GURMAIL SINGH & ANR versus STATE OF UTTAR PRADESH & ANR. on 17 October 2022

[2022] 13 S.C.R. 1011

GURMAIL SINGH & ANR.

v.

STATE OF UTTAR PRADESH & ANR.

(Criminal Appeal No. 965 of 2018)

OCTOBER 17, 2022

[C. T. RAVIKUMAR AND SUDHANSHU DHULIA, JJ.]

Penal Code, 1860: s.149 – Unlawful Assembly – In the instantcase, Accused Nos. 1 and 2 are real brothers of the victim-deceased– Land dispute arose between accused persons and deceased – Onthe fateful day, deceased got to know that accused nos. 1 and 2were getting the paddy crops sown by deceased – When deceasedasked them to stop, appellant along with eight others assaulted himin which he lost his life – Trial Court convicted all the accusedpersons including appellant u/ss.302/149, IPC – High Courtconfirmed conviction and sentence though seven of accused personsdied during its pendency, qua them appeal was dismissed – Onappeal, held: When the presence of the accused at the place ofoccurrence as part of the unlawful assembly was not disputed itwill be sufficient to hold him guilty even if no overt act was attributedto him on the principle of vicarious liability – As regards the questionof effect and impact of reduction of the number of convicts pendingan appeal owing to the death of co-convicts, s.394(1) CrPC providesthat every appeal, except an appeal against the sentence of fine,would abate on the death of appellant as the sentence under appealcould no longer be executed – Abatement is different from acquittal– Mere fact that seven out of the ten convicts died, either during thependency of appeal before the High Court or Supreme Court, couldnot be a reason to the non applicability of the provision forconstructive/vicarious liability – With respect to the contention ofappellant that conviction u/s.302/149 is liable to be altered as oneu/s.304/149, it is evident that appellant was not charged with offencepunishable u/s.302 IPC simpliciter rather convicted u/s.302/149 IPC– As the membership of the appellant is proved, the appellant cannotescape from the vicarious liability for the act committed by any oneof the members of assemblage, if the common object of was to commitmurder – Members of the unlawful assembly were carrying firearmsand used them against the deceased – When someone who sustained

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Agunshot injuries and profusely bleeding was attacked and thepersons who attempted to come to his rescue were also attacked,the only inference that can be drawn from such circumstances isthat the common object was to do away with the life of that person– Hence, the contention of appellant of altering the conviction isunsustainable – Code of Criminal Procedure, 1973 – s.394.B

Dismissing the appeal, the Court

HELD: 1. The first question is when once the prosecutionestablished the membership of an accused / convict in the unlawfulassembly whether the individual overt act also to be establishedCby the prosecution to bring culpability on him on the principle ofconstructive/vicarious liability. According to this Court, no suchburden can be fastened on the prosecution in view of thephraseology under Section 149, I.P.C. [Para 11][1020-D]

Amerika Rai & Ors. v. State of Bihar; AIR 2011 SCD1379; Surendra & Ors. v. State of Uttar Pradesh AIR2012 SC 1743; Yunis alias Kariya v. State of M.P. AIR2003 SC 539; Amar Singh & Ors. v. State of Punjab(1987) 1 SCC 679; Nethala Pothuraju & Ors. v. State ofAndhra Pradesh (1992) 1 SCC 49 – relied on.

E2. The next question to be looked into to appreciate thecontentions of the appellant is whether the reduction in numberof the convicts below five on account of death of the co-accusedgot any impact or effect on the surviving convict(s) in the matterof consideration of his/their, vicarious liability in view of Section149, I.P.C. There can be no two views on the position thatFreduction of number of accused/convicts in an appeal, below fiveon account of acquittal of co-accused/co-convicts and suchreduction in numbers below five due to death of co-convicts aredifferent and distinct. Going by Section 394(1), Cr.P.C. everyappeal under Section 377 or Section 378 shall finally abate on theGdeath of the accused. Sub-section (2) thereof provides that everyother appeal under Chapter-XXIX (except an appeal from asentence of fine) shall finally abate on the death of the appellant.The position is that every appeal, except an appeal against thesentence of fine, would abate on the death of the appellant,because the sentence under appeal in such circumstances, couldH

no longer be executed. This Court held that the mere fact thatseven out of the ten convicts died, either during the pendency ofCriminal Appeal No. 1510/1992 before the High Court or duringthe pendency of this appeal, could not be a reason, by that itself,to canvass non applicability of the provision for constructive/vicarious liability, arising out of the achievement of the commonobject by the unlawful assembly. [Paras 12, 14, 16] [1020-H; 1021-A-B, G-H; 1023-A-B]

