Sunday, 13 December 2015

Landmark judgment on discharge of accused and framing of charge

This Court the went on to cull out principles as
regards scope of Sections 227 and 228 of the
Code, which in our view broadly apply to
Sections 238 and 239 of the Code as well. It was
observed thus in para 21:
21. On consideration of the authorities about the
scope of Section 227 and 228 of the Code, the
following principles emerge:
(i) The Judge while considering the question of
framing the charges Under Section 227 of the
Code of Criminal Procedure has the undoubted
power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima
facie case against the accused has been made out.
The test to determine prima facie case would
depend upon the facts of each case.
(ii) Where the materials placed before the Court
disclose grave suspicion against the accused which
has not been properly explained, the Court will be 
fully justified in framing a charge and proceeding
with the trial.
(iii) The Court cannot act merely as a Post Office
or a mouthpiece of the prosecution but has to
consider the broad probabilities of the case, the
total effect of the evidence and the documents
produced before the Court, any basic infirmities
etc. However, at this stage, there cannot be a
roving enquiry into the pros and cons of the matter
and weigh the evidence as if he was conducting a
trial.
(iv) If on the basis of the material on record, the
Court could form an opinion that the accused
might have committed offence, it can frame the
charge, though for conviction the conclusion is
required to be proved beyond reasonable doubt
that the accused has committed the offence.
(v) At the time of framing of the charges, the
probative value of the material on record cannot
be gone into but before framing a charge the Court
must apply its judicial mind on the material placed
on record and must be satisfied that the
commission of offence by the accused was
possible.
(vi) At the stage of Sections 227 and 228, the Court
is required to evaluate the material and documents
on record with a view to find out if the facts
emerging therefrom taken at their face value
discloses the existence of all the ingredients
constituting the alleged offence. For this limited
purpose, sift the evidence as it cannot be expected
even at that initial stage to accept all that the
prosecution states as gospel truth even if it is
opposed to common sense or the broad
probabilities of the case.
(vii) If two views are possible and one of them
gives rise to suspicion only, as distinguished from
grave suspicion, the trial Judge will be empowered
to discharge the accused and at this stage, he is
not to see whether the trial will end in conviction
or acquittal.”
 (Emphasis given)
10. In Crl.A.Nos.285-287 of 2015 (Arising out of S.L.P. (Crl.)
Nos.300-302 of 2013) ‘Sonu Gupta vs. Deepak Gupta & ors.’ decided on
11.02.2015, Supreme Court held :
“It is also well settled that cognizance is taken of
the offence and not the offender. Hence at the
stage of framing of charge an individual accused
may seek discharge if he or she can show that the
materials are absolutely insufficient for framing of
charge against that particular accused. But such
exercise is required only at a later stage, as
indicated above and not at the stage of taking
cognizance and summoning the accused on the
basis of prima facie case. Even at the stage of
framing of charge, the sufficiency of materials for
the purpose of conviction is not the requirement
and a prayer for discharge can be allowed only if
the court finds that the materials are wholly
insufficient for the purpose of trial. It is also a
settled proposition of law that even when there are
materials raising strong suspicion against an
accused, the court will be justified in rejecting a
prayer for discharge and in granting an
opportunity to the prosecution to bring on record
the entire evidence in accordance with law so that
case of both the sides may be considered
appropriately on conclusion of trial.”
 (Emphasis given)
IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 15th MAY, 2015

 CRL.REV.P. 162/2014 & Crl.M.A.4214/2014
STATE 
Versus
BHUPINDER SINGH BISHT & ORS. 
CORAM:
HON'BLE MR. JUSTICE S.P.GARG

 Citation: 2015VIIAD(Delhi)735, 220(2015)DLT266


1. Revision Petition 162/2014 has been preferred by the State to
challenge the legality and correctness of an order dated 13.01.2014 of
learned Addl. Sessions Judge-02 (South), New Delhi, by which various
charges were framed against the respondents. Among others, charge under
Sections 304/34 IPC was ordered to be framed against respondents No.7
& 8. Grievance of the petitioner is that there was ample material to charge Crl.Rev.P.No.162/2014 & connected matter. Page 3 of 30
respondents No.7 & 8 for commission of offence under Sections 302/34
IPC. All the respondents were required to be charged under Section 302
read with Section 120B IPC. It is further pleaded that the Trial Court
committed an error in omitting to frame charge under Section 412 IPC
against respondent No.4 and charge under Sections 27/30 Arms Act
against respondent No.6. The respondents have contested the petition.
Crl.Rev.P.298/2014 has been preferred by Narender Kumar Ahlawat to
impugn the order on charge.
