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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2324 OF 2014

Prabhu Dayal ...Appellant

Versus

The State of Rajasthan      ...Respondent

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

The  judgment  and  order  of  conviction  dated  17.09.2013

passed by the High Court of Judicature at Rajasthan, Bench at

Jaipur in D.B. Criminal  Appeal  No.  659 of  2003, insofar as it

relates to the conviction of the appellant, is the subject matter of

this  appeal.  By  the  impugned  judgment,  the  High  Court  has

affirmed  the  judgment  of  conviction  passed  by  the  Additional

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Sessions Judge (Fast Track) Court No. 2, Bharatpur, Rajasthan

in Sessions Case No. 53/2001.

2. The case of the prosecution in brief is that on the night of

01.05.1997, the informant Vikram Singh, who was sleeping at a

distance of 15 to 20 yards from his brother Gopal in his house,

heard the sound of a fired gun shot and got up at 1:00 a.m. in

the  intervening  night  between 01.05.1997 and 02.05.1997;  he

saw  Prabhu  (the  appellant  herein),  Indal,  Rajveer,  Gyan,  and

Shiv Singh armed with weapons and standing near the cot on

which his  brother  Gopal  was lying,  shouting  that  Prabhu (the

appellant herein) fired on his chest; then Prabhu told Shiv Singh

to kill his  bhabhi  Smt. Devi; thereupon, Shiv Singh opened fire

and  injured  her;  Prabhu,  Rajveer,  Indal  and  Shiv  Singh  were

having kattas (country made pistol) in their hands and Gyan was

armed with farsa (axe); 4 to 5 other persons were also standing

outside the compound but he could not identify them because of

the darkness; the appellant-Prabhu was shouting that they have

killed Gopal on that day and they will see who dares to oppose

them in the future; the informant raised a hue and cry and at

that point of time, Surjan, Ramesh, Subhash, Pappu and other

neighbours reached on the spot.  Based on these allegations, the

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first  information  came  to  be  lodged  by  Vikram  Singh  as  per

Exhibit P14 on 02.05.1997.

Totally,  ten  accused  were  tried,  including  the  appellant

herein, for the offences punishable under Sections 147, 148, 307,

302, 459, 460, 120B, 118, and 176 read with Section 149 of the

Indian Penal Code, and Sections 3/25 of the Arms Act.

3. The  Trial  Court  acquitted  accused  nos.  7  to  10  and

convicted  accused  nos.  1  to  5,  viz.,  Gyan  Singh,  Shiv  Singh,

Indal, Rajveer and Prabhu Dayal (the appellant herein) (Accused

No.6  –  Babu  expired  during  investigation).  Gyan  Singh  was

convicted under S. 302, IPC simpliciter, and was sentenced to life

imprisonment  with  a  fine  of  Rs.  1,000/-.  Shiv  Singh  was

convicted  under  Section  307,  IPC,  and  sentenced  to  simple

imprisonment  of  4  years  with  fine.  The  rest  of  the  accused,

including  Indal,  Rajveer,  and  Prabhu  Dayal,  were  convicted

under Ss. 302/149, IPC and given the same sentence as Gyan

Singh. During the pendency of the appeal before the High Court,

one of the accused – Indal expired. Thus, the appeal was heard

by the High Court against  four accused,  namely,  Gyan Singh,

Shiv  Singh,  Rajveer  and  Prabhu  Dayal.   The  High  Court  on

hearing, while acquitting the accused – Rajveer, has confirmed

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the judgment of conviction passed by the trial Court in respect of

Gyan Singh, Shiv Singh and Prabhu Dayal.

The  accused  –  Gyan  Singh  has  served  the  sentence  of

imprisonment and he has not filed an appeal in this Court.  The

accused  –  Shiv  Singh  did  not  choose  to  file  an  appeal  and

consequently  has  accepted  the  judgment  of  conviction  and

sentence  passed  against  him.   Hence,  the  accused  –  Prabhu

Dayal is the only person who is before this Court in this appeal,

questioning the judgment and order of conviction passed against

him.

