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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1102 OF 2006

Om Prakash … Appellant

Versus

State of Haryana … Respondent

WITH

CRIMINAL APPEAL NO. 1103 OF 2006

Radhey Shyam and others … Appellants

Versus

State of Haryana … Respondent

WITH

CRIMINAL APPEAL NO. 1104 OF 2006

Mange Ram and others … Appellants

Versus

State of Haryana … Respondent

J U D G M E N T

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Dipak Misra, J.

The  present  appeals,  by  special  leave,  have  been  

preferred  against  the  common judgment  and  order  dated  

18.03.2005 passed by the High Court of Punjab and Haryana  

at Chandigarh in Criminal Appeal Nos. 78-DB & 146-DB of  

1997 with Criminal Revision No. 219 of 1997 whereby the  

court  has  declined  to  interfere  with  the  judgment  of  

conviction and order of sentence passed by the learned Addl.  

Sessions Judge, Hisar in Sessions Case No. 40 of 1993 for the  

offences under Sections 148 and 302 read with Section 149  

of IPC and affirmed the sentences of imprisonment for life  

and payment of fine of Rs. 1000/- by each with the default  

clause under Section 302 read with Section 149 of IPC and  

rigorous imprisonment of two years under Section 148 IPC  

with  the  stipulation  that  both  the  sentences  shall  be  

concurrent.  

2. Shorn of unnecessary details, the prosecution version is  

that  on  28.06.1993  the  informant,  Satbir  Singh,  PW  3,  

along with his two brothers, namely, Mahinder Singh, PW

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7 and Prabhu Dayal (deceased) had gone to Hisar to enroll  

themselves  in  the  Border  Security  Force  for  which  

interviews were being held at Hisar.  About 3.00 p.m. all of  

them  returned  from Hisar  in  a  Machanised  Cart  (Pater  

Rehra)  and  alighted  at  the  bus  stand  of  their  village,  

Sadalpur.  At that time, the accused-appellants, namely,  

Man Singh, Radhey Sham, Bhal Singh, Ram Kanwar, Raja  

Ram, Mange Ram, Kirpa Ram and Prem Singh emerged  

from the  rear  of  Kotha  (chamber),  located  nearby,  Het  

Ram armed with a gun and all others armed with lathis.  

All of them raised a lalkara with the intention to assault  

the informant and his two brothers, Mahinder Singh and  

Prabhu Dayal, as the later had earlier caused injuries to  

them.  Forming an unlawful assembly, with the common  

object  they inflicted injuries  on Prabhu Dayal  with their  

lathis and butt of the gun.  Prabhu Dayal fell down on the  

road.   Being  scared,  the  informant  and  his  brother  

Mahinder Singh ran away and stood near the wall of the  

water  reservoir.   Thereafter,  Om  Prakash  came  on  a  

tractor  bearing  registration  No.  HR-20A-8022,  ran  over

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Prabhu Dayal and fled away from the scene of occurrence  

along with their weapons in the tractor.   The informant  

and his brother Mahinder Singh went to see the condition  

of Prabhu Dayal who had sustained injuries on his arms,  

legs,  waist  and  head  and  bleeding  profusely.   He  was  

taken  to  the  Government  Hospital,  Adampur  in  a  

Machanised Cart and first aid was given to him.  During  

his examination by the medical officer he succumbed to  

his injuries at 5.50 p.m. and the hospital  staff  informed  

the  nearby  police  station  about  his  death.  The  

Investigating  Officer,  Ronaski  Ram,  PW-8,  recorded  the  

statement  of  Satbir  Singh,  PW-3,  and  on  that  base  

registered an FIR No. 100/93 at 7.45 p.m. and the criminal  

law was set in motion.   

3. In  course  of  investigation,  the  investigating  agency  

prepared  the  inquest  report,  got  the  post  mortem  

conducted  and  collected  the  blood  stained  earth  vide  

seizure memo Ext.  PM.  On 2.07.1993 the Investigating  

Officer arrested Man Singh, Radhey Shyam, Ram Kumar,  

Raja Ram and Om Prakash. All of them led to discovery of

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the  weapons  used  in  the  alleged  commission  of  crime.  

