Punjab-Haryana High Court
Jagbir Singh vs State Of Haryana on 18 December, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rekha Mittal
CRA No.834-DB of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.834-DB of 2010
Pronounced on:18th December, 2012
Jagbir Singh ..... Appellant
VERSUS
State of Haryana ...... Respondent
CRA No.844-DB of 2010
Ramesh and another ..... Appellants
VERSUS
State of Haryana ...... Respondent
CRA No.845-DB of 2010
Satbir Singh ..... Appellant
VERSUS
State of Haryana ...... Respondent
CRA No.856-DB of 2010
Dr.Ranbir ..... Appellant
VERSUS
State of Haryana ...... Respondent
CRA No.864-DB of 2010
Om Parkash and another ..... Appellants
VERSUS
State of Haryana ...... Respondent
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS.JUSTICE REKHA MITTAL
Present: Mr.Vinod Ghai, Senior Advocate, with
Mr.Mandeep Kaushik, Advocate, for the appellants
in CRA No.845-DB of 2010 and CRA No.856-DB of 2010.
Mr.R.S.Rai, Senior Advocate, with
Mr.D.S.Brar, Advocate, for the appellant
in CRA No.834-DB of 2010.
CRA No.834-DB of 2010 -2-
Mr.J.S.Bedi, Advocate, for the appellant No.1
in CRA No.844-DB of 2010, and for appellants
in CRA No.864-DB of 2010
Mr.B.S.Chowdhary, Advocate, for appellant No.2
in CRA No.844-DB of 2010.
Mr.Pardeep Singh Poonia, Addl.A.G., Haryana with
Mr.Dhruv Dayal, DAG, Haryana, for the State.
*******
RAJIVE BHALLA, J.
By way of this order, we shall dispose of CRA Nos.834-DB of 2010, 844-DB of 2010, 845-DB of 2010, 856-DB of 2010 and 864- DB of 2010, filed by the appellants against their conviction by order dated 07.08.2010 and awarding sentence by order dated 09.08.2010, recorded by the Special Judge, Jhajjar. The appellants were convicted and sentenced for the homicidal death of Kailash, Virender, Raju Yadram and Tota Ram (hereinafter referred to as the 'deceased'), as under: -
Name of the accused Offence for which convicted Sentence awarded (now appellants) Jagbir Singh Under Section 148 of the Rigorous imprisonment of two Ramesh Indian Penal Code years each.
Sube Singh Under Section 302 of the Rigorous imprisonment for life Indian Penal Code and fine of Rs.20,000/- each.
Satbir Singh In default of fine, the convicts
Dr.Ranbir shall undergo further
imprisonment for two years
Om Parkash each.
Shishupal Under Section 449 of the Rigorous imprisonment for
Indian Penal Code seven years and fine of
Rs.5,000/- each. In default of
fine, convicts shall undergo
further imprisonment for six
months each.
Under Section 332 of the Rigorous imprisonment of two Indian Penal Code years each.
Under Section 353 of the Rigorous imprisonment of two Indian Penal Code years each.CRA No.834-DB of 2010 -3-
The case, as discernible from the FIR, the depositions of prosecution witnesses and documents on record reveals that five innocent persons were done to death by a mob armed with lathies, jellies, sticks and stones. The mob was incited, into these barbaric acts by a group of misguided individuals out to extract revenge for the alleged slaughter of a cow. This macabre tragedy was played out in a small village called Dulina, that abuts the town of Jhajjar, at police post Dulina, between 06:00 PM and 09:00 PM on 15.10.2002, by a mob of 4,500 persons, in the presence of the Incharge Police Post, Dulina, SHO PS, Jhajjar, the City Magistrate, Jhajjar, the Naib Tehsildar, Jhajjar, the DSP, Jhajjar and a large contingent of police officials.
The police post at village Dulina is attached to Police Station Jhajjar and was under the charge of PW-14 Dharambir Singh, ASI. At about 06:00 PM, a group of persons arrived, at the police post, in a utility van, accompanied by persons, on foot and in a TATA-407 vehicle bearing No.HR-26D-9030, laden with cattle skins. In their custody, were the five unfortunate individuals namely Virender Singh son of Attar Singh, Raju son of Ramphal, Daya Chand (somewhere written as Daya Nand) son of Budh Ram, Kailash son of Baljit Singh and Tota Ram son of Mangat, who were eventually done to death by the mob. The police was informed that these persons had killed a cow and were caught while skinning the cow, at Drain No.8. These five persons appeared to have been severely beaten. At that time, PW-6 CRA No.834-DB of 2010 -4- Rajbir Singh, Constable, PW-14 Dharambir Singh, ASI, PW-20 Hoshiar Singh, HC, PW-19 Om Parkash, EHC, and Parambir, Constable were present at the police post. PW-14 Dharambir Singh, ASI forwarded a ruqa, through PW-7 Constable Sharif Khan, to the Police Station Jhajjar. The apprehended persons informed the police that they had bought a dead cow from a contractor, at Farukh Nagar for Rs.200/-. By that time, a mob had collected outside the police post and began raising slogans of "Gao Mata Ki Jai Ho". The mob was informed that it was not a case of cow slaughter but the mob refused to relent. The police left the five persons in the safe custody and PW-19 Om Parkash, EHC, Raj Singh, Constable, Ved Parkash, HC, PW-14 Dharambir Singh, ASI proceeded to inspect Drain No.8, where the cow was reported to have been skinned. Before leaving, Dharambir Singh, ASI, sent a VT message to the SHO, Police Station, Jhajjar, about the incident. As per his deposition, he found the skeleton of a cow but did not find any evidence that the cow had been slaughtered. Upon return to the police post, he informed the gathered crowd that it was not a case of cow slaughter but a case of skinning of a dead cow. In the meanwhile, PW-17 Rajinder Singh, SI/SHO, Police Station, Jhajjar, arrived at the police post with his staff and tried to pacify the mob by informing them that it was not a case of cow slaughter. The crowd was unconvinced and refused to disperse. The police, thereupon, decided to verify the version of the five deceased that they had purchased the cow from the contractor at Farukh Nagar. On a suggestion by some CRA No.834-DB of 2010 -5- members of the mob, an independent person from the public was associated, PW-17 Rajinder Singh, SI/SHO, deputed Hoshiar Singh, HC, Mahabir Singh, HC, and Tota son of Mangat Ram (deceased) to verify the facts from Farukh Nagar. The police party returned from Farukh Nagar and reported that the dead cow was bought for Rs.200/-
from a contractor who sells dead animals. The mob was informed that the detained persons are Hindu and had purchased a dead cow but the crowd started shouting that the police wants to save these persons and they have no faith in the police. The mob demanded the presence of senior officers of the District Administration. The SHO sent a VT message to the police control room and requested the presence of the DSP and the SDM. In the meanwhile, the crowd continued to swell.
PW-21 Narender Singh DSP (since retired) reached the spot, with his staff and made an attempt to pacify the crowd. The police, apprehending foul play, provided security to the five detained persons.
