Holding

Defective charge framing and lack of specific findings, though serious, do not invalidate acquittals absent a proven failure of justice, and given the elapsed time a fresh trial is not ordered; instead, the State must compensate the victims.

Summary

The case concerned an attack in which three persons were killed and five injured, allegedly committed by a group of seventeen accused. The Sessions Court convicted four accused and acquitted the rest, but the charges were found to be improperly framed under CrPC sections 211‑213, lacking specific allegations for each death and failing to record findings on the existence of an unlawful assembly and the application of Section 149 IPC. The Supreme Court held that such defects, while serious, do not automatically invalidate acquittals unless a failure of justice is shown, and given the 26‑year lapse, ordering a fresh trial would be futile. Consequently, the Court dismissed the appeals and directed the State to pay public‑law damages to the families of the deceased (₹25 lakhs each) and to the injured survivors (₹10 lakhs each). The judgment also clarified the scope of Section 149 as creating vicarious liability, not a separate offence, and rejected the practice of framing “issues” instead of proper charges.

Issues considered

Whether defective framing of charges under CrPC ss.211‑213 invalidates convictions or acquittals
Whether specific charges under Section 302 IPC must be framed separately for each deceased when Section 149 IPC is invoked
Whether the trial court’s failure to record findings on the existence of an unlawful assembly, its number, and common object defeats the conviction/acquittal
Whether the appellate court can set aside acquittals on the ground of erroneous charges and, if so, whether a fresh trial is the appropriate remedy
Whether compensation in the form of public‑law damages can be awarded to victims’ families under the principles laid down in Nilabati Behera
Whether evidence from a separate proceeding (Sessions case 58/98) can be used in the present trial under the Evidence Act
Whether framing "issues" instead of "charges" complies with statutory requirements

Legislation cited

Bombay Police Acts. 135
Code of Civil Procedure, 1908
Code of Criminal Procedure, 1973s. 211, s. 212, s. 213
Constitution of Indias. 21
Indian Evidence Act, 1872s. 33, s. 3319
Indian Penal Code, 1860s. 141, s. 143, s. 146, s. 147, s. 148, s. 149, s. 302, s. 307, s. 323, s. 326

Subjects

defective charge framingvicarious liabilityunlawful assemblySection 149 IPCpublic law damagescompensationCrPCIPCevidence admissibilityfresh trialacquittalArticle 21constitutional right to fair trial

Judgment

1050 [2018]REPORTS
SUPREME COURT 6 S.C.R. 1050 [2018] 6 S.C.R.

A VINUBHAI RANCHHODBHAI PATEL
v.
RAJIVBHAI DUDABHAI PATEL & OTHERS
(Criminal Appeal No. 1525 of 2009)
B MAY 16, 2018
[J. CHELAMESWAR AND SANJAY KISHAN KAUL, JJ.]
Code of Criminal Procedure, 1973 – Chapter XVII – ss.211,
212 and 213 – Defective framing of charges – Acquittal of accused
persons – Interference with, if permissible – Three persons died
C
and five persons were injured allegedly in an attack by 17 persons
– Sessions Court convicted 4 accused, while remaining 13 accused
persons were acquitted – State appeals against acquittal of various
accused, dismissed by High Court – On appeal, held: In the case
on hand where three persons died, the charge u/s.302 should have
D been framed against specifically named accused with respect to
each of the deceased – However, no clear charges were framed –
Accused are entitled in law to know what is the charge on which
they are put to trial – Further, since the prosecution invoked s.149,
charges should have been framed specifying which of the accused
were sought to be punished for which offence with the aid of
E
s.149,IPC – Sessions Court did not record clear findings as to the
existence of an unlawful assembly – Nor was there any clear finding
regarding the common object of the assembly – High Court failed
to take note of such defects in framing of charges – However, it
would not be justified to reverse the acquittal of accused persons
F in the case on hand inter alia on the grounds that the framing of
charges is erroneous – Normally, consequence thereof should be a
fresh trial, but such a course of action after a lapse of 26 years of
the occurrence of the crime would not serve any useful purpose as
some of the accused died in the interregnum – Victims of the crime
in this case are required to be compensated by the award of public
G
law damages – Families of each of the deceased be paid by the
State an amount of Rs. 25,00,000/- each and the injured witnesses,
if still surviving, otherwise their families be paid Rs.10,00,000/-
each – Penal Code, 1860 – ss.302, 149, 141, 143, 146-148, 307,
323 and 326 – Bombay Police Act – s.135 – Constitution of India –
H Art.21 – Evidence Act, 1872 – s.33 - Doctrine of vicarious liability.
1050
VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI 1051
DUDABHAI PATEL

Penal Code, 1860 – s.141 – Unlawful assembly – Elements A
of – Discussed.
Penal Code, 1860 – s.149 – Scope and amplitude of –
Discussed.
Penal Code, 1860– ss.146-148 – Offences under, distinction
between– Discussed. B

Code of Civil Procedure, 1908 – ‘Issues’ framed under,
different from ‘Charges’ framed under CrPC, 1973 – Discussed –
Code of Criminal Procedure, 1973.
Disposing of the appeals, the Court C
HELD: 1.1 Sections 211 to 213 of the Code of Criminal
Procedure, 1973 deal with the particulars which are required to
be contained in a charge in a criminal trial. These provisions are
made to ensure a fair procedure by which a person accused of an
offence should be tried– a procedure in compliance with the D
requirement of the mandate of Article 21 of the Constitution of
India. The accused are entitled in law to know with precision
what is the charge on which they are put to trial. [Para 15][1061-
A-B]
1.2 In the case on hand where three persons died and five
E
persons were injured allegedly in an attack by all the accused,
the charge under Section 302 IPC must have been framed on
three counts against specifically named accused with respect to
each of the deceased. Causing death to each one of the three
persons or causing injury to each one of the five persons is a
distinct offence. It is also necessary that the court should record F
a specific finding as to the guilt of the accused under Section 302
IPC qua the death of a named deceased. If different accused are
prosecuted for causing the death of the three different deceased,
then distinct charges should have been framed specifying which
of the accused are charged for the offence of causing the death of
G
which one of the three different deceased. None of the accused
is eventually found vicariously guilty of the offence under Section
302 IPC read with Section 149 IPC. An erroneous or irregular
or even absence of a specific charge shall not render the
conviction recorded by a court invalid unless the appellate court
comes to a conclusion that failure of justice has in fact been H
1052 SUPREME COURT REPORTS [2018] 6 S.C.R.

