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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2279 OF 2009

Ramanlal  and Anr. …Appellants

Versus

State of Haryana  …Respondent

WITH  

CRIMINAL APPEAL NO.1351 OF 2010

Bhagat Singh and Anr. ...Appellants

Versus

State of Haryana ...Respondent  

J U D G M E N T

T.S. THAKUR, J.

1. These  two  appeals  by  special  leave  assail  a  common

judgment and order dated 7th May, 2009 passed by a Division

Bench of the High Court of Punjab and Haryana at Chandigarh

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whereby  Criminal  Appeal  No.631  of  2000  filed  by  the

appellants challenging their conviction for offences punishable

under Sections 323, 325, 302 read with Section 149 of the IPC

has  been  dismissed  and  the  sentence  of  life  imprisonment

awarded to each one of them by the trial Court affirmed.

2. The prosecution case in a nutshell is that on 2nd July, 1998

at about 10 O’ clock in the morning Ved Pal and his brother

Gopal,  now  deceased,  were  watering  their  fields  in  village

Doongriwala,  district  Faridabad  in  the  State  of  Haryana.   At

about 12.00 noon Jai Pal, son of Nihar Singh entered their field

in  which  the  two  brothers  had  grown  their  paddy  crop.

Deceased-Gopal appears to have objected to Jai Pal’s trespass

into the paddy crop to which objection Jai Pal gave an abusive

reply  insisting  that  he  would  pass  through  the  paddy  crop

regardless of Gopal’s objection. While this altercation was going

on  between  deceased-Gopal  and  Jai  Pal,  10  to  12  persons

appeared on the spot armed with lathis, pharsas and ballams.

They included Har Chand, Digamber and Bhagat Singh sons of

Jairam; Rajbir, Lal and Bhola sons of Har Chand; Jagdish son of

Girraj; Rattan Lal son of Jagdish; Naresh and Rajkumar sons of

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Ramesh all Jats by caste and residents of village Doongriwala.

They are alleged to have given a lalkara to eliminate Ved Pal

and deceased Gopal and assaulted both of them causing several

injuries including an injury on the head of the deceased-Gopal

that felled him to the ground. The injured were removed to the

hospital  at  Hodal  for  treatment  where  Ved  Pal  made  a

statement which was made before ASI Narain Singh that led to

the registration of a case against the persons aforementioned

for offences punishable under Sections 148, 149, 323 and 307

of the IPC. With Gopal succumbing to the injuries in the Escorts

Hospital at Faridabad, the offence under Section 307 of the IPC

was converted into one of murder punishable under Section 302

of  the  IPC.  Investigation  by  the  police  led  to  the  arrest  of

accused Har Chand, Digambar and Jagdish on 3rd July, 1998.

Several recoveries from the accused persons are said to have

been made in the course of investigation which culminated in

filing  of  a  charge-sheet  against  ten  persons  in  all  excluding

Bhagat Singh son of Jai Ram who even though named in the

FIR,  was  found  innocent  while  Jai  Pal  being  a  juvenile  was

referred to the Juvenile Court at Faridabad. The net result was

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that nine out of those named in the FIR only were eventually

committed to face the trial before the Additional Sessions Judge

at Faridabad for offences under Sections 148, 323, 325 and 302

read with Section 149 of the IPC.  At the trial, Bhagat Singh son

of Jai Ram was also added as an accused under Section 319 of

the Cr.P.C, taking the number of those accused to face the trial

to ten in all.   

3. In support of its case, the prosecution examined as many

as ten witnesses. These included the first informant Ved Pal

examined as PW-1; Prakash examined as PW-2; Kishan Singh

examined as PW-3; Satbir Singh examined as PW-4 and Drs.

