Allahabad High Court
Santosh vs State Of U.P. on 17 March, 2020
Bench: Sunita Agarwal, Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- CRIMINAL APPEAL No. - 2004 of 1997 Appellant :- Santosh Respondent :- State of U.P. Counsel for Appellant :- Apul Misra,P.N. Mishra,Raghuvansh Misra,Raghuvash Mishra,Rahul Misra Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Pradeep Kumar Srivastava, J.
1. Heard Sri Rahul Misra, learned counsel for the appellant, Sri L.D. Rajbhar and Sri Prem Shankar Misra, learned A.G.A.(s) for the State-respondents.
2. The present criminal appeal has been filed challenging the judgment and order dated 17th October, 1997 passed by the Additional Sessions Judge/Special Judge (E.C. Act), Mainpuri in Sessions Trial No. 298 of 1988 (State vs. Santosh) arising out of Case Crime No. 609 of 1987 under Sections 148, 307/149 and 309/149 IPC, Police Station Kotwali, District Mainpuri.
3. The above trial had proceeded only against accused Santosh, the appellant herein out of five accused persons for the murder of deceased Suresh Singh. The accused Mukesh to whom main role of firing had been assigned, had died before commencement of the trial. Whereas another accused Pappu remained absconded. The identity of two other unnamed accused persons could not be determined during investigation. Resultantly, after trial only the appellant has been convicted under Section 302 and 149 IPC readwith Section 148 IPC for life imprisonment and ten years' rigorous imprisonment for offences under Section 307 and 149 IPC. All the sentences are to run concurrently.
4. As per averments in the first information report lodged on a written report given by Ramesh Singh son of Natthu Singh, his elder brother deceased Suresh Singh was murdered by Mukesh son of Shankar Pahelwan in the unlawful assembly of Pappu son of Farid Khan, Santosh (the appellant herein) and two unknown persons outside his house situated at Punjabi Colony, Police Station Kotwali, Mainpuri. As the prosecution story begins, the first informant Ramesh Singh heard a calling from outside his house while he alongwith his elder brother Suresh Singh, younger brother Mahesh and Ram Prakash resident of Punjabi Colony was sitting inside his house. The voice called "jes'k gS D;k?". Hearing the same, deceased Suresh Singh, Mahesh, the first informant, Rajendra and Ramesh came out of the door of the house one after the other. The deceased Suresh Singh was first to come out and the last one was Ram Prakash. When the first informant came out, he witnessed all the accused persons standing there carrying Country made pistols in their hands. Seeing them, Suresh asked "D;k ckr gS" (what happened?). Hearing this, the accused Mukesh while hurling abuses exhorted others by saying "ns[krs D;k gks ekjks" and opened a fire at Suresh which hit his abdomen. The accused persons were challenged and chased by the complainant and other witnesses but all accused persons fired shots from their country made pistols with intention to kill them and it was a narrow escape for the complainant and witnesses. The accused persons had, however, succeeded in fleeing from the spot.
5. The first informant alongwith other witnesses took deceased to hospital in a car, where he was declared brought dead by the Doctors. The first informant then reached the police station to lodge the report. The distance of the police station from the place of incident (namely Punjabi Colony) as shown in the Chik report is around 1 & ½ Kms. The date and time of incident as narrated is 9.10.1987 at around 2.00-3.00 PM, whereas the first information report was lodged on the same day at around 04:32 PM. The reason for delay in FIR of about 1 and ½ hours has been explained in the Chik FIR as the time consumed in taking deceased to hospital. The prosecution produced two witnesses of facts, PW-1 Ramesh Singh (eye-witness and brother of the deceased), PW-2 Ram Prakash Singh (another eye-witness).
6. Amongst the formal witnesses, PW-6 Shruti Sen Singh Constable Clerk posted in the police station Kotwali, Mainpuri proved the Chik FIR and GD entry of the same as Exhibit 'Ka-10' and Exhibit 'Ka-11'. He proved that the GD entry after registration of the Chik FIR was made in his writing and signed by him. The Exhibit 'Kha-1' is the G.D. no. 43 proved by him in the writing of Rameshwar Dayal Mishra, another police officer. The said entry pertains to the letter of the Doctor which was received in the police station. The letter of the Doctor was proved as Exhibit 'Kha-2'. In cross-examination, PW-6 stated that he had no enmity with the appellant Santosh and no case was lodged against the appellant prior to the present report. He denied suggestion of the first information report being a result of deliberation with the first informant. PW-5 is the Doctor who had conducted postmortem of deceased Suresh Singh Chauhan. As per his opinion, the death was caused as a result of Ante-mortem injury. One Ante-mortem injury of firearm wound was found on deceased Suresh which is described in the postmortem report as under:-
"Ante-mortem injury:-
Wound of entry-Single circular, margins are inverted, charred, irregular surrounding skin is blackened and scorched in an area of "1 inch x 1 inch" around the wound, size of the wound was "3c.m. x 3c.m." abdominal cavity deep, 8c.m. above the umbilicus at 12 o'clock position on abdomen, direction from front to backward."
On internal examination, semi digested food about 8 ounces was found in the stomach, whereas small intestine was empty, ruptured corresponding to the Ante-mortem injury. Large intestine was loaded with faecal matter. Bullets recovered from the abdominal cavity was conical, 3c.m. long metallic kept in a sealed envelope and sent to the Senior Superintendent of the Police, Mainpuri. PW-5 stated that he cannot describe bore of the bullet which was found in the abdominal cavity but opined that the deceased was shot from about a distance of not more than 3 feet.
7. PW-4 is the witness of inquest and proved that the inquest was done in the hospital and he reached on receipt of memo from the hospital at about 03:05 pm and the said fact is mentioned in the relevant column of the inquest report. The number and year of criminal case was not mentioned in the inquest as the said details were not available by the time of preparation of the report. He denied suggestion of the first information report being lodged in consultation with a Head Constable Santosh posted in the same police station.
