Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO.1525 OF 2009

Vinubhai Ranchhodbhai Patel … Appellant

Versus

Rajivbhai Dudabhai Patel & Others …     Respondents

WITH

CRIMINAL APPEAL NOS.1526­1527 OF 2009  

J U D G M E N T  

Chelameswar, J.

1. On 11.07.1992, at about 10.10 pm, an incident occurred in

the village of Nana Ankadia leaving 3 persons dead and 5 persons

injured. It appears from the judgment of the High Court:

“…information about the incident was conveyed by  wireless message by PSO of Amreli (Rural) Police Station to PSI, Mr. NG Rajput. On the basis of the said information, PSI, Rajput had gone to village Nana Ankadia and found three dead bodies lying near the shop of Bhikabhai and after getting some further information, he had gone to Amreli Hospital and recorded complaint from Vinu Ranchhod, which was registered at about 1.30 a.m. on 12.07.1992. On the basis of the said complaint, PSI, Rajput started investigation by recording statements, drawing panchnamas and sending the dead bodies for post mortem etc.”

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2. On completion of investigation, a charge­sheet came to be

filed against 15 accused because the remaining two accused A­16

and A­17 were absconding for some time. The matter was

committed to the Sessions Court of Amreli as offences  were

exclusively triable by the Court of Sessions. In Sessions Case No.

118/1992, trial  was conducted against 15 accused. The trial

insofar as the two absconding accused was segregated from the

trial of the remaining even after they were apprehended and they

were put to trial separately in Sessions Case No. 58/98 before the

Special Judge of the Fast Track Court, Amreli.  

3. In Sessions Case No.118/1992, the Sessions Court by its

judgment dated 17.01.1996 recorded the conviction of A­1, A­5,

A­10 and A­12 as follows:

“Prosecution has proved the criminal offence punishable under section 302 and 148 of the Indian Penal Code and under section 135(1) of the  B.P. Act, against the accused  No. 10 and [12] respectively Nanjibhai Khodabhai and Ratilal Nagji, and therefore the accused No. 10 and 12 are convicted under sections 302, 148 IPC and section 135(1) of the B.P. Act. The accused No. 1 Ravji Duda is convicted for the criminal offence punishable under section 326 and 148 of IPC and section 135(1) of B.P. Act. Whereas the accused No. 5 Manubhai Makanbhia is convicted for the criminal offence punishable under section 326, 323 and 148 of the IPC and section 135(1) of the B.P. Act.  Whereas the accused other than these accused, the prosecution has not been able to prove their case beyond doubt therefore the accused No. 2,3,4,6,7,8,9,11,13,14 and 15 are given the benefit of doubt and are acquitted, and if they are not required in any other matter, then the accused Nos. 2,3,4,6,7,8,11,13,14 be released from

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judicial custody. The accused No. 2,4,9 and 15 are enlarged on bail, their bail bonds are ordered to be cancelled.”

And by separate order dated 17.01.1996, A­10 and A­12 were

sentenced to imprisonment for life for an offence punishable

under Section 302 Indian Penal Code [hereinafter referred to as

“IPC”]; one year rigorous imprisonment for an offence punishable

under Section 148 IPC; and six months rigorous imprisonment

for an offence punishable under Section 135(1) of  the Bombay

Police Act [hereinafter referred to as “BP Act”].

4. A­1 was sentenced to suffer six years rigorous imprisonment

and a fine of Rs.1000/­ for an offence under Section 326 IPC and

one year rigorous imprisonment for an offence punishable under

Section 148 IPC and six months rigorous imprisonment for an

offence under Section 135(1) of the BP Act.

5. A­5 was sentenced to six years rigorous imprisonment and

fine for an offence punishable under Section 326 IPC and one

year rigorous imprisonment for an offence punishable under

Section 148 IPC, six months rigorous imprisonment for an

offence under Section 323 IPC and six months rigorous

imprisonment for an offence under Section 135(1) of the BP Act.

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6. All the  convicted accused preferred appeal  No.  166/1996

before the High Court of Gujarat challenging conviction and

sentence. The State of Gujarat filed Criminal Appeal

No.167/1996 challenging the acquittal of the remaining thirteen

accused. It must be mentioned here that the original complainant

also filed a Criminal Revision Petition No.138/1996 challenging

the decision of the Sessions Court acquitting eleven of the

accused.  

7. The two absconding accused nos.16 and 17 “were tried

separately for the offences punishable under sections 147, 148, 120B, 302

and 307 read with section 149 of IPC and under Section 25(1)(A) of the Arms

Act and under Section 135 of Bombay Police Act in Sessions Case

No.58/98.”1  They were found not guilty by the Fast Track Court,

Amreli by judgment dated 19.07.2003. The State of Gujarat filed

Criminal Appeal No.1226/2003 against the acquittal of accused

nos.16 and 17.

