2016 (10) TMI 1106 - SC - Indian Laws

Crowd of unlawful assembly commits an offence - conviction and sentence under Section 302/149 of the IPC - Held that - Offence committed in prosecution of common object of an unlawful assembly by one person renders members of unlawful assembly sharing the common object vicariously liable for the offence. The common object has to be ascertained from the acts and language of the members of the assembly and all the surrounding circumstances. It can be gathered from the course of conduct of the members. It is to be assessed keeping in view the nature of the assembly, arms carried by the members and the behavior of the members at or near the scene of incident. Sharing of common object is a mental attitude which is to be gathered from the act of a person and result thereof. No hard and fast rule can be laid down as to when common object can be inferred. When a crowd of assailants are members of an unlawful assembly, it may not be possible for witnesses to accurately describe the part played by each one of the assailants All the five eye witnesses have named A1 to A7. Other accused have not been named by PW11 and PW18. By way of abundant caution, we give benefit of doubt to A10 and A11 for the reason that they have not been named by PW11 and PW18 and also for the reason that PW10 has attributed specific role only to A1 to A7. But as far as A1 to A7 are concerned (A2 has already died) all the five witnesses have consistently named them. A1 to A7 have been assigned specific role in assaulting the deceased. Their conviction and sentence under Section 302/149 of the IPC has to be upheld. For the above reasons, this appeal is partly allowed to the extent that appellant Nos.7 and 8 (Babu Rama Berad and Balu Naradeo Berad) are given benefit of doubt and are acquitted. They be released from custody, if not required in any other case. Appeal of other appellants is dismissed. However, appellant Nos.5 and 6 (Nivrutti Sakharam Koyale and Krishna Sakharam Koyale) will continue to remain on bail for one month and if they make an application for remission of the remaining sentence on the ground of advanced age within one month, they will continue to remain on bail thereafter till the decision of the said application by the appropriate authority. If their application for remission is not accepted, they will surrender to serve out the remaining sentence.

Summary

Issues Involved:
1. Conviction under Sections 147, 149, 302 read with Sections 149, 324, and 326 of the Indian Penal Code.
2. Reversal of acquittal by the High Court.
3. Evaluation of evidence and credibility of witnesses.
4. Role of common object in unlawful assembly.
5. Treatment of telephonic message as FIR.
6. Appellate court's power to reverse acquittal.

Detailed Analysis:

1. Conviction under Sections 147, 149, 302 read with Sections 149, 324, and 326 of the Indian Penal Code:
The appellants were convicted by the High Court for the murder of Bibhishan Vithoba Khadle and causing injuries to six others. The trial court had acquitted all accused, but the High Court reversed this decision for accused Nos. 1, 2, 3, 4, 5, 6, 7, 10, and 11, leading to their conviction under the aforementioned sections. The High Court found that the trial court's acquittal was based on "totally perverse approach" and that the contradictions and omissions in witness testimonies were not material enough to affect the prosecution's case.

2. Reversal of Acquittal by the High Court:
The High Court reversed the acquittal of the appellants based on the consistent evidence of injured eye-witnesses, despite minor contradictions and omissions. The High Court observed that the trial court's reasons for acquittal were not sufficient and termed the trial court's approach as perverse. The High Court emphasized that the trial court had ignored the principles of appreciating evidence in criminal cases and mechanically rejected the evidence of all witnesses.

3. Evaluation of Evidence and Credibility of Witnesses:
The prosecution's case relied heavily on the testimonies of eye-witnesses PW10 Satyabhama, PW11 Dagadu, PW15 Bibhishan Kshirsagar, PW18 Chaturbhuj Khade, and PW12 Kernath Koyale. The High Court found their testimonies credible and consistent, despite minor contradictions. The trial court's rejection of their evidence was found to be unjustified. The Supreme Court reiterated that discrepancies not touching the core of the case are not enough to reject the evidence as a whole.

4. Role of Common Object in Unlawful Assembly:
The Supreme Court discussed the principles of vicarious liability under Section 149 IPC, emphasizing that all members of an unlawful assembly are liable for the acts committed in prosecution of the common object. The Court noted that the common object can be inferred from the conduct of the members and the surrounding circumstances. The evidence showed that the accused had formed an unlawful assembly with the common object of launching an assault.

5. Treatment of Telephonic Message as FIR:
The appellants argued that the telephonic message by PW12 should have been treated as the FIR. However, the Supreme Court held that cryptic information cannot be treated as an FIR unless it sufficiently discloses the nature of the offense and the manner in which it was committed. The Court cited previous judgments to support this view and concluded that the telephonic message did not meet the criteria to be considered as an FIR.

6. Appellate Court's Power to Reverse Acquittal:
The Supreme Court affirmed that the appellate court has full power to review evidence and reach its own conclusions. The High Court was justified in reversing the acquittal as the trial court's view was found to be perverse. The appellate court must consider the reasoning of the trial court and can reverse the acquittal if it finds the trial court's view to be unreasonable and perverse.

Conclusion:
The Supreme Court upheld the High Court's decision to convict accused Nos. 1 to 7 under Section 302/149 IPC, while acquitting accused Nos. 10 and 11 due to lack of specific evidence against them. The Court emphasized the importance of evaluating the credibility of witnesses and the role of common object in unlawful assembly, while also clarifying the treatment of telephonic messages as FIRs. The appellate court's power to reverse acquittal was affirmed, provided the trial court's view is found to be perverse.