Holding

A conviction under IPC s.307 can be sustained by substituting the group charge under s.149 with an individual charge under s.34 where the evidence shows each accused acted with common intention, and the alteration of charges under the CrPC does not prejudice the accused.

Summary

The appellants Rohtas, Sanjay and Bijender were convicted for attempt to murder under IPC s.307 read with s.149 and for rioting with deadly weapons under s.148. They challenged the convictions on the ground that, after the acquittal of three co‑accused, the remaining number fell below the statutory minimum of five required for an unlawful assembly under s.149, and that the prosecution relied on a single eyewitness. The Supreme Court held that Sections 211‑224 and 386 of the CrPC give courts wide latitude to alter charges, and that where the group prosecution under s.149 fails, the court may substitute an individual charge under s.34 if the evidence supports common intention. The Court found that each appellant actively participated, used deadly weapons, and pre‑planned the attack, satisfying the elements of s.34 and s.307. It also ruled that the lack of independent witnesses does not, per se, invalidate the conviction, and that no leniency is warranted despite the appellants having served part of their sentence. Consequently, the appeals were dismissed, the conviction under s.307 upheld, the conviction under s.148 set aside, and the appellants were ordered to serve the balance of their five‑year sentence.

Issues considered

The adequacy of the number of participants to sustain a charge under IPC s.149 after some co‑accused were acquitted
Whether a charge framed under s.149 can be altered to an individual charge under s.34 or s.307
The impact of the non‑examination of independent witnesses on the conviction
The appropriateness of reducing the sentence on the basis of time already served

Legislation cited

Code of Criminal Procedure, 1973s. 211, s. 212, s. 213, s. 214, s. 215, s. 216, s. 217, s. 218, s. 219, s. 220, s. 221, s. 222, s. 223, s. 224, s. 386, s. 464
Indian Penal Code, 1860s. 141, s. 148, s. 149, s. 307, s. 34

Subjects

Framing of chargesAlteration of chargesSection 149 IPCSection 34 IPCUnlawful assemblyCommon intentionWitness testimonySentencingLeniencyCriminal Procedure

Judgment

[2020] 11 S.C.R. 983 983

ROHTAS & ANR. A
v.
STATE OF HARYANA
(Criminal Appeal No. 38 of 2011)
DECEMBER 10, 2020 B
[N.V. RAMANA, SURYA KANT AND
ANIRUDDHA BOSE, JJ.]
Code of Criminal Procedure, 1973 – ss.211-224, 386 –
Alteration of charges – Permissibility of – Seven accused persons
C
(one of whom died during trial) attacked victim-complainant – Six
accused persons (including the three appellants-accused) convicted
for offence u/ss.307 r/w s.149; s.148 – Appellants’ conviction u/
ss.307, 148 upheld by High Court and sentence u/s.307 reduced
from seven years to five; other three co-accused persons acquitted
– On appeal, held: ss.211-224 dealing with framing of charges in D
criminal trials, give significant flexibility to Courts to alter and rectify
the charges – Courts are free to weigh evidence and determine
whether an independent conviction is possible in case group
prosecution u/s.149 fails – Appellants did not suffer any adverse
effect when the High Court held the three of them individually guilty
E
for attempted murder, without the aid of s.149 – Appellants had
previously threatened the complainant with physical harm if he were
to attempt to irrigate his fields – Attack was pre-planned and
calculated – Each of them individually attacked the complainant
with a deadly object in furtherance of the common intention of killing
him – Requirements of s.34 established – Offence u/s.307 is clearly F
made out against each of them – Appellants to be taken into custody
to serve the remainder of five-year sentence – Conviction u/s.148
set aside – Penal Code, 1860 – ss.34, 141, 148, 149, 307 – Witness
– Sentencing.
Penal Code, 1860 – ss.34, 149 – Difference between – G
Discussed.
Witness – Independent witnesses – Non-examination of – Held:
Any adverse inference against the non-examination of independent
witnesses needs to be assessed upon the facts and circumstances of
each case. H
983
984 SUPREME COURT REPORTS [2020] 11 S.C.R.

