State Of Punjab vs Gurpreet Kaur And Another on 15 February, 2024

Punjab-Haryana High Court

State Of Punjab vs Gurpreet Kaur And Another on 15 February, 2024

                                                     Neutral Citation No:=2024:PHHC:021796-DB




     CRM-A-469-2022 (O&M)                                             (1)


                                                       2024:PHHC:021796-DB
       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH

                                          CRM-A-469-2022 (O&M)
                                          Date of decision: 15.02.2024

State of Punjab                                        ....Applicant

                  Versus

Gurpreet Kaur & Anr.                                   ....Respondents


CORAM:     HON'BLE MR. JUSTICE SUDHIR SINGH
           HON'BLE MR. JUSTICE HARSH BUNGER

Present:   Mr. Dhruv Dayal, Addl. AG, Punjab,
           for the applicant.

SUDHIR SINGH,J.

The instant application seeking leave to appeal is

preferred against the judgment dated 17.09.2021 passed by the

learned Addl. Sessions Judge, Sri Muktsar Sahib, whereby

respondents have been acquitted of the charges under Sections

302/342/323/325/148 and 149 of IPC.

2. Vide order dated 08.01.2024, the lower Court record

was called for. The same has been received today.

3. The prosecution case, as per the complaint of

complainant-Ramesh Kumar (PW-1) is that on 15.08.2017, the

complainant’s son- Deepak Tiwari @ Shanky and one

Sukhwinder Singh had gone to attend the birthday party of the

son of Manga Singh. At said birthday party, a dispute arose and

Jiwan Singh, Ajay Singh, Ravi Kumar and Veer Chand, had

given beatings to his son and Sukhwinder Singh. After returning

from the party, complainant’s son told the complainant about

the aforementioned dispute. Then, the complainant along with

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his son and Sukhwinder Singh left for the house of Satpal Singh

to complain about it but were stopped by Jiwan Singh armed

with dang, Ajay Singh armed with soti, Gurpreet Kaur empty

handed, Ravi armed with dang, Veer Chand armed with soti,

Gopal Singh empty handed, Kinder Singh armed with dang, in

the street. At about 2:00 am, Jiwan Singh raised a lalkara that

today Shanky and Sukhwinder Singh should not be spared.

After the lalkara, all the above said persons dragged the

complainant’s son and Sukhwinder Singh to the house of one

Satpal Singh and started hitting them with their respective

weapons. 3-4 unidentified persons also came at the place of

occurrence and caused injuries to his son and Sukhwinder

Singh. When the complainant raised raula Na- Maaro Na- Maaro,

the above said persons even tried to hit the complainant and the

complainant had to run away from the spot to save his life.

Ambulance Van No. 108 took his son and Sukhwinder Singh to

Civil Hospital, Malout for emergency treatment. Later on, the

complainant came to know that his son had succumbed to the

injuries and his dead body was lying in Civil Hospital,

Gidderbaha.

4. Based on the complaint, FIR No. 205 dated

16.08.2017 under Sections 302/342/323/325/148/149 IPC, at

P.S. Lambi, was registered. After investigation, the chargesheet

was submitted, whereupon cognizance was taken. Thereafter,

charges were framed against the respondents, to which they

pleaded not guilty and claimed to be tried. Accused Kashmir

Chand, Veer Chand and Deepa were arrested during the trial ,

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and supplementary challan were presented against them in the

court. Accused Gopal was declared a proclaimed offender vide

order dated 18.01.2018 and accused Kinder Singh @ Gurwinder

Singh was declared Juvenile-in-conflict-with-law by the Court.

