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Wednesday, January 7, 2015

CRIMINAL APPEAL NOS.493-495 OF 2009 Inder Singh & Ors. .....Appellants Versus State of Rajasthan .....Respondent

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NOS.493-495 OF 2009

Inder Singh & Ors.                                       .....Appellants

      Versus

State of Rajasthan                                       .....Respondent

                                   W I T H

 Criminal Appeal Nos.1238 of 2009; 1239 of 2009; 1241 of 2009; 1194 of 2011;
                              and 1892 of 2011.


                               J U D G M E N T


SHIVA KIRTI SINGH, J.

All these  eight  appeals  arise  out  of  one  criminal  case  bearing  FIR
No.188/01 dated 10.09.2001  of  P.S.  Sunail,  Distt.  Jhalwada  (Rajasthan)
lodged by informant Amar Singh (P.W.15) against 29 named co-villagers.   All
the 29 accused persons were chargesheeted by the police.  After trial,  five
accused were acquitted and the rest 24 were convicted for various  offences.
 Five appeals preferred  by  22  convicts  were  disposed  of  by  a  common
judgment of the High Court dated 29.05.2008 which is impugned in 7  criminal
appeals - 6 of them lodged in 2009 and Criminal Appeal No.1892  of  2011  by
convict Kalu Lal lodged in 2011.  Two of the  convicts,  namely,  Ram  Singh
and Kesar Singh (accused nos.24 and  4  respectively)  approached  the  High
Court belatedly through jail appeals which  were  disposed  of  by  judgment
dated 10.03.2011 which is impugned  in  Criminal  Appeal  No.1194  of  2011.
Since all the matters arise out of one criminal case, they have  been  heard
together and are being disposed of by this common judgment.
Before  noticing  the  prosecution  case  and  the  main  defence   of   the
appellants, it is noted that out of  29  accused  who  were  put  on  trial,
accused nos.12, 15, 16, 22  and  23  (as  per  number  in  the  trial  court
judgment) were acquitted by the  trial  court.   The  High  Court  acquitted
accused no.17 whereas accused no.19 died during the pendency of  his  appeal
before the High Court.  The records show that accused no.8,  appellant  Maan
Singh has died during the pendency of his appeal before  this  Court.   Thus
presently there are 21 appellants who have been convicted of offences  under
Sections 302/149, 307/149, 147 and 148 of the IPC.  Accused nos.1, 2  and  3
have also been convicted for offences under Section  27  of  the  Arms  Act,
1959.  All have been awarded life imprisonment along  with  other  sentences
which are to run concurrently.
Before adverting to the prosecution case, it is also  useful  to  note  that
the occurrence is alleged to have taken place  on  10th  September  2001  at
06:45 p.m. in Village Dhodi, at a distance of 18  kms.  from  the  concerned
police station.  The statement of  informant  Ram  Singh  (P.W.15)  who  was
seriously injured, was recorded on the same date at 09:30 p.m.  in  presence
of his uncle Chen Singh (P.W.17), by SHO at Camp Dhodi and  formal  FIR  was
recorded on same date at 10:30 p.m.  The FIR was duly  communicated  to  and
seen by the Addl. Chief Metropolitan Magistrate on 11.09.2001.   There  were
29 accused persons named in the FIR, all residents of  Village  Dhodi.   The
four deceased who died on account of assault in the same occurrence as  well
as the injured informant and material eye witnesses, i.e., P.Ws.12, 14,  15,
17, 19 and 24 also belong to the same village.  The  genealogy  prepared  by
the defence and shown to us,  discloses  that  at  least  accused  no.8-Maan
Singh and his two sons accused nos.5  and  29  belong  to  the  same  larger
family as that of the four deceased and the injured  informant  Amar  Singh.
Accused no.8-Maan Singh happens to be brother of  deceased  no.2-Bapu  Singh
and deceased  no.4-Manohar  Singh  whereas  deceased  no.1-Inder  Singh  and
deceased no.3-Nagu Singh are sons  of  deceased  Manohar  Singh.   Informant
Amar Singh is son of deceased Bapu Singh.  The accused persons named in  the
FIR and chargesheeted by name never challenged their  identification  either
before the police or before  the  Magistrate.   Nor  there  was  any  cross-
examination of the  witnesses  on  the  point  of  identification  when  the
witnesses in their depositions have referred to the accused persons and  the
appellants by their name as well as village relationship.
According to the Parcha Bayan of Amar Singh (P.W.15) he was at his house  at
around 06:45 p.m. of 10.09.2001 and at that  time  he  heard  cries  of  his
cousin Inder Singh (deceased no.1)  from  the  side  of  a  field  known  as
'Patwari ka Khet'.  He came out of the house and saw his  uncle  Maan  Singh
(accused no.8) and 28 other named accused running behind Inder Singh.   They
were armed with sword, gun, country-made pistol, lathi  and  gandasi.   They
all together killed Inder Singh (deceased  no.1).   Then  they  ran  towards
informant (P.W.15) and caused a sword blow at the wrist of his  right  hand.
On his cries, his father Bapu Singh (deceased no.2) came running  to  rescue
the informant.  His uncle Maan Singh fired with his gun due  to  which  Bapu
Singh fell down and died in the khaal in presence of everybody.   His  uncle
Manohar Singh (deceased no.4) and his son Nagu Singh  (deceased  no.3)  also
came running to save them  but  the  accused  persons  assaulted  them  also
