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TMI Blog2018 (5) TMI 1989X X X X Extracts X X X X X X X X Extracts X X X X ..... lying near the shop of Bhikabhai and after getting some further information, he had gone to Amreli Hospital and recorded complaint from Vinu Ranchhod, which was registered at about 1.30 a.m. on 12.07.1992. On the basis of the said complaint, PSI, Rajput started investigation by recording statements, drawing panchnamas and sending the dead bodies for post mortem etc." 2. On completion of investigation, a charge-sheet came to be filed against 15 Accused because the remaining two Accused A-16 and A-17 were absconding for some time. The matter was committed to the Sessions Court of Amreli as offences were exclusively triable by the Court of Sessions. In Sessions Case No. 118/1992, trial was conducted against 15 Accused. The trial insofar as the two absconding Accused was segregated from the trial of the remaining even after they were apprehended 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 its judgment dated 17.01.1996 recorded the conviction of A-1, A-5, A-10 and A-12 as follows: Prosecution has proved the criminal offence punishable Under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Gujarat filed Criminal Appeal No. 167/1996 challenging the acquittal of the remaining thirteen Accused. It must be mentioned here that the original complainant also filed a Criminal Revision Petition No. 138/1996 challenging the decision of the Sessions Court acquitting eleven of the Accused. 7. The two absconding Accused Nos. 16 and 17 "were tried separately for the offences punishable Under Sections 147, 148, 120B, 302 and 307 read with Section 149 of Indian Penal Code and Under Section 25(1)(A) of the Arms Act and Under Section 135 of Bombay Police Act in Sessions Case No. 58/98." 2.2, Judgment of the High Court. They were found not guilty by the Fast Track Court, Amreli by judgment dated 19.07.2003. The State of Gujarat filed Criminal Appeal No. 1226/2003 against the acquittal of Accused Nos. 16 and 17. 8. All the appeals and the revision were clubbed together and disposed of by the High Court by a 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 appeals challenging acquittals of various Accused w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Sections 302, 307, 324, 147, 148, 149, 120B of Indian Penal Code and Section 25(1)(aa) of the Arms Act and Section 135 of the Bombay 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 the court, my learned predecessor has on 21/3/1994 below Exh. 1 on charges of offences punishable Under Sections 143, 147, 148, 302 read with 149, 120-b, 307 read with 147, 114, 120-b of the Indian Penal Code and against the Accused Nos. 7, 8 and 11 charges Under Section 27 of the Arms Act, and against all the Accused the offence punishable Under Section 25 of the Indian Telegraphs Act, and for carrying weapons the charges of violation of the Notification by the District Magistrate Amreli, for which against the Accused Nos. 2, 4, 9, 15, 10, 12, 13, 1, 3, 6, 7 and 8 the charges of offence 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 have been framed. At any rate, no document is brought to our notice showing the charges framed by the Court in spite of repeated enquiry. It must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... know its nature at the earliest stage. A charge is not an accusation made or information given in the abstract, but an accusation made against a person in respect of an act committed or omitted in violation of penal law forbidding or commanding it. In other words, it is an accusation made against a person in respect of an offence alleged to have been committed by him. A charge is formulated after inquiry as distinguished from the popular meaning of the word as implying inculpation of a person for an alleged offence as used in Section 224 of the Indian Penal Code. 16. In the case on hand where three persons died, the charge Under Section 302 must have been framed on three counts against specifically named Accused with respect to each of the deceased. Assuming for the sake of argument, that all the 17 persons are Accused of causing the death of each one of the three deceased, distinct charges should have been framed with respect to each of the deceased. It is also necessary that the court should record a specific finding as to the guilt of the Accused Under Section 302 Indian Penal Code qua the death of a named deceased. If different Accused are prosecuted for causing the death of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Section 149 is essential in such cases for punishing the members of such unlawful assemblies on the ground of vicarious liability even though they are not Accused of having inflicted fatal injuries in appropriate cases if the evidence on record justifies. The mere presence of an Accused in such an 'unlawful assembly' is sufficient to render him vicariously liable Under Section 149 Indian Penal Code for causing the death of the victim of the attack provided that the Accused are told that they have to face a charge rendering them vicariously liable Under Section 149 Indian Penal Code for the offence punishable Under Section 302 Indian Penal Code. Failure to appropriately invoke and apply Section 149 enables large number of offenders to get away with the crime. 