Unlawful Assembly Sec.149 - Once unlawful assembly was proved with a common object - absence of overt act against the other accused does not vitiate the prosecution story entitling for acquittal - Apex court held that In view of the settled principles of law, once it is established that the unlawful assembly had a common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act, rather they can be convicted under Section 149, IPC. We, therefore, find no error in the order of conviction and
sentence passed by the Trial Court and affirmed by the High Court calling our interference under Article 136 of the Constitution. The appeals fail and are hereby dismissed.=
Further, in State of Rajasthan Vs Shiv Charan, (2013) 12 SCC 76 it
was opined by this Court:
“The pivotal question of applicability of Section 149 IPC has its
foundation on constructive liability which is the sine qua non for its
application. It contains essentially only two ingredients, namely, (I)
offence committed by any member of any unlawful assembly consisting
five or more members and; (II) such offence must be committed in
prosecution of the common object (Section 141 IPC) of the assembly or
members of that assembly knew to be likely to be committed in
prosecution of the common object. It is not necessary that for common
object there should be a prior concert as the common object may be
formed on the spur of the moment. Common object would mean the purpose
or design shared by all members of such assembly and it may be formed
at any stage. Even if the offence committed is not in direct
prosecution of the common object of the unlawful assembly, it may yet
fall under the second part of Section 149 IPC if it is established
that the offence was such, as the members knew, was likely to be
committed”.
20. Thus, by appreciating the entire evidence on record, we are unable to
accept the contention advanced by learned senior counsel for the
accused/appellants that the accused were merely passive onlookers who
joined the mob out of curiosity and they had no common intention and did
not share the common object of the unlawful assembly. In the light of
aforementioned decisions of this Court, we are also not able to appreciate
the contention of the appellants that no overt act has been attributed to
each of the accused hence application of Section 149, IPC is not justified.
We have no hesitation to come to a conclusion that the appellants were part
of the unlawful assembly sharing the common object of killing, rioting and
looting the villagers. Each one of the accused played an active role in
furtherance of the common object of the assembly and the Courts below were
perfectly right in convicting the accused/appellants under Section 149,
IPC.
21. Hence, in our considered opinion, the prosecution has proved its case
beyond reasonable doubt. In view of the settled principles of law, once it
is established that the unlawful assembly had a common object, it is not
necessary that all persons forming the unlawful assembly must be shown to
have committed some overt act, rather they can be convicted under Section
149, IPC. We, therefore, find no error in the order of conviction and
sentence passed by the Trial Court and affirmed by the High Court calling
our interference under Article 136 of the Constitution.
22. The appeals fail and are hereby dismissed.
2014 - Sept.Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41969
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 775 of 2007
ANUP LAL YADAV & ANR. … APPELLANTS
VERSUS
STATE OF BIHAR …. RESPONDENT
WITH
CRIMINAL APPEAL NO. 1163 of 2007
SURANG LAL YADAV … APPELLANT
VERSUS
STATE OF BIHAR …. RESPONDENT
JUDGMENT
N.V. RAMANA, J.
These appeals are preferred by the appellants/accused aggrieved by the
judgment and order passed by the Division Bench of the High Court of
Judicature at Patna in Criminal Appeal No. 566 of 1993 whereby the High
Court affirmed the conviction and sentence passed by the 8th Additional
Sessions Judge, Purnia, Bihar in Sessions Trial No. 28 of 1978 under
Sections 302/149, 436/149, 380/149, 323/149, 145 and 147 of the Indian
Penal Code against them.
2. The prosecution case, in short, is that in the early hours of 25th
September, 1974 appellant Surang Lal Yadav (Accused No. 5), a member of
Santhala community, riding on a horse and carrying a sword in his hand
entered the village Singhimari leading a mob of about 300 to 400 persons,
all armed with various kinds of deadly weapons such as bows, arrows,
ballams, bhalas, kulharis, dandas and with burning flames in their hands.
The mob led by accused Surang Lal Yadav attacked ruthlessly the Badhyas, a
Muslim minority community, most of them were migrants from Bangladesh. The
mob went on looting movable properties of the villagers, setting their
houses on fire, injuring and killing innocent persons indiscriminately. In
the said incident, 14 persons were killed, 47 houses were burnt, several
properties were looted and a number of persons were injured. On the basis
of a complaint given by one Amzad Ali (PW 2) at about 1 p.m. on 25th
September, 1974 to the Assistant Sub-Inspector of Police, an FIR was
registered and investigation took place. The genesis of the case is a
Government land which was in occupation of the accused persons but
allegedly encroached by the Badhyas.
3. After investigation, charge sheet was filed against several persons
including the appellants herein. Most of the other accused persons were
shown as absconded. The case of 27 accused persons including the appellants
was committed for trial. The Trial Court framed charges against 18 accused
persons including the appellants. The other accused, who were committed to
face trial, had jumped their bail bonds and absconded. Finally, statements
under Section 313, Cr.P.C. were recorded in respect of seven accused
persons only.
4. To bring home the guilt of the accused, the prosecution has examined
in all 38 witnesses. The informant—Amzad Ali was examined as PW 2 who was
the eyewitness to the incident. In his examination, he had narrated the
whole incident and identified as many as 33 persons in the mob who actively
participated in the arson, looting and disclosed their names.
5. PW 1—Dr. V.N. Sinha, the Civil Assistant Surgeon of Sadar Hospital,
Purnia who conducted postmortem examination on the dead bodies of six
persons found sharp edged piercing injuries and cutting wounds on the
bodies of the deceased and he opined that these persons died on account of
the ante mortem injuries sustained by them before 48 to 72 hours of their
death. Postmortem of other eight deceased persons was carried out by PW
35—Dr. T.P. Chatterjee, the Deputy Superintendent of Kishanganj Hospital
who also found sharp edged piercing and cutting injuries and penetrating
wounds on the bodies of the deceased. In his opinion, their death occurred
within 72 hours.
