Rohtas & Anr. vs State Of Haryana

Surya Kant, J

These two criminal appeals, which have been heard through video conferencing, are directed against the judgment dated 15.03.2010 of the High

Court of Punjab and Haryana whereby conviction of Rohtas and Sanjay (appellants in Criminal Appeal No. 38 of 2011) and Bijender (appellant in

Criminal Appeal No. 775 of 2011) under Sections 307 and 148 of the Indian Penal Code, 1860 (“IPCâ€) has been upheld, though the sentence of

seven years rigorous imprisonment awarded by the Additional Sessions Judge, Sonipat has been reduced to five years, with a fine of Rs. 1,00,000

(Rupees One Lakh) payable as compensation to the victimÂ​complainant.

FACTS

The brief facts of the prosecution case are as follows. A complaint was lodged with the police by the victimÂRanbir Singh (PWÂ1) on 26. 01.1998

stating that two days ago while on his way to irrigate his agricultural field, he was stopped by Rohtas, Sanjay, Bijender (the present three appellants)

and Om Prakash (since deceased) who collectively threatened him with death if he were to return to his fields for irrigation. The complainant came

back to his house and narrated the incident to his family members who while cautioning him against picking a quarrel, asked him to go about his normal

routine. On the following day, i.e. 25.01.1998, when the complainant was passing by the Hudawala field while on his way to another agricultural plot

(known as Patewala field), the four accused  Om Parkash, Rohtas, Sanjay and Bijender intercepted him. They started inflicting blows on the

complainant’s body using axes, thereby causing him to fall down and seriously injuring his legs, hand and head. Another group of three accused

persons, comprising Hawa Singh, Virender @ Beero and Rajinder also joined in thrashing the complainant. The assailants further declared that they

would not rest till they killed the complainant. Upon hearing the complainant’s cries, his brother Balwan (PWÂ3) who was irrigating a nearby

Budewala field, rushed to the spot and raised an alarm. Thereafter, all seven accused ran from the spot. Balwan subsequently carried his injured

brother to Government Civil hospital at Sonipat for treatment. Owing to the seriousness of multiple injuries, Ranbir was referred to Post Graduate

Institute of Medical Sciences at Rohtak (in short, “PGIMS, Rohtakâ€​).

The jurisdictional police recorded the statement of the injured on 26. 01.1998 at PGIMS, Rohtak and formally registered the First Information

Report under Sections 307, 323, 325, 506, 148 and 149 of the IPC. All the seven accused were then arrested. Post completion of investigation, they

were committed to trial. The Additional Sessions Judge, Sonipat framed two charges; first, of rioting with deadly weapons under Section 148, and

second, of attempt to murder with common object as part of an unlawful assembly under Section 307 read with Section 149 of the IPC. All seven

accused pleaded not guilty and claimed trial. During trial, however, Om Prakash died and proceedings against him stood abated on 08.11.2000.

The prosecution examined twelve witnesses to establish the accused’s guilt, which included the victimÂcomplainant  Ranbir Singh (PWÂ1)

and his brother and only eyeÂwitness  Balwan (PWÂ3). The complainant very effectively corroborated his earlier version. He remained firm during

crossÂexamination and categorically stated that “Om Parkash, Rohtas, Sanjay and Bijender and after a minute Beero, Hawa Singh and Rajinder

came there. All the accused attacked me with their respective weapons.†He further mentioned that “Om Parkash gave two axe blows on my

head while Rohtas inflicted uncounted injuries on my right leg... Sanjay gave twoÂthree axe blows on my left leg... Bijender gave one axe blow on the

palm of my left hand.†It is relevant to be noticed here that the complainant was candid enough to admit in his crossÂexamination that “when the

accused Rajinder, Hawa Singh and Beero when arrived at the scene of occurrence, I have already suffered all the injuries on my person.... [sic]â€​

EyeÂwitness, Balwan (PWÂ3) stated on oath that on 25.01.1998 he was irrigating Budewala field which he had taken on lease basis. At about

12PM he heard noise towards the passage and after running in that direction he witnessed that “Om Parkash, Rohtas, Sanjay and Bijender armed

with axes were causing injuries to my brother/Ranbir.†Like the injuredÂcomplainant, Balwan (PWÂ3) also gave a detailed account of the assault

and consequent injuries on the body of Ranbir. Despite strong suggestions by the defence counsel on the unlikelihood of him having seen the incident,

Balwan unequivocally replied that “I saw the accused causing injuries to my brother from distance of about half killa...â€​.

