Bikau Pandey
& Ors Vs. State of Bihar [2003] Insc 594 (25 November 2003)
Doraiswamy
Raju & Arijit Pasayat.Arijit Pasayat, J
Fifteen
persons faced trial for alleged commission of offences punishable under Section
302 read with Sections 149, 148 of the Indian Penal Code, 1860 (for short the
'IPC'). Accused No.9 (appellant No.5 in the present appeals) additionally faced
trial for offence punishable under Section 27 of the Arms Act, 1959(in short
the 'Arms Act'). Accused No.2 Mahendra Rai (Appellant No.8 in the present
appeals) who was separately charged for offence punishable under Section 302
IPC was acquitted of the said charge but instead was convicted as afore-noted
in terms of Section 302 read with Section 149 IPC. Out of the 15 accused
persons, two were acquitted and three died during pendency of the appeals
before the High Court.
Prosecution
version as unfolded during trial and which formed the foundation of the
prosecution case is essentially as follows:
On
17.8.1983, one Sarjug Rai (hereinafter referred to as the 'deceased') lost his
life allegedly at the hands of the accused. About 5-6 years preceding the
incident when Sarjug Rai was killed there was a partition of the family
properties. Kamal Rai was his nephew who nourished serious grudge against his
uncle, as according to him there was unequal partition of ancestral properties.
Said Kamal Rai, strongly believed that construction of new house and purchase
of tractor, subsequent to partition by the deceased was made from cash which
had not been divided during partition. Though motive appears to be trivial and
also stale but where direct evidence is available, motive pales into
insignificance. The accusations appearing from the first information report of
Ram Babu Rai (PW-14), son of the deceased and also narrations made by the
witnesses at trial are that on 17.8.1983 while deceased at about 8.00 a.m. had
gone to a temple after taking holy dip in a pond, adjacent to the temple, the
appellants holding weapons came down from the house of Kamal Rai and came to
the temple, pursuant to which Kamal Rai while exhorting others to liquidate the
deceased dealt blows with a hard and blunt substance on his head as he had been
unfair to him in partitioning the ancestral properties. Dukha Sah (PW-6), the
priest of the temple locked the northern gate of the temple to save the
deceased.
However,
he could not be saved as accused-appellant Deosharan Rai broke open the lock
and dragged the deceased outside, pursuant to which on exhortation made by Kamal
Rai all dealt indiscriminate blows on him with lethal weapons which they were
carrying. When Shatrughan Pandey (PW-1), Ram Chandra Rout (PW-2), Nandlal Pandey
(PW-4) and Sita Saran Rai (PW-5) came to rescue on hearing alarms raised by the
son of the deceased (PW- 14), they could not proceed to rescue the deceased on
being scared by the firing resorted to by accused-appellant Satya Narain Rai.
Ram Babu Rai (PW-14) informed the police who visited village Bishanpur and
recorded his statement, pursuant to which investigation commenced. The police
during investigation apart from recording statement of witnesses under Section
161 of the Code of Criminal Procedure, 1973 (for short the 'Code') visited the
place of occurrence, and also made seizure of some offending articles from the
place of occurrence. On conclusion of investigation, he laid charge sheet
before the Court against all the 15 accused persons who were eventually put on
trial. In the trial, the prosecution examined 17 witnesses. The accused persons
pleaded innocence and false implication and examined 16 witnesses to counter
the allegations attributed to them. Those examined by the prosecution were the
villagers of Bishanpur, some outsiders, who were either relations of the
deceased or claimed to have visited the village for holding panchayati for
resolution of the dispute pending between the two parties, the doctor and also
the police officer.
