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CASE NO.:

Appeal (crl.) 104-106 of 2003

PETITIONER:

Bikau Pandey and Ors.

RESPONDENT:

State of Bihar

DATE OF JUDGMENT: 25/11/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J

Fifteen persons faced trial for alleged commission of offences

punishable under Section 302 read with Sections 149, 148 of the Indian

Penal Code, 1860 (for short the 'IPC'). Accused No.9 (appellant No.5 in

the present appeals) additionally faced trial for offence punishable

under Section 27 of the Arms Act, 1959(in short the 'Arms Act'). Accused

No.2 Mahendra Rai (Appellant No.8 in the present appeals) who was

separately charged for offence punishable under Section 302 IPC was

acquitted of the said charge but instead was convicted as afore-noted in

terms of Section 302 read with Section 149 IPC. Out of the 15 accused

persons, two were acquitted and three died during pendency of the

appeals before the High Court.

Prosecution version as unfolded during trial and which formed the

foundation of the prosecution case is essentially as follows:

On 17.8.1983, one Sarjug Rai (hereinafter referred to as the

'deceased') lost his life allegedly at the hands of the accused. About

5-6 years preceding the incident when Sarjug Rai was killed there was a

partition of the family properties. Kamal Rai was his nephew who

nourished serious grudge against his uncle, as according to him there

was unequal partition of ancestral properties. Said Kamal Rai, strongly

believed that construction of new house and purchase of tractor,

subsequent to partition by the deceased was made from cash which had not

been divided during partition. Though motive appears to be trivial and

also stale but where direct evidence is available, motive pales into

insignificance. The accusations appearing from the first information

report of Ram Babu Rai (PW-14), son of the deceased and also narrations

made by the witnesses at trial are that on 17.8.1983 while deceased at

about 8.00 a.m. had gone to a temple after taking holy dip in a pond,

adjacent to the temple, the appellants holding weapons came down from

the house of Kamal Rai and came to the temple, pursuant to which Kamal

Rai while exhorting others to liquidate the deceased dealt blows with a

hard and blunt substance on his head as he had been unfair to him in

partitioning the ancestral properties. Dukha Sah (PW-6), the priest of

the temple locked the northern gate of the temple to save the deceased.

However, he could not be saved as accused-appellant Deosharan Rai broke

open the lock and dragged the deceased outside, pursuant to which on

exhortation made by Kamal Rai all dealt indiscriminate blows on him with

lethal weapons which they were carrying. When Shatrughan Pandey (PW-1),

Ram Chandra Rout (PW-2), Nandlal Pandey (PW-4) and Sita Saran Rai (PW-5)

came to rescue on hearing alarms raised by the son of the deceased (PW-

14), they could not proceed to rescue the deceased on being scared by

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the firing resorted to by accused-appellant Satya Narain Rai. Ram Babu

Rai (PW-14) informed the police who visited village Bishanpur and

recorded his statement, pursuant to which investigation commenced. The

police during investigation apart from recording statement of witnesses

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

'Code') visited the place of occurrence, and also made seizure of some

offending articles from the place of occurrence. On conclusion of

investigation, he laid charge sheet before the Court against all the 15

accused persons who were eventually put on trial. In the trial, the

prosecution examined 17 witnesses. The accused persons pleaded innocence

and false implication and examined 16 witnesses to counter the

allegations attributed to them. Those examined by the prosecution were

the villagers of Bishanpur, some outsiders, who were either relations of

the deceased or claimed to have visited the village for holding

panchayati for resolution of the dispute pending between the two

parties, the doctor and also the police officer.

As noted supra, accused persons pleaded innocence and false

implication due to animosity persisting between the parties. Three of

the accused persons pleaded alibi to improbabilise their physical

presence at the site of occurrence. Out of the prosecution witnesses,

seven i.e. PWs 2 to 5, 6, 10, 14 were stated to be eyewitnesses. On

consideration of the evidence on record, learned 3rd Additional Sessions

Judge, Sitamarhi as afore-noted convicted 13 accused persons, acquitted

two. In respect of three who died during the pendency of the appeal

before the High Court the appeals abated. The convicted accused

preferred three separate appeals before the High Court which by the

impugned judgment disposed of them.

In support of the appeals, learned senior counsel submitted that

the appellants have been convicted by application of Section 149 IPC.

