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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELATE JURISDICTION
Criminal Appeal Nos. 1262-1264 of 2010
Bharat Soni etc. … Appellants
Versus
State of Chhatisgarh …Respondent
WITH
Criminal Appeal No. 1873 of 2011
J U D G M E N T
RANJAN GOGOI, J.
Four of the seven accused persons whose conviction under Section 302
IPC and the sentence of life imprisonment has been affirmed by the High
Court of Chhattisgarh have filed the instant appeals challenging Judgment
and Order dated 30th November, 2009 of the High Court. We have heard
the learned counsels for the appellants as well as the learned counsel for
the State.
2. The short case of the prosecution is that on 05.12.2000 at about
8.55 p.m., Santosh (PW-4) lodged a FIR in the Ambikapur Police Station
stating that a short while ago i.e. at about 8.40 p.m. while he was
standing in front of his house alongwith deceased Vinod and Amit (PW-13),
accused Gopi Ghasia(A-6) and Ranu(A-5) had come there in a state of
intoxication. According to the first informant, an altercation took place
in the course of which he as well as Vinod had slapped accused Gopi.
Enraged, the accused persons went away threatening to kill them. According
to the first informant, after about an hour, the four accused appellants.
i.e. Bharat, Dhruv, Sanjay and Rupesh accompanied by accused Ranu, Gopi and
Jitender came to the place armed with different kinds of dangerous
weapons. Specifically it was mentioned that accused Gopi had come armed
with a Nepali Khukhri; accused Ranu had a knife with him whereas accused
Jitender was armed with a Nan Chaku. In so far as accused Bharat and Dhruv
are concerned, it was claimed by the first informant that while the former
was armed with an iron rod, accused Dhruv had carried a leather belt in his
hand. In the FIR it was further alleged that accused Ranu had assaulted
the first informant Sanjay (PW-4) with a knife but he had escaped without
any serious injuries. However, accused Gopi and Ranu gave knife blows to
the deceased Vinod on his chest and stomach whereas accused Dhruv and
Bharat had assaulted Amit Kashyap (PW-13) with the belt and iron rod that
they had carried. According to the first informant, accused Rupesh and
Sanjay had instigated the other accused to kill the deceased Vinod. Due to
the assault committed on Vinod, he had sustained injuries for which reason
he had to be taken to the hospital.
3. On receipt of the FIR a case under Sections 147,148, 149 and 307 of
the IPC was registered. However as the injured Vinod died at about 9.15
p.m. on the same night, the offence under Section 302 was added in the FIR.
The crime alleged was duly investigated and on completion thereof all the
seven accused were charge sheeted under Section 147, 148, 302/149 of IPC.
Thereafter, the case was committed for trial to the court of sessions and
charges under Sections 147, 148, 302/149 IPC were framed against the
accused persons. As the accused claimed innocence a regular trial was held,
at the conclusion of which all the seven accused were found guilty of the
charge under Section 147, 148, 302/149 IPC. They were accordingly
sentenced. The separate appeals filed by the seven accused before the
High Court having been dismissed by the impugned order dated 30.11.2009,
the accused Bharat, Dhruv, Sanjay and Rupesh have challenged the aforesaid
order of the High Court in the appeals filed by them before this Court.
4. Before adverting to the core legal issue arising in the present
appeals, namely, the liability of the accused appellants for the offence
under Section 302 IPC on the basis of their constructive liability, if any,
under Section 149 IPC, it will be necessary to notice, though very briefly,
the salient part of the evidence adduced by the prosecution in support of
the charges levelled.
5. Of the fifteen witnesses examined by the prosecution, the evidence of
Sonu Kewat (PW-1), Suraj Dass (PW-2), (though declared hostile), Ram Naresh
(PW-3), Prakash Suryavanshi (PW-5), Imtiaz Ali (PW-6) and Dr. S.K. Sinha
(PW-7) would be relevant. Equally, the evidence of (PW-4) and PW-13 who
had been examined as the eye-witnesses to the incident will have to be
noticed in some details.
