Madhya Pradesh High Court
Vikas And Ors. vs State Of M.P. on 31 May, 2001
Equivalent citations: 2002(2)MPHT341
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. In this revision preferred under Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') the petitioners have called in question the legal validity of the order dated 11 -5-2001 passed by the Second Additional Sessions Judge, Burhanpur, District Khandwa in Sessions Trial No. 145/2000.
2. The facts as have been unfurled are that Sunita, sister of the applicant Nos. 1, 3, 4 and 5 and daughter of the applicant No. 2, was married to one Pramod son of Shambha Ji. After solemnisation of the marriage, Sunita went to her matrimonial home where she was ill-treated by her husband, father-in-law and other relations as a consequence of which she committed suicide on 1-8-2000. The investigating agency registered offences punishable under Sections 498A/34 and 304B of the Indian Penat Code (in short 'the IPC') against the husband, Pramod, in-laws of the deceased and some other relations. It has been putforth in the petition that the applicants after receiving information relating to the death of Sunita, reached her in-laws' house on 2-8-2000 at 9.30 a.m. As alleged by the prosecution the applicants made enquiry about the death of Sunita and on not getting satisfactory reply they started beating her husband, Pramod, and mother-in-law, Ranjanabai, as a result of which she sustained certain injuries. The report of this incident was lodged by the husband, Pramod which gave rise to a crime for offences under Sections 307 and 147 of the IPC. Later on, Ranjanabai succumbed to the injuries in the hospital while availing treatment and offence under Section 302 of the IPC was added. Eventually a charge-sheet was filed in respect of the aforesaid offences against the applicants, who faced trial before the learned Second Additional Sessions Judge, Burhanpur, Distt. Khandwa. The Trial Court framed charges against the applicants for the offences punishable under Sections 147, 294, 302 and 307 of the IPC. It is averred, in course of the trial the prosecution witnesses were examined. At this stage the file relating to Sessions Trial No. 145/2000 was sent to the District Judge (Vigilance) for inspection and the District Judge (Vigilance) gave a note that an additional charge under Section 149 of the IPC should be framed against the applicants. On the basis of the aforesaid the learned Trial Judge framed an additional charge under Sections 302/149 and 307/149 of the IPC. On 11-5-2000, it has been averred, that this charge was framed as an alternative charge to what had been framed earlier. The petitioners had denied the charge and submitted an application under Section 217 of the Code for recall of the eye-witnesses who had been examined for the purpose of cross-examination in the light of framing of an additional charge under Section 149 of the IPC. The Trial Judge rejected the said application on the ground that Section 149 of the IPC is not independently punishable and eye-witnesses have already been cross-examined. It has also been observed by the learned Trial Judge that the prosecution was not examining any other witnesses and, therefore, there was no justification to allow the application.
3. Assailing the aforesaid order it is submitted by Mr. S.L. Kochar, learned counsel for the petitioners that the learned Trial Judge has committed gross illegality in appreciating the changed factual scenario inasmuch as he has failed to consider the real import and impact of Section 149 of the IPC. The learned counsel has submitted that by addition of the charge under Section 149 of the IPC there has been a metamorphosis of the factual backdrop in entirety inasmuch every accused will be held responsible under Sections 302/149 of the IPC or for that matter under Sections 307/149. The learned counsel has further canvassed that as at the time of cross-examination the charge under Section 149 of the IPC was not framed, there was no cross-examination on that score and hence, it has become essential to recall the witnesses for the purpose of cross-examination.
4. Mr. Ajay Tamrakar, learned Panel Lawyer for the State, on the contrary, has contended that the charge under Section 149 of the IPC being not an independent offence there is no necessity for recall of the witnesses and the learned Trial Judge has rightly rejected the application.
5. The matter was listed on 29-5-2001 on which date the learned counsel for the petitioner wanted to bring on record the petition which was filed before the learned Trial Judge to highlight that there was categorical assertion that no cross-examination was made keeping in view Section 149 of the IPC. The petition in question was filed and has been brought on record.