HK Mishra, VR Gupta and SP Jayant examined as PWs 5, 6 and

10  respectively.  The  remaining  witnesses  happened  to  be

police officials including the investigating officer. The accused

did  not  lead  any  evidence  in  defence.  In  their  statements

recorded under Section 313 of the Cr.P.C., they alleged false

implication.  It was further alleged that Jai Prakash and Har

Chand  alone  were  present  on  the  spot  at  the  time  of  the

incident and that the remaining nine accused persons had been

falsely implicated.  Their further case was that on the fateful

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day Jai Pal was watering his fields when deceased Gopal tried

to commit sodomy upon him. Har Chand noticed this attempt

of the deceased and objected to it, whereupon deceased Gopal

inflicted  a  lathi  blow  upon  the  person  of  Har  Chand.   Har

Chand, in exercise of the right of private defence and with a

view  to  rescuing  Jai  Pal,  inflicted  a  lathi  blow  on  deceased

Gopal, while Jai Pal caused injuries to Ved Pal in the incident.  

4. The Trial  Court  appraised the evidence  adduced by the

prosecution and came to the conclusion that the depositions of

PW1-Ved Pal and PW2-Prakash were completely reliable. The

Trial  Court  rejected  the  contention  urged  on  behalf  of  the

accused persons that the delay in the lodging of the FIR was

not  satisfactorily  explained or  that  the prosecution  ought  to

suffer on account of its failure to explain the injuries sustained

by  the  accused  persons.  The  Trial  Court  also  rejected  the

contention that there was no motive for the commission of the

offence  or  that  there  was  any  contradiction  between  the

medical and ocular evidence led in the case.  The Trial Court on

that reasoning sentenced all the ten accused persons arraigned

before it to undergo imprisonment for life under Section 302 of

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the IPC and a fine of Rs.5,000/- each.  In default of payment

of  fine,  they  were  directed  to  undergo  further  rigorous

imprisonment for a period of one year each.  They were also

sentenced to under rigorous imprisonment for a period of one

year and a fine of Rs.1,000/- with a default sentence of three

months each under Section 325 of the IPC. For the offences

punishable under Sections 323 and 148 of the IPC the accused

were sentenced to pay a fine of Rs.1,000/- each. No default

sentence in regard to those offences was, however, awarded.  

5. Aggrieved  by  the  conviction  and  sentence  awarded  to

them,  the  appellants  filed  Criminal  Appeal  No.631  of  2000

before the High Court of Punjab and Haryana at Chandigarh,

which was disposed of along with Criminal Revision No.345 of

2001  filed  by  Ved  Pal-the  first  informant  by  a  common

judgment  and  order  impugned  in  these  appeals.  The  High

Court upon a reappraisal of the evidence adduced at the trial

came  to  the  conclusion  that  the  appeal  filed  by  Digamber,

Rajbir, Lala,  Bhola,  Jagdish  and  Raj  Kapoor  deserved  to  be

allowed,  while the same deserved dismissal  qua Har Chand,

Raman Lal,  Naresh and Bhagat  Singh.  That  is  precisely  the

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backdrop in which Har Chand, Raman Lal, Naresh and Bhagat

Singh are before us in these appeals by special leave assailing

their conviction and the sentence awarded to them.  

6. On behalf of the appellants it was argued that the courts

below had fallen in error in convicting the appellants by placing

an implicit reliance upon the depositions of PW1-Ved Pal and

PW2-Prakash and in the process, ignoring the defence version

about the genesis of the incident.  It was contended that the

incident  had  occurred  on  account  of  an  attempted  act  of

sodomy  by  the  deceased  upon  Jaipal  to  which  the

appellant-Har Chand had objected resulting in lathi blows being

inflicted by the two sides rivals to each other. The argument

needs notice only to be rejected.  We say so because there is

nothing in the evidence to probablise the defence version that

the  incident  in  question  had  taken  place  on  account  of  an

attempt on the part of Gopal to sodomise Jaipal. There are no

tell tale signs of any such attempt having been made.  Not only

that,  the defence  has not  taken care to examine Jaipal  the

alleged victim of the attempted act as a witness to prove that

any such attempt was at all made by the deceased-Gopal. We

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have, therefore, no hesitation in rejecting the argument that

the defence version was a probable version which could not be

given credence.  The courts below have, in our opinion, rightly

rejected the defence version for  which there was no factual

foundation whatsoever in the evidence.  

