Mohinder Singh & Ors Vs. State of Punjab [2006] Insc 154 (24 March 2006)
S.B. Sinha
& P.P. Naolekar P.P. Naolekar,
J.
The
accused-appellants belong to Sakkanwali Village, Police Station Sadar
Muktsar, District Muktsar, Punjab. The deceased Harbans
Singh was the neighbour of the appellants. There was
a dispute on the demarcation of the Shamlat land.
Some portion of this land is claimed by the accused-appellants and some of the
land was being claimed by Harbans Singh, the
deceased. The Shamlat land has not been demarcated
nor a particular portion of the land was in exclusive
possession of either the appellants or the complainant party. As per the First
Information Report lodged by Harvinder Kaur at 10.30 P.M. on 23rd February, 1996, the prosecution
story unfolded is, that on 23rd February 1996 at about 5.30 P.M., the
complainant Harvinder Kaur
(PW-1) along with Jasvinder Kaur
(PW-2), wife of Jaspal Singh, were making cow-dung
cakes in the Shalmat land. Harbans
Singh after providing fodder to the cattle was talking to Jaspal
Singh. In the meantime, Mohinder Singh (A-1) and Nasib Singh (A-3), armed with licensed 12 bore double
barrel guns, Naginder Singh (A-6) armed with dang, Sukhdev Singh (A-5) armed with kassia,
Beant Singh (A-2) armed with kirpan
and Nirbhai Singh (A-4) armed with kassruli came to the spot. Mohinder
Singh (A-1) raised lalkara that the complainant party
be taught a lesson for grabbing and making addition of the land of the accused
with that of the land of the complainant party.
Then Mohinder Singh fired shot from his licensed gun at Harbans Singh, which hit him on the left side of the chest.
When
the complainant (PW-1) ran towards her husband to save him, Nasib
Singh (A-3) fired a shot from his double barrel 12 bore gun, which hit her on
the ankle of left foot. At that time Mohinder Singh
fired another shot, which hit on the interior side of the right thigh of Harbans Singh, the deceased. At the same time Naginder Singh (A-6) gave dang blows to Jaspal
Singh and Nasib Singh again fired shot on the right
leg of Jasvinder Kaur. An
alarm was raised which attracted Gurbans Singh and Mander Singh sons of Gurdev
Singh, Pritam Singh and Gurmit
Singh sons of Bhag Singh, Madan
Singh son of Avtar Singh and Mukhtiar
Singh son of Mehar Singh, residents of Sakkanwali Village. When they tried to intervene and rescue
the members of the complainant party, Mohinder Singh
and Nasib Singh fired shots at them hitting the right
flank of Madan Singh and left leg of Pritam Singh. Similarly, Sukhdev
Singh, Beant Singh and Nirbhai
Singh caused injuries to Mander Singh, Gurbans Singh, Mukhtiar Singh and
Gurmit Singh. After causing the aforesaid injuries,
all the accused ran away with their respective weapons. Thereafter, Gurmit Singh arranged for the vehicle and took the injured
to the Civil Hospital, Muktsar.
However, Harbans Singh succumbed to his injuries on
his way to the hospital. The remaining injured were got admitted to the
Civil Hospital at Muktsar.
The
inquest report of the dead body of Harbans Singh was
prepared in the presence of Jaspal Singh and Mander Singh. The special report reached the Illaqa Magistrate at 5.00 A.M. on 24th
February, 1996. After the investigation the accused persons were arrested and
prosecuted.
Appellants
Mohinder Singh, Sukhdev
Singh and Naginder Singh had taken the plea of alibi
stating that on the date of occurrence they along with Bachittar
Singh and Harmanjit Singh had gone to the village Jharriwala to see a match for the grand daughter of Naginder Singh and had returned late in the night. As such
they were not present on the date at the place of occurrence and had been
falsely implicated by the complainant side. The other appellants while
admitting the incident asserted that Harvinder Kaur had given wrong version of the facts, in fact, Nasib Singh was present at his house. Nirbhai
Singh and Beant Singh came to know that Harbans Singh (deceased), Jaspal
Singh (PW-9), Gurdev Singh, Mander
Singh armed with gandasas along with some other
persons were placing cow-dung cakes in their plot/land to take forceful
possession of the land and when Nirbhai Singh and Beant Singh went to the spot to make enquiries, the
aforesaid persons attacked them and caused injuries. Nasib
Singh, Gurmail Singh and Angrez
Singh intervened to save Nirbhai Singh and Beant Singh. Gurmail Singh and Angrez Singh caused injuries to the complainant's side. It
was further asserted that in the meanwhile, some other persons collected there
and Nasib Singh in self-defence
of his property and person fired shots which hit the complainant's side.
