Penal Code, 1860: ss. 148, 302/149, 323, 324 and 326/149 – Prosecution under – Of seven accused (including appellant-accused ‘M’ and appellant-accused ‘S’) – Initially charges were not framed by police against appellant-accused ‘M’ and two accused ‘P’ and ‘N’ – After application u/s. 319 Cr.P.C. charges were framed against them – An application u/s. 321 Cr.P.C. to withdraw the case against them was declined by the Court – Trial Court relying on the testimony of injured eye-witnesses PWs 5 and 6; medical evidence and rejecting the defence plea of alibi and false implication convicted all the seven accused – Appeal to High court – During pendency of the appeal, the Governor granted pardon u/Art. 161 of the Constitution to the appellant-accused ‘M’ and two accused ‘P’ and ‘N’ – Grant of pardon also challenged – High Court granted benefit of doubt to two accused ‘P’ and ‘N’, while upholding conviction of other five accused persons – Order granting pardon was also set aside – Appeal to Supreme Court by two of the convicted accused – Held: The prosecution case is supported by two injured eye-witnesses whose testimony has been concurrently found reliable by courts below – Their testimony is consistent with the version in FIR and is further corroborated by the medical evidence – Their evidence cannot be discarded merely for the reason that no independent witness was examined – Factor of enmity, pleaded by accused alleging their false implication in the case, rather supports the prosecution case in proving motive for commission of the offence – Plea of alibi is hollow and after-thought – In the facts of the case it is proved that the accused persons acted in concert with a common object and did constitute unlawful assembly, indulging in rioting with deadly weapons and causing grievous bodily injuries to members of the complainant party – Acquittal of the two accused will not have any mitigating effect leading to acquittal of other accused.
ss. 141 and 149 – Unlawful assembly – Held: Important ingredients of an unlawful assembly are number of persons forming it i.e. 5 and their common object.
Criminal Law:
Common Object – Determination of – Held: The course of conduct adopted by members of unlawful assembly; their behaviour and the arms carried by them are a few basic and relevant factors to determine the common object.
Criminal Trial:
Acquittal of co-accused – Affect of – Held: Acquittal of coaccused per se is not sufficient to result in acquittal of other accused. Dismissing the appeals, the Court
HELD : 1. Though in the present case, the 2 acquitted accused were alleged to be empty handed and were not assigned the role of causing any injury on any person but, the Trial Court found it to be a case of common object and these two accused persons were held guilty of the offence under Section 148 IPC as also of other offences with the aid of Section 149 IPC. The High Court, though agreed with the Trial Court after thorough examination of the material on record on all the material aspects but, as regards these two accused persons, in the concluding part of its discussion, proceeded to extend them the benefit of doubt. Though the aforesaid accused persons were acquitted with benefit of doubt and their acquittal has not been challenged but then, this fact, by itself, will not have any mitigating effect on the prosecution case against the other five accused persons, including the appellants. It remains trite that acquittal of coaccused per se is not sufficient to result in acquittal of the other accused. Even if the material evidence against all the accused persons is the same, acquittal of some of them does not lead to a corollary that the other accused also need to be acquitted. Even if the involvement of the acquitted accused is considered doubtful in view of the uncertain role assigned to them, it cannot be said that entire substratum of the prosecution case is lost, or even whittled down. [Paras 9 and 9.1] [571-D-E; G-H; 572-A-C] Yanob Sheikh alias Gagu v. State of West Bengal (2013)