Harnam Singh v. State of Himachal Pradesh (1975) 3SCC 343; Hari Prasad Chhapolia v. UOI (2008) 7 SCC690 – referred to.

3. Now considering the question, whether the contentionof the appellant that conviction under Section 302/149 is liable tobe altered as one under Section 304, either Part-I or Part-II,read with Section 149, IPC. This Court took the note of the factthat the appellant was not charged with offence punishable underSection 302, IPC simpliciter. He was convicted under Section302 and Section 149, IPC hence, in view of this Court with theconcurrent finding about membership of the appellant in theunlawful assembly, the appellant cannot escape from theconstructive/vicarious liability for the act committed by any oneof the members of that assemblage by virtue of Section 149, IPCif the common object of the unlawful assembly was to commitmurder and not causing grievous injury. This is so because theobject of Section 149 is to make specific that person whose casecomes within its gamut cannot be permitted to put forth a defencethat he did not, with his own hand, commit the offence committedin prosecution of the common object of the unlawful assembly.[Para 17][1023-B-E]

Kuldeep Yadav & Ors. v. State of Bihar (2011) 5 SCC324; Jai Karan & Ors. v. State of U.P. (2003) 12 SCC655; Rakesh and Anr. v. State of Uttar Pradesh & Anr.(2021) 7 SCC 188 – relied on.

4. The evidence of PWs. 1 and 2 would reveal that themembers of the unlawful assembly were carrying firearms andthey used them against the deceased. The other lethal weaponswere used against the deceased and also against them. When the A

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Afact is that the deceased sustained two gunshots and eventhereafter, he was attacked by the members of the unlawfulassembly, how the common object can be said to be one otherthan committing murder. When someone who sustained gunshotinjuries and profusely bleeding was attacked again and the personswho attempted to come to his rescue were also attacked the onlyBinference that can be drawn from such circumstances is that thecommon object was to do away with the life of that person. In thefacts and circumstances, revealed from the evidence appreciatedby the courts below the conclusion arrived by them that theunlawful assembly was having the common object to commitCmurder cannot be said to be perverse warranting interference bythis Court in exercise of power under Article 136 of theConstitution of India. The very fact that the members of theunlawful assembly, ten in numbers assembled at the place armednot only with firearms but with other lethal weapons as well andthe manner in which they committed the violence and the ultimateDresult would definitely lend support to the said finding. Therefore,there is absolutely no question of considering the contentionsthat the offence of culpable homicide falls either under 304 (PartI) or 304 (Part II). [Paras 20 and 21][1025-B-H; 1026-A-B]

Case Law Reference

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GURMAIL SINGH & ANR. v. STATE OF UTTAR PRADESH &ANR.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.965 of 2018.

From the Judgment and Order dated 19.08.2014 of the High Courtof Judicature at Allahabad in Criminal Appeal No.1510 of 1982.

Dr. Sarbjit Sharma, Ms. Maheen Khan, S. K. Verma, Advs. forthe Appllants.

Sakha Ram Singh, Sr. Adv., Ajay Vikram Singh, Mrs. PriyankaSingh, Advs. for the Respondents.

