SC: Courts are free to determine whether independent conviction is possible in case group prosecution under Section 149 IPC fails

The Hon’ble Supreme Court. on 10.12.2020, in the matter of Rohtas & Anr.  v. State of Haryana held that courts are free to weigh the evidence and determine whether an independent conviction is possible in case group prosecution under Section 149 IPC fails.

Questions before the Hon’ble Supreme Court

Whether a charge framed with the assistance of Section 149 IPC can later be converted to one read with Section 34 IPC or even a simplicitor individual crime?

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?

The Hon’ble Supreme Court observed that:

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 Section 141 read with Section 149 of the IPC had actually participated in the occurrence. It is not uncommon when although the number of accused is more than five at the time of charge­sheeting, 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 such cases, that the charge under Section 148 and 149 IPC would not survive. (Para 15)

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 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. 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 amendments to the charges which may have been erroneously framed earlier. Furthermore, improper, or non­framing 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 re­trial may be ordered. (Para 16)

Courts are free to weigh the evidence and determine whether an independent conviction is possible in case group prosecution under Section 149 IPC fails. (Para 17)

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 assembly. In reality, such ‘common intention’ is usually indirectly inferred from conduct of the individuals and only seldom it is done through direct evidence. (Para 22)

It is true that the duty of the prosecution is to seek not just conviction but to ensure that justice is done. 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 third­parties in every case at the time of incident, for most violent crimes are seldom anticipated. Any adverse inference against the non­examination 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. (Para 27)

Copy of judgement: Judgement_10-Dec-2020

-Adv. Tushar Kaushik

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