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CASE NO.:

Appeal (crl.) 530-531 of 2003

PETITIONER:

Bhargavan & Ors.

RESPONDENT:

State of Kerala

DATE OF JUDGMENT: 17/11/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

Appellants question their conviction for offences punishable under

Sections 143, 148 and 302 read with Section 149 of the Indian Penal

Code, 1860 (in short the 'IPC'). Appellant Bhargaven was sentenced to

undergo imprisonment for life for offence punishable under Section 302

read with Section 149 IPC and to pay a fine of Rs.60,000/- with default

stipulation. The other four appellants were awarded similar custodial

sentence but the fine in their cases was Rs.35,000/- each. No separate

sentence was awarded for offences relatable to Sections 143 and 148 IPC.

The Kerala High Court by the impugned common judgment dismissed the

appeals filed by the appellants confirming the conviction and sentences

imposed.

Prosecution version as unfolded during trial is as follows:

Chandran (hereinafter referred to as the deceased), a Gulf returned

agriculturist while on his way to Panthalam market around midnight

between 25.5.95 and 26.5.95 at a Panchayat road at Arunoottimangalam was

brutally assaulted. Soon he was lifted to the Government Hospital,

Mavelikara. After first aid, he was referred to the Medical College

Hospital suspecting head injury. The injured was shifted to the Medical

College hospital, Kottayam. While undergoing treatment he succumbed to

the injuries at around 12.50 p.m. on 27.5.95. After return from his

engagement abroad deceased was engaged in betel cultivation and trade.

Valsala (PW-15) is his widow, and Manoharan (PW-4) was his brother.

Santosh (PW-18) was his nephew. On 25.5.1995 he was on his way to

Panthalam market, which starts functioning from early hours in the

morning. When deceased and Santosh (PW-18) reached near the house of

P.K. Ramachandran (PW-14), all the named accused (A-1 to A-6) and two

others waylaid them. Bhargavan (A-1) dealt a blow on the head of the

deceased with an iron rod stating that he should not live any more.

Deceased slumped on receiving the blow. Then Dhanarajan alias Dhanan hit

the deceased with motor cycle chain on his neck and back. Deceased cried

out in pain, hearing which A-1 said that he was not dead and should be

finished. Responding to this, accused Sudhakaran (dead), Chandran,

Sadasivan and Radhakrishnan (A-2, A-3, A-5 and A-6 respectively)

assaulted the deceased on the head and back with sticks. Santosh (PW-18)

cried for help and ran towards home. Hearing the cry Manoharan (PW-4)

and other neighbours rushed to the spot. On the way Santosh (PW-18) met

Manoharan (PW-4). Meanwhile Anandan (PW-2) and Nalini (PW-3) rushed

there. Anandan (PW-2) and Manoharan (PW-4) supinated the deceased who

asked for water and named the accused persons to have assaulted him. PWs

3 and 4 gave water to the deceased. PW-18 Valsala (PW-15) and others in

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the meantime reached the place. PW-4, PW-18 and others shifted the

deceased to the Government Hospital, Mavelikara. Dr. V.C. Alexander (PW-

5) attended the injured and opined that he should be shifted to Medical

College Hospital, Kottayam as there was suspected head injury. He also

sent an intimation to the Mavelikara Police Station. Since PW-4 and PW-

18 did not carry much money, they returned home, collected some money

and clothes and along with PW-15 searched for a car. They went to the

house of one Shajahan, Advocate requesting for a car. Later, they got a

car and the injured was shifted to Medical College Hospital, Kottayam.

Though he was admitted and treated at the Hospital in the intensive care

unit, he did not survive. The Assistant Sub-Inspector of Police had

received the intimation sent by PW-5. At about 3 p.m. on 26.5.1995, he

recorded the First Information Report on the basis of narration by PW-

18. The occurrence was witnessed by Santosh (PW-18) who was accompanying

the deceased at the time the accused persons assaulted him.

Subsequently, information was lodged at the police station and

investigation was undertaken, on completion of which charge sheet was

filed. According to prosecution the accused persons in furtherance of

their common intention to commit murder formed into an unlawful assembly

and being members of unlawful assembly they were armed with deadly

weapons like iron rod, motor cycle chain and sticks and with intend to

commit murder of the deceased Chandran, he was brutally assaulted at his

head and body and due to the head injuries sustained Chandran breathed

his last.

