This appeal contests the ruling of the Gujarat High Court in the Supreme Court.
No Acts & Articles mentioned in this case
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1525 OF 2009
Vinubhai Ranchhodbhai Patel … Appellant
Versus
Rajivbhai Dudabhai Patel & Others … Respondents
WITH
CRIMINAL APPEAL NOS.15261527 OF 2009
J U D G M E N T
Chelameswar, J.
1.On 11.07.1992, at about 10.10 pm, an incident occurred in
the village of Nana Ankadia leaving 3 persons dead and 5 persons
injured. It appears from the judgment of the High Court:
“…information about the incident was conveyed by wireless
message by PSO of Amreli (Rural) Police Station to PSI, Mr. NG
Rajput. On the basis of the said information, PSI, Rajput had
gone to village Nana Ankadia and found three dead bodies lying
near the shop of Bhikabhai and after getting some further
information, he had gone to Amreli Hospital and recorded
complaint from Vinu Ranchhod, which was registered at about
1.30 a.m. on 12.07.1992. On the basis of the said complaint,
PSI, Rajput started investigation by recording statements,
drawing panchnamas and sending the dead bodies for post
mortem etc.”
1
2.On completion of investigation, a chargesheet came to be
filed against 15 accused because the remaining two accused A16
and A17 were absconding for some time. The matter was
committed to the Sessions Court of Amreli as offences were
exclusively triable by the Court of Sessions. In Sessions Case No.
118/1992, trial was conducted against 15 accused. The trial
insofar as the two absconding accused was segregated from the
trial of the remaining even after they were apprehended and they
were put to trial separately in Sessions Case No. 58/98 before the
Special Judge of the Fast Track Court, Amreli.
3.In Sessions Case No.118/1992, the Sessions Court by its
judgment dated 17.01.1996 recorded the conviction of A1, A5,
A10 and A12 as follows:
“Prosecution has proved the criminal offence punishable under
section 302 and 148 of the Indian Penal Code and under section
135(1) of the B.P. Act, against the accused No. 10 and [12]
respectively Nanjibhai Khodabhai and Ratilal Nagji, and therefore
the accused No. 10 and 12 are convicted under sections 302, 148
IPC and section 135(1) of the B.P. Act. The accused No. 1 Ravji
Duda is convicted for the criminal offence punishable under
section 326 and 148 of IPC and section 135(1) of B.P. Act.
Whereas the accused No. 5 Manubhai Makanbhia is convicted for
the criminal offence punishable under section 326, 323 and 148
of the IPC and section 135(1) of the B.P. Act. Whereas the
accused other than these accused, the prosecution has not been
able to prove their case beyond doubt therefore the accused No.
2,3,4,6,7,8,9,11,13,14 and 15 are given the benefit of doubt and
are acquitted, and if they are not required in any other matter,
then the accused Nos. 2,3,4,6,7,8,11,13,14 be released from
2
judicial custody. The accused No. 2,4,9 and 15 are enlarged on
bail, their bail bonds are ordered to be cancelled.”
And by separate order dated 17.01.1996, A10 and A12 were
sentenced to imprisonment for life for an offence punishable
under Section 302 Indian Penal Code [hereinafter referred to as
“IPC”]; one year rigorous imprisonment for an offence punishable
under Section 148 IPC; and six months rigorous imprisonment
for an offence punishable under Section 135(1) of the Bombay
Police Act [hereinafter referred to as “BP Act”].
4.A1 was sentenced to suffer six years rigorous imprisonment
and a fine of Rs.1000/ for an offence under Section 326 IPC and
one year rigorous imprisonment for an offence punishable under
Section 148 IPC and six months rigorous imprisonment for an
offence under Section 135(1) of the BP Act.
5.A5 was sentenced to six years rigorous imprisonment and
fine for an offence punishable under Section 326 IPC and one
year rigorous imprisonment for an offence punishable under
Section 148 IPC, six months rigorous imprisonment for an
offence under Section 323 IPC and six months rigorous
imprisonment for an offence under Section 135(1) of the BP Act.
3
6.All the convicted accused preferred appeal No. 166/1996
before the High Court of Gujarat challenging conviction and
sentence. The State of Gujarat filed Criminal Appeal
No.167/1996 challenging the acquittal of the remaining thirteen
accused. It must be mentioned here that the original complainant
also filed a Criminal Revision Petition No.138/1996 challenging
the decision of the Sessions Court acquitting eleven of the
accused.
7.The two absconding accused nos.16 and 17 “were tried
separately for the offences punishable under sections 147, 148, 120B, 302
and 307 read with section 149 of IPC and under Section 25(1)(A) of the Arms
Act and under Section 135 of Bombay Police Act in Sessions Case
No.58/98.”
1
They were found not guilty by the Fast Track Court,
Amreli by judgment dated 19.07.2003. The State of Gujarat filed
Criminal Appeal No.1226/2003 against the acquittal of accused
nos.16 and 17.
