G H MANJIT SINGH versus THE STATE OF PUNJAB on 3 September 2019

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[2019] 11 S.C.R. 554

SUPREME COURT REPORTS

[2019] 11 S.C.R.

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MANJIT SINGH

v.

THE STATE OF PUNJAB

(Criminal Appeal No. 1079 of 2011)

BSEPTEMBER 3, 2019

[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]

Penal Code, 1860: ss. 148, 302/149, 323, 324 and326/149 – Prosecution under – Of seven accused (includingappellant-accused ‘M’ and appellant-accused ‘S’) – InitiallyCcharges were not framed by police against appellant-accused ‘M’and two accused ‘P’ and ‘N’ – After application u/s. 319 Cr.P.C.charges were framed against them – An application u/s. 321 Cr.P.C.to withdraw the case against them was declined by the Court –Trial Court relying on the testimony of injured eye-witnesses PWs 5Dand 6; medical evidence and rejecting the defence plea of alibi andfalse implication convicted all the seven accused – Appeal to Highcourt – During pendency of the appeal, the Governor grantedpardon u/Art. 161 of the Constitution to the appellant-accused ‘M’and two accused ‘P’ and ‘N’ – Grant of pardon also challenged –High Court granted benefit of doubt to two accused ‘P’ and ‘N’,Ewhile upholding conviction of other five accused persons – Ordergranting pardon was also set aside – Appeal to Supreme Court bytwo of the convicted accused – Held: The prosecution case issupported by two injured eye-witnesses whose testimony has beenconcurrently found reliable by courts below – Their testimony isFconsistent with the version in FIR and is further corroborated bythe medical evidence – Their evidence cannot be discarded merelyfor the reason that no independent witness was examined – Factorof enmity, pleaded by accused alleging their false implication in thecase, rather supports the prosecution case in proving motive forcommission of the offence – Plea of alibi is hollow and after-thoughtG– In the facts of the case it is proved that the accused personsacted in concert with a common object and did constitute unlawfulassembly, indulging in rioting with deadly weapons and causinggrievous bodily injuries to members of the complainant party –

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Acquittal of the two accused will not have any mitigating effectleading to acquittal of other accused.

ss. 141 and 149 – Unlawful assembly – Held: Importantingredients of an unlawful assembly are number of persons formingit i.e. 5 and their common object.

Criminal Law:

Common Object – Determination of – Held: The course ofconduct adopted by members of unlawful assembly; their behaviourand the arms carried by them are a few basic and relevant factorsto determine the common object.

Criminal Trial:

Acquittal of co-accused – Affect of – Held: Acquittal of co-accused per se is not sufficient to result in acquittal of other accused.

Dismissing the appeals, the Court

Conclusion

HELD : 1. Though in the present case, the 2 acquittedaccused were alleged to be empty handed and were not assignedthe role of causing any injury on any person but, the Trial Courtfound it to be a case of common object and these two accusedpersons were held guilty of the offence under Section 148 IPC asalso of other offences with the aid of Section 149 IPC. The HighCourt, though agreed with the Trial Court after thoroughexamination of the material on record on all the material aspectsbut, as regards these two accused persons, in the concludingpart of its discussion, proceeded to extend them the benefit ofdoubt. Though the aforesaid accused persons were acquittedwith benefit of doubt and their acquittal has not been challengedbut then, this fact, by itself, will not have any mitigating effect onthe prosecution case against the other five accused persons,including the appellants. It remains trite that acquittal of co-accused per se is not sufficient to result in acquittal of the otheraccused. Even if the material evidence against all the accusedpersons is the same, acquittal of some of them does not lead to acorollary that the other accused also need to be acquitted. Evenif the involvement of the acquitted accused is considered doubtfulin view of the uncertain role assigned to them, it cannot be said A

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Athat entire substratum of the prosecution case is lost, or evenwhittled down. [Paras 9 and 9.1] [571-D-E; G-H; 572-A-C]

Yanob Sheikh alias Gagu v. State of West Bengal (2013)6 SCC 428 : [2012] 13 SCR 115 ; Dalbir Singh v. Stateof Haryana (2008) 11 SCC 425 : [2008] 8 SCR 1026B– relied on.2. The case of the prosecution on material accusationspivots around the testimony of injured eye-witnesses PW-5 andPW-6. PW-5 has deposed in conformity with the initial version ofthe complainant on the basis whereof, the FIR in question cameCto be registered. This witness has testified to the role of each ofthe accused in the incident in question. Nothing material has comeout in the cross-examination to discredit this witness. PW5 hadalso been one of the injured persons in the incident, havingreceived the blows from the appellant-accused ‘M’. In the faceof such a fact situation, the suggestion by the defence, that thisDwitness offered support to them for unlawful consideration, couldonly be rejected as baseless. The Trial Court and the High Courthave concurrently found his testimony reliable; and there is noreason to take any different view of the matter. The narration ofthe incident by PW-6 has also been consistent with the versionEoccurring in the FIR as also that occurring in the statement ofPW-5. He had also been an injured person in the same incidentand there is nothing on record to disbelieve or discredit thiswitness. [Paras 10.1 and 10.2] [572-E-F; H; 573-A-C]

3. So far as the medico-legal aspect of the matter isFconcerned, PW-1, the doctor who had examined the injuredperson immediately after the incident, has proved the respectiveinjury reports. The facts stand established that the deceased andthe other members of the complainant party received many andmultiple injuries, including those on the vital body parts fromsharp-edged weapons (as also blunt objects). It is also establishedGthat the deceased died due to the grievous head injury. Thoughhe died after 9 days from the date of the incident but continuouslyremained hospitalised and was never in a position to make anystatement. The fact that the injuries in question were inflicted by H

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the accused party, with calculated and determined assault on thecomplainant party, has also been duly established on record. Theconcurrent findings of the Trial Court and the High Court againstthe accused persons remain proper and do not appear sufferingfrom any infirmity. [Paras 10.3 and 10.4] [573-C; F-G]

4.1 According to the defence witness, DW 5, a complaintwas filed before him to the effect that appellant-accused ‘M’ andthe acquitted accused were not present on the spot during theincident in question. This testimony had not only been irrelevantbut had also been totally unwarranted. The Trial Court didexercise the power under Section 319 CrPC for proceedingagainst these persons. The prosecution even endeavoured towithdraw the case against the appellant and the acquitted accusedpersons, but the prayer was declined by the Trial Court, and theattempts to challenge this order of the Trial Court also failedright upto this Court. In such a position, where the opinion statedin the investigation result qua these persons stood overruled bythe judicial order, it had been absolutely unwarranted that suchan overruled opinion was sought to be relied upon by way of thetestimony of DW-5. Even if this opinion and whatever stated inthe report sent by this witness [Ex. DA] are taken on theirface value, nothing whatsoever turns upon them. [Para 11.2][574-D-G]

4.2 The Trial Court, after thorough appreciation of entirerecord has rejected the suggestion that the appellant was notpresent at the scene of crime. The High Court has also observedthat there was no reliable evidence on record to accept the pleaof alibi. The Trial Court and the High Court have rightly rejectedsuch a baseless plea after proper appreciation of the evidence onrecord. [Para 12] [575-B-C]

4.3 There are two fundamental, and rather fatal,shortcomings in the plea of alibi of the appellant-accused ‘M’First, that such a plea was not even put in suggestion to therelevant prosecution witnesses including the injured eye-witnesses PW-5 and PW-6. Secondly, and significantly, in his ownstatement under Section 313 CrPC, the appellant-accused ‘M’