7. It was next argued by learned counsel for the appellants

that  with the acquittal  of  6 out of  10 accused persons,  the

charge that  the appellants  constituted an unlawful  assembly

ought  to  fail  and as  an  inevitable  consequence  thereof,  the

conviction of the appellants for murder with the help of Section

149 of the IPC rendered unsustainable. It was contended that

acquittal of other accused persons alleged to be members of

the unlawful assembly, implied that the said accused had been

falsely implicated in the case or that they, even if physically

present  on  the  spot  as  alleged,  did  not  share  the  common

object of the convicted accused.

8. Section  141  of  the  IPC  defines  unlawful  assembly as

under:

“141. Unlawful assembly.—An assembly of five or  more  persons  is  designated  an  “unlawful assembly”,  if  the common object of  the persons composing that assembly is—

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(First) — To overawe by criminal force, or show of criminal  force,  1[the  Central  or  any  State Government  or  Parliament  or  the  Legislature  of any State], or any public servant in the exercise of the lawful power of such public servant; or

(Second) — To resist the execution of any law, or of any legal process; or

(Third) —  To  commit  any  mischief  or  criminal trespass, or other offence; or

(Fourth) — By means of criminal force, or show of criminal  force,  to  any  person,  to  take  or  obtain possession  of  any  property,  or  to  deprive  any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is  in  possession or  enjoyment,  or  to  enforce any right or supposed right; or

(Fifth) — By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation.—An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.”

9. In terms of Section 149 of the IPC every member of an

unlawful assembly is guilty of the offence committed by any

other member of the assembly in prosecution of the common

object.  Section 149 of the IPC reads:

“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

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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.”

10. The question is whether acquittal of some of the accused

persons reducing the number of those convicted to less than 5

has the effect of taking the case out of the purview of Section

149 (supra).  A Constitution Bench of this Court has in Mohan

Singh   v.   State of Punjab1 examined that question and

authoritatively  answered the same. The prosecution story in

that case also was that on the date of the incident 5 accused

persons  composed  an  unlawful  assembly  and  that  in

prosecution of the common object of the said assembly, they

committed  rioting  while  armed  with  deadly  weapons.  The

prosecution alleged that in pursuance of the common object of

the assembly Gurdip Singh was murdered and injuries caused

to Harnam Singh. The prosecution alleged that although the

fatal injury was inflicted by only one of the accused persons on

Gurudip Singh’s head since the same was in prosecution of the

common  object  of  unlawful  assembly,  all  those  who  were

1 AIR 1963 SC 174

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members of the assembly were guilty under Section 302 read

with Section 149 of the IPC. On behalf of the defence it was

argued  that  the  constructive  criminal  liability  under  Section

149 did not arise once two of the accused who were alleged to

be members of that assembly were acquitted thereby reducing

the number comprising the assembly  to three persons only.

This  Court  while  dealing  with  that  contention  conceived  of

three possible  situations and the legal  position applicable  to

each one of such situations. This Court observed:

“8. The  true  legal  position  in  regard  to  the essential ingredients of an offence specified by s. 149 are not in doubt. Section 149 prescribes for vicarious or constructive criminal liability for all members  of  an  unlawful assembly where  an offence is committed by any member of such 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. It would thus  be  noticed  that  one  of  the  essential ingredients  of  section  149  is  that  the  offence must have been committed by any member of an unlawful assembly, and S.141 makes it clear that  it  is  only  where  five  or  more  persons constituted  an  assembly  that  an    unlawful assembly   is born, provided, of course; the other requirements  of  the  said  section  as  to  the common object of  the persons composing that assembly are satisfied.  In other words, it is an essential condition of an unlawful assembly that its  membership  must  be  five  or  more.  The argument, therefore, is that as soon as the two  Piara  Singhs  were  acquitted,  the

