1989 JTR(SC) 218
1989 AIR(SC) 1593 ; 1989 1 AWC 657 ; 1989 BLJR 49 ; 1989 CriLR 362 ; 1989 CriLR(Cal) 159 ; 1989 2 Crimes(SC) 368 ; 1989 CrLJ 1782 ; 1989 EastCrC(SC) 324 ; 1989 EastCrC(SC) 459 ; 1989 2 JT 101 ; 1989 PLJR(SC) 72 ; 1989 1 Scale 876 ; 1989 3 SCC 605 ; 1989 SCC(Cri) 659 ; 1989 KHC 570 ; 1989 2 KLT(SN) 8
SUPREME COURT OF INDIA
S. NATARAJAN AND KULDIP SINGH, JJ.
Rambilas Singh and others, Appellants
Versus
State of Bihar, Respondent.
Criminal Appeal No. 34 of 1979
Decided on 6-4-1989.
Act Referred :INDIAN PENAL CODE : S.149, S.302, S.34
(A) The relevant statutory provisions include S. 302 read with Ss. 149 and 34 of the Indian Penal Code. Section 302 defines the offence of murder and its punishment. Section 149 provides that every member of an unlawful assembly guilty of any offence committed in prosecution of the common object of that assembly is deemed to have committed that offence. Section 34 provides for joint liability when a criminal act is done by several persons in furtherance of the common intention of all. In this case, the accused were charged under S. 302 read with Ss. 149 and 34 for the murder of the deceased, and the High Court applied these provisions to hold them liable on the basis of constructive liability.
(B) Key legal principles include the requirements for conviction under S. 149 and S. 34 IPC: there must be evidence of a common intention or a common object among an unlawful assembly, and the overt act attributed to one or more members must be done in furtherance of that common intention or object. It is not sufficient that the accused were merely present at the scene; there must be material to show a shared design to commit the offence.
Facts of the case:
On the night of 24-2-1969, the deceased Kumar Gopal Singh was stabbed by Dinesh Singh at about 9.30 p.m. in village Bishunpur Kamdeo. The prosecution alleged that 16 accused persons had lay in wait for the deceased, who had earlier abused and snatched crops and baskets from some of the accused. The fardbeyan and witness statements indicated that the accused surrounded the deceased, and Dinesh Singh inflicted the fatal stab injury. Other accused were convicted by the High Court under S. 302 read with Ss. 149 and 34, while some were acquitted.
Findings of Court:
The High Court convicted the accused other than Dinesh Singh under S. 302 read with Ss. 149 and 34, holding them constructively liable for the murder committed by Dinesh Singh. The Supreme Court allowed the appeal, setting aside the High Courts judgment and acquitting the accused.
Issues:
Whether the accused could be held constructively liable for murder under Ss. 149 and 34 IPC in the absence of evidence showing a common intention or common unlawful assembly to commit murder, and whether mere presence at the scene and an overt act by one accused were sufficient to fix liability on all.
Ratio Decidendi:
The Supreme Court held that to attract liability under Ss. 149 and 34 IPC, there must be evidence of a common intention or common object and of an overt act done in furtherance of that common intention or object. The prosecution failed to prove that the accused had formed a common intention to murder the deceased or that Dinesh Singhs stabbing was done in furtherance of such a common intention. The evidence indicated no weapons other than a knife brought by Dinesh Singh, and the timing and nature of the act did not support a finding of a pre-planned group attack.
Result:
The accused convicted under S. 302 read with Ss. 149 and 34 were acquitted. The appeal was allowed, and the judgments of the High Court were set aside.
(A) The relevant statutory provisions include S. 302 read with Ss. 149 and 34 of the Indian Penal Code. Section 302 defines the offence of murder and its punishment. Section 149 provides that every member of an unlawful assembly guilty of any offence committed in prosecution of the common object of that assembly is deemed to have committed that offence. Section 34 provides for joint liability when a criminal act is done by several persons in furtherance of the common intention of all. In this case, the accused were charged under S. 302 read with Ss. 149 and 34 for the murder of the deceased, and the High Court applied these provisions to hold them liable on the basis of constructive liability.
(B) Key legal principles include the requirements for conviction under S. 149 and S. 34 IPC: there must be evidence of a common intention or a common object among an unlawful assembly, and the overt act attributed to one or more members must be done in furtherance of that common intention or object. It is not sufficient that the accused were merely present at the scene; there must be material to show a shared design to commit the offence.
Facts of the case:
On the night of 24-2-1969, the deceased Kumar Gopal Singh was stabbed by Dinesh Singh at about 9.30 p.m. in village Bishunpur Kamdeo. The prosecution alleged that 16 accused persons had lay in wait for the deceased, who had earlier abused and snatched crops and baskets from some of the accused. The fardbeyan and witness statements indicated that the accused surrounded the deceased, and Dinesh Singh inflicted the fatal stab injury. Other accused were convicted by the High Court under S. 302 read with Ss. 149 and 34, while some were acquitted.
