2022 Supreme(Pat) 592

IN THE HIGH COURT OF JUDICATURE AT PATNA
A. M. BADAR and ALOK KUMAR PANDEY, JJ.
Criminal Appeal (DB) No. 494, 418, 442 of 2014
(23.12.2022)
Shambhu Choudhary (in 494)
Jai Kishore Choudhary
& Anr. (in 418)
Sudhir Choudhary
& Ors. (in 442) ... Appellants
vs.
State of Bihar ... Respondent
(in all)

Headnote:

Indian Penal Code, 1860 – Section 302 read with Sections 149 and 120B – Arms Act, 1959 – Section 27 – Murder and conspiracy – Common object – Life sentence – Prosecution witnesses have duly identified accused persons as persons who had entered in their house – They had attributed role of actual killing of deceased to only two assailants – Prosecution witnesses who are sons, wife and daughter-in-law of deceased, have not attributed any overt-act to any of other accused persons – Their version regarding incident of actual firing at deceased by appellant-accused remained unshaken during course of cross-examination – Incident of firing is proved to have taken place in house of deceased – Ocular evidence of eye-witnesses that deceased was fired at by using fire-arms by appellant-accused is not shattered at all and as such description of place where actually dead body was found lying pales into insignificant – Eye-witness account given by prosecution witnesses is gaining corroboration in material particular from medical evidence – It cannot be said that there was no sufficient light on spot of incident in order to enable prosecution witnesses to see assailants – None of prosecution witnesses is alleging any overt act on part of rest of accused persons – It is unsafe to resort to principle of vicarious liability for imposing penal liability regarding subject crime on appellants/accused except appellant-accused No. 3 – No evidence to infer that appellants/accused persons hatched conspiracy for committing murder of deceased – Conviction and sentence partly affirmed. (Paras 20, 22, 24, 25, 31, 40, 41 and 42)

Criminal Law – Appreciation of evidence – Near and dear ones of deceased never spare a real culprit to rope in an innocent person in an incident where life of their close relative is lost – There can be possibility of implicating as many as persons in such incident when case is that of more than one accused but as a matter of rule it can not be said that relatives are not witnesses of truth – At the most, evidence of their relatives is required to be scrutinized with care and caution in order to rule out possibility of false implication of some of accused when case is that of more than one accused persons. (Para 20)

Indian Penal Code, 1860 – Section 149 – Concept of vicarious liability – 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 – Everyone must be taken to have intended probable and natural result of combination of acts in which he joined – Section 149 IPC makes every member of an unlawful assembly at the time of committing of offence, guilty of that offence – If such conditions are fulfilled, then if not open to court to see as to who actually did offensive act – Court cannot then further require prosecution to prove which of member of unlawful assembly did which of offensive act – Every member of such unlawful assembly then becomes responsible of acts of offence committed by another members, in prosecution of common object of such assembly – 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. (Para 29)

Indian Penal Code, 1860 – Section 149 – Common object of unlawful assembly – 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 – 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 crime etc. – 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 the 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 30)

Criminal Procedure Code, 1973 – Section 313 – Examination of accused – Nobody should be condemned unheard – Principle of fair trial requires that all incriminating circumstances appearing against accused must be put to him in order to afford him opportunity of explaining those circumstance – Trial Court is duty bound to question accused on evidences and circumstances appearing against him in order to enable accused to understand exact case which he is required to meet and whether or not to adduce any evidence in his defence – Material which is not put to accused is required to be eschewed from consideration – Whenever a plea of non-compliance of Section 313 Code of Criminal Procedure is raised, it is within powers of appellate court to examine and further examine convict or Counsel appearing for accused and said answers shall be taken into consideration for deciding the matter – If accused is unable to offer Appellate Court any reasonable explanation of such circumstance, Court may assume that accused has no acceptable explanation to offer – In facts and circumstances of case, if Appellate Court comes to condition that no prejudice was caused or no failure of justice was occasioned, Appellate Court can hear and decide the matter upon merits – If Appellate Court is of opinion that non-compliance with provisions of Section 313 of Code of Criminal Procedure has occasioned or is likely to have occasioned prejudice to accused, Appellate Court may direct retrial from stage of recording statements of accused from point where irregularity occurred, that is, from stage of questioning accused under Section 313 of Code of Criminal Procedure and trial Judge can be directed to examine accused afresh and defence witness if any and dispose of matter afresh – Appellate Court may decline to remit the matter to Trial Court for retrial on account of long time already spent in trial of case and period of sentence already undergone by convict and in facts and circumstances of case may decide appeal on its own merits, keeping in view prejudice caused to accused. (Paras 33 and 34)

Indian Penal Code, 1860 – Sections 120A and 120B – Conspiracy – Criminal conspiracy is hatched to commit an illegal act which is an offence punishable under law – It is not essential that accused person must do an overt act and mere agreement between two or more persons to commit an illegal act is sufficient to constitute offence of criminal conspiracy – It is also not necessary that object of conspiracy should have been achieved for it to be considered as an offence – Even if conspiracy fails on account of abandonment or detection before commission of offence, very act of entering into an agreement by co-conspirators is itself an offence and punishable under law – Criminal conspiracies are hatched in secrecy and can only be perceived by actions of participants and same can be established on the basis of circumstances brought on record. (Para 37)

Indian Penal Code, 1860 – Sections 120A and 120B – Conspiracy – For suggesting even prima facie material to infer criminal conspiracy, it is necessary for prosecution to point out as to how it was hatched – That can be inferred from circumstances specially declaration, acts and conduct of conspirators – Need of meeting of minds of conspirators for doing illegal act is sine-qua-non – What is prima facie required to show is respondent/discharged accused was having object to accomplish and a plan or scheme was framed by accused persons including respondent/discharged accused for accomplishing that object and that there was agreement or understanding between them for accomplishment of object by executing the same in the manner decided by them. (Para 39)