REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2279 OF 2009
Ramanlal and Anr. …Appellants
Versus
State of Haryana …Respondent
WITH
CRIMINAL APPEAL NO.1351 OF 2010
Bhagat Singh and Anr. ...Appellants
Versus
State of Haryana ...Respondent
J U D G M E N T
T.S. THAKUR, J.
1. These two appeals by special leave assail a common judgment and order
dated 7th May, 2009 passed by a Division Bench of the High Court of Punjab
and Haryana at Chandigarh whereby Criminal Appeal No.631 of 2000 filed by
the appellants challenging their conviction for offences punishable under
Sections 323, 325, 302 read with Section 149 of the IPC has been dismissed
and the sentence of life imprisonment awarded to each one of them by the
trial Court affirmed.
2. The prosecution case in a nutshell is that on 2nd July, 1998 at about
10 O’ clock in the morning Ved Pal and his brother Gopal, now deceased,
were watering their fields in village Doongriwala, district Faridabad in
the State of Haryana. At about 12.00 noon Jai Pal, son of Nihar Singh
entered their field in which the two brothers had grown their paddy crop.
Deceased-Gopal appears to have objected to Jai Pal’s trespass into the
paddy crop to which objection Jai Pal gave an abusive reply insisting that
he would pass through the paddy crop regardless of Gopal’s objection. While
this altercation was going on between deceased-Gopal and Jai Pal, 10 to 12
persons appeared on the spot armed with lathis, pharsas and ballams. They
included Har Chand, Digamber and Bhagat Singh sons of Jairam; Rajbir, Lal
and Bhola sons of Har Chand; Jagdish son of Girraj; Rattan Lal son of
Jagdish; Naresh and Rajkumar sons of Ramesh all Jats by caste and residents
of village Doongriwala. They are alleged to have given a lalkara to
eliminate Ved Pal and deceased Gopal and assaulted both of them causing
several injuries including an injury on the head of the deceased-Gopal that
felled him to the ground. The injured were removed to the hospital at Hodal
for treatment where Ved Pal made a statement which was made before ASI
Narain Singh that led to the registration of a case against the persons
aforementioned for offences punishable under Sections 148, 149, 323 and 307
of the IPC. With Gopal succumbing to the injuries in the Escorts Hospital
at Faridabad, the offence under Section 307 of the IPC was converted into
one of murder punishable under Section 302 of the IPC. Investigation by the
police led to the arrest of accused Har Chand, Digambar and Jagdish on 3rd
July, 1998. Several recoveries from the accused persons are said to have
been made in the course of investigation which culminated in filing of a
charge-sheet against ten persons in all excluding Bhagat Singh son of Jai
Ram who even though named in the FIR, was found innocent while Jai Pal
being a juvenile was referred to the Juvenile Court at Faridabad. The net
result was that nine out of those named in the FIR only were eventually
committed to face the trial before the Additional Sessions Judge at
Faridabad for offences under Sections 148, 323, 325 and 302 read with
Section 149 of the IPC. At the trial, Bhagat Singh son of Jai Ram was also
added as an accused under Section 319 of the Cr.P.C, taking the number of
those accused to face the trial to ten in all.
3. In support of its case, the prosecution examined as many as ten
witnesses. These included the first informant Ved Pal examined as PW-1;
Prakash examined as PW-2; Kishan Singh examined as PW-3; Satbir Singh
examined as PW-4 and Drs. HK Mishra, VR Gupta and SP Jayant examined as PWs
5, 6 and 10 respectively. The remaining witnesses happened to be police
officials including the investigating officer. The accused did not lead any
evidence in defence. In their statements recorded under Section 313 of the
Cr.P.C., they alleged false implication. It was further alleged that Jai
Prakash and Har Chand alone were present on the spot at the time of the
incident and that the remaining nine accused persons had been falsely
implicated. Their further case was that on the fateful day Jai Pal was
watering his fields when deceased Gopal tried to commit sodomy upon him.
Har Chand noticed this attempt of the deceased and objected to it,
whereupon deceased Gopal inflicted a lathi blow upon the person of Har
Chand. Har Chand, in exercise of the right of private defence and with a
view to rescuing Jai Pal, inflicted a lathi blow on deceased Gopal, while
Jai Pal caused injuries to Ved Pal in the incident.
4. The Trial Court appraised the evidence adduced by the prosecution and
came to the conclusion that the depositions of PW1-Ved Pal and PW2-Prakash
were completely reliable. The Trial Court rejected the contention urged on
behalf of the accused persons that the delay in the lodging of the FIR was
not satisfactorily explained or that the prosecution ought to suffer on
account of its failure to explain the injuries sustained by the accused
persons. The Trial Court also rejected the contention that there was no
motive for the commission of the offence or that there was any
contradiction between the medical and ocular evidence led in the case. The
Trial Court on that reasoning sentenced all the ten accused persons
arraigned before it to undergo imprisonment for life under Section 302 of
the IPC and a fine of Rs.5,000/- each. In default of payment of fine, they
were directed to undergo further rigorous imprisonment for a period of one
year each. They were also sentenced to under rigorous imprisonment for a
period of one year and a fine of Rs.1,000/- with a default sentence of
three months each under Section 325 of the IPC. For the offences punishable
under Sections 323 and 148 of the IPC the accused were sentenced to pay a
fine of Rs.1,000/- each. No default sentence in regard to those offences
was, however, awarded.