2. I have heard the learned Spl. Public Prosecutor for the State,
learned Senior counsel for the respondents (Crl.Rev.P.162/2014); learned
counsel for the petitioner (Crl.Rev.P.298/2014) and have examined the
Trial Court records minutely.
3. A shoot out incident took place on 17.11.2012 in which two
real brothers Gurdeep Singh Chadha @ Ponty Chadha (herein referred to
‘Ponty’) and Hardeep Singh Chadha (herein referred to ‘Hardeep’) were
killed. Two FIRs 496/2012 & 497/2012 were registered. FIR No.496/2012
against ‘Hardeep’ was closed as he had succumbed to the injuries
sustained by him in the said shootout. Investigation was carried out
indepth in case FIR No.497/2012 and charge-sheet / supplementary
charge-sheets against the assailants / respondents have been filed in the Crl.Rev.P.No.162/2014 & connected matter. 
Court. The investigation revealed that there was long standing property
dispute between the brothers ‘Hardeep’ and ‘Ponty’. The family consisted
of three brothers and their father. So long Kulwant Singh Chadha,
deceased’s father was alive, he was able to control the situation. After his
demise, serious differences arose between the two brothers ‘Ponty’ and
‘Hardeep’ and they stopped talking to each other. Relatives had
intervened in vain on many occasions to resolve the differences. On
16.11.2012 at Civil Lines, Delhi, an attempt was made by the relatives to
bring an end to the dispute. It did not materialise.
4. Prosecution case is that after amicable solution eluded the
parties, ‘Ponty’ hatched a criminal conspiracy with his associates to
forcibly take possession of farm house No.42, Central Drive, Chhattarpur,
the real bone of contention between the parties. He, on 16.11.2012
immediately contacted his confident Sukhdev Singh Namdhari (herein
referred ‘Namdhari’) and asked him to mobilise his resources and reach
Delhi to dispossess ‘Hardeep’. He also instructed his subordinates through
Narender Ahlawat, General Manager to mobilise his resources.
‘Namdhari’ wasting no time, mobilised his men and material and asked
them to reach Delhi. Narender Ahlawat gave various directions to his
subordinates and Ponty’s employees to accomplish the object. On Crl.Rev.P.No.162/2014 & connected matter. Page 5 of 30
17.11.2012, a meeting was held in the farm house of ‘Ponty’ where
‘Namdhari’, Narender Ahlawat, Bhupender Singh Bisht, Udai Raj Singh
@ Anna and one sikh gentleman participated. Pursuant to the said
meeting, 30/ 40 persons called by ‘Namdhari’ and those gathered by
Narender Ahlawat; Bhupender Singh Bisht and Udai Raj Singh, etc.
reached farm house No.42 Chattarpur and committed trespass by breaking
its lock. It is significant to note that the assailants were armed with deadly
weapons / firearms including AK-47 rifle, swords, lathis etc. To scare the
inmates, gun shots were fired. Nandlal was abducted and confined in
another farmhouse. Goods belonging to the employees / inmates were
transported in Tata 407 bearing No.DL-1LR-6167. The assailants
snatched the mobile phones and assaulted the occupants. They put their
own locks on the gate.
5. Further case of the prosecution is that ‘Hardeep’ was
apprised about the occurrence by the employees who managed to flee the
spot. By that time, ‘Hardeep’ had reached his office at Sector 18, Noida.
He rushed to the spot and on the way contacted several persons including
his father-in-law and subordinates to lodge complaint to the police. In the
meantime, to consolidate their possession ‘Ponty’ and ‘Namdhari’ along
with Sachin Tyagi arrived in a Land Cruiser at the farm house which was Crl.Rev.P.No.162/2014 & connected matter. Page 6 of 30
locked from outside. When Narender Ahlawat was in the process of
opening its lock, ‘Hardeep’ who happened to arrive there by that time,
fired at him (Narender Ahlawat). Thereafter, he focussed attention
towards ‘Ponty’ and pumped in him several bullets. ‘Namdhari’ and his
official bodyguard from Uttrakhand Police Sachin Tyagi (respondent
No.7) then fired at ‘Hardeep’ who sustained two gunshot injuries. In order
to save himself, ‘Hardeep’ went inside the farm house and succumbed to
the injuries. ‘Namdhari’ took ‘Ponty’ to hospital where he was declared
brought dead. Therefore, he lodged complaint at Police Station Mehrauli
and FIR No.496/2012 was registered. On the statement of complainant
Nand Lal, FIR No. 497/2012 was lodged. During investigation of FIR
No.497/2012, the respondents were arrested. Statements of the witnesses
conversant with the facts were recorded. Licensed / unlicensed arms in
possession of the assailants were recovered. Call Details Records (CDRs)
were collected. After completion of investigation, charge-sheets for
commission of offences under Section 120B read with Section
302/307/147/148/323/325/342/365/368/395/397/450/452 IPC coupled
with Sections 201/203 IPC and Sections 25/27/30 Arms Act and under
Section 120B IPC were filed against the respondents. After hearing Crl.Rev.P.No.162/2014 & connected matter. Page 7 of 30
detailed arguments from all the sides, learned Trial Court by the impugned
order ordered to frame various different charges.
