Paragraph numbers below are the court’s original numbering, recovered from the source text.
19. Thereafter, it has been opined that if charges framed against the appellant contain all the necessary ingredients to bring home to each of the member of the unlawful assembly, the offence, with aid of Section 149 of the IPC, and the prosecution proves the existence of an unlawful assembly with a common object, which is the offence, as also the membership of each appellant, nothing more is necessary. The effect of these observations is that Section 141 of the IPC only defines what is an unlawful assembly and in what manner the unlawful assembly conducts itself, and in what cases the common object would make the assembly unlawful is specified in the Sections thereafter, inviting the consequences of the appropriate punishment in the context of Section 149 of the IPC.
20. In KuldipYadav v. State of Bihar9, it has been opined in para 36 that a clear finding regarding the nature of the common object of the assembly must be given and the evidence discussed must show not only the common object, but also that the object was unlawful, before recording a conviction under Section 149 of the IPC. What is required is that the essential ingredients of Section 141 of the IPC must be established.
21. On examination of the aforesaid aspect, we are unable to come to a conclusion that there was any fatal flaw in the non-inclusion of Section 141 of the IPC while framing charges, as would render the complete trial illegal, or that it can result in a finding that there would be no occasion to invoke Section 149 of the IPC. Learned counsel appears not to have appreciated the judicial pronouncements in the correct perspective, as what is necessary for invoking Section 149 of the IPC has been set out in these judgments. It has nowhere been said that Section 141 of the IPC should be specifically invoked or else the consequences would be fatal. As long as the necessary ingredients of an unlawful assembly are set out and proved, as enunciated in Section 141 of the IPC, it would suffice. The actions of an unlawful assembly 9 (2011) 5 SCC 324 and the punishment thereafter are set out in the subsequent provisions, after Section 141 of the IPC, and as long as those ingredients are met, Section 149 of the IPC can be invoked.
22. In the factual context, it is observed that whatever be the altercation or argument between Sandeep and the seven accused, it resulted in the seven accused armed with deadly weapons coming to the site of the incident, being the under-construction house of the deceased, and all of them inflicting blows on the deceased. Rajesh Yadav, since deceased, not only inflicted a blow with a bahi, but also raised a lalkar that the deceased should be killed. All the other accused also inflicted blows on the deceased. Even the interventions of PW-7 & PW-8 did not result in their desisting from such assault, but on the other hand, even PW-7 and PW-8 received injuries as a result thereof. This is not a case where the common assembly proceeded to the site and subsequently decided to inflict the blows. It is not as if anyone incidentally joined the group, but all of them came together with a clear intent and acted upon that intent. It was not as if any of the accused ran away from the site, or ceased to have the intent to inflict blows, which resulted in the death of the deceased. The common object is, thus, writ large on its face. There were, at least, 24 injuries inflicted on the deceased, and both the courts below have found that the version given by PW-7 and PW-8 evoke confidence, who were themselves injured in the incident. Minor discrepancies were, thus, found to be a natural cause, where so many persons attacked suddenly. The accused were known to the eye- witnesses and, thus, there can be no case of mistaken identity. There was no unexplained delay in filing the FIR.
23. No doubt the IO had deposed that the liquor shops remain open up to 11 p.m., but that itself would not belie the story, as it is not difficult to conceive of the ability to obtain liquor at that hour, which is substantiated by the fact that the liquor was obtained and the persons at the site were having a drink after having run through the initial amount of liquor.
24. We may, however, notice that no doubt Sandeep ought to have been examined as also the other persons, Narender, who visited the initial altercation place subsequently. The prosecution undoubtedly faltered there. The question, however, is whether this would, in any manner, cast a doubt on the incident, or the manner of infliction of injuries on the deceased and the eye-witnesses, which resulted in the death of the DEV KARAN @ LAMBU v. STATE OF HARYANA [SANJAY KISHAN KAUL, J.] deceased. On an analysis of the facts of the present case, our answer would be in the negative. The saving grace, however, is that Surender, son of Bhagwan Singh had been examined, being PW-7, as the complainant, who has succinctly set out the scene. The injured witnesses knew the accused. That the site was an under construction site would not mean that there was no lighting at all so as to cause a confusion about the identity of the accused.
25. We may also notice that there are concurrent findings of the trial court and the appellate court, which have appreciated the evidence, and we do not think that this Court should convert itself into a third court of appeal for appreciation of evidence.
