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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs.1425-1426 of 2007

State of Rajasthan                                    …Appellant

Versus

Shiv Charan & Ors.              …Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. These  appeals  have  been  preferred  against  the  impugned  

judgment and order dated 20.9.2005, passed by the High Court  

of Judicature of Rajasthan at Jodhpur (Jaipur Bench) in D.B.  

Criminal Appeal Nos.1454 and 1458 of 2002, by way of which,  

the High Court has converted the conviction of the respondents  

herein, from one under Sections 302/149 of Indian Penal Code,  

1860 (hereinafter referred to as `the IPC’) and Section 148 IPC  

to another under Section 323 IPC, and the sentence awarded by

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the Sessions Court to life imprisonment with fine, has also been  

substituted by a sentence of one year.

2. Facts and circumstances giving rise to these appeals are that:

A. A complaint was submitted by Batti Lal (PW.1) in the Police  

Station, Bamanwas on 28.8.2000 at about 9 a.m., that on the said day,  

his brother Prahlad (since deceased), had been grazing buffaloes.  The  

respondents  herein alongwith one Mahesh,  absconder,  had attacked  

Prahlad and inflicted injuries on his person.  Mahesh had hit Prahlad  

on the head with a rod, whereas the respondents had inflicted injuries  

with  lathis.  Kedar-accused had tried to push Prahlad to crush him  

under  the  tractor  driven  by  the  accused,  but  could  not  succeed.  

Prahlad had then been taken to the local hospital, from where he was  

referred to Jaipur Hospital, but he succumbed to his injuries while in  

transit.

B. On the basis of the said report, a case under Sections 147, 148,  

149 and 302 IPC was registered against the respondents and Mahesh,  

absconder, and  investigation commenced.  Autopsy on the dead body  

of  Prahlad  was  performed.   The  respondents  were  arrested.   All  

necessary  memos  were  drawn  up,  and  upon  completion  of  the  

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investigation,  a  charge  sheet  was  filed  against  the  respondents.  

However, the investigation against Mahesh remained pending, as he  

had been absconding.

C. The trial commenced.  The prosecution examined 15 witnesses  

in support of its case.  The respondents were examined under Section  

313 of the Code of Criminal Procedure, 1973 (hereinafter referred to  

as `the Cr.P.C.’).  They not only pleaded innocence but also examined  

one witness  in  defence.   Upon completion of  the trial,  the learned  

Trial  Court  convicted  and  sentenced  the  respondents  as  has  been  

referred to hereinabove.

D. Aggrieved,  the respondents  preferred criminal  appeals  before  

the High Court,  which were allowed vide impugned judgment and  

order.   

          Hence, these appeals.

3. Shri Ajay Veer Singh, learned counsel appearing for the State,  

has submitted, that in light of the grievous injuries found on the body  

of Prahlad (deceased), which are undeniably homicidal in nature, the  

case certainly did not warrant the conversion of the conviction of the  

respondents  from  under  Sections  302/149/148  IPC,  to  one  under  

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Section 323 IPC.  There was sufficient evidence on record to show  

that the respondents were the aggressors, and the mere pendency of  

the cross case before the Trial Court should not give leverage to the  

High  Court  to  take  such  a  lenient  view.   Therefore,  the  appeals  

deserve to be allowed.

4. Per contra, Shri G.K. Bansal, learned counsel appearing for the  

respondents has submitted, that the High Court has appreciated the  

entire evidence in correct perspective, and upon realising that it was a  

free fight, has held that it was not possible to determine, who were the  

actual aggressors?  The view taken by the High Court does not require  

any interference whatsoever.   Thus,  the appeals lack merit  and are  

liable to be dismissed.

5. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.

6. Post-mortem on the body of Prahlad, deceased, was conducted  

by the  team/Board  consisting  of  Dr.  N.K.  Meena and Dr.  Ramesh  

Chand Gupta (PW.9).  The report (Ex.P-14), revealed the following  

ante-mortem injuries:

          (1) “Lacerated wound 3” x ½” x bone deep - Mid of scalp.

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(2)  Contusion 2” x ½” (Rt.) wrist joint of both bones.

(3) Abrasion ½ x ½ on front of Rt. ear.

                (4) Multiple linear abrasion on the left lower limb.

          In the opinion of the Doctors, the cause of death was shock due  

to injury on scalp leading to brain hemorrhage.

7. The injuries  found on the person of  respondent  Shiv Charan  

were as follows:

(1) Abrasion with swelling on Lt. Hand dorsal aspect of palms at  

1 cm below junction of little finger.

