VINUBHAI RANCHHODBHAI PATEL versus RAJIVBHAI DUDABHAI PATEL & OTHERS

[2018] 6 S.C.R.

AVINUBHAI RANCHHODBHAI PATEL

RAJIVBHAI DUDABHAI PATEL & OTHERS

(Criminal Appeal No. 1525 of 2009)

MAY 16, 2018

[J. CHELAMESWAR AND SANJAY KISHAN KAUL, JJ.]

Code of Criminal Procedure, 1973 – Chapter XVII – ss.211,212 and 213 – Defective framing of charges – Acquittal of accusedpersons – Interference with, if permissible – Three persons diedCand five persons were injured allegedly in an attack by 17 persons– Sessions Court convicted 4 accused, while remaining 13 accusedpersons were acquitted – State appeals against acquittal of variousaccused, dismissed by High Court – On appeal, held: In the caseon hand where three persons died, the charge u/s.302 should haveDbeen framed against specifically named accused with respect toeach of the deceased – However, no clear charges were framed –Accused are entitled in law to know what is the charge on whichthey are put to trial – Further, since the prosecution invoked s.149,charges should have been framed specifying which of the accusedwere sought to be punished for which offence with the aid ofEs.149,IPC – Sessions Court did not record clear findings as to theexistence of an unlawful assembly – Nor was there any clear findingregarding the common object of the assembly – High Court failedto take note of such defects in framing of charges – However, itwould not be justified to reverse the acquittal of accused personsFin the case on hand inter alia on the grounds that the framing ofcharges is erroneous – Normally, consequence thereof should be afresh trial, but such course of action after lapse of 26 years ofthe occurrence of the crime would not serve any useful purpose assome of the accused died in the interregnum – Victims of the crimein this case are required to be compensated by the award of publicGlaw damages – Families of each of the deceased be paid by theState an amount of Rs. 25,00,000/- each and the injured witnesses,if still surviving, otherwise their families be paid Rs.10,00,000/-each – Penal Code, 1860 – ss.302, 149, 141, 143, 146-148, 307,323 and 326 – Bombay Police Act – s.135 – Constitution of India –HArt.21 – Evidence Act, 1872 – s.33 - Doctrine of vicarious liability.

VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAIDUDABHAI PATEL

Penal Code, 1860 – s.141 – Unlawful assembly – Elementsof – Discussed.

Penal Code, 1860 – s.149 – Scope and amplitude of –Discussed.

Penal Code, 1860– ss.146-148 – Offences under, distinctionbetween– Discussed.

Code of Civil Procedure, 1908 – ‘Issues’ framed under,different from ‘Charges’ framed under CrPC, 1973 – Discussed –Code of Criminal Procedure, 1973.

Disposing of the appeals, the Court

HELD: 1.1 Sections 211 to 213 of the Code of CriminalProcedure, 1973 deal with the particulars which are required tobe contained in charge in criminal trial. These provisions aremade to ensure fair procedure by which person accused of anoffence should be tried– procedure in compliance with therequirement of the mandate of Article 21 of the Constitution ofIndia. The accused are entitled in law to know with precisionwhat is the charge on which they are put to trial. [Para 15][1061-A-B]

1.2 In the case on hand where three persons died and fivepersons were injured allegedly in an attack by all the accused,the charge under Section 302 IPC must have been framed onthree counts against specifically named accused with respect toeach of the deceased. Causing death to each one of the threepersons or causing injury to each one of the five persons is adistinct offence. It is also necessary that the court should recorda specific finding as to the guilt of the accused under Section 302IPC qua the death of named deceased. If different accused areprosecuted for causing the death of the three different deceased,then distinct charges should have been framed specifying whichof the accused are charged for the offence of causing the death ofwhich one of the three different deceased. None of the accusedis eventually found vicariously guilty of the offence under Section302 IPC read with Section 149 IPC. An erroneous or irregularor even absence of specific charge shall not render theconviction recorded by court invalid unless the appellate courtcomes to conclusion that failure of justice has in fact been

Aoccasioned thereby. [Paras 13, 16 and 18][1061-E-H; 1062-A, D-E]

1.3 In cases where large number of accused constitutingan ‘unlawful assembly’ are alleged to have attacked and killedone or more persons, it is not necessary that each of the accusedBshould inflict fatal injuries or any injury at all. Invocation of Section149 IPC is essential in such cases for punishing the members ofsuch unlawful assemblies on the ground of vicarious liability eventhough they are not accused of having inflicted fatal injuries inappropriate cases if the evidence on record justifies. The merepresence of an accused in such an ‘unlawful assembly’ is sufficientCto render him vicariously liable under Section 149 IPC for causingthe death of the victim of the attack provided that the accusedare told that they have to face charge rendering them vicariouslyliable under Section 149 IPC for the offence punishable underSection 302 IPC. Failure to appropriately invoke and apply SectionD149 enables large number of offenders to get away with the crime.[Para 19][1062-E-G]

1.4 Sections 141, 146 and 148 IPC create distinct offences.Section 149 only creates vicarious liability. However, Sections146, 148 and 149 contain certain legislative declarations basedEon the doctrine of vicarious liability. To be liable for punishmentunder any one of the provisions, the fundamental requirement isthe existence of an unlawful assembly as defined under Section141 made punishable under Section 143 IPC. The concept of anunlawful assembly has two elements- (i) The assembly shouldconsist of at least five persons; (ii) They should have commonFobject to commit an offence or achieve any one of the objectsenumerated therein. [Paras 27, 28][1066-D-G]

1.5 For recording conclusion, that person is (i) guilty ofany one of the offences under Sections 143, 146 or 148 or (ii)vicariously liable under Section 149 for some other offence, itGmust first be proved that such person is member of an ‘unlawfulassembly’ consisting of not less than five persons irrespective ofthe fact whether the identity of each one of the 5 persons is provedor not. If that fact is proved, the next step of inquiry is whetherthe common object of the unlawful assembly is one of the 5Henumerated objects specified under Section 141 IPC. Thecommon object of assembly is normally to be gathered from thecircumstances of each case such as the time and place of thegathering of the assembly, the conduct of the gathering asdistinguished from the conduct of the individual members areindicative 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, isimpermissible. For example, if more than five people gathertogether and attack another person with deadly weaponseventually resulting in the death of the victim, it is wrong toconclude that one or some of the members of such assembly didnot share the common object with those who had inflicted thefatal injuries (as proved by medical evidence); merely on theground that the injuries inflicted by such members are relativelyless serious and non fatal. [Paras 29, 30][1066-G-H; 1067-A-D]