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membership of the assembly was reduced from five  to  three  and  that  made  S.  141 inapplicable  which  inevitably  leads  to  the result  that  S.  149  cannot  be  invoked against the appellants.  In our opinion, on the facts of this case, this argument has to be upheld. We have already observed that the point raised by the appellants has to be dealt with on the assumption that  only five persons were named in the charge as persons composing the  unlawful assembly and evidence led in the course of the trial  is confined only to the said five persons. If that be so,  as soon as two of the five named persons are acquitted, the assembly  must  be  deemed  to  have  been composed  of  only  three  persons and that clearly cannot be regarded as an  unlawful assembly.”  

9. In  dealing  with  the  question  as  to  the applicability  of  S.149  in  such  cases  it  is necessary to bear in mind the several categories of cases which come before the Criminal Courts for  their  decision.  If  five  or  more persons  are named in the charge as composing an unlawful assembly  and  evidence  adduced  by  the prosecution  proves  that  charge  against  all  of them, that is a very clear case where S.149 can be invoked. It is,  however,  not necessary that five or more persons must be convicted before a charge under S.149 can be successfully brought home to any members of the unlawful assembly. It  may be that less than five persons may be charged and convicted under  S.302/149 if  the charge  is  that  the  persons  before  the  Court, along with others named constituted an unlawful assembly; the other persons so named may not be available for trial along with their companions for  the  reason,  for  instance,  that  they  have absconded.  In  such  a  case,  the  fact  that  less than five persons are before the Court does not make  section  149  inapplicable  for  the  simple reason that  both the charge and the evidence seek to prove that the persons before the court

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and others number more than five in all and as Such,  they  together  constitute  an  unlawful assembly. Therefore,  in order to bring home a charge under S.149 it is not necessary that five or  more  persons  must  necessarily  be  brought before  the  court  and  convicted.  Similarly,  less than five persons may be charged under s. 149 if the prosecution case is that the persons before the Court and others numbering in all more than five  composed  an  unlawful  assembly,  these others being persons not identified and so not named. In such a case, if evidence shows that the  persons  before  the  Court  along  with unidentified  and  un-named  assailants  or members composed an unlawful assembly, those before the Court, can be convicted under section 149  though  the  unnamed.  and  unidentified persons are not traced and charged. Cases may also arise where in the charge, the prosecution names  five  or  more  persons  and  alleges  that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving, before the court less than five persons  to  be  tried,  then  s.  149  cannot  be invoked. Even in such cases, it is possible that though the charge names five or more persons is  composing  an  unlawful  assembly,  evidence may  nevertheless  show  that  the  unlawful assembly  consisted  of  some  other  persons  as well who were not identified and so not named. In such cases, either the trial court or even the High Court in appeal may be able to come to the conclusion  that  the  acquittal  of  some  of the persons named in the charge and tried will not necessarily displace the charge under section 149 because along with the two or three persons convicted  were  others  who  composed  the unlawful  assembly  but  who  have  not  been identified and so have not been named. In such cases  the  acquittal  of  one  or  more  persons named in the charge does not affect the validity of the charge under section 149 because-on the

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evidence the court of facts is able to reach the conclusion  that  the  persons  composing  the unlawful  assembly  nevertheless  were  five  or more  than  five.  It  is  true  that  in  the  last category of cases, the court will have to be very careful in reaching the said conclusion. But there is  no legal  bar  which prevents  the court  from reaching such a conclusion. The failure to refer in the charge to other members of the unlawful assembly  un-named  and  unidentified  may conceivably  raise  the  point  as  to  whether prejudice would be caused to the persons before the Court by reason of the fact that the charge did  not  indicate  that  un-named  persons  also were  members  of  the  unlawful  assembly.  But apart from the question of such prejudice which may have to be carefully considered, there is no legal  bar  preventing  the  court  of  facts  from holding  that  though  the  charge  specified  only five or more persons, the unlawful assembly in fact  consisted  of  other  persons  who  were  not named and  identified.  That  appears  to  be  the true  legal  position  in  respect  of  the  several categories  of  cases which may fall  to  be tried when a charge under section 149 is framed.”