In the meantime, Sajjan Pal, BDO, Jhajjar, Sham Lal, Naib Tehsildar, Jhajjar and Raj Pal Singh, City Magistrate, Jhajjar, had also reached the spot and after verifying facts from the SHO and the DSP, tried to pacify the mob, but to no avail. The mob began raising slogans and demanded that the apprehended persons be handed over to them. The police resorted to a mild lathi-charge but the mob began pelting stones.
The police officers and other officials sustained injuries. The TATA-
407 vehicle was set on fire whereafter the mob encircled the police post. A few of the persons including the appellants exhorted the mob CRA No.834-DB of 2010 -6- to attack the police post and to kill the five persons. A hut situated in front of the police post was thereafter set on fire. The mob stormed the police post, broke open the door of the room where the five deceased were confined, beat them mercilessly and dragged them to the road.
Two of the deceased were thrown into the burning hut and three others were done to death in the middle of the road. After killing the five persons, the mob dispersed. The facts, narrated above, are in sum and substance, of the entire facts, of this gruesome incident as discernible from the depositions of eye-witnesses but without narrating the roles played by each of the accused or the appellant in this ghastly crime.
A ruqa, Ex.P-18, relating to the incident, was received in Police Station, Jhajjar and formal FIR No.470 was registered on 15.10.2002. FIR No.469 was registered on 15.10.2002 under Sections 3/8 of the Cow's Slaughter Act. The FIR was recorded by PW-11 Laxmi Narain, SI, as is apparent from the endorsement Ex.PW-18/B. The police proceeded with the investigation, conducted inquest proceedings, referred the bodies of the deceased for postmortem, collected evidence, arrested the appellants and the other accused. Upon conclusion of investigation, a final report was filed arraigning 29 persons as accused. The accused pleaded not guilty and claimed trial. The trial court framed charges under Sections 148/302/332/353/436/449/109/149 of the IPC and Sections 3(2) and 5 of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, 1989. The prosecution was, therefore, directed to produce CRA No.834-DB of 2010 -7- evidence in support of the charges so framed.
The prosecution has examined PW-1 Dr.S.C.Nawal, DRWO, Jind, PW-2 Dr.Raj Karan, Medical Officer, PHC Birohar, District Jhajjar, PW-3 Rajpal Singh, the then City Magistrate, Jhajjar, PW-4 Shyam Lal, Naib Tehsildar, Beri, District Jhajjar, PW-5 Braham Parkash son of Manohar Lal, PW-6 Constable Rajbir Singh, PW-7 Constable Sharif Khan, PW-8 HC Abhey Singh, PW-9 Constable Jai Chand, PW-10 ASI Vijay Singh, MM Police Station, Jhajjar, PW-11 Laxmi Narain, SI, CIA Staff, Jhajjar, PW-12 Jai Kishan, ASI, Incharge Police Post, Sector-6, Bahadurgarh, PW-13 Azad Singh, ASI, Police Line, Jhajjar, PW-14 Dharambir Singh, ASI, CIA Staff, Bahadurgarh, PW-15 Dayanand, ASI, PS, Jhajjar, PW-16 Kartar Singh, Inspector, SHO Police Station, Sampla, District Rohtak, PW-17 Rajinder Singh, SI, Incharge Police Post, Badli, Police Station Sadar, Bahadurgarh, PW-18 Sadhu Ram, HC, MHC, Police Station, Jhajjar, PW-19 Om Parkash ASI (Retired), PW-20 Hoshiar Singh, HC, RTI Branch, SP Office, Jhajjar, PW-21 Narinder Singh DSP (since retired), PW-22 Dr.Balwinder Singh, Medical Officer, CHC, Barwala, Hisar, PW-23 Constable Sunder Singh, Police Station Chandhut, City Palwal, District Faridabad.
A large number of documents i.e. Ex.P-1 to P-4 MLRs of Rajender Singh, Kartar Singh, Dharambir Singh and Raj Paul, Ex.P-5 and Ex.P-6 applications for conducting medical examination, Ex.P-7 Postmortem report of Kailash, Ex.P-7/A ruqa to CMO, Ex.P-8 CRA No.834-DB of 2010 -8- Postmortem report of Daya Chand, Ex.P-8/A ruqa to CMO, Ex.P-9 Postmortem report of Virender Singh, Ex.P-9/A ruqa to CMO, Ex.P-10 Postmortem report of Tota Ram, Ex.P-10/A ruqa to CMO, Ex.P-11 Postmortem report of Raju, Ex.P-11/A ruqa to CMO, Ex.P-12 and Ex.P-13 video cassettes, Ex.P-14 and Ex.P-15 recovery memos of packets, Ex.P-16 site plan, Ex.P-17 affidavit of ASI Vijay Singh, Ex.P- 19 recovery memo, Ex.P-20 disclosure statement of accused, Ex.P-21 recovery memo of bricks, brick bat and stones, Ex.P-22 recovery memo of video cassette, Ex.P-23 unscaled rough site plan, Ex.P-24 recovery memo of blood stained niwar (rope) of plastic, Ex.P-25 recovery memo of packets, Ex.P-26 application for conducting proceedings, Ex.P-27 disclosure statement of Manohari @ Manoj, and Ex.P-28 copy of FIR No.469 dated 15.10.2002 Upon conclusion of prosecution evidence, incriminating circumstances appearing against the accused were put to each of them but they denied their guilt and claimed that they would lead evidence in defence. The accused examined DW-1 Smt. Satwanti wife of Dharambir, DW-2 Satbir Singh son of Sher Singh, DW-3 Malik Ram son of Bhay Ram, DW-4 Umed Singh son of Zile Singh, DW-5 Jeet Singh son of Ramsawroop, DW-6 Anil Dabbas, Lab Attendant, Ambedkar Hospital, New Delhi, DW-7 Sudam Singh, Superintendent, DC Officer, Jhajjar, DW-8 ASI Hari Krishan No.45, SP Office, Jhajjar and DW-9 R.R.Banswal, IAS (Retired), in their defence.
After considering the evidence adduced by the prosecution CRA No.834-DB of 2010 -9- and the defence, the trial court held the appellants guilty of commission of offences, convicted and sentenced them for the offences in terms referred to in the opening part of this judgment. The other accused were acquitted.
Counsel for the appellants, in essence, conjointly contend that witnesses to the entire occurrence are police officers but, surprisingly, the ruqa and the FIR do not record the names of the appellants much less the names of those accused, who have been acquitted. It is further argued that inquest proceedings are silent as to the identity of the perpetrators of the crime and if, as deposed by prosecution witnesses, statements under Section 161 of the Cr.P.C. were indeed recorded on 15.10.2002, there was no reason for the names of the accused, or at least the appellants, not to figure in the statements recorded in inquest proceedings. It is further submitted that statements, under Section 161 of the Cr.P.C., do not assign any specific role to any of the accused nor are the appellants specifically named. It appears that documents have been ante-dated, names have been included as an after- thought as the police was not aware of the true identity of members of the unlawful assembly. The appellants have been roped in falsely as some of them are prominent citizens of the area. The trial court has not referred to any distinction between the case of the acquitted accused and the appellants. Counsel for the appellants have contended that the appellants may have been named by prosecution witnesses, but their mere presence does not translate into criminality, in the absence of any CRA No.834-DB of 2010 -10- specific role assigned to the appellants. It is further argued that their mere presence is insufficient to raise an inference of culpability or criminality. It is further submitted that mere membership of an unlawful assembly, without any overt act or evidence of participation, does not constitute criminality.