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Aeven while making elaborate assertions that he was falselyimplicated for having stood against the complainant party inrelation to the rape and murder case, and while also relying uponthe earlier police report where he was sought to be exoneratedand earlier attempt on the part of the prosecution to withdrawthe case against him, not even remotely stated that he was notBpresent at the site and that, at the relevant point of time, he waspresent somewhere else. [Para 12.1] [575-D-F]

4.4 The conduct of witness DW-9 and most of the otherwitnesses examined in defence in relation to the plea of alibi, hadbeen queer and too unnatural to inspire any confidence. MereCsuggestion in the negative by defence witnesses that they didnot see the three accused persons [appellant-accused ‘M’ and 2acquitted accused] on the spot does not displace the cogent andtrustworthy evidence adduced by the prosecution. The Trial Courtand High Court have rightly discarded these witnesses as beingDwholly unreliable. The plea of alibi, in the facts of the case couldonly be rejected as a crude afterthought and nothing else. Thus,viewed from any angle, the plea of alibi, as put forward byappellant-accused ‘M’ remains hollow and could only be rejected.[Paras 12.3, 12.4 and 12.5] [577-E; 578-C, D, G]

E5. It is not correct to say that the crime is not establishedagainst appellant-accused ‘M’ for want of recovery of weapon ofoffence. The IO in the first place did make recoveries on thedisclosure statements of other four accused persons. As regardsthe appellant, the IO chose to proceed in the direction that hewas innocent and was falsely implicated. That seems to be theFfundamental reason for the IO not making any attempt forrecovery of the weapon of offence used by the appellant-accused‘M’. However, this omission has no adverse bearing on theprosecution case, where involvement of the appellant rather asthe leader of the assembly, who started the assault withGexhortation and then participated in the assault, stands establishedbeyond doubt. [Para 13] [578-H; 579-A-B]

6. The appellant-accused ‘M’ cannot be said to have beenfalsely implicated due to enmity. In the circumstances of thepresent case, if anything of so-called enmity is to be taken into H

consideration, the same equally operates against the appellant-accused ‘M’ and his companions, as admittedly, the appellant-accused ‘M’ was keenly pursuing the case of rape and murder ofa village girl and the complainant party was comprising of thepersons related with the accused in the said case. The factor ofenmity would only lend support to the prosecution case towardsthe object and motive of the assembly to attack, assault and causehurt to the members of the complainant party. [Para 13.1][579-C-D]

7. In the present case, the reliable evidence of the injuredeye-witnesses cannot be discarded merely for the reason that noindependent witness was examined. There is no rule that in everycriminal case, the testimony of an injured eye-witness needscorroboration from the so-called independent witness(es). Whenthe statement of injured eye-witness is found trustworthy andreliable, the conviction on that basis could always be recorded,having regard to all the facts and surrounding factors. [Para 13.2]

[579-E-F]

8.1 The important ingredients of an unlawful assembly arethe number of persons forming it i.e., five; and their commonobject. Common object of the persons composing that assemblycould be formed on the spur of the moment and does not requireprior deliberations. The course of conduct adopted by themembers of such assembly; their behaviour before, during, andafter the incident; and the arms carried by them are a few basicand relevant factors to determine the common object. [Para 14.5][584-D-E]

8.2 The facts of the present case, as established by theprosecution, makes it clear that on the relevant date and at therelevant time, at least five of the accused persons, including thepresent appellants were present at the place of the incident i.e.Court Complex. The members of the complainant partypurportedly came to the very same Court Complex to attend thehearing of the rape and murder case of the village girl in which,their kiths and relatives were the accused persons and the casewas being pursued by appellant-accused ‘M’. It is also establishedthat when the persons related with the complainant party wereabout to board their vehicle, the accused persons attacked them A

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560SUPREME COURT REPORTS

Awith weapons. Significantly, the attack on the complainant partywas triggered with exhortation by appellant-accused ‘M’. Thisclearly brings out the motive for the attack as also the object ofthe assembly. It is beyond the pale of doubt that the accusedpersons had acted in concert and the object had clearly been toensure causalities amongst the members of the complainant party.BOn the applicable principles, it is concluded that the accusedpersons did constitute an unlawful assembly; did indulge in riotingin the Court Complex with deadly weapons; and did causegrievous bodily injuries to members of the complainant party.The deceased was attacked rather repeatedly by the members ofCthis unlawful assembly and he sustained grievous injury on thehead that proved fatal. The background aspects as also the conductof the accused persons at and during the incident leaves nothingto doubt that each of the member of this assembly remains liablefor the offence committed by himself as also by every othermember of the assembly. [Para 14.6] [584-F-H; 585-A, C-E]DGovind Singh v. State of Chattisgarh (2019) 7 SCALE20 – distinguished.

Sikandar Singh & Ors. v. State of Bihar (2010) 7 SCC477 : [2010] 8 SCR 373 ; Subal Ghorai v. State of WestEBengal (2013) 4 SCC 607 ; Sahabuddin & Ors. v. Stateof Assam (2012) 13 SCC 213 : [2012] 13 SCR 1067 – referred to.

Case Law Reference

[2010] 8 SCR 373referred toPara 6.1F(2013) 4 SCC 607referred toPara 6.1(2019) 7 SCALE 20distinguishedPara 6.2[2012] 13 SCR 1067referred toPara 7[2012] 13 SCR 115relied onPara 9.1G[2008] 8 SCR 1026relied onPara 9.1

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1079 of 2011.

From the Judgment and Order dated 11.03.2008 of the High Courtof Punjab and Haryana at Chandigarh in Criminal Appeal No. 373 DBof 2005.

With

Criminal Appeal No. 1076 of 2011.

Kamini Jaiswal, Jatinderpal Singh, Ms. Rani Mishra, VijayPanjwani, Advs. for the Appellant.

Ms. Jaspreet Gogia, Ms. Mandakini Singh, Ms. Ashima Mandla,Advs. for the Respondent.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J.

1. These two appeals by special leave are directed against thecommon judgment and order dated 11.03.2008, as passed by the HighCourt of Punjab and Haryana at Chandigarh in Criminal Appeal Nos.373 DB of 2005 and 350 DB of 2005 with other connected matterswhereby, the High Court has upheld the judgment and order dated 28/30.03.2005 by the Sessions Judge, Barnala in Sessions Case No. 21 of2001, convicting and sentencing the accused-appellants for multipleoffences, including those punishable under Sections 148, 302/149, 323,324 and 326/149 of the Indian Penal Code (‘IPC’).

2. Put in brief, the relevant background aspects of the matter areas follows:

2.1. The prosecution case has been that on 03.03.2001, thedeceased Dalip Singh, Rajinder Pal Singh (PW-5), Gurnam Singh (PW-6) and the complainant Beant Singh[1], all residents of Village Mehal Kalanhad gone to Barnala Court Complex in connection with the hearing in acriminal case pertaining to FIR No. 67 of 1997, Police Station MehalKalan, that was adjourned. That very day, the accused persons ManjitSingh[2], Labh Singh, Avtar Singh, Bakhtaur Singh, Sukhwinder Singh[3], 1 The complainant Beant Singh was examined as the first witness in the trial but heexpired before completion of his statement.

