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Judgment Summarized by Delhi Law Academy - Jaipur
Contending that the prosecution had failed to prove the presence of all the appellants and the existence of common object within the meaning of Section 149 of the Indian Penal Code, the learned counsel for the appellants has argued that except appellant Manoj Kumar, no other accused could be convicted or sentenced for the death of the deceased persons. It is submitted that even if the appellants are proved to be present on the spot when the occurrence took place, they cannot be held guilty for the commission of any offence as they were not proved to be sharing any common object but were only bystanders.
Facts giving rise to the filing of the present appeals are that on 23-7-1994 at about 2.00 a.m. the appellants accompanied by 300-400 persons, armed with deadly weapons like guns attacked the house of Ganesh Singh in Village Amarpur. Bholi Singh was shot dead and Nawlesh Singh, Shiv Narain Singh, Kedar Singh, Sanjay Singh and Ajay Kumar were burnt alive inside the room where they were hiding.
According to the first information report, the informant, namely, Ganesh Singh (PW 5) along with other members of the family had slept on the upper floor of his house in the open. In the western room facing north Nawlesh Singh, Sanjay Singh, Ajay Kumar, Kedar Singh, Shiv Narain Singh and Bholi Singh went to sleep. The informant (PW 5) himself occupied the middle room and in the room on the eastern side his nephew Dhanju Kumar (PW 1) slept. After about half an hour, the informant heard sounds of firing from the northern side of the roof of his house and he got up. He heard one person saying that Nawlesh should come out and surrender as the person speaking claimed to be officer in charge of the police station.
He heard Nawlesh saying that if the person seeking surrender was the officer in charge of the police station, he should come to the front door of the house. Ganesh Singh (PW 5) further stated that he saw some fire-like substance and then raised an alarm that the extremists had arrived in khakhi dress. The culprits set the room on fire in which Nawlesh was sleeping along with others. The fire was set with the help of petrol bombs. The occurrence was seen by the informant through a hole in the room where he was sleeping. Out of the mob of 300-400 persons, he identified 19 persons in the light of a torch flashed by fire in the room including the appellants. All the aforesaid persons were named in his statement. In the entire process about 300-400 rounds of firing were made terrifying the whole of the locality. The motive behind the commission of the crime was stated to be enmity of Manoj Kumar with the family of the informant.
After completion of the investigation the prosecution filed the charge-sheet in the trial court against 16 persons including the appellants. To prove its case the prosecution examined 8 witnesses. Hirdaya Singh and Manoj Kumar Gautam were convicted under Section 302 and sentenced to death by the trial court. The other accused were convicted for the commission of offences under Section 302 read with Section 149 IPC and sentenced to life imprisonment.
We are not inclined to re-examine the whole of the prosecution case for finding out as to whether the occurrence had taken place in which six people were killed by the appellants in the manner alleged by the prosecution. We find no reason to disbelieve any of the eyewitnesses. The trial court as well as the High Court have, after critical examination of their statements, rightly concluded that they were truthful witnesses and that all the appellants in these appeals were present at the time of occurrence.
Merely because the witnesses happened to be the relations of the deceased is not a ground to reject their testimony. Under the circumstances of the case, the aforesaid witnesses appear to be natural witnesses who were supposed to be at the house of Ganesh Singh when the occurrence took place. Time and again it has been held by this Court that no interference would be made with the concurrent finding of fact based on pure appreciation of evidence even if this Court was to take a different view on the evidence. The Court will normally not enter into reappraisal or the review of evidence, unless the trial court or the High Court is shown to have committed an error of law or procedure, and the conclusions arrived at are perverse. This Court cannot enter into the credibility of the evidence with a view to substitute its opinion for that of the High Court. This Court may interfere where on proved facts wrong inferences of law are shown to have been drawn. This Court is not a regular court of appeal to which every judgment of the High Court in a criminal case may be brought up for scrutinising its correctness. It is only in a rare or exceptional case where there is some manifest illegality or grave or serious irregularity that the Court would interfere with such findings of fact.
It has been argued alternatively that even if the occurrence is held to have taken place in the manner alleged by the prosecution and the accused persons were seen on the spot, they cannot be convicted and sentenced as the prosecution allegedly failed to establish the existence of a common object amongst the accused persons.
Section 149 is an exception to the criminal law where under a person can be convicted and sentenced for his vicarious liability only on proof of his being a member of the unlawful assembly, sharing the common object, notwithstanding as to whether he had actually participated in the commission of the crime or not. Common object does not require prior concert and a common meeting of minds before the attack. An unlawful object can develop after the accused assembled. The existence of common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. It is true that the mere presence of the accused is not sufficient to hold them guilty for the sharing of common object as the prosecution has to further establish that they were not mere bystanders but in fact were sharing the common object.
When a concerted attack is made by a large number of persons, it is often difficult to determine the actual part played by each of the accused 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. There may not be a common object in a sudden fight but in a planned attack on the victim, the presence of the common object amongst the persons forming the unlawful assembly can be inferred.
It is submitted by the learned counsel for the appellants that as the prosecution had failed to allege and prove a specified object, their clients cannot be held to be guilty for the commission of the offence with the aid of Section 149 of the Indian Penal Code. Such a submission cannot be accepted in view of the settled position of law. Every member of the unlawful assembly is guilty of the offence committed in prosecution of the common object.
Section 149 has two parts. First part deals with the commission of an offence by a member of an unlawful assembly in prosecution of the common object of that assembly and the second part deals with the liability of the members of the unlawful assembly who knew that an offence was likely to be committed in prosecution of the object for which they had assembled. Even if the common object of the unlawful assembly is stated to be apprehending Nawlesh Singh only, the fact that the accused persons had attacked the house of the complainant at the dead of night and were armed with deadly weapons including the guns, and used petrol bombs, proves beyond doubt that they knew that in prosecution of the alleged initial common object, murders were likely to be committed.
Knowledge of the consequential action in furtherance of the initial common object is sufficient to attract the applicability of Section 149 for holding the members of the unlawful assembly guilty for the commission of the offence by any member of such assembly. In this case the appellants, along with others, have been proved to have formed an unlawful assembly, the common object of which was to commit murder and arson and in prosecution of the said common object they raided the house of the informant armed with guns and committed offence.
There is consistent and reliable evidence establishing that all the accused had attacked the house of the informant at the dead of night when they were armed with deadly weapons like guns and rifles. Prosecution has established existence of common object of the unlawful assembly for attracting the applicability of Section 149 of the Indian Penal Code and the mere fact that no overt act has been attributed to each of the accused persons is not sufficient to hold that charge under Section 149 has not been proved against them.
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