8. All the appeals and the revision were clubbed together and

disposed  of  by the  High Court  by  a  common  judgment  dated

1 2.2, Judgment of the High Court.

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5.10.2004,  which  is the subject  matter  of the various appeals

before us.

9. The appeal of  A­10 and A­12 was dismissed by the High

Court. The appeal of accused nos.1 and 5 was partly allowed. The

State appeals challenging acquittals of various accused were

dismissed along with the revision filed by the  de facto

complainant. Hence, these appeals, by the State and the de facto

complainant.

10. Admittedly  all the  convicts  have by now served out their

sentences. Some of the accused have even died.

11. An examination of the  record  in  these appeals left  us in

distress.  The  judgments of  the Sessions Courts as well  as the

High Court leave too much to be desired.  

12. We notice the following striking features from the judgment

of the Sessions Court that:  

(i) Charges have not been framed in accordance with the requirements of the CrPC;

(ii) There appears to be a charge (however defectively framed), conviction and sentencing of 4 accused for an offence under Section 148 IPC;

(iii)  There is an omnibus accusation that the accused committed offences falling  under  Sections  143,

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147, 148 and vicariously liable by virtue of Section 149  IPC  for the  offence  of  Section 302 IPC;  

(iv) The judgment does not contain any clear finding:

(a)  regarding the existence of an ‘unlawful assembly’ i.e. regarding the accusation of an offence punishable under Section 143 IPC;

(b) number  of  persons (identified  or  not)  who participated in the attack on the deceased and the injured; or  

(c)  the identity of such participants.  

(v) The  judgment is  singularly  silent regarding  the post mortem examination report of one of the 3 deceased and the evidence of the doctor who conducted the post mortem examination. It only discusses the evidence of the doctor who conducted the post mortem on the dead bodies of two of the deceased;

(vi) The judgment does not specify whether the accused 10 and 12 are guilty of causing the death of all the 3 deceased or one of them;  

(vii) The legal analysis and appreciation of evidence in the context of the question of vicarious liability is wholly unsubstantial and not in accordance with the settled principles of law; and

(viii) There is material on record to indicate that even some of the accused received injuries in the transaction but no material is on record indicating  whether  any  crime is registered  and investigated or anybody is prosecuted in that regard.   

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13. The  judgment in Sessions Case No.118/1992 commences

with an omnibus statement:

“In this case against the present accused, there are charges of offences under sections 302, 307, 324, 147, 148, 149, 120B of IPC and section 25(1)(aa) of the Arms Act and section 135 of the Bombay Police Act, for these offences the charge sheet is filed.”

Later in the same paragraph it is stated:

“Fifteen accused in the case have remained present before the court, my learned predecessor has on 21/3/1994 below Exh. 1 on charges of  offences punishable  under  sections 143,  147, 148, 302 read with 149, 120­b, 307 read with 147, 114, 120­b of the Indian Penal Code and against the accused Nos. 7, 8 and 11 charges under section 27 of the Arms Act, and against all the accused  the  offence  punishable  under  section 25 of the Indian Telegraphs Act, and for carrying weapons the charges of violation of the Notification by the District Magistrate Amreli, for which against the accused Nos. 2,4,9,15,10,12,13, 1, 3, 6, 7 and 8 the charges of offence punishable under section 135 of the Bombay Police Act, charges were pronounced against the accused.”

It appears from the above that no clear charges appear to have

been framed.  At any rate, no document is brought to our notice

showing the charges  framed by  the Court  in spite of  repeated

enquiry.   It must be remembered that it is a case where three

persons died and five persons were injured allegedly in an attack

by  all the accused.  Causing  death to each  one of the three

persons or causing injury to each one of the five persons is a

distinct offence. Similarly, an  offence  under  Section  307 is a

distinct offence specific to a particular victim. The offences under

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Sections 147 and 148 are distinct offences.  Section 149 IPC does

not create a separate offence but only declares the vicarious

liability of all the members of an unlawful assembly in certain

circumstances.  

14. It was held by a three­judge bench of this Court in

Shambhu Nath Singh & Others v. State of Bihar2:  

“Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for  acts  done in  prosecution of the  common object  of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object”

  [emphasis supplied]

However, there are benches of a lesser smaller strength3  which

have observed that Section 149 creates a specific  and distinct

offence. In view of the fact that decision in  Shambu Nath Singh

was decided by a larger bench, the law declared therein must be

taken  to  be declaring the correct legal  position.  With utmost

respect,  we may also add that the same is  in accord with the

settled principles of the interpretation of the statutes having

regard to the language of Section 149 and its context.  

