SURENDRA SINGH versus STATE OF RAJASTHAN AND ANR. on 11 April 2023

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[2023] 3 S.C.R. 354

SUPREME COURT REPORTS

[2023] 3 S.C.R.

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SURENDRA SINGH

v.

STATE OF RAJASTHAN AND ANR.

(Criminal Appeal No. 1059 of 2023)

BAPRIL 11, 2023

[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]

Penal Code, 1860 – s.149 – Applicability of – High Court setaside the respondent-accused’s conviction for the offencepunishable u/s.302/149, IPC on the ground that the initial charge-Csheet was filed only against two accused persons (one of them beingthe respondent) and the remaining three persons were subsequentlyarrayed as the accused and are being tried separately thus, s.149,IPC shall not be attracted – Held: When five persons werespecifically named in the FIR and are facing the trial thoughDseparately, s.149 IPC would be attracted – Thus, once therespondent was found to be member of the unlawful assembly andhe actually participated in commission of the offence, then he shallalso be liable to be convicted for the offence u/s.302, IPC with theaid of s.149, IPC, even for the act of the another accused who gavethe fatal blow – High Court erred in observing that no case is madeEout to invoke s.149, IPC – Impugned judgment of the High Courtset aside – Judgment of the Trial Court convicting the respondentfor offences u/ss. 147, 323 and 302/149, IPC restored – Code ofCriminal Procedure, 1973 – s.319.

Criminal Law – Delay in lodging FIR – Plea of the accusedFthat there was delay of 3 ½ days in lodging FIR – Held: Delaysufficiently explained – No reason to give benefit of doubt to theaccused.

Penal Code, 1860 – s.147 – Application of – Discussed.

GAllowing the appeal, the Court

HELD: 1.1 The High Court has not properly consideredthe fact that in the report/FIR there were specific allegationsagainst five accused persons and five accused persons werenamed in the FIR. However, the investigating officer charge-Hsheeted only two persons. The remaining three accused persons came to be added as accused by the learned trial Court whileallowing the application under Section 319 Cr.P.C. As theyabsconded and therefore their trial came to be ordered to beseparated and it is reported that the trial against the remainingaccused is still pending who are also facing the charges for theoffence under Section 302/149 IPC. In that view of the matterwhen five persons were specifically named in the FIR and fivepersons are facing the trial may be separately, Section 149 IPCwould be attracted. The essential question in a case under Section147 is whether there was an unlawful assembly as defined underSection 141, I. P. C., of five or more than five persons. The identityof the persons comprising the assembly is a matter relating tothe determination of the guilt of the individual accused, and evenwhen it is possible to convict less than five persons only, Section147 still applies, if upon the evidence in the case the Court isable to hold that the person or persons who have been foundguilty were members of an assembly of five or more persons,known or unknown, identified or unidentified. In view of the abovefacts and circumstances of the case the High Court has seriouslyerred in observing that no case is made out to invoke Section149 IPC. [Paras 10, 10.1][361-A-C, F-H; 362-A]

Bharwad Mepa Dana & Anr. Vs. State of Bombay 1960

(2) SCR 172 – relied on.

1.2 Once the respondent – accused was found to be memberof the unlawful assembly of more than five persons and he actuallyparticipated in commission of the offence may be the fatal blowmight have been given by the another accused, in the presentcase ‘BS’, still with the aid of Section 149 IPC, RespondentAccused can be convicted for the offence under Section 302 IPCwith the aid of Section 149 IPC. The case would certainly fallwithin first part of Section 149 IPC. As per first part of Section149 IPC if an offence is committed by any member of unlawfulassembly in prosecution of the common object of that assembly,every person who, at the time of that offence, is a member of thesame assembly, is guilty of that offence. [Para 10.2][362-B-C]

Mizaji and Anr. Vs. The State of U.P. [1959] Supp. 1SCR 940 – relied on.

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A1.3 The submission on behalf of the accused that there wasa delay of 3 ½ days has been elaborately dealt with and consideredby the learned trial Court in detail. A proper explanation has beengiven by the complainant. Immediately after the occurrence theinjured were taken to the hospital for treatment. The conditionof ‘BS’ was serious. Complainant concentrated on his treatment.BAnother injured ‘NS’ also remained busy for the treatment. Thus,when the delay has been sufficiently and properly explained, thereis no reason to give benefit of doubt to the accused on theaforesaid ground that there was a delay of 3 ½ days in lodging theFIR. [Para 11.1][363-G-H; 364-A-B]

