SURENDRA SINGHversusSTATE OF RAJASTHAN AND ANR.

354                      [2023]REPORTS
               SUPREME COURT    3 S.C.R. 354               [2023] 3 S.C.R.


A                            SURENDRA SINGH
                                       v.
                    STATE OF RAJASTHAN AND ANR.
                      (Criminal Appeal No. 1059 of 2023)
B                               APRIL 11, 2023
               [M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
             Penal Code, 1860 – s.149 – Applicability of – High Court set
      aside the respondent-accused’s conviction for the offence
      punishable u/s.302/149, IPC on the ground that the initial charge-
C
      sheet was filed only against two accused persons (one of them being
      the respondent) and the remaining three persons were subsequently
      arrayed as the accused and are being tried separately thus, s.149,
      IPC shall not be attracted – Held: When five persons were
      specifically named in the FIR and are facing the trial though
D     separately, s.149 IPC would be attracted – Thus, once the
      respondent was found to be member of the unlawful assembly and
      he actually participated in commission of the offence, then he shall
      also be liable to be convicted for the offence u/s.302, IPC with the
      aid of s.149, IPC, even for the act of the another accused who gave
      the fatal blow – High Court erred in observing that no case is made
E
      out to invoke s.149, IPC – Impugned judgment of the High Court
      set aside – Judgment of the Trial Court convicting the respondent
      for offences u/ss. 147, 323 and 302/149, IPC restored – Code of
      Criminal Procedure, 1973 – s.319.
             Criminal Law – Delay in lodging FIR – Plea of the accused
F
      that there was delay of 3 ½ days in lodging FIR – Held: Delay
      sufficiently explained – No reason to give benefit of doubt to the
      accused.
            Penal Code, 1860 – s.147 – Application of – Discussed.
G           Allowing the appeal, the Court
            HELD: 1.1 The High Court has not properly considered
      the fact that in the report/FIR there were specific allegations
      against five accused persons and five accused persons were
      named in the FIR. However, the investigating officer charge-
H     sheeted only two persons. The remaining three accused persons
                                      354
  SURENDRA SINGH v. STATE OF RAJASTHAN AND ANR.                          355


came to be added as accused by the learned trial Court while             A
allowing the application under Section 319 Cr.P.C. As they
absconded and therefore their trial came to be ordered to be
separated and it is reported that the trial against the remaining
accused is still pending who are also facing the charges for the
offence under Section 302/149 IPC. In that view of the matter
                                                                         B
when five persons were specifically named in the FIR and five
persons are facing the trial may be separately, Section 149 IPC
would be attracted. The essential question in a case under Section
147 is whether there was an unlawful assembly as defined under
Section 141, I. P. C., of five or more than five persons. The identity
of the persons comprising the assembly is a matter relating to           C
the determination of the guilt of the individual accused, and even
when it is possible to convict less than five persons only, Section
147 still applies, if upon the evidence in the case the Court is
able to hold that the person or persons who have been found
guilty were members of an assembly of five or more persons,
                                                                         D
known or unknown, identified or unidentified. In view of the above
facts and circumstances of the case the High Court has seriously
erred in observing that no case is made out to invoke Section
149 IPC. [Paras 10, 10.1][361-A-C, F-H; 362-A]
      Bharwad Mepa Dana & Anr. Vs. State of Bombay 1960
      (2) SCR 172 – relied on.                                           E

       1.2 Once the respondent – accused was found to be member
of the unlawful assembly of more than five persons and he actually
participated in commission of the offence may be the fatal blow
might have been given by the another accused, in the present
case ‘BS’, still with the aid of Section 149 IPC, Respondent             F
Accused can be convicted for the offence under Section 302 IPC
with the aid of Section 149 IPC. The case would certainly fall
within first part of Section 149 IPC. As per first part of Section
149 IPC if an offence is committed by any member of unlawful
assembly in prosecution of the common object of that assembly,           G
every person who, at the time of that offence, is a member of the
same assembly, is guilty of that offence. [Para 10.2][362-B-C]
      Mizaji and Anr. Vs. The State of U.P. [1959] Supp. 1
      SCR 940 – relied on.
                                                                         H
356            SUPREME COURT REPORTS                      [2023] 3 S.C.R.


