Hari & Anr. vs The State of Uttar Pradesh

s. 149 – Unlawful assembly – Vicarious liability u/s. 149 – Held: s. 149 is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences which the members knew would be committed in prosecution of that object – Prosecution need not prove each of the members’ involvement especially regarding which or what act – While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability u/s. 149.

s. 149 – Unlawful assembly – Common object of an assembly – Held: Common object is different from 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 – Common object of an assembly is to be ascertained from the acts and language of the members composing it, from the surrounding circumstances and the course of conduct adopted by the members.

Witnesses:

Hostile witness – Evidentiary value – Held: Part of the evidence of the hostile witness which is creditworthy, can be acted upon – Criminal trial.

Protection of – Implementation of Witness Protection Scheme – Need to formulate scheme/guidelines/programmes to safeguard rights of the witnesses.

Constitution of India:

Art. 136 – Interference by this Court in a criminal appeal by a Special Leave – Governing principles – Stated. Art. 19(1)(a) and Art. 21 – Right to life – Right to life guaranteed to the people also includes in its fold the right to live in a society which is free from crime and fear, and the right of witnesses to testify in courts in free and fair manner without fear or pressure – If one is unable to testify in courts due to threats or other pressures, it is a clear violation of Art. 19(1)(a) and Art. 21 – One of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State – State to ensure the safety of the witnesses irrespective of case, creed, religion, such that they could safely depose the truth in the court at least in sensitive cases involving those in power, political patronage. Honour killings: Preventive steps, remedial and punitive measures to combat honour crimes – Suggestion of, in Shakti Vahini’s case – Stated.

Casteism: Commission of atrocities in the name of castes – Ghastly murders of three youngsters, by physically assaulting them for nearly 12 hours for violating caste-ridden societal norms – Held: Episodes of honour killing demonstrate that the casteism has not been annihilated even after 75 years of independence – Bigotry perpetuated by such caste-based practices impedes the objective of the Constitution of equality for all its citizens – High time for the civil society to react and respond with strong disapproval about the ghastly crimes committed in the name of caste. Administration of justice: Administration of criminal justice – Racial and religiously motivated crimes, if to be treated as aggravating factors for enhanced punishment – Foreign laws-United Kingdom, Canada, United States vis-a-vis Indian laws – Discussed. Disposing of the appeals, the Court

HELD: 1.1 Right to testify in courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Art. 19 (1) (a) and Art. 21 of the Constitution. Right to life guaranteed to the people of this country also includes in its fold the right to live in a society which is free from crime and fear and the right of witnesses to testify in courts without fear or pressure. It needs to be emphasised that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offences, or where the accused persons are influential persons or in a dominating position that they make attempts to terrorise or intimidate the witnesses because of which these witnesses either avoid coming to courts or refrain from deposing truthfully. This unfortunate situation prevails because of the reason that the State has not undertaken any protective measures to ensure the safety of these witnesses, commonly known as “witness protection”. [Para 28][1046-B-E]

1.2 The State has a definite role to play in protecting the witnesses, to start with, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens, it has to ensure that during a trial in the court the witness could safely depose the truth without any fear of being haunted by those against whom the witness had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology. [Para 29][1046-F-H]

1.3 The instant case squarely falls under the situations contemplated by this Court while necessitating the formulation of scheme/guidelines/programmes for protection of witnesses. Implementation of the Witness Protection Scheme at the time when the witnesses were deposing in the present case, would have prevented the prosecution witnesses from turning hostile. If the material witnesses were relocated from the village and escorted to the courtroom, they would have deposed freely in court. [Para 31][1047-C]

Mahender Chawla & Ors. v. Union of India & Ors. (2019) 14 SCC 615 : [2018] 14 SCR 627; Zahira Habibullah Sheikh and Anr. v. State of Gujarat & Ors. (2006) 3 SCC 374 : [2006] 2 SCR 1081; Ashwin Kumar Upadhyay v. Union of India and Anr. (2020) SCC OnLine SC 1228 – referred to.

2.1 Section 149 IPC is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew would be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence, and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. It is not necessary for the prosecution to prove each of the members’ involvement especially regarding which or what act. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. [Para 35][1048-C-F]

Masalti v. State of UP [1964] 8 SCR 133; Shambhu Nath Singh v. State of Bihar AIR 1960 SC 725; Lalji v. State of U.P. (1989) 1 SCC 437 : [1989] 1 SCR 130 – referred to.

2.2 Common object is different from 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. [Para 36][1048-G; 1049-A]

Charan Singh v. State of U.P. (2004) 4 SCC 205 : [2004]

2 SCR 925; Kattukulangara Madhavan (dead) through LRs. v. Majeed and Ors. (2017) 5 SCC 568 : [2017] 4 SCR 658 – referred to.

