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[2015] 1 S.C.R. 563 INDERSINGH & ORS. v. STATE OF RAJASTHAN (CriminalAppeal Nos. 493-495of 2009) JANUARY 06, 2015 [M.Y. EQBALAND SHIVA KIRTI SINGH, ;J.l PenalCode,1860: ss. 3021149, 3071149, 147 and148 A B -Fourpersonsdied on account of assault-Complainant seriouslyinjured in the occurrence-29accused-Conviction C of 21 appellants-Challenged- .1-feld: Consistent deposition of 6 eyewitnesses to supportprosecutionversion -Accused personschased, surroundedand causeddeath of 4 pers9ns whichshowedtheir commonobject to commit crime -Courts belowrightlyconvictedthe members of unlawfulassemblyfor D offence u/ss. 302 and 307 withthe aid of s. 149. Disposing of the appeals, the court HELD:1. Since the number of accused persons was quite large and they were bold and strong enough to cause four deathsin theopen field in presence of large number of persons, it cannot be difficult to understand E F as to why independent witnesses from the village who might haveseenthe occurrence, did not prefer to come out to support the prosecution. But that will not takeaway from the worth of deposition of six eye witnesses when they havegivena consistent account of the occurrence which was disclosed in a nutshell soon after the occurrence in the FIR lodged by P.W.15 who was seriously and critically injured in the same occurrence G and whose presence cannot be doubted. Theeye version account of the occurrence and the medical evidence showing large number of injuries including firearm 563 H 564 SUPREME COURT REPORTS[2015] 1 S.C.R. A in1uries supported each other. On this issue, the discussion and findings of the trial court against the accused persons is found to have sufficient merit. The criticism that some of the accusedhad sustained injuries for which the prosecution has not offered any explanation B was rightly rejectedby the trial court becausethere was no counter version or even a suggestion disclosing that any of the accused had received injuries in the same occurrence and at the same place. Only if these two inqredients were established, the defence would have c been entitled to seekan explanation from the prosecution in respect of some injuries on three of the accused persons.Their injuries were neither fatal nor they caused any threat to life and that also reducesthe burden upon the prosecution to explain injurieson theaccused. [Paras D12, 13][573-G-H;574-8-E; 575-A] E F G H Siri Kishan & Ors. v. State of Haryana (2009) 12 SCC 757: 2009 (6) SCR 1184; Lakshmi Singh & Ors. v. State of Bihar (1976)4 SCC 394 -Distinguished. Khairuddin & Ors. v. State of WestBengal (2013)5 SCC 753: 2013 (3) SCR 478 - heldinapplicable. Whether the courts below have rightly applied Section 149 of the IPC against the appellants for convicting them for the death of four persons and for murderous assault on the informant? 2. AsperSection149, even if any one member of an unlawful assembly commits an offencein prosecution of the common object of that assembly, every person who at the time of committing of that offence was a member of the unlawful assembly is guilty of that offence. The group of persons who chased deceased no.1 and causedhis deathand thereafterchased, surrounded and caused death of three more persons besides causing INDER SINGH & ORS. v. STATE OF RAJASTHAN565 grievous injuries to the informant was an assembly of fiveA or more persons rightfully deserving to be designatedas an unlawful assembly becauseby its action it showed that its common object was to commit offence. The subsequent acts clearly showed that the unlawful assembly carried out its common object of committing B serious offence of murder of four persons and grievous injuries to theinformant.The courts below committed no error in applying Section 149, IPC and convicting the members of the unlawful assembly for offences under Sections 302 and 307 of the IPC (with the aid of Section c 149 IPC).