Dr. Suman Mathur (PWÂ4), who had medicoÂlegally examined the injured soon after the occurrence, lead the medical evidence. She found the

following seven injuries on various parts of the complainant’s (PWÂ​1) body:

“1. Lacerated Wound 7 cm x 2 cm x bone deep on the lower 1/3rd of right side. Bone exposed muscle and tendons were crushed. Fresh

bleeding was present and was advised xÂ​ray.

Lacerated Wound 3 cm x 2 cms x bone deep present on the right ankle foot. Advised xÂ​ray.

Lacerated Wound 3 cms x 2 cms x bone deep on the front and middle of left leg. Advised xÂ​ray left leg.

Lacerated Wound 3 cms x 2 cms x muscle deep present on the dorsum of the left leg.

Lacerated Wound 3 cms x 3 cms x skin deep on the palmer aspect of left leg. Advised xÂ​ray.

Lacerated Wound 5 cms x 2 cms x scalp deep on the left parieto temporal region 5 cms above the left ear. Advised xÂ​ray.

Lacerated Wound 2 cms x 2 cms x scalp deep on the right parieto temporal region. Advised xÂ​ray.â€​

The Orthopaedic Surgeon, Dr Ajay Goel (PWÂ10), deposed that he was posted as Registrar in the Department of Orthopaedics, XÂRay and

Emergency Wing, at PGIMS Rohtak when he attended to the complainant and diagnosed him with fracture of both the lower bones in both of his legs,

along with vascular and nerve injuries. External bilateral legs were affixed and vascular repair was carried out on 26.01.1998. But, upon deterioration

of the complainant’s condition, the lower portion of his right leg (below the knee) was amputated on 01.02.1998. The need for this amputation and

its correlation with the initial set of injuries inflicted by the accused, was elucidated by Dr SS Lochab (PWÂ12), who was posted as Head of

Department of Cardiothoracic and Vascular Surgery at PGIMS, Rohtak. He explained the damage caused to the tibial arteries and how the massive

blood loss had endangered the complainant’s life. The Investigating Officer, S.I. Parkash Chand (PWÂ6) and other formal police witnesses too

deposed to substantiate the prosecution case.

The sixÂsurviving accused in their statement under Section 313 of Code of Criminal Procedure, 1973 (“CrPCâ€) claimed that they were falsely

implicated on account of local village politics. They also led defence evidence and produced Dr Varsha (DWÂ1) posted then as the Medical Officer,

Civil Hospital, Sonipat who had found injuries on Om Prakash (deceased) and Sanjay (present appellant) during a medico legal examination on the day

after the incident.

Analysing this substantial ocular and medical evidence, the learned Additional Sessions Judge, Sonipat negated the defence’s objection against

reliance on testimony of PWÂ3, for he being related to the complainant or that the medical evidence did not reconcile with the ocular evidence. The

trial Court noted that an ‘unlawful assembly’ with a common object had caused serious injuries to the complainant. All the six accused were

consequently convicted for the offence under Section 307 read with Section 149 of the IPC (with sentence of seven years rigorous imprisonment) and

also under Section 148 of the IPC (with an additional one year’s concurrent imprisonment).