A occasioned thereby. [Paras 13, 16 and 18][1061-E-H; 1062-A, D-
E]
1.3 In cases where a large number of accused constituting
an ‘unlawful assembly’ are alleged to have attacked and killed
one or more persons, it is not necessary that each of the accused
B should inflict fatal injuries or any injury at all. Invocation of Section
149 IPC is essential in such cases for punishing the members of
such unlawful assemblies on the ground of vicarious liability even
though they are not accused of having inflicted fatal injuries in
appropriate cases if the evidence on record justifies. The mere
presence of an accused in such an ‘unlawful assembly’ is sufficient
C to render him vicariously liable under Section 149 IPC for causing
the death of the victim of the attack provided that the accused
are told that they have to face a charge rendering them vicariously
liable under Section 149 IPC for the offence punishable under
Section 302 IPC. Failure to appropriately invoke and apply Section
D 149 enables large number of offenders to get away with the crime.
[Para 19][1062-E-G]
1.4 Sections 141, 146 and 148 IPC create distinct offences.
Section 149 only creates a vicarious liability. However, Sections
146, 148 and 149 contain certain legislative declarations based
E on the doctrine of vicarious liability. To be liable for punishment
under any one of the provisions, the fundamental requirement is
the existence of an unlawful assembly as defined under Section
141 made punishable under Section 143 IPC. The concept of an
unlawful assembly has two elements- (i) The assembly should
consist of at least five persons; (ii) They should have a common
F object to commit an offence or achieve any one of the objects
enumerated therein. [Paras 27, 28][1066-D-G]
1.5 For recording a conclusion, that a person is (i) guilty of
any one of the offences under Sections 143, 146 or 148 or (ii)
vicariously liable under Section 149 for some other offence, it
G must first be proved that such person is a member of an ‘unlawful
assembly’ consisting of not less than five persons irrespective of
the fact whether the identity of each one of the 5 persons is proved
or not. If that fact is proved, the next step of inquiry is whether
the common object of the unlawful assembly is one of the 5
H enumerated objects specified under Section 141 IPC. The
VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI 1053
DUDABHAI PATEL

common object of assembly is normally to be gathered from the A
circumstances of each case such as the time and place of the
gathering of the assembly, the conduct of the gathering as
distinguished from the conduct of the individual members are
indicative of the common object of the gathering. Assessing the
common object of an assembly only on the basis of the overt acts
B
committed by such individual members of the assembly, is
impermissible. For example, if more than five people gather
together and attack another person with deadly weapons
eventually resulting in the death of the victim, it is wrong to
conclude that one or some of the members of such assembly did
not share the common object with those who had inflicted the C
fatal injuries (as proved by medical evidence); merely on the
ground that the injuries inflicted by such members are relatively
less serious and non fatal. [Paras 29, 30][1066-G-H; 1067-A-D]
2. The Sessions Court purported to frame ‘issues’– a
practice statutorily mandated under the Code of Civil Procedure. D
But, it is informed that in the State of Gujarat the practice of
framing “issues” is prevalent even in the trial of a criminal case.
“Issues” are not the same as “charges”. They are not framed
prior to the commencement of trial. They are only ‘identified’ at
the time of writing the judgment. Issue Nos.2 and 4 framed by
the Sessions Judge are with respect to offence of unlawful E
assembly, rioting and the vicarious liability under the IPC. Issue
No. 2 makes a reference to all the accused put to trial in the
context of the offences of the unlawful assembly and rioting. Issue
No. 4 does not make a reference to “all the accused”, in the
context of the offences under Sections 302 read with Section 149 F
IPC. Since the prosecution invoked Section 149, charges should
have been framed specifying which of the accused were sought
to be punished for which offence with the aid of Section 149. From
the judgment of the Sessions Court, there is no clear findings
recorded (i) as to the existence of an unlawful assembly, (ii) if it
existed, how many (number of the members) were present in the G
unlawful assembly. There appears to be an accusation of the
commission of the offence under Section 143 IPC. There was no
finding whether the assembly consisted of 17 members or less
(number) and which of the 17 accused were present (the identity)
in the assembly. Nor was there any clear finding regarding the H
1054 SUPREME COURT REPORTS [2018] 6 S.C.R.

A common object of the assembly. Consequentially, there was no
finding recorded by the Sessions Court whether an offence of
unlawful assembly punishable under Section 143 was committed
by all or some of the accused. The Trial Court recorded the
conviction under Section 148 IPC against 4 accused. The record
is not very clear whether the accused were told they were to face
B
a charge of being members of the unlawful assembly, whose
common object was to commit murder of the three deceased.
[Paras 33, 36][1067-H; 1068-A-B, H; 1069-A-G]
3. It would not be justified to reverse the finding of acquittal
in the case on hand on the grounds that (i) the framing of charges
C was egregiously erroneous and not in accordance with the
provisions of the CrPC; or (ii) the courts below failed to record
appropriate findings with respect to the various offences which
the accused are said to have committed; or (iii) the 1st appellate
court’s reasoning in declining to reverse a finding of acquittal
D recorded by the trial court was defective. For all the
abovementioned reasons, a conclusion should have been recorded
that there is a failure of justice in the case on hand looked at from
the point of view of either the victims or even from the point of
view of the convicted accused. The most normal consequence
thereafter should have been to order a fresh trial, but such a
E course of action after a lapse of 26 years of the occurrence of the
crime, would not serve any useful purpose because some of the
accused have died in the interregnum. The families of each of
the deceased be compensated by the award of public law damages
and should be paid by the State an amount of Rs. 25,00,000/-
F each and the injured witnesses, if still surviving, otherwise their
families are required to be paid an amount of Rs.10,00,000/- each.
[Paras 39, 43, 44][1071-E-G; 1073-E-G; 1074-A-B]
Shambhu Nath Singh & Others v. State of Bihar AIR
1960 SC 725; Esher Singh v. State of Andhra Pradesh
G (2004) 11 SCC 585 : [2004] 2 SCR 1180; Masalti v.
State of U.P. AIR 1965 SC 202 : [1964] SCR 133; Dalbir
Singh v. State of U.P. (2004) 5 SCC 334; Shivaji
Sahabrao Bobade & Anr. v. State of Maharashtra
(1973) 2 SCC 793 : [1974] 1 SCR 489; Nilabati Behera
(Smt) alias Lalita Behera (Through the Supreme Court
H
VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI 1055
DUDABHAI PATEL

Legal Aid Committee) v. State of Orissa & Others (1993) A
2 SCC 746 : [1993] 2 SCR 581– relied on.
Sheo Mahadeo Singh v. State of Bihar (1970) 3 SCC
46; Lalji v. State of Uttar Pradesh (1989) 1 SCC 437 :
[1989] 1 SCR 130; Bala Seetharamaiah v. Perike S.
Rao (2004) 4 SCC 557 : [2004] 3 SCR 28; Ram Gope B
v. State of Bihar AIR 1969 SC 689 : [1969] SCR 558;
Yeshwant & Others v. State of Maharashtra (1972) 3
SCC 639 : [1973] 1 SCR 291; Manga alias Man Singh
v. State of Uttarakhand (2013) 7 SCC 629 : [2013] 3
SCR 175; Dalip Singh and Ors. v. State of Punjab AIR
1953 SC 364 : [1955] SCR 393; Sundar Singh v. State C
AIR 1955 All 232(FB); Sabir v. Queen Empress (1894)
ILR 22 Cal 276; In re Choitano Ranto and Others AIR
1916 Mad 788 – referred to.
Case Law Reference
D
AIR 1960 SC 725 relied on Para 14
(1970) 3 SCC 46 referred to Para 14
[1989] 1 SCR 130 referred to Para 14
[2004] 2 SCR 1180 relied on Para 17
E
(2004) 5 SCC 334 relied on Para 18
[2004] 3 SCR 28 referred to Para 20
[1969] SCR 558 referred to Para 21
[1973] 1 SCR 291 referred to Para 23 F
[2013] 3 SCR 175 referred to Para 23
[1955] SCR 393 referred to Para 23
AIR 1955 All 232(FB) referred to Para 24
(1894) ILR 22 Cal 276 referred to Para 26 G
AIR 1916 Mad 788 referred to Para 26
[1964] SCR 133 relied on Para 26
[1974] 1 SCR 489 relied on Para 42
[1993] 2 SCR 581 relied on Para 44 H
1056 SUPREME COURT REPORTS [2018] 6 S.C.R.

