CRIMINAL APPEAL NO. 426-DB OF 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: October 23, 2009. Parties Name Sukhwinder Singh alias Chhinda and others ..APPELLANTS VERSUS The State of Punjab ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE JUSTICE MRS. DAYA CHAUDHARY PRESENT: Mr. Vinod Ghai, Advocate, for the appellants Mr. Jasbir Singh Mour, Advocate, for appellant No. 2. Mr. D.S. Brar, Deputy Advocate General, Punjab, for the respondent - State JASBIR SINGH, J. ORDER. This order will dispose of two appeals, i.e., Criminal Appeal No. 426-DB of 2001( Sukhwinder Singh alias Chhinda and others v. The State of Punjab) and Criminal Appeal No. 396-DB of 2001(Beer Singh alias Beera v. State of Punjab) as these have been filed against one judgment and order dated July 13, 2001, vide which all the accused were found guilty for commission of an offence punishable under Section 302 read with Section 149 IPC and were sentenced to undergo rigorous imprisonment for CRIMINAL APPEAL NO. 426-DB OF 2001 -2- life and to pay a fine of Rs. 2,000/- each with a default clause. For facility of dictating judgment, facts are being taken from Criminal Appeal No. 426-DB of 2001. It was allegation against the appellants in both the appeals that they formed an unlawful assembly and in further of their common object, they had committed murder of Kulwinder Singh on November 8, 1998, at 12.30 AM, in the area of village Chandu Nangal, Police Station Dera Baba Nanak. Process of criminal law justice was set in motion on a statement (Ex. PA) made by Harwinder Singh (PW1), on the basis of which formal FIR Ex. PA/3 was recorded at 2.15 AM on November 8, 1998, in Police Station Dera Baba Nanak. Special report reached the concerned Ilaqa Magistrate at Batala, at 12.00 noon, on the same day. Case of the prosecution, as noted by the trial Court in para No. 3 of the impugned judgment, reads thus: “On 7.11.1998, at about 9 PM, Harwinder Singh along with Kulwinder Singh, were going out for their Tubewell, situated in the outskirts of the village, by the 'Phirni'. On the way, they met Rajinder Singh alias Brahman son of Gurbux Singh, who was coming on a cycle from the opposite direction. Cycle of Rajinder Singh struck against Kulwinder Singh as a result whereof some altercation ensued between Kulwinder Singh and Rajinder Singh. In the meanwhile, Sukhwinder Singh alias Chhinda and Balwinder Singh, brothers of Rajinder Singh, also came at the spot and started pelting brick bats as a result whereof Ranjit Singh son of Santokh Singh, cousin of CRIMINAL APPEAL NO. 426-DB OF 2001 -3- Kulwinder Singh sustained injuries. Ranjit Singh injured was shifted to the Civil Hospital Dera Baba Nanak by Harwinder Singh, Kulwinder Singh, Makhan Singh and Joginder Kaur. Said Joginder Kaur is none else but the mother of Ranjit Singh. After admitting Ranjit Singh, in the hospital all the four namely Harwinder Singh, Kulwinder Singh, Makhan Singh and Joginder Kaur, set out for their village. Kulwinder Singh and Joginder Kaur were on a scooter and they were being followed by Makhan Singh and Harwinder Singh, on a tractor. When Kulwinder Singh and Joginder Kaur reached near Pakhoke in the area of village Chandu Nangal, at about 12.30 mid-night, all the accused, namely, Sukhwinder Singh, Surinder Singh, Beer Singh and Balwinder Singh, duly armed with Dangs appeared there on a Tractor. The accused persons stopped the Tractor in front of the scooter of Kulwinder Singh, dragged said Kulwinder Singh, in the nearby paddy fields and gave him Dang blows. Rajinder Singh gave a Dang blow to Kulwinder Singh, which hit on the left side of his forehead. Sukhwinder Singh gave Dang blow which hit Kulwinder Singh on the right side of his forehead. Beer Singh, accused gave a Dang blow to Kulwinder Singh, which hit on his head. Balwinder Singh and Surinder Singh accused also gave Dang blows to Kulwinder Singh, which hit on his right flank, back side of left shoulder and head. Thereafter Kulwinder Singh raised death alarm, consequent whereupon all the accused fled away along with their weapons, leaving their Tractor at the spot of occurrence. CRIMINAL APPEAL NO. 426-DB OF 2001 -4- This occurrence was witnessed by Harwinder Singh, Makhan Singh and Joginder Kaur. Kulwinder Singh, was taken to Civil Hospital Dera Baba Nanak on the Tractor, but he breathed his last on the way.” It was further case of the prosecution that Harawinder Singh left Makhan Singh (PW2) near