The High Court, in appeal, reÂappraised the entire evidence and took further notice of the complainant’s admission that three of the accused,

namely Rajinder, Hawa Singh and Beero @ Virender, had arrived at the scene of occurrence after he had already suffered injuries from the other

accused. Sensing the possibility that the lateÂarriving accused might have been named only to widen the net and settle past scores, the High Court

extended the benefit of doubt to Rajinder, Hawa Singh and Beero @ Virender and acquitted them of all charges. As regards the present three

appellants  Rohtas, Sanjay and Bijender, the High Court found no ground to interfere with their conviction, though it reduced the quantum of

sentence under the charge of Section 307 IPC from seven years to five, with a combined additional fine of Rs 1,00,000 (Rupees One Lakh) to be paid

to the victimÂ​complainant (PWÂ​1).

These three remaining convicts, namely, Rohtas and Sanjay (jointly) and Bijender have assailed their conviction and sentence through these two

criminal appeals.

CONTENTIONS:

We have heard learned counsel for the appellants at considerable length and have perused the record inÂdepth. There are three principal

contentions which have been raised on behalf of the appellants. First, it was urged that the minimum number of persons required to constitute an

‘unlawful assembly’ and concomitantly sustain any charge under Section 149 IPC is five. Given that three of the original seven accused have

been acquitted by the High Court, the conviction for attempt to murder as part of an unlawful assembly could not survive. In support, learned counsel

for the appellants relied upon Amar Singh v. State of Punjab (1987) 1 SCC 679, and Dhupa Chamar v. State of Bihar (2002) 6 SCC 506. Further

reliance was placed on Subran v. State of Kerala (1993) 3 SCC 32, to urge that the case should not be converted to one under Section 307 IPC

simplicitor at an advanced stage. Second, the prosecution story was highly doubtful as Balwan (PWÂ3) was an interested witness and no other

independent witness had been examined. Third and finally, it was urged alternatively that the appellants after having undergone some part of their

sentence were enlarged on bail by this Court almost a decade back, and it would not serve the ends of criminal justice to return them to Jail at this

juncture. The sentence thus ought to be reduced to the period already undergone by the appellants.

Although learned State Counsel did not appear on the date of final hearing, but the respondent’s stand on the intermittent dates of hearing has

been in total contrast to that of the appellants. The prosecution case proceeds on the premise that there is an attempt to murder, involving seven

persons with a common intention and prior meeting of minds. The emphasis of the State as usual is that no lenient view ought to be taken in light of the

nature of injuries.

ANALYSIS:

We have given our thoughtful consideration to all the issues raised on behalf of the appellants. We first deem it appropriate to avert to the

contention whether a charge framed with the assistance of Section 149 IPC can later be converted to one read with Section 34 IPC or even a

simplicitor individual crime? Second, whether lack of independent witnesses to a violent crime would undermine the prosecution case and whether

closely related witnesses can be relied upon in such instances? And third, whether leniency ought to be shown to the present appellants given the

extended period of liberty which they have enjoyed since being released on bail?

(i) Framing of charge and its subsequent alteration

The primary attack on the judgment of the High Court by learned counsel for the appellants is on a question of law, which although seems

interesting at first but turns out to be superficial upon a deeper consideration. The oversight regarding Section 148 and 149 of the IPC as highlighted by

the appellants is indeed inescapable. Before the members of an ‘unlawful assembly’ can be vicariously held guilty of an offence committed in

furtherance of common object, it is necessary to establish that not less than five persons, as mandatorily prescribed under Section 141 read with

Section 149 of the IPC had actually participated in the occurrence. It is not uncommon, like in the present facts, when although the number of accused

is more than five at the time of chargeÂsheeting, but owing to acquittals of some of them over the course of trial, the remaining number of accused

falls below five. It may be true in such cases, as rightly urged by the appellants that the charge under Section 148 and 149 IPC would not survive.

