& Anr Vs. Subhash & Ors  Insc 46 (23 January 2004)
Raju & S.B. Sinha. S.B. Sinha, J :
appeal is directed against the judgment dated 15th May, 1997 passed by the
Rajasthan High Court in DB Criminal No. 320/87 whereby and whereunder the
respondents herein were acquitted of the charges of commission of an offence
under Sections 148 and 302 read with 149 of the Indian Penal Code.
respondents herein together with Shankerlal and Maniram were charged under
Sections 148 and 302 read with Section 149 of the Indian Penal Code and were
sentenced to life imprisonment for alleged commission of an offence under
Section 302 read with Section 149. They were further sentenced to undergo one
year's rigorous imprisonment with fine of Rs. 500/- for commission of an
alleged offence under Section 148 of the Indian Penal Code. Two accused persons
Shankerlal and Maniram were also convicted under Section 27 of the Arms Act and
sentenced to undergo rigorous imprisonment of six months and a fine of Rs.
there were two groups in Kanwarpura Tehsil; one headed by Shri Ramnarayn
accused and the other by the deceased Ram Kumar. Allegedly, a day prior to the
date of incidence, an election of dairy society was conducted. At about 7 p.m. on 6.6.1986, Atma Ram PW 1, Brijlal PW 10, Ramnarayan PW 5
and Rajaram were sitting on the chowki in the house belonging to Brijlal. They
saw the accused persons coming out from the house of Ramnarayan, Sarpanch.
Ramnarayan, Maniram and Shankerlal were armed with guns, Subhash with lathi and
Manohar with pistol. They proceeded towards the house of Hansraj. Shankerlal
armed with 12-bore gun entered into the house of Hansraj and the other accused
persons proceeded in the lane adjacent and towards the west of the said house.
Allegedly, Ramnarayan exhorted the others to kill Ramkumar whereupon Shankerlal
fired a shot which hit Ramkumar. Another shot was allegedly fired by Maniram at
Ramkumar but the same missed the target and hit the wall. Manohar also
allegedly tried to fire but he was unsuccessful. Ramkumar, as a result of
multiple injuries, died on the spot. The motive for commission of the offence
apart from the parties belonging to separate factions and contesting the
elections in which allegedly Ramnarayan won, related an incidence which
occurred 25 or 26 days prior to the date of occurrence, whence Krishna
trespassed into the house of Poosaram Meghwal and a case under Section 376 of
Indian Penal Code was registered against Krishna and Ramnarayan, in connection
wherewith allegedly Ramratan and deceased Ramkumar helped Poosaram.
further alleged that Hanuman, brother of Shankerlal, after five days of the
said incident, visited Poosaram and abused him whereupon he was apprehended by
deceased Ramkumar, Prithvi and Ramratan and handed over to the police.
the Trial Court 13 witnesses were examined by the prosecution. The Trial Court
convicted all the five accused persons both under Section 148 of the Indian
Penal Code and Section 302/149. As noticed hereinbefore. Shankerlal and Maniram
were also convicted of an offence under Section 27 of the Arms Act.
appeal against the said judgment, the High Court acquitted the respondents
herein of the charges both under Section 148 of the Indian Penal and as also
Section 302/149 thereof. The High Court further acquitted Shankerlal and Maniram
of the charges under Section 27 of the Arms Act and converted the sentence
under Section 302/149 passed against them to one under Section 302/34 and the
sentence imposed on Shankerlal and Maniram further remained unaltered.
High Court in its judgment while noticing the principles governing commission
of an offence under Section 149 of the Indian Penal Code found that the
allegation against the respondents herein are omnibus in nature. The High Court
noticed that the allegation to the effect that Manohar also attempted to fire
his gun but missed was not correct as the same was not followed by a report of
the ballistic expert. The High Court further noticed that the other two
respondents did not commit any over-act in assaulting Ramkumar or Ramratan. It
was observed that accused Ramnarayan was standing at a distance of about 120
ft. away from the place of occurrence when Ramkumar was hit.
said to have been armed with a gun but did not use the same. Subhash had merely
a lathi in his hand and also did not use it. The High Court on examining the
materials on records was of the opinion that only Maniram and Shankerlal
indulged in the act of committing murder of Ramkumar and, thus, the respondents
herein were not guilty of commission of any offence.
thereby, the first informant is before us in appeal.