6. Learned Spl. Public Prosecutor urged that the impugned
order cannot be sustained to the extent charge under Sections 304/34 IPC
instead of Sections 302/34 IPC was framed against respondents No.7 & 8.
The other accused persons / respondents have not been proceeded under
Section 120 B read with Section 302 IPC. The Trial Court erred to record
findings at the stage of charge that the shootout was a sudden and
unexpected development. Number of persons involved, nature of weapons
used and the manner of execution of the plan showed clear intent in the
conspiracy to execute it at all costs and to remove all and any obstacle
including to cause death. It is further urged that the Trial Court prejudged
the issue and proceeded on erroneous premise that firing by ‘Hardeep’
was without any provocation. The entire sequence of events was
preplanned, premeditated and death of an individual was a foreseeable
event. The Trial Court ought to have framed charge under Section 302/34
IPC. At the stage of framing of charge, the Trial Court was expected to
sift the evidence, for the limited purpose to decide if the facts on record
constituted the offence charged. The Trial Court erred to record findings 
on the issue of self-defence or sudden quarrel at the stage of charge when
such issues ought to have been pleaded and proved during trial.
7. Learned Senior Counsel for the accused persons /
respondents urged that the impugned order based upon fair and proper
appraisal of the material on record cannot be faulted. In the charge-sheet,
the prosecution itself had alleged that the central object of the conspiracy
hatched by the respondents was to dispossess ‘Hardeep’ by all means.
Once that object was achieved, the conspiracy came to an end
automatically. There was no conspiracy by the respondents at any stage to
murder ‘Hardeep’ whose arrival at the spot was not anticipated. ‘Hardeep’
armed with weapons in both hands was responsible for firing at his
brother ‘Ponty’ and Narender Ahlawat without any provocation.
Respondents No.7 & 8 in their self-defence exercised their statutory right
to fire at him to protect themselves. Respondent No.8 was an official
bodyguard provided to respondent No.7 and it was his duty to protect his
protectee at any cost. The shooting incident had resulted suddenly and
unexpectedly at the spot. The Trial Court has correctly divided the whole
transaction into three different stages. For the third stage when the actual
shooting took place, some of the respondents were not present at the spot.
Respondents No.7 & 8 themselves were responsible for their individual 
acts. ‘Hardeep’ himself was an accused in FIR No.496/2012 registered on
Namdhari’s complaint. She urged that the prosecution cannot be permitted
to change its stand midway. It was concluded in the FIR No. 496/2012
that ‘Hardeep’ caused grievous injuries to Narender Ahlawat and death of
‘Ponty’ due to shots fired by him. PW-12 (Shiv Kumar Verma) and PW-
11 (Ajeet) though had allegedly sustained injuries but their MLCs have
not been placed on record. It is unclear if they sustained gunshots injuries.
It is further urged that charge-sheet is silent about commission of offence
under Section 149 IPC. No charge under Sections 27/30 Arms Act can be
framed against respondent No.6, he, being in possession of a licensed
weapon which was never used for illegal purpose.
8. Learned counsel for the respondent No.7 Mr.R.S.Malik urged
that the bullets fired at the spot have not been connected to him. No bullet
was found in the body of the deceased ‘Hardeep’. Section 304 IPC is not
attracted qua him.
9. It is significant to note that none of the respondents except
Narender Singh Ahlawat has challenged the impugned order by filing
revision petition. The impugned order cites various judgments to the
effect that while exercising power under Section 227 Cr.P.C. the Court is
required to evaluate the material and documents on record with a view to 
finding out if the facts emerging therefrom, taken at their face value,
disclosed the existence of all the ingredients constituting the alleged
offence. At that stage, the Court is not expected to go deep into the
probative value of the material on record. What needs to be considered is
whether there is a ground for presuming that the offence has been
committed and not a ground for convicting the accused has been made
out. At that stage, even strong suspicion founded on material which leads
the court to form a presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged would justify the framing of
charge against the accused in respect of the commission of that offence.
