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CASE NO.:

Appeal (crl.) 961 of 1997

PETITIONER:

Shri Gopal & Anr.

RESPONDENT:

Subhash & Ors.

DATE OF JUDGMENT: 23/01/2004

BENCH:

Doraiswamy Raju & S.B. Sinha.

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

This appeal is directed against the judgment dated

15th May, 1997 passed by the Rajasthan High Court in DB

Criminal No. 320/87 whereby and whereunder the respondents

herein were acquitted of the charges of commission of an

offence under Sections 148 and 302 read with 149 of the

Indian Penal Code.

The respondents herein together with Shankerlal and

Maniram were charged under Sections 148 and 302 read with

Section 149 of the Indian Penal Code and were sentenced to

life imprisonment for alleged commission of an offence under

Section 302 read with Section 149. They were further

sentenced to undergo one year's rigorous imprisonment with

fine of Rs. 500/- for commission of an alleged offence under

Section 148 of the Indian Penal Code. Two accused persons

Shankerlal and Maniram were also convicted under Section 27

of the Arms Act and sentenced to undergo rigorous

imprisonment of six months and a fine of Rs. 400/-.

Allegedly, there were two groups in Kanwarpura Tehsil;

one headed by Shri Ramnarayn accused and the other by the

deceased Ram Kumar. Allegedly, a day prior to the date of

incidence, an election of dairy society was conducted. At

about 7 p.m. on 6.6.1986, Atma Ram PW 1, Brijlal PW 10,

Ramnarayan PW 5 and Rajaram were sitting on the chowki in

the house belonging to Brijlal. They saw the accused

persons coming out from the house of Ramnarayan, Sarpanch.

Allegedly, Ramnarayan, Maniram and Shankerlal were armed

with guns, Subhash with lathi and Manohar with pistol. They

proceeded towards the house of Hansraj. Shankerlal armed

with 12-bore gun entered into the house of Hansraj and the

other accused persons proceeded in the lane adjacent and

towards the west of the said house. Allegedly, Ramnarayan

exhorted the others to kill Ramkumar whereupon Shankerlal

fired a shot which hit Ramkumar. Another shot was allegedly

fired by Maniram at Ramkumar but the same missed the target

and hit the wall. Manohar also allegedly tried to fire but

he was unsuccessful. Ramkumar, as a result of multiple

injuries, died on the spot. The motive for commission of

the offence apart from the parties belonging to separate

factions and contesting the elections in which allegedly

Ramnarayan won, related an incidence which occurred 25 or 26

days prior to the date of occurrence, whence Krishna

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trespassed into the house of Poosaram Meghwal and a case

under Section 376 of Indian Penal Code was registered

against Krishna and Ramnarayan, in connection wherewith

allegedly Ramratan and deceased Ramkumar helped Poosaram.

It was further alleged that Hanuman, brother of Shankerlal,

after five days of the said incident, visited Poosaram and

abused him whereupon he was apprehended by deceased

Ramkumar, Prithvi and Ramratan and handed over to the

police.

Before the Trial Court 13 witnesses were examined by

the prosecution. The Trial Court convicted all the five

accused persons both under Section 148 of the Indian Penal

Code and Section 302/149. As noticed hereinbefore.

Shankerlal and Maniram were also convicted of an offence

under Section 27 of the Arms Act.

On appeal against the said judgment, the High Court

acquitted the respondents herein of the charges both under

Section 148 of the Indian Penal and as also Section 302/149

thereof. The High Court further acquitted Shankerlal and

Maniram of the charges under Section 27 of the Arms Act and

converted the sentence under Section 302/149 passed against

them to one under Section 302/34 and the sentence imposed on

Shankerlal and Maniram further remained unaltered.

The High Court in its judgment while noticing the

principles governing commission of an offence under Section

149 of the Indian Penal Code found that the allegation

against the respondents herein are omnibus in nature. The

High Court noticed that the allegation to the effect that

Manohar also attempted to fire his gun but missed was not

correct as the same was not followed by a report of the

ballistic expert. The High Court further noticed that the

other two respondents did not commit any over-act in

assaulting Ramkumar or Ramratan. It was observed that

accused Ramnarayan was standing at a distance of about 120

ft. away from the place of occurrence when Ramkumar was hit.

He was said to have been armed with a gun but did not use

the same. Subhash had merely a lathi in his hand and also

did not use it. The High Court on examining the materials

on records was of the opinion that only Maniram and

Shankerlal indulged in the act of committing murder of

Ramkumar and, thus, the respondents herein were not guilty

of commission of any offence.

Aggrieved thereby, the first informant is before us in

appeal.

