Summary
The Supreme Court acquitted ten appellants convicted under Section 302 read with Section 149 IPC for two killings in a 1988 mob clash over settled land. Restating the rule of caution where a large number of persons are implicated, it held that the evidence of the injured and other eyewitnesses was riddled with material contradictions and inconsistent with the medical evidence, that no appellant's participation was proved by reliable, consistent evidence, and that the informant's hospital statement could not be treated as the FIR because the police already had information about the occurrence earlier.
Issues
- What must be proved to fasten constructive liability under Section 149 IPC, and how courts should distinguish members of an unlawful assembly from passive onlookers where a large crowd is involved.
- Whether the testimony of the injured and other eyewitnesses, read with the medical evidence, proved the presence and participation of each appellant beyond reasonable doubt.
- Whether the statement of the injured informant (PW-20) recorded at the hospital could be treated as the First Information Report.
Provisions considered
- Section 149 (read with Section 141), Indian Penal Code, 1860Constructive liability attaches to every member of an unlawful assembly of five or more if an offence is committed in prosecution of the common object or one the members knew was likely to be committed. Mere presence does not make one a member; common object must be inferred from conduct, weapons, motive and circumstances, and where many are implicated courts must apply a rule of caution before convicting. (¶¶ 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 61)
- Section 302, Indian Penal Code, 1860Conviction for murder with the aid of Section 149 was set aside because the prosecution failed to prove beyond reasonable doubt that the appellants were members of the unlawful assembly who participated in the assault. (¶¶ 76, 82, 83, 91)
- Section 154, Code of Criminal Procedure, 1973An FIR must record the first information that discloses a cognizable offence. Since witnesses' evidence showed the police had information about the occurrence and recorded statements before PW-20's hospital statement, that statement was not the FIR. (¶¶ 85, 86, 89, 90)
- Section 161, Code of Criminal Procedure, 1973PW-20's hospital statement, recorded after the police already had information of the offence, could only be a statement under Section 161; witnesses' Section 161 statements had also implicated persons not charge-sheeted or later acquitted. (¶¶ 78, 86, 88)
Held
- Under Section 149 IPC, once common object is established, an overt act by each member need not be proved; but mere presence at the scene does not make a person a member of the unlawful assembly. Whether a person is a passive onlooker is tested in the same way as the existence of common object, from the time and place of the assembly, the members' conduct, motive, the manner of occurrence, the weapons carried and used, and the injuries inflicted. (¶¶ 51, 52, 53, 54)
- Where a large number of persons are present and many are implicated, prudence requires strict adherence to the rule of caution (Masalti, Muthu Naicker, Sherey, Akbar Sheikh, Subal Ghorai): courts should look for cogent material lending assurance and convict only those whose presence is consistently established from the FIR stage and to whom overt acts in furtherance of the common object are attributed. In this case, presence or participation had to be established by at least two reliable witnesses. (¶¶ 55, 56, 57, 58, 59, 60, 61, 73)
- The evidence of an injured eyewitness carries special weight and is not to be discarded for minor contradictions; but where ocular evidence is irreconcilable with medical evidence, the latter becomes a relevant factor. Here, injuries attributed to a gandasa or to lathis did not match the medical findings, the informant's deposition contradicted his fardbeyan on whether others told him the assailants' names, and several accused were implicated by only one witness. (¶¶ 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 74, 75)
- Injuries on eyewitnesses at best establish their presence at the scene; the court must still be satisfied that they are truthful and had no reason to falsely implicate the accused. Where truth and falsehood are so mixed that they cannot be separated without reconstructing a new case, the grain-from-chaff principle cannot be applied. (¶¶ 77, 78, 79, 80)
- The prosecution failed to prove its case beyond reasonable doubt: witness accounts neither corroborated each other nor aligned with the medical record, and the material omissions went to the root of the matter. The appellants were entitled to the benefit of doubt. (¶¶ 76, 81, 82, 83)
- An FIR must faithfully reflect the first information disclosing a cognizable offence, which the officer is bound to reduce to writing. As the police had received information and recorded statements before the informant's statement at the hospital, and the station diary entries were not produced, that statement was only a Section 161 statement and the FIR built on it failed to inspire confidence; persons against whom specific allegations were made were also unexplainedly omitted from the FIR or charge-sheet. (¶¶ 84, 85, 86, 87, 88, 89, 90)
Result
Both appeals allowed; the High Court's judgment affirming the conviction under Section 302 read with Section 149 IPC set aside as regards the appellants, who were acquitted and their bail bonds discharged.