2. The Sessions Court purported to frame ‘issues’– apractice statutorily mandated under the Code of Civil Procedure.But, it is informed that in the State of Gujarat the practice offraming “issues” is prevalent even in the trial of criminal case.“Issues” are not the same as “charges”. They are not framedprior to the commencement of trial. They are only ‘identified’ atthe time of writing the judgment. Issue Nos.2 and 4 framed bythe Sessions Judge are with respect to offence of unlawfulassembly, rioting and the vicarious liability under the IPC. IssueNo. 2 makes reference to all the accused put to trial in thecontext of the offences of the unlawful assembly and rioting. IssueNo. 4 does not make reference to “all the accused”, in thecontext of the offences under Sections 302 read with Section 149IPC. Since the prosecution invoked Section 149, charges shouldhave been framed specifying which of the accused were soughtto be punished for which offence with the aid of Section 149. Fromthe judgment of the Sessions Court, there is no clear findingsrecorded (i) as to the existence of an unlawful assembly, (ii) if itexisted, how many (number of the members) were present in theunlawful assembly. There appears to be an accusation of thecommission of the offence under Section 143 IPC. There was nofinding whether the assembly consisted of 17 members or less(number) and which of the 17 accused were present (the identity)in the assembly. Nor was there any clear finding regarding the

Acommon object of the assembly. Consequentially, there was nofinding recorded by the Sessions Court whether an offence ofunlawful assembly punishable under Section 143 was committedby all or some of the accused. The Trial Court recorded theconviction under Section 148 IPC against 4 accused. The recordis not very clear whether the accused were told they were to faceBa charge of being members of the unlawful assembly, whosecommon object was to commit murder of the three deceased.[Paras 33, 36][1067-H; 1068-A-B, H; 1069-A-G]

3. It would not be justified to reverse the finding of acquittalin the case on hand on the grounds that (i) the framing of chargesCwas egregiously erroneous and not in accordance with theprovisions of the CrPC; or (ii) the courts below failed to recordappropriate findings with respect to the various offences whichthe accused are said to have committed; or (iii) the 1[st] appellatecourt’s reasoning in declining to reverse finding of acquittalDrecorded by the trial court was defective. For all theabovementioned reasons, conclusion should have been recordedthat there is failure of justice in the case on hand looked at fromthe point of view of either the victims or even from the point ofview of the convicted accused. The most normal consequencethereafter should have been to order fresh trial, but such aEcourse of action after lapse of 26 years of the occurrence of thecrime, would not serve any useful purpose because some of theaccused have died in the interregnum. The families of each ofthe deceased be compensated by the award of public law damagesand should be paid by the State an amount of Rs. 25,00,000/-Feach and the injured witnesses, if still surviving, otherwise theirfamilies are required to be paid an amount of Rs.10,00,000/- each.[Paras 39, 43, 44][1071-E-G; 1073-E-G; 1074-A-B]

Shambhu Nath Singh & Others v. State of Bihar AIR1960 SC 725; Esher Singh v. State of Andhra PradeshG(2004) 11 SCC 585 : [2004] 2 SCR 1180; Masalti v.State of U.P. AIR 1965 SC 202 : [1964] SCR 133; DalbirSingh v. State of U.P. (2004) 5 SCC 334; ShivajiSahabrao Bobade & Anr. v. State of Maharashtra(1973) 2 SCC 793 : [1974] 1 SCR 489; Nilabati Behera(Smt) alias Lalita Behera (Through the Supreme Court

VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAIDUDABHAI PATEL

Legal Aid Committee) v. State of Orissa & Others (1993)2 SCC 746 : [1993] 2 SCR 581– relied on.

Sheo Mahadeo Singh v. State of Bihar (1970) 3 SCC46; Lalji v. State of Uttar Pradesh (1989) 1 SCC 437 :[1989] 1 SCR 130; Bala Seetharamaiah v. Perike S.Rao (2004) 4 SCC 557 : [2004] 3 SCR 28; Ram Gopev. State of Bihar AIR 1969 SC 689 : [1969] SCR 558;Yeshwant & Others v. State of Maharashtra (1972) 3SCC 639 : [1973] 1 SCR 291; Manga alias Man Singhv. State of Uttarakhand (2013) 7 SCC 629 : [2013] 3SCR 175; Dalip Singh and Ors. v. State of Punjab AIR1953 SC 364 : [1955] SCR 393; Sundar Singh v. StateAIR 1955 All 232(FB); Sabir v. Queen Empress (1894)ILR 22 Cal 276; In re Choitano Ranto and Others AIR1916 Mad 788 – referred to.

Case Law Reference

ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1525 of 2009.

From the Judgment and Order dated 05.10.2004 of the High Courtof Gujarat at Ahmedabad in Criminal Appeal No. 138 of 1996.

WITH

Crl. A. Nos. 1526-1527 of 2009.

S. Nagamuthu (AC), Ms. Tarannum Cheema (AC), A. SelvinRaja, Aniruddha P. Mayee, Avnish M. Oza, Chirag Jain, D.N. Ray,Ms. Hemantika Wahi, Ms. Vishakha, R. P. Wadhwani, Ms. Smrithi Suresh,CMs. Hiral Gupta, Advs. for the appearing parties.

The Judgment & Order of the Court were delivered by

CHELAMESWAR, J. 1. On 11.07.1992, at about 10.10 pm, anincident occurred in the village of Nana Ankadia leaving 3 persons deadand 5 persons injured. It appears from the judgment of the High Court:

“…information about the incident was conveyed by wirelessmessage by PSO of Amreli (Rural) Police Station to PSI, Mr. NGRajput. On the basis of the said information, PSI, Rajput had goneto village Nana Ankadia and found three dead bodies lying nearthe shop of Bhikabhai and after getting some further information,Ehe had gone to Amreli Hospital and recorded complaint from VinuRanchhod, which was registered at about 1.30 a.m. on 12.07.1992.On the basis of the said complaint, PSI, Rajput started investigationby recording statements, drawing panchnamas and sending thedead bodies for post mortem etc.”