[Paras 14,17,19 and 20] [576-F-G;577-D-F] Roy Fernandes v. State of Goa & Ors. (2012) 3 SCC 221: 2012 (1) SCR 477; Ramchandran & Ors. v. State of Kera/a (2011) 9 SCC 257: 2011 (13) SCR 923 - relied on. Ku/dipYadav & Ors. v. State of Bihar (2011) 5 SCC 324:2011 (5) SCR 186 -referredto. D 3. In the peculiar facts of the case,the courts below should have further decided as to how much E corroboration was required for accepting the presence and participation of individual accused person. The informant had though claimed presence of 29 persons but subsequently five wereacquittedby the trial court and one was acquitted by the High Court. It was held in Masalti that the courts should be cautious in cases of arsonand murder wherethe number of accusedis large, F to rely upon the testimony of the witnesses speaking generally without specific reference to the accused or the specific role playedby them. On this issue, on going through thecharts disclosing number of witnesses who G havedeposedagainst individualappellants to show their presence,participation,weapon and overt act, if any, the test approvedin Masalti's case needs to be followed in this case also. Since the accused persons and the 6 H 566 SUPREME COURT REPORTS [2015] 1 S.C.R. A materialeye witnessesin this case wereco-villagers, it is expectedthat at least threewitnesses should be in a position to name individual accused persons for sustaining hisconviction.Applying that test, it is found that accused no.9,18, 20, 27 andno.28deserve to be B acquitted by granting benefit of doubt. This benefit of doubt arosein their favourbecausealthoughthey were namedspecificallyby informant P.W.15 as persons who were members of the unlawful assembly and who participated in assault but such claim of the informant c was not supported by more than one witness. The appeals of remaining16 appellantsare dismissed. [Paras 21 to 23][577-H;578-A-B,E-H; 579-D] Busi KoteswaraRao & Ors. v. State of AndhraPradesh D (2012) 12 SCC 711: 2012 (9) SCR 1046; Masa/ti etc. v. State of UttarPradesh AIR 1965 SC 202: 1964 SCR 133 - relied E F G H on.Case law reference : 2009 (6) SCR 1184 Distinguished Para 7 (1976)4 sec 394 Distinguished Para 7 2011 (5) SCR 186 referred to Para 8 2012 (9) SCR 1046 reliedon Para 8 2013 (3) SCR 478 held inapplicablePara 8 1964 SCR 133relied on Para 9 2012 (1) SCR 477relied on Para 18 2011 (13) SCR 923 relied on Para 18 CRIMINALAPPELLATEJURISDICTION : Criminal Appeal Nos .493-495 of 2009. Fromthe Judgmentand Order dated 29.05.2008 of the INDER SINGH & ORS. v. STATE OF RAJASTHAN 567 High Court of Judicaturefor RajesthanBench at Jaipur in D.B.A Criminal Appeal No.313,339and 385 of 2004. R. Basant,Gouri Karuna,Das Mohanti, Ali Jethmalani, Suman Kashyap,Saurab Ajay Guptafor thethe Appellants. Gp.Cpt.KaranSingh Bhati, Ajay Chowdhary,MadhurimaB Ghosh,Jayant Bhatt (For Milind Kumar),Ram NareshYadav (ForRuchi Kohli) for theRespondent. TheJudgment of the Courtwas delivered by. c SHIVAKIRTI SINGH, J. 1. All these eight appeals arise out of one criminal case bearing FIR No.188/01 dated 10.09.2001 of P.S. Sunail, Distt. Jhalwada (Rajasthan) lodged by informant Amar Singh (P.W.15) against29 namedco- villagers.All the 29 accusedpersons were chargesheetedby D the police. After trial, fiveaccusedwere acquittedand the rest 24wereconvictedfor variousoffences.Five appeals preferred by 22 convictswere disposedof bya commonjudgment of the • High Courtdated 29.05.2008 whichis impugned in 7 criminal appeals - 6 of them lodged in 2009 and CriminalAppeal E No.1892of 2011 by convict KaluLal lodged in 2011. Two of theconvicts, namely, Ram Singh andKesar Singh (accused nos.24 and 4 respectively) approached the High Court belatedly through jail appeals whichwere disposed of by judgmentdated 10.03.2011 which is impugned in Criminal F Appeal No.1194of 2011. Since all the mattersarise out of one criminal case,they havebeenheardtogetherand are being disposedof bythiscommonjudgment. 