the dead body and himself went to the Police Station to lodge a report. On his way, he met the Investigating Officer – SI Surjit Singh (PW12), who recorded his statement, whereupon FIR was registered against the appellant – accused. The Investigating Officer prepared inquest report of the dead body and sent it for post-mortem examination, which was conducted by Dr. Gurmit Singh Chhina (PW10) on November 8, 1998, at 3 PM. He found the following injuries on the person of the deceased: “1. Reddish abrasion 1 ½ x ½ cm on left side of forehead 2 cm from midline and 4 cm left upper eye brow. 2. Reddish abrasion 1 x ½ cm on right side of forehead 1 cm below anterior hair-line and 6 cm from right eye brow. 3. Diffused swelling 8 cm x 7 cm on left part of occipital region behind right ear. 4. Scabbed 3 ½ x 1 ½ cm on right side of lower part of chest 19 cm below right nipple. 5. Reddish abrasion 1 ½ x ½ cm on right leg front and middle region. 6. Reddish abrasion 4 x ½ cm on left side of chest back on scapular region. CRIMINAL APPEAL NO. 426-DB OF 2001 -5- 7. Reddish abrasion 2 x ½ cm on left upper arm front and outer side.” It was further observed that on opening of injury No. 3, fracture of skull bone and clotted blood was found . Regarding other injuries, it was stated that these were simple in nature. Cause of death was shock and hemorrhage due to multiple injuries, which were ante mortem in nature and sufficient to cause death in ordinary course. The Investigating Officer then went to the spot and recorded statements of other witnesses. He also took into his possession tractor, left at the spot by the appellant – accused, against recovery memo. Scooter of the deceased was also taken into possession in the same manner. On November 9, 1998, Sukhwinder Singh and Surinder Singh, appellants – accused were arrested. Rajinder Singh, appellant – accused, was arrested on November 10, 1998. Beer Singh, appellant – accused in Criminal Appeal 396-DB of 2001was arrested on November 11, 1998, and Balwinder Singh was arrested on November 14, 1998. On interrogation, all the accused suffered disclosure statements, which led to the recoveries of weapons of offence, i.e., wooden sticks, which were taken into possession against seizure memos. He also recorded supplementary statement of Harvinder Singh (PW1), wherein it was stated that injury on head of the deceased was caused by Beer Singh alias Bira. On completion of investigation, final report was put in Court for trial. The appellants – accused were charge-sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced 13 witnesses and also brought on record documentary evidence to prove its CRIMINAL APPEAL NO. 426-DB OF 2001 -6- case. On conclusion of prosecution evidence, statements of the appellants – accused were recorded under Section 313 Cr.P.C. Incriminating material, existing on record, was put to them. They denied the same, claimed innocence and pleaded false implication. They also led evidence in defence. The trial Court, on appraisal of evidence, found the appellants – accused guilty for the offence, with which they were charged and accordingly convicted and sentenced them as mentioned in earlier part of this order. Shri Vinod Ghai, Advocate, counsel for the appellants, has vehemently contended that the FIR was ante timed and further that the alleged eye witnesses, i.e., Harwinder Singh (PW1) and Makhan Singh (PW2) were not present at the spot when occurrence is alleged to have taken place. By making reference to the sequence of events, he has also made an attempt to show that to cover the delay, story of injuries caused to Ranjit Singh (PW5) by the appellant – accused was concocted and to support that, medical evidence was fabricated. By taking us through the statements made by PW1, PW2 and PW5 and also the Investigating Officer, he argued that the conduct of the witnesses was most unnatural. Though available, they made no attempt to save the deceased. Joginder Kaur PW , who was sitting on scooter of the deceased, did not receive any injury. He further argued that where dead body remained, from the time of registration of FIR till its post-mortem Examination is not coming out from the record. He further, by making reference to injury No. 4, tried to show that the deceased remained alive for three / four hours before death, which runs contrary to the version projected by the prosecution. In the alternative, without conceding anything, he argued that all