20. This Court in Bala Seetharamaiah v. Perike S. Rao (2004) 4 SCC 557, para 8 held: 8. Unfortunately, the Sessions Judge did not frame charge against the Accused persons for offence punishable Under Section 302 Indian Penal Code read with Section 149 Indian Penal Code. It is also important to note that the relevant prosecution allegations so as to bring in the ingredients of the offence punishable Under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which amounts to an offence. Section 149 Indian Penal Code is one such provision. It is a provision conceived in the larger public interest to maintain the tranquility of the society and prevent wrong doers (who actively collaborate or assist the commission of offences) claiming impunity on the round that their activity as members of the unlawful assembly is limited. The responsibility of the prosecution and/or of the Court (in a case like the one at hand where large numbers of people (5 or more) are collectively Accused to have committed various offences and subjected to trial)-in examining whether some of the members of such group are vicariously liable for some offence committed by some of the other members of such group-requires an analysis. Such analysis has two components-(i) the amplitude and the vicarious liability created Under Section 149; and (ii) the facts which are required to be proved to hold an Accused vicariously liable for an offence. 22. To understand the true scope and amplitude of Section 149 Indian Penal Code it is necessary to examine the scheme of Chapter VIII (Sections 141 to 160) of the Indian Penal Code which is titled "Of the offences against the publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of an unlawful assembly, such assembly is also guilty of the offence of rioting Under Section 146 and the person charged with an offence Under Section 148 must also be armed with a deadly weapon. See Sabir v. Queen Empress, (1894) ILR 22 Cal 276; In Re: Choitano Ranto and Ors. AIR 1916 Mad 788 26. Section 149 propounds a vicarious liability See Shambu Nath Singh v. State of Bihar AIR 1960 SC 725 in two contingencies by declaring that (i) if a member of an unlawful assembly commits an offence in prosecution of the common object of that assembly, then every member of such unlawful assembly is guilty of the offence committed by the other members of the unlawful assembly and (ii) even in cases where all the members of the unlawful assembly do not share the same common object to commit a particular offence, if they had the knowledge of the fact that some of the other members of the assembly are likely to commit that particular offence in prosecution of the common object. The scope of Section 149 Indian Penal Code was enunciated by this Court in Masalti v. State of U.P., AIR 1965 SC 202: The crucial question to determine in such a case is whether the assembly consisted of five or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Under Sections 143, 146 or 148 or (ii) vicariously liable Under Section 149 for some other offence, it must first be proved that such person is a member of an 'unlawful assembly' consisting of not less than five persons irrespective of the fact whether the identity of each one of the 5 persons is proved or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the 5 enumerated objects specified Under Section 141 Indian Penal Code. 30. The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual members of the assembly, in our opinion is impermissible. For example, if more than five people gather together and attack another person with deadly weapons eventually resulting in the death of the victim, it is wrong to conclude that one or some of the members of such assembly d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adiya village Bus stand, near the shop of Bhikhabhai in the public place all the Accused in this matter and the absconding Accused Chandubhai Vallabhbhai and Vallabhbhai Khodabhai, thus all of these had constituted an illegal assembly and with the common intention of killing the Leuva Patels of the Nana Ankadiya village, attempted to murder, and at that above time and place, all these Accused and the absconding Accused with the intentions of achieving their common object, caused rioted and committed criminal offence punishable Under Section 143, 147? (4) Whether the prosecution is able to prove that, the Accused had for achieving the common object of their illegal assembly, made use of the weapons carried by them and had assaulted Chhaganbhai Premjibhai Patel, Madhubhai Mohanbhai Patel and Pragjihai Parbatbhai Patel and fired at them and by such act they were well aware that they would certainly be killed and inspite of this intentionally and with the intentions of killing, caused grievous injuries, and all the three persons were assaulted and murdered, the said act was committed by the Accused No. 2, 4, 5 and 9 using stick, and Accused No. 10, 12 using sword, and Accused No. 