6 SCC 428 : [2012] 13 SCR 115 ; Dalbir Singh v. State of Haryana (2008) 11 SCC 425 : [2008] 8 SCR 1026 – relied on.
2. The case of the prosecution on material accusations pivots around the testimony of injured eye-witnesses PW-5 and PW-6. PW-5 has deposed in conformity with the initial version of the complainant on the basis whereof, the FIR in question came to be registered. This witness has testified to the role of each of the accused in the incident in question. Nothing material has come out in the cross-examination to discredit this witness. PW5 had also been one of the injured persons in the incident, having received the blows from the appellant-accused ‘M’. In the face of such a fact situation, the suggestion by the defence, that this witness offered support to them for unlawful consideration, could only be rejected as baseless. The Trial Court and the High Court have concurrently found his testimony reliable; and there is no reason to take any different view of the matter. The narration of the incident by PW-6 has also been consistent with the version occurring in the FIR as also that occurring in the statement of PW-5. He had also been an injured person in the same incident and there is nothing on record to disbelieve or discredit this witness. [Paras 10.1 and 10.2] [572-E-F; H; 573-A-C]
3. So far as the medico-legal aspect of the matter is concerned, PW-1, the doctor who had examined the injured person immediately after the incident, has proved the respective injury reports. The facts stand established that the deceased and the other members of the complainant party received many and multiple injuries, including those on the vital body parts from sharp-edged weapons (as also blunt objects). It is also established that the deceased died due to the grievous head injury. Though he died after 9 days from the date of the incident but continuously remained hospitalised and was never in a position to make any statement. The fact that the injuries in question were inflicted by the accused party, with calculated and determined assault on the complainant party, has also been duly established on record. The concurrent findings of the Trial Court and the High Court against the accused persons remain proper and do not appear suffering from any infirmity. [Paras 10.3 and 10.4] [573-C; F-G]
4.1 According to the defence witness, DW 5, a complaint was filed before him to the effect that appellant-accused ‘M’ and the acquitted accused were not present on the spot during the incident in question. This testimony had not only been irrelevant but had also been totally unwarranted. The Trial Court did exercise the power under Section 319 CrPC for proceeding against these persons. The prosecution even endeavoured to withdraw the case against the appellant and the acquitted accused persons, but the prayer was declined by the Trial Court, and the attempts to challenge this order of the Trial Court also failed right upto this Court. In such a position, where the opinion stated in the investigation result qua these persons stood overruled by the judicial order, it had been absolutely unwarranted that such an overruled opinion was sought to be relied upon by way of the testimony of DW-5. Even if this opinion and whatever stated in the report sent by this witness [Ex. DA] are taken on their face value, nothing whatsoever turns upon them. [Para 11.2] [574-D-G]
4.2 The Trial Court, after thorough appreciation of entire record has rejected the suggestion that the appellant was not present at the scene of crime. The High Court has also observed that there was no reliable evidence on record to accept the plea of alibi. The Trial Court and the High Court have rightly rejected such a baseless plea after proper appreciation of the evidence on record. [Para 12] [575-B-C]
4.3 There are two fundamental, and rather fatal, shortcomings in the plea of alibi of the appellant-accused ‘M’ First, that such a plea was not even put in suggestion to the relevant prosecution witnesses including the injured eyewitnesses PW-5 and PW-6. Secondly, and significantly, in his own statement under Section 313 CrPC, the appellant-accused ‘M’ even while making elaborate assertions that he was falsely implicated for having stood against the complainant party in relation to the rape and murder case, and while also relying upon the earlier police report where he was sought to be exonerated and earlier attempt on the part of the prosecution to withdraw the case against him, not even remotely stated that he was not present at the site and that, at the relevant point of time, he was present somewhere else. [Para 12.1] [575-D-F]
4.4 The conduct of witness DW-9 and most of the other witnesses examined in defence in relation to the plea of alibi, had been queer and too unnatural to inspire any confidence. Mere suggestion in the negative by defence witnesses that they did not see the three accused persons [appellant-accused ‘M’ and 2 acquitted accused] on the spot does not displace the cogent and trustworthy evidence adduced by the prosecution. The Trial Court and High Court have rightly discarded these witnesses as being wholly unreliable. The plea of alibi, in the facts of the case could only be rejected as a crude afterthought and nothing else. Thus, viewed from any angle, the plea of alibi, as put forward by appellant-accused ‘M’ remains hollow and could only be rejected. [Paras 12.3, 12.4 and 12.5] [577-E; 578-C, D, G]
