Sunil
Kumar and Anr Vs. State of Rajasthan
[2005] Insc 49 (19
January 2005)
Arijit
Pasayat & S.H. Kapadia
(Arising
out of S.L.P. (CRl.) No.544 of 2004) With Crl. Appeal No.124 of 2005(Arising
out of SLP (Crl.)No.1774/2004, Crl. Appeal No.125 of 2005(Arising out of SLP (Crl.)1481/2004,
Crl. Appeal No.126 of 2005 (Arising out of SLP (Crl.) 2537/2004), Crl. Appeal
No.127 of 2005 (Arising out of SLP (Crl.) 2542/2004 and Crl. Appeal No.128 of
2005 (Arising out of SLP (Crl.) 2543/2004)) ARIJIT PASAYAT, J.
Leave
granted.
All
these appeals are directed against common judgment of the Rajasthan High Court
by which the appeals preferred by eight accused persons including present
appellants were disposed of. While Ramesh, son of Harish Chandra was convicted
for offence punishable under Section 302 of the Indian Penal Code, 1860 (in
short the 'IPC') and was sentenced to undergo imprisonment for life and to pay
a fine of Rs.1,000/- with default stipulation, the other seven i.e. present
appellants were convicted for offence punishable under Section 302 IPC read
with Section 149 IPC and were each sentenced to undergo imprisonment for life
and to pay a fine of Rs.1,000/- each with default stipulation. Each of the
eight accused persons were convicted in terms of Section 148 IPC and sentenced
to undergo two years' rigorous imprisonment. Ramesh, son of Harish Chandra who
was convicted in terms of Section 302 IPC, has not preferred any appeal, while
the rest seven accused persons have preferred the present appeals.
Prosecution
version as unfolded during trial is as follows:
On October 29, 1998 around 11 A.M. informant Yogendra Singh (PW- 1) submitted written report
to one Phool Chand, Police Officer at Roadways Bus stand Jhunjhunu. It was,
inter alia, stated in the report that on the said day at about 10.00 A.M. the informant was standing at the Traffic point near
bus stand. Two other witnesses i.e. Surendra and Ajay were also there. Suddenly
they heard ruckus coming from the front of a tea stall nearby. All the three
rushed to the spot where they saw that the nephew of informant, namely, Sumer
Singh (hereinafter referred to as the 'deceased') was surrounded by the
appellants who were equipped with hockies, iron rods and pipes etc., while Ramesh
Kumar had a knife. Ramesh Kumar inflicted several blows on the abdomen of the
deceased with knife and others belaboured him with hockies, iron rods and
pipes. After causing injuries to the deceased the assailants fled away from the
scene of occurrence in a red jeep bearing No. RJ 19/C-6255 in which they had
come together. The incident had been witnessed by other witnesses Chandra Shekhar
and Krishna Kumar. It was also alleged in the report that deceased was belaboured
on account of previous enmity. On the basis of said report, formal FIR was
registered at Police Station Jhunjhunu for offences punishable under Sections
302, 147, 148 and 149 IPC and investigation commenced. Site plan of the
incident was drawn. Deceased was subjected to post mortem examination. Blood
stained clothes of the deceased were seized. Control soil and blood stained
soil were lifted from the place of incident. The accused persons were taken
into custody and at their instance certain weapons as also the jeep got
recovered. Charge sheet was filed after completion of investigation. Trial was
conducted by learned Sessions Judge, Jhunjhunu. Charges under Sections 147,
148,302 in the alternate 302/149 IPC were framed against the appellants and Ramesh
who denied the charges and claimed trial. The prosecution in support of its
case examined 21 witnesses and got exhibited 61 documents. In their explanation
under Section 313 of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C'.),
the accused persons pleaded innocence and stated that the witnesses were
partisan and were telling lies as they happened to be close relatives of the
deceased and on account of groupism there had been blatant false implication.
On consideration of materials on record learned Sessions Judge convicted and
sentenced the appellants as indicated herein above. All the eight accused
persons preferred appeals before the High Court which as noted above dismissed
the appeals and upheld the conviction and sentence.
In
support of the present appeals common points were urged by learned counsel
appearing for the various appellants. The pivotal question raised related to
applicability of Section 149 IPC.
Additionally,
it was submitted that the High Court did not properly consider the various
pleas which were raised i.e.
(1) unexplained
delay in sending the copy of FIR to Ilaka Magistrate;
(2) non-examination
of independent witnesses;
(3) discrepancies
in the evidence of witnesses claimed to be eye witnesses, who in fact were
related to the deceased; and
(4) the
prosecution witnesses, more particularly the relatives as to how they happened
to be at the place of occurrence at a particular time.
It was
pointed out that the basic elements necessary to bring in application of
Section 149 IPC did not exist. There was no evidence that there was any common
object which was pursued by the appellants.
Even
if it is conceded to the position, as claimed by the prosecution that they came
in the same jeep and were armed with various weapons that does not per se
establish that they shared a common object. The prosecution has failed to prove
that in pursuance of such common object Ramesh who is stated to have given the
fatal knife blows carried out the objective of the alleged unlawful assembly.
Out of the five witnesses who were claimed to be eye witnesses three were closely
related. Their statements also were not recorded immediately after the
investigation stated and in fact were recorded in some cases two days after,
and in one case after about two weeks. The fact that the FIR was dispatched to
the magistrate long after the FIR was lodged itself goes to establish that
there was deliberation on the part of the police officials and the relatives of
the deceased including the informant and so called eye witnesses, and the
accused persons have been falsely implicated. There was no perceivable motive
for the present appellants to have any animosity towards the deceased. If the
persons who claimed to be eye witnesses were really present at the spot, their
normal and natural conduct would have been to rescue the deceased which has not
been done. Even though the prosecution version is that indiscriminately the
appellants assaulted the deceased, only three abrasions were found.