4. Shri Nagendra Rai, learned Senior Advocate, took us to the

material  on  record  and  submitted  that  the  High  Court  is  not

justified in affirming the judgment of  conviction passed by the

Trial Court.  The names of the accused, including the appellant,

were not disclosed by the alleged eye witnesses when they went

to the police station immediately after the incident, i.e., at 2:00

a.m. on 02.05.1997, and hence it is clear that the so-called eye

witnesses are not actually the eye witnesses of the incident; the

prosecution  witnesses  had  been  changing  the  story  of  the

prosecution  stage  by  stage  inasmuch  as  the  first  information

report, Exhibit P14, named the appellant as the only assailant

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who fired at the deceased Gopal; during the course of evidence,

such story of the prosecution is improved upon by deposing that

Prabhu Dayal and Gyan Singh together fired at Gopal; at some

point of time, the eye witnesses have deposed that it is only Gyan

Singh  who  fired  on  the  deceased;  the  post  mortem  report

discloses that the deceased has sustained only an entry wound

and an exit  wound, meaning thereby that only one bullet was

shot by one of the firers, and two persons were not involved in

firing  on  the  deceased.   He  further  submitted  that  the  FIR,

Exhibit  P14,  is  hit  by  Section  162  of  the  Code  of  Criminal

Procedure, inasmuch as the first information was lodged at 2:00

a.m. on 02.05.1997 itself  when Vikram Singh, Lakshmi Karan

and one more person came to the police station on the motor

cycle  and  went  away  after  saying  that  some  miscreants  have

come  in  the  village  Ikran  and  started  open  firing.   As  the

information was entered by the police in the Rozanama at No. 29

and in view of such entry in the Rozanama in the police station,

the  so  called  first  information  report,  Exhibit  P14,  cannot  be

treated as the first information; it can be treated as only second

information and is therefore hit by the provisions of Section 162

of the Code of Criminal Procedure.  He further submitted that the

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place of occurrence is not proved, inasmuch as no blood stain

material was seized from the scene of occurrence; and the place

of incident was washed by the witnesses even prior to the police

visiting the spot and the said fact is clear from the evidence of the

investigating officer.  On these, among other things, he prayed for

allowing  the  appeal.   Per  contra,  Shri  Jayant  Bhatt,  learned

advocate appearing on behalf of the State of Rajasthan, argued in

support of the judgments of the courts below.

5. PW30,  the  Station  House  Officer  of  the  concerned  police

station has admitted in the cross-examination that at 2:00 a.m.

on  02.05.1997,  Vikram  Singh,  Lakshmi  Karan  and  one  more

person came on a motor cycle to the police station at Chiksana

and went away after saying that some miscreants have come in

village  Ikran  and  started  open  firing.   Such  information  was

entered in the Rozanama of the case diary at no. 29. At that point

of time, none of the afore-mentioned three persons had given the

name of  any  person  who  had  opened  firing.   Based  on  such

information,  the  appellant  contends  that  the  afore-mentioned

information  would  be  the  first  information,  and  as  such

information does not contain any of the names of the assailants,

it can be said that none of the eye witnesses knew the names of

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the assailants at 2:00 a.m. i.e., immediately after the incident.

Since  the  accused  and  the  witnesses  are  near  relatives,  they

should have given the names in the police station at 2:00 a.m.

itself when they visited the police station immediately after the

incident.   Though,  such  submission  on  behalf  of  the  defence

seems to be attractive at the first instance, the same cannot be

accepted  in  the  facts  and  circumstances  of  the  case.   The

witnesses, namely, Vikram Singh, Lakshmi Karan and Ramesh

who had come to  police  station  at  2:00 a.m.,  being  the  close

relatives of the deceased and injured Devi, are expected to first

give treatment to the injured than to complete the formalities of

lodging  the  complaint  in  detail.   It  is  not  in  dispute  that  the

afore-mentioned three witnesses did not stop at the police station

at 2:00 a.m., on the other hand, they hurriedly came on a motor

cycle and informed the police while staying on the motor cycle

itself and went away immediately disclosing that the incident has

taken  place.  Immediately  thereafter,  PW30  –  Station  House

Officer went to the village in a jeep.  By the time he reached the

water  tank,  Vikram  Singh,  Lakshmi  Karan  and  others  were

bringing  the  wounded  Gopal  and  his  wife  Devi,  who  had

sustained grievous injuries, in the tractor; both the injured were

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shifted from the tractor to a jeep and were taken to the hospital

by PW30.  By the time they reached the hospital, it was 3:00 a.m.

on 02.05.1997. After giving first aid to the injured, the written

report as per Exhibit P14 was given at 5:35 a.m. in the hospital.