2. On completion of investigation, charge-sheet came to be filedFagainst 15 accused because the remaining two accused A-16 and A-17were absconding for some time. The matter was committed to theSessions Court of Amreli as offences were exclusively triable by theCourt of Sessions. In Sessions Case No. 118/1992, trial was conductedagainst 15 accused. The trial insofar as the two absconding accusedGwas segregated from the trial of the remaining even after they wereapprehended and they were put to trial separately in Sessions Case No.58/98 before the Special Judge of the Fast Track Court, Amreli.

3. In Sessions Case No.118/1992, the Sessions Court by itsjudgment dated 17.01.1996 recorded the conviction of A-1, A-5, A-10and A-12 as follows:H

“Prosecution has proved the criminal offence punishable undersection 302 and 148 of the Indian Penal Code and under section135(1) of the B.P. Act, against the accused No. 10 and [12]respectively Nanjibhai Khodabhai and Ratilal Nagji, and thereforethe accused No. 10 and 12 are convicted under sections 302, 148IPC and section 135(1) of the B.P. Act. The accused No. 1 RavjiDuda is convicted for the criminal offence punishable under section326 and 148 of IPC and section 135(1) of B.P. Act. Whereas theaccused No. 5 Manubhai Makanbhia is convicted for the criminaloffence punishable under section 326, 323 and 148 of the IPCand section 135(1) of the B.P. Act. Whereas the accused otherthan these accused, the prosecution has not been able to provetheir case beyond doubt therefore the accused No.2,3,4,6,7,8,9,11,13,14 and 15 are given the benefit of doubt and areacquitted, and if they are not required in any other matter, thenthe accused Nos. 2,3,4,6,7,8,11,13,14 be released from judicialcustody. The accused No. 2,4,9 and 15 are enlarged on bail, theirbail bonds are ordered to be cancelled.”

And by separate order dated 17.01.1996, A-10 and A-12 weresentenced to imprisonment for life for an offence punishable under Section302 Indian Penal Code [hereinafter referred to as “IPC”]; one yearrigorous imprisonment for an offence punishable under Section 148 IPC;and six months rigorous imprisonment for an offence punishable underSection 135(1) of the Bombay Police Act [hereinafter referred to as“BP Act”].

4. A-1 was sentenced to suffer six years rigorous imprisonmentand fine of Rs.1000/- for an offence under Section 326 IPC and oneyear rigorous imprisonment for an offence punishable under Section 148IPC and six months rigorous imprisonment for an offence under Section135(1) of the BP Act.

5. A-5 was sentenced to six years rigorous imprisonment and finefor an offence punishable under Section 326 IPC and one year rigorousimprisonment for an offence punishable under Section 148 IPC, sixmonths rigorous imprisonment for an offence under Section 323 IPCand six months rigorous imprisonment for an offence under Section 135(1)of the BP Act.

6. All the convicted accused preferred appeal No. 166/1996 beforethe High Court of Gujarat challenging conviction and sentence. The State

Aof Gujarat filed Criminal Appeal No.167/1996 challenging the acquittalof the remaining thirteen accused. It must be mentioned here that theoriginal complainant also filed Criminal Revision Petition No.138/1996challenging the decision of the Sessions Court acquitting eleven of theaccused.

B7. The two absconding accused nos.16 and 17 “were triedseparately for the offences punishable under sections 147, 148, 120B,302 and 307 read with section 149 of IPC and under Section 25(1)(A) ofthe Arms Act and under Section 135 of Bombay Police Act in SessionsCase No.58/98.”[1] They were found not guilty by the Fast Track Court,Amreli by judgment dated 19.07.2003. The State of Gujarat filed CriminalCAppeal No.1226/2003 against the acquittal of accused nos.16 and 17.

8. All the appeals and the revision were clubbed together anddisposed of by the High Court by common judgment dated 5.10.2004,which is the subject matter of the various appeals before us.

9. The appeal of A-10 and A-12 was dismissed by the High Court.The appeal of accused nos.1 and 5 was partly allowed. The State appealschallenging acquittals of various accused were dismissed along with therevision filed by the de facto complainant. Hence, these appeals, by theState and the de facto complainant.

E10. Admittedly all the convicts have by now served out theirsentences. Some of the accused have even died.

11. An examination of the record in these appeals left us in distress.The judgments of the Sessions Courts as well as the High Court leavetoo much to be desired.

F12. We notice the following striking features from the judgmentof the Sessions Court that:(i) Charges have not been framed in accordance with therequirements of the CrPC;

(ii) There appears to be charge (however defectively framed),Gconviction and sentencing of 4 accused for an offence underSection 148 IPC;

(iii) There is an omnibus accusation that the accused committedoffences falling under Sections 143, 147, 148 and vicariously

1 2.2, Judgment of the High Court.

liable by virtue of Section 149 IPC for the offence of Section302 IPC;

(iv) The judgment does not contain any clear finding:

(a) regarding the existence of an ‘unlawful assembly’ i.e.regarding the accusation of an offence punishable underSection 143 IPC;

(b) number of persons (identified or not) who participated inthe attack on the deceased and the injured; or

(c) the identity of such participants.

(v) The judgment is singularly silent regarding the post mortemexamination report of one of the 3 deceased and the evidenceof the doctor who conducted the post mortem examination. Itonly discusses the evidence of the doctor who conducted thepost mortem on the dead bodies of two of the deceased;

(vi) The judgment does not specify whether the accused 10 and12 are guilty of causing the death of all the 3 deceased or oneof them;

(vii) The legal analysis and appreciation of evidence in the contextof the question of vicarious liability is wholly unsubstantial andnot in accordance with the settled principles of law; and

(viii) There is material on record to indicate that even some of theaccused received injuries in the transaction but no material ison record indicating whether any crime is registered andinvestigated or anybody is prosecuted in that regard.

13. The judgment in Sessions Case No.118/1992 commences withan omnibus statement:

“In this case against the present accused, there are charges ofoffences under sections 302, 307, 324, 147, 148, 149, 120B ofIPC and section 25(1)(aa) of the Arms Act and section 135 of theBombay Police Act, for these offences the charge sheet is filed.”