6. The Trial Court, after considering the conspectus of the
circumstances and materials on record, came to the conclusion that the
prosecution has successfully proved the guilt of the accused. Accordingly,
the Trial Court convicted and sentenced the accused to undergo rigorous
imprisonment for life for the offence punishable under Section 302/149,
IPC. They were further convicted and sentenced to undergo R.I. for five
years for the offence committed under Section 436/149, R.I. for two years
for the offence under Section 380/149 and R.I. for one year for the offence
under Section 323/149, IPC. Accused No. 5—Surang Lal Yadav was further
sentenced to undergo R.I. for one year for the offence punishable under
Section 145, IPC whereas the other accused were convicted and sentenced to
undergo R.I. for six months for committing the offence under Section 147,
IPC. All the sentences were however directed to run concurrently.
7. All the seven accused assailed the judgment and order of the learned
Trial Judge in appeal before the High Court of Judicature at Patna. The
High Court allowed the appeal in respect of two accused persons while
maintaining conviction and sentence passed by the Trial Court against the
other accused. We are now concerned with only three accused who challenged
the judgment of the High Court before us in these Criminal Appeals.
8. Learned senior counsel appearing for the accused/ appellants mainly
contended that the identification of the appellants as accused by the
prosecution witnesses is highly doubtful. He submitted that there was
enmity and rivalry between the accused group and the group of prosecution
witnesses. On the fateful day, an open fight broke up between the two
factions, several persons died and several others were injured. The brother
of Anup Lal Yadav (accused—Appellant No. 1) was also killed on the same day
and the brother of Surang Lal Yadav was also murdered a day earlier to the
incident, in which Amzad Ali (P.W. 2) was an accused. Moreover, Amzad Ali
(PW 2) once contested an election against accused Surang Lal Yadav and lost
the election. Thus there was enmity prevailing between the two groups. All
the prosecution witnesses are interested witnesses and they wanted to
retaliate by implicating the accused in the present case. It is evident
from their depositions that they had made bald and vague allegations
against the accused and no specific overt act has been attributed to any of
the accused by any of the witnesses. Therefore, implication of accused for
the offences charged against them is not justified by the Courts below and
they erred in convicting the accused on a wrong assumption of facts without
taking into consideration the intrinsic worth of the evidence of
prosecution witnesses.
9. Learned counsel submitted that mere presence of the accused at the
place of incident would not amount to their unlawful assembly. From the
depositions of prosecution witnesses, it can be discerned that there was no
common object among the accused and they did not commit any overt act in
pursuit of common object. Mere presence of accused with arms at the place
of incident would not be sufficient to establish their involvement in the
crime. A majority of witnesses did not identify the accused and there was
no clinching evidence to show that the appellants-accused shared the common
object by forming unlawful assembly. The Courts below have totally failed
to appreciate the fact that the witnesses deposed that after noticing the
crowd from a far off distance, they hid in the paddy field which was chest
high, thus their identifying the accused persons from that distance cannot
be believed. The Trial Court did not pay any heed to the submissions of the
accused and went on convicting the accused unjustifiably under Section 149,
IPC also and the High Court committed a grave error in affirming the same.
More particularly, in view of the admitted enmity between the parties, the
informant (PW 2) being an accused in the murder case of the brother of
Appellant No. 1 and in view of depositions of witnesses not attributing any
specific overt act to the accused, the conviction of the accused under
Section 149, IPC is unsustainable.
10. Relying on Bhudeo Mandal & Ors. Vs. State of Bihar (1981) 2 SCC 755,
learned counsel argued that in order to convict an accused with the aid of
Section 149, IPC the Court, after discussing the entire evidence, must give
a clear finding as to the ‘common object’ of the unlawful assembly, whereas
in the case on hand the Trial Court has not given any observation with
regard to common object of unlawful assembly. Also placing reliance on
Santosh Vs. State of Madhya Pradesh (1975) 3 SCC 727, learned counsel
submitted that each member of a mob need not necessarily be held liable for
the actions of every other member of that mob. In support of the contention
that the accused could not have been convicted with the aid of Section 149,
IPC in the absence of clear finding on common object of the unlawful
assembly, learned counsel has further relied on this Court’s judgments in
Kuldip Yadav Vs. State of Bihar (2011) 5 SCC 324; Shaji Vs. State of Kerala
(2011) 5 SCC 423 and Badal Murmu Vs. State of W.B. (2014) 3 SCC 366.
11. Learned senior counsel finally submitted that the accused appellants
have already undergone sentence of about seven years and the incident had
taken place about forty years back and there is no reason to continue the
accused to suffer in jail.