Another argument pressed into service is that the occurrence, as per the prosecution, took place at about 08:30 PM on 15.10.2002, whereas the ruqa was sent at 09:20 PM though the case was registered on 15.10.2002 at 10:05 PM. The special report was delivered at 07:25 PM on 16.10.2002 after a great degree of delay thereby clearly proving that the FIR and all other relevant documents were ante-dated and have been altered to suit the prosecution story. It is further submitted that depositions by PW-6 and PW-8 that their statements, under Section 161 of the Cr.P.C., were recorded on 15.10.2002, are contrary to the record as their statements were, actually, recorded on 16.10.2002. The depositions should, therefore, be rejected. Even otherwise, statements, recorded, under Section 161 of the Cr.P.C., do not assign any specific role to any of the appellants. A ruqa is the first document prepared, after the incident, and if the allegations were true and roles attributed to the appellants are correct, these facts should have found mention at least in the ruqa. It is, therefore, clearly proved that the story, as set up by the prosecution, is incorrect and the appellants have been falsely implicated. PW-17 Rajinder Singh, SI, has admitted that he was aware of the identity of CRA No.834-DB of 2010 -11- the appellants as members of the unlawful assembly and as the persons, who raised lalkara etc., but strangely enough, he did not incorporate these facts either in the ruqa or the FIR. The final nail in the coffin is the absence of a reference to any of the appellants during inquest proceedings. Inquest proceedings are not a mere formality but, in essence, set the path for investigations and, always, indicate the nature of evidence and the names of perpetrators of the crime. It is further submitted that depositions by PW-3, Raj Pal Singh, City Magistrate, PW-4 Shyam Lal, Naib Tehsildar, that they were not able to identify any member of the unlawful assembly, are correct. PW-21 Narender Singh, the then DSP, has deposed that he could not identify any person and has specifically deposed that appellant Ramesh was not present. The onus to establish, not merely an unlawful assembly but also that the unlawful assembly harboured a common object which found resonance in acts committed by members of the unlawful assembly and that these unlawful acts were performed by members of the unlawful assembly, lies upon the prosecution. In the absence of any clear and cogent evidence, about the presence of the appellants, their common object and any specific role assigned to them, the trial court has committed an error and adopted an approach that is unknown to law. The trial court has found those persons guilty, who have been named by two or more witnesses. The trial court has not recorded any finding about the specific role of each of the appellants but has convicted and sentenced the appellants by making general observations. It is further CRA No.834-DB of 2010 -12- submitted that 15.10.2002 was Dussehra day and, as admitted, by prosecution witnesses, it was dark at the time of occurrence. It is, therefore, rather surprising that prosecution witnesses have identified the appellants and deposed that they gave lalkara, called upon the mob to storm the police post and to kill the deceased. It is further submitted that most of the official witnesses have clearly deposed that they had informed the SHO about the names of the appellants but, strangely enough, the SHO chose not to name anyone in the FIR. It is further argued that while deposing in the affirmative, PW-6 has not attributed any role to any of the appellants. In the later part of his statement, during cross-examination, he has attributed roles to some of the appellants but without referring to any material particulars. The next argument pressed into service is that the trial court has not referred to the depositions of defence witnesses and has failed to consider the reports prepared by the Deputy Commissioner and the Senior Superintendent of Police, which do not implicate the appellants, and has decided the case merely on the basis of prosecution evidence. It is argued that though a ghastly crime was committed but the court is obliged to rise above the nature of the crime and to examine whether any of the appellants was actually involved in the commission of the crime. The nature of the crime should not determine criminally. The trial court appears to have been over-whelmed by the enormity of the crime and had proceeded to convict the appellants without any evidence.
CRA No.834-DB of 2010 -13-
Counsel for the State of Haryana has argued that counsel for the appellants have not advanced any argument against the prosecution version with respect to the occurrence, namely, that five persons were brought to Police Post, Dulina by a group of persons on suspicion of having killed a cow, the police tried to pacify the mob after inspecting the site, where the cow was allegedly killed and informed the mob that a dead cow had been skinned after it was purchased from a contractor but the mob, however, did not listen, set on fire the TATA-407 vehicle and a hut, outside the police post, and despite attempts of the police to pacify the mob, stormed the police post, dragged five persons, though protected by the police, out of police post and beat them to death. The prosecution has proved the presence of the appellants, their participation in the unlawful assembly, their common object, their roles and all essential ingredients of the offence. The appellants have been rightly convicted and sentenced.
As we have set out the facts in brief, it would be necessary to refer to the medical evidence so as to set out the nature of injuries suffered by the deceased.
PW-1 Dr.S.C.Nawal, a member of the Medical Board, conducted the postmortem on the bodies of Kailash and Dayachand. Dr.S.C.Nawal has found the following injuries on the body of Kailash:-
"The length of the body was 5'2". It was a young male body of moderately built and nourished. He was wearing Dharidar Kachha, small piece of white shirt in left hand, pugilistic attitude, hair of scalp and pubic signed, mouth was closed and frothy bloody pus was coming out nostril were CRA No.834-DB of 2010 -14- crothy and bloody pus was coming out. There was superficial to deep burn present on almost whole body except partially left thigh and left leg. Reddish lines of demarcation was present on lower part of abdomen. Marrelling of vein was present on abdomen. Both eyes were disfigured and charred. We noted the following injuries on the dead body: -
(i) There was a swelling present on left arm of size 6x5cms. On further dissection underlined bone was fractured.
ii) There was a swelling of size 6x5cms. present on right clevical region. On further dissection underline bone was found fractured.
iii) On dissection of chest of right side 8th, 9th 10th ribs were found fractured and right lungs, cavity was full of blood. Right lung was crushed.
vi) On further dissection of abdomen, there was lacerated wound of size 6x4cms present on right lobe on anterior lateral aspect present.
v) A lacerated wound of size 6x4cms. was present on right parietal region. On further dissection underline bone was found fractured.
vi) A lacerated wound of size 3x4cms present on left side of head. On further dissection, underline bone was found fractured.
In our opinion, the cause of death was due to burn injuries. All injuries and burns were ante-
mortem in nature and were sufficient to cause death in normal routine of life."
PW-1 Dr.S.C.Nawal's observations with respect to the injuries suffered by and the cause of death of Dayachand are as follows: -
"i) A reddish bluish contusion of size 10x2cms present on abdomen. It was 6 cms. above umblious.
ii) A reddish contusion of size 6x4 cms. present on abdomen. It was 4 cms. below to injury No.1.
iii) A lacerated wound of size 6x2.5 cms. present on right side of chest and chin. Margins were lacerated. On further dissection, underline bone was found fractured.
iv) A lacerated wound of size 6x2 cms. present on right eye, which was badly crushed. On further dissection underline bone was found fractured into many pieces.CRA No.834-DB of 2010 -15-
v) Swelling of size 6x8 cms. present on left side of face. On further dissection, underline bone was found fractured.
vi) On dissection of chest of left side, ribs 4th, 5th and 7th were found fractured and right side of chest ribs 8th, 9th, 10th and 11th were found fractured.