A Disposing of the appeals, the Court
HELD: 1.1 Framing of charge and its subsequent alteration
Before the members of an ‘unlawful assembly’ can be
vicariously held guilty of an offence committed in furtherance of
common object, it is necessary to establish that not less than five
B persons, as mandatorily prescribed under Section 141 read with
Section 149 of the IPC had actually participated in the occurrence.
It is not uncommon, like in the present facts, when although the
number of accused is more than five at the time of charge-
sheeting, but owing to acquittals of some of them over the course
C of trial, the remaining number of accused falls below five. It may
be true in such cases, as rightly urged by the appellants that the
charge under Section 148 and 149 IPC would not survive. This
does not, however, imply that Courts can not alter the charge
and seek the aid of Section 34 IPC (if there is common intention),
or that they cannot assess whether an accused independently
D satisfies the ingredients of a particular offence. Sections 211 to
224 of CrPC which deal with framing of charges in criminal trials,
give significant flexibility to Courts to alter and rectify the charges.
The only controlling objective while deciding on alteration is
whether the new charge would cause prejudice to the accused,
E say if he were to be taken by surprise or if the belated change
would affect his defence strategy. The emphasis of Chapter XVII
of the CrPC is thus to give a full and proper opportunity to the
defence but at the same time to ensure that justice is not defeated
by mere technicalities. Similarly, Section 386 of CrPC bestows
even upon the appellate Court such wide powers to make
F amendments to the charges which may have been erroneously
framed earlier. Furthermore, improper, or non-framing of charge
by itself is not a ground for acquittal under Section 464 of the
CrPC. It must necessarily be shown that failure of justice has
been caused, in which case a re-trial may be ordered. The
G contention of the appellants to the contrary is nothing but hyper-
technical. Courts are free to weigh the evidence and determine
whether an independent conviction is possible in case group
prosecution under Section 149 IPC fails. Although both Section

H
ROHTAS v. STATE OF HARYANA 985

34 and 149 of the IPC are modes for apportioning vicarious liability A
on the individual members of a group, there exist a few important
differences between these two provisions. Whereas Section 34
requires active participation and a prior meeting of minds, Section
149 IPC assigns liability merely by membership of the unlawful
assembly. In reality, such ‘common intention’ is usually indirectly
B
inferred from conduct of the individuals and only seldom it is
done through direct evidence. [Paras 15-17, 22][993-F-H; 994-
A-E; 997-C-E]
1.2 Both the common object and the common intention are
traced back to the same evidence, i.e., evaluating the conduct of
the accused as narrated by the injured and the eye-witness-his C
brother (PW-3). A perusal of Section 313 CrPC statement shows
that the appellants were expressly confronted with their specific
role in the offence: that each of them had individually attacked
the complainant with a deadly object in furtherance of the common
intention of killing him. This Court, therefore, does not find that D
the appellants suffered any adverse effect when the High Court
held the three of them individually guilty for the offence of
attempted murder, without the aid of Section 149 IPC. On facts,
an offence under Section 307 IPC is clearly made out against
each of the three appellants. The medical experts have in their
depositions clearly explicated that the weapons used and the E
injuries inflicted were more than sufficient to cause death in
ordinary course of nature. The appellants made death threats to
the complainant on 24.01.1998 and then they used sharp edged
weapons the very next day and further declared that they would
not rest till they killed the complainant. The recovery of the axe F
(kulhari) from Rohtas, which is on the record as Exhibit-P7, further
punches holes in the mask of denial worn by the appellants. That
apart, even the requirements of Section 34 of IPC are well
established as the attack was apparently pre-meditated. The
incident was not in a spur-of-the-moment. The appellants had
previously threatened the complainant with physical harm if he G
were to attempt to irrigate his fields. Their attack on 25.01.1998
was thus pre-planned and calculated. [Paras 23, 24 and 26][997-
E-H; 998-A-B; 998-E-F]

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986 SUPREME COURT REPORTS [2020] 11 S.C.R.

A 2. Independence of witnesses
Although it is always ideal that independent witnesses come
forward to substantiate the prosecution case but it would be unfair
to expect the presence of third-parties in every case at the time
of incident, for most violent crimes are seldom anticipated. Any
B adverse inference against the non-examination of independent
witnesses thus needs to be assessed upon the facts and
circumstances of each case. In fact, it must first be determined
whether the best evidence though available, has been actually
withheld by the prosecution for oblique or unexplained reasons.
The present crime took place in a private agriculture field and
C not in the middle of a busy public place. The defence has not
claimed that other farmers also gathered at the scene and yet
have not been examined. Earlier in the trial they had tried to
discredit the ocular testimony of PW-3 by claiming that he might
not have been able to witness the incident owing to standing crops
D in the field. Nonetheless, they expect this Court to believe that
there could have been others who witnessed the incident but
have deliberately been suppressed by the prosecution. [Paras
27, 28][998-G-H; 999-A-C]
3. Sentencing and Leniency
E The appellants and their deceased co-accused were all
armed with deadly weapons. They surrounded the complainant
and in a brutal attack caused him gruesome injuries and disabled
him for life. The appellants have not undergone even half of their
sentence period. Having enjoyed the more productive part of
F their lives outside jail cannot be, per se, taken as a mitigating
factor. This Court does not find any justification to show leniency
and reduce the sentence. Given that earlier the appellants had
been ordered to serve their two sentences of five years under
Section 307 and one year under Section 148 of IPC concurrently,
acquittal in the latter would effectively have no impact on their
G outstanding period of sentence. [Paras 29-31][999-E-G]
4. Conclusion:
Both the appeals are found to be without any merit so far