5. Aggrieved by the conviction and sentence awarded to them, the
appellants filed Criminal Appeal No.631 of 2000 before the High Court of
Punjab and Haryana at Chandigarh, which was disposed of along with Criminal
Revision No.345 of 2001 filed by Ved Pal-the first informant by a common
judgment and order impugned in these appeals. The High Court upon a
reappraisal of the evidence adduced at the trial came to the conclusion
that the appeal filed by Digamber, Rajbir, Lala, Bhola, Jagdish and Raj
Kapoor deserved to be allowed, while the same deserved dismissal qua Har
Chand, Raman Lal, Naresh and Bhagat Singh. That is precisely the backdrop
in which Har Chand, Raman Lal, Naresh and Bhagat Singh are before us in
these appeals by special leave assailing their conviction and the sentence
awarded to them.
6. On behalf of the appellants it was argued that the courts below had
fallen in error in convicting the appellants by placing an implicit
reliance upon the depositions of PW1-Ved Pal and PW2-Prakash and in the
process, ignoring the defence version about the genesis of the incident.
It was contended that the incident had occurred on account of an attempted
act of sodomy by the deceased upon Jaipal to which the appellant-Har Chand
had objected resulting in lathi blows being inflicted by the two sides
rivals to each other. The argument needs notice only to be rejected. We
say so because there is nothing in the evidence to probablise the defence
version that the incident in question had taken place on account of an
attempt on the part of Gopal to sodomise Jaipal. There are no tell tale
signs of any such attempt having been made. Not only that, the defence has
not taken care to examine Jaipal the alleged victim of the attempted act as
a witness to prove that any such attempt was at all made by the deceased-
Gopal. We have, therefore, no hesitation in rejecting the argument that the
defence version was a probable version which could not be given credence.
The courts below have, in our opinion, rightly rejected the defence version
for which there was no factual foundation whatsoever in the evidence.
7. It was next argued by learned counsel for the appellants that with
the acquittal of 6 out of 10 accused persons, the charge that the
appellants constituted an unlawful assembly ought to fail and as an
inevitable consequence thereof, the conviction of the appellants for murder
with the help of Section 149 of the IPC rendered unsustainable. It was
contended that acquittal of other accused persons alleged to be members of
the unlawful assembly, implied that the said accused had been falsely
implicated in the case or that they, even if physically present on the spot
as alleged, did not share the common object of the convicted accused.
8. Section 141 of the IPC defines unlawful assembly as under:
“141. Unlawful assembly.—An assembly of five or more persons is designated
an “unlawful assembly”, if the common object of the persons composing that
assembly is—
(First) — To overawe by criminal force, or show of criminal force, 1[the
Central or any State Government or Parliament or the Legislature of any
State], or any public servant in the exercise of the lawful power of such
public servant; or
(Second) — To resist the execution of any law, or of any legal process; or
(Third) — To commit any mischief or criminal trespass, or other offence; or
(Fourth) — By means of criminal force, or show of criminal force, to any
person, to take or obtain possession of any property, or to deprive any
person of the enjoyment of a right of way, or of the use of water or other
incorporeal right of which he is in possession or enjoyment, or to enforce
any right or supposed right; or
(Fifth) — By means of criminal force, or show of criminal force, to compel
any person to do what he is not legally bound to do, or to omit to do what
he is legally entitled to do.
Explanation.—An assembly which was not unlawful when it assembled, may
subsequently become an unlawful assembly.”
9. In terms of Section 149 of the IPC every member of an unlawful
assembly is guilty of the offence committed by any other member of the
assembly in prosecution of the common object. Section 149 of the IPC
reads:
“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.”
10. The question is whether acquittal of some of the accused persons
reducing the number of those convicted to less than 5 has the effect of
taking the case out of the purview of Section 149 (supra). A Constitution
Bench of this Court has in Mohan Singh v. State of Punjab[1] examined
that question and authoritatively answered the same. The prosecution story
in that case also was that on the date of the incident 5 accused persons
composed an unlawful assembly and that in prosecution of the common object
of the said assembly, they committed rioting while armed with deadly
weapons. The prosecution alleged that in pursuance of the common object of
the assembly Gurdip Singh was murdered and injuries caused to Harnam Singh.
The prosecution alleged that although the fatal injury was inflicted by
only one of the accused persons on Gurudip Singh’s head since the same was
in prosecution of the common object of unlawful assembly, all those who
were members of the assembly were guilty under Section 302 read with
Section 149 of the IPC. On behalf of the defence it was argued that the
constructive criminal liability under Section 149 did not arise once two of
the accused who were alleged to be members of that assembly were acquitted
thereby reducing the number comprising the assembly to three persons only.
This Court while dealing with that contention conceived of three possible
situations and the legal position applicable to each one of such
situations. This Court observed:
“8. The true legal position in regard to the essential ingredients of an
offence specified by s. 149 are not in doubt. Section 149 prescribes for
vicarious or constructive criminal liability for all members of an unlawful
assembly where an offence is committed by any member of such 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. It would thus be noticed that one of the
essential ingredients of section 149 is that the offence must have been
committed by any member of an unlawful assembly, and S.141 makes it clear
that it is only where five or more persons constituted an assembly that an
unlawful assembly is born, provided, of course; the other requirements of
the said section as to the common object of the persons composing that
assembly are satisfied. In other words, it is an essential condition of an
unlawful assembly that its membership must be five or more. The argument,
therefore, is that as soon as the two Piara Singhs were acquitted, the
membership of the assembly was reduced from five to three and that made S.