A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1525 of 2009.
From the Judgment and Order dated 05.10.2004 of the High Court
of Gujarat at Ahmedabad in Criminal Appeal No. 138 of 1996.
WITH
B
Crl. A. Nos. 1526-1527 of 2009.
S. Nagamuthu (AC), Ms. Tarannum Cheema (AC), A. Selvin
Raja, Aniruddha P. Mayee, Avnish M. Oza, Chirag Jain, D.N. Ray,
Ms. Hemantika Wahi, Ms. Vishakha, R. P. Wadhwani, Ms. Smrithi Suresh,
C Ms. Hiral Gupta, Advs. for the appearing parties.
The Judgment & Order of the Court were delivered by
CHELAMESWAR, J. 1. On 11.07.1992, at about 10.10 pm, an
incident occurred in the village of Nana Ankadia leaving 3 persons dead
and 5 persons injured. It appears from the judgment of the High Court:
D “…information about the incident was conveyed by wireless
message by PSO of Amreli (Rural) Police Station to PSI, Mr. NG
Rajput. On the basis of the said information, PSI, Rajput had gone
to village Nana Ankadia and found three dead bodies lying near
the shop of Bhikabhai and after getting some further information,
E he had gone to Amreli Hospital and recorded complaint from Vinu
Ranchhod, which was registered at about 1.30 a.m. on 12.07.1992.
On the basis of the said complaint, PSI, Rajput started investigation
by recording statements, drawing panchnamas and sending the
dead bodies for post mortem etc.”
2. On completion of investigation, a charge-sheet came to be filed
F
against 15 accused because the remaining two accused A-16 and A-17
were absconding for some time. The matter was committed to the
Sessions Court of Amreli as offences were exclusively triable by the
Court of Sessions. In Sessions Case No. 118/1992, trial was conducted
against 15 accused. The trial insofar as the two absconding accused
G was segregated from the trial of the remaining even after they were
apprehended and they were put to trial separately in Sessions Case No.
58/98 before the Special Judge of the Fast Track Court, Amreli.
3. In Sessions Case No.118/1992, the Sessions Court by its
judgment dated 17.01.1996 recorded the conviction of A-1, A-5, A-10
H and A-12 as follows:
VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI 1057
DUDABHAI PATEL [CHELAMESWAR, J.]

“Prosecution has proved the criminal offence punishable under A
section 302 and 148 of the Indian Penal Code and under section
135(1) of the B.P. Act, against the accused No. 10 and [12]
respectively Nanjibhai Khodabhai and Ratilal Nagji, and therefore
the accused No. 10 and 12 are convicted under sections 302, 148
IPC and section 135(1) of the B.P. Act. The accused No. 1 Ravji
B
Duda is convicted for the criminal offence punishable under section
326 and 148 of IPC and section 135(1) of B.P. Act. Whereas the
accused No. 5 Manubhai Makanbhia is convicted for the criminal
offence punishable under section 326, 323 and 148 of the IPC
and section 135(1) of the B.P. Act. Whereas the accused other
than these accused, the prosecution has not been able to prove C
their case beyond doubt therefore the accused No.
2,3,4,6,7,8,9,11,13,14 and 15 are given the benefit of doubt and are
acquitted, and if they are not required in any other matter, then
the accused Nos. 2,3,4,6,7,8,11,13,14 be released from judicial
custody. The accused No. 2,4,9 and 15 are enlarged on bail, their
D
bail bonds are ordered to be cancelled.”
And by separate order dated 17.01.1996, A-10 and A-12 were
sentenced to imprisonment for life for an offence punishable under Section
302 Indian Penal Code [hereinafter referred to as “IPC”]; one year
rigorous imprisonment for an offence punishable under Section 148 IPC;
and six months rigorous imprisonment for an offence punishable under E
Section 135(1) of the Bombay Police Act [hereinafter referred to as
“BP Act”].
4. A-1 was sentenced to suffer six years rigorous imprisonment
and a fine of Rs.1000/- for an offence under Section 326 IPC and one
year rigorous imprisonment for an offence punishable under Section 148 F
IPC and six months rigorous imprisonment for an offence under Section
135(1) of the BP Act.
5. A-5 was sentenced to six years rigorous imprisonment and fine
for an offence punishable under Section 326 IPC and one year rigorous
imprisonment for an offence punishable under Section 148 IPC, six G
months rigorous imprisonment for an offence under Section 323 IPC
and six months rigorous imprisonment for an offence under Section 135(1)
of the BP Act.
6. All the convicted accused preferred appeal No. 166/1996 before
the High Court of Gujarat challenging conviction and sentence. The State H
1058 SUPREME COURT REPORTS [2018] 6 S.C.R.

A of Gujarat filed Criminal Appeal No.167/1996 challenging the acquittal
of the remaining thirteen accused. It must be mentioned here that the
original complainant also filed a Criminal Revision Petition No.138/1996
challenging the decision of the Sessions Court acquitting eleven of the
accused.
B 7. The two absconding accused nos.16 and 17 “were tried
separately for the offences punishable under sections 147, 148, 120B,
302 and 307 read with section 149 of IPC and under Section 25(1)(A) of
the Arms Act and under Section 135 of Bombay Police Act in Sessions
Case No.58/98.”1 They were found not guilty by the Fast Track Court,
Amreli by judgment dated 19.07.2003. The State of Gujarat filed Criminal
C Appeal No.1226/2003 against the acquittal of accused nos.16 and 17.
8. All the appeals and the revision were clubbed together and
disposed of by the High Court by a common judgment dated 5.10.2004,
which is the subject matter of the various appeals before us.
D 9. The appeal of A-10 and A-12 was dismissed by the High Court.
The appeal of accused nos.1 and 5 was partly allowed. The State appeals
challenging acquittals of various accused were dismissed along with the
revision filed by the de facto complainant. Hence, these appeals, by the
State and the de facto complainant.