26. We are also unimpressed by the argument that the sentence may be converted into one under Section 304 Part II as a period of nine and a half years has been served by the accused, as a convict. The manner of the attack, the common object with which it was made, the nature of the injuries do not permit us to take a more compassionate view of the matter in this case, to only facilitate the accused in serving a lesser sentence, other than what the legislature mandates, i.e., the life sentence (the option only being the death sentence).
27. We, thus, find no merit in the case sought to be made out on behalf of the accused Nos.4 & 6.
28. A valiant endeavour was made by Mr. Basant, learned senior counsel on behalf of A-5, Suresh, on the substantive plea of absence from the site, i.e., no participation in the incident, but a case of mistaken identity. The crucial infirmity is stated to be the non-examination of Sandeep as a witness, who had the quarrel with A-2 and A-3. However, this aspect, we have already discussed aforesaid. Since the conviction is basically on the statement of PW-7 and PW-8, i.e., the injured witnesses, learned counsel sought to show some inconsistencies in the testimonies of the two witnesses, as also in the identification of A-5 by PW-7, the complainant, in the F.I. Statement. It was submitted that the original identification was of one Lala. In the FIR, it is stated that it was Suresh @ Lala (A-5). It was, thus, submitted that nothing has been explained as to how Lala became Suresh @ Lala in the FIR or how the IO recorded so. The inquest report is also stated to be only referring to Lala. Thus, the submission was that while the accused was Suresh, he was not known as Lala. Suresh was stated to be in his native village, and not at the site on the fateful date, but, that is an alibi which even other accused have pleaded.
29. Learned senior counsel sought to read extensively from the statement of PW-7 and PW-8. PW-8 has not alleged that A-5 inflicted any injury on his person, while PW-7 has specifically alleged that A-5 hit PW-8. On the other hand, PW-7 attributes a rafter blow on the leg of the deceased to A-5, while PW-8 does not state so specifically, but refers to blows given in general.
30. On examination of the aforesaid pleas, we would agree that these discrepancies fall under what has been labeled by the High Court as ‘minor discrepancies’, more so in an incident of this nature, where all the accused were inflicting blows on the deceased, at tandem. PW-7 and PW-8 also became victims of this attack, when they tried to intervene. It would be difficult to accept that in such a situation, the narration should be absolutely exact, rather there should be a broad consistency in what transpired at the time of the incident. To accept the plea of the learned senior counsel, which at first blush may seem to have some merit, on a deeper examination would amount to nit picking the testimony of the witnesses to somehow obtain an acquittal. We may also notice that there was no past enmity, which could be attributed against A-5 alone as to rope him in. In fact, the grievance of the deceased was about the collective behavior, in the past, of all the accused. This resulted in all the accused using the opportunity of a small verbal tiff with Sandeep, to come to the site of the incident, which was the under construction house of the deceased, to inflict the deadly blows on the deceased, culminating in his death.
31. Learned counsel for the State also invited our attention to the discussion in the impugned order qua the aspect of the identification of A-5 as under: “….In the FIR, accused Suresh has been described as Lala Ahir resident of Munthiya Kheri. The eye witnesses have, however, described/identified him as Suresh @ Lala, while appearing in the witnesses box. Undisputedly, accused Suresh is resident of Munthiya Kheri. The eye witness already knew him. This leads to the inference that he must have been known as Lala also and, thus, his presence at the spot cannot be doubted.” DEV KARAN @ LAMBU v. STATE OF HARYANA [SANJAY KISHAN KAUL, J.]
32. The testimony of PW-8 further shows that he had seen A-6 and other accused persons earlier when they had been identified to him, at that stage. It is in those circumstances that he identified all the accused. The fact also remains that A-3, A-4 and A-5 were arrested on the same day, though A-6 was arrested subsequently. The recovery of weapons was also made due to the disclosure statement of A-5. We are, thus, not persuaded to accept the plea of mistaken identity, as sought to be advanced by the learned senior counsel, which is what is stated to be the real case distinguishing A-5 from other accused.
33. We may also note that insofar as A-3 is concerned, all arguments of A-5 were adopted, except the argument about mistaken identity but then, that is the only plea of A-5, other than formally adopting the arguments of A-4 and A-6, which have already been rejected.
34. The net result of the aforesaid discussion is that all the four appeals must fail and are, thus, accordingly dismissed.
35. The accused are directed to surrender forthwith before the trial court, within a period of fifteen days from today, to serve out the remaining sentence.
36. Needless to say, if there is any remission earned, after serving out the appropriate sentence, their cases would be considered for release in terms of the norms of the State Government. Ankit Gyan Appeals dismissed.