This does not, however, imply that Courts can not alter the charge and seek the aid of Section 34 IPC (if there is common intention), or that they

cannot assess whether an accused independently satisfies the ingredients of a particular offence. Sections 211 to 224 of CrPC which deal with

framing of charges in criminal trials, give significant flexibility to Courts to alter and rectify the charges. The only controlling objective while deciding

on alteration is whether the new charge would cause prejudice to the accused, say if he were to be taken by surprise or if the belated change would

affect his defence strategy. [Nallapareddy Sridhar Reddy v. State of AP, 2020 SCC OnLine SC 6,0 ¶ 16Â21] The emphasis of Chapter XVII of the

CrPC is thus to give a full and proper opportunity to the defence but at the same time to ensure that justice is not defeated by mere technicalities.

Similarly, Section 386 of CrPC bestows even upon the appellate Court such wide powers to make amendments to the charges which may have been

erroneously framed earlier. Furthermore, improper, or nonÂframing of charge by itself is not a ground for acquittal under Section 464 of the CrPC. It

must necessarily be shown that failure of justice has been caused, in which case a reÂtrial may be ordered. [Kantilal Chandulal Mehta v. State of

Maharashtra, (1969) 3 SCC 166]

The contention of the appellants to the contrary is nothing but hyperÂtechnical. It deserves mention that the extracts of Subran v. State of Kerala

(supra) as relied upon by the appellants’ counsel have been subsequently recalled and substituted by the bench in review jurisdiction [(1993) 3

SCC 722]. The amended version makes clear that acquittal in Subran (supra) was not because of improper framing of charges but on facts. In that

case, the injuries attributed to the accused failed to satisfy the necessary ingredients of the relevant provision when his role was assessed individually.

Indeed, such is the right approach. Courts are free to weigh the evidence and determine whether an independent conviction is possible in case group

prosecution under Section 149 IPC fails.

In another case relied upon by the appellants, i.e. Amar Singh v. State of Punjab (supra), this Court in the penultimate paragraph notes that

“Apart from the fact that the appellants cannot be convicted under Sections 148 and 149 IPC, it is difficult to convict them on any charge on the

basis of the evidence of PW5.†This shows that acquittal was based not merely upon failure by the prosecution to fulfil the requirements of Section

149 IPC, but because even independently no substantive offence was found to have been committed.

In fact, the law on this point has continuously been delved into and reiterated by this Court from time to time. A threeÂJudge Bench of this Court

in Karnail Singh v. State of Punjab AIR 1954 SC 204, held that:

“8. It is true that there is substantial difference between the two sections but as observed by Lord Sumner in Barendra Kumar Ghosh v.

Emperor I.L.R. 52 Cal. 197, they also to some extent overlap and it is a question to be determined on the facts of each case whether the

charge under section 149 overlaps the ground covered by section 34. If the common object which is the subjectÂ​ matter of the charge under

section 149 does not necessarily involve a common intention, then the substitution of section 34 for section 149 might result in prejudice to

the accused and ought not therefore to be permitted.

But if the facts to be proved and the evidence to be adduced with reference to the charge under section 149 would be the same if the charge

were under section 34, then the failure to charge the accused under section 34 could not result in any prejudice and in such cases the

substitution of section 34 for section 149 must be held to be a formal matter.â€​

(emphasis supplied)

The aboveÂextracted position of law was further concretised in Willie (William) Slaney v. State of MP AIR 1956 SC 116, ¶ 49 and by the

majority in Chittarmal v. State of Rajasthan (2003) 2 SCC 266, ¶ 14. The permissibility of convicting an accused individually under a simplicitor

provision after group conviction with the aid of Section 149 of IPC fails, was further explored in Atmaram Zingaraji v. State of Maharashtra (1997) 7

SCC 41, wherein this Court held that:

“4. The next question that falls for our determination is whether, after having affirmed the acquittal of all others, the High Court could

convict the appellant under Section 302, I.P.C. (simpliciter). The charges framed against the accused (quoted earlier) and the evidence

adduced by the prosecution to bring them home clearly indicate that according to its case, the nine persons arraigned before the trial Court

 and, none others, either named or unnamed (totalling minimum five or more persons)  formed the unlawful assembly. Consequent upon

the acquittal of the other eight the appellant could not be convicted with the aid of Section 149, I.P.C., more particularly, in view of the

concurrent findings of the learned Courts below that the other eight persons were not in any way involved with the offences in question.

