DEV KARAN @ LAMBU versus STATE OF HARYANA on 6 August 2019

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[2019] 11 S.C.R. 40

SUPREME COURT REPORTS

[2019] 11 S.C.R.

ADEV KARAN @ LAMBU

v.

STATE OF HARYANA

(Criminal Appeal No. 299 of 2010)

BAUGUST 06, 2019

[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]

Penal Code, 1860 – ss.148, 302, 307, 325 r/w. s.149 ands.449 – Murder – Complainant case was that seven persons (allCaccused) entered the under-construction house of the victim-deceased armed with deadly weapons and attacked the victim – Allthe accused hit the victim indiscriminately with their respectiveweapons – Consequent to which victim died – PW-7,8 also receivedinjuries – FIR was registered – Trial Court convicted all the sixaccused persons u/ss. 148, 302, 307, 325 r/w. 149 IPC and s.449DIPC – One accused person (A-1) died during the Trial – High Courtdismissed the appeals – Against the order of the High Court, A-2and A-7 did not prefer appeal, however, A-3, A-4, A-5 and A-6preferred appeals before the Supreme Court – A-4 and A-6contended that since no charges were framed u/s. 141 IPC, theEunlawful assembly did not exist and therefore, s.149 IPC could nothave been invoked – A-5, inter alia, made a plea of mistaken identity– Held: It has nowhere been said in the judicial pronouncementsthat s.141 IPC should be specifically invoked or else consequenceswould be fatal – As long as the necessary ingredients of an unlawfulassembly are set out and proved, as enunciated in s. 141 IPC, itFwould suffice – The actions of an unlawful assembly and thepunishments thereafter are set out in the subsequent provisions, afters.141 IPC, and as long as those ingredients are met, s. 149 IPC canbe invoked – In the instant case, the A-1 (since deceased) not onlyinflicted a blow with a bahi, but also raised a lalkar that the deceasedGshould be killed – All other accused also inflicted blows on thedeceased – The common object was, thus, writ large on its face –Both the Courts below have found that version given by PW-7 and8 evoked confidence, who were themselves injured in the incident –Insofar A-5 is concerned, PW-8 had identified him and all the otheraccused – Further, A-3, A-4, A-5 were arrested on the same day andH

recovery of weapons was also made due to disclosure statement ofA-5 – Thus, plea of mistaken identity cannot be accepted – All fourappeals by the accused dismissed.

Dismissing the appeals, the Court

HELD: 1. This Court is unable to come to a conclusionthat there was any fatal flaw in the non-inclusion of Section 141 ofthe IPC while framing charges, as would render the completetrial illegal, or that it can result in a finding that there would be nooccasion to invoke Section 149 of the IPC. A-4 and A-6 appearsnot to have appreciated the judicial pronouncements in the correctperspective, as what is necessary for invoking Section 149 of theIPC has been set out in these judgments. It has nowhere beensaid that Section 141 of the IPC should be specifically invoked orelse the consequences would be fatal. As long as the necessaryingredients of an unlawful assembly are set out and proved, asenunciated in Section 141 of the IPC, it would suffice. The actionsof an unlawful assembly and the punishment thereafter are setout in the subsequent provisions, after Section 141 of the IPC,and as long as those ingredients are met, Section 149 of the IPCcan be invoked. [Para 21] [52-F-G; 53-A]

2. In the factual context, it is observed that whatever bethe altercation or argument between a friend of deceased andthe seven accused, it resulted in the seven accused armed withdeadly weapons coming to the site of the incident, being the under-construction house of the deceased, and all of them inflicting blowson the deceased. Accused no.1, since deceased, not only inflicteda blow with a bahi, but also raised a lalkar that the deceasedshould be killed. All the other accused also inflicted blows onthe deceased. Even the interventions of PW-7 & PW-8 did notresult in their desisting from such assault, but on the other hand,even PW-7 and PW-8 received injuries as a result thereof. Thisis not a case where the common assembly proceeded to the siteand subsequently decided to inflict the blows. It is not as if anyoneincidentally joined the group, but all of them came together witha clear intent and acted upon that intent. It was not as if any ofthe accused ran away from the site, or ceased to have the intentto inflict blows, which resulted in the death of the deceased. Thecommon object is, thus, writ large on its face. There were, at A