Later in the same paragraph it is stated:

“Fifteen accused in the case have remained present before thecourt, my learned predecessor has on 21/3/1994 below Exh. 1 oncharges of offences punishable under sections 143, 147, 148, 302

Aread with 149, 120-b, 307 read with 147, 114, 120-b of the IndianPenal Code and against the accused Nos. 7, 8 and 11 chargesunder section 27 of the Arms Act, and against all the accused theoffence punishable under section 25 of the Indian Telegraphs Act,and for carrying weapons the charges of violation of theNotification by the District Magistrate Amreli, for which againstBthe accused Nos. 2,4,9,15,10,12,13, 1, 3, 6, 7 and 8 the charges ofoffence punishable under section 135 of the Bombay Police Act,charges were pronounced against the accused.”

It appears from the above that no clear charges appear to havebeen framed. At any rate, no document is brought to our notice showingCthe charges framed by the Court in spite of repeated enquiry. It must beremembered that it is case where three persons died and five personswere injured allegedly in an attack by all the accused. Causing death toeach one of the three persons or causing injury to each one of the fivepersons is distinct offence. Similarly, an offence under Section 307 is aDdistinct offence specific to particular victim. The offences under Sections147 and 148 are distinct offences. Section 149 IPC does not create aseparate offence but only declares the vicarious liability of all the membersof an unlawful assembly in certain circumstances.14. It was held by three-judge bench of this Court in ShambhuENath Singh & Others v. State of Bihar[2]:

“Section 149 of the Indian Penal Code is declaratory of thevicarious liability of the members of an unlawful assemblyfor acts done in prosecution of the common object of that assemblyor for such offences as the members of the unlawful assemblyFknew to be likely to be committed in prosecution of that object”

[emphasis supplied]

However, there are benches of lesser smaller strength[3] whichhave observed that Section 149 creates specific and distinct offence.In view of the fact that decision in Shambu Nath Singhwas decided byGa larger bench, the law declared therein must be taken to be declaringthe correct legal position. With utmost respect, we may also add thatthe same is in accord with the settled principles of the interpretation ofthe statutes having regard to the language of Section 149 and its context.

2 AIR 1960 SC 725

3 Sheo Mahadeo Singh v. State of Bihar, (1970) 3 SCC 46 paragraph 9; Lalji v. State ofHUttar Pradesh, 1989 (1) SCC 437 paragraph 9

15. Chapter XVII of the Code of Criminal Procedure [hereinafterreferred to as “CrPC”] deals with “charges” in criminal case. Sections211 to 213 deal with the particulars which are required to be contained ina charge in criminal trial. These provisions are made to ensure fairprocedure by which person accused of an offence should be tried – aprocedure in compliance with the requirement of the mandate of Article21 of the Constitution of India. The accused are entitled in law to knowwith precision what is the charge on which they are put to trial. It washeld by this Court in Esher Singh v. State of Andhra Pradesh[4]:

“It is the precise formulation of the specific accusation madeagainst person who is entitled to know its nature at the earlieststage. charge is not an accusation made or informationgiven in the abstract, but an accusation made against personin respect of an act committed or omitted in violation of penal lawforbidding or commanding it. In other words, it is an accusationmade against person in respect of an offence alleged to havebeen committed by him. charge is formulated after inquiry asdistinguished from the popular meaning of the word as implyinginculpation of person for an alleged offence as used in Section224 of the IPC.”

[emphasis supplied]

16. In the case on hand where three persons died, the chargeunder Section 302 must have been framed on three counts againstspecifically named accused with respect to each of the deceased.Assuming for the sake of argument, that all the 17 persons are accusedof causing the death of each one of the three deceased, distinct chargesshould have been framed with respect to each of the deceased. It is alsonecessary that the court should record specific finding as to the guilt ofthe accused under Section 302 IPC qua the death of named deceased.If different accused are prosecuted for causing the death of the threedifferent deceased, then distinct charges should have been framedspecifying which of the accused are charged for the offence of causingthe death of which one of the three different deceased. Charges shouldalso have been proved clearly indicating which of the accused is chargedfor the offence under Section 302 simpliciter or which of the accusedare vicariously liable under Section 149 IPC for causing the death of oneor more of the three deceased. Of course, none of the accused is 4 (2004) 11 SCC 585, para 20

Aeventually found vicariously guilty of the offence under Section 302 IPCread with Section 149 IPC.

17. By definition of the offences covered under Sections 147 and148[5], person cannot be charged simultaneously with both the offencesby the very nature of theses offences. person can only be held guiltyBof an offence punishable either under Section 147 or Section 148.

18. The legal consequences of framing defective charges oromission in charges was considered by this Court in Dalbir Singh v.State of U.P.[6] and this Court held as follows:

“Section 464 of the Code deals with the effect of omission toCframe, or absence of, or error in, charge. Sub-section (1) of thissection provides that no finding, sentence or order by court ofcompetent jurisdiction shall be deemed invalid merely on the groundthat no charge was framed or on the ground of any error, omissionor irregularity in the charge including any misjoinder of charges,unless, in the opinion of the court of appeal, confirmation orDrevision, failure of justice has in fact been occasioned thereby.”

It is obvious from the above that an erroneous or irregular or evenabsence of specific charge shall not render the conviction recorded bya court invalid unless the appellate court comes to conclusion thatfailure of justice has in fact been occasioned thereby.E19. In cases where large number of accused constituting an

E19. In cases where large number of accused constituting an‘unlawful assembly’ are alleged to have attacked and killed one or morepersons, it is not necessary that each of the accused should inflict fatalinjuries or any injury at all. Invocation of Section 149 is essential in suchcases for punishing the members of such unlawful assemblies on theground of vicarious liability even though they are not accused of havingFinflicted fatal injuries in appropriate cases if the evidence on recordjustifies. The mere presence of an accused in such an ‘unlawfulassembly’ is sufficient to render him vicariously liable under Section 149IPC for causing the death of the victim of the attack provided that theaccused are told that they have to face charge rendering them vicariouslyGliable under Section 149 IPC for the offence punishable under Section302 IPC. Failure to appropriately invoke and apply Section 149 enableslarge number of offenders to get away with the crime.

