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Saturday, January 12, 2013

Sections 148 and 324 IPC read with Section 149 IPC. = whether the aforesaid four accused along with the two convicted accused had formed an unlawful assembly within the meaning of Section 141 of the Indian Penal Code so as to render them vicariously liable for the offence(s), if any, committed by the members of the unlawful assembly either in furtherance of the common object of the assembly or if the offence committed was or could have been known to be likely to be committed in pursuance of such common object of the unlawful assembly.=unequivocally and categorically stated in Court that the six accused persons had come together to the field of deceased Mukhtyar Singh armed with dangerous weapons including fire arms. If this is the manner in which the accused persons had come to the spot it cannot be said that the accused had not formed an unlawful assembly within the meaning of the said expression as appearing in Section 141 of the Indian Penal Code. While membership of an unlawful assembly itself is an offence under Section 143 IPC, use of force by members of the unlawful assembly gives rise to the offence of rioting which is punishable either under Section 147 or Section 148 IPC. we are of the view that the four acquitted accused should also be held liable under Section 324 read with Section 149 IPC.


                                                              NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 1915 OF 2008


Raju @ Rajendra & Anr.                  ...  Appellant(s)
                                   Versus
State of Rajasthan                           ...   Respondent(s)

                                    WITH

                      CRIMINAL APPEAL NO. 1897 OF 2008


                               J U D G M E N T


RANJAN GOGOI, J.


      Being directed against the common  judgment  dated  16th  March,  2007
passed by the High  Court  of  Rajasthan  we  had  heard  both  the  appeals
analogously and the same are being disposed of by this common judgment.

2.    Criminal Appeal No. 1915 of 2008 has been  filed  by  accused  Raju  @
Rajendra and accused Pappu @ Ranjeet Singh who  have  been  convicted  under
Sections 302 and 307 read with Section 34  of  the  Indian  Penal  Code  and
sentenced to undergo, inter alia, RI for life.  
Criminal Appeal No. 1897  of
2008 has been filed by the State of  Rajasthan  against  the  same  judgment
dated 16th March, 2007  by  which  the  remaining  four  accused  have  been
acquitted of all the charges  brought  against  them  including  the  charge
under Section 302 read with Section 149 IPC.

3.    The short case of the prosecution is that on 4th April, 2000 at  about
4.30 p.m. PW-13 Mahaveer  lodged  an  FIR  (Ex.  P-23)  in  the  Dei  police
station, District Boondi stating that at about 2 – 2.30  p.m.  of  the  same
day while he was sitting in the  field  of  one  Mukhtyar  Singh  (deceased)
waiting for the thresher, the convicted as well  as  the  acquitted  accused
(six in all) alongwith another person (who had absconded) came to  the  spot
armed with different kinds of dangerous weapons.
In the FIR it  was  stated
that as soon as the accused persons reached the spot, while accused Pappu  @
Ranjeet Singh assaulted Mukhtyar Singh with an  axe  on  his  head,  accused
Raju @ Rajendra assaulted the  aforesaid  person  with  a  sword.  Acquitted
accused Bachchan  Singh  reportedly  gave  lathi  blows  to  Mukhtyar  Singh
whereas acquitted accused Balwant Singh, his wife Shanti Bai @ Jaswant  Kaur
and daughter Gurjeet Kaur had  pointed  country  made  pistols  at  Mukhtyar
Singh and had exhorted the other accused to kill/eliminate  Mukhtyar  Singh.
In the FIR it was further mentioned that
the first informant  (PW-13)  tried
to intervene but he was also assaulted by accused Pappu on his head with  an
axe and by the accused Raju with a sword  on  his  right  arm.
Due  to  the
assault committed by the accused on  Mukhtyar  Singh  the  aforesaid  person
lost consciousness and though he was taken to the hospital  he  passed  away
shortly after the  incident.  
In  the  first  information  report,  it  was
further mentioned that two other persons, i.e., Bittoo (PW-19) and  Jamnalal
(PW-1) had witnessed the occurrence.