8. PW-3 is the Investigation Officer, who was posted in the Police Station Kotwali as Incharge Inspector at the relevant point of time and that he commenced investigation after registration of the case. He recorded statement of first informant Ramesh Singh at the place of incident and prepared the site plan in his own handwriting and signature which is correct as per the spot, and is exhibited as Exhibit Ka-3. The statements of other witnesses were also recorded by him and search was conducted to nab the accused persons. The accused Santosh was arrested in front of his house on 10.10.1987. Mukesh died during the course of investigation and another co-accused Pappu @ Shakeel remained absconded, as such the charge sheet was submitted against him in the same position, which is proved as Exhibit 'Ka-4'. During cross-examination, he denied the suggestion regarding previous enmity of accused Santosh with a Head Constable Santosh posted in the Police Station Kotwali, Mainpuri. A suggestion was also given that the father of accused Santosh namely Jogeshwar was also arrested in a false case by the police of the same police station and was challaned in an illegal manner, which he denied. On another suggestion, he stated that though identity of co-accused Santosh was not disclosed in the first information report but he could identify accused Santosh on the description given by the first informant in his statement under Section 161 Cr.P.C., which was recorded by him at around 5:15 PM on the same day i.e. 9.10.1987. He further deposed that he did not collect any cartridge, blood or pallet from the spot or any other incriminating article or weapon as no such thing was found. He did not think it necessary to get the description of the car which was used to take deceased to the hospital.
He did not record statement of the Doctor who declared victim Suresh Singh being dead as the memo which was received in the police station contained his name. He proved that the GD entry of the memo of the hospital was made by the concerned Clerk. He moved to the place of incident from the police station at around 16:32 hours. He denied the suggestion of place of incident being somewhere else or he having not visited the place of incident soon after lodging of the first information report. He, however, states that the memo of intimation to police sent by the Doctor from the hospital did not contain the description of place of incident and as such, another Sub-Inspector was sent to the hospital.
9. PW-1 the first informant Ramesh Singh, brother of deceased Suresh Singh proved his version of the first information report in his deposition before the trial court and proved the written report given by him as Exhibit 'Ka-1', based on which FIR was registered. In cross-examination, he admitted that Mukesh Kumar, the main assailant was murdered but denied the suggestion of his own involvement in the murder. He admitted that in the written report he could not give description of accused-appellant Santosh but the person present in the Court was the same person. He denied suggestion of any altercation between accused persons and deceased Suresh prior to the incident-in-question and any enmity with accused Santosh. He denied not being acquainted with appellant Santosh and stated that he knew Santosh prior to the incident. PW-1 denied that the incident occurred inside the house and stated that it occurred 4-5 steps away from the door of the house in the 'Gali', the lane in front of the house. He admitted that accused Mukesh hit deceased Suresh Singh after half a minute of him coming out of the house. The deceased fell on the ground as soon as he was shot and became unconscious. Within 5 to 10 minutes of the shot they moved to the hospital. He then stated that they chased accused persons for about 10-15 paces in the 'Gali'. While running away, Mukesh was in front and Santosh (the appellant) was behind him and other three persons followed them; all five accused persons fired at them while running away. He denied suggestion that no firing was made by the accused person while fleeing away. He denied that witness Ram Prakash Singh was related to him rather he was a resident in Gali No. 4, Punjabi Colony whereas deceased and the first informant were residing in Gali no. 5. He deposed that identity of appellant Santosh was disclosed by him to the Investigating Officer.
10. PW-2 Ram Prakash Singh, resident of Gali No. 4, Punjabi Colony, Mainpuri stated in examination-in-chief that on 9.10.1987 he went to the house of Ramesh Singh to borrow a Spade (फावड़ा) as some repairs were going on in his house. While he was sitting alongwith Ramesh Singh and others, he heard a voice from the lane outside the house calling, "jes'k gS D;k?". Hearing the voice, Suresh Singh alongwith others came out of the house and accused Mukesh fired at Suresh which hit his abdomen. This witness also narrated the prosecution story almost in the same manner as has been done by first informant PW-1. He, however, did not state that there was any exchange of words between accused Mukesh and deceased Suresh Singh. As per his version, as soon as Suresh Singh alongwith others came out of the house, Mukesh fired him saying "kill him" (ekj nks xksyh).
11. There is some contradiction in the statement of two eye-witnesses with regard to the manner in which they took deceased to the hospital. PW-2, however, stated that they chased the accused persons and all of them had fired at them. He stated that he knew accused Santosh as he saw him 4 to 6 times prior to the incident roaming in Punjabi Colony being a 'Gunda' type of man. He states that though he saw accused-appellant Santosh but did not have any conversation with him. PW-2 denied suggestion of false implication of accused-appellant Santosh at the instance of someone else. He categorically replied in cross-examination that the accused persons fired four (4) shots from their weapons while fleeing away but no one got injured nor any pallet was found on the spot. This witness was recalled after three years of completion of his cross-examination and denied the suggestion that he was not residing in Punjabi colony at the time of incident. He stated that the House no. 44, Gali No. 4, Punjabi Colony was purchased by him in the year 1986 and he alongwith his family was residing therein, new number 85 has been allotted to the said house. He also denied that he was residing in the Village at the time of the incident.
12. Placing the statements of the prosecution witnesses noted above, Sri Rahul Mishra learned counsel for the appellant vehemently argued that the first information report was lodged against five persons in order to constitute offences under Sections 148 and 149 of the Indian Penal Code on a concocted story. Two unknown persons have been added in the first information report in deliberation with the police personnel to give the whole incident a colour under Section 149 and to make all the accused persons vicariously liable for the act of main assailant Mukesh. Only one of the accused persons, the present appellant remained to be tried as the main accused Mukesh had been murdered during pendency of the investigation. Other unnamed accused could not be found by the police. Eye-witness PW-1 is brother of the deceased and the first information report had been lodged after about two hours though distance of the police station was only about 1-1/2 km. for the reason that the report was written after deliberations with the police personnel. The scribe of the written report was not produced. The witnesses of inquest were also the witnesses of the incident as is clear from the written report lodged by PW-1, but name of the assailant has not been mentioned in the inquest.
Single firearm injury had been assigned to Mukesh and as per the version of the first informant, main target was Ramesh (first informant). Not a single wound or any kind of injury had been caused to him. No one other than deceased had been injured.
13. The FIR is Ante-time as it was lodged after inquest was done in the hospital which gave sufficient time to the witnesses to deliberate for false implication of accused persons. The description of accused-appellant Santosh in the first information report was not complete which shows that the first informant was not sure about his identity. The version in FIR of appellant Santosh being one of the members of the alleged unlawful assembly of five or more persons is incredible. As per version of the first informant, all accused persons (five in number) fired indiscriminately on the persons chasing them but there is no recovery of a single pallet or bullet from the place of occurrence. The Gali (lane), in which day-time incident allegedly had occurred was a densely populated area but not a single independent witness was produced who could even prove that he heard the sound of fire. The accused persons, according to the first informant, were at 4-5 paces from the door of the house. There is no report of any projectile being found on the spot from the incessant fires made by the accused persons.
PW-2 is a chance witness and his presence is highly doubtful, inasmuch as, reason given by him to come to the house of the accused does not seem to be natural and probable. Moreover, PW-1 and PW-2 are interested witnesses being related to the victim. Their testimonies in absence of any independent witness cannot be made basis for conviction of accused-appellant Santosh.