H
ROHTAS v. STATE OF HARYANA 987

as conviction of the appellants under Section 307 IPC is A
concerned. However, their conviction under Section 148 is set-
aside. Their bail bonds are cancelled and the State of Haryana is
directed to take the appellants into custody to serve the
remainder of their five-year sentence as awarded by the High
Court. [Para 32][999-H; 1000-A]
B
Amar Singh v. State of Punjab (1987) 1 SCC 679 –
distinguished.
Kantilal Chandulal Mehta v. State of Maharashtra
(1969) 3 SCC 166; Karnail Singh v. State of Punjab
AIR 1954 SC 204 : [1954] SCR 904; Willie (William) C
Slaney v. State of MP AIR 1956 SC 116 : [1955] 2
SCR 1140; Chittarmal v. State of Rajasthan (2003) 2
SCC 266 : [2003] 1 SCR 49; Atmaram Zingaraji v. State
of Maharashtra (1997) 7 SCC 41:[1997] 3
Suppl. SCR 432; Nallabothu Venkaiah v. State of
Andhra Pradesh (2002) 7 SCC 117 : [2002] 1 Suppl. D
SCR 606; Kumari Shrilekha Vidyarthi v. State of UP
(1991) 1 SCC 212 : [ 1990] 2 Suppl. SCR 625 – relied
on.
Dhupa Chamar v. State of Bihar (2002) 6 SCC
506:[2002] 1 Suppl. SCR 412; Subran v. State of Kerala E
(1993) 3 SCC 32 : [1993] 2 SCR 84; Nallapareddy
Sridhar Reddy v. State of AP 2020 SCC Online SC 60;
Subran v. State of Kerala (1993) 3 SCC 722 – referred
to.
Mahbub Shah v. King Emperor AIR 1945 PC 118 – F
referred to.
Case Law Reference
(1987) 1 SCC 679 distinguished Para 12
[2002] 1 Suppl. SCR 412 referred to Para 12 G
[1993] 2 SCR 84 referred to Para 12
(1969) 3 SCC 166 relied on Para 16

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988 SUPREME COURT REPORTS [2020] 11 S.C.R.

A (1993) 3 SCC 722 referred to Para 17
[1954] SCR 904 relied on Para 19
[1955] 2 SCR 1140 relied on Para 20
[2003] 1 SCR 49 relied on Para 20
[1997] 3 Suppl. SCR 432 relied on Para 20
B
[2002] 1 Suppl. SCR 606 relied on Para 21
[1990] 2 Suppl. SCR 625 relied on Para 27
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 38 of 2011.
C From the Judgment and Order dated 15.03.2010 of the High
Court of Punjab and Haryana at Chandigarh in Criminal Appeal No.
1826-SB/02.
With
Criminal Appeal No. 775 of 2011.
D Rishi Malhotra, Dr. Monika Gusain, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
SURYA KANT, J.
These two criminal appeals, which have been heard through video
E conferencing, are directed against the judgment dated 15.03.2010 of the
High Court of Punjab and Haryana whereby conviction of Rohtas and
Sanjay (appellants in Criminal Appeal No. 38 of 2011) and Bijender
(appellant in Criminal Appeal No. 775 of 2011) under Sections 307 and
148 of the Indian Penal Code, 1860 (“IPC”) has been upheld, though
the sentence of seven years rigorous imprisonment awarded by the
F Additional Sessions Judge, Sonipat has been reduced to five years, with
a fine of Rs. 1,00,000 (Rupees One Lakh) payable as compensation to
the victim-complainant.
Facts

G 2. The brief facts of the prosecution case are as follows. A
complaint was lodged with the police by the victim-Ranbir Singh (PW-1)
on 26.01.1998 stating that two days ago while on his way to irrigate his
agricultural field, he was stopped by Rohtas, Sanjay, Bijender (the present
three appellants) and Om Prakash (since deceased) who collectively
threatened him with death if he were to return to his fields for irrigation.
H
ROHTAS v. STATE OF HARYANA 989
[SURYA KANT, J.]

