REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 299 OF 2010

DEV KARAN @ LAMBU ….Appellant(s)

VERSUS

STATE OF HARYANA ….Respondent(s)

WITH

Crl.A. No. 300/2010

Crl.A. No. 302/2010

Crl.A. No. 1139/2010

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. On the fateful date of 28.7.1994 at 3 a.m., Jaibir @ Gabbu (for

short ‘deceased’) was murdered.  An FIR was registered on the same date

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by one Surender (PW-7).  The prelude culminating in the incident has

been set out in the FIR.  

2. The residential house of the deceased was under-construction, at

Modawala Bagh in Bhiwani.  A group of friends – Surender (PW-7), the

deceased, Ajay Bhan (PW-8), another Surender S/o Rajender Singh (not

examined), Sandeep (not examined) and Narender (not examined) were

sitting  and  consuming  liquor  in  one  of  the  rooms  of  the  under

construction house.  It appears that the liquor possibly fell short, as the

deceased asked Sandeep to bring half a bottle of liquor from the English

vend.   After  some time,  the remaining friends who were in  the room

heard  raised  voices  of  Sandeep.   In  order  to  enquire  as  to  what  was

transpiring,  Surender  (PW-7/complainant),  the  deceased  and  Narender

went towards the liquor shop.  In the proximity of the liquor shop, near

the tea shop of Naresh Kumar, these three persons saw accused Krishan

and  Vidhya  Rattan  (original  accused  No.3/appellant1)  abusing  and

quarrelling with Sandeep.   Heated  words  were  exchanged and threats

were held out.  The deceased asked Krishan and Vidhya Rattan to come

during the day to discuss the matter with the complainant and his friends.

1 Appellant in Crl.Appeal No.300/2010

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The complainant, the deceased, Narendar and Sandeep thereafter came

back to the under-construction, residential house.

3. It is the case of the complainant that just as these friends were,

once again,  in the process of  resuming their  drink,  seven persons (all

arrayed as accused before the trial court) entered the under-construction

house of the deceased, armed with deadly weapons like wooden rafter,

lathis and sword.  Rajesh Yadav (accused No.1), who has since passed

away, was armed with a bahi (a rectangular wooden rafter, which is used

in  making cots),  and proclaimed that  the  deceased,  referred  to  as  the

‘leader’,  be killed, and then he hit  the deceased on the head with the

wooden rafter.  A lathi blow was given by Krishan on the head of the

deceased.  The consequence of these blows was that the deceased fell to

the  ground.   The  assault  continued  when  Suresh  (original  accused

No.5/appellant2) also gave a wooden rafter blow on the left leg of the

deceased.  Rajesh Yadav (accused No.1), since deceased, raised a lalkara

that Jaibir (the deceased) be killed altogether.  All the accused thereafter

started  hitting  the  deceased  indiscriminately  with  their  respective

weapons.  A variety of weapons were used to carry out the assault, with

2 Appellant in Crl. Appeal No.302/2010

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Rajesh  Yadav and Suresh  being armed with  bahis,  while  Rajesh  Jogi

(original accused No.4/appellant3) being armed with kirpan (sword) and

the remaining four accused carrying lathis.

4. The endeavour of the complainant to intervene, only ended up in

blows being received by him from different accused, and the same was

the consequence for Ajay Bhan (PW-8), on his endeavour to intervene,

too.  All the accused persons are stated to have run away from the place

of occurrence of the event, once the remaining companions of deceased

herein raised an alarm.  The deceased succumbed to his injuries, though

was  taken  for  treatment  to  the  General  Hospital,  Bhiwani.   The

examination of PW-8 and PW-7 resulted in the doctor opining that PW-8

had multiple lacerated wounds on the scalp, and that his right forearm

bones,  left  forearm bones  and  right  foot  were  fractured.  After  giving

necessary  medical  treatment,  he  was referred  to  the  Medical  College,

Rohtak on the same day.  Surender (PW-7/complainant) was found with a

surgical  emphysema4 on  the  right  side,  which  was  the  reason  for  his

reference  to  the Medical  College,  Rohtak.   The  ruqa was  sent  to  the

Police Station, Bhiwani at 4:15 a.m. by the doctor on duty, Dr. Aditya 3 Appellant in Crl. Appeal No.1139/2010 4 A condition in which the air sacs of the lungs are damaged and enlarged, causing breathlessness.

