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ASHA SUNDRIYAL Date: 2020.01.06 09:30:39 IST Reason:
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 299 OF 2010
DEV KARAN @ LAMBU
STATE OF HARYANA
Crl.A. No. 300/2010
Crl.A. No. 302/2010
Crl.A. No. 1139/2010
J U D G M E N T
SANJAY KISHAN KAUL, J.
1.On the fateful date of 28.7.1994 at 3 a.m., Jaibir @ Gabbu (for short ‘deceased’) was murdered. An FIR was registered on the same date
by one Surender
2.The residential house of the deceased was
1 Appellant in Crl.Appeal No.300/2010
The complainant, the deceased, Narendar and Sandeep thereafter came back to the
3.It is the case of the complainant that just as these friends were, once again, in the process of resuming their drink, seven persons (all arrayed as accused before the trial court) entered the
lathis and sword. Rajesh Yadav (accused No.1), who has since passed away, was armed with a bahi (a rectangular wooden rafter, which is used in making cots), and proclaimed that the deceased, referred to as the ‘leader’, be killed, and then he hit the deceased on the head with the wooden rafter. A lathi blow was given by Krishan on the head of the deceased. The consequence of these blows was that the deceased fell to the ground. The assault continued when Suresh (original accused No.5/appellant2) also gave a wooden rafter blow on the left leg of the deceased. Rajesh Yadav (accused No.1), since deceased, raised a lalkara that Jaibir (the deceased) be killed altogether. All the accused thereafter started hitting the deceased indiscriminately with their respective weapons. A variety of weapons were used to carry out the assault, with
2 Appellant in Crl. Appeal No.302/2010
Rajesh Yadav and Suresh being armed with bahis, while Rajesh Jogi (original accused No.4/appellant3) being armed with kirpan (sword) and the remaining four accused carrying lathis.
4.The endeavour of the complainant to intervene, only ended up in blows being received by him from different accused, and the same was the consequence for Ajay Bhan
Police Station, Bhiwani at 4:15 a.m. by the doctor on duty, Dr. Aditya
3 Appellant in Crl. Appeal No.1139/2010
4 A condition in which the air sacs of the lungs are damaged and enlarged, causing breathlessness.
Sarup Gupta. Suffice to say, the various injuries inflicted on these two persons were found by the doctor to have been inflicted with blunt weapons, with some of the injuries being grievous in nature, while the remaining ones being simple. But for timely medical aid, the injuries could have proved fatal, opined the doctor. Both these persons were declared fit to make statements at 5:40 a.m., on 28.7.1994.
5.On the ruqa being sent, the SHO of the Police Station at Bhiwani reached the hospital to record the statements of
pajama, kamij and baniyan in torn condition. Four of the accused – Krishan, Vidhya Rattan, Suresh and Rajesh Jogi were apprehended/arrested on 28.7.1994 and questioned. On the
Multiple lacerated wounds on the
Lacerated wounds on the left eye brow, lower eye lid, right forearm, and left leg.
Fracture of bones in the left leg.
Bruises on the right shoulder, right upper arm, chest, abdomen, left and right thigh, left and right knee.
Abrasions on the left should, left forearm.
The cause of death was opined to be shock and haemorrhage, as a result of injuries, which were sufficient in the normal course of nature, to cause death. These injuries were quite possibly as a result of blows from lathis, bahis and sword.
6.The disclosure statement, post the interrogation of the arrested accused on 29.7.1994, resulted in recovery of the weapons and clothes worn by them at the time of the incident. On the same day, Rajesh Yadav
(accused No.1) was also arrested, and his disclosure statement led to the recovery of a bahi. Dev Karan (original accused No.6/appellant5) was, however, arrested subsequently, on 1.8.1994, and he led to the discovery of lathis, for which assistance was also provided by the accused, Karma.
7.On completion of investigation, a chargesheet was filed on 15.11.1994, and charges were framed under Sections 148, 302, 307, 325 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) and Section 449 of the IPC. The accused pleaded innocence, and during trial, seventeen prosecution witnesses were examined. No witnesses were examined as defence witnesses. Rajesh Yadav died during trial. The remaining arrested accused were found guilty and convicted under Sections 148, 302, 307, 325 read with Section 149 of the IPC and Section 449 of the IPC. All the accused were sentenced for life, with fine of Rs.500 each under Section 302 of the IPC. They were also sentenced to undergo rigorous imprisonment (‘RI’) for seven years each along with a fine of Rs.500 each under Section 307 of the IPC with similar sentence under Section 149 of the IPC. The accused were also directed to undergo RI for three years each with a fine of
5 Appellant in Crl. Appeal No.299/2010
Rs.200 each under Section 325 of the IPC, and under Section 148 of the IPC, they were sentenced to RI for 2 years each with fine of Rs.200 each. The sentences were directed to run concurrently. All the accused were held guilty under Section 149 of the IPC as they constituted an unlawful assembly, as a result of which, it was opined that specific attribution of injuries caused by each individual was not required to be considered.