Six persons faced trial. One of them i.e. accused no.2-Sudhakran

died during the pendency of the appeal on 3.6.99. Twenty eight witnesses

were examined to further the prosecution version. Santosh (PW-18) was

stated to be an eye-witness wheres Anandan, Nalini, Manoharan (PWs 2, 3

and 4 respectively) were stated to be persons before whom the deceased

made dying declaration implicating the accused-appellants. Accused

persons pleaded innocence and false implication because of previous

litigation. A-1 Bhargavan additionally took the plea of alibi to the

effect that he was hospitalized at Medical College Hospital, Kottayam at

the time of occurrence and the possibility of his assaulting the

deceased is improbable. Learned Additional Sessions Judge, Alappuza,

found the prosecution version cogent, credible and trustworthy and

convicted and sentenced the accused persons-appellants as aforesaid.

In support of the appeals, learned counsel for the appellants

submitted that the trial Court and the High Court have erroneously held

the accused persons guilty as the prosecution version is clearly

unacceptable. Evidence of PW-18 is not only unreliable because of his

relationship with the deceased, but also on the ground that he had

litigation with the accused persons' family. The so-called dying

declaration before PWs. 2, 3 and 4 is a myth. The doctor clearly stated

that he was unconscious when brought to the hospital and, therefore, the

question of his making a coherent declaration before PWs. 2, 3 and 4 as

claimed is impracticable. Additionally, in the so-called dying

declaration, accused no.1 was not specifically named. The conduct of PW-

18 is not natural. Though claimed that PW-18 had accompanied the

deceased, said fact has not been established. His reaction does not

appear to be normal. It is highly improbable that one person was

assaulted by several persons, and he did not react and remained passive

onlooker. It is equally improbable that after having allegedly made

murderous assaults on a person, no attempt was made to even cause a

scratch on a person who claims to have witnessed the entire occurrence.

The Trial Court noticed that accused persons knew the deceased and PW18

were going to the market on particular day. It is, therefore,

improbable that they would leave unscathed a relative of the deceased

who claims to have witnessed the occurrence. Additionally, PW-18 did

not mention the names of the assailants to the doctor who first treated

the deceased. Though it may not be the duty of the doctor to enquire

the names, it is a question of attaching credibility to the evidence of

PW-18. The conduct shown by the PW-18 and others in delaying to take

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the deceased to the hospital and first going to the house of their

advocate on the unacceptable plea that they wanted to use his vehicle

shows that the first information report was lodged after deliberation

and falsely implicating the accused persons. The first information

report was lodged on the next day of occurrence. PWs. 2 and 3 claimed

that they had seen the deceased in an injured condition. Their evidence

goes to show that Santosh (PW-18) was not present when they reached the

spot of occurrence. PW-18 claimed to have seen the assailants in the

light of the shed of PW-14. But the said witness stated that light was

not on when he reached the site. Reliance has been erroneously placed on

the basis of statement of PW-14 (P.K. Ramachandran) recorded under

Section 161 of the Code of Criminal Procedure, 1973 (for short the

'Cr.P.C.'). Even after the movements starting from the assault till the

deceased was taken to the hospital is accepted in the manner described,

even then there is unexplained delay in lodging the first information

report. No credible motive has been established and the least for A-1

there is no apparent motive. The plea of alibi has been erroneously

rejected on hypothetical basis. When the doctor himself has admitted

that appellant-accused no.1 was admitted to the hospital, on the surmise

that he was not there having been permitted to stay outside. It is

nothing but a hypothetical conclusion. Further it was submitted that

Section 149 has no application as the ingredients necessary to bring

application of the said provision have not been established. The

discrepancies in the evidence of witnesses are not minor and

irretrievably affect credibility of their evidence.

In response, learned counsel for the State submitted that the plea

about A-1 having nothing to do with any litigation of deceased and

accused except being the latter's advocate is clearly not correct

factual position because the Trial Court itself noticed about cases

instituted by A-1 against the accused. The evidence of PW-14 has

rightly been discarded on the question of availability of light.

Evidence of PW-13 (R. Ramachandran) and PW18 clearly shows that light

was on. It is not that the deceased was unconscious althrough as

claimed by the accused-appellant. On the contrary evidence of PW-3 shows

that he became unconscious after dying declaration as would be evident

from the fact that he asked for and was given a glass of water which he

took. Section 149 has been rightly applied as all the accused persons

carried weapons and their presence and acts done have been established.