Mr. Jain, learned counsel appearing on behalf of the

appellant would submit that the High Court committed a

serious error in passing the impugned judgment inasmuch as

from the evidence adduced by Ramratan PW3, Gopal PW 4, Atma

Ram PW1, Ramnarayan PW 5, Ramnarayan PW 8 and Brijlal PW 10

it would appear that not only the accused had been armed

with guns and lathi and pistol, but also assembled in the

house of Ramnarayan and proceeded to the house of the

deceased, and after sometime, they divided themselves into

two separate groups with a common object of committing the

crime.

The learned counsel would submit that Ramnarayan

exhorted the accused persons to commit the offence, while

standing near the electric pole whereupon Maniram being

armed with a double barrel gun came out of the street and

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fired twice, one of which had hit the deceased; while

Shankerlal fired from his gun which hit Ramkumar on the left

side.

Mr. Jain would contend that having regard to the

provisions contained in Section 141 of the Indian Penal

Code, in the facts and circumstances of this case, the

respondents must be said to have formed a common object to

do away with Ramkumar and, thus, the conviction under

Section 302/149 as also Section 148 was sustainable. It was

argued that the very fact that all the accused persons,

according to Ramratan PW3, Gopal PW 4, Atma Ram PW1,

Ramnarayan PW 5, Ramnarayan PW 8 and Brijlal PW 10 gave

'lalkara' and they not only participated but also played

their roles would also go to show that they are guilty of

commission of the aforementioned offence.

Mr. Uma Datta, learned counsel appearing on behalf of

the respondents per contra would submit that a case under

Section 149 of the Indian Penal Code cannot be said to have

been made out as Maniram and Shankerlal had been found

guilty under Section 302/34. It was contended that Maniram

had also died and Shankerlal has served out his sentence.

Mr. Datta would submit that from the records, it would

appear that PW 1, PW 5 and PW 10 did not make any allegation

about exhortation by all the accused persons; whereas PW 3,

PW 4 and PW 8 did not make any such statement before the

police in relation whereto their attention has been drawn.

Mr. Datta would urge that having regard to the amendment

carried out in Section 162(2) of the Code of Criminal

Procedure by inserting an explanation in terms whereof

'omission' may amount to 'contradiction' in certain

situations. It was contended that the attention of PW 3, PW

4 or PW 8 in the aforementioned situation has been drawn to

'omissions' in their statements under Section 161 of the

Code of Criminal Procedure.

The learned counsel would submit that the prosecution

story was wholly unbelievable inasmuch as even from the

evidence of PW 1 it would appear that they had allegedly

seen the occurrence from a distance. The learned counsel

has drawn our attention to the fact that houses of both the

parties are adjoining each other. It was further contended

that it was impossible for the witnesses to see actual

firing by Shankerlal who allegedly went inside the house as

the wall of the house was six-seven ft. high.

The principles relating to applicability of Section 149

of the Indian Penal Code is not in dispute. For the purpose

of attracting the said provision, it is not necessary that

an over-act must be committed by all the accused persons.

What is necessary is formation of an unlawful assembly and

knowledge of the persons thereof about consequences arising

from doing an act which amounts to offence.

Section 141 of the Indian Penal Code defines 'Unlawful

assembly', as an assembly of five or more persons, if the

common object of the persons composing the same, inter alia,

is to commit any mischief or criminal trespass, or other

offences.

The essence of the offence under Section 149 of the

Indian Penal Code would be common object of the persons

forming the assembly. It is necessary for constitution of

the offence that the object should be common to the persons

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who compose the assembly, that is, that they should all be

aware of it and concur in it. Furthermore, there must be

some present and immediate purpose of carrying into effect

the common object. A common object is different from a

common intention insofar as in the former no prior consent

is required, nor a prior meeting of minds before the attack

would be required whereas an unlawful object can develop

after the people get there and there need not be a prior

meeting of minds.

The High Court has arrived at a finding that Shankerlal

and Maniram were guilty of commission of an offence under

Section 302/34 IPC and not under Section 302/149 IPC.

Keeping in the aforementioned principles, the question

is required to be considered for arriving at a conclusion as

to whether there had been a common object on the part of the

respondents in committing the alleged offence.

In Tahsildar Singh and another Vs. State of U.P. [AIR

1959 SC 1012], this Court held that in terms of Section 145

of the Indian Evidence Act attention of witnesses can be

drawn to such statements which would amount to

contradiction. It was held: "The right of both accused and

the prosecution is limited to contradictions." It was,

thus, held that omission to make a statement in terms of

Section 161 of the Code of Criminal Procedure would not

attract the provisions of Section 145 of the Indian Evidence

Act. However, by reason of Code of Criminal Procedure

explanation has been inserted to Sub-Section (2) of Section

162 which is in the following terms:

"An omission to state a fact or

circumstance in the statement referred

to in sub-section (1) may amount to

contradiction if the same appears to be

significant and otherwise relevant

having regard to the context in which

such omission occurs and whether any

omission amounts to a contradiction in

the particular context shall be a

question of fact."