8.It may also be noticed that Karma
9.Against the order of the High Court, Krishan
10.Learned counsel advanced submissions on behalf of
plea that no charges had been framed under Section 141 of the IPC. In addition, it was submitted that the prelude to the incident was an alleged altercation between Sandeep and
11.Learned counsel took us through the provisions of Chapter VIII of the IPC, dealing with ‘Offences against the Public Tranquility’. It was his submission that the provisions have to be ready holistically, and in sequence. Thus, Section 141 of the IPC defines an ‘Unlawful Assembly’ as an assembly of five or more persons with a common object. Such common objects are specified in the Section, and what would be applicable, in this case, would be the third aspect, i.e., “to commit any
mischief or criminal trespass, or other offence.” Section 142 of the IPC
provides that a person who, being aware of facts which render any
assembly an unlawful assembly, intentionally joins that assembly, or
continues in it, is said to be a member of an unlawful assembly, while
Section 143 of the IPC provides the punishment for being part of such an
unlawful assembly. Section 144 of the IPC deals with joining an
unlawful assembly, armed with deadly weapon, which is likely to cause
death; Section 146 of the IPC deals with rioting; Section 147 of the IPC
deals with punishment for rioting while Section 148 of the IPC deals with
rioting, armed with deadly weapon. Section 149 of the IPC reads as
“149. Every member of unlawful assembly guilty of offence committed in prosecution of common
12.It was, thus, the submission advanced that unless there is infliction of punishment under Section 143 of the IPC, as a sequitur to forming an unlawful assembly under Section 141 of the IPC, there could be no cause
to apply Section 149 of the IPC.
13.Learned counsel referred to the judgment in Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel &Ors.,6 to elucidate his submission. The concept of vicarious liability, as a result of which a large number of accused constituting an unlawful assembly can be held guilty, has been discussed, to hold that it is not necessary that each of the accused inflict fatal injury or any injury at all; the mere presence of an accused in such an assembly is sufficient to render him vicariously liable under Section 149 of the IPC, for causing the death of the victim of the attack, provided that the accused are told that they are to face the charge, rendering them so vicariously liable. The principle of this vicarious liability, under Section 149 of the IPC has been set out in para 28 of the judgment and reads as under:
“Section 149 propounds a vicarious liability [Shambhu Nath Singh v. State of Bihar, AIR 1960 SC 725: 1960 CrlLJ 1144] in two contingencies by declaring that (i) if a member of an unlawful assembly commits an offence in prosecution of the common object of that assembly, then every member of such unlawful assembly is guilty of the offence committed by the other members of the unlawful assembly, and (ii) even in cases where all the members of the unlawful assembly do not share the
6 (2018) 7 SCC 743
same common object to commit a particular offence, if they had
the knowledge of the fact that some of the other members of the assembly are likely to commit that particular offence in prosecution of the common object.”
14.The concept of unlawful assembly under Section 149 of the IPC was, thus, as per para 31, opined to have two elements:
“(i) The assembly should consist of at least five persons; and
(ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein.”
15.In that context, in paras 32 & 33, it has been observed as under:
“32. For recording a conclusion, that a person is (i) guilty of any one of the offences under Sections 143, 146 or 148 or (ii) vicariously liable under Section 149 for some other offence, it must first be proved that such person is a member of an “unlawful assembly” consisting of not less than five persons irrespective of the fact whether the identity of each one of the 5 persons is proved or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the 5 enumerated objects specified under Section 141 IPC.
33. The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual members of the assembly, in our
opinion is impermissible. For example, if more than five people gather together and attack another person with deadly weapons eventually resulting in the death of the victim, it is wrong to conclude that one or some of the members of such assembly did not share the common object with those who had inflicted the fatal injuries (as proved by medical evidence); merely on the ground that the injuries inflicted by such members are relatively less serious and
16.The submission, thus, was that the significance of not invoking Section 141 of the IPC is that the very substratum of constituting an unlawful assembly did not exist.
17.To support the aforesaid line of reasoning, a reference was also made to the earlier judgment in Dani Singh v. State of Bihar7, where, in para 11 it has been observed as under:
“11. The emphasis in Section 149 IPC 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 an unlawful assembly, it cannot be said that he is a member of an
7(2004) 13 SCC 203
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 has 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 a 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.”
18.In order to appreciate the significance of specifically invoking Section 141 of the IPC, it would be appropriate to refer to the judgment
of this Court in Mahadev Sharma v. State of Bihar8. This Court opined
that for application of Section 149 of the IPC, there must be an unlawful
assembly. The scheme of the provisions was explained as under:
“9. The fallacy in the cases which hold that a charge under Section 147 is compulsory arises because they overlook that the ingredients of Section 143 are implied in Section 147 and the ingredients of Section 147 are implied when a charge under Section 149 is included. An examination of Section 141 shows that the common object which renders an assembly unlawful may involve the use of criminal force or show of criminal force, the commission of mischief or criminal trespass or other offence, or resistance to the execution of any law or of any legal process. Offences under Sections 143 and 147 must always be present when the charge is laid for an offence like murder with the aid of Section 149, but the other two charges need not be framed separately unless it is sought to secure a conviction under them. It is thus that Section 143 is not used when the charge is under Section 147 or Section 148, and Section 147 is not used when the charge is under Section 148. Section 147 may be dispensed with when the charge is under Section 149 read with an offence under the Indian Penal Code.”