8.All the appeals and the revision were clubbed together and
disposed of by the High Court by a common judgment dated
1 2.2, Judgment of the High Court.
4
5.10.2004, which is the subject matter of the various appeals
before us.
9.The appeal of A10 and A12 was dismissed by the High
Court. The appeal of accused nos.1 and 5 was partly allowed. The
State appeals challenging acquittals of various accused were
dismissed along with the revision filed by the de facto
complainant. Hence, these appeals, by the State and the de facto
complainant.
10.Admittedly all the convicts have by now served out their
sentences. Some of the accused have even died.
11.An examination of the record in these appeals left us in
distress. The judgments of the Sessions Courts as well as the
High Court leave too much to be desired.
12.We notice the following striking features from the judgment
of the Sessions Court that:
(i)Charges have not been framed in accordance
with the requirements of the CrPC;
(ii)There appears to be a charge (however defectively
framed), conviction and sentencing of 4 accused
for an offence under Section 148 IPC;
(iii) There is an omnibus accusation that the accused
committed offences falling under Sections 143,
5
147, 148 and vicariously liable by virtue of
Section 149 IPC for the offence of Section 302
IPC;
(iv)The judgment does not contain any clear finding:
(a) regarding the existence of an ‘unlawful
assembly’ i.e. regarding the accusation of an
offence punishable under Section 143 IPC;
(b)number of persons (identified or not) who
participated in the attack on the deceased
and the injured; or
(c) the identity of such participants.
(v)The judgment is singularly silent regarding the
post mortem examination report of one of the 3
deceased and the evidence of the doctor who
conducted the post mortem examination. It only
discusses the evidence of the doctor who
conducted the post mortem on the dead bodies of
two of the deceased;
(vi)The judgment does not specify whether the
accused 10 and 12 are guilty of causing the
death of all the 3 deceased or one of them;
(vii)The legal analysis and appreciation of evidence in
the context of the question of vicarious liability is
wholly unsubstantial and not in accordance with
the settled principles of law; and
(viii)There is material on record to indicate that even
some of the accused received injuries in the
transaction but no material is on record
indicating whether any crime is registered and
investigated or anybody is prosecuted in that
regard.
6
13.The judgment in Sessions Case No.118/1992 commences
with an omnibus statement:
“In this case against the present accused, there are charges of
offences under sections 302, 307, 324, 147, 148, 149, 120B of
IPC and section 25(1)(aa) of the Arms Act and section 135 of the
Bombay Police Act, for these offences the charge sheet is filed.”
Later in the same paragraph it is stated:
“Fifteen accused in the case have remained present before the
court, my learned predecessor has on 21/3/1994 below Exh. 1
on charges of offences punishable under sections 143, 147,
148, 302 read with 149, 120b, 307 read with 147, 114, 120b
of the Indian Penal Code and against the accused Nos. 7, 8 and
11 charges under section 27 of the Arms Act, and against all
the accused the offence punishable under section 25 of the
Indian Telegraphs Act, and for carrying weapons the charges of
violation of the Notification by the District Magistrate Amreli,
for which against the accused Nos. 2,4,9,15,10,12,13, 1, 3, 6,
7 and 8 the charges of offence punishable under section 135 of
the Bombay Police Act, charges were pronounced against the
accused.”
It appears from the above that no clear charges appear to have
been framed. At any rate, no document is brought to our notice
showing the charges framed by the Court in spite of repeated
enquiry. It must be remembered that it is a case where three
persons died and five persons were injured allegedly in an attack
by all the accused. Causing death to each one of the three
persons or causing injury to each one of the five persons is a
distinct offence. Similarly, an offence under Section 307 is a
distinct offence specific to a particular victim. The offences under
7
Sections 147 and 148 are distinct offences. Section 149 IPC does
not create a separate offence but only declares the vicarious
liability of all the members of an unlawful assembly in certain
circumstances.
14.It was held by a threejudge bench of this Court in
Shambhu Nath Singh & Others v. State of Bihar
2
:
“Section 149 of the Indian Penal Code is declaratory of the
vicarious liability of the members of an unlawful assembly
for acts done in prosecution of the common object of that
assembly or for such offences as the members of the unlawful
assembly knew to be likely to be committed in prosecution of
that object”
[emphasis supplied]
However, there are benches of a lesser smaller strength
3
which
have observed that Section 149 creates a specific and distinct
offence. In view of the fact that decision in Shambu Nath Singh
was decided by a larger bench, the law declared therein must be
taken to be declaring the correct legal position. With utmost
respect, we may also add that the same is in accord with the
settled principles of the interpretation of the statutes having
regard to the language of Section 149 and its context.
2 AIR 1960 SC 725
3 Sheo Mahadeo Singh v. State of Bihar, (1970) 3 SCC 46 paragraph 9; Lalji v. State of Uttar Pradesh, 1989 (1)
SCC 437 paragraph 9
8
15.Chapter XVII of the Code of Criminal Procedure [hereinafter
referred to as “CrPC”] deals with “charges” in a criminal case.