5. It is not correct to say that the crime is not established against appellant-accused ‘M’ for want of recovery of weapon of offence. The IO in the first place did make recoveries on the disclosure statements of other four accused persons. As regards the appellant, the IO chose to proceed in the direction that he was innocent and was falsely implicated. That seems to be the fundamental reason for the IO not making any attempt for recovery of the weapon of offence used by the appellant-accused ‘M’. However, this omission has no adverse bearing on the prosecution case, where involvement of the appellant rather as the leader of the assembly, who started the assault with exhortation and then participated in the assault, stands established beyond doubt. [Para 13] [578-H; 579-A-B]
6. The appellant-accused ‘M’ cannot be said to have been falsely implicated due to enmity. In the circumstances of the present case, if anything of so-called enmity is to be taken into consideration, the same equally operates against the appellantaccused ‘M’ and his companions, as admittedly, the appellantaccused ‘M’ was keenly pursuing the case of rape and murder of a village girl and the complainant party was comprising of the persons related with the accused in the said case. The factor of enmity would only lend support to the prosecution case towards the object and motive of the assembly to attack, assault and cause hurt to the members of the complainant party. [Para 13.1] [579-C-D]
7. In the present case, the reliable evidence of the injured eye-witnesses cannot be discarded merely for the reason that no independent witness was examined. There is no rule that in every criminal case, the testimony of an injured eye-witness needs corroboration from the so-called independent witness(es). When the statement of injured eye-witness is found trustworthy and reliable, the conviction on that basis could always be recorded, having regard to all the facts and surrounding factors. [Para 13.2] [579-E-F]
8.1 The important ingredients of an unlawful assembly are the number of persons forming it i.e., five; and their common object. Common object of the persons composing that assembly could be formed on the spur of the moment and does not require prior deliberations. The course of conduct adopted by the members of such assembly; their behaviour before, during, and after the incident; and the arms carried by them are a few basic and relevant factors to determine the common object. [Para 14.5] [584-D-E]
8.2 The facts of the present case, as established by the prosecution, makes it clear that on the relevant date and at the relevant time, at least five of the accused persons, including the present appellants were present at the place of the incident i.e. Court Complex. The members of the complainant party purportedly came to the very same Court Complex to attend the hearing of the rape and murder case of the village girl in which, their kiths and relatives were the accused persons and the case was being pursued by appellant-accused ‘M’. It is also established that when the persons related with the complainant party were about to board their vehicle, the accused persons attacked them with weapons. Significantly, the attack on the complainant party was triggered with exhortation by appellant-accused ‘M’. This clearly brings out the motive for the attack as also the object of the assembly. It is beyond the pale of doubt that the accused persons had acted in concert and the object had clearly been to ensure causalities amongst the members of the complainant party. On the applicable principles, it is concluded that the accused persons did constitute an unlawful assembly; did indulge in rioting in the Court Complex with deadly weapons; and did cause grievous bodily injuries to members of the complainant party. The deceased was attacked rather repeatedly by the members of this unlawful assembly and he sustained grievous injury on the head that proved fatal. The background aspects as also the conduct of the accused persons at and during the incident leaves nothing to doubt that each of the member of this assembly remains liable for the offence committed by himself as also by every other member of the assembly. [Para 14.6] [584-F-H; 585-A, C-E] Govind Singh v. State of Chattisgarh (2019) 7 SCALE
20 – distinguished.
Sikandar Singh & Ors. v. State of Bihar (2010) 7 SCC
477 : [2010] 8 SCR 373 ; Subal Ghorai v. State of West Bengal (2013) 4 SCC 607 ; Sahabuddin & Ors. v. State of Assam (2012) 13 SCC 213 : [2012] 13 SCR 1067 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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