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Aleast, 24 injuries inflicted on the deceased, and both thecourts below have found that the version given by PW-7 and PW-8 evoke confidence, who were themselves injured in the incident.Minor discrepancies were, thus, found to be a natural cause, whereso many persons attacked suddenly. The accused were knownto the eye-witnesses and, thus, there can be no case of mistakenBidentity. There was no unexplained delay in filing the FIR. Thereis no merit in the case sought to be made out on behalf of theaccused Nos.4 & 6. [Paras 22, 27] [53-B-E; 54-E]

3. On examination of the pleas of A-5, this Court agreesthat these discrepancies fall under what has been labeled by theCHigh Court as ‘minor discrepancies’, more so in an incident ofthis nature, where all the accused were inflicting blows on thedeceased, at tandem. PW-7 and PW-8 also became victims ofthis attack, when they tried to intervene. It would be difficult toaccept that in such a situation, the narration should be absolutelyDexact, rather there should be a broad consistency in whattranspired at the time of the incident. To accept the plea of A-5,which at first blush may seem to have some merit, on a deeperexamination would amount to nit picking the testimony of thewitnesses to somehow obtain an acquittal. This Court may alsonotice that there was no past enmity, which could be attributedEagainst A-5 alone as to rope him in. In fact, the grievance of thedeceased was about the collective behavior, in the past, of all theaccused. This resulted in all the accused using the opportunityof a small verbal tiff with a friend of complainant and deceased, tocome to the site of the incident, which was the under constructionhouse of the deceased, to inflict the deadly blows on the deceased,Fculminatingin his death. [Para 30] [55-C-E]

4. The testimony of PW-8 further shows that he hadseen A-6 and other accused persons earlier when they hadbeen identified to him, at that stage. It is in those circumstancesthat he identified all the accused. The fact also remains that A-G3, A-4 and A-5 were arrested on the same day, though A-6 wasarrested subsequently. The recovery of weapons was also madedue to the disclosure statement of A-5. Thus, this Court is notpersuaded to accept the plea of mistaken identity, as sought tobe advanced by A-5 , which is what is stated to be the real caseHdistinguishing A-5 from other accused. [Para 32] [56-A-B]

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5. Insofar as A-3 is concerned, all arguments of A-5 wereadopted, except the argument about mistaken identity but then,that is the only plea of A-5, other than formally adopting thearguments of A-4 and A-6, which have already been rejected.[Para 33] [56-C]

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Vinubhai Ranchhodbhai Patel v. Rajivbhai DudabhaiPatel &Ors. (2018) 7 SCC 743 : [2018] 6 SCR 1050 ;Dani Singh v. State of Bihar (2004) 13 SCC 203 : [2004]2 SCR 1138 ; Mahadev Sharma v. State of Bihar (1966)1 SCR 18 ; KuldipYadav v. State of Bihar (2011) 5 SCC324 : [2011] 5 SCR 186 – referred to.

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 299 of 2010

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From the Judgment and Order dated 19.09.2008 of the High Courtof Punjab and Haryana at Chandigarh in Cr. Appeal No. 61-DB/99

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Criminal Appeal Nos. 300, 302 and 1139 of 2010

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Ms. Alka Agrawal, AAG, R. Basant, Sr. Adv., Ms. TarannumCheema, A. Karthik, Ms. Smriti Suresh, Vishnu P., Badusha Sulaiman,Akshay Sahay, Ms. Hiral Gupta, Akshay N., Sanjay Jain, Ms. AnamikaAgrawal, Dr. Monika Gusain, Rishi Malhotra, Utkarsh Singh, Ram NareshYadav, V. Shushant, Mohit Kumar Singh, Advs. for the appearing parties.

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The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

1. On the fateful date of 28.7.1994 at 3 a.m., Jaibir @ Gabbu (forshort ‘deceased’) was murdered. An FIR was registered on the same H

Adate by one Surender (PW-7). The prelude culminating in the incidenthas been set out in the FIR.