E 10. Admittedly all the convicts have by now served out their
sentences. Some of the accused have even died.
11. An examination of the record in these appeals left us in distress.
The judgments of the Sessions Courts as well as the High Court leave
too much to be desired.
F 12. We notice the following striking features from the judgment
of the Sessions Court that:
(i) Charges have not been framed in accordance with the
requirements of the CrPC;
(ii) There appears to be a charge (however defectively framed),
G conviction and sentencing of 4 accused for an offence under
Section 148 IPC;
(iii) There is an omnibus accusation that the accused committed
offences falling under Sections 143, 147, 148 and vicariously
1
2.2, Judgment of the High Court.
H
VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI 1059
DUDABHAI PATEL [CHELAMESWAR, J.]

liable by virtue of Section 149 IPC for the offence of Section A
302 IPC;
(iv) The judgment does not contain any clear finding:
(a) regarding the existence of an ‘unlawful assembly’ i.e.
regarding the accusation of an offence punishable under
Section 143 IPC; B

(b) number of persons (identified or not) who participated in
the attack on the deceased and the injured; or
(c) the identity of such participants.
(v) The judgment is singularly silent regarding the post mortem C
examination report of one of the 3 deceased and the evidence
of the doctor who conducted the post mortem examination. It
only discusses the evidence of the doctor who conducted the
post mortem on the dead bodies of two of the deceased;
(vi) The judgment does not specify whether the accused 10 and D
12 are guilty of causing the death of all the 3 deceased or one
of them;
(vii) The legal analysis and appreciation of evidence in the context
of the question of vicarious liability is wholly unsubstantial and
not in accordance with the settled principles of law; and E
(viii) There is material on record to indicate that even some of the
accused received injuries in the transaction but no material is
on record indicating whether any crime is registered and
investigated or anybody is prosecuted in that regard.
13. The judgment in Sessions Case No.118/1992 commences with F
an omnibus statement:
“In this case against the present accused, there are charges of
offences under sections 302, 307, 324, 147, 148, 149, 120B of
IPC and section 25(1)(aa) of the Arms Act and section 135 of the
Bombay Police Act, for these offences the charge sheet is filed.” G

Later in the same paragraph it is stated:
“Fifteen accused in the case have remained present before the
court, my learned predecessor has on 21/3/1994 below Exh. 1 on
charges of offences punishable under sections 143, 147, 148, 302
H
1060 SUPREME COURT REPORTS [2018] 6 S.C.R.

A read with 149, 120-b, 307 read with 147, 114, 120-b of the Indian
Penal Code and against the accused Nos. 7, 8 and 11 charges
under section 27 of the Arms Act, and against all the accused the
offence punishable under section 25 of the Indian Telegraphs Act,
and for carrying weapons the charges of violation of the
Notification by the District Magistrate Amreli, for which against
B
the accused Nos. 2,4,9,15,10,12,13, 1, 3, 6, 7 and 8 the charges of
offence punishable under section 135 of the Bombay Police Act,
charges were pronounced against the accused.”
It appears from the above that no clear charges appear to have
been framed. At any rate, no document is brought to our notice showing
C the charges framed by the Court in spite of repeated enquiry. It must be
remembered that it is a case where three persons died and five persons
were injured allegedly in an attack by all the accused. Causing death to
each one of the three persons or causing injury to each one of the five
persons is a distinct offence. Similarly, an offence under Section 307 is a
D distinct offence specific to a particular victim. The offences under Sections
147 and 148 are distinct offences. Section 149 IPC does not create a
separate offence but only declares the vicarious liability of all the members
of an unlawful assembly in certain circumstances.
14. It was held by a three-judge bench of this Court in Shambhu
E Nath Singh & Others v. State of Bihar2:
“Section 149 of the Indian Penal Code is declaratory of the
vicarious liability of the members of an unlawful assembly
for acts done in prosecution of the common object of that assembly
or for such offences as the members of the unlawful assembly
F knew to be likely to be committed in prosecution of that object”
[emphasis supplied]
However, there are benches of a lesser smaller strength3 which
have observed that Section 149 creates a specific and distinct offence.
In view of the fact that decision in Shambu Nath Singhwas decided by
G a larger bench, the law declared therein must be taken to be declaring
the correct legal position. With utmost respect, we may also add that
the same is in accord with the settled principles of the interpretation of
the statutes having regard to the language of Section 149 and its context.
2
AIR 1960 SC 725
3
Sheo Mahadeo Singh v. State of Bihar, (1970) 3 SCC 46 paragraph 9; Lalji v. State of
H Uttar Pradesh, 1989 (1) SCC 437 paragraph 9
VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI 1061
DUDABHAI PATEL [CHELAMESWAR, J.]

15. Chapter XVII of the Code of Criminal Procedure [hereinafter A
referred to as “CrPC”] deals with “charges” in a criminal case. Sections
211 to 213 deal with the particulars which are required to be contained in
a charge in a criminal trial. These provisions are made to ensure a fair
procedure by which a person accused of an offence should be tried – a
procedure in compliance with the requirement of the mandate of Article
B
21 of the Constitution of India. The accused are entitled in law to know
with precision what is the charge on which they are put to trial. It was
held by this Court in Esher Singh v. State of Andhra Pradesh4:
“It is the precise formulation of the specific accusation made
against a person who is entitled to know its nature at the earliest
stage. A charge is not an accusation made or information C
given in the abstract, but an accusation made against a person
in respect of an act committed or omitted in violation of penal law
forbidding or commanding it. In other words, it is an accusation
made against a person in respect of an offence alleged to have
been committed by him. A charge is formulated after inquiry as D
distinguished from the popular meaning of the word as implying
inculpation of a person for an alleged offence as used in Section
224 of the IPC.”
[emphasis supplied]
16. In the case on hand where three persons died, the charge E
under Section 302 must have been framed on three counts against
specifically named accused with respect to each of the deceased.
Assuming for the sake of argument, that all the 17 persons are accused
of causing the death of each one of the three deceased, distinct charges
should have been framed with respect to each of the deceased. It is also F
necessary that the court should record a specific finding as to the guilt of
the accused under Section 302 IPC qua the death of a named deceased.
If different accused are prosecuted for causing the death of the three
different deceased, then distinct charges should have been framed
specifying which of the accused are charged for the offence of causing
the death of which one of the three different deceased. Charges should G
also have been proved clearly indicating which of the accused is charged
for the offence under Section 302 simpliciter or which of the accused
are vicariously liable under Section 149 IPC for causing the death of one
or more of the three deceased. Of course, none of the accused is
4
(2004) 11 SCC 585, para 20
H
1062 SUPREME COURT REPORTS [2018] 6 S.C.R.