A           1.3 The submission on behalf of the accused that there was
      a delay of 3 ½ days has been elaborately dealt with and considered
      by the learned trial Court in detail. A proper explanation has been
      given by the complainant. Immediately after the occurrence the
      injured were taken to the hospital for treatment. The condition
      of ‘BS’ was serious. Complainant concentrated on his treatment.
B
      Another injured ‘NS’ also remained busy for the treatment. Thus,
      when the delay has been sufficiently and properly explained, there
      is no reason to give benefit of doubt to the accused on the
      aforesaid ground that there was a delay of 3 ½ days in lodging the
      FIR. [Para 11.1][363-G-H; 364-A-B]
C           1.4 As per the medical opinion and the deposition of doctor
      the death occurred due to injury no.9 from the shock of wound at
      spinal bone of neck. Though the injury no.9 was caused by the
      accused ‘BS’, the respondent accused being a part of the unlawful
      assembly and who also participated in commission of the offence,
D     he shall also be liable to be convicted for the offence under Section
      302 IPC with the aid of Section 149 IPC, even for the act of the
      accused ‘BS’ who gave the fatal blow. The impugned judgment
      and order passed by the High Court acquitting the respondent –
      accused for the offence under Section 302 under Section 149 IPC
      is hereby quashed and set aside. The judgment and order passed
E     by the learned Trial Court convicting the respondent – accused
      for the offence under Sections 147, 323 and 302/149 IPC is
      restored. The respondent no.2 – accused to undergo life
      imprisonment for the offence under Section 302/149 IPC. [Paras
      11.2, 12][364-G-H; 365-A-B, C-D]
F           Roy Fernandes vs. State of Goa and others, (2012) 3
            SCC 221 : [2012] 1 SCR 477 – held inapplicable.
            State of Rajasthan vs. Ramanand (2017) 5 SCC 695 :
            [2017] 3 SCR 981 – referred to.

G                            Case Law Reference
      (1960) 2 SCR 172                relied on               Para 4.3
      (1959) Supp. (1) SCR 940        relied on               Para 4.3
      [2012] 1 SCR 477                held inapplicable       Para 6
H     [2017] 3 SCR 981                referred to             Para 6.2
  SURENDRA SINGH v. STATE OF RAJASTHAN AND ANR.                              357


