Charge framed with the assistance of S. 149 IPC can later be converted to one read with S.34 IPC: SC

Courts are free to weigh the evidence and determine whether an independent conviction is possible in case group prosecution under Section 149 IPC fails: SC

We first deem it appropriate to avert to the contention whether a charge framed with the assistance of Section 149 IPC can later be converted to one read with Section 34 IPC or even a simplicitor individual crime? Second, whether lack of independent witnesses to a violent crime would undermine the prosecution case and whether closely related witnesses can be relied upon in such instances? And third, whether leniency ought to be shown to the present appellants given the extended period of liberty which they have enjoyed since being released on bail?(para 14)

Rohtas & Anr. v. State of Haryana

Criminal Appeal No. 38 of 2011

With,

Bijender v. State of Haryana

Criminal Appeal No. 775 of 2011

Decided on December 10, 2020.

A three-judge bench of the Supreme Court consisting of Justice N.V. Ramana, Justice Surya Kant and Justice Aniruddha Bose decided the present litigation.

A complaint was lodged with the police by the victim­Ranbir Singh (PW­1) on 26.01.1998 stating that two days ago he was stopped by Rohtas, Sanjay, Bijender (the appellants) and Om Prakash (since deceased) who collectively threatened him with death if he were to return to his fields for irrigation. On 25.01.1998, when the complainant was on his way to another agricultural plot, the four accused started inflicting blows on his body using axes, thereby causing him to fall down and seriously injure his legs, hand and head. Another group of three accused persons, comprising Hawa Singh, Virender Beero and Rajinder also joined in thrashing the complainant. The assailants further declared that they would not rest till they killed the complainant. Upon hearing the complainant’s cries, his brother Balwan (PW­3) rushed to the spot and raised an alarm and all seven accused ran from the spot. Balwan subsequently carried his injured brother to Government Civil hospital at Sonipat for treatment and was later referred to Post Graduate Institute of Medical Sciences at Rohtak (PGIMS, Rohtak).

The jurisdictional police recorded the statement of the injured on 26.01.1998 at PGIMS, Rohtak and formally registered the FIR under Sections 307, 323, 325, 506, 148 and 149 of the IPC. All the seven accused were then arrested and committed to trial. During trial, however, Om Prakash died and proceedings against him stood abated on 08.11.2000. The six­surviving accused in their statement under Section 313 of CrPC claimed that they were falsely implicated on account of local village politics. Analysing the substantial ocular and medical evidence, the learned Additional Sessions Judge, Sonipat convicted all the six accused for offences under Section 307 read with Section 149 of the IPC (with sentence of seven years rigorous imprisonment) and also under Section 148 of the IPC (with an additional one year’s concurrent imprisonment).

The High Court, in appeal, re­appraised the entire evidence and took further notice of the complainant’s admission that three of the accused, namely Rajinder, Hawa Singh and Beero Virender, had arrived at the scene of occurrence after he had already suffered injuries from the other accused. Sensing the possibility that the late­arriving accused might have been named only to widen the net and settle past scores, the High Court extended the benefit of doubt to Rajinder, Hawa Singh and Beero Virender and acquitted them of all charges. As regards the present three appellants ­ Rohtas, Sanjay and Bijender, the High Court found no ground to interfere with their conviction, though it reduced the quantum of sentence under the charge of Section 307 IPC from seven years to five, with a combined additional fine of Rs 1,00,000 to be paid to the victim. These three remaining convicts, namely, Rohtas and Sanjay (jointly) and Bijender have assailed their conviction and sentence through these two criminal appeals.

The Counsel representing the appellants urged that the minimum number of persons required to constitute an ‘unlawful assembly’ and sustain any charge under Section 149 IPC is five, and since three of the original seven accused have been acquitted by the High Court, the conviction for attempt to murder as part of an unlawful assembly could not survive. The Counsel contended that the prosecution story was highly doubtful as Balwan (PW-3) was an interested witness and no other independent witness had been examined. The Counsel prayed for reducing the sentence to the period already undergone as part of their sentence by the appellants. The prosecution case proceeds on the premise that there is an attempt to murder, involving seven persons with a common intention and prior meeting of minds. The emphasis of the State is that no lenient view ought to be taken in light of the nature of injuries.

The Court considered the issues raised by the appellants: We first deem it appropriate to avert to the contention whether a charge framed with the assistance of Section 149 IPC can later be converted to one read with Section 34 IPC or even a simplicitor individual crime? Second, whether lack of independent witnesses to a violent crime would undermine the prosecution case and whether closely related witnesses can be relied upon in such instances? And third, whether leniency ought to be shown to the present appellants given the extended period of liberty which they have enjoyed since being released on bail?(para 14)

With respect to the framing of charge and its subsequent altercation, the Court referred to a number of cases and stated:

Applying these settled principles to the facts of the present case, it may be seen that both the common object and the common intention are traced back to the same evidence, i.e., evaluating the conduct of the accused as narrated by the injured and the eye­witness. Further, a perusal of Section 313 CrPC statement shows that the appellants were expressly confronted with their specific role in the offence: that each of them had individually attacked the complainant with a deadly object in furtherance of the common intention of killing him. We, therefore, do not find that the appellants suffered any adverse effect when the High Court held the three of them individually guilty for the offence of attempted murder, without the aid of Section 149 IPC. (Para 23)

Given the nature of the extreme injuries, the Court could not find a reason for either the complainant or his brother to falsely implicate the appellants. The Court noted that the requirements of Section 34 of IPC are established as the attack was apparently pre­meditated.

With respect to the Independence of witnesses, the Court observed:

Although it is always ideal that independent witnesses come forward to substantiate the prosecution case but it would be unfair to expect the presence of third­parties in every case at the time of incident, for most violent crimes are seldom anticipated. Any adverse inference against the non­examination of independent witnesses thus needs to be assessed upon the facts and circumstances of each case. In fact, it must first be determined whether the best evidence though available, has been actually withheld by the prosecution for oblique or unexplained reasons. (Para 27)

The present crime took place in a private agriculture field and not in the middle of a busy public place. The defence has not claimed that other farmers also gathered at the scene and yet have not been examined. This shows that the appellants have in fact been blowing both hot and cold with their arguments. Earlier in the trial they had tried to discredit the ocular testimony of PW­3 by claiming that he might not have been able to witness the incident owing to standing crops in the field. Nonetheless, they expect this Court to believe that there could have been others who witnessed the incident but have deliberately been suppressed by the prosecution. (Para 28)

With respect to the sentencing and leniency, the Court stated:

The appellants have not undergone even half of their sentence period. Having enjoyed the more productive part of their lives outside jail cannot be, per se, taken as a mitigating factor. Any misplaced sympathy with the appellants is likely to cause injustice to the victim of the crime. We, therefore, do not find any justification to show leniency and reduce the sentence. (Para 30)

Given that earlier the appellants had been ordered to serve their two sentences of five years under Section 307 and one year under Section 148 of IPC concurrently, acquittal in the latter would effectively have no impact on their outstanding period of sentence. (Para 31)

The Court dismissed both the appeals as they were found to be without any merit so far as conviction of the appellants under Section 307 IPC is concerned and set aside their conviction under Section 148. Their bail bonds were cancelled and the Court directed the State of Haryana to take the appellants into custody to serve the remainder of their five­year sentence as awarded by the High Court.

View/Download Judgment: Rohtas & Anr. v. State of Haryana

Jhanavi M