leading to their death.  Many persons  of  the  village  were  watching  the
incident.  The accused persons had registered cases of theft of water  motor
against deceased Inder Singh and he had  been  recently  released  from  the
jail custody.  The accused  had  declared  that  since  police  did  not  do
anything, now they would see Inder Singh.  There  was  an  existing  dispute
over land between the informant side and accused Maan Singh  and  for  these
reasons Maan Singh and his associates, armed with weapons had  caused  death
of four persons and had also  caused  injuries  to  the  informant  with  an
intention to kill him.  Informant claimed that  he,  his  uncle  Chen  Singh
(P.W.17), his mother (P.W.16) and his wife could save themselves  by  hiding
in the house.
During trial, 24 witnesses were examined on behalf of  the  prosecution  and
several documents were marked  as  Exhibits  P-1  to  P-149.   Defence  also
examined four witnesses and exhibited 21 documents marked  as  Exhibits  D-1
to D-21.  As noted earlier, after trial the learned  Special  Judge,  SC/ST,
Jhalawar, Rajasthan, vide  judgment  dated  13.02.2004  passed  in  Sessions
Trial No.123 of 2002 (13/2002), convicted 24 out of 29 accused  for  various
offences including offence under Section 302/149 of the IPC  for  which  all
were awarded rigorous imprisonment for life.  The trial court acquitted  the
appellants of charge under Section 120B of the IPC.  The  appeals  preferred
by the appellants before the Rajasthan  High  Court  at  Jaipur  Bench  were
dismissed leading to confirmation of their conviction and sentence.
On behalf of the appellants,  Mr.  Basant,  learned  senior  advocate  first
raised an issue  of  fact  relating  to  identification  of  all  appellants
because none of the material witnesses, i.e., P.Ws 12, 14, 15,  17,  19  and
24 have laid any specific claim in their examination-in-chief that they  can
identify the accused persons/appellants.  The submission  advanced  is  that
due to such lacuna,  the  appellants'  presence  and  participation  in  the
occurrence is not established and hence they deserve acquittal.  We find  no
merit in this contention in the light of salient facts noted  earlier  which
disclose that all the accused  persons/appellants  are  named  in  the  FIR.
They are co-villagers and well known  to  the  witnesses  and  challenge  to
their identification by name etc. was never raised by  the  accused  persons
at any stage of either the investigation or the trial.  The presence of  the
appellants and their identification flows out of the  fact  that  they  were
named in the earliest version of the occurrence disclosed  in  the  FIR  and
have been subsequently named by several of the witnesses in  course  of  the
trial with clear allegation that they were present and participated  in  the
occurrence in one  way  or  the  other  as  an  accused.   In  such  factual
background, the issue relating to identification raised  on  behalf  of  the
appellants is found to be without any substance.
On behalf of the appellants, several other issues of facts were also  raised
with a view to criticize the prosecution case and persuade us to  hold  that
the prosecution has failed to  prove  the  charges  against  the  appellants
beyond reasonable doubts.  The general  criticisms  are  that  the  six  eye
witnesses relied upon are interested and three of them, i.e.,  P.Ws  12,  14
and 24 are minors whose names were not disclosed in the FIR  that  they  had
also witnessed the occurrence.  It was also submitted  that  the  occurrence
took place in open field and was allegedly  witnessed  by  large  number  of
villagers but no  independent  witness,  unrelated  to  the  family  of  the
deceased  persons  has  been  examined  and,  therefore,  prosecution   case
deserves to be rejected.  It was also pointed  out  that  the  investigating
officer  could  not  recover  pellets  from  the  place  of  occurrence  and
ballistic report was not made available to corroborate use of fire  arms  by
some of the accused persons.  Our  attention  was  also  drawn  to  injuries
sustained by some of the accused persons and it  was  contended  by  learned
senior counsel for the appellants that in absence  of  any  explanation  for
the injuries on the side  of  the  accused  persons,  the  prosecution  case
deserves to be rejected.  In  support  of  this  proposition,  reliance  was
placed upon judgments of this Court in the case of Siri  Kishan  &  Ors.  v.
State of Haryana (2009) 12 SCC 757 and in the case of Lakshmi Singh  &  Ors.
v. State of Bihar (1976) 4 SCC 394.
Learned senior counsel also raised a serious  grievance  against  the  trial
court and the High Court judgment on  the  plea  that  they  had  failed  to
analyse the roles played by individual accused persons which,  according  to
learned counsel, was necessary for fastening the charges under  Section  302
and 307 IPC with the  aid  of  Section  149  IPC.   The  substance  of  this
contention was  that  unless  allegations  against  individual  accused  are
considered separately it will not be proper to hold that they were  actually
members of an unlawful assembly.   To  highlight  the  ambit  and  scope  of
Section 149 IPC and related issues, reliance was placed  by  learned  senior
counsel on the following judgments of this Court :
Kuldip Yadav & Ors. v. State of Bihar (2011) 5 SCC 324