5. During the trial, the prosecution examined nineteen

witnesses, namely, Ramesh Kumar- complainant (PW-1),

Sukhjinder Singh (PW-2), Dr. Jasanpreet Singh, M.O. (PW-3),

Dr. Nitesh Goyal, M.O. (PW-4), Inspector Bikramjit Singh (PW-5),

ASI Sham Sunder (PW-6), SI Prem Chand (PW-7), Dr. Dhirender

Garg, M.O. (PW-8), Dr. Sameer Kaur, M.O. (PW-9), Ajit Sharma,

Draftsman (PW-10), HC Ved Parkash (PW-11), HC Paramjeet

Signh (PW-12),Ramesh Lal,SSA (PW-13), Dr. Dheeraj Goyal,

M.O. (PW-14), Chiman Lal, Ward Attendant (PW-15), SI Jasver

Singh,SHO (PW-16), Gursewak Singh, driver of the ambulance

(PW-17), Dr. Harmeet Singh, M.O. and ASI Pritpal Singh as PW-

19. In support of its case, the prosecution had also produced

evidence in the form of Ex.P1 Proclamation of Gopal Ram, Ex. P2

Report, Ex. PC parcels of blood-stained east and simple earth,

Ex. PW3/DPostmortem Report of deceased, Ex. PW3/G Medico-

Legal Report of injured, Ex. PW3/L injury declaration by board

of doctors,Ex. PW3/M,Ex. PW3/M1,Ex. PW3/M2 X-ray and

reports,Ex. PW5/B FIR,Ex. PW5/E Site Plan, Ex. PW5/G Memo

of arrest, Ex. PW5/H Personal search memo,Ex. PW5/I

Intimation to heirs,Ex. PW5/L Memo of recovery of soti, Ex.

PW5/L1 Memo of recovery of dang, Ex. PW5/O Memo of arrest,

Ex. PW5/P Memo of Search, Ex. PW5/S Memo of recovery of

dang, Ex. PW5/S2 Memo of recovery of dang, Ex. PW5/T DDR

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No. 35, Ex. PW16/B Memo of recovery of soti andEx. PW16/L

Memo of recovery of dang. The defenceproduced evidence in the

form of Ex.D1 MLR No. JS/19/2017, Ex D2 MLR No.

JS/18/2017 and Ex. D5 & D6 Photos, in support of its case.

After the conclusion of the trial, the learned Trial Court

acquitted the accused person.

6. The grounds considered by the learned Trial Court

for acquitting the Respondent are as under:-

“The complainant (PW-1) as well as the injured-eye
witness (PW-2) Sukhjinder Singh vide their statements
affirmed the fact that the present respondents, namely
Gurpreet Kaur and Gopal Ram were empty-handed,
hence the possibility of causing injuries to the deceased
and the injured by the above named accused does not
arise.”

7. The learned State counsel, while assailing the

judgment of acquittal passed by the trial Court, argued that

when there is testimony of eyewitnesses corroborating the entire

occurrence, whereby the accused have been named to be

specifically present at the place of occurrence of the alleged

crime which resulted in the death of the deceased, there was no

occasion for the trial Court, to discard the prosecution case. He

has further submitted that even if the respondents were empty-

handed, yet their presence at the place of occurrence, being a

member of the attacking party calls for a conviction albeit for a

lesser offence. It is further submitted that the respondents

being the part of an unlawful assembly having a common object,

cannot escape their criminal liability.

8. After hearing the arguments advanced by the learned

counsel appearing for both the parties and upon examining the

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material available on the record, the following issue arises for

consideration before this Court:-

“Whether mere presence of the respondents at the
place of occurrence that too empty handed, is
sufficient to prove that they in any manner had the
common object or knowledge regarding the
commission of the alleged offence?”

9. Now, to consider the issue as formulated above, we

have carefully examined the testimony of the eyewitnesses,

namely, PW-1 and PW-2. Upon a thorough scrutiny of these

testimonies, it becomes evident that these eyewitnesses have

consistently stated that they identified the accused, who were

acquitted by the trial Court, as being part of the unlawful

assembly but ’empty-handed’. It is crucial to emphasize that

mere presence in an assembly does not automatically classify a

person as a member of an unlawful assembly. The determination

of membership in such an assembly hinges on whether it can be

proven that there was a shared common object, and whether the

individual was actuated by that common object. This common

object must be shown to be shared by all the members. In cases

where the common object of an unlawful assembly is not proven,

Section 149 cannot be invoked to convict the accused persons.

In the present case, the prosecution has not presented any

evidence to demonstrate that the acquitted-accused shared a

common objective to assault the deceased or PW-2. The

existence of the common object of unlawful assembly must be

ascertained in light of the facts and circumstances of each case.