(2) Abrasion with swelling of Rt. Side parietal region at skull.

(3) Complaint of pain whole back with injury.

8. The injuries found on the person of respondent Kedar were as  

follows:

(1) Lacerated wound on Rt. Parietal region on skull.  Scalp deep  

soft clotted blood, 5 cm x ½ cm.

(2) Lacerated wound on center of skull soft clotted blood 4 cm x  

½ cm scalp deep.

(3) Complaint of  Pain Lt. Parietal region with swelling 2 cm x 2  

cm.

(4) Complaint of  pain Rt. Arm.

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9. Ramdhan Meena (PW.2) has deposed that while Prahlad had  

been grazing the buffaloes in the morning, Mahesh,  armed with an  

iron rod, alongwith the co-accused – respondents,  who were armed  

with lathis, had come there.  They all started abusing Prahlad. Mahesh  

had inflicted a blow on the head of Prahlad with an iron rod, and Shiv  

Charan had hit him with a lathi on the left side of the face.  Nehru had  

then pushed Prahlad in  front  of  the tractor  driven by the accused-

respondents, to crush him under it, but could not succeed.  Prahlad,  

injured, had then been taken to a hospital in Jaipur, but died on the  

way.

This witness was declared hostile, as he did not support the case  

of the prosecution.

10. Khushi  Chand (PW.5),  deposed that  Prahlad  (deceased),  had  

been grazing buffaloes. The respondents, alongwith Mahesh had come  

there  on  a  tractor.   They  had  started  quarrelling  with  Prahlad.  

Mahesh had first assaulted Prahlad on the head with an iron rod, and  

thereafter, the respondents herein had assaulted Prahlad with lathis.  

The witnesses had tried to save Prahlad, but the accused had fled in  

their tractor by road after beating him.  Prahlad had then been taken to  

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the  Gangapur Hospital in a cart, after  which he had been referred to  

Jaipur Hospital.  He died on the way.   

11. Gopal (PW.4) and Phool Chand (PW.7),  had given the same  

version of events, as they had also been grazing their buffaloes/cattles  

alongwith Prahlad (deceased).   

12. Dr. Shiv Singh Meena (PW.15), who had examined Prahlad in  

his injured condition, has proved the injuries on his person.

Dr. Ramesh Chand Gupta (PW.9), who was the member of the  

board,  which  conducted  the  postmortem,  deposed  that  the  layer  

around the brain had been fractured.  There was fracture in his right  

parietal bone, and fractures on the right radius and alina bone.  In his  

opinion,  the cause of death was hemorrhage inside the brain.  The  

injury found on the head of the deceased was sufficient to cause death  

in the normal course of nature.

13. Jitendra Jain (PW.12), the Investigating Officer, proved all the  

recoveries,  and answered all  questions relating to the investigation.  

He  also  admitted  that  a  cross  case  had  been  registered  by  the  

respondents  in  regard  to  the  very  same  incident,  against  the  

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complainant  party,  as  accused  Kedar  and  Shiv  Charan  had  also  

sustained injuries in the said incident.  

14. The Trial Court has appreciated the entire evidence on record  

and has thereafter,  rejected the version of  Shiv Charan and Kedar,  

that they had received injuries as referred to in the cross case, while  

acting in self-defence.  The court has also rejected the theory of grave  

and sudden  provocation,  and also  that  the  quarrel  had taken  place  

suddenly,  and  that  maar-peet  had  started  without  any  previous  

intention  or  planning.   In  the  instant  case,  the  previous  enmity  

between the parties  on mortgaging the land also stood established.  

Considering the gravity of the injuries and the evidence on record, the  

Trial Court has convicted and sentenced the respondents as has been  

referred to hereinabove.   

15. The  High  Court  while  deciding  the  appeals,  has  taken  the  

following circumstances into consideration:

(i)      The fatal injury on the head of Prahlad (deceased), has been  

attributed to Mahesh, the absconding accused;

(ii)     The informant Batti  Lal,  was not an eye witness to the  

incident,  and  who got  the  FIR registered  on  the  basis  of  

hearsay information;

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(iii) The  injuries  sustained  by  the  accused,  particularly  by  

accused Kedar,  suggest  that  the  complainant  party had in  

fact been aggressors; and

(iv) A cross case was registered against  the complainant party  

and the same was pending.

            The High Court came to the conclusion after taking into  

consideration the number of injuries suffered by the accused Kedar  

and Shiv Charan, that an inference could easily be drawn to the effect  

that there had been some soft pedaling in the investigation, and that  

the prosecution had not revealed the genesis of the incident.  The High  

Court,  thus,  very abruptly reached the conclusion that as there had  

been no meeting of minds just prior to the incident, or even at the time  

of incident, the respondents were responsible for their individual acts.  

