TaxTMI 
TaxTMI 
2018 (5) TMI 1989
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....o village Nana Ankadia and found three dead bodies lying near the shop of Bhikabhai and after getting some further information, he had gone to Amreli Hospital and recorded complaint from Vinu Ranchhod, which was registered at about 1.30 a.m. on 12.07.1992. On the basis of the said complaint, PSI, Rajput started investigation by recording statements, drawing panchnamas and sending the dead bodies for post mortem etc." 2. On completion of investigation, a charge-sheet came to be filed against 15 Accused because the remaining two Accused A-16 and A-17 were absconding for some time. The matter was committed to the Sessions Court of Amreli as offences were exclusively triable by the Court of Sessions. In Sessions Case No. 118/1992, trial was conducted against 15 Accused. The trial insofar as the two absconding Accused was segregated from the trial of the remaining even after they were apprehended and they were put to trial separately in Sessions Case No. 58/98 before the Special Judge of the Fast Track Court, Amreli. 3. In Sessions Case No. 118/1992, the Sessions Court by its judgment dated 17.01.1996 recorded the conviction of A-1, A-5, A-10 and A-12 as follows: Prosecut....
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....he High Court of Gujarat challenging conviction and sentence. The State of Gujarat filed Criminal Appeal No. 167/1996 challenging the acquittal of the remaining thirteen Accused. It must be mentioned here that the original complainant also filed a Criminal Revision Petition No. 138/1996 challenging the decision of the Sessions Court acquitting eleven of the Accused. 7. The two absconding Accused Nos. 16 and 17 "were tried separately for the offences punishable Under Sections 147, 148, 120B, 302 and 307 read with Section 149 of Indian Penal Code and Under Section 25(1)(A) of the Arms Act and Under Section 135 of Bombay Police Act in Sessions Case No. 58/98." 2.2, Judgment of the High Court. They were found not guilty by the Fast Track Court, Amreli by judgment dated 19.07.2003. The State of Gujarat filed Criminal Appeal No. 1226/2003 against the acquittal of Accused Nos. 16 and 17. 8. All the appeals and the revision were clubbed together and disposed of by the High Court by a common judgment dated 5.10.2004, which is the subject matter of the various appeals before us. 9. The appeal of A-10 and A-12 was dismissed by the High Court. The appeal of Accused Nos. 1 and 5 was pa....
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.... 13. The judgment in Sessions Case No. 118/1992 commences with an omnibus statement: In this case against the present Accused, there are charges of offences Under Sections 302, 307, 324, 147, 148, 149, 120B of Indian Penal Code and Section 25(1)(aa) of the Arms Act and Section 135 of the Bombay Police Act, for these offences the charge sheet is filed. Later in the same paragraph it is stated: Fifteen Accused in the case have remained present before the court, my learned predecessor has on 21/3/1994 below Exh. 1 on charges of offences punishable Under Sections 143, 147, 148, 302 read with 149, 120-b, 307 read with 147, 114, 120-b of the Indian Penal Code and against the Accused Nos. 7, 8 and 11 charges Under Section 27 of the Arms Act, and against all the Accused the offence punishable Under Section 25 of the Indian Telegraphs Act, and for carrying weapons the charges of violation of the Notification by the District Magistrate Amreli, for which against the Accused Nos. 2, 4, 9, 15, 10, 12, 13, 1, 3, 6, 7 and 8 the charges of offence punishable Under Section 135 of the Bombay Police Act, charges were pronounced against the Accused. It appears from the above t....
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....as held by this Court in Esher Singh v. State of Andhra Pradesh (2004) 11 SCC 585, para 20: It is the precise formulation of the specific accusation made against a person who is entitled to know its nature at the earliest stage. A charge is not an accusation made or information given in the abstract, but an accusation made against a person in respect of an act committed or omitted in violation of penal law forbidding or commanding it. In other words, it is an accusation made against a person in respect of an offence alleged to have been committed by him. A charge is formulated after inquiry as distinguished from the popular meaning of the word as implying inculpation of a person for an alleged offence as used in Section 224 of the Indian Penal Code. 16. In the case on hand where three persons died, the charge Under Section 302 must have been framed on three counts against specifically named Accused with respect to each of the deceased. Assuming for the sake of argument, that all the 17 persons are Accused of causing the death of each one of the three deceased, distinct charges should have been framed with respect to each of the deceased. It is also necessary that the co....