4.    On the basis of the aforesaid FIR lodged by PW-13,  police  registered
a case and  investigated  the  same.  On  completion  of  the  investigation
chargesheet was submitted against 7 persons in all, including the  convicted
and the acquitted accused.   Thereafter, the case was  committed  for  trial
to the Court of Sessions at Boondi where charges  under  different  sections
of the Indian Penal Code including Section 302 read with  Section  149  were
framed.  As the accused persons denied the charges and wanted  to  be  tried
the prosecution examined as many as 21 witnesses and also exhibited a  large
number of documents.
Thereafter at the conclusion of the  trial  while  two
of the accused  i.e. Raju @ Rajendra and Pappu @ Ranjeet  Singh  were  found
guilty of the commission of the offence under Section  302,  307,  325,  324
and 148 IPC the remaining accused (acquitted accused) were found  guilty  of
the charge of commission of the same offences with the aid  of  Section  149
IPC.  
For commission of the offence  under  Section  302  IPC  each  of  the
accused had been sentenced to undergo rigorous imprisonment for  life.   The
sentences imposed for commission of the lesser offences, as  noticed  above,
would not require any specific mention as the same were to run  concurrently
with the sentence of imprisonment for life.

5.    Aggrieved by the aforesaid conviction recorded by  the  learned  Trial
Court and the sentences imposed, all the six  accused  had  filed  a  common
appeal before the High Court of Rajasthan challenging the  order  passed  by
the learned Trial Court.
The High Court by its  judgment  and  order  dated
16th March, 2007 altered the conviction of the two convicted accused,  i.e.,
Raju @ Rajendra and Pappu @ Ranjeet Singh  to one  under  Sections  302  and
307 read with Section 34 of the Indian Penal Code  while acquitting them  of
the remaining charges. 
The remaining four accused were acquitted of all  the
charges.
It is against  the  aforesaid  judgment  of  the  High  Court  that
Criminal Appeal No. 1915 of  2008  has  been  filed  by  the  two  convicted
accused, 
whereas Criminal Appeal No. 1897 of 2008  has  been  filed  by  the
State against the acquittal of the remaining four accused.

6.    We have heard Ms. Aishwarya  Bhati,  learned  Amicus  Curiae  for  the
appellants in Criminal  Appeal  No.  1915/2008,  Mr.  J.P.  Dhanda,  learned
counsel for the respondents  in  Criminal  Appeal  No.  1897/2008   and  Mr.
Jasbir Singh Malik, Addl. Advocate General for the State of Rajasthan.

7.    Ms. Aishwarya Bhati, learned Amicus Curiae had taken  us  through  the
evidence on  record,  particularly,  the  depositions  of  the  eyewitnesses
examined in the case, i.e. PW-1, PW-13 and PW-19. Learned Amicus Curiae  had
also placed before us the judgments passed by the learned  Trial  Court  and
the High Court as well. On the other hand, Mr. Jasbir Singh  Malik,  learned
Addl. Advocate General appearing for the respondent-State  of  Rajasthan  in
the appeal filed by the convicted accused had submitted  that  the  evidence
of all the three eyewitnesses is clear, cogent  and  consistent  insofar  as
the involvement of the said accused is concerned.  Placing the  evidence  of
PW-16 Dr. Gopal Lal Nagar, who had conducted the postmortem of the  deceased
and had also attended to the injuries sustained by  the  injured  eyewitness
PW-13, learned counsel had submitted that the medical  evidence  adduced  in
the present case fully corroborates the  narration  of  events  unfolded  by
witnesses examined by the prosecution.    According  to  the  learned  State
counsel, no error or infirmity can be found in  the  judgment  of  the  High
Court so as to warrant a reversal of the finding of guilt  recorded  against
the two convicted accused.