2 The appellant of Cr. A. No. 1079 of 2011

3 The appellant of Cr. A. No. 1076 of 2011

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APrem Kumar, and Narain Datt, had also been to the same Court Complexto attend the proceedings in a complaint case of the appellant ManjitSingh, that was also adjourned. At about 11.15 a.m., when Gurnam Singh,Beant Singh, Rajinder Pal Singh and Dalip Singh were about to boardtheir car near the cabin of typists in the Court Complex, they wereattacked by the accused persons.B

2.2. It was alleged that for carrying out the assault in question,five of the accused persons carried different weapons, where theappellant Sukhwinder Singh as also Labh Singh and Avtar Singh werearmed with kirpans; Bakhtaur Singh was armed with kirpan and ghop;and the appellant Manjit Singh was armed with kirch whereas PremCKumar and Narain Datt were empty handed. According to the allegations,with exhortation by the appellant Manjit Singh, the accused personscarried out the assault in the manner that Labh Singh gave kirpan blowaiming at the head of Beant Singh, who raised his hands and the blow hithis right hand; the appellant Sukhwinder Singh aimed his kirpan blow Don the head of Dalip Singh but since he raised his hands, the blow hit hisright hand; Bakhtaur Singh gave a blow of ghop on the head of DalipSingh; Prem Kumar and Narain Datt caught hold of the arms of DalipSingh and Bakhtaur Singh gave another ghop blow on the head of DalipSingh; Avtar Singh gave a blow of his kirpan on the left leg of GurnamSingh; Bakhtaur Singh also gave three blows of ghop on the left cheek,Eback of the chest and left thigh of Gurnam Singh; the appellant ManjitSingh gave the blows of his kirch, hitting Rajinder Pal Singh on the righthand and on the left hand thumb; and the appellant Sukhwinder Singh hitGurnam Singh on the back by the handle of his kirpan.

2.3. It was further alleged that upon such an assault, the injuredFraised alarm whereupon, Amarjit Singh, Balbir Singh, Jit Singh andGurdeep Singh reached the spot. The injured were taken to the hospital.Upon receiving a message from the hospital, Surinder Pal Singh (PW-9), SHO, P.S. Kotwali went to the hospital and sought the opinion ofdoctor about fitness of the injured for taking their statements; the injuredGBeant Singh was declared fit and his statement was recorded at 2.30p.m., which led to the registration of FIR No. 56 of 2001 for the offencespunishable under Sections 307, 148, 149, 120-B IPC. The statements ofthe injured Rajinder Pal Singh and Gurnam Singh were also recorded.However, the injured Dalip Singh was not found fit for making anystatement; he was referred to Rajindra Hospital, Patiala; and he was,H

thereafter, shifted to Dayanand College and Hospital, Ludhiana. Heremained hospitalised until 12.03.2001 but the attempts by ASI GulabSingh (PW-11) to record his statement did not materialise. The injuredDalip Singh, ultimately, expired on 12.03.2001 at 4.30 p.m.; the postmortem of his dead body was conducted on 13.03.2001 at Civil Hospital,Ludhiana. In sequel, the offence punishable under Section 302 was addedto the FIR.

2.4. On 08.03.2001, the accused persons Bakhtaur Singh, LabhSingh and Avtar Singh were arrested. The weapon ghop was recoveredin pursuance of the disclosure statement of Bakhtaur Singh whereasone kirpan was recovered on the disclosure statement of Labh Singhand another kirpan was recovered on the disclosure statement of AvtarSingh. On 14.03.2001, the appellant Sukhwinder Singh was arrested andin pursuance of his disclosure statement, yet another kirpan wasrecovered.

2.5. In the course of investigation, the soil splattered with bloodwas collected from the place of occurrence; site plan was prepared;and statements of other witnesses were recorded. As per the FSL report,the ghop, three kirpans and soil recovered from the place of occurrencewere found to be stained with human blood.

2.6. On 24.03.2001, while the other accused persons were charge-sheeted for various offences but, the present appellant Manjit Singh asalso Prem Kumar and Narain Datt were allegedly found not involved inthe crime and they were kept in column No.2 by the Investigating Officer(‘IO’). After committal of the case to the Sessions Court and afterframing of charges, the complainant Beant Singh was examined as thefirst witness of the prosecution on 11.09.2001 but his deposition remainedincomplete. This very day, the complainant Beant Singh moved anapplication under Section 319 of the Code of Criminal Procedure (‘CrPC’)for proceeding against the appellant Manjit Singh as also against the saidPrem Kumar and Narain Datt, who were summoned by the Trial Courtby its order dated 19.09.2001. Thereafter, charges were framed againstall the accused persons, inter alia, for the offences under Sections 302,148, 326, 325, 323 IPC. The prosecution sought leave under Section321 CrPC to withdraw the case against the appellant Manjit Singh andthe said Prem Kumar and Narain Datt but this prayer was declined bythe Trial Court by its order dated 09.11.2002 against which, Cr.R. No.2413 of 2002 and C.M. No. 2248 of 2002 were filed before the High AB

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ACourt that were also dismissed by the order dated 14.10.2003. Further,the petition for Special Leave to Appeal No. 5740 of 2003 filed in thisCourt was also dismissed by the order dated 17.01.2004.

3. In the trial, the prosecution examined several witnesses,including the injured eye-witnesses Rajinder Pal Singh as PW-5 andBGurnam Singh as PW-6; the medical officer Dr. Subhash Singla, whohad initially examined the injured persons and had prepared the injuryreports, as PW-1; and Dr. Jasbir Singh, who had conducted post-mortemon the dead body of Dalip Singh, as PW-7.

3.1. The eye-witnesses, Rajinder Pal Singh and Gurnam Singh,CPW-5 and PW-6 respectively, gave the ocular account of the entireincident. PW-5 Rajinder Pal Singh categorically stated that the assaultcommenced when the appellant Manjit Singh instigated the other accusedpersons to attack the complainant and his companions. This witnessprovided a detailed description of participation and involvement of eachof the accused in conformity with the version occurring in the FIR. HisDtestimony was corroborated on all the material particulars by PW-6Gurnam Singh. As noticed, the testimony of the informant Beant Singhremained incomplete due to his demise.

3.2. The appellant Manjit Singh, while denying the allegations inhis statement under Section 313 CrPC, gave a purportedly detailedEaccount that the complainants were annoyed with Prem Kumar, NarainDatt and himself for the reason that they had given evidence in the caseof rape and murder of a co-village girl KK*[4], where the offence wasallegedly committed by the relatives of the complainant and the injuredwitnesses. We shall refer to the relevant part of the statement made byFthe appellant Manjit Singh under Section 313 CrPC hereafter a littlelater.3.3. In defence evidence, the accused persons got examined asmany as 13 witnesses. These had been as follows: DW-1 Dr. A.K.Singla, the handwriting and fingerprint expert in relation to the signaturesGof Rajinder Pal Singh on the court summons and jail records; DW-2,Head Constable Jaswinder Singh in relation to the fact that DW-3 wasdeployed as driver of the vehicle in which the undertrials were broughtto the Court Complex; DW-3 Head Constable Jora Singh, as the alleged 4 The name of the said victim girl is not required to be mentioned and she is referred asHKK* herein.

eye-witness to the incident; DW-4 Gurcharan Singh Dhaliwal, Advocatewho was allegedly present near the scene of crime; DW-5 LakhwinderSingh, the then Superintendent of Police (D) at Barnala; DW-6 ConstableAmarjit Singh, another alleged eye-witness who had intervened in thefight that had occurred between the two groups; DW-7 Head ConstableGurcharan Singh; DW-8 J.N. Sharma, Advocate; DW-9 Kulwant Singh,Member Panchayat of Village Dhaner; DW-10 Manjit Singh, teacher inGovt. High School, Wazidke Khurd; DW-11 Rajinder Kumar ALM, PSEBMehar Kalan; DW-12 Darshan Kumar, Head Warden, Sub-Jail, Barnala;and DW-13 Santokh Singh, Maths Teacher in Govt. High School, WazidkeKhurd.