As
noted supra, accused persons pleaded innocence and false implication due to
animosity persisting between the parties. Three of the accused persons pleaded
alibi to improbabilise their physical presence at the site of occurrence. Out
of the prosecution witnesses, seven i.e. PWs 2 to 5, 6, 10, 14 were stated to
be eyewitnesses. On consideration of the evidence on record, learned 3rd Additional
Sessions Judge, Sitamarhi as afore-noted convicted 13 accused persons,
acquitted two. In respect of three who died during the pendency of the appeal
before the High Court the appeals abated. The convicted accused preferred three
separate appeals before the High Court which by the impugned judgment disposed
of them.
In
support of the appeals, learned senior counsel submitted that the appellants
have been convicted by application of Section 149 IPC.
The
ingredients necessary to bring in application of the said provision have not
been established. The plea of alibi has been accepted in respect of two accused
persons. Though, appellant Mahendra Rai stood at a better footing, his plea of
alibi has been rejected on erroneous premises. Evidence was produced and a
witness was examined to substantiate his plea of alibi which has been discarded
without any basis. Though there were large number of injuries, no particular
one has been attributed to any particular accused, except accused Deo Sharan Rai
(A-1), Kamal Rai (A-7) and Satya Narain Rai (A-9). Accused Kamal Rai has died
and the rest two are appellants 3 and 5 respectively in these appeals. The
motive which was sought to be indicated as the foundation of the crime is too
scarce and in fact Deo Narain Rai(PW-11) who is not an eyewitness and spoke
about the motive of Kamal Rai has been disbelieved by both the trial Court and
the High Court. The witnesses are closely related and in fact PW-11 has been
discarded as unreliable.
The
investigation was more than perfunctory and the Courts below should have taken
note of that. Identification in a mob is highly improbable.
When
plea of alibi has been accepted it clearly indicates the extent of false
implication and the design therefor. One of the accused Rabindra Pandey was a
child at the time of occurrence. Though he should have been separately dealt
with under the Children's Act and that having not been done his conviction is
vitiated. The genesis as described by the prosecution is highly improbable. It
is not believable that the deceased was going to offer puja in a temple which
prima facie appears to be without a deity. The place of occurrence has been
chosen in a manner as would give some credence to the evidence of some persons
like Pujari Dukha Sah (PW-6). The evidence of prosecution is to the effect that
all the accused persons came from the house of accused Kamal Rai. The
visibility from the place where PW-6 claims to have seen them is well nigh
impossible. There is no evidence to show that Kamal Rai has disclosed to others
what he proposed to do, or there was sharing of common object. On the other
hand, even if it was a case of similar or common intention, at the most, the
prosecution could press into service Section 34 IPC for which there was no
charge and for bringing in application of Section 34 IPC participation is a
must. The allegations of a very general and repetitive nature have been made
against all the accused persons. There is no evidence that Satya Narain Rai was
carrying a country made gun and therefore the conviction under Section 27 of
the Arms Act is not maintainable.
In
response, Mr. B.B. Singh, learned counsel for the State submitted that the
common object which sine qua non have application under Section 149 IPC has
been clearly brought out. The unimpeachable evidence is that all the accused
persons armed with deadly weapons came from outside the village in a group. The
deceased was dragged first and given lathi blow by accused Kamal Rai which was
a fatal one and when his son (PW-14) wanted to protect gun was fired to
dissuade others from coming to his rescue. The evidence was more than
sufficient to attract Section 149. So far as the alleged interestedness of the
witnesses is concerned, it is trite law that if after careful analysis and
scrutiny, the evidence is found credible, the conviction can be maintained.
Additionally,
there were witnesses who were not in any manner related.
So far
as the question of alibi is concerned, when presence of the concerned accused
is satisfactorily established, the Court would be slow to believe the counter
evidence unless it is of such quality as would create a reasonable doubt on the
minds of the Court that the prosecution version was not cogent. The trial Court
and the High Court have analysed in detail the plea of alibi and have discarded
it in view of the evidence on record. So far as the claim of accused Rabindra Pandey
to be a minor is concerned, the order dated 27.7.1984 passed by the trial Court
clearly shows that it had discarded the plea. In fact the school records
clearly indicated that he was more than 18 years of age on the date of
occurrence. The father filed an affidavit with oblique motive to say that there
was a wrong recording in the school register. Apparently, such a plea is not
acceptable and the order dated 27.7.1984 was passed much before the completion
of trial and the same having not been assailed has become final. Therefore,
neither the trial Court nor the High Court has dealt with this plea which even
does not appear to have been raised before the said Courts.