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Sarup Gupta.  Suffice to say, the various injuries inflicted on these two

persons  were  found  by  the  doctor  to  have  been  inflicted  with  blunt

weapons, with some of the injuries being grievous in nature, while the

remaining ones being simple.  But for timely medical aid, the injuries

could have  proved fatal,  opined the doctor.   Both  these persons were

declared fit to make statements at 5:40 a.m., on 28.7.1994.

5. On the ruqa being sent, the SHO of the Police Station at Bhiwani

reached the hospital to record the statements of PW-7 and PW-8.  The

formal FIR was registered, thus, at 7:15 a.m., imputing a common object

to all the accused, to murder the deceased.  On inquest proceedings being

conducted,  the body was sent  for  post-mortem.  A special  report  was

received by the Chief Judicial Magistrate (‘CJM’), Bhiwani at 9:00 a.m.,

and a rough site plan was made by the SHO at the site, who also collected

blood stained earth, one chaddar,  one pajama shirt of the deceased, one

pajama,  kamij and  baniyan in  torn condition.   Four  of  the accused –

Krishan,  Vidhya  Rattan,  Suresh  and  Rajesh  Jogi  were

apprehended/arrested on 28.7.1994 and questioned.  On the post-mortem

being concluded, the deceased was found to have suffered, inter alia, the

following injuries:

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  Multiple  lacerated  wounds  on  the  parieto-occipital  area  of  the

scalp, and various other parts of the forehead, scalp.  On opening

the  skull  bone,  subdural  haematoma  was  found  at  the

corresponding site  of  fracture,  one the right  side of  the parietal

bone.

 Lacerated  wounds  on  the  left  eye  brow,  lower  eye  lid,  right

forearm, and left leg.

 Fracture of bones in the left leg.

 Bruises on the right shoulder, right upper arm, chest, abdomen, left

and right thigh, left and right knee.

 Abrasions on the left should, left forearm.

The cause of death was opined to be shock and haemorrhage, as a

result of injuries, which were sufficient in the normal course of nature, to

cause death.  These injuries were quite possibly as a result of blows from

lathis, bahis and sword.

6. The  disclosure  statement,  post  the  interrogation  of  the  arrested

accused on 29.7.1994, resulted in recovery of the weapons and clothes

worn by them at the time of the incident.  On the same day, Rajesh Yadav

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(accused No.1) was also arrested, and his disclosure statement led to the

recovery of a  bahi.  Dev Karan (original accused No.6/appellant5) was,

however, arrested subsequently, on 1.8.1994, and he led to the discovery

of lathis, for which assistance was also provided by the accused, Karma.

7. On  completion  of  investigation,  a  chargesheet  was  filed  on

15.11.1994, and charges were framed under Sections 148, 302, 307, 325

read  with  Section  149  of  the  Indian  Penal  Code,  1860  (hereinafter

referred  to  as  the  ‘IPC’)  and  Section  449  of  the  IPC.   The  accused

pleaded  innocence,  and  during  trial,  seventeen  prosecution  witnesses

were  examined.   No  witnesses  were  examined  as  defence  witnesses.

Rajesh  Yadav  died  during  trial.  The  remaining  arrested  accused  were

found guilty and convicted under Sections 148, 302, 307, 325 read with

Section 149 of the IPC and Section 449 of the IPC.  All the accused were

sentenced for life, with fine of Rs.500 each under Section 302 of the IPC.