                                       (emphasis supplied)

11. To  the  same  effect  is  the  decision  of  this  Court  in

Nagamalleswara  Rao (K)  and Ors.  v.  State  of  Andhra

Pradesh2 where this Court observed:

“However, the learned Judges over-looked that since the accused who are convicted were only four  in  number  and  the  prosecution  has  not proved the involvement of other persons and the courts  below  have  acquitted  all  the  other accused of all the offences, section 149 cannot

2 (1991)2 SCC532

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be  invoked  for  convicting  the  four  appellants herein. The learned Judges were not correct in stating that A1, A2, A5 and A11 "can be held to be the members of the unlawful assembly along with  some others  unidentified  persons’  on  the facts and circumstances of this case. The charge was not that accused 1, 2, 5 and 11 "and others’ or "and other unidentified persons" formed into an unlawful assembly but it is that "you accused 1 to 15" who formed into an unlawful assembly. It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime. When the 11 other accused  were  acquitted  it  means  that  their involvement in the offence had not been proved. It would not also be permissible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also  were  involved  in  the  commission  of  the offence conjointly with the charged accused in furtherance of a common object.”   

12. Applying the above principles to the case at hand, we are

of the view that the provisions of Section 149 of the IPC are no

longer available to the prosecution for convicting the appellants

whose number is reduced to 4 consequent upon the acquittal

of  the remaining accused persons.  The facts  of  the case at

hand are not covered by situations one and two referred to in

Mohan  Singh’s  case  (supra). It  is  a  case  which,  in  our

opinion, falls more appropriately in situation three where the

prosecution  had  named  all  those  constituting  the  unlawful

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assembly,  but,  only  four  of  those  named  were  eventually

convicted,  thereby  reducing  the  number  to  less  than  five.

There is no evidence to suggest that any one, apart from the

persons  named  in  the  charge-sheet  were  members  of  the

unlawful assembly, but, were either not available or remained

unidentified.  Such  being  the  position,  the  conviction  of  the

appellants with the help of Section 149 of the IPC does not

appear to be legally sustainable.  

13. The third and the only other submission made by learned

counsel for the appellants related to the nature of the offence

committed by Har Chand, the author of the fatal injury.  It was

urged that the incident in question had taken place without any

pre-meditation in a sudden fight because of a sudden quarrel

following Jai Pal’s insistence to enter the crop growing field of

the complainant.  Injuries were caused by those involved in the

fight  to  each other. Appellant-Har  Chand had not taken any

undue  advantage  nor  had  he  acted  in  a  cruel  or  unusual

manner.  The case, therefore, fell within Exception 4 to Section

300 of the IPC.  The fact that Har Chand had inflicted a single

injury on the head of the deceased-Gopal showed that there

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was no intention to kill deceased-Gopal, other injuries inflicted

by  the  remaining  accused  being  only  simple  in  nature.  The

offence, according to the learned counsel, could not, therefore,

be  graver  than  culpable  homicide  not  amounting  to  murder

punishable under Section 304 Part-II of the IPC.  

14. The locus classicus on the interpretation of Sections 299

and 300 of the IPC is the often quoted decision of this Court in

Virsa  Singh  v.  State  of  Punjab3 where  Vivian  Bose,  J.

speaking for the Court, explained the ingredients that must be

satisfied for a culpable homicide to amount to murder.  Dealing

with clause  ‘Thirdly’ under Section 300 of the IPC, the Court

explained the essentials of that clause in the following words:

“12.  To  put  it  shortly,  the  prosecution  must prove the following facts before it  can bring a case under Section 300 ‘thirdly’;  

First, it must establish, quite objectively, that a bodily injury is present.

Secondly,  the  nature  of  the  injury  must  be proved; These are purely objective investigations.

