BHARAT SONI ETC. Vs STATE OF CHHATISGARH
Bench: P. SATHASIVAM,RANJAN GOGOI
Case number: Crl.A. No.-001262-001264 / 2010
Diary number: 7971 / 2010
Advocates: SHREE PAL SINGH Vs
ANIRUDDHA P. MAYEE
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELATE JURISDICTION
Criminal Appeal Nos. 1262-1264 of 2010
Bharat Soni etc. … Appellants
Versus
State of Chhatisgarh …Respondent
WITH
Criminal Appeal No. 1873 of 2011
J U D G M E N T
RANJAN GOGOI, J.
Four of the seven accused persons whose conviction
under Section 302 IPC and the sentence of life imprisonment
has been affirmed by the High Court of Chhattisgarh have filed
the instant appeals challenging Judgment and Order dated
30th November, 2009 of the High Court. We have heard the
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learned counsels for the appellants as well as the learned
counsel for the State.
2. The short case of the prosecution is that on 05.12.2000
at about 8.55 p.m., Santosh (PW-4) lodged a FIR in the
Ambikapur Police Station stating that a short while ago i.e. at
about 8.40 p.m. while he was standing in front of his house
alongwith deceased Vinod and Amit (PW-13), accused Gopi
Ghasia(A-6) and Ranu(A-5) had come there in a state of
intoxication. According to the first informant, an altercation
took place in the course of which he as well as Vinod had
slapped accused Gopi. Enraged, the accused persons went
away threatening to kill them. According to the first
informant, after about an hour, the four accused appellants.
i.e. Bharat, Dhruv, Sanjay and Rupesh accompanied by
accused Ranu, Gopi and Jitender came to the place armed
with different kinds of dangerous weapons. Specifically it was
mentioned that accused Gopi had come armed with a Nepali
Khukhri; accused Ranu had a knife with him whereas accused
Jitender was armed with a Nan Chaku. In so far as accused
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Bharat and Dhruv are concerned, it was claimed by the first
informant that while the former was armed with an iron rod,
accused Dhruv had carried a leather belt in his hand. In the
FIR it was further alleged that accused Ranu had assaulted
the first informant Sanjay (PW-4) with a knife but he had
escaped without any serious injuries. However, accused Gopi
and Ranu gave knife blows to the deceased Vinod on his chest
and stomach whereas accused Dhruv and Bharat had
assaulted Amit Kashyap (PW-13) with the belt and iron rod
that they had carried. According to the first informant,
accused Rupesh and Sanjay had instigated the other accused
to kill the deceased Vinod. Due to the assault committed on
Vinod, he had sustained injuries for which reason he had to
be taken to the hospital.
3. On receipt of the FIR a case under Sections 147,148, 149
and 307 of the IPC was registered. However as the injured
Vinod died at about 9.15 p.m. on the same night, the offence
under Section 302 was added in the FIR. The crime alleged
was duly investigated and on completion thereof all the seven
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accused were charge sheeted under Section 147, 148,
302/149 of IPC. Thereafter, the case was committed for trial
to the court of sessions and charges under Sections 147, 148,
302/149 IPC were framed against the accused persons. As the
accused claimed innocence a regular trial was held, at the
conclusion of which all the seven accused were found guilty of
the charge under Section 147, 148, 302/149 IPC. They were
accordingly sentenced. The separate appeals filed by the
seven accused before the High Court having been dismissed by
the impugned order dated 30.11.2009, the accused Bharat,
Dhruv, Sanjay and Rupesh have challenged the aforesaid
order of the High Court in the appeals filed by them before this
Court.
4. Before adverting to the core legal issue arising in the
present appeals, namely, the liability of the accused appellants
for the offence under Section 302 IPC on the basis of their
constructive liability, if any, under Section 149 IPC, it will be
necessary to notice, though very briefly, the salient part of the
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evidence adduced by the prosecution in support of the charges
levelled.
5. Of the fifteen witnesses examined by the prosecution, the
evidence of Sonu Kewat (PW-1), Suraj Dass (PW-2), (though
declared hostile), Ram Naresh (PW-3), Prakash Suryavanshi
(PW-5), Imtiaz Ali (PW-6) and Dr. S.K. Sinha (PW-7) would be
relevant. Equally, the evidence of (PW-4) and PW-13 who
had been examined as the eye-witnesses to the incident will
have to be noticed in some details.