     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                        A
No.1059 of 2023.
      From the Judgment and Order dated 20.11.2018 of the High Court
of Judicature for Rajasthan at Jaipur in DBCRA No. 818 of 2013.
     Siddhartha Dave, Sr. Adv. (Amicus Curiae), Ms. Jemtiben A.O.,
Ms. Tomthinnganbi Koijam, L.K. Paonam, Niraj Bobby Paonam, Ms.               B
Aswathi M.K., Advs. for the Appellant.
     Vishal Meghwal, Ms. Yashika Bum, Milind Kumar, Abhishek
Gupta, Zafar Inayat, Nikhil Kumar Singh, Advs. for the Respondents.
      The Judgment of the Court was delivered by
                                                                             C
      M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 20.11.2018 passed by the High Court of Judicature for
Rajasthan Bench at Jaipur passed in D.B. Criminal Appeal No.818 of
2013 by which the Division Bench of the High Court has partly allowed
the said appeal preferred by the respondent accused – Vijendra Singh         D
and has set aside the conviction for the offence punishable under Section
302/149 IPC but has convicted for the offence punishable under Section
323 IPC, the original complainant/informant has preferred the present
appeal.
      2. The facts leading to the present appeal in nutshell are as under:   E
       2.1 An FIR was lodged by the police on 01.12.2010 for an incident
which took place on 28.11.2010. In the FIR it was alleged that on
28.11.2010, while complainant’s younger brother Narendra Singh was
filling water from hand-pump at around 9.30 a.m. accused Bhupendra
Singh, Vijendra Singh and Bhawani Singh, Sangeeta and Gulab Kanwar           F
caused lathi blows to Narendra Singh. In the said incident Narendra
Singh and Bhawani Singh became unconscious. Both of them were taken
to the hospital. Bhawani Singh died. The FIR was registered as FIR
bearing no.445/2010. Though the five persons were named in the FIR
the police filed charge-sheet only against two persons namely Bhupendra
                                                                             G
Singh and Vijendra Singh for the offence under Sections 341, 323, 325/
34, 308/34 and 302 and alternatively, Section 302/34 IPC. Both the
aforesaid accused came to be tried for the aforesaid offence. To prove
the charge against the accused the prosecution examined ten witnesses
and brought on record seven documentary evidences. The statements
of the accused under Section 313 Cr.P.C. were recorded.                      H
358            SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A            2.2 During the trial, the accused Bhupendra Singh died. Thus, the
      proceedings against him stood abated. The prosecution submitted an
      application under Section 319 Cr.P.C. against the remaining three accused
      persons so left out by the prosecution. The said application was dismissed
      by the learned Trial Court. However, on a challenge before the High
      Court and on remand, the learned Trial Court directed to try the remaining
B
      three accused as accused and passed a summoning order of additional
      accused. However, as the remaining three accused absconded for number
      of years pursuant to the order passed by the High Court, the trial against
      the respondent herein accused Vijendra Singh came to be separated.
      Charge came to be reframed and the accused Vijendra Singh came to
C     be charged for the offence under Section 302/149 IPC also. Thereafter
      on conclusion of the trial, the learned Trial Court convicted the accused
      Vijendra Singh for the offence punishable under Sections 147, 323, 302/
      149 IPC and sentenced him to undergo life imprisonment for the offence
      punishable under Sections 302 read with Section 149 IPC, one year R.I.
      for the offence under Section 323 IPC and two years R.I. for the offence
D
      under Section 147 IPC.
             2.3 The respondent herein – accused preferred the present appeal
      before the High Court. By the impugned judgment and order the High
      Court has set aside the conviction of the accused Vijendra Singh for
      offence under Section 302 read with Section 149 IPC by observing that
E     no case is made out for conviction with the aid of Section 149 IPC. That
      thereafter the High Court has considered the individual act of the accused
      and thereafter after taking into consideration the fact that the fatal blow
      on the head was given by accused Bhupendra Singh (who died during
      the trial) and the weapon used by the accused was lathi, the High Court
F     by the impugned judgment and order has convicted the accused for the
      offence under Section 323 IPC.
            2.4 Feeling aggrieved and dissatisfied with the impugned judgment
      and order passed by the High Court convicting the accused for the offence
      under Section 302 read with Section 149 IPC, the original complainant/
G     informant Surendra Singh has preferred the present appeal.
            3. Shri Siddhartha Dave, learned Senior Advocate has appeared
      as Amicus Curiae on behalf of the appellant, Shri Vishal Meghwal, learned
      counsel has appeared on behalf of the respondent – State and Shri
      Abhishek Gupta, learned counsel has appeared on behalf of respondent
H     no.2.
   SURENDRA SINGH v. STATE OF RAJASTHAN AND ANR.                              359
                   [M. R. SHAH, J.]

       4. Shri Siddhartha Dave, learned Senior Counsel appearing on           A
behalf of the appellant has vehemently submitted that in the facts and
circumstances of the case the Division Bench of the High Court has
materially erred in observing that no case was made out for conviction
with the aid of Section 149 IPC.
       4.1 It is vehemently submitted by Shri Dave, learned Senior Counsel    B
that the High Court has materially erred in observing that after the
registration of the FIR, even the police found the case only against the
two accused and the cognizance of the offence against the other accused
are taken subsequently on the remand of the case by the High Court
after rejection of application under Section 319 Cr.P.C. and the learned
trial Court took cognizance against the accused later on and therefore        C
no case is made out for conviction with the aid of Section 149 IPC.
       4.2 It is vehemently submitted by Shri Dave learned Senior Counsel
appearing on behalf of the appellant that the High Court has not properly
appreciated and/or considered the fact that as such in the FIR the
allegations were specific against five accused persons. However, at the       D
relevant time the investigating officer filed the charge-sheet only against
the two accused persons and the remaining three persons were arrayed
as accused subsequently pursuant to the order passed by the learned
Magistrate allowing the application under Section 319 Cr.P.C. It is
submitted that therefore when all the five persons came to be tried may       E
be separately there was an involvement of five persons who form the
unlawful assembly and therefore Section 149 IPC would be attracted.
      4.3 Heavy reliance is placed on the decision of this Court in the
case of Bharwad Mepa Dana & Anr. Vs. State of Bombay 1960 (2)
SCR 172 as well as Mizaji and Anr. Vs. The State of U.P. (1959)               F
Supp. (1) SCR940.
      5. Learned counsel appearing on behalf of the State has supported
the appellant.
      6. Shri Abhishek Gupta, learned counsel appearing on behalf of
accused no.2 relying upon the decision of this Court in the case of Roy       G
Fernandes vs. State of Goa and others, (2012) 3 SCC 221,has
vehemently submitted that as such on facts no case is made out to convict
the accused with the aid of Section 149 IPC.
      6.1 It is submitted that merely because the accused might have
been present at the time of commission of the offence and in fact might       H
360                SUPREME COURT REPORTS                        [2023] 3 S.C.R.


