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CRIMINAL APPEAL NOS.493-495 OF 2009 Inder Singh & Ors. …..Appellants Versus State of Rajasthan …..Respondent

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.493-495 OF 2009

Inder Singh & Ors. …..Appellants

Versus

State of Rajasthan …..Respondent

W I T H

Criminal Appeal Nos.1238 of 2009; 1239 of 2009; 1241 of 2009; 1194 of 2011;
and 1892 of 2011.
J U D G M E N T
SHIVA KIRTI SINGH, J.

All these eight appeals arise out of one criminal case bearing FIR
No.188/01 dated 10.09.2001 of P.S. Sunail, Distt. Jhalwada (Rajasthan)
lodged by informant Amar Singh (P.W.15) against 29 named co-villagers. All
the 29 accused persons were chargesheeted by the police. After trial, five
accused were acquitted and the rest 24 were convicted for various offences.
Five appeals preferred by 22 convicts were disposed of by a common
judgment of the High Court dated 29.05.2008 which is impugned in 7 criminal
appeals – 6 of them lodged in 2009 and Criminal Appeal No.1892 of 2011 by
convict Kalu Lal lodged in 2011. Two of the convicts, namely, Ram Singh
and Kesar Singh (accused nos.24 and 4 respectively) approached the High
Court belatedly through jail appeals which were disposed of by judgment
dated 10.03.2011 which is impugned in Criminal Appeal No.1194 of 2011.
Since all the matters arise out of one criminal case, they have been heard
together and are being disposed of by this common judgment.
Before noticing the prosecution case and the main defence of the
appellants, it is noted that out of 29 accused who were put on trial,
accused nos.12, 15, 16, 22 and 23 (as per number in the trial court
judgment) were acquitted by the trial court. The High Court acquitted
accused no.17 whereas accused no.19 died during the pendency of his appeal
before the High Court. The records show that accused no.8, appellant Maan
Singh has died during the pendency of his appeal before this Court. Thus
presently there are 21 appellants who have been convicted of offences under
Sections 302/149, 307/149, 147 and 148 of the IPC. Accused nos.1, 2 and 3
have also been convicted for offences under Section 27 of the Arms Act,
1959. All have been awarded life imprisonment along with other sentences
which are to run concurrently.
Before adverting to the prosecution case, it is also useful to note that
the occurrence is alleged to have taken place on 10th September 2001 at
06:45 p.m. in Village Dhodi, at a distance of 18 kms. from the concerned
police station. The statement of informant Ram Singh (P.W.15) who was
seriously injured, was recorded on the same date at 09:30 p.m. in presence
of his uncle Chen Singh (P.W.17), by SHO at Camp Dhodi and formal FIR was
recorded on same date at 10:30 p.m. The FIR was duly communicated to and
seen by the Addl. Chief Metropolitan Magistrate on 11.09.2001. There were
29 accused persons named in the FIR, all residents of Village Dhodi. The
four deceased who died on account of assault in the same occurrence as well
as the injured informant and material eye witnesses, i.e., P.Ws.12, 14, 15,
17, 19 and 24 also belong to the same village. The genealogy prepared by
the defence and shown to us, discloses that at least accused no.8-Maan
Singh and his two sons accused nos.5 and 29 belong to the same larger
family as that of the four deceased and the injured informant Amar Singh.
Accused no.8-Maan Singh happens to be brother of deceased no.2-Bapu Singh
and deceased no.4-Manohar Singh whereas deceased no.1-Inder Singh and
deceased no.3-Nagu Singh are sons of deceased Manohar Singh. Informant
Amar Singh is son of deceased Bapu Singh. The accused persons named in the
FIR and chargesheeted by name never challenged their identification either
before the police or before the Magistrate. Nor there was any cross-
examination of the witnesses on the point of identification when the
witnesses in their depositions have referred to the accused persons and the
appellants by their name as well as village relationship.
According to the Parcha Bayan of Amar Singh (P.W.15) he was at his house at
around 06:45 p.m. of 10.09.2001 and at that time he heard cries of his
cousin Inder Singh (deceased no.1) from the side of a field known as
‘Patwari ka Khet’. He came out of the house and saw his uncle Maan Singh
(accused no.8) and 28 other named accused running behind Inder Singh. They
were armed with sword, gun, country-made pistol, lathi and gandasi. They
all together killed Inder Singh (deceased no.1). Then they ran towards
informant (P.W.15) and caused a sword blow at the wrist of his right hand.
On his cries, his father Bapu Singh (deceased no.2) came running to rescue
the informant. His uncle Maan Singh fired with his gun due to which Bapu
Singh fell down and died in the khaal in presence of everybody. His uncle
Manohar Singh (deceased no.4) and his son Nagu Singh (deceased no.3) also
came running to save them but the accused persons assaulted them also
leading to their death. Many persons of the village were watching the