141 inapplicable which inevitably leads to the result that S. 149 cannot be
invoked against the appellants. In our opinion, on the facts of this case,
this argument has to be upheld. We have already observed that the point
raised by the appellants has to be dealt with on the assumption that only
five persons were named in the charge as persons composing the unlawful
assembly and evidence led in the course of the trial is confined only to
the said five persons. If that be so, as soon as two of the five named
persons are acquitted, the assembly must be deemed to have been composed of
only three persons and that clearly cannot be regarded as an unlawful
assembly.”
9. In dealing with the question as to the applicability of S.149 in such
cases it is necessary to bear in mind the several categories of cases which
come before the Criminal Courts for their decision. If five or more persons
are named in the charge as composing an unlawful assembly and evidence
adduced by the prosecution proves that charge against all of them, that is
a very clear case where S.149 can be invoked. It is, however, not necessary
that five or more persons must be convicted before a charge under S.149 can
be successfully brought home to any members of the unlawful assembly. It
may be that less than five persons may be charged and convicted under
S.302/149 if the charge is that the persons before the Court, along with
others named constituted an unlawful assembly; the other persons so named
may not be available for trial along with their companions for the reason,
for instance, that they have absconded. In such a case, the fact that less
than five persons are before the Court does not make section 149
inapplicable for the simple reason that both the charge and the evidence
seek to prove that the persons before the court and others number more than
five in all and as Such, they together constitute an unlawful assembly.
Therefore, in order to bring home a charge under S.149 it is not necessary
that five or more persons must necessarily be brought before the court and
convicted. Similarly, less than five persons may be charged under s. 149 if
the prosecution case is that the persons before the Court and others
numbering in all more than five composed an unlawful assembly, these others
being persons not identified and so not named. In such a case, if evidence
shows that the persons before the Court along with unidentified and un-
named assailants or members composed an unlawful assembly, those before the
Court, can be convicted under section 149 though the unnamed. and
unidentified persons are not traced and charged. Cases may also arise where
in the charge, the prosecution names five or more persons and alleges that
they constituted an unlawful assembly. In such cases, if both the charge
and the evidence are confined to the persons named in the charge and out of
the persons so named two or more are acquitted leaving, before the court
less than five persons to be tried, then s. 149 cannot be invoked. Even in
such cases, it is possible that though the charge names five or more
persons is composing an unlawful assembly, evidence may nevertheless show
that the unlawful assembly consisted of some other persons as well who were
not identified and so not named. In such cases, either the trial court or
even the High Court in appeal may be able to come to the conclusion that
the acquittal of some of the persons named in the charge and tried will not
necessarily displace the charge under section 149 because along with the
two or three persons convicted were others who composed the unlawful
assembly but who have not been identified and so have not been named. In
such cases the acquittal of one or more persons named in the charge does
not affect the validity of the charge under section 149 because-on the
evidence the court of facts is able to reach the conclusion that the
persons composing the unlawful assembly nevertheless were five or more than
five. It is true that in the last category of cases, the court will have to
be very careful in reaching the said conclusion. But there is no legal bar
which prevents the court from reaching such a conclusion. The failure to
refer in the charge to other members of the unlawful assembly un-named and
unidentified may conceivably raise the point as to whether prejudice would
be caused to the persons before the Court by reason of the fact that the
charge did not indicate that un-named persons also were members of the
unlawful assembly. But apart from the question of such prejudice which may
have to be carefully considered, there is no legal bar preventing the court
of facts from holding that though the charge specified only five or more
persons, the unlawful assembly in fact consisted of other persons who were
not named and identified. That appears to be the true legal position in
respect of the several categories of cases which may fall to be tried when
a charge under section 149 is framed.”
(emphasis supplied)
11. To the same effect is the decision of this Court in Nagamalleswara
Rao (K) and Ors. v. State of Andhra Pradesh[2] where this Court observed:
“However, the learned Judges over-looked that since the accused who are
convicted were only four in number and the prosecution has not proved the
involvement of other persons and the courts below have acquitted all the
other accused of all the offences, section 149 cannot be invoked for
convicting the four appellants herein. The learned Judges were not correct
in stating that A1, A2, A5 and A11 "can be held to be the members of the
unlawful assembly along with some others unidentified persons’ on the facts
and circumstances of this case. The charge was not that accused 1, 2, 5 and
11 "and others’ or "and other unidentified persons" formed into an unlawful
assembly but it is that "you accused 1 to 15" who formed into an unlawful
assembly. It is not the prosecution case that apart from the said 15
persons there were other persons who were involved in the crime. When the
11 other accused were acquitted it means that their involvement in the
offence had not been proved. It would not also be permissible to assume or
conclude that others named or unnamed acted conjointly with the charged
accused in the case unless the charge itself specifically said so and there
was evidence to conclude that some others also were involved in the
commission of the offence conjointly with the charged accused in
furtherance of a common object.”
12. Applying the above principles to the case at hand, we are of the view
that the provisions of Section 149 of the IPC are no longer available to
the prosecution for convicting the appellants whose number is reduced to 4
consequent upon the acquittal of the remaining accused persons. The facts
of the case at hand are not covered by situations one and two referred to
in Mohan Singh’s case (supra). It is a case which, in our opinion, falls
more appropriately in situation three where the prosecution had named all
those constituting the unlawful assembly, but, only four of those named
were eventually convicted, thereby reducing the number to less than five.