6. From the deposition of PW-1, PW-2, PW-3 and PW-5, it
transpires that the aforesaid witnesses had come to the place
of occurrence on hearing the commotion that had taken place.
The said witnesses, without any major discrepancies or
contradictions, have narrated that on reaching the place of
occurrence they could see the deceased Vinod lying injured
and all the seven accused fleeing away therefrom. However,
two of the accused, namely, Dhruv and Bharat were
apprehended by the persons who had gathered at the place of
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occurrence, having come there on hearing the commotion that
had taken place. It may be noticed, at this stage, that in so far
as the identity of the accused is concerned, no issue has been
raised on behalf of the accused at any point of time.
7. Imtiyaz Ali (PW-6) is a witness to the recovery of the
alleged weapons of assault. All such recoveries were made at
the instance of the accused persons. Specifically, PW-6 has
deposed that on the basis of the statement of accused Jitender
a Nan Chaku (Ex.P-7) was recovered. At the instance of
accused Gopi and Ranu a Nepali Khukri and a Gupti (Ex.P-8
and Ex.P-11 respectively) was recovered. Similarly, on the
basis of the statement of accused Dhruv and Bharat a leather
belt and an iron rod (Ex.P-14 and Ex.P-15) were recovered.
8. Dr. S.K. Sinha (PW-7) M.O. District Hospital, Ambikapur
who had conducted the post mortem of the deceased Vinod
had proved the report of post-mortem (Ex.P-26). This witness
had deposed that corresponding to one of the external injuries
found i.e. an incised wound over the abdominal wall below the
umbilicus, internal injuries cutting the diaphragm and lower
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lobe of the right and left lung were found by him on the person
of the deceased.
9. PW-4 who was examined as an eye-witness had deposed
that all the seven accused persons, including the four
appellants, had come together to the place of occurrence at
about 8.40 pm on 05.12.2000. This witness had specifically
deposed that accused Bharat, who was armed with a Gupti,
had assaulted the deceased in the stomach with the said
weapon. However, in the FIR filed by him, he had stated that
accused Bharat was armed with an iron rod. Similarly in his
deposition, PW-4 had stated that accused Dhruv was also
holding a Gupti whereas in the FIR it had been mentioned that
the said accused was armed with a leather belt. In a similar
manner, though in the FIR accused Sanjay and Rupesh had
been alleged to be the persons who were instigating the others
to kill Vinod, in his deposition in court PW-4 had stated that
he had seen the accused Sanjay assaulting the deceased in
the thigh with a Gupti. In so far as accused Rupesh is
concerned PW-4 had not implicated the said accused in any
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manner at all while deposing in court. Similarly, PW-4 had
not implicated accused Jitender his evidence in court though
in the FIR filed he had specifically mentioned that accused
Jitender was armed with a Nan Chaku. In so far as the
accused Gopi and Ranu is concerned PW-4 has, however, been
consistent in the alleged involvement of the said two accused
both in the FIR as well as in the deposition tendered in Court.
10. On the other hand, Amit Kashyap (PW 13), had deposed
that the accused persons, including the present appellants,
were assaulting (beating) Vinod with hands and fists and were
also kicking him. However, when he (PW-13) along with
others had rushed towards Vinod to save him, the accused
persons took out the Guptis that they were carrying and
started assaulting the deceased with the said weapons.
Specifically, PW-13 had stated that accused Ranu had stabbed
the deceased with a dagger on the stomach and the accused
Jitender had also inflicted a Gupti blow though he could not
see the particular part of the body of the deceased on which
the Gupti blow was inflicted by the accused Jitender.
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11. Furthermore, reading the evidence of PW-13 it is clearly
discernible that the said witness has tried not to involve the
accused Bharat in the incident. The motive for the same, as
evident from the cross-examination of PW-13, is some
relationship between the two i.e. PW-13 and accused Bharat.
Specifically, PW-13 had stated that he had not seen Bharat
committing any assault on the deceased and that he was also
not sure as to whether Bharat had accompanied the other
accused persons and also whether he was holding any weapon
at all. PW-13 has also given a different sequence of the arrival
of the seven accused persons at the place of occurrence. In
this regard he had stated that while five accused had arrived
together, accused Bharat arrived at the place of occurrence
thereafter and the last to arrive was the accused Sanjay.