14. It is vehemently argued that the story in fact started from the hospital and the incident had actually occurred at some other place. The letter sent by the Doctor intimating the police was not produced. The first information report is a result of consultation with the police and false implication of accused-appellant Santosh cannot be ruled out. The appellant had been convicted under Section 307 IPC on the version of the prosecution witnesses (PW-1 and PW-2) that he fired at them while running away. Whereas as per own version of the PW-1, accused persons had no intention to murder others as the fire was incessant or indiscriminate and all of them fled while the witnesses were standing in front of them in the Gali. There is no allegation that the appellant Santosh had fired at such a distance to make sure that the persons on whom he was firing must be killed. His conviction under Section 307 IPC readwith Section 149 IPC is, therefore, not sustainable.
15. Further on mere accompanying the main accused without any proof of being member of alleged unlawful assembly having common object to commit the crime or knowledge that the crime would be committed, the accused-appellant cannot be convicted for the offence of murder under Section 302 IPC, by taking recourse to Section 149 IPC on the principle of vicarious liability. The role of exhortation and firing both had been assigned to accused Mahesh, whereas other accused persons had allegedly given cover to the main accused in helping him fleeing away by detaining the witnesses from catching hold of the main accused. General role has been assigned to all the members of alleged unlawful assembly in the omnibus statements of the prosecution witnesses. Even if, the whole prosecution story is found to be true regarding the place and time of incident, the conviction of the accused-appellant under Section 302/149 and 307/149 and 148 IPC cannot be sustained.
16. One more circumstance was brought before the Court in the painstaking arguments made by the learned Advocate that deceased was brought to the hospital earlier and he was treated by the Doctor attending him. The submission is that deceased was hit at some prior point of time and was admitted in the Hospital and during treatment he died. The doctor then sent intimation to the police. During this time gap, PW-1 cooked up the story to implicate all the five accused. The version of the prosecution witnesses (PW-1 and PW-2) that deceased was declared brought dead is absolutely false. The said fact can be ascertained from the description of the injury found in the inquest report as under:-
"pksVs:- yk'k dks myV iyV dj ns[kk x;k rks yk'k ds isV es ukfHk ls djhc 5 vaxqy mij fu'kku pksV [kwu vkywnk ftles dkVu ¼:bZ½ yxh gqbZ gSA vU; dksbZ pksV fu'kku e`rd ds 'kjhj ij izdV ugh gSA"
According to the learned Advocate for the appellant, presence of cotton in the firearm wound is proof of defence version that the first information report was Ante-timed and it being result of deliberation as victim was shot earlier and treated in the Hospital before he died.
17. Learned A.G.A., on the other hand, vehemently argued that the presence of eye-witness PW-1 being a natural witness cannot be disputed. PW-2 has given reason of his presence at the place of occurrence which cannot be doubted in any manner. Eye-witness account of the incident is clear and consistent and their version of presence of accused-appellant Santosh at the scene of occurrence cannot be discarded. It was also successfully proved by the prosecution that the accused-appellant alongwith other four persons opened fire at the witnesses in order to give a shield/cover to the main assailant Mukesh. The act of firing by the accused-appellant Santosh makes him liable for conviction for the offence under Section 307 readwith Section 149 IPC. Further the prosecution has successfully proved that five persons formed an unlawful assembly with common object and knowledge and they reached at the place of incident occurred with the clear idea in mind that murder was going to be committed and one of the accused person in furtherance of that common object opened fire at deceased Suresh. The accused persons ran away while firing when chased by the witnesses, the whole act of the accused persons in prosecution of their common object makes each of them vicariously liable for the offence of murder under Section 302 readwith Section 149 IPC.
18. Having heard learned counsel for the parties and perused the record, on analysis of the deposition of prosecution witnesses noted above, it would be pertinent to note that there cannot be any dispute with regard to place and time of incident. Both the prosecution witnesses have been produced as eye-witness. The incident took place on 9.10.1987 at about 2-3 pm and FIR has been lodged at about 16:32 pm. The Police Station is 1-½ km. away from the place of occurrence. The deceased was first taken to the Hospital where he was declared dead and, thereafter, the FIR was lodged. In the facts and circumstances of the case, there appears to be no delay in lodging FIR. The first information report had been lodged within a gap of approximately 2 to 2 ½ hours of the occurrence of the incident. If for the sake of argument, it is assumed that there was delay, the reason for the said delay has also been explained in the Chik FIR itself. The inquest was done in the hospital on the intimation given by the Doctor. The letter of the Doctor had been proved by PW-6 who had entered the same in the General Diary (G.D.) on the same day at around 15:05 hours. The act of the witnesses in taking the deceased to the hospital to save his life is the most natural and expected one. It, therefore, cannot be said that the first information report was an Ante-time report.
19. The inquest had commenced at about 15:05 hours by the Sub-Inspector, who appeared in the witness box as PW-4. It was proved by PW-4 that he proceeded to the police station on the basis of memo received from the District Hospital, Mainpuri and the inquest did not contain the details of FIR as the report was not lodged by that time. The time of intimation in the police station indicated in the inquest report is 15:05 hours. Though the time of commencement of inquest has not been mentioned therein but the time of completion is mentioned as 17:00 hours. The distance of the District Hospital, Mainpuri from the police station is about one km. By mere reason of non-mentioning the name of the assailant in the inquest, it cannot be said that the same was prepared by PW-4 while sitting in the police station.
The contention of the learned counsel for the appellant that non-mentioning of the name of the assailant at the time of inquest by the eyewitnesses who are inquest witnesses would be a factor to discard their version, is found misconceived. It would be going too far to say that mere non-disclosure of the name of the assailant in the inquest would be fatal to the prosecution story.
The Apex Court in Yogesh Singh vs. Mahabeer Singh & others1 has considered the evidentiary value of the inquest report prepared under Section 174 Cr.P.C. and had considered the effect of non-recording of relevant entries in the inquest report. It was held therein that the inquest is not the substantive piece of evidence and can only be looked into for testing the veracity of the witnesses of inquest. The object of inquest is to ascertain the apparent cause of death (suicidal, homicidal, accidental or any other cause) and stating in what manner, or by what weapon or instrument, the injuries on the body of deceased appear to have been inflicted. It was held that the non-recording of certain relevant entries in the inquest report do not constitute a material defect so grave to throw out the prosecution story and the otherwise reliable testimonies of prosecution witnesses that have mostly remained uncontroverted. Reference may also be made to Pedda Narayan Vs. State of A.P., (1975) 4 SCC 153; Khujji Vs. State of M.P., (1991) 3 SCC 627; Kuldip Singh Vs. State of Punjab, 1992 Supp (3) SCC 1; Suresh Rai Vs. State of Bihar, (2000) 4 SCC 84; Amar Singh Vs. Balwinder Singh, (2003) 2 SCC 518; Radha Mohan Singh Vs. State of U.P., (2006) 2 SCC 450; George and Ors. Vs. State of Kerala and Anr., (2008) 4 SCC 605; and Sambhu Das Vs. State of Assam, (2010) 10 SCC 374].