6. To appreciate the rival submissions raised at the bar, it is apposite to refer to Section 149 of the IPC. It reads as under :--
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
On a purposeful reading of the aforesaid provision, it becomes luminously clear that aforesaid section has certain essential ingredients, namely, there is commission of an offence by a member of an unlawful assembly and such an offence has been committed in prosecution of the common object or the assembly or such members of the assembly knew that such an offence is likely to be committed. Thus, in quintessence, this section encompasses the concept of constructive criminality.
7. In this context I may profitably refer to the decision rendered in the case of Lakhan Mahto and Ors. v. State of Bihar, AIR 1966 SC 1742, wherein the Apex Court ruled thus :--
"8. In this connection the High Court has taken view that Section 149, IPC does not constitute a substantive offence and it was only an enabling section for imposition of vicarious liability and the conviction vicarious liability can, therefore, be altered by the Appellate Court to conviction for direct liability, though there was an acquittal by the Trial Court of the direct liability of the offence. In our opinion, the view taken by the High Court is not correct. There is a legal distinction between a charge under Section 302, IPC and a charge of constructive liability under Sections 302/149, IPC i.e., being a member of an unlawful assembly, the common object of which was to kill the deceased Sheosahay. In Barendra Kumar Ghose v. Emperor, AIR 1925 PC 1 Lord Sumner dealt with the argument that if Section 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court, then Sections 114 and 149 of that Code would be otiose. In the opinion of Lord Sumner, however, Section 149 was certainly not otiose, for in any case it created a specific and distinct offence. It postulated an assembly of five or more persons having a common object, as named in Section 141 of the Indian Penal Code and then the commission of an offence by one member of it in prosecution of that object. Lord Sumner referred, in this connection, to the decision of the Calcutta High Court in Queen v. Sabid Ali, (1873) 11 Beng LR 347 (FB). The observation of Lord Sumner was quoted with approval by this Court in Nanak Chand v. State of Punjab (AIR 1955 SC 274), in which it was pointed out that by framing a charge under Section 302 read with Section 149, Indian Penal Code against the appellant it was not charging the appellant with the offence of murder and to convict him of an offence with which he had not been charged. It was accordingly held that the conviction of the appellant under Section 302, IPC was illegal. The same view has been reiterated by this Court in a later case in Suraj Pal v. State of Uttar Pradesh (AIR 1955 SC 419)."
8. In the case of Sheo Mahadeo Singh v. State of Bihar, AIR 1970 SC 1492, it has been held as under:--
"9. Section 149 creates a specific offence and deals with the punishment of that offence. There is an assembly of five or more persons having a common object and the doing of acts by members is in prosecution of that object. The emphasis is on common object. There is no question of common intention in Section 149. The act must be one which upon the evidence appears to have been done with a view to accomplishing the common object attributed to the members of the unlawful assembly. Thus every person who is engaged in prosecuting the same object, although he had no intention to commit the offence, will be guilty of an offence which fulfils or tends to fulfil the object which he is himself engaged in prosecuting in the circumstances mentioned in the section. It is in this sense that common object is to be understood."
9. In the case of Bhajan Singh and Ors. v. State of Uttar Pradesh, AIR 1974 SC 1564, it has been held as under :--
"13. Section 149, IPC constitutes, per se, a substantive offence although the punishment is under the section to which it is tagged being committed by the principal offender in the unlawful assembly, known or unknown. Even assuming that the unlawful assembly was formed originally only to beat, it is clearly established in the evidence that the said object is well-knit with what followed as the dangerous finale of, call it, the beating. This is not a case where something foreign or unknown to the object has taken place all of a sudden, it is the execution of the same common object which assumed the fearful character implicit in the illegal action undertaken by the five accused."
10. From the aforesaid enunciation of law it is graphically clear that Section 149, IPC encompasses the concept of specific offence and constitutes substantive offence although the punishment is under the Section to which it is tagged being committed by the principal offender in the unlawful assembly.