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1.4 As per the medical opinion and the deposition of doctorthe death occurred due to injury no.9 from the shock of wound atspinal bone of neck. Though the injury no.9 was caused by theaccused ‘BS’, the respondent accused being a part of the unlawfulassembly and who also participated in commission of the offence, Dhe shall also be liable to be convicted for the offence under Section302 IPC with the aid of Section 149 IPC, even for the act of theaccused ‘BS’ who gave the fatal blow. The impugned judgmentand order passed by the High Court acquitting the respondent –accused for the offence under Section 302 under Section 149 IPCis hereby quashed and set aside. The judgment and order passedEby the learned Trial Court convicting the respondent – accusedfor the offence under Sections 147, 323 and 302/149 IPC isrestored. The respondent no.2 – accused to undergo lifeimprisonment for the offence under Section 302/149 IPC. [Paras11.2, 12][364-G-H; 365-A-B, C-D]

FRoy Fernandes vs. State of Goa and others, (2012) 3SCC 221 : [2012] 1 SCR 477 – held inapplicable.

State of Rajasthan vs. Ramanand (2017) 5 SCC 695 :[2017] 3 SCR 981 – referred to.

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H[2017] 3 SCR 981

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1059 of 2023.

From the Judgment and Order dated 20.11.2018 of the High Courtof Judicature for Rajasthan at Jaipur in DBCRA No. 818 of 2013.

Siddhartha Dave, Sr. Adv. (Amicus Curiae), Ms. Jemtiben A.O.,Ms. Tomthinnganbi Koijam, L.K. Paonam, Niraj Bobby Paonam, Ms.Aswathi M.K., Advs. for the Appellant.

Vishal Meghwal, Ms. Yashika Bum, Milind Kumar, AbhishekGupta, Zafar Inayat, Nikhil Kumar Singh, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 20.11.2018 passed by the High Court of Judicature forRajasthan Bench at Jaipur passed in D.B. Criminal Appeal No.818 of2013 by which the Division Bench of the High Court has partly allowedthe said appeal preferred by the respondent accused – Vijendra Singhand has set aside the conviction for the offence punishable under Section302/149 IPC but has convicted for the offence punishable under Section323 IPC, the original complainant/informant has preferred the presentappeal.

2. The facts leading to the present appeal in nutshell are as under:

2. The facts leading to the present appeal in nutshell are as under:

2.1 An FIR was lodged by the police on 01.12.2010 for an incidentwhich took place on 28.11.2010. In the FIR it was alleged that on28.11.2010, while complainant’s younger brother Narendra Singh wasfilling water from hand-pump at around 9.30 a.m. accused BhupendraSingh, Vijendra Singh and Bhawani Singh, Sangeeta and Gulab Kanwarcaused lathi blows to Narendra Singh. In the said incident NarendraSingh and Bhawani Singh became unconscious. Both of them were takento the hospital. Bhawani Singh died. The FIR was registered as FIRbearing no.445/2010. Though the five persons were named in the FIRthe police filed charge-sheet only against two persons namely BhupendraSingh and Vijendra Singh for the offence under Sections 341, 323, 325/34, 308/34 and 302 and alternatively, Section 302/34 IPC. Both theaforesaid accused came to be tried for the aforesaid offence. To provethe charge against the accused the prosecution examined ten witnessesand brought on record seven documentary evidences. The statementsof the accused under Section 313 Cr.P.C. were recorded.

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A2.2 During the trial, the accused Bhupendra Singh died. Thus, theproceedings against him stood abated. The prosecution submitted anapplication under Section 319 Cr.P.C. against the remaining three accusedpersons so left out by the prosecution. The said application was dismissedby the learned Trial Court. However, on a challenge before the HighCourt and on remand, the learned Trial Court directed to try the remainingBthree accused as accused and passed a summoning order of additionalaccused. However, as the remaining three accused absconded for numberof years pursuant to the order passed by the High Court, the trial againstthe respondent herein accused Vijendra Singh came to be separated.Charge came to be reframed and the accused Vijendra Singh came toCbe charged for the offence under Section 302/149 IPC also. Thereafteron conclusion of the trial, the learned Trial Court convicted the accusedVijendra Singh for the offence punishable under Sections 147, 323, 302/149 IPC and sentenced him to undergo life imprisonment for the offencepunishable under Sections 302 read with Section 149 IPC, one year R.I.for the offence under Section 323 IPC and two years R.I. for the offenceDunder Section 147 IPC.