2. Before noticingthe prosecutioncase and the main defenceof the appellants, it isnotedthat out of29 accusedwho G were put on trial, accusednos.12, 15,16, 22 and23 (asper numberin the trial courtjudgment)were acquittedby the trial court.The High Court acquitted accused no.17 whereas accusedno.19 died duringthe pendency of his appeal before theHighCourt.The recordsshow that accusedno.8, appellant H A 568 SUPREME COURT REPORTS [2015] 1 S.C.R. Maan Singhhas diedduringthe pendencyof his appeal before thisCourt.Thus presently there are 21 appellants who have beenconvicted of offencesunder Sections302/149,307/149, 147 and 148of the IPC. Accusednos.1, 2 and 3 have also been. convictedfor offencesunder Section 27 of theArmsAct, 1959. B All havebeenawarded life imprisonment along with other sentenceswhich are to run concurrently. 3. Beforeadvertingto theprosecutioncase, it is also useful to notethat the occurrence is alleged to havetaken place c on 10th September 2001 at 06:45 p.m. in Village Dhodi,at a distanceof 18 kms. from the concerned police station.The statementof informant Ram Singh(P.W.15)who was seriously injured,was recorded on the samedate at 09:30 p.m. in presenceof his uncleChen Singh(P.W.17), by SHO at Camp 0 Dhodiand formal FIR was recorded on samedate at 10:30 p.m. The FIR was duly communicated to and seen by the Addi. Chief MetropolitanMagistrate on 11.09.2001. There were 29 accusedpersons named in the FIR, all residentsof Village Dhodi. The four deceasedwho died on accountof assault in E thesameoccurrenceas well as theinjuredinformantand material eye witnesses,i.e., P.Ws.12, 14,15,17, 19 and 24 also belong to the same village. The genealogy prepared by the defence and shown to us, discloses thatat least accused no.8-MaanSingh and his twosonsaccusednos.5 and 29 F belong to the same largerfamily as that of thefourdeceased andthe injuredinformantAmar Singh. Accused no.8-Maan Singh happens to be brother of deceasedno.2-Bapu Singh and deceasedno.4-Manohar Singh whereasdeceasedno.1-lnder Singhand deceasedno.3-Nagu Singh are sonsof deceased Manohar Singh.Informant Amar Singh is son of deceased GBapu Singh. Theaccusedpersons named in the FIR and chargesheeted by namenever challenged their identification eitherbeforethe police Oi before the Magistrate.Nor therewas anycross-examination of the witnesses on thepoint of identificationwhen the witnesses in theirdepositionshave Hreferred to theaccusedpersons and the appellants by their INDER SINGH & ORS. v. STATE OF RAJASTHAN [SHIVAKIRTI SINGH, J.] nameas well as villagerelationship. 569 4.Accordingto the ParchaBayan of Amar Singh(P.W.15) hewasat hishouseat around06:45 p.m. of 10.09.2001and A at thattimehe heardcries of his cousin lnder Singh(deceased no.1)from the side of a field knownas 'Patwari ka Kher. He B cameout of thehouseand sawhis uncle MaanSingh(accused no.8)and 28 othernamedaccusedrunning behind lnder Singh. Theywere armedwith sword,gun, country-made pistol, lathi and gandasi. They all together killedlnder Singh(deceased no.1).Then they ran towardsinformant(P.W.15) and causeda c sword bldW at thewrist of his righthand. On his cries,his father BapuSingh(deceasedno.2) camerunningto rescuethe informant.His uncle Maan Singhfired with his gundue to which BapuSingh fell downand died in the khaal in presence of everybody.His uncle Manohar Singh (deceasedno.4) and hisD sonNaguSingh(deceasedno.3) also came runningto save thembut theaccusedpersons assaulted them also leading to theirdeath.Many persons of the village were watchingthe incident.The accusedpersons had registeredcases of theft of water motoragainstdeceasedlnder Singhand he had beenE recentlyreleasedfrom the jail custody. The accusedhad declared that sincepolicedid not do anything,now they would see lnder Singh.There was an existingdispute over land betweenthe informantside and accusedMaan Singhand for thesereasonsMaan Singhand his associates,armed with weaponshad causeddeath ·of four personsand hadalsoF causedinjuries to theinformantwith an intention to kill him. Informantclaimed that he, his uncle Chen Singh(P.W.17),his mother(P.W.16)and his wifecouldsave themselvesby hiding in thehouse. 