Sections 211 to 213 deal with the particulars which are required
to be contained in a charge in a criminal trial. These provisions
are made to ensure a fair procedure by which a person accused
of an offence should be tried – a procedure in compliance with
the requirement of the mandate of Article 21 of the Constitution
of India. The accused are entitled in law to know with precision
what is the charge on which they are put to trial. It was held by
this Court in Esher Singh v. State of Andhra Pradesh
4
:
“It is the precise formulation of the specific accusation made
against a person who is entitled to know its nature at the
earliest stage. A charge is not an accusation made or
information given in the abstract, but an accusation made
against a person in respect of an act committed or omitted in
violation of penal law forbidding or commanding it. In other
words, it is an accusation made against a person in respect of
an offence alleged to have been committed by him. A charge is
formulated after inquiry as distinguished from the popular
meaning of the word as implying inculpation of a person for an
alleged offence as used in Section 224 of the IPC.”
[emphasis supplied]
16.In the case on hand where three persons died, the charge
under Section 302 must have been framed on three counts
against specifically named accused with respect to each of the
deceased. Assuming for the sake of argument, that all the 17
4 (2004) 11 SCC 585, para 20
9
persons are accused of causing the death of each one of the three
deceased, distinct charges should have been framed with respect
to each of the deceased. It is also necessary that the court should
record a specific finding as to the guilt of the accused under
Section 302 IPC qua the death of a named deceased. If different
accused are prosecuted for causing the death of the three
different deceased, then distinct charges should have been
framed specifying which of the accused are charged for the
offence of causing the death of which one of the three different
deceased. Charges should also have been proved clearly
indicating which of the accused is charged for the offence under
Section 302 simpliciter or which of the accused are vicariously
liable under Section 149 IPC for causing the death of one or more
of the three deceased. Of course, none of the accused is
eventually found vicariously guilty of the offence under Section
302 IPC read with Section 149 IPC.
17.By definition of the offences covered under Sections 147 and
148
5
, a person cannot be charged simultaneously with both the
offences by the very nature of theses offences. A person can only
5 Section 146 IPC defines the offence of rioting. Section 147, IPC prescribes punishment for offence of rioting.
Section 148, IPC prescribes punishment for offence of rioting armed with deadly weapons.
10
be held guilty of an offence punishable either under Section 147
or Section 148.
18.The legal consequences of framing defective charges or
omission in charges was considered by this Court in Dalbir Singh
v. State of U.P.
6
and this Court held as follows:
“Section 464 of the Code deals with the effect of omission to
frame, or absence of, or error in, charge. Subsection (1) of this
section provides that no finding, sentence or order by a court of
competent jurisdiction shall be deemed invalid merely on the
ground that no charge was framed or on the ground of any
error, omission or irregularity in the charge including any
misjoinder of charges, unless, in the opinion of the court of
appeal, confirmation or revision, a failure of justice has in fact
been occasioned thereby.”
It is obvious from the above that an erroneous or irregular or
even absence of a specific charge shall not render the conviction
recorded by a court invalid unless the appellate court comes to a
conclusion that failure of justice has in fact been occasioned
thereby.
19.In cases where a large number of accused constituting an
‘unlawful assembly’ are alleged to have attacked and killed one or
more persons, it is not necessary that each of the accused should
inflict fatal injuries or any injury at all. Invocation of Section 149
is essential in such cases for punishing the members of such
6 (2004) 5 SCC 334
11
unlawful assemblies on the ground of vicarious liability even
though they are not accused of having inflicted fatal injuries in
appropriate cases if the evidence on record justifies. The mere
presence of an accused in such an ‘unlawful assembly’ is
sufficient to render him vicariously liable under Section 149 IPC
for causing the death of the victim of the attack provided that the
accused are told that they have to face a charge rendering them
vicariously liable under Section 149 IPC for the offence
punishable under Section 302 IPC. Failure to appropriately
invoke and apply Section 149 enables large number of offenders
to get away with the crime.
20.This Court in Bala Seetharamaiah v. Perike S. Rao
7
held:
“8. Unfortunately, the Sessions Judge did not frame charge
against the accused persons for offence punishable under
Section 302 IPC read with Section 149 IPC. It is also important
to note that the relevant prosecution allegations so as to bring
in the ingredients of the offence punishable under Section 302
IPC read with Section 149 IPC also were not incorporated in the
charge framed by the Sessions Judge. The accused were not
told that they had to face charges of being members of an
unlawful assembly and the common object of such assembly
was to commit murder of the deceased and in furtherance of
that common object murder was committed and thereby they
had a constructive liability and thus they committed the offence
punishable under Section 302 IPC read with Section 149 IPC.