A eventually found vicariously guilty of the offence under Section 302 IPC
read with Section 149 IPC.
17. By definition of the offences covered under Sections 147 and
1485, a person cannot be charged simultaneously with both the offences
by the very nature of theses offences. A person can only be held guilty
B of an offence punishable either under Section 147 or Section 148.
18. The legal consequences of framing defective charges or
omission in charges was considered by this Court in Dalbir Singh v.
State of U.P.6 and this Court held as follows:
“Section 464 of the Code deals with the effect of omission to
C frame, or absence of, or error in, charge. Sub-section (1) of this
section provides that no finding, sentence or order by a court of
competent jurisdiction shall be deemed invalid merely on the ground
that no charge was framed or on the ground of any error, omission
or irregularity in the charge including any misjoinder of charges,
unless, in the opinion of the court of appeal, confirmation or
D revision, a failure of justice has in fact been occasioned thereby.”
It is obvious from the above that an erroneous or irregular or even
absence of a specific charge shall not render the conviction recorded by
a court invalid unless the appellate court comes to a conclusion that
failure of justice has in fact been occasioned thereby.
E 19. In cases where a large number of accused constituting an
‘unlawful assembly’ are alleged to have attacked and killed one or more
persons, it is not necessary that each of the accused should inflict fatal
injuries or any injury at all. Invocation of Section 149 is essential in such
cases for punishing the members of such unlawful assemblies on the
ground of vicarious liability even though they are not accused of having
F
inflicted fatal injuries in appropriate cases if the evidence on record
justifies. The mere presence of an accused in such an ‘unlawful
assembly’ is sufficient to render him vicariously liable under Section 149
IPC for causing the death of the victim of the attack provided that the
accused are told that they have to face a charge rendering them vicariously
G liable under Section 149 IPC for the offence punishable under Section
302 IPC. Failure to appropriately invoke and apply Section 149 enables
large number of offenders to get away with the crime.
5
Section 146 IPC defines the offence of rioting. Section 147, IPC prescribes punishment
for offence of rioting. Section 148, IPC prescribes punishment for offence of rioting
armed with deadly weapons.
H 6
(2004) 5 SCC 334
VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI 1063
DUDABHAI PATEL [CHELAMESWAR, J.]

20. This Court in Bala Seetharamaiah v. Perike S. Rao7 held: A
“8. Unfortunately, the Sessions Judge did not frame charge against
the accused persons for offence punishable under Section 302
IPC read with Section 149 IPC. It is also important to note that
the relevant prosecution allegations so as to bring in the ingredients
of the offence punishable under Section 302 IPC read with Section B
149 IPC also were not incorporated in the charge framed by the
Sessions Judge. The accused were not told that they had to face
charges of being members of an unlawful assembly and the
common object of such assembly was to commit murder of the
deceased and in furtherance of that common object murder was
committed and thereby they had a constructive liability and thus C
they committed the offence punishable under Section 302 IPC
read with Section 149 IPC. Of course the mere omission to
mention Section 149 may be considered as an irregularity, but
failure to mention the nature of the offence committed by them
cannot be said to be a mere irregularity. Had this mistake been D
noticed at the trial stage, the Sessions Judge could have corrected
the charge at any time before the delivery of the judgment. In the
instant case, the accused were told to face a charge punishable
under Section 302 simpliciter and there was no charge under
Section 302 IPC read with Section 149 IPC. Therefore, it is not
possible to reverse the conviction of the accused under Section E
326 IPC and substitute the conviction for the offence punishable
under Sections 302/149 IPC as there was no charge framed
against them for such offence.”
21. When a large number of people gather together (assemble)
and commit an offence, it is possible that only some of the members of F
the assembly commit the crucial act which renders the transaction an
offence and the remaining members do not take part in that ‘crucial act’
- for example in a case of murder, the infliction of the fatal injury. It is in
those situations, the legislature thought it fit as a matter of legislative
policy to press into service the concept of vicarious liability for the crime.8
7
(2004) 4 SCC 557, para 8. G
8
Ram Gope v. State of Bihar, AIR 1969 SC 689 paragraph 5: “… When a concerted
attack is made on the victim by a large number of persons it is often difficult to
determine the actual part played by each offender. But on that account for an offence
committed by a member of the unlawful assembly in the prosecution of the common
object or for an offence which was known to be likely to be committed in prosecution
of the common object, persons proved to be members cannot escape the consequences
H
arising from the doing of that act which amounts to an offence.”
1064 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Section 149 IPC is one such provision. It is a provision conceived in the
larger public interest to maintain the tranquility of the society and prevent
wrong doers (who actively collaborate or assist the commission of
offences) claiming impunity on the ground that their activity as members
of the unlawful assembly is limited.
B The responsibility of the prosecution and/or of the Court (in a
case like the one at hand where large numbers of people (5 or more) are
collectively accused to have committed various offences and subjected
to trial) - in examining whether some of the members of such group are
vicariously liable for some offence committed by some of the other
members of such group - requires an analysis. Such analysis has two
C components – (i) the amplitude and the vicarious liability created under
Section 149; and (ii) the facts which are required to be proved to hold an
accused vicariously liable for an offence.
22. To understand the true scope and amplitude of Section 149
IPC it is necessary to examine the scheme of Chapter VIII (Sections
D 141 to 160) of the IPC which is titled “Of the offences against the public
tranquility”. Sections 141 to 158 deal with offences committed collectively
by a group of 5 or more individuals.
23. Section 141 IPC declares an assembly of five or more persons
to be an ‘unlawful assembly’ if the common object of such assembly is
E to achieve any one of the five objects enumerated in the said section. 9
One of the enumerated objects is to commit any offence.10"The words
falling under section 141, clause third “or other offence” cannot be
restricted to mean only minor offences of trespass or mischief. These
words cover all offences falling under any of the provisions of the Indian
F Penal Code or any other law.”11 The mere assembly of 5 or more persons
with such legally impermissible object itself constitutes the offence of
unlawful assembly punishable under Section 143 of the IPC. It is not
necessary that any overt act is required to be committed by such an
assembly to be punished under Section 143.12
24. If force or violence is used by an unlawful assembly or any
G
member thereof in prosecution of the common objective of such assembly,
9
See Yeshwant & Others v. State of Maharashtra, (1972) 3 SCC 639
10
Section 40 “offence”.- Except in the Chapters and sections mentioned in clauses 2
and 3 of this section, the word “offence” denotes a thing made punishable by this Code.
11
Manga alias Man Singh Vs. State of Uttarakhand (2013) 7 SCC 629
12
See Dalip Singh and Ors. Vs. State of Punjab , AIR 1953 SC 364.
H
VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI 1065
DUDABHAI PATEL [CHELAMESWAR, J.]

every member of such assembly is declared under Section 146 to be A
guilty of the offence of rioting punishable with two years imprisonment
under Section 147. To constitute the offence of rioting under Section
146, the use of force or violence need not necessarily result in the
achievement of the common object.13 In other words, the employment
of force or violence need not result in the commission of a crime or the
B
achievement of any one of the five enumerated common objects under
Section 141.
25. Section 148 declares that rioting armed with deadly weapons
is a distinct offence punishable with the longer period of imprisonment
(three years). There is a distinction between the offences under 146
and 148. To constitute an offence under Section 146, the members of C
the ‘unlawful assembly’ need not carry weapons. But to constitute an
offence under Section 148, a person must be a member of an unlawful
assembly, such assembly is also guilty of the offence of rioting under
Section 146 and the person charged with an offence under Section 148
must also be armed with a deadly weapon.14 D
26. Section 149 propounds a vicarious liability 15 in two
contingencies by declaring that (i) if a member of an unlawful assembly
commits an offence in prosecution of the common object of that
assembly, then every member of such unlawful assembly is guilty of
the offence committed by the other members of the unlawful assembly E
and (ii) even in cases where all the members of the unlawful assembly
do not share the same common object to commit a particular offence, if
they had the knowledge of the fact that some of the other members
of the assembly are likely to commit that particular offence in prosecution
of the common object. The scope of Section 149 IPC was enunciated
by this Court in Masalti16: F