12. On the other hand, Ms. Prerna Singh, learned counsel appearing for
the State, vehemently opposed the submissions made by the counsel for the
accused-appellants. She contended that a strong mob of around 400
assailants entered the village Singhimari armed with bows, arrows, ballams,
bhalas, kulharis and other deadly weapons and mercilessly attacked the
villagers, looted their properties and burnt several houses. The ghastly
attack was led by the accused Surang Lal Yadav riding on a horse back
wielding a sword in his hand and the other accused had actively
participated in the heinous crime which resulted in killing of 14 innocent
persons and injuring several others. The prosecution has examined as many
as 38 witnesses including PW 2 (Amjad Ali)—the informant who was the
eyewitness. He deposed in clear and categorical manner that the accused
Surang Lal Yadav was leading the mob which went on a killing spree in the
village on the date of occurrence. PW 4—Abdul Mokim, another eyewitness
deposed that he had carried the dead bodies to Kishanganj Hospital in a
cart on the instruction of police. PW 11—Sk. Samayul deposed that when he
tried to run away from the mob, accused Sahdeo—appellant herein, gave a
lathi blow. Nonetheless, 26 witnesses have in clear terms explained the
role played by Surang Lal Yadav. Accused-appellant Anup Lal Yadav was
identified by not a few but 14 prosecution witnesses, whereas
accused/appellant Sahdeo was identified by 11 witnesses. They deposed in
unequivocal terms that from the paddy field, they had clearly seen the
occurrence of brutal killing of their kith and kin and devastation of
properties at the hands of accused/appellants led by Surang Lal Yadav.
13. Strongly rebutting the argument of learned senior counsel for the
accused/appellants that the Trial Court ought not have charged the accused
under Section 149, IPC learned counsel submitted that the common intention
of the accused appellants was writ large that they wanted to create havoc
in the area occupied by the victims and to fill terror in their minds. In
pursuance of this common object, the accused used deadly weapons against
the victims and killed 14 innocent persons besides injuring several others.
She submitted that the law is abundantly clear that if an offence is
committed by any member of an unlawful assembly in furtherance of common
object of that assembly, every member of that unlawful assembly is guilty
of that offence. Specific overt act of each member of unlawful assembly
needs not to be proved when the accused are proved to be members of that
assembly. In support of her contention, she relied upon the decisions of
this Court in State of A.P. Vs. Thakkidiram Reddy (1998) 6 SCC 554; Yunis
Vs. State of M.P. (2003) 1 SCC 425 and State of Rajasthan Vs. Shiv Charan
(2013) 12 SCC 76.
14. Learned counsel further submitted that after carrying out a thorough
investigation and recording the statements of eyewitnesses, police has
filed the charge sheet. The Trial Court had undertaken a detailed procedure
of trial and examined number of witnesses. Only after conducting a full
fledged trial and on a careful analysis of the facts and circumstances of
the case, the Trial Court convicted the accused for the offences for which
they were charged with. The Trial Court rightly came to a conclusion that
it may not be possible to attribute specific act to every member of
unlawful assembly of about 400 people. Therefore, the Trial Court observed
that “it is established beyond doubt that there was a mob of about 400
persons with a ‘common object’ to commit murder of bharia musalmaan and set
their houses on fire and loot their moveable”. The High Court also
undertook the exercise of reappreciation of entire evidence and then only
affirmed the conviction and sentence order passed by the Trial Court. The
High Court observed that “the conduct of the accused persons prior and
during the course of occurrence, clearly demonstrate that their common
object was to commit loot, arson and murder.” Hence, learned counsel
finally submitted that, the judgments of Courts below do not call for any
interference by this Court.
15. We have heard learned counsel on both sides and perused the
depositions of prosecution witnesses in detail and other material available
on record including the opinions of Doctors who conducted postmortem on the
dead bodies. It appears from the record that on the fateful day, a great
turmoil took place in which several innocent villagers lost their
properties, kith and kin. We notice that some of the accused are still at
large. We have carefully gone through the contentions raised by the counsel
on either side. An examination of the deposition of PW-2 (Amzad Ali)
reveals that at about 8 a.m. on the day of incident, he had witnessed the
devastation carried on by the mob under the supervision of accused Surang
Lal Yadav who was riding on a horse carrying a sword in his hand. He
categorically stated that he had seen from the paddy field that the mob,
most of them were undoubtedly Santhals, armed with deadly weapons and
burning wooden pieces done to death about 10-12 persons, caused damage to
the properties of the villagers and set several houses ablaze. He further
stated that he had identified 33 persons in the mob including the
appellants herein and disclosed their names. In the cross examination, he
deposed that he was hiding in the paddy field for an hour from where he
witnessed the activities of the mob led by Surang Lal Yadav. Another
eyewitness PW 3 (Abdul Sattar) also deposed that Surang Lal Yadav was
carrying a sword in his hand and Anup Lal Yadav (appellant herein) had a
‘Bhala’ in his hand while they were committing the offences. PW 3 further
deposed that when he was fleeing with fear, Hopna Santhal (absconded
accused) hit on his head with a lathi from behind. PW 13 (Imazuddin) also
in clear terms deposed that Surang Lal, the leader (Mukhiya) was
instigating the mob saying kill these bhariya people. Another witness Kalu
@ Kalimuddin (PW 16) identified Sahdev Chamar (appellant herein) among
others. Other prosecution witnesses PW 17 (Abul Kabir), PW 18
(Naijiruddin), PW 19 (Abdul Kudus), PW 20 (Ainul Haque), PW 22 (Samul
Haque) who all are also eyewitnesses, narrated the roles played by the
accused and they all categorically stated that Surang Lal Yadav was leading
and instigating the mob to kill the villagers. Besides these individuals,
we have also gone through the depositions of PW 24—Devendra Pd. (a shop
owner), PW 27—Muzaffar Husain (the author of the written report), PW
28—Dhanik Lal Sah (a witness of inquest report of some dead bodies) and PW
37—Rana Krishna Singh (I.O.). The evidences of these prosecution witnesses
are corroborating and consistent. PW 38 (Shivaji Singh), ASI has
categorically deposed about the occurrence of the incident and the roles
played by the accused. He deposed that at about 10.15 a.m. on 25th
September, 1974 he visited the village Singhmari and witnessed the
gathering of large number of Santhals (accused persons) while the persons
belonging to the victim community were running helter skelter. The
evidence of the prosecution is trust worthy and inspires confidence in the
mind of the Court and by any stretch of imagination it cannot be believed
that the accused were falsely implicated. Thus, from the facts and
circumstances of the case, it is evident that the huge mob was led and
instigated by Surang Lal Yadav (appellant) and Anup Lal Yadav and Sahdev
Chamar (other appellants) who had actively participated in the carnage and
slaughtered innocent villagers with deadly weapons. It is worthwhile to
note that there is no denial on the part of the accused as to their
participation in the atrocities. In such circumstances, the Court cannot
ignore the overwhelming evidence of the prosecution witnesses who
categorically described the role played by the accused.