Lungs cavity was full of blood. Right lung was crushed.
vii) A lacerated wound of size 8x4cms. Present on left side of forehead. On further dissection underline bone was found fractured.
viii) Right side pinna was badly crushed.
In our opinion, the cause of death was due to injuries given in abdomen which resulted in shock and hemorrhage and ante-mortem in nature and were sufficient to cause death in ordinary course of nature."
PW-2 Dr.Raj Karan, another member of Medical Board, conducted the postmortem on the body of Virender Singh, and found the following injuries: -
"i) Right arm, fore-arm and hand 8x6 cms.
over right side of chest, on bilateral legs with left foot, whole back of chest and abdomen. There was no line of redness and vesicles containing air only.
ii) A lacerated wound 8x6 cms. over right eye orbit and maxilla underlying bone was fractured and eye prolapsed.
iii) Lacerated wound of size 6x3 cms. over left eye brow underlying bone was fractured.
iv) A lacerated wound of size 6x2 cms. bone deep over left maxilla, underlying bone was fractured.
v) Lacerated wound of size 6x3 cms. over chin of mandible. Mandible bone was fractured in pieces.
vi) Anterior aspect of whole chest contused.
vii) Lacerated wound of size 3x2 cms. over left chest costal margin anterior aspect. On dissection 6th and 7th ribs of left chest were fractured.
viii) Multiple lacerations of varying size and shape. On dissection left temporal parietal and occipital bone of the skull badly fractured and brain was coming out. Lacerated and congested. Both chambers of the heart were empty and pericardium, heart was healthy. Abdominal wall was healthy, peritoneum was healthy, mouth pharynx and CRA No.834-DB of 2010 -16- esophagus already described, stomach containing 150 mg. semi digested food and mucosa was healthy. Small intestines containing chime and gases, large intestines containing fiscal matters and gases. Liver, spleen and kidney were healthy and congested, bladder was empty and healthy.
In our opinion, the cause of death was due to shock and hemorrhage as a result of head-injuries, which were ante-mortem in nature and sufficient to cause death in ordinary course of nature."
The postmortems were video-graphed and the video cassettes are Ex.P-12 and Ex.P-13. Dr.Manju Lata, Dr.Aruna Sanghwan and Dr.J.K.Bhalla, who conducted the postmortems on the other two deceased were given up by the Public Prosecutor as unnecessary. A perusal of the postmortem reports and the opinions recorded by the doctors clearly establishes that the deceased met a homicidal death.
The appellants have been convicted under Section 302 of the IPC with the aid of Section 149 of the IPC and as counsel for the appellants have primarily addressed arguments on the provisions of Section 149 of the IPC, the key to the present case lies in Section 149 of the IPC.
We have heard counsel for the parties, appraised the evidence on record and perused the impugned judgment and order.
Before proceeding to examine the other evidence on record and to consider the arguments addressed, it would be appropriate to point out that the guilt, culpability and innocence of the appellants, would essentially be determined on the basis of ingredients of Section CRA No.834-DB of 2010 -17- 149 of the IPC. Section 149 of the IPC, reads as follows: -
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."
Section 149 of the IPC requires the prosecution to prove: -
(a) the existence of an unlawful assembly;
(b) that the accused was member of an unlawful assembly;
(c) that a member of the unlawful assembly committed an offence;
(d) that the offence was committed in prosecution of a "common object" or the member of the unlawful assembly arraigned as an accused, was aware that the unlawful assembly is likely to commit such an offence; and
(d) that the accused harboured a common object with other members of the unlawful assembly.
Section 149 of the IPC fastens joint and vicarious liability upon all members of an unlawful assembly for an offence committed by one or more than one of them. Apart from having to prove the existence of an unlawful assembly and the commission of an offence, it is imperative that the prosecution prove that members of the unlawful assembly harboured a "common object" to commit an offence. A common object is rarely, if at all, proved by direct evidence and falls within the realm of a reasoned inference to be deduced from evidence adduced by the prosecution. A common object is a present and CRA No.834-DB of 2010 -18- immediate purpose, harboured by a group of persons to carry into effect a common goal but must not be confused with "common intention" (Section 34 of the IPC) as even though the object may be common, the intention of several members may differ and indeed may be similar, only in respect that they are all unlawful (Barendra Kumar Ghosh V/s Emperor, (AIR 1925 PC 1).
A common object does not require a prior consent or a meeting of minds and may develop as soon as parties arrive at the scene. The decisive factor for determining common object is the nature of the unlawful assembly, the acts committed by the members of the unlawful assembly before, during and after the commission of an offence, the weapons if any carried by members of the unlawful assembly, the slogans raised during the incident, the nature of the attack, the reasons for the attack and other innumerable factors that may vary from case to case. It would, however, be necessary to post a note of caution. The mere membership of an unlawful assembly, without proof of common object would not raise an inference of criminality. In order to place our conclusions in their correct and legal perspective, it would be necessary to reproduce a relevant extract from a judgment of the Hon'ble Supreme Court, in Bhargavan Versus State of Kerala (2004) Crl. Law Journal, 646(SC), which places an offence under Section 149 of the IPC, in perspective and reads as follows: -
"14.'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 CRA No.834-DB of 2010 -19- 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. 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 behavior 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 co instanti.
15. 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 CRA No.834-DB of 2010 -20- be available and, like intention, has generally to be gathered from the act which the person commits, and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behavior 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 is 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."
In cases of mob attacks, it is difficult, if not near impossible, for the prosecution to prove with a degree of exactitude, the actual perpetrators of the offence and the degree of participation of each and every individual. It is, therefore, left to judicial appreciation, based upon an informed judicial appraisal of the evidence adduced by the prosecution, to conclude whether the offence has been proved. The nature of an offence under Section 149 of the IPC, was considered in detail by the Hon'ble Supreme Court in Nanak Chand V/s The State CRA No.834-DB of 2010 -21- of Punjab, AIR 1955 SC 274, and after setting out the nature of the offence and explaining the distinction between Section 34 of the IPC and Section 149 of the IPC, it clarified, that if a person is proved to be member of an unlawful assembly, though such a person may not share a common intention with other members but if an offence is committed by another member of the unlawful assembly, in prosecution of a "common object" harboured by every member of such unlawful assembly would be guilty of that offence although all members may not, have participated, in the actual, commission of that offence, or performed any overt act: -
"7. This Section postulates that an offence is committed by a member of an unlawful assembly in prosecution of the common object of that assembly or such as a member of the assembly knew to be likely to be committed in prosecution of that object and declares that in such circumstances every person, who was a member of the same assembly at the time of the commission of the offence, was guilty of that offence. Under this section a person, who is a member of an unlawful assembly is made guilty of the offence committed by another member of the same assembly, in the circumstances mentioned in the section, although he had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly. Without the provisions of this section a member of an unlawful assembly could not have been made liable for the offence committed not by him but by another member of that assembly. Therefore, when the accused are acquitted of riot and the charge for being members of an unlawful assembly fails, there can be no conviction of any one of them for an offence which he had not himself committed."
