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NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s).1887 OF 2019 (arising out of SLP (Crl.) No(s). 5666 of 2017)

STATE OF UTTAR PRADESH ...APPELLANT(S)

VERSUS

RAVINDRA @ BABLOO AND OTHERS     ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

 The State as appellant assails the acquittal of the three

respondents by the High Court, reversing their conviction under

Sections 302/149, 307/149, 147, 148 and 452 of the Indian Penal

Code ordered by the Trial Court.   

2. The assault took place on 10.01.2002 at about 4.30 PM.   Two

persons Mahendra Singh and Lokesh, who were father and son

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respectively, have been deceased.   PW­1, Smt. Mahendri, wife of

deceased Mahendra Singh, is an injured eye witness.  PW­3, the wife

of deceased Lokesh is also an eye witness. Five persons were originally

accused. One of the accused Satyendra @ Mintoo was deceased during

the course of the trial. The three respondents were armed with spade,

iron rod and country­made pistol respectively. The injuries found on

the deceased and the injured PW­1 are as follows:

Injuries of deceased Mahendra:  

i) Multiple  incised wounds of various sizes 18 cm x 4.5 cm x bone deep and 6 cm x 2 cm x bone deep on the back of left and right side  of  head,  back  of  head  and fresh  blood  was oozing from the head. The cleavage of the wound was clean out.

ii) Multiple incised  wounds  16 cm x  5 cm.  The  depth of the wound cannot be said. There was fresh bleeding from the left side face and neck. The edge was clean out.

Injuries of deceased Lokesh:

i) Incised wound 13 cm x 2 cm x bone deep on the back of right head just 3 cm above the right ear.

ii) Incised wound 10 cm x 4 cm x bone deep on the back of head just above the right ear and above the back  hairline. The largest incised wound was 18 cm x 1 cm and the smallest wound was 5 cm x 1 cm.

iii) Incised wound 9 cm x 2 cm x bone deep on left side face just beside the nose which was extended from the beginning of left eye till chin.

iv) Incised wound 8 cm x 2.5 cm was found on left side neck. One

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blood vessel under this wound was cut. v) Incised wound 5 cm x 5 cm x muscle  deep  in  front  of left

shoulder. vi) Incised wound 3 cm x 25 cm x muscle deep in the middle of

right hand. vii) Multiple contusions in the area of 14 cm x 8 cm in front of

right shoulder. viii) Incised wound 25 cm x 1 cm x muscle deep in the middle of

right hand. ix) Multiple straight abrasions of 24 cm found in the middle of

navel, stomach and chest. x) 3 cm x 1.5 cm punctured wound in the left gallinule region

(part of belly which connect waist) for which the intestine was coming out.

xi) Abrasion 3 cm x 1 cm was found on the front part of penis.

Injuries of PW­1, Mahendri:

i)  Incised wound 5 cm x 1 cm x bone deep on the let head,  back of left ear. There was fresh bleeding from the injuries  and the edge of the injury was clean cut.

ii) Incised wound 10 cm x 6 cm x bone deep on left wrist and  left forearm. There was fresh bleeding from the injuries and  the edge of the injury was clean cut.

Iii) Incised wound 7 cm x 2 cm x bone deep on right wrist.   There was fresh bleeding from the injury and the edge of the injury was clean cut.

iv) Incised wound 3 cm x 1 cm x muscle deep on right wrist.  There was fresh bleeding from the injury and the edge of the injury was clean cut.

3. The occurrence fueled by enmity occasioned due to a land

dispute is an admitted fact.  The High Court opined that in absence of

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injuries on the two deceased and the injured not being commensurate

to the nature of weapons possessed by the three respondents entitled

them to acquittal.  

4. Mr. Ravindra Kumar Raizada, learned counsel appearing for the

appellant, submitted that the High Court erred in setting aside a well­

considered order of conviction.   PW­1 was injured in the same

incident. The presence of PW­3 as an eye witness has also not been

doubted.   The number of injuries found on the injured and the two

deceased cumulatively corroborates the number of assailants. The

conviction of the co­accused Prem, on the evidence of the same

witnesses has not been interfered with. The allegations of assault by

the respondents is specific. Acquittal of the respondents, in view of the

nature of ocular evidence available, is unsustainable.