The law cited by the learned Trial Court is indisputably correct. However,
it appears that the Trial Court did not correctly apply it on facts emerging
on record. In a recent judgment ‘State vs. A.Arun Kumar and Another’,
2015 (2) SCC 417, the Supreme Court has discussed the law on this
aspect:
“8. The law on the point is succinctly stated by this
Court in Sajjan Kumar v. CBI : (2010) 9 SCC
368 wherein after referring to Union of
India v. Prafulla Kumar Samal (1909) 3 SCC
4 and Dilawar Balu Kurane v. State of
Maharashtra : (2002) 2 SCC 135, this Court
observed in para 19 thus:Crl.Rev.P.No.162/2014 & connected matter. Page 11 of 30
19. It is clear that at the initial stage, if there is a
strong suspicion which leads the Court to think
that there is ground for presuming that the accused
has committed an offence, then it is not open to the
court to say that there is no sufficient ground for
proceeding against the accused. The presumption
of the guilt of the accused which is to be drawn at
the initial stage is only for the purpose of deciding
prima facie whether the Court should proceed with
the trial or not. If the evidence which the
prosecution proposes to adduce prove the guilt of
the accused even if fully accepted before it is
challenged in cross-examination or rebutted by the
defence evidence, if any, cannot show that the
accused committed the offence, then there will be
no sufficient ground for proceeding with the trial.
9. This Court the went on to cull out principles as
regards scope of Sections 227 and 228 of the
Code, which in our view broadly apply to
Sections 238 and 239 of the Code as well. It was
observed thus in para 21:
21. On consideration of the authorities about the
scope of Section 227 and 228 of the Code, the
following principles emerge:
(i) The Judge while considering the question of
framing the charges Under Section 227 of the
Code of Criminal Procedure has the undoubted
power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima
facie case against the accused has been made out.
The test to determine prima facie case would
depend upon the facts of each case.
(ii) Where the materials placed before the Court
disclose grave suspicion against the accused which
has not been properly explained, the Court will be 
fully justified in framing a charge and proceeding
with the trial.
(iii) The Court cannot act merely as a Post Office
or a mouthpiece of the prosecution but has to
consider the broad probabilities of the case, the
total effect of the evidence and the documents
produced before the Court, any basic infirmities
etc. However, at this stage, there cannot be a
roving enquiry into the pros and cons of the matter
and weigh the evidence as if he was conducting a
trial.
(iv) If on the basis of the material on record, the
Court could form an opinion that the accused
might have committed offence, it can frame the
charge, though for conviction the conclusion is
required to be proved beyond reasonable doubt
that the accused has committed the offence.
(v) At the time of framing of the charges, the
probative value of the material on record cannot
be gone into but before framing a charge the Court
must apply its judicial mind on the material placed
on record and must be satisfied that the
commission of offence by the accused was
possible.
(vi) At the stage of Sections 227 and 228, the Court
is required to evaluate the material and documents
on record with a view to find out if the facts
emerging therefrom taken at their face value
discloses the existence of all the ingredients
constituting the alleged offence. For this limited
purpose, sift the evidence as it cannot be expected
even at that initial stage to accept all that the
prosecution states as gospel truth even if it is
opposed to common sense or the broad
probabilities of the case.
(vii) If two views are possible and one of them
gives rise to suspicion only, as distinguished from
grave suspicion, the trial Judge will be empowered
to discharge the accused and at this stage, he is
not to see whether the trial will end in conviction
or acquittal.”
 (Emphasis given)
10. In Crl.A.Nos.285-287 of 2015 (Arising out of S.L.P. (Crl.)
Nos.300-302 of 2013) ‘Sonu Gupta vs. Deepak Gupta & ors.’ decided on
11.02.2015, Supreme Court held :
“It is also well settled that cognizance is taken of
the offence and not the offender. Hence at the
stage of framing of charge an individual accused
may seek discharge if he or she can show that the
materials are absolutely insufficient for framing of
charge against that particular accused. But such
exercise is required only at a later stage, as
indicated above and not at the stage of taking
cognizance and summoning the accused on the
basis of prima facie case. Even at the stage of
framing of charge, the sufficiency of materials for
the purpose of conviction is not the requirement
and a prayer for discharge can be allowed only if
the court finds that the materials are wholly
insufficient for the purpose of trial. It is also a
settled proposition of law that even when there are
materials raising strong suspicion against an
accused, the court will be justified in rejecting a
prayer for discharge and in granting an
opportunity to the prosecution to bring on record
the entire evidence in accordance with law so that
case of both the sides may be considered
appropriately on conclusion of trial.”Crl.Rev.P.No.162/2014 & connected matter. Page 14 of 30
 (Emphasis given)
11. Facts emerging from the charge-sheet reveal that there was a
long standing bitter property dispute between the two brothers ‘Ponty’ and
‘Hardeep’. After amicable settlement to resolve the differences did not
materialise, a conspiracy was hatched on 16.11.2012 in which many
assailants including ‘Namdhari’, Narender, Bhupender Singh Bisht, Udai
Raj Singh @ Anna participated to dispossess ‘Hardeep’ from farm house
No.42 forcibly. To execute the plan, ‘Ponty’ instructed his confident
‘Namdhari’ and General Manager Narender Ahlawat to mobilise their
men and materials. On 17.11.2012, assailants numbering 30 to 40 heavily
armed with deadly / formidable weapons including AK-47 rifle / carbines,
swords, lathis etc. reached the spot in 4 – 5 vehicles. The complainant
Nandlal identified some of the assailants and named them in the FIR.