The
jurisdictional issue based on purported age of the accused needs consideration
first. The question relating to age of the accused was never raised before the
courts below during trial, and in appeal, necessitating a decision in this regard.
In fact, the Juvenile Act on which the appellants have placed reliance was not
in existence at the time of occurrence. Further at no point of time during
trial or before the High Court this question was raised. The necessity of
determining the age of accused arises when the accused raises a plea and the
Court entertains a doubt. Here, when the claim was made by the accused that he
was a child the plea was considered and a decision was rendered that he was not
a child. That order has attained finality without any challenge thereto. The
clearly untenable plea that the school register was wrong, cannot be accepted
by accepting the self-serving affidavit of the father. In any event, there was
no argument advanced either before the trial Court or the High Court on this
issue and the disputed factual question which has also attained finality in
view of an earlier order cannot be permitted to be raised.
The
first information report was lodged almost immediately. The police station is
situated at a distance of 4 K.M. from the place of occurrence. The occurrence
took place at around 8.00
a.m. The FIR was
recorded at 10.00 a.m. almost immediately. The
investigating officer reached the place of occurrence at 11.00 a.m. and the post mortem was conducted at 4.00 p.m. The evidence on record goes to show that the
eyewitnesses were examined from 2.00 p.m. onwards.
Acquittal
of some of the accused persons will not come to the rescue of the other
appellants in respect of whom the High Court has considered the evidence on
record and found them guilty. As noted above, PW-1 has no relationship with the
deceased and his assertion in the examination-in-chief has gone unchallenged.
It is to be noted that nothing has been elicited in the cross-examination of
various witnesses as regards the place of occurrence and the manner of
occurrence. That being the position, the convictions as done cannot be faulted.
We
shall deal with the question regarding applicability of Section 149 IPC, which
was urged emphatically.
A plea
which was emphasized by the respondents relates to the question whether Section
149, IPC has any application for fastening the constructive liability which is
the sine qua non for its operation. The emphasis is on the common object and
not on common intention. Mere presence in an unlawful assembly cannot render a
person liable unless there was a common object and he was actuated by that
common object and that object is one of those set out in Section 141. Where
common object of an unlawful assembly is not proved, the accused persons cannot
be convicted with the help of Section 149. The crucial question to determine is
whether the assembly consisted of five or more persons and whether the said
persons entertained one or more of the common objects, as specified in Section
141. It cannot be laid down as a general proposition of law that unless an
overt act is proved against a person, who is alleged to be a member of unlawful
assembly, it cannot be said that he is a member of an assembly. The only thing
required is that he should have understood that the assembly was unlawful and
was likely to commit any of the acts which fall within the purview of Section
141.
The
word 'object' means the purpose or design and, in order to make it 'common', it
must be shared by all. In other words, the object should be common to the
persons, who compose the assembly, that is to say, they should all be aware of
it and concur in it. A common object may be formed by express agreement after
mutual consultation, but that is by no means necessary. It may be formed at any
stage by all or a few members of the assembly and the other members may just
join and adopt it. Once formed, it need not continue to be the same. It may be
modified or altered or abandoned at any stage. The expression 'in prosecution
of common object' as appearing in Section 149 have to be strictly construed as
equivalent to 'in order to attain the common object'. It must be immediately
connected with the common object by virtue of the nature of the object. There
must be community of object and the object may exist only up to a particular
stage, and not thereafter. Members of an unlawful assembly may have community
of object up to certain point beyond which they may differ in their objects and
the knowledge, possessed by each member of what is likely to be committed in
prosecution of their common object may vary not only according to the
information at his command, but also according to the extent to which he shares
the community of object, and as a consequence of this the effect of Section
149, IPC may be different on different members of the same assembly.