16. In Lalji Vs. State of U.P. (1989) 1 SCC 437, this Court observed:
“Section 149 makes every member of an unlawful assembly at the time of
committing of the offence guilty of that offence. Thus this section
created a specific and distinct offence. In other words, it created a
constructive or vicarious liability of the members of the unlawful
assembly for the unlawful acts committed pursuant to the common object
by any other member of that assembly. However, the vicarious liability
of the members of the unlawful assembly extends only to the acts done
in pursuance of the common objects of the unlawful assembly, or to
such offences as the members of the unlawful assembly knew to be
likely to be committed in prosecution of that object. Once the case of
a person falls within the ingredients of the section the question that
he did nothing with his own hands would be immaterial. He cannot put
forward the defence that he did not with his own hand commit the
offence committed in prosecution of the common object of the unlawful
assembly or such as the members of the assembly knew to be likely to
be committed in prosecution of that object. Everyone must be taken to
have intended the probable and natural results of the combination of
the acts in which he joined. [pic]It is not necessary that all the
persons forming an unlawful assembly must do some overt act. When the
accused persons assembled together, armed with lathis, and were
parties to the assault on the complainant party, the prosecution is
not obliged to prove which specific overt act was done by which of the
accused. This section makes a member of the unlawful assembly
responsible as a principal for the acts of each, and all, merely
because he is a member of an unlawful assembly. While overt act and
active participation may indicate common intention of the person
perpetrating the crime, the mere presence in the unlawful assembly may
fasten vicariously criminal liability under Section 149. It must be
noted that the basis of the constructive guilt under Section 149 is
mere membership of the unlawful assembly, with the requisite common
object or knowledge.
17. In Yunis Vs. State of M.P. (2003) 1 SCC 425, learned counsel
appearing for the appellant therein argued that no overt act was imputed to
his client and he was being implicated only on the basis of Section 149
IPC. This Court ascribing no merit to the argument, held that “even if no
overt act is imputed to a particular person, when the charge is under
Section 149 IPC, the presence of the accused as part of an unlawful
assembly is sufficient for conviction”. Accordingly the Court in that case
observed that the appellant was a member of the unlawful assembly which
itself is sufficient to hold him guilty when his presence has not been
disputed.
18. Relying on Lalji Vs. State of U.P. this Court in Subal Ghorai Vs.
State of W.B. (2013) 4 SCC 607 held;
“If an offence is committed by a member of the unlawful assembly in
prosecution of the common object, any member of the unlawful assembly
who was present at the time of commission of offence and who shared
the common object of that assembly would be liable for the commission
of that offence even if no overt act was committed by him. If a large
crowd of persons armed with weapons assaults intended victims, all may
not take part in the actual assault. If weapons carried by some
members were not used, that would not absolve them of liability for
the offence with the aid of Section 149 IPC if they shared common
object of the unlawful assembly”.
19. Further, in State of Rajasthan Vs Shiv Charan, (2013) 12 SCC 76 it
was opined by this Court:
“The pivotal question of applicability of Section 149 IPC has its
foundation on constructive liability which is the sine qua non for its
application. It contains essentially only two ingredients, namely, (I)
offence committed by any member of any unlawful assembly consisting
five or more members and; (II) such offence must be committed in
prosecution of the common object (Section 141 IPC) of the assembly or
members of that assembly knew to be likely to be committed in
prosecution of the common object. It is not necessary that for common
object there should be a prior concert as the common object may be
formed on the spur of the moment. Common object would mean the purpose
or design shared by all members of such assembly and it may be formed
at any stage. Even if the offence committed is not in direct
prosecution of the common object of the unlawful assembly, it may yet
fall under the second part of Section 149 IPC if it is established
that the offence was such, as the members knew, was likely to be
committed”.
20. Thus, by appreciating the entire evidence on record, we are unable to
accept the contention advanced by learned senior counsel for the
accused/appellants that the accused were merely passive onlookers who
joined the mob out of curiosity and they had no common intention and did
not share the common object of the unlawful assembly. In the light of
aforementioned decisions of this Court, we are also not able to appreciate
the contention of the appellants that no overt act has been attributed to
each of the accused hence application of Section 149, IPC is not justified.
We have no hesitation to come to a conclusion that the appellants were part
of the unlawful assembly sharing the common object of killing, rioting and
looting the villagers. Each one of the accused played an active role in
furtherance of the common object of the assembly and the Courts below were
perfectly right in convicting the accused/appellants under Section 149,
IPC.
21. Hence, in our considered opinion, the prosecution has proved its case
beyond reasonable doubt. In view of the settled principles of law, once it
is established that the unlawful assembly had a common object, it is not
necessary that all persons forming the unlawful assembly must be shown to
have committed some overt act, rather they can be convicted under Section
149, IPC. We, therefore, find no error in the order of conviction and
sentence passed by the Trial Court and affirmed by the High Court calling
our interference under Article 136 of the Constitution.
22. The appeals fail and are hereby dismissed.
………………………………….J.