Gunshots were fired to scare inmates; they were beaten and injured; their
mobile phones were snatched; goods belonging to them were robbed and
loaded in Tata 407; Nandlal was abducted and confined in another farm.
The assailants succeeded to take forcible possession and put lock on the
gate in Hardeep’s absence. Considering these facts and circumstances, the
Trial Court rightly charged all the respondents for committing offences
under Section 120B IPC read with Sections 
307/147/148/149/323/325/342/365/368/395/397/452 IPC; under Sections
25/27/30 Arms Act being in possession of unlicensed or fake licences.
12. After the assailants were successful in putting lock on the
main gate of the farm house, ‘Ponty’ and ‘Namdhari’ along with his PSO
Sachin Tyagi reached gate No.3 of farm house No.42 at about 12.30 P.M.
in a Land Cruiser driven by Raj Dev to consolidate their possession. They
were also armed with various lethal weapons. In the meantime, ‘Hardeep’
on getting intimation about forcible trespass and eviction arrived there and
found Narender Singh Ahlawat opening its gate to allow ‘Ponty’ and
‘Namdhari’ enter inside the farm house. It is alleged that ‘Hardeep’ first
fired at Narender Singh Ahlawat and then at ‘Ponty’ sitting on the left rear
seat. Thereafter, both ‘Namdhari’ and Sachin Tyagi fired at ‘Hardeep’; he
was hit with bullets and succumbed to the injuries. Apparently, the
conspiracy earlier hatched to dispossess inmates of farm house No.42 had
not come to an end. The shootout incident in which both the brothers lost
their lives was in continuation of the previous events. To my view, prima
facie the events from the beginning to the end were interconnected and
were part and parcel of the same transaction due to proximity of time,
continuity of actions and community of purpose / design. No sound
reasons existed before the Trial Court to split the entire transaction in 
three different and distinct stages. Undoubtedly, the central object of the
assailants armed with deadly and sophisticated weapons was to take
forcible possession by all means including violence. They all had gathered
and arrived at the spot to execute the plan to dispossess ‘Hardeep’. Most
of them were outsiders and had travelled to Delhi with unlicensed / fake
licences to support ‘Ponty’ in his plan. The shooting incident on the face
of it was direct result of forcible dispossession. The larger and bigger
object of the assailants / conspirators was to get forcible possession by all
means. In that endeavour, there was no hesitation to remove every
obstruction by any means. It cannot be said that the assailants were not to
use weapons / arms in their possession to ward off the impending danger.
It cannot be said that forcible possession was going to be a smooth affair
without any resistance by equally powerful ‘Hardeep’ or his men.
Violence was expected to take place at the spot and it happened exactly
the same. The assailants were prepared to meet any eventuality. It cannot
be said that the accused persons were not aware of the consequences of
their act or result of the act that was likely to be resulted on account of the
overt act committed by any of the member of that assembly. If all the
circumstances are taken into consideration, it cannot be held that the
respondents had not participated to prosecute a common ‘object’. 
Everyone must be taken to have intended the probable and natural results
of the combination of the acts in which he joined. The common object of
an unlawful assembly has to be gathered from the nature of the assembly,
arms possessed by them and the behaviour of the accused at or before the
occurrence. It is not necessary that common ‘object’ should directly be to
commit a particular offence. It is sufficient that the particular result was
such that the members of the unlawful assembly knew the offence to be
likely committed in the prosecution of that ‘common object’.
13. When ‘Hardeep’ arrived the spot and found Narender
Ahlawat opening the gate to allow ‘Ponty’ and his henchman enter inside
it, natural and spontaneous reaction on his part was to prevent it. To
achieve that, he immediately fired at Narender Ahlawat and thereafter, at
‘Ponty’. It is relevant to note that at that stage, he did not fire at
‘Namdhari’ and Sachin Tyagi sitting in the Land Cruiser. At that moment,
‘Namdhari’ and Sachin Tyagi alighted from the Land Cruiser and fired at
‘Hardeep’ on vital organs i.e. chest and back causing his death
instantaneously. The Trial Court has noted that ‘Namdhari’ and Sachin
Tyagi had exceeded their right of private defence and killed ‘Hardeep’.