The Judgment of the Court was delivered by

C. T. RAVIKUMAR, J.

1. The appellants along with eight others stood the trial before theCourt of Additional Sessions Judge – III, Rampur in Uttar Pradesh inSessions Trial No.167/1981 for offences under Sections 302/149, 307/149, 147 and 148 of the Indian Penal Code (for short ‘IPC’). As perjudgment dated 10.06.1982 all of them were convicted under Section302/149, IPC. Further, it was found that offence u/S 307/149 was notmade out against them, but offences under Sections 324/149 and 323/149 were made out. Consequently, they were also convicted under thoseSections. In addition, seven of the accused persons including the appellantswere convicted under Section 148, IPC and the three others wereconvicted under Section 147, IPC. For the conviction under Section 302,IPC they were sentenced to undergo imprisonment for life. For theconvictions under the other Sections, they were handed down differentterms of imprisonment and all the sentences were directed to be runconcurrently. They jointly filed appeal viz., Criminal Appeal No.1510/1982 before the High Court of Judicature at Allahabad. During itspendency seven of them died and consequently, qua them the Appealwas dismissed as abated. As per the impugned judgment dated 19.08.2014,the said appeal qua the surviving appellants – Gurmail Singh, KewalSingh and Karnail Singh was dismissed and the conviction and thesentences were confirmed. Though this appeal has been preferred jointlyby Gurmail Singh and Kewal Singh the latter died during the pendencyof this appeal. Hence, this appeal qua Kewal Singh got abated. KarnailSingh did not join in this appeal. In short, this appeal survives only in thecase of the first appellant – Gurmail Singh and hence, in this appeal,hereafter, he is referred to as ‘the appellant’.

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A2. The appellant was accused No.3 before the Trial Court.Realizing the real scope of the appeal, the learned counsel for the appellantconfined his arguments only for alteration of the conviction to one underSection 304 of the IPC in place of the conviction under Section 302,IPC.B3. Heard, the learned counsel for the appellant and also the learnedcounsel for the State.

4. Briefly stated, the prosecution case is as under:

PW-1 Shri Darshan Singh lodged the First Information Report.Accused Nos. 1 and 2 Messrs. Thakur Singh and Chanan Singh are realCbrothers of his father Dalip Singh (hereinafter referred to as – thedeceased). The siblings purchased sixteen acres of land in villageDhuriayee in district Rampur under two different sale deeds. A saledeed for ten acres of land was executed in favour of Messers ThakurSingh and Chanan Singh and the remaining six acres were registered inDfavour of the deceased under a separate sale deed. Based on mutualconsent a partition of the lands covered by the said sale deeds waseffected. Chanan Singh was a chronic bachelor and he was living withThakur Singh and they were jointly cultivating on the ten acres of landlying towards west of the hedge raised to separate fields, referred to inHindi by the parties ‘Mend’, lying from north to south direction (vertical),Eraised to separate the lands of the parties. The deceased was cultivatingon the portion lying towards east of the said Mend. While so, at a belatedstage Thakur Singh and Chanan Singh sought for an exchange of thelands and asked the deceased to cultivate on six acres of land situatingtowards south of the total extent of sixteen acres so as to enable them toFeffect cultivation on the remaining extent. This was not agreeable to thedeceased. The said sibling dispute initially led to civil litigations and lateron, led to the unfortunate incident in which Dalip Singh lost his life. Thegenesis of the incident is a disputation over the sown field which is astrip of four acres out of the total extent of sixteen acres.G5. On 26.10.1980, PW-1, his parents and brothers were in theirhouse when their servant Rohtash came to inform them that ThakurSingh and Chanan Singh were getting the paddy crop (sown by DalipSingh), reaped using 20-25 labourers and whereupon they proceededthitherwards. PW-1 was holding a lathi fixed with iron buri and theothers were unarmed. On reaching the spot Dalip Singh asked ThakurHSingh and Chanan Singh to stop harvesting. Thakur Singh was armed with Gandassi, Karnail Singh was armed with sword, Chanan Singhand Harcharan Singh were armed with lathis, Gurmail Singh (firstappellant) was armed with ballam, Singhara Singh was unarmed, KewalSingh (the Second appellant) had a country-made pistol and BachanSingh, Avtar Singh and Kartar Singh had guns in their hands. Then co-accused Singhara Singh ordered to drive Dalip Singh and his men off thefield and meanwhile, the men engaged by them continued to reap thecrops. Soon, Bachan Singh, Avtar Singh and Kewal Singh who werecarrying firearms fired at Dalip Singh with a view to kill him and onsustaining firearm injuries he fell down. When PW-1 ran towards DalipSingh the other accused persons inflicted injuries on him, his brothersNirmal Singh and also Dalip Singh with their weapons. PW-1 wieldedhis lathi in self defence. When the accused persons fled from the scene,he managed to get a jeep and enroute to hospital Dalip Singh died.