There is no evidence to suggest that any one, apart from the persons named
in the charge-sheet were members of the unlawful assembly, but, were either
not available or remained unidentified. Such being the position, the
conviction of the appellants with the help of Section 149 of the IPC does
not appear to be legally sustainable.
13. The third and the only other submission made by learned counsel for
the appellants related to the nature of the offence committed by Har Chand,
the author of the fatal injury. It was urged that the incident in question
had taken place without any pre-meditation in a sudden fight because of a
sudden quarrel following Jai Pal’s insistence to enter the crop growing
field of the complainant. Injuries were caused by those involved in the
fight to each other. Appellant-Har Chand had not taken any undue advantage
nor had he acted in a cruel or unusual manner. The case, therefore, fell
within Exception 4 to Section 300 of the IPC. The fact that Har Chand had
inflicted a single injury on the head of the deceased-Gopal showed that
there was no intention to kill deceased-Gopal, other injuries inflicted by
the remaining accused being only simple in nature. The offence, according
to the learned counsel, could not, therefore, be graver than culpable
homicide not amounting to murder punishable under Section 304 Part-II of
the IPC.
14. The locus classicus on the interpretation of Sections 299 and 300 of
the IPC is the often quoted decision of this Court in Virsa Singh v. State
of Punjab[3] where Vivian Bose, J. speaking for the Court, explained the
ingredients that must be satisfied for a culpable homicide to amount to
murder. Dealing with clause ‘Thirdly’ under Section 300 of the IPC, the
Court explained the essentials of that clause in the following words:
“12. To put it shortly, the prosecution must prove the following facts
before it can bring a case under Section 300 ‘thirdly’;
First, it must establish, quite objectively, that a bodily injury is
present.
Secondly, the nature of the injury must be proved; These are
purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that
particular bodily injury, that is to say, that it was not accidental or
unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds
further and,
Fourthly, it must be proved that the injury of the type just described made
up of the three elements set out above is sufficient to cause death in the
ordinary course of nature. This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the offender.”
15. The Court then goes on to explain the third ingredient referred to
the above passage and makes the following observations which bring home the
essence of the third ingredient in simple words:
“The question is not whether the prisoner intended to inflict a serious
injury or a trivial one but whether he intended to inflict the injury that
is proved to be present. If he can show that he did not, or if the totality
of the circumstances justify such an inference, then, of course, the intent
that the section requires is not proved. But if there is nothing beyond the
injury and the fact that the appellant inflicted it, the only possible
inference is that he intended to inflict it. Whether he knew of its
seriousness, or intended serious consequences, is neither here nor there.
The question, so far as the intention is concerned, is not whether he
intended to kill, or to inflict an injury of a particular degree of
seriousness, but whether he intended to inflict the injury in question; and
once the existence of the injury is proved the intention to cause it will
be presumed unless the evidence or the circumstances warrant an opposite
conclusion.”
16. Applying the above to the case at hand, we have no difficulty in
holding that keeping in view the nature of the injury, the vital part of
the body on which the same was inflicted and the weapon used by the accused
appellant-Har Chand, and the medical evidence, that the said injury was
sufficient in the ordinary course to cause death, culpable homicide would,
in the case at hand, tantamount to murder but for the application of
Exception 4 to Section 300. The question, however, is whether Exception 4
really applies and, if so, whether the injury was inflicted with the
intention of causing death or of causing such bodily injury as is likely to
cause death. The circumstances of the case to which we have referred in
the earlier part of this judgment, however, leave no manner of doubt that
the incident was without any pre-meditation and a sudden fight upon a
sudden quarrel. The injuries upon the deceased were inflicted in the heat
of passion and without the appellant taking any undue advantage or acting
in a cruel or unusual manner. The fact situation of the case, therefore,
attracts Exception 4 especially when in terms of explanation to Exception
4, it is immaterial in such cases which party offers the provocation or
commits the first assault. That being so, the offence committed by the
author of the injury is not murder but culpable homicide not amounting to
murder punishable under Section 304 of the IPC.
17. Coming then to the question whether the act committed by Har Chand-
appellant was with intention to cause death or of causing such bodily
injury as was likely to cause death, we are of the opinion that even when
the act may not have been committed with the intention of causing death,
the same was intended to cause such bodily injury as was likely to cause
death, within the meaning of Section 304 Part I.
18. In the result, we allow these appeals in part and to the following
extent:
The conviction of the appellants under Section 302 read with Section 149
IPC and the sentence of imprisonment for life awarded to them is set aside.
Appellant Har Chand is, instead, convicted under Section 304 Part-I and
sentenced to undergo rigorous imprisonment for a period of eight years and
a fine of Rs.5000/-. In default payment of fine he shall undergo further
imprisonment for a period of six months. His conviction and sentence for
offences punishable under Section 325 shall remain unaffected and so also
the fine and default sentence awarded to him.
The conviction of Appellants-Raman Lal, Naresh and Bhagat Singh for
offences punishable under Sections 325 and 323 of the IPC and the sentence
awarded to them shall stand affirmed. They shall be set free unless
required in connection of any other case, as they have already undergone
the imprisonment awarded to them.
………………….....…………….…..…J.
(T.S. THAKUR)
…………………………….....…….…..…J.