20. Further there is no inconsistency in the ocular version and the medico legal report regarding injuries on the person of the deceased. Mere fact that no independent witness had been produced by the prosecution, the evidence of natural witness, own brother of deceased and a neighbour being cogent, credible and trustworthy, cannot be discarded so as to dispute their presence or the place of occurrence.
21. Further the submission of learned counsel for the appellant that the implication of accused-appellant Santosh was a result of deliberation of the police constable namely Santosh with PW-1, (the first informant), is also not established. Though suggestion was given to both the witnesses (PW-1 and PW-2) as also the Investigating Officer PW-3 in this regard but nothing can be elicited from their testimony which would prompt this court to accept the version of the defence that the appellant Santosh was falsely implicated as a result of some enmity with a Head Constable (named as Santosh) posted in the Police Station Kotwali, Mainpuri, where the incident-in-question was first reported. The above explanation offered by the accused in his statement under Section 313 Cr.P.C. appears to be a result of tutoring.
22. Further, on the assertion of learned counsel for the appellant that no independent witness had been examined by the prosecution, suffice it to note that the evidence of a closely related witness though required to be carefully scrutinized and appreciated before any conclusion is made to rest upon it but cannot be discarded merely on the ground that witnesses are related to each other or to deceased. In case, the evidence has a ring of truth to it being cogent, credible, trustworthy, it can and certainly should be relied upon. [Reference Yogesh Singh1] Relevant paragraphs of the said report are noted hereunder:-
"24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab, AIR 1953 SC 364, is one of the earliest cases on the point. In that case, it was held as follows:
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
25. Similarly, in Piara Singh and Ors. Vs. State of Punjab, (1977) 4 SCC 452, this Court held:
"4......It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
26. In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh, (1981) 3 SCC 675, a three-judge Bench of this Court observed:
"13.... it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
27. Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following observations were made by this Court:
"7. .....The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52).
23. It would not, therefore, be possible for us to conclude that the incident did not occur at all in the Gali no. 5 Punjabi Colony in front of the house of the deceased and first informant. Mere fact that no bullets or projectile from the alleged incessant firing made by the accused persons could be recovered, doubt cannot be raised on the prosecution story regarding the place of incident. The reason being that the place of occurrence being a busy public lane, tampering of evidence at such places cannot be ignored.
24. Further as noted above, FIR was prompt and there was no scope for deliberation before the first informant with the witnesses or the police official who was allegedly inimical to accused Santosh. It is proved from the record that while inquest was being conducted in the hospital in the presence of other witnesses, the first informant (brother of deceased) went the police station which was barely one km. away from the hospital to lodge the first information report. The first information report was lodged at about 16:32 hours, whereas the inquest was completed at 17:00 hours.
It is also proved from the medical report that deceased Suresh was shot from close range as blacking and scorching was found around the wound. There is no doubt that only one person Mukesh had fired at deceased Suresh which had resulted in his death while being taken to the hospital. The question, therefore, remained to be considered for us as to whether for the act of accused Mukesh in causing murder of deceased Suresh, the present appellant Santosh stated to be present at the place of occurrence can be held guilty by taking recourse to Section 149 IPC.
To find answer to this question, we would have to again delve upon the version of the first informant in his written report and deposition of eye-witnesses before the Court so as to find out as to whether the ingredients of Section 149 IPC are found to be existing in the facts and circumstances of the present case.
25. But before doing so, we think it apt to appreciate the well establish legal principles relating to the requirements of Section 149 IPC so as to examine whether they are found to be fulfilled in the present case.
In order to appreciate the controversy, it would be useful to first refer the Section 149 IPC which reads as follows:-
"Section 149 IPC:- 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."
The essential ingredients of Section 149 IPC are:-
(i) Commission of an offence by any member of an unlawful assembly; (ii) Such offence must have been committed in prosecution of the common object of that assembly; (iii) or must be such as the member of that assembly knew it be likely to be committed.
26. In Barendra Kumar Ghosh v. King Emperor2, it was considered that Section 149 creates a specific offence and deals with the punishment of that offence alone. It postulates an assembly of five or more person having a common object, viz., one of those named in Section 149 IPC and then the doing of the acts by members of it in prosecution of that object. While dealing with Section 34 of the Indian Penal Code and Section 149 IPC, it was held therein that there is a difference between object and intention, for, though the object of members of unlawful assembly is common but their intentions may differ and indeed may be similar only in respect that they are all unlawful. While the element of participation in action is the leading feature of Section 34, Section 149, however, make the member of unlawful assembly vicariously liable only by membership of the assembly at the time of committing of the offence. As both sections deal with combinations of persons, who become punishable as sharers in an offence, there is some resemblance and both may to some extent overlap. But Section 149 requires that the prosecution must prove that by being member of the unlawful assembly, the person concerned shared the common object of that assembly and an offence had been committed in prosecution of the said common object or that the member of that assembly knew it that the offence was likely or would be committed.
27. Once the ingredients of Section 149 are satisfied, for applicability of Section 149, there need not be a prior meeting of minds. It is enough that each member has the same object in view. The law of vicarious liability under Section 149 IPC is crucial one and from an exhaustive reading of judicial pronouncements, it can be culled out as that:
(i) even mere presence in the unlawful assembly but with an active mind to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.
(ii) It is not necessary that five or more persons must necessarily be brought before the court and convicted. The basis of constructive guilt under Section 149 is mere membership of an unlawful assembly.
(iii) Crime may be committed by one person only but every person who happened to be a member of that assembly would be liable for that criminal act by virtue of his being a member of it, irrespective of the fact whether he actually committed the criminal act or not.
(iv) The meaning of prosecution of common object is attainment of common object; and 'object' means purpose or design and in order to make it common, it must be shared by all and no proof of overt act is necessary.
(v) Joining together with common object to commit the crime is to be proved by the prosecution. Knowledge that others are going to commit the crime is to be proved and established by the prosecution.
(vi) In a case of unlawful assembly, if proof of common object is not furnished, conviction with the help of Section 149 IPC will not be permissible. Constructive liability is sine qua non for application of Section 149. The word 'knew' used in section means that there should be positive knowledge.