They were charged under Sections 304/34 IPC as their case was covered
within the domain of exception 4 to Section 300 IPC. The findings of the Crl.Rev.P.No.162/2014 & connected matter. Page 18 of 30
Trial Court in this regard cannot be sustained at this stage. It committed
error to presume without any evidence on record that firing by ‘Namdhari’
and Sachin Tyagi at ‘Hardeep’ was in the exercise of self-defence or that
their case fell in exception 4 to Section 300 IPC. It was for the accused
persons to prove during trial that the firing at their hands was not
intentional to commit murder or was in the exercise of self-defence.
14. After hatching conspiracy on 16.11.2012, on 17.11.2012, a
meeting was convened in the farm house of ‘Ponty’ and a comprehensive
plan was chalked out to execute it. The accused persons accordingly
formed an unlawful assembly with the common object to take forcible
possession of the farm house. In furtherance of that common object, the
assailants with deadly / lethal weapons went to farm house No.42. After
they succeeded in their object to take forcible possession, at 12.30 p.m.
‘Ponty’, ‘Namdhari’ and Sachin Tyagi arrived there to consolidate their
possession and then the shooting incident took place. These
circumstances, prima facie would attract provisions of Section 149 IPC.
15. Quoting ‘Bhagwan Singh and ors. vs. State of M.P.’, 2002 (4)
SCC 85, in a recent case of ‘Prathap and anr. Vs. State of Kerala’, 2011
(2) SCC (Cri.) 450, the Supreme Court observed :
“Common object, as contemplated by Section 149
of the Indian Penal Code, does not require prior
concert or meeting of minds before the attack.
Generally, no direct evidence is available
regarding the existence of common object which,
in each case, has to be ascertained from the
attending facts and circumstances. When a
concerted attack is made on the victim by a large
number of persons armed with deadly weapons, it
is often difficult to determine the actual part
played by each offender and easy to hold that such
persons attacked the victim, had the common
object for an offence which was known to be likely
to be committed in prosecution of such an object. It
is true that a mere innocent person, in an assembly
of persons or being a by-stander does not make
such person a member of an unlawful assembly but
where the persons forming the assembly are shown
to be having identical interest in pursuance of
which some of them come armed, others though
not armed would, under the normal circumstances
be deemed to be the members of the unlawful
assembly. In this case, the accused persons have
been proved to be on inimical terms with the
complainant-party. The enmity between the parties
had been aggravated on account of litigation with
respect to the dispute over the mango trees.
Accused persons who came on the spot are shown
to have come armed with deadly weapons. The
facts and circumstances of the case unequivocally
prove the existence of the common object of such
persons forming the unlawful assembly, who had
come on the spot and attacked the complainant
party in consequence of which three precious lives
were lost. The High Court was, therefore, justified
in holding that the accused persons, involved in
the occurrence, had shared the common object.”
 (Emphasis supplied)
16. In ‘Sikandar Singh and Ors. Vs. State of Bihar’, 2010 (7)
SCC 477, the Supreme Court discussed law under Section 149 IPC :
“149. Every member of unlawful assembly guilty
of offence committed in prosecution of common
object.--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 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.
14. The provision has essentially two ingredients
viz. (i) the commission of an offence by any
member of an unlawful assembly and (ii) such
offence must be committed in prosecution of the
common object of the assembly or must be such as
the members of that assembly knew to be likely to
be committed in prosecution of the common object.
Once it is established that the unlawful assembly
had common object, it is not necessary that all
persons forming the unlawful assembly must be
shown to have committed some overt act. For the
purpose of incurring the vicarious liability for the
offence committed by a member of such unlawful
assembly under the provision, the liability of other
members of the unlawful assembly for the offence
committed during the continuance of the
occurrence, rests upon the fact whether the other
members knew before hand that the offence
actually committed was likely to be committed in
prosecution of the common object.
15. In Mizaji and Anr. v. State of U.P. : AIR 1959
SC 572 explaining the scope of Section 149 IPC,
this Court had observed thus:
This section has been the subject matter of
interpretation in the various High Courts 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 is committed with a view to
accomplish the common object. It is not necessary
that there should be a pre-concert 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 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 Section 149 if it can
be held that the offence was such as the members
knew was likely to be committed. The expression
'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 Section 149. Similarly, if
a body of persons go armed to take forcible
possession of the 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 Crl.Rev.P.No.162/2014 & connected matter. Page 22 of 30
great deal to be said for the opinion of Couch,
C.J., in Sabed Ali's case 20 Suth WR Cr 5 (supra)
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. The distinction
between the two parts of Section 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
Section 149 as explained above or it was an
offence such as the members of the assembly knew
to be likely to be committed in prosecution of the
common object and falls within the second part.