(ROHINTON FALI NARIMAN)
New Delhi
May 15, 2015
-----------------------
[1] AIR 1963 SC 174
[2] (1991)2 SCC532
[3] AIR 1958 SC 465
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2279 OF 2009
Ramanlal and Anr. …Appellants
Versus
State of Haryana …Respondent
WITH
CRIMINAL APPEAL NO.1351 OF 2010
Bhagat Singh and Anr. ...Appellants
Versus
State of Haryana ...Respondent
J U D G M E N T
T.S. THAKUR, J.
1. These two appeals by special leave assail a common judgment and order
dated 7th May, 2009 passed by a Division Bench of the High Court of Punjab
and Haryana at Chandigarh whereby Criminal Appeal No.631 of 2000 filed by
the appellants challenging their conviction for offences punishable under
Sections 323, 325, 302 read with Section 149 of the IPC has been dismissed
and the sentence of life imprisonment awarded to each one of them by the
trial Court affirmed.
2. The prosecution case in a nutshell is that on 2nd July, 1998 at about
10 O’ clock in the morning Ved Pal and his brother Gopal, now deceased,
were watering their fields in village Doongriwala, district Faridabad in
the State of Haryana. At about 12.00 noon Jai Pal, son of Nihar Singh
entered their field in which the two brothers had grown their paddy crop.
Deceased-Gopal appears to have objected to Jai Pal’s trespass into the
paddy crop to which objection Jai Pal gave an abusive reply insisting that
he would pass through the paddy crop regardless of Gopal’s objection. While
this altercation was going on between deceased-Gopal and Jai Pal, 10 to 12
persons appeared on the spot armed with lathis, pharsas and ballams. They
included Har Chand, Digamber and Bhagat Singh sons of Jairam; Rajbir, Lal
and Bhola sons of Har Chand; Jagdish son of Girraj; Rattan Lal son of
Jagdish; Naresh and Rajkumar sons of Ramesh all Jats by caste and residents
of village Doongriwala. They are alleged to have given a lalkara to
eliminate Ved Pal and deceased Gopal and assaulted both of them causing
several injuries including an injury on the head of the deceased-Gopal that
felled him to the ground. The injured were removed to the hospital at Hodal
for treatment where Ved Pal made a statement which was made before ASI
Narain Singh that led to the registration of a case against the persons
aforementioned for offences punishable under Sections 148, 149, 323 and 307
of the IPC. With Gopal succumbing to the injuries in the Escorts Hospital
at Faridabad, the offence under Section 307 of the IPC was converted into
one of murder punishable under Section 302 of the IPC. Investigation by the
police led to the arrest of accused Har Chand, Digambar and Jagdish on 3rd
July, 1998. Several recoveries from the accused persons are said to have
been made in the course of investigation which culminated in filing of a
charge-sheet against ten persons in all excluding Bhagat Singh son of Jai
Ram who even though named in the FIR, was found innocent while Jai Pal
being a juvenile was referred to the Juvenile Court at Faridabad. The net
result was that nine out of those named in the FIR only were eventually
committed to face the trial before the Additional Sessions Judge at
Faridabad for offences under Sections 148, 323, 325 and 302 read with
Section 149 of the IPC. At the trial, Bhagat Singh son of Jai Ram was also
added as an accused under Section 319 of the Cr.P.C, taking the number of
those accused to face the trial to ten in all.
3. In support of its case, the prosecution examined as many as ten
witnesses. These included the first informant Ved Pal examined as PW-1;
Prakash examined as PW-2; Kishan Singh examined as PW-3; Satbir Singh
examined as PW-4 and Drs. HK Mishra, VR Gupta and SP Jayant examined as PWs
5, 6 and 10 respectively. The remaining witnesses happened to be police
officials including the investigating officer. The accused did not lead any
evidence in defence. In their statements recorded under Section 313 of the
Cr.P.C., they alleged false implication. It was further alleged that Jai
Prakash and Har Chand alone were present on the spot at the time of the
incident and that the remaining nine accused persons had been falsely
implicated. Their further case was that on the fateful day Jai Pal was
watering his fields when deceased Gopal tried to commit sodomy upon him.
Har Chand noticed this attempt of the deceased and objected to it,
whereupon deceased Gopal inflicted a lathi blow upon the person of Har
Chand. Har Chand, in exercise of the right of private defence and with a
view to rescuing Jai Pal, inflicted a lathi blow on deceased Gopal, while
Jai Pal caused injuries to Ved Pal in the incident.
4. The Trial Court appraised the evidence adduced by the prosecution and
came to the conclusion that the depositions of PW1-Ved Pal and PW2-Prakash
were completely reliable. The Trial Court rejected the contention urged on
behalf of the accused persons that the delay in the lodging of the FIR was
not satisfactorily explained or that the prosecution ought to suffer on
account of its failure to explain the injuries sustained by the accused
persons. The Trial Court also rejected the contention that there was no
motive for the commission of the offence or that there was any
contradiction between the medical and ocular evidence led in the case. The
Trial Court on that reasoning sentenced all the ten accused persons
arraigned before it to undergo imprisonment for life under Section 302 of
the IPC and a fine of Rs.5,000/- each. In default of payment of fine, they
were directed to undergo further rigorous imprisonment for a period of one
year each. They were also sentenced to under rigorous imprisonment for a
period of one year and a fine of Rs.1,000/- with a default sentence of
three months each under Section 325 of the IPC. For the offences punishable
under Sections 323 and 148 of the IPC the accused were sentenced to pay a
fine of Rs.1,000/- each. No default sentence in regard to those offences
was, however, awarded.