5 Section 146 IPC defines the offence of rioting. Section 147, IPC prescribes punishmentfor offence of rioting. Section 148, IPC prescribes punishment for offence of riotingarmed with deadly weapons.H 6 (2004) 5 SCC 334

20. This Court in Bala Seetharamaiah v. Perike S. Rao[7 ]held:

“8. Unfortunately, the Sessions Judge did not frame charge againstthe accused persons for offence punishable under Section 302IPC read with Section 149 IPC. It is also important to note thatthe relevant prosecution allegations so as to bring in the ingredientsof the offence punishable under Section 302 IPC read with Section149 IPC also were not incorporated in the charge framed by theSessions Judge. The accused were not told that they had to facecharges of being members of an unlawful assembly and thecommon object of such assembly was to commit murder of thedeceased and in furtherance of that common object murder wascommitted and thereby they had constructive liability and thusthey committed the offence punishable under Section 302 IPCread with Section 149 IPC. Of course the mere omission tomention Section 149 may be considered as an irregularity, butfailure to mention the nature of the offence committed by themcannot be said to be mere irregularity. Had this mistake beennoticed at the trial stage, the Sessions Judge could have correctedthe charge at any time before the delivery of the judgment. In theinstant case, the accused were told to face charge punishableunder Section 302 simpliciter and there was no charge underSection 302 IPC read with Section 149 IPC. Therefore, it is notpossible to reverse the conviction of the accused under Section326 IPC and substitute the conviction for the offence punishableunder Sections 302/149 IPC as there was no charge framedagainst them for such offence.”

21. When large number of people gather together (assemble)

and commit an offence, it is possible that only some of the members ofthe assembly commit the crucial act which renders the transaction anoffence and the remaining members do not take part in that ‘crucial act’- for example in case of murder, the infliction of the fatal injury. It is inthose situations, the legislature thought it fit as matter of legislativepolicy to press into service the concept of vicarious liability for the crime.[8] 7 (2004) 4 SCC 557, para 8.

8 Ram Gope v. State of Bihar, AIR 1969 SC 689 paragraph 5: “… When concertedattack is made on the victim by large number of persons it is often difficult todetermine the actual part played by each offender. But on that account for an offencecommitted by member of the unlawful assembly in the prosecution of the commonobject or for an offence which was known to be likely to be committed in prosecutionof the common object, persons proved to be members cannot escape the consequencesarising from the doing of that act which amounts to an offence.”

ASection 149 IPC is one such provision. It is provision conceived in thelarger public interest to maintain the tranquility of the society and preventwrong doers (who actively collaborate or assist the commission ofoffences) claiming impunity on the ground that their activity as membersof the unlawful assembly is limited.

BThe responsibility of the prosecution and/or of the Court (in acase like the one at hand where large numbers of people (5 or more) arecollectively accused to have committed various offences and subjectedto trial) - in examining whether some of the members of such group arevicariously liable for some offence committed by some of the othermembers of such group - requires an analysis. Such analysis has twoCcomponents – (i) the amplitude and the vicarious liability created underSection 149; and (ii) the facts which are required to be proved to hold anaccused vicariously liable for an offence.22. To understand the true scope and amplitude of Section 149IPC it is necessary to examine the scheme of Chapter VIII (SectionsD141 to 160) of the IPC which is titled “Of the offences against the publictranquility”. Sections 141 to 158 deal with offences committed collectivelyby group of 5 or more individuals.

23. Section 141 IPC declares an assembly of five or more personsto be an ‘unlawful assembly’ if the common object of such assembly isEto achieve any one of the five objects enumerated in the said section.[9]One of the enumerated objects is to commit any offence.[10]"The wordsfalling under section 141, clause third “or other offence” cannot berestricted to mean only minor offences of trespass or mischief. Thesewords cover all offences falling under any of the provisions of the IndianFPenal Code or any other law.”[11] The mere assembly of 5 or more personswith such legally impermissible object itself constitutes the offence ofunlawful assembly punishable under Section 143 of the IPC. It is notnecessary that any overt act is required to be committed by such anassembly to be punished under Section 143.[12]

24. If force or violence is used by an unlawful assembly or anyGmember thereof in prosecution of the common objective of such assembly,

9 See Yeshwant & Others v. State of Maharashtra, (1972) 3 SCC 639

10 Section 40 “offence”.- Except in the Chapters and sections mentioned in clauses 2and 3 of this section, the word “offence” denotes thing made punishable by this Code.

11 Manga alias Man Singh Vs. State of Uttarakhand (2013) 7 SCC 629

12 See Dalip Singh and Ors. Vs. State of Punjab , AIR 1953 SC 364.H

every member of such assembly is declared under Section 146 to beguilty of the offence of rioting punishable with two years imprisonmentunder Section 147. To constitute the offence of rioting under Section146, the use of force or violence need not necessarily result in theachievement of the common object.[13] In other words, the employmentof force or violence need not result in the commission of crime or theachievement of any one of the five enumerated common objects underSection 141.

25. Section 148 declares that rioting armed with deadly weaponsis distinct offence punishable with the longer period of imprisonment(three years). There is distinction between the offences under 146and 148. To constitute an offence under Section 146, the members ofthe ‘unlawful assembly’ need not carry weapons. But to constitute anoffence under Section 148, person must be member of an unlawfulassembly, such assembly is also guilty of the offence of rioting underSection 146 and the person charged with an offence under Section 148must also be armed with deadly weapon.[14]

26. Section 149 propounds vicarious liability[15] in twocontingencies by declaring that (i) if member of an unlawful assemblycommits an offence in prosecution of the common object of thatassembly, then every member of such unlawful assembly is guilty ofthe offence committed by the other members of the unlawful assemblyand (ii) even in cases where all the members of the unlawful assemblydo not share the same common object to commit particular offence, ifthey had the knowledge of the fact that some of the other membersof the assembly are likely to commit that particular offence in prosecutionof the common object. The scope of Section 149 IPC was enunciatedby this Court in Masalti[16]:

“The crucial question to determine in such case is whether theassembly consisted of five or more persons and whether the saidpersons entertained one or more of the common objects as specifiedby section 141. While determining this question, it becomes relevantto consider whether the assembly consisted of some persons whowere merely passive witnesses and had joined the assembly as