4. In its judgment and order dated 28/30.03.2005 in Sessions CaseNo. 21 of 2001, the Trial Court carried out in-depth analysis of theprosecution evidence, including the testimony of injured eye-witnessesPW-5 and PW-6 and the medical officers, PW-1 and PW-7. The TrialCourt also carried out an equally thorough analysis of the evidenceadduced by the accused and, after finding that the defence witnesseswere either irrelevant or unreliable, rejected the defence theories andfound it proved beyond reasonable doubt that the accused joined togetherand attacked the complainant Beant Singh and his companions, causingvarious injuries to several persons and fatal injury to Dalip Singh. Theconclusion of the Trial Court in relation to the present appellants as alsocumulatively in relation to all the accused persons, as occurring inparagraphs 45 to 48 of the judgment dated 28.03.2005, could be usefullyreproduced as under:- “45. Accused Manjit Singh as per PW1 is proved to havecaused two injuries on the person of Rajinder Pal Singh bymeans of Kirch and which M.L.R. Ex. PD and X-ray reportEx. PD/2 shows that both these injuries No. 1 & 2 are bysharp means and injury No. 3 which is reddish contusion isnot attributed to any of the accused.

46. Accused Sukhwinder Singh is opined to have caused ablunt injury by the handle of the Kirpan on the person ofGurnam Singh on the back of the chest opined to be abradedcontusion ad that Sukhwinder Singh is also proved to havecaused injury to Dalip Singh on right hand by means of aKripan and which injury as per M.L.R. Ex. PA which is incised AB

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wound, caused by sharp edged weapon is deemed to be simplein view of lack of evidence in this regard.

47. That there is abundant evidence to show that accusedpersons with a common object armed with deadly weaponshave rioted while assaulting the complainant side.

48. So, from the overall evidence of the prosecution by wayof ocular evidence of the eye-witnesses account, the medicalevidence coupled with circumstantial evidence overwhelminglypoint out towards the guilt of the accused in the commissionof the offence for which they have been charged. The accusedare thus held guilty and convicted as detailed below:- 4.1. In accordance with the conclusion aforesaid, the accusedpersons were awarded varying sentences, including that of lifeimprisonment.

5. Against the order of conviction, the appellants and the co-accused preferred separate appeals before the High Court and pending

disposal of appeals, the sentence awarded to the appellant Manjit Singhas also Prem Kumar and Narain Datt were suspended. Thereafter, byan order dated 24.07.2007, the then Hon’ble Governor of Punjab, inexercise of his power under Article 161 of the Constitution of India,granted pardon to the appellant Manjit Singh as also to the two co-accusedpersons Prem Kumar and Narain Datt; and directed that they be releasedwith immediate effect. This order granting pardon was also challengedbefore the High Court by way of writ petition bearing No. 2147 of 2008that was taken up for consideration together with the appeals filed againstconviction. While passing the final common judgment and order dated11.03.2008, the High Court, after dealing with the contentions urged onbehalf of the appellants herein and the co-accused, while extended benefitof doubt to Prem Kumar and Narain Datt but, affirmed the conviction ofthe other five accused persons, including the appellants herein and alsoset aside the order granting pardon[5] while observing, inter alia, as under:- “23. We are of the view that case of the prosecution standsfully established against Sukhwinder Singh, Labh Singh,Bakhtaur Singh, Avtar Singh and Manjit Singh, while NarainDatt and Prem Kumar are entitled to benefit of doubt.

24. PW5 Rajinder Pal Singh has fully supported the versiongiven in the statement of Beant Singh on the basis of which,FIR was recorded. He has confirmed the role of all the accused.Occurrence took place in the broad day light. Identity of theaccused was known to the witnesses. Rajinder Pal Singh isnephew of the deceased Dalip Singh. FIR was prompt. Thereis no improbability in the accused assaulting the deceasedand the witnesses in the manner alleged. There is no seriousinfirmity in the evidence of PW5 Rajinder Pal Singh. Hisversion is consistent and reliable. The assault was clearly re-mediated as five of the accused came with weapons. His 5 This part of the common judgment dated 11.03.2008, setting aside the order passedby the Hon’ble Governor of Punjab granting pardon to the appellant Manjit Singh, wasseparately challenged in this Court in C.A. Nos. 2058-59 of 2011 [arising out of SLP(C) No. 11544 of 2008]. On 24.02.2011, this Court remanded the matter to theGovernor of Punjab for fresh consideration in accordance with law. We were informedduring the course of hearing that no fresh decision has been taken after such remand. Bethat as it may, in view of the fact that the subject matter of the present appeals relatesto the conviction and sentencing of the appellants, no further dilation on the matterrelating to the grant of pardon is requisite herein.

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version is fully supported by PW6 Gurnam Singh. Though,cross-examined at length, their testimony remained unshaken.The version of the said witnesses is duly corroborated bymedical evidence. We are not in agreement with theobservation of the trial Court that evidence of Beant Singhcould be relied upon. Excluding evidence of Beant Singh,who died before cross-examination, does not in any way affectthe case of the prosecution.

25. Reference to the statement of PW5 Rajinder Pal Singhshows that Manjit Singh raised an exhortation to the co-accused to take revenge. He was armed with a ‘kirch’. Merenon-recovery of ‘kirch’ is not by itself of any consequenceonce his participation in giving exhortation and causingassault is established….His role is established by medicalevidence of examination of Rajinder Pal Singh PW5, whohad two injuries with a sharp-edged weapon. Manjit Singhnot only gave one blow but also repeated the blow to RajinderPal Singh. PW-5 Rajinder Pal Singh could not have madeany mistake in implicating Manjit Singh. Contention thatManjit Singh was implicated on account of enmity, cannot beaccepted. It is well known that enmity is a doubled edgedweapon and the same reason could have provided motive toManjit Singh. His role is specific and is duly corroborated.He was the first to initiate the assault.”

5.1. The High Court, after examining the defence evidence asalso other material on record, rejected the defence contentions, includingthe plea of alibi of the appellant Manjit Singh, in the following:

“32. We do not find any merit in the contention that the deathof Dalip Singh was not on account of injuries caused byBakhtaur Singh but only on account of surgical injuries orthat the injuries were not sufficient in the ordinary course ofnature to cause death of Dalip Singh. It is clear that thedeath of Dalip Singh was on account of injuries caused bythe accused Bakhtaur Singh. Intention of causing death canbe clearly inferred. Sukhwinder Singh also assaulted DalipSingh but he received injuries on the hand instead of on thehead. Though, Labh Singh and Avtar Singh caused injuries to Beant Singh and Gurnam Singh respectively, they cannotavoid responsibility for the consequences, which could easilybe foreseen by them in respect of injuries caused to DalipSingh. Same is the position with regard to accused ManjitSingh. There is no reliable evidence to accept the plea ofalibi raised by Manjit Singh. We have thus no hesitation inupholding conviction of Sukhwinder Singh, Labh Singh, AvtarSingh, Bakhtaur Singh and Manjit Singh.”

5.2. After upholding the conviction and the sentence of five of theaccused persons including the appellants, the High Court also examinedthe question of validity of the order granting pardon to the appellantManjit Singh and in that regard, after a detailed survey of the case lawrelating to the power to grant pardon/remission and its judicial review,found that in the present case, the power was exercised only on theperceived public opinion that was clearly impermissible. However, asobserved hereinbefore, this aspect of the matter needs no further dilationherein.

6. Assailing the judgment and order aforesaid, affirming theirconviction and upholding the sentence as awarded, the appellants havepreferred the present appeals.