12. Having noticed the essential features of the evidence
tendered by the prosecution witnesses we may now proceed to
examine the liability of the accused appellants, all or any of
them, on the principle of vicarious or constructive liability
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under Section 149 of the IPC. The aforesaid provision of the
IPC is in the following terms:
“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.”
13. An assembly of five or more persons having as its
common object any of the five objects enumerated under
Section 141 of the IPC is deemed to be an unlawful assembly.
Membership of an unlawful assembly is itself an offence
punishable under Section 143 whereas other species of the
said offence are dealt with under Sections 143 to 145 of the
IPC. Similarly, Sections 146 to 148 of the IPC deals with the
offence of rioting which is defined to be use of force or violence
by any member thereof. Section 149 makes every member of
an unlawful assembly liable for offence that may be committed
by any member of the unlawful assembly in prosecution of the
common object of that assembly or for commission of any
offence that the members of the assembly knew to be likely to
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be committed in prosecution of the common object of the
assembly.
14. Section 149 IPC, therefore, engrafts a principle of
vicarious or constructive liability inasmuch as a person would
be guilty of an offence, though he may not have directly
committed the same if as a member of an unlawful assembly
he had shared a common object with the other members to
commit such an offence or if he knew that such offence was
likely to be committed in prosecution of the common object of
the assembly of which he was a member.
15. The purport and effect of the provisions of Section 149
IPC has received the consideration of this court on more than
one occasion. Without referring to any particular or specific
precedent available on the point, it would suffice to say that
determination of the common object of an unlawful assembly
or the determination of the question whether a member of the
unlawful assembly knew that the offence that was committed
was likely to be committed is essentially a question of fact that
has to be made keeping in view the nature of the
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assembly, the arms carried by the members and the behaviour
of the members at or near the scene and a host of similar or
connected facts and circumstances that cannot be entrapped
by any attempt at an exhaustive enumeration.
16. In Dani Singh Vs. State of Bihar1 the meaning of the word
“common object” had been considered by this Court. The
relevant part of the discussion may be summarized up below:
11.......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......
12......The “common object” of an assembly is
to be ascertained from the acts and language
of the members composing it, and from a
consideration of all the surrounding 1 (2004) 13 SCC
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circumstances. It may be gathered from the
course of conduct adopted by the members of
the assembly. What the common object of the
unlawful assembly is at a particular stage of
the incident is essentially a question of fact to
be determined, keeping in view the nature of
the assembly, the arms carried by the
members, and the behaviour of the members
at or near the scene of the incident.....
13......An object is entertained in the human
mind, and it being merely a mental attitude,
no direct evidence can be available and, like
intention, has generally to be gathered from
the act which the person commits and the
result therefrom. Though no hard-and-fast
rule can be laid down under the circumstances
from which the common object can be culled
out, it may reasonably be collected from the
nature of the assembly, arms it carries and
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behaviour at or before or after the scene of
incident.....”
17. In a recent decision of this court in Kuldip Yadav Vs.
State of Bihar2 to which one of us (Justice Sathasivam) was a
party, the principle of constructive liability under Section 149
IPC had once again received an elaborate consideration. In
paragraph 39 of the judgment it was held that:
“It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of lawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object.”
18. In para 40 of the judgment an earlier decision in
Rajendra Shantaram Todankar Vs State of Maharashtra3 was
noticed, particularly, the opinion that ....”It is difficult indeed,
though not impossible, to collect direct evidence of such
knowledge. An inference may be drawn from circumstances
2 (2011) 5 SCC 324 3 (2003) 2 SCC 257
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such as the background of the incident, the motive, the nature
of the assembly, the nature of the arms carried by the
members of the assembly, their common object and the
behaviour of the members soon before, at or after the actual
commission of the crime.”
19. Having enumerated the principles of law governing the
application of the principle of constructive liability under
Section 149 IPC, it will now be necessary to apply the said
principles to the facts of the present case as disclosed by the
evidence on record.