2. The residential house of the deceased was under-construction,at Modawala Bagh in Bhiwani. A group of friends – Surender (PW-7),the deceased, Ajay Bhan (PW-8), another Surender S/o Rajender SinghB(not examined), Sandeep (not examined) and Narender (not examined)were sitting and consuming liquor in one of the rooms of the underconstruction house. It appears that the liquor possibly fell short, as thedeceased asked Sandeep to bring half a bottle of liquor from the Englishvend. After some time, the remaining friends who were in the room Cheard raised voices of Sandeep. In order to enquire as to what wastranspiring, Surender (PW-7/complainant), the deceased and Narenderwent towards the liquor shop. In the proximity of the liquor shop, nearthe tea shop of Naresh Kumar, these three persons saw accused Krishanand Vidhya Rattan (original accused No.3/appellant[1]) abusing andquarrelling with Sandeep. Heated words were exchanged and threatsDwere held out. The deceased asked Krishan and Vidhya Rattan to comeduring the day to discuss the matter with the complainant and his friends.The complainant, the deceased, Narendar and Sandeep thereafter cameback to the under-construction, residential house.

E3. It is the case of the complainant that just as these friends were,once again, in the process of resuming their drink, seven persons (allarrayed as accused before the trial court) entered the under-constructionhouse of the deceased, armed with deadly weapons like wooden rafter,lathis and sword. Rajesh Yadav (accused No.1), who has since passedaway, was armed with a bahi (a rectangular wooden rafter, which isFused in making cots), and proclaimed that the deceased, referred to asthe ‘leader’, be killed, and then he hit the deceased on the head with thewooden rafter. A lathi blow was given by Krishan on the head of thedeceased. The consequence of these blows was that the deceased fellto the ground. The assault continued when Suresh (original accusedGNo.5/appellant[2]) also gave a wooden rafter blow on the left leg of thedeceased. Rajesh Yadav (accused No.1), since deceased, raised alalkara that Jaibir (the deceased) be killed altogether. All the accusedthereafter started hitting the deceased indiscriminately with their 1 Appellant in Crl.Appeal No.300/2010

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1 Appellant in Crl.Appeal No.300/2010

2 Appellant in Crl. Appeal No.302/2010

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respective weapons. A variety of weapons were used to carry out theassault, with Rajesh Yadav and Suresh being armed with bahis, whileRajesh Jogi (original accused No.4/appellant[3]) being armed with kirpan(sword) andthe remaining four accused carrying lathis.

4. The endeavour of the complainant to intervene, only ended upinblows being received by him from different accused, and the samewas the consequence for Ajay Bhan (PW-8), on his endeavour tointervene, too. All the accused persons are stated to have run awayfrom the place of occurrence of the event, once the remaining companionsof deceased herein raised an alarm. The deceased succumbed to hisinjuries, though was taken for treatment to the General Hospital, Bhiwani.The examination of PW-8 and PW-7 resulted in the doctor opining thatPW-8 had multiple lacerated wounds on the scalp, and that his rightforearm bones, left forearm bones and right foot were fractured. Aftergiving necessary medical treatment, he was referred to the MedicalCollege, Rohtak on the same day. Surender (PW-7/complainant) wasfound with a surgical emphysema[4] on the right side, which was the reasonfor his reference to the Medical College, Rohtak. The ruqa was sent tothe Police Station, Bhiwani at 4:15 a.m. by the doctor on duty, Dr. AdityaSarup Gupta. Suffice to say, the various injuries inflicted on these twopersons were found by the doctor to have been inflicted with bluntweapons, with some of the injuries being grievous in nature, while theremaining ones being simple. But for timely medical aid, the injuriescould have proved fatal, opined the doctor. Both these persons weredeclared fit to make statements at 5:40 a.m., on 28.7.1994.

5. On the ruqa being sent, the SHO of the Police Station atBhiwani reached the hospital to record the statements of PW-7 andPW-8. The formal FIR was registered, thus, at 7:15 a.m., imputing acommon object to all the accused, to murder the deceased. On inquestproceedings being conducted, the body was sent for post-mortem. Aspecial report was received by the Chief Judicial Magistrate (‘CJM’),Bhiwani at 9:00 a.m., and a rough site plan was made by the SHO at thesite, who also collected blood stained earth, one chaddar, one pajamashirt of the deceased, one pajama, kamij and baniyan in torn condition.Four of the accused – Krishan, Vidhya Rattan, Suresh and Rajesh Jogi

4 A condition in which the air sacs of the lungs are damaged and enlarged, causing breathlessness.

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Awere apprehended/arrested on 28.7.1994 and questioned. On the post-mortem being concluded, the deceased was found to have suffered,inter alia, the following injuries:

Multiple lacerated wounds on the parieto-occipital area of thescalp, and various other parts of the forehead, scalp. On openingBthe skull bone, subdural haematoma was found at thecorresponding site of fracture, onethe right side of the parietalbone.

