In CRA No.D-36 of 2021 (O&M)-PUNJ HC- Mere presence of unlawful assembly cannot render a person liable unless it is proved that accused persons were actuated by a common object to commit some offence u/s 141 of IPC: P&H HC
Justices Ritu Bahri & Manisha Batra [25-05-2023]

Read Order: Jagtar Singh and others v. State of Punjab 

Tulip Kanth

Chandigarh, May 27, 2023: While reiterating that the accused cannot be convicted with the help of Section 149 of IPC where common object of an unlawful assembly is not proved, the Punjab and Haryana High Court has acquitted the appellants-accused in a murder case as the prosecution failed to prove the charges against the appellants.

Noting that the  accused  had been charge-sheeted and held guilty for commission of offence of murder with the aid of Section 149 of IPC, the Division Bench of Justice Ritu Bahri & Justice Manisha Batra stated, “Section 149 of IPC has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object under this provision. Mere presence of an unlawful assembly cannot render a person liable unless it is proved that there was a common object and they were actuated by that common object and the said object was to commit some offence as set out in Section 141 of IPC.”

The facts of this case were such that the complainant Baghail Singh informed that he along with Sukhjit Singh was present in his fields when his brother Subegh Singh was seen coming as a pillion rider from Fatehgarh Churian side on a Grey silver coloured Activa. Sanjiv Kumar @ Goru was riding the same. When Subegh Singh and Sanjiv Kumar reached near the fields, suddenly two bolero vehicles reached there. One was driven by accused Billa @ Hardev and Excise Contractor Nirmal Singh Randhawa was seen sitting besides him. Accused Aman, Jagtar Singh and Surjit Singh were sitting on the rear seats. 

In the second bolero, four workers of Excise Contractor Nirmal Singh Randhawa, not known by name to the complainant were found sitting. The accused struck their bolero vehicle against the Activa of Subegh Singh and Sanjiv Kumar due to which both of them fell down and suffered injuries. Subegh Singh tried to get up but the accused reversed their vehicle and again hit Subegh Singh. Both the victims died at the spot.

The complainant alleged that he had raised an alarm on hearing that the accused had fled away from the spot. He had rushed the victims to the hospital but they were declared to be brought dead. On the basis of his statement, a case under Sections 302, 427, 148 and 149 of IPC had been registered.The appeals in question were directed against the judgment on quantum of sentence passed by Additional Sessions Judge, Gurdaspur in Sessions Case whereby the appellants-accused had been held guilty.

On the issue of delay in lodging the FIR, the Bench opined that the delay quite often results in embellishment which is a creature of afterthought. On account of delay, report not only gets bereft of the advantage of spontaneity, but danger also creeps in of the introduction of colour version, exaggerated account or concocted story as a result of deliberation and consultation.

It was observed that the delay in registering the complaint when the police was present right from the inception was indeed a mystery and would, therefore, not justify either the actions of the complainant or of the police when the case was actually registered.

The Bench opined that from the act and conduct of not getting the formal FIR timely lodged and even the act and conduct of the police of not taking any steps for recording statements of material witnesses till formal FIR was lodged despite the fact that the police had come to know about the occurrence way earlier, an inference could certainly be drawn that the intervening time had been utilized by the complainant party for concocting a false story and for implicating the accused in this case.

Reiterating that any information derived from the witnesses during investigation and recorded in the index of a map must be proved by the witnesses concerned and not by the Investigating Officer, the Bench held that since, in this case, the information was sought to be proved by the evidence of Investigating Officer only, the same manifestly offended against the provisions of Section 162 of Cr.P.C. and couldn’t be considered to be admissible. It was opined that it had not been established that the site as shown in the site plan was infact the places of occurrence and this fact had created a serious lacuna in the prosecution case.

The Bench then considered the issue of motive as according to the prosecution case, the victims were partners of Ramdass liquor shops whereas the appellants were working with rival liquor contractor and due to business rivalry, the appellants had motive to eliminate the victims. It was held that the motive could not be established by leading any satisfactory evidence and this fact had also created a serious dent in the prosecution story.

As per the Bench, the prosecution had failed  to produce any satisfactory evidence on record to indicate that all the appellants had formed any lawful assembly to commit an offence of murder of the victims.

Thus, the Bench was of the opinion that the prosecution had failed to prove the charges against the appellants to the hilt as obligated in law and, therefore, they were entitled to be given benefit of doubt. Accordingly, the appeals filed by the appellants were allowed.