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CASE NO.: Appeal (crl.)  961 of 1997

PETITIONER: Shri Gopal & Anr.                                        

RESPONDENT: Subhash & Ors.                                           

DATE OF JUDGMENT: 23/01/2004

BENCH: Doraiswamy Raju & S.B. Sinha.

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       This appeal is directed against the judgment dated  15th May, 1997 passed by the Rajasthan High Court in DB  Criminal No. 320/87 whereby and whereunder the respondents  herein were acquitted of the charges of commission of an  offence under Sections 148 and 302 read with 149 of the  Indian Penal Code.

       The respondents herein together with Shankerlal and  Maniram were charged under Sections 148 and 302 read with  Section 149 of the Indian Penal Code and were sentenced to  life imprisonment for alleged commission of an offence under  Section 302 read with Section 149.  They were further   sentenced to undergo one year’s rigorous imprisonment with  fine of Rs. 500/- for commission of an alleged offence under  Section 148 of the Indian Penal Code.  Two accused persons  Shankerlal and Maniram were also convicted under Section 27  of the Arms Act and sentenced to undergo rigorous  imprisonment of six months and a fine of Rs. 400/-.

       Allegedly, there were two groups in Kanwarpura Tehsil;  one headed by Shri Ramnarayn accused and the other by the  deceased Ram Kumar.  Allegedly, a day prior to the date of  incidence, an election of dairy society was conducted.  At  about 7 p.m. on 6.6.1986, Atma Ram PW 1, Brijlal PW 10,  Ramnarayan PW 5 and Rajaram were sitting on the chowki in  the house belonging to Brijlal.  They saw the accused  persons coming out from the house of Ramnarayan, Sarpanch.   Allegedly, Ramnarayan, Maniram and Shankerlal were armed  with guns, Subhash with lathi and Manohar with pistol.  They  proceeded towards the house of Hansraj.  Shankerlal armed  with 12-bore gun entered into the house of Hansraj and the  other accused persons proceeded in the lane adjacent and  towards the west of the said house.  Allegedly, Ramnarayan  exhorted the others to kill Ramkumar whereupon Shankerlal  fired a shot which hit Ramkumar.  Another shot was allegedly  fired by Maniram at Ramkumar but the same missed the target  and hit the wall.  Manohar also allegedly tried to fire but  he was unsuccessful.  Ramkumar, as a result of multiple  injuries, died on the spot.  The motive for commission of  the offence apart from the parties belonging to separate  factions and contesting the elections in which allegedly  Ramnarayan won, related an incidence which occurred 25 or 26  days prior to the date of occurrence, whence Krishna

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trespassed into the house of Poosaram Meghwal and a case  under Section 376 of Indian Penal Code was registered  against Krishna and Ramnarayan, in connection wherewith  allegedly Ramratan and deceased Ramkumar helped Poosaram.   It was further alleged that Hanuman, brother of Shankerlal,  after five days of the said incident, visited Poosaram and  abused him whereupon he was apprehended by deceased  Ramkumar, Prithvi and Ramratan and handed over to the  police.

       Before the Trial Court 13 witnesses were examined by  the prosecution.  The Trial Court convicted all the five  accused persons both under Section 148 of the Indian Penal  Code and Section 302/149. As noticed hereinbefore.   Shankerlal and Maniram were also convicted of an offence  under Section 27 of the Arms Act.   

On appeal against the said judgment, the High Court  acquitted the respondents herein of the charges both under  Section 148 of the Indian Penal and as also Section 302/149  thereof.  The High Court further acquitted Shankerlal and  Maniram of the charges under Section 27 of the Arms Act and  converted the sentence under Section 302/149 passed against  them to one under Section 302/34 and the sentence imposed on  Shankerlal and Maniram further remained unaltered.

       The High Court in its judgment while noticing the  principles governing commission of an offence under Section  149 of the Indian Penal Code found that the allegation  against the respondents herein are omnibus in nature.  The  High Court noticed that the allegation to the effect that  Manohar also attempted to fire his gun but missed was not  correct as the same was not followed by a report of the  ballistic expert. The High Court further noticed that the  other two respondents did not commit any over-act in  assaulting Ramkumar or Ramratan.  It was observed that  accused Ramnarayan was standing at a distance of about 120  ft. away from the place of occurrence when Ramkumar was hit.   He was said to have been armed with a gun but did not use  the same.  Subhash had merely a lathi in his hand and also  did not use it.  The High Court on examining the materials  on records was of the opinion that only Maniram and  Shankerlal indulged in the act of committing murder of  Ramkumar and, thus, the respondents herein were not guilty  of commission of any offence.

       Aggrieved thereby, the first informant is before us in  appeal.