They were also sentenced to undergo rigorous imprisonment (‘RI’) for

seven years each along with a fine of Rs.500 each under Section 307 of

the IPC with similar sentence under Section 149 of the IPC.  The accused

were  also  directed  to  undergo RI  for  three  years  each  with  a  fine  of

5 Appellant in Crl. Appeal No.299/2010

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Rs.200 each under Section 325 of the IPC, and under Section 148 of the

IPC, they were sentenced to RI for 2 years each with fine of Rs.200 each.

The sentences were directed to run concurrently.  All the accused were

held guilty under Section 149 of the IPC as they constituted an unlawful

assembly, as a result of which, it was opined that specific attribution of

injuries caused by each individual was not required to be considered.

8. It  may  also  be  noticed  that  Karma  (A-7)  was  apprehended

subsequently, and was convicted in a subsequent trial.  The accused filed

appeals.  The High Court, however, dismissed the appeals in terms of the

impugned judgment and order dated 19.9.2008.

9. Against the order of the High Court, Krishan (A-2) and Karma (A-

7) did not prefer further appeal to this Court, and seemingly accepted the

sentence.  Thus, only Vidhya Rattan (A-3), Rajesh Jogi (A-4), Suresh (A-

5) and Dev Karan (A-6) preferred appeals, which four appeals have been

examined by us, in the present judgment.

10. Learned counsel advanced submissions on behalf of A-4 and A-6,

i.e., Rajesh and Dev Karan.  The gravamen of the submissions was the

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plea that no charges had been framed under Section 141 of the IPC.  In

addition, it was submitted that the prelude to the incident was an alleged

altercation between Sandeep and A-2 & A-3.  However, for reasons best

known to the prosecution, Sandeep, who was the sole person who could

have thrown light as to what gave rise to the initial quarrel, has not been

examined.  Not only that, Sandeep is alleged to have come back with the

liquor after the incident, and thereafter, all the accused are alleged to have

come to the spot and beat up the deceased.  The third aspect emphasised

was that the main injury, which would have caused the death, was an

injury on the head by the wooden rafter, which was delivered by A-1,

who passed away during the trial.

11. Learned counsel took us through the provisions of Chapter VIII of

the IPC, dealing with ‘Offences against the Public Tranquility’.  It was

his submission that the provisions have to be ready holistically, and in

sequence.  Thus, Section 141 of the IPC defines an ‘Unlawful Assembly’

as an assembly of five or more persons with a common object.  Such

common  objects  are  specified  in  the  Section,  and  what  would  be

applicable, in this case, would be the third aspect, i.e., “to commit any

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mischief or criminal trespass, or other offence.”  Section 142 of the IPC

provides  that  a  person  who,  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, while

Section 143 of the IPC provides the punishment for being part of such an

unlawful  assembly.   Section  144  of  the  IPC  deals  with  joining  an

unlawful assembly, armed with deadly weapon, which is likely to cause

death; Section 146 of the IPC deals with rioting; Section 147 of the IPC

deals with punishment for rioting while Section 148 of the IPC deals with

rioting,  armed with deadly weapon.  Section 149 of  the IPC reads as

under:

“149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.—If an offence is  committed  by  any  member  of  an  unlawful  assembly  in prosecution of the common object of that assembly, or such as the  members  of  that  assembly  knew  to  be  likely  to  be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”

12. It was, thus, the submission advanced that unless there is infliction

of punishment under Section 143 of the IPC, as a sequitur to forming an

unlawful assembly under Section 141 of the IPC, there could be no cause

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to apply Section 149 of the IPC.