The ingredients necessary to bring in application of the said provision

have not been established. The plea of alibi has been accepted in

respect of two accused persons. Though, appellant Mahendra Rai stood at

a better footing, his plea of alibi has been rejected on erroneous

premises. Evidence was produced and a witness was examined to

substantiate his plea of alibi which has been discarded without any

basis. Though there were large number of injuries, no particular one has

been attributed to any particular accused, except accused Deo Sharan Rai

(A-1), Kamal Rai (A-7) and Satya Narain Rai (A-9). Accused Kamal Rai has

died and the rest two are appellants 3 and 5 respectively in these

appeals. The motive which was sought to be indicated as the foundation

of the crime is too scarce and in fact Deo Narain Rai(PW-11) who is not

an eyewitness and spoke about the motive of Kamal Rai has been

disbelieved by both the trial Court and the High Court. The witnesses

are closely related and in fact PW-11 has been discarded as unreliable.

The investigation was more than perfunctory and the Courts below should

have taken note of that. Identification in a mob is highly improbable.

When plea of alibi has been accepted it clearly indicates the extent of

false implication and the design therefor. One of the accused Rabindra

Pandey was a child at the time of occurrence. Though he should have been

separately dealt with under the Children's Act and that having not been

done his conviction is vitiated. The genesis as described by the

prosecution is highly improbable. It is not believable that the deceased

was going to offer puja in a temple which prima facie appears to be

without a deity. The place of occurrence has been chosen in a manner as

would give some credence to the evidence of some persons like Pujari

Dukha Sah (PW-6). The evidence of prosecution is to the effect that all

the accused persons came from the house of accused Kamal Rai. The

visibility from the place where PW-6 claims to have seen them is well

nigh impossible. There is no evidence to show that Kamal Rai has

disclosed to others what he proposed to do, or there was sharing of

common object. On the other hand, even if it was a case of similar or

common intention, at the most, the prosecution could press into service

Section 34 IPC for which there was no charge and for bringing in

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application of Section 34 IPC participation is a must. The allegations

of a very general and repetitive nature have been made against all the

accused persons. There is no evidence that Satya Narain Rai was carrying

a country made gun and therefore the conviction under Section 27 of the

Arms Act is not maintainable.

In response, Mr. B.B. Singh, learned counsel for the State

submitted that the common object which sine qua non have application

under Section 149 IPC has been clearly brought out. The unimpeachable

evidence is that all the accused persons armed with deadly weapons came

from outside the village in a group. The deceased was dragged first and

given lathi blow by accused Kamal Rai which was a fatal one and when his

son (PW-14) wanted to protect gun was fired to dissuade others from

coming to his rescue. The evidence was more than sufficient to attract

Section 149. So far as the alleged interestedness of the witnesses is

concerned, it is trite law that if after careful analysis and scrutiny,

the evidence is found credible, the conviction can be maintained.

Additionally, there were witnesses who were not in any manner related.

So far as the question of alibi is concerned, when presence of the

concerned accused is satisfactorily established, the Court would be slow

to believe the counter evidence unless it is of such quality as would

create a reasonable doubt on the minds of the Court that the prosecution

version was not cogent. The trial Court and the High Court have analysed

in detail the plea of alibi and have discarded it in view of the

evidence on record. So far as the claim of accused Rabindra Pandey to be

a minor is concerned, the order dated 27.7.1984 passed by the trial

Court clearly shows that it had discarded the plea. In fact the school

records clearly indicated that he was more than 18 years of age on the

date of occurrence. The father filed an affidavit with oblique motive to

say that there was a wrong recording in the school register. Apparently,

such a plea is not acceptable and the order dated 27.7.1984 was passed

much before the completion of trial and the same having not been

assailed has become final. Therefore, neither the trial Court nor the

High Court has dealt with this plea which even does not appear to have

been raised before the said Courts.

The jurisdictional issue based on purported age of the accused

needs consideration first. The question relating to age of the accused

was never raised before the courts below during trial, and in appeal,

necessitating a decision in this regard. In fact, the Juvenile Act on

which the appellants have placed reliance was not in existence at the

time of occurrence. Further at no point of time during trial or before

the High Court this question was raised. The necessity of determining

the age of accused arises when the accused raises a plea and the Court

entertains a doubt. Here, when the claim was made by the accused that he

was a child the plea was considered and a decision was rendered that he

was not a child. That order has attained finality without any challenge

thereto. The clearly untenable plea that the school register was wrong,

cannot be accepted by accepting the self-serving affidavit of the

father. In any event, there was no argument advanced either before the

trial Court or the High Court on this issue and the disputed factual

question which has also attained finality in view of an earlier order

cannot be permitted to be raised.

The first information report was lodged almost immediately. The

police station is situated at a distance of 4 K.M. from the place of

occurrence. The occurrence took place at around 8.00 a.m. The FIR was

recorded at 10.00 a.m. almost immediately. The investigating officer

reached the place of occurrence at 11.00 a.m. and the post mortem was

conducted at 4.00 p.m. The evidence on record goes to show that the

eyewitnesses were examined from 2.00 p.m. onwards.