Busi Koteswara Rao & Ors. v. State of Andhra Pradesh (2012) 12 SCC 711

Khairuddin & Ors. v. State of West Bengal (2013) 5 SCC 753


Lastly it was contended on behalf of appellants that  considering  the  fact
that all the accused were co-villagers of the witnesses and well known  from
before, the naming of some of the appellants by only few  of  the  witnesses
and not all should have been treated to be a  significant  factor  to  grant
acquittal on the basis of benefit of doubt.  Reliance was  placed  upon  the
judgment of this Court in the  case  of  Masalti  etc.  v.  State  of  Uttar
Pradesh AIR 1965 SC 202 wherein it has been held that no  doubt  trustworthy
evidence of a single witness may be enough to  convict  accused  persons  in
appropriate cases but where  a  criminal  court  is  dealing  with  evidence
pertaining to an offence involving large number of  offenders  and  a  large
number of victims, it is usual to adopt the test of support by two or  three
or more witnesses if they give a consistent account of  the  incident.   The
court approved such  a  test  after  noticing  that  it  may  appear  to  be
mechanical but its use in appropriate cases cannot be treated as  irrational
or unreasonable.  In order to assist this Court to apply such a test in  the
present case,  detailed  notes  and  charts  have  also  been  furnished  to
indicate individual cases of  appellants  in  respect  of  evidence  of  eye
witnesses appearing against them, their weapon and alleged specific role.
On the other hand, learned  counsel  for  the  informant  and  also  learned
counsel for the State have placed reliance upon  judgments  of  trial  court
and the High Court and have submitted that the oral as well  as  documentary
evidence has received due consideration by both the courts and in the  facts
of the case, no interference is required with  the  concurrent  findings  of
guilt recorded against the appellants.  It  was  highlighted  on  behalf  of
prosecution that when large number of accused  persons  had  run  after  the
deceased and indulged in indiscriminate  assault  resulting  into  death  of
four persons in open field  and  serious  injuries  to  the  informant,  the
witnesses cannot be expected to notice, remember and depose  the  individual
acts committed by different accused persons vis--vis the five victims.   It
was pointed out on behalf of  prosecution  that  medical  evidence  and  the
injuries have been correctly noted  by  the  trial  court  which  show  that
firearm injuries were found on as  many  as  three  deceased,  namely,  Nagu
Singh from whose dead body two pellets were recovered, one  from  the  wrist
of the left arm and one from the stomach; deceased Inder  Singh  from  whose
back part of the body 12 pellets were recovered and deceased Bapu Singh  who
was found to have sustained a gun shot injury  on  the  jaw  from  which  66
pellets were taken out along with a  plastic  circular  cap.   Pellets  were
also taken out from the brain.
Learned counsel for the informant and  the  State  also  submitted  that  no
doubt innocent bystanders or witnesses cannot be and should not be  included
in the list of accused as members of unlawful  assembly  and  the  court  is
required to be vigilant and aware of all the facts  showing  involvement  of
the accused persons -  from their conduct prior to as  well  as  during  and
after the occurrence.  Incriminating conduct will vary  from  case  to  case
and can be ascertained only in  the  peculiar  facts  of  each  case  having
regard to, inter alia, nature  of  conduct,  overt  act  and  possession  of
weapons, if any.  For this purpose, according  to  prosecution,  the  courts
below have analysed the ocular evidence in  detail  and  have  also  noticed
recovery of different weapons from the accused persons.  Therefore,  as  per
their  submission,  the   conviction   of   the   appellants   requires   no
interference.
On going through the entire evidence of material witnesses, other  materials
and judgment of the courts below, we find that since the number  of  accused
persons was quite large and they were bold and strong enough to  cause  four
deaths in the open field in presence of large number of persons,  it  cannot
be difficult to understand and appreciate as to  why  independent  witnesses