13. Learned  counsel  referred  to  the  judgment  in  Vinubhai

Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel &Ors.,6 to elucidate

his submission.  The concept of vicarious liability, as a result of which a

large number of accused constituting an unlawful assembly can be held

guilty, has been discussed, to hold that it is not necessary that each of the

accused inflict fatal injury or any injury at all; the mere presence of an

accused in such an assembly is sufficient to render him vicariously liable

under Section 149 of the IPC, for causing the death of the victim of the

attack, provided that the accused are told that they are to face the charge,

rendering  them so  vicariously  liable.   The  principle  of  this  vicarious

liability, under Section 149 of the IPC has been set out in para 28 of the

judgment and reads as under:

“Section   149   propounds   a   vicarious   liability [Shambhu Nath Singh v. State of Bihar, AIR 1960 SC 725: 1960 CrlLJ 1144]  in two  contingencies  by  declaring  that   (i)   if  a  member  of  an unlawful  assembly  commits  an  offence  in  prosecution  of  the common  object  of  that  assembly,   then  every  member  of  such unlawful assembly is guilty of the offence committed by the other members of the unlawful assembly, and (ii) even in cases where all the members   of   the   unlawful   assembly   do   not   share   the

6 (2018) 7 SCC 743

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same common object to commit a particular offence, if they had the knowledge  of  the  fact that some of the other members of the assembly   are   likely   to   commit   that   particular   offence   in prosecution of the common object.”

14. The concept of unlawful assembly under Section 149 of the IPC

was, thus, as per para 31, opined to have two elements:

“(i) The assembly should consist of at least five persons; and

(ii) They should have a common object to commit an offence or

achieve any one of the objects enumerated therein.”

15. In that context, in paras 32 & 33, it has been observed as under:

“32. For recording a conclusion, that a person is (i) guilty of any one  of  the  offences  under  Sections  143,  146  or  148  or  (ii) vicariously  liable  under  Section  149  for  some  other  offence,  it must first be proved that such person is a member of an “unlawful assembly” consisting of not less than five persons irrespective of the fact whether the identity of each one of the 5 persons is proved or not. If that fact is proved, the next step of inquiry is whether the common  object  of  the  unlawful  assembly  is  one  of  the  5 enumerated objects specified under Section 141 IPC.

33. The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the  gathering  of  the  assembly,  the  conduct  of  the  gathering  as distinguished  from  the  conduct  of  the  individual  members  are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual  members  of  the  assembly,  in  our

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opinion is impermissible. For example, if  more than five people gather  together  and  attack  another  person  with  deadly  weapons eventually  resulting  in  the  death  of  the  victim,  it  is  wrong  to conclude that one or some of the members of such assembly did not share the common object with those who had inflicted the fatal injuries (as proved by medical  evidence);  merely on the ground that  the  injuries  inflicted  by  such  members  are  relatively  less serious and non-fatal.”

16. The submission,  thus,  was that  the significance of  not  invoking

Section 141 of  the IPC is  that  the very substratum of  constituting an

unlawful assembly did not exist.

17. To support the aforesaid line of reasoning, a reference was also

made to the earlier judgment in Dani Singh v. State of Bihar7, where, in

para 11 it has been observed as under:

“11. The emphasis in Section 149 IPC is on the common object and  not  on  common  intention.  Mere  presence  in  an  unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of  Section 149. The crucial  question to determine  is  whether  the  assembly  consisted  of  five  or  more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against  a  person,  who is  alleged to  be  a  member  of  an unlawful assembly,  it  cannot be said that he is a member of an

7(2004) 13 SCC 203

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assembly.  The  only  thing  required  is  that  he  should  have understood  that  the  assembly  was  unlawful  and  was  likely  to commit any of the acts which fall within the purview of Section 141. The word “object” means the purpose or design and, in order to make it “common”, it must be shared by all. In other words, the object  should  be  common  to  the  persons,  who  compose  the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not  continue  to  be  the  same.  It  may  be  modified  or  altered  or abandoned  at  any  stage.  The  expression  “in  prosecution  of common object”  as  appearing  in  Section  149  has  to  be  strictly construed as equivalent to “in order to attain the common object”. It  must  be  immediately  connected  with  the  common  object  by virtue of the nature of the object.  There must  be community of object and the object may exist only up to a particular stage, and not  thereafter.  Members  of  an  unlawful  assembly  may  have community of object up to a certain point beyond which they may differ  in  their  objects  and  the  knowledge  possessed  by  each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section  149  IPC may be  different  on  different  members  of  the same assembly.”