6. From the deposition of PW-1, PW-2, PW-3 and PW-5, it transpires that
the aforesaid witnesses had come to the place of occurrence on hearing the
commotion that had taken place. The said witnesses, without any major
discrepancies or contradictions, have narrated that on reaching the place
of occurrence they could see the deceased Vinod lying injured and all the
seven accused fleeing away therefrom. However, two of the accused, namely,
Dhruv and Bharat were apprehended by the persons who had gathered at the
place of occurrence, having come there on hearing the commotion that had
taken place. It may be noticed, at this stage, that in so far as the
identity of the accused is concerned, no issue has been raised on behalf of
the accused at any point of time.
7. Imtiyaz Ali (PW-6) is a witness to the recovery of the alleged
weapons of assault. All such recoveries were made at the instance of the
accused persons. Specifically, PW-6 has deposed that on the basis of the
statement of accused Jitender a Nan Chaku (Ex.P-7) was recovered. At the
instance of accused Gopi and Ranu a Nepali Khukri and a Gupti (Ex.P-8 and
Ex.P-11 respectively) was recovered. Similarly, on the basis of the
statement of accused Dhruv and Bharat a leather belt and an iron rod (Ex.P-
14 and Ex.P-15) were recovered.
8. Dr. S.K. Sinha (PW-7) M.O. District Hospital, Ambikapur who had
conducted the post mortem of the deceased Vinod had proved the report of
post-mortem (Ex.P-26). This witness had deposed that corresponding to one
of the external injuries found i.e. an incised wound over the abdominal
wall below the umbilicus, internal injuries cutting the diaphragm and lower
lobe of the right and left lung were found by him on the person of the
deceased.
9. PW-4 who was examined as an eye-witness had deposed that all the
seven accused persons, including the four appellants, had come together to
the place of occurrence at about 8.40 pm on 05.12.2000. This witness had
specifically deposed that accused Bharat, who was armed with a Gupti, had
assaulted the deceased in the stomach with the said weapon. However, in the
FIR filed by him, he had stated that accused Bharat was armed with an iron
rod. Similarly in his deposition, PW-4 had stated that accused Dhruv was
also holding a Gupti whereas in the FIR it had been mentioned that the said
accused was armed with a leather belt. In a similar manner, though in the
FIR accused Sanjay and Rupesh had been alleged to be the persons who were
instigating the others to kill Vinod, in his deposition in court PW-4 had
stated that he had seen the accused Sanjay assaulting the deceased in the
thigh with a Gupti. In so far as accused Rupesh is concerned PW-4 had not
implicated the said accused in any manner at all while deposing in court.
Similarly, PW-4 had not implicated accused Jitender his evidence in court
though in the FIR filed he had specifically mentioned that accused Jitender
was armed with a Nan Chaku. In so far as the accused Gopi and Ranu is
concerned PW-4 has, however, been consistent in the alleged involvement of
the said two accused both in the FIR as well as in the deposition tendered
in Court.
10. On the other hand, Amit Kashyap (PW 13), had deposed that the
accused persons, including the present appellants, were assaulting
(beating) Vinod with hands and fists and were also kicking him. However,
when he (PW-13) along with others had rushed towards Vinod to save him, the
accused persons took out the Guptis that they were carrying and started
assaulting the deceased with the said weapons. Specifically, PW-13 had
stated that accused Ranu had stabbed the deceased with a dagger on the
stomach and the accused Jitender had also inflicted a Gupti blow though he
could not see the particular part of the body of the deceased on which the
Gupti blow was inflicted by the accused Jitender.
11. Furthermore, reading the evidence of PW-13 it is clearly discernible
that the said witness has tried not to involve the accused Bharat in the
incident. The motive for the same, as evident from the cross-examination
of PW-13, is some relationship between the two i.e. PW-13 and accused
Bharat. Specifically, PW-13 had stated that he had not seen Bharat
committing any assault on the deceased and that he was also not sure as to
whether Bharat had accompanied the other accused persons and also whether
he was holding any weapon at all. PW-13 has also given a different sequence
of the arrival of the seven accused persons at the place of occurrence. In
this regard he had stated that while five accused had arrived together,
accused Bharat arrived at the place of occurrence thereafter and the last
to arrive was the accused Sanjay.