The time of occurrence was after mid-night and the distance to the

hospital was such as it took nearly 3 hours to reach it. PW-18 has also

stated as to why he could not come to the rescue of the deceased. The

plea of alibi has been rightly rejected in view of the evidence of

doctor and the nurses i.e. PWs. 19 to 22. In essence it was submitted

that the concurrent findings recorded by the Trial Court and the High

Court about the guilt of the accused did not warrant any interference.

The plea relating to interested witness is a regular feature in

almost every criminal trial.

We shall first deal with the contention regarding interestedness

of the witnesses for furthering prosecution version. Relationship is

not a factor to affect credibility of a witness. It is more often than

not that a relation would not conceal actual culprit and make

allegations against an innocent person. Foundation has to be laid if

plea of false implication is made. In such cases, the court has to

adopt a careful approach and analyse evidence to find out whether it is

cogent ad credible.

In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364)

it has been laid down as under:-

"A witness is normally to be considered independent

unless he or she springs from sources which are

likely to be tainted and that usually means unless

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the witness has cause, such as enmity against the

accused, to wish to implicate him falsely.

Ordinarily a close relation would be the last to

screen the real culprit and falsely implicate an

innocent person. It is true, when feelings run high

and there is personal cause for enmity, that there is

a tendency to drag in an innocent person against whom

a witness has a grudge along with the guilty, but

foundation must be laid for such a criticism and the

mere fact of relationship far from being a foundation

is often a sure guarantee of truth. However, we are

not attempting any sweeping generalization. Each

case must be judged on its own facts. Our

observations are only made to combat what is so often

put forward in cases before us as a general rule of

prudence. There is no such general rule. Each case

must be limited to and be governed by its own facts."

The above decision has since been followed in Guli Chand and Ors.

v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v.

State of Madras (AIR 1957 SC 614) was also relied upon.

We may also observe that the ground that the witness being a close

relative and consequently being a partisan witness, should not be relied

upon, has no substance. This theory was repelled by this Court as early

as in Dalip Singh's case (supra) in which surprise was expressed over

the impression which prevailed in the minds of the Members of the Bar

that relatives were not independent witnesses. Speaking through Vivian

Bose, J. it was observed:

"We are unable to agree with the learned Judges of

the High Court that the testimony of the two

eyewitnesses requires corroboration. If the

foundation for such an observation is based on the

fact that the witnesses are women and that the fate

of seven men hangs on their testimony, we know of no

such rule. If it is grounded on the reason that they

are closely related to the deceased we are unable to

concur. This is a fallacy common to many criminal

cases and one which another Bench of this Court

endeavoured to dispel in \026 'Rameshwar v. State of

Rajasthan' (AIR 1952 SC 54 at p.59). We find,

however, that it unfortunately still persists, if not

in the judgments of the Courts, at any rate in the

arguments of counsel."

Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202)

this Court observed: (p. 209-210 para 14):

"But it would, we think, be unreasonable to contend

that evidence given by witnesses should be discarded

only on the ground that it is evidence of partisan or

interested witnesses.......The mechanical rejection

of such evidence on the sole ground that it is

partisan would invariably lead to failure of justice.

No hard and fast rule can be laid down as to how much

evidence should be appreciated. Judicial approach

has to be cautious in dealing with such evidence; but

the plea that such evidence should be rejected

because it is partisan cannot be accepted as

correct."

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To the same effect is the decision in State of Punjab v. Jagir

Singh (AIR 1973 SC 2407), Lehna v. State of Haryana (2002 (3) SCC 76)

and Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381). As

observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR

1981 SC 1390), normal discrepancies in evidence are those which are due

to normal errors of observation, normal errors of memory due to lapse of

time, due to mental disposition such as shock and horror at the time of

occurrence and those are always there however honest and truthful a

witness may be. Material discrepancies are those which are not normal,

and not expected of a normal person. Courts have to label the category

to which a discrepancy may be categorized. While normal discrepancies do

not corrode the credibility of a party's case, material discrepancies do

so. These aspects were highlighted recently in Krishna Mochi and Ors. v.

State of Bihar etc. (JT 2002 (4) SC 186).

