CASE NO.: Appeal (crl.) 530-531 of 2003 PETITIONER: Bhargavan & Ors. RESPONDENT: State of Kerala DATE OF JUDGMENT: 17/11/2003 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT. JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
Appellants question their conviction for offences punishable under
Sections 143, 148 and 302 read with Section 149 of the Indian Penal
Code, 1860 (in short the ‘IPC’). Appellant Bhargaven was sentenced to
undergo imprisonment for life for offence punishable under Section 302
read with Section 149 IPC and to pay a fine of Rs.60,000/- with default
stipulation. The other four appellants were awarded similar custodial
sentence but the fine in their cases was Rs.35,000/- each. No separate
sentence was awarded for offences relatable to Sections 143 and 148 IPC.
The Kerala High Court by the impugned common judgment dismissed the
appeals filed by the appellants confirming the conviction and sentences
imposed.
Prosecution version as unfolded during trial is as follows:
Chandran (hereinafter referred to as the deceased), a Gulf returned
agriculturist while on his way to Panthalam market around midnight
between 25.5.95 and 26.5.95 at a Panchayat road at Arunoottimangalam was
brutally assaulted. Soon he was lifted to the Government Hospital,
Mavelikara. After first aid, he was referred to the Medical College
Hospital suspecting head injury. The injured was shifted to the Medical
College hospital, Kottayam. While undergoing treatment he succumbed to
the injuries at around 12.50 p.m. on 27.5.95. After return from his
engagement abroad deceased was engaged in betel cultivation and trade.
Valsala (PW-15) is his widow, and Manoharan (PW-4) was his brother.
Santosh (PW-18) was his nephew. On 25.5.1995 he was on his way to
Panthalam market, which starts functioning from early hours in the
morning. When deceased and Santosh (PW-18) reached near the house of
P.K. Ramachandran (PW-14), all the named accused (A-1 to A-6) and two
others waylaid them. Bhargavan (A-1) dealt a blow on the head of the
deceased with an iron rod stating that he should not live any more.
Deceased slumped on receiving the blow. Then Dhanarajan alias Dhanan hit
the deceased with motor cycle chain on his neck and back. Deceased cried
out in pain, hearing which A-1 said that he was not dead and should be
finished. Responding to this, accused Sudhakaran (dead), Chandran,
Sadasivan and Radhakrishnan (A-2, A-3, A-5 and A-6 respectively)
assaulted the deceased on the head and back with sticks. Santosh (PW-18)
cried for help and ran towards home. Hearing the cry Manoharan (PW-4)
and other neighbours rushed to the spot. On the way Santosh (PW-18) met
Manoharan (PW-4). Meanwhile Anandan (PW-2) and Nalini (PW-3) rushed
there. Anandan (PW-2) and Manoharan (PW-4) supinated the deceased who
asked for water and named the accused persons to have assaulted him. PWs
3 and 4 gave water to the deceased. PW-18 Valsala (PW-15) and others in
the meantime reached the place. PW-4, PW-18 and others shifted the
deceased to the Government Hospital, Mavelikara. Dr. V.C. Alexander (PW-
5) attended the injured and opined that he should be shifted to Medical
College Hospital, Kottayam as there was suspected head injury. He also
sent an intimation to the Mavelikara Police Station. Since PW-4 and PW-
18 did not carry much money, they returned home, collected some money
and clothes and along with PW-15 searched for a car. They went to the
house of one Shajahan, Advocate requesting for a car. Later, they got a
car and the injured was shifted to Medical College Hospital, Kottayam.
Though he was admitted and treated at the Hospital in the intensive care
unit, he did not survive. The Assistant Sub-Inspector of Police had
received the intimation sent by PW-5. At about 3 p.m. on 26.5.1995, he
recorded the First Information Report on the basis of narration by PW-
18. The occurrence was witnessed by Santosh (PW-18) who was accompanying
the deceased at the time the accused persons assaulted him.
Subsequently, information was lodged at the police station and
investigation was undertaken, on completion of which charge sheet was
filed. According to prosecution the accused persons in furtherance of
their common intention to commit murder formed into an unlawful assembly
and being members of unlawful assembly they were armed with deadly
weapons like iron rod, motor cycle chain and sticks and with intend to
commit murder of the deceased Chandran, he was brutally assaulted at his
head and body and due to the head injuries sustained Chandran breathed
his last.