The
prosecution has mainly based its case on the eye witnesses' account of the
incident deposed by Harvinder Kaur
(PW-1), Jasvinder Kaur
(PW-2), Jaspal Singh (PW-9) and Pritam
Singh (PW-10), the injured witnesses. The post- mortem of the deceased Harbans Singh was conducted by Dr. Kirandeep
(PW-4) and she had found fire-arm injuries on the person of the deceased. In
her opinion, the cause of death was shock and haemorrhage
as a result of injury to pericardium and heart, which was sufficient to cause
death in the ordinary course of nature. Dr. M.G. Sharma (PW-3) had examined Mukhtiar Singh and Jaspal Singh.
On 23rd February, 1996, Dr. Tarlochan
Singh (PW-15) examined Harvinder Kaur
(PW-1), Gurmit Singh, Pritam
Singh, Jasvinder Kaur
(PW-2) and Mander Singh. The doctors found the
injuries on the person of the persons examined by them. Nirbhai
Singh (A-4) and Beant Singh (A-2) were also examined
by Dr. APS Kochar (DW-1) who had found some injuries
on the person of A-4 and A-2. At the instance of the accused Mohinder Singh and Nasib Singh,
licensed guns were recovered from their possession. After appreciation of the
evidence on record, the trial court convicted all the accused persons as under:
-
Mohinder Singh Beant Singh Nasib Singh Nirbhai Singh Sukhdev Singh Naginder Singh U/s
148 of the I.P.C.
To undergo rigorous imprisonment for a period of one year,
each.
-
Mohinder Singh U/s 302 of the I.P.C.
To
undergo rigorous imprisonment for life and to pay a fine of Rs.
10,000/- and in default of payment of fine to further undergo rigorous
imprisonment for a period of one year for committing the murder of Harbans Singh.
-
Beant Singh Nasib Singh Nirbhai
Singh Sukhdev Singh Naginder
Singh U/s 302 r/w S. 149 I.P.C.
To
undergo rigorous imprisonment for life and to pay a fine of Rs.
10,000/- each and in default of payment of fine to further undergo rigorous
imprisonment for a period of one year each for committing the murder of Harbans Singh.
-
Nasib Singh Mohinder Singh U/s
307 I.P.C.
To
undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2000/- each, and in default of payment of fine to
further undergo rigorous imprisonment for six months each, for attempting to
murder Harvinder Kaur, Jasvinder Kaur, Modan Singh & Pritam Singh by
causing gun shot injuries.
-
Beant Singh Nirbhai Singh Sukhdev
Singh Naginder Singh U/s 307 r/w S. 149 I.P.C.
To
undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2000/- each and in default of payment of fine to
further undergo rigorous imprisonment for six months, each for attempting to
murder Harvinder Kaur, Jasvinder Singh, Modan Singh and Pritam Singh by causing fire arm injuries.
-
Beant Singh Sukhdev Singh U/s 326
I.P.C.
To
undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1500/- each and in default of payment of fine to
further undergo rigorous imprisonment for 3 months each, for causing grievous
hurt to Gurbans Singh & Mukhtiar
Singh.
-
Mohinder Singh Nasib Singh Nirbhai Singh Naginder Singh U/s
326 r/w S. 149 I.P.C.
To
undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1500/- each and in default of payment of fine to
further undergo rigorous imprisonment for three months, each for causing
grievous hurt to Gurbans Singh and Mukhtiar Singh.
-
Naginder Singh Sukhdev Singh U/s 325 I.P.C.
To
undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1000/- each and in default of payment of fine to
further undergo rigorous imprisonment for 3 months, each for causing grievous
hurt with blunt weapon to Jaspal Singh and Mukhtiar Singh.
-
Mohinder Singh Nasib Singh Nirbhai Singh Beant Singh U/s 325
r/w S. 149 I.P.C.