Thus, virtually, there is no delay on the part of the witnesses who

lodged  the  first  information  about  the  incident.  The  first

information, Exhibit P14, in our considered opinion, is not hit by

Section 162 of the Code of Criminal Procedure, inasmuch as it is

a detailed addendum to the earlier information given at 2:00 a.m.

Exhibit P14 is not inconsistent with the information recorded at

2:00 a.m. in the Rozanama of the police station. As mentioned

supra, the first priority of the witnesses was to save the lives of

the injured. Hence, the Trial Court as well as the High Court is

justified in concluding that there is no delay in lodging the first

information report, Exhibit P14, and that it cannot be discarded

on  the  ground  that  it  is  hit  by  Section  162  of  the  Code  of

Criminal Procedure.

6. In  the  first  information,  it  is  clearly  mentioned  that  the

appellant  fired  on the  deceased.   However,  the  first  informant

(PW13),  namely  Vikram  Singh,  has  deposed  that  immediately

after hearing the sounds of fire he came to the spot and saw the

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appellant  –  Prabhu Dayal,  Gyan Singh,  Shiv  Singh,  Indal  and

Rajveer, and at that point of time the injured Gopal was crying

that Prabhu and Gyan Singh had fired at him.  At that point of

time, Prabhu said to Shiv Singh that the wife of Gopal is also

crying  and  that  she  should  also  be  fired  at.  Immediately

thereafter, Shiv Singh fired at Devi while running away.  Thus,

there is a slight improvement in the evidence of the informant to

the  effect  that  Gyan  Singh  and  Prabhu  together  fired  on  the

deceased Gopal, and Shiv Singh fired on Devi.

7. PW11, injured Devi, whose evidence is important because

her  presence  on  the  spot  is  not  doubted,  and  who  has  also

sustained gunshot injuries, has deposed about the incident in a

most natural  way that  it  had happened during night  till  early

hours of the day.  She has deposed that on the previous night,

Gyan Singh and the  deceased Gopal  had drinks together  and

then had dinner; Devi (PW11) was having fever; when she was

sleeping  along  with  her  husband,  the  accused  Prabhu,  Gyan

Singh, Shiv Singh, Indal and Rajveer came at 1:00 a.m. and they

all were armed with weapons; Gyan Singh had a pistol and an

axe and the others were armed with pistols;  at the first instance,

the appellant fired with a pistol on the deceased but no one got

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injured, inasmuch as it was misfired.  At that point of time, Gyan

Singh fired a gunshot from a country made pistol which entered

from the back of the deceased and went out of the stomach of the

deceased. Immediately thereafter, the appellant – Prabhu shouted

and  told  Shiv  Singh  that  Devi  should  also  be  killed,  and

consequently Shiv Singh fired a gunshot at Devi also.   

8. Though, it appears that the evidence of these witnesses, as

mentioned supra, has improved the case of the prosecution to a

certain extent from the first information, the fact remains that all

the five accused including the appellant were very much present

on the scene of the occurrence. Four of them were having country

made pistols and one was having an axe; the appellant as well as

Gyan Singh fired on the deceased Gopal and Shiv Singh fired at

Devi; all of them collectively came to the house of the deceased

with the common object of committing murder of Gopal. Merely

because the gunshot fired by the appellant did not enter the body

of the deceased or was misfired, the accused – Prabhu cannot be

said to be innocent, and it will not be possible for the witnesses

to  meticulously  specify  the  overt  acts  of  each of  the  accused,

particularly when the incident had taken place at 1:00 a.m. Devi

opened  her  eyes  immediately  after  hearing  the  sound  of  a

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gunshot, and therefore she will naturally not be in a position to

identify  who  was  the  first  assailant  or  the  second  assailant.