6.1. Learned counsel for the appellant Manjit Singh has strenuouslyargued that so far this appellant is concerned, it is amply established inevidence that he was not present at the scene of the incident in question;and has particularly referred to the statement of DW-9 to submit that onthe date of incident, the appellant Manjit Singh was present before thesaid witness at 11.30 a.m. at village Dhaner, that was about 25 kms fromthe Barnala Court Complex and hence, his presence at the scene ofcrime at 11.15 a.m. is totally ruled out. Learned counsel has contendedthat the Trial Court as also the High Court have rejected the plea of alibiwithout assigning cogent reasons and the same has resulted in seriousmiscarriage of justice. The learned counsel has argued that the HighCourt has failed to appreciate the fact that there existed previous enmitybetween the family of the deceased and the appellant herein because ofwhich, he has been implicated in the said case. In this regard, learnedcounsel has particularly referred to the fact that PW-5 Rajinder Singh isthe brother of Jagraj, who was involved in the aforesaid rape and murdercase, that was keenly pursued by the appellant Manjit Singh. The learned AB

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Acounsel has yet further argued that there has not been any evidence asregards common object of the accused persons; no independent witnesshas been examined; and then, no weapon of offence was recovered atthe instance of the appellant. Therefore, according to the learned counsel,conviction of the appellant is not justified. The learned counsel hasreferred to the decisions in Sikandar Singh & Ors. v. State of Bihar:B(2010) 7 SCC 477 and Subal Ghorai v. State of West Bengal: (2013)4 SCC 607.

6.2. Learned counsel for appellant Sukhwinder Singh has submittedthat there are material contradictions in the medical evidence as also theocular version and in any case, the essential ingredients of Section 141CIPC, for formation of an unlawful assembly are not established and,therefore, the conviction of the appellant under Section 302 with the aidof Section 149 IPC is not justified. According to the learned counsel, theonly accusation against this appellant is that he had caused simple injuryon the little finger of the deceased Dalip Singh and had used the handleDof the kirpan to cause injury to PW-5 Rajinder Pal Singh and, on theseaccusations, the case against this appellant cannot travel beyond theoffences of Sections 324 and 323 IPC for which, he has alreadyundergone imprisonment for a period of over 4 years and 10 months.The learned counsel has referred to the decision in Govind Singh v.State of Chattisgarh: (2019) 7 SCALE 20.E

7. Per contra, learned counsel for the State has supported theconviction of appellants with the submissions that the Trial Court and theHigh Court have dealt with each and every argument raised by theappellants and the impugned judgments do not suffer from any infirmityso as to call for interference. The learned counsel has submitted that theFappellant Manjit Singh not only caused injuries on the person of RajinderPal Singh but, in fact, instigated the accused party with exhortation priorto the assault and, in the face of clear evidence on record, mere want ofrecovery of kirch used by the appellant Manjit Singh would not exoneratehim. The learned counsel has also contended that when the accusedGpersons, at least five of them, were armed with deadly weapons andassaulted the injured persons simultaneously, all the necessary ingredientsof formation of an unlawful assembly with common object standestablished. As regards the plea of alibi, the learned counsel has submittedthat this plea was never suggested to the prosecution witnesses nor was H

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taken in the statement under Section 313 CrPC; and the made upwitnesses produced in that regard have been duly considered and discardedby the Trial Court and the High Court after thorough appreciation. Thelearned counsel for the respondent has also relied upon a few decisions,including that in Sahabuddin & Ors. v. State of Assam: (2012) 13SCC 213.

8. Having heard learned counsel for the parties and having perusedthe material placed on record, we are clearly of the view that both theseappeals remain bereft of substance and no case for interference at theinstance of the appellants is made out.

Acquittal of two of the accused persons

9. Before taking up other aspects of the matter for consideration,apposite it would be to take note of one of the relevant factors thatthough in this case, the accused Prem Kumar and Narain Datt werealleged to be empty handed and were not assigned the role of causingany injury on any person but, the Trial Court found it to be a case ofcommon object and these two accused persons were held guilty of theoffence under Section 148 IPC as also of other offences with the aid ofSection 149 IPC. The High Court, though agreed with the Trial Courtafter thorough examination of the material on record on all the materialaspects but, as regards these two accused persons, in the concludingpart of its discussion, proceeded to extend them the benefit of doubtwhile observing as under:- “38. As regards Prem Kumar and Narain Datt, who were emptyhanded, they have been given the role of having caught holdof the deceased. If It can be held that they were members ofthe unlawful assembly, even if no overt-act is proved againstthem, they will be liable for the murder. However, we are ofthe view that in absence of tangible evidence, they ought tobe given benefit of doubt.”

9.1. Though the aforesaid accused persons Prem Kumar andNarain Datt were acquitted with benefit of doubt and their acquittal hasnot been challenged but then, this fact, by itself, will not have any mitigatingeffect on the prosecution case against the other five accused persons,including the appellants. It remains trite that acquittal of co-accused per A

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Ase is not sufficient to result in acquittal of the other accused. Even if thematerial evidence against all the accused persons is the same, acquittalof some of them does not lead to a corollary that the other accused alsoneed to be acquitted [vide Yanob Sheikh alias Gagu v. State of WestBengal: (2013) 6 SCC 428 and Dalbir Singh v. State of Haryana:(2008) 11 SCC 425]. If after taking the evidence as a whole, the caseBin relation to the acquitted accused could be segregated from that againstthe other, such other accused could nevertheless be convicted. Noticeableit is that even as regards the said accused Prem Kumar and NarainDatt, the High Court has not recorded a clean acquittal but has onlyextended them the benefit of doubt, for no overt act of assault havingCbeen assigned to them and they being not armed with any weapon. Evenif the involvement of Prem Kumar and Narain Datt is considered doubtfulin view of the uncertain role assigned to them, it cannot be said thatentire substratum of the prosecution case is lost, or even whittled down.

Prosecution CaseD10. We may now take note of salient features of the relevantevidence on record.

10.1. The case of the prosecution on material accusations pivotsaround the testimony of injured eye-witnesses PW-5 Rajinder Pal Singhand PW-6 Gurnam Singh. PW-5 Rajinder Pal Singh has deposed inEconformity with the initial version of Beant Singh on the basis whereof,the FIR in question came to be registered. This witness has testified tothe role of each of the accused in the incident in question. Nothing materialhas come out in the cross-examination to discredit this witness. Of course,a suggestion was made in the cross-examination that he had gone toFsub-jail Barnala on 30.09.2002 and demanded Rs. 20,000/- from theaccused persons to depose in their favour, which he denied. A fewwitnesses were examined in defence evidence to prove that this witnessPW-5 did visit sub-jail Barnala. However, it is too remote to accept thatbecause of such a visit, the witness might have offered false depositionsby taking unlawful consideration. In fact, this very witness is otherwiseGsought to be discredited by the appellants as an interested witness, forbeing the brother of one of the accused persons in the said rape andmurder case, which was being pursued by the appellant Manjit Singh.This witness had also been one of the injured persons in the incident, having received the blows from the appellant Manjit Singh. In the faceof such a fact situation, the suggestion by the defence, that this witnessoffered support to them for unlawful consideration, could only be rejectedas baseless. The Trial Court and the High Court have concurrentlyfound his testimony reliable; and we find no reason to take any differentview of the matter.

10.2. The narration of the incident by PW-6 Gurnam Singh hasalso been consistent with the version occurring in the FIR as also thatoccurring in the statement of PW-5 Rajinder Pal Singh. He had alsobeen an injured person in the same incident and there is nothing on recordto disbelieve or discredit this witness.

10.3. So far as the medico-legal aspect of the matter is concerned,PW-1 Dr. Subhash Singla, who had examined the injured personimmediately after the incident, has proved the respective injury reports,inter alia, making out that there were multiple injuries on the person ofthe deceased Dalip Singh including three injuries from blunt weapon andone from sharp-edged weapon. He also testified about Gurnam Singhhaving received one injury from a sharp-edged weapon apart from otherinjuries; and about Rajinder Pal Singh having sustained three injuries,two of them being from sharp-edged weapon. PW-7 Dr. Jasbir Singhconducted post-mortem on the dead body of Dalip Singh and foundhaemotoma below the scalp; and on clearing haemotoma, found afracture. This witness testified that as per his examination, the cause ofdeath was haemorrhage and shock as a result of the head injury.

