2021 Supreme(Pat) 895

IN THE HIGH COURT OF JUDICATURE AT PATNA
A.M. BADAR, SUNIL KUMAR PANWAR, JJ.
Biswanath Keshri S/o Late Bhagwat Keshri – Appellant
Versus
The State of Bihar – Respondent
Criminal Appeal (DB) No. 69 of 1995
Decided On : 09-12-2021

Headnote:

Indian Penal Code, 1860 – Section 149 – Common object of unlawful assembly – Section 149 IPC does not create separate offence – It creates a constructive or vicarious liability for acts done in prosecution of common object of that assembly, by all members of unlawful assembly – Once Court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of common object of that assembly, or such, as members or assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of same assembly, is to be held guilty of that offence – Whether a member of such unlawful assembly was aware as regards to likelihood of commission of a particular offence in prosecution of common object can be gathered from all surrounding circumstances like nature of assembly, arms carried by it, behaviour of members of such assembly at or before occurrence etc. – Court is required to determine the issue in every case before it as to whether offence was committed by any member of unlawful assembly in prosecution of common object or whether an offence was such as members of that assembly knew to be likely to be committed – Accused should not, merely by reason of his association with other members of an unlawful assembly be held vicariously liable for each and every offence committed by his associates, which he himself neither intended nor knew to be likely to be committed – Members of an unlawful assembly may have community of object only upto a certain point – Beyond that point they may differ in their objects – In such fact situation, knowledge possessed by each member as to what offence is likely to be committed in prosecution of their common object shall also vary. (Paras 16 and 17)

Indian Penal Code, 1860 – Section 149 – Common object of unlawful assembly – Whether a member of an unlawful assembly was aware as regards likelihood of commission of another offence or not would depend upon facts and circumstances of each case such as background of incident, motive, nature of assembly, nature of arms carried by members of assembly, their common object and behaviour of members soon before, at and after commission of the crime etc. – A mere possibility of commission of offence would not necessarily enable Court to draw an inference that likelihood of commission of such offence was within knowledge of every member of an unlawful assembly – Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and accused was actuated by that common object – Word object means purpose or design – In order to make it common it must be shared by all – It does not require a prior concert and common meeting of minds before attack. (Para 17)

Indian Evidence Act, 1872 – Section 32 – Dying declaration can form sole basis for conviction provided that same is found to be truthful and reliable – In order to pass test of reliability, dying declaration is required to be subjected to a very close scrutiny, keeping in mind fact that such statement has been made in absence of accused who had no opportunity of testing veracity of such statement by means of cross-examination – If dying declaration fails to pass test of reliability and truthfulness, then same is required to be ignored from consideration – There is no rule of law that dying declaration must be recorded by a particular authority in a particular form – What is required to be seen is, whether declarant was in a position to make a declaration and whether such declaration is truthful and trustworthy – Sphere of scrutiny of dying declaration is very limited because there is no possibility of cross examination of maker thereof – Small inconsistency in such last version of a dying man may make such statement doubtful and untrustworthy – Dying declaration must be a version consistent with other evidence and it must pass test of reliability and truthfulness upon compared with other evidence on record. (Paras 20 and 21)

Indian Penal Code, 1860 – Sections 302/149, 307/149, 324/149, 326/149/380/149/147 – Murder, attempt to murder, grievous hurt and theft – Common object – Life sentence – Contradictory and inconsistent and mutually exclusive versions of prosecution case coming on record from side of prosecution – Dying declaration shows that declarant suffered a fall after being hit by bullets fired by appellant outside shop – Truthfulness and trustworthiness of declaration is in serious doubt in view of evidence of injured eye witnesses – Same treatment as is given to evidence of prosecution witnesses is to be given to evidence of defence witnesses – Unsigned dying declaration found in case diary is not having any certificate of doctor regarding fitness of declarant to make a statement – Dying declaration is found to be unsafe and unreliable in wake of wholly unsatisfactory evidence in support thereof – With evidence of such nature it is not possible to hold that prosecution has established a fact that accused persons or any of them had hired contact killers, formed an unlawful assembly with common object of eliminating members of prosecution party and that appellant/accused was one of member of that assembly sharing common object of that assembly – Impugned Judgment of Trial court in which dying declaration was made a foundation for convicting accused is totally perverse and unjustified – Impugned Judgment and order of conviction and resultant sentence quashed and set aside. (Paras 12, 22, 24, 25, 26, 28, 29, 35 and 36)