18. In  order  to  appreciate  the  significance  of  specifically  invoking

Section 141 of the IPC, it would be appropriate to refer to the judgment

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of this Court in Mahadev Sharma v. State of Bihar8.  This Court opined

that for application of Section 149 of the IPC, there must be an unlawful

assembly.  The scheme of the provisions was explained as under:

“9. The fallacy in the cases which hold that a charge under Section 147  is  compulsory  arises  because  they  overlook  that  the ingredients  of  Section  143  are  implied  in  Section  147  and  the ingredients  of  Section  147  are  implied  when  a  charge  under Section 149 is included. An examination of Section 141 shows that the  common  object  which  renders  an  assembly  unlawful  may involve the use of criminal force or show of criminal force, the commission of mischief or criminal trespass or other offence, or resistance  to  the  execution  of  any law or  of  any legal  process. Offences under Sections 143 and 147 must always be present when the charge is laid for an offence like murder with the aid of Section 149,  but  the  other  two  charges  need  not  be  framed  separately unless it is sought to secure a conviction under them. It is thus that Section 143 is not used when the charge is under Section 147 or Section 148, and Section 147 is not used when the charge is under Section 148. Section 147 may be dispensed with when the charge is under Section 149 read with an offence under the Indian Penal Code.”

19. Thereafter, it has been opined that if charges framed against the

appellant contain all the necessary ingredients to bring home to each of

the member of the unlawful assembly, the offence, with aid of Section

149 of the IPC, and the prosecution proves the existence of an unlawful

assembly  with  a  common  object,  which  is  the  offence,  as  also  the

8(1966) 1 SCR 18

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membership of each appellant, nothing more is necessary.  The effect of

these observations is that Section 141 of the IPC only defines what is an

unlawful assembly and in what manner the unlawful assembly conducts

itself, and in what cases the common object would make the assembly

unlawful is specified in the Sections thereafter, inviting the consequences

of the appropriate punishment in the context of Section 149 of the IPC.

20. In  KuldipYadav v. State of Bihar9, it has been opined in para 36

that  a clear  finding regarding the nature of  the common object  of  the

assembly must be given and the evidence discussed must show not only

the  common  object,  but  also  that  the  object  was  unlawful,  before

recording a conviction under Section 149 of the IPC.  What is required is

that  the  essential  ingredients  of  Section  141  of  the  IPC  must  be

established.

21. On examination of the aforesaid aspect, we are unable to come to a

conclusion that there was any fatal flaw in the non-inclusion of Section

141 of the IPC while framing charges, as would render the complete trial

illegal, or that it can result in a finding that there would be no occasion to

9(2011) 5 SCC 324

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invoke Section 149 of the IPC.  Learned counsel  appears not to have

appreciated  the  judicial  pronouncements  in  the  correct  perspective,  as

what is necessary for invoking Section 149 of the IPC has been set out in

these judgments.  It has nowhere been said that Section 141 of the IPC

should be specifically invoked or else the consequences would be fatal.

As long as the necessary ingredients of an unlawful assembly are set out

and proved, as enunciated in Section 141 of the IPC, it would suffice.

The actions of an unlawful assembly and the punishment thereafter are

set out in the subsequent provisions, after Section 141 of the IPC, and as

long as those ingredients are met, Section 149 of the IPC can be invoked.