10.4. The facts stand established that the deceased and the othermembers of the complainant party received many and multiple injuries,including those on the vital body parts from sharp-edged weapons (asalso blunt objects). It is also established that Dalip Singh died due to thegrievous head injury. Though he died after 9 days from the date of theincident but continuously remained hospitalised and was never in a positionto make any statement. The fact that the injuries in question were inflictedby the accused party, with calculated and determined assault on thecomplainant party, has also been duly established on record. Theconcurrent findings of the Trial Court and the High Court against theaccused persons remain proper and do not appear suffering from anyinfirmity.

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ADefence Version and Evidence

11. It would also be appropriate to take note of the featuresemanating from the defence evidence. In all 13 witnesses were examinedin defence. Before taking up the relevant witnesses concerning the pleaof alibi of the appellant Manjit Singh, we may briefly refer to the otherBdefence witnesses.

11.1. In defence, DW-1 Dr. Atul K. Singh and DW-12 DarshanKumar were examined in support of the assertion that the witnessRajender Singh visited sub-jail Barnala as per the entries occurring inMulakat register; and DW-7 Gurcharan Singh was examined in proofCof the signatures of the witness Rajender Pal Singh on the summonsEX-D-11. As noticed, nothing turns upon this part of defence evidence.

11.2. There had been another defence witness DW-5 LakhwinderSingh who was, at the relevant time, posted as Superintendent of Police(D) Barnala. According to this witness, a complaint was filed beforeDhim to the effect that Manjit Singh, Prem Kumar and Narain Datt werenot present on the spot during the incident in question. This witness senta report, Ex. DA, stating the fact that in the investigation carried out bySurendra Pal Singh, SHO Police Station Barnala, Manjit Singh, PremKumar and Narain Datt were found not present at the time of occurrence.This testimony had not only been irrelevant but had also been totallyEunwarranted. As noticed, initially, the investigating agency attempted toexonerate the appellant Manjit Singh as also the said accused PremKumar and Narain Datt but the Trial Court, by its order dated 19.09.2001,did exercise the power under Section 319 CrPC for proceeding againstthese persons. The prosecution even endeavoured to withdraw the caseFagainst the appellant Manjit Singh and the said Prem Kumar and NarainDatt but the prayer was declined by the Trial Court by its order dated09.11.2002; and the attempts to challenge this order of the Trial Courtalso failed right upto this Court. In such a position, where the opinionstated in the investigation result qua these persons stood overruled bythe judicial order, it had been absolutely unwarranted that such anGoverruled opinion was sought to be relied upon by way of the testimonyof DW-5. Even if this opinion and whatever stated in the report sent bythis witness [Ex. DA] are taken on their face value, nothing whatsoeverturns upon them.

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MANJIT SINGH v. THE STATE OF PUNJAB[DINESH MAHESHWARI, J.]

11.3. The testimony of three other witnesses [DW- 10, DW-11and DW-13] examined by the defence in relation to the plea of alibi ofthe accused Prem Kumar and Narain Datt is not relevant for the presentpurpose.

Plea of alibi of the appellant Manjit Singh

12. The main plank of the contentions on behalf of the appellantManjit Singh is that he was not present at the scene of crime i.e., withinBarnala Court Complex on 03.03.2001 at 11.15 a.m.; and in fact, he waswith the witness DW-9 at village Dhaner on the relevant date at 11.30a.m. The Trial Court, after thorough appreciation of entire record hasrejected this suggestion. The High Court has also observed that therewas no reliable evidence on record to accept this plea of alibi. Havingexamined the record, we are satisfied that the Trial Court and the HighCourt have rightly rejected such a baseless plea after proper appreciationof the evidence on record.

12.1 There are two fundamental, and rather fatal, shortcomingsin the plea of alibi of the appellant Manjit Singh: First, that such a pleawas not even put in suggestion to the relevant prosecution witnessesincluding the injured eye-witnesses PW-5 and PW-6. Secondly, andsignificantly, in his own statement under Section 313 CrPC, the appellantManjit Singh, even while making elaborate assertions that he was falselyimplicated for having stood against the complainant party in relation tothe said rape and murder case of the daughter of Darshan Singh; andwhile also relying upon the earlier police report where he was sought tobe exonerated and earlier attempt on the part of the prosecution towithdraw the case against him, not even remotely stated that he was notpresent at the site and that, at the relevant point of time, he was presentsomewhere else. The relevant part of the statement made by the appellantManjit Singh under Section 313 CrPC is reproduced as under: - “Q.19. Anything else to say?

Ans. I am innocent. An enquiry in this regard was conductedby the SHO/PS kotwali, Barnala and other high officers ofthe police and they all agreed that the present case has falselybeen got registered against me and I was placed in ColumnNo.2. The Addl. P.P. for the State had moved an application A

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U/s 321 Cr.P.C. for withdrawal of the case against me as thesaid case has been falsely registered against me but Sh. S. S.Gupta, the learned Addl. Sessions Judge, Barnala, dismissedthe same and against the said order the State has filed anappeal in the Hon’ble High Court which is still pending thereand the proceedings have been stayed.

The complainant party is the biggest landlord party, of MehalKalan town, where a police station is also there. They hadmurdered a girl namely KK* after raping her. Said KK* wasthe daughter of Darshan Singh, who was a handicappedTeacher and was a poor person. I was the eye witness in thesaid case and was also cited as a defence witness by thecomplainant party but he did not depose according to themand had spoken the truth as such, the complainant party gotannoyed against him. I and Prem kumar and Narain Dutt hadbeen pursuing the case of said KK*, who was not having anyheir and in that case some persons of the complainant partywere sentenced to life imprisonment. The complainant partybeing the big landlords have got the present false caseregistered against us. There was not need to catch hold anold person aged about 80 years. As per the Doctor he wouldhave fallen on receipt of one injury only being of old ageand weak physique. There was no need of catching hold himby two persons. We have no friendship or enmity with theother accused. I am innocent and have been falsely implicatedin the present case, by the complainant party on the strengthof much money and land. I am having separate residencethan the other four accused and of separate occupation.”

12.2. In defence evidence, DW-2 Sukhwinder Singh was examinedto testify that DW-3 Jora Singh was posted as driver on the vehicle inwhich, the undertrials were brought to the Barnala Court Complex. Thewitness DW-3 stated that on 03.03.2001, he was deputed as driver onthe said vehicle; that about 11 a.m., he heard commotion and reachedthe spot where 4/5 persons were causing injuries to 4/5 persons; andthat the accused Narain Datt, Prem Kumar and Manjit Singh were knownto him and they were not present on the spot. DW-6 Amarjit Singh

stated that he was also on duty in the Court Complex Barnala; that therewas a fight between the parties whereupon, he separated the partiesand collected the kripans; that the accused Manjit Singh, Prem Kumarand Narain were known to him and these persons were not present onthe spot where the fight took place. DW-4 Gurcharan Singh Dhaliwal,Advocate, claiming himself to be an eye-witness stated that 3/4 personscaused injuries to 3/4 persons; and that he had not seen the accusedPrem Kumar, Narain Datt and Manjit Singh causing injuries to the victims.DW-8 J.N. Sharma, Advocate stated that a letter of appreciation on therole of the Constable Amarjeet Singh was sent to the SSP Barnala fromthe Bar but he did not verify the correctness of the incident.