13 See Sundar Singh Vs. State, AIR 1955 All 232 (FB)

14 See Sabir v. Queen Empress, (1894) ILR 22 Cal 276; In re Choitano Ranto andOthers, AIR 1916 Mad 788

15 See Shambu Nath Singh Vs. State of Bihar, AIR 1960 SC 725.

16 Masalti v. State of U.P., AIR 1965 SC 202.

Amatter of idle curiosity without intending to entertain the commonobject of the assembly. It is in that context that the observationsmade by this court in the case of Baladin assume significance;otherwise, in law, it would not be correct to say that before aperson is held to be member of an unlawful assembly, it must beshown that he had committed some illegal overt act or had beenBguilty of some illegal omission in pursuance of the common objectof the assembly. In fact, section 149 makes it clear that if anoffence is 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 committedCin prosecution of that object, every person who, at the time of thecommitting of that offence, is member of the same assembly, isguilty of that offence, and that emphatically brings out the principlethat the punishment prescribed by section 149 is in sense vicariousand does not always proceed on the basis that the offence hasbeen actually committed by every member of the unlawfulDassembly.”

27. It can be seen from the above, Sections 141, 146 and 148create distinct offences. Section 149 only creates vicarious liability.However, Sections 146, 148 and 149 contain certain legislativedeclarations based on the doctrine of vicarious liability. The doctrine isEwell known in civil law especially in the branch of torts, but is appliedvery sparingly in criminal law only when there is clear legislativecommand. To be liable for punishment under any one of theprovisions, the fundamental requirement is the existence of anunlawful assembly as defined under Section 141 made punishableFunder Section 143 IPC.

28. The concept of an unlawful assembly as can be seen fromSection 141 has two elements;

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

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

29. For recording conclusion, that 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 be provedthat such person is member of an ‘unlawful assembly’ consisting ofH

not less than five persons irrespective of the fact whether the identity ofeach one of the 5 persons is proved or not. If that fact is proved, the nextstep of inquiry is whether the common object of the unlawful assemblyis one of the 5 enumerated objects specified under Section 141 IPC.

30. The common object of assembly is normally to be gatheredfrom the circumstances of each case such as the time and place of thegathering of the assembly, the conduct of the gathering as distinguishedfrom the conduct of the individual members are indicative of the commonobject of the gathering. Assessing the common object of an assemblyonly on the basis of the overt acts committed by such individual membersof the assembly, in our opinion is impermissible. For example, if morethan five people gather together and attack another person with deadlyweapons eventually resulting in the death of the victim, it is wrong toconclude that one or some of the members of such assembly did notshare the common object with those who had inflicted the fatal injuries(as proved by medical evidence); merely on the ground that the injuriesinflicted by such members are relatively less serious and non fatal.31. For mulcting liability on the members of an unlawful assemblyunder Section 149, it is not necessary that every member of the unlawfulassembly should commit the offence in prosecution of the common objectof the assembly. Mere knowledge of the likelihood of commission ofsuch an offence by the members of the assembly is sufficient. Forexample, if five or more members carrying AK 47 rifles collectivelyattack victim and cause his death by gunshot injuries, the fact that oneor two of the members of the assembly did not in fact fire their weaponsdoes not mean that they did not have the knowledge of the fact that theoffence of murder is likely to be committed.

32. The identification of the common object essentially requiresan assessment of the state of mind of the members of the unlawfulassembly. Proof of such mental condition is normally established byinferential logic. If large number of people gather at public place atthe dead of night armed with deadly weapons like axes and fire armsand attack another person or group of persons, any member of theattacking group would have to be moron in intelligence if he did notknow murder would be likely consequence.

33. The Sessions Court purported to frame ‘issues’ – practicestatutorily mandated under the Code of Civil Procedure as one of the

Aingredients of the adjudication of suit. But, we are informed that in theState of Gujarat the practice of framing “issues” is prevalent even in thetrial of criminal case. Be that as it may, obviously ‘issues’ are not thesame as “charges”. They are not framed prior to the commencementof trial. They are only ‘identified’ at the time of writing the judgment.

B34. Issue Nos.2 and 4 framed by the Sessions Judge are withrespect to offence of unlawful assembly, rioting and the vicarious liabilityunder the IPC. Issue Nos. 2 and 4 read as follows:-

“(2) Whether the prosecution has proved that, the accused andthe persons of the complainant party are the Kadva and LeuvaCPatels of teh Nana Ankadiya, Taluka Amreli, and due to the enemitybetween them on 11/7/92 at about 22-15 at night near the NanaAnkadiya village Bus stand, near the shop of Bhikhabhai in thepublic place all the accused in this matter and the abscondingaccused Chandubhai Vallabhbhai and Vallabhbhai Khodabhai,thus all of these had constituted an illegal assembly andDwith the common intention of killing the Leuva Patels of the NanaAnkadiya village, attempted to murder, and at that above time andplace, all these accused and the absconding accused with theintentions of achieving their common object, caused rioted andcommitted criminal offence punishable under section 143, 147?

(4) Whether the prosecution is able to prove that, the accusedhad for achieving the common object of their illegal assembly,made use of the weapons carried by them and had assaultedChhaganbhai Premjibhai Patel, Madhubhai Mohanbhai Patel andPragjihai Parbatbhai Patel and fired at them and by such act theyFwere well aware that they would certainly be killed and inspite ofthis intentionally and with the intentions of killing, caused grievousinjuries, and all the three persons were assaulted and murdered,the said act was committed by the accused No. 2,4,5 and 9 usingstick, and accused No. 10, 12 using sword, and accused No. 1, 3and 6 using their dhariya, all three deceased were caused injuriesGand murdered, and thus the accused have committed criminaloffence punishable under section 302, 149 and 114 of the IPC”

[emphasis supplied]

35. Issue No. 2 makes reference to all the accused put to trialalong with absconding accused (put to trial subsequently in SessionsH

Case No. 58) in the context of the offences of the unlawful assemblyand rioting. Issue No. 4 does not make reference to “all the accused”,in the context of the offences under Sections 302 read with Section 149IPC. But in view of the reference to the illegal (obviously the learnedJudge meant unlawful) assembly we assume that the Sessions Courtintended to examine the vicarious liability under Section 149 of all theaccused in the context of the death of the three victims. Since theprosecution invoked Section 149, charges should have been framedspecifying which of the accused are sought to be punished for whichoffence with the aid of Section 149.