incident. The accused persons had registered cases of theft of water motor
against deceased Inder Singh and he had been recently released from the
jail custody. The accused had declared that since police did not do
anything, now they would see Inder Singh. There was an existing dispute
over land between the informant side and accused Maan Singh and for these
reasons Maan Singh and his associates, armed with weapons had caused death
of four persons and had also caused injuries to the informant with an
intention to kill him. Informant claimed that he, his uncle Chen Singh
(P.W.17), his mother (P.W.16) and his wife could save themselves by hiding
in the house.
During trial, 24 witnesses were examined on behalf of the prosecution and
several documents were marked as Exhibits P-1 to P-149. Defence also
examined four witnesses and exhibited 21 documents marked as Exhibits D-1
to D-21. As noted earlier, after trial the learned Special Judge, SC/ST,
Jhalawar, Rajasthan, vide judgment dated 13.02.2004 passed in Sessions
Trial No.123 of 2002 (13/2002), convicted 24 out of 29 accused for various
offences including offence under Section 302/149 of the IPC for which all
were awarded rigorous imprisonment for life. The trial court acquitted the
appellants of charge under Section 120B of the IPC. The appeals preferred
by the appellants before the Rajasthan High Court at Jaipur Bench were
dismissed leading to confirmation of their conviction and sentence.
On behalf of the appellants, Mr. Basant, learned senior advocate first
raised an issue of fact relating to identification of all appellants
because none of the material witnesses, i.e., P.Ws 12, 14, 15, 17, 19 and
24 have laid any specific claim in their examination-in-chief that they can
identify the accused persons/appellants. The submission advanced is that
due to such lacuna, the appellants’ presence and participation in the
occurrence is not established and hence they deserve acquittal. We find no
merit in this contention in the light of salient facts noted earlier which
disclose that all the accused persons/appellants are named in the FIR.
They are co-villagers and well known to the witnesses and challenge to
their identification by name etc. was never raised by the accused persons
at any stage of either the investigation or the trial. The presence of the
appellants and their identification flows out of the fact that they were
named in the earliest version of the occurrence disclosed in the FIR and
have been subsequently named by several of the witnesses in course of the
trial with clear allegation that they were present and participated in the
occurrence in one way or the other as an accused. In such factual
background, the issue relating to identification raised on behalf of the
appellants is found to be without any substance.
On behalf of the appellants, several other issues of facts were also raised
with a view to criticize the prosecution case and persuade us to hold that
the prosecution has failed to prove the charges against the appellants
beyond reasonable doubts. The general criticisms are that the six eye
witnesses relied upon are interested and three of them, i.e., P.Ws 12, 14
and 24 are minors whose names were not disclosed in the FIR that they had
also witnessed the occurrence. It was also submitted that the occurrence
took place in open field and was allegedly witnessed by large number of
villagers but no independent witness, unrelated to the family of the
deceased persons has been examined and, therefore, prosecution case
deserves to be rejected. It was also pointed out that the investigating
officer could not recover pellets from the place of occurrence and
ballistic report was not made available to corroborate use of fire arms by
some of the accused persons. Our attention was also drawn to injuries
sustained by some of the accused persons and it was contended by learned
senior counsel for the appellants that in absence of any explanation for
the injuries on the side of the accused persons, the prosecution case
deserves to be rejected. In support of this proposition, reliance was
placed upon judgments of this Court in the case of Siri Kishan & Ors. v.
State of Haryana (2009) 12 SCC 757 and in the case of Lakshmi Singh & Ors.
v. State of Bihar (1976) 4 SCC 394.
Learned senior counsel also raised a serious grievance against the trial
court and the High Court judgment on the plea that they had failed to
analyse the roles played by individual accused persons which, according to
learned counsel, was necessary for fastening the charges under Section 302
and 307 IPC with the aid of Section 149 IPC. The substance of this
contention was that unless allegations against individual accused are
considered separately it will not be proper to hold that they were actually
members of an unlawful assembly. To highlight the ambit and scope of
Section 149 IPC and related issues, reliance was placed by learned senior
counsel on the following judgments of this Court :
Kuldip Yadav & Ors. v. State of Bihar (2011) 5 SCC 324