The complainant came back to his house and narrated the incident to his A
family members who while cautioning him against picking a quarrel,
asked him to go about his normal routine. On the following day, i.e.
25.01.1998, when the complainant was passing by the Hudawala field
while on his way to another agricultural plot (known as Patewala field),
the four accused - Om Parkash, Rohtas, Sanjay and Bijender intercepted
B
him. They started inflicting blows on the complainant’s body using axes,
thereby causing him to fall down and seriously injuring his legs, hand and
head. Another group of three accused persons, comprising Hawa Singh,
Virender @ Beero and Rajinder also joined in thrashing the complainant.
The assailants further declared that they would not rest till they killed
the complainant. Upon hearing the complainant’s cries, his brother Balwan C
(PW-3) who was irrigating a nearby Budewala field, rushed to the spot
and raised an alarm. Thereafter, all seven accused ran from the spot.
Balwan subsequently carried his injured brother to Government Civil
hospital at Sonipat for treatment. Owing to the seriousness of multiple
injuries, Ranbir was referred to Post Graduate Institute of Medical
D
Sciences at Rohtak (in short, “PGIMS, Rohtak”).
3. The jurisdictional police recorded the statement of the injured
on 26.01.1998 at PGIMS, Rohtak and formally registered the First
Information Report under Sections 307, 323, 325, 506, 148 and 149 of
the IPC. All the seven accused were then arrested. Post completion of
investigation, they were committed to trial. The Additional Sessions Judge, E
Sonipat framed two charges; first, of rioting with deadly weapons under
Section 148, and second, of attempt to murder with common object as
part of an unlawful assembly under Section 307 read with Section 149
of the IPC. All seven accused pleaded not guilty and claimed trial.
During trial, however, Om Prakash died and proceedings against him F
stood abated on 08.11.2000.
4. The prosecution examined twelve witnesses to establish the
accused’s guilt, which included the victim-complainant - Ranbir Singh
(PW-1) and his brother and only eye-witness - Balwan (PW-3). The
complainant very effectively corroborated his earlier version. He remained G
firm during cross-examination and categorically stated that “Om
Parkash, Rohtas, Sanjay and Bijender and after a minute Beero,
Hawa Singh and Rajinder came there. All the accused attacked
me with their respective weapons.” He further mentioned that “Om
Parkash gave two axe blows on my head while Rohtas inflicted
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990 SUPREME COURT REPORTS [2020] 11 S.C.R.

A uncounted injuries on my right leg... Sanjay gave two-three axe
blows on my left leg... Bijender gave one axe blow on the palm of
my left hand.” It is relevant to be noticed here that the complainant
was candid enough to admit in his cross-examination that “when the
accused Rajinder, Hawa Singh and Beero when arrived at the scene
of occurrence, I have already suffered all the injuries on my
B
person.... [sic]”
5. Eye-witness, Balwan (PW-3) stated on oath that on 25.01.1998
he was irrigating Budewala field which he had taken on lease basis. At
about 12PM he heard noise towards the passage and after running in
that direction he witnessed that “Om Parkash, Rohtas, Sanjay and
C Bijender armed with axes were causing injuries to my brother/
Ranbir.” Like the injured-complainant, Balwan (PW-3) also gave a
detailed account of the assault and consequent injuries on the body of
Ranbir. Despite strong suggestions by the defence counsel on the
unlikelihood of him having seen the incident, Balwan unequivocally replied
D that “I saw the accused causing injuries to my brother from distance
of about half killa...”.
6. Dr. Suman Mathur (PW-4), who had medico-legally examined
the injured soon after the occurrence, lead the medical evidence. She
found the following seven injuries on various parts of the complainant’s
E (PW-1) body:
“1. Lacerated Wound 7 cm x 2 cm x bone deep on the lower 1/
3rd of right side. Bone exposed muscle and tendons were
crushed. Fresh bleeding was present and was advised x-ray.
2. Lacerated Wound 3 cm x 2 cms x bone deep present on the
F right ankle foot. Advised x-ray.
3. Lacerated Wound 3 cms x 2 cms x bone deep on the front
and middle of left leg. Advised x-ray left leg.
4. Lacerated Wound 3 cms x 2 cms x muscle deep present on
the dorsum of the left leg.
G
5. Lacerated Wound 3 cms x 3 cms x skin deep on the palmer
aspect of left leg. Advised x-ray.
6. Lacerated Wound 5 cms x 2 cms x scalp deep on the left
parieto temporal region 5 cms above the left ear. Advised x-
H ray.
ROHTAS v. STATE OF HARYANA 991
[SURYA KANT, J.]