A     have participated in commission of the offence but has not played a vital
      role unless it is proved that the other accused knew that in prosecution
      of the common object any one of them is likely to commit the murder of
      the deceased, Section 149 IPC shall not
            6.2 Now so far as the conviction of the accused for the offence
B     under Section 323 IPC, it is vehemently submitted by learned counsel
      appearing on behalf of the accused that though the respondent no.2 has
      not preferred the appeal challenging the conviction under Section 323
      IPC, still in an appeal preferred by the State against the acquittal, the
      accused can submit that he could not have been convicted for other
      offence. Reliance is placed upon the decision of this Court in the case of
C     State of Rajasthan vs. Ramanand (2017) 5 SCC 695.
             6.3 In support of his submission that even the respondent - accused
      could not have been convicted even for the offence under Section 323
      IPC, learned counsel appearing on behalf of the respondent – accused
      has made the following submissions:
D
            (i)      That there was a delay of 3 ½ days in lodging the FIR;
            (ii)     That the injury on the neck has not been established and
                     proved;
            (iii)    That there are material contradictions on the injuries caused
E                    by the accused persons.
            He has taken us to the deposition of doctor examined as PW7
      and the injury report.
            7. Making above submissions it is prayed to acquit the accused
      even for the offence under Section 323 IPC.
F
            8. We have heard learned counsel appearing on behalf of the
      respective parties at length.
            9. At the outset, it is required to be noted that the learned trial
      Court convicted the respondent – accused for the offence under Section
G     302 IPC with the aid of Section 149 IPC. However, the High Court has
      observed and held that as the initial charge-sheet was filed only against
      two persons /accused and further three persons were subsequently
      arrayed as the accused and they are being tried separately, Section 149
      IPC shall not be attracted. The High Court has also observed that even
      as per the FIR three accused came at the place of occurrence when
H
   SURENDRA SINGH v. STATE OF RAJASTHAN AND ANR.                              361
                   [M. R. SHAH, J.]

