2003 Supreme(SC) 11

2002(3) Supreme 221
SUPREME COURT OF INDIA
(From Rajasthan High Court)
N. Santosh Hegde & B.P. Singh, JJ.
Chittarmal -Appellant
versus
State of Rajasthan -Respondent
Criminal Appeal Nos. 1150-1151 of 2001
With
Criminal Appeal Nos. 42-43 of 2002
Decided on 8-1-2003
Counsel for the Parties :
For the Appearing Parties : M.L. Lahoty, Sushil Kumar Jain, Ms. Anjali Doshi, L.P. Singh, Deepak Mundra, Pawan Sharma, Ms. Pratibha Jain, Ms. Kumud Lata Dass, Ms. Sandhya Goswami, Ms. Bharathi Upadhyay, Javed Mahmud Rao, Advocates.

IMPORTANT POINT
The non-applicability of Section 149 IPC is no bar in convicting the appellants under Sections 302 read with 34 IPC, if the evidence discloses, as in this case, commission of offence of murder in furtherance of the common intention of them all.

Headnote:(i) Indian Penal Code, 1860-Sections 148, 302, 307, 302/149 and 307/149-Charges under-Trial Court convicted appellants and five others under-Imposed death sentence on appellants-In appeals and death sentence reference High Court acquitted five but convicted appellants under Sections 302 and 307 IPC and death sentence was converted into life sentence-Appeals to Supreme Court-Whether complicity of accused who have been acquitted needs any consideration? (No) (See para 7)-High Court s acceptance of Lal Chand (PW 1) (seriously injured) testimony of complicity of appellants to commit murder of Bhura (his father-in-law) and Ram Narain (his brother-in-law) and serious assaults on self proper? (Yes) (Evidence Act, 1872)-Appreciation of Evidence).

       Held : We have carefully read the evidence of Lal Chand and we are in agreement with the High Court that his evidence cannot be discarded on the grounds urged by the defence. It was sought to be urged before us that there is no mention of any artificial light at the time of occurrence. The High Court has discussed the evidence on record and come to the conclusion that there was an electric bulb in front of the gate of the house. It was so found by the investigating officer who had prepared the site inspection memo Ext.P.2 on 28th April, 1989. He was not cross-examined on this aspect of the matter even though he had asserted that he had seen the site and had prepared the site inspection memo correctly. Moreover the failure to mention about existence of electric light in the FIR was not of much consequence and was not fatal to the case of the prosecution particularly when on site inspection such an electric bulb was found in front of the gate of the house. Moreover, as noticed by the High Court, the assailants belong to the same village and were known to Lal Chand. They had caused numerous injuries to Lal Chand with swords and, therefore, Lal Chand had abundant opportunity to identify them even if there was no light. Moreover the testimony of Lal Chand was corroborated by the medical evidence on record. It was also sought to be urged that though Lal Chand stated that he woke up on hearing sound of thali , he had not said so in his police statement. That also to our mind is not of much significance because he was sleeping next to his father-in-law and brother-in-law in a same room on a separate cot. When the appellants attacked his father-in-law and brother-in-law, that would have awakened Lal Chand from his sleep because in normal course the two persons sleeping next to him on being attacked must have resisted the attack and in that process there must have been some noise enough to awaken the witness. It is too much to assume that two persons sleeping on two separate cots nearby in the same room would be assaulted and killed and the sleep of the third person sleeping in the same room will not be disturbed. Having considered all aspects of the matter and perused the evidence on record, we find ourselves in complete agreement with the High Court that on the testimony of Lal Chand, PW.1 the participation of the appellants in the commission of the crime must be held to have been proved. Both the courts have concurrently found Lal Chand, PW. 1 to be a reliable witness and even though he sought to make an improvement in the course of his deposition by naming the other accused persons, for that reason his entire evidence cannot be rejected. The High Court has rightly ignored that part of his evidence which appears to be in the nature of embellishment. (Para 9 and 10)

       (ii) Indian Penal Code, 1860-Sections 302/149-Charge under-Appellants convicted under Section 302-Whether Court was in error in convicting the appellants for the offence under Section 302 in the absence of any specific charge framed under that Section-Submissions for and against-Of no avail as conviction of appellants can be sustained with the help of Section 34 IPC-Appeals dismissed accordingly-Case law referred.

       Held : We do not consider it necessary, in the facts and circumstances of this case, to consider the aforesaid submissions, because we are clearly of the view that in any event the conviction of the appellants can be sustained under section 302 read with section 34 IPC. It is well settled by a catena of decisions that section 34 as well as section 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both the sections deal with combinations of persons who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or pre-concert. Though there is substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under section 149 overlaps the ground covered by section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both sections 34 and section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of section 34 for section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does involve a common intention then the substitution of section 34 for section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non applicability of section 149 is, therefore, no bar in convicting the appellants under section 302 read with section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all. (See Barendra Kumar Ghosh vs. King Emperor : AIR 1925 PC 1; Mannam Venkatadari and others vs. State of Andhra Pradesh : AIR 1971 SC 1467; Nethala Pothuraju and others vs. State of Andhra Pradesh : AIR 1991 SC 2214 and Ram Tahal and others vs. State of U.P. AIR 1972 SC 254). Applying these principles to the facts of this case, we find no difficulty in convicting the appellants under section 302 read with section 34 IPC, even though the charge framed was one under section 302 read with section 149 IPC. On the facts proved, it must be held that the appellants came together armed with lethal weapons and simultaneously started the assault on Ram Narain and Bhura, who succumbed to their injuries. When Lal Chand, PW.1 woke up, he was also mercilessly assaulted by both of them inflicting as many as 24 injuries. The remaining accused, apart from the appellants, have been acquitted on a finding that they did not come with the appellants duly armed, they did not share the common object, nor did they take part in the assault on the two deceased or PW.1. Thus the charge under section 302 read with section 149 could not stand the number of participants in the crime being less than five. But so far as the appellants are concerned, it cannot be doubted on the findings recorded that they shared a common intention and had acted pursuant thereto. Overt act and active participation is indicative of common intention of the persons perpetrating the crime, and in the facts and circumstances of this case we have no doubt that the appellants shared the common intention to commit the murders of the deceased and acting in concert they executed their pre-arranged plan to eliminate them. Their conviction under section 302 read with section 34 can be safely recorded. (Paras 13, 14, 15 and 16)

       Held consequently : Accordingly the conviction of the appellants is altered to one under section 302 read with section 34 IPC instead of one under section 302 IPC and the sentence of life imprisonment is maintained. Subject to the above, the appeals are dismissed. (Para 17)