3.1 The High Court found that the contradictions and inconsistencies indicated in the statements of the four eyewitnesses were trivial in nature. The High Court ignored the contradictions and inconsistencies which did not affect the substratum of the prosecution’s case. The High Court disapproved the approach of the Trial Court in discarding the formula of at least two witnesses deposing the presence/overt act of the accused in case where large numbers of accused are involved. The High Court gave benefit of doubt to two persons whose presence/involvement was spoken by only one witness. Concurrent findings of fact pertaining to the commission of the crime and involvement of the appellant cannot be subjected to further scrutiny by this Court, according to the well-established law laid down by this Court. It is not necessary to undertake fresh appraisal of the evidence as there is no inclination to take a view different from the concurrent findings since the appreciation of evidence by the Courts below is not erroneous. [Para 20][1041-G-H; 1042-A-D]

State of MP v. Ramesh (2011) 4 SCC 786 : [2011] 5 SCR 1; Masalti v. State of UP [1964] 8 SCR 133; Kaur Sain v. State of Punjab (1974) 3 SCC 649 : [1974] 2 SCR 393 – referred to.

3.2 From the evidence of PW-1, PW-13, PW-14 and PW-15 who are eye-witnesses, the medical and scientific evidence, and documentary evidence it is proved that RK, V and R were tortured and then were killed by hanging. Thereafter, their bodies were cremated. The testimonies of the eye-witnesses are credible and have been rightly accepted by the courts below. The recovery of clothes of deceased RK, recovery of clothes of V, recovery of half burnt pieces of bones, ribs, spinal cord, parts of intestine and burnt pieces of flesh support the prosecution’s version about the burning of the bodies of the deceased. The murder of R, V and RK is established beyond doubt. The eye-witnesses’ account of PW-1, PW-13, PW-14 and PW-15 was believed by the courts below. They have stated about the involvement of the appellants and ascribed specific overt acts to some of them. The role assigned to each of the appellants by the witnesses is stated in the chart. [Para 22][1044-E-G]

3.3 The High Court was of the opinion that the evidence of PW1 cannot be eschewed from consideration only on the ground that they turned hostile. The relevant portion of their testimony was rightly relied upon by the High Court after recording the compelling reasons prompting the 12 prosecution witnesses, including PW1, to turn hostile. [Para 23][1045-A-B]

3.4 The evidence of prosecution witnesses cannot be rejected in toto merely because the prosecution chose to treat them as hostile and cross- examined them. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of testimony which he finds to be creditworthy and act upon it. Even if the witnesses have turned hostile, their evidence can be accepted, if they are natural and independent witnesses and have no reason to falsely implicate the accused. [Paras 25, 26][1045-D-G] Radha Mohan Singh v. State of UP (2006) 2 SCC 450 : [2006] 1 SCR 519; Syad Akbar v. State of Karnataka AIR 1979 SC 1848 : [1980] 1 SCR 95; Mrinal Das and Others v. State of Tripura (2011) 9 SCC 479 : [2011]

14 SCR 411 – referred to.

3.5 In the instant case, the evidence of PW1 finds complete corroboration from the evidence of PW13, PW14, and PW15 who are also the reliable eye-witnesses of the incident. The testimony of PW1 is unshaken and it was only after a long period of stay of trail for 6 years, that she turned hostile. The courts below were right in placing reliance on the testimony of PW 1, who is also a reliable witness, for the conviction of the accused persons even after she was declared hostile. [Para 27][1046-A-B]

4.1 The explanation given by the informant that he was not in a proper frame of mind when he gave the complaint and that he was in the hospital for the next ten days, attending to his family members who were physically assaulted and only after that he could give the names of the rest of the accused, was rightly accepted by the courts below. PW-15-informant managed to escape the well-guarded boundaries of the village after witnessing a prolonged torture of the deceased persons for nearly 12 hours throughout the night and reached the police station to lodge the complaint. He would not have been able to mention all the names of those involved due to the trauma of witnessing an egregious crime which resulted in the murder of his nephew and two other persons. [Para 32][1047-E-G]

4.2 On examination of the evidence of PW-1, PW-13, PW14 and PW-15 the holding by the Courts below that the all four witnesses are reliable and the inconsistencies and contradictions in their evidence are trivial is accepted. The ghastly crime was committed at four different places for a prolonged period of more than 12 hours. Inconsistencies in the version of the witnesses are natural, especially when a large number of persons are involved. [Para 33][1047-G-H; 1048-A-B]