5. Duringtrial, 24 witnesseswere examined on behalf of the prosecutionand several documents weremarkedas Exhibits P-1 to P-149.Defence also examinedfour witnesses andexhibited 21 documentsmarked as Exhibits D-1 to D-21.G Asnoted earlier, after trial thelearned Special Judge, SC/ST, H A B c D E F G H 570 SUPREME COURT REPORTS [2015] 1 ,S.C.R. Jhalawar,Rajasthan,vide judgmentdated 13.02.2004 passed in Sessions Trial No.123 of 2002(13/2002), convicted24 out of 29accusedfor variousoffencesincludingoffence under Section 302/149 of the IPC forwhichall wereawardedrigorous imprisonmentfor life.Thetrial courtacquittedthe appellantsof chargeunder Sectfon1208 of the IPC. The appealspreferred by the appellantsbefore the RajasthanHigh Court at Jaipur Benchwere dismissed leading to confirmation of their convictionand sentence. 6. On behalfof theappellants, Mr. Basant,learned senior advocatefirst raised an issueof factrelatingto identification ofallappellantsbecausenone of thematerialwitnesses,i.e., P.Ws 12,14,15,17, 19and 24 havelaid anyspecificclaim in their examination-in-chiefthat theycan identifythe accused persons/appellants.The submissionadvanced is that dueto suchlacuna,the appellants'presence and participation in the occurrence is notestablished and hencethey deseNeacquittal. Wefind no merit in thiscontention in the lightof salientfacts notedearlierwhich disclosethat all theaccusedpersons/ appellantsare named in the FIR. Theyare co-villagersand well knownto thewitnessesand challengeto theiridentificationby nameetc. wasneverraised by the accusedpersons at any stageof eitherthe investigationor thetrial.The presenceof theappellantsand theiridentificationflows out of thefactthat theywerenamed in the earliestversionof theoccurrence disclosed in the FIR andhavebeensubsequentlynamed by several of the witnesses in course of the trialwithclear allegationthat theywerepresentand participated in the occurrence in onewayor theother as an accused. In such factualbackground,the issuerelatingto identificationraised on behalf of the appellants isfoundto be without any substance. 7. On behalfof theappellants,several other issuesof facts werealsoraisedwith a viewto criticizethe prosecutioncase and persuade us to hold that the prosecutionhas failedto prove INDER SINGH & ORS. v. STATE OF RAJASTHAN571 [SHIVA KIRTI SINGH, J.] • the chargesagainst the appellants beyond reasonable doubts.A The general criticismsare thatthe six eyewitnesses relied upon areinterestedand three of them,i.e., P.Ws12, 14 and24 are minorswhose nameswere not disclosed in the FIR that they had also witnessedthe occurrence. It was also submittedthat theoccurrencetook place in open field and was allegedly B witnessedby large number of villagers but no independent witness, unrelated tothe family of thedeceasedpersons has beenexaminedand, therefore,prosecutioncase deservesto berejected. It was also pointedout thatthe investigatingofficer could not recover pellets fromthe place of occurrenceand c ballistic report was not made available tQ corroborateuse of fire armsby some of theaccusedpersons. Our attention was also drawn to injuries sustained by some of the accused personsand it wascontendedby learned senior counsel for the appellants that in absence of any explanation for theinjurieson 0 the side of the accusedpersons,the prosecutioncase deserves toberejected. In support of thisproposition, reliance was placed uponjudgments of this Court in the caseof Siri Kishan & Ors. v. State of Haryana (2009)12 sec 757 and in the case of Lakshmi Singh & Ors. v. State of Bihar (1976)4 SCC 394. E 8. Learnedsenior counsel also raised a seriousgrievance againstthe trial court and the High Court judgment on the plea thattheyhad failed to