16. A 'common object' does not require a prior
concert and a common meeting of minds before the
attack. It is enough if each member of the unlawful
assembly has the same object in view and their
number is five or more and that they act as an
assembly to achieve that object. The 'common
object' of an assembly is to be ascertained from the
acts and language of the members composing it,
and from a consideration of all the surrounding
circumstances. It may be gathered from the course
of conduct adopted by the members of the
assembly. For determination of the common object
of the unlawful assembly, the conduct of each of
the members of the unlawful assembly, before and
at the time of attack and thereafter, the motive for
the crime, are some of the relevant considerations.
What the common object of the unlawful assembly
is at a particular stage of the incident is essentially
a question of fact to be determined, keeping in
view the nature of the assembly, the arms carried Crl.Rev.P.No.162/2014 & connected matter. Page 23 of 30
by the members, and the behaviour of the members
at or near the scene of the incident. It is not
necessary under law that in all cases of unlawful
assembly, with an unlawful common object, the
same must be translated into action or be
successful.”
 (Emphasis supplied)
17. Again, in ‘Ramachandran and Ors. etc. vs. State of Kerala’,
2011 (4) JCR 147 (SC), observations of the Supreme Court are relevant in
similar circumstances :
“12. Even if the offence committed is not in direct
prosecution of the common object of the assembly,
it may yet fall under second part of
Section 149 IPC if it can be held that the offence
was such as the members knew was likely to be
committed. The expression 'know' does not mean a
mere possibility, such as might or might not
happen. For instance, it is a matter of common
knowledge that if a body of persons go armed to
take forcible possession of the land, it would be
right to say that 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 Section 149 IPC.
 XXX XXX XXX
14. However, once it is established that the
unlawful assembly had common object, it is not
necessary that all persons forming the unlawful
assembly must be shown to have committed some Crl.Rev.P.No.162/2014 & connected matter. Page 24 of 30
overt act. For the purpose of incurring the
vicarious liability under the provision, the liability
of other members of the unlawful assembly for the
offence committed during the continuance of the
occurrence, rests upon the fact whether the other
members knew before hand that the offence
actually committed was likely to be committed in
prosecution of the common object. [See: Daya
Kishan v. State of Haryana : (2010) 5 SCC
81; Sikandar Singh v. State of Bihar : (2010) 7
SCC 477, and Debashis Daw v. State of W.B. :
(2010) 9 SCC 111].
15. The crucial question for determination 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
specified by Section 141. While determining this
question, it becomes relevant to consider whether
the assembly consisted of some persons which
were merely passive witnesses and had joined the
assembly as a matter of idle curiosity without
intending to entertain the common object of the
assembly.(Vide:Masalti v. State of Uttar Pradesh :
AIR 1965 SC 202)
XXX XXX XXX
19. Regarding the application of Section 149, the
following observations from Charan Singh v. State
of U.P. : (2004) 4 SCC 205, are very relevant:
13. The crucial question to determine 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 in Section 141.
The word 'object' means the purpose or design
and, in order to make it 'common', it must be
shared by all. In other words, the object should be Crl.Rev.P.No.162/2014 & connected matter. Page 25 of 30
common to the persons, who compose the
assembly, that is to say, they should all be aware
of it and concur in it. A common object may be
formed by express agreement after mutual
consultation, but that is by no means necessary. It
may be formed at any stage by all or a few
members of the assembly and the other members
may just join and adopt it. Once formed, it need
not continue to be the same. It may be modified or
altered or abandoned at any stage. The expression
'in prosecution of common object' as appearing in
Section 149 has to be strictly construed as
equivalent to 'in order to attain the common
object'. It must be immediately connected with the
common object by virtue of the nature of the
object. There must be community of object and the
object may exist only up to a particular stage, and
not thereafter.?
21. Thus, this Court has been very cautious in the
catena of judgments that where general allegations
are made against a large number of persons the
court would categorically scrutinise the evidence
and hesitate to convict the large number of persons
if the evidence available on record is vague. It is
obligatory on the part of the court to examine that
if the offence committed is not in direct
prosecution of the common object, it yet may fall
under second part of Section 149 IPC, if the
offence was such as the members knew was likely
to be committed. Further inference has to be
drawn as what was the number of persons; how
many of them were merely passive witnesses; what
were their arms and weapons. Number and nature
of injuries is also relevant to be considered.
"Common object" may also be developed at the
time of incident.”
 (Emphasis given)Crl.Rev.P.No.162/2014 & connected matter. Page 26 of 30
18. In view of the settled preposition of law referred above, it
was not permissible for Trial Court to exonerate respondents No.7 & 8 of
the offence under Section 302/34 IPC at the stage of consideration of
charge when there were specific allegations that by firing repeatedly at
‘Hardeep’, they had killed him. Learned Spl. Public Prosecutor
categorically pointed out that two bullet injuries were found on Hardeep’s
body. The bullets had exited and as such, no bullet was recovered from
inside the body. The Ballistic report indicated that empty cartridges
recovered at the spot have been matched with the weapons possessed by
Sachin Tyagi and ‘Namdhari’. One bullet with no deformity recovered at
the spot has been matched with the weapon of Sachin Tyagi.