Lacerated wounds on the left eye brow, lower eye lid, rightforearm, and left leg.

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Fracture of bones in the left leg.

Bruises on the right shoulder, right upper arm, chest, abdomen,left and right thigh, left and right knee.

Abrasions on the left should, left forearm.D

The cause of death was opined to be shock and haemorrhage, asa result of injuries, which were sufficient in the normal course of nature,to cause death. These injuries were quite possibly as a result of blowsfrom lathis, bahis and sword.

6. The disclosure statement, post the interrogation of the arrestedEaccused on 29.7.1994, resulted in recovery of the weapons and clothesworn by them at the time of the incident. On the same day, RajeshYadav (accused No.1) was also arrested, and his disclosure statementled to the recovery of a bahi. Dev Karan (original accused No.6/appellant[5]) was, however, arrested subsequently, on 1.8.1994, and heFled to the discovery of lathis, for which assistance was also provided bythe accused, Karma.

7. On completion of investigation, a chargesheet was filed on15.11.1994, and charges were framed under Sections 148, 302, 307, 325read with Section 149 of the Indian Penal Code, 1860 (hereinafterGreferred to as the ‘IPC’) and Section 449 of the IPC. The accusedpleaded innocence, and during trial, seventeen prosecution witnesseswere examined. No witnesses were examined as defence witnesses.Rajesh Yadav died during trial. The remaining arrested accused werefound guilty and convicted under Sections 148, 302, 307, 325 read with H

Section 149 of the IPC and Section 449 of the IPC. All the accusedwere sentenced for life, with fine of Rs.500 each under Section 302 ofthe IPC. They were also sentenced to undergo rigorous imprisonment(‘RI’) for seven years each along with a fine of Rs.500 each underSection 307 of the IPC with similar sentence under Section 149 of theIPC. The accused were also directed to undergo RI for three yearseach with a fine of Rs.200 each under Section 325 of the IPC, andunder Section 148 of the IPC, they were sentenced to RI for 2 yearseach with fine of Rs.200 each. The sentences were directed to runconcurrently. All the accused were held guilty under Section 149 of theIPC as they constituted an unlawful assembly, as a result of which, itwas opined that specific attribution of injuries caused by each individualwas not required to be considered.

8. It may also be noticed that Karma (A-7) was apprehendedsubsequently, and was convicted in a subsequent trial. The accusedfiled appeals. The High Court, however, dismissed the appeals in termsof the impugned judgment and order dated 19.9.2008.

9. Against the order of the High Court, Krishan (A-2) and Karma(A-7) did not prefer further appeal to this Court, and seemingly acceptedthe sentence. Thus, only Vidhya Rattan (A-3), Rajesh Jogi (A-4), Suresh(A-5) and Dev Karan (A-6) preferred appeals, which four appeals havebeen examined by us, in the present judgment.

10. Learned counsel advanced submissions on behalf of A-4 andA-6, i.e., Rajesh and Dev Karan. The gravamen of the submissionswas the plea that no charges had been framed under Section 141 of theIPC. In addition, it was submitted that the prelude to the incident was analleged altercation between Sandeep and A-2 & A-3. However, forreasons best known to the prosecution, Sandeep, who was the sole personwho could have thrown light as to what gave rise to the initial quarrel,has not been examined. Not only that, Sandeep is alleged to have comeback with the liquor after the incident, and thereafter, all the accused arealleged to have come to the spot and beat up the deceased. The thirdaspect emphasised was that the main injury, which would have causedthe death, was an injury on the head by the wooden rafter, which wasdelivered by A-1, who passed away during the trial.

11. Learned counsel took us through the provisions of ChapterVIII of the IPC, dealing with ‘Offences against the Public Tranquility’.