Six persons faced trial. One of them i.e. accused no.2-Sudhakran
died during the pendency of the appeal on 3.6.99. Twenty eight witnesses
were examined to further the prosecution version. Santosh (PW-18) was
stated to be an eye-witness wheres Anandan, Nalini, Manoharan (PWs 2, 3
and 4 respectively) were stated to be persons before whom the deceased
made dying declaration implicating the accused-appellants. Accused
persons pleaded innocence and false implication because of previous
litigation. A-1 Bhargavan additionally took the plea of alibi to the
effect that he was hospitalized at Medical College Hospital, Kottayam at
the time of occurrence and the possibility of his assaulting the
deceased is improbable. Learned Additional Sessions Judge, Alappuza,
found the prosecution version cogent, credible and trustworthy and
convicted and sentenced the accused persons-appellants as aforesaid.
In support of the appeals, learned counsel for the appellants
submitted that the trial Court and the High Court have erroneously held
the accused persons guilty as the prosecution version is clearly
unacceptable. Evidence of PW-18 is not only unreliable because of his
relationship with the deceased, but also on the ground that he had
litigation with the accused persons’ family. The so-called dying
declaration before PWs. 2, 3 and 4 is a myth. The doctor clearly stated
that he was unconscious when brought to the hospital and, therefore, the
question of his making a coherent declaration before PWs. 2, 3 and 4 as
claimed is impracticable. Additionally, in the so-called dying
declaration, accused no.1 was not specifically named. The conduct of PW-
18 is not natural. Though claimed that PW-18 had accompanied the
deceased, said fact has not been established. His reaction does not
appear to be normal. It is highly improbable that one person was
assaulted by several persons, and he did not react and remained passive
onlooker. It is equally improbable that after having allegedly made
murderous assaults on a person, no attempt was made to even cause a
scratch on a person who claims to have witnessed the entire occurrence.
The Trial Court noticed that accused persons knew the deceased and PW18
were going to the market on particular day. It is, therefore,
improbable that they would leave unscathed a relative of the deceased
who claims to have witnessed the occurrence. Additionally, PW-18 did
not mention the names of the assailants to the doctor who first treated
the deceased. Though it may not be the duty of the doctor to enquire
the names, it is a question of attaching credibility to the evidence of
PW-18. The conduct shown by the PW-18 and others in delaying to take
the deceased to the hospital and first going to the house of their
advocate on the unacceptable plea that they wanted to use his vehicle
shows that the first information report was lodged after deliberation
and falsely implicating the accused persons. The first information
report was lodged on the next day of occurrence. PWs. 2 and 3 claimed
that they had seen the deceased in an injured condition. Their evidence
goes to show that Santosh (PW-18) was not present when they reached the
spot of occurrence. PW-18 claimed to have seen the assailants in the
light of the shed of PW-14. But the said witness stated that light was
not on when he reached the site. Reliance has been erroneously placed on
the basis of statement of PW-14 (P.K. Ramachandran) recorded under
Section 161 of the Code of Criminal Procedure, 1973 (for short the
‘Cr.P.C.’). Even after the movements starting from the assault till the
deceased was taken to the hospital is accepted in the manner described,
even then there is unexplained delay in lodging the first information
report. No credible motive has been established and the least for A-1
there is no apparent motive. The plea of alibi has been erroneously
rejected on hypothetical basis. When the doctor himself has admitted
that appellant-accused no.1 was admitted to the hospital, on the surmise
that he was not there having been permitted to stay outside. It is
nothing but a hypothetical conclusion. Further it was submitted that
Section 149 has no application as the ingredients necessary to bring
application of the said provision have not been established. The
discrepancies in the evidence of witnesses are not minor and
irretrievably affect credibility of their evidence.
In response, learned counsel for the State submitted that the plea
about A-1 having nothing to do with any litigation of deceased and
accused except being the latter’s advocate is clearly not correct
factual position because the Trial Court itself noticed about cases
instituted by A-1 against the accused. The evidence of PW-14 has
rightly been discarded on the question of availability of light.
Evidence of PW-13 (R. Ramachandran) and PW18 clearly shows that light
was on. It is not that the deceased was unconscious althrough as
claimed by the accused-appellant. On the contrary evidence of PW-3 shows
that he became unconscious after dying declaration as would be evident
from the fact that he asked for and was given a glass of water which he
took. Section 149 has been rightly applied as all the accused persons
carried weapons and their presence and acts done have been established.