Findings of Court:
The High Court convicted the accused other than Dinesh Singh under S. 302 read with Ss. 149 and 34, holding them constructively liable for the murder committed by Dinesh Singh. The Supreme Court allowed the appeal, setting aside the High Courts judgment and acquitting the accused.
Issues:
Whether the accused could be held constructively liable for murder under Ss. 149 and 34 IPC in the absence of evidence showing a common intention or common unlawful assembly to commit murder, and whether mere presence at the scene and an overt act by one accused were sufficient to fix liability on all.
Ratio Decidendi:
The Supreme Court held that to attract liability under Ss. 149 and 34 IPC, there must be evidence of a common intention or common object and of an overt act done in furtherance of that common intention or object. The prosecution failed to prove that the accused had formed a common intention to murder the deceased or that Dinesh Singhs stabbing was done in furtherance of such a common intention. The evidence indicated no weapons other than a knife brought by Dinesh Singh, and the timing and nature of the act did not support a finding of a pre-planned group attack.
Result:
The accused convicted under S. 302 read with Ss. 149 and 34 were acquitted. The appeal was allowed, and the judgments of the High Court were set aside.
AMM VACHHAR, Atul Nanda, D.GOVERDHAN CHARY, D.N.GOVARDHAN, Dhruv Mehta, S.K.MEHTA
JUDGMENT
NATARAJAN, J. :— This appeal by special leave is directed against the judgment of the High Court of Patna in Criminal Appeal No. 407 of 1976 preferred by the State against the acquittal of A-1 to A-15 by the 1st Additional Sessions Judge, Muzaffarpur of charges under S. 302 read with S. 149/302 read with S. 34, I.P.C. for having committed the murder of one Kumar Gopal Singh at about 9.30 p.m. on 24-2-1969 at village Bishunpur Kamdeo, District Muzaffarpur. A16 Dinesh Singh was directly charged under S. 302. I.P.C. in addition to being charged under S. 302, I.P.C. read with Ss. 149 and 34, I.P.C. The 1st Additional Sessions Judge, Muzaffarpur convicted A-16 Dinesh Singh under S. 302, I.P.C. but acquitted A-1 to A 15 of the charges under S. 302 read with Ss. 149 and 34 I.P.C. During the pendency of the appeal against acquittal, A-2 and A-6 died and hence the appeal abated as against them. The High Court confirmed the acquittal of A-1 and A-9 as their names were not mentioned in the fardbeyan and convicted the rest of the accused viz. A-3 to A-5, A-7, A 8 and A-10 to A-15. The appeal preferred by A-16 Dinesh Singh was dismissed by the High Court and he has not preferred any appeal to this Court. The accused who have been convicted by the High Court have preferred this appeal. Appellant Shital Singh is reported to have died during the pendency of the appeal and hence the appeal has become infructuous as far as he is concerned.
2. The prosecution case was that on the morning of the 24-2-1969, deceased Kumar Gopal Singh found A-2, A-16 and a female relation of them plucking khesari crops from his field and so he abused them and snatched away the plucked plants and their baskets and in retaliation for it the 16 accused persons had lay in wait for him on that night and attacked him at about 9.30 p.m. when he was returning home with his brother P.W. 22 and two other witnesses P.Ws. 1 and 18 after attending a barat. In the fardbeyan given by P.W. 22 it was stated that 16 persons surrounded Kumar Gopal Singh and then Dinesh Singh inflicted a stab injury on the neck of Kumar Gopal Singh as a result of which he died a short while later. On hearing the alarm raised by P. Ws. 1, 18 and 22, some villagers came running and on seeing them the accused ran away from the scene. Kumar Gopal Singh told the villagers who came there that he had been stabbed by Dinesh Singh. P.W. 22 went to the police station and lodged the First Information Report. After completion of investigation, chargesheet was laid against A-1 to A- 16.
3. The 1st Additional Sessions Judge accepted the prosecution evidence but came to the conclusion that accused Dinesh Singh alone deserved conviction under S. 302, I.P.C. and that the other accused cannot be held constructively liable for the offence committed by Dinesh Singh and convicted under S. 302 read with S. 149 or S. 34, I.P.C. because none of them had indulged in any overt act to cause the death of Kumar Gopal Singh.
4. The High Court, however, has taken the view that even though the appellants herein had not committed any overt act, they would be constructively liable under Ss. 149 and 34, I.P.C. for the offence of murder committed by Dinesh Singh and accordingly convicted them and sentenced them for imprisonment for life.