19. The Trial Court misdirected itself to find respondents No.7 &
8’s case falling within exception 4 to Section 300 IPC in the absence of
any such plea or evidence. It was for these accused during trial to establish
that their case was covered within the said exception and firing at their
instance was in self-defence or that the shooting incident was a sudden
and unexpected event / development. ‘Hardeep’ had not caused any harm
to respondents No. 7 & 8. Settled law is that the initial burden to establish
the complicity of the accused is on the prosecution but the burden of Crl.Rev.P.No.162/2014 & connected matter. Page 27 of 30
proving circumstances so as to bring the case within the exceptions of
right of private defence is on the accused. Of course, the standard of proof
required to discharge the burden of proof is not proof beyond reasonable
doubt but preponderance of probabilities. In my considered view, prima
facie there was ample material to proceed against respondents No.7 & 8
under Section 302/34 IPC. The other respondents were also prima facie
equally liable for the said acts of respondents No.7 & 8 with the aid of
Section 149 IPC. The three stages referred to by the Trial Court in the
impugned order were not mutually exclusive to each other and were
interconnected. Series of acts were linked together to present a continuous
whole. It was not a case of trespass or dispossession simplicitor. The
common object of the unlawful assembly was to get possession of
farmhouse No.42 by any means whatsoever even using violence. It was a
pre-planned well thought conspiracy or else there was no occasion for
‘Ponty’ to direct ‘Namdhari’ and Narender Ahlawat to mobilise resources
to achieve the object.
20. In ‘Ghanshyam Sharma vs. Surendra Kumar Sharma & ors.’,
2014 STPL (Web) 551 SC, Supreme Court observed :
“11. Whether the respondents are guilty under
Section 379 IPC or not is a matter of evidence. The
fact that the police chose to file a chargesheet 
under Section 406 and 420 IPC is not conclusive
regarding the offences for which the respondents accused
are to be tried. The trial Court can always
frame an appropriate charge if there is sufficient
material from the report of the police available
before it. In case where the material is insufficient
to frame a charge, the trial Court may either
discharge the accused or may direct further
investigation in the matter. Before deciding as to
which one of the three courses of action mentioned
above is to be resorted to, the trial Court must
examine the content of the complaint, the evidence
gathered by the investigating agency and also
scrutinize whether the investigating agency
proceeded in the right direction.”
 (Emphasis given)
21. Omission of Section 149 IPC in the charge-sheet, is
inconsequential.
22. Charge is required to be framed under Section 412 IPC
against respondent No.4 as he was allegedly found in possession of
robbed mobiles phones. The impugned order is silent as to why charge
under Section 412 IPC was not framed against respondent No.4.
Regarding prosecution’s plea to frame charge under Sections 25/27 Arms
Act against respondent No.6, it has come on record that it was a licensed
weapon and was not used at the time of commission of crime. Hence, at
this stage, no charge under Sections 25/27 Arms Act is made out against
him.Crl.Rev.P.No.162/2014 & connected matter.
23. In the light of discussion in Crl.R.P.162/2014,
Crl.R.P.298/2014 filed by Narender Kumar Ahlawat does not survive. His
presence at the spot is not in dispute. Various roles have been attributed to
him by the prosecution in the hatching of the conspiracy and its execution.
He was in regular / constant touch on phone at the relevant time with
‘Ponty’ and actively participated in the occurrence facilitating the
execution of plan. At the time of shooting occurrence, he was present at
the spot and allegedly was opening the gate of the farmhouse to allow
‘Ponty’, ‘Namdhari’ and Sachin Tyagi to enter inside the farmhouse to
consolidate their possession. It will be during trial to find out if he was
merely following the instructions of his employer bonafide as claimed.
24. In the light of above discussion, Crl.R.P.No.162/2014 filed
by the State is allowed in the above terms. Charge under Sections 302/34
IPC shall be framed against respondents No.7 & 8. The other respondents
shall be charged under Section 302 IPC read with Section 149 IPC.
Respondent No.4 shall also be charged under Section 412 IPC.
25. Crl.R.P.No.298/2014 filed by Narender Kumar Ahlawat is
dismissed.
26. Observations in the order shall have no impact on the merits
of the case. Crl.Rev.P.No.162/2014 & connected matter. Page 30 of 30
27. The criminal revision petitions stand disposed of accordingly.
Pending applications also stand disposed of.
28. Trial Court record be sent back immediately with the copy of
the order.
 (S.P.GARG)
 JUDGE
MAY 15, 2015 

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