There must be a nexus between the common object and the

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offence committed, and it must be established that the offense

was committed to accomplish the common object. In the facts of

this case, the accused persons did not share a common object at

all stages. It is vital to note that an altercation had earlier

occurred at the birthday party of son of Manga Singh, following

which the complainant, his son (deceased) and Sukhwinder

Singh were headed to the house of Satpal Singh to complain

against the same. It is apparent from the evidence of

eyewitnesses, that all the accused were present in the street on

the way to the house of Satpal Singh. Thus, the common object

of the assembly might have been to teach them a lesson. But, it

cannot be proved that all the accused persons had the common

object to murder the deceased and PW-2 (injured), as no dangerous

weapon was used and all the wounds were allegedly caused with

blunt weapons i.e. danda and soti. Furthermore, relying on the

prosecution’s evidence, it cannot be finally inferred whether the

present respondents were present at the place of occurrence to

protect the deceased and the injured or to beat them, as no overt

act has been attributed to them in the deposition. Sukhwinder

Singh (PW-2) stated that the respondents only ‘caught hold’ of

Deepak Tiwari (deceased) and him while the rest of the accused

gave dang and soti blows to them. It is difficult to believe that

anyone would be willing to catch hold of a person when 6 people

are also assaulting the said person with blunt weapons. We do

not agree with the prosecution’s version of the respondents’ role

as that of Kalidasa, who tried to saw off the very branch on

which he was sitting.

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10. At this juncture, it would be relevant to take note of the

decision of the Hon’ble Supreme Court rendered in Allauddin

Mian Vs. State of Bihar, (1989) 3 SCC 5. In para 8 of the said

judgment, it was held as under:-

“8…This section creates a specific offence and makes
every member of the unlawful assembly liable for the
offence or offences committed in the course of the
occurrence provided the same was/were committed in
prosecution of the common object or was/were such as
the members of that assembly knew to be likely to be
committed. Since this section imposes a constructive
penal liability, it must be strictly construed as it seeks to
punish members of an unlawful assembly for the offence
or offences committed by their associate or associates in
carrying out the common object of the assembly. What is
important in each case is to find out if the offence was
committed to accomplish the common object of the
assembly or was one which the members knew to be
likely to be committed. There must be a nexus between
the common object and the offence committed and if it is
found that the same was committed to accomplish the
common object every member of the assembly will become
liable for the same. Therefore, any offence committed by a
member of an unlawful assembly in prosecution of any
one or more of the five objects mentioned in Section 141
will render his companions constituting the unlawful
assembly liable for that offence with the aid of Section
149, IPC. In the present case, the common object of the
unlawful assembly as alleged in the charge was to kill PW
6 Baharan Mian. To accomplish that objective accused 1
and 2 went after PW 6. Sensing danger PW 6 ran into the
adjoining room to fetch a spear to defend himself. His wife
PW 5, however, blocked his way and did not permit him
to go out. When accused 1 and 2 realised that PW 6 was
beyond their reach, they, frustrated at their failure to
accomplish their mission, wielded their weapons on the
innocent girls who were playing in the “dalan”. The
common object having thus been frustrated, accused 1

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and 2 took out their wrath on the innocent girls which
was no part of the common object of the unlawful
assembly. It was not necessary to kill these girls to
accomplish their object of killing PW 6 as these two girls
had not prevented them from reaching PW 6. The learned
counsel for the accused, therefore, rightly submitted that
while accused 1 and 2 can be punished for their
individual acts committed after the common object stood
frustrated and abandoned on PW 6 placing himself
beyond their reach, the other members of the unlawful
assembly could not be punished for the acts of accused 1
and 2 as the killing of the girls was no part of the
common object of the assembly. Once PW 6 was beyond
the reach of his two tormentors, the common object to kill
him stood frustrated and whatever the individual
members did thereafter could not be said to have been
done in prosecution of the common object of the
assembly. It is not the intention of the legislature in
enacting Section 149 to render every member of an
unlawful assembly liable to punishment for every offence
committed by one or more of its members. In order to
invoke Section 149 it must be shown that the
incriminating act was done to accomplish the common
object of the unlawful assembly. Even if an act incidental
to the common object is committed to accomplish the
common object of the unlawful assembly it must be
within the knowledge of other members as one likely to be
committed in prosecution of the common object. If the
members of the assembly knew or were aware of the
likelihood of a particular offence being committed in
prosecution of the common object they would be liable for
the same under Section 149, IPC. In the instant case,
however, the members constituting the unlawful
assembly had gone to the house of PW 6 to kill him. That
was the common object of the unlawful assembly. For
accomplishing that common object it was not necessary
to kill the two girls who were not an hinderance to
accused 1 and 2 accomplishing their common object. We
are, therefore, of the opinion that accused 3 to 6 cannot