“The crucial question to determine in such a case is whether the
assembly consisted of five or more persons and whether the said
persons entertained one or more of the common objects as specified
by section 141. While determining this question, it becomes relevant
to consider whether the assembly consisted of some persons who G
were merely passive witnesses and had joined the assembly as a
13
See Sundar Singh Vs. State, AIR 1955 All 232 (FB)
14
See Sabir v. Queen Empress, (1894) ILR 22 Cal 276; In re Choitano Ranto and
Others, AIR 1916 Mad 788
15
See Shambu Nath Singh Vs. State of Bihar, AIR 1960 SC 725.
16
Masalti v. State of U.P., AIR 1965 SC 202. H
1066 SUPREME COURT REPORTS [2018] 6 S.C.R.

A matter of idle curiosity without intending to entertain the common
object of the assembly. It is in that context that the observations
made by this court in the case of Baladin assume significance;
otherwise, in law, it would not be correct to say that before a
person is held to be a member of an unlawful assembly, it must be
shown that he had committed some illegal overt act or had been
B
guilty of some illegal omission in pursuance of the common object
of the assembly. In fact, section 149 makes it clear that if an
offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as
the members of that assembly knew to be likely to be committed
C in prosecution of that object, every person who, at the time of the
committing of that offence, is a member of the same assembly, is
guilty of that offence, and that emphatically brings out the principle
that the punishment prescribed by section 149 is in a sense vicarious
and does not always proceed on the basis that the offence has
been actually committed by every member of the unlawful
D
assembly.”
27. It can be seen from the above, Sections 141, 146 and 148
create distinct offences. Section 149 only creates a vicarious liability.
However, Sections 146, 148 and 149 contain certain legislative
declarations based on the doctrine of vicarious liability. The doctrine is
E well known in civil law especially in the branch of torts, but is applied
very sparingly in criminal law only when there is a clear legislative
command. To be liable for punishment under any one of the
provisions, the fundamental requirement is the existence of an
unlawful assembly as defined under Section 141 made punishable
F under Section 143 IPC.
28. The concept of an unlawful assembly as can be seen from
Section 141 has two elements;
(i) The assembly should consist of at least five persons; and

G (ii) They should have a common object to commit an offence or
achieve any one of the objects enumerated therein.
29. For recording a conclusion, that a person is (i) guilty of any
one of the offences under Sections 143, 146 or 148 or (ii) vicariously
liable under Section 149 for some other offence, it must first be proved
that such person is a member of an ‘unlawful assembly’ consisting of
H
VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI 1067
DUDABHAI PATEL [CHELAMESWAR, J.]

not less than five persons irrespective of the fact whether the identity of A
each one of the 5 persons is proved or not. If that fact is proved, the next
step of inquiry is whether the common object of the unlawful assembly
is one of the 5 enumerated objects specified under Section 141 IPC.
30. The common object of assembly is normally to be gathered
from the circumstances of each case such as the time and place of the B
gathering of the assembly, the conduct of the gathering as distinguished
from the conduct of the individual members are indicative of the common
object of the gathering. Assessing the common object of an assembly
only on the basis of the overt acts committed by such individual members
of the assembly, in our opinion is impermissible. For example, if more
than five people gather together and attack another person with deadly C
weapons eventually resulting in the death of the victim, it is wrong to
conclude that one or some of the members of such assembly did not
share the common object with those who had inflicted the fatal injuries
(as proved by medical evidence); merely on the ground that the injuries
inflicted by such members are relatively less serious and non fatal. D
31. For mulcting liability on the members of an unlawful assembly
under Section 149, it is not necessary that every member of the unlawful
assembly should commit the offence in prosecution of the common object
of the assembly. Mere knowledge of the likelihood of commission of
such an offence by the members of the assembly is sufficient. For E
example, if five or more members carrying AK 47 rifles collectively
attack a victim and cause his death by gunshot injuries, the fact that one
or two of the members of the assembly did not in fact fire their weapons
does not mean that they did not have the knowledge of the fact that the
offence of murder is likely to be committed.
F
32. The identification of the common object essentially requires
an assessment of the state of mind of the members of the unlawful
assembly. Proof of such mental condition is normally established by
inferential logic. If a large number of people gather at a public place at
the dead of night armed with deadly weapons like axes and fire arms
and attack another person or group of persons, any member of the G
attacking group would have to be a moron in intelligence if he did not
know murder would be a likely consequence.
33. The Sessions Court purported to frame ‘issues’ – a practice
statutorily mandated under the Code of Civil Procedure as one of the
H
1068 SUPREME COURT REPORTS [2018] 6 S.C.R.

A ingredients of the adjudication of a suit. But, we are informed that in the
State of Gujarat the practice of framing “issues” is prevalent even in the
trial of a criminal case. Be that as it may, obviously ‘issues’ are not the
same as “charges”. They are not framed prior to the commencement
of trial. They are only ‘identified’ at the time of writing the judgment.
B 34. Issue Nos.2 and 4 framed by the Sessions Judge are with
respect to offence of unlawful assembly, rioting and the vicarious liability
under the IPC. Issue Nos. 2 and 4 read as follows:-
“(2) Whether the prosecution has proved that, the accused and
the persons of the complainant party are the Kadva and Leuva
C Patels of teh Nana Ankadiya, Taluka Amreli, and due to the enemity
between them on 11/7/92 at about 22-15 at night near the Nana
Ankadiya village Bus stand, near the shop of Bhikhabhai in the
public place all the accused in this matter and the absconding
accused Chandubhai Vallabhbhai and Vallabhbhai Khodabhai,
thus all of these had constituted an illegal assembly and
D with the common intention of killing the Leuva Patels of the Nana
Ankadiya village, attempted to murder, and at that above time and
place, all these accused and the absconding accused with the
intentions of achieving their common object, caused rioted and
committed criminal offence punishable under section 143, 147?
E (4) Whether the prosecution is able to prove that, the accused
had for achieving the common object of their illegal assembly,
made use of the weapons carried by them and had assaulted
Chhaganbhai Premjibhai Patel, Madhubhai Mohanbhai Patel and
Pragjihai Parbatbhai Patel and fired at them and by such act they
F were well aware that they would certainly be killed and inspite of
this intentionally and with the intentions of killing, caused grievous
injuries, and all the three persons were assaulted and murdered,
the said act was committed by the accused No. 2,4,5 and 9 using
stick, and accused No. 10, 12 using sword, and accused No. 1, 3
and 6 using their dhariya, all three deceased were caused injuries
G and murdered, and thus the accused have committed criminal
offence punishable under section 302, 149 and 114 of the IPC”
[emphasis supplied]
35. Issue No. 2 makes a reference to all the accused put to trial
along with absconding accused (put to trial subsequently in Sessions
H
VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI 1069
DUDABHAI PATEL [CHELAMESWAR, J.]