2 AIR 1960 SC 725 3 Sheo Mahadeo Singh v. State of Bihar, (1970) 3 SCC 46 paragraph  9;  Lalji v. State of Uttar Pradesh, 1989 (1) SCC 437 paragraph 9

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15. Chapter XVII of the Code of Criminal Procedure [hereinafter

referred to as “CrPC”]  deals with “charges”  in a criminal case.

Sections 211 to 213 deal with the particulars which are required

to be contained in a charge in a criminal trial.  These provisions

are made to ensure a fair procedure by which a person accused

of an offence should be tried – a procedure in compliance with

the requirement of the mandate of Article 21 of the Constitution

of India.   The accused are entitled in law to know with precision

what is the charge on which they are put to trial. It was held by

this Court in Esher Singh v. State of Andhra Pradesh4:

“It is  the precise  formulation of  the specific  accusation made against a person  who is entitled to know its  nature at the earliest stage.  A charge is not an accusation made or information given in the abstract,  but an accusation made against a person in respect of an act committed or omitted in violation of  penal law  forbidding  or  commanding it. In  other words, it is an accusation made against a person in respect of an offence alleged to have been committed by him. A charge is formulated after inquiry as distinguished from the popular meaning of the word as implying inculpation of a person for an alleged offence as used in Section 224 of the IPC.”

[emphasis supplied]

16. In the case on hand where three persons died, the charge

under Section 302  must have been framed on three counts

against specifically named accused with respect to each of the

deceased.  Assuming  for the sake of  argument, that  all the 17

4 (2004) 11 SCC 585, para 20

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persons are accused of causing the death of each one of the three

deceased, distinct charges should have been framed with respect

to each of the deceased. It is also necessary that the court should

record a  specific finding  as to the  guilt  of the  accused under

Section 302 IPC qua the death of a named deceased. If different

accused are prosecuted for causing the death of the three

different deceased, then distinct charges should have been

framed specifying which of the accused are charged for the

offence of causing the death of which one of the three different

deceased. Charges should also have been proved clearly

indicating which of the accused is charged for the offence under

Section 302 simpliciter or which of the accused are vicariously

liable under Section 149 IPC for causing the death of one or more

of the three deceased. Of course, none of the accused is

eventually found vicariously guilty of the offence under Section

302 IPC read with Section 149 IPC.

17. By definition of the offences covered under Sections 147 and

1485, a person cannot be charged simultaneously with both the

offences by the very nature of theses offences.  A person can only

5  Section 146 IPC defines the offence of rioting.  Section 147, IPC prescribes punishment for offence of rioting. Section 148, IPC prescribes punishment for offence of rioting armed with deadly weapons.

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be held guilty of an offence punishable either under Section 147

or Section 148.

18. The legal consequences of framing defective charges or

omission in charges was considered by this Court in Dalbir Singh

v. State of U.P.6  and this Court held as follows:  

“Section 464 of the Code deals with the effect of omission to frame, or absence of, or error in, charge. Sub­section (1) of this section provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground  that  no charge was  framed or  on  the  ground of  any error, omission or irregularity in the charge including any misjoinder  of  charges,  unless, in the  opinion of the  court  of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.”

It is obvious from the above that an erroneous or  irregular or

even absence of a specific charge shall not render the conviction

recorded by a court invalid unless the appellate court comes to a

conclusion that failure  of justice  has in fact been  occasioned

thereby.   

19. In cases where a large number of accused constituting an

‘unlawful assembly’ are alleged to have attacked and killed one or

more persons, it is not necessary that each of the accused should

inflict fatal injuries or any injury at all.  Invocation of Section 149

is essential in such cases  for  punishing the members of  such

6 (2004) 5 SCC 334

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unlawful assemblies on the ground of vicarious liability even

though they are not accused of having inflicted fatal injuries in

appropriate cases if the evidence on record justifies.   The mere

presence of an accused in such an ‘unlawful assembly’ is

sufficient to render him vicariously liable under Section 149 IPC

for causing the death of the victim of the attack provided that the

accused are told that they have to face a charge rendering them

vicariously liable under Section 149 IPC for the offence

punishable under Section 302 IPC.   Failure to appropriately

invoke and apply Section 149 enables large number of offenders

to get away with the crime.  

20. This Court in Bala Seetharamaiah v. Perike S. Rao7 held:

“8.  Unfortunately, the  Sessions  Judge did  not frame charge against the accused persons for offence punishable under Section 302 IPC read with Section 149 IPC. It is also important to note that the relevant prosecution allegations so as to bring in the ingredients of the offence punishable under Section 302 IPC read with Section 149 IPC also were not incorporated in the charge  framed by the Sessions Judge. The accused were not told that they  had to face charges of being  members of an unlawful  assembly and the common object  of  such assembly was to commit murder of the deceased and in furtherance of that common object murder was committed and thereby they had a constructive liability and thus they committed the offence punishable under Section 302 IPC read with Section 149 IPC. Of course the mere omission to mention Section 149 may be considered as an irregularity, but failure to mention the nature of the offence committed by them cannot be said to be a mere

7 (2004) 4 SCC 557, para 8.