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....used constituting an 'unlawful assembly' are alleged to have attacked and killed one or more persons, it is not necessary that each of the Accused should inflict fatal injuries or any injury at all. Invocation of Section 149 is essential in such cases for punishing the members of such unlawful assemblies on the ground of vicarious liability even though they are not Accused of having inflicted fatal injuries in appropriate cases if the evidence on record justifies. The mere presence of an Accused in such an 'unlawful assembly' is sufficient to render him vicariously liable Under Section 149 Indian Penal Code for causing the death of the victim of the attack provided that the Accused are told that they have to face a charge rendering them vicariously liable Under Section 149 Indian Penal Code for the offence punishable Under Section 302 Indian Penal Code. Failure to appropriately invoke and apply Section 149 enables large number of offenders to get away with the crime. 20. This Court in Bala Seetharamaiah v. Perike S. Rao (2004) 4 SCC 557, para 8 held: 8. Unfortunately, the Sessions Judge did not frame charge against the Accused persons for offence punisha....
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....rosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons proved to be members cannot escape the consequences arising from the doing of that act which amounts to an offence. Section 149 Indian Penal Code is one such provision. It is a provision conceived in the larger public interest to maintain the tranquility of the society and prevent wrong doers (who actively collaborate or assist the commission of offences) claiming impunity on the round that their activity as members of the unlawful assembly is limited. The responsibility of the prosecution and/or of the Court (in a case like the one at hand where large numbers of people (5 or more) are collectively Accused to have committed various offences and subjected to trial)-in examining whether some of the members of such group are vicariously liable for some offence committed by some of the other members of such group-requires an analysis. Such analysis has two components-(i) the amplitude and the vicarious liability created Under Section 149; and (ii) the facts which are required to be proved to hold an Accused vicariously liable for an offence. ....
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....stinction between the offences under 146 and 148. To constitute an offence Under Section 146, the members of the 'unlawful assembly' need not carry weapons. But to constitute an offence Under Section 148, a person must be a member of an unlawful assembly, such assembly is also guilty of the offence of rioting Under Section 146 and the person charged with an offence Under Section 148 must also be armed with a deadly weapon. See Sabir v. Queen Empress, (1894) ILR 22 Cal 276; In Re: Choitano Ranto and Ors. AIR 1916 Mad 788 26. Section 149 propounds a vicarious liability See Shambu Nath Singh v. State of Bihar AIR 1960 SC 725 in two contingencies by declaring that (i) if a member of an unlawful assembly commits an offence in prosecution of the common object of that assembly, then every member of such unlawful assembly is guilty of the offence committed by the other members of the unlawful assembly and (ii) even in cases where all the members of the unlawful assembly do not share the same common object to commit a particular offence, if they had the knowledge of the fact that some of the other members of the assembly are likely to commit that particular offence in prosecution....
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....The assembly should consist of at least five persons; and (ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein. 29. For recording a conclusion, that a person is (i) guilty of any one of the offences Under Sections 143, 146 or 148 or (ii) vicariously liable Under Section 149 for some other offence, it must first be proved that such person is a member of an 'unlawful assembly' consisting of not less than five persons irrespective of the fact whether the identity of each one of the 5 persons is proved or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the 5 enumerated objects specified Under Section 141 Indian Penal Code. 30. The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual members of t....