7. Lacerated Wound 2 cms x 2 cms x scalp deep on the right A
parieto temporal region. Advised x-ray.”
7. The Orthopaedic Surgeon, Dr Ajay Goel (PW-10), deposed
that he was posted as Registrar in the Department of Orthopaedics, X-
Ray and Emergency Wing, at PGIMS Rohtak when he attended to the
complainant and diagnosed him with fracture of both the lower bones in B
both of his legs, along with vascular and nerve injuries. External bilateral
legs were affixed and vascular repair was carried out on 26.01.1998.
But, upon deterioration of the complainant’s condition, the lower portion
of his right leg (below the knee) was amputated on 01.02.1998. The
need for this amputation and its correlation with the initial set of injuries
inflicted by the accused, was elucidated by Dr SS Lochab (PW-12), C
who was posted as Head of Department of Cardiothoracic and Vascular
Surgery at PGIMS, Rohtak. He explained the damage caused to the
tibial arteries and how the massive blood loss had endangered the
complainant’s life. The Investigating Officer, S.I. Parkash Chand (PW-
6) and other formal police witnesses too deposed to substantiate the D
prosecution case.
8. The six-surviving accused in their statement under Section 313
of Code of Criminal Procedure, 1973 (“CrPC”) claimed that they were
falsely implicated on account of local village politics. They also led defence
evidence and produced Dr Varsha (DW-1) posted then as the Medical E
Officer, Civil Hospital, Sonipat who had found injuries on Om Prakash
(deceased) and Sanjay (present appellant) during a medico legal
examination on the day after the incident.
9. Analysing this substantial ocular and medical evidence, the
learned Additional Sessions Judge, Sonipat negated the defence’s F
objection against reliance on testimony of PW-3, for he being related to
the complainant or that the medical evidence did not reconcile with the
ocular evidence. The trial Court noted that an ‘unlawful assembly’ with
a common object had caused serious injuries to the complainant. All the
six accused were consequently convicted for the offence under Section
307 read with Section 149 of the IPC (with sentence of seven years G
rigorous imprisonment) and also under Section 148 of the IPC (with an
additional one year’s concurrent imprisonment).
10. The High Court, in appeal, re-appraised the entire evidence
and took further notice of the complainant’s admission that three of the
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992 SUPREME COURT REPORTS [2020] 11 S.C.R.

A accused, namely Rajinder, Hawa Singh and Beero @ Virender, had arrived
at the scene of occurrence after he had already suffered injuries from
the other accused. Sensing the possibility that the late-arriving accused
might have been named only to widen the net and settle past scores, the
High Court extended the benefit of doubt to Rajinder, Hawa Singh and
Beero @ Virender and acquitted them of all charges. As regards the
B
present three appellants - Rohtas, Sanjay and Bijender, the High Court
found no ground to interfere with their conviction, though it reduced the
quantum of sentence under the charge of Section 307 IPC from seven
years to five, with a combined additional fine of Rs 1,00,000 (Rupees
One Lakh) to be paid to the victim-complainant (PW-1).
C 11. These three remaining convicts, namely, Rohtas and Sanjay
(jointly) and Bijender have assailed their conviction and sentence through
these two criminal appeals.
Contentions:
D 12. We have heard learned counsel for the appellants at
considerable length and have perused the record in-depth. There are
three principal contentions which have been raised on behalf of the
appellants. First, it was urged that the minimum number of persons
required to constitute an ‘unlawful assembly’ and concomitantly sustain
any charge under Section 149 IPC is five. Given that three of the original
E seven accused have been acquitted by the High Court, the conviction
for attempt to murder as part of an unlawful assembly could not survive.
In support, learned counsel for the appellants relied upon Amar Singh
v. State of Punjab1, and Dhupa Chamar v. State of Bihar2. Further
reliance was placed on Subran v. State of Kerala3, to urge that the
F case should not be converted to one under Section 307 IPC simplicitor
at an advanced stage. Second, the prosecution story was highly doubtful
as Balwan (PW-3) was an interested witness and no other independent
witness had been examined. Third and finally, it was urged alternatively
that the appellants after having undergone some part of their sentence
were enlarged on bail by this Court almost a decade back, and it would
G not serve the ends of criminal justice to return them to jail at this juncture.
The sentence thus ought to be reduced to the period already undergone
by the appellants.
1
(1987) 1 SCC 679.
2
(2002) 6 SCC 506.
3
H (1993) 3 SCC 32.
ROHTAS v. STATE OF HARYANA 993
[SURYA KANT, J.]