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irregularity. Had this mistake been noticed at the trial stage, the Sessions Judge could have corrected the charge at  any  time before the delivery  of the judgment. In  the  instant  case, the accused were told to face a charge punishable under Section 302 simpliciter and there was no charge under Section 302 IPC read  with Section 149 IPC. Therefore, it is not possible to reverse  the conviction of the accused under  Section 326  IPC and substitute the conviction for the offence punishable under Sections 302/149 IPC as there was no charge framed against them for such offence.”

21. When a large number of people gather together (assemble)

and commit an offence, it is possible that only some of the

members of the assembly commit the crucial act which renders

the transaction an offence and the remaining members do not

take part in that ‘crucial act’ ­ for example in a case of murder,

the infliction  of the fatal injury. It is in those  situations, the

legislature thought it fit as a matter of legislative policy to press

into service the concept of vicarious liability for the crime.8

Section 149 IPC is one such provision.  It is a provision conceived

in  the  larger  public interest to maintain  the  tranquility  of the

society and prevent wrong doers (who actively collaborate or

assist the commission of offences) claiming impunity on the

8 Ram Gope v. State of Bihar, AIR 1969 SC 689 paragraph 5: “… When a concerted attack is made on the  victim by a large number of persons it is often difficult to determine the actual part played by each offender. But  on that account for an offence committed by a member of the unlawful assembly in the prosecution of the  common object or for an offence which was known to be likely to be committed in prosecution of the common  object, persons proved to be members cannot escape the consequences arising from the doing of that act which  amounts to an offence.”  

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ground that their activity as members of the unlawful assembly is

limited.    

The responsibility of the prosecution and/or of the Court (in

a case like the one at hand where large numbers of people (5 or

more) are collectively accused to have committed various offences

and subjected to trial) ­ in examining whether some of the

members of such group are vicariously  liable  for  some offence

committed by some of the other members of such group ­

requires an analysis.  Such analysis has two components – (i) the

amplitude and the vicarious liability created under Section 149;

and  (ii) the facts  which are required to  be  proved  to  hold  an

accused vicariously liable for an offence.  

22. To understand the true scope and amplitude of Section 149

IPC it is necessary to examine the scheme of Chapter VIII

(Sections 141 to 160) of the IPC which is titled “Of the offences

against the  public tranquility”.  Sections  141  to  158 deal  with

offences committed collectively by a group of 5 or more

individuals.  

23. Section 141 IPC declares an assembly of five or more

persons to be an  ‘unlawful  assembly’ if the common object  of

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such assembly is to achieve any one of the five objects

enumerated in the said section.9   One of the enumerated objects

is to commit any offence.10  “The words falling under section 141, clause

third “or other offence” cannot be restricted to mean only minor offences of

trespass or mischief. These words cover all offences falling under any of the

provisions of the Indian Penal Code or any other law.”11  The  mere

assembly of 5 or more persons with such legally impermissible

object itself constitutes the offence of unlawful assembly

punishable under Section 143 of the IPC. It is not necessary that

any overt act is required to be committed by such an assembly to

be punished under Section 143.12

24. If force or violence is used by an unlawful assembly or any

member thereof in prosecution of the common objective of such

assembly, every  member of such assembly is declared  under

Section 146 to be guilty of the offence of rioting punishable with

two years  imprisonment under Section 147.   To constitute the

offence of rioting under Section 146, the use of force or violence

need not necessarily result  in the achievement of the common

9 See Yeshwant & Others v. State of Maharashtra, (1972) 3 SCC 639 10 Section 40 “offence”.- Except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the  word “offence” denotes a thing made punishable by this Code. 11Manga alias Man Singh Vs. State of Uttarakhand (2013) 7 SCC 629  12 See Dalip Singh and Ors. Vs. State of Punjab , AIR 1953 SC 364.

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object.13 In other words, the employment of force or violence need

not result in the commission of a crime or the achievement of any

one of the five enumerated common objects under Section 141.

25. Section 148 declares that rioting armed with deadly

weapons is a distinct offence punishable with the longer period of

imprisonment (three years).   There is a distinction between the

offences  under  146 and 148.  To constitute  an offence  under

Section 146, the members of the  ‘unlawful assembly’ need not

carry weapons.   But to constitute an offence under Section 148,

a person  must be a  member of an  unlawful assembly, such

assembly is also guilty of the offence of rioting under Section 146

and the person charged with an offence under Section 148 must

also be armed with a deadly weapon.14

26. Section 149 propounds a vicarious liability15  in two

contingencies by declaring that  (i)  if  a member of an unlawful

assembly commits an offence in prosecution of the common

object of that assembly,  then every member of such unlawful

assembly is guilty of the offence committed by the other members

13 See Sundar Singh Vs. State, AIR 1955 All 232 (FB) 14See Sabir v. Queen Empress, (1894) ILR 22 Cal 276; In re Choitano Ranto and Others, AIR 1916 Mad 788 15 See Shambu Nath Singh Vs. State of Bihar, AIR 1960 SC 725.