The time of occurrence was after mid-night and the distance to the
hospital was such as it took nearly 3 hours to reach it. PW-18 has also
stated as to why he could not come to the rescue of the deceased. The
plea of alibi has been rightly rejected in view of the evidence of
doctor and the nurses i.e. PWs. 19 to 22. In essence it was submitted
that the concurrent findings recorded by the Trial Court and the High
Court about the guilt of the accused did not warrant any interference.
The plea relating to interested witness is a regular feature in
almost every criminal trial.
We shall first deal with the contention regarding interestedness
of the witnesses for furthering prosecution version. Relationship is
not a factor to affect credibility of a witness. It is more often than
not that a relation would not conceal actual culprit and make
allegations against an innocent person. Foundation has to be laid if
plea of false implication is made. In such cases, the court has to
adopt a careful approach and analyse evidence to find out whether it is
cogent ad credible.
In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364)
it has been laid down as under:-
“A witness is normally to be considered independent
unless he or she springs from sources which are
likely to be tainted and that usually means unless
the witness has cause, such as enmity against the
accused, to wish to implicate him falsely.
Ordinarily a close relation would be the last to
screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run high
and there is personal cause for enmity, that there is
a tendency to drag in an innocent person against whom
a witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and the
mere fact of relationship far from being a foundation
is often a sure guarantee of truth. However, we are
not attempting any sweeping generalization. Each
case must be judged on its own facts. Our
observations are only made to combat what is so often
put forward in cases before us as a general rule of
prudence. There is no such general rule. Each case
must be limited to and be governed by its own facts.”
The above decision has since been followed in Guli Chand and Ors.
v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v.
State of Madras (AIR 1957 SC 614) was also relied upon.
We may also observe that the ground that the witness being a close
relative and consequently being a partisan witness, should not be relied
upon, has no substance. This theory was repelled by this Court as early
as in Dalip Singh’s case (supra) in which surprise was expressed over
the impression which prevailed in the minds of the Members of the Bar
that relatives were not independent witnesses. Speaking through Vivian
Bose, J. it was observed:
“We are unable to agree with the learned Judges of
the High Court that the testimony of the two
eyewitnesses requires corroboration. If the
foundation for such an observation is based on the
fact that the witnesses are women and that the fate
of seven men hangs on their testimony, we know of no
such rule. If it is grounded on the reason that they
are closely related to the deceased we are unable to
concur. This is a fallacy common to many criminal
cases and one which another Bench of this Court
endeavoured to dispel in ‘Rameshwar v. State of
Rajasthan’ (AIR 1952 SC 54 at p.59). We find,
however, that it unfortunately still persists, if not
in the judgments of the Courts, at any rate in the
arguments of counsel.”
Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202)
this Court observed: (p. 209-210 para 14):
“But it would, we think, be unreasonable to contend
that evidence given by witnesses should be discarded
only on the ground that it is evidence of partisan or
interested witnesses…….The mechanical rejection
of such evidence on the sole ground that it is
partisan would invariably lead to failure of justice.
No hard and fast rule can be laid down as to how much
evidence should be appreciated. Judicial approach
has to be cautious in dealing with such evidence; but
the plea that such evidence should be rejected
because it is partisan cannot be accepted as
correct.”
To the same effect is the decision in State of Punjab v. Jagir
Singh (AIR 1973 SC 2407), Lehna v. State of Haryana (2002 (3) SCC 76)
and Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381). As
observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR
1981 SC 1390), normal discrepancies in evidence are those which are due
to normal errors of observation, normal errors of memory due to lapse of
time, due to mental disposition such as shock and horror at the time of
occurrence and those are always there however honest and truthful a
witness may be. Material discrepancies are those which are not normal,
and not expected of a normal person. Courts have to label the category
to which a discrepancy may be categorized. While normal discrepancies do
not corrode the credibility of a party’s case, material discrepancies do
so. These aspects were highlighted recently in Krishna Mochi and Ors. v.
State of Bihar etc. (JT 2002 (4) SC 186).
