Surendra Singh vs The State Of Rajasthan

CRIMINAL APPEAL NO. of 2023 (@ SLP (Crl.) No.4241 of 2019)

Surendra Singh …Appellant

Versus

State of Rajasthan and Anr. …Respondents

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the

impugned judgment and order dated 20.11.2018 Signature Not Verified Digitally signed by Neetu Sachdeva Date: 2023.04.11 16:36:54 IST passed by the High Court of Judicature for Reason: 1 Rajasthan Bench at Jaipur passed in D.B.

Criminal Appeal No.818 of 2013 by which the

Division Bench of the High Court has partly

allowed the said appeal preferred by the

respondent accused – Vijendra Singh and has set

aside the conviction for the offence punishable

under Section 302/149 IPC but has convicted for

the offence punishable under Section 323 IPC, the

original complainant/informant has preferred the

present appeal.

2. The facts leading to the present appeal in nutshell

are as under:

2.1 An FIR was lodged by the police on 01.12.2010 for

an incident which took place on 28.11.2010. In

the FIR it was alleged that on 28.11.2010, while

2 complainant’s younger brother Narendra Singh

was filling water from hand-pump at around 9.30

a.m. accused Bhupendra Singh, Vijendra Singh

and Bhawani Singh, Sangeeta and Gulab Kanwar

caused lathi blows to Narendra Singh. In the

said incident Narendra Singh and Bhawani Singh

became unconscious. Both of them were taken to

the hospital. Bhawani Singh died. The FIR was

registered as FIR bearing no.445/2010. Though

the five persons were named in the FIR the police

filed charge-sheet only against two persons

namely Bhupendra Singh and Vijendra Singh for

the offence under Sections 341, 323, 325/34,

308/34 and 302 and alternatively, Section

302/34 IPC. Both the aforesaid accused came to

be tried for the aforesaid offence. To prove the

3 charge against the accused the prosecution

examined ten witnesses and brought on record

seven documentary evidences. The statements of

the accused under Section 313 Cr.P.C. were

recorded.

2.2 During the trial, the accused Bhupendra Singh

died. Thus, the proceedings against him stood

abated. The prosecution submitted an application

under Section 319 Cr.P.C. against the remaining

three accused persons so left out by the

prosecution. The said application was dismissed

by the learned Trial Court. However, on a

challenge before the High Court and on remand,

the learned Trial Court directed to try the

remaining three accused as accused and passed a

summoning order of additional accused.

4

However, as the remaining three accused

absconded for number of years pursuant to the

order passed by the High Court, the trial against

the respondent herein accused Vijendra Singh

came to be separated. Charge came to be

reframed and the accused Vijendra Singh came to

be charged for the offence under Section 302/149

IPC also. Thereafter on conclusion of the trial, the

learned Trial Court convicted the accused

Vijendra Singh for the offence punishable under

Sections 147, 323, 302/149 IPC and sentenced

him to undergo life imprisonment for the offence

punishable under Sections 302 read with Section

149 IPC, one year R.I. for the offence under

Section 323 IPC and two years R.I. for the offence

under Section 147 IPC.

5 2.3 The respondent herein – accused preferred the

present appeal before the High Court. By the

impugned judgment and order the High Court has

set aside the conviction of the accused Vijendra

Singh for offence under Section 302 read with

Section 149 IPC by observing that no case is

made out for conviction with the aid of Section

149 IPC. That thereafter the High Court has

considered the individual act of the accused and

thereafter after taking into consideration the fact

that the fatal blow on the head was given by

accused Bhupendra Singh (who died during the

trial) and the weapon used by the accused was

lathi, the High Court by the impugned judgment

and order has convicted the accused for the

offence under Section 323 IPC.

6 2.4 Feeling aggrieved and dissatisfied with the

impugned judgment and order passed by the High

Court convicting the accused for the offence

under Section 302 read with Section 149 IPC, the

original complainant/informant Surendra Singh has

preferred the present appeal.