2.3 The respondent herein – accused preferred the present appealbefore the High Court. By the impugned judgment and order the HighCourt has set aside the conviction of the accused Vijendra Singh foroffence under Section 302 read with Section 149 IPC by observing thatEno case is made out for conviction with the aid of Section 149 IPC. Thatthereafter the High Court has considered the individual act of the accusedand thereafter after taking into consideration the fact that the fatal blowon the head was given by accused Bhupendra Singh (who died duringthe trial) and the weapon used by the accused was lathi, the High CourtFby the impugned judgment and order has convicted the accused for theoffence under Section 323 IPC.

2.4 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court convicting the accused for the offenceunder Section 302 read with Section 149 IPC, the original complainant/Ginformant Surendra Singh has preferred the present appeal.

3. Shri Siddhartha Dave, learned Senior Advocate has appearedas Amicus Curiae on behalf of the appellant, Shri Vishal Meghwal, learnedcounsel has appeared on behalf of the respondent – State and ShriAbhishek Gupta, learned counsel has appeared on behalf of respondentno.2.H

4. Shri Siddhartha Dave, learned Senior Counsel appearing onbehalf of the appellant has vehemently submitted that in the facts andcircumstances of the case the Division Bench of the High Court hasmaterially erred in observing that no case was made out for convictionwith the aid of Section 149 IPC.

4.1 It is vehemently submitted by Shri Dave, learned Senior Counselthat the High Court has materially erred in observing that after theregistration of the FIR, even the police found the case only against thetwo accused and the cognizance of the offence against the other accusedare taken subsequently on the remand of the case by the High Courtafter rejection of application under Section 319 Cr.P.C. and the learnedtrial Court took cognizance against the accused later on and thereforeno case is made out for conviction with the aid of Section 149 IPC.

4.2 It is vehemently submitted by Shri Dave learned Senior Counselappearing on behalf of the appellant that the High Court has not properlyappreciated and/or considered the fact that as such in the FIR theallegations were specific against five accused persons. However, at therelevant time the investigating officer filed the charge-sheet only againstthe two accused persons and the remaining three persons were arrayedas accused subsequently pursuant to the order passed by the learnedMagistrate allowing the application under Section 319 Cr.P.C. It issubmitted that therefore when all the five persons came to be tried maybe separately there was an involvement of five persons who form theunlawful assembly and therefore Section 149 IPC would be attracted.

4.3 Heavy reliance is placed on the decision of this Court in thecase of Bharwad Mepa Dana & Anr. Vs. State of Bombay 1960 (2)SCR 172 as well as Mizaji and Anr. Vs. The State of U.P. (1959)Supp. (1) SCR940.

5. Learned counsel appearing on behalf of the State has supportedthe appellant.

6. Shri Abhishek Gupta, learned counsel appearing on behalf ofaccused no.2 relying upon the decision of this Court in the case of RoyFernandes vs. State of Goa and others, (2012) 3 SCC 221,hasvehemently submitted that as such on facts no case is made out to convictthe accused with the aid of Section 149 IPC.

6.1 It is submitted that merely because the accused might havebeen present at the time of commission of the offence and in fact might A

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Ahave participated in commission of the offence but has not played a vitalrole unless it is proved that the other accused knew that in prosecutionof the common object any one of them is likely to commit the murder ofthe deceased, Section 149 IPC shall not 6.2 Now so far as the conviction of the accused for the offenceBunder Section 323 IPC, it is vehemently submitted by learned counselappearing on behalf of the accused that though the respondent no.2 hasnot preferred the appeal challenging the conviction under Section 323IPC, still in an appeal preferred by the State against the acquittal, theaccused can submit that he could not have been convicted for otheroffence. Reliance is placed upon the decision of this Court in the case ofCState of Rajasthan vs. Ramanand (2017) 5 SCC 695.

6.3 In support of his submission that even the respondent - accusedcould not have been convicted even for the offence under Section 323IPC, learned counsel appearing on behalf of the respondent – accusedhas made the following submissions:D

(i) That there was a delay of 3 ½ days in lodging the FIR;(ii)That the injury on the neck has not been established andproved;

(iii) That there are material contradictions on the injuries causedEby the accused persons.

He has taken us to the deposition of doctor examined as PW7and the injury report.

7. Making above submissions it is prayed to acquit the accusedeven for the offence under Section 323 IPC.F

8. We have heard learned counsel appearing on behalf of therespective parties at length.

9. At the outset, it is required to be noted that the learned trialCourt convicted the respondent – accused for the offence under SectionG302 IPC with the aid of Section 149 IPC. However, the High Court hasobserved and held that as the initial charge-sheet was filed only againsttwo persons /accused and further three persons were subsequentlyarrayed as the accused and they are being tried separately, Section 149IPC shall not be attracted. The High Court has also observed that evenas per the FIR three accused came at the place of occurrence whenH

they saw Narendra Singh was filling water and it was thus not assemblyof five accused.