Since a fatal injury had been found on the head of the deceased, which  

had been attributed to be caused by co-accused Mahesh, an absconder,  

the conviction and sentences were altered as referred to hereinabove.   

16. The pivotal question of applicability of Section 149 IPC has its  

foundation on constructive liability which is the  sine qua non for its  

application. It contains essentially only two ingredients,  namely, (I)  

offence  committed  by  any  member  of  any  unlawful  assembly  

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consisting  five  or  more  members  and;   (II)  such  offence  must  be  

committed in prosecution of the common object (Section 141 IPC) of  

the assembly  or members of that assembly knew to be likely to be  

committed in prosecution of the common object.  It is not necessary  

that for common object there should be a prior concert as the common  

object may be formed on spur of the moment.  Common object would  

mean the purpose or design shared by all members of such assembly  

and it may be formed at any stage. Even if the offence committed is  

not  in  direct  prosecution  of  the  common  object  of  the  unlawful  

assembly, it may yet fall under second part of Section 149 IPC if it is  

established  that  the  offence  was  such,  as  the  members  knew,  was  

likely to be committed.  For instance, if a body of persons go armed to  

take forcible possession of the land, it may be presumed that someone  

is likely to be killed, and all the members of the unlawful assembly  

must be aware of that likelihood and, thus, each of them can be held  

guilty of  the offence punishable  under Section 149 IPC.  The court  

must keep in mind the distinction between the two parts of  Section  

149 IPC,  and,  once  it  is  established  that  unlawful  assembly  had a  

common  object,  it  is  not  necessary  that  all  persons  forming  the  

unlawful assembly must be shown to have committed some overt act,  

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rather they can be convicted for vicarious liability.  However, it may  

be  relevant  to  determine  whether  the  assembly  consist  of  some  

persons  which  were  merely  passive  witnesses  and  had  joined  the  

assembly as a matter of ideal curiosity without intending to entertain  

the common object of the assembly.  However, it is only the rule of  

caution and not the rule of law. Thus, a mere presence or association  

with  other  members  alone  does  not  per  se  be  sufficient  to  hold  

everyone of them criminally  liable  for the offence committed by the  

others unless there is sufficient evidence on record to show that each  

intended  to  or  knew  the  likelihood  of  commission  of  such  an  

offending act, being a member of unlawful assembly as provided for  

under Section 142 IPC. It may also not be a case of group rivalry or  

sudden or free fight or an act of the member of unlawful assembly  

beyond the common object. (Vide: Baladin & Ors. v. State of U.P.,  

AIR 1956  SC 181;  Masalti  v.  State  of  U.P.,  AIR  1965  SC 202;  

Chandra Bihari Gautam & Ors. v. State of Bihar, AIR 2002 SC  

1836;  Ramesh  & Ors.  v.  State  of  Haryana,  AIR 2011  SC 169;  

Ramachandran & Ors. Etc. v. State of Kerala, AIR 2011 SC 3581;  

Onkar & Anr. v. State of Uttar Pradesh,  (2012) 2 SCC 273; Roy  

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Farnandez  v.  State  of  Goa  &  Ors., AIR  2012  SC  1030;  and  

Krishnappa & Ors. v. State of Karnataka, AIR 2012 SC 2946).  

17. Thus, for resorting to the provisions of Section 149 IPC, the  

prosecution  has to  establish  that  (i)  there  was an assembly  of  five  

persons;  (ii)  the assembly  had a  common object;  and (iii)  the said  

common object was to consist one or more of the five illegal objects  

specified in Section 141 IPC.  

There is evidence on record to show that all  the respondents  

had, in fact,  come together on a tractor.   They had started abusing  

Prahlad  (deceased).   Mahesh,  absconding  accused,  had hit  Prahlad  

(deceased),  with  an  iron  rod,  on  his  head,  and  the  respondents-  

accused had also hit him with lathis. Even after inflicting first injury  

on the head by Mahesh, beating by the present respondents went on  

and thereafter, the accused  ran away. Therefore, in light of  such a  

fact-situation, it  is clear that 5 persons had come fully armed, in a  

vehicle and all of them caused injuries to Prahlad, who succumbed to  

such injuries.   Here,  it  is  actually a  case where common object  of  

unlawful assembly stood translated into action and members of the  

assembly  succeeded  in  their  mission.  Thus,  the  view taken  by the  

High Court that the respondents are liable for the acts attributed to  

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them individually and not collectively,  being perverse is not  worth  

acceptance.   