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....nd 4 read as follows: (2) Whether the prosecution has proved that, the Accused and the persons of the complainant party are the Kadva and Leuva Patels of teh Nana Ankadiya, Taluka Amreli, and due to the enmity between them on 11/7/92 at about 22-15 at night near the Nana Ankadiya village Bus stand, near the shop of Bhikhabhai in the public place all the Accused in this matter and the absconding Accused Chandubhai Vallabhbhai and Vallabhbhai Khodabhai, thus all of these had constituted an illegal assembly and with the common intention of killing the Leuva Patels of the Nana Ankadiya village, attempted to murder, and at that above time and place, all these Accused and the absconding Accused with the intentions of achieving their common object, caused rioted and committed criminal offence punishable Under Section 143, 147? (4) Whether the prosecution is able to prove that, the Accused had for achieving the common object of their illegal assembly, made use of the weapons carried by them and had assaulted Chhaganbhai Premjibhai Patel, Madhubhai Mohanbhai Patel and Pragjihai Parbatbhai Patel and fired at them and by such act they were well aware that they would certainl....
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....ipated in the attack. In such a case even assuming for the sake of argument the identity of the Accused (other than the 4 convicts) is not proved beyond reasonable doubt, A-1 and A-5 who were found to have been guilty of the offence Under Section 148 should normally have been found vicariously guilty of the offence of murder along with A-10 and A-12 (provided of course that they are not prejudiced by the improper framing of charges). The record is not very clear whether the Accused were told they were to face a charge of being members of the unlawful assembly, whose common object was to commit murder of the three deceased. 37. Coming to the conviction of A-10 and A-12, the mere statement in the Sessions Court's judgment that two of the Accused were found guilty of offence punishable Under Section 302 of the Indian Penal Code falls short of the requirement of law in a case where more than one person died in the transaction. Equally the other two Accused who are convicted of other offences mentioned earlier are entitled to know the details of the offence for which they are convicted. 38. We shall now examine the judgment of the High Court. The High Court completely failed t....
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....osecution vis-o?=-vis the vicarious liability of the Accused Under Section 149. The High Court recorded a finding with reference to 4 Accused (A-2, A-4, A-9 and A-15) who according to the prosecution were alleged to have carried sticks, that there is no evidence on record to prove the same on three grounds: (i) that their names were not to be found in the FIR (ii) that there were improvements in the evidence of the PWs at various stages regarding the presence of the four Accused and (iii) that the medical evidence does not disclose any injury which could have been attributed to the beatings by sticks. In our opinion, the first two reasons given by the High Court are legally tenable, however, the third reason, i.e. the absence of injuries attributable to a stick, need not necessarily result in a conclusion that the Accused were not present in the unlawful assembly. But the absence of such injuries cannot said to be an irrelevant consideration in arriving at a conclusion whether the four Accused participated in the unlawful assembly in the background of the other two factors mentioned above. But a similar analysis with respect to the seven of the other Accused who were given the b....
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....udicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided-- that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.--A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the Accused within the meaning of this section. of the Indian Evidence Act. 41. There is no material on record to warrant the procedure adopted by the Sessions Court. On that single ground, the entire trial of Sessions Case No. 58/98 is vitiated and is not in accordance with procedures established by law. It is a different matter that both the Accused put to trial in Sessions Case No. 58/98 were acquitted by the Fast Track Court and the High Court did not....
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.... our opinion, would not serve any useful purpose because as already indicated some of the Accused have died in the interregnum. We are not sure of the availability of the witnesses at this point of time. Even if all the witnesses are available, how safe it would be to record their evidence after a quarter century and place reliance on the same for coming to a gist conclusion regarding the culpability of the Accused? 44. We are of the opinion that the only course of action available to this Court is that the victims of the crime in this case are required to be compensated by the award of public law damages in light of the principles laid down by this Court in Nilabati Behera (Smt.) alias Lalita Behera (Through the Supreme Court Legal Aid Committee) v. State of Orissa and Ors., (1993) 2 SCC 746. In the circumstances, we are of the opinion that the families of each of the deceased should be paid by the State an amount of Rs. 25,00,000/- (Rupees Twenty Five Lacs Only) each and the injured witnesses, if still surviving, otherwise their families are required to be paid an amount of Rs. 10,00,000/- (Rupees Ten Lacs Only) each. The said amount shall be deposited within a period of eight....