3. Shri Siddhartha Dave, learned Senior Advocate

has appeared as Amicus Curiae on behalf of the

appellant, Shri Vishal Meghwal, learned counsel

has appeared on behalf of the respondent – State

and Shri Abhishek Gupta, learned counsel has

appeared on behalf of respondent no.2.

4. Shri Siddhartha Dave, learned Senior Counsel

appearing on behalf of the appellant has

vehemently submitted that in the facts and

7 circumstances of the case the Division Bench of

the High Court has materially erred in observing

that no case was made out for conviction with the

aid of Section 149 IPC.

4.1 It is vehemently submitted by Shri Dave, learned

Senior Counsel that the High Court has materially

erred in observing that after the registration of the

FIR, even the police found the case only against

the two accused and the cognizance of the offence

against the other accused are taken subsequently

on the remand of the case by the High Court after

rejection of application under Section 319 Cr.P.C.

and the learned trial Court took cognizance

against the accused later on and therefore no case

is made out for conviction with the aid of Section

8 149 IPC.

4.2 It is vehemently submitted by Shri Dave learned

Senior Counsel appearing on behalf of the

appellant that the High Court has not properly

appreciated and/or considered the fact that as

such in the FIR the allegations were specific

against five accused persons. However, at the

relevant time the investigating officer filed the

charge-sheet only against the two accused

persons and the remaining three persons were

arrayed as accused subsequently pursuant to the

order passed by the learned Magistrate allowing

the application under Section 319 Cr.P.C. It is

submitted that therefore when all the five persons

came to be tried may be separately there was an

involvement of five persons who form the unlawful

9 assembly and therefore Section 149 IPC would be

attracted.

4.3 Heavy reliance is placed on the decision of this

Court in the case of Bharwad Mepa Dana &

Anr. Vs. State of Bombay 1960 (2) SCR 172 as

well as Mizaji and Anr. Vs. The State of U.P.

(1959) Supp. (1) SCR 940.

5. Learned counsel appearing on behalf of the State

has supported the appellant.

6. Shri Abhishek Gupta, learned counsel appearing

on behalf of accused no.2 relying upon the

decision of this Court in the case of Roy

Fernandes vs. State of Goa and others, (2012)

3 SCC 221, has vehemently submitted that as

such on facts no case is made out to convict the

10 accused with the aid of Section 149 IPC.

6.1 It is submitted that merely because the accused

might have been present at the time of

commission of the offence and in fact might have

participated in commission of the offence but has

not played a vital role unless it is proved that the

other accused knew that in prosecution of the

common object any one of them is likely to

commit the murder of the deceased, Section 149

IPC shall not be attracted.

6.2 Now so far as the conviction of the accused for the

offence under Section 323 IPC, it is vehemently

submitted by learned counsel appearing on behalf

of the accused that though the respondent no.2

has not preferred the appeal challenging the

11 conviction under Section 323 IPC, still in an

appeal preferred by the State against the

acquittal, the accused can submit that he could

not have been convicted for other offence.

Reliance is placed upon the decision of this Court

in the case of State of Rajasthan vs. Ramanand

(2017) 5 SCC 695.

6.3 In support of his submission that even the

respondent - accused could not have been

convicted even for the offence under Section 323

IPC, learned counsel appearing on behalf of the

respondent – accused has made the following

submissions:

(i) That there was a delay of 3 ½ days in

lodging the FIR;

12

(ii) That the injury on the neck has not been

established and proved;

(iii) That there are material contradictions on the

injuries caused by the accused persons.

He has taken us to the deposition of doctor

examined as PW7 and the injury report.

7. Making above submissions it is prayed to acquit

the accused even for the offence under Section

323 IPC.

8. We have heard learned counsel appearing on

behalf of the respective parties at length.

9. At the outset, it is required to be noted that the

learned trial Court convicted the respondent –

accused for the offence under Section 302 IPC

13 with the aid of Section 149 IPC. However, the

High Court has observed and held that as the

initial charge-sheet was filed only against two

persons /accused and further three persons were

subsequently arrayed as the accused and they are

being tried separately, Section 149 IPC shall not

be attracted. The High Court has also observed

that even as per the FIR three accused came at

the place of occurrence when they saw Narendra

Singh was filling water and it was thus not

assembly of five accused.

