1991 JTR(SC) 519
1991 AIR(SC) 2246 ; 1991 AIR(SCW) 2583 ; 1992 AllLJ 1130 ; 1992 1 AWC 177 ; 1991 CriLR 897 ; 1991 3 Crimes(SC) 446 ; 1991 CrLJ 3289 ; 1992 EastCrC(SC) 168 ; 1991 4 JT 306 ; 1992 1 RCR(Cri) 287 ; 1991 2 Scale 673 ; 1991 Supp2 SCC 437 ; 1991 SCC(Cri) 1059 ; 1991 KHC 794
SUPREME COURT OF INDIA
S.R. PANDIAN AND K. JAYACHANDRA REDDY, JJ.
Sherey and others Appellants
versus
State of U.P., Respondent.
Criminal Appeal No. 86A of 1979
Decided on 27-9-1991.
Result- Appeal dismissed against 9 appellants & allowed as against others.
Counsel for the parties:
For the Appellants: - Mr. M. Qamaruddln & Mrs. M. Qamaruddin.
For the Respondents: - Mr. Manoj Swam, Mrs. Lalitha Kohli, Mr. Prashant Chaudhary & Mr. A.S. Pundir.
IMPORTANT POINTWhen there is a general allegation against a large number of persons the court hesitates to convict all of them on the theory of Constructive liability on vague evidence.
Act Referred :INDIAN PENAL CODE : S.307, S.149, S.325, S.148, S.302, S.323, S.147
(A) The accused were charged under Sections 147, 148, 307, 323, and 325 read with Section 149 of the Indian Penal Code arising from a riot involving Hindus and Muslims over a disputed grove and pond, where unlawful assembly joined by deadly weapons culminated in murders and injuries. Section 147 addresses punishment for rioting, Section 148 for rioting with deadly weapons, Section 307 for attempt to murder, Section 323 for voluntarily causing hurt by dangerous weapons, Section 325 for hurt by dangerous weapons, and Section 149 makes every member of an unlawful assembly liable for acts committed in prosecution of the common object. These provisions apply to determine individual liability based on participation, weapon involvement, and consistent identification in the unlawful assembly.
(B) Key principles include that mere presence at a riot does not attract Section 149 liability; specific overt acts and consistent association with the common object are required. The common object of an unlawful assembly must be proven, and convictions cannot be based on omnibus allegations or vague general participation. Medical evidence and earliest FIR statements must be scrutinized for consistency, and convictions must rest on reliable identification and corroborative circumstances.
Facts of the case:
A dispute between Hindus and Muslims over a grove and pond led to a riot where a Hindu woman died. While Hindus were cremating her body, an unlawful assembly of around 25 persons attacked with swords and lathis, causing three deaths and five injuries. Witnesses identified accused persons, but there were variations between the FIR and trial testimony regarding specific participants and weapons used.
Findings of Court:
The court scrutinized the FIR and deposition consistency, noting that medical evidence showed incised injuries but no lathis. Only nine appellants had consistent mentions and overt acts attributed to them from the FIR stage, while others were mentioned only in general terms without specific overt acts, making conviction unsafe.
Issues:
Whether all accused members of a large assembly can be held liable under Section 149, I.P.C., on the basis of general allegations, or whether liability must be limited to those whose presence and participation are consistently established with specific overt acts.
Ratio Decidendi:
Liability under Section 149 requires consistent mention and specific overt acts establishing participation in the unlawful assembly's common object; vague or omnibus allegations against large groups are insufficient, and convictions must be limited to those whose involvement is reliably proven.
Result:
Appeal dismissed for nine appellants with confirmed convictions and sentences; remaining appellants acquitted and directed to be set at liberty.
(A) The accused were charged under Sections 147, 148, 307, 323, and 325 read with Section 149 of the Indian Penal Code arising from a riot involving Hindus and Muslims over a disputed grove and pond, where unlawful assembly joined by deadly weapons culminated in murders and injuries. Section 147 addresses punishment for rioting, Section 148 for rioting with deadly weapons, Section 307 for attempt to murder, Section 323 for voluntarily causing hurt by dangerous weapons, Section 325 for hurt by dangerous weapons, and Section 149 makes every member of an unlawful assembly liable for acts committed in prosecution of the common object. These provisions apply to determine individual liability based on participation, weapon involvement, and consistent identification in the unlawful assembly.