To
undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1000/- each and in default of payment of fine to
further undergo rigorous imprisonment for 3 months, each for causing grievous
hurt with blunt weapon to Jaspal Singh and Mukhtiar Singh.
-
Beant Singh Sukhdev Singh U/s 324
I.P.C.
To
undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/- each and in default of payment of fine to further
undergo rigorous imprisonment for two months each for causing simple hurt to Mander Singh & Mukhtiar
Singh.
-
Mohinder Singh Nasib Singh Nirbhai Singh Naginder Singh U/s
324 r/w S. 149 I.P.C.
To
undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/- each and in default of payment of fine to further
undergo rigorous imprisonment for 2 months, each for causing simple hurt to Mander Singh & Mukhtiar
Singh.
-
Naginder Singh Beant Singh Nirbhai Singh Sukhdev Singh U/s
323 of I.P.C.
To
undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 200/- each and in default of payment of fine to further
undergo rigorous imprisonment for 15 days, each for causing simple hurt to Jaspal Singh, Mander Singh, Jasvinder Kaur, Gurmit Singh & Mukhtiar
Singh.
-
Mohinder Singh Nasib Singh U/s 323 r/w S.
149 I.P.C.
To
undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 200/- each and in default of payment of fine to further
undergo rigorous imprisonment for 15 days, each for causing simple hurt to Jaspal Singh, Mander Singh, Jasvinder Kaur, Gurmit Singh & Mukhtiar
Singh.
The
entire sentence was directed to run concurrently.
However,
the period of detention already undergone by the accused convicts during
investigation or trial was directed to be deducted from the period of their
substantive sentences.
Aggrieved
by the order of conviction and sentence an appeal was preferred in the High
Court of Punjab and Haryana. It was urged before the
High Court that there was a delay in lodging the FIR, which was lodged at 10.30
P.M.
whereas the alleged incident took place at 5.30 P.M. on 23rd
February, 1996 and the report to the Illaqa Magistrate had
reached at 5.00 A.M. on 24th February, 1996, which goes to show that the
complainant party had consumed time in coining up a story of their choice in
connivance with the police. That non-explanation of the injuries on the person
of Beant Singh and Nirbhai Singh, dented the prosecution case and because of
non-explanation of the injuries by the witnesses on the person of the accused,
it can be inferred that the complainant's side was suppressing the genesis of
fight. That there was a discrepancy between the eye-
witnesses' version and medical evidence. That the plea of alibi taken by
Sukhdev Singh, Naginder
Singh and Mohinder Singh was proved by the defence and as such they could not have been convicted. It
was lastly submitted that their presence at the spot was not unnatural as the
houses of the appellants were adjoining to the place of occurrence and unlawful
assembly with a common object to commit the murder of Harbans
Singh and cause injuries to other persons, cannot be inferred. The High Court
recorded the findings that in the circumstances of the case, merely because
there was some delay in lodging the FIR, it cannot be said that the prosecution
had manufactured a story to falsely implicate the appellants, particularly so
when the occurrence was admitted by the appellants, maybe with the denial of
the presence of Mohinder Singh, Sukhdev
Singh and Naginder Singh at the spot. The so called
delay would at best call for more care and caution while scanning the entire
evidence so that there would not be chances of false implication. The element
of delay in registering the complaint or sending the same to the jurisdictional
Magistrate by itself would not be fatal to the prosecution, if the evidence adduced
by the prosecution was worthy of credence. The High Court found the eye-
witnesses' version credible and trustworthy. As for non-explanation of the
injuries on the appellants Beant Singh and Nirbhai Singh, the High Court has found that there were no
injuries on their person by gandasa, which was
claimed in defence.
According
to the High Court, the injuries were superficial in nature except one on the
person of Beant Singh which was in the shape of
diffused swelling and the doctor had opined that there was no visible injury
mark seen, which showed that no injury was caused by the blunt side of the gandasa otherwise it would have left some mark of violence.