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be convicted for the injuries caused to the two minor girls
by accused 1 and 2 with the aid of Section 149, IPC. We,
therefore, set aside the conviction under Section
326/149, IPC, and also the sentence imposed on accused
3 to 6 on that count…”

11. Importantly, PW-2, who was an injured witness, did

not mention anything about the use of any weapon by the

acquitted accused in his evidence. There is no evidence

whatsoever to suggest that the acquitted accused acted in

concert or pursued a common objective.

12. Thus, in light of the factual matrix of this case and

considering the established legal position as discussed above,

this Court is of the view that the prosecution has utterly failed to

establish that the acquitted accused shared a common object in

causing the death of the deceased and attempting to cause

death of PW-2. Accordingly, the issue is decided in negative.

13. In criminal appeal against acquittal what the

appellate court has to examine is whether the finding of the

learned court below is perverse and prima facie illegal. Once the

appellate court comes to the finding that the grounds on which

the judgment is based is not perverse, the scope of appeal

against acquittal is limited considering the fact that the legal

presumption about the innocence of the caused is further

strengthened by the finding of the court. At this point, it is

imperative to consider the decision of the Hon’ble Supreme

Court passed in the case of Mrinal Das versus State of Tripura,

(2011) 9 SCC 479, it has been observed that:

“13. It is clear that in an appeal against
acquittal in the absence of perversity in the

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judgment and order, interference by this Court
exercising its extraordinary jurisdiction, is not
warranted. However, if the appeal is heard by an
appellate court, it being the final court of fact, is
fully competent to reappreciate, reconsider and
review the evidence and take its own decision. In
other words, the law does not prescribe any
limitation, restriction or condition on exercise of
such power and the appellate court is free to
arrive at its own conclusion keeping in mind
that acquittal provides for presumption in
favour of the accused. The presumption of
innocence is available to the person and in
criminal jurisprudence every person is
presumed to be innocent unless he is proved
guilty by the competent court. If two reasonable
views are possible on the basis of the evidence
on record, the appellate court should not
disturb the findings of acquittal.

14. There is no limitation on the part of the
appellate court to review the evidence upon
which the order of acquittal is found and to
come to its own conclusion. The appellate court
can also review the conclusion arrived at by the
trial court with respect to both facts and law.
While dealing with the appeal against acquittal
preferred by the State, it is the duty of the
appellate court to marshal the entire evidence
on record and only by giving cogent and
adequate reasons set aside the judgment of
acquittal. An order of acquittal is to be
interfered with only when there are “compelling
and substantial reasons” for doing so. If the
order is “clearly unreasonable”, it is a
compelling reason for interference. … …”
In the case of Ghurey Lal Vs. State of Uttar

Pradesh, (2008) 10 SCC 450 in para no. 75, the Hon’ble

Supreme Court re-iterated the said view and observed as follows:

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“75. The trial court has the advantage of watching
the demeanour of the witnesses who have given
evidence, therefore, the appellate court should be
slow to interfere with the decisions of the trial court.

An acquittal by the trial court should not be
interfered with unless it is totally perverse or wholly
unsustainable.”

14. Thus, an order of acquittal is to be interfered with

only for compelling and substantial reasons. In case the order is

clearly unreasonable, it is a compelling reason for interference.

But where there is no perversity in the finding of the impugned

judgment of acquittal, the appellate Court must not take a

different view only because another view is possible. It is

because the trial Court has the privilege of seeing the

demeanour of witnesses and, therefore, its decision must not be

upset in the absence of strong and compelling grounds.

15. In view of the above, we do not find any illegality and

perversity in the findings recorded by the trial Court.

Accordingly, the present application is dismissed and leave to

appeal is declined.

(Sudhir Singh)
Judge

(Harsh Bunger)
Judge

15.02.2024
Mahavir/ ds

– Whether speaking/reasoned: Yes/No

– Whether reportable: Yes/No

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