analyse the rolesplayed by individual accusedpersons which, accordingto learned counsel, was necessaryfor fasteningthe chargesunder Section302 and 307F IPC with the aid of Section149 IPC. The substance of this contention was that unless allegations against individual accusedare considered separately it will notbe properto hold that theywere actually members of an unlawfulassembly. To highlight the ambitand scope of Section149 IPC and related G issues, reliance was placed by learned senior counsel onthe following judgments of this Court : (i) Ku/dip Yadav & Ors. v. State of Bihar (2011)5 sec 324 H 572 SUPREME COURT REPORTS[2015] 1 S.C.R. A (ii) Busi KoteswaraRao & Ors. v. State of Andhra Pradesh (2012) 12 SCC 711 B c D E F G H (iii) Khairuddin & Ors. v. State of WestBengal (2013) 5 sec 753 9. Lastly it wascontended on behalf of appellants that ·considering the factthat all the accusedwere co-villagers of the witnessesand well known from before,the naming of some of the appellants by only fewof thewitnesses and not all should havebeentreatedto be a significantfactor to grantacquittal on the basis of benefit of doubt.Reliancewas placed upon the judgment of this Court in thecase of Masalti etc. v. State of Uttar Pradesh Al R 1965 SC202 whereinit hasbeen held that nodoubttrustworthyevidence of a single witness may be enoughto convictaccusedpersons in appropriatecases but wherea criminalcourt is dealing with evidencepertainingto anoffenceinvolving large number of offendersand a large number of victims,it is usual to adopt the test of supportby two orthreeor morewitnessesif theygivea consistentaccount of the incident.The courtapprovedsuch a testafternoticingthat it may appear to be mechanicalbut its use in appropriatecases cannotbe treatedas irrationalor unreasonable. In order to assistthis Court to apply such a test in thepresentcase, detailednotes and chartshave also been furnished to indicate individualcases of appellants in respect of evidence of eye witnessesappearingagainst them, their weaponand alleged specific role. 10.On theotherhand,learnedcounselfor theinformant and also learned counsel fortheStatehave placed reliance uponjudgments of trial courtand the High Court andhave submittedthat the oral as well as documentaryevidence has receiveddue considerationby boththe courtsand in the facts of thecase,no interferenceis requiredwith the concurrent findings of guilt recorded against the appellants. It was highlighted on behalf ofprosecutionthat when large number of accusedpersons had run after the deceasedand indulged in INDER SINGH & ORS. v. STATE OF RAJASTHAN573 [SHIVA KIRTI SINGH, J.] indiscriminate assault resultinginto deathof fourpersons in A open field andseriousinjuries to theinformant,the witnesses cannot be expectedto notice,rememberand deposethe individualacts committed by differentaccusedpersons vis-a- visthefivevictims. It waspointedout on behalf of prosecution that medical evidence and theinjurieshave been correctly notedB by the trial court whichshow thatfirearm injurieswere found on as manyas threedeceased, namely, NaguSinghfrom whose deadbody two pellets wererecovered,one fromthe wrist of the left armand onefromthe stomach;deceased lnder Singh fromwhoseback part of thebody 12 pellets wererecovered c and deceasedBapu Singhwho was foundto havesustained agunshotinjury on the jawfromwhich66 pellets were taken out along witha plastic circularcap. Pellets were also taken outfromthe brain. 11.Learned counsel for theinformantand the State also D submittedthat no doubt innocentbystandersor witnesses cannot be and should notbe included in the list of accusedas membersof unlawful assembly and the court is requiredto be vigilant and aware of all the factsshowinginvolvement of the accusedpersons -fromtheir conductprior to as well as duringE andafterthe occurrence. Incriminating conduct will varyfrom caseto caseand can be ascertained only in the peculiarfacts of each case havingregard to, inter alia, natureof conduct, overtact andpossession of weapons,if any.For thispurpose, accordingto prosecution,the courts below have analysed theF ocular evidence in detail and have also noticedrecoveryof differentweaponsfrom the accusedpersons.Therefore,as per theirsubmission,the conviction of the appellants requires no interference. 