Acquittal of some of the accused persons will not come to the

rescue of the other appellants in respect of whom the High Court has

considered the evidence on record and found them guilty. As noted

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above, PW-1 has no relationship with the deceased and his assertion in

the examination-in-chief has gone unchallenged. It is to be noted that

nothing has been elicited in the cross-examination of various witnesses

as regards the place of occurrence and the manner of occurrence. That

being the position, the convictions as done cannot be faulted.

We shall deal with the question regarding applicability of Section

149 IPC, which was urged emphatically.

A plea which was emphasized by the respondents 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. For

determination of the common object of the unlawful assembly, the conduct

of each of the members of the unlawful assembly, before and at the time

of attack and thereafter, the motive for the crime, are some of the

relevant considerations. What 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

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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 culled 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

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

In every case it 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)]

Therefore, Section 149 has been rightly applied when the factual

position as highlighted by the eyewitnesses is considered. Even if the

absence of motive as alleged is accepted that is of no consequence and

pales into insignificance when direct evidence establishes the crime.

The first information report was lodged almost immediately and whatever

elaboration has been done is really very minor in nature. Mere

seemingly inconsistencies which are not contradictions or omissions or

are of trivial nature do not affect substratum of the prosecution

version. That is the situation in the case at hand. The number of

injuries even if not co-related to the number of assailants is not

material. [See Leela Ram (dead) through Duli Chand v. State of Haryana

and Anr. (AIR 1999 SC 3717)]

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Similarly, even if there are irregularities or illegalities in the

conduct of investigation that is of no consequence. [See State of

Rajasthan v. Kishore (AIR 1996 SC 3035) and State of Karnataka v. K

Yarappa Reddy (AIR 2000 SC 185)]

For discarding the plea of alibi the trial Court and the High

Court have given cogent reasons. Merely because the plea was accepted in

respect of two accused, that cannot be a ground for acceptance of the

plea of alibi so far as accused Mahendra Rai is concerned. It is

interesting to note that the date of occurrence is 17.8.1983 and the

accused Mahendra Rai is supposed to have served from 10.8.1983 onwards

till the date of occurrence. The trial Court noticed that there was no

material to show that on the date of occurrence he was present in the

school throughout and even no appointment letter showing appointment was

produced. This is also evident from the certificate exhibited. The

certificate was to the effect that he was on duty as a guard for a

period from 10.8.1983 to 17.8.1983 on a regular basis. It is

inconceivable that a person was appointed for one week on a regular

basis. That is an additional ground to reject the plea of alibi. The

signatures of the appellant on the attendance register were also found

to be not acceptable.

Merely because two persons have been acquitted that benefit cannot

be extended to others in view of the direct evidence establishing their

presence and participation in the crime. Though it was pleaded that

there was no evidence regarding the breaking of lock as deposed by

eyewitnesses, it is to be noted that investigating officer's objective

findings clearly lead to acceptability of such plea. The broken lock was

seized and exhibited as Exb-1. The marks of violence on the door were

clearly noticed and noted by the investigating officer.

It is a settled position in law that there cannot be a re-

appraisal of evidence unless it is shown that the findings are perverse.

We are not inclined to re-examine the whole of the prosecution

case for finding out as to whether occurrence had taken place 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 the 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 place of occurrence. Time and again, it has been held by this

Court that no interference would be made with the concurrent findings 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 trial Court or the High Court. This Court may interfere

where on proved facts, wrong inferences of law are shown to have been

drawn. It needs to be emphasized that this Court is not a regular court

of appeal to which every judgment of the High Court in criminal case may

be brought up for scrutinising its correctness. It is only in rare or

exceptional case where there is some manifest illegality or grave or

serious irregularity resulting in miscarriage of justice that the Court

would interfere with such findings of fact. In this regard, reference

may be made to the judgments of this Court reported in Duli Chand v.

Delhi Administration (1975 (4) SCC 469), Ramnik Lal Gokaldas and Ors. v.

The State of Gujarat (1976 (1) SCC 6), Mst. Dalbir Kaur and Ors. v.

State of Punjab (1976 (4) SCC 158), Ramanbhai Naranbhai Patel and Ors.

v. State of Gujarat (2000 (1) SCC 358) and Chandra Bihari Gautam and

Ors. v. State of Bihar (JT 2002 (4) SC 62). This does not appear to be a

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case where interference is called for. Looked at from any angle, the

appeals are without merit and deserve dismissal which we direct.