6. In view of the concurrent findings against the accused personsfounded on convincing reasons on the questions as to whether therewas unlawful assembly and whether the death of Dalip Singh washomicidal in nature, we do not find any compelling reasons or grounds todisturb those findings. So also, the Courts below concurrently found thatThakur Singh and his men (party accused) were the aggressors and theprosecution has succeeded in explaining the injuries found on two of theaccused persons, namely Thakur Singh and Chanan Singh. On our carefulconsideration, we found that those concurrent findings also call for nointerference. However, in view of the contentions raised on behalf ofthe appellants (to be referred infra) certain questions invite carefulconsideration.

7. The contention of the appellant is that none of the ante-morteminjuries found on the body of the deceased is attributable him even if theevidence of PW-1 and PW-2 Nirmal Singh are taken as credible. Thiscontention and the contention that the conviction is liable to be convertedto one under Section 304, IPC appear to be incongruous, though not fullyirreconcilable. It is contended that the appellant was carrying only aballam viz., a spear. Ext. Ka.4 postmortem report did not reveal anyinjury having been caused by a ballam. That apart, it is contended thatno recovery of any weapon, much less a ballam was recovered fromany of the convicts. Before proceeding further with such contentions, itis only apposite to refer to the evidence of PW-4 Dr. HB Bhatt whoconducted the postmortem on the body of Dalip Singh on 27.10.1980

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Aand prepare Ex.Ka.4 report. Going by Ext. Ka-4 postmortem report thefollowing were the ante-mortem injuries sustained by the deceased:

(1) Gunshot wound of entry 1cm x 0.5cm present on inneraspect of right thigh, 12cm above from popliteal fossa whichwas connected to wound of exist measuring 5cm x 1.5cmBon the outer surface of front of right thigh 9cm above fromright knee joint. All the blood vessels & tissues were torn inthe passage of wound. The femur was broken in pieces.Four pieces of shots were found in the wound. Noblackening, tattooing and scorching of skin was present.

C(2)Gunshot wound of entry 0.5cm x 0.5cm present on left thighinner aspect about 13cm above from left popliteal fossaaspect which was connected to wound of exist measuring0.5cm 0.5cm 4cm above from wound of entry. Noblackening was seen.

D(3)Abraded contusion present on middle of back little, ring andmiddle fingers each measuring 2cm x1cm.

(4) Lacerated wound 6cm x 0.5cm x bone deep on left side ofhead 12cm above from left ear.

(5) Contusion 3cm x 1cm on back of right fore-arm about 3cmEabove from right wrist joint.

8. PW-4 Dr. HB Bhatt deposed that cause of death was shockand hemorrhage due to injuries. He had also categorically deposed thatthe injuries were sufficient in the ordinary course of nature to causedeath. We have already held that the concurrent findings that the deathFof Dalip Singh was homicidal is founded on convincing reasons and itcalls for no interference. Injury No.1, which is a gunshot wound asdescribed above, had completely torn the blood vessels and tissues inthe passage of wound and the size of the said wound would reveal thatit is very grievous. The second gunshot injury is also equally grievous innature. The evidence of PW-1 and PW-2 would thus gain support fromGthe evidence of PW-4 with Ext.Ka-4 report that the deceased hadreceived firearm shots and died of gunshot wounds. Besides those gunshotinjuries the deceased had sustained three more ante-mortem injuries asnoted above. In view of the contention of the appellant, as referred toabove, it is relevant to the injuries sustained by PW-1 –Darshan SinghHand PW-2 –Nirmal Singh who are the sons of the deceased. Their GURMAIL SINGH & ANR. v. STATE OF UTTAR PRADESH &ANR. [C. T. RAVIKUMAR, J.]