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of the  unlawful  assembly  and  (ii) even  in  cases  where  all the

members of the unlawful assembly do not share the same

common object to commit a particular offence,  if they had the

knowledge of the  fact that some of the other members of the

assembly are likely to commit that particular offence in

prosecution of the common object. The scope of Section 149 IPC

was enunciated by this Court in Masalti16:

“The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified  by  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  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.”

27. It can be seen from the above, Sections 141, 146 and 148

create  distinct  offences.  Section 149 only  creates  a  vicarious

16Masalti v. State of U.P., AIR 1965 SC 202.

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liability.   However, Sections 146, 148 and 149 contain certain

legislative declarations based on the doctrine of vicarious liability.

The doctrine is well known in civil law especially in the branch of

torts,  but is  applied  very sparingly in  criminal law only  when

there is a clear legislative command.  To be liable for

punishment under any one of the provisions, the

fundamental requirement is the existence of an unlawful

assembly as defined under Section 141  made punishable

under Section 143 IPC.  

 28. The concept of an unlawful assembly as can be seen from

Section 141 has two elements;

(i) The assembly should consist of at least five persons; and

(ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein.

29. For recording a conclusion, that a person is (i) guilty of any

one of the offences under Sections 143, 146 or 148 or  (ii)

vicariously liable  under  Section 149  for  some other  offence, it

must first be proved that such person is a member of an

‘unlawful assembly’ consisting of not less than five persons

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irrespective of the fact whether the identity of each one of the 5

persons is proved or not. If that fact is proved, the next step of

inquiry is whether the common object of the unlawful assembly is

one of the 5 enumerated objects specified under Section 141 IPC.

30. The common object of assembly is normally to be gathered

from the circumstances of each case such as the time and place

of the gathering of the assembly, the conduct of the gathering as

distinguished  from the conduct of the  individual  members are

indicative of the common object of the gathering. Assessing the

common object of an assembly only on the basis of the overt acts

committed by such individual members of the assembly, in our

opinion is impermissible. For example, if more than five people

gather together and attack another person with deadly weapons

eventually resulting in the  death of the  victim, it is  wrong to

conclude that one or some of the members of such assembly did

not share the common object with those who had inflicted the

fatal injuries (as  proved  by  medical evidence);  merely  on the

ground that the injuries inflicted by such members are relatively

less serious and non fatal.

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31. For mulcting liability on the members of an unlawful

assembly under Section 149, it is not necessary that every

member of the unlawful assembly should commit the offence in

prosecution of the common object of the assembly. Mere

knowledge of the likelihood of commission of such an offence by

the members of the assembly  is sufficient. For example, if five

or more members carrying AK 47 rifles collectively attack a victim

and cause his death by gunshot injuries, the fact that one or two

of the members of the assembly did not in fact fire their weapons

does not mean that they did not have the knowledge of the fact

that the offence of murder is likely to be committed.  

32. The identification of the common object essentially requires

an assessment of the state of  mind of the  members of the

unlawful assembly. Proof of  such mental condition is normally

established by inferential logic.   If a large number of people

gather at a public place at the dead of night armed with deadly

weapons like axes and fire arms and attack another person or

group of persons, any member of the attacking group would have

to be a moron in intelligence if he did not know murder would be

a likely consequence.

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33. The Sessions Court purported to frame ‘issues’ – a practice

statutorily mandated under the Code of Civil Procedure as one of

the ingredients of the adjudication of a suit.   But, we are

informed that in the  State  of  Gujarat the  practice  of framing

“issues” is prevalent even in the trial of a criminal case.  Be that

as it may, obviously ‘issues’ are not the same as “charges”.  They

are not framed prior to the commencement of trial.  They are only

‘identified’ at the time of writing the judgment.  

34. Issue Nos.2 and 4 framed by the Sessions Judge are with

respect to offence of unlawful assembly, rioting and the vicarious

liability under the IPC.  Issue Nos. 2 and 4 read as follows:­

“(2)   Whether the prosecution has proved that, the accused and the persons of the complainant party are the Kadva and Leuva Patels  of teh Nana Ankadiya,  Taluka Amreli,  and due to the enemity between them on 11/7/92 at about 22­15 at night near the Nana Ankadiya village Bus stand, near the shop of Bhikhabhai in the public place all the accused in this matter and the absconding accused  Chandubhai Vallabhbhai and Vallabhbhai Khodabhai, thus all of these had constituted an illegal assembly and with the common intention of killing the Leuva Patels of the Nana Ankadiya village, attempted to murder, and at that above time and place, all  these accused and the absconding accused with the intentions of achieving their common object, caused rioted and committed criminal offence punishable under section 143, 147?