male members of the family have been involved without any justification and further that the trial Court was not justified in CRIMINAL APPEAL NO. 426-DB OF 2001 -7- convicting the appellants in Criminal Appeal No. 426-DB of 2001 with the aid of Section 149 IPC. Regarding appellant in Criminal Appeal No. 396-DB of 2001, he argued that even his act would not fall within the purview of Section 302 IPC. He brought it to the notice of the Court that all the appellants had undergone more than 5 ½ years of actual sentence and at the maximum they can be held liable for their own individual acts. The prosecution has miserably failed to show that common object of all the appellants was to commit murder of the deceased. He prayed that the appeals be allowed, judgment and order under challenge be set aside and the appellants – accused be acquitted of the charges framed against him. Prayer made by counsel for the appellants has vehemently been opposed by Shri D.S. Brar, Deputy Advocate General, Punjab, who , by making reference to the statements of the eye -witness Ranjit Singh (PW5) and the Investigating Officer tried to justify the judgment and order passed by the trial Court. He further argued that lodging of the FIR in this case was very prompt, which had left no scope for any concoction by the prosecution. Regarding minor discrepancies here and there in the statements, made by the eye-witnesses, he argued that benefit of the same can not go to the appellants – accused, once their guilt is proved on record. He further argued that all the accused came together fully armed and way laid the deceased and caused injuries to him, which clearly shows that their common object was to kill Kulwinder Singh deceased. By stating as above, he justified the invoking of the provisions of Section 149 IPC by the trial Court, in the case. He prayed that the appeals having no substance be dismissed. After hearing counsel for the parties, this Court is satisfied that CRIMINAL APPEAL NO. 426-DB OF 2001 -8- participation of the accused in the crime was proved on record. PW1 Harvinder Singh has specifically stated that in the evening, a scuffle had taken place between the parties, which resulted into receipt of brick bat injuries by Ranjit Singh (PW5). Harvinder Singh, Makhan Singh, Joginder Kaur etc. took Ranjit Singh (PW5) to Civil Hospital, Dera Baba Nanak, for treatment, where he was medico legally examined by Dr. Satinder Singh Bedi (PW11),on November 7, 1998, at 10.45 PM. He found the following injuries on the person of Ranjit Singh: “1. A laceration about 1 cm x .25 cm lying transversely over the left cheek just below the left eye. Blood clots along with fresh bleeding was present in the wound. 2. A laceration of shape with each side about 1 cm x .25 cm lying closed to injury No. 1 just near the left naso labial fold. Blood clots along with fresh bleeding was present in the wound. 3. A tender swelling in an area of about 4 cm x 3 cm underneath both the above injuries was present over the left cheek.” Merely because, there is no proof that intimation was sent by the doctor to the police, regarding receipt of injuries by Ranjit Singh is no ground to discard version of the prosecution. PW1 in his statement has specifically stated that they never intended to inform the fact of occurrence to the police. Rather they were in favour of a compromise. Medical examination of Ranjit Singh was got conducted to use it, only if the opposite party may get any false case registered against them. It appears that the Doctor on their request had not sent intimation to the Police Station. At no stage, it has CRIMINAL APPEAL NO. 426-DB OF 2001 -9- come on record that injuries to Ranjit Singh were self-suffered. Ranjit Singh (PW5) has also supported version of the prosecution regarding the incident which had taken place between the parties in the evening on November 7, 1998. The statements made by PW1 and PW2 amply prove on record that they along with Joginder Kaur etc. had taken Ranjit Singh (PW5) for medical treatment to Civil Hospital, Dera Baba Nank. After his admission in the Hospital, they were going back to their village when they were way laid by the appellants accused. The deceased was on a scooter along with Joginder Kaur PW. His scooter was stopped by the appellants by bringing their tractor in front of the same. Then the deceased was dragged to the nearby paddy fields. All the appellants – accused were armed with wooden