Another plea which was emphasized relates to the question whether
Section 149, IPC has any application for fastening the constructive
liability which is the sine qua non for its operation. The emphasis is
on the common object and not on common intention. Mere presence in an
unlawful assembly cannot render a person liable unless there was a
common object and he was actuated by that common object and that object
is one of those set out in Section 141. Where common object of an
unlawful assembly is not proved, the accused persons cannot be convicted
with the help of Section 149. The crucial question to determine is
whether the assembly consisted of five or more persons and whether the
said persons entertained one or more of the common objects, as specified
in Section 141. It cannot be laid down as a general proposition of law
that unless an overt act is proved against a person, who is alleged to
be a member of unlawful assembly, it cannot be said that he is a member
of an assembly. The only thing required is that he should have
understood that the assembly was unlawful and was likely to commit any
of the acts which fall within the purview of Section 141. The word
‘object’ means the purpose or design and, in order to make it ‘common’,
it must be shared by all. In other words, the object should be common
to the persons, who compose the assembly, that is to say, they should
all be aware of it and concur in it. A common object may be formed by
express agreement after mutual consultation, but that is by no means
necessary. It may be formed at any stage by all or a few members of the
assembly and the other members may just join and adopt it. Once formed,
it need not continue to be the same. It may be modified or altered or
abandoned at any stage. The expression ‘in prosecution of common
object’ as appearing in Section 149 have to be strictly construed as
equivalent to ‘in order to attain the common object’. It must be
immediately connected with the common object by virtue of the nature of
the object. There must be community of object and the object may exist
only up to a particular stage, and not thereafter. Members of an
unlawful assembly may have community of object up to certain point
beyond which they may differ in their objects and the knowledge,
possessed by each member of what is likely to be committed in
prosecution of their common object may vary not only according to the
information at his command, but also according to the extent to which he
shares the community of object, and as a consequence of this the effect
of Section 149, IPC may be different on different members of the same
assembly.
‘Common object’ is different from a ‘common intention’ as it does
not require a prior concert and a common meeting of minds before the
attack. It is enough if each has the same object in view and their
number is five or more and that they act as an assembly to achieve that
object. The ‘common object’ of an assembly is to be ascertained from
the acts and language of the members composing it, and from a
consideration of all the surrounding circumstances. It may be gathered
from the course of conduct adopted by the members of the assembly. What
the common object of the unlawful assembly is at a particular stage of
the incident is essentially a question of fact to be determined, keeping
in view the nature of the assembly, the arms carried by the members, and
the behaviour of the members at or near the scene of the incident. It
is not necessary under law that in all cases of unlawful assembly, with
an unlawful common object, the same must be translated into action or be
successful. Under the Explanation to Section 141, an assembly which was
not unlawful when it was assembled, may subsequently become unlawful.
It is not necessary that the intention or the purpose, which is
necessary to render an assembly an unlawful one comes into existence at
the outset. The time of forming an unlawful intent is not material. An
assembly which, at its commencement or even for some time thereafter, is
lawful, may subsequently become unlawful. In other words it can develop
during the course of incident at the spot co instanti.
Section 149, IPC consists of two parts. The first part of the
section means that the offence to be committed in prosecution of the
common object must be one which is committed with a view to accomplish
the common object. In order that the offence may fall within the first
part, the offence must be connected immediately with the common object
of the unlawful assembly of which the accused was member. Even if the
offence committed is not in direct prosecution of the common object of
the assembly, it may yet fall under Section 141, if it can be held that
the offence was such as the members knew was likely to be committed and
this is what is required in the second part of the section. The purpose
for which the members of the assembly set out or desired to achieve is
the object. If the object desired by all the members is the same, the
knowledge that is the object which is being pursued is shared by all the
members and they are in general agreement as to how it is to be achieved
and that is now the common object of the assembly. An object is
entertained in the human mind, and it being merely a mental attitude, no
direct evidence can be available and, like intention, has generally to
be gathered from the act which the person commits and the result
therefrom. Though no hard and fast rule can be laid down under the
circumstances from which the common object can be called out, it may
reasonably be collected from the nature of the assembly, arms it carries
and behaviour at or before or after the scene of incident. The word
‘knew’ used in the second branch of the section implies something more
than a possibility and it cannot be made to bear the sense of ‘might
have been known’. Positive knowledge is necessary. 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 part but not within the first part. The distinction
betweens the two parts of Section 149 cannot be ignored or obliterated.