The same principle will apply when persons are tried with the aid of Section 34, I.P.C. In the case of Krishna v. State of Maharashtra

[1964]1SCR678 , a four Judge Bench of this Court has laid down that when four accused persons are tried on a specific accusation that

only they committed a murder in furtherance of their common intention and three of them are acquitted, the fourth accused cannot be

convicted with the aid of Section 34, I.P.C. for the effect of law would be that those who were with him did not conjointly act with the fourth

accused in committing the murder.

In either of the above situations therefore the sole convict can be convicted under Section 302, I. P. C. (simpliciter) only on proof of the

fact that his individual act caused the death of the victim. To put it differently, he would be liable for his own act only. In the instant case,

the evidence on record does not prove that the injuries inflicted by the appellant alone caused the death; on the contrary the evidence of the

eyeÂwitnesses and the evidence of the doctor who held the postÂmortem examination indicate that the deceased sustained injuries by other

weapons also and his death was the outcome of all the injuries. The appellant, therefore, would be guilty of the offence under Section 326,

I.P.C. as he caused a grievous injury to the deceased with the aid of jambia (a sharpÂ​cutting instrument).â€​

(emphasis supplied)

This position of law has finally been summed up very succinctly in Nallabothu Venkaiah v. State of Andhra Pradesh (2002) 7 SCC 117:

“24. Analytical reading of catena of decisions of this Court, the following broad proposition of law clearly emerges; (a) the conviction

under Section 302 simpliciter without aid of Section 149 is permissible if overt act is attributed to the accused resulting in the fatal injury

which is independently sufficient in the ordinary course of nature to cause the death of the deceased and is supported by medical evidence;

(b) wrongful acquittal recorded by the High Court, even if it stood, that circumstance would not impede the conviction of the appellant under

Section 302 r/w Section 149 I.P.C. (c) charge under Section 302 with the aid of Section 149 could be converted into one under Section 302

r/w Section 34 if the criminal act done by several persons less than five in number in furtherance of common intention is proved.â€​

(emphasis supplied)

Although both Section 34 and 149 of the IPC are modes for apportioning vicarious liability on the individual members of a group, there exist a few

important differences between these two provisions. Whereas Section 34 requires active participation and a prior meeting of minds, Section 149 IPC

assigns liability merely by membership of the unlawful assembly. In reality, such ‘common intention’ is usually indirectly inferred from conduct

of the individuals and only seldom it is done through direct evidence. [Mahbub Shah v. King Emperor, AIR 1945 PC 118, pp. 153Â​154]

Applying these settled principles to the facts of the present case, it may be seen that both the common object and the common intention are traced

back to the same evidence, i.e., evaluating the conduct of the accused as narrated by the injured and the eyeÂwitness. Further, a perusal of Section

313 CrPC statement shows that the appellants were expressly confronted with their specific role in the offence: that each of them had individually

attacked the complainant with a deadly object in furtherance of the common intention of killing him. We, therefore, do not find that the appellants

suffered any adverse effect when the High Court held the three of them individually guilty for the offence of attempted murder, without the aid of

Section 149 IPC.

We have no doubt that on facts, an offence under Section 307 IPC is clearly made out against each of the three appellants. The medical experts

have in their depositions clearly explicated that the weapons used and the injuries inflicted were more than sufficient to cause death in ordinary course

of nature. The appellants made death threats to the complainant on 24.01.1998 and then they used sharp edged weapons the very next day and further

declared that they would not rest till they killed the complainant. It manifests the appellant’s intention to inflict bodily injury knowing fully that such

injuries would ordinarily lead to the complainant’s death. The recovery of the axe (kulhari) from Rohtas, which is on the record as ExhibitÂP7,

further punches holes in the mask of denial worn by the appellants.