After  completing  the  investigation  charge-sheet  was  

placed against the aforementioned accused persons.

4. The  accused  persons  pleaded  innocence  and  false  

implication due to animosity.  Be it noted, in course of trial  

after some evidence was recorded, the learned trial Judge,  

on  the  basis  of  an  application  preferred  by  the  public  

prosecutor under Section 319 of the Code summoned the  

other accused persons, namely, Bhal Singh, Mange Ram,  

Kirpa Ram, Het Ram and Prem Singh to face trial.

5. In order to prove its case, the prosecution, examined eight  

witnesses, namely, Dr. Pratap Singh, PW-1, Om Prakash,  

Patwari,  PW-2, Satbir Singh,  PW-3,  Dr.  P.L.  Jindal,  PW-4,  

Basant  Kumar,  PW-5,  Ram Kumar,  Asst.  Sub  Inspector,  

PW-6,  Mahinder  Singh,  PW-7  and  Ronaski  Ram,  

Investigating officer, PW-8.  No evidence in defence was  

adduced  by  the  accused.  However,  a  copy  of  the  

judgment relating to land dispute between the parties and  

copy of  FIR  No.  6  dated 9.1.1993 and copy of  Election

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Petition, Ext. DC titled as Sohan Lal v. Nardwari and others  

were  tendered  in  evidence  to  substantiate  the  plea  of  

enmity.   The  learned  trial  Judge  on  appreciation  of  

evidence  brought  on  record  came  to  hold  that  the  

prosecution had brought home the charges beyond any  

reasonable  doubt  and,  accordingly,  convicted  all  the  

accused persons and sentenced each of them as has been  

stated hereinbefore.   

6. Being  dissatisfied  with  the  judgment  of  conviction  and  

order of sentence the accused persons preferred appeal  

before the High Court raising many a stand and stance.  

The High Court repelled all the contentions by holding that  

there was no delay in lodging of the FIR; that there was  

enmity between the parties inasmuch as litigations were  

pending; that the two eye witnesses Satbir Singh, PW-3,  

and Mahinder Singh, PW-7, are natural witnesses and their  

testimony could not be discarded solely because of their  

relationship  with  the  deceased;  that  their  evidence  is  

unimpeachable and the contradictions being minor do not  

create any dent in their version; that the medical evidence

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assuredly  corroborates  the  ocular  testimony of  the  eye  

witnesses;  that  the  defective  and  tilted  investigation  

would not corrode the evidence brought on record which  

prove  the  case  of  the  prosecution  to  the  hilt  and,  

eventually, gave the stamp of approval to the verdict of  

the trial court.  

7.  Mr. Ram Niwas Kush, learned counsel appearing for the  

appellants, has urged that there is delay in lodging of the  

FIR  inasmuch  though  the  occurrence  took  place  about  

3.00 p.m., yet the FIR was not lodged till 7.45 p.m. and in  

the backdrop of enmity there was ample time to think,  

add  and  embellish  the  versions,  apart  from  roping  in  

number of persons, which creates a grave suspicion in the  

whole case put forth by the prosecution.  Learned counsel  

would contend that the evidence brought on record do not  

remotely  prove  that  a  tractor  has  made  to  run  over  

certain parts of the body of the deceased as alleged by  

the prosecution and, therefore, both the courts have fallen  

into error by recording the conviction.  The last plank of  

submission is that all the accused persons could not have

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been convicted under Section 302 IPC in aid of Section  

149 IPC.

8. Mr.  Ramesh  Kumar,  learned  counsel  for  the  State,  

supported the conviction and the sentences recorded by  

the trial court which has been concurred with by the High  

Court,  on  the  ground that  the  FIR  was  lodged in  quite  

promptitude and the appreciation of evidence by both the  

courts is absolutely flawless.