From the records, it appears that PW 1, PW 5 and PW 10

did not make any allegation as regard the alleged

exhortation on the part of all the accused. It further

appears that PW 3, PW 4 and PW 8 stated before the police

that there had been such exhortations by the respondents

herein. Such omission on the part of PW 3, PW 4 and PW 8,

in the facts and circumstances of the case, being very

material would amount to contradiction.

Furthermore, the informant PW 1 stated that the

distance between the house of Ramnarayan Sarpanch is one

killa or 1.1/4 killa. 1 killa is equivalent to one acre.

There are contradictions in the statements of the

witnesses as regard the nature of weapon held by Manohar.

It further appears from the record that the house of Hansraj

and the house of the deceased are almost in front of each

other. It is, therefore, unlikely that for commission of an

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offence like culpable homicide amounting to murder, the

accused persons would go in a procession and all of them

would shout together.

It further appears that witnesses are related to each

other. PW 5 is uncle of Atma Ram. PW 8 Ramnarayan is

brother-in-law of Gopal. Ramratan is also his first cousin.

Shanker and Maniram are real brothers. Subhash and Manohar

accused are the nephews of Ramnarayan accused. Maniram and

Shanker have no relation with Ramnarayan accused. According

to PW-8 the house of Ram Narayan accused is towards the east

from the house of Hansraj, which is at a distance of three

bighas from his house. As regard distance, according to PW-

8, the house of deceased Ramkumar was towards south of his

house, which is situated at a distance of five bighas. How,

thence, could see the occurrence is not explained.

It is, therefore, unbelievable that the accused persons

would behave in the manner as alleged by the PW 8.

Furthermore, from the evidence of PW 3 Ramratan, it appears,

that the place behind the wall where Shankerlal was standing

and fired at Ramkumar was about 6-7 ft. high. It is,

therefore, not possible for any witness to have witnessed

actual firing of any shot by Shankerlal. PW 10 Brijlal

stated that when Shankerlal entered the house of Hansraj, no

suspicion came in his mind and only after he heard the sound

of firing, he became suspicious. This also raises a doubt in

our mind as regard formation of common object by the accused

persons.

In the First Information Report, it was alleged that

both Ramkumar and Ramratan were coming from the house of

Ramratan towards the house of the informant's brother-in-law

Ramnarayan, as has been noticed by the learned Trial Judge

in his judgment. However, in his evidence, it was stated

that Ramratan and Ramkumar were going to the house of

Ramkumar which was at a distance.

Furthermore, three cartridges had been recovered which

are said to have been fired from the 12-bore SBBL guns

marked as W/1 and W/2. The ballistic experts state that one

of them had not been fired by any of the two admitted SBBL

guns.

The aforementioned factors are also relevant and

required to be taken into consideration along with the

findings arrived at by the Division Bench of the High Court

acquitting the respondents herein from the charges of

Section 148 and Section 302/149 of the Indian Penal Code for

the purpose of arriving at a finding as to whether

appellants are guilty of commission of the offences under

Section 302/149 IPC or not.

While considering an appeal of acquittal, this Court

may not interfere when two reasonable views are possible to

be taken and the view taken by the Court below is one of

such possible views. [See State of Rajasthan vs. Raja Ram,

[(2003) 8 SCC 180] and [Chanakya Dhibar (Dead) vs. State of

West Bengal, 2003 (10) SCALE 883].

We have highlighted hereinbefore certain discrepancies

in the prosecution case only for the purpose of satisfying

ourselves that the view taken by the High Court as regard

doubtful participation of the respondents herein is a

possible view. Once it is held that the prosecution case as

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regard material aspects relating to implication of certain

accused persons is doubtful, we are of the opinion that it

would not be proper for this Court to interfere with the

judgment of the High Court even if a different view is

possible to be taken. The High Court, as noticed,

hereinbefore, had held only two persons, Shankerlal and

Maniram guilty of commission of an offence under Section

302/34. There is nothing on records to show that the

respondents herein had any motive or common intention to

commit the crime. While considering a judgment of

acquittal, this Court will not evolve a new case.

We, therefore, are of the opinion that the judgment of

the High Court does not suffer from any infirmity. If the

findings of the High Court arrived at by the learned Judges

can be supported in the circumstances of the case, in our

opinion, it would not be prudent to disturb the said

judgment. (See Bachhu Narain Singh Vs. Naresh Yadav and

Others, 2003 (10) SCALE 932 and State of U.P. vs. Babu Khan

& Others, 2004 (1) SCALE 11).

For the reasons aforementioned, this appeal is

dismissed.