22. In  the  factual  context,  it  is  observed  that  whatever  be  the

altercation  or  argument  between  Sandeep  and  the  seven  accused,  it

resulted in the seven accused armed with deadly weapons coming to the

site of the incident, being the under-construction house of the deceased,

and all of them inflicting blows on the deceased.  Rajesh Yadav, since

deceased, not only inflicted a blow with a bahi, but also raised a lalkar

that the deceased should be killed.  All the other accused also inflicted

blows on the deceased.  Even the interventions of PW-7 & PW-8 did not

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result in their desisting from such assault, but on the other hand, even

PW-7 and PW-8 received injuries as a result thereof.  This is not a case

where  the  common  assembly  proceeded  to  the  site  and  subsequently

decided to inflict the blows.  It is not as if anyone incidentally joined the

group, but all of them came together with a clear intent and acted upon

that intent.  It was not as if any of the accused ran away from the site, or

ceased to have the intent to inflict blows, which resulted in the death of

the deceased.  The common object is, thus, writ large on its face.  There

were, at least, 24 injuries inflicted on the deceased, and both the courts

below  have  found  that  the  version  given  by  PW-7  and  PW-8  evoke

confidence,  who  were  themselves  injured  in  the  incident.   Minor

discrepancies were,  thus,  found to be a natural  cause,  where so many

persons  attacked  suddenly.   The  accused  were  known  to  the  eye-

witnesses and, thus, there can be no case of mistaken identity.  There was

no unexplained delay in filing the FIR.

23. No doubt the IO had deposed that the liquor shops remain open up

to 11 p.m., but that itself would not belie the story, as it is not difficult to

conceive of the ability to obtain liquor at that hour, which is substantiated

by the fact that the liquor was obtained and the persons at the site were

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having a drink after having run through the initial amount of liquor.

24. We may,  however,  notice  that  no doubt  Sandeep ought  to  have

been examined as also the other persons, Narender, who visited the initial

altercation  place  subsequently.   The  prosecution  undoubtedly  faltered

there.  The question, however, is whether this would, in any manner, cast

a doubt on the incident,  or the manner of infliction of injuries on the

deceased  and  the  eye-witnesses,  which  resulted  in  the  death  of  the

deceased.  On an analysis of the facts of the present case, our answer

would be in the negative.  The saving grace, however, is that Surender,

son  of  Bhagwan  Singh  had  been  examined,  being  PW-7,  as  the

complainant, who has succinctly set out the scene.  The injured witnesses

knew the accused.  That the site was an under construction site would not

mean that there was no lighting at all so as to cause a confusion about the

identity of the accused.

25. We may also notice that there are concurrent findings of the trial

court and the appellate court, which have appreciated the evidence, and

we do not think that this Court should convert itself into a third court of

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appeal for appreciation of evidence.

26. We are also unimpressed by the argument that the sentence may be

converted into one under Section 304 Part II as a period of nine and a

half years has been served by the accused, as a convict.  The manner of

the attack, the common object with which it was made, the nature of the

injuries do not permit us to take a more compassionate view of the matter

in this case, to only facilitate the accused in serving a lesser sentence,

other than what the legislature mandates, i.e., the life sentence (the option

only being the death sentence).

27. We, thus, find no merit in the case sought to be made out on behalf

of the accused Nos.4 & 6.

28. A valiant  endeavour  was  made  by  Mr.  Basant,  learned  senior

counsel on behalf of A-5, Suresh, on the substantive plea of absence from

the  site,  i.e.,  no  participation  in  the  incident,  but  a  case  of  mistaken

identity.   The crucial  infirmity is  stated  to  be the non-examination of

Sandeep as a witness, who had the quarrel with A-2 and A-3.  However,

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this aspect, we have already discussed aforesaid.  Since the conviction is

basically on the statement of PW-7 and PW-8, i.e., the injured witnesses,

learned counsel sought to show some inconsistencies in the testimonies

of the two witnesses, as also in the identification of A-5 by PW-7, the

complainant,  in  the F.I.  Statement.   It  was submitted that  the original

identification was of one Lala.  In the FIR, it is stated that it was Suresh

@ Lala (A-5).  It was, thus, submitted that nothing has been explained as

to how Lala became Suresh @ Lala in the FIR or how the IO recorded so.