However, the evidence clarifies that the appellant was having a

country made pistol and he also fired, consequent to which Gopal

lost his life.

9. It is settled law that the FIR need not contain an exhaustive

account of the incident. This Court in Om Prakash v. State of

Uttaranchal, (2003) 1 SCC 648, observed as follows:

“10. …It is axiomatic that the FIR need not contain an exhaustive account of the incident. It is to be noted that  the  report  was  given  to  the  police  within one-and-a-half  hours  after  the  incident.  PW  8,  a known  person,  had  drafted  the  report  that  she dictated.  She  had  given  all  essential  and  relevant details of the incident naming the accused as culprit. We cannot expect a person injured and overtaken by grief to give better particulars. The possibility of PW 1 inventing a story at that juncture trying to implicate the accused is  absolutely ruled out.  The contents of the FIR, broadly and in material particulars, conform to the version given by PW 1 in her deposition...”

A FIR is  not an encyclopaedia of  the case. This Court in

Surjit  Singh v.  State  of  Punjab,  1993  Supp  (1)  SCC 208,

observed as follows:

“8. …In  this  situation  the  aforesaid misdescriptions/omissions  in  the  FIR  about  the number of shots fired and the absence of Taljit Singh's injuries  or  the  appellant  being  not  described  as  a military  man  become  of  lesser  importance.  First

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Information  Report  is  not  an  encyclopaedia  of  the entire  case  and  is  even  not  a  substantive  piece  of evidence.  It  has  value,  no  doubt,  but  only  for  the purpose of  corroborating or contradicting the maker. Here the maker was a young woman who had lost her husband  before  her  very  eyes.  The  omission  or misdescription of these details in the FIR which was recorded  most  promptly,  within  three  hours  of  the occurrence, would not tell on the prosecution case or the statements of the eyewitnesses with regard to the participation  of  the  appellant  in  the  crime.  He  had taken a leading and prominent part in spearheading and committing  it.  For  these reasons,  we are of  the view that the High Court was right in convicting the appellant  on  giving  cogent  reasons  to  demolish  the reasoning  of  the  Trial  Judge  and  adding  thereto reasons of its own.”

(emphasis supplied)

A witness’ testimony need not be disbelieved only because it

did not find mention in the FIR. In State of M.P. v. Dhirendra

Kumar, (1997) 1 SCC 93, this Court discussed and applied the

principle as follows:

“11. It  was  very  emphatically  contended  by  Shri Gambhir that as in the first information report (FIR) there is  no mention about the dying declaration,  we should  discard  the  evidence  of  PW  1  and  PW  2 regarding dying declaration, because of what has been pointed  out  by  this  Court  in Ram  Kumar Pandey v. State of M.P. [(1975) 3 SCC 815 : 1975 SCC (Cri)  225 :  AIR 1975 SC 1026] We do not,  however, agree with Shri Gambhir, for the reason that what was observed in Ram Kumar case [(1975) 3 SCC 815 : 1975 SCC (Cri)  225 :  AIR 1975 SC 1026] after noting the broad  facts,  was  that  material  omission  in  the  FIR would cast  doubt  on the veracity  of  the prosecution case,  despite  the  general  law  being  that  statements made  in  the  FIR  can  be  used  to  corroborate  or

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contradict its maker. This view owes its origin to the thinking  that  if  there  be  material  departure  in  the prosecution case as unfolded in the FIR, which would be so if  material  facts not mentioned in the FIR are deposed to by prosecution witnesses in the court, the same would  cause  dent  to  the  edifice  on which the prosecution  case  is  built,  as  the  substratum of  the prosecution case then gets altered. It is apparent that prosecution  cannot  project  two  entirely  different versions  of  a  case.  This  is  entirely  different  from thinking that some omission in the FIR would require disbelieving of the witnesses who depose about the fact not mentioned in the FIR. Evidence of witnesses has to be tested on its own strength or weakness. While doing so, if the fact deposed be a material part of prosecution case, about which, however, no mention was made in the  FIR,  the  same  would  be  borne  in  mind  while deciding about the credibility of the evidence given by the witness in question.”