Busi Koteswara Rao & Ors. v. State of Andhra Pradesh (2012) 12 SCC 711

Khairuddin & Ors. v. State of West Bengal (2013) 5 SCC 753
Lastly it was contended on behalf of appellants that considering the fact
that all the accused were co-villagers of the witnesses and well known from
before, the naming of some of the appellants by only few of the witnesses
and not all should have been treated to be a significant factor to grant
acquittal on the basis of benefit of doubt. Reliance was placed upon the
judgment of this Court in the case of Masalti etc. v. State of Uttar
Pradesh AIR 1965 SC 202 wherein it has been held that no doubt trustworthy
evidence of a single witness may be enough to convict accused persons in
appropriate cases but where a criminal court is dealing with evidence
pertaining to an offence involving large number of offenders and a large
number of victims, it is usual to adopt the test of support by two or three
or more witnesses if they give a consistent account of the incident. The
court approved such a test after noticing that it may appear to be
mechanical but its use in appropriate cases cannot be treated as irrational
or unreasonable. In order to assist this Court to apply such a test in the
present case, detailed notes and charts have also been furnished to
indicate individual cases of appellants in respect of evidence of eye
witnesses appearing against them, their weapon and alleged specific role.
On the other hand, learned counsel for the informant and also learned
counsel for the State have placed reliance upon judgments of trial court
and the High Court and have submitted that the oral as well as documentary
evidence has received due consideration by both the courts and in the facts
of the case, no interference is required with the concurrent findings of
guilt recorded against the appellants. It was highlighted on behalf of
prosecution that when large number of accused persons had run after the
deceased and indulged in indiscriminate assault resulting into death of
four persons in open field and serious injuries to the informant, the
witnesses cannot be expected to notice, remember and depose the individual
acts committed by different accused persons vis–vis the five victims. It
was pointed out on behalf of prosecution that medical evidence and the
injuries have been correctly noted by the trial court which show that
firearm injuries were found on as many as three deceased, namely, Nagu
Singh from whose dead body two pellets were recovered, one from the wrist
of the left arm and one from the stomach; deceased Inder Singh from whose
back part of the body 12 pellets were recovered and deceased Bapu Singh who
was found to have sustained a gun shot injury on the jaw from which 66
pellets were taken out along with a plastic circular cap. Pellets were
also taken out from the brain.
Learned counsel for the informant and the State also submitted that no
doubt innocent bystanders or witnesses cannot be and should not be included
in the list of accused as members of unlawful assembly and the court is
required to be vigilant and aware of all the facts showing involvement of
the accused persons – from their conduct prior to as well as during and
after the occurrence. Incriminating conduct will vary from case to case
and can be ascertained only in the peculiar facts of each case having
regard to, inter alia, nature of conduct, overt act and possession of
weapons, if any. For this purpose, according to prosecution, the courts
below have analysed the ocular evidence in detail and have also noticed
recovery of different weapons from the accused persons. Therefore, as per
their submission, the conviction of the appellants requires no
interference.
On going through the entire evidence of material witnesses, other materials
and judgment of the courts below, we find that since the number of accused
persons was quite large and they were bold and strong enough to cause four
deaths in the open field in presence of large number of persons, it cannot
be difficult to understand and appreciate as to why independent witnesses
from the village who might have seen the occurrence, did not prefer to come
out to support the prosecution. But that will not take away from the worth
of deposition of six eye witnesses when they have given a consistent
account of the occurrence which was disclosed in a nutshell soon after the
occurrence in the FIR lodged by P.W.15 who was seriously and critically
injured in the same occurrence and whose presence cannot be doubted. If,
per chance, he would have been the sole witness, even then it may have been
possible for the courts below to convict the accused persons on his
testimony after testing its veracity in the light of his earlier statement
contained in the FIR. In such a factual scenario, we find no reason to
doubt the prosecution case if the I.O. failed to recover pellets from the
open field which was the place of occurrence or if he could not obtain
ballistic report. The eye version account of the occurrence and the
medical evidence showing large number of injuries including firearm
injuries support each other. On this issue, the discussion and findings of
the trial court against the accused persons is found to have sufficient
merit.
The criticism that some of the accused had sustained injuries for which the
prosecution has not offered any explanation has rightly been rejected by
the trial court because there is no counter version or even a suggestion
disclosing that any of the accused had received injuries in the same
occurrence and at the same place. None of the persons allegedly injured on
the side of the defence have lodged any case disclosing where and under
what circumstances they sustained the injuries. In the facts of the case,
in absence of any counter version and any plea of self-defence, it would be
hazardous to presume at the instance of the defence that the accused
persons sustained the injuries in course of same occurrence and at the same
place. Only if these two ingredients were established, the defence would
have been entitled to seek an explanation from the prosecution in respect
of some injuries on three of the accused persons. Their injuries were
neither fatal nor they caused any threat to life and that also reduces the
burden upon the prosecution to explain injuries on the accused. In view of
above discussion, we are of the view that judgments in the case of Siri
Kishan (supra) and Lakshmi Singh (supra) do not help the appellants. In
paragraph 12 of the judgment in the case of Lakshmi Singh (supra) the court
had found that in the circumstances of that case there could be no doubt
that the accused must have received grievous injuries in course of the
assault. In the case at hand, the facts are different and hence the
prosecution version cannot be disbelieved on account of some injuries
allegedly sustained by some of the accused, namely, Maan Singh (accused
no.8); Ram Prasad (accused no.28); and Bahadur Singh (accused no.29).
The main issue that now requires consideration is whether the courts below
have rightly applied Section 149 of the IPC against the appellants for
convicting them for the death of four persons and for murderous assault on
the informant. The principle of law governing application of Section 149
IPC has been explained by this Court in many judgments including those
cited by learned senior counsel for the appellants. In the case of Kuldip
Yadav (supra), the law was stated in paragraph 39 in the following words :
“39. It is not the intention of the legislature in enacting Section 149 to
render every member of unlawful assembly liable to punishment for every
offence committed by one or more of its members. In order to attract
Section 149, it must be shown that the incriminating act was done to
accomplish the common object of unlawful assembly and it must be within the
knowledge of other members as one likely to be committed in prosecution of
the common object. If the members of the assembly knew or were aware of
the likelihood of a particular offence being committed in prosecution of
the common object, they would be liable for the same under Section 149
IPC.”