(vii) Mere presence in an unlawful assembly cannot render a person liable for an offence committed by that assembly unless there was a common object. The common object has to be definitely found and cannot be a matter of conjuncture or inference.
Reference Shambhu Nath Singh and others vs. State of Bihar3, Masalti and others vs. State of Uttar Pradesh4, Tarlok Singh and others vs. State of Punjab5, State of Maharashtra vs. Kashirao and others6, Sheo Prasad Bhor Alias Sri Prasad vs. State of Assam7, Maranadu and another vs. State by Inspector of Police, Tamil Nadu8, Pandurang Chandrakant Mhatre and other vs. State of Maharashtra9, Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad10, Amerika Rai and others vs. State of Bihar11, Shaji and others vs. State of Kerala12, Ramachandran and others vs. State of Kerala13.
28. Now the crucial question before us is what would constitute an unlawful assembly and when sentence for offence could be imposed on members of an unlawful assembly who themselves have not committed the offence of murder. Some of the above referred decisions, however, have to appreciated to understand the legal position in that regard.
(i) In Masalti4, it was observed that:-
"17. xxxxxxxxxx..........what has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 I.P.C. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly xxxxxxxxxx." (Emphasis supplied).
In that case it was further found that:-
"20. ...................xxxxxxxxx.....Whether or not sentences of death should be imposed on persons who are found to be guilty not because they themselves committed the murder, but because they were members of an unlawful assembly and the offence of murder was committed by one or more of the members of such an assembly in pursuance of the common object of that assembly, is a matter which has to be decided on the facts and circumstances of each case. ........xxxxxxx.....".
(Emphasis supplied)".
(ii) In Tarlok Singh5, the Apex Court on appreciation of evidence on record held that the prosecution could not establish that except one accused namely Tarlok Singh, other accused have at any time entertain an intention to commit murder and they cannot, therefore, be held liable under Sections 307/149 IPC. It was found that statement of prosecution witness was an omnibus statement. The firing appears to have been sudden and the other accused could not have acted in concert in furtherance of that design, or could not have known that accused would fire.
(iii) In State of Maharashtra vs. Kashirao and others6, it was considered that:-
"12. xxxxxxxxx...... The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly. (Emphasis supplied)
13. 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. (Emphasis supplied) It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti.
14. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section.
The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be called out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word 'knew' used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and others v. State of Mysore : AIR 1956 SC 731.)"
It was further held in paragraph '15' of the said report that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act? While overt act and active participation may indicate common intention of the person perpetrating the crime under Section 34 IPC, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It was held that no hard and fast rule of universal application can be invoked. In the facts of a case, the essential ingredients of Section 149, however, have to be amply established.
(iv) In Pandurang Chandrakant Mhatre9, the Apex Court considering its previous decision held that the legal position laid down in Masalti4 admits of no doubt and has been followed time and again. However, where a large number of persons are alleged to have participated in the crime and they are sought to be brought to book with the aid of Section 149 IPC, the Court has to apply rule of caution taking into consideration particular facts situation to convict only those accused whose presence was clearly established and overt acts were proved.
Observations made in the previous decisions of the Apex Court were considered in paragraphs '67', '68' '69' and '70' of the report as under:-
"67. In Sherey vs. State of U.P [1991 Supp (2) SCC 437], this Court held:
"4..........But when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance. From that point of view it is safe only to convict the abovementioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom overt acts are attributed."
68. In Musa Khan vs. State of Maharashtra [1977 (1) SCC 733], this Court observed:
"5. ........Thus a court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all these stages."
69. In Nagarjit Ahir vs. State of Bihar [2005 (10 SCC 369], this Court applied rule of caution and in the facts and circumstances of the case held that it may be safe to convict only those persons against whom overt act is alleged with the aid of Section 149, IPC lest some innocent spectators may get involved.
70. In Maranadu vs. State [2008 (16) SCC 529)], this Court for determination of `common object' of unlawful assembly stated the legal position thus:
".....For determination of the common object of the unlawful assembly , the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti."
It was then held in paragraph '72' that:-
"72. ..................It is well-known that for determination of common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly before and at the time of attack is of relevant consideration. At a particular stage of the incident, what is object of the unlawful assembly is a question of fact and that has to be determined keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene of incident."
Considering the above, it was found in the facts of that case that nineteen persons were accused of coming to the scene of occurrence armed with deadly weapons sharing the common object of causing grievous hurt to the victim party. On a closer scrutiny of evidence, while applying the rule of caution, it was held by the Apex Court that only those accussed persons would be convicted under Section 302 readwith Section 149 I.P.C whose presence as members of the party of assailants is consistently mentioned and their overt acts in chasing and assaulting deceased was clearly proved. Giving benefit of doubt to the remaining, they were acquitted of the offence under Section 302 readwith Section 149 I.P.C. since evidence against them in chasing and assaulting the deceased was not consistent.
(v) In Mohammed Ankoos10 seventy seven accused persons were charged to the effect that they were members of the unlawful assembly and in prosecution of the common object of such assembly, to commit the murder of five persons, committed the offence of rioting by pouring kerosene and thereby committed an offence punishable under Section 148 IPC. All the accused were charged of committing murder by intentionally causing death and thereby committed an offence punishable under Section 302 IPC.
In the said case, the trial court found that neither the offence under Section 148 IPC nor under Section 302 IPC was established against the accused beyond reasonable doubt. The High Court though affirmed the findings of the trial court about the acquittal of the appellants under Section 148 IPC but convicted them for the offence punishable under Section 302 readwith Section 149 IPC.
The Apex Court considering the object of Section 149 IPC held that though Section 149 IPC creates constructive liability, i.e. a person who is a member of the unlawful assembly is made guilty of the offence committed by another member of the same family in the circumstances mentioned in the Section, although he may have had no intention to commit that offence and had done no overt act, except his presence in the assembly, in sharing the common object of that assembly. But in the facts of the said case, it was found that the appellants have been specially charged for the offence punishable under Section 148 IPC and have been acquitted thereunder, that means they were exonerated of the charges of offence of rioting. It was, thus, difficult to sustain their conviction for the offence punishable under Section 302 readwith Section 149 IPC. The recourse to Section 149 IPC cannot be taken in such an eventuality.
(vi) In Kuldip Yadav and others vs. State of Bihar14, it was held that Section 149 makes it clear that before convicting the accused with the aid of this provision, the court must give clear finding regarding nature of common object and that the object was unlawful. In absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove "common object".