12.3. As regards plea of alibi of the appellant Manjit Singh, thedirect witness examined in the matter had been DW-9 Kulwant Singh,said to be a member of the Panchayat. This witness stated that on03.03.2001, at 11.30 a.m., the appellant Manjit Singh came to his housein village Dhaner along with a lady member regarding the level of astreet, and he had gone with them to the spot. According to the witness,the appellant Manjit Singh was not perplexed at that time. This witnessexpressed ignorance if on 03.03.2001, Manjit Singh had appeared in acase pending in the Court of JMFC Barnala. This witness did not makeany application to the Panchayat or to the higher authority regarding thealleged false implication of the appellant Manjit Singh. The conduct ofthis witness DW-9 and most of the other witnesses examined in defencein relation to the plea of alibi, to say the very least, had been queer andtoo unnatural to inspire any confidence.

12.4 The witnesses DW-3 Jora Singh and DW-6 Amarjit Singhwere admittedly serving in police establishment as Head Constable andConstable respectively. From their testimony, this much is apparent thatan occurrence indeed took place on the given date, at the given time,and at the specified place i.e., the Court Complex Barnala. They allegedlyintervened in the fight between two factions. It sounds rather strangethat despite being the eye-witnesses to the incident and being the policepersonnel themselves, neither they took care to report the matter to thepolice station immediately nor the IO could take their statements andcite them as prosecution witnesses. The conduct of DW-4 GurcharanSingh Dhaliwal, Advocate had been equally unnatural. If he was the A

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Aeye-witness to the incident in the Court Complex, there was no reasonthat being a law professional, he would not have reported the matter orwould not have been examined by the IO. Curiously, DW-4 attempted tosuggest that 3/4 persons caused injuries to 3/4 persons while DW-6 statedthat 4/5 persons were causing injuries to 4/5 persons. This discrepancyin the number of persons involved is not without significance. The intentionBof DW-4 had clearly been to tone down the gravity of offence and toavoid the figure of “5” so as to take the case away from Section 149IPC. In any case, mere suggestion in the negative by these persons thatthey did not see the three accused persons Manjit Singh, Prem Kumarand Narain Datt on the spot does not displace the cogent and trustworthyCevidence adduced by the prosecution. The Trial Court and High Courthave rightly discarded these witnesses as being wholly unreliable.

12.5. In the given set of facts and circumstances, where the pleaof alibi was not put in suggestion to the relevant prosecution witnesses;and, in his own statement under Section 313 CrPC, the appellant ManjitDSingh, did not state that he was not present at the site at the relevantpoint of time and he was present somewhere else, this plea could onlybe rejected as a crude afterthought and nothing else. In the givencircumstances, the witness DW-9, Kulwant Singh could only be said tobe a made-up witness, who was lately introduced to somehow make outa case of the presence of the appellant Manjit Singh at a different placeEat the relevant point of time. Such a witness could not have been acceptedfor want of the basis of such a plea by way of cross-examination of theprosecution witnesses as also by way of specific assertion in the plea ofthe appellant Manjit Singh in his statement under Section 313 CrPC.Apart that there is no supporting material in relation to the assertion soFmade by this witness, it is also noteworthy that when the appellant waskeenly pursuing the said rape and murder case of the village girl and thematter was fixed in the Court on 03.03.2001, there was every reason forhim to be present in the Court Complex where the hearing was to takeplace. Viewed from any angle, the plea of alibi, as put forward by theappellant Manjit Singh, remains hollow and could only be rejected.G

Other contentions

13. The other contention on behalf of the appellant Manjit Singhthat his connectivity with the crime is not established for want of recovery of weapon of offence has only been noted to be rejected. As noticed,the IO in the first place did make recoveries on the disclosure statementsof other four accused persons. As regards the appellant Manjit Singh,the IO chose to proceed in the direction that he was innocent and wasfalsely implicated. That seems to be the fundamental reason for the IOnot making any attempt for recovery of the weapon of offence used bythe appellant Manjit Singh. However, this omission has no adverse bearingon the prosecution case, where involvement of the appellant Manjit Singhrather as the leader of the assembly, who started the assault withexhortation and then participated in the assault, stands established beyonddoubt.

13.1. Further, there is hardly any force in the suggestion that theappellant Manjit Singh was falsely implicated for enmity. In thecircumstances of this case, if anything of so-called enmity is to be takeninto consideration, the same equally operates against the appellant andhis companions, as admittedly, the appellant was keenly pursuing theaforesaid case of rape and murder and the complainant party wascomprising of the persons related with the accused in the said case. Thefactor of enmity would only lend support to the prosecution case towardsthe object and motive of the assembly to attack, assault and cause hurtto the members of the complainant party.

13.2. Likewise, the submission about want of independentwitnesses in support of prosecution case is also baseless. There is norule that in every criminal case, the testimony of an injured eye-witnessneeds corroboration from the so-called independent witness(es). Whenthe statement of injured eye-witness is found trustworthy and reliable,the conviction on that basis could always be recorded, of course, havingregard to all the facts and surrounding factors. In the present case, thereliable evidence of the injured eye-witnesses cannot be discarded merelyfor the reason that no independent witness was examined.

Unlawful assembly and rioting with deadly weapons

14. It has been vehemently argued on behalf of both the appellantsthat the essential ingredients of Section 141 IPC for the formation ofunlawful assembly with the common object having not been established,the conviction of the appellants with the aid of Section 149 IPC is notjustified.

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A14.1. The relevant part of Section 141 IPC could be usefullyextracted as under:-

“141. Unlawful assembly.- An assembly of five or morepersons to designated an “unlawful assembly”, if the commonobject of the persons composing that assembly is- B

Third.- To commit any mischief or criminal trespass, or otheroffence; or C

Explanation.- An assembly which was not unlawful when itassembled, may subsequently become an unlawful assembly.”

14.2. Section 149, rendering every member of unlawful assemblyguilty of offence committed in prosecution of common object reads asunder:-D

“149. Every member of unlawful assembly guilty of offencecommitted in prosecution of common object.- If an offence iscommitted by any member of an unlawful assembly inprosecution of the common object of that assembly, or suchEas the members of that assembly knew to be likely to becommitted in prosecution of that object, every person who, atthe time of the committing of that offence, is a member of thesame assembly, is guilty of that offence.”

14.3. We may also take note of the principles enunciated andFexplained by this Court as regards the ingredients of an unlawful assemblyand the vicarious/constructive liability of every member of such anassembly. In the case of Sikander Singh (supra), this Court observedas under:- “15. The provision has essentially two ingredients viz. (i) theGcommission of an offence by any member of an unlawfulassembly, and (ii) such offence must be committed inprosecution of the common object of the assembly or must besuch as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once it isestablished that the unlawful assembly had common object, itis not necessary that all persons forming the unlawful assemblymust be shown to have committed some overt act. For thepurpose of incurring the vicarious liability for the offencecommitted by a member of such unlawful assembly under theprovision, the liability of other members of the unlawfulassembly for the offence committed during the continuanceof the occurrence, rests upon the fact whether the othermembers knew beforehand that the offence actually committedwas likely to be committed in prosecution of the common object.

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17. A “common object” does not require a prior concert anda common meeting of minds before the attack. It is enough ifeach member of the unlawful assembly has the same object inview and their number is five or more and that they act as anassembly to achieve that object. The “common object” of anassembly is to be ascertained from the acts and language ofthe members composing it, and from a consideration of allthe surrounding circumstances. It may be gathered from thecourse of conduct adopted by the members of the assembly.For determination of the common object of the unlawfulassembly, the conduct of each of the members of the unlawfulassembly, before and at the time of attack and thereafter, themotive for the crime, are some of the relevant considerations.What the common object of the unlawful assembly is at aparticular stage of the incident is essentially a question offact to be determined, keeping in view the nature of theassembly, the arms carried by the members, and the behaviourof the members at or near the scene of the incident. It is notnecessary under law that in all cases of unlawful assembly,with an unlawful common object, the same must be translatedinto action or be successful.