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testimonies as PW-1 and PW-2 to the effect that they also sustainedinjuries in the same occurrence gain support from the evidence of PW-3 – Dr. N.K. Tandon with Exts. Ka.2 and Ka.3. Going by the evidenceof PW-3 with Ext. Ka.3 PW-1 Darshan Singh had sustained the followinginjuries:-

(1) Abrasion, 2cm x ¼ cm, on the shoulder of left arm backBside.

(2) Contusion 2½ cm x 1cm on left shoulder back side.

(3) Incised wound, 3cm x ¾ cm x ½ cm on left shoulder back-side.

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(4) Contusion 5cm x 1½ cm in the upper portion of the left ear.

(5) Lacerated wound 3cm x ½ cm x bone deep in the backportion of the head. X-ray was advised.

(6) Contusion 5cm x 2cm on the back.

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(7) Contusion 2cm x 1cm on the back side behind the leftshoulder.

9. The evidence of PW-3 with Ext. Ka.2 would reveal that PW-2 – Nirmal Singh has sustained the following injuries:

(1) Abraded contusion measuring 3cm x 2cm in the lower arm,on the left side 5cm, above the wrist joint in upper side.

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(2) Contusion, 5cm x 1½ cm on left arm on the upper portion.

(3) Lacerated wound, 3½ cm x ½ cm x bone deep on the middleof head. X-ray was advised.

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10. Though it was found that no case under Sections 307/149,IPC was made against appellant and the other co-convicts, they wereevidently, convicted under Sections 324/149 and 323/149, taking intoaccount the nature of the injuries inflicted on PWs 1 and 2. The Courtsbelow held that PWs 1 and 2 had specifically deposed regarding thepresence and participation of the appellant. Nothing was brought to ourattention to point out that the finding of the courts below that no seriouscontradictions were brought out from PWs 1 and 2 to make theirtestimonies unbelievable. In such circumstances, the evidence of PWs 1and 2 , which gain support from PW4 with Ext. Ka.4 and also fromPW3 with Exts. Ka.2 and Ka.3 can only be taken trustworthy, as has G

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Abeen held by the courts below. Their evidence, as held by the Courtsbelow, will reveal unlawful assemblage in which the appellant was alsoa member. Even otherwise, the contentions of the appellant as mentionedhereinbefore, would reveal that membership in the unlawful assemblageis not in serious challenge and his core contention is that the prosecutiondid not establish any overt act on his part. Its tenability for the purposeBof appreciating the further contention for alteration of the conviction hasto be tested by looking into the consequence, if any, of the furtherhighlighted fact that eight of the ten convicts have died during thependency of the appeal, either before the High Court or before thisCourt.C11. In the context of the aforesaid contentions it has becomenecessary to consider certain other allied questions. The first question inthat regard is when once the prosecution established the membership ofan accused / convict in the unlawful assembly whether the individualovert act also to be established by the prosecution to bring culpability onDhim on the principle of constructive / vicarious liability. According to us,no such burden can be fastened on the prosecution in view of thephraseology under Section 149, I.P.C. Though there are catena ofdecisions on that question we think it suffice to refer to the decisions inAmerika Rai & Ors. Vs. State of Bihar (AIR 2011 SC 1379),Surendra & Ors. Vs. State of Uttar Pradesh (AIR 2012 SC 1743)Eand in Yunis alias Kariya Vs. State of M.P. (AIR 2003 SC 539). InAmerika Rai’s case (supra) this Court held that even the presence inan unlawful assembly, with an active mind, to achieve the common object,would make a person vicariously liable for the acts of the unlawfulassembly. In Surendra’s case (supra) this Court held that inference ofFcommon object has to be drawn from the various factors such as theweapons with which the members were armed, their movements, theacts of violence committed by them and the result. In Yunis’ case (supra)it was held that the presence of the accused as a part of the unlawfulassembly is sufficient for his conviction. It was further held that whenGthe presence of the accused at the place of occurrence as part of theunlawful assembly was not disputed it will be sufficient to hold him guiltyeven if no overt act was attributed to him.