12. On goingthroughthe entireevidence of material witnesses,other materialsand judgment of the courts below, we findthatsincethe numberof accusedpersons was quite large and theywere bold and strongenoughto causefour deaths in theopen field in presenceof large number of persons, G H 574 SUPREME COURT REPORTS (2015] 1 S.C.R. A it cannot be difficultto understandand appreciate as to why independentwitnesses from the village who mighthave seen theoccurrence,did notpreferto comeout to supportthe prosecution.But that will not takeawayfrom the worth of deposition of six eyewitnesseswhen they havegivena Bconsistentaccount of theoccurrencewhich was disclosed in a nutshell soon after the occurrence in the FIR lodged by P.W.15 whowas seriouslyand critically injured in the sameoccurrence andwhosepresencecannot be doubted. If, per chance, he wouldhave beenthe sole witness,even then it mayhavebeen c possiblefor thecourts below to convictthe accusedpersons on his testimonyafter testing its veracity in the light of his earlier statementcontained in the FIR. In such a factualscenario, we find no reason to doubt the prosecutioncase if the 1.0. failed torecover pellets fromthe open field whichwas the placeof 0 occurrenceor if he could notobtain ballistic report. The eye versionaccountof theoccurrenceand the medicalevidence showing large number of injuries including firearminjuries supporteach other. On this issue,the discussion and findings ofthetrialcourtagainst theaccused persons is found to have sufficientmerit. E 13. The criticismthat someof theaccusedhad sustained injuries for which the prosecution has not offered any explanationhas rightly been rejected by the trial court because there is no counterversion or evena suggestiondisclosing that F any of the accused had received injuries in the same occurrenceand at thesameplace.None of the persons allegedly injured on the sideof thedefencehave lodged any casedisclosingwhere and underwhat circumstancesthey sustainedthe injuries. In thefacts of the case, in absence of G anycounterversion and any plea of self-defence,it would be hazardous to presumeat theinstance of the defencethat the accusedpersons sustainedthe injuries in course of same occurrence and atthesameplace. Only if these two ingredients wereestablished,the defence would havebeenentitled to seek H an explanationfrom the prosecution in respectof someinjuries INDER SINGH & ORS. v. STATE OF RAJASTHAN 575 [SHIVAKIRTI SINGH, J.] onthree of theaccusedpersons.Their injurieswere neither fatal nor theycausedany threatto life and that also reduces theburdenupon the prosecutionto explain injuries on the accused. In view of abovediscussion,we are of theviewthat judgments in thecase of Siri Kishan (supra)and Lakshmi Singh (supra) do not help the appellants. In paragraph12 of the judgment in thecase of Lakshmi Singh (supra)the court hadfoundthat in the circumstances of thatcasethere could be no doubtthat the accusedmust have receivedgrievousinjuries incourse of the assault. In thecaseat hand,the factsare different and hence the prosecution version cannot be disbelieved on account of someinjuries allegedly sustainedby someof theaccused, namely, Maan Singh (accusedno.8); Ram Prasad (accusedno.28); and Bahadur Singh (accusedno.29). 