Another plea which was emphasized relates to the question whether

Section 149, IPC has any application for fastening the constructive

liability which is the sine qua non for its operation. The emphasis is

on the common object and not on common intention. Mere presence in an

unlawful assembly cannot render a person liable unless there was a

common object and he was actuated by that common object and that object

is one of those set out in Section 141. Where common object of an

unlawful assembly is not proved, the accused persons cannot be convicted

with the help of Section 149. The crucial question to determine 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

in Section 141. It cannot be laid down as a general proposition of law

that unless an overt act is proved against a person, who is alleged to

be a member of unlawful assembly, it cannot be said that he is a member

of an assembly. The only thing required is that he should have

understood that the assembly was unlawful and was likely to commit any

of the acts which fall within the purview of Section 141. The word

'object' means the purpose or design and, in order to make it 'common',

it must be shared by all. In other words, the object should be common

to the persons, who compose the assembly, that is to say, they should

all be aware of it and concur in it. A common object may be formed by

express agreement after mutual consultation, but that is by no means

necessary. It may be formed at any stage by all or a few members of the

assembly and the other members may just join and adopt it. Once formed,

it need not continue to be the same. It may be modified or altered or

abandoned at any stage. The expression 'in prosecution of common

object' as appearing in Section 149 have to be strictly construed as

equivalent to 'in order to attain the common object'. It must be

immediately connected with the common object by virtue of the nature of

the object. There must be community of object and the object may exist

only up to a particular stage, and not thereafter. Members of an

unlawful assembly may have community of object up to certain point

beyond which they may differ in their objects and the knowledge,

possessed by each member of what is likely to be committed in

prosecution of their common object may vary not only according to the

information at his command, but also according to the extent to which he

shares the community of object, and as a consequence of this the effect

of Section 149, IPC may be different on different members of the same

assembly.

'Common object' is different from a 'common intention' as it does

not require a prior concert and a common meeting of minds before the

attack. It is enough if each has the same object in view and their

number is five or more and that they act as an assembly to achieve that

object. The 'common object' of an assembly is to be ascertained from

the acts and language of the members composing it, and from a

consideration of all the surrounding circumstances. It may be gathered

from the course of conduct adopted by the members of the assembly. What

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the common object of the unlawful assembly is at a particular stage of

the incident is essentially a question of fact to be determined, keeping

in view the nature of the assembly, the arms carried by the members, and

the behaviour of the members at or near the scene of the incident. It

is not necessary under law that in all cases of unlawful assembly, with

an unlawful common object, the same must be translated into action or be

successful. Under the Explanation to Section 141, an assembly which was

not unlawful when it was assembled, may subsequently become unlawful.

It is not necessary that the intention or the purpose, which is

necessary to render an assembly an unlawful one comes into existence at

the outset. The time of forming an unlawful intent is not material. An

assembly which, at its commencement or even for some time thereafter, is

lawful, may subsequently become unlawful. In other words it can develop

during the course of incident at the spot co instanti.

Section 149, IPC consists of two parts. The first part of the

section means that the offence to be committed in prosecution of the

common object must be one which is committed with a view to accomplish

the common object. In order that the offence may fall within the first

part, the offence must be connected immediately with the common object

of the unlawful assembly of which the accused was member. Even if the

offence committed is not in direct prosecution of the common object of

the assembly, it may yet fall under Section 141, if it can be held that

the offence was such as the members knew was likely to be committed and

this is what is required in the second part of the section. The purpose

for which the members of the assembly set out or desired to achieve is

the object. If the object desired by all the members is the same, the

knowledge that is the object which is being pursued is shared by all the

members and they are in general agreement as to how it is to be achieved

and that is now the common object of the assembly. An object is

entertained in the human mind, and it being merely a mental attitude, no

direct evidence can be available and, like intention, has generally to

be gathered from the act which the person commits and the result

therefrom. Though no hard and fast rule can be laid down under the

circumstances from which the common object can be called out, it may

reasonably be collected from the nature of the assembly, arms it carries

and behaviour at or before or after the scene of incident. The word

'knew' used in the second branch of the section implies something more

than a possibility and it cannot be made to bear the sense of 'might

have been known'. Positive knowledge is necessary. When an offence is

committed in prosecution of the common object, it would generally be an

offence which the members of the unlawful assembly knew was likely to be

committed in prosecution of the common object. That, however, does not

make the converse proposition true; there may be cases which would come

within the second part but not within the first part. The distinction

betweens the two parts of Section 149 cannot be ignored or obliterated.