The effect of the non-explanation of the injuries on the person of the accused
had to be judged from the entire factual position, and having done so, in view
of the High Court, the prosecution had not suppressed the genesis of fight. The
High Court opined that the appellants in the shape of aggressors formed an
unlawful assembly causing the murder of Harbans Singh
and caused injuries to nine persons. As per the High Court, there was no
discrepancy in the medical evidence and the eye-witnesses' account for the
injuries caused by the use of firearm. The distance between the assailants and
the injured, as per the prosecution witnesses was 7-8 karams,
whereas according to the medical evidence the shots fired were not from more
than a distance of 4 ft. from the muzzle end of the gun. This is on account of
blackening around the wound. The High Court has held that the witnesses are
rustic villagers from whom accuracy about the exact distance cannot be
expected. All the four injured witnesses examined have categorically stated in
one voice that Mohinder Singh along with Nasib Singh armed with licensed guns came and fired at Harbans Singh, the deceased. On perusal of the site plan,
it is clear that the place of occurrence is of very small in dimension. Five
persons from the complainant's side including the deceased were present on the
plot, whereas the other five persons, who had received injuries, had also
reached the spot after hearing the commotion. From the appellants' side, six
persons entered the said plot. Thus, in all 16 persons were present at the time
of incident and in such a situation it would not be possible for the witnesses
to make the correct assessment of the distance, from where the shots were fired
and in these circumstances the gun fires and the resultant injuries thereof,
witnessed by the witnesses present and injured, cannot be disbelieved. Coupled
with the fact that the licensed guns of the accused persons were recovered at
the instance of the accused and the user of the same being confirmed by
Forensic Science Lab, the witnesses' version cannot be disbelieved. It was
obvious that two guns had been used in the occurrence.
The
plea of alibi was disbelieved by the High Court on the grounds that the onus to
prove the same heavily rests on the accused which they failed to discharge. On
these findings, the High Court has reached an irresistible and unequivocal
conclusion that the appellants' conviction as recorded by the learned trial
court on different counts deserves to be upheld and accordingly the appeal was
dismissed.
Aggrieved
by the same, the present appeal by special leave is preferred before us. It may
be mentioned that the accused appellant Mohinder
Singh has been released by the State considering his age and his appeal is not
being pressed by the counsel for the appellant. The other accused- appellant Nasib Singh has been informed to have died, by the counsel
for the appellant and as such his appeal stands abated. Thus, we are
considering the appeal as regards Beant Singh, Nirbhai Singh, Sukhdev Singh and Naginder Singh.
It is
contended by the learned counsel for the appellants that the prosecution has
failed to explain the injuries caused to Nirbhai
Singh (A-4) and Beant Singh (A-2) and, therefore, the
prosecution has failed to establish the genesis of offence. The failure of the
prosecution to offer any explanation regarding the injuries found on the
accused would mean that the evidence led by the prosecution relating to the
incident is not true or at any rate is not wholly true and thus reliance could
not have been placed on that evidence to convict the accused persons. To prove
the fact that Beant Singh and Nirbhai
Singh have received injuries, the defence has
examined Dr. APS. Kochar, District T.B. Officer,
Civil Surgeon Office, Faridkot. The doctor stated
that he had examined Beant Singh at 10.30
P.M. on 23rd
February, 1996 at Faridkot and found four injuries on his
person. The injuries were caused by a blunt weapon.
Injury
No.4 was declared as simple. On X-Ray examination report, injury Nos. 1 and 2
were also found as simple in nature and injury No.3 was grievous in nature. On
the same day at 11.00 P.M., he examined Nirbhai Singh
and found three injuries on his person. Injury No.1 was caused by a sharp
weapon and rest of the injuries were caused by a blunt weapon. Injury Nos. 1
and 2 were simple and after getting X-Ray examination report injury No.3 was
found to be grievous in nature. On cross-examination, it was admitted by him
that he attached no X-Ray report on his record. Similarly X-Ray report and skiagraph report were not on the judicial file. Injury on
the person of Beant Singh could possibly be caused as
a result of falling on the hard surface. Injury No.1 on the person of Nirbhai Singh could be caused with the blade of a razor.
Injury No.2 could be caused if the nail struck at a hard surface. Injury No.3
on the person of Nirbhai Singh could be caused by
falling on the hard surface. From the evidence of (DW-1), it is apparent that
the injuries were simple in nature and the grievous nature of injury could not
be proved by the doctor by producing the X-Rays and skiagraph,
on the basis of which he had formed the opinion of the grievous nature of the
injury on Beant Singh as well as on Nirbhai Singh.