(B) Key principles include that mere presence at a riot does not attract Section 149 liability; specific overt acts and consistent association with the common object are required. The common object of an unlawful assembly must be proven, and convictions cannot be based on omnibus allegations or vague general participation. Medical evidence and earliest FIR statements must be scrutinized for consistency, and convictions must rest on reliable identification and corroborative circumstances.
Facts of the case:
A dispute between Hindus and Muslims over a grove and pond led to a riot where a Hindu woman died. While Hindus were cremating her body, an unlawful assembly of around 25 persons attacked with swords and lathis, causing three deaths and five injuries. Witnesses identified accused persons, but there were variations between the FIR and trial testimony regarding specific participants and weapons used.
Findings of Court:
The court scrutinized the FIR and deposition consistency, noting that medical evidence showed incised injuries but no lathis. Only nine appellants had consistent mentions and overt acts attributed to them from the FIR stage, while others were mentioned only in general terms without specific overt acts, making conviction unsafe.
Issues:
Whether all accused members of a large assembly can be held liable under Section 149, I.P.C., on the basis of general allegations, or whether liability must be limited to those whose presence and participation are consistently established with specific overt acts.
Ratio Decidendi:
Liability under Section 149 requires consistent mention and specific overt acts establishing participation in the unlawful assembly's common object; vague or omnibus allegations against large groups are insufficient, and convictions must be limited to those whose involvement is reliably proven.
Result:
Appeal dismissed for nine appellants with confirmed convictions and sentences; remaining appellants acquitted and directed to be set at liberty.
JUDGMENT
K. JAYACHANDRA REDDY, J.:—There are 25 appellants in this appeal. They were tried for offences punishable under Ss. 147, 148, and 302 307, 323 and 325 all read with S. 149, I.P.C. in respect of a rioting that took place on 24-9-1967 at 12.30 p.m: in the village Jainpur District Gorakhpur. During the course of the said occurrence, three persons died and five persons received injuries. Most of the injuries were caused by sharp-edged weapons. It appears that there was a dispute between Hindus and Muslims of the village regarding the grove. The Hindus claimed that the grove and the pond nearby were their properties where dead bodies were cremated and according to the Muslims it was their graveyard. There was security proceedings and also proceedings were initiated under S. 145.
2. While so the wife of P.W.3, Guptar ,a local Hindu, died and P.W. 3 and other Hindus carried the dead body to the said pond in the grove in order to cremate her body. They dug a pit and as the funeral pyre was being prepared, 25 persons along with another person came there shouting "YA ALI". Some of them were armed with lathis while others were armed with swords ate. Seeing them armed the Hindus tried to escape but they were overtaken and three deceased persons and the injured witnesses were assaulted. Due to the said assault, two of the deceased died on the spot and the third deceased died a little later. P.W. 1 who was one of the eye-witnesses left for the police. station and lodged an F.I.R. P.W. 4 a Constable made an entry in the general diary. P.W. 15, the Station House Officer reached the spot and took over the investigations. He sent the dead bodies for post-mortem and injured persons for treatment. The Doctor who conducted the post-mortems over the dead bodies found a number of injuries and also similar injuries on the injured witnesses. He opined that fatal injuries inflicted on the three deceased persons were ante-mortem and were sufficient in the ordinary course of nature to cause death. There are six eyewitnesses and all of them stated that they had gone along with P.W. 3 to cremate the dead body of his wife and all of them have named the 25 appellants. Now in the present deposition they have also described the weapons in their hands. They attributed overt acts only to two persons but even that version was not accepted by the courts below on the ground that they could not have noted the details in such a melee. But both. the courts have accepted the evidence of the eye-witnesses against the appellants whose names they have mentioned and stated that they were members of an unlawful assembly. The trial Court convicted some of them under S. 147 and sentenced to six months R.I. and the rest under S. 148 sentenced to one years R.I. All of them were convicted under S. 307 read with 149, I.P.C. and sentenced to 3 years R.I. and also under S. 302 read with 149, I.P.C. and sentenced to imprisonment for life. The sentences are directed to run concurrently. The High Court confirmed the same. Hence the present appeal.