5. Aggrieved by the conviction and sentence awarded to them, the
appellants filed Criminal Appeal No.631 of 2000 before the High Court of
Punjab and Haryana at Chandigarh, which was disposed of along with Criminal
Revision No.345 of 2001 filed by Ved Pal-the first informant by a common
judgment and order impugned in these appeals. The High Court upon a
reappraisal of the evidence adduced at the trial came to the conclusion
that the appeal filed by Digamber, Rajbir, Lala, Bhola, Jagdish and Raj
Kapoor deserved to be allowed, while the same deserved dismissal qua Har
Chand, Raman Lal, Naresh and Bhagat Singh. That is precisely the backdrop
in which Har Chand, Raman Lal, Naresh and Bhagat Singh are before us in
these appeals by special leave assailing their conviction and the sentence
awarded to them.
6. On behalf of the appellants it was argued that the courts below had
fallen in error in convicting the appellants by placing an implicit
reliance upon the depositions of PW1-Ved Pal and PW2-Prakash and in the
process, ignoring the defence version about the genesis of the incident.
It was contended that the incident had occurred on account of an attempted
act of sodomy by the deceased upon Jaipal to which the appellant-Har Chand
had objected resulting in lathi blows being inflicted by the two sides
rivals to each other. The argument needs notice only to be rejected. We
say so because there is nothing in the evidence to probablise the defence
version that the incident in question had taken place on account of an
attempt on the part of Gopal to sodomise Jaipal. There are no tell tale
signs of any such attempt having been made. Not only that, the defence has
not taken care to examine Jaipal the alleged victim of the attempted act as
a witness to prove that any such attempt was at all made by the deceased-
Gopal. We have, therefore, no hesitation in rejecting the argument that the
defence version was a probable version which could not be given credence.
The courts below have, in our opinion, rightly rejected the defence version
for which there was no factual foundation whatsoever in the evidence.
7. It was next argued by learned counsel for the appellants that with
the acquittal of 6 out of 10 accused persons, the charge that the
appellants constituted an unlawful assembly ought to fail and as an
inevitable consequence thereof, the conviction of the appellants for murder
with the help of Section 149 of the IPC rendered unsustainable. It was
contended that acquittal of other accused persons alleged to be members of
the unlawful assembly, implied that the said accused had been falsely
implicated in the case or that they, even if physically present on the spot
as alleged, did not share the common object of the convicted accused.
8. Section 141 of the IPC defines unlawful assembly as under:
“141. Unlawful assembly.—An assembly of five or more persons is designated
an “unlawful assembly”, if the common object of the persons composing that
assembly is—
(First) — To overawe by criminal force, or show of criminal force, 1[the
Central or any State Government or Parliament or the Legislature of any
State], or any public servant in the exercise of the lawful power of such
public servant; or
(Second) — To resist the execution of any law, or of any legal process; or
(Third) — To commit any mischief or criminal trespass, or other offence; or
(Fourth) — By means of criminal force, or show of criminal force, to any
person, to take or obtain possession of any property, or to deprive any
person of the enjoyment of a right of way, or of the use of water or other
incorporeal right of which he is in possession or enjoyment, or to enforce
any right or supposed right; or
(Fifth) — By means of criminal force, or show of criminal force, to compel
any person to do what he is not legally bound to do, or to omit to do what
he is legally entitled to do.
Explanation.—An assembly which was not unlawful when it assembled, may
subsequently become an unlawful assembly.”
9. In terms of Section 149 of the IPC every member of an unlawful
assembly is guilty of the offence committed by any other member of the
assembly in prosecution of the common object. Section 149 of the IPC
reads:
“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.”
10. The question is whether acquittal of some of the accused persons
reducing the number of those convicted to less than 5 has the effect of
taking the case out of the purview of Section 149 (supra). A Constitution
Bench of this Court has in Mohan Singh v. State of Punjab[1] examined
that question and authoritatively answered the same. The prosecution story
in that case also was that on the date of the incident 5 accused persons
composed an unlawful assembly and that in prosecution of the common object
of the said assembly, they committed rioting while armed with deadly
weapons. The prosecution alleged that in pursuance of the common object of
the assembly Gurdip Singh was murdered and injuries caused to Harnam Singh.
The prosecution alleged that although the fatal injury was inflicted by
only one of the accused persons on Gurudip Singh’s head since the same was
in prosecution of the common object of unlawful assembly, all those who
were members of the assembly were guilty under Section 302 read with
Section 149 of the IPC. On behalf of the defence it was argued that the
constructive criminal liability under Section 149 did not arise once two of
the accused who were alleged to be members of that assembly were acquitted
thereby reducing the number comprising the assembly to three persons only.
This Court while dealing with that contention conceived of three possible
situations and the legal position applicable to each one of such
situations. This Court observed:
“8. The true legal position in regard to the essential ingredients of an
offence specified by s. 149 are not in doubt. Section 149 prescribes for
vicarious or constructive criminal liability for all members of an unlawful
assembly where an offence is committed by any member of such 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. It would thus be noticed that one of the
essential ingredients of section 149 is that the offence must have been
committed by any member of an unlawful assembly, and S.141 makes it clear
that it is only where five or more persons constituted an assembly that an
unlawful assembly is born, provided, of course; the other requirements of
the said section as to the common object of the persons composing that
assembly are satisfied. In other words, it is an essential condition of an
unlawful assembly that its membership must be five or more. The argument,
therefore, is that as soon as the two Piara Singhs were acquitted, the
membership of the assembly was reduced from five to three and that made S.