In the case of Lakshmi Singh and
Ors. vs. State of Bihar (1976) 4 SCC 394, it is observed
that any non- explanation of the injuries on the accused by the prosecution may
affect the prosecution case. But such non-explanation may assume greater
importance where the evidence consisted of interested or inimical witnesses or
where the defence gives a version which competes in
probability with that of the prosecution. But where the evidence is clear,
cogent and credit-worthy and where the Court can distinguish the truth from the
falsehood, the mere fact that the injuries are not explained by the
prosecution, cannot itself be a sole basis to reject such evidence and
consequently the whole case.
In Rizan and Anr. vs. State of Chhattisgarh
(2003) 2 SCC 661, this Court has held that non-explanation of the injuries
sustained by the accused at about the time of occurrence or in the course of
altercation is a very important circumstance. But mere non-explanation of the
injuries by the prosecution may not affect the prosecution case in all cases.
This principle applies to a case where the injuries sustained by the accused
are minor and superficial or where the evidence is so clear and cogent, so
independent and disinterested, so probable, consistent and creditworthy, that
if far outweighs the effect of the omission on the part of the prosecution to
explain the injuries. This principle was discussed in Sekar
alias Raja Sekharan vs. State represented by
Inspector of Police, T.N. (2002) 8 SCC 354 and was reiterated in Anil Kumar vs.
State of U.P., (2004) 13 SCC 257.
All
the three aforesaid judgments have approved the statement of law enunciated in Lakshmi Singh's Case (supra).
In the
present case, there is a creditworthy evidence of PW-1, PW-2, PW-9 and PW-10
viz., Harvinder Kaur, Jasvinder Kaur, Jaspal Singh and Pritam Singh,
who have vividly described the incident and the part played by each of the
accused-appellants. All the four witnesses are injured witnesses and their
presence at the spot cannot be doubted.
The
evidence led by the defence at best shows minor
injuries suffered by Beant Singh and Nirbhai Singh which would not dislodge the prosecution
case, which is established by the evidence of creditworthy witnesses and
non-explanation of the injuries by the prosecution, if any, sustained by the
accused-appellants would not result in disbelieving the prosecution version.
To
prove the case, the prosecution has examined four eye-witnesses. Harvinder Kaur (PW-1), w/o Harbans Singh (deceased) has deposed that on the relevant
day, her husband and Jaspal Singh were present at the
place of incident where they were preparing cow-dung cakes. She saw the
accused-appellants proceeding towards the shamlat
land. Mohinder Singh and Nasib
Singh were armed with licensed 12 bore guns, Naginder
Singh with dang, Sukhdev Singh with Kassia, Beant Singh with Kirpan, Nirbhai
Singh with Kassruli. Mohinder
Singh raised a lalkara that they would teach us a
lesson for adding their land with our land. Mohinder
Singh accused fired from his 12 bore gun towards her husband Harbans Singh which hit him on the left side of his chest.
She ran towards her husband and Nasib Singh fired at
her by his gun which hit her on her left ankle. Mohinder
Singh fired another shot which hit her husband on his right thigh while lying
on the ground.
Naginder Singh-accused gave dang blows to Jaspal
Singh by hitting him but she could not tell the place of injuries on the person
of Jaspal Singh. Nasib
Singh then fired from his 12 bore gun hitting Jasvinder
Kaur on her right leg above her right ankle on the
front side. Nirbhai Singh-accused caused injuires to Jasvinder Kaur with kassruli. They raised
alarm.
On hearing
noise Mander Singh, Gurbans
Singh, Gurmit Singh, Pritam
Sikngh, Madan Singh and Mukhtiar Singh came to the spot to rescue them from the
accused. At that time Mohinder Singh fired from his
gun hitting on the right flank of Madan Singh and
left leg of Pritam Singh. Then Naginder
Singh, Beant Singh, Sukhdev
Singh and Nirbhai Singh with their respective weapons
caused injuries to Mander Singh, Gurbans
Singh, Gurmit Singh and Mukhtiar
Singh. She has further stated in cross-examination that she was present at the
spot 25-30 minutes prior to the occurrence and she had seen the accused at a
distance of 7- 8 karams. The accused persons came carrying guns with them. The other accused were also
with them and they came together. Mohinder Singh
accused fired with the gun from a distance of 7-8 karams
at Harbans Singh. Nasib
Singh was at a distance of 7-8 karams from Jasvinder Kaur when he fired. Nasib Singh and Mohinder Singh
had fired from 7-8 karams at Madan
Singh and Pritam Singh.
