Summary
The Court maintained the three appellants’ convictions for attempted murder but set aside their rioting convictions after the number of proved participants fell below five. Failure of the unlawful-assembly charge did not prevent an individual substantive conviction or reliance on established common intention where no prejudice resulted. The injured victim’s and his brother’s evidence was accepted, and the brutality and permanent disability caused warranted refusal to reduce the five-year sentence.
Issues
- Whether failure of the unlawful-assembly case prevented conviction for the substantive offence or substitution of common-intention liability.
- Whether related-witness evidence and absence of independent witnesses undermined proof.
- Whether prolonged liberty on bail justified reducing sentence to time served.
Provisions considered
- Sections 141, 148 and 149, Indian Penal Code, 1860The unlawful-assembly basis failed on the proved participation in this case; the section 148 convictions were set aside. (¶¶ 15, 31–32)
- Sections 34 and 307, Indian Penal Code, 1860Proved individual participation and attempted-murder intent supported the substantive convictions; the evidence also established premeditated common intention. (¶ 16–26)
- Sections 386 and 464, Code of Criminal Procedure, 1973Alteration of the conviction or a defect in charges is assessed by prejudice and failure of justice, rather than treated as an automatic ground for acquittal. (¶ 16–23)
Held
- An unlawful assembly requires at least five participants. On the facts after the other acquittals, sections 148 and 149 could not sustain liability, but this did not automatically erase proof of the substantive crime. Substitution of section 34 or individual conviction is permissible if its requirements are proved and no prejudice or failure of justice results. (¶ 15–23)
- The appellants were confronted with their specific individual roles, and the same evidence established the attack and common intention. Death threats, deadly weapons, grave injuries and medical evidence proved attempted murder by each appellant; no adverse effect on the defence from the altered basis was established. (¶ 23–26)
- A related eyewitness is not disqualified on that ground, and absence of independent witnesses requires evaluation in context, including whether available best evidence was withheld. The attack occurred in a private agricultural field, no other gathered witnesses were identified, and the victim’s and his brother’s accounts inspired confidence. (¶¶ 25, 27–28)
- Long enjoyment of liberty on bail was not itself mitigating. Given the brutal attack and lifelong disability, reducing the sentence to time served would be unjustified. Setting aside the concurrent one-year rioting sentence did not shorten the outstanding five-year attempted-murder sentence. (¶ 29–32)
Result
Appeals dismissed as to section 307 convictions and five-year sentences; section 148 convictions set aside. Bail bonds cancelled and State directed to take appellants into custody for the remainder of the five-year sentence.