ROHTAS & ANR. versus STATE OF HARYANA

7. The Orthopaedic Surgeon, Dr Ajay Goel (PW-10), deposed that he was posted as Registrar in the Department of Orthopaedics, X- Ray 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 (PW-12), 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 (PW- 6) and other formal police witnesses too deposed to substantiate the prosecution case.

8. The six-surviving accused in their statement under Section 313 of Code of Criminal Procedure, 1973 (“CrPC”) claimed that they were falsely implicated on account of local village politics. They also led defence evidence and produced Dr Varsha (DW-1) 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.

9. Analysing this substantial ocular and medical evidence, the learned Additional Sessions Judge, Sonipat negated the defence’s objection against reliance on testimony of PW-3, 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).

10. The High Court, in appeal, re-appraised the entire evidence and took further notice of the complainant’s admission that three of the ROHTAS v. STATE OF HARYANA [SURYA KANT, J.] 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 late-arriving 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 victim-complainant (PW-1).

11. These three remaining convicts, namely, Rohtas and Sanjay (jointly) and Bijender have assailed their conviction and sentence through these two criminal appeals. Contentions:

12. We have heard learned counsel for the appellants at considerable length and have perused the record in-depth. 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 Punjab1, and Dhupa Chamar v. State of Bihar2. Further reliance was placed on Subran v. State of Kerala3, 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 (PW-3) 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. 1 (1987) 1 SCC 679. 2 (2002) 6 SCC 506. 3 (1993) 3 SCC 32.

13. 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:

14. 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

15. 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 charge- sheeting, 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.

16. 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 ROHTAS v. STATE OF HARYANA [SURYA KANT, J.] 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.4 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 non-framing 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 re-trial may be ordered.5

17. The contention of the appellants to the contrary is nothing but hyper-technical. 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.6 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.

18. 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.

19. In fact, the law on this point has continuously been delved into and reiterated by this Court from time to time. A three-Judge Bench of 4 Nallapareddy Sridhar Reddy v. State of AP, 2020 SCC OnLine SC 60, ¶ 16-21. 5 Kantilal Chandulal Mehta v. State of Maharashtra, (1969) 3 SCC 166. 6 (1993) 3 SCC 722. this Court in Karnail Singh v. State of Punjab7, 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 subject-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.” (emphasis supplied)

20. The above-extracted position of law was further concretised in Willie (William) Slaney v. State of MP8 and by the majority in Chittarmal v. State of Rajasthan9. 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 Maharashtra10, 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 7 AIR 1954 SC 204. 8 AIR 1956 SC 116, ¶ 49. 9 (2003) 2 SCC 266, ¶ 14. 10 (1997) 7 SCC 41. ROHTAS v. STATE OF HARYANA [SURYA KANT, J.] 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. 5. 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. 6. 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 eye- witnesses and the evidence of the doctor who held the post- mortem 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 sharp-cutting instrument).” (emphasis supplied)

21. This position of law has finally been summed up very succinctly in Nallabothu Venkaiah v. State of AndhraPradesh11: “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 11 (2002) 7 SCC 117. 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.” (emphasis supplied)

22. 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.12

23. 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 eye-witness. 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.

24. 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 12 Mahbub Shah v. King Emperor, AIR 1945 PC 118, pp. 153-154. ROHTAS v. STATE OF HARYANA [SURYA KANT, J.] 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 Exhibit-P7, further punches holes in the mask of denial worn by the appellants.

25. 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 PW-3 and appropriate medical care by PGIMS Rohtak. Given such extreme injuries, we can fathom no rhyme or reason for either the complainant (PW-1) or his brother, Balwan (PW-3) to falsely implicate the appellants and allow the actual culprits to go scot-free. On the contrary, the candour of PW- 1 and the responses of PW-3 inspire confidence and provide undoubtable explanation of the incident.

26. That apart, even the requirements of Section 34 of IPC are well established as the attack was apparently pre-meditated. The incident was not in a spur-of-the-moment. 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 pre-planned 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 eye-witness, establishing their individual active participation in the crime. (ii) Independence of witnesses 27. It is true that the duty of the prosecution is to seek not just conviction but to ensure that justice is done.13 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 third-parties in every case at the time of incident, 13 Kumari Shrilekha Vidyarthi v. State of UP, (1991) 1 SCC 212. for most violent crimes are seldom anticipated. Any adverse inference against the non-examination 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.

28. 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 PW-3 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 29. 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 co-accused were all armed with deadly weapons. They surrounded the complainant and in a brutal attack caused him gruesome injuries and disabled him for life.

30. 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.

31. 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:

32. As a sequel to the above discussion, both the appeals are found to be without any merit so far as conviction of the appellants ROHTAS v. STATE OF HARYANA [SURYA KANT, J.] under Section 307 IPC is concerned, and are dismissed accordingly. However, their conviction under Section 148 is set-aside. Their bail bonds are cancelled and the State of Haryana is directed to take the appellants into custody to serve the remainder of their five-year sentence as awarded by the High Court. Divya Pandey Appeals disposed