3. Learned counsel for the appellants submitted that it is highly unsafe to rely on omnibus allegations made by these witnesses and on the basis of their mere presence on the spot they cannot be held to be constructively liable by the application of S. 149, I.P.C.
4. We have carefully gone through the evidence. We have no doubt that all the eyewitnesses were present. Nothing significant has been elicited in their cross-examination. However, the eye-witnesses simply named these appellants and identified them. So, the question is whether, it is safe to convict all the appellants. In a case of this nature, the evidence of the witnesses has to be subjected to. a close scrutiny in the light of their former statements. The earliest report namely the F. I. R. has to be examined carefully. No doubt in their present deposition they have described the arms carried by the respective accused but we have to see the version given in the earliest report. In that report P.W. 1 after mentioning about the earlier proceedings has given a fairly detailed account of the present occurrence. He has mentioned the names of the witnesses and also the names of the three deceased persons. Then he proceeded to give a long list of names of the accused and it is generally stated that all of them were exhorting and surrounded the P.Ws. and the other Hindus and attacked them. But to some extent specific overt acts are attributed to appellants Nos. 1, 4, 5, 7, 8, 10, 17, 22 and 25. It is mentioned therein that these nine accused were armed with deadly weapons and were seen assaulting the deceased Ram Narain and others. Now in the present deposition he improved his version and stated that in addition to these nine accused, five more persons also attacked the deceased and others. In view of this variation he thinks that it is safe to convict only such of the appellants who are consistently mentioned as having participated in the attack from the stage of earliest report. With regards the rest P.W. 1 mentioned in an omnibus way that they were armed with lathis. He did not attribute any overt act to any one of them. Further, the medical evidence rules out any lathis having been used. The Doctor found only incised injuries on the dead bodies and on the injured P.Ws. Therefore, it is difficult to accept the prosecution case that the other appellants were members of the unlawful assembly with the object of committing the offences with which they are charged. We feel it is highly unsafe to apply S. 149, I. P. C. and make every one of them constructively liable. But so far as the above nine accused are concerned the prosecution version is consistent namely that they were armed with lethal weapons like swords and axes-and attacked the deceased and others. This strong circumstances against them esablishes their presence as well as their membership of the unlawful assembly. The learned counsel appearing for the State vehemently contended that the fact that the Muslims as a body came to the scene of occurrence would show that they were members of an unlawful assembly with the common object of committing various offences including that of murder. Therefore all of them should be made constructively liable. But when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance. From that paint of view it is safe only to convict the above-mentioned nine accused whose presence is not only consistently mentioned from the stage of F.I.R. but also to whom overt acts are attributed. The fact that they were armed with weapons like swords and axes and attacked the victims shows that they were members of an unlawful assembly with the common object of committing murder and other offences with which they were charged. In the result we confirm all the convictions and sentences awarded to appellants No. 1 Sherey, No. 4 Tafazzul, No. 5 Aziz, No. 7 Rasheed, No. 8 Rahman, No. 10 Nasrullah, No. 17 Lal Mohammad alias Lalu, No. 22 Shauliah and No. 25 Halim. So far as the other appellants are concerned, for the above stated reasons we set aside the convictions and sentences passed against them and direct that they shall be set at liberty forthwith if not required in any other case.
5. Therefore the appeal is dismissed as against appellants Nos. 1, 4, 5, 7, 8, 10, 17, 22 and 25 and allowed as against the other appellants. The appeal is accordingly disposed of.
Order accordingly.
For Citation : 1991 Crl. L.J. 3289 = AIR 1991 SC 2246 = 1991 Supp. (2) SCC 437 = 1991 SCC (Crl.) 1059
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