'Common
object' is different from a 'common intention' as it does not require a prior
concert and a common meeting of minds before the attack. It is enough if each
has the same object in view and their number is five or more and that they act
as an assembly to achieve that object. The 'common object' of an assembly is to
be ascertained from the acts and language of the members composing it, and from
a consideration of all the surrounding circumstances. It may be gathered from
the course of conduct adopted by the members of the assembly. For determination
of the common object of the unlawful assembly, the conduct of each of the
members of the unlawful assembly, before and at the time of attack and
thereafter, the motive for the crime, are some of the relevant considerations.
What the common object of the unlawful assembly is at a particular stage of the
incident is essentially a question of fact to be determined, keeping in view
the nature of the assembly, the arms carried by the members, and the behaviour
of the members at or near the scene of the incident. It is not necessary under
law that in all cases of unlawful assembly, with an unlawful common object, the
same must be translated into action or be successful. Under the Explanation to
Section 141, an assembly which was not unlawful when it was assembled, may
subsequently become unlawful. It is not necessary that the intention or the
purpose, which is necessary to render an assembly an unlawful one comes into
existence at the outset. The time of forming an unlawful intent is not
material. An assembly which, at its commencement or even for some time
thereafter, is lawful, may subsequently become unlawful. In other words it can
develop during the course of incident at the spot co instanti.
Section
149, IPC consists of two parts. The first part of the section means that the
offence to be committed in prosecution of the common object must be one which
is committed with a view to accomplish the common object. In order that the
offence may fall within the first part, the offence must be connected
immediately with the common object of the unlawful assembly of which the
accused was member. Even if the offence committed is not in direct prosecution
of the common object of the assembly, it may yet fall under Section 141, if it
can be held that the offence was such as the members knew was likely to be
committed and this is what is required in the second part of the section. The
purpose for which the members of the assembly set out or desired to achieve is
the object. If the object desired by all the members is the same, the knowledge
that is the object which is being pursued is shared by all the members and they
are in general agreement as to how it is to be achieved and that is now the
common object of the assembly. An object is entertained in the human mind, and
it being merely a mental attitude, no direct evidence can be available and,
like intention, has generally to be gathered from the act which the person
commits and the result therefrom. Though no hard and fast rule can be laid down
under the circumstances from which the common object can be culled out, it may
reasonably be collected from the nature of the assembly, arms it carries and behaviour
at or before or after the scene of incident. The word 'knew' used in the second
branch of the section implies something more than a possibility and it cannot
be made to bear the sense of 'might have been known'. Positive knowledge is
necessary. When an offence is committed in prosecution of the common object, it
would generally be an offence which the members of the unlawful assembly knew
was likely to be committed in prosecution of the common object. That, however,
does not make the converse proposition true; there may be cases which would
come within the second part but not within the first part. The distinction
between the two parts of Section 149 cannot be ignored or obliterated.
In
every case it would be an issue to be determined, whether the offence committed
falls within the first part or it was an offence such as the members of the
assembly knew to be likely to be committed in prosecution of the common object
and falls within the second part. However, there may be cases which would be
within first offences committed in prosecution of the common object would be
generally, if not always, with the second, namely, offences which the parties
knew to be likely committed in the prosecution of the common object. [See Chikkarange
Gowda and others v. State of Mysore (AIR 1956 SC 731)] Therefore, Section 149
has been rightly applied when the factual position as highlighted by the
eyewitnesses is considered. Even if the absence of motive as alleged is
accepted that is of no consequence and pales into insignificance when direct
evidence establishes the crime.