36. From the judgment of the Sessions Court, we do not see anyclear findings recorded (i) as to the existence of an unlawful assembly,(ii) if it existed, how many (number of the members) were present in theunlawful assembly. It must be remembered that the accusation is thatall the 17 accused were members of the unlawful assembly. Thereappears to be an accusation of the commission of the offence underSection 143 IPC. There is no finding whether the assembly consisted of17 members or less (number) and which of the 17 accused were present(the identity) in the assembly. Nor is there any clear finding regardingthe common object of the assembly. Consequentially, there is no findingrecorded by the Sessions Court whether an offence of unlawful assemblypunishable under Section 143 was committed by all or some of theaccused. The Trial Court recorded the conviction under Section 148IPC against 4 accused. Logically it should follow that the trial court wasof the opinion that there was an unlawful assembly. That means morethan 5 people participated in the attack. In such case even assumingfor the sake of argument the identity of the accused (other than the 4convicts) is not proved beyond reasonable doubt, A-1 and A-5 who werefound to have been guilty of the offence under Section 148 should normallyhave been found vicariously guilty of the offence of murder along withA-10 and A-12 (provided of course that they are not prejudiced by theimproper framing of charges). The record is not very clear whether theaccused were told they were to face charge of being members of theunlawful assembly, whose common object was to commit murder of thethree deceased.

37. Coming to the conviction of A-10 and A-12, the mere statementin the Sessions Court’s judgment that two of the accused were foundguilty of offence punishable under Section 302 of the IPC falls short of

Athe requirement of law in case where more than one person died in thetransaction. Equally the other two accused who are convicted of otheroffences mentioned earlier are entitled to know the details of the offencefor which they are convicted.

38. We shall now examine the judgment of the High Court. TheBHigh Court completely failed to take note of the defects in framing ofthe charges.

The High Court recorded finding at paragraph 19, that theprosecution witnesses are trustworthy and they had witnessed theincident. However, in paragraph 20[17], the High Court records that thereCare discrepancies in the evidences of PWs regarding the part played byeach of the accused, the weapons carried by them, etc.. The High Courttakes note of the fact that the Sessions Court acquitted 11 accused bygiving the benefit of doubt. To us, it is not very clear whether the SessionsCourt doubted the very presence of the 11 accused in the unlawfulassembly or the Sessions Court doubted the very existence of an ‘unlawfulDassembly’ for the lack of proof of either the requisite number of theaccused to constitute the unlawful assembly or for the lack of proof ofthe common object which renders the assembly to be an unlawfulassembly (even if the court concluded that more than 5 peopleparticipated in the transaction). The High Court readily drew an inferenceEthat the Sessions Court disbelieved the case of the prosecution regardingthe existence of an unlawful assembly, in our opinion, very unsatisfactoryway of analyzing the case of the prosecution vis-à-vis the vicarious liabilityof the accused under Section 149.

The High Court recorded finding with reference to 4 accusedF(A-2, A-4, A-9 and A-15) who according to the prosecution were alleged

17 “20.… However, all the PWs have not specifically involve all the accused. Likewise,there are certain discrepancies in their evidence regarding the part played by them, theweapons carried by them etc., that in our opinion is natural as all the accused, 17 innumber came all of sudden and started assaulting and that too during night hours whenvisibility was also low. Because of the same, the learned trial judge acquitted A-2, A-3,GA-4, A-6, A-7, A-8, A-9, A-11, A-13, A-14 and A-15 by giving benefit of doubt. Inother words, the learned trial judge disbelieved the case of the prosecution ofunlawful assembly and convicted the accused of their individual act. After carefullyexamining the evidence on record, we are of the view that the presence of A-2, A-4, A-9 and A-15 who were alleged to have carried sticks, is not established. The complainantinvolved them in his further statement. Likewise other PWs are also contradicted aboutthe presence of these accused with their previous statement. Apart from that in theHpost mortem reports of the deceased as well as in the injury certificates of the injured,the injuries do not reveal any injury possible with sticks.”

to have carried sticks, that there is no evidence on record to prove thesame on three grounds: (i) that their names were not to be found in theFIR (ii) that there were improvements in the evidence of the PWs atvarious stages regarding the presence of the four accused and (iii) thatthe medical evidence does not disclose any injury which could havebeen attributed to the beatings by sticks. In our opinion, the first tworeasons given by the High Court are legally tenable, however, the thirdreason, i.e. the absence of injuries attributable to stick, need notnecessarily result in conclusion that the accused were not present inthe unlawful assembly. But the absence of such injuries cannot said tobe an irrelevant consideration in arriving at conclusion whether thefour accused participated in the unlawful assembly in the background ofthe other two factors mentioned above. But similar analysis with respectto the seven of the other accused who were given the benefit of doubtby the Sessions Court is lacking in the judgment of the High Court.Another important aspect of the matter is that at least one ofthe accused (A-7) appears to have been injured in the transaction and itappears from the judgment of the High Court that an FIR in that regardwas lodged. submission was made that there was tampering with therecord to screen the offence.[18] This aspect of the matter has not beenconsidered either by the trial Court or by the High Court. In fact, thejudgment of the trial Court contains further details regarding this aspectof the matter but without recording any conclusive finding.

39. The question is whether this court would be justified inreversing the finding of acquittal in the case on hand on the grounds that(i) the framing of charges is egregiously erroneous and not in accordancewith the provisions of the CrPC; or (ii) the courts below failed to recordappropriate findings with respect to the various offences which theaccused are said to have committed; or (iii) the 1[st] appellate court’sreasoning in declining to reverse finding of acquittal recorded by thetrial court is defective? The answer to the question, in our opinion,should be in the negative.

18 Impugned Judgment Para 6.

“ … Finally, Mr. Shethna submitted that investigation in the instant case isalso not free from doubt. According to him, the manner in which the FIR givenby A-7, being the first in point of time, was treated and the manner in which theinvestigating officer expresses his ignorance in the hospital of the erasure madein the station diary etc. would go to show that deliberate attempt is made tofalsely involve the accused.”