It was also held that: -
"An offence may be committed by a member of an unlawful assembly and the other members will be CRA No.834-DB of 2010 -22- liable for that offence although there was no common intention between that person and other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled. Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object, every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual commission of that offence."
A similar view was expressed by the Hon'ble Supreme Court in Lalji and others Versus State of U.P., AIR 1989 SC 754 and held as follows: -
"8. Section 149 I.P.C. 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 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 is a member of the same assembly, is guilty of that offence. As has been defined in Section 141 I.P.C., an assembly of five or more persons is designated an 'Unlawful Assembly', if the common object of the persons composing that assembly is to do any act or acts stated in clauses 'First', 'Second', 'Third', :
'Fourth', and 'Fifth' of that section. An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. 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. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carry out their common object, the mere fact CRA No.834-DB of 2010 -23- of their having thus met will constitute an offence. Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm person of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed' Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141 I.P.C. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.
9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common 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 hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined, It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific CRA No.834-DB of 2010 -24- overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section
149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.
10. Thus, once the Court hold that certain accused persons formed 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.
The prosecution would have no obligation to prove it."
Another question, whether the prosecution is required to prove the definite role of each accused, if an offence is committed by members of an unlawful assembly, in furtherance of the common object though answered in the above judgments, was specifically considered in Masalti Versus State of U.P., AIR 1965 SC 202, and answered as follows: -
"15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance CRA No.834-DB of 2010 -25- of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take, part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not. In the present case, the High has in fact refued to act upon the evidence of Bahoran and Prabhu Dayal, because it appeared to the high Court that the evidence of these two witnesses suffered from serious infirmities."
It is, therefore, apparent that for a successful prosecution by invoking Section 149 of the IPC, the prosecution is required to prove an unlawful assembly, the presence of the accused, the common object, the accused shared the common object with other members of the unlawful assembly and that a member of the unlawful assembly committed an offence, in furtherance of this common object. The prosecution case cannot be discarded merely because the prosecution has failed to prove with a degree of exactitude the exact role played by each accused or to attribute an overt act to each accused.
The fact that an unlawful assembly of four to five thousand persons assembled and surrounded the Police Post, Dulina, armed with lathies, jaillies and stones etc., raised slogans "Gao Mata Ki Jai Ho", CRA No.834-DB of 2010 -26- demanded that five persons be handed over to them and upon refusal by the police, stormed the police post, dragged these persons to the road outside the police post and beat them to death, stands proved. Even otherwise, counsel for the appellants have not raised any argument challenging the correctness of these facts, though before the trial court, a feeble attempt was made to deflect the blame to the police. It is, therefore, not necessary, to refer to the entire evidence in detail or the evidence that preceded the occurrence, except to the extent, it may be necessary.
The guilt or innocence of the appellants, in these appeals, has to be determined on the touchstone of:- whether they were members of the unlawful assembly, the common object of the unlawful assembly to commit an offence, whether the appellants harboured, a common object with other members of the unlawful assembly to commit an offence, the role, if any, specific, separate or common, played by the appellants, the composition, the nature of the unlawful assembly, the weapons in its possession, the conduct and behaviour of the unlawful assembly, and if specific roles are not proved, whether the appellants can be held liable for the unlawful acts of other members of the unlawful assembly and all other relevant factors necessary to prove a case under Section 149 of the IPC.
We would now proceed to examine the evidence adduced by the prosecution so as to ascertain whether the appellants are guilty of the offences charged and whether they have been rightly or wrongly CRA No.834-DB of 2010 -27- convicted and sentenced by the trial court. The trial court has convicted the appellants, primarily, on the ground that they have been named by two or more witnesses and have been assigned specific roles.
The story, as unveiled by prosecution witnesses, is that, a mob of about four to five thousand persons, incited by an allegation that the five deceased have killed a cow and were caught while skinning the cow, collected outside the police post and demanded that the police hand over these persons to them for punishment. The police made every attempt to pacify the mob but the mob did not relent and instead demanded that the deceased be handed over to them. The police refused and locked the deceased inside the police post. The mob armed with lathies, stones and jaillies etc., stormed the police post, injured various police officials, forcibly took away the five persons and did them to death, outside the police post.
The FIR, the ruqa and the inquest reports, as rightly argued by counsel for the appellants, do not name the appellants or the other accused, who have been acquitted, by the trial court. The report forwarded by the Deputy Commissioner is silent about the identity of members of this unlawful assembly.
At the outset, we would deal with a submission that the prosecution has merely examined official witnesses, whose testimony remains uncorroborated by the deposition of any independent witness, from the general public. We are, rather, surprised that such an argument has been raised particularly in view of the peculiar facts and CRA No.834-DB of 2010 -28- circumstances of the present case. It is settled law that if official witnesses, alone, have deposed, it does not raise an inference that their depositions are partisan, tainted or made with the object of securing the conviction of innocent persons. A witness is normally independent unless his deposition arises from a source that is likely to be tainted, i.e., the witness has prior enmity against the accused and would, therefore, wish to falsely implicate him. For a court to raise an inference that the deposition is not independent, the defence is required to lay foundation of a prior enmity as, otherwise, there would be no reason, for a court to discard the deposition of official witnesses, merely because they belong to the police force.
The facts of the present case, namely, the attack by a violent mob on a police post, would, necessarily, make police officials, present during the occurrence, natural and material witnesses of the occurrence. The fact that they belong to the police force, cannot, by itself, be a sole ground to discard their testimonies, particularly, when the appellants have not alleged any bias or any previous enmity so as to falsely implicate them.
The next argument relates to delay in lodging the FIR and forwarding the special report. A perusal of the material on record does not enable us to record a finding that there was any such delay as would cast suspicion upon the prosecution. The argument appears to have been raised to fortify a plea that as the appellants are not named in the FIR and also in inquest proceedings, the special report was CRA No.834-DB of 2010 -29- delayed so as to implicate the appellants. The argument, in our considered opinion, is misconceived and merits summary rejection. The FIR and inquest proceedings do not refer to the appellants or any of the accused, who have been acquitted. If the police intended to falsely implicate the appellants, they would have included their names in the FIR or, at least, in the inquest proceedings and only then could the appellants have validly pressed this argument.
The prosecution is required to prove gathering of an unlawful assembly, a common object to commit an offence, the offence committed in furtherance of this common object, that the accused/appellants shared this common object and were present at the time of occurrence. The eye-witnesses, of the occurrence are police officials, who were on duty at Police Post, Dulina. PW-3 Rajpal Singh, City Magistrate, PW-4 Shyam Lal, Naib Tehsildar, who have deposed about the occurrence but have not named any of the appellants, much less the accused who have been acquitted. It would, therefore, not be necessary to refer to their depositions. PW-6 Rajbir Singh, Constable, PW-8 Abhey Singh, HC, PW-13 Azad Singh, ASI, PW-14, Dharambir Singh, ASI, PW-16, Kartar Singh, Inspector/SHO, PW-17 Rajinder Singh, SI, PW-19 Om Parkash, ASI, PW-20 Hoshiar Singh, HC, PW- 21 Narender Singh, DSP (Retired), are eye-witnesses of the occurrence and have, by their depositions, sought to prove the ingredients of the offence by deposing about the presence of the appellants and their specific roles in the commission of the offence.