10. However, the High Court has not properly and considered thefact that in the report/FIR there were specific allegations against fiveaccused persons and five accused persons were named in the FIR.However, the investigating officer charge-sheeted only two persons.The remaining three accused persons came to be added as accused bythe learned trial Court while allowing the application under Section 319Cr.P.C. As they absconded and therefore their trial came to be orderedto be separated and it is reported that the trial against the remainingaccused is still pending who are also facing the charges for the offenceunder Section 302/149 IPC. In that view of the matter when five personswere specifically named in the FIR and five persons are facing the trialmay be separately, Section 149 IPC would be attracted. At this stagethe decision of this Court in the case of Bharwad Mepa Dana (supra)on applicability of Section 149 IPC is required to be referred to. Beforethis Court it was the case on behalf of the prosecution that thirteennamed persons formed an unlawful assembly and the common object ofwhich was to kill the three brothers. Twelve of them were tried by theSessions Court who acquitted seven and the High Court acquitted onemore. This brought the number to four. It was the case on behalf of theaccused that as the High Court convicted only four persons falling belowthe required number of five, they could not have been convicted with theaid of Section 149 IPC. The aforesaid contention was negated by thisCourt. This Court observed that merely because two other personsforming part of the unlawful assembly were not convicted as their identitywas not established, the accused cannot be permitted to say that theyare not forming part of the unlawful assembly and they cannot beconvicted with the aid of Section 149 IPC. In the said decision it isspecifically observed and held that the essential question in a case underSection 147 is whether there was an unlawful assembly as definedunder 141, I. P. C., of five or more than five persons. The identity of thepersons comprising the assembly is a matter relating to the determinationof the guilt of the individual accused, and even when it is possible toconvict less than five persons only, Section 147 still applies, if upon theevidence in the case the Court is able to hold that the person or personswho have been found guilty were members of an assembly of five ormore persons, known or unknown, identified or unidentified.

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A10.1 In view of the above facts and circumstances of the casethe High Court has seriously erred in observing that no case is made outto invoke Section 149 IPC.

10.2 Now once the respondent – accused was found to be memberof the unlawful assembly of more than five persons and he actuallyBparticipated in commission of the offence may be the fatal blow mighthave been given by the another accused, in the present case BhupendraSingh, still with the aid of Section 149 IPC, Respondent Accused can beconvicted for the offence under Section 302 IPC with the aid of Section149 IPC. The case would certainly fall within first part of Section 149IPC. As per first part of Section 149 IPC if an offence is committed byCany member of unlawful assembly in prosecution of the common objectof that assembly, every person who, at the time of that offence, is amember of the same assembly, is guilty of that offence. In the case ofMizaji and Anr. (supra), this Court had occasion to consider Section149 of the IPC and the distinction between two parts of Section 149DIPC. It is observed and held as under:

“This section has been the subject matter of interpretation in thevarious High Court of India, but every case has to be decided onits own facts. - The first part of the section means that the offencecommitted in prosecution of the common object must be one whichEis committed with a view to accomplish the common object. It isnot necessary that there should be a preconcert in the sense of ameeting of the members of the unlawful assembly as to thecommon object; it is enough if it is adopted by all the membersand is shared by all of them. In order that the case may fall underthe first part the offence committed must be connected immediatelyFwith the common object of the unlawful assembly of which theaccused were members. Even if the offence committed is not indirect prosecution of the common object of the assembly, it mayyet fall under s. 149if it can be held that the offence was such asthe members knew was likely to be committed. The expression IGknow’ does not mean a mere possibility, such as might or mightnot happen. For instance, it is a. matter of common knowledgethat when in a village a body of heavily armed men set out to takea woman by force, someone is likely to be killed and all themembers of the unlawful assembly must be aware of that likelihoodand would be guilty under the second part ‘of s.149. Similarly, if H

a body of persons go armed to take forcible possession of theland, it would be equally right to say that they have the knowledgethat murder is likely to be committed if the circumstances as tothe weapons carried and other conduct of the members of theunlawful assembly clearly point to such knowledge on the part ofthem all. There is a great deal to be said for the opinion of Couch,C. J., in Sabid Ali’s case (1) that when an offence is committed inprosecution of the common object, it would generally be an offencewhich the members of the unlawful assembly knew was likely tobe committed in prosecution of the common object. That, however,does not make the converse proposition true; there may be caseswhich would come within the second part, but not within the first.The distinction between the two parts of s.149, Indian PenalCodecannot be ignored or obliterated. In every case it would bean issue to be determined whether the offence committed fallswithin the first part of s. 149as explained above or it was anoffence such as the members of the assembly know to be likelyto be committed in prosecution of the common object and fallswithin the second part.”