(RANJANA PRAKASH DESAI)
…………………………………J.
(N.V. RAMANA)
NEW DELHI,
SEPTEMBER 26, 2014.
sentence passed by the Trial Court and affirmed by the High Court calling our interference under Article 136 of the Constitution. The appeals fail and are hereby dismissed.=
Further, in State of Rajasthan Vs Shiv Charan, (2013) 12 SCC 76 it
was opined by this Court:
“The pivotal question of applicability of Section 149 IPC has its
foundation on constructive liability which is the sine qua non for its
application. It contains essentially only two ingredients, namely, (I)
offence committed by any member of any unlawful assembly consisting
five or more members and; (II) such offence must be committed in
prosecution of the common object (Section 141 IPC) of the assembly or
members of that assembly knew to be likely to be committed in
prosecution of the common object. It is not necessary that for common
object there should be a prior concert as the common object may be
formed on the spur of the moment. Common object would mean the purpose
or design shared by all members of such assembly and it may be formed
at any stage. Even if the offence committed is not in direct
prosecution of the common object of the unlawful assembly, it may yet
fall under the second part of Section 149 IPC if it is established
that the offence was such, as the members knew, was likely to be
committed”.
20. Thus, by appreciating the entire evidence on record, we are unable to
accept the contention advanced by learned senior counsel for the
accused/appellants that the accused were merely passive onlookers who
joined the mob out of curiosity and they had no common intention and did
not share the common object of the unlawful assembly. In the light of
aforementioned decisions of this Court, we are also not able to appreciate
the contention of the appellants that no overt act has been attributed to
each of the accused hence application of Section 149, IPC is not justified.
We have no hesitation to come to a conclusion that the appellants were part
of the unlawful assembly sharing the common object of killing, rioting and
looting the villagers. Each one of the accused played an active role in
furtherance of the common object of the assembly and the Courts below were
perfectly right in convicting the accused/appellants under Section 149,
IPC.
21. Hence, in our considered opinion, the prosecution has proved its case
beyond reasonable doubt. In view of the settled principles of law, once it
is established that the unlawful assembly had a common object, it is not
necessary that all persons forming the unlawful assembly must be shown to
have committed some overt act, rather they can be convicted under Section
149, IPC. We, therefore, find no error in the order of conviction and
sentence passed by the Trial Court and affirmed by the High Court calling
our interference under Article 136 of the Constitution.
22. The appeals fail and are hereby dismissed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 775 of 2007
ANUP LAL YADAV & ANR. … APPELLANTS
VERSUS
STATE OF BIHAR …. RESPONDENT
WITH
CRIMINAL APPEAL NO. 1163 of 2007
SURANG LAL YADAV … APPELLANT
VERSUS
STATE OF BIHAR …. RESPONDENT
JUDGMENT
N.V. RAMANA, J.
These appeals are preferred by the appellants/accused aggrieved by the
judgment and order passed by the Division Bench of the High Court of
Judicature at Patna in Criminal Appeal No. 566 of 1993 whereby the High
Court affirmed the conviction and sentence passed by the 8th Additional
Sessions Judge, Purnia, Bihar in Sessions Trial No. 28 of 1978 under
Sections 302/149, 436/149, 380/149, 323/149, 145 and 147 of the Indian
Penal Code against them.
2. The prosecution case, in short, is that in the early hours of 25th
September, 1974 appellant Surang Lal Yadav (Accused No. 5), a member of
Santhala community, riding on a horse and carrying a sword in his hand
entered the village Singhimari leading a mob of about 300 to 400 persons,
all armed with various kinds of deadly weapons such as bows, arrows,
ballams, bhalas, kulharis, dandas and with burning flames in their hands.
The mob led by accused Surang Lal Yadav attacked ruthlessly the Badhyas, a
Muslim minority community, most of them were migrants from Bangladesh. The
mob went on looting movable properties of the villagers, setting their
houses on fire, injuring and killing innocent persons indiscriminately. In
the said incident, 14 persons were killed, 47 houses were burnt, several
properties were looted and a number of persons were injured. On the basis
of a complaint given by one Amzad Ali (PW 2) at about 1 p.m. on 25th
September, 1974 to the Assistant Sub-Inspector of Police, an FIR was
registered and investigation took place. The genesis of the case is a
Government land which was in occupation of the accused persons but
allegedly encroached by the Badhyas.
3. After investigation, charge sheet was filed against several persons
including the appellants herein. Most of the other accused persons were
shown as absconded. The case of 27 accused persons including the appellants
was committed for trial. The Trial Court framed charges against 18 accused
persons including the appellants. The other accused, who were committed to
face trial, had jumped their bail bonds and absconded. Finally, statements
under Section 313, Cr.P.C. were recorded in respect of seven accused
persons only.
4. To bring home the guilt of the accused, the prosecution has examined
in all 38 witnesses. The informant—Amzad Ali was examined as PW 2 who was
the eyewitness to the incident. In his examination, he had narrated the
whole incident and identified as many as 33 persons in the mob who actively
participated in the arson, looting and disclosed their names.
5. PW 1—Dr. V.N. Sinha, the Civil Assistant Surgeon of Sadar Hospital,
Purnia who conducted postmortem examination on the dead bodies of six
persons found sharp edged piercing injuries and cutting wounds on the
bodies of the deceased and he opined that these persons died on account of
the ante mortem injuries sustained by them before 48 to 72 hours of their
death. Postmortem of other eight deceased persons was carried out by PW
35—Dr. T.P. Chatterjee, the Deputy Superintendent of Kishanganj Hospital
who also found sharp edged piercing and cutting injuries and penetrating
wounds on the bodies of the deceased. In his opinion, their death occurred
within 72 hours.