from the village who might have seen the occurrence, did not prefer to  come
out to support the prosecution.  But that will not take away from the  worth
of deposition of six  eye  witnesses  when  they  have  given  a  consistent
account of the occurrence which was disclosed in a nutshell soon  after  the
occurrence in the FIR lodged by P.W.15  who  was  seriously  and  critically
injured in the same occurrence and whose presence cannot  be  doubted.   If,
per chance, he would have been the sole witness, even then it may have  been
possible for the  courts  below  to  convict  the  accused  persons  on  his
testimony after testing its veracity in the light of his  earlier  statement
contained in the FIR.  In such a factual scenario,  we  find  no  reason  to
doubt the prosecution case if the I.O. failed to recover  pellets  from  the
open field which was the place of occurrence  or  if  he  could  not  obtain
ballistic report.  The  eye  version  account  of  the  occurrence  and  the
medical  evidence  showing  large  number  of  injuries  including   firearm
injuries support each other.  On this issue, the discussion and findings  of
the trial court against the accused persons  is  found  to  have  sufficient
merit.
The criticism that some of the accused had sustained injuries for which  the
prosecution has not offered any explanation has  rightly  been  rejected  by
the trial court because there is no counter version  or  even  a  suggestion
disclosing that any of  the  accused  had  received  injuries  in  the  same
occurrence and at the same place.  None of the persons allegedly injured  on
the side of the defence have lodged any  case  disclosing  where  and  under
what circumstances they sustained the injuries.  In the facts of  the  case,
in absence of any counter version and any plea of self-defence, it would  be
hazardous to presume at  the  instance  of  the  defence  that  the  accused
persons sustained the injuries in course of same occurrence and at the  same
place.  Only if these two ingredients were established,  the  defence  would
have been entitled to seek an explanation from the  prosecution  in  respect
of some injuries on three of  the  accused  persons.   Their  injuries  were
neither fatal nor they caused any threat to life and that also  reduces  the
burden upon the prosecution to explain injuries on the accused.  In view  of
above discussion, we are of the view that judgments  in  the  case  of  Siri
Kishan (supra) and Lakshmi Singh (supra) do not  help  the  appellants.   In
paragraph 12 of the judgment in the case of Lakshmi Singh (supra) the  court
had found that in the circumstances of that case there  could  be  no  doubt
that the accused must have received  grievous  injuries  in  course  of  the
assault.  In the case at  hand,  the  facts  are  different  and  hence  the
prosecution version cannot  be  disbelieved  on  account  of  some  injuries
allegedly sustained by some of the  accused,  namely,  Maan  Singh  (accused
no.8); Ram Prasad (accused no.28); and Bahadur Singh (accused no.29).
The main issue that now requires consideration is whether the  courts  below
have rightly applied Section 149 of  the  IPC  against  the  appellants  for
convicting them for the death of four persons and for murderous  assault  on
the informant.  The principle of law governing application  of  Section  149
IPC has been explained by this  Court  in  many  judgments  including  those
cited by learned senior counsel for the appellants.  In the case  of  Kuldip
Yadav (supra), the law was stated in paragraph 39 in the following words :
"39.  It is not the intention of the legislature in enacting Section 149  to
render every member of unlawful assembly  liable  to  punishment  for  every
offence committed by one or more  of  its  members.   In  order  to  attract
Section 149, it must be  shown  that  the  incriminating  act  was  done  to
accomplish the common object of unlawful assembly and it must be within  the
knowledge of other members as one likely to be committed in  prosecution  of
the common object.  If the members of the assembly knew  or  were  aware  of
the likelihood of a particular offence being  committed  in  prosecution  of
the common object, they would be liable  for  the  same  under  Section  149
IPC."