20. The presence of the accused appellants along with the
other accused at the place of occurrence and at the time and
date as claimed by the prosecution is not in dispute. It is also
not in doubt that the two of the accused i.e. Gopi and Ranu
(not before us) had an altercation with Santosh (PW-4) and the
deceased Vinod about an hour earlier to the incident and that
the two accused had left the place threatening that they would
come back to kill Santosh (PW-4) and Vinod. Thereafter, all
the seven accused had come armed with weapons. From the
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evidence of the prosecution witness it transpires that some of
the accused had attacked Santosh (PW-4) and Amit (PW-13)
who were present at the spot besides assaulting the deceased
Vinod in the stomach with sharp weapons resulting in his
death. From the evidence of PW-1, PW-2, PW-3 and PW-5 it
clearly transpires that all the seven accused, after the
incident, were seen trying to flee away from the place of
occurrence and, in fact, two of the accused i.e. Dhruv and
Bharat (Appellants before us) were apprehended by the
persons present at the spot.
21. As against the above, what we find is several serious
contradictions in the evidence of PW-4 and the previous
statement made by him in the FIR. The discrepancies are too
significant to be ignored. As the details in this regard have
already been noticed the same need not be repeated. Suffice it
will be to say that such discrepancies in the evidence of PW-4
relate to vital aspects of the case, namely, the weapons carried
by the accused persons; who amongst the accused had
assaulted the deceased and the weapon(s) used. On the other
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hand, from the evidence of PW-13 it transpires that the
accused persons were initially assaulting the deceased with
their hands and fists and were giving him blows and kicks. It
is only at a later stage i.e. when PW-13 and others had rushed
to save Vinod that accused persons are reported to have taken
out the weapons they were carrying i.e. guptis. Specifically
PW-13 had implicated only accused Jitender and Ranu (not
appellants) as the persons who had inflicted knife and gupti
blows on the deceased though he had stated that he could not
see the specific part(s) of the body of the deceased on which
assault was committed by the accused Jitender.
22. From the above it is clear that not only the testimony of
PW-4 is self contradictory, the versions of the two eye-
witnesses in so far as the involvement of the accused-
appellants is concerned is at variance with each other. Insofar
as accused Rupesh is concerned he has hardly been
implicated and the prosecution evidence, properly read, would
seem to show that he was a mere passive onlooker. Also,
PW-13 is wholly silent with regard to the involvement of any of
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the four accused appellants before this Court. In fact, PW-13
had gone to the extent of stating that the accused Bharat may
not have accompanied the other accused to the place of
occurrence and he was in fact not holding any weapon at all.
The recovery of the alleged weapons at the instance of the
accused, if the oral evidence of PW-4 and PW-13 is to be
excluded, will not be sufficient to convict the accused
appellants under Section 149. The incident of the accused
fleeing away from the place of occurrence, similarly, will not be
conclusive and determinative of the liability of the accused for
the substantive offence under section 302 with the aid of
section 149 IPC. There is no convincing and consistent
evidence of any individual overt act on the part of any of the
accused appellants to implicate any or all of them for causing
the fatal injuries on the body of the deceased. Having
considered the evidence brought by the prosecution, as
discussed above, we are of the view that it cannot be
reasonably inferred that the accused appellants, as members
of an unlawful assembly, had any common object to commit
the offence of murder of the deceased Vinod. Neither, the
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accused can be attributed with the knowledge that the offence
of murder was likely to be caused or to occur in prosecution of
the common object. At best what can be said and held is that
the common object of the assembly of the accused was to
teach PW-4 and the deceased Vinod a lesson on account of the
previous altercation that had taken place in the course of
which PW-4 and the deceased had slapped one of the accused,
i.e. Gopi. The accused persons, including the present
appellants, as members of the unlawful assembly were
committed and in fact had indulged in the use of force in
prosecution of the aforesaid common object. The same would,
however, render the accused appellants liable only for the
offence under Section 147 and 148 of the IPC for which they
have already been convicted by the learned trial court as also
by the High Court.
22. We are, therefore, of the view that while maintaining the
conviction of the appellants under Section 147and 148 of the
IPC and the sentence imposed they are entitled to be acquitted
for the offences under Section 302 read with Section 149 IPC.
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If the accused appellants have already served the sentence for
the offences under Section 147 and 148 of the IPC we direct
that, unless their custody is required in connection with any
other case, the accused appellants be set at liberty forthwith.
The Judgment and Order of the High Court is modified
accordingly and the appeals are partly allowed to the extent
indicated above.
...…………………………J. [P. SATHASIVAM]
.........……………………J. [RANJAN GOGOI]
New Delhi, November 22, 2012.
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