141 inapplicable which inevitably leads to the result that S. 149 cannot be
invoked against the appellants. In our opinion, on the facts of this case,
this argument has to be upheld. We have already observed that the point
raised by the appellants has to be dealt with on the assumption that only
five persons were named in the charge as persons composing the unlawful
assembly and evidence led in the course of the trial is confined only to
the said five persons. If that be so, as soon as two of the five named
persons are acquitted, the assembly must be deemed to have been composed of
only three persons and that clearly cannot be regarded as an unlawful
assembly.”
9. In dealing with the question as to the applicability of S.149 in such
cases it is necessary to bear in mind the several categories of cases which
come before the Criminal Courts for their decision. If five or more persons
are named in the charge as composing an unlawful assembly and evidence
adduced by the prosecution proves that charge against all of them, that is
a very clear case where S.149 can be invoked. It is, however, not necessary
that five or more persons must be convicted before a charge under S.149 can
be successfully brought home to any members of the unlawful assembly. It
may be that less than five persons may be charged and convicted under
S.302/149 if the charge is that the persons before the Court, along with
others named constituted an unlawful assembly; the other persons so named
may not be available for trial along with their companions for the reason,
for instance, that they have absconded. In such a case, the fact that less
than five persons are before the Court does not make section 149
inapplicable for the simple reason that both the charge and the evidence
seek to prove that the persons before the court and others number more than
five in all and as Such, they together constitute an unlawful assembly.
Therefore, in order to bring home a charge under S.149 it is not necessary
that five or more persons must necessarily be brought before the court and
convicted. Similarly, less than five persons may be charged under s. 149 if
the prosecution case is that the persons before the Court and others
numbering in all more than five composed an unlawful assembly, these others
being persons not identified and so not named. In such a case, if evidence
shows that the persons before the Court along with unidentified and un-
named assailants or members composed an unlawful assembly, those before the
Court, can be convicted under section 149 though the unnamed. and
unidentified persons are not traced and charged. Cases may also arise where
in the charge, the prosecution names five or more persons and alleges that
they constituted an unlawful assembly. In such cases, if both the charge
and the evidence are confined to the persons named in the charge and out of
the persons so named two or more are acquitted leaving, before the court
less than five persons to be tried, then s. 149 cannot be invoked. Even in
such cases, it is possible that though the charge names five or more
persons is composing an unlawful assembly, evidence may nevertheless show
that the unlawful assembly consisted of some other persons as well who were
not identified and so not named. In such cases, either the trial court or
even the High Court in appeal may be able to come to the conclusion that
the acquittal of some of the persons named in the charge and tried will not
necessarily displace the charge under section 149 because along with the
two or three persons convicted were others who composed the unlawful
assembly but who have not been identified and so have not been named. In
such cases the acquittal of one or more persons named in the charge does
not affect the validity of the charge under section 149 because-on the
evidence the court of facts is able to reach the conclusion that the
persons composing the unlawful assembly nevertheless were five or more than
five. It is true that in the last category of cases, the court will have to
be very careful in reaching the said conclusion. But there is no legal bar
which prevents the court from reaching such a conclusion. The failure to
refer in the charge to other members of the unlawful assembly un-named and
unidentified may conceivably raise the point as to whether prejudice would
be caused to the persons before the Court by reason of the fact that the
charge did not indicate that un-named persons also were members of the
unlawful assembly. But apart from the question of such prejudice which may
have to be carefully considered, there is no legal bar preventing the court
of facts from holding that though the charge specified only five or more
persons, the unlawful assembly in fact consisted of other persons who were
not named and identified. That appears to be the true legal position in
respect of the several categories of cases which may fall to be tried when
a charge under section 149 is framed.”
(emphasis supplied)
11. To the same effect is the decision of this Court in Nagamalleswara
Rao (K) and Ors. v. State of Andhra Pradesh[2] where this Court observed:
“However, the learned Judges over-looked that since the accused who are
convicted were only four in number and the prosecution has not proved the
involvement of other persons and the courts below have acquitted all the
other accused of all the offences, section 149 cannot be invoked for
convicting the four appellants herein. The learned Judges were not correct
in stating that A1, A2, A5 and A11 "can be held to be the members of the
unlawful assembly along with some others unidentified persons’ on the facts
and circumstances of this case. The charge was not that accused 1, 2, 5 and
11 "and others’ or "and other unidentified persons" formed into an unlawful
assembly but it is that "you accused 1 to 15" who formed into an unlawful
assembly. It is not the prosecution case that apart from the said 15
persons there were other persons who were involved in the crime. When the
11 other accused were acquitted it means that their involvement in the
offence had not been proved. It would not also be permissible to assume or
conclude that others named or unnamed acted conjointly with the charged
accused in the case unless the charge itself specifically said so and there
was evidence to conclude that some others also were involved in the
commission of the offence conjointly with the charged accused in
furtherance of a common object.”
12. Applying the above principles to the case at hand, we are of the view
that the provisions of Section 149 of the IPC are no longer available to
the prosecution for convicting the appellants whose number is reduced to 4
consequent upon the acquittal of the remaining accused persons. The facts
of the case at hand are not covered by situations one and two referred to
in Mohan Singh’s case (supra). It is a case which, in our opinion, falls
more appropriately in situation three where the prosecution had named all
those constituting the unlawful assembly, but, only four of those named
were eventually convicted, thereby reducing the number to less than five.