Of course the mere omission to mention Section 149 may be
considered as an irregularity, but failure to mention the nature
of the offence committed by them cannot be said to be a mere
7 (2004) 4 SCC 557, para 8.
12
irregularity. Had this mistake been noticed at the trial stage, the
Sessions Judge could have corrected the charge at any time
before the delivery of the judgment. In the instant case, the
accused were told to face a charge punishable under Section
302 simpliciter and there was no charge under Section 302 IPC
read with Section 149 IPC. Therefore, it is not possible to
reverse the conviction of the accused under Section 326 IPC
and substitute the conviction for the offence punishable under
Sections 302/149 IPC as there was no charge framed against
them for such offence.”
21.When a large number of people gather together (assemble)
and commit an offence, it is possible that only some of the
members of the assembly commit the crucial act which renders
the transaction an offence and the remaining members do not
take part in that ‘crucial act’ for example in a case of murder,
the infliction of the fatal injury. It is in those situations, the
legislature thought it fit as a matter of legislative policy to press
into service the concept of vicarious liability for the crime.
8
Section 149 IPC is one such provision. It is a provision conceived
in the larger public interest to maintain the tranquility of the
society and prevent wrong doers (who actively collaborate or
assist the commission of offences) claiming impunity on the
8 Ram Gope v. State of Bihar, AIR 1969 SC 689 paragraph 5: “… When a concerted attack is made on the
victim by a large number of persons it is often difficult to determine the actual part played by each offender. But
on that account for an offence committed by a member of the unlawful assembly in the prosecution of the
common object or for an offence which was known to be likely to be committed in prosecution of the common
object, persons proved to be members cannot escape the consequences arising from the doing of that act which
amounts to an offence.”
13
ground that their activity as members of the unlawful assembly is
limited.
The responsibility of the prosecution and/or of the Court (in
a case like the one at hand where large numbers of people (5 or
more) are collectively accused to have committed various offences
and subjected to trial) in examining whether some of the
members of such group are vicariously liable for some offence
committed by some of the other members of such group
requires an analysis. Such analysis has two components – (i) the
amplitude and the vicarious liability created under Section 149;
and (ii) the facts which are required to be proved to hold an
accused vicariously liable for an offence.
22.To understand the true scope and amplitude of Section 149
IPC it is necessary to examine the scheme of Chapter VIII
(Sections 141 to 160) of the IPC which is titled “Of the offences
against the public tranquility”. Sections 141 to 158 deal with
offences committed collectively by a group of 5 or more
individuals.
23.Section 141 IPC declares an assembly of five or more
persons to be an ‘unlawful assembly’ if the common object of
14
such assembly is to achieve any one of the five objects
enumerated in the said section.
9
One of the enumerated objects
is to commit any offence.
10
“The words falling under section 141, clause
third “or other offence” cannot be restricted to mean only minor offences of
trespass or mischief. These words cover all offences falling under any of the
provisions of the Indian Penal Code or any other law.”
11
The mere
assembly of 5 or more persons with such legally impermissible
object itself constitutes the offence of unlawful assembly
punishable under Section 143 of the IPC. It is not necessary that
any overt act is required to be committed by such an assembly to
be punished under Section 143.
12
24.If force or violence is used by an unlawful assembly or any
member thereof in prosecution of the common objective of such
assembly, every member of such assembly is declared under
Section 146 to be guilty of the offence of rioting punishable with
two years imprisonment under Section 147. To constitute the
offence of rioting under Section 146, the use of force or violence
need not necessarily result in the achievement of the common
9 See Yeshwant & Others v. State of Maharashtra, (1972) 3 SCC 639
10 Section 40 “offence”.- Except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the
word “offence” denotes a thing made punishable by this Code.
11Manga alias Man Singh Vs. State of Uttarakhand (2013) 7 SCC 629
12 See Dalip Singh and Ors. Vs. State of Punjab , AIR 1953 SC 364.
15
object.
13
In other words, the employment of force or violence need
not result in the commission of a crime or the achievement of any
one of the five enumerated common objects under Section 141.
25.Section 148 declares that rioting armed with deadly
weapons is a distinct offence punishable with the longer period of
imprisonment (three years). There is a distinction between the
offences under 146 and 148. To constitute an offence under
Section 146, the members of the ‘unlawful assembly’ need not
carry weapons. But to constitute an offence under Section 148,
a person must be a member of an unlawful assembly, such
assembly is also guilty of the offence of rioting under Section 146
and the person charged with an offence under Section 148 must
also be armed with a deadly weapon.