6. The Trial Court, after considering the conspectus of the
circumstances and materials on record, came to the conclusion that the
prosecution has successfully proved the guilt of the accused. Accordingly,
the Trial Court convicted and sentenced the accused to undergo rigorous
imprisonment for life for the offence punishable under Section 302/149,
IPC. They were further convicted and sentenced to undergo R.I. for five
years for the offence committed under Section 436/149, R.I. for two years
for the offence under Section 380/149 and R.I. for one year for the offence
under Section 323/149, IPC. Accused No. 5—Surang Lal Yadav was further
sentenced to undergo R.I. for one year for the offence punishable under
Section 145, IPC whereas the other accused were convicted and sentenced to
undergo R.I. for six months for committing the offence under Section 147,
IPC. All the sentences were however directed to run concurrently.
7. All the seven accused assailed the judgment and order of the learned
Trial Judge in appeal before the High Court of Judicature at Patna. The
High Court allowed the appeal in respect of two accused persons while
maintaining conviction and sentence passed by the Trial Court against the
other accused. We are now concerned with only three accused who challenged
the judgment of the High Court before us in these Criminal Appeals.
8. Learned senior counsel appearing for the accused/ appellants mainly
contended that the identification of the appellants as accused by the
prosecution witnesses is highly doubtful. He submitted that there was
enmity and rivalry between the accused group and the group of prosecution
witnesses. On the fateful day, an open fight broke up between the two
factions, several persons died and several others were injured. The brother
of Anup Lal Yadav (accused—Appellant No. 1) was also killed on the same day
and the brother of Surang Lal Yadav was also murdered a day earlier to the
incident, in which Amzad Ali (P.W. 2) was an accused. Moreover, Amzad Ali
(PW 2) once contested an election against accused Surang Lal Yadav and lost
the election. Thus there was enmity prevailing between the two groups. All
the prosecution witnesses are interested witnesses and they wanted to
retaliate by implicating the accused in the present case. It is evident
from their depositions that they had made bald and vague allegations
against the accused and no specific overt act has been attributed to any of
the accused by any of the witnesses. Therefore, implication of accused for
the offences charged against them is not justified by the Courts below and
they erred in convicting the accused on a wrong assumption of facts without
taking into consideration the intrinsic worth of the evidence of
prosecution witnesses.
9. Learned counsel submitted that mere presence of the accused at the
place of incident would not amount to their unlawful assembly. From the
depositions of prosecution witnesses, it can be discerned that there was no
common object among the accused and they did not commit any overt act in
pursuit of common object. Mere presence of accused with arms at the place
of incident would not be sufficient to establish their involvement in the
crime. A majority of witnesses did not identify the accused and there was
no clinching evidence to show that the appellants-accused shared the common
object by forming unlawful assembly. The Courts below have totally failed
to appreciate the fact that the witnesses deposed that after noticing the
crowd from a far off distance, they hid in the paddy field which was chest
high, thus their identifying the accused persons from that distance cannot
be believed. The Trial Court did not pay any heed to the submissions of the
accused and went on convicting the accused unjustifiably under Section 149,
IPC also and the High Court committed a grave error in affirming the same.
More particularly, in view of the admitted enmity between the parties, the
informant (PW 2) being an accused in the murder case of the brother of
Appellant No. 1 and in view of depositions of witnesses not attributing any
specific overt act to the accused, the conviction of the accused under
Section 149, IPC is unsustainable.
10. Relying on Bhudeo Mandal & Ors. Vs. State of Bihar (1981) 2 SCC 755,
learned counsel argued that in order to convict an accused with the aid of
Section 149, IPC the Court, after discussing the entire evidence, must give
a clear finding as to the ‘common object’ of the unlawful assembly, whereas
in the case on hand the Trial Court has not given any observation with
regard to common object of unlawful assembly. Also placing reliance on
Santosh Vs. State of Madhya Pradesh (1975) 3 SCC 727, learned counsel
submitted that each member of a mob need not necessarily be held liable for
the actions of every other member of that mob. In support of the contention
that the accused could not have been convicted with the aid of Section 149,
IPC in the absence of clear finding on common object of the unlawful
assembly, learned counsel has further relied on this Court’s judgments in
Kuldip Yadav Vs. State of Bihar (2011) 5 SCC 324; Shaji Vs. State of Kerala
(2011) 5 SCC 423 and Badal Murmu Vs. State of W.B. (2014) 3 SCC 366.
11. Learned senior counsel finally submitted that the accused appellants
have already undergone sentence of about seven years and the incident had
taken place about forty years back and there is no reason to continue the
accused to suffer in jail.
12. On the other hand, Ms. Prerna Singh, learned counsel appearing for
the State, vehemently opposed the submissions made by the counsel for the
accused-appellants. She contended that a strong mob of around 400
assailants entered the village Singhimari armed with bows, arrows, ballams,
bhalas, kulharis and other deadly weapons and mercilessly attacked the
villagers, looted their properties and burnt several houses. The ghastly
attack was led by the accused Surang Lal Yadav riding on a horse back
wielding a sword in his hand and the other accused had actively
participated in the heinous crime which resulted in killing of 14 innocent
persons and injuring several others. The prosecution has examined as many
as 38 witnesses including PW 2 (Amjad Ali)—the informant who was the
eyewitness. He deposed in clear and categorical manner that the accused
Surang Lal Yadav was leading the mob which went on a killing spree in the
village on the date of occurrence. PW 4—Abdul Mokim, another eyewitness
deposed that he had carried the dead bodies to Kishanganj Hospital in a
cart on the instruction of police. PW 11—Sk. Samayul deposed that when he
tried to run away from the mob, accused Sahdeo—appellant herein, gave a
lathi blow. Nonetheless, 26 witnesses have in clear terms explained the
role played by Surang Lal Yadav. Accused-appellant Anup Lal Yadav was
identified by not a few but 14 prosecution witnesses, whereas
accused/appellant Sahdeo was identified by 11 witnesses. They deposed in
unequivocal terms that from the paddy field, they had clearly seen the
occurrence of brutal killing of their kith and kin and devastation of
properties at the hands of accused/appellants led by Surang Lal Yadav.