As is
evident from the conclusions of the trial court, the second part of Section 149
IPC which relates to knowledge of likelihood that alleged offence would be
committed there was no definite finding recorded in that regard. From the
evidence no common object is discernible. The object may have been at the most,
even if it is accepted that same existed, to chastise the deceased, rough him
up or cause some hurt. These probabilities have not been ruled out by the
prosecution. It has not been shown that the real objective was murder of the
deceased. There is no evidence to show that the present appellants knew that
murder was likely to be committed. The conclusion of the trial court and the
High Court that the present appellants facilitated the killing or aborted
efforts of others to save the deceased are not supported by any cogent
evidence. The genesis of the incident is shrouded in mystery and there is no
proximate cause established as to why the accused appellants would do away with
the life of the deceased by pursuing a common objective. It was submitted that
even if there was any pre-conceived object, that may at the most attract
Section 304 IPC and not Section 302 IPC.
In
response, learned counsel for the State submitted that the statements of the PWs.
clearly establish the role played by the appellants. Their conduct before the
incident, during the incident and after the incident clearly establishes the
common object which was being pursued by them. No specific question was put to
the I.O. as to why there was delay, as claimed by the appellants and on the
contrary witnesses themselves have indicated the reasons as to why they were at
the spot of incident and why their statements were recorded after some time. To
similar effect is the plea of learned counsel appearing for the informant.
The
pivotal question is applicability of Section 149 IPC. Said provision has its
foundation on 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 such 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. 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 eo instante.
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 the time of or before or after the occurrence.
The
word 'knew' used in the second limb 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 the first part but offences committed
in prosecution of the common object would also be generally, if not always, be
within the second part, namely, offences which the parties knew to be likely to
be committed in the prosecution of the common object. (See Chikkarange Gowda
and others v. State of Mysore AIR 1956 SC 731).
These aspects
were recently highlighted in Chandra & Ors. v. State of U.P. and Anr. [2004 (5) SCC 141].
In the
factual scenario noticed above, the trial court and the High Court have
referred to several relevant aspects to hold that Section 149 IPC is applicable.
It has
been established by the evidence of the eye witnesses that all the eight
accused persons were armed with weapons, they surrounded the deceased and in
fact prevented others from going near the deceased to rescue him. They had
arrived together in the same jeep and left by the jeep after the incident. One
important and relevant factor, which has been noticed by the trial court and
the High Court, is that the jeep was kept in starting position. Significantly
the defence in the cross examination brought out the fact that the accused
persons surrounded the deceased and prevented those who wanted to go to rescue
the deceased by threatening them with dire consequences. The trial court and
the High Court have analysed the factual position in great detail and have
pointed out the aforesaid relevant factors. Therefore, there is no infirmity in
the conclusion of the courts below about the applicability of Section 149 IPC.
Great
stress was laid on the alleged delay in dispatch of the FIR to the Ilaka
Magistrate. FIR was recorded on 29.10.1999 at about 11.00 A.M. and reached the Magistrate on 30.10.1999 at about 12 noon. It cannot be laid down as a rule of universal
application that whenever there is some delay in sending the FIR to the
concerned magistrate, the prosecution version becomes unreliable. It would
depend upon the facts of each case. In the instant case as appears from the
records the investigation was taken up immediately and certain steps in
investigation were taken. Therefore, the plea that there was no FIR in
existence at the relevant time has no substance. Additionally, no question was
asked to the investigating officer as to the reason for the alleged delayed
dispatch of the FIR. Had this been done, investigating officer could have
explained the circumstances. That having not been done, no adverse inference
can be drawn.
So far
as the delayed recording of statement of the witnesses is concerned, here again
no question was put to the investigating officer specifically as to why there
was delay in recording the statement. On the contrary, the witnesses themselves
have indicated as to why there was delay. The plea of the appellants in this
regard, therefore, has no substance.
Learned
counsel for the appellants have also pointed about that though the place where
the alleged incident took place, was in a busy locality, no independent witness
was examined. It was also submitted that the relatives have not explained as to
how they happened to be at the spot. Here again the factual position is
otherwise. Out of the witnesses who were claimed to be eye witnesses, Chandra Shekhar
(PW-3) and Narendra singh (PW-5) were not relatives and in any event belonged
to some other places. Even if PWs. 1, 2 and 4 were related to the deceased,
PW-1 was a traffic constable and as the evidence on record clearly establishes
he was posted at a place nearby the place of occurrence as a traffic constable.
Therefore, his presence cannot be doubted. Other witnesses have also stated as
to how they happened to be at the spot of occurrence. That being so, the plea
that independent witnesses have not been examined is without any substance. Two
independent witnesses have been examined who have lent the corroboration to the
evidence of the relatives.
The
criticism levelled that the relatives did not come forward to save the deceased
is also without any substance, in view of the evidence as noted above to the
effect that accused persons threatened those who wanted to intervene with dire
consequences.
Where
a group of assailants who were members of the unlawful assembly proceeds to
commit the crime in pursuance of the common object of that assembly, it is
often not possible for witnesses to describe the actual part played by each one
of them and when several persons armed with weapons assault the intended
victim, all of them may not take part in the actual assault. Therefore, it was
not necessary for the prosecution to establish as to the specific overt act was
done by each accused.
In
view of the factual position as noticed by the courts below and the legal
principles governing application of Section 149 IPC, the inevitable conclusion
is that courts below were justified in applying Section 149 IPC to the case of
the appellants. They have been rightly convicted under Section 302 read with Section
149 IPC. That being so, the appeals deserve dismissal which we direct.
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