sticks. Both the witnesses have further stated that Rajinder Singh, appellant, gave a stick blow to Kulwinder Singh deceased at left side of his forehead. Sukhwinder Singh gave a stick blow to the deceased at right side of his forehead. Beer Singh accused gave a stick blow to Kulwinder Singh at his head. Balwinder Singh and Surinder Singh, appellants – accused, gave stick blows to the deceased at his right flank, back side of left shoulder and head. On raising alarm, all the appellants – accused fled away from the spot leaving behind their tractor. These witnesses have further stated that they immediately shifted the deceased to the Civil Hospital. However, he could not be saved. Matter was then reported to the police at 1.30 AM. Incident had occurred at 12.30 AM. FIR was concluded at 2.15 AM on November 8, 1998. Merely because the special report reached the Ilaqa Magistrate at 12.30 PM on that very date is no ground to say that FIR was ante timed. CRIMINAL APPEAL NO. 426-DB OF 2001 -10- As per statement made by Dr. Satinder Singh Bedi (PW11), Ranjit Singh (PW5) was medico legally examined at 10.45 PM on November 7, 1998. After getting first aid to above named witness, it is expected that the deceased and the others may have reached the place of occurrence by 12.30 AM on November 8, 1998. It has also come on record that in the FIR, no specific injury was attributed to Beer Singh, appellant – accused in Criminal Appeal No. 396-DB of 2001. However, it has come on record that supplementary statement of PW1 was recorded by the Investigating Officer, wherein specific injury was attributed to the above named appellant, at head of the deceased. It was night time. PW1, being a close relative, may be nervous and may have failed to pin point injury given by Beer Singh, appellant, to the deceased. It is necessary to note that name of Beer Singh, appellant, was specifically mentioned in the FIR as one of the assailants. Recovery of weapon of offence from the appellant – accused is fully proved on record. The defence version has rightly been discarded by the trial Court as it does not inspire any confidence. Further the testimony of the witnesses cannot be discarded merely because they failed to intervene when the appellants – accused were causing injuries to the deceased. The witnesses were less in number. One out of them was a lady and they were unarmed. Occurrence had taken place in a very swift manner. It appears that before the witnesses could muster courage/react, the assailants ran away from the spot by causing injuries to the deceased. In view of above, it can safely be said that all the assailants had participated in the incident, which has resulted into death of Kulwinder Singh. Now it is to be seen whether all the appellants – accused had a CRIMINAL APPEAL NO. 426-DB OF 2001 -11- common object to kill the deceased or not? Whether they can be constructively held liable for act done by Beer Singh, appellant, which resulted into causing death of the deceased? It is necessary to note here that all other injuries except one caused by Beer Singh were simple in nature. The circumstances, under which the the provision of Section 149 I.P.C. can be made applicable to fasten criminal liability came up for consideration before the Hon'ble Supreme Court in Siyaram and others v. State of Madhya Pradesh, 2009 (4) Supreme Court Cases 792, in which by taking note of ratio of various judgments of the Hon'ble Supreme Court, it was observed as under: “10. “12. A plea which was emphasised by the (appellant) 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 an unlawful assembly, CRIMINAL APPEAL NO. 426-DB OF 2001 -12- 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 has 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 a 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 CRIMINAL APPEAL NO. 426-DB OF 2001 -13- object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly. 13.'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. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. 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, CRIMINAL APPEAL NO. 426-DB OF 2001 -14- 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 eo instanti. 14.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 a 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 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. CRIMINAL APPEAL NO. 426-DB OF 2001 -15- 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