14
26.Section 149 propounds a vicarious liability
15
in two
contingencies by declaring that (i) if a member of an unlawful
assembly commits an offence in prosecution of the common
object of that assembly, then every member of such unlawful
assembly is guilty of the offence committed by the other members
13 See Sundar Singh Vs. State, AIR 1955 All 232 (FB)
14See Sabir v. Queen Empress, (1894) ILR 22 Cal 276; In re Choitano Ranto and Others, AIR 1916 Mad 788
15 See Shambu Nath Singh Vs. State of Bihar, AIR 1960 SC 725.
16
of the unlawful assembly and (ii) even in cases where all the
members of the unlawful assembly do not share the same
common object to commit a particular offence, if they had the
knowledge of the fact that some of the other members of the
assembly are likely to commit that particular offence in
prosecution of the common object. The scope of Section 149 IPC
was enunciated by this Court in Masalti
16
:
“The crucial question to determine in such a case 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 by section 141. While determining this question, it
becomes relevant to consider whether the assembly consisted of
some persons who were merely passive witnesses and had
joined the assembly as a matter of idle curiosity without
intending to entertain the common object of the assembly. It is
in that context that the observations made by this court in the
case of Baladin assume significance; otherwise, in law, it would
not be correct to say that before a person is held to be a
member of an unlawful assembly, it must be shown that he had
committed some illegal overt act or had been guilty of some
illegal omission in pursuance of the common object of the
assembly. In fact, section 149 makes it clear that if an offence is
committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as
the members of that assembly knew to be likely to be
committed in prosecution of that object, every person who, at
the time of the committing of that offence, is a member of the
same assembly, is guilty of that offence, and that emphatically
brings out the principle that the punishment prescribed by
section 149 is in a sense vicarious and does not always proceed
on the basis that the offence has been actually committed by
every member of the unlawful assembly.”
27.It can be seen from the above, Sections 141, 146 and 148
create distinct offences. Section 149 only creates a vicarious
16Masalti v. State of U.P., AIR 1965 SC 202.
17
liability. However, Sections 146, 148 and 149 contain certain
legislative declarations based on the doctrine of vicarious liability.
The doctrine is well known in civil law especially in the branch of
torts, but is applied very sparingly in criminal law only when
there is a clear legislative command. To be liable for
punishment under any one of the provisions, the
fundamental requirement is the existence of an unlawful
assembly as defined under Section 141 made punishable
under Section 143 IPC.
28.The concept of an unlawful assembly as can be seen from
Section 141 has two elements;
(i)The assembly should consist of at least five
persons; and
(ii)They should have a common object to commit an
offence or achieve any one of the objects
enumerated therein.
29.For recording a conclusion, that a person is (i) guilty of any
one of the offences under Sections 143, 146 or 148 or (ii)
vicariously liable under Section 149 for some other offence, it
must first be proved that such person is a member of an
‘unlawful assembly’ consisting of not less than five persons
18
irrespective of the fact whether the identity of each one of the 5
persons is proved or not. If that fact is proved, the next step of
inquiry is whether the common object of the unlawful assembly is
one of the 5 enumerated objects specified under Section 141 IPC.
30.The common object of assembly is normally to be gathered
from the circumstances of each case such as the time and place
of the gathering of the assembly, the conduct of the gathering as
distinguished from the conduct of the individual members are
indicative of the common object of the gathering. Assessing the
common object of an assembly only on the basis of the overt acts
committed by such individual members of the assembly, in our
opinion is impermissible. For example, if more than five people
gather together and attack another person with deadly weapons
eventually resulting in the death of the victim, it is wrong to
conclude that one or some of the members of such assembly did
not share the common object with those who had inflicted the
fatal injuries (as proved by medical evidence); merely on the
ground that the injuries inflicted by such members are relatively
less serious and non fatal.
19
31.For mulcting liability on the members of an unlawful
assembly under Section 149, it is not necessary that every
member of the unlawful assembly should commit the offence in
prosecution of the common object of the assembly. Mere
knowledge of the likelihood of commission of such an offence by
the members of the assembly is sufficient. For example, if five
or more members carrying AK 47 rifles collectively attack a victim
and cause his death by gunshot injuries, the fact that one or two
of the members of the assembly did not in fact fire their weapons
does not mean that they did not have the knowledge of the fact
that the offence of murder is likely to be committed.
32.The identification of the common object essentially requires
an assessment of the state of mind of the members of the
unlawful assembly. Proof of such mental condition is normally
established by inferential logic. If a large number of people
gather at a public place at the dead of night armed with deadly
weapons like axes and fire arms and attack another person or
group of persons, any member of the attacking group would have
to be a moron in intelligence if he did not know murder would be
a likely consequence.
20
33.The Sessions Court purported to frame ‘issues’ – a practice
statutorily mandated under the Code of Civil Procedure as one of
the ingredients of the adjudication of a suit. But, we are
informed that in the State of Gujarat the practice of framing
“issues” is prevalent even in the trial of a criminal case. Be that
as it may, obviously ‘issues’ are not the same as “charges”. They
are not framed prior to the commencement of trial. They are only
‘identified’ at the time of writing the judgment.