The inquest report is also stated to be only referring to Lala.  Thus, the

submission was that while the accused was Suresh, he was not known as

Lala.  Suresh was stated to be in his native village, and not at the site on

the  fateful  date,  but,  that  is  an  alibi  which  even  other  accused  have

pleaded.

29. Learned  senior  counsel  sought  to  read  extensively  from  the

statement of PW-7 and PW-8.  PW-8 has not alleged that A-5 inflicted

any injury on his person, while PW-7 has specifically alleged that A-5 hit

PW-8.  On the other hand, PW-7 attributes a rafter blow on the leg of the

deceased to A-5, while PW-8 does not state so specifically, but refers to

blows given in general.

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30. On examination of the aforesaid pleas, we would agree that these

discrepancies  fall  under  what  has  been  labeled  by  the  High  Court  as

‘minor discrepancies’, more so in an incident of this nature, where all the

accused were inflicting blows on the deceased,  at tandem.  PW-7 and

PW-8 also became victims of this attack, when they tried to intervene.  It

would be difficult to accept that in such a situation, the narration should

be absolutely exact, rather there should be a broad consistency in what

transpired at the time of the incident.  To accept the plea of the learned

senior counsel, which at first blush may seem to have some merit, on a

deeper examination would amount to nit  picking the testimony of the

witnesses to somehow obtain an acquittal.  We may also notice that there

was no past enmity, which could be attributed against PW-5 alone as to

rope  him  in.   In  fact,  the  grievance  of  the  deceased  was  about  the

collective behavior, in the past, of all the accused.  This resulted in all the

accused using the opportunity of  a  small  verbal  tiff  with Sandeep,  to

come to the site of the incident, which was the under construction house

of the deceased, to inflict the deadly blows on the deceased, culminating

in his death.

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31. Learned  counsel  for  the  State  also  invited  our  attention  to  the

discussion in the impugned order qua the aspect of the identification of

A-5 as under:

“….In the FIR, accused Suresh has been described as Lala Ahir resident  of  Munthiya Kheri.   The eye witnesses have,  however, described/identified him as Suresh @ Lala, while appearing in the witnesses  box.   Undisputedly,  accused  Suresh  is  resident  of Munthiya Kheri.  The eye witness already knew him.  This leads to the inference that he must have been known as Lala also and, thus, his presence at the spot cannot be doubted.”

32. The testimony of PW-8 further shows that he had seen A-6 and

other accused persons earlier when they had been identified to him, at

that stage.  It is in those circumstances that he identified all the accused.

The fact also remains that A-3, A-4 and A-5 were arrested on the same

day, though A-6 was arrested subsequently.  The recovery of weapons

was also made due to the disclosure statement of A-5.  We are, thus, not

persuaded  to  accept  the  plea  of  mistaken  identity,  as  sought  to  be

advanced by the learned senior counsel, which is what is stated to be the

real case distinguishing A-5 from other accused.

33. We may also note that insofar as A-3 is concerned, all arguments of

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A-5 were adopted, except the argument about mistaken identity but then,

that is the only plea of A-5, other than formally adopting the arguments

of A-4 and A-6, which have already been rejected.

34. The net result of the aforesaid discussion is that all the four appeals

must fail and are, thus, accordingly dismissed.

35. The accused are  directed  to  surrender  forthwith  before  the  trial

court,  within  a  period  of  fifteen  days  from  today,  to  serve  out  the

remaining sentence.

36. Needless to say, if there is any remission earned, after serving out

the appropriate sentence, their cases would be considered for release in

terms of the norms of the State Government.

...……………………………J. [Sanjay Kishan Kaul]

...……………………………J. [K.M. Joseph]

New Delhi. August 06, 2019.

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