5. Mr. Ankul Chandra Pradhan, learned senior counsel appearing

for the respondents, submitted that the order of acquittal by the High

Court is well reasoned. There is discrepancy between the ocular and

medical evidence, which is a sufficient to sustain the acquittal.  If two

views are possible, the acquittal may not be interfered with.

6. We have  considered the submissions on behalf  of the  parties,

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perused the materials and evidence on record.

7. The original five accused are stated to have been armed with iron

rod, spade, sword, tabbal and country made pistol.   The charge was

under Section 302 read with149, Section 307 read with 149.  The

respondents fully armed, entered the house of the deceased Lokesh

and when the latter ran out for his safety, he was chased and

assaulted. One of the respondents fired at the deceased who fell down,

after which the others assaulted. Deceased Mahendra and PW­1 fell

over the deceased Lokesh to save him when they were also assaulted.

Eleven injuries have been found on the person of deceased Lokesh. A

spade, sword and tabbal are well capable of causing incised injuries.  

8. It is an undisputed fact evident from  the  allegations  and  the

evidence that the  accused who were  all  well  armed constituted an

unlawful assembly. The common object of the assembly and that it

was shared by all of them with awareness is also evident from their

conduct in  having  chased  and assaulted the  deceased  Lokesh and

then in  having  persisted  with the  assault even  after the  deceased

Mahendra and PW­1 fell over the former in an effort to protect him,

notwithstanding which the respondents persisted with the assault. In

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a case of a mob assault, especially when there is no doubt with regard

to the  ocular  evidence, to look for  corroboration of each  injury  by

correlating it with the evidence of a prosecution witness to a particular

accused and then to  discredit the  prosecution case on that  basis

cannot be upheld and is contrary to the principles of criminal

jurisprudence regarding common object and the necessary ingredients

for the same.  

9. The manner of occurrence, the fact that all the accused were well

armed, they chased the deceased Lokesh coupled with the assault on

those who tried to come to the rescue of the deceased, the number of

injuries on the two deceased and the injured leaves no doubt in our

mind that the assailants were most definitely more than two persons.

In the nature and number of injuries, there can be no doubt that the

assailants may well have been five in number. Likewise, the fact that

there may not be any firearm injury on the deceased is considered

irrelevant for fixing vicarious liability as member of an unlawful

assembly once the presence of the accused possessed of a weapon of

assault chasing the deceased along with others stands established by

reliable ocular evidence.    

10.  The  determinative factor is the  assembly consisting  of five  or

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more persons  fully  armed and who entertained one or more of the

common objects, as specified in Section 141. It cannot be laid down as

a general proposition of law that unless an overt act is proved against

a person, who is alleged to be a member of an unlawful assembly, it

cannot be said that he is a member of an assembly. The respondents

well  understood that the  assembly  was unlawful  and was  likely to

commit any of the acts which fall within the purview of Section 141.

IPC. The word “object” means the purpose or design and, in order to

make it “common”, it must be shared by all.  

11.  The “common object” of an assembly is to be ascertained from

the  acts and language of the  members comprising it, and from a

consideration of all the surrounding 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. Sharing of common object is a mental

attitude which is to be gathered from the act of a person and result

thereof. It is not necessary under  law that  in all  cases of unlawful

assembly, with an unlawful common object, the same must be

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translated into action or be successful.

12.  In Lalji and ors. vs. State of U.P.,  (1989) 1 SCC 437,  it was

observed:

“10.  Thus,  once the  court  holds that  certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it.”

13.  We, therefore, are unable to hold that there is such gross

variation between the ocular evidence and the medical evidence so as

to discredit an injured witness and an eye witness to order acquittal.

In  Kamaljit Singh vs. State of Punjab,  (2003) 12 SCC 155,   it was

observed:  

“8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter.  Unless  medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of

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evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the  High Court  cannot in this  case  be found fault with for its well­merited interference.”

14. The order of  the acquittal of  the respondents  is set aside and

they are directed to surrender within four weeks for serving out the

remaining period of their sentence. The appeal is allowed.

.……………………….J.  (Ashok Bhushan)                   

………………………..J.    (Navin Sinha)   

New Delhi, December 18, 2019