13. Strongly rebutting the argument of learned senior counsel for the
accused/appellants that the Trial Court ought not have charged the accused
under Section 149, IPC learned counsel submitted that the common intention
of the accused appellants was writ large that they wanted to create havoc
in the area occupied by the victims and to fill terror in their minds. In
pursuance of this common object, the accused used deadly weapons against
the victims and killed 14 innocent persons besides injuring several others.
She submitted that the law is abundantly clear that if an offence is
committed by any member of an unlawful assembly in furtherance of common
object of that assembly, every member of that unlawful assembly is guilty
of that offence. Specific overt act of each member of unlawful assembly
needs not to be proved when the accused are proved to be members of that
assembly. In support of her contention, she relied upon the decisions of
this Court in State of A.P. Vs. Thakkidiram Reddy (1998) 6 SCC 554; Yunis
Vs. State of M.P. (2003) 1 SCC 425 and State of Rajasthan Vs. Shiv Charan
(2013) 12 SCC 76.
14. Learned counsel further submitted that after carrying out a thorough
investigation and recording the statements of eyewitnesses, police has
filed the charge sheet. The Trial Court had undertaken a detailed procedure
of trial and examined number of witnesses. Only after conducting a full
fledged trial and on a careful analysis of the facts and circumstances of
the case, the Trial Court convicted the accused for the offences for which
they were charged with. The Trial Court rightly came to a conclusion that
it may not be possible to attribute specific act to every member of
unlawful assembly of about 400 people. Therefore, the Trial Court observed
that “it is established beyond doubt that there was a mob of about 400
persons with a ‘common object’ to commit murder of bharia musalmaan and set
their houses on fire and loot their moveable”. The High Court also
undertook the exercise of reappreciation of entire evidence and then only
affirmed the conviction and sentence order passed by the Trial Court. The
High Court observed that “the conduct of the accused persons prior and
during the course of occurrence, clearly demonstrate that their common
object was to commit loot, arson and murder.” Hence, learned counsel
finally submitted that, the judgments of Courts below do not call for any
interference by this Court.
15. We have heard learned counsel on both sides and perused the
depositions of prosecution witnesses in detail and other material available
on record including the opinions of Doctors who conducted postmortem on the
dead bodies. It appears from the record that on the fateful day, a great
turmoil took place in which several innocent villagers lost their
properties, kith and kin. We notice that some of the accused are still at
large. We have carefully gone through the contentions raised by the counsel
on either side. An examination of the deposition of PW-2 (Amzad Ali)
reveals that at about 8 a.m. on the day of incident, he had witnessed the
devastation carried on by the mob under the supervision of accused Surang
Lal Yadav who was riding on a horse carrying a sword in his hand. He
categorically stated that he had seen from the paddy field that the mob,
most of them were undoubtedly Santhals, armed with deadly weapons and
burning wooden pieces done to death about 10-12 persons, caused damage to
the properties of the villagers and set several houses ablaze. He further
stated that he had identified 33 persons in the mob including the
appellants herein and disclosed their names. In the cross examination, he
deposed that he was hiding in the paddy field for an hour from where he
witnessed the activities of the mob led by Surang Lal Yadav. Another
eyewitness PW 3 (Abdul Sattar) also deposed that Surang Lal Yadav was
carrying a sword in his hand and Anup Lal Yadav (appellant herein) had a
‘Bhala’ in his hand while they were committing the offences. PW 3 further
deposed that when he was fleeing with fear, Hopna Santhal (absconded
accused) hit on his head with a lathi from behind. PW 13 (Imazuddin) also
in clear terms deposed that Surang Lal, the leader (Mukhiya) was
instigating the mob saying kill these bhariya people. Another witness Kalu
@ Kalimuddin (PW 16) identified Sahdev Chamar (appellant herein) among
others. Other prosecution witnesses PW 17 (Abul Kabir), PW 18
(Naijiruddin), PW 19 (Abdul Kudus), PW 20 (Ainul Haque), PW 22 (Samul
Haque) who all are also eyewitnesses, narrated the roles played by the
accused and they all categorically stated that Surang Lal Yadav was leading
and instigating the mob to kill the villagers. Besides these individuals,
we have also gone through the depositions of PW 24—Devendra Pd. (a shop
owner), PW 27—Muzaffar Husain (the author of the written report), PW
28—Dhanik Lal Sah (a witness of inquest report of some dead bodies) and PW
37—Rana Krishna Singh (I.O.). The evidences of these prosecution witnesses
are corroborating and consistent. PW 38 (Shivaji Singh), ASI has
categorically deposed about the occurrence of the incident and the roles
played by the accused. He deposed that at about 10.15 a.m. on 25th
September, 1974 he visited the village Singhmari and witnessed the
gathering of large number of Santhals (accused persons) while the persons
belonging to the victim community were running helter skelter. The
evidence of the prosecution is trust worthy and inspires confidence in the
mind of the Court and by any stretch of imagination it cannot be believed
that the accused were falsely implicated. Thus, from the facts and
circumstances of the case, it is evident that the huge mob was led and
instigated by Surang Lal Yadav (appellant) and Anup Lal Yadav and Sahdev
Chamar (other appellants) who had actively participated in the carnage and
slaughtered innocent villagers with deadly weapons. It is worthwhile to
note that there is no denial on the part of the accused as to their
participation in the atrocities. In such circumstances, the Court cannot
ignore the overwhelming evidence of the prosecution witnesses who
categorically described the role played by the accused.