In the case of Busi Koteswara Rao (supra) the facts  showed  involvement  of
large number of persons and, therefore, while approving the  view  taken  in
the case of Masalti (supra) this Court cautioned  in  paragraph  11  of  the
judgment that the courts should be cautious in cases  of  arson  and  murder
where the number of accused is large, to rely  upon  the  testimony  of  the
witnesses speaking generally without specific reference to  the  accused  or
the specific role played by them.
Reliance placed by appellants on the judgment in  the  case  of   Khairuddin
(supra) is misplaced.  In that case, as paragraphs 12, 13 and  14  disclose,
overt act of assault  was  found  proved  against  five  appellants  grouped
together and hence  their  conviction  was  affirmed  whereas  against  some
others included in a  different  group  it  was  found  that  there  was  no
evidence showing that they were either present on the spot  or  participated
in the occurrence.  In the  case  at  hand,  the  finding  on  appraisal  of
evidence is different.
The ingredients of Section 149 IPC require presence of an unlawful  assembly
which is defined under Section 141 of the IPC as  an  assembly  of  five  or
more persons, if the common object of the persons  composing  that  assembly
is any of the five objects fully enunciated in  Section  141  of  IPC.   The
third object is - "to commit any mischief  or  criminal  trespass  or  other
offence."  The explanation to Section 141 clarifies that an  assembly  which
was not unlawful when it assembled,  may  subsequently  become  an  unlawful
assembly.  As per Section 149,  even  if  any  one  member  of  an  unlawful
assembly commits an offence in prosecution of  the  common  object  of  that
assembly, every person who at the time of committing of that offence  was  a
member of the unlawful assembly is guilty of that offence.
Since it was vehemently contended that courts below have not  applied  their
mind as to whether the appellants were members of an  unlawful  assembly  or
not, it is our duty to remind ourselves of the law on the  subject.   It  is
settled law, as held in the case of Roy Fernandes v. State  of  Goa  &  Ors.
(2012) 3 SCC 221, that to determine the  existence  of  common  object,  the
court is required to see the circumstances in which the incident  had  taken
place, the conduct of members of unlawful assembly as well as the weapon  of
offence they carried or used on the spot.  It is also  established  law,  as
held in the case of Ramchandran & Ors. v. State of Kerala (2011) 9 SCC  257,
that common object may form on spur of the moment.  Prior concert by way  of
meeting of members of unlawful assembly is not necessary.
In that view of settled law, the facts of the present  case  as  alleged  in
the FIR and as proved in the court leave no manner of doubt that  the  group
of persons who chased deceased no.1-Inder Singh and  caused  his  death  and
thereafter chased,  surrounded  and  caused  death  of  three  more  persons
besides causing  grievous  injuries  to  the  informant-Amar  Singh  was  an
assembly of five or more persons rightfully deserving to  be  designated  as
an unlawful assembly because by its action it showed that its common  object
was to commit offence.  The subsequent acts clearly show that  the  unlawful
assembly carried out its common object  of  committing  serious  offence  of
murder of four persons and grievous injuries to the informant.
This Court, therefore, finds that the courts below  committed  no  error  in
applying Section 149 of the IPC and convicting the members of  the  unlawful
assembly for offences under Sections 302 and 307 of the IPC  (with  the  aid
of Section 149 IPC).  Some argument was advanced on there being lack of  any
clear motive but that is not at all necessary or material when the  offences
have been proved by clear and cogent evidence including eye-witnesses.
So far as the principle of caution as enunciated  in  the  case  of  Masalti
(supra) is concerned, we find ourselves in  agreement  with  the  submission
advanced by learned senior counsel Mr. Basant that in the peculiar facts  of
the case, the courts below should  have  further  decided  as  to  how  much
corroboration was required for accepting the presence and  participation  of
individual accused person.  The informant had though claimed presence of  29
persons but subsequently five were acquitted by the trial court and one  was
acquitted by the High Court.  On this issue, on  going  through  the  charts
disclosing  number  of  witnesses  who  have  deposed   against   individual
appellants to show their presence, participation, weapon and overt  act,  if
any,  we  find  that  the  test  approved  in  Masalti's  case  (supra)  and
subsequently followed in several other cases  including  the  case  of  Busi
Koteswara Rao (supra) needs to be  followed  in  this  case  also.   In  the
latter judgment in paragraph 13 the law on the subject  has  been  expounded
in very clear terms :