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AIt was his submission that the provisions have to be ready holistically,and in sequence. Thus, Section 141 of the IPC defines an ‘UnlawfulAssembly’ as an assembly of five or more persons with a common object.Such common objects are specified in the Section, and what would beapplicable, in this case, would be the third aspect, i.e., “to commit anymischief or criminal trespass, or other offence.” Section 142 of the IPCBprovides that a person who, being aware of facts which render anyassembly an unlawful assembly, intentionally joins that assembly, orcontinues in it, is said to be a member of an unlawful assembly, whileSection 143 of the IPC provides the punishment for being part of suchan unlawful assembly. Section 144 of the IPC deals with joining anCunlawful assembly, armed with deadly weapon, which is likely to causedeath; Section 146 of the IPC deals with rioting; Section 147 of the IPCdeals with punishment for rioting while Section 148 of the IPC dealswith rioting, armed with deadly weapon. Section 149 of the IPC readsas under:

D“149. Every member of unlawful assembly guilty of offencecommitted in prosecution of common object.—If an offenceis committed by any member of an unlawful assembly inprosecution of the common object of that assembly, or such asthe members of that assembly knew to be likely to be committedEin prosecution of that object, every person who, at the time of thecommitting of that offence, is a member of the same assembly, isguilty of that offence.”

12. It was, thus, the submission advanced that unless there isinfliction of punishment under Section 143 of the IPC, as a sequitur toFforming an unlawful assembly under Section 141 of the IPC, there couldbe no cause to apply Section 149 of the IPC.

13. Learned counsel referred to the judgment in VinubhaiRanchhodbhai Patel v. Rajivbhai Dudabhai Patel &Ors.,[6] to elucidatehis submission. The concept of vicarious liability, as a result of which aGlarge number of accused constituting an unlawful assembly can be heldguilty, has been discussed, to hold that it is not necessary that each of theaccused inflict fatal injury or any injury at all; the mere presence of anaccused in such an assembly is sufficient to render him vicariously liableunder Section 149 of the IPC, for causing the death of the victim of theH6 (2018) 7 SCC 743

attack, provided that the accused are told that they are to face the charge,rendering them so vicariously liable. The principle of this vicarious liability,under Section 149 of the IPC has been set out in para 28 of the judgmentand reads as under:

“Section 149 propounds a vicarious liability [Shambhu NathSingh v. State of Bihar, AIR 1960 SC 725: 1960 CrlLJ 1144] intwo contingencies by declaring that (i) if a member of an unlawfulassembly commits an offence in prosecution of the common objectof that assembly, then every member of such unlawful assemblyis guilty of the offence committed by the other members of theunlawful assembly, and (ii) even in cases where all the membersof the unlawful assembly do not share the same commonobject to commit a particular offence, if they had the knowledgeof the fact that some of the other members of the assembly arelikely to commit that particular offence in prosecution ofthe common object.”

14. The concept of unlawful assembly under Section 149 of theIPC was, thus, as per para 31, opined to have two elements:

“(i) The assembly should consist of at least five persons; and

(ii) They should have a common object to commit an offence orachieve any one of the objects enumerated therein.”

15. In that context, in paras 32 & 33, it has been observed asunder:

“32. For recording a conclusion, that a person is (i) guilty of anyone of the offences under Sections 143, 146 or 148 or (ii) vicariouslyliable under Section 149 for some other offence, it must first beproved that such person is a member of an “unlawful assembly”consisting of not less than five persons irrespective of the factwhether the identity of each one of the 5 persons is proved or not.If that fact is proved, the next step of inquiry is whether thecommon object of the unlawful assembly is one of the 5 enumeratedobjects specified under Section 141 IPC.

33. The common object of assembly is normally to be gatheredfrom the circumstances of each case such as the time and placeof the gathering of the assembly, the conduct of the gathering asdistinguished from the conduct of the individual members are A

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Aindicative of the common object of the gathering. Assessing thecommon object of an assembly only on the basis of the overt actscommitted by such individual members of the assembly, in ouropinion is impermissible. For example, if more than five peoplegather together and attack another person with deadly weaponseventually resulting in the death of the victim, it is wrong to concludeBthat one or some of the members of such assembly did not sharethe common object with those who had inflicted the fatal injuries(as proved by medical evidence); merely on the ground that theinjuries inflicted by such members are relatively less serious andnon-fatal.”