9. First, we shall deal with the contention pertaining to delay  

in  lodging  of  the  FIR.   It  is  not  in  dispute  that  the  

occurrence took place about 3.00 p.m. and thereafter, the  

deceased  was  carried  by  a  merchandised  cart  to  the  

primary health centre where he was administered some  

treatment  but  he  succumbed to  his  injuries.   On being  

informed by the hospital  staff,  the police arrived at the  

hospital  and  recorded  the  statement  of  the  informant,  

Satbir Singh, PW-3, and thereafter an FIR was registered  

at  7.45  p.m.   From the  sequence  of  the  events  which  

include consumption of time in carrying the injured to the

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hospital,  treatment  availed  of  by  Prabhu  Dayal,  

information  given  by  the  concerned  authority  of  the  

primary health centre and arrival of police and also taking  

note of the distance, i.e., 24 kilometers from the place of  

occurrence,  we do not  think  that  there  is  any delay  in  

lodging of the FIR.   That apart,  it  is  settled in law that  

mere delay in lodging the first information report cannot  

by  itself  be  regarded  as  fatal  to  the  prosecution  case.  

True it is, the court has a duty to take notice of the delay  

and  examine  the  same  in  the  backdrop  of  the  factual  

score, whether there has been any acceptable explanation  

offered  by  the  prosecution  and  whether  the  same  

deserves acceptation being satisfactory, but when delay is  

satisfactorily  explained,  no  adverse  inference  is  to  be  

drawn.  It is to be seen whether there has been possibility  

of embellishment in the prosecution version on account of  

such  delay.   These  principles  have  been  stated  in  

Meharaj  Singh  v.  State  of  U.P.1,  State  of  H.P.  v.  

Gian  Chand2,  Ramdas  and  others  v.  State  of  

1  (1994) 5 SCC 188 2  (2001) 6 SCC 71

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Maharashtra3,  Kilakkatha  Parambath  Sasi  and  

others  v.  State  of  Kerala4 and  Kanhaiya  Lal  and  

others v. State of Rajasthan5.

10. In the present case, as we find, there is, in fact,  

no  delay.   Learned  counsel  for  the  appellants  would  

emphasise on the concept that effort has to be made to  

lodge  the  report  at  the  earliest,  but  the  “earliest”,  

according  to  us,  cannot  be  put  in  the  compartment  of  

absolute precision.  Apart from what we have stated, the  

impact  of  the  crime  on  the  relations  who  are  eye  

witnesses, the shock and panic which would rule supreme  

at the relevant time and other ancillary aspects are also to  

be kept in mind.  That apart, as we notice, the FIR is not  

the result of any embellishment which has the roots in any  

kind of afterthought.  Considering the totality of facts and  

circumstances the submission of learned counsel for the  

appellants pertaining to delay in lodging of the FIR being  

totally unacceptable is hereby rejected.

3  (2007) 2 SCC 170 4  (2011) 4 SCC 552 5  (2013) 5 SCC 655

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11. The next limb of submission is that the evidence  

brought on record do not establish beyond doubt that the  

accused Om Prakash had run a tractor on the deceased.  

In this context, Satbir Singh, PW-3, and Mahinder Singh,  

PW-7,  the  elder  brothers  of  the  deceased,  have  

categorically deposed that the accused persons had given  

blows with lathis and Om Prakash had run the tractor over  

the deceased.  Dr.  Jindal,  PW-4, who had examined the  

deceased  prior  to  death,  had  found  11  injuries  on  his  

body.  He had not expressed any opinion on injury Nos. 1,  

2,  4,  5 and 8 and observed that final opinion would be  

expressed after x-ray had been done.  In examination-in-

chief, referring to his opinion, Ex. PK/1, he has stated that  

injuries  on  both  legs  and  arms  on  the  person  of  the  

deceased could be caused by tractor wheels and the other  

injuries  could  be  caused  by  lathi  blows.   In  the  cross-

examination barring that he had not found the tyre mark  

on the pyjama of the injured nothing substantial has been  

elicited.  