they saw Narendra Singh was filling water and it was thus not assembly        A
of five accused.
       10. However, the High Court has not properly and considered the
fact that in the report/FIR there were specific allegations against five
accused persons and five accused persons were named in the FIR.
However, the investigating officer charge-sheeted only two persons.           B
The remaining three accused persons came to be added as accused by
the learned trial Court while allowing the application under Section 319
Cr.P.C. As they absconded and therefore their trial came to be ordered
to be separated and it is reported that the trial against the remaining
accused is still pending who are also facing the charges for the offence
under Section 302/149 IPC. In that view of the matter when five persons       C
were specifically named in the FIR and five persons are facing the trial
may be separately, Section 149 IPC would be attracted. At this stage
the decision of this Court in the case of Bharwad Mepa Dana (supra)
on applicability of Section 149 IPC is required to be referred to. Before
this Court it was the case on behalf of the prosecution that thirteen         D
named persons formed an unlawful assembly and the common object of
which was to kill the three brothers. Twelve of them were tried by the
Sessions Court who acquitted seven and the High Court acquitted one
more. This brought the number to four. It was the case on behalf of the
accused that as the High Court convicted only four persons falling below
the required number of five, they could not have been convicted with the      E
aid of Section 149 IPC. The aforesaid contention was negated by this
Court. This Court observed that merely because two other persons
forming part of the unlawful assembly were not convicted as their identity
was not established, the accused cannot be permitted to say that they
are not forming part of the unlawful assembly and they cannot be              F
convicted with the aid of Section 149 IPC. In the said decision it is
specifically observed and held that the essential question in a case under
Section 147 is whether there was an unlawful assembly as defined
under 141, I. P. C., of five or more than five persons. The identity of the
persons comprising the assembly is a matter relating to the determination
of the guilt of the individual accused, and even when it is possible to       G
convict less than five persons only, Section 147 still applies, if upon the
evidence in the case the Court is able to hold that the person or persons
who have been found guilty were members of an assembly of five or
more persons, known or unknown, identified or unidentified.
                                                                              H
362            SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A            10.1 In view of the above facts and circumstances of the case
      the High Court has seriously erred in observing that no case is made out
      to invoke Section 149 IPC.
             10.2 Now once the respondent – accused was found to be member
      of the unlawful assembly of more than five persons and he actually
B     participated in commission of the offence may be the fatal blow might
      have been given by the another accused, in the present case Bhupendra
      Singh, still with the aid of Section 149 IPC, Respondent Accused can be
      convicted for the offence under Section 302 IPC with the aid of Section
      149 IPC. The case would certainly fall within first part of Section 149
      IPC. As per first part of Section 149 IPC if an offence is committed by
C     any member of unlawful assembly in prosecution of the common object
      of that assembly, every person who, at the time of that offence, is a
      member of the same assembly, is guilty of that offence. In the case of
      Mizaji and Anr. (supra), this Court had occasion to consider Section
      149 of the IPC and the distinction between two parts of Section 149
D     IPC. It is observed and held as under:
            “This section has been the subject matter of interpretation in the
            various High Court of India, but every case has to be decided on
            its own facts. - The first part of the section means that the offence
            committed in prosecution of the common object must be one which
E           is committed with a view to accomplish the common object. It is
            not necessary that there should be a preconcert in the sense of a
            meeting of the members of the unlawful assembly as to the
            common object; it is enough if it is adopted by all the members
            and is shared by all of them. In order that the case may fall under
            the first part the offence committed must be connected immediately
F           with the common object of the unlawful assembly of which the
            accused were members. Even if the offence committed is not in
            direct prosecution of the common object of the assembly, it may
            yet fall under s. 149 if it can be held that the offence was such as
            the members knew was likely to be committed. The expression I
G           know’ does not mean a mere possibility, such as might or might
            not happen. For instance, it is a. matter of common knowledge
            that when in a village a body of heavily armed men set out to take
            a woman by force, someone is likely to be killed and all the
            members of the unlawful assembly must be aware of that likelihood
            and would be guilty under the second part ‘of s.149. Similarly, if
H
  SURENDRA SINGH v. STATE OF RAJASTHAN AND ANR.                              363
                  [M. R. SHAH, J.]

      a body of persons go armed to take forcible possession of the          A
      land, it would be equally right to say that they have the knowledge
      that murder is likely to be committed if the circumstances as to
      the weapons carried and other conduct of the members of the
      unlawful assembly clearly point to such knowledge on the part of
      them all. There is a great deal to be said for the opinion of Couch,
                                                                             B
      C. J., in Sabid Ali’s case (1) that when an offence is committed in
      prosecution of the common object, it would generally be an offence
      which the members of the unlawful assembly knew was likely to
      be committed in prosecution of the common object. That, however,
      does not make the converse proposition true; there may be cases
      which would come within the second part, but not within the first.     C
      The distinction between the two parts of s.149, Indian Penal
      Code cannot be ignored or obliterated. In every case it would be
      an issue to be determined whether the offence committed falls
      within the first part of s. 149 as explained above or it was an
      offence such as the members of the assembly know to be likely
                                                                             D
      to be committed in prosecution of the common object and falls
      within the second part.”
       10.3 Now so far as the reliance placed upon the decision of this
Court in the case of Roy Fernandes (supra), relied upon on behalf of
the respondent – accused is concerned, on facts the said decision shall
not be applicable. In the said decision this Court had considered the        E
second part of Section 149 IPC. This Court did not consider the first
part of Section 149 IPC and the distinction between the first part and the
second part of Section 149 which has been considered by this Court in
the case of Mizaji and Anr. (supra).
       11. Now, so far as the submission on behalf of the accused that       F
he ought not to have been convicted for the offence under Section 323
IPC is concerned, though the accused has not challenged the impugned
judgment and order passed by the High Court challenging the offence
under Section 323 IPC we have heard the learned counsel appearing on
behalf of the accused on merits on his conviction under Section 323          G
IPC.
      11.1 The submission on behalf of the accused that there was a
delay of 3 ½ days has been elaborately dealt with and considered by the
learned trial Court in detail. A proper explanation has been given by the
complainant - Surendra Singh. Immediately after the occurrence the           H
364               SUPREME COURT REPORTS                             [2023] 3 S.C.R.