13. Although learned State Counsel did not appear on the date of A
final hearing, but the respondent’s stand on the intermittent dates of
hearing has been in total contrast to that of the appellants. The prosecution
case proceeds on the premise that there is an attempt to murder, involving
seven persons with a common intention and prior meeting of minds. The
emphasis of the State as usual is that no lenient view ought to be taken
B
in light of the nature of injuries.
Analysis:
14. We have given our thoughtful consideration to all the issues
raised on behalf of the appellants. We first deem it appropriate to avert
to the contention whether a charge framed with the assistance of Section C
149 IPC can later be converted to one read with Section 34 IPC or even
a simplicitor individual crime? Second, whether lack of independent
witnesses to a violent crime would undermine the prosecution case and
whether closely related witnesses can be relied upon in such instances?
And third, whether leniency ought to be shown to the present appellants
given the extended period of liberty which they have enjoyed since being D
released on bail?
(i) Framing of charge and its subsequent alteration
15. The primary attack on the judgment of the High Court by
learned counsel for the appellants is on a question of law, which although E
seems interesting at first but turns out to be superficial upon a deeper
consideration. The oversight regarding Section 148 and 149 of the IPC
as highlighted by the appellants is indeed inescapable. Before the
members of an ‘unlawful assembly’ can be vicariously held guilty of an
offence committed in furtherance of common object, it is necessary to
establish that not less than five persons, as mandatorily prescribed under F
Section 141 read with Section 149 of the IPC had actually participated
in the occurrence. It is not uncommon, like in the present facts, when
although the number of accused is more than five at the time of charge-
sheeting, but owing to acquittals of some of them over the course of
trial, the remaining number of accused falls below five. It may be true in G
such cases, as rightly urged by the appellants that the charge under
Section 148 and 149 IPC would not survive.
16. This does not, however, imply that Courts can not alter the
charge and seek the aid of Section 34 IPC (if there is common intention),
or that they cannot assess whether an accused independently satisfies
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994 SUPREME COURT REPORTS [2020] 11 S.C.R.

A the ingredients of a particular offence. Sections 211 to 224 of CrPC
which deal with framing of charges in criminal trials, give significant
flexibility to Courts to alter and rectify the charges. The only controlling
objective while deciding on alteration is whether the new charge would
cause prejudice to the accused, say if he were to be taken by surprise or
if the belated change would affect his defence strategy.4 The emphasis
B
of Chapter XVII of the CrPC is thus to give a full and proper opportunity
to the defence but at the same time to ensure that justice is not defeated
by mere technicalities. Similarly, Section 386 of CrPC bestows even
upon the appellate Court such wide powers to make amendments to the
charges which may have been erroneously framed earlier. Furthermore,
C improper, or non-framing of charge by itself is not a ground for acquittal
under Section 464 of the CrPC. It must necessarily be shown that failure
of justice has been caused, in which case a re-trial may be ordered. 5
17. The contention of the appellants to the contrary is nothing but
hyper-technical. It deserves mention that the extracts of Subran v. State
D of Kerala (supra) as relied upon by the appellants’ counsel have been
subsequently recalled and substituted by the bench in review jurisdiction.6
The amended version makes clear that acquittal in Subran (supra) was
not because of improper framing of charges but on facts. In that case,
the injuries attributed to the accused failed to satisfy the necessary
ingredients of the relevant provision when his role was assessed
E individually. Indeed, such is the right approach. Courts are free to weigh
the evidence and determine whether an independent conviction is possible
in case group prosecution under Section 149 IPC fails.
18. In another case relied upon by the appellants, i.e. Amar Singh
v. State of Punjab (supra), this Court in the penultimate paragraph notes
F that “Apart from the fact that the appellants cannot be convicted
under Sections 148 and 149 IPC, it is difficult to convict them on
any charge on the basis of the evidence of PW5.”This shows that
acquittal was based not merely upon failure by the prosecution to fulfil
the requirements of Section 149 IPC, but because even independently
G no substantive offence was found to have been committed.
19. In fact, the law on this point has continuously been delved into
and reiterated by this Court from time to time. A three-Judge Bench of
4
Nallapareddy Sridhar Reddy v. State of AP, 2020 SCC OnLine SC 60, ¶ 16-21.
5
Kantilal Chandulal Mehta v. State of Maharashtra, (1969) 3 SCC 166.
6
H (1993) 3 SCC 722.
ROHTAS v. STATE OF HARYANA 995
[SURYA KANT, J.]

this Court in Karnail Singh v. State of Punjab7, held that: A
“8. It is true that there is substantial difference between the
two sections but as observed by Lord Sumner in Barendra
Kumar Ghosh v. Emperor I.L.R. 52 Cal. 197, they also to some
extent overlap and it is a question to be determined on the
facts of each case whether the charge under section 149 B
overlaps the ground covered by section 34. If the common
object which is the subject-matter of the charge under section
149 does not necessarily involve a common intention, then
the substitution of section 34 for section 149 might result in
prejudice to the accused and ought not therefore to be
permitted. C