Jain, learned counsel appearing on behalf of the appellant would submit that
the High Court committed a serious error in passing the impugned judgment
inasmuch as from the evidence adduced by Ramratan PW3, Gopal PW 4, Atma Ram
PW1, Ramnarayan PW 5, Ramnarayan PW 8 and Brijlal PW 10 it would appear that
not only the accused had been armed with guns and lathi and pistol, but also
assembled in the house of Ramnarayan and proceeded to the house of the
deceased, and after sometime, they divided themselves into two separate groups
with a common object of committing the crime.
learned counsel would submit that Ramnarayan exhorted the accused persons to
commit the offence, while standing near the electric pole whereupon Maniram
being armed with a double barrel gun came out of the street and fired twice,
one of which had hit the deceased; while Shankerlal fired from his gun which
hit Ramkumar on the left side.
Jain would contend that having regard to the provisions contained in Section
141 of the Indian Penal Code, in the facts and circumstances of this case, the
respondents must be said to have formed a common object to do away with Ramkumar
and, thus, the conviction under Section 302/149 as also Section 148 was
sustainable. It was argued that the very fact that all the accused persons,
according to Ramratan PW3, Gopal PW 4, Atma Ram PW1, Ramnarayan PW 5, Ramnarayan
PW 8 and Brijlal PW 10 gave 'lalkara' and they not only participated but also
played their roles would also go to show that they are guilty of commission of
the aforementioned offence.
Datta, learned counsel appearing on behalf of the respondents per contra would
submit that a case under Section 149 of the Indian Penal Code cannot be said to
have been made out as Maniram and Shankerlal had been found guilty under
Section 302/34. It was contended that Maniram had also died and Shankerlal has
served out his sentence.
would submit that from the records, it would appear that PW 1, PW 5 and PW 10
did not make any allegation about exhortation by all the accused persons;
whereas PW 3, PW 4 and PW 8 did not make any such statement before the police
in relation whereto their attention has been drawn.
would urge that having regard to the amendment carried out in Section 162(2) of
the Code of Criminal Procedure by inserting an explanation in terms whereof
'omission' may amount to 'contradiction' in certain situations. It was
contended that the attention of PW 3, PW 4 or PW 8 in the aforementioned
situation has been drawn to 'omissions' in their statements under Section 161
of the Code of Criminal Procedure.
learned counsel would submit that the prosecution story was wholly unbelievable
inasmuch as even from the evidence of PW 1 it would appear that they had
allegedly seen the occurrence from a distance. The learned counsel has drawn
our attention to the fact that houses of both the parties are adjoining each
other. It was further contended that it was impossible for the witnesses to see
actual firing by Shankerlal who allegedly went inside the house as the wall of
the house was six-seven ft. high.
principles relating to applicability of Section 149 of the Indian Penal Code is
not in dispute. For the purpose of attracting the said provision, it is not
necessary that an over-act must be committed by all the accused persons.
is necessary is formation of an unlawful assembly and knowledge of the persons
thereof about consequences arising from doing an act which amounts to offence.
141 of the Indian Penal Code defines 'Unlawful assembly', as an assembly of
five or more persons, if the common object of the persons composing the same,
inter alia, is to commit any mischief or criminal trespass, or other offences.
essence of the offence under Section 149 of the Indian Penal Code would be
common object of the persons forming the assembly. It is necessary for
constitution of the offence that the object should be common to the persons who
compose the assembly, that is, that they should all be aware of it and concur
in it. Furthermore, there must be some present and immediate purpose of
carrying into effect the common object. A common object is different from a
common intention insofar as in the former no prior consent is required, nor a
prior meeting of minds before the attack would be required whereas an unlawful
object can develop after the people get there and there need not be a prior
meeting of minds.
High Court has arrived at a finding that Shankerlal and Maniram were guilty of
commission of an offence under Section 302/34 IPC and not under Section 302/149
in the aforementioned principles, the question is required to be considered for
arriving at a conclusion as to whether there had been a common object on the
part of the respondents in committing the alleged offence.