A     injured were taken to the hospital for treatment. The condition of Bhawani
      Singh was serious. Complainant concentrated on his treatment. Another
      injured Narendra Singh was also remained busy for the treatment. Thus,
      when the delay has been sufficiently and properly explained, we see no
      reason to give benefit of doubt to the accused on the aforesaid ground
      that there was a delay of 3 ½ days in lodging the FIR.
B
             11.2 Now so far as the submission on behalf of the accused on
      the injuries and the contradictions in the injuries, at the outset, it is required
      to be noted that the deposition of the eye-witness PW1 and PW4 and
      the deposition of the doctor - PW7 are relevant material/deposition against
      the accused. The deceased sustained following injuries:
C
             1.     2xl/2 cm scratched injury in the middle of head with red
                    color soft clotting and hematoma beneath the skin of the
                    head
             2.     Blue colored swelling on right head measuring 2.SxL
D                   INTERNAL hematoma in frontal head lobe.
             3.     2cm stitch wound on occipital region of head. Blood clotting
                    a parietal region of right side of head.
             4.     3x2 cm scratched injury in front parietal part.
E            5.     lxl/2 cm injury over nose.
             6.     2xl/2 cm scratched I injury over right knee.
             7.     5X0.5 cm scratched injury on the lower part of left leg.
             8.     0.5X0.5 cm scratched injury on the middle part of left leg.
F            9.     6xl.5 cm blue colored wound on the back of neck. While
                    further dissecting it was found that on left muscles there is
                    hematoma and fourth and fifth cervical ribs were broken.
                    There was swelling on it. 10. On front of stomach 2.5xl.5
                    cm Blue coloured wound on naval side.
G                   All these wounds and injuries lead to death as per the opinion
                    of the doctor. As per the medical opinion and the deposition
                    of doctor the death occurred due to injury no.9 from the
                    shock of wound at spinal bone of neck. Though the injury
                    no.9 was caused by the accused Bhupendra Singh as
H                   observed and held hereinabove the respondent accused
   SURENDRA SINGH v. STATE OF RAJASTHAN AND ANR.                                   365
                   [M. R. SHAH, J.]

               being a part of the unlawful assembly and who also                  A
               participated in commission of the offence, he shall also be
               liable to be convicted for the offence under Section 302
               IPC with the aid of Section 149 IPC, even for the act of the
               accused Bhupendra Singh who gave the fatal blow.
      12. Under the circumstances the impugned judgment and order                  B
passed by the High Court acquitting the accused for the offence under
Section 302 read with Section 149 IPC is unsustainable and the same
deserves to be quashed and set aside.
      In view of the above and for the reason stated above the present
appeal succeeds. The impugned judgment and order passed by the High                C
Court acquitting the respondent – accused for the offence under Section
302 under Section 149 IPC is hereby quashed and set aside. The judgment
and order passed by the learned Trial Court convicting the respondent –
accused for the offence under Sections 147, 323 and 302/149 IPC is
hereby restored. The respondent no.2 – accused to undergo life
                                                                                   D
imprisonment for the offence under Section 302/149 IPC. The respondent
no.2 now to surrender before the concerned authority/court to undergo
the remaining sentence of life imprisonment within a period of three
weeks from today, failing which, he shall be taken into custody forthwith.
       Present appeal is accordingly allowed.
                                                                                   E

Divya Pandey                                                     Appeal allowed.
(Assisted by : Abhishek Pratap Singh and Shevali Monga, LCRAs)



                                                                                   F




                                                                                   G




                                                                                   H