TMI Blog2018 (5) TMI 1989X X X X Extracts X X X X X X X X Extracts X X X X ..... the Accused? This is a classic illustration of how the State failed in its primary constitutional responsibility of maintaining law and order by its ineffectiveness in the enforcement of criminal law. In our opinion, the reasons for such failure are many. Some of them are-(i) inefficiency arising out of either incompetence or lack of proper training in the system of criminal investigation; (ii) corruption or political interference with the investigation of crime; (iii) less than the desirable levels of efficiency of the public prosecutors to correctly advise and guide the investigating agencies contributing to the failure of the proper enforcement of criminal law; and (iv) inadequate efficiency levels of the bar and the members of the Judiciary (an offshoot of the bar) which contributed to the overall decline in the efficiency in the dispensation of criminal justice system - Over a period of time lot of irrelevant and unwarranted considerations have crept into the selection and appointment process of Public Prosecutors all over the country. If in a case like the one on hand where three people were killed and more than five people were injured, if charges are not framed in accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conviction of A-1, A-5, A-10 and A-12 as follows: Prosecution has proved the criminal offence punishable Under Section 302 and 148 of the Indian Penal Code and Under Section 135(1) of the B.P. Act, against the Accused No. 10 and [12] respectively Nanjibhai Khodabhai and Ratilal Nagji, and therefore the Accused No. 10 and 12 are convicted Under Sections 302, 148 Indian Penal Code and Section 135(1) of the B.P. Act. The Accused No. 1 Ravji Duda is convicted for the criminal offence punishable Under Section 326 and 148 of Indian Penal Code and Section 135(1) of B.P. Act. Whereas the Accused No. 5 Manubhai Makanbhia is convicted for the criminal offence punishable Under Section 326, 323 and 148 of the Indian Penal Code and Section 135(1) of the B.P. Act. Whereas the Accused other than these Accused, the prosecution has not been able to prove their case beyond doubt therefore the Accused No. 2, 3, 4, 6, 7, 8, 9, 11, 13, 14 and 15 are given the benefit of doubt and are acquitted, and if they are not required in any other matter, then the Accused Nos. 2, 3, 4, 6, 7, 8, 11, 13, 14 be released from judicial custody. The Accused No. 2, 4, 9 and 15 are enlarged on bail, their bail bon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed by the High Court. The appeal of Accused Nos. 1 and 5 was partly allowed. The State appeals challenging acquittals of various Accused were dismissed along with the revision filed by the de facto complainant. Hence, these appeals, by the State and the de facto complainant. 10. Admittedly all the convicts have by now served out their sentences. Some of the Accused have even died. 11. An examination of the record in these appeals left us in distress. The judgments of the Sessions Courts as well as the High Court leave too much to be desired. 12. We notice the following striking features from the judgment of the Sessions Court that: (i) Charges have not been framed in accordance with the requirements of the Code of Criminal Procedure; (ii) There appears to be a charge (however defectively framed), conviction and sentencing of 4 Accused for an offence Under Section 148 Indian Penal Code; (iii) There is an omnibus accusation that the Accused committed offences falling Under Sections 143, 147, 148 and vicariously liable by virtue of Section 149 Indian Penal Code for the offence of Section 302 Indian Penal Code; (iv) The judgment does not contain any clear fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear 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 be remembered that it is a case where three persons died and five persons were injured allegedly in an attack by all the Accused. Causing death to each one of the three persons or causing injury to each one of the five persons is a distinct offence. Similarly, an offence Under Section 307 is a distinct offence specific to a particular victim. The offences Under Sections 147 and 148 are distinct offences. Section 149 Indian Penal Code does not create a separate offence but only declares the vicarious liability of all the members of an unlawful assembly in certain circumstances. 14. It was held by a three-judge bench of this Court in Shambhu Nath Singh and Ors. v. State of Bihar AIR 1960 SC 725: Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the three different deceased, then distinct charges should have been framed specifying which of the Accused are charged for the offence of causing the death of which one of the three different deceased. Charges should also have been proved clearly indicating which of the Accused is charged for the offence Under Section 302 simpliciter or which of the Accused are vicariously liable Under Section 149 Indian Penal Code for causing the death of one or more of the three deceased. Of course, none of the Accused is eventually found vicariously guilty of the offence Under Section 302 Indian Penal Code read with Section 149 Indian Penal Code. 17. By definition of the offences covered Under Sections 147 and 148 Section 146 Indian Penal Code defines the offence of rioting. Section 147, Indian Penal Code prescribes punishment for offence of rioting. Section 148, Indian Penal Code prescribes punishment for offence of rioting armed with deadly weapons, a person cannot be charged simultaneously with both the offences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 Section 302 Indian Penal Code read with Section 149 Indian Penal Code also were not incorporated in the charge framed by the Sessions Judge. The Accused were not told that they had to face charges of being members of an unlawful assembly and the common object of such assembly was to commit murder of the deceased and in furtherance of that common object murder was committed and thereby they had a constructive liability and thus they committed the offence punishable Under Section 302 Indian Penal Code read with Section 149 Indian Penal Code. Of course the mere omission to mention Section 149 may be considered as an irregularity, but failure to mention the nature of the offence committed by them cannot be said to be a mere irregularity. Had this mistake been noticed at the trial stage, the Sessions Judge could have corrected the charge at any time before the delivery of the judgment. In the instant case, the Accused were told to face a charge punishable Under Section 302 simpliciter and there was no ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 public tranquility . Sections 141 to 158 deal with offences committed collectively by a group of 5 or more individuals. 