(4)  Whether the prosecution is able to prove that, the accused had for achieving the common object of their illegal assembly, made use of the weapons carried by them and had assaulted Chhaganbhai Premjibhai Patel,  Madhubhai  Mohanbhai Patel and Pragjihai Parbatbhai Patel and fired at them and by such act they were well aware that they would certainly be killed and

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inspite of this  intentionally and with the intentions of killing, caused grievous injuries, and all the three persons were assaulted and murdered,  the said act  was committed by the accused No. 2,4,5 and 9 using stick, and accused No. 10, 12 using sword, and accused No. 1, 3 and 6 using their dhariya, all three deceased were caused injuries and murdered, and thus the accused have committed criminal offence punishable under section 302, 149 and 114 of the IPC”

[emphasis supplied]

35. Issue No. 2 makes a reference  to all the accused  put to

trial along with absconding accused (put to trial subsequently in

Sessions Case No. 58) in the context of the offences of the

unlawful  assembly and rioting. Issue  No.  4  does  not  make  a

reference to “all the accused”, in the context of the offences under

Sections  302  read  with  Section 149  IPC.  But in  view of the

reference to the illegal (obviously the learned Judge meant

unlawful) assembly we assume that the Sessions Court intended

to examine the vicarious  liability  under Section 149 of  all the

accused in the context of the death of the three victims.   Since

the prosecution invoked Section 149, charges should have been

framed specifying which of the accused are sought to be

punished for which offence with the aid of Section 149.

36. From the judgment of the Sessions Court, we do not see any

clear findings recorded (i) as to the existence of an  unlawful

assembly, (ii) if it existed, how many (number of the members)

22

were present in the unlawful assembly.  It must be remembered

that the accusation is that all the 17 accused were members of

the unlawful assembly.  There appears to be an accusation of the

commission of the offence under Section 143 IPC.   There is no

finding whether the assembly consisted of 17 members or less

(number) and which of the 17 accused were present (the identity)

in the  assembly.  Nor is there  any  clear finding regarding the

common object  of the  assembly.  Consequentially, there  is  no

finding recorded  by the  Sessions Court  whether  an offence  of

unlawful assembly punishable under Section 143 was committed

by all or some of the accused.  The  Trial  Court recorded the

conviction under Section 148 IPC against 4 accused.  Logically it

should follow that the trial court was of the opinion that there

was an unlawful assembly. That  means  more than 5 people

participated in the attack. In such a case even assuming for the

sake of argument the identity of the accused (other than the 4

convicts) is  not proved beyond reasonable doubt,  A­1 and A­5

who were found to have been guilty of the offence under Section

148 should normally have been found vicariously guilty of  the

offence of murder along with A­10 and A­12 (provided of course

that they are not prejudiced by the improper framing of charges).

23

The record is not very clear whether the accused were told they

were to face a charge of being members of the unlawful assembly,

whose common object was to commit murder of the three

deceased.

37. Coming to the conviction of A­10 and A­12, the mere

statement in the Sessions Court’s judgment that two of the

accused were found guilty of offence punishable under Section

302 of  the IPC falls short of  the requirement of  law in a case

where more than one person died in the transaction. Equally the

other two accused who are convicted of other offences mentioned

earlier are entitled to know the details of the offence for which

they are convicted.  

38. We shall now examine the judgment of the High Court. The

High Court completely failed to take note of the defects in framing

of the charges.  

 The High Court recorded a finding at paragraph 19, that the

prosecution witnesses are trustworthy and they had witnessed

the incident. However, in paragraph 2017, the High Court records

17 “20.… However,  all  the PWs have not specifically involve all the accused.  Likewise,  there are certain discrepancies in their evidence regarding the part played by them, the weapons carried by them etc., that in our opinion is natural as all the accused, 17 in number came all of a sudden and started assaulting and that too during night hours when visibility was also low.  Because of the same, the learned trial judge acquitted A-2, A-3, A-4, A-6, A-7, A-8, A-9, A-11, A-13, A-14 and A-15 by giving benefit of doubt.  In other words, the learned