4.3 The harrowing torture of the three deceased which commenced at 9 pm at night and continued till 9 am on the next day with the participation of the appellant in the Panchayat, was proved by the testimony of the eye-witnesses. Specific overt acts have been ascribed to some of the appellants - B, G, CS, P, M, J, BC, K, RS, R for dragging the deceased from their houses to the panchayat of M; appellants KS, RS for physically assaulting the deceased and their family members; appellants BC, K, R, M for forcing the parents of the deceased to hang them; appellants N, G, P, M, N, BT, J, BC, K, RS, SC for being involved in the hanging of the deceased; appellants BT, J, for dragging the bodies of the deceased to the cremation ground and appellants BT, J, BC, KS, S for lighting the fire to the bodies of the deceased at the cremation ground. The courts below committed no error in convicting the appellants under Section 302 with the aid of Section 149 IPC. Even in respect of those who are not assigned any active role or overt act, there is no doubt that they shared the common object to punish the deceased and kill them. Their presence in the Panchayat continuously for nearly 12 hours without any protest or any attempt made by them to stop the violence would lend support to the prosecution version that all the appellants shared the common object of murdering the deceased. [Para 38] [1050-A-E]

5.1 Two young men and a woman were physically assaulted for nearly 12 hours and killed by the accused for violating casteridden societal norms. These episodes of caste-motivated violence in the country demonstrate the fact that casteism has not been annihilated even after 75 years of independence. According to Dr. B. R. Ambedkar, inter-caste marriage is one remedy to get rid of casteism in order to achieve equality. His vision for ensuring justice and equality to all sections of the society, especially to the repressed segments, is well enshrined in the preamble of the Constitution. The bigotry perpetuated by such caste-based practices which are prevalent even today, impedes this objective of the Constitution of equality for all its citizens. Proposal of marriage by R who belongs to Jat community, with V who is a Jatav, has resulted in their deaths. Though the number is a tad less, honour killings have not stopped in this country and it is high time that the civil society reacts and responds with strong disapproval about the ghastly crimes committed in the name of caste. This Court issued several directions to the administrative authorities and police officials to take strong measures to prevent honour killings. Honour killings pursuant to the decree of Khap Panchayats have been strongly criticized by this Court. Harsh punishment was recommended to those brutal and feudal minded persons who commit atrocities in the name of castes. The Law Commission of India in its 242nd Report suggested the legal framework on Prevention of Interference with the Freedom of Matrimonial Alliances in the name of Honour and Tradition. The Law Commission was of the opinion that there must be a threshold bar against congregation or assembly for the purpose of objecting to and condemning the conduct of young persons of marriageable age marrying according to their choice, the ground of objection being that they belong to the same gotra or to different castes or communities. The Panchayatdars or caste elders have no right to interfere with the life and liberty of such young couples whose marriages are permitted by law and they cannot create a situation whereby such couples are placed in a hostile environment in the village/locality concerned and exposed to the risk of safety. The Law Commission further recommended that the very assembly for an unlawful purpose viz. disapproving the marriage which is otherwise within the bounds of law and taking consequential action should be treated as an offence as it has the potential to endanger the lives and liberties of individuals concerned. [Para 39][1050-F-H; 1051-A-E]

Shakti Vahini v. Union of India and Ors. (2018) 7 SCC

192 : [2018] 3 SCR 770 - relied on.

Arumugam Servai v. State of Tamil Nadu (2011) 6 SCC

405 : [2011] 5 SCR 488; – referred to.

5.2 The ghastly murders of three youngsters which are honour killings squarely falls under the head of anti-social and abhorrent nature of the crime. [Para 46][1059-B]

Machhi Singh v. State of Punjab (1983) 3 SCC 470 : [1983] 3 SCR 413 – referred to.

6.1 Appellants TS, K, S, BC, RS, R and K were sentenced to death by the trial court for committing the gruesome murders of three youngsters in a barbaric manner. However, the High Court converted the death sentence of the appellants to that of life imprisonment till their last breath. The reasons given by the High Court for converting the death sentence of the appellants to life imprisonment are the advance age of some of the appellants, the passage of long time after the commission of crime and mental sufferings that they have undergone. Keeping in view the facts and circumstances of this case, the judgment of the High Court insofar as the conversion of death sentence to life imprisonment in respect of accused is upheld. [Para 47][1059-C-E]

6.2 The judgment of the High Court is upheld and affirm the conviction and sentence imposed on the accused namely DH, NT, SR, TJ, BC, KM, RM, RN, SR, MH, CH, PT, BT, JV, KR, MN, GN, DH, BL, DR, MN, KS, DM. Accused namely H, LS and G are acquitted in view of the ambiguity in their identity. [Para 50][1060-D-F]

Dalbir Kaur v. State of Punjab (1976) 4 SCC 158:[1977]

1 SCR 280; Ramaniklal Gokaldas v. State of Gujarat (1976) 1 SCC 6; Duli Chand v. Delhi Admn. (1975) 4 SCC 649; Bachan Singh v. State of Punjab (1980) 2 SCC 684; Masalti v. State of UP 1964 (8) SCR 133 – referred to.

Wisconsin v. Mitchell [508 US 476 (1993)] – referred to.