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guilty of the offence of murder along with A-10 and A-12 (provided of course that they are not prejudiced by the improper framing of charges). The record is not very clear whether the Accused were told they were to face a charge of being members of the unlawful assembly, whose common object was to commit murder of the three deceased. 37. Coming to the conviction of A-10 and A-12, the mere statement in the Sessions Court's judgment that two of the Accused were found guilty of offence punishable Under Section 302 of the Indian Penal Code falls short of the requirement of law in a case where more than one person died in the transaction. Equally the other two Accused who are convicted of other offences mentioned earlier are entitled to know the details of the offence for which they are convicted. 38. We shall now examine the judgment of the High Court. The High Court completely failed to take note of the defects in framing of the charges. The High Court recorded a finding at paragraph 19, that the prosecution witnesses are trustworthy and they had witnessed the incident. However, in paragraph 20 20.... However, all the PWs have not specifically involve all the Accused. Likewise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds: (i) that their names were not to be found in the FIR (ii) that there were improvements in the evidence of the PWs at various stages regarding the presence of the four Accused and (iii) that the medical evidence does not disclose any injury which could have been attributed to the beatings by sticks. In our opinion, the first two reasons given by the High Court are legally tenable, however, the third reason, i.e. the absence of injuries attributable to a stick, need not necessarily result in a conclusion that the Accused were not present in the unlawful assembly. But the absence of such injuries cannot said to be an irrelevant consideration in arriving at a conclusion whether the four Accused participated in the unlawful assembly in the background of the other two factors mentioned above. But a similar analysis with respect to the seven of the other Accused who were given the benefit of doubt by the Sessions Court is lacking in the judgment of the High Court. Another important aspect of the matter is that at least one of the Accused (A-7) appears to have been injured in the transaction and it appears from the judgment of the High Court that an FIR in that regard was lodged. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.--A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the Accused within the meaning of this section. of the Indian Evidence Act. 41. There is no material on record to warrant the procedure adopted by the Sessions Court. On that single ground, the entire trial of Sessions Case No. 58/98 is vitiated and is not in accordance with procedures established by law. It is a different matter that both the Accused put to trial in Sessions Case No. 58/98 were acquitted by the Fast Track Court 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 gravity of the offence and the evidence of the 5 injured witnesses, most of the Accused went scot free without any punishment and, hence, this appeal. We do understand the grievance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance on the same for coming to a gist conclusion regarding the culpability of the Accused? 44. We are of the opinion that the only course of action available to this Court is that the victims of the crime in this case are required to be compensated by the award of public law damages in light of the principles laid down by this Court in Nilabati Behera (Smt.) alias Lalita Behera (Through the Supreme Court Legal Aid Committee) v. State of Orissa and Ors., (1993) 2 SCC 746. In the circumstances, we are of the opinion that the families of each of the deceased should be paid by the State an amount of Rs. 25,00,000/- (Rupees Twenty Five Lacs Only) each and the injured witnesses, if still surviving, otherwise their families are required to be paid an amount of Rs. 10,00,000/- (Rupees Ten Lacs Only) each. The said amount shall be deposited within a period of eight weeks from today in the Trial Court, and on such deposit the said amounts shall be distributed by the Sessions Judge, after an enquiry and satisfying himself regarding the genuineness of the entitlement of the claimants. 45. This case, in our opinion, is a classic illustration of how the State failed in its primary constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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