10. However, the High Court has not properly and

considered the fact that in the report/FIR there

were specific allegations against five accused

persons and five accused persons were named in

the FIR. However, the investigating officer charge-

14 sheeted only two persons. The remaining three

accused persons came to be added as accused by

the learned trial Court while allowing the

application under Section 319 Cr.P.C. As they

absconded and therefore their trial came to be

ordered to be separated and it is reported that the

trial against the remaining accused is still

pending who are also facing the charges for the

offence under Section 302/149 IPC. In that view

of the matter when five persons were specifically

named in the FIR and five persons are facing the

trial may be separately, Section 149 IPC would be

attracted. At this stage the decision of this Court

in the case of Bharwad Mepa Dana (supra) on

applicability of Section 149 IPC is required to be

referred to. Before this Court it was the case on

15 behalf of the prosecution that thirteen named

persons formed an unlawful assembly and the

common object of which was to kill the three

brothers. Twelve of them were tried by the

Sessions Court who acquitted seven and the High

Court acquitted one more. This brought the

number to four. It was the case on behalf of the

accused that as the High Court convicted only

four persons falling below the required number of

five, they could not have been convicted with the

aid of Section 149 IPC. The aforesaid contention

was negated by this Court. This Court observed

that merely because two other persons forming

part of the unlawful assembly were not convicted

as their identity was not established, the accused

cannot be permitted to say that they are not

16 forming part of the unlawful assembly and they

cannot be convicted with the aid of Section 149

IPC. In the said decision it is specifically observed

and held that the essential question in a case

under Section 147 is whether there was an

unlawful assembly as defined under 141, I. P. C.,

of five or more than five persons. The identity of

the persons comprising the assembly is a matter

relating to the determination of the guilt of the

individual accused, and even when it is possible

to convict less than five persons only, Section

147 still applies, if upon the evidence in the case

the Court is able to hold that the person or

persons who have been found guilty were

members of an assembly of five or more persons,

known or unknown, identified or unidentified.

17 10.1 In view of the above facts and circumstances of

the case the High Court has seriously erred in

observing that no case is made out to invoke

Section 149 IPC.

10.2 Now once the respondent – accused was found to

be member of the unlawful assembly of more than

five persons and he actually participated in

commission of the offence may be the fatal blow

might have been given by the another accused, in

the present case Bhupendra Singh, still with the

aid of Section 149 IPC, Respondent Accused can

be convicted for the offence under Section 302 IPC

with the aid of Section 149 IPC. The case would

certainly fall within first part of Section 149 IPC.

As per first part of Section 149 IPC if an offence is

committed by any member of unlawful assembly

18 in prosecution of the common object of that

assembly, every person who, at the time of that

offence, is a member of the same assembly, is

guilty of that offence. In the case of Mizaji and

Anr. (supra), this Court had occasion to consider

Section 149 of the IPC and the distinction

between two parts of Section 149 IPC. It is

observed and held as under:

“This section has been the subject matter of interpretation in the various High Court of India, but every case has to be decided on its own facts. - The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part the offence committed must be connected immediately with the common

19 object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under s. 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression I know' does not mean a mere possibility, such as might or might not happen. For instance, it is a. matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part 'of s.149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all. There is a great deal to be said for the opinion of Couch, C. J., in Sabid Ali's case (1) that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second

20 part, but not within the first. The distinction between the two parts of s.149, Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of s. 149 as explained above or it was an offence such as the members of the assembly know to be likely to be committed in prosecution of the common object and falls within the second part.” 10.3 Now so far as the reliance placed upon the

decision of this Court in the case of Roy

Fernandes (supra), relied upon on behalf of the

respondent – accused is concerned, on facts the

said decision shall not be applicable. In the said

decision this Court had considered the second

part of Section 149 IPC. This Court did not

consider the first part of Section 149 IPC and the

distinction between the first part and the second

part of Section 149 which has been considered by

this Court in the case of Mizaji and Anr. (supra). 21

11. Now, so far as the submission on behalf of the

accused that he ought not to have been convicted

for the offence under Section 323 IPC is

concerned, though the accused has not

challenged the impugned judgment and order

passed by the High Court challenging the offence

under Section 323 IPC we have heard the learned

counsel appearing on behalf of the accused on

merits on his conviction under Section 323 IPC.