A40. In Sessions Case No.58/98 against A-16 and A-17, no evidencewas recorded independently. On the other hand, the evidence recordedin Sessions Case No.118/1992 was marked as evidence in Sessions CaseNo.58/1998. The Indian Evidence Act, 1872 does not permit such amode of proof of any fact barring in exceptional situations contemplatedin Section 33[19] of the Indian Evidence Act.B

41. There is no material on record to warrant the procedureadopted by the Sessions Court. On that single ground, the entire trial ofSessions Case No.58/98 is vitiated and is not in accordance withprocedures established by law. It is different matter that both the accusedput to trial in Sessions Case No.58/98 were acquitted by the Fast TrackCCourt and the High Court did not interfere with the conclusions recorded

by the Fast Track Court.

42. It is the grievance of the appellant that in spite of the gravityof the offence and the evidence of the 5 injured witnesses, most of theaccused went scot free without any punishment and, hence, this appeal.

We do understand the grievance of the appellant. The followingprophetic words of Justice V.R. Krishna Iyer[20] deserve to be etched onthe walls of every criminal court in this country:

“6. … The cherished principles or golden thread of proofEbeyond reasonable doubt which runs through the web of

19 “33. Relevancy of certain evidence for proving, in subsequent proceeding, thetruth of facts therein stated. ––Evidence given by witness in judicial proceeding,or before any person authorized by law to take it, is relevant for the purpose ofproving, in subsequent judicial proceeding, or in later stage of the same judicialproceeding, the truth of the facts which it states, when the witness is dead or cannot beFfound, or is incapable of giving evidence, or is kept out of the way by the adverse party,or if his presence cannot be obtained without an amount of delay or expense which,under the circumstances of the case, the Court considers unreasonable:Provided ––

that the proceeding was between the same parties or their representatives in interest;that the adverse party in the first proceeding had the right and opportunity toGcross-examine;that the questions in issue were substantially the same in the first as in the secondproceeding.

Explanation.–– criminal trial or inquiry shall be deemed to be proceeding betweenthe prosecutor and the accused within the meaning of this section.” 20 In Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793,para 6

our law should not be stretched morbidly to embrace everyhunch, hesitancy and degree of doubt. The excessivesolicitude reflected in the attitude that thousand guiltymen may go but one innocent martyr shall not suffer is afalse dilemma. Only reasonable doubts belong to theaccused. Otherwise any practical system of justice will thenbreak down and lose credibility with the community. Theevil of acquitting guilty person light heartedly as learnedAuthor [ Glanville Williams in ‘Proof of Guilt’.] has sapientlyobserved, goes much beyond the simple fact that just oneguilty person has gone unpunished. If unmerited acquittalsbecome general, they tend to lead to cynical disregard ofthe law, and this in turn leads to public demand for harsherlegal presumptions against indicted “persons” and moresevere punishment of those who are found guilty. Thus,too frequent acquittals of the guilty may lead to ferociouspenal law, eventually eroding the judicial protection of theguiltless. …”

[emphasis supplied]

The prophecy came true when Section 21 of TADA Act, 1987burdened the accused to prove his innocence, and when the Parliamentresponded to the public outcry to impose more and more harsherpunishments to persons found guilty of the offence of rape under Section376 IPC etc.

43. For all the abovementioned reasons, we should have recordeda conclusion that there is failure of justice in the case on hand lookedat from the point of view of either the victims or even from the point ofview of the convicted accused. The most normal consequence thereaftershould have been to order fresh trial, but such course of action aftera lapse of 26 years of the occurrence of the crime, in our opinion, wouldnot serve any useful purpose because as already indicated some of theaccused have died in the interregnum. We are not sure of the availabilityof the witnesses at this point of time. Even if all the witnesses areavailable, how safe it would be to record their evidence after quartercentury and place reliance on the same for coming to gist conclusionregarding the culpability of the accused?

A44. We are of the opinion that the only course of action availableto this court is that the victims of the crime in this case are required to becompensated by the award of public law damages in light of the principleslaid down by this Court in Nilabati Behera[21]. In the circumstances, weare of the opinion that the families of each of the deceased should bepaid by the State an amount of Rs. 25,00,000/- (Rupees Twenty FiveBLacs Only) each and the injured witnesses, if still surviving, otherwisetheir families are required to be paid an amount of Rs.10,00,000/- (RupeesTen Lacs Only) each. The said amount shall be deposited within periodof eight weeks from today in the Trial Court, and on such deposit thesaid amounts shall be distributed by the Sessions Judge, after an enquiryCand satisfying himself regarding the genuineness of the entitlement ofthe claimants.45. This case, in our opinion, is classic illustration of how theState failed in its primary constitutional responsibility of maintaining lawand order by its ineffectiveness in the enforcement of criminal law. InDour opinion, the reasons for such failure are many. Some of them are -(i) inefficiency arising out of either incompetence or lack of proper trainingin the system of criminal investigation; (ii) corruption or politicalinterference with the investigation of crime; (iii) less than the desirablelevels of efficiency of the public prosecutors to correctly advise andguide the investigating agencies contributing to the failure of the properEenforcement of criminal law; and (iv) inadequate efficiency levels of thebar and the members of the Judiciary (an offshoot of the bar) whichcontributed to the overall decline in the efficiency in the dispensation ofcriminal justice system.

Over period of time lot of irrelevant and unwarrantedFconsiderations have crept into the selection and appointment process ofPublic Prosecutors all over the country. If in case like the one on handwhere three people were killed and more than five people were injured,if charges are not framed in accordance with the mandate of law, theblame must be squarely taken by both the bar and the bench. Anotherdistressing feature of the record in this case is the humungous crossGexamination of the witnesses by the defense which mostly is uncalledfor.

46. In view of the above, the appeals stand disposed of.

21 Nilabati Behera (Smt) alias Lalita Behera (Through the Supreme Court Legal AidCommittee) v. State of Orissa & Others, (1993) 2 SCC 746.H

In view of the situation obtaining on the record, we thought it fit tocall for the assistance of Mr.S.Nagumuthu and Ms.Tarannum Cheema,learned counsel to assist this Court. We place on record the invaluableassistance rendered by them as amicus curiae.

We also deem it appropriate to place on record the appreciationfor the effort put in by Mr. A. Selvin Raja, learned counsel, youngmember of the Bar, appearing for the appellant.

Divya Pandey

Appeals disposed of.