It was observed in paragraph '36' as under:-
"36. .........xxxxxxxxxxxx.........Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, essential ingredients of Section 141 IPC must be established. The above principles have been reiterated in Bhudeo Mandal and Others vs. State of Bihar (1981) 2 SCC 755."
Observations in the previous decisions of the Apex Court in Ranbir Yadav vs. State of Bihar15 and Allauddin Mian vs. State of Bihar16 were noted in paragraphs '37' and '38' of the report as under:-
"37. In Ranbir Yadav vs. State of Bihar (supra), this Court highlighted that where there are party factions, there is a tendency to include the innocent with the guilty and it is extremely difficult for the court to guard against such a danger. It was pointed out that the only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on acceptable evidence which in some measure implicates such accused and satisfies the conscience of the court.
38. In Allauddin Mian and others vs. State of Bihar (supra), this Court held:-
"8. ........Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of any one or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149 IPC."
In paragraph '39', it was further stated:-
"39. It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC."
It would also be useful to reproduce paragraph '40' of the said report:-
"40. In Rajendra Shantaram Todankar vs. State of Maharashtra and others (2003) 2 SCC 257, this Court has once again explained Section 149 and held as under:
"14. Section 149 of the Indian Penal Code provides that 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. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 -- either clause -- is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act."
(vii) In a subsequent decision in Shaji and others vs. State of Kerala17, considering the above rulings, it was held that in order to attract Section 149 IPC, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object.
29. In light of the above legal position for attracting Section 149 IPC in the fact situation of a case, we proceed to examine the version of eye-witnesses (PW-1 and PW-2) to assess as to how and in what manner incident had actually occurred and whether appellant Santosh, who was stated to be member of unlawful assembly, can be said to have acted in prosecution of common object of unlawful assembly or he knew or was aware of the likelihood of murder of deceased by Mukesh. We have to see whether the prosecution has proved beyond reasonable doubt that the appellant Santosh was guilty of the offence committed by another member (Mukesh) of the same assembly having done something to accomplish common object of the Assembly or having knowledge of the likelihood of commission of the offence.
30. As per narration of PW-1 in the written report and his deposition before the court while he alongwith his elder brother Suresh Singh, younger brother Mukesh and PW-2 Ram Prakash was sitting inside his house, on hearing a voice asking "whether Ramesh was there?", his elder brother deceased came out of the house. His younger brother Mukesh, he himself and PW-2 Ram Prakash followed the deceased. The first informant himself came out a little later i.e. after his younger brother Mukesh. When he saw the accused persons (five in number), they were standing in the Gali with country made weapons in their hands. As per version of PW-1 before the court, upon asking of deceased Suresh "D;k ckr gS" as to why they came, Mukesh hurled abuses on all of them and while shouting "ekjks lkyks dks", Mukesh hit a gun shot in the abdomen of deceased who fell down. PW-1 alongwith other witnesses made an effort to nab the accused persons, who opened fire at them while running away. This version of PW-1 in his deposition is at a slight variance with the statement in the written report (Exhibit 'Ka-1') with regard to the last words spoken by Mukesh before opening fire. In the written report, the words spoken by Mukesh before hitting the deceased were "ns[krs D;k gks ekjks". As per the version in the FIR, Mukesh exhorted others to open fire whereas in the examination-in-chief, the words of exhortation by Mukesh to the members of the unlawful assembly was to kill all of them. Noticeable is that none of them except Mukesh fired when each member of that assembly according to the prosecution were carrying firearms in their hands.
Further in cross, PW-1 admits that accused Mukesh did not open fire at his brother immediately after he came out from the door of the house; Mukesh was at a short distance of about 4-5 paces from his brother and they were facing each other. He also states that his brother was shot after about half a minute when he and his brother (both) came out of the house. PW-1 was the third one to come out as per his statement in the FIR and the incident of firing occurred in the Gali outside the house.
The relevant part of the statement of PW-1 in cross-examination is reproduced for ready reference:-
"मकान के अन्दर घटना नहीं हुई थी। घटना मकान के दरवाजे के सामने गली में हुई थी। दरवाजे के चार पांच कदम आगे गली में घटना हुई थी।
मेरे भाई मृतक पैन्ट व सर्ट पहने थे। रंग नहीं बता सकता हूँ। esjs HkkbZ ds njokts ls fudyus ds ,dne ckn xksyh ugh ekjh Fkh ftl le; essjs HkkbZ dks tc xksyh yxh ml le; [kMs gq, FksA xksyh yxus ds le; eS vius HkkbZ ls ,d nsM gkFk nwj vius edku dh rjQ FkkA eS bUVj ikl gWWwA eq>s fn'kkvks dk Kku ugha gSA esjs HkkbZ dk eqg xksyh yxus ds le; dEiV QSDVªh dh rjQ FkkA eqds'k esjs HkkbZ ls pkj ikap dne ds Qklys ij QSDVªh dh rjQ FkkA gekjs edku ds lkeus xyh djhc 15 QhV pkSMh gSA eqds'k esjs HkkbZ ds eqg ds lkeus gh FkkA esjs HkkbZ o esjs ?kj ls fudyus ds djhc vk/kk feuV ckn eqds'k us xksyh ekj nh FkhA dVVk fdl cksj dk Fkk eSa ugh crk ldrk gwwW nksuks gkFkksa dks vkxs dks c 31. From a careful reading of the above narration of the incident by PW-1 in the written report and his oral deposition before the court, it is clear that the accused persons came to call Ramesh, the first informant and there was some verbal exchange of words between two parties before deceased Suresh was hit by Mukesh. It is evident that the incident of firing occurred in the Gali at a distance of 4-5 paces from the door of the house. Mukesh first hurled abuses on all the persons of the victim party and after about half a minute after first informant came out of the house, Mukesh hit in the Abdomen of deceased after shouting "ekjks lkyks dks". The possibility of heated exchange of words between accused Mukesh and the victim party specifically with deceased Suresh cannot be ruled out. The postmortem report further indicates that deceased was shot from a close range. It is clear from the ocular version that as soon as one fire was shot and deceased fell down, all the accused persons ran away while incessantly firing at the witnesses. In the ocular version of PW-1, none of the members of the victim party were carrying any firearm whereas each of the five accused persons were individually carrying country made weapons. It is difficult to believe that when accused persons (five in number) came to the house of the first informant with the common object to kill all them, why would they spare the first informant and his younger brother Mahesh who were also soft and easy targets to them. It is also difficult to believe that when deceased was fired from a close range and others accompanying him remained standing in front of the accused persons why no one was hit by any of the accused persons at that moment. According to the prosecution, the accused persons opened fire while running away only when they were chased by the witnesses. The version of PW-1 in this regard is:-
"xksyh yxus ds ckn eS eqfYteku dks ikapks dks idMus dks >iVs Fks 10&15 dne ihNk fd;k blh xyh eas ihNk fd;k Fkk ihNk djus esa ge yksx lkFk gh lkFk FksA eqfYteku Hkkxus esa vkxs eqds'k Fkk mlds ihNs lUrks"k o vkSj rhuksa yksx FksA Hkkxrs le; :d dj eqfYteku us ge yksxks ds Qk;j fd, FksA Hkkxrs le; eqfYteku us gekjh rjQ pkj Qk;j fd, ysfdu mudk dksbZ fVdyh NjkZ geus xyh esa fxjk gqvk ugha ns[kkA ".