8.    Insofar as the connected appeal (Crl. Appeal  No.  1897/2008)  against
the acquittal of the four accused is  concerned,  Mr.  Jasbir  Singh  Malik,
learned counsel appearing for the appellant-State had  vehemently  contended
that the evidence  and  materials  brought  on  record  by  the  prosecution
clearly go to show that all the six accused had formed an unlawful  assembly
the common object of  which  was  to  cause  the  murder  of  the  deceased.
According to the learned counsel, such a conclusion reasonably follows  from
the manner in which the accused persons armed  with  dangerous  weapons  had
gone to the field of Mukhtyar Singh on the day of the occurrence.   In  such
a situation, according to the learned counsel,  apart  from  the  individual
overt acts which are attributable to accused Raju @  Rajendra  and  Pappu  @
Ranjeet Singh, the other accused would be liable under Section 149  IPC  for
the acts committed in furtherance of  the  common  object  of  the  unlawful
assembly, which undoubtedly was to commit the murder of Mukhtyar  Singh.  It
is, therefore, submitted that the acquittal of the  aforesaid  four  accused
by the High Court is wholly untenable and needs to be reversed.

9.    Opposing the aforesaid contentions advanced  by  the  learned  counsel
for the appellant State of Rajasthan, Mr. J.P. Dhanda, learned  counsel  for
the acquitted accused had submitted that even if it is to  be  assumed  that
an unlawful assembly had been formed by the six accused persons,  it  cannot
be said that the common object of the said assembly was to cause  murder  of
the  deceased  Mukhtyar  Singh,  inasmuch  as,  though,  according  to   the
prosecution story, three of the acquitted accused were  armed  with  country
made pistols and had, in fact, kept the same pointed at the  deceased,  yet,
none of the firearms were used or fired. In  such  circumstances,  according
to the learned counsel, even if the prosecution story as a whole  is  to  be
accepted the four accused in question cannot be made liable for the  offence
of murder with the aid of Section 149.

10.   We have considered the submissions advanced on  behalf  of  the  rival
parties.  We have also given our indepth consideration to  the  evidence  on
record, particularly the depositions of  the  three  eyewitnesses,  and  the
medical evidence adduced by PW-16.  Insofar as accused Raju @  Rajendra  and
Pappu @ Ranjeet Singh is concerned, we  have  not  been  able  to  find  any
inconsistency, much less any material contradiction, in the evidence of  PWs
1, 13 and 19.  All the aforesaid  three  eyewitnesses  have  given  a  vivid
description of the events leading to the death  of  Mukhtyar  Singh  clearly
demonstrating the role of the accused Raju @ Rajendra and  Pappu  @  Ranjeet
Singh in causing the  injuries  sustained  by  the  deceased  on  the  head.
According to PW-16, Dr. Gopal Lal Nagar, the internal injuries  suffered  by
the deceased as  a  result  of  the  assault  on  the  head  was  ultimately
responsible for the death of Mukhtyar Singh.  The description of the  events
by the eyewitnesses would go to show that the attack  on  the  head  of  the
deceased by the two convicted accused were in quick succession.  The  manner
and  circumstances  in  which  the  injuries  were  inflicted,  as   already
discussed, is capable of sustaining an inference that both the accused  Raju
@ Rajendra and Pappu @ Ranjeet Singh had  shared  the  common  intention  to
cause the death of  Mukhtyar  Singh  thereby  rendering  them  liable  under
Section 302 read with Section 34 IPC, as held by the High Court.  A  similar
conclusion with regard to the liability of the  two  accused  under  Section
307 IPC for the assault and injuries  caused  to  PW-13  reasonably  follows
from a reading of the evidence of the eye witnesses (PWs 1, 13 and  19)  and
the medical evidence on record (PW 16).  We,  therefore,  do  not  find  any
basis whatsoever to disagree with the view taken by the High  Court  insofar
as the two convicted accused are concerned.  Consequently,  Criminal  Appeal
No. 1915 of 2008 is dismissed and the conviction as  well  as  the  sentence
recorded against the accused Raju @ Rajendra and Pappu @  Ranjeet  Singh  by
the High Court is affirmed.

11.   Insofar as the acquittal of the four accused,  which  is  the  subject
matter of challenge in Criminal Appeal No. 1897 of 2008, is  concerned,  the
first question that has to be  determined  is
whether  the  aforesaid  four
accused alongwith the two convicted accused had formed an unlawful  assembly within the meaning of Section 141 of the Indian Penal Code so as  to  render them vicariously liable  for  the  offence(s),  if  any,  committed  by  the members of the unlawful assembly either in furtherance of the common  object
of the assembly or if the offence committed was or  could  have  been  known to be likely to be committed in pursuance  of  such  common  object  of  the unlawful assembly.