Further,
Jasvinder Kaur (PW-2),
another injured eye- witness, fully supports the version given by PW-1 of the
incident. She specifically stated that Nasib Singh
fired from his 12 bore gun towards her which hit her on her right leg above the
ankle and the pellets hit her on abdomen and Nirbhai
Singh gave kassruli blows on her left foot.
Jaspal Singh (PW-9) is another injured eye-witness examined by the
prosecution who had described the incident and the participation of the accused
persons in the incident as described by PW-1 and PW-2. He had specifically
deposed that accused-Naginder Singh gave three dang
blows to him, first blow hit on his shoulder and second blow was received by
him on the back side at right hand.
Pritam Singh (PW-10), another injured eye-witness, had supported
the statements of the eye-witnesses in toto.
The
cross-examination of these witnesses could not show any contradiction or
discrepancy in their version in regard to the participation of the
accused-appellants in the crime and the part played by them. The
ocular version of the witnesses find support from the medical evidence of Dr. Kirandeep (PW-4) who has conducted the post-mortem on the
deceased Harbans Singh. Statement
of Dr. M.G.
Sharma
(PW-3), who examined Mukhtiar Singh and Jaspal Singh and statement of Dr. Tarlochan
Singh (PW-15), who examined Harvinder Kaur Gurmit Singh, Pritam Singh, Jasvinder Kaur and Mander Singh, fully
corroborated the ocular version of the eye-witnesses. We find that the eye-
witnesses were wholly reliable and supported the case of the prosecution to the
hilt.
The
counsel then has urged before us that the appellants before us have not caused
any injury to Harbans Singh, the deceased, and,
therefore, they could not have been convicted under Section 302 read with
Section 149 of IPC for causing homicidal death of Harbans
Singh. The conviction under Section 302/149 could not be supported on the basis
of the evidence led by the prosecution.
The
scope and ambit of Section 149 of IPC was the subject of discussion in various
authorities of this Court.
In Sukhbir Singh v. State of Haryana,
(2002) 3 SCC 327, it is held by this Court that an accused is vicariously
guilty of the offence committed by other accused persons only if he is proved
to be a member of an unlawful assembly sharing its common object. Once the
existence of common object of unlawful assembly is proved, each member of such
an assembly shall be liable for the main offence notwithstanding his actual
participation in the commission of the offence. It is not necessary that each
of the accused, forming the unlawful assembly, must have committed the offence
with his own hands.
The
members of the unlawful assembly can be held liable under Section 149 IPC, if
it is shown that they knew beforehand that the offence actually committed was likely
to be committed in prosecution of the common object. It is true that the common
object does not require prior concert and a common meeting of mind before the
attack. It can develop even on spot but the sharing of such an object by all
the accused must be shown to be in existence at any time before the actual
occurrence.
In Rajendra Shantaram Todankar v. State of Maharashtra
and Ors., (2003) 2 SCC 257, this Court has held that Section 149 of the Indian
Penal Code provides that if an offence is committed by any member of an
unlawful assembly in prosecution of the common object of that assembly, or such
as the members of that assembly knew to be likely to be committed in
prosecution of that object, every person who at the time of the committing of
that offence, is a member of the same assembly is guilty of that offence. The
two clauses of Section 149 vary in degree of certainty. The first clause
contemplates the commission of an offence by any member of an unlawful assembly
which can be held to have been committed in prosecution of the common object of
the assembly. The second clause embraces within its fold the commission of an
act which may not necessarily be the common object of the assembly,
nevertheless, the members of the assembly had knowledge of likelihood of the
commission of that offence in prosecution of the common object. The common
object may be commission of one offence while there may be likelihood of the
commission of yet another offence, the knowledge whereof is capable of being
safely attributable to the members of the unlawful assembly. In either case,
every member of the assembly would be vicariously liable for the offence
actually committed by any other member of the assembly. A mere possibility of
the commission of the offence would not necessarily enable the court to draw an
inference that the likelihood of commission of such offence was within the
knowledge of every member of the unlawful assembly. It is difficult indeed,
though not impossible, to collect direct evidence of such knowledge. An
inference may be drawn from circumstances such as the background of the
incident, the motive, the nature of assembly, the nature of the arms carried by
the members of the assembly, their common object and the behaviour
of the members soon before, at or after the actual commission of the crime.