There is no evidence to suggest that any one, apart from the persons named
in the charge-sheet were members of the unlawful assembly, but, were either
not available or remained unidentified. Such being the position, the
conviction of the appellants with the help of Section 149 of the IPC does
not appear to be legally sustainable.
13. The third and the only other submission made by learned counsel for
the appellants related to the nature of the offence committed by Har Chand,
the author of the fatal injury. It was urged that the incident in question
had taken place without any pre-meditation in a sudden fight because of a
sudden quarrel following Jai Pal’s insistence to enter the crop growing
field of the complainant. Injuries were caused by those involved in the
fight to each other. Appellant-Har Chand had not taken any undue advantage
nor had he acted in a cruel or unusual manner. The case, therefore, fell
within Exception 4 to Section 300 of the IPC. The fact that Har Chand had
inflicted a single injury on the head of the deceased-Gopal showed that
there was no intention to kill deceased-Gopal, other injuries inflicted by
the remaining accused being only simple in nature. The offence, according
to the learned counsel, could not, therefore, be graver than culpable
homicide not amounting to murder punishable under Section 304 Part-II of
the IPC.
14. The locus classicus on the interpretation of Sections 299 and 300 of
the IPC is the often quoted decision of this Court in Virsa Singh v. State
of Punjab[3] where Vivian Bose, J. speaking for the Court, explained the
ingredients that must be satisfied for a culpable homicide to amount to
murder. Dealing with clause ‘Thirdly’ under Section 300 of the IPC, the
Court explained the essentials of that clause in the following words:
“12. To put it shortly, the prosecution must prove the following facts
before it can bring a case under Section 300 ‘thirdly’;
First, it must establish, quite objectively, that a bodily injury is
present.
Secondly, the nature of the injury must be proved; These are
purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that
particular bodily injury, that is to say, that it was not accidental or
unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds
further and,
Fourthly, it must be proved that the injury of the type just described made
up of the three elements set out above is sufficient to cause death in the
ordinary course of nature. This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the offender.”
15. The Court then goes on to explain the third ingredient referred to
the above passage and makes the following observations which bring home the
essence of the third ingredient in simple words:
“The question is not whether the prisoner intended to inflict a serious
injury or a trivial one but whether he intended to inflict the injury that
is proved to be present. If he can show that he did not, or if the totality
of the circumstances justify such an inference, then, of course, the intent
that the section requires is not proved. But if there is nothing beyond the
injury and the fact that the appellant inflicted it, the only possible
inference is that he intended to inflict it. Whether he knew of its
seriousness, or intended serious consequences, is neither here nor there.
The question, so far as the intention is concerned, is not whether he
intended to kill, or to inflict an injury of a particular degree of
seriousness, but whether he intended to inflict the injury in question; and
once the existence of the injury is proved the intention to cause it will
be presumed unless the evidence or the circumstances warrant an opposite
conclusion.”
16. Applying the above to the case at hand, we have no difficulty in
holding that keeping in view the nature of the injury, the vital part of
the body on which the same was inflicted and the weapon used by the accused
appellant-Har Chand, and the medical evidence, that the said injury was
sufficient in the ordinary course to cause death, culpable homicide would,
in the case at hand, tantamount to murder but for the application of
Exception 4 to Section 300. The question, however, is whether Exception 4
really applies and, if so, whether the injury was inflicted with the
intention of causing death or of causing such bodily injury as is likely to
cause death. The circumstances of the case to which we have referred in
the earlier part of this judgment, however, leave no manner of doubt that
the incident was without any pre-meditation and a sudden fight upon a
sudden quarrel. The injuries upon the deceased were inflicted in the heat
of passion and without the appellant taking any undue advantage or acting
in a cruel or unusual manner. The fact situation of the case, therefore,
attracts Exception 4 especially when in terms of explanation to Exception
4, it is immaterial in such cases which party offers the provocation or
commits the first assault. That being so, the offence committed by the
author of the injury is not murder but culpable homicide not amounting to
murder punishable under Section 304 of the IPC.
17. Coming then to the question whether the act committed by Har Chand-
appellant was with intention to cause death or of causing such bodily
injury as was likely to cause death, we are of the opinion that even when
the act may not have been committed with the intention of causing death,
the same was intended to cause such bodily injury as was likely to cause
death, within the meaning of Section 304 Part I.
18. In the result, we allow these appeals in part and to the following
extent:
The conviction of the appellants under Section 302 read with Section 149
IPC and the sentence of imprisonment for life awarded to them is set aside.
Appellant Har Chand is, instead, convicted under Section 304 Part-I and
sentenced to undergo rigorous imprisonment for a period of eight years and
a fine of Rs.5000/-. In default payment of fine he shall undergo further
imprisonment for a period of six months. His conviction and sentence for
offences punishable under Section 325 shall remain unaffected and so also
the fine and default sentence awarded to him.
The conviction of Appellants-Raman Lal, Naresh and Bhagat Singh for
offences punishable under Sections 325 and 323 of the IPC and the sentence
awarded to them shall stand affirmed. They shall be set free unless
required in connection of any other case, as they have already undergone
the imprisonment awarded to them.
………………….....…………….…..…J.
(T.S. THAKUR)
…………………………….....…….…..…J.
(ROHINTON FALI NARIMAN)
New Delhi
May 15, 2015
-----------------------
[1] AIR 1963 SC 174
[2] (1991)2 SCC532
[3] AIR 1958 SC 465