In every case is would be an issue to be determined, whether the offence

committed falls within the first part or it was an offence such as the

members of the assembly knew to be likely to be committed in prosecution

of the common object and falls within the second part. However, there

may be cases which would be within first offences committed in

prosecution of the common object would be generally, if not always, with

the second, namely, offences which the parties knew to be likely

committed in the prosecution of the common object. (See Chikkarange

Gowda and others v. State of Mysore, AIR 1956 SC 731.)

The other plea that definite roles have not been ascribed to the

accused and, therefore, Section 149 is not applicable, is untenable. A

4-Judge Bench of this Court in Masalti's case (supra) observed as

follows:

"Then it is urged that the evidence given by

the witnesses conforms to the same uniform pattern

and since no specific part is assigned to all the

assailants, that evidence should not have been

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accepted. This criticism again is not well founded.

Where a crowd of assailants who are members of an

unlawful assembly proceeds to commit an offence of

murder in pursuance of the common object of the

unlawful assembly, it is often not possible for

witnesses to describe accurately the part played by

each one of the assailants. Besides, if a large

crowd of persons armed with weapons assaults the

intended victims, it may not be necessary that all of

them have to take part in the actual assault. In the

present case, for instance, several weapons were

carried by different members of the unlawful

assembly, but it appears that the guns were used and

that was enough to kill 5 persons. In such a case, it

would be unreasonable to contend that because the

other weapons carried by the members of the unlawful

assembly were not used, the story in regard to the

said weapons itself should be rejected. Appreciation

of evidence in such a complex case is no doubt a

difficult task; but criminal courts have to do their

best in dealing with such cases and it is their duty

to sift the evidence carefully and decide which part

of it is true and which is not."

To similar effect is the observation in Lalji v. State of U.P.

(1989 (1) SCC 437). It was observed that:

"Common object of the unlawful assembly

can be gathered from the nature of the assembly,

arms used by them and the behaviour of the

assembly at or before the scene of occurrence.

It is an inference to be deduced from the facts

and circumstances of each case."

In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC 747) it was

observed that it is not necessary for the prosecution to prove which of

the members of the unlawful assembly did which or what act. Reference

was made to Lalji's case (supra) where it was observed that "while

overt act and active participation may indicate common intention of the

person perpetrating the crime, the mere presence in the unlawful

assembly may fasten vicariously criminal liability under Section 149".

Above being the position, we find no substance in the plea that

evidence is not sufficient to fasten guilt by application of Section

149.

So far as non-disclosure of names to the doctor, same is really

of no consequence. As rightly noted by the Courts below, his primary

duty is to treat the patient and not to find out by whom the injury was

caused. The plea in this regard is clearly unacceptable. The question

was examined by this Court in Pattipati Venkaiah v. State of Andhra

Pradesh (AIR 1985 SC 1715) and similar view was taken.

The evidence of PWs. 2, 3 and 4 is cogent and credible, clearly

supporting the claim that dying declaration was made before them. The

names of the accused persons were claimed to have been stated before

PWs. 2, 3 and 4. Merely because PW-2 says that he did not hear the name

of accused no.1 clearly, that cannot dilute evidentiary value of the

evidence of PWs. 3 and 4 who categorically stated that the name of

accused no.1 was stated.

The plea of alibi was rejected by the Trial Court and the High

Court. The appellant no.1 had not established that he was in the

hospital on the trial. The evidence of doctor and the nurses (PWs. 19

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to 22) clearly shows that he was not given any medicines after initial

examination and that itself was conclusive of the fact that he was not

in the hospital in the evening when the medicines were given to the

patients. It has been specifically stated that he was permitted to stay

outside.

It has also been explained as to why there was delay in lodging

the first information report. The Trial Court and the High Court

considered the evidence and came to hold that the paramount attempt was

to save the life of the deceased, and witnesses tried to take him to the

hospital at Kottayam. The evidence of PW-18 was sufficient in itself to

uphold the conviction. Additionally, there is evidence of the dying

declaration.

Trial Court and the High Court were justified in convicting the

accused and awarding sentences consequentially, and there is no

infirmity in the reasons indicated by the Trial Court, the conclusions

arrived at by it as affirmed by the High Court, to warrant interference.

The appeals fail and are dismissed.