Case No. 58) in the context of the offences of the unlawful assembly A
and rioting. Issue No. 4 does not make a reference to “all the accused”,
in the context of the offences under Sections 302 read with Section 149
IPC. But in view of the reference to the illegal (obviously the learned
Judge meant unlawful) assembly we assume that the Sessions Court
intended to examine the vicarious liability under Section 149 of all the
B
accused in the context of the death of the three victims. Since the
prosecution invoked Section 149, charges should have been framed
specifying which of the accused are sought to be punished for which
offence with the aid of Section 149.
36. From the judgment of the Sessions Court, we do not see any
clear findings recorded (i) as to the existence of an unlawful assembly, C
(ii) if it existed, how many (number of the members) were present in the
unlawful assembly. It must be remembered that the accusation is that
all the 17 accused were members of the unlawful assembly. There
appears to be an accusation of the commission of the offence under
Section 143 IPC. There is no finding whether the assembly consisted of D
17 members or less (number) and which of the 17 accused were present
(the identity) in the assembly. Nor is there any clear finding regarding
the common object of the assembly. Consequentially, there is no finding
recorded by the Sessions Court whether an offence of unlawful assembly
punishable under Section 143 was committed by all or some of the
accused. The Trial Court recorded the conviction under Section 148 E
IPC against 4 accused. Logically it should follow that the trial court was
of the opinion that there was an unlawful assembly. That means more
than 5 people participated in the attack. In such a case even assuming
for the sake of argument the identity of the accused (other than the 4
convicts) is not proved beyond reasonable doubt, A-1 and A-5 who were F
found to have been guilty of the offence under Section 148 should normally
have been found vicariously guilty of the offence of murder along with
A-10 and A-12 (provided of course that they are not prejudiced by the
improper framing of charges). The record is not very clear whether the
accused were told they were to face a charge of being members of the
unlawful assembly, whose common object was to commit murder of the G
three deceased.
37. Coming to the conviction of A-10 and A-12, the mere statement
in the Sessions Court’s judgment that two of the accused were found
guilty of offence punishable under Section 302 of the IPC falls short of
H
1070 SUPREME COURT REPORTS [2018] 6 S.C.R.

A the requirement of law in a case where more than one person died in the
transaction. Equally the other two accused who are convicted of other
offences mentioned earlier are entitled to know the details of the offence
for which they are convicted.
38. We shall now examine the judgment of the High Court. The
B High Court completely failed to take note of the defects in framing of
the charges.
The High Court recorded a finding at paragraph 19, that the
prosecution witnesses are trustworthy and they had witnessed the
incident. However, in paragraph 2017, the High Court records that there
C are discrepancies in the evidences of PWs regarding the part played by
each of the accused, the weapons carried by them, etc.. The High Court
takes note of the fact that the Sessions Court acquitted 11 accused by
giving the benefit of doubt. To us, it is not very clear whether the Sessions
Court doubted the very presence of the 11 accused in the unlawful
assembly or the Sessions Court doubted the very existence of an ‘unlawful
D assembly’ for the lack of proof of either the requisite number of the
accused to constitute the unlawful assembly or for the lack of proof of
the common object which renders the assembly to be an unlawful
assembly (even if the court concluded that more than 5 people
participated in the transaction). The High Court readily drew an inference
E that the Sessions Court disbelieved the case of the prosecution regarding
the existence of an unlawful assembly, in our opinion, a very unsatisfactory
way of analyzing the case of the prosecution vis-à-vis the vicarious liability
of the accused under Section 149.
The High Court recorded a finding with reference to 4 accused
F (A-2, A-4, A-9 and A-15) who according to the prosecution were alleged
17
“20.… However, all the PWs have not specifically involve all the accused. Likewise,
there are certain discrepancies in their evidence regarding the part played by them, the
weapons carried by them etc., that in our opinion is natural as all the accused, 17 in
number came all of a sudden and started assaulting and that too during night hours when
visibility was also low. Because of the same, the learned trial judge acquitted A-2, A-3,
A-4, A-6, A-7, A-8, A-9, A-11, A-13, A-14 and A-15 by giving benefit of doubt. In
G
other words, the learned trial judge disbelieved the case of the prosecution of
unlawful assembly and convicted the accused of their individual act. After carefully
examining the evidence on record, we are of the view that the presence of A-2, A-4, A-
9 and A-15 who were alleged to have carried sticks, is not established. The complainant
involved them in his further statement. Likewise other PWs are also contradicted about
the presence of these accused with their previous statement. Apart from that in the
H post mortem reports of the deceased as well as in the injury certificates of the injured,
the injuries do not reveal any injury possible with sticks.”
VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI 1071
DUDABHAI PATEL [CHELAMESWAR, J.]

to have carried sticks, that there is no evidence on record to prove the A
same on three grounds: (i) that their names were not to be found in the
FIR (ii) that there were improvements in the evidence of the PWs at
various stages regarding the presence of the four accused and (iii) that
the medical evidence does not disclose any injury which could have
been attributed to the beatings by sticks. In our opinion, the first two
B
reasons given by the High Court are legally tenable, however, the third
reason, i.e. the absence of injuries attributable to a stick, need not
necessarily result in a conclusion that the accused were not present in
the unlawful assembly. But the absence of such injuries cannot said to
be an irrelevant consideration in arriving at a conclusion whether the
four accused participated in the unlawful assembly in the background of C
the other two factors mentioned above. But a similar analysis with respect
to the seven of the other accused who were given the benefit of doubt
by the Sessions Court is lacking in the judgment of the High Court.
Another important aspect of the matter is that at least one of
the accused (A-7) appears to have been injured in the transaction and it D
appears from the judgment of the High Court that an FIR in that regard
was lodged. A submission was made that there was tampering with the
record to screen the offence.18 This aspect of the matter has not been
considered either by the trial Court or by the High Court. In fact, the
judgment of the trial Court contains further details regarding this aspect
of the matter but without recording any conclusive finding. E