C16. The submission, thus, was that the significance of not invokingSection 141 of the IPC is that the very substratum of constituting anunlawful assembly did not exist.

17. To support the aforesaid line of reasoning, a reference wasalso made to the earlier judgment in Dani Singh v. State of Bihar[7],Dwhere, in para 11 it has been observed as under:

“11. The emphasis in Section 149 IPC is on the common objectand not on common intention. Mere presence in an unlawfulassembly cannot render a person liable unless there was a commonobject and he was actuated by that common object and that objectEis one of those set out in Section 141. Where common object ofan unlawful assembly is not proved, the accused persons cannotbe convicted with the help of Section 149. The crucial question todetermine is whether the assembly consisted of five or morepersons and whether the said persons entertained one or more ofFthe common objects, as specified in Section 141. It cannot be laiddown as a general proposition of law that unless an overt act isproved against a person, who is alleged to be a member of anunlawful assembly, it cannot be said that he is a member of anassembly. The only thing required is that he should have understoodGthat the assembly was unlawful and was likely to commit any ofthe acts which fall within the purview of Section 141. The word“object” means the purpose or design and, in order to make it“common”, it must be shared by all. In other words, the objectshould be common to the persons, who compose the assembly, H

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that is to say, they should all be aware of it and concur in it. Acommon object may be formed by express agreement after mutualconsultation, but that is by no means necessary. It may be formedat any stage by all or a few members of the assembly and theother members may just join and adopt it. Once formed, it neednot continue to be the same. It may be modified or altered orabandoned at any stage. The expression “in prosecution ofcommon object” as appearing in Section 149 has to be strictlyconstrued as equivalent to “in order to attain the common object”.It must be immediately connected with the common object byvirtue of the nature of the object. There must be community ofobject and the object may exist only up to a particular stage, andnot thereafter. Members of an unlawful assembly may havecommunity of object up to a certain point beyond which they maydiffer in their objects and the knowledge possessed by eachmember of what is likely to be committed in prosecution of theircommon object may vary not only according to the information athis command, but also according to the extent to which he sharesthe community of object, and as a consequence of this the effectof Section 149 IPC may be different on different members of thesame assembly.”

18. In order to appreciate the significance of specifically invokingSection 141 of the IPC, it would be appropriate to refer to the judgmentof this Court in Mahadev Sharma v. State of Bihar[8]. This Court opinedthat for application of Section 149 of the IPC, there must be an unlawfulassembly. The scheme of the provisions was explained as under:

“9. The fallacy in the cases which hold that a charge under Section147 is compulsory arises because they overlook that the ingredientsof Section 143 are implied in Section 147 and the ingredients ofSection 147 are implied when a charge under Section 149 isincluded. An examination of Section 141 shows that the commonobject which renders an assembly unlawful may involve the useof criminal force or show of criminal force, the commission ofmischief or criminal trespass or other offence, or resistance tothe execution of any law or of any legal process. Offences underSections 143 and 147 must always be present when the charge is ABC

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Alaid for an offence like murder with the aid of Section 149, but theother two charges need not be framed separately unless it is soughtto secure a conviction under them. It is thus that Section 143 isnot used when the charge is under Section 147 or Section 148,and Section 147 is not used when the charge is under SectionB148. Section 147 may be dispensed with when the charge is underSection 149 read with an offence under the Indian Penal Code.”

19. Thereafter, it has been opined that if charges framed againstthe appellant contain all the necessary ingredients to bring home to eachof the member of the unlawful assembly, the offence, with aid of SectionC149 of the IPC, and the prosecution proves the existence of an unlawfulassembly with a common object, which is the offence, as also themembership of each appellant, nothing more is necessary. The effect ofthese observations is that Section 141 of the IPC only defines what is anunlawful assembly and in what manner the unlawful assembly conductsitself, and in what cases the common object would make the assemblyDunlawful is specified in the Sections thereafter, inviting the consequencesof the appropriate punishment in the context of Section 149 of the IPC.