10.3 Now so far as the reliance placed upon the decision of thisCourt in the case of Roy Fernandes (supra), relied upon on behalf ofthe respondent – accused is concerned, on facts the said decision shallnot be applicable. In the said decision this Court had considered thesecond part of Section 149 IPC. This Court did not consider the firstpart of Section 149 IPC and the distinction between the first part and thesecond part of Section 149 which has been considered by this Court inthe case of Mizaji and Anr. (supra).

11. Now, so far as the submission on behalf of the accused thathe ought not to have been convicted for the offence under Section 323IPC is concerned, though the accused has not challenged the impugnedjudgment and order passed by the High Court challenging the offenceunder Section 323 IPC we have heard the learned counsel appearing onbehalf of the accused on merits on his conviction under Section 323IPC.

11.1 The submission on behalf of the accused that there was adelay of 3 ½ days has been elaborately dealt with and considered by thelearned trial Court in detail. A proper explanation has been given by thecomplainant - Surendra Singh. Immediately after the occurrence the ABC

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Ainjured were taken to the hospital for treatment. The condition of BhawaniSingh was serious. Complainant concentrated on his treatment. Anotherinjured Narendra Singh was also remained busy for the treatment. Thus,when the delay has been sufficiently and properly explained, we see noreason to give benefit of doubt to the accused on the aforesaid groundthat there was a delay of 3 ½ days in lodging the FIR.B

11.2 Now so far as the submission on behalf of the accused onthe injuries and the contradictions in the injuries, at the outset, it is requiredto be noted that the deposition of the eye-witness PW1 and PW4 andthe deposition of the doctor - PW7 are relevant material/deposition againstthe accused. The deceased sustained following injuries:C

1.2xl/2 cm scratched injury in the middle of head with redcolor soft clotting and hematoma beneath the skin of thehead

2. Blue colored swelling on right head measuring 2.SxLDINTERNAL hematoma in frontal head lobe.

3.2cm stitch wound on occipital region of head. Blood clottinga parietal region of right side of head.

4.3x2 cm scratched injury in front parietal part.

5. lxl/2 cm injury over nose.

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6.2xl/2 cm scratched I injury over right knee.

7.5X0.5 cm scratched injury on the lower part of left leg.

8.0.5X0.5 cm scratched injury on the middle part of left leg.

F9.6xl.5 cm blue colored wound on the back of neck. Whilefurther dissecting it was found that on left muscles there ishematoma and fourth and fifth cervical ribs were broken.There was swelling on it. 10. On front of stomach 2.5xl.5cm Blue coloured wound on naval side.

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GAll these wounds and injuries lead to death as per the opinionof the doctor. As per the medical opinion and the depositionof doctor the death occurred due to injury no.9 from theshock of wound at spinal bone of neck. Though the injuryno.9 was caused by the accused Bhupendra Singh asHobserved and held hereinabove the respondent accused being a part of the unlawful assembly and who alsoparticipated in commission of the offence, he shall also beliable to be convicted for the offence under Section 302IPC with the aid of Section 149 IPC, even for the act of theaccused Bhupendra Singh who gave the fatal blow.

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12. Under the circumstances the impugned judgment and orderpassed by the High Court acquitting the accused for the offence underSection 302 read with Section 149 IPC is unsustainable and the samedeserves to be quashed and set aside.

In view of the above and for the reason stated above the presentappeal succeeds. The impugned judgment and order passed by the HighCCourt acquitting the respondent – accused for the offence under Section302 under Section 149 IPC is hereby quashed and set aside. The judgmentand order passed by the learned Trial Court convicting the respondent –accused for the offence under Sections 147, 323 and 302/149 IPC ishereby restored. The respondent no.2 – accused to undergo lifeDimprisonment for the offence under Section 302/149 IPC. The respondentno.2 now to surrender before the concerned authority/court to undergothe remaining sentence of life imprisonment within a period of threeweeks from today, failing which, he shall be taken into custody forthwith.

Present appeal is accordingly allowed.

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Divya Pandey

(Assisted by : Abhishek Pratap Singh and Shevali Monga, LCRAs)

Appeal allowed.

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