12.   From the evidence of PW-2 Avtar Singh (son of deceased) as well as PW-
4 Ram Niwas (declared hostile) it  transpires  that  the  deceased  and  the
party of the accused had a dispute over land  and,  in  fact,  some  of  the
accused had made attempts to encroach upon land belonging to  the  deceased.
 All the three eyewitnesses, namely,  PW-1,  PW-13  and  PW-19,  as  already
noticed, had
unequivocally and categorically stated in Court  
that  the  six accused persons had come together to the field of  deceased  Mukhtyar  Singh
armed with dangerous weapons including fire arms.  
If this is the manner  in
which the accused persons had come to the spot it cannot be  said  that  the
accused had not formed an unlawful assembly within the meaning of  the  said
expression as appearing in Section 141 of  the  Indian  Penal  Code.   
While
membership of an unlawful assembly itself  is an offence under  Section  143 IPC,  use of force by members of the unlawful assembly  gives  rise  to  the offence of rioting which is punishable either under Section 147 or   Section 148 IPC.

Membership of the 4 accused in the unlawful assembly  and  use  of
force with dangerous weapons is borne out by the  evidence  on  record.
The
said facts would make the acquitted accused liable  for  the  offence  under
Section 148 of the Indian Penal Code.
However, their  liability  under  any
other  provision  of  the  Indian  Penal  Code  would  depend  on  what  can reasonably be understood to be the common object  of  the  assembly  in  the present case.

13.   The availability of fire arms in the hands of three of  the  acquitted
accused, namely, Balwant Singh, his wife  Shanti  Bai  @  Jaswant  Kaur  and
daughter Gurjeet Kaur
but absence of any fire therefrom or use thereof is  a
clear pointer to the fact that the common object of  the  unlawful  assembly
was definitely not to cause the murder of the deceased Mukhtyar Singh.  
Had
the same been the object the fire arms  available  with  the  accused  would
have been surely used.
      However, from the depositions of PW-13 and PW-19 as well as  from  the
evidence of PW-16 it clearly transpires  that  PW-13  had  suffered  several
injuries due to the assault committed on him by the members of the  unlawful
assembly.
Having regard to the injuries suffered by PW-13, as evident  from
the evidence of PW-16, and our finding that the accused persons  had  formed
an unlawful assembly,
we are of the view that  the  four  acquitted  accused
should also be held liable under Section 324 read with Section 149 IPC.

14.   Pursuant to the directions issued by this Court at the  conclusion  of
the hearing of the appeals, learned Addl. Advocate General  of the State  of
Rajasthan has filed before this Court details of the  custody  undergone  by
the four acquitted accused till date.
From the  aforesaid  material  placed
before this Court it appears that
while acquitted accused Gurjeet  Kaur  had
undergone a total of 5 months 8 days of RI  accused  Shanti  Bai  @  Jaswant
Kaur had undergone a similar period of custody of 5 months 8 days.  
On  the
other hand Balwant  Singh  had  undergone  7  months  29  days  of  rigorous
imprisonment whereas accused Bachchan Singh had undergone custody of 1  year
4 months and 21 days.

15.   Having regard to the totality of  the  facts  of  the  case,  
we  are,
therefore, of the view that the  aforesaid  four   accused  should  be  held
liable for the offences under Sections 148 and 324  IPC  read  with  Section
149 IPC.
Insofar as the sentence is concerned, we  are  of  the  view  that
having regard to the period of custody already undergone  by  the  aforesaid
four accused the ends of justice  would  not  require  them  to  suffer  any
further period of custody and sentence of imprisonment already  suffered  by
the said accused would be adequate. 
Consequently, insofar  as  the  Criminal
Appeal No. 1897 of 2008 is concerned, we partly allow the  same  and  modify
the order of the High Court in terms of what has been held above.

16.   Both the appeals shall stand disposed of accordingly.


                                       ...…………………………J.
                                        [P. SATHASIVAM]



                                        .........……………………J.
                                        [RANJAN GOGOI]

New Delhi,
January 11, 2013.

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