34.Issue Nos.2 and 4 framed by the Sessions Judge are with
respect to offence of unlawful assembly, rioting and the vicarious
liability under the IPC. Issue Nos. 2 and 4 read as follows:
“(2) Whether the prosecution has proved that, the accused and
the persons of the complainant party are the Kadva and Leuva
Patels of teh Nana Ankadiya, Taluka Amreli, and due to the
enemity between them on 11/7/92 at about 2215 at night near
the Nana Ankadiya village Bus stand, near the shop of
Bhikhabhai in the public place all the accused in this matter
and the absconding accused Chandubhai Vallabhbhai and
Vallabhbhai Khodabhai, thus all of these had constituted an
illegal assembly and with the common intention of killing the
Leuva Patels of the Nana Ankadiya village, attempted to murder,
and at that above time and place, all these accused and the
absconding accused with the intentions of achieving their
common object, caused rioted and committed criminal offence
punishable under section 143, 147?
(4) Whether the prosecution is able to prove that, the accused
had for achieving the common object of their illegal assembly,
made use of the weapons carried by them and had assaulted
Chhaganbhai Premjibhai Patel, Madhubhai Mohanbhai Patel
and Pragjihai Parbatbhai Patel and fired at them and by such
act they were well aware that they would certainly be killed and
21
inspite of this intentionally and with the intentions of killing,
caused grievous injuries, and all the three persons were
assaulted and murdered, the said act was committed by the
accused No. 2,4,5 and 9 using stick, and accused No. 10, 12
using sword, and accused No. 1, 3 and 6 using their dhariya, all
three deceased were caused injuries and murdered, and thus
the accused have committed criminal offence punishable under
section 302, 149 and 114 of the IPC”
[emphasis supplied]
35.Issue No. 2 makes a reference to all the accused put to
trial along with absconding accused (put to trial subsequently in
Sessions Case No. 58) in the context of the offences of the
unlawful assembly and rioting. Issue No. 4 does not make a
reference to “all the accused”, in the context of the offences under
Sections 302 read with Section 149 IPC. But in view of the
reference to the illegal (obviously the learned Judge meant
unlawful) assembly we assume that the Sessions Court intended
to examine the vicarious liability under Section 149 of all the
accused in the context of the death of the three victims. Since
the prosecution invoked Section 149, charges should have been
framed specifying which of the accused are sought to be
punished for which offence with the aid of Section 149.
36.From the judgment of the Sessions Court, we do not see any
clear findings recorded (i) as to the existence of an unlawful
assembly, (ii) if it existed, how many (number of the members)
22
were present in the unlawful assembly. It must be remembered
that the accusation is that all the 17 accused were members of
the unlawful assembly. There appears to be an accusation of the
commission of the offence under Section 143 IPC. There is no
finding whether the assembly consisted of 17 members or less
(number) and which of the 17 accused were present (the identity)
in the assembly. Nor is there any clear finding regarding the
common object of the assembly. Consequentially, there is no
finding recorded by the Sessions Court whether an offence of
unlawful assembly punishable under Section 143 was committed
by all or some of the accused. The Trial Court recorded the
conviction under Section 148 IPC against 4 accused. Logically it
should follow that the trial court was of the opinion that there
was an unlawful assembly. That means more than 5 people
participated in the attack. In such a case even assuming for the
sake of argument the identity of the accused (other than the 4
convicts) is not proved beyond reasonable doubt, A1 and A5
who were found to have been guilty of the offence under Section
148 should normally have been found vicariously guilty of the
offence of murder along with A10 and A12 (provided of course
that they are not prejudiced by the improper framing of charges).
23
The record is not very clear whether the accused were told they
were to face a charge of being members of the unlawful assembly,
whose common object was to commit murder of the three
deceased.
37.Coming to the conviction of A10 and A12, the mere
statement in the Sessions Court’s judgment that two of the
accused were found guilty of offence punishable under Section
302 of the IPC falls short of the requirement of law in a case
where more than one person died in the transaction. Equally the
other two accused who are convicted of other offences mentioned
earlier are entitled to know the details of the offence for which
they are convicted.
38.We shall now examine the judgment of the High Court. The
High Court completely failed to take note of the defects in framing
of the charges.
The High Court recorded a finding at paragraph 19, that the
prosecution witnesses are trustworthy and they had witnessed
the incident. However, in paragraph 20
17
, the High Court records
17 “20.… However, all the PWs have not specifically involve all the accused. Likewise, there are certain
discrepancies in their evidence regarding the part played by them, the weapons carried by them etc., that in our
opinion is natural as all the accused, 17 in number came all of a sudden and started assaulting and that too
during night hours when visibility was also low. Because of the same, the learned trial judge acquitted A-2, A-3,
A-4, A-6, A-7, A-8, A-9, A-11, A-13, A-14 and A-15 by giving benefit of doubt. In other words, the learned
24
that there are discrepancies in the evidences of PWs regarding
the part played by each of the accused, the weapons carried by
them, etc.. The High Court takes note of the fact that the
Sessions Court acquitted 11 accused by giving the benefit of
doubt. To us, it is not very clear whether the Sessions Court
doubted the very presence of the 11 accused in the unlawful
assembly or the Sessions Court doubted the very existence of an
‘unlawful assembly’ for the lack of proof of either the requisite
number of the accused to constitute the unlawful assembly or for
the lack of proof of the common object which renders the
assembly to be an unlawful assembly (even if the court concluded
that more than 5 people participated in the transaction). The
High Court readily drew an inference that the Sessions Court
disbelieved the case of the prosecution regarding the existence of
an unlawful assembly, in our opinion, a very unsatisfactory way
of analyzing the case of the prosecution vis
àvis the vicarious
liability of the accused under Section 149.
