17).
(e) Indian Penal Code, 1860- Section 96 - Non-explanation of the injuries of the accused- Before the non-explanation of the injuries on the person of the accused, by the prosecution witnesses, may be held to affect the prosecution case, the Court has to be satisfied of the existence of two conditions:(i) that the injuries on the person of the accused were also of a serious nature; and(ii) that such injuries must have been caused at the time of the occurrence in question-Where the evidence is clear, cogent and creditworthy; and where the court can distinguish the truth from falsehood, the mere fact that the injuries on the person of the accused are not explained by the prosecution cannot, by itself, be the sole basis to reject the testimony of the prosecution witnesses and consequently, the whole case of the prosecution- The injuries of the accused persons were superficial, were not of serious nature, the prosecution evidence was clear and cogent- The non-explanation of the injuries of the accused persons did not affect the prosecution case.
(f) Criminal trial - Cross case-The mere pendency of the cross case before the Court should not give leverage to the Court to take a lenient view.
JUDGMENT
Dr. B.S. Chauhan, J.
1. These appeals have been preferred against the impugned judgment and order dated 20.9.2005, passed by the High Court of Judicature of Rajasthan at Jodhpur (Jaipur Bench) in D.B. Criminal Appeal Nos.1454 and 1458 of 2002, by way of which, the High Court has converted the conviction of the respondents herein, from one under Sections 302/149 of Indian Penal Code, 1860 (hereinafter referred to as `the IPC’) and Section 148 IPC to another under Section 323 IPC, and the sentence awarded by the Sessions Court to life imprisonment with fine, has also been substituted by a sentence of one year.
2. Facts and circumstances giving rise to these appeals are that:
A. A complaint was submitted by Batti Lal (PW.1) in the Police Station, Bamanwas on 28.8.2000 at about 9 a.m., that on the said day, his brother Prahlad (since deceased), had been grazing buffaloes. The respondents herein alongwith one Mahesh, absconder, had attacked Prahlad and inflicted injuries on his person. Mahesh had hit Prahlad on the head with a rod, whereas the respondents had inflicted injuries with lathis. Kedar-accused had tried to push Prahlad to crush him under the tractor driven by the accused, but could not succeed. Prahlad had then been taken to the local hospital, from where he was referred to Jaipur Hospital, but he succumbed to his injuries while in transit.
B. On the basis of the said report, a case under Sections 147, 148, 149 and 302 IPC was registered against the respondents and Mahesh, absconder, and investigation commenced. Autopsy on the dead body of Prahlad was performed. The respondents were arrested. All necessary memos were drawn up, and upon completion of the investigation, a charge sheet was filed against the respondents. However, the investigation against Mahesh remained pending, as he had been absconding.
C. The trial commenced. The prosecution examined 15 witnesses in support of its case. The respondents were examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Cr.P.C.’). They not only pleaded innocence but also examined one witness in defence. Upon completion of the trial, the learned Trial Court convicted and sentenced the respondents as has been referred to hereinabove.
D. Aggrieved, the respondents preferred criminal appeals before the High Court, which were allowed vide impugned judgment and order.
Hence, these appeals.
3. Shri Ajay Veer Singh, learned counsel appearing for the State, has submitted, that in light of the grievous injuries found on the body of Prahlad (deceased), which are undeniably homicidal in nature, the case certainly did not warrant the conversion of the conviction of the respondents from under Sections 302/149/148 IPC, to one under Section 323 IPC. There was sufficient evidence on record to show that the respondents were the aggressors, and the mere pendency of the cross case before the Trial Court should not give leverage to the High Court to take such a lenient view. Therefore, the appeals deserve to be allowed.
4. Per contra, Shri G.K. Bansal, learned counsel appearing for the respondents has submitted, that the High Court has appreciated the entire evidence in correct perspective, and upon realising that it was a free fight, has held that it was not possible to determine, who were the actual aggressors? The view taken by the High Court does not require any interference whatsoever. Thus, the appeals lack merit and are liable to be dismissed.
5. We have considered the rival submissions made by learned counsel for the parties and perused the record.
6. Post-mortem on the body of Prahlad, deceased, was conducted by the team/Board consisting of Dr. N.K. Meena and Dr. Ramesh Chand Gupta (PW.9). The report (Ex.P-14), revealed the following ante-mortem injuries:
(1) “Lacerated wound 3” x ½” x bone deep - Mid of scalp.
2) Contusion 2” x ½” (Rt.) wrist joint of both bones.
(3) Abrasion ½ x ½ on front of Rt. ear.
(4) Multiple linear abrasion
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