(emphasis supplied)

     Recently, in Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1,

this Court observed as follows:

“57. As  far  as  the  argument  that  the  FIR  does  not contain  the  names  of  all  the  accused  persons  is concerned, it has to be kept in mind that it is settled law that FIR is not an encyclopaedia of facts and it is not  expected  from  a  victim  to  give  details  of  the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopaedia which is expected to contain all the details of the prosecution case;  it  may  be  sufficient  if  the  broad  facts  of  the prosecution  case  alone  appear.  If  any  overt  act  is attributed  to  a  particular  accused  among  the assailants, it must be given greater assurance. In this context,  reference  to  certain  authorities  would  be fruitful.”

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10. It  is a common phenomenon that the witnesses are rustic

and can develop a tendency to exaggerate. This, however, does

not  mean  that  the  entire  testimony  of  such  witnesses  is

falsehood. Minor contradictions in the testimony of the witnesses

are not fatal to the case of the prosecution. This Court, in State

of  U.P. v.  M.K.  Anthony,  (1985)  1  SCC  505,  held  that

inconsistencies  and  discrepancies  alone  do  not  merit  the

rejection of the evidence as a whole. It stated as follows:

“10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for  the  court  to  scrutinise  the  evidence  more particularly  keeping  in  view  the  deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness  and  whether  the  earlier  evaluation  of  the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit  will  have  to  attach  due  weight  to  the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.

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Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.  Cross-examination  is  an  unequal  duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his  evidence  simultaneously  keeping  in  view  the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair  whose  evidence  appears  to  us  trustworthy  and credible.”                                      

    (emphasis supplied)

In  State of  U.P. v. Anil  Singh,  1988 Supp SCC 686,  this

Court observed that:

“17.  ...invariably  the  witnesses  add  embroidery  to prosecution  story,  perhaps  for  the  fear  of  being disbelieved. But that is no ground to throw the case overboard,  if  true,  in  the main.  If  there is  a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the  inconsistencies  or  falsehood  are  so  glaring  as utterly to destroy confidence in the witnesses.”

The Court can separate the truth from the false statements in

the witnesses’ testimony. In  Leela Ram v.  State of Haryana,

(1999) 9 SCC 525, this Court held as follows:

“12. It is indeed necessary to note that one hardly comes  across  a  witness  whose  evidence  does  not contain  some  exaggeration  or  embellishment  — sometimes there could even be a deliberate attempt to offer  embellishment  and  sometimes  in  their

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overanxiety  they  may  give  a  slightly  exaggerated account.  The court can sift  the chaff  from the grain and  find  out  the  truth  from  the  testimony  of  the witnesses.  Total  repulsion  of  the  evidence  is unnecessary. The evidence is to be considered from the point  of  view  of  trustworthiness.  If  this  element  is satisfied, it ought to inspire confidence in the mind of the  court  to  accept  the  stated  evidence  though  not however in the absence of the same.”

Moreover, it is not necessary that the entire testimony of a

witness be disregarded because one portion of such testimony is

false. This Court observed thus in Gangadhar Behera v. State

of Orissa, (2002) 8 SCC 381:

“15. To  the  same  effect  is  the  decision  in State  of Punjab v. Jagir  Singh [(1974) 3 SCC 277 :  1973 SCC (Cri)  886 :  AIR 1973 SC 2407] and Lehna v. State of Haryana [(2002)  3  SCC  76  :  2002  SCC  (Cri)  526]  . Stress  was  laid  by  the  accused-appellants  on  the non-acceptance  of  evidence  tendered  by  some witnesses to  contend about  desirability  to throw out the  entire  prosecution  case.  In  essence  prayer  is  to apply the principle of “falsus in uno, falsus in omnibus” (false  in  one  thing,  false  in  everything).  This  plea is clearly  untenable.  Even  if  a  major  portion  of  the evidence  is  found to  be  deficient,  in  case  residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction  can  be  maintained.  It  is  the  duty  of  the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict  an accused notwithstanding the fact that  evidence has been found to be deficient  to prove  guilt  of  other  accused  persons.  Falsity  of  a particular  material  witness  or  material  particular would  not  ruin  it  from  the  beginning  to  end.  The maxim  “falsus  in  uno,  falsus  in  omnibus”  has  no application  in  India  and  the  witnesses  cannot  be

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branded as liars. The maxim “falsus in uno, falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded.”