In the case of Busi Koteswara Rao (supra) the facts showed involvement of
large number of persons and, therefore, while approving the view taken in
the case of Masalti (supra) this Court cautioned in paragraph 11 of the
judgment that the courts should be cautious in cases of arson and murder
where the number of accused is large, to rely upon the testimony of the
witnesses speaking generally without specific reference to the accused or
the specific role played by them.
Reliance placed by appellants on the judgment in the case of Khairuddin
(supra) is misplaced. In that case, as paragraphs 12, 13 and 14 disclose,
overt act of assault was found proved against five appellants grouped
together and hence their conviction was affirmed whereas against some
others included in a different group it was found that there was no
evidence showing that they were either present on the spot or participated
in the occurrence. In the case at hand, the finding on appraisal of
evidence is different.
The ingredients of Section 149 IPC require presence of an unlawful assembly
which is defined under Section 141 of the IPC as an assembly of five or
more persons, if the common object of the persons composing that assembly
is any of the five objects fully enunciated in Section 141 of IPC. The
third object is – “to commit any mischief or criminal trespass or other
offence.” The explanation to Section 141 clarifies that an assembly which
was not unlawful when it assembled, may subsequently become an unlawful
assembly. As per Section 149, even if any one member of an unlawful
assembly commits an offence in prosecution of the common object of that
assembly, every person who at the time of committing of that offence was a
member of the unlawful assembly is guilty of that offence.
Since it was vehemently contended that courts below have not applied their
mind as to whether the appellants were members of an unlawful assembly or
not, it is our duty to remind ourselves of the law on the subject. It is
settled law, as held in the case of Roy Fernandes v. State of Goa & Ors.
(2012) 3 SCC 221, that to determine the existence of common object, the
court is required to see the circumstances in which the incident had taken
place, the conduct of members of unlawful assembly as well as the weapon of
offence they carried or used on the spot. It is also established law, as
held in the case of Ramchandran & Ors. v. State of Kerala (2011) 9 SCC 257,
that common object may form on spur of the moment. Prior concert by way of
meeting of members of unlawful assembly is not necessary.
In that view of settled law, the facts of the present case as alleged in
the FIR and as proved in the court leave no manner of doubt that the group
of persons who chased deceased no.1-Inder Singh and caused his death and
thereafter chased, surrounded and caused death of three more persons
besides causing grievous injuries to the informant-Amar Singh was an
assembly of five or more persons rightfully deserving to be designated as
an unlawful assembly because by its action it showed that its common object
was to commit offence. The subsequent acts clearly show that the unlawful
assembly carried out its common object of committing serious offence of
murder of four persons and grievous injuries to the informant.
This Court, therefore, finds that the courts below committed no error in
applying Section 149 of the IPC and convicting the members of the unlawful
assembly for offences under Sections 302 and 307 of the IPC (with the aid
of Section 149 IPC). Some argument was advanced on there being lack of any
clear motive but that is not at all necessary or material when the offences
have been proved by clear and cogent evidence including eye-witnesses.
So far as the principle of caution as enunciated in the case of Masalti
(supra) is concerned, we find ourselves in agreement with the submission
advanced by learned senior counsel Mr. Basant that in the peculiar facts of
the case, the courts below should have further decided as to how much
corroboration was required for accepting the presence and participation of
individual accused person. The informant had though claimed presence of 29
persons but subsequently five were acquitted by the trial court and one was
acquitted by the High Court. On this issue, on going through the charts
disclosing number of witnesses who have deposed against individual
appellants to show their presence, participation, weapon and overt act, if
any, we find that the test approved in Masalti’s case (supra) and
subsequently followed in several other cases including the case of Busi
Koteswara Rao (supra) needs to be followed in this case also. In the
latter judgment in paragraph 13 the law on the subject has been expounded
in very clear terms :