12. Having noticed the essential features of the evidence tendered by
the prosecution witnesses we may now proceed to examine the liability of
the accused appellants, all or any of them, on the principle of vicarious
or constructive liability under Section 149 of the IPC. The aforesaid
provision of the IPC is in the following terms:
“149. Every member of unlawful assembly guilty of offence committed in
prosecution of common object – If an offence is committed by any
member of an unlawful assembly in prosecution of the common object of
that assembly, or such as the members of that assembly knew to be
likely to be committed in prosecution of that object, every person
who, at the time of the committing of that offence, is a member of the
same assembly, is guilty of that offence.”
13. An assembly of five or more persons having as its common object any
of the five objects enumerated under Section 141 of the IPC is deemed to be
an unlawful assembly. Membership of an unlawful assembly is itself an
offence punishable under Section 143 whereas other species of the said
offence are dealt with under Sections 143 to 145 of the IPC. Similarly,
Sections 146 to 148 of the IPC deals with the offence of rioting which is
defined to be use of force or violence by any member thereof. Section 149
makes every member of an unlawful assembly liable for offence that may be
committed by any member of the unlawful assembly in prosecution of the
common object of that assembly or for commission of any offence that the
members of the assembly knew to be likely to be committed in prosecution of
the common object of the assembly.
14. Section 149 IPC, therefore, engrafts a principle of vicarious or
constructive liability inasmuch as a person would be guilty of an offence,
though he may not have directly committed the same if as a member of an
unlawful assembly he had shared a common object with the other members to
commit such an offence or if he knew that such offence was likely to be
committed in prosecution of the common object of the assembly of which he
was a member.
15. The purport and effect of the provisions of Section 149 IPC has
received the consideration of this court on more than one occasion. Without
referring to any particular or specific precedent available on the point,
it would suffice to say that determination of the common object of an
unlawful assembly or the determination of the question whether a member of
the unlawful assembly knew that the offence that was committed was likely
to be committed is essentially a question of fact that has to be made
keeping in view the nature of the assembly, the arms carried by the
members and the behaviour of the members at or near the scene and a host
of similar or connected facts and circumstances that cannot be entrapped by
any attempt at an exhaustive enumeration.
16. In Dani Singh Vs. State of Bihar[1] the meaning of the word “common
object” had been considered by this Court. The relevant part of the
discussion may be summarized up below:
11.......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......
12......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. What the common object of the unlawful assembly is
at a particular stage of the incident is essentially a question
of fact to be determined, keeping in view the nature of the
assembly, the arms carried by the members, and the behaviour of
the members at or near the scene of the incident.....
13......An object is entertained in the human mind, and it being
merely a mental attitude, no direct evidence can be available
and, like intention, has generally to be gathered from the act
which the person commits and the result therefrom. Though no
hard-and-fast rule can be laid down under the circumstances from
which the common object can be culled out, it may reasonably be
collected from the nature of the assembly, arms it carries and
behaviour at or before or after the scene of incident.....”
17. In a recent decision of this court in Kuldip Yadav Vs. State of
Bihar[2] to which one of us (Justice Sathasivam) was a party, the principle
of constructive liability under Section 149 IPC had once again received an
elaborate consideration. In paragraph 39 of the judgment it was held that:
“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 lawful assembly and it
must be within the knowledge of other members as one likely to be
committed in prosecution of the common object.”
18. In para 40 of the judgment an earlier decision in Rajendra Shantaram
Todankar Vs State of Maharashtra[3] was noticed, particularly, the opinion
that ....”It is difficult indeed, though not impossible, to collect direct
evidence of such knowledge. An inference may be drawn from circumstances
such as the background of the incident, the motive, the nature of the
assembly, the nature of the arms carried by the members of the assembly,
their common object and the behaviour of the members soon before, at or
after the actual commission of the crime.”
19. Having enumerated the principles of law governing the application of
the principle of constructive liability under Section 149 IPC, it will now
be necessary to apply the said principles to the facts of the present case
as disclosed by the evidence on record.