SC 1012], this Court held that in terms of Section 145 of the Indian Evidence
Act attention of witnesses can be drawn to such statements which would amount
to contradiction. It was held: "The right of both accused and the
prosecution is limited to contradictions." It was, thus, held that
omission to make a statement in terms of Section 161 of the Code of Criminal
Procedure would not attract the provisions of Section 145 of the Indian
Evidence Act. However, by reason of Code of Criminal Procedure explanation has
been inserted to Sub-Section (2) of Section 162 which is in the following
omission to state a fact or circumstance in the statement referred to in
sub-section (1) may amount to contradiction if the same appears to be
significant and otherwise relevant having regard to the context in which such
omission occurs and whether any omission amounts to a contradiction in the
particular context shall be a question of fact." From the records, it
appears that PW 1, PW 5 and PW 10 did not make any allegation as regard the
alleged exhortation on the part of all the accused. It further appears that PW
3, PW 4 and PW 8 stated before the police that there had been such exhortations
by the respondents herein. Such omission on the part of PW 3, PW 4 and PW 8, in
the facts and circumstances of the case, being very material would amount to
the informant PW 1 stated that the distance between the house of Ramnarayan Sarpanch
is one killa or 1.1/4 killa. 1 killa is equivalent to one acre.
are contradictions in the statements of the witnesses as regard the nature of
weapon held by Manohar.
further appears from the record that the house of Hansraj and the house of the
deceased are almost in front of each other. It is, therefore, unlikely that for
commission of an offence like culpable homicide amounting to murder, the
accused persons would go in a procession and all of them would shout together.
further appears that witnesses are related to each other. PW 5 is uncle of Atma
Ram. PW 8 Ramnarayan is brother-in-law of Gopal. Ramratan is also his first
and Maniram are real brothers. Subhash and Manohar accused are the nephews of Ramnarayan
accused. Maniram and Shanker have no relation with Ramnarayan accused.
According to PW-8 the house of Ram Narayan accused is towards the east from the
house of Hansraj, which is at a distance of three bighas from his house. As
regard distance, according to PW- 8, the house of deceased Ramkumar was towards
south of his house, which is situated at a distance of five bighas. How, thence,
could see the occurrence is not explained.
therefore, unbelievable that the accused persons would behave in the manner as
alleged by the PW 8.
from the evidence of PW 3 Ramratan, it appears, that the place behind the wall
where Shankerlal was standing and fired at Ramkumar was about 6-7 ft. high. It
is, therefore, not possible for any witness to have witnessed actual firing of
any shot by Shankerlal. PW 10 Brijlal stated that when Shankerlal entered the
house of Hansraj, no suspicion came in his mind and only after he heard the
sound of firing, he became suspicious. This also raises a doubt in our mind as
regard formation of common object by the accused persons.
First Information Report, it was alleged that both Ramkumar and Ramratan were
coming from the house of Ramratan towards the house of the informant's
brother-in-law Ramnarayan, as has been noticed by the learned Trial Judge in
his judgment. However, in his evidence, it was stated that Ramratan and Ramkumar
were going to the house of Ramkumar which was at a distance.
three cartridges had been recovered which are said to have been fired from the
12-bore SBBL guns marked as W/1 and W/2. The ballistic experts state that one
of them had not been fired by any of the two admitted SBBL guns.
aforementioned factors are also relevant and required to be taken into
consideration along with the findings arrived at by the Division Bench of the
High Court acquitting the respondents herein from the charges of Section 148
and Section 302/149 of the Indian Penal Code for the purpose of arriving at a
finding as to whether appellants are guilty of commission of the offences under
Section 302/149 IPC or not.
considering an appeal of acquittal, this Court may not interfere when two
reasonable views are possible to be taken and the view taken by the Court below
is one of such possible views. [See State of Rajasthan vs. Raja Ram, [(2003) 8
SCC 180] and [Chanakya Dhibar (Dead) vs. State of West Bengal, 2003 (10) SCALE
have highlighted hereinbefore certain discrepancies in the prosecution case
only for the purpose of satisfying ourselves that the view taken by the High
Court as regard doubtful participation of the respondents herein is a possible
view. Once it is held that the prosecution case as regard material aspects
relating to implication of certain accused persons is doubtful, we are of the
opinion that it would not be proper for this Court to interfere with the
judgment of the High Court even if a different view is possible to be taken.
The High Court, as noticed, hereinbefore, had held only two persons, Shankerlal
and Maniram guilty of commission of an offence under Section 302/34. There is
nothing on records to show that the respondents herein had any motive or common
intention to commit the crime. While considering a judgment of acquittal, this
Court will not evolve a new case.
therefore, are of the opinion that the judgment of the High Court does not
suffer from any infirmity. If the findings of the High Court arrived at by the
learned Judges can be supported in the circumstances of the case, in our
opinion, it would not be prudent to disturb the said Others, 2003 (10) SCALE
932 and State of U.P. vs. Babu Khan & Others, 2004 (1) SCALE 11).
the reasons aforementioned, this appeal is dismissed.