But if the facts to be proved and the evidence to be adduced
with reference to the charge under section 149 would be the
same if the charge were under section 34, then the failure to
charge the accused under section 34 could not result in any
prejudice and in such cases the substitution of section 34 for D
section 149 must be held to be a formal matter.”
(emphasis supplied)
20. The above-extracted position of law was further concretised
in Willie (William) Slaney v. State of MP8 and by the majority in E
Chittarmal v. State of Rajasthan9. The permissibility of convicting an
accused individually under a simplicitor provision after group conviction
with the aid of Section 149 of IPC fails, was further explored in Atmaram
Zingaraji v. State of Maharashtra10, wherein this Court held that:
“4. The next question that falls for our determination is F
whether, after having affirmed the acquittal of all others, the
High Court could convict the appellant under Section 302,
I.P.C. (simpliciter). The charges framed against the accused
(quoted earlier) and the evidence adduced by the prosecution
to bring them home clearly indicate that according to its case,
the nine persons arraigned before the trial Court - and, none G
others, either named or unnamed (totalling minimum five or
7
AIR 1954 SC 204.
8
AIR 1956 SC 116, ¶ 49.
9
(2003) 2 SCC 266, ¶ 14.
10
(1997) 7 SCC 41. H
996 SUPREME COURT REPORTS [2020] 11 S.C.R.

A more persons) - formed the unlawful assembly. Consequent
upon the acquittal of the other eight the appellant could not
be convicted with the aid of Section 149, I.P.C., more
particularly, in view of the concurrent findings of the learned
Courts below that the other eight persons were not in any
way involved with the offences in question.
B
5. The same principle will apply when persons are tried with
the aid of Section 34, I.P.C. In the case of Krishna v. State of
Maharashtra [1964]1SCR678 , a four Judge Bench of this
Court has laid down that when four accused persons are tried
on a specific accusation that only they committed a murder in
C furtherance of their common intention and three of them are
acquitted, the fourth accused cannot be convicted with the
aid of Section 34, I.P.C. for the effect of law would be that
those who were with him did not conjointly act with the fourth
accused in committing the murder.
D 6. In either of the above situations therefore the sole convict
can be convicted under Section 302, I. P. C. (simpliciter) only
on proof of the fact that his individual act caused the death
of the victim. To put it differently, he would be liable for his
own act only. In the instant case, the evidence on record does
E not prove that the injuries inflicted by the appellant alone
caused the death; on the contrary the evidence of the eye-
witnesses and the evidence of the doctor who held the post-
mortem examination indicate that the deceased sustained
injuries by other weapons also and his death was the outcome
of all the injuries. The appellant, therefore, would be guilty of
F the offence under Section 326, I.P.C. as he caused a grievous
injury to the deceased with the aid of jambia (a sharp-cutting
instrument).”
(emphasis supplied)

G 21. This position of law has finally been summed up very
succinctly in Nallabothu Venkaiah v. State of AndhraPradesh11:
“24. Analytical reading of catena of decisions of this Court,
the following broad proposition of law clearly emerges; (a)
the conviction under Section 302 simpliciter without aid of
11
H (2002) 7 SCC 117.
ROHTAS v. STATE OF HARYANA 997
[SURYA KANT, J.]

Section 149 is permissible if overt act is attributed to the A
accused resulting in the fatal injury which is independently
sufficient in the ordinary course of nature to cause the death
of the deceased and is supported by medical evidence; (b)
wrongful acquittal recorded by the High Court, even if it stood,
that circumstance would not impede the conviction of the
B
appellant under Section 302 r/w Section 149 I.P.C. (c) charge
under Section 302 with the aid of Section 149 could be
converted into one under Section 302 r/w Section 34 if the
criminal act done by several persons less than five in number
in furtherance of common intention is proved.”
(emphasis supplied) C

22. Although both Section 34 and 149 of the IPC are modes for
apportioning vicarious liability on the individual members of a group, there
exist a few important differences between these two provisions. Whereas
Section 34 requires active participation and a prior meeting of minds,
Section 149 IPC assigns liability merely by membership of the unlawful D
assembly. In reality, such ‘common intention’ is usually indirectly inferred
from conduct of the individuals and only seldom it is done through direct
evidence.12
23. Applying these settled principles to the facts of the present
case, it may be seen that both the common object and the common E
intention are traced back to the same evidence, i.e., evaluating the conduct
of the accused as narrated by the injured and the eye-witness. Further,
a perusal of Section 313 CrPC statement shows that the appellants were
expressly confronted with their specific role in the offence: that each of
them had individually attacked the complainant with a deadly object in F
furtherance of the common intention of killing him. We, therefore, do not
find that the appellants suffered any adverse effect when the High Court
held the three of them individually guilty for the offence of attempted
murder, without the aid of Section 149 IPC.
24. We have no doubt that on facts, an offence under Section 307 G
IPC is clearly made out against each of the three appellants. The medical
experts have in their depositions clearly explicated that the weapons
used and the injuries inflicted were more than sufficient to cause death
in ordinary course of nature. The appellants made death threats to the
12
Mahbub Shah v. King Emperor, AIR 1945 PC 118, pp. 153-154. H
998 SUPREME COURT REPORTS [2020] 11 S.C.R.