24

that there are discrepancies in the evidences of PWs regarding

the part played by each of the accused, the weapons carried by

them, etc.. The High Court takes note of the fact that the

Sessions  Court acquitted  11  accused  by giving the  benefit of

doubt.  To us, it is  not  very  clear  whether the  Sessions Court

doubted the  very  presence  of the  11 accused in the  unlawful

assembly or the Sessions Court doubted the very existence of an

‘unlawful assembly’  for the lack of proof of either the requisite

number of the accused to constitute the unlawful assembly or for

the lack of proof of the common object which renders the

assembly to be an unlawful assembly (even if the court concluded

that  more than 5  people  participated in the transaction).  The

High Court  readily  drew an  inference  that the Sessions Court

disbelieved the case of the prosecution regarding the existence of

an unlawful assembly, in our opinion, a very unsatisfactory way

of analyzing the case of the prosecution vis­à­vis the vicarious

liability of the accused under Section 149.  

trial judge disbelieved the case of the prosecution of unlawful assembly and convicted the accused of their individual act.  After carefully examining the evidence on record, we are of the view that the presence of A-2, A-4, A-9 and A-15 who were alleged to have carried sticks, is not established.  The complainant involved them in his further statement.  Likewise other PWs are also contradicted about the presence of these accused with their previous statement.  Apart from that in the post mortem reports of the deceased as well as in the injury certificates of the injured, the injuries do not reveal any injury possible with sticks.”  

25

The High Court recorded a finding with reference to 4

accused (A­2, A­4, A­9 and A­15) who according to the

prosecution were alleged to have carried sticks, that there is no

evidence on record to prove the same on three grounds: (i) that

their names were not to be found in the FIR (ii) that there were

improvements in the evidence of the PWs at various stages

regarding the presence of the four accused and (iii) that the

medical evidence does not disclose any injury which could have

been attributed to the beatings by sticks. In our opinion, the first

two reasons given by the High Court are legally tenable, however,

the third  reason, i.e. the  absence  of injuries  attributable to  a

stick,  need  not necessarily result  in a conclusion that the

accused  were  not present in the  unlawful assembly.  But the

absence of such injuries cannot said to be an irrelevant

consideration in arriving at a conclusion whether the four

accused participated in the unlawful assembly in the background

of the other two factors mentioned above. But a similar analysis

with respect to the seven of the other accused who were given the

benefit of doubt by the Sessions Court is lacking in the judgment

of the High Court.

26

Another important aspect of the matter is that at least one

of the accused (A­7) appears to have been injured in the

transaction and it appears from the judgment of the High Court

that an FIR in that regard was lodged.  A submission was made

that there was tampering with the record to screen the offence.18

This aspect of the matter has not been considered either by the

trial Court or by the High Court.  In fact, the judgment of the trial

Court contains further details regarding this aspect of the matter

but without recording any conclusive finding.

 39. The  question is  whether this court  would  be justified in

reversing the finding  of  acquittal in the  case  on hand on  the

grounds that (i) the framing of charges is egregiously erroneous

and not in accordance with the provisions of the CrPC; or (ii) the

courts below failed to record appropriate findings with respect to

the various offences which the accused are said to have

committed; or (iii) the 1st appellate court’s reasoning in declining

to reverse  a finding of  acquittal recorded by  the trial  court is

18 Impugned Judgment Para 6.  “ … Finally, Mr. Shethna submitted that investigation in the instant case is also not free from doubt.

According to him, the manner in which the FIR given by A-7, being the first in point of time, was treated and the manner in which the investigating officer expresses his ignorance in the hospital of the erasure made in the station diary etc. would go to show that a deliberate attempt is made to falsely involve the accused.”  

27

defective?  The answer to the question, in our opinion, should be

in the negative.

40. In  Sessions  Case  No.58/98 against A­16 and  A­17, no

evidence  was recorded independently.  On  the  other  hand, the

evidence recorded in Sessions Case No.118/1992 was marked as

evidence in Sessions Case No.58/1998. The Indian Evidence Act,

1872 does not permit such a mode of proof of any fact barring in

exceptional situations contemplated in Section 3319 of the Indian

Evidence Act.

41.  There is  no material  on record  to  warrant the  procedure

adopted by the Sessions Court. On that single ground, the entire

trial of Sessions Case No.58/98 is vitiated and is not in

accordance with procedures established by law. It is a different

matter that both the accused put to trial in Sessions Case

No.58/98 were acquitted by the Fast Track Court and the High

19 “33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. –– Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:  

Provided ––  that the proceeding was between the same parties or their representatives in interest; that the adverse party in

the first proceeding had the right and opportunity to cross-examine;  that the questions in issue were substantially the same in the first as in the second proceeding.  Explanation.–– A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the

accused within the meaning of this section.”

28

Court did not interfere with the conclusions recorded by the Fast

Track Court.

42. It is the grievance of the appellant that in spite of the gravity

of the offence and the evidence of the 5 injured witnesses, most of

the accused went scot free without any punishment and, hence,

this appeal.