18. The High Court has committed an error in  presuming that the  

case  was  one  where  a   free fight  had occurred,  and therefore,  the  

provisions  of  Sections  148  and  149  IPC  were  not  attracted;  the  

complainant  party were aggressors;  and there  had been some soft  

pedaling in the investigation. Such findings are based on no evidence  

whatsoever, and hence, are held to be perverse.

19. So  far  as  the  injuries  found  on  the  person  of  accused  Shiv  

Charan  and  Kedar  are  concerned,  the  injuries  of  Shiv  Charan  are  

merely  abrasions.  Dr.  M.K.  Meena  (DW.1)  opined  that  as  injuries  

found on the person of Kedar could be caused by fall on stone and  

some of his injuries were of superficial nature.  The Trial Court dealt  

with  issue  of  injuries  suffered  by  the  said  accused  by  making  

reference to the statement of Mohanlal (DW.2), who had stated that  

all the accused persons were going on a tractor to attend a claim case.  

The said  witness  was  also  with them and when they reached near  

Bandawal,  6-7 persons surrounded the tractor  and stopped it.  They  

started beating Kedar and Shiv Charan and caused injuries to them.

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In fact, this has been a consistent case of all the accused persons  

while their statements were recorded under Section 313 Cr.P.C.  None  

of the accused has explained how the injuries were caused to Prahlad  

(deceased).  The  Trial  Court  appreciated  the  evidence  and  came to  

conclusion that the respondents-accused were the aggressive party and  

they were five in numbers and all of them were armed. Thus, the High  

Court could not be justified in reversing the findings of fact recorded  

by the Trial Court without making reference to any evidence.   

20. Non-explanation of serious injuries on the person of  accused  

may be fatal to the prosecution case.  But where the injuries sustained  

by  the  accused  are  minor  in  nature,  even  in  absence  of  proper  

explanation  of  prosecution,  story  of  the  prosecution  cannot  be  

disbelieved.  (Vide:  Laxman v. State of Maharashtra,  (2012) 11  

SCC 158)

21. This Court considered the issue in Mano Dutt & Anr. v. State  

of Uttar Pradesh, (2012) 4 SCC 79 and held as under:

“38.  The  question,  raised  before  this  Court  for  its   consideration,  is  with  respect  to  the  effect  of  non- explanation of injuries sustained by the accused persons.   In this regard, this Court has taken a consistent view that   the normal  rule  is  that  whenever  the accused sustains   injury in the same occurrence in which the complainant   

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suffered the injury,  the  prosecution  should explain the   injury  upon the  accused.  But,  it  is  not  a  rule  without   exception that if the prosecution fails to give explanation,   the prosecution case must fail.

39. Before the non-explanation of the injuries on the   person of the accused, by the prosecution witnesses, may   be held to affect the prosecution case, the Court has to   be satisfied of the existence of two conditions:

(i) that the injuries on the person of the accused were   also of a serious nature; and

(ii) that such injuries must have been caused at the   time of the occurrence in question.

40.  Where  the  evidence  is  clear,  cogent  and   creditworthy;  and where  the  court  can distinguish  the   truth from falsehood, the mere fact that the injuries on   the  person  of  the  accused  are  not  explained  by  the   prosecution cannot, by itself, be the sole basis to reject   the  testimony  of  the  prosecution  witnesses  and   consequently,  the  whole  case  of  the  prosecution.   Reference in this regard can be made to Rajender Singh   v. State of Bihar, (2000) 4 SCC 298, Ram Sunder Yadav   v. State of Bihar, (1998) 7 SCC 365 and Vijayee Singh v.   State of U.P., (1990) 3 SCC 190.”

In view of the above, we are of the opinion that the High Court  

has  not  considered  the  issue  of  non-explanation  of  injuries  on  the  

person of accused in correct perspective.   

22. In view of above, the appeals succeed and are allowed.  The  

judgment and order impugned before us is set aside and the judgment  

and order of the Trial Court is restored. The respondents are directed  

to surrender within a period of 4 weeks from today, failing which, the  

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learned  Additional  Sessions  Judge  (Fast  Track),  Gangapur  City,  is  

directed to take them into custody and send them to jail to serve the  

remaining part of the sentence.  A copy of the order be sent to the  

learned Additional Sessions Judge (Fast Track), Gangapur City, for  

information and compliance.   

……………………………...J.                                                                 [DR. B.S. CHAUHAN]  

  ...…….…….......................... J.                                                                 [DIPAK MISRA]  NEW DELHI;  July 1,  2013  

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