11. Another facet which requires to be noticed is that Section 149, IPC is segregated into two compartments, namely, that the offence may be connected immediately with the common object of the unlawful assembly of which the accused were the members or that such member knew that it was likely to be committed. In this context I may profitably refer to the decision rendered in the case of Mizaji and Anr. v. State of Uttar Pradesh, AIR 1959 SC 572, wherein their Lordships held as under :--
"6. The first part of Section 149, IPC means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish to a common object. It is not necessary that there should be reconvert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and it is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed in prosecution of the common object that does not make the converse proposition true; there may be cases which would come within the second part but not within the first. The distinction between the two parts of Section 149, Indian Penal Code 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 of Section 149 as explained above 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."
12. While dealing with the concept of vicarious liability the Apex Court in the case of Dharam Pal and Ors. v. State of Uttar Pradesh, AIR 1975 SC 1917, ruled thus :--
"11. The principle of vicarious liability does not depend upon the necessity to convict a required number of persons. It depends upon proof of facts beyond reasonable doubt which makes such a principle applicable...,"
13. In the case of Kaki Ramesh and Ors. v. State of Andhra Pradesh, (1994) 4 SCC 397, their Lordships opined that for fastening the liability with the aid of Section 149 of the Indian Penal Code commission of overt act is not necessary.
14. Thus, in essence Section 149, IPC applies to a person who is a member of an unlawful assembly and if ingredients are satisfied he may be held liable even if he has not committed an any kind of overt act. In the case of Sudhir Samant v. State of West Bengal and Anr., AIR 1998 SC 289, their Lordships took the view that in absence of evidence to the effect that co-accused persons came to scene of incident with common object of trespass and assault, they cannot be vicariously liable for the overt act of the other accused.
15. In this context I may usefully refer to another decision rendered in the case of Shamshul Kanwal v. State of Uttar Pradesh, AIR 1995 SC 1748, wherein it was held that actual participation in an attack is not necessary in case of unlawful assembly. Every accused who is member of unlawful assembly can be convicted in aid of this section.
16. In this context it is also note worthy to refer to another decision rendered in the case of State of Haryana v. Tek Singh and Ors., AIR 1999 SC 1742, wherein it has been held as under:--
"8. Accused were known to the widow and to the witnesses. Their names arc disclosed immediately. Hence, presence of the accused at the scene of offence was established. They all were armed with deadly weapons and came together in such a situation, when the presence of the accused who were armed with deadly weapons is established beyond doubt, Sections 148 and 149, IPC would come into operation and they would be liable for the offences....."
17. At this juncture I may quote with profit a passage from the decision rendered in the case of Lalji and Ors. v. State of Uttar Pradesh, AIR 1989 SC 754 :--
"Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. The section creates a constructive or vicarious liability of a member 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 that done in pursuance of the common object 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 hand would be immaterial. He cannot put forwarded the defence that he did not within his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the member of the assembly knew to be likely to be committed in prosecution of that object. The basis of the constructive guilt under Section 149 is mere membership of unlawful assembly, with the requisite common object or knowledge. Thus once the Court holds that certain accused person form an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts...."
18. In this context it is worth stating that the by standers or other silent spectators can never be said to be the members of an unlawful assembly with common object of committing the crime. This view has been taken by the Apex Court in the case of State of Karnataka v. Mallu Kallappa Patil and Ors., AIR 1994 SC 784.
19. From the aforesaid pronouncement of law it becomes graphically clear that a person can be convicted if he acts with common object being a member of an unlawful assembly or he had knowledge about the act which was going to be committed but he cannot be convicted if he is a silent spectator or a by stander. Once it is held that there was an unlawful assembly then each and every member who acted in prosecution of common object is equally liable. But if an act has not been committed by a member of unlawful assembly which is not premeditated and not contemplated by any member of the unlawful assembly and the act is done by a member at the spur of the moment the other members of the assembly may not be held guilty by the act of such a member. In this context I may profitably refer to the decision rendered in the case of Allauddin Mian and Ors. v. State of Bihar, AIR 1989 SC 1456, wherein common object of unlawful assembly was to kill a particular person. The person who was sought to be killed hid himself as a consequence of which the members of the unlawful assembly could not kill him. Being frustrated the two members of the unlawful assembly gunned down two young girls of their intended victim who were then playing in the courtyard outside the house. The Apex Court held that rest of the members did not have common object as they had not done anything incidental or necessary for its attainment. It is also worthmentioning the common object may not be there at initial stage and may develop at the spot eo instanti.