19.Thereafter, it has been opined that if charges framed against the appellant contain all the necessary ingredients to bring home to each of the member of the unlawful assembly, the offence, with aid of Section
149of the IPC, and the prosecution proves the existence of an unlawful assembly with a common object, which is the offence, as also the
8(1966) 1 SCR 18
membership of each appellant, nothing more is necessary. The effect of these observations is that Section 141 of the IPC only defines what is an unlawful assembly and in what manner the unlawful assembly conducts itself, and in what cases the common object would make the assembly unlawful is specified in the Sections thereafter, inviting the consequences of the appropriate punishment in the context of Section 149 of the IPC.
20.In KuldipYadav v. State of Bihar9, it has been opined in para 36 that a clear finding regarding the nature of the common object of the assembly must be given and the evidence discussed must show not only the common object, but also that the object was unlawful, before recording a conviction under Section 149 of the IPC. What is required is that the essential ingredients of Section 141 of the IPC must be established.
21.On examination of the aforesaid aspect, we are unable to come to a conclusion that there was any fatal flaw in the
141of the IPC while framing charges, as would render the complete trial illegal, or that it can result in a finding that there would be no occasion to
9(2011) 5 SCC 324
invoke Section 149 of the IPC. Learned counsel appears not to have appreciated the judicial pronouncements in the correct perspective, as what is necessary for invoking Section 149 of the IPC has been set out in these judgments. It has nowhere been said that Section 141 of the IPC should be specifically invoked or else the consequences would be fatal. As long as the necessary ingredients of an unlawful assembly are set out and proved, as enunciated in Section 141 of the IPC, it would suffice. The actions of an unlawful assembly and the punishment thereafter are set out in the subsequent provisions, after Section 141 of the IPC, and as long as those ingredients are met, Section 149 of the IPC can be invoked.
22.In the factual context, it is observed that whatever be the altercation or argument between Sandeep and the seven accused, it resulted in the seven accused armed with deadly weapons coming to the site of the incident, being the
that the deceased should be killed. All the other accused also inflicted blows on the deceased. Even the interventions of
result in their desisting from such assault, but on the other hand, even
23.No doubt the IO had deposed that the liquor shops remain open up to 11 p.m., but that itself would not belie the story, as it is not difficult to conceive of the ability to obtain liquor at that hour, which is substantiated by the fact that the liquor was obtained and the persons at the site were
having a drink after having run through the initial amount of liquor.
24.We may, however, notice that no doubt Sandeep ought to have been examined as also the other persons, Narender, who visited the initial altercation place subsequently. The prosecution undoubtedly faltered there. The question, however, is whether this would, in any manner, cast a doubt on the incident, or the manner of infliction of injuries on the deceased and the
25.We may also notice that there are concurrent findings of the trial court and the appellate court, which have appreciated the evidence, and we do not think that this Court should convert itself into a third court of
appeal for appreciation of evidence.
26.We are also unimpressed by the argument that the sentence may be converted into one under Section 304 Part II as a period of nine and a half years has been served by the accused, as a convict. The manner of the attack, the common object with which it was made, the nature of the injuries do not permit us to take a more compassionate view of the matter in this case, to only facilitate the accused in serving a lesser sentence, other than what the legislature mandates, i.e., the life sentence (the option only being the death sentence).
27.We, thus, find no merit in the case sought to be made out on behalf of the accused Nos.4 & 6.
28.A valiant endeavour was made by Mr. Basant, learned senior counsel on behalf of
this aspect, we have already discussed aforesaid. Since the conviction is basically on the statement of
29.Learned senior counsel sought to read extensively from the statement of
30.On examination of the aforesaid pleas, we would agree that these discrepancies fall under what has been labeled by the High Court as ‘minor discrepancies’, more so in an incident of this nature, where all the accused were inflicting blows on the deceased, at tandem.
31.Learned counsel for the State also invited our attention to the discussion in the impugned order qua the aspect of the identification of
“….In the FIR, accused Suresh has been described as Lala Ahir
resident of Munthiya Kheri. The eye witnesses have, however, described/identified him as Suresh @ Lala, while appearing in the witnesses box. Undisputedly, accused Suresh is resident of Munthiya Kheri. The eye witness already knew him. This leads to the inference that he must have been known as Lala also and, thus, his presence at the spot cannot be doubted.”
32.The testimony of
33.We may also note that insofar as
34.The net result of the aforesaid discussion is that all the four appeals must fail and are, thus, accordingly dismissed.
35.The accused are directed to surrender forthwith before the trial court, within a period of fifteen days from today, to serve out the remaining sentence.
36.Needless to say, if there is any remission earned, after serving out the appropriate sentence, their cases would be considered for release in terms of the norms of the State Government.
[Sanjay Kishan Kaul]
August 06, 2019.