“13. It is clear that when a criminal court has to deal with evidence
pertaining to the commission of an offence involving a large number of
offenders and a large number of victims, the normal test is that the
conviction could be sustained only if it is supported by two or more
witnesses who give a consistent account of the incident in question.”

Since the accused persons and the 6 material eye witnesses in this case are
co-villagers, it is expected that at least three witnesses should be in a
position to name individual accused persons for sustaining his conviction.
Applying that test, it is found that accused no.9-Bhagwan Singh, son of
Prabhu Lal; accused no.18-Suresh Kumar, son of Ram Dhakad; accused no.20-
Kanhi Ram, son of Prabhu Lal; accused no.27-Prahlad Singh, son of Nathu
Lal; and accused no.28-Ram Prasad, son of Bheru Lal deserve to be acquitted
by granting benefit of doubt. This benefit of doubt arises in their favour
because although they have been named specifically by informant P.W.15 as
persons who were members of the unlawful assembly and who participated in
assault but such claim of the informant has not been supported by more than
one witness. In other words, there is no clear and cogent evidence of
three witnesses against the aforesaid accused persons. So far as accused
no.28-Ram Prasad is concerned, no doubt his name has been taken by P.W.12
and P.W.24 also but they have not specified as to whether it was Ram
Prasad, son of Bheru Lal or another accused by the same name, i.e. accused
no.25-Ram Prasad, son of Jeth Ram.
The appeals preferred by the aforesaid five appellants, namely, Bhagwan
Singh, son of Prabhu Lal (appellant no.3 in Crl. Appeal No.1239 of 2009);
Suresh Kumar, son of Ram Dhakad (appellant no.3 in Crl. Appeal No.493 of
2009); Kanhi Ram, son of Prabhu Lal (appellant no.4 in Crl. Appeal No.1239
of 2009); Prahlad Singh, son of Nathu Lal (sole appellant in Crl. Appeal
No.1241 of 2009); and Ram Prasad, son of Bheru Lal (appellant no.4 in Crl.
Appeal No.493 of 2009) are allowed. They are granted benefit of doubt and
acquitted of all the charges. The appeals of remaining 16 appellants are
dismissed. If on bail, their bail bonds shall stand cancelled and they
shall be taken into custody forthwith to serve out the remaining sentence
in accordance with law.
……………………………….J.
[M.Y. EQBAL]
………………………………..J.
[SHIVA KIRTI SINGH]
New Delhi.
January 06, 2015.
———————–
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