CRA No.834-DB of 2010 -30-
CRA No.834-DB of 2010 has been filed by Jagbir Singh, CRA No.844-DB of 2010, has been filed by Ramesh and Sube Singh, CRA No.845-DB of 2010 has been filed by Satbir Singh, CRA No.856- DB of 2010 has been filed by Dr. Ranbir and CRA No.864-DB of 2010 has been filed by Om Parkash and Shishupal.
PW-6 Rajbir Singh, Constable, who was deputed as general duty constable and was stationed in front of the police post, has deposed that during the relevant period, he remained outside the police post and was repeatedly taking rounds of the police post. PW-6 has deposed with respect to the entire occurrence in a great degree of detail narrating all relevant facts: the raising of slogans, pelting of stones, attack on the police post, the forcible snatching of the five deceased from the police post and their being done to death by the mob. He has also deposed about the group of people who handed over the deceased to the police by alleging that they had killed a cow and that the deceased informed the police that they had purchased a dead cow from a contractor at Farukh Nagar, whereafter a police party went to Farukh Nagar to verify this fact and when it was informed that a dead cow had been purchased from a contractor, this did not pacify the mob. The mob was incensed and were ready to settle for nothing less than the police handing over the deceased to the mob. The mob was bent upon extracting revenge for the alleged slaughter of a cow and demanded that senior police officers be summoned. Narender Singh, DSP and other police officials arrived at the spot as did Rajpal Singh, City CRA No.834-DB of 2010 -31- Magistrate, Shyam Lal, Naib Tehsildar, and Sajjan Pal, BDO. He has also deposed that members of the mob were armed with lathies, jaillies and stones etc. and though the police tried to disperse them by a moderate lathi-charge, this incensed the crowd more as the mob set the TATA-407 vehicle on fire, raised slogans and began pelting stones at the police post. A relevant extract from the examination-in-chief of PW-6 Rajbir Singh, Constable, where he has named all the appellants, and deposed that they were armed with lathies and jaillies. PW-6 has also deposed that they gave a lalkara that let the police post be set on fire and kill the five deceased. Thereafter they broke the main door of the police post, dragged Virender etc. (the deceased) and began beating them mercilessly. The deposition of PW-6 reads as follows: -
"In the meantime, Dr.Raghbir Mahlan, Chairman Om Parkash, Mahabir son of Kali Ram, Ramesh, Rajbir Panch, Satbir Rathi, Jagbir, Shishupal, President Shiv Sena, Sube, Sombir, all armed with lathies and jaillies came there. They all are present today in the court. Then they gave a lalkara that set the police post on fire and kill all the five persons Virender etc. Then they made huge push and broke the main door of the police post, brought out Virender etc. from inside the police post and started giving beating mercilessly to them like animal. Thereafter, the people considering that all the five persons had died, so they stated that now they will go to that place where Virender etc. were skinning the cow and would also block the road there. Meanwhile, Deputy Commissioner and Superintendent of Police had reached there. Thereafter after conducting inquest report, City Magistrate Sh.Rajpal handed over to me the dead-body of Virender alongwith some inquest papers for conducting autopsy and then dead-body of Virender was shifted by me to Civil Hospital, Jhajjar in a jeep. After postmortem examination, the dead- body of Virender was handed over to me alongwith papers, a parcel, sample seal etc. and then I delivered the dead-body to the relatives of Virender and the CRA No.834-DB of 2010 -32- documents and other articles stated above were handed over by me to SHO Sh.Rajender Singh. The same were taken into police possession by SHO, vide memo Ex.P14, which bears my signatures."
PW-6 was cross-examined and fairly admitted that he cannot depose about which of the accused brought Virender etc. (the deceased) from the room in the police post. PW-6 has, however, identified the appellants and though he may not have assigned a specific role in the homicidal death of Virender etc. has deposed that the appellants were present, armed with lathies and jaillies, Ranbir Malhan and Om Parkash gave a lalkara, the appellants stormed the police post, broke the door, dragged the deceased outside and did them to death. A relevant extract from the cross-examination of PW-6, Rajbir Singh, Constable, reads as follows: -
"I was present at the gate of Chowki when the door of room was broken by mob. I cannot specifically tell that which of the person from the mob brought out deceased Virender etc. from inside the room. Witness has stated voluntarily that the persons who have been named by me as accused have brought Virender etc. from inside the room."
PW-8 Abhey Singh, HC, another eye-witness, has deposed that he was posted at Police Station, Jhajjar, and arrived at the scene alongwith SHO Rajinder Singh after receiving a message from Police Post, Dulina. PW-8 has deposed that the mob was in a state of frenzy and was bent upon seeking revenge for slaughter of a cow. The mob set on fire a TATA-407 vehicle and while deposing with respect to the presence and roles of the appellants, has deposed, in his examination- CRA No.834-DB of 2010 -33- in-chief, as follows: -
"Then Dr.Ranbir Singh Malhan and Om Parkash, Ex- Chairman of Kablana gave a lalkara to the mob that set the police post on fire and bring all the five Virender etc. out of the police post and kill them. There was a big crowd armed with jaillies and lathies and the crowd started pelting stones and the police tried to dispurse the mob several times, but due to heavy crowd, the main door of the police post and window etc. were broken by the crowd and all the five persons Virender etc. were taken out of the police post and the hut adjoining the Chowki also set on fire. Virender etc. were given severe beating by the mob. The persons who took Virender etc. out from the police post, they were Mahabir, Ramesh, Satish, Lilu driver, Sube Singh, Sheopal, Satbir Singh, Ashok and others, all are standing in the court today. All five persons namely Virender, Tota Ram, Kailash, Raju and Daya Chand were badly beaten with the help of lathies, dandas and stones etc. by the accused. Then out of the five, dead bodies of the two were thrown in the burning hut. The dead bodies of remaining three were lying on the road."
However, during his cross-examination, he has admitted that he cannot specify which assailant caused which injuries to the deceased but has deposed that Dr.Ranbir Singh Malhan and Om Parkash raised a lalkara, exhorted the mob to attack the police post and kill the five persons held in police custody. He has also named Ramesh and Sube Singh, Satbir and Shishupal alongwith others standing in court as the persons, who dragged the deceased out from the police post, beat them with lathies, dandas and stones and that two, of the five dead bodies, were thrown into the burning hut whereas three dead bodies were left on the road. This witness has not specifically named Jagbir Singh.
CRA No.834-DB of 2010 -34-
PW-13 Azad Singh, ASI was posted at Police Station, Jhajjar and had accompanied the police officials from Police Station, Jhajjar to Police Post, Dulina. Apart from deposing with respect to raising of slogans, he has clearly identified Om Parkash, Ex-Chairman, Kablana Ranbir and Satbir. A relevant extract from his examination, reads as follows: -
"The mob became more aggressive and broken the windows of PP and broken the main gate also of PP and brought out 5 persons from the PP and gave them beating and considering that all the five had died so they went back towards the place where the hides of procured by them there. Till then 4/5 thousand persons gathered. The mob tried to snatching the vehicle of police but police successful in not snatching their vehicle and weapons. After that the then Commissioner and SP also reached the spot. In my presence bricks bats, stones etc. were taken into possession by putting into bandles vide recovery memo Ex.P21 and same is signed by me, ASI Om Parkash and same is attested by Rajinder Singh the then SI/SHO with seal with KS. Both bags Ex.P21/A and Ex.P21/B shown to the witness and identified the same which were taken into possession. The witness had identified Om Parkash Kablana and Ranbir as they were known earlier: Witness seeing the accused present in the court stated that both above said accused are present there."