"13. It is clear that when a  criminal  court  has  to  deal  with  evidence
pertaining to the commission of an  offence  involving  a  large  number  of
offenders and a large number  of  victims,  the  normal  test  is  that  the
conviction could be sustained only  if  it  is  supported  by  two  or  more
witnesses who give a consistent account of the incident in question."

Since the accused persons and the 6 material eye witnesses in this case  are
co-villagers, it is expected that at least three witnesses should  be  in  a
position to name individual accused persons for sustaining  his  conviction.
Applying that test, it is found that  accused  no.9-Bhagwan  Singh,  son  of
Prabhu Lal; accused no.18-Suresh Kumar, son of Ram  Dhakad;  accused  no.20-
Kanhi Ram, son of Prabhu Lal; accused  no.27-Prahlad  Singh,  son  of  Nathu
Lal; and accused no.28-Ram Prasad, son of Bheru Lal deserve to be  acquitted
by granting benefit of doubt.  This benefit of doubt arises in their  favour
because although they have been named specifically by  informant  P.W.15  as
persons who were members of the unlawful assembly and  who  participated  in
assault but such claim of the informant has not been supported by more  than
one witness.  In other words, there is  no  clear  and  cogent  evidence  of
three witnesses against the aforesaid accused persons.  So  far  as  accused
no.28-Ram Prasad is concerned, no doubt his name has been  taken  by  P.W.12
and P.W.24 also but they have  not  specified  as  to  whether  it  was  Ram
Prasad, son of Bheru Lal or another accused by the same name,  i.e.  accused
no.25-Ram Prasad, son of Jeth Ram.
The appeals preferred by the  aforesaid  five  appellants,  namely,  Bhagwan
Singh, son of Prabhu Lal (appellant no.3 in Crl. Appeal  No.1239  of  2009);
Suresh Kumar, son of Ram Dhakad (appellant no.3 in  Crl.  Appeal  No.493  of
2009);  Kanhi Ram, son of Prabhu Lal (appellant no.4 in Crl. Appeal  No.1239
of 2009); Prahlad Singh, son of Nathu Lal (sole  appellant  in  Crl.  Appeal
No.1241 of 2009); and Ram Prasad, son of Bheru Lal (appellant no.4  in  Crl.
Appeal No.493 of 2009) are allowed.  They are granted benefit of  doubt  and
acquitted of all the charges.  The appeals of remaining  16  appellants  are
dismissed.  If on bail, their bail bonds  shall  stand  cancelled  and  they
shall be taken into custody forthwith to serve out  the  remaining  sentence
in accordance with law.


                             .....................................J.
                             [M.Y. EQBAL]


                             ......................................J.
                                  [SHIVA KIRTI SINGH]
New Delhi.
January 06, 2015.
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