20. In KuldipYadav v. State of Bihar[9], it has been opined in para36 that a clear finding regarding the nature of the common object of theassembly must be given and the evidence discussed must show not onlyEthe common object, but also that the object was unlawful, before recordinga conviction under Section 149 of the IPC. What is required is that theessential ingredients of Section 141 of the IPC must be established.

21. On examination of the aforesaid aspect, we are unable tocome to a conclusion that there was any fatal flaw in the non-inclusionFof Section 141 of the IPC while framing charges, as would render thecomplete trial illegal, or that it can result in a finding that there would beno occasion to invoke Section 149 of the IPC. Learned counsel appearsnot to have appreciated the judicial pronouncements in the correctperspective, as what is necessary for invoking Section 149 of the IPCGhas been set out in these judgments. It has nowhere been said thatSection 141 of the IPC should be specifically invoked or else theconsequences would be fatal. As long as the necessary ingredients ofan unlawful assembly are set out and proved, as enunciated in Section141 of the IPC, it would suffice. The actions of an unlawful assemblyH9 (2011) 5 SCC 324

and the punishment thereafter areset out in the subsequent provisions,after Section 141 of the IPC, and as long as those ingredients are met,Section 149 of the IPC can be invoked.

22. In the factual context, it is observed that whatever be thealtercation or argument between Sandeep and the seven accused, itresulted in the seven accused armed with deadly weapons coming to thesite of the incident, being the under-construction house of the deceased,and all of them inflicting blows on the deceased. Rajesh Yadav, sincedeceased, not only inflicted a blow with a bahi, but also raised a lalkarthat the deceased should be killed. All the other accused also inflictedblows on the deceased. Even the interventions of PW-7 & PW-8 did notresult in their desisting from such assault, but on the other hand, evenPW-7 and PW-8 received injuries as a result thereof. This is not a casewhere the common assembly proceeded to the site and subsequentlydecided to inflict the blows. It is not as if anyone incidentally joined thegroup, but all of them came together with a clear intent and acted uponthat intent. It was not as if any of the accused ran away from the site,or ceased to have the intent to inflict blows, which resulted in the deathof the deceased. The common object is, thus, writ large on its face.There were, at least, 24 injuries inflicted on the deceased, and both thecourts below have found that the version given by PW-7 and PW-8evoke confidence, who were themselves injured in the incident. Minordiscrepancies were, thus, found to be a natural cause, where so manypersons attacked suddenly. The accused were known to the eye-witnesses and, thus, there can be no case of mistaken identity. Therewas no unexplained delay in filing the FIR.

23. No doubt the IO had deposed that the liquor shops remainopen up to 11 p.m., but that itself would not belie the story, as it is notdifficult to conceive of the ability to obtain liquor at that hour, which issubstantiated by the fact that the liquor was obtained and the persons atthe site were having a drink after having run through the initial amountof liquor.

24. We may, however, notice that no doubt Sandeep ought to havebeen examined as also the other persons, Narender, who visited theinitial altercation place subsequently. The prosecution undoubtedly falteredthere. The question, however, is whether this would, in any manner, casta doubt on the incident, or the manner of infliction of injuries on thedeceased and the eye-witnesses, which resulted in the death of the AB

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Adeceased. On an analysis of the facts of the present case, our answerwould be in the negative. The saving grace, however, is that Surender,son of Bhagwan Singh had been examined, being PW-7, as thecomplainant, who has succinctly set out the scene. The injured witnessesknew the accused. That the site was an under construction site wouldnot mean that there was no lighting at all so as to cause a confusionBabout the identity of the accused.

25. We may also notice that there are concurrent findings of thetrial court and the appellate court, which have appreciated the evidence,and we do not think that this Court should convert itself into a third courtof appeal for appreciation of evidence.C

26. We are also unimpressed by the argument that the sentencemay be converted into one under Section 304 Part II as a period of nineand a half years has been served by the accused, as a convict. Themanner of the attack, the common object with which it was made, theDnature of the injuries do not permit us to take a more compassionateview of the matter in this case, to only facilitate the accused in serving alesser sentence, other than what the legislature mandates, i.e., the lifesentence (the option only being the death sentence).