PW-14 Dharambir Singh, ASI, was posted as Incharge of Police Post, Dulina, and is another eye-witness, who has identified the appellants and while deposing, has narrated in detail the entire occurrence in the following terms, during his examination-in-chief: -
"In the meantime a hut which was situated in front of police post was also set on fire by the mob. Among the mob the persons whose names were later on were identified are as under: -
1. Om Parkash, Ex-Chairman Kablana, CRA No.834-DB of 2010 -35-
2. Basant son of Dalip,
3. Ramniwas again said Ramesh, Rakesh, Hansraj, Shishu Pal, Manoj @ Manhori, Kesav Dass and Vijaypal who belong to Gurukul Jhajjar. All present today in the court were also shouting slogans with the mob broke the latch of the door of the police post and they took out the all five deceased mentioned above from inside the police post and dragged them by giving merciless beating and they dragged upto road and after sometime assuming that all five to be dead, two were thrown in burning hut. They also shouted that they will now block the road at that place where the cow were killed. Then Deputy Commissioner and SP Jhajjar alongwith some more force reached there."
PW-14 has named Om Parkash, Ramesh, Shishupal and has deposed that all present in court were shouting slogans, broke the latch of the door of the police post, took out the five deceased, dragged them by giving merciless beating and left them after throwing two of them into the burning hut. The witness has not specifically named Jagbir Singh, Sube Singh and Satbir Singh but has identified them in court.
PW-16 Kartar Singh, Inspector, has deposed as follows: -
"In the meantime, one Satbir Singh having came out of the crowd put a TATA-407 vehicle sets a fire. Satbir was known to me earlier. (The witness identify accused Satbir present in the court as one of the accused, on being asked by the Court).
xxx xxx xxx
xxx xxx
On 14.11.2002, some people were agitating against the arrest of some accused having been made in this case. On 13.11.2002, they were also called for doing this protest. On 14.11.2002 they have jammed the traffic on Gurgaon road at drain No.8 bridge. There I identified Sishu Pal, Rakesh, Ramdhan etc. as the persons who had participated in the crowd, at the time of the occurrence on 15.10.2002."CRA No.834-DB of 2010 -36-
PW-16 Kartar Singh, Inspector, has identified Satbir Singh and Shishupal out of the appellants.
PW-17 Rajinder Singh, SI, is also a prosecution witness. A relevant extract from his cross-examination, reads as follows: -
"Om Parkash, Dr.Ranbir Malhan and Satbir were at three different places at the place of occurrence. Om Parkash was present in front of the Police Post, Dr. Ranbir was on back side near the road. Satbir was near the vehicle which he set ablaze. I cannot say how long Dr.Ranbir Malhan had stayed at the site of occurrence. Dr.Ranbir is more than six feet tall. I had not seen him armed with any weapon. He had only given a lalkara to exhort the public. He was not known to me earlier but my officials disclosed his identity to me. That accused is present in the court facing trial. (The witness identified the accused)."
PW-19 Om Parkash (now retired) was posted at Police Station, Jhajjar and arrived at Police Post, Dulina alongwith the police party. A relevant extract from his deposition reads as follows: -
"Thereafter, Ranbir Malahan, the accused present in the court (witness identified the accused by raising finger prints) and Om Parkash, Ex-Chairman, Kablana, accused present in the court and identified by the witness and exhorted the public to set the police post a fire and cow slaughters be killed. The mob forcibly made an entry into the police post by wreking its gate and pulled out those five injured. They were dragged towards the road. Two of them were put in the fire where the hut was on fire. Three others were lying on the road. Accused Satbir Rathi was also present in the mob at that time (the accused identified by the witness)".
PW-20 Hoshiar Singh, HC, was posted at Police Post, Dulina, and has deposed in a great degree of detail with respect to the entire occurrence and has identified the appellants Ranbir Malhan, Om CRA No.834-DB of 2010 -37- Parkash and others in the following terms: -
"At that time Ranbir Malhan and Om Parkash Kablana accused present in the court raised a lalkara that police post be set a fire and those five be killed. At that time, Jagbir, Sant Ram, Sishu Pal, Satbir Rathi, Sant Ram son of Sukhbir, were there in the mob. I cannot specifically tell as to who in the public was armed with lathies and jellies and who were brick-bats. The public forced-opened the gate of the police post and entered into it. They pulled out those five injured and dragged them to the road. They were inflicted injuries with brick-bats, jellies and lathies."
Om Parkash also, referred by witness as Om Parkash Ex- Chairman and Shishu Pal, was specifically identified by PW-6 Rajbir Singh, Constable, PW-8 Abhey Singh, HC, PW-13 Azad Singh, ASI, PW-14 Dharambir Singh, ASI, PW-19 Om Parkash, ASI, PW-20 Hoshiar Singh, HC.
Shishu Pal, the other appellant, has been identified by PW- 6 Rajbir Singh, Constable, PW-8 Abhey Singh, HC, PW-14 Dharambir Singh, ASI, PW-16 Kartar Singh, Inspector and PW-20 Hoshiar Singh, HC. As we have already reproduced the depositions of PW-6 Rajbir Singh, Constable, PW-8 Abhey Singh, HC and PW-14 Dharambir Singh, ASI, they do not require repetition.
A perusal of the depositions of these witnesses reveals that the appellants were raising slogans and were active participants in storming the police post, taking out the five persons and doing them to death. It is true that these witnesses apart from the allegation of raising slogans, inciting the mob to attack the police post and kill the deceased, are unable to apportion any specific role to any of the appellants CRA No.834-DB of 2010 -38- relating to the injuries that led to the homicidal death of the deceased but this alone, in our considered opinion, does not entitle the appellants to any benefit as held in Masalti's case (supra) and Bhargavan's case (supra).
An attack by a mob, whipped into a frenzy for a perceived insult to its social or religious beliefs is like a wounded animal unpredictable in its behaviour and irrational in its action. In view of the multitude of persons present it would be near impossible to expect the prosecution witnesses to depose with any degree of exactitude much less with exact certainty as to the role of each accused. Once the presence of an accused, as member of the unlawful assembly, alongwith his common object and participation etc. is proved, nothing more remains for the prosecution to prove.