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12. Dr.  Partap  Singh,  PW-1,  who  conducted  the  

autopsy, had found the following injuries: -

“1. A stitched wound 1 ¼ long on the right side  of  parental  region  one  inch  above  the  hair  line.   On  exploration,  there  was  extra  vacation of blood in layers scalp.  The wound  was superficial.

2. A  scabbed  abrasion  1”  x  1”  on  the  right  cheek.  It was red in colour.

3. Multiple  contusions  of  various  sizes  and  shape,  covering  the  back  of  chest  and  abdomen.  Reddish in colour.

4. A  stitched  wound  ½”  long  on  the  back  of  upper arm on right thigh.  Wound was bone  deep.

5. Multiple contusions covering the upper half of  right fore-arm, right elbow and lower half of  right  upper,  reddish  in  colour.   On  exploration,  the  underlying  bones  were  fractured (right humorous and upper part of  right radius and ulna.)

6. A lacerated wound ½ inch long and ¼” wide,  and bone deep present on the upper part of  left fore-arm.

7. A  stitched  wound  1”  long  on  the  back  of  middle of left upper arm.  Clotted blood was  present.

8. Multiple contusions covering the lower part of  left upper arm, elbow and upper part of left  fore-arm, reddish in colour.   The underlying  bones  (upper  part  of  left  radius,  ulna  and  lower part of left humorous) were fractured.

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9. A  lacerated  and  stitched  wound  1”  long  present  on  the  left  of  leg  on  its  middle.  Clotted blood was present.   The underlying  bones were fractured.

10. A  lacerated  and  stitched  wound  1”  long  present  just  medial  to  injury  No.  9,  clotted  blood was present.

11. A  lacerated  and  stitched  wound  2”  long,  present  on  the  front  of  lower  one  third  of  right leg.

12. A stitched wound 1”  long,  2 inch lateral  to  injury No. 11 clotted blood was present.

13. A  stitched  wound  1  ½”  long  present  1  ½”  medial to injury No. 11.  Clotted blood was  present.”

13. In his examination-in-chief he has clearly stated  

that some of the injuries could have been caused by the  

relevant organ of the body/struck by a blunt countering by  

the  wheel  of  a  tractor.   The submission  of  the  learned  

counsel  for  the  appellants  is  that  there  is  no  clear  cut  

opinion  by  the  two  doctors  and,  in  fact,  there  is  an  

irreconcilable  contradiction  which  would  show  that  no  

injury was caused by running over of a tractor falsifying  

the case of the prosecution.  The said submission leaves  

us unimpressed inasmuch as we really do not find that

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there  is  any  contradiction  of  that  nature  which  would  

cause a concavity in the version of the prosecution.  As we  

find, the ocular testimony has been corroborated by the  

medical  evidence to  a  major  extent  in  that  regard and  

hence,  it  would  be  inappropriate  to  discard  the  

prosecution case.  That apart, the mental condition of the  

witnesses can be well appreciated and, in any case, they  

were  not  expected  to  state  with  exactitude  how  the  

injuries were caused by the tractor.  From the evidence of  

Dr. Jindal, PW-4, it is evincible that the injuries sustained  

by the deceased on his legs and arms could have been  

caused by the tractor wheels.  Similar is the opinion of Dr.  

Partap Singh, PW-1 and in the cross-examination he has  

explained why crush injuries  were not  there.   It  is  also  

worthy to mention that nothing has been elicited in the  

cross-examination of the eye witnesses on that score.  In  

fact, no suggestion has also been given.  It has come out  

in the evidence that all the accused persons had carried  

lathis and most of the injuries were caused due to lathi  

blows  and  some  by  the  tractor.   Thus,  the  ocular

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testimony gets corroboration from the medical evidence,  

and, therefore, the stance that the prosecution witnesses  

have made an effort to exaggerate their version ascribing  

a serious role to Om Prakash, in our considered opinion, is  

mercurial and deserves to be repelled and we do so.