32. Further PW-2 (another eye witness) in his deposition does not state that any exchange of words had occurred between Suresh Singh (deceased) and the main accused Mukesh or Mukesh abused all of them. He simply states that when they came out, Mukesh exhorted by saying "ekj nks xksyh" and fired whereas in the cross-examination, he states that:-
"lqjs'k ds ?kj igqpus es 5&7 feuV ckn ;g ?kVuk ?kV xbZA eSa ns[kus ls igys fdlh dks vkokt ls ugha igpku ldkA lcls vkxs lqjs'k FksA lqjs'k ds ihNs egs'k mlds ihNs jkts'k mlds ihNs eSa FkkA lcls igys eSus eqds'k dks vius ls 4&5 dne ls ns[kk FkkA eqds'k ds dgrs gh fd ekjks lkyks dks xksyh pyk nhA xksyh yxrs gh lqjs'k fxj x;sA ,d gh xksyh yxhA lqjs'k dks geus jksdus\ dh dksf'k'k dh ysfdu og fxj x;sA xksyh isV esa yxh Fkh [kwu ckgj ugh fudyk Fkk diMs vUnj lus gks rks ugh dg ldrk\ [kwu tehu ij ugh fxjk FkkA vka[ks ckgj ugha fudyh FkhA lqjs'k njokts ls 4&5 dne vkxs xyh esa fxjs bruk ugh crk ldrk fd fpRr fxjs ;k iVVA lqjs'k ds fxjrs gh eqfyteku Hkkxus yxs FksA"
From the above deposition also, it is evident that the incident had occurred in the Gali after few minutes and not immediately after deceased came out of his house. That means deceased had covered 4-5 paces after coming out of the door of his house and fire was shot while he was standing in the Gali (at the distance of 4-5 paces from the door) of his house in front of the accused persons.
On the complicity of other accused persons, (four other members of unlawful assembly), PW-2 states:-
"मैंने 8-10 कदम तक पीछा किया था और फासिज? की वजह से आगे पीछा नहीं कर पाये। दरोगा जी को मैंने पकड़ने को झपटे बताया था इससे मेरा मतलब पीछा करने से है पीछा करते समय मैं एक दो बार चिल्लाया था। हमारे चिल्लाने पर व लाश को मौके ले जाने तक वहाँ हम लोगों के अतिरिक्त और कोई नहीं आया। मृतक ने क्रीम कलर की कमीज व मटमैले रंग का पेंट पहने थे कार मे मैंने मृतक का खून नहीं देखा था। कार का नम्बर नहीं मालूम व मेक भी नहीं मालूम कि मारुती थी कि एम्बेस्डर। मैं अस्पातल से करीब पौने तीन बजे पहुंचा था।"
"पीछा करते समय 4 फायर हुए। छर्रे उन फायरों से किसी को नहीं लगे न किसी ने छर्रे पड़े देखे।"
It is also noticeable that PW-2 also states in cross-examination that he knew accused Santosh as he was a Gunda type of person and for the first time he spotted Santosh in Punjabi Colony and prior to the incident PW-2 witnesses appellant Santosh 2-4 times entering in the Punjabi colony. The Gali in which the incident had occurred was a busy lane being residential locality.
33. Having carefully examined the oral testimony of PW-1 and PW-2, it appears that one fire was shot by accused Mukesh during some altercation between him and deceased Suresh Singh. The presence of eye-witnesses on the spot though is not doubtful, but it is probable that the accused-appellant Santosh was a passive onlooker who was present on the spot out of curiously or inquisitiveness and later he had joined the assembly while running after deceased fell down. In all, the prosecution has not been able to bring forward any circumstances which would prove entertainment of common object of the assembly by the appellant Santosh or he having knowledge of the likelihood of offence of murder being committed by Mukesh.
34. The appellant Santosh was resident of Mohalla Jhapatti, of the same locality of which other accused persons were residents but the fact that PW-2 could identify him as he used to roam in and around Punjabi Colony (the place of the incident) shows that he may be present as an onlooker or passive witness during an altercation between main accused Mukesh and deceased Suresh. The possibility of his mistaken implication when he ran away from the place of occurrence after fire was shot cannot be ruled out.
In all probability, it appears that it was a case of sudden quarrel as accused Mukesh came to call Ramesh; Suresh intervened, some altercation took place, Mukesh abused the victim party and then hit deceased Suresh who was standing before him.
35. As discussed above, for determination of common object of the unlawful assembly, the conduct of each of the member of the unlawful assembly before and at the time of attack is of relevant consideration. At a particular stage of the incident, what was the object of the unlawful assembly is a question of fact and has to be determined keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene of the incident.
36. As has been held in Masalti4, the crucial question to determine in such a case is whether the assembly consisted of those persons who entertained the common object or whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. At the same time, we are also conscious that it is not necessary for the prosecution to show or establish that each member of an unlawful assembly had committed some illegal overt act or has been guilty of some illegal omission in pursuance of the common object of the assembly.
We have to, therefore, examine the case of each individual accused to separate mere spectators who had not joined the assembly and who were unaware of its motive may not be branded as member of the unlawful assembly which committed the murderous assault.
37. From a closure scrutiny of ocular evidences and the act of the accused persons in firing incessantly while running away indicates that they do not share a common object or knowledge that one of the members of the assembly may engage in a murderous assault. Their act in first running away from the scene and then firing incessantly while running though they were carrying deadly weapons and the victim party were unarmed shows that they fired only to give cover to accused Mukesh or save themselves from the clutches of the victim party.
In the instant case, we are of the considered view that the prosecution has not been able to prove the presence of common object or knowledge in the minds of members of assembly and any act done by them in prosecution of the same.