Thirdly,  it  must  be  proved  that  there  was  an intention to  inflict  that  particular  bodily  injury, that  is  to  say,  that  it  was  not  accidental  or unintentional, or that some other kind of injury was intended.

3 AIR 1958 SC 465

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Once  these  three  elements  are  proved  to  be present, the enquiry proceeds further and,  

Fourthly, it must be proved that the injury of the type  just  described  made  up  of  the  three elements  set  out  above  is  sufficient  to  cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.”

15. The Court  then goes  on to explain  the third ingredient

referred  to  the  above  passage  and  makes  the  following

observations  which  bring  home  the  essence  of  the  third

ingredient in simple words:

“The  question  is  not  whether  the  prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not,  or if  the totality  of  the circumstances justify  such an inference,  then,  of  course,  the intent  that  the section requires  is  not  proved. But if there is nothing beyond the injury and the fact  that  the  appellant  inflicted  it,  the  only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The  question,  so  far  as  the  intention  is concerned, is not whether he intended to kill, or to  inflict  an  injury  of  a  particular  degree  of seriousness,  but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be  presumed  unless  the  evidence  or  the circumstances warrant an opposite conclusion.”

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16. Applying  the  above  to  the  case  at  hand,  we  have  no

difficulty  in  holding  that  keeping  in  view  the  nature  of  the

injury,  the  vital  part  of  the  body  on  which  the  same  was

inflicted and the weapon used by the accused appellant-Har

Chand,  and  the  medical  evidence,  that  the  said  injury  was

sufficient  in  the  ordinary  course  to  cause  death,  culpable

homicide would, in the case at hand, tantamount to murder

but  for  the  application  of  Exception  4  to  Section  300.  The

question, however, is whether Exception 4 really applies and, if

so,  whether  the  injury  was  inflicted  with  the  intention  of

causing death or of causing such bodily injury as is likely to

cause death.  The circumstances of the case to which we have

referred in the earlier part of this judgment, however, leave no

manner  of  doubt  that  the  incident  was  without  any

pre-meditation and a sudden fight upon a sudden quarrel.  The

injuries upon the deceased were inflicted in the heat of passion

and  without  the  appellant  taking  any  undue  advantage  or

acting in a cruel or unusual manner.  The fact situation of the

case, therefore, attracts Exception 4 especially when in terms

of explanation to Exception 4, it  is immaterial  in such cases

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which party offers the provocation or commits the first assault.

That  being  so,  the  offence  committed  by the  author  of  the

injury is not murder but culpable homicide not amounting to

murder punishable under Section 304 of the IPC.

17. Coming then to the question whether the act committed

by Har Chand-appellant was with intention to cause death or of

causing such bodily injury as was likely to cause death, we are

of  the  opinion  that  even  when the  act  may not  have been

committed with the intention of causing death, the same was

intended to cause such bodily  injury  as  was likely  to  cause

death, within the meaning of Section 304 Part I.

18. In the result, we allow these appeals in part and to the

following extent:

1. The conviction of the appellants under Section 302

read  with  Section  149  IPC  and  the  sentence  of

imprisonment for life awarded to them is set aside.

2. Appellant  Har  Chand  is,  instead,  convicted  under

Section  304  Part-I  and  sentenced  to  undergo

rigorous  imprisonment  for  a  period  of  eight  years

and a fine of Rs.5000/-.  In default payment of fine

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he shall undergo further imprisonment for a period of

six months.  His conviction and sentence for offences

punishable  under  Section  325  shall  remain

unaffected and so also the fine and default sentence

awarded to him.

3. The conviction of Appellants-Raman Lal, Naresh and

Bhagat Singh for offences punishable under Sections

325 and 323 of the IPC and the sentence awarded to

them shall  stand  affirmed.  They  shall  be  set  free

unless required in connection of any other case, as

they  have  already  undergone  the  imprisonment

awarded to them.

………………….....…………….…..…J.       (T.S. THAKUR)

…………………………….....…….…..…J.        (ROHINTON FALI NARIMAN)

New Delhi May 15, 2015

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