       Mr. Jain, learned counsel appearing on behalf of the  appellant would submit that the High Court committed a  serious error in passing the impugned judgment inasmuch as  from the evidence adduced by Ramratan PW3, Gopal PW 4, Atma  Ram PW1, Ramnarayan PW 5, Ramnarayan PW 8 and Brijlal PW 10  it would appear that not only the accused had been armed  with guns and lathi and pistol, but also assembled in the  house of Ramnarayan and proceeded to the house of the  deceased, and after sometime, they divided themselves into  two separate groups with a common object of committing the  crime.

       The learned counsel would submit that Ramnarayan  exhorted the accused persons to commit the offence, while  standing near the electric pole whereupon Maniram being  armed with a double barrel gun came out of the street and

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fired twice, one of which had hit the deceased; while  Shankerlal fired from his gun which hit Ramkumar on the left  side.

       Mr. Jain would contend that having regard to the  provisions contained in Section 141 of the Indian Penal  Code, in the facts and circumstances of this case, the  respondents must be said to have formed a common object to  do away with Ramkumar and, thus, the conviction under  Section 302/149 as also Section 148 was sustainable.  It was  argued that the very fact that all the accused persons,  according to Ramratan PW3, Gopal PW 4, Atma Ram PW1,  Ramnarayan PW 5, Ramnarayan PW 8 and Brijlal PW 10 gave  ’lalkara’ and they not only participated but also played  their roles would also go to show that they are guilty of  commission of the aforementioned offence.

       Mr. Uma Datta, learned counsel appearing on behalf of  the respondents per contra would submit that a case under  Section 149 of the Indian Penal Code cannot be said to have  been made out as Maniram and Shankerlal had been found  guilty under Section 302/34.  It was contended that Maniram  had also died and Shankerlal has served out his sentence.   Mr. Datta would submit that from the records, it would  appear that PW 1, PW 5 and PW 10 did not make any allegation  about exhortation by all the accused persons; whereas PW 3,  PW 4 and PW 8 did not make any such statement before the  police in relation whereto their attention has been drawn.   Mr. Datta would urge that having regard to the amendment  carried out in Section 162(2) of the Code of Criminal  Procedure by inserting an explanation in terms whereof  ’omission’ may amount to ’contradiction’ in certain  situations.  It was contended that the attention of PW 3, PW  4 or PW 8 in the aforementioned situation has been drawn to  ’omissions’ in their statements under Section 161 of the  Code of Criminal Procedure.  

       The learned counsel would submit that the prosecution  story was wholly unbelievable inasmuch as even from the  evidence of PW 1 it would appear that they had allegedly  seen the occurrence from a distance.  The learned counsel  has drawn our attention to the fact that houses of both the  parties are adjoining each other.  It was further contended  that it was impossible for the witnesses to see actual  firing by Shankerlal who allegedly went inside the house as  the wall of the house was six-seven ft. high.

       The principles relating to applicability of Section 149  of the Indian Penal Code is not in dispute.  For the purpose  of attracting the said provision, it is not necessary that  an over-act must be committed by all the accused persons.   What is necessary is formation of an unlawful assembly and  knowledge of the persons thereof about consequences arising  from doing an act which amounts to offence.

       Section 141 of the Indian Penal Code defines ’Unlawful  assembly’, as an assembly of five or more persons, if the  common object of the persons composing the same, inter alia,  is to commit any mischief or criminal trespass, or other  offences.

       The essence of the offence under Section 149 of the  Indian Penal Code would be common object of the persons  forming the assembly.  It is necessary for constitution of  the offence that the object should be common to the persons

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who compose the assembly, that is, that they should all be  aware of it and concur in  it.   Furthermore, there must be  some present and immediate purpose of carrying into effect  the common object.  A common object is different from a  common intention insofar as in the former no prior consent  is required, nor a prior meeting of minds before the attack  would be required whereas an unlawful object can develop  after the people get there and there need not be a prior  meeting of minds.

       The High Court has arrived at a finding that Shankerlal  and Maniram were guilty of commission of an offence under  Section 302/34 IPC and not under Section 302/149 IPC.

       Keeping in the aforementioned principles, the question  is required to be considered for arriving at a conclusion as  to whether there had been a common object on the part of the  respondents in committing the alleged offence.

       In Tahsildar Singh and another Vs. State of U.P. [AIR  1959 SC 1012], this Court held that in terms of Section 145  of the Indian Evidence Act attention of witnesses can be  drawn to such statements which would amount to  contradiction.  It was held: "The right of both accused and  the prosecution is limited to contradictions." It was,  thus, held that omission to make a statement in terms of  Section 161 of the Code of Criminal Procedure would not  attract the provisions of Section 145 of the Indian Evidence  Act.  However, by reason of Code of Criminal Procedure  explanation has been inserted to Sub-Section (2) of Section  162 which is in the following terms:

"An omission to state a fact or  circumstance in the statement referred  to in sub-section (1) may amount to  contradiction if the same appears to be  significant and otherwise relevant  having regard to the context in which  such omission occurs and whether any  omission amounts to a contradiction in  the particular context shall be a  question of fact."