12. The next question to be looked into to appreciate thecontentions of the appellant is whether the reduction in number of theconvicts below five on account of death of the co-accused got any impactH

or effect on the surviving convict(s) in the matter of consideration of his/their, vicarious liability in view of Section 149, I.P.C. There can be notwo views on the position that reduction of number of accused/convictsin an appeal, below five on account of acquittal of co-accused/co-convictsand such reduction in numbers below five due to death of co-convictsare different and distinct. The impact and effect of the former situationis no longer res integra. In the decision in Amar Singh & Ors. Vs.State of Punjab ((1987) 1 SCC 679) seven persons were charged foroffences punishable under Section 148, Section 302 read with Section149, IPC. There was no case for the prosecution that other persons hadalso involved in the commission of the offence. It was held that becauseof the acquittal of three out of the seven accused the remaining fourcould not have been convicted under Section 148 read with Section 149,IPC.

13. In Nethala Pothuraju & Ors. Vs. State of Andhra Pradesh((1992) 1 SCC 49) also this position was reiterated. That was a casewhere the case of the prosecution was that seven accused personsformed an unlawful assembly and committed murder in pursuance of acommon object and they were charged under Section 302/149, IPC.Four of them were acquitted. In the appeal this Court held that in thesaid factual situation the remaining three accused could not have beenconvicted by applying Section 149, IPC. At the same time, it was furtherheld that the non-applicability of Section 149, IPC would not be a bar forconvicting accused/appellants if evidence would disclose commission ofoffence in furtherance of a common intention.

The said provision and the decisions referred above would revealthat the test is that persons having the common object must be five ormore. We may also hasten to add that persons who are simple onlookersare to be excluded in that matter.

14. As stated above, the effect and impact of reduction of thenumber of convicts pending an appeal owing to the death of co-convictsis bound to be different from the effect and impact of reduction of thenumber of accused/convicts on account of acquittal. Going by Section394(1), Cr.P.C. every appeal under Section 377 or Section 378 shallfinally abate on the death of the accused. Sub-section (2) thereof providesthat every other appeal under Chapter-XXIX (except an appeal from asentence of fine) shall finally abate on the death of the appellant. Theposition is that every appeal, except an appeal against the sentence of A

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Afine, would abate on the death of the appellant, because the sentenceunder appeal in such circumstances, could no longer be executed. Thoughthe phraseology in Section 394, Cr.P.C. would suggest that the provisionsthereunder got no application in respect of appeal by special leave underArticle 136 of the Constitution of India that position was settled otherwiseby this Court in the decisions in Harnam Singh Vs. State of HimachalBPradesh ((1975) 3 SCC 343) and in Hari Prasad Chhapolia Vs. UOI((2008) 7 SCC 690). In Harnam Singh’s case (supra) this Court heldthat Section 394, Cr.P.C. got no application in respect of appeal by specialleave under Article 136 of the Constitution of India and, therefore, thequestion is whether the appeal thereunder would abate on the death ofCthe appellant when it is not governed strictly by that Section. Further itwas held that in the interest of uniformity, there is no valid reason forapplying to appeals under Article 136 of the Constitution of India, a setof rules different from those which govern the appeal under the Code.In Hari Prasad Chhapolia’s case (supra) this Court held that principlesof Section 394, Cr.P.C. would apply to appeals filed before the SupremeDCourt under Article 136 of the Constitution of India.