20. The presence of the accused appellants along with the other accused
at the place of occurrence and at the time and date as claimed by the
prosecution is not in dispute. It is also not in doubt that the two of the
accused i.e. Gopi and Ranu (not before us) had an altercation with Santosh
(PW-4) and the deceased Vinod about an hour earlier to the incident and
that the two accused had left the place threatening that they would come
back to kill Santosh (PW-4) and Vinod. Thereafter, all the seven accused
had come armed with weapons. From the evidence of the prosecution witness
it transpires that some of the accused had attacked Santosh (PW-4) and Amit
(PW-13) who were present at the spot besides assaulting the deceased Vinod
in the stomach with sharp weapons resulting in his death. From the
evidence of PW-1, PW-2, PW-3 and PW-5 it clearly transpires that all the
seven accused, after the incident, were seen trying to flee away from the
place of occurrence and, in fact, two of the accused i.e. Dhruv and Bharat
(Appellants before us) were apprehended by the persons present at the spot.
21. As against the above, what we find is several serious contradictions
in the evidence of PW-4 and the previous statement made by him in the FIR.
The discrepancies are too significant to be ignored. As the details in
this regard have already been noticed the same need not be repeated.
Suffice it will be to say that such discrepancies in the evidence of PW-4
relate to vital aspects of the case, namely, the weapons carried by the
accused persons; who amongst the accused had assaulted the deceased and the
weapon(s) used. On the other hand, from the evidence of PW-13 it transpires
that the accused persons were initially assaulting the deceased with their
hands and fists and were giving him blows and kicks. It is only at a later
stage i.e. when PW-13 and others had rushed to save Vinod that accused
persons are reported to have taken out the weapons they were carrying i.e.
guptis. Specifically PW-13 had implicated only accused Jitender and Ranu
(not appellants) as the persons who had inflicted knife and gupti blows on
the deceased though he had stated that he could not see the specific
part(s) of the body of the deceased on which assault was committed by the
accused Jitender.
22. From the above it is clear that not only the testimony of PW-4 is
self contradictory, the versions of the two eye-witnesses in so far as the
involvement of the accused-appellants is concerned is at variance with each
other. Insofar as accused Rupesh is concerned he has hardly been implicated
and the prosecution evidence, properly read, would seem to show that he was
a mere passive onlooker. Also, PW-13 is wholly silent with regard to the
involvement of any of the four accused appellants before this Court. In
fact, PW-13 had gone to the extent of stating that the accused Bharat may
not have accompanied the other accused to the place of occurrence and he
was in fact not holding any weapon at all. The recovery of the alleged
weapons at the instance of the accused, if the oral evidence of PW-4 and PW-
13 is to be excluded, will not be sufficient to convict the accused
appellants under Section 149. The incident of the accused fleeing away
from the place of occurrence, similarly, will not be conclusive and
determinative of the liability of the accused for the substantive offence
under section 302 with the aid of section 149 IPC. There is no convincing
and consistent evidence of any individual overt act on the part of any of
the accused appellants to implicate any or all of them for causing the
fatal injuries on the body of the deceased. Having considered the evidence
brought by the prosecution, as discussed above, we are of the view that it
cannot be reasonably inferred that the accused appellants, as members of an
unlawful assembly, had any common object to commit the offence of murder of
the deceased Vinod. Neither, the accused can be attributed with the
knowledge that the offence of murder was likely to be caused or to occur in
prosecution of the common object. At best what can be said and held is
that the common object of the assembly of the accused was to teach PW-4 and
the deceased Vinod a lesson on account of the previous altercation that had
taken place in the course of which PW-4 and the deceased had slapped one of
the accused, i.e. Gopi. The accused persons, including the present
appellants, as members of the unlawful assembly were committed and in fact
had indulged in the use of force in prosecution of the aforesaid common
object. The same would, however, render the accused appellants liable only
for the offence under Section 147 and 148 of the IPC for which they have
already been convicted by the learned trial court as also by the High
Court.
22. We are, therefore, of the view that while maintaining the conviction
of the appellants under Section 147and 148 of the IPC and the sentence
imposed they are entitled to be acquitted for the offences under Section
302 read with Section 149 IPC. If the accused appellants have already
served the sentence for the offences under Section 147 and 148 of the IPC
we direct that, unless their custody is required in connection with any
other case, the accused appellants be set at liberty forthwith. The
Judgment and Order of the High Court is modified accordingly and the
appeals are partly allowed to the extent indicated above.
...…………………………J.
[P. SATHASIVAM]
.........……………………J.
[RANJAN GOGOI]
New Delhi,
November 22, 2012.
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[1] (2004) 13 SCC
[2] (2011) 5 SCC 324
[3] (2003) 2 SCC 257
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