39. The question is whether this court would be justified in
reversing the finding of acquittal in the case on hand on the grounds that
(i) the framing of charges is egregiously erroneous and not in accordance
with the provisions of the CrPC; or (ii) the courts below failed to record
appropriate findings with respect to the various offences which the F
accused are said to have committed; or (iii) the 1st appellate court’s
reasoning in declining to reverse a finding of acquittal recorded by the
trial court is defective? The answer to the question, in our opinion,
should be in the negative.
18
Impugned Judgment Para 6. G
“ … Finally, Mr. Shethna submitted that investigation in the instant case is
also not free from doubt. According to him, the manner in which the FIR given
by A-7, being the first in point of time, was treated and the manner in which the
investigating officer expresses his ignorance in the hospital of the erasure made
in the station diary etc. would go to show that a deliberate attempt is made to
falsely involve the accused.”
H
1072 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 40. In Sessions Case No.58/98 against A-16 and A-17, no evidence
was recorded independently. On the other hand, the evidence recorded
in Sessions Case No.118/1992 was marked as evidence in Sessions Case
No.58/1998. The Indian Evidence Act, 1872 does not permit such a
mode of proof of any fact barring in exceptional situations contemplated
in Section 3319 of the Indian Evidence Act.
B
41. There is no material on record to warrant the procedure
adopted by the Sessions Court. On that single ground, the entire trial of
Sessions Case No.58/98 is vitiated and is not in accordance with
procedures established by law. It is a different matter that both the accused
put to trial in Sessions Case No.58/98 were acquitted by the Fast Track
C Court and the High Court did not interfere with the conclusions recorded
by the Fast Track Court.
42. It is the grievance of the appellant that in spite of the gravity
of the offence and the evidence of the 5 injured witnesses, most of the
accused went scot free without any punishment and, hence, this appeal.
D
We do understand the grievance of the appellant. The following
prophetic words of Justice V.R. Krishna Iyer20 deserve to be etched on
the walls of every criminal court in this country:
“6. … The cherished principles or golden thread of proof
E beyond reasonable doubt which runs through the web of
19
“33. Relevancy of certain evidence for proving, in subsequent proceeding, the
truth of facts therein stated. ––Evidence given by a witness in a judicial proceeding,
or before any person authorized by law to take it, is relevant for the purpose of
proving, in a subsequent judicial proceeding, or in a later stage of the same judicial
proceeding, the truth of the facts which it states, when the witness is dead or cannot be
F found, or is incapable of giving evidence, or is kept out of the way by the adverse party,
or if his presence cannot be obtained without an amount of delay or expense which,
under the circumstances of the case, the Court considers unreasonable:
Provided ––
that the proceeding was between the same parties or their representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to
cross-examine;
G that the questions in issue were substantially the same in the first as in the second
proceeding.
Explanation.–– A criminal trial or inquiry shall be deemed to be a proceeding between
the prosecutor and the accused within the meaning of this section.”
20
In Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793,
para 6
H
VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI 1073
DUDABHAI PATEL [CHELAMESWAR, J.]

our law should not be stretched morbidly to embrace every A
hunch, hesitancy and degree of doubt. The excessive
solicitude reflected in the attitude that a thousand guilty
men may go but one innocent martyr shall not suffer is a
false dilemma. Only reasonable doubts belong to the
accused. Otherwise any practical system of justice will then
B
break down and lose credibility with the community. The
evil of acquitting a guilty person light heartedly as a learned
Author [ Glanville Williams in ‘Proof of Guilt’.] has sapiently
observed, goes much beyond the simple fact that just one
guilty person has gone unpunished. If unmerited acquittals
become general, they tend to lead to a cynical disregard of C
the law, and this in turn leads to a public demand for harsher
legal presumptions against indicted “persons” and more
severe punishment of those who are found guilty. Thus,
too frequent acquittals of the guilty may lead to a ferocious
penal law, eventually eroding the judicial protection of the
D
guiltless. …”
[emphasis supplied]
The prophecy came true when Section 21 of TADA Act, 1987
burdened the accused to prove his innocence, and when the Parliament
responded to the public outcry to impose more and more harsher E
punishments to persons found guilty of the offence of rape under Section
376 IPC etc.
43. For all the abovementioned reasons, we should have recorded
a conclusion that there is a failure of justice in the case on hand looked
at from the point of view of either the victims or even from the point of F
view of the convicted accused. The most normal consequence thereafter
should have been to order a fresh trial, but such a course of action after
a lapse of 26 years of the occurrence of the crime, in our opinion, would
not serve any useful purpose because as already indicated some of the
accused have died in the interregnum. We are not sure of the availability
of the witnesses at this point of time. Even if all the witnesses are G
available, how safe it would be to record their evidence after a quarter
century and place reliance on the same for coming to a gist conclusion
regarding the culpability of the accused?

H
1074 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 44. We are of the opinion that the only course of action available
to this court is that the victims of the crime in this case are required to be
compensated by the award of public law damages in light of the principles
laid down by this Court in Nilabati Behera21. In the circumstances, we
are of the opinion that the families of each of the deceased should be
paid by the State an amount of Rs. 25,00,000/- (Rupees Twenty Five
B
Lacs Only) each and the injured witnesses, if still surviving, otherwise
their families are required to be paid an amount of Rs.10,00,000/- (Rupees
Ten Lacs Only) each. The said amount shall be deposited within a period
of eight weeks from today in the Trial Court, and on such deposit the
said amounts shall be distributed by the Sessions Judge, after an enquiry
C and satisfying himself regarding the genuineness of the entitlement of
the claimants.
45. This case, in our opinion, is a classic illustration of how the
State failed in its primary constitutional responsibility of maintaining law
and order by its ineffectiveness in the enforcement of criminal law. In
D our opinion, the reasons for such failure are many. Some of them are -
(i) inefficiency arising out of either incompetence or lack of proper training
in the system of criminal investigation; (ii) corruption or political
interference with the investigation of crime; (iii) less than the desirable
levels of efficiency of the public prosecutors to correctly advise and
guide the investigating agencies contributing to the failure of the proper
E enforcement of criminal law; and (iv) inadequate efficiency levels of the
bar and the members of the Judiciary (an offshoot of the bar) which
contributed to the overall decline in the efficiency in the dispensation of
criminal justice system.
Over a period of time lot of irrelevant and unwarranted
F considerations have crept into the selection and appointment process of
Public Prosecutors all over the country. If in a case like the one on hand
where three people were killed and more than five people were injured,
if charges are not framed in accordance with the mandate of law, the
blame must be squarely taken by both the bar and the bench. Another
distressing feature of the record in this case is the humungous cross
G examination of the witnesses by the defense which mostly is uncalled
for.
46. In view of the above, the appeals stand disposed of.
21
Nilabati Behera (Smt) alias Lalita Behera (Through the Supreme Court Legal Aid
Committee) v. State of Orissa & Others, (1993) 2 SCC 746.
H
VINUBHAI RANCHHODBHAI PATEL v. RAJIVBHAI 1075
DUDABHAI PATEL

ORDER A
In view of the situation obtaining on the record, we thought it fit to
call for the assistance of Mr.S.Nagumuthu and Ms.Tarannum Cheema,
learned counsel to assist this Court. We place on record the invaluable
assistance rendered by them as amicus curiae.
We also deem it appropriate to place on record the appreciation B
for the effort put in by Mr. A. Selvin Raja, learned counsel, a young
member of the Bar, appearing for the appellant.

Divya Pandey Appeals disposed of. C

D

E

F

G

H