14. It  is  next submitted by learned counsel  for  the  

appellants  that  the  so  called  eye  witnesses  have  not  

ascribed any specific overt act to each of the accused and  

there are only spacious allegations that they were armed  

with  lathis  and  inflicted  injuries  on  the  deceased.   In  

essence,  the  submission  is  that  in  the  absence  of  any  

specific  ascription  or  attribution  of  any  particular  role  

specifically to each of the accused Section 149 IPC would  

not  be  attracted.   In  this  regard,  we  may  refer  to  a  

passage  from  Baladin  and others v.  State of  Uttar  

Pradesh6 wherein a three-Judge Bench had opined thus: -

“It  is  well  settled  that  mere  presence  in  an  assembly does not make such a person a member  of an unlawful assembly unless it is shown that he  had done something or omitted to do something  which would make him a member of an unlawful  

6  AIR 1956 SC 181

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assembly, or unless the case falls  under Section  142, Indian penal Code.”

15. The aforesaid enunciation of law was considered  

by a four-Judge Bench in Masalti v. The State of Uttar  

Pradesh7 which distinguished the observations made in  

Baladin (supra) on the foundation that the said decision  

should be read in the context of the special facts of the  

case  and  may  not  be  treated  as  laying  down  an  

unqualified  proposition  of  law.   The  four-Judge  Bench,  

after enunciating the principle, stated as follows: -

“It  would  not  be  correct  to  say  that  before  a  person  is  held  to  be  a  member  of  an  unlawful  assembly,  it  must  be  shown  that  he  had  committed  some  illegal  overt  act  or  had  been  guilty of some illegal omission in pursuance of the  common object of the assembly.  In fact, S. 149  make it clear 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;  and  that  emphatically  brings  out  the  principle that the punishment prescribed by S. 149  is  in  a  sense  vicarious  and  does  not  always  proceed on the basis  that  the offence has been  

7  AIR 1965 SC 202

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actually  committed  by  every  member  of  the  unlawful assembly.”

16. Common object of an unlawful assembly can also  

be  gathered  from  the  nature  of  the  assembly,  the  

weapons used by its  members and the behavior  of  the  

assembly at or before the scene of occurrence.  It cannot  

be stated as a general proposition of law that unless an  

overt act is proven against the person who is alleged to be  

a member of the unlawful assembly, it cannot be held that  

he is a member of the assembly.  What is really required  

to be seen is that the member of the unlawful assembly  

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 IPC.  The core of the offence is  

the word “object” which means the purpose or design and  

in order to make it common, it should be shared by all.  

Needless to say, the burden is on the prosecution.  It is  

required to establish whether the accused persons were  

present and whether they shared the common object.  It is  

also  an  accepted  principle  that  number  and  nature  of

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injuries  is  a  relevant  fact  to  deduce  that  the  common  

object has developed at the time of incident.  (See Lalji v.  

State  of  U.P.8,  Bhargavan  and others  v.  State  of  

Kerala9,  Debashis Daw and others v. State of West  

Bengal10 and  Ramachandran and others  v.  State of  

Kerala11).

17. In  the  case  at  hand,  as  the  evidence  would  

clearly show, all the accused persons had come together  

armed  with  lathis.   Het  Ram,  who  died  during  the  

pendency of the appeal, was armed with a gun.  The eye  

witnesses who are natural witnesses, being brothers, have  

deposed in an unequivocal manner about the assault by  

all  the accused persons.   The common object is  clearly  

evident.   In  such  a  situation,  attribution  of  specific  

individual overt act has no role to play.  All the requisite  

tests to attract Section 149 IPC have been established by  

the prosecution.

8  (1989) 1 SCC 437 9  (2004) 12 SCC 414 10  (2010) 9 SCC 111 11  (2011) 9 SCC 257

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18. In  view  of  our  aforesaid  analysis,  as  all  the  

contentions  raised  by  the  learned  counsel  for  the  

appellants are sans substratum, the appeals, being devoid  

of merit, stand dismissed.

……………………………..J. [K.S. Radhakrishnan]

……………………………..J. [Dipak Misra]

New Delhi; April 16, 2014.