23. Section 141 Indian Penal Code declares an assembly of five or more persons to be an 'unlawful assembly' if the common object of such assembly is to achieve any one of the five objects enumerated in the said Section. See Yeshwant and Ors. v. State of Maharashtra, (1972) 3 SCC 639 One of the enumerated objects is to commit any offence. Section 40 offence .-Except in the Chapters and Sections mentioned in clauses 2 and 3 of this section, the word offence denotes a thing made punishable by this Code. The words falling Under Section 141, Clause third or other offence cannot be restricted to mean only minor offences of trespass or mischief. These words cover all offences falling under any of the provisions of the Indian Penal Code or any other law. Manga alias Man Singh v. State of Uttarakhand (2013) 7 SCC 629 The mere assembly of 5 or more persons with such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ope 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 more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 did not share the common object with those who had inflicted the fatal injuries (as proved by medical evidence); merely on the ground that the injuries inflicted by such members are relatively less serious and non fatal. 31. For mulcting liability on the members of an unlawful assembly Under Section 149, it is not necessary that every member of the unlawful assembly should commit the offence in prosecution of the common object of the assembly. Mere knowledge of the likelihood of commission of such an offence by the members of the assembly is sufficient. For example, if five or more members carrying AK 47 rifles collectively attack a victim and cause his death by gunshot injuries, the fact that one or two of the members of the assembly did not in fact fire their weapons does not mean that they did not have the knowledge of the fact that the offence of murder is likely to be committed. 32. The identification of the common object essentially requires an assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entions 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, 3 and 6 using their dhariya, all three deceased were caused injuries and murdered, and thus the Accused have committed criminal offence punishable Under Section 302, 149 and 114 of the Indian Penal Code. 35. Issue No. 2 makes a reference to all the Accused put to trial along with absconding Accused (put to trial subsequently in Sessions Case No. 58) in the context of the offences of the unlawful assembly and rioting. Issue No. 4 does not make a reference to all the Accused , in the context of the offences Under Sections 302 read with Section 149 Indian Penal Code. But in view of the reference to the illegal (obviously the learned Judge meant unlawful) assembly we assume that the Sessions Court intended to examine the vicarious liability Under Section 149 of all the Accused in the context of the death of the three victims. Since the prosecution invoked Section 149, charges should have been framed specifying which of the Accused are sought to be punished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh 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, there are certain discrepancies in their evidence regarding the part played by them, the weapons carried by them etc., that in our opinion is natural as all the Accused, 17 in number came all of a sudden and started assaulting and that too during night hours when visibility was also low. Because of the same, the learned trial judge acquitted A-2, A-3, A-4, A-6, A-7, A-8, A-9, A-11, A-13, A-14 and A-15 by giving benefit of doubt. In other words, the learned trial judge disbelieved the case of the prosecution of unlawful assembly and convicted the accused of their individual act. After carefully examining the evidence on record, we are of the view that the presence of A-2, A-4, A-9 and A-15 who were alleged to have carried sticks, is not established. The complainant involved them in his further statement. Likewise other PWs are also contradicted about the presence of these accused with their previous statement. Apart from that in the post mortem re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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. A submission was made that there was tampering with the record to screen the offence. Impugned judgment Para 6. ... Finally, Mr. Shethna submitted that investigation in the instant case is also not free from doubt. According to him, the manner in which the FIR given by A-7, being the first in point of time, was treated and the manner in which the investigating officer expresses his ignorance in the hospital of the erasure made in the station diary etc. would go to show that a deliberate attempt is made to falsely involve the Accused. This aspect of the matter has not been considered either by the trial Court or by the High Court. In fact, the judgment of the trial Court contains further details regarding this aspect of the matter but without recording any conclusive finding. 39. The question is whether this Court would be justified in reversing the finding of acquittal in the case on hand on the grounds that (i) the framing of charges is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. 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 of the Appellant. The following prophetic words of Justice V.R. Krishna Iyer In Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra, (1973) 2 SCC 793, para 6 deserve to be etched on the walls of every criminal court in this country: 6. ... The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the Accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned Author [Glanville Williams in 'Proof of Guilt'.] has sapiently observed, goes much beyond the simple fact that just one guilt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 constitutional responsibility of maintaining law and order by its ineffectiveness in the enforcement of criminal law. In our opinion, the reasons for such failure are many. Some of them are-(i) inefficiency arising out of either incompetence or lack of proper training in the system of criminal investigation; (ii) corruption or political interference with the investigation of crime; (iii) less than the desirable levels of efficiency of the public prosecutors to correctly advise and guide the investigating agencies contributing to the failure of the proper enforcement of criminal law; and (iv) inadequate efficiency levels of the bar and the members of the Judiciary (an offshoot of the bar) which contributed to the overall decline in the efficiency in the dispensation of criminal justice system. Over a period of time lot of irrelevant and unwarranted considerations have crept into the selection and appointment process of Publ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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