trial judge disbelieved the case of the prosecution of unlawful assembly and convicted the accused of their
individual act. After carefully examining the evidence on record, we are of the view that the presence of A-2,
A-4, A-9 and A-15 who were alleged to have carried sticks, is not established. The complainant involved them
in his further statement. Likewise other PWs are also contradicted about the presence of these accused with
their previous statement. Apart from that in the post mortem reports of the deceased as well as in the injury
certificates of the injured, the injuries do not reveal any injury possible with sticks.”
25
The High Court recorded a finding with reference to 4
accused (A2, A4, A9 and A15) who according to the
prosecution were alleged to have carried sticks, that there is no
evidence on record to prove the same on three grounds: (i) that
their names were not to be found in the FIR (ii) that there were
improvements in the evidence of the PWs at various stages
regarding the presence of the four accused and (iii) that the
medical evidence does not disclose any injury which could have
been attributed to the beatings by sticks. In our opinion, the first
two reasons given by the High Court are legally tenable, however,
the third reason, i.e. the absence of injuries attributable to a
stick, need not necessarily result in a conclusion that the
accused were not present in the unlawful assembly. But the
absence of such injuries cannot said to be an irrelevant
consideration in arriving at a conclusion whether the four
accused participated in the unlawful assembly in the background
of the other two factors mentioned above. But a similar analysis
with respect to the seven of the other accused who were given the
benefit of doubt by the Sessions Court is lacking in the judgment
of the High Court.
26
Another important aspect of the matter is that at least one
of the accused (A7) appears to have been injured in the
transaction and it appears from the judgment of the High Court
that an FIR in that regard was lodged. A submission was made
that there was tampering with the record to screen the offence.
18
This aspect of the matter has not been considered either by the
trial Court or by the High Court. In fact, the judgment of the trial
Court contains further details regarding this aspect of the matter
but without recording any conclusive finding.
39.The question is whether this court would be justified in
reversing the finding of acquittal in the case on hand on the
grounds that (i) the framing of charges is egregiously erroneous
and not in accordance with the provisions of the CrPC; or (ii) the
courts below failed to record appropriate findings with respect to
the various offences which the accused are said to have
committed; or (iii) the 1
st
appellate court’s reasoning in declining
to reverse a finding of acquittal recorded by the trial court is
18 Impugned Judgment Para 6.
“ … Finally, Mr. Shethna submitted that investigation in the instant case is also not free from doubt.
According to him, the manner in which the FIR given by A-7, being the first in point of time, was treated
and the manner in which the investigating officer expresses his ignorance in the hospital of the erasure
made in the station diary etc. would go to show that a deliberate attempt is made to falsely involve the
accused.”
27
defective? The answer to the question, in our opinion, should be
in the negative.
40. In Sessions Case No.58/98 against A16 and A17, no
evidence was recorded independently. On the other hand, the
evidence recorded in Sessions Case No.118/1992 was marked as
evidence in Sessions Case No.58/1998. The Indian Evidence Act,
1872 does not permit such a mode of proof of any fact barring in
exceptional situations contemplated in Section 33
19
of the Indian
Evidence Act.
41. There is no material on record to warrant the procedure
adopted by the Sessions Court. On that single ground, the entire
trial of Sessions Case No.58/98 is vitiated and is not in
accordance with procedures established by law. It is a different
matter that both the accused put to trial in Sessions Case
No.58/98 were acquitted by the Fast Track Court and the High
19 “33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. ––
Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the
purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of
the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the
way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the
circumstances of the case, the Court considers unreasonable:
Provided ––
that the proceeding was between the same parties or their representatives in interest; that the adverse party in
the first proceeding had the right and opportunity to cross-examine;
that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation.–– A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the
accused within the meaning of this section.”
28
Court did not interfere with the conclusions recorded by the Fast
Track Court.
42.It is the grievance of the appellant that in spite of the gravity
of the offence and the evidence of the 5 injured witnesses, most of
the accused went scot free without any punishment and, hence,
this appeal.