20. The present factual matrix has to be tested on the anvil of the aforesaid decisions. As has been held by their Lordships of the Apex Court that this is a substantive offence having a different concept. Under certain circumstances a person who is not involved in any kind of an overt act is vicariously liable in the crime in question. Under certain circumstances he may be exonerated. These will depend upon the facts of each case and cannot be engulfed in a strait-jacket formula. Whether a person can be convicted in respect of the main offence in aid of Section 149, IPC would depend upon the facts on record and the material brought forth by the prosecution. As a person is liable to be convicted in absence of any overt act, the defence has to be given the fullest opportunity to cross-examine to demolish the allegations made against the accused persons.
21. At this stage I may refer to Section 217 of the Code of Criminal Procedure which reads as under :--
"27. Recall of witnesses when charge altered.-- Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed--
(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material."
It is worthnoting while recommending revision of this section the Law Commission in its 41st report observed as under:--
"19.5. Under Section 231, whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused "shall be allowed" to recall or re-summon and examine with reference to such alteration, any witness already examined. Where an application is made for re-summoning of such witnesses, the Court is bound to grant it, and cannot refuse it on the ground that the accused cannot be prejudiced or even on the ground that the alteration is of such a nature that it cannot affect the evidence. Now, it may happen that the application for recalling and resummoning the witness is made only for the purpose of vexation or delay or defeating the ends of justice. In such cases the Court should have the power to refuse the application. If the evidence of a witness, is of a purely formal character and the other party merely desires to prolong the proceedings by taking advantage of the right given by the section, there is no reason why it should be mandatory for the Court to resummon the witnesses."
On a purposeful reading of the provision keeping in view the backdrop of revision in the provision it becomes quite clear that unless there is an attempt to re-examine a witness for the purpose of vexation or delay or in defeating the ends of justice the Court ordinarily should allow the recall or resummon and examination of witnesses with reference to such alteration or addition of charge. In the case of Moosa Abdul Rehman and Anr. v. State of Kerala, 1983 (1) Crimes 216, a Division Bench of Kerala High Court ruled thus :--
"7. It has to be borne in mind in terms of Section 217 Criminal Procedure Code whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecution and the accused shall be allowed to recall or resummon, and examine, any witness who may have been examined, unless the Court for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or defeating the ends of justice. In his order dated 10-11-1980 rejecting the second appellant's application dated 3-11-1980, the learned Sessions Judge has not stated that it was considered that the application was made for the purpose of vexation or delay or defeating the ends of justice. No such reason having been recorded, and there being nothing to indicate that the learned Sessions Judge has considered that it was made for the purpose of vexation or delay or defeating the ends of justice, the application filed by the 2nd appellant in assertion of his statutory right under Section 217, Criminal Procedure Code ought to have allowed; that is especially so considering the gravity of the charges which include one for murder, besides the direction in the section being mandatory in character."
22. In the instant case an additional charge has been framed under Section 149, IPC. On a perusal of the petition filed by the accused persons a specific stand has been taken that there was no cross-examination on this score. The learned Special Judge has also not indicated that the petition has been filed with a purpose of vexation or delay or defeating the ends of justice. The learned Judge has only observed that as the cross-examination is over and Section 149, IPC, is not an independent offence the grant of permission for recall of witness is not warranted. As has been discussed above Section 149 of Indian Penal Code is a specific offence and constitutes a substantive one, and therefore, the accused persons are to be given the fullest opportunity to defend themselves. If the prosecution witnesses who have been examined are not cross-examined keeping in view the altered charge, I am of the considered view that there would be denial of opportunity to the accused persons to defend themselves. Thus, the order passed by the learned Trial Judge is unsustainable and is hereby set aside. The prosecution witnesses who have been earlier examined would be recalled to be cross-examined by the accused persons. However, it is hereby made clear that the cross-examination will be confined to the sphere relating to additional charge and shall not be wide open to engulf any question.
23. Rcsultantly, the criminal revision is allowed.