The
first information report was lodged almost immediately and whatever elaboration
has been done is really very minor in nature. Mere seemingly inconsistencies
which are not contradictions or omissions or are of trivial nature do not
affect substratum of the prosecution version. That is the situation in the case
at hand. The number of injuries even if not co-related to the number of
assailants is not material. [See Leela Ram (dead) through Duli Chand v. State of
Haryana and Anr. (AIR 1999 SC 3717)]
Similarly, even if there are irregularities or illegalities in the conduct of
investigation that is of no consequence. [See State of Rajasthan v. Kishore (AIR 1996 SC 3035) and
State of Karnataka v. K Yarappa Reddy (AIR 2000 SC
185)] For discarding the plea of alibi the trial Court and the High Court have
given cogent reasons. Merely because the plea was accepted in respect of two accused,
that cannot be a ground for acceptance of the plea of alibi so far as accused Mahendra
Rai is concerned. It is interesting to note that the date of occurrence is
17.8.1983 and the accused Mahendra Rai is supposed to have served from
10.8.1983 onwards till the date of occurrence. The trial Court noticed that
there was no material to show that on the date of occurrence he was present in
the school throughout and even no appointment letter showing appointment was
produced. This is also evident from the certificate exhibited. The certificate
was to the effect that he was on duty as a guard for a period from 10.8.1983 to
17.8.1983 on a regular basis. It is inconceivable that a person was appointed
for one week on a regular basis. That is an additional ground to reject the
plea of alibi. The signatures of the appellant on the attendance register were
also found to be not acceptable.
Merely
because two persons have been acquitted that benefit cannot be extended to
others in view of the direct evidence establishing their presence and
participation in the crime. Though it was pleaded that there was no evidence
regarding the breaking of lock as deposed by eyewitnesses, it is to be noted
that investigating officer's objective findings clearly lead to acceptability
of such plea. The broken lock was seized and exhibited as Exb-1. The marks of
violence on the door were clearly noticed and noted by the investigating
officer.
It is
a settled position in law that there cannot be a re- appraisal of evidence
unless it is shown that the findings are perverse.
We are
not inclined to re-examine the whole of the prosecution case for finding out as
to whether occurrence had taken place in the manner alleged by the prosecution.
We find no reason to disbelieve any of the eyewitnesses. The trial Court as
well as the High Court have after critical examination of their statements,
rightly concluded that they were the truthful witnesses and that all the
appellants in these appeals were present at the time of occurrence. Merely
because the witnesses happened to be the relations of the deceased is not a
ground to reject their testimony. Under the circumstances of the case, the
aforesaid witnesses appear to be natural witnesses who were supposed to be at
the place of occurrence. Time and again, it has been held by this Court that no
interference would be made with the concurrent findings of fact based on pure
appreciation of evidence, even if this Court was to take a different view on
the evidence. The Court will normally not enter into reappraisal or the review
of evidence unless the trial Court or the High Court is shown to have committed
an error of law or procedure and the conclusions arrived at are perverse. This
Court cannot enter into the credibility of the evidence with a view to
substitute its opinion for that of the trial Court or the High Court. This
Court may interfere where on proved facts, wrong inferences of law are shown to
have been drawn. It needs to be emphasized that this Court is not a regular
court of appeal to which every judgment of the High Court in criminal case may
be brought up for scrutinising its correctness. It is only in rare or
exceptional case where there is some manifest illegality or grave or serious
irregularity resulting in miscarriage of justice that the Court would interfere
with such findings of fact. In this regard, reference may be made to the
judgments of this Court reported in Duli Chand v. Delhi Administration (1975
(4) SCC 469), Ramnik Lal Gokaldas and Ors. v. The State of Gujarat (1976 (1) SCC 6), Mst. Dalbir Kaur
and Ors. v. State of Punjab (1976 (4) SCC 158), Ramanbhai Naranbhai
Patel and Ors. v. State of Gujarat (2000
(1) SCC 358) and Chandra Bihari Gautam and Ors. v. State of Bihar (JT 2002 (4) SC 62). This does not
appear to be a case where interference is called for. Looked at from any angle,
the appeals are without merit and deserve dismissal which we direct.
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