5. Mr. S. K. Mehta, learned counsel for the appellants contended that there is no evidence in the case to conclude that all the 16 persons had either formed a common intention or had formed themselves into an unlawful assembly with the common object of murdering Kumar Gopal Singh and it was in furtherance of their common intention or in prosecution of the common object of the unlawful assembly that Kumar Gopal Singh had been stabbed by Dinesh Singh. The learned counsel pointed out that in the fardbeyan it was only stated that the informant and Kumar Gopal Singh were surrounded by the accused persons and then suddenly Dinesh Singh stabbed Kumar Gopal Singh on the neck, but in the evidence the witnesses viz. P.Ws. 1, 18 and 22 have made improvements to make it appear that Kumar Gopal Singh and the three witnesses were caught hold of by different sets of accused and it was thereafter Kumar Gopal Singh was stabbed by Dinesh Singh. The learned counsel stated that this improvement over the version given in the fardbeyan has been made in order to make it appear that all the accused had shared a common intention or that they had formed themselves into an unlawful assembly with the common object of causing the death of Kumar Gopal Singh and in prosecution of the common object of the members of the assembly, Kumar Gopal Singh was stabbed by Dinesh Singh. The learned counsel argued that the High Court was therefore in error in taking the view that the appellants also merited conviction for the stabbing outage committed by Dinesh Singh.
6. Mr. D. Goburdhan, appearing for the attempted to sustain the conviction of the appellants by pointing out that unless there was a common design for murdering Kumar Gopal Singh, all the accused would not have lay in wait for Kumar Gopal Singh or surrounded him before he was stabbed by Dinesh Singh.
7. On a consideration of the matter, we, find that the view taken by the High Court for convicting the appellants cannot be sustained. Even accepting the prosecution, case in full and holding that the appellants were present at the scene at the time of occurrence, the materials on record would not warrant a finding that the individual act of Dinesh Singh had been perpetrated in furtherance of the common intention of all the accused assembled there or in prosecution of a common object formed by all of them. It is true that in the morning, there was an incident in which Kumar Gopal Singh had abused A-2, A-16 and one of their women folk for plucking khesari crops from his land and had snatched away the plucked plants as well as their baskets but it is highly improbable that by way of retaliation for that incident, the accused would have all joined together and planned to commit the murder of Kumar Gopal Singh and for that purpose as many as sixteen persons had come together to commit the murder. Even if they had wanted to have an encounter with the deceased, it could have been only to pick up a quarrel with him for the abuse hurled by him in the morning and for his snatching away the baskets along with the Khesari plants that had been plucked. A significant factor to be borne in mind is that there is no evidence to show that the appellants had known that Dinesh Singh was carrying a knife when as they surrounded him. If they had no knowledge that Dinesh Singh was carrying a knife, they could not even have remotely thought that he would be inflicting a stab injury on the deceased. If it was the intention of all the appellants that Kumar Gopal Singh should be done to death. it is inconceivable that they would have come without any weapons except for the knife brought by Dinesh Singh and that they would not have launched an attack on Kumar Gopal Singh (and) would have rested content with the single stab, inflicted by Dinesh Singh. This would not be the conduct of persons if they had come to the scene with the common intention or common object of committing the murder of Kumar Gopal Singh and were lying in wait for him. Another important factor to be noticed is that the prosecution seem to have realised that the version of the occurrence given in the fardbeyan would not be enough for fastening constructive liability on the other accused for the overt act of Dinesh Singh and hence some overt acts must be attributed to them in order to make it appear that the attack on the deceased had been planned by all of them. It is obvious that with that end in view P.Ws. 1, 18 and 22 had tried to make out in their evidence that three of the accused had caught hold of P.W. 1, four of the accused had caught hold of P.W. 22, and four others had caught hold of the deceased and one of the accused had caught hold of the deceaseds cycle. There is inter se discrepancy in the evidence of P.Ws. 1, 18 and 22 regarding the names of the accused who had caught hold of the deceased and the witnesses but even if the discrepancies are overlooked, there remains the fact that there is no mention whatever in the fardbeyan about some of the accused persons catching hold of the deceased or the witnesses before Kumar Gopal Singh was stabbed by Dinesh Singh. There is therefore room for genuine doubt whether P.Ws. 1, 18 and 22 have purposely made embellishments in their evidence in order to make the other accused constructively liable for the offence committed by Dinesh Singh. The High Court has failed to take note of all these factors and has too readily acted on the assumption that since all the Appellants and Dinesh Singh were present at the scene and Dinesh Singh had inflicted a stab injury on the deceased. it must necessarily be held that all the accused should have forged a common intention or arrived at a common object viz. to commit the murder of Kumar Gopal Singh and in pursuance of it the murder was committed and hence all of them are constructively liable under S. 302 read with S. 149/34, I.P.C. It is true that in order to convict persons vicariously under S. 34 or S. 149, I.P.C., it is not necessary to prove that each and everyone of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly. In this case, Such evidence is lacking and hence the appellants cannot be held liable for the individual act of Dinesh Singh.
8. The appeal is therefore, allowed and the judgment of the High Court is set aside. The conviction of the appellants under S. 302 read with Ss. 149 and 34, I.P.C. are set aside and they are acquitted of the charge. As already stated the appeal has become infructuous in so far as appellant Shital Singh is concerned.
9. As the appellants are on bail, their bail bonds will stand discharged.
Appeal allowed.
For Citation : AIR 1989 SC 1593