Unless
the applicability of Section 149 either
clause is attracted and the court is
convinced, on facts and in law, both, of liability capable of being fastened
vicariously by reference to either clause of Section 149 IPC, merely because a
criminal act was committed by a member of the assembly, every other member
thereof would not necessarily become liable for such criminal act. The
inference as to likelihood of the commission of the given criminal act must be
capable of being held to be within the knowledge of another member of the
assembly who is sought to be held vicariously liable for the said criminal act.
In
State of Rajasthan v. Nathu and Ors., (2003) 5 SCC
537, this Court has held that if death had been caused in prosecution of the
common object of an unlawful assembly, it is not necessary to record a definite
and specific finding as to which particular accused out of the members of the
unlawful assembly caused the fatal injury. Once an unlawful assembly has come
into existence, each member of the assembly becomes vicariously liable for the
criminal act of any other member of the assembly committed in prosecution of
the common object of the assembly.
It is
held in Parsuram Pandey and
Ors. v. State of Bihar, (2004) 13 SCC 189 that to attract Section 149 IPC the
prosecution must prove that the commission of the offence was by any member of
an unlawful assembly and such offence must have been committed in prosecution
of the common object of the assembly or must be such that the members of the
assembly knew that it was likely to be committed. Unless these three elements
are satisfied by the prosecution the accused cannot be convicted with the aid
of Section 149 IPC.
In Rabindra Mahto & Ors., v.
State of Jharkhand, JT 2006 (1) SC 137, this Court
has held that under Section 149 IPC, if the accused is a member of an unlawful
assembly, the common object of which is to commit a certain crime, and such a
crime is committed by one or more of the members of that assembly, every person
who happens to be a member of that assembly would be liable for the commission
of the crime being a member of it irrespective of the fact whether he has
actually committed the criminal act or not. There is a distinction between the common
object and common intention. The common object need not require prior concert
and a common meeting of minds before the attack, and an unlawful object can
develop after the assembly gathered before the commission of the crime at the
spot itself. There need not be prior meeting of the mind.
It
would be enough that the members of the assembly which constitutes five or more
persons, have common object and that they acted as an
assembly to achieve that object. In substance, Section 149 makes every member
of the common unlawful assembly responsible as a member for the act of each and
all merely because he is a member of the unlawful assembly with common object
to be achieved by such an unlawful assembly. At the same time, one has to keep
in mind that mere presence in the unlawful assembly cannot render a person
liable unless there was a common object and that is shared by that person. The
common object has to be found and can be gathered from the facts and
circumstances of each case.
The
prosecution has established that all the accused- appellants came to the spot
of incident together. All the accused-appellants were carrying deadly weapons.
Two of them had carried 12 bore guns. Immediately on reaching the spot Mohinder Singh one of the accused had opened fire followed
by firing by another accused-appellant Nasib Singh
and in the same transaction the accused-appellants had caused several injuries
to various persons, not only to the persons who were present at the spot but
also to the persons who had reached the spot after hearing the commotion. The
facts found in the case clearly established the common object of the assembly.
The knowledge of assembly that grievous hurt or death would be caused can be
safely attributed to the members of the unlawful assembly because of the fact
that two of the members of the assembly have carried the licensed guns. An
inference can be drawn of the knowledge of common object and formation of
common object from the behaviour of the members of
the assembly of the accused persons, who came together with deadly weapons and
immediately started attacks indiscriminately on the persons present there. As
many as nine persons have received 31 injuries, which clearly establishes the
common object of the unlawful assembly to do away with Harbans
Singh and cause injuries to any person who tried to intervene.
We are
satisfied with the evidence led by the prosecution that common object of all
the accused appellants of causing death of Harbans
Singh was established beyond any doubt and, therefore, the accused- appellants
were rightly convicted under Section 302 IPC with the aid of Section 149 of IPC
apart from other convictions under other Sections of IPC for causing injuries
to other persons.
For
the foregoing reasons, in our view there is no merit in this appeal. The appeal
is dismissed.
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