       From the records, it appears that PW 1, PW 5 and PW 10  did not make any allegation as regard the alleged  exhortation on the part of all the accused.  It further  appears that PW 3, PW 4 and PW 8 stated before the police  that there had been such exhortations by the respondents  herein.  Such omission on the part of PW 3, PW 4 and PW 8,  in the facts and circumstances of the case, being very  material would amount to contradiction.

       Furthermore, the informant PW 1 stated that the  distance between the house of Ramnarayan Sarpanch is one  killa or 1.1/4 killa.  1 killa is equivalent to one acre.

       There are contradictions in the statements of the  witnesses as regard the nature of weapon held by Manohar.   It further appears from the record that the house of Hansraj  and the house of the deceased are almost in front of each  other.  It is, therefore, unlikely that for commission of an

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offence like culpable homicide amounting to murder, the  accused persons would go in a procession and all of them  would shout together.   

       It further appears that witnesses are related to each  other.  PW 5 is uncle of Atma Ram.  PW 8 Ramnarayan is  brother-in-law of Gopal.  Ramratan is also his first cousin.  Shanker and Maniram are real brothers.  Subhash and Manohar  accused are the nephews of Ramnarayan accused.  Maniram and  Shanker have no relation with Ramnarayan accused.  According  to PW-8 the house of Ram Narayan accused is towards the east  from the house of Hansraj, which is at a distance of three  bighas from his house. As regard distance, according to PW- 8, the house of deceased Ramkumar was towards south of his  house, which is situated at a distance of five bighas.  How,  thence, could see the occurrence is not explained.

       It is, therefore, unbelievable that the accused persons  would behave in the manner as alleged by the PW 8.   Furthermore, from the evidence of PW 3 Ramratan, it appears,  that the place behind the wall where Shankerlal was standing  and fired at Ramkumar was about 6-7 ft. high.  It is,  therefore, not possible for any witness to have witnessed  actual firing of any shot by Shankerlal.  PW 10 Brijlal  stated that when Shankerlal entered the house of Hansraj, no  suspicion came in his mind and only after he heard the sound  of firing, he became suspicious. This also raises a doubt in  our mind as regard formation of common object by the accused  persons.     

       In the First Information Report, it was alleged that  both Ramkumar and Ramratan were coming from the house of  Ramratan towards the house of the informant’s brother-in-law  Ramnarayan, as has been noticed by the learned Trial Judge  in his judgment.  However, in his evidence, it was stated  that Ramratan and Ramkumar were going to the house of  Ramkumar which was at a distance.

Furthermore, three cartridges had been recovered which  are said to have been fired from the 12-bore SBBL guns  marked as W/1 and W/2.  The ballistic experts state that one  of them had not been fired by any of the two admitted SBBL  guns.

       The aforementioned factors are also relevant and  required to be taken into consideration along with the  findings arrived at by the Division Bench of the High Court  acquitting the respondents herein from the charges of  Section 148 and Section 302/149 of the Indian Penal Code for  the purpose of arriving at a finding as to whether  appellants are guilty of commission of the offences under  Section 302/149 IPC or not.  

       While considering an appeal of acquittal, this Court  may not interfere when two reasonable views are possible to  be taken and the view taken by the Court below is one of  such possible views. [See State of Rajasthan vs. Raja Ram,  [(2003) 8 SCC 180] and [Chanakya Dhibar (Dead) vs. State of  West Bengal, 2003 (10) SCALE 883].  

       We have highlighted hereinbefore certain discrepancies  in the prosecution case only for the purpose of satisfying  ourselves that the view taken by the High Court as regard  doubtful participation of the respondents herein is a  possible view.  Once it is held that the prosecution case as

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regard material aspects relating to implication of certain  accused persons is doubtful, we are of the opinion that it  would not be proper for this Court to interfere with the  judgment of the High Court even if a different view is  possible to be taken.  The High Court, as noticed,  hereinbefore, had held  only two persons, Shankerlal and  Maniram guilty of  commission of an offence under Section  302/34.  There  is  nothing on records to show that the  respondents herein had any motive or common intention to  commit  the crime.  While considering a judgment of  acquittal, this Court will not evolve a new case.                We, therefore, are of the opinion that the judgment of  the High Court does not suffer from any infirmity. If the  findings of the High Court arrived at by the learned Judges  can be supported in the circumstances of the case, in our  opinion, it would not be prudent to disturb the said  judgment.  (See Bachhu Narain Singh Vs. Naresh Yadav and  Others, 2003 (10) SCALE 932 and State of U.P. vs. Babu Khan  & Others, 2004 (1) SCALE 11).           For the reasons aforementioned, this appeal is  dismissed.