11. In our considered opinion, the Trial Court as well as the High

Court is also justified in concluding that the appellant is liable to

be convicted under Section 149 of the IPC, inasmuch as he is one

of the members of the unlawful assembly who had come to the

scene of occurrence with the common object of committing the

murder of Gopal.

In Masalti v. State  of  U.P.,  AIR  1965  SC  202,  it  was

observed  that  any  member  of  the  unlawful  assembly  can  be

prosecuted for the criminal act; it need not to be proved that he

had committed an overt act:

“17. ...what has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141  IPC.  Section  142  provides  that  however,  being aware of facts which render any assembly an unlawful assembly,  intentionally  joins  that  assembly,  or continue in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the  common objects  specified  by  the  five  clauses  of Section  141,  is  an  unlawful  assembly.  The  crucial question to determine in such a case is whether the assembly  consisted  of  five  or  more  persons  and

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whether the said persons entertained one or more of the common objects as specified in Section 141. While determining  this  question,  it  becomes  relevant  to consider  whether  the  assembly  consisted  of  some persons who were merely passive witnesses and had joined  the  assembly  as  a  matter  of  idle  curiosity without intending to entertain the common object of the  assembly.  It  is  in  that  context  that  the observations  made  by  this  Court  in  the  case of Baladin [Baladin v. State of U.P., AIR 1956 SC 181 : 1956 Cri  LJ 345]  assume significance;  otherwise,  in law, 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, Section 149 makes 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  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;  and  that  emphatically  brings  out  the principle  that  the  punishment  prescribed by Section 149  is  in  a  sense  vicarious  and  does  not  always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.”

This Court in Lalji v. State of U.P., (1989) 1 SCC 437, observed

as follows:

“9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct  offence.  In  other  words,  it  created  a constructive or vicarious liability of the members of the unlawful  assembly  for  the  unlawful  acts  committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the

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acts done in pursuance of the common object of the unlawful  assembly,  or  to  such  offences  as  the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case  of  a  person  falls  within  the  ingredients  of  the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the  assembly  knew  to  be  likely  to  be  committed  in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary  that  all  the  persons  forming  an  unlawful assembly must do some overt act. When the accused persons  assembled  together,  armed  with  lathis,  and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt  act  was  done  by  which  of  the  accused.  This section  makes  a  member  of  the  unlawful  assembly responsible as a principal for the acts of each, and all, merely  because  he  is  a  member  of  an  unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt  under  Section  149 is  mere  membership  of  the unlawful assembly, with the requisite common object or knowledge.”

These  cases  were  followed  in  many  subsequent  cases,

including  Shamshul Kanwar v. State of U.P.,  (1995) 4 SCC

430.

12. The reports of the Forensic Science Laboratory as well as

those  of  the  Ballistic  Experts  have  been perused by  us.   The

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Forensic  Science  Laboratory  report  discloses  that  the  samples

collected from the scene of the offence had bloodstains of human

origin.  However, since the bloodstains were disintegrated by the

time  the  bloodstains  were  examined  by  the  Forensic  Science

Laboratory,  the blood group could  not  be determined.  For  the

same,  the  accused  cannot  be  unpunished,  more  particularly

when the bloodstains were found of human origin.