11.1 The submission on behalf of the accused that

there was a delay of 3 ½ days has been

elaborately dealt with and considered by the

learned trial Court in detail. A proper explanation

has been given by the complainant - Surendra

Singh. Immediately after the occurrence the

injured were taken to the hospital for treatment.

22 The condition of Bhawani Singh was serious.

Complainant concentrated on his treatment.

Another injured Narendra Singh was also

remained busy for the treatment. Thus, when the

delay has been sufficiently and properly

explained, we see no reason to give benefit of

doubt to the accused on the aforesaid ground that

there was a delay of 3 ½ days in lodging the FIR.

11.2 Now so far as the submission on behalf of the

accused on the injuries and the contradictions in

the injuries, at the outset, it is required to be

noted that the deposition of the eye-witness PW1

and PW4 and the deposition of the doctor - PW7

are relevant material/deposition against the

accused. The deceased sustained following

injuries:

23

1. 2xl/2 cm scratched injury in the middle of head with

red color soft clotting and hematoma beneath the skin

of the head

2. Blue colored swelling on right head measuring 2.SxL

INTERNAL hematoma in frontal head lobe.

3. 2cm stitch wound on occipital region of head. Blood

clotting a parietal region of right side of head.

4. 3x2 cm scratched injury in front parietal part.

5. lxl/2 cm injury over nose.

6. 2xl/2 cm scratched I injury over right knee.

7. 5X0.5 cm scratched injury on the lower part of left

leg.

8. 0.5X0.5 cm scratched injury on the middle part of left

leg.

24

9. 6xl.5 cm blue colored wound on the back of neck.

While further dissecting it was found that on left

muscles there is hematoma and fourth and fifth

cervical ribs were broken. There was swelling on it.

10. On front of stomach 2.5xl.5 cm Blue coloured

wound on naval side.

All these wounds and injuries lead to death as per

the opinion of the doctor. As per the medical

opinion and the deposition of doctor the death

occurred due to injury no.9 from the shock of

wound at spinal bone of neck. Though the injury

no.9 was caused by the accused Bhupendra

Singh as observed and held hereinabove the

respondent accused being a part of the unlawful

assembly and who also participated in

commission of the offence, he shall also be liable

25 to be convicted for the offence under Section 302

IPC with the aid of Section 149 IPC, even for the

act of the accused Bhupendra Singh who gave the

vital blow.

12. Under the circumstances the impugned judgment

and order passed by the High Court acquitting the

accused for the offence under Section 302 read

with Section 149 IPC is unsustainable and the

same deserves to be quashed and set aside.

In view of the above and for the reason stated

above the present appeal succeeds. The

impugned judgment and order passed by the High

Court acquitting the respondent – accused for the

offence under Section 302 under Section 149 IPC

is hereby quashed and set aside. The judgment

and order passed by the learned Trial Court

26 convicting the respondent – accused for the

offence under Sections 427, 323 and 302/149 IPC

is hereby restored. The respondent no.2 –

accused to undergo life imprisonment for the

offence under Section 302/149 IPC. The

respondent no.2 now to surrender before the

concerned authority/court to undergo the

remaining sentence of life imprisonment within a

period of three weeks from today, failing which, he

shall be taken into custody forthwith.

Present appeal is accordingly allowed.

…………… …………J. (M. R. SHAH)

…………………………………J.

27 (C.T. RAVIKUMAR) New Delhi, April 11, 2023.

28