We do understand the grievance of the appellant. The

following prophetic words of Justice V.R. Krishna Iyer20  deserve

to be etched on the walls of every criminal court in this country:

“6.  …  The cherished  principles or golden thread  of proof beyond reasonable doubt which runs through the web of our law should not be stretched  morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude  reflected in the  attitude that  a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any  practical system of justice  will then  break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned Author [ Glanville Williams in ‘Proof of Guilt’.] has sapiently observed, goes much beyond the simple fact that  just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted “persons” and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty  may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. …”

                                                [emphasis supplied]

20  In Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793, para 6

29

The  prophecy  came  true  when Section 21  of  TADA Act,  1987

burdened the accused to  prove  his innocence, and  when the

Parliament responded to the public outcry to impose more and

more harsher punishments to persons found guilty of the offence

of rape under Section 376 IPC etc.

43.  For all the abovementioned reasons, we should have

recorded a conclusion that there is a failure of justice in the case

on hand looked at from the point of view of either the victims or

even from the point of view of the convicted accused.   The most

normal consequence thereafter should have been to order a fresh

trial, but such a course of action after a lapse of 26 years of the

occurrence  of the  crime, in  our  opinion,  would  not  serve  any

useful purpose because as already indicated some of the accused

have died in the interregnum. We are not sure of the availability

of the witnesses at this point of time. Even if all the witnesses are

available, how safe it would be to record their evidence after a

quarter century and place reliance on the same for coming to a

gist conclusion regarding the culpability of the accused?

 44. We are of the opinion that the only course of action

available to this court is that the victims of the crime in this case

30

are required to be compensated by the award of public law

damages  in light  of the  principles laid  down by this  Court in

Nilabati Behera21.   In the circumstances, we are of the opinion

that the families of each of the deceased should be paid by the

State an amount of Rs. 25,00,000/­ (Rupees Twenty Five Lacs

Only) each and the injured witnesses, if still surviving, otherwise

their families are required to be paid an amount of

Rs.10,00,000/­ (Rupees Ten Lacs Only) each. The said amount

shall be deposited within a period of eight weeks from today in

the Trial Court, and on such deposit the said amounts shall be

distributed by the Sessions Judge, after an enquiry and

satisfying himself regarding the genuineness of the entitlement of

the claimants.  

 45. This case, in our opinion, is a classic illustration of how the

State failed in its primary constitutional responsibility of

maintaining law and order by its ineffectiveness in the

enforcement of criminal law.  In our opinion, the reasons for such

failure are many. Some of them are ­ (i) inefficiency arising out of

either incompetence or lack of proper training in the system of

21 Nilabati Behera (Smt) alias Lalita Behera (Through the Supreme Court Legal Aid Committee) v.  State of Orissa & Others, (1993) 2 SCC 746.

31

criminal investigation; (ii) corruption or political interference with

the investigation of crime;  (iii) less than the desirable  levels of

efficiency of the public prosecutors to correctly advise and guide

the investigating agencies contributing to the failure of the proper

enforcement of criminal law; and (iv) inadequate efficiency levels

of the bar and the members of the Judiciary (an offshoot of the

bar) which contributed to the overall decline in the efficiency in

the dispensation of criminal justice system.   

Over a period of time lot of irrelevant and  unwarranted

considerations  have crept into the selection and appointment

process of Public Prosecutors all over the country.   If in a case

like the one on hand where three people were killed and more

than five people were injured, if charges are not framed in

accordance with the mandate of law, the blame must be squarely

taken by both the bar and the bench. Another distressing feature

of the record in this case is the humungous cross examination of

the witnesses by the defense which mostly is uncalled for.

32

46. In view of the above, the appeals stand disposed of.

….....................................J.                                             (J. CHELAMESWAR)

….....................................J.                      (SANJAY KISHAN KAUL)

New Delhi May 16, 2018.

33

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1525 OF 2009

VINUBHAI RANCHHODBHAI PATEL                 APPELLANT(S)

                               VERSUS

RAJIVBHAI DUDABHAI PATEL & ORS.             RESPONDENT(S)

WITH

CRIMINAL APPEAL NO.1526-1527 OF 2009

O R D E R

In  view  of  the  situation  obtaining  on  the

record, we thought it fit to call for the assistance

of  Mr.S.Nagumuthu  and  Ms.Tarannum  Cheema,  learned

counsel to assist this Court.  We place on record the

invaluable  assistance  rendered  by  them  as  amicus

curiae.

We also deem it appropriate to place on record

the appreciation for the effort put in by Mr.A.Selvin

Raja, learned counsel, a young member of the Bar,

appearing for the appellant.

........................J.                               [J.CHELAMESWAR]

........................J.                               [SANJAY KISHAN KAUL] NEW DELHI MAY 16, 2018