16. In Lalji Vs. State of U.P. (1989) 1 SCC 437, this Court observed:
“Section 149 makes every member of an unlawful assembly at the time of
committing of the offence guilty of that offence. Thus this section
created a specific and distinct offence. In other words, it created a
constructive or vicarious liability of the members of the unlawful
assembly for the unlawful acts committed pursuant to the common object
by any other member of that assembly. However, the vicarious liability
of the members of the unlawful assembly extends only to the acts done
in pursuance of the common objects of the unlawful assembly, or to
such offences as the members of the unlawful assembly knew to be
likely to be committed in prosecution of that object. Once the case of
a person falls within the ingredients of the section the question that
he did nothing with his own hands would be immaterial. He cannot put
forward the defence that he did not with his own hand commit the
offence committed in prosecution of the common object of the unlawful
assembly or such as the members of the assembly knew to be likely to
be committed in prosecution of that object. Everyone must be taken to
have intended the probable and natural results of the combination of
the acts in which he joined. [pic]It is not necessary that all the
persons forming an unlawful assembly must do some overt act. When the
accused persons assembled together, armed with lathis, and were
parties to the assault on the complainant party, the prosecution is
not obliged to prove which specific overt act was done by which of the
accused. This section makes a member of the unlawful assembly
responsible as a principal for the acts of each, and all, merely
because he is a member of an unlawful assembly. While overt act and
active participation may indicate common intention of the person
perpetrating the crime, the mere presence in the unlawful assembly may
fasten vicariously criminal liability under Section 149. It must be
noted that the basis of the constructive guilt under Section 149 is
mere membership of the unlawful assembly, with the requisite common
object or knowledge.
17. In Yunis Vs. State of M.P. (2003) 1 SCC 425, learned counsel
appearing for the appellant therein argued that no overt act was imputed to
his client and he was being implicated only on the basis of Section 149
IPC. This Court ascribing no merit to the argument, held that “even if no
overt act is imputed to a particular person, when the charge is under
Section 149 IPC, the presence of the accused as part of an unlawful
assembly is sufficient for conviction”. Accordingly the Court in that case
observed that the appellant was a member of the unlawful assembly which
itself is sufficient to hold him guilty when his presence has not been
disputed.
18. Relying on Lalji Vs. State of U.P. this Court in Subal Ghorai Vs.
State of W.B. (2013) 4 SCC 607 held;
“If an offence is committed by a member of the unlawful assembly in
prosecution of the common object, any member of the unlawful assembly
who was present at the time of commission of offence and who shared
the common object of that assembly would be liable for the commission
of that offence even if no overt act was committed by him. If a large
crowd of persons armed with weapons assaults intended victims, all may
not take part in the actual assault. If weapons carried by some
members were not used, that would not absolve them of liability for
the offence with the aid of Section 149 IPC if they shared common
object of the unlawful assembly”.
19. Further, in State of Rajasthan Vs Shiv Charan, (2013) 12 SCC 76 it
was opined by this Court:
“The pivotal question of applicability of Section 149 IPC has its
foundation on constructive liability which is the sine qua non for its
application. It contains essentially only two ingredients, namely, (I)
offence committed by any member of any unlawful assembly consisting
five or more members and; (II) such offence must be committed in
prosecution of the common object (Section 141 IPC) of the assembly or
members of that assembly knew to be likely to be committed in
prosecution of the common object. It is not necessary that for common
object there should be a prior concert as the common object may be
formed on the spur of the moment. Common object would mean the purpose
or design shared by all members of such assembly and it may be formed
at any stage. Even if the offence committed is not in direct
prosecution of the common object of the unlawful assembly, it may yet
fall under the second part of Section 149 IPC if it is established
that the offence was such, as the members knew, was likely to be
committed”.
20. Thus, by appreciating the entire evidence on record, we are unable to
accept the contention advanced by learned senior counsel for the
accused/appellants that the accused were merely passive onlookers who
joined the mob out of curiosity and they had no common intention and did
not share the common object of the unlawful assembly. In the light of
aforementioned decisions of this Court, we are also not able to appreciate
the contention of the appellants that no overt act has been attributed to
each of the accused hence application of Section 149, IPC is not justified.
We have no hesitation to come to a conclusion that the appellants were part
of the unlawful assembly sharing the common object of killing, rioting and
looting the villagers. Each one of the accused played an active role in
furtherance of the common object of the assembly and the Courts below were
perfectly right in convicting the accused/appellants under Section 149,
IPC.
21. Hence, in our considered opinion, the prosecution has proved its case
beyond reasonable doubt. In view of the settled principles of law, once it
is established that the unlawful assembly had a common object, it is not
necessary that all persons forming the unlawful assembly must be shown to
have committed some overt act, rather they can be convicted under Section
149, IPC. We, therefore, find no error in the order of conviction and
sentence passed by the Trial Court and affirmed by the High Court calling
our interference under Article 136 of the Constitution.
22. The appeals fail and are hereby dismissed.
………………………………….J.
(RANJANA PRAKASH DESAI)
…………………………………J.
(N.V. RAMANA)
NEW DELHI,
SEPTEMBER 26, 2014.