We do understand the grievance of the appellant. The
following prophetic words of Justice V.R. Krishna Iyer
20
deserve
to be etched on the walls of every criminal court in this country:
“6. … The cherished principles or golden thread of proof
beyond reasonable doubt which runs through the web of our
law should not be stretched morbidly to embrace every
hunch, hesitancy and degree of doubt. The excessive
solicitude reflected in the attitude that a thousand guilty
men may go but one innocent martyr shall not suffer is a
false dilemma. Only reasonable doubts belong to the accused.
Otherwise any practical system of justice will then break
down and lose credibility with the community. The evil of
acquitting a guilty person light heartedly as a learned Author
[ Glanville Williams in ‘Proof of Guilt’.] has sapiently
observed, goes much beyond the simple fact that just one
guilty person has gone unpunished. If unmerited acquittals
become general, they tend to lead to a cynical disregard of
the law, and this in turn leads to a public demand for harsher
legal presumptions against indicted “persons” and more
severe punishment of those who are found guilty. Thus, too
frequent acquittals of the guilty may lead to a ferocious
penal law, eventually eroding the judicial protection of the
guiltless. …”
[emphasis supplied]
20 In Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793, para 6
29
The prophecy came true when Section 21 of TADA Act, 1987
burdened the accused to prove his innocence, and when the
Parliament responded to the public outcry to impose more and
more harsher punishments to persons found guilty of the offence
of rape under Section 376 IPC etc.
43. For all the abovementioned reasons, we should have
recorded a conclusion that there is a failure of justice in the case
on hand looked at from the point of view of either the victims or
even from the point of view of the convicted accused. The most
normal consequence thereafter should have been to order a fresh
trial, but such a course of action after a lapse of 26 years of the
occurrence of the crime, in our opinion, would not serve any
useful purpose because as already indicated some of the accused
have died in the interregnum. We are not sure of the availability
of the witnesses at this point of time. Even if all the witnesses are
available, how safe it would be to record their evidence after a
quarter century and place reliance on the same for coming to a
gist conclusion regarding the culpability of the accused?
44.We are of the opinion that the only course of action
available to this court is that the victims of the crime in this case
30
are required to be compensated by the award of public law
damages in light of the principles laid down by this Court in
Nilabati Behera
21
. In the circumstances, we are of the opinion
that the families of each of the deceased should be paid by the
State an amount of Rs. 25,00,000/ (Rupees Twenty Five Lacs
Only) each and the injured witnesses, if still surviving, otherwise
their families are required to be paid an amount of
Rs.10,00,000/ (Rupees Ten Lacs Only) each. The said amount
shall be deposited within a period of eight weeks from today in
the Trial Court, and on such deposit the said amounts shall be
distributed by the Sessions Judge, after an enquiry and
satisfying himself regarding the genuineness of the entitlement of
the claimants.
45.This case, in our opinion, is a classic illustration of how the
State failed in its primary constitutional responsibility of
maintaining law and order by its ineffectiveness in the
enforcement of criminal law. In our opinion, the reasons for such
failure are many. Some of them are (i) inefficiency arising out of
either incompetence or lack of proper training in the system of
21 Nilabati Behera (Smt) alias Lalita Behera (Through the Supreme Court Legal Aid Committee) v. State of
Orissa & Others, (1993) 2 SCC 746.
31
criminal investigation; (ii) corruption or political interference with
the investigation of crime; (iii) less than the desirable levels of
efficiency of the public prosecutors to correctly advise and guide
the investigating agencies contributing to the failure of the proper
enforcement of criminal law; and (iv) inadequate efficiency levels
of the bar and the members of the Judiciary (an offshoot of the
bar) which contributed to the overall decline in the efficiency in
the dispensation of criminal justice system.
Over a period of time lot of irrelevant and unwarranted
considerations have crept into the selection and appointment
process of Public Prosecutors all over the country. If in a case
like the one on hand where three people were killed and more
than five people were injured, if charges are not framed in
accordance with the mandate of law, the blame must be squarely
taken by both the bar and the bench. Another distressing feature
of the record in this case is the humungous cross examination of
the witnesses by the defense which mostly is uncalled for.
32
46.In view of the above, the appeals stand disposed of.
….....................................J.
(J. CHELAMESWAR)
….....................................J.
(SANJAY KISHAN KAUL)
New Delhi
May 16, 2018.
33
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1525 OF 2009
VINUBHAI RANCHHODBHAI PATEL APPELLANT(S)
VERSUS
RAJIVBHAI DUDABHAI PATEL & ORS. RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.1526-1527 OF 2009
O R D E R
In view of the situation obtaining on the
record, we thought it fit to call for the assistance
of Mr.S.Nagumuthu and Ms.Tarannum Cheema, learned
counsel to assist this Court. We place on record the
invaluable assistance rendered by them as amicus
curiae.
We also deem it appropriate to place on record
the appreciation for the effort put in by Mr.A.Selvin
Raja, learned counsel, a young member of the Bar,
appearing for the appellant.
........................J.
[J.CHELAMESWAR]
........................J.
[SANJAY KISHAN KAUL]
NEW DELHI
MAY 16, 2018
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