A perusal of the above extracts, if read alongwith the complete depositions of these witnesses, in our considered opinion, leaves no ambiguity that an unlawful assembly had collected outside the Police Post, Dulina, with the common object to commit an offence namely the homicidal death of five persons. The depositions of these witnesses, particularly by reference to the extracts that we have reproduced hereinabove, prove that the appellants were members of this unlawful assembly, shared a common object with other members actively participated in this heinous crime. Dr.Ranbir Malhan, Om Parkash, Ex-Chairman, Kablana, exhorted the mob to attack the police post and to kill the five persons detained inside the police post. We CRA No.834-DB of 2010 -39- have arrived at our conclusions not because of the ghastly nature of the crime but after a thoughtful consideration of the evidence on record, the difficulty faced by the prosecution in its attempt to prove its case. The prosecution may have failed to assign any specific act of injury to the accused, but this alone does not persuade us to cannot accept the arguments advanced by counsel for the appellants that failure to attribute injuries to the appellants, does not attach criminality. The prosecution has succeeded in proving the common object of the unlawful assembly namely the object of getting hold of the deceased from police custody and doing them to death. The common object can be inferred from the fact that the unlawful assembly was armed with stones, lathies, jaillies and sticks, surrounded the police post, raised slogans against the deceased and the police, attacked the police post, did not relent though the police resorted to a lathi-charge and in fact swelled in numbers as the evening progressed. The last chapter in this dastardly act, of the unlawful assembly, whipped into a state of frenzy, was the lalkara, the storming the police post, dragging the deceased outside the police post, meeting out tribal justice to the five unfortunate deceased. The evidence adduced by the prosecution has no room for maneuver about the common object harboured by the appellants as well as the unlawful assembly, referred to as the mob. We do not, even for a split second, doubt the presence of the appellants, their common object and the roles played by them in this dastardly crime. The mere fact that prosecution is unable to describe in graphic detail the role played by CRA No.834-DB of 2010 -40- each of them, in the homicidal death of five innocent persons, does not entitle any of the appellants to any benefit.
An argument that the names of the accused and the other accused, who have been acquitted are not mentioned in the ruqa, the FIR and the inquest proceedings as well as in the report prepared by the Deputy Commissioner and the Senior Superintendent of Police, in our considered opinion, would have been relevant if the police harboured any ill-will against the appellants or the defence had produced any evidence that the official witnesses harboured any animus towards the appellants. The prosecution witnesses have not been cross-examined by suggesting that they had any ulterior motive or any animus to falsely implicate the appellants, attribute false roles to them and to seek their conviction and sentence though they are innocent. The nature of incident tinged as it is with communal overtones would have necessarily put the prosecution on guard against any false implication.
The next argument that the prosecution witnesses have failed to name the appellants in their statements, under Section 161 of the Cr.P.C., with which they were confronted, in our considered opinion, does not suggest any false implication as police witnesses are consistent in their depositions with respect to the entire occurrence and have narrated facts in graphic details with minor, natural discrepancies. We, therefore, reject the submission. The argument based on the deposition of PW-21 Narender Singh, DSP (Retired) that he could not identify the persons who were pelting stones and committed the murder CRA No.834-DB of 2010 -41- of five persons and his admission in cross-examination that accused Ramesh present in court was not present at the spot, appears to be an attempt to help the accused apparently for the reason that this officer had retired. We, therefore, do not place any weight upon his deposition as Ramesh has been identified by other witnesses.
The defence witnesses are DW-1 Smt. Satwanti wife of Dharambir, who has deposed in favour of appellant Ramesh to the effect that his aunt had expired on 15.10.2002 and he attended his funeral in the village Dhigal.
DW-2 Satbir Singh son of Sher Singh, deposed aunt of Ramesh passed away on 15.10.2002 and Ramesh was present during her funeral which took place in the evening at village Dhigal. In his cross-examination, he deposed that the funeral took place at 07:00 PM.
DW-3 Malik Ram son of Bhay Ram, who claims to own land in village Dulina and has deposed that at 06:00 PM, he was irrigating his crops. He heard a noise and was attracted and noticed five persons slaughtering a cow and Rajinder Singh, Ajit Singh of village Sailana, Umed Singh, Ex-Sarpanch etc. were present. He has further deposed that he alongwith these persons took five persons to the police post, Dulina and made a report. The police beat the five persons and took them into custody. Within 15/20 minutes, the road was jammed by about 500 to 700 persons.
DW-4 Umed Singh son of Zile Singh, has deposed that he knows all the accused and none of them was present at Police Post, CRA No.834-DB of 2010 -42- Dulina at the relevant time.
DW-5 Jeet Singh son of Ramsawroop, has deposed that there was no violence at Police Post, Dulina at the relevant time and date.
DW-6 Anil Dabbas, Lab Attendant, has deposed about an OPD ticket issued to Ranbir Singh, patient, on 14.10.2002 and that the patient was advised to take rest for two days. In his cross-examination, this witness has proved Ex.D-3 OPD ticket but he could not depose as to from which disease the patient was suffering and could not even identify Ranbir etc. DW-7 Sudan Singh, Superintendent, DC Office, Jhajjar, tendered into evidence Ex.D-4, the report prepared by the Deputy Commissioner, Jhajjar.
DW-8 ASI Hari Krishan No.45, SP Office, Jhajjar, tendered into evidence documents, Ex.D-5 and Ex. D-6, reports sent by S.P.Office, Jhajjar to the I.G. Police, Rohtak Range, regarding the incident at Police Post Dulina and also deposed that a copy of the report was sent by the S.P, Jhajjar to the Secretary General, National Human Rights Commission, New Delhi.
DW-9 R.R.Banswal, IAS (Retired) has deposed that he was posted as Commissioner, Rohtak Division and directed an inquiry into the incident at village Dulina after spot inspect.
We have perused the defence evidence and are not impressed by the deposition relating to alibi set up on behalf of CRA No.834-DB of 2010 -43- appellant Ramesh as apart from the oral deposition, no death certificate was adduced and, even otherwise, there is nothing on record to prove that Ramesh was present during the cremation of his aunt.
The deposition of DW-3 Malik Ram, is of no help to the appellants as while admitting the presence of five to seven hundred persons, he has not deposed that the appellants were not present. DW- 4 Umed Singh, has deposed that he knows all the accused and they were not present at the police post at the relevant time. The clear deposition by prosecution witnesses, does not enable us to place reliance upon the deposition of DW-4 Umed Singh. DW-5 Jeet Singh has surprisingly deposed that there was no violence at the police post, and, therefore, merits summary rejection, in view of the evidence adduced by the prosecution. DW-6 Anil Dabbas, Lab Attendant, has deposed about issuance of OPD ticket to Ranbir Singh on 14.10.2002 but was unable to depose about the disease from which Ranbir Singh was suffering and whether the disease was so serious as would prevent him to take part in the mob attack. DW-7 Sudan Singh and DW-8 Hari Krishan, ASI, have produced the report prepared by the Deputy Commissioner and the S.P. Office, respectively. DW-9 R.R.Banswal, IAS (Retd.) had directed an inquiry into the incident but, in our considered opinion, his deposition does not advance the case of the appellants, in any manner. We, therefore, reject the deposition of DW-
9. In view of what has been stated hereinabove, we find no CRA No.834-DB of 2010 -44- merit in the submissions made by counsel for the appellants, affirm the impugned judgment of conviction dated 07.08.2010 and order of sentence dated 09.08.2010, recorded by the Special Judge, Jhajjar, and dismiss all the appeals in hand. The appellants, who are on bail, shall be taken into custody forthwith to undergo the remainder portion of their respective sentences.
[ RAJIVE BHALLA ]
JUDGE
18th December, 2012 [REKHA MITTAL ]
shamsher JUDGE