14.Themainissuethat nowrequiresconsiderationis whetherthe courts below haverightly appliedSection 149 of the IPC against the appellants for convictingthem for thedeath of four personsand for murderousassault on theinformant.The principle of law governingapplication of Section 149 IPC has beenexplained by this Court in manyjudgments including those citedby learnedsenior counsel for the appellants. In thecase of Ku/dipYadav (supra),the law was stated in paragraph39 in the following words : "39. It is not theintention of the legislature in enacting Section 149 to renderevery member of unlawfulassembly liable to punishmentfor everyoffencecommittedby one ormore of itsmembers. In orderto attract Section 149,it must be shownthat the incriminatingact wasdoneto accomplish the commonobject of unlawful assembly and itmust be withinthe knowledge of other membersas one likely to becommittedin prosecution of thecommon object. If themembers of the assembly knewor were aware of the likelihood of a particular offence being committed in prosecution of thecommonobject, they would be liable for thesameunder Section 149 IPC." A B c D E F G H 576 SUPREME COURT REPORTS [2015] 1 S.C.R. A15. In the case of BusiKoteswaraRao (supra)the facts showed involvement of large numberof personsand, therefore, while approvingthe viewtaken in the caseof Masalti(supra) thisCourtcautioned in paragraph 11 of thejudgmentthat the courts should be cautious in casesof arson and murderwhere Bthe numberof accused is large, to rely uponthe testimonyof thewitnessesspeaking generally without specificreference to the accusedor thespecific roleplayed by them. 16. Relianceplaced by appellants on the judgment in the C case of Khairuddin(supra) is misplaced. In that case,as paragraphs12, 13 and 14 disclose, overt act of assault was foundprovedagainstfive appellants groupedtogetherand hencetheir convictionwas affirmedwhereasagainst some others included in adifferentgroup it wasfoundthat therewas no evidenceshowing that theywereeitherpresent on the spot Dor participated in theoccurrence. In the caseat hand,the finding on appraisal ofevidence is different. 17. Theingredientsof Section149 IPC require presence of an unlawfulassembly which is defined under Section 141 of Ethe IPC as an assembly of fiveor morepersons,if thecommon objectof thepersonscomposingthat assembly is any of the fiveobjects fully enunciated in Section 141 of IPC. Thethird object is -"to commitany mischiefor criminal trespassor other offence." The explanation toSection 141 clarifies that an F assembly whichwas not unlawful whenit assembled, may subsequentlybecome an unlawful assembly. As per Section 149, evenif anyonememberof an unlawful assembly commits anoffencein prosecution of thecommonobject of that assembly, every personwho at thetimeof committing of that Goffencewas a memberof the unlawfulassembly is guilty of that offence. 18. Since itwas vehemently contendedthat courts below havenot applied their mindas to whetherthe appellants were membersof an unlawful assembly or not, it is our dutyto remind H ourselves of the law on thesubject. It is settledlaw, as held in INDER SINGH & ORS. v. STATE OF RAJASTHAN577 [SHIVA KIRTI SINGH, J.] thecaseof Roy Fernandes v. State of Goa& Ors. (2012)3A sec 221, that to determinethe existenceof commonobject, thecourt is required to seethe circumstances in whichthe incident had taken place, theconductof membersof unlawful assembly as well as theweaponof offencethey carriedor used on thespot. It is alsoestablished law, as held in the caseof B Ramchandran& Ors. v. State of Kera/a (2011) 9 SCC 257, thatcommonobject may form on spurof themoment.Prior concert by way ofmeetingof membersof unlawful assembly is not necessary. 19. In thatviewof settled law, the factsof the presentcase c as alleged in the FIR and as proved in thecourt leave no mannerof doubtthat the group of personswho chased deceased no.1-lnderSingh and caused his death and thereafter chased,surrounded and caused death of threemore persons besidescausing grievousinjuries to the informant-AmarSingh D was an assembly offiveor morepersons rightfully deseNing to be designated as an unlawfulassembly because by its action itshowedthat its commonobject was to commitoffence.The subsequentacts clearly show that the unlawfulassembly carried out its commonobject of committingserious offenceof murderE offourpersonsand grievousinjuries to the informant. 