38. Having carefully read the ocular version of the prosecution witnesses, applying the rule of caution in invoking the provisions of Section 149 IPC, we find that the benefit of doubt has to go to appellant accused Santosh with regard to offence under Section 302 with the aid of Section 149 IPC. Since there is no evidence against appellant Santosh of having joined the unlawful assembly with the common object or knowledge to commit murder of Suresh, brother of the first informant, he cannot be convicted of the offence of murder under Section 302 taking recourse to Section 149 IPC.
39. To add to the above, it is pertinent to note that though in the narration of PW-1 and PW-2, it was stated that all the accused persons were carrying country made firearms when the witnesses came out of the house but the police had not recovered any firearm or weapon at the pointing of accused-appellant Santosh. There is nothing on record that he was taken on remand to ensure recovery of the weapon (firearm) used by him as a member of the assembly.
40. Further, the ocular testimony of both the prosecution witnesses of fact (PW-1 and PW-2), at the first blush though seem to be consistent and apparently there does not appear to be any inconsistency in their version but material omission in the version of PW-2 with regard to the manner in which the incident had commenced or the genesis of the incident cannot be ignored. The testimony of eye witnesses is not unimpeachable or consistent.
41. We cannot say that the prosecution witnesses PW-1 and PW-2 projected as eye-witnesses were not present on the spot or they are incompetent and untruthful witnesses, but the tendency of the witnesses to make their testimony consistent by deliberations during the deposition before the Court cannot be ignored. We cannot be oblivious of the general tendency of witnesses to rope in also those who may not have been actuated by the common object of the unlawful assembly and may have been present on the spot as mere spectator. The efforts of the witnesses to overdo in their statement before the Court to ensure that the Court accept their statement as true, is well known.
42. Thus, in view of the above, on a careful scrutiny of the prosecution evidence, following two possibilities cannot be ruled out:-
(i) That the appellant Santosh though was accompanying accused Mukesh, he did not share the common object of murderous assault on deceased Suresh Singh as it was a case of sudden quarrel and Mukesh, the main assailant fired at the deceased Suresh in a rage during the course of altercation or in heat of exchange of words. In the case of sudden fight, each of the person involved therein can be held liable for his individual act and not vicariously liable for the act of others; or
(ii) The appellant Santosh was merely a passive onlooker or had joined the assembly out of idle curiosity without any knowledge that the murder would be committed and he ran away immediately after the assault and in all possibility it was a case of his mistaken or false implication.
In both the eventuality, it would be hazardous to convict appellant Santosh for the offence of murder under Section 302 IPC by taking recourse to Section 149 IPC. Both the ingredients of Section 149 IPC:- (i) member of unlawful assembly; (ii) having common object or knowledge of the likelihood of offence, are not found to be established in the facts and circumstances of the present case.
The trial court has committed grave error of law in marshalling the evidences of the eye-witnesses while holding the appellant guilty of Section 302 IPC taking recourse of Section 149 IPC.
43. As far as the conviction of the appellant Santosh under Section 148 IPC is concerned, the prosecution has not been able to establish that the appellant was armed with a deadly weapon being member of the unlawful Assembly and had used the said weapon for committing an offence which was likely to cause death of any of the witnesses or passerby in the locality.
It has been held in Mohammed Ankoos10 that Section 148 creates liability on persons armed with the deadly weapon and is a distinct offence and there is no requirement in law that members of unlawful assembly have also to be charged under Section 148 IPC for legally recording their conviction under Section 302 readwith Section 149 IPC.
No overt act whatsoever had been assigned to the accused-appellant and hence his conviction under Section 148 IPC cannot be sustained.
44. So far as the conviction of the accused-appellant under Section 307 IPC is concerned, it is found that for holding guilty under the said provision, prosecution has to establish the essential ingredients which are:- (i) that the death of a human being was attempted; (ii) that such death was attempted to be caused by; or in consequence of the act of the accused; (iii) that such act was done with the intention of causing death; (iv) that it was done with the intention of causing such bodily injury; as (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
(Emphasis supplied) Thus, for proving offence under Section 307, all the ingredients of offence of murder must be present except the death of the victim.
Furthermore, for the application of Section 307, it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assault and the weapon used are the factors which have to be considered to find out a case of Section 307 IPC.
From the oral testimony of PW-1 and PW-2, looking to manner of assault in their version and the fact that the weapon used in the alleged offence was not recovered nor any effort was made for recovery of the same, we find that none of the ingredients of Section 307 IPC are existing.
At the cost of repetition, it is noted that as per ocular version of the eye-witnesses, the accused person (five in number) opened four fires at the witnesses while running away and it indicates that the firing was made just to cause alarm so that the witnesses may not follow him. As such there appears that there was no intention to cause death of anyone on the part of accused appellant and he fired only to safely escape from there.
Furthermore, both PW-1 and PW-2 are too consistent about the number of fires made by five accused persons. The relevant part of their statement extracted above is noted for ready reference hereunder:-
"Statement of PW-1:- Hkkxrs le; :d dj eqfYteku us ge yksxks ds Qk;j fd, FksA Hkkxrs le; eqfYteku us gekjh rjQ pkj Qk;j fd, ysfdu mudk dksbZ fVdyh NjkZ geus xyh esa fxjk gqvk ugha ns[kkA ;g dguk xyr gS fd esjs HkkbZ dks yxus okys Qk;j ds vykok dksbZ vkSj Qk;j u fd;k gksA"
"Statement of PW-2:- "पीछा करते समय 4 फायर हुए। छर्रे उन फायरों से किसी को नहीं लगे न किसी ने छर्रे पड़े देखे।"
Reading the omnibus statement of eye-witnesses, we find that the the prosecution has utterly failed to establish the allegation of murderous assault by the accused-appellant Santosh on the witnesses while running away from the scene of occurrence. The offence under Section 307 IPC is, thus, not made out in the facts and circumstances of the present case.
45. In view of the above discussion, the judgment of the trial court is found to suffer from serious infirmities, illegality and lack of proper application of mind to the legal position in the factual scenario of the present case and is, thus, unsustainable.
Accordingly, the judgment and order dated 17th October, 1997 passed by the Additional Sessions Judge/Special Judge (E.C. Act), Mainpuri in Sessions Trial No. 298 of 1988 (State vs. Santosh) arising out of Case Crime No. 609 of 1987, Police Station Kotwali, District Mainpuri convicting and sentencing the accused-appellant Santosh, under Section under Sections 148, 307/149 and 309/149 IPC is set aside. The accused-appellant Santosh is acquitted of all the offences/charges.
The appeal deserves to be allowed.
The accused-appellant Santosh is in jail. He shall be released from the jail forthwith.
The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary compliance.
The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad within one month.
(Pradeep Kumar Srivastava, J.) (Sunita Agarwal, J.) Order Date :- 17.3.2020 Brijesh