In every case is would be an issue to be determined, whether the offence
committed falls within the first part or it was an offence such as the
members of the assembly knew to be likely to be committed in prosecution
of the common object and falls within the second part. However, there
may be cases which would be within first offences committed in
prosecution of the common object would be generally, if not always, with
the second, namely, offences which the parties knew to be likely
committed in the prosecution of the common object. (See Chikkarange
Gowda and others v. State of Mysore, AIR 1956 SC 731.)
The other plea that definite roles have not been ascribed to the
accused and, therefore, Section 149 is not applicable, is untenable. A
4-Judge Bench of this Court in Masalti’s case (supra) observed as
follows:
“Then it is urged that the evidence given by
the witnesses conforms to the same uniform pattern
and since no specific part is assigned to all the
assailants, that evidence should not have been
accepted. This criticism again is not well founded.
Where a crowd of assailants who are members of an
unlawful assembly proceeds to commit an offence of
murder in pursuance of the common object of the
unlawful assembly, it is often not possible for
witnesses to describe accurately the part played by
each one of the assailants. Besides, if a large
crowd of persons armed with weapons assaults the
intended victims, it may not be necessary that all of
them have to take part in the actual assault. In the
present case, for instance, several weapons were
carried by different members of the unlawful
assembly, but it appears that the guns were used and
that was enough to kill 5 persons. In such a case, it
would be unreasonable to contend that because the
other weapons carried by the members of the unlawful
assembly were not used, the story in regard to the
said weapons itself should be rejected. Appreciation
of evidence in such a complex case is no doubt a
difficult task; but criminal courts have to do their
best in dealing with such cases and it is their duty
to sift the evidence carefully and decide which part
of it is true and which is not.”
To similar effect is the observation in Lalji v. State of U.P.
(1989 (1) SCC 437). It was observed that:
“Common object of the unlawful assembly
can be gathered from the nature of the assembly,
arms used by them and the behaviour of the
assembly at or before the scene of occurrence.
It is an inference to be deduced from the facts
and circumstances of each case.”
In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC 747) it was
observed that it is not necessary for the prosecution to prove which of
the members of the unlawful assembly did which or what act. Reference
was made to Lalji’s case (supra) where it was observed that “while
overt act and active participation may indicate common intention of the
person perpetrating the crime, the mere presence in the unlawful
assembly may fasten vicariously criminal liability under Section 149”.
Above being the position, we find no substance in the plea that
evidence is not sufficient to fasten guilt by application of Section
149.
So far as non-disclosure of names to the doctor, same is really
of no consequence. As rightly noted by the Courts below, his primary
duty is to treat the patient and not to find out by whom the injury was
caused. The plea in this regard is clearly unacceptable. The question
was examined by this Court in Pattipati Venkaiah v. State of Andhra
Pradesh (AIR 1985 SC 1715) and similar view was taken.
The evidence of PWs. 2, 3 and 4 is cogent and credible, clearly
supporting the claim that dying declaration was made before them. The
names of the accused persons were claimed to have been stated before
PWs. 2, 3 and 4. Merely because PW-2 says that he did not hear the name
of accused no.1 clearly, that cannot dilute evidentiary value of the
evidence of PWs. 3 and 4 who categorically stated that the name of
accused no.1 was stated.
The plea of alibi was rejected by the Trial Court and the High
Court. The appellant no.1 had not established that he was in the
hospital on the trial. The evidence of doctor and the nurses (PWs. 19
to 22) clearly shows that he was not given any medicines after initial
examination and that itself was conclusive of the fact that he was not
in the hospital in the evening when the medicines were given to the
patients. It has been specifically stated that he was permitted to stay
outside.
It has also been explained as to why there was delay in lodging
the first information report. The Trial Court and the High Court
considered the evidence and came to hold that the paramount attempt was
to save the life of the deceased, and witnesses tried to take him to the
hospital at Kottayam. The evidence of PW-18 was sufficient in itself to
uphold the conviction. Additionally, there is evidence of the dying
declaration.
Trial Court and the High Court were justified in convicting the
accused and awarding sentences consequentially, and there is no
infirmity in the reasons indicated by the Trial Court, the conclusions
arrived at by it as affirmed by the High Court, to warrant interference.
The appeals fail and are dismissed.