27. We, thus, find no merit in the case sought to be made out onbehalf of the accused Nos.4 & 6.E

28. A valiant endeavour was made by Mr. Basant, learned seniorcounsel on behalf of A-5, Suresh, on the substantive plea of absencefrom the site, i.e., no participation in the incident, but a case of mistakenidentity. The crucial infirmity is stated to be the non-examination ofFSandeep as a witness, who had the quarrel with A-2 and A-3. However,this aspect, we have already discussed aforesaid. Since the convictionis basically on the statement of PW-7 and PW-8, i.e., the injuredwitnesses, learned counsel sought to show some inconsistencies in thetestimonies of the two witnesses, as also in the identification of A-5 byPW-7, the complainant, in the F.I. Statement. It was submitted that theGoriginal identification was of one Lala. In the FIR, it is stated that it wasSuresh @ Lala (A-5). It was, thus, submitted that nothing has beenexplained as to how Lala became Suresh @ Lala in the FIR or how theIO recorded so. The inquest report is also stated to be only referring toLala. Thus, the submission was that while the accused was Suresh, heHwas not known as Lala. Suresh was stated to be in his native village, and not at the site on the fateful date, but, that is an alibi which evenother accused have pleaded.

29. Learned senior counsel sought to read extensively from thestatement of PW-7 and PW-8. PW-8 has not alleged that A-5 inflictedany injury on his person, while PW-7 has specifically alleged that A-5 hitPW-8. On the other hand, PW-7 attributes a rafter blow on the leg ofthe deceased to A-5, while PW-8 does not state so specifically, but refersto blows given in general.

30. On examination of the aforesaid pleas, we would agree thatthese discrepancies fall under what has been labeled by the High Courtas ‘minor discrepancies’, more so in an incident of this nature, where allthe accused were inflicting blows on the deceased, at tandem. PW-7and PW-8 also became victims of this attack, when they tried to intervene.It would be difficult to accept that in such a situation, the narration shouldbe absolutely exact, rather there should be a broad consistency in whattranspired at the time of the incident. To accept the plea of the learnedsenior counsel, which at first blush may seem to have some merit, on adeeper examination would amount to nit picking the testimony of thewitnesses to somehow obtain an acquittal. We may also notice that therewas no past enmity, which could be attributed against A-5 alone as torope him in. In fact, the grievance of the deceased was about the collectivebehavior, in the past, of all the accused. This resulted in all the accusedusing the opportunity of a small verbal tiff with Sandeep, to come to thesite of the incident, which was the under construction house of thedeceased, to inflict the deadly blows on the deceased, culminatingin hisdeath.

31. Learned counsel for the State also invited our attention to thediscussion in the impugned order qua the aspect of the identification ofA-5 as under:

“….In the FIR, accused Suresh has been described as Lala Ahirresident of Munthiya Kheri. The eye witnesses have, however,described/identified him as Suresh @ Lala, while appearing in thewitnesses box. Undisputedly, accused Suresh is resident ofMunthiya Kheri. The eye witness already knew him. This leadsto the inference that he must have been known as Lala also and,thus, his presence at the spot cannot be doubted.”

A

B

C

D

E

F

G

H

A

A32. The testimony of PW-8 further shows that he had seen A-6and other accused persons earlier when they had been identified to him,at that stage. It is in those circumstances that he identified all the accused.The fact also remains that A-3, A-4 and A-5 were arrested on the sameday, though A-6 was arrested subsequently. The recovery of weaponswas also made due to the disclosure statement of A-5. We are, thus, notBpersuaded to accept the plea of mistaken identity, as sought to be advancedby the learned senior counsel, which is what is stated to be the real casedistinguishing A-5 from other accused.

33. We may also note that insofar as A-3 is concerned, allarguments of A-5 were adopted, except the argument about mistakenCidentity but then, that is the only plea of A-5, other than formally adoptingthe arguments of A-4 and A-6, which have already been rejected.

34. The net result of the aforesaid discussion is that all the fourappeals must fail and are, thus, accordingly dismissed.

35. The accused are directed to surrender forthwith before thetrial court, within a period of fifteen days from today, to serve out theremaining sentence.

D

36. Needless to say, if there is any remission earned, after servingout the appropriate sentence, their cases would be considered for releasein terms of the norms of the State Government.E

Ankit Gyan

Appeals dismissed.

F

G

H