15. The term ‘abatement’ or ‘abate’ has not been defined in Cr.P.C.In the said circumstances, its dictionary meaning has to be looked into.As relates criminal proceedings going by the meaning given in Black’sLaw Dictionary, 10th Edition, abatement means ‘the discontinuation ofEcriminal proceedings before they are concluded in the normal course oflitigation, as when the defendant dies’. Thus, it can be seen that themeaning of abatement can only be taken in criminal proceedings as`discontinuation of such proceedings owing to the death of the accused/convict pending such proceedings’. In short, it would reveal that an appealFagainst conviction (except an appeal from a sentence of fine) wouldabate on the death of the appellant as in such a situation, the sentenceunder appeal could no longer be executed. The abatement is certainlydifferent from acquittal and a mere glance at the proviso to Section 394(2), Cr.P.C., will make this position very clear. The said proviso readsthus :G“Provided that where the appeal is against a conviction andsentence of death or of imprisonment, and the appellant dies duringthe pendency of the appeal, any of his near relatives may, withinthirty days of the death of the appellant, apply to the AppellateCourt for leave to continue the appeal; and if leave is granted, theHappeal shall not abate.”

16. The long and short of the aforesaid discussion is that the merefact that seven out of the ten convicts died, either during the pendencyof Criminal Appeal No. 1510/1992 before the High Court or during thependency of this appeal, could not be a reason, by that itself, to canvassnon applicability of the provision for constructive/vicarious liability, arisingout of the achievement of the common object by the unlawful assembly.

17. Having held the aforesaid points as above, we will now considerthe question whether the contention of the appellant that conviction underSection 302/149 is liable to be altered as one under Section 304, eitherPart-I or Part-II, read with Section 149, IPC. We have already takennote of the fact that the appellant was not charged with offence punishableunder Section 302, IPC simpliciter. He was convicted under Section 302and Section 149, IPC hence, in view of our agreement with the concurrentfinding about membership of the appellant in the unlawful assembly, theappellant cannot escape from the constructive/vicarious liability for theact committed by any one of the members of that assemblage by virtueof Section 149, IPC if the common object of the unlawful assembly wasto commit murder and not causing grievous injury. We say so, becausethe object of Section 149 is to make specific that person whose casecomes within its gamut cannot be permitted to put forth a defence thathe did not, with his own hand, commit the offence committed inprosecution of the common object of the unlawful assembly.

18. We have already referred to the decision in Surendra’s casewhere this Court held that inference of common object had to be drawnfrom various factors, such as, the weapons with which the memberswere armed, there movements, the acts of violence committed by themand the result. In Kuldeep Yadav & Ors. Vs. State of Bihar ((2011)5 SCC 324) this Court held that in order to attract Section 149, IPC, itmust be shown that the incriminating act was done to accomplish thecommon object of the unlawful assembly and it must be within theknowledge of the other members as one likely to be committed inprosecution of the common object. In the decision in Jai Karan & Ors.Vs. State of U.P. ((2003) 12 SCC 655) the appellants Jai Karan andBabu were convicted under Section 148, 302 read with Sections 149and 323 read with Section 149, IPC and the other appellant Veer Bhadrawas convicted under Sections 148, 302 read with Sections 149 and 323read with Section 149, IPC. The court below found that the accusedpersons were armed with the guns, kanta and banka, and found to A

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Ahave caused death of the deceased and injured others. This Court heldthat the evidence of the witnesses stood corroborated by medical evidenceand consequently the conviction of the accused for charged offenceswas upheld. Bearing in mind the decisions and the positions of lawemerged from the decisions we will consider the question stated above.

B19. Now, we will consider the effect, if any, of non-recovery ofweapons allegedly used in the commission of offences charged againstthe accused. In that regard, the it is only appropriate to refer to thedecision in Rakesh and Anr. Vs. State of Uttar Pradesh & Anr.((2021) 7 SCC 188). It, insofar as relevant, reads thus:

C“For convicting an accused recovery of the weapon used incommission of offence is not a sine qua non. PW1 and PW2, asobserved hereinabove, are reliable and trustworthy eye witnessesto the incident and they have specifically stated A-1 Rakesh firedfrom the gun and the deceased sustained injury. The injury by thegun has been established and proved from the medical evidenceDand the deposition of Dr Santosh Kumar, PW5. Injury 1 is by gunshot. Therefore, it is not possible to reject the credible ocularevidence of PW1 and PW2 - eyewitnesses who witnessed theshooting. It has no bearing on credibility of deposition of PW1 andPW2 that A-1 shot deceased with a gun, particularly as it isEcorroborated by bullet in the body and also stands corroboratedby the testimony of PW2 and PW5. Therefore, merely becausethe ballistic report shows that the bullet recovered does not matchwith the gun recovered, it is not possible to reject the credible andreliable deposition of PW1 and PW2.”