A complainant on 24.01.1998 and then they used sharp edged weapons
the very next day and further declared that they would not rest till they
killed the complainant. It manifests the appellant’s intention to inflict
bodily injury knowing fully that such injuries would ordinarily lead to the
complainant’s death. The recovery of the axe (kulhari) from Rohtas,
which is on the record as Exhibit-P7, further punches holes in the mask
B
of denial worn by the appellants.
25. The gravity of the injuries is beyond doubt. Not only were
there seven injuries, some of which were deep cuts on vital parts of the
body including on the head (above the ear); but the appellants broke all
the bones in the complainant’s feet below the knee. Most appallingly, the
C injuries have led to amputation of an entire limb, leaving the complainant
permanently disabled. This by itself shows the very likely possibility of
the complainant dying if not for the timely intervention of PW-3 and
appropriate medical care by PGIMS Rohtak. Given such extreme injuries,
we can fathom no rhyme or reason for either the complainant (PW-1) or
D his brother, Balwan (PW-3) to falsely implicate the appellants and allow
the actual culprits to go scot-free. On the contrary, the candour of PW-
1 and the responses of PW-3 inspire confidence and provide undoubtable
explanation of the incident.
26. That apart, even the requirements of Section 34 of IPC are
E well established as the attack was apparently pre-meditated. The incident
was not in a spur-of-the-moment. The appellants had previously
threatened the complainant with physical harm if he were to attempt to
irrigate his fields. Their attack on 25.01.1998 was thus pre-planned and
calculated. There is nothing on record to suggest that the complainant
caused any provocation. Specific roles have been attributed to each of
F the appellants by the injured and the solitary eye-witness, establishing
their individual active participation in the crime.
(ii) Independence of witnesses
27. It is true that the duty of the prosecution is to seek not just
G conviction but to ensure that justice is done.13 The prosecution must,
therefore, put forth the best evidence collected in the course of
investigation. Although it is always ideal that independent witnesses
come forward to substantiate the prosecution case but it would be unfair
to expect the presence of third-parties in every case at the time of incident,
13
H Kumari Shrilekha Vidyarthi v. State of UP, (1991) 1 SCC 212.
ROHTAS v. STATE OF HARYANA 999
[SURYA KANT, J.]

for most violent crimes are seldom anticipated. Any adverse inference A
against the non-examination of independent witnesses thus needs to be
assessed upon the facts and circumstances of each case. In fact, it must
first be determined whether the best evidence though available, has been
actually withheld by the prosecution for oblique or unexplained reasons.
28. The present crime took place in a private agriculture field and B
not in the middle of a busy public place. The defence has not claimed
that other farmers also gathered at the scene and yet have not been
examined. This shows that the appellants have in fact been blowing both
hot and cold with their arguments. Earlier in the trial they had tried to
discredit the ocular testimony of PW-3 by claiming that he might not
have been able to witness the incident owing to standing crops in the C
field. Nonetheless, they expect this Court to believe that there could
have been others who witnessed the incident but have deliberately been
suppressed by the prosecution.
(iii) Sentencing and Leniency
D
29. This leaves us to explore the equitable considerations and
plea of consequential reduction in sentence as has been pleaded by learned
counsel on behalf of the appellants. We have objectively considered this
prayer. We, however, cannot be oblivious of the fact that the appellants
and their deceased co-accused were all armed with deadly weapons.
They surrounded the complainant and in a brutal attack caused him E
gruesome injuries and disabled him for life.
30. The appellants have not undergone even half of their sentence
period. Having enjoyed the more productive part of their lives outside
jail cannot be, per se, taken as a mitigating factor. Any misplaced
sympathy with the appellants is likely to cause injustice to the victim of F
the crime. We, therefore, do not find any justification to show leniency
and reduce the sentence.
31. Given that earlier the appellants had been ordered to serve
their two sentences of five years under Section 307 and one year under
Section 148 of IPC concurrently, acquittal in the latter would effectively G
have no impact on their outstanding period of sentence.
Conclusion:
32. As a sequel to the above discussion, both the appeals are
found to be without any merit so far as conviction of the appellants
H
1000 SUPREME COURT REPORTS [2020] 11 S.C.R.

A under Section 307 IPC is concerned, and are dismissed accordingly.
However, their conviction under Section 148 is set-aside. Their bail bonds
are cancelled and the State of Haryana is directed to take the appellants
into custody to serve the remainder of their five-year sentence as awarded
by the High Court.
B

Divya Pandey Appeals disposed

C

D

E

F

G

H