The gravity of the injuries is beyond doubt. Not only were there seven injuries, some of which were deep cuts on vital parts of the body including

on the head (above the ear); but the appellants broke all the bones in the complainant’s feet below the knee. Most appallingly, the injuries have led

to amputation of an entire limb, leaving the complainant permanently disabled. This by itself shows the very likely possibility of the complainant dying if

not for the timely intervention of PWÂ3 and appropriate medical care by PGIMS Rohtak. Given such extreme injuries, we can fathom no rhyme or

reason for either the complainant (PWÂ1) or his brother, Balwan (PWÂ3) to falsely implicate the appellants and allow the actual culprits to go scotÂ‐

free. On the contrary, the candour of PWÂ​1 and the responses of PWÂ​3 inspire confidence and provide undoubtable explanation of the incident.

That apart, even the requirements of Section 34 of IPC are well established as the attack was apparently preÂmeditated. The incident was not in

a spurÂofÂtheÂmoment. The appellants had previously threatened the complainant with physical harm if he were to attempt to irrigate his fields.

Their attack on 25.01.1998 was thus preÂplanned and calculated. There is nothing on record to suggest that the complainant caused any provocation.

Specific roles have been attributed to each of the appellants by the injured and the solitary eyeÂwitness, establishing their individual active

participation in the crime.

(ii) Independence of witnesses

It is true that the duty of the prosecution is to seek not just conviction but to ensure that justice is done. [Kumari Shrilekha Vidyarthi v. State of

UP, (1991) 1 SCC 212] The prosecution must, therefore, put forth the best evidence collected in the course of investigation. Although it is always ideal

that independent witnesses come forward to substantiate the prosecution case but it would be unfair to expect the presence of thirdÂparties in every

case at the time of incident, for most violent crimes are seldom anticipated. Any adverse inference against the nonÂexamination of independent

witnesses thus needs to be assessed upon the facts and circumstances of each case. In fact, it must first be determined whether the best evidence

though available, has been actually withheld by the prosecution for oblique or unexplained reasons.

The present crime took place in a private agriculture field and not in the middle of a busy public place. The defence has not claimed that other

farmers also gathered at the scene and yet have not been examined. This shows that the appellants have in fact been blowing both hot and cold with

their arguments. Earlier in the trial they had tried to discredit the ocular testimony of PWÂ3 by claiming that he might not have been able to witness

the incident owing to standing crops in the field. Nonetheless, they expect this Court to believe that there could have been others who witnessed the

incident but have deliberately been suppressed by the prosecution.

(iii) Sentencing and Leniency

This leaves us to explore the equitable considerations and plea of consequential reduction in sentence as has been pleaded by learned counsel on

behalf of the appellants. We have objectively considered this prayer. We, however, cannot be oblivious of the fact that the appellants and their

deceased coÂaccused were all armed with deadly weapons. They surrounded the complainant and in a brutal attack caused him gruesome injuries

and disabled him for life.

The appellants have not undergone even half of their sentence period. Having enjoyed the more productive part of their lives outside jail cannot be,

per se, taken as a mitigating factor. Any misplaced sympathy with the appellants is likely to cause injustice to the victim of the crime. We, therefore,

do not find any justification to show leniency and reduce the sentence.

Given that earlier the appellants had been ordered to serve their two sentences of five years under Section 307 and one year under Section 148 of

IPC concurrently, acquittal in the latter would effectively have no impact on their outstanding period of sentence.

CONCLUSION:

As a sequel to the above discussion, both the appeals are found to be without any merit so far as conviction of the appellants under Section 307

IPC is concerned, and are dismissed accordingly. However, their conviction under Section 148 is setÂaside. Their bail bonds are cancelled and the

State of Haryana is directed to take the appellants into custody to serve the remainder of their fiveÂ​year sentence as awarded by the High Court.