FIn the said circumstances and in the light of the decision in Rakeshand Anr. Vs. State of Uttar Pradesh & Anr. (supra), the non- recoveryof the weapons cannot be a ground to discard the evidence of the injuredeye witnesses viz., PWs. 1 and 2. Now, we will refer to the evidence inthe instant case. The evidence of PW-1 and PW-2 who were the injuredwitnesses cannot be disbelieved or brushed aside solely because theyGare the sons of the deceased. There is no need to mention about anydecision holding the position that being a relative of the deceased is noreason to discredit their version as this position is well-nigh settled. Inthis case, the courts below found that nothing was elicited from PWs 1and 2 by the defence so as to make them untrustworthy. In fact, theirHevidence regarding carrying of firearms and their use by the members of the unlawful assembly gets corroboration from the evidence of PW-4 with Ext. Ka.4. Their version that some of the members of the unlawfulassembly were carrying other lethal weapons also get corroboration fromthe evidence of PW-3 with Exts. Ka.2 and Ka.3. We referred to thoseaspects only to emphasize the fact that PWs 1 and 2 are rightly held astrustworthy witnesses by the courts below.

20. The evidence of PWs. 1 and 2 would reveal that the membersof the unlawful assembly were carrying firearms and they used themagainst the deceased Dalip Singh. The other lethal weapons were usedagainst Dalip Singh and also against them. When the fact is that DalipSingh sustained two gunshots and even thereafter, he was attacked bythe members of the unlawful assembly, how the common object can besaid to be one other than committing murder of Dalip Singh. One of theshots was made from a near proximity is evident from the fact that it notonly caused tear of blood vessels and tissues in the passage of woundbut also caused the femur, which is the strongest bone of a human body,to break into pieces. It cannot be presumed that there was only onegunshot injury as the other gunshot wound was on the left thigh inneraspect. The evidence of PWs 1 and 2 would reveal that on sustainingsuch gunshot injuries Dalip Singh fell down and when they attempted togo for his rescue they were attacked with weapons. That apart DalipSingh, who by then, fell on the ground was again attacked. When someonewho sustained gunshot injuries and profusely bleeding was attacked againand the persons who attempted to come to his rescue were also attackedthe only inference that can be drawn from such circumstances is thatthe common object was to do away with the life of that person. In thefacts and circumstances, revealed from the evidence appreciated by thecourts below the conclusion arrived by them that the unlawful assemblywas having the common object to commit murder of Dalip Singh cannotbe said to be perverse warranting interference by this Court in exerciseof power under Article 136 of the Constitution of India. The very factthat the members of the unlawful assembly, ten in numbers assembledat the place armed not only with firearms but with other lethal weaponsas well and the manner in which they committed the violence and theultimate result would definitely lend support to the said finding.

21. There can be no doubt with respect to the position that inorder to make culpable homicide as murder the act by which death iscaused should fall not only under any one or more of clauses firstly to A

B

C

DE

F

G

H

Afourthly under Section 300, IPC but they should also not fall under anyof the five exceptions to Section 300, IPC. Though the appellant contendedthat the conviction under Sections 302/149 is liable to be altered to oneunder 304/149 it is a fact that he had failed to bring it within any of thefive exceptions to Section 300, IPC. When that be so, there is absolutelyno question of considering the contentions that the offence of culpableBhomicide falls either under 304 (Part I) or 304 (Part II).

22. When the above being the position obtained in this case, wehave no hesitation to hold that the High Court was justified in dismissingthe appeal filed by the appellant herein, confirming the conviction andsentences passed against him. There are no merits in this appeal andChence it is dismissed.

Devika Gujral

(Assisted by : Shevali Monga, LCRA)

Appeal dismissed.

D

E

F

G

H