20.This Court, therefore,finds that the courts below committed no error in applyingSection 149 of the IPC and convictingthe membersof the unlawfulassembly for offences underSections302 and 307 of the IPC (withthe aid of Section 149 IPC).Some argumentwas advanced on therebeing lack of any clear motivebut that is not at all necessary or material whenthe offenceshave beenprovedby clear and cogent evidence including eye-witnesses. 21. So far as the principle ofcaution as enunciated in the caseof Masalti (supra) is concerned,we find ourselves in agreementwith the submissionadvanced by learnedsenior counsel Mr. Basant that in the peculiar facts of thecase,the F G H 578 SUPREME COURT REPORTS[2015] 1 S.C.R. A courts belowshould have furtherdecidedas to how much corroborationwas requiredfor acceptingthe presenceand participationof individualaccused person. The informant had though claimed presenceof 29personsbut subsequentlyfive wereacquitted by the trial court and one wasacquitted by the BHigh Court. On this issue, on goingthroughthe charts disclosing numberof witnesseswho havedeposedagainst individual appellants to show their presence,participation,weapon and overt act, if any, we find thatthe testapproved in Masa/ti'scase (supra) and subsequentlyfollowed in several other cases c including the caseof Busi KoteswaraRao (supra) needs to be followed in this case also. In the latter jud~ment in paragraph 13the law on thesubjecthas beenexpounded in very clear terms: D E "13. It is clear that whena criminal court has to deal with evidencepertainingto thecommissionof an offence involvin·g a large number of offendersand a largenumber of victims,the normaltest is that the convictioncould be sustained only if it is supported by two or morewitnesses whogivea consistentaccount of theincident in question." 22. Since theaccusedpersons and the 6 material eye witnesses in thiscase are co-villagers,it isexpectedthat at leastthreewitnessesshould be in a position to nameindividual accusedpersons for sustaininghis conviction. Applying that Ftest,it is foundthat accusedno.9-Bhagwan Singh, son of Prabhu Lal; accusedno.18-SureshKumar, son of Ram Dhakad;accusedno.20-KanhiRam, son of PrabhuLal; accusedno.27-Prahlad Singh, son of NathuLal; and accused no.28-RamPrasad, son of Bheru Lal deserve to be acquitted Gby grantingbenefit of doubt.This benefitof doubtarises in their favourbecausealthoughthey havebeennamedspecifically by informantP.W.15 as personswho weremembers of the unlawfulassembly and who participated in assaultbut such claim of theinformant has not beensupported by morethan Honewitness. In otherwords.there is noclearand cogent INDER SINGH & ORS. v. STATE OF RAJASTHAN579 [SHIVA KIRTI SINGH, J.] evidenceof threewitnessesagainst the aforesaidaccusedA persons. So far as accusedno.28-Ram Prasad is concerned, no doubt his namehas been taken by P.W.12 and P.W.24also but theyhavenot specified as to whetherit was Ram Prasad, son ofBheru Lal oranotheraccusedby thesamename,i.e. accusedno.25-Ram Prasad, son of JethRam.B 23. The appeals preferred by theaforesaidfive appellants, namely, BhagwanSingh, son of Prabhu Lal (appellantno.3 in Crl. Appeal No.1239of 2009); Suresh Kumar,son of Ram Dhakad(appellantno.3 in Crl. Appeal No.493 of 2009); Kanhi C Ram, son of Prabhu Lal (appellantno.4 in Crl. Appeal No.1239 of 2009);Prahlad Singh, son of Nathu Lal (soleappellant in Crl. Appeal No.1241of 2009); and Ram Prasad, son of Bheru Lal (appellant no.4 in Crl.Appeal No.493of 2009) are allowed. They are grantedbenefit of doubtand acquittedof all the charges. The appeals of remaining 16 appellants are D dismissed. If on bail, their bail bonds shall stand cancelled and they shall be takeninto custodyforthwithto serveout the remainingsentence in accordancewith law. Oevika GujralAppeals disposed of |