In State of Rajasthan v. Teja Ram, (1999) 3 SCC 507, this

Court concluded that even when the origin of the blood cannot be

determined, it does not necessarily prove fatal to the case of the

prosecution.  In  that  case,  the  murder  weapons  had  been

recovered with blood on them, and the origin of the blood on one

of the weapons could not be determined. Therein, the Court held

as follows:

“25. Failure of the serologist to detect the origin of the  blood  due  to  disintegration  of  the  serum in  the meanwhile does not mean that the blood stuck on the axe  would  not  have  been  human  blood  at  all. Sometimes it happens, either because the stain is too insufficient  or  due  to  haematological  changes  and plasmatic  coagulation  that  a  serologist  might  fail  to detect the origin of the blood. Will it then mean that the  blood  would  be  of  some  other  origin?  Such guesswork  that  blood  on  the  other  axe  would  have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a

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judicially  conscientious  mind  entertains  with  some objectivity, no benefit can be claimed by the accused.

26. Learned counsel for the accused made an effort to sustain the rejection of the abovesaid evidence for which  he  cited  the  decisions  in Prabhu  Babaji Navle v. State of Bombay [AIR 1956 SC 51 : 1956 Cri LJ  147]  and Raghav  Prapanna  Tripathi v. State  of U.P. [AIR  1963  SC  74  :  (1963)  1  Cri  LJ  70]  In  the former, Vivian Bose, J. has observed that the chemical examiner's  duty  is  to  indicate  the  number  of bloodstains  found  by  him  on  each  exhibit  and  the extent of each stain unless they are too minute or too numerous to be described in detail.  It was a case in which one circumstance projected by the prosecution was just one spot of blood on a dhoti. Their Lordships felt that “blood could equally have spurted on the dhoti of  a  wholly  innocent  person  passing  through in  the circumstances  described  by  us  earlier  in  the judgment”. In the latter decision, this Court observed regarding the certificate of  a chemical  examiner that inasmuch  as  the  bloodstain  is  not  proved  to  be  of human  origin  the  circumstance  has  no  evidentiary value “in the circumstances” connecting the accused with the murder. The further part of the circumstance in that  case  showed that  a  shirt  was seized from a drycleaning  establishment  and  the  proprietor  of  the said establishment had testified that  when the  shirt was  given  to  him  for  drycleaning,  it  was  not bloodstained.

27. We  are  unable  to  find  out  from the  aforesaid decisions any legal ratio that in all cases where there was  failure  of  detecting  the  origin  of  the  blood,  the circumstance  arising  from  recovery  of  the  weapon would stand relegated to disutility. The observations in the  aforesaid cases  were  made on the  fact  situation existing  therein.  They  cannot  be  imported to  a  case where the facts are materially different.”

13. The misfired cartridge, the fired cartridge, and the country

made pistols were subjected to the examination of the Forensic

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Science  Laboratory.   It  was  clearly  stated  in  the  Forensic

Laboratory’s Reports that the country made pistol contained in

packet ‘H’ was in working order.  However, it has a tendency to

mis-fire  the  ammunition.   It  is  also  stated  that  the  cartridge

found in the very packet was fireworthy ammunition.  The report

of the Ballistic Expert further makes it clear that based on stereo

and comparison microscopic examination, the 12-bore cartridge

case  from  packet  ‘G’  could  have  been  fired  from  a  12-bore

country made pistol.  Hence, it is clear that out of the two pistols

seized, one pistol had got a tendency to mis-fire and the other

had fireworthy  ammunition.  Thus,  the  reports  of  the  Forensic

Science  Laboratory  fully  support  the  case  of  the  prosecution,

inasmuch as it is the evidence of the witnesses including Devi

that Gopal was fired at by Gyan Singh as well as the appellant

herein.   Among  the  shots  fired,  one  of  the  gunshots  was

mis-fired.   Be that  as it  may,  the fact  remains,  as mentioned

supra,  that  all  the  five  members  including  the  appellant  were

members of the unlawful assembly which had the common object

of  committing  the  murder  of  the  deceased.   Hence,  in  our

considered  opinion,  the  trial  Court  and  the  High  Court  are

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justified in convicting the accused having regard to the evidence

on record.   

14. Accordingly, the appeal stands dismissed and the sentence

of  life  imprisonment  imposed  upon  the  appellant  stands

confirmed.

                                            .……………………………………J.      (L. Nageswara Rao)

             …………………………………….J.     (Mohan M. Shantanagoudar)

New Delhi, Dated:  July 04, 2018