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18. In Masalti v. State of U.P.: AIR 1965 SC 202 a ConstitutionBench of this Court had observed that: (AIR p. 211, para 17)

“17. … Section 149 makes it clear that if an offence iscommitted by any member of an unlawful assembly inprosecution of the common object of that assembly, or suchas the members of that assembly knew to be likely to becommitted in prosecution of that object, every person who, atthe time of the committing of that offence, is a member of thesame assembly, is guilty of that offence; and that emphaticallybrings out the principle that the punishment prescribed bySection 149 is in a sense vicarious and does not alwaysproceed on the basis that the offence has been actuallycommitted by every member of the unlawful assembly.”

14.4. In the case of Subal Ghoral (supra), this Court, after asurvey of leading cases, summed up the principles as follows:- “52. The above judgments outline the scope of Section 149IPC. We need to sum up the principles so as to examine thepresent case in their light. Section 141 IPC defines unlawfulassembly to be an assembly of five or more persons. Theymust have common object to commit an offence. Section 142IPC postulates that whoever being aware of facts which renderany assembly an unlawful one intentionally joins the samewould be a member thereof. Section 143 IPC provides forpunishment for being a member of unlawful assembly. Section149 IPC provides for constructive liability of every person ofan unlawful assembly if an offence is committed by anymember thereof in prosecution of the common object of thatassembly or such of the members of that assembly who knewto be likely to be committed in prosecution of that object. Themost important ingredient of unlawful assembly is commonobject. Common object of the persons composing thatassembly is to do any act or acts stated in clauses “First”, “Second”, “Third”, “Fourth” and “Fifth” of that section.Common object can be formed on the spur of the moment.Course of conduct adopted by the members of commonassembly is a relevant factor. At what point of time commonobject of unlawful assembly was formed would depend uponthe facts and circumstances of each case. Once the case ofthe person falls within the ingredients of Section 149 IPC,the question that he did nothing with his own hands would beimmaterial. If an offence is committed by a member of theunlawful assembly in prosecution of the common object, anymember of the unlawful assembly who was present at the timeof commission of offence and who shared the common objectof that assembly would be liable for the commission of thatoffence even if no overt act was committed by him. If a largecrowd of persons armed with weapons assaults intendedvictims, all may not take part in the actual assault. If weaponscarried by some members were not used, that would not absolvethem of liability for the offence with the aid of Section 149IPC if they shared common object of the unlawful assembly.

53. But this concept of constructive liability must not be sostretched as to lead to false implication of innocent bystanders.Quite often, people gather at the scene of offence out ofcuriosity. They do not share common object of the unlawfulassembly. If a general allegation is made against large numberof people, the court has to be cautious. It must guard againstthe possibility of convicting mere passive onlookers who didnot share the common object of the unlawful assembly. Unlessreasonable direct or indirect circumstances lend assuranceto the prosecution case that they shared common object ofthe unlawful assembly, they cannot be convicted with the aidof Section 149 IPC. It must be proved in each case that theperson concerned was not only a member of the unlawfulassembly at some stage, but at all the crucial stages and sharedthe common object of the assembly at all stages. The court AB

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Amust have before it some materials to form an opinion thatthe accused shared common object. What the common objectof the unlawful assembly is at a particular stage has to bedetermined keeping in view the course of conduct of themembers of the unlawful assembly before and at the time ofBattack, their behaviour at or near the scene of offence, themotive for the crime, the arms carried by them and such otherrelevant considerations. The criminal court has to conductthis difficult and meticulous exercise of assessing evidence toavoid roping innocent people in the crime. These principlesClaid down by this Court do not dilute the concept ofconstructive liability. They embody a rule of caution.”

14.5. We need not expand on the other cited decisions becausethe basic principles remain that the important ingredients of an unlawfulassembly are the number of persons forming it i.e., five; and their commonDobject. Common object of the persons composing that assembly couldbe formed on the spur of the moment and does not require priordeliberations. The course of conduct adopted by the members of suchassembly; their behaviour before, during, and after the incident; and thearms carried by them are a few basic and relevant factors to determineEthe common object.

14.6. The facts of the present case, as established by theprosecution, makes it clear that on the relevant date i.e., 03.03.2001 andat the relevant time i.e., 11.15 a.m., at least five of the accused persons,including the present appellants were present at the Barnala CourtFComplex. The members of the complainant party purportedly came tothe very same Court Complex to attend the hearing of the aforesaidrape and murder case of the village girl in which, their kiths and relativeswere the accused persons and the case was being pursued by theappellant Manjit Singh. It is also established that when the persons relatedGwith the complainant party were about to board their vehicle, the accusedpersons attacked them with weapons. Significantly, the attack on thecomplainant party was triggered with exhortation by the appellant ManjitSingh to avenge the rape and murder of the village girl in the expressions“Aj Eh Bach Ke Naa Jaan KK* Da Badla Lai Kay Rahenge”[6]. This H

clearly brings out the motive for the attack as also the object of theassembly. Moreover, the blows hurled by the accused persons on themembers of the complainant party had been of wide range, sufficientforce and chosen aims. The appellant Manjit Singh himself had giventwo blows to the witness PW-5 on either of his hands. Labh Singh gavekirpan blow on the head of Beant Singh. The appellant SukhwinderSingh aimed the first blow on Dalip Singh but hit the right hand of thevictim. The appellant Sukhvinder Singh caused yet another injury to PW-6 Gurnam Singh by the handle of his kirpan. These were apart from therepeated blows by the accused Bakhtaur Singh on the head of thedeceased Dalip Singh with his ghop and then three blows to PW-6Gurnam Singh. That apart, Bakhtaur Singh also gave the blow of hiskirpan on the left leg of Gurnam Singh. It is beyond the pale of doubtthat the accused persons had acted in concert and the object had clearlybeen to ensure causalities amongst the members of the complainantparty. On the applicable principles, we have no hesitation in concludingthat the accused persons did constitute an unlawful assembly; did indulgein rioting in the Court Complex with deadly weapons; and did causegrievous bodily injuries to members of the complainant party. Thedeceased Dalip Singh was attacked rather repeatedly by the membersof this unlawful assembly and he sustained grievous injury on the headthat proved fatal. The background aspects as also the conduct of theaccused persons at and during the incident leaves nothing to doubt thateach of the member of this assembly remains liable for the offencecommitted by himself as also by every other member of the assembly.

15. Before concluding, we may point out that in the case of GovindSingh (supra), as relied upon by the learned counsel for the appellantSukhwinder Singh, the incident occurred in the sudden quarrel and inspur of moment where the appellant picked up chimney lamp and threwit on his daughter who died because of burn injuries sustained in theincident. In the given fact situation, this Court converted the convictionfrom Section 302 IPC to that under Section 304 Part-II IPC and reducedthe sentence of imprisonment to the period already undergone. We areunable to find any applicability of this decision to the facts of the presentcase.

6 That would translate nearly as: “Let them not escape today; KK* shall be avenged.”

AB

C

D

E

F

G

H

AConclusion

16. Accordingly, and in view of the above, these appeals fail andare, therefore, dismissed. The appellants shall surrender before the Courtconcerned within a period of four weeks from today and shall serve outthe remaining part of their respective sentence(s).

B

Kalpana K. Tripathy

Appeals dismissed.

C

D

E

F

G

H