Allahabad High Court
Kailash Yadav vs State Of U.P. on 26 March, 2019
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 7
CRIMINAL APPEAL No. 7084 of 2010
Kailash Yadav ----- Appellant
Vs.
State of U.P. ----- Respondent
And
CRIMINAL APPEAL No. 7086 of 2010
1. Ranjeet Yadav
2. Prakash @ Om Prakash Yadav
3. Rajendra @ Raju Yadav
4. Ajay @ Buddhu ----- Appellants
Vs.
State of U.P. ----- Respondent
And
CRIMINAL APPEAL No. 7085 of 2010
Abhijeet ----- Appellant
Vs.
State of U.P. ----- Respondent
______________________________________________________
For Appellants : Sri R.K. Singh
For Respondent/State : Sri Amit Sinha, Sri Rajiv Lochan Shukla, Sri A.K. Ojha ______________________________________________________
Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per : Pritinker Diwaker, J.
(26.03.2019)
1. As these appeals arise out of common judgement and order dated 07.10.2010/16.10.2010 passed by Special Judge, Gangster Act, Jhansi in Sessions Trial No. 51 of 2006 (arising out of crime no. 1039 of 2005), convicting the accused-appellants under Sections 148, 323/149, 302/149 of IPC, and Section 3 of Gangster and Anti Social Activities (Prevention) Act, 1986 and sentencing them to undergo under Section 148 of I.P.C. 3 years rigorous imprisonment and a fine of Rs. 5,000/-, in default thereof, 6 months additional simple imprisonment, under Section 302 read with Section 149 of I.P.C. imprisonment for life and a fine of Rs. 10,000/-, in default thereof, one year additional simple imprisonment and under Section 3 of the Gangster Act, 7 years rigorous imprisonment and a fine of Rs. 5,000/- in default thereof, six months additional simple imprisonment with a direction that all these sentences shall run concurrently, they are being disposed of by this common order.
2. As per prosecution case, on 17.09.2005 at about 6:30 P.M., accused Kailash Yadav son of Lakshminarayan and Ajay @ Buddhu, son of Kailash Yadav, came to the village of victim party and at that time accused Kailash Yadav was in a drunken status. Both the accused persons started abusing the victim party, which was objected by them and soon thereafter, accused Ajay @ Buddhu gave blows of club to the first informant PW-1 Bhagwat Dayal. Upon hearing the shout of Bhaghwat Dayal, Jagdish Dubey, Tulsidas and other persons gathered there and after hearing the shout of accused Kailash Yadav, his brother accused Prakash Yadav, Rajendra Yadav, Abhijeet (deceased) and accused Ranjeet also reached to the place of occurrence. Accused Kailash was carrying rifle in his hand whereas deceased-accused Abhijeet was having double barrel gun with him and the other persons were having clubs in their hands. All the accused persons gave a beating to Jagdish also and according to prosecution case, whosoever was defending the victim party, was beaten by the accused party. During this 'marpeet' accused Kailash Yadav and Ajay @ Buddhu also sustained injuries. While this 'marpeet' was going on, Sant Ram (brother of first informant Bhagwat Dayal), who was returning from Jhansi, also reached to the place of occurrence and after seeing him, accused persons chased him and accused Kailash Yadav and Abhijeet caused firearm injuries to him resulting his instantaneous death. On 17.09.2005, at 9:15 P.M., FIR Ex.Ka.16 was lodged by PW-1 Bhagwat Dayal against all the six accused persons under Sections 147, 148, 149, 323, 504, 302 of IPC read with Section 7 of Criminal Law Amendment Act.
3. Injured Dhan Singh was examined by Dr. Harish Chandra on 17.09.2005, at 8:00 P.M., vide Ex. Ka. 6 and following injuries were noticed:
"(i) L/w size 7 cm x 2 cm x bone deep on middle of scalp in front of vertex fresh bleeding present."
Injured Jagdish was examined by Dr. Harish Chandra on 17.09.2005, at 8:05 P.M., vide Ex. Ka. 7 and following injuries were noticed:
"(i) L/w size 4 cm x 1 cm x bone deep on middle of scalp horizontally situated fresh bleeding present."
(ii) L/w size 2 cm x 1 cm x bone deep on middle of scalp 3 cm from behind the injury No. 1 fresh bleeding present.
(iii) L/w size 2 cm x 1 cm x muscle deep on posterior aspect of Rt. hand on joint of thumb and index finger fresh bleeding present.
(iv) Traumatic swelling, pain & tenderness on middle of Rt. leg. L/w size 4 cm x 2 cm x muscle to bone deep present over swelling fresh bleeding present.
(v) L/w size 4 cm x 2 cm x muscle to bone deep on lower 1/3 of Lt. Leg in ant. aspect fresh bleeding present."
Injured PW-1 Bhagwat Dayal was examined by Dr. D.K. Yadav on 18.09.2005, at 12:20 A.M., vide Ex. Ka. 2 and following injuries were noticed:
"(i) Lacerated wound size 2 cm x 0.5 cm over Rt parietal region of skull 5 cm above Rt. ear pinna fresh clotted blood present.
(ii) Contusion 3 cm x 2 cm over Rt. scapula region 3 cm lateral to midline of sacrum.
(iii) Contusion 8 cm x 2.5 cm on Rt side back 9 cm below inferior angle of Rt. scapula."
Injured Smt. Mithla was examined by Dr. D.K. Yadav on 18.09.2005, at 12:25 A.M., vide Ex. Ka. 3 and following injuries were noticed:
"(i) Abraded contusion lt. forearm size 5 cm x 3 cm just above lt. wrist joint.
(ii) Contusion 4 cm x 2 cm on left side back 13 cm below inferior angle of lt. Scapula.
(iii) Contusion Rt. gluteal region size 14 x 13 cm, 4 cm below pubic bone.
(iv) Contusion 8 cm x 2 cm lateral surface of left leg 11 cm below left knee joint."
Injured Ramesh was examined by Dr. D.K. Yadav on 18.09.2005, at 12:35 A.M., vide Ex. Ka. 4 and following injuries were noticed:
"(i) Contusion 9 cm x 2 cm over left side of chest 5 cm above left ripple.
(ii) Contusion 4 cm x 2 cm over anterior surface of Rt. upper arm, 7 cm above Rt. elbow.
(iii) Contusion 9 cm x 6 cm over Rt. scapula region, 8 cm below shoulder.
(iv) Contusion 10 cm x 5 cm on Rt. side back 6 cm below inferior angle of Rt scapula.
(v) Three contusion over lt. scapular region size 11 cm x 1 cm, 8 cm x 1 cm, 3 cm below left shoulder joint.
(vi) Contusion 8 cm x 3 cm on both of Rt thigh 12 cm above Rt knee joint.
4. Inquest on the dead body of the deceased was conducted vide Ex. Ka. 9 on 18.09.2005 and the body was sent for postmortem, which was conducted vide Ex. Ka. 5 on 18.09.2005 by PW-4 Dr. Ajay Vikram Singh.
5. As per Autopsy Surgeon, following antemortem injuries have been found on the body of the deceased:
"(i) L/w of size 6 x 1.0 cm over Lt perietal area.
(ii) L/w of size 2 x 1.0 cm over lower lip.
(iii) L/w of size 5 x 1.0 cm over left side of chin.
(iv) Entry wound 1.0 x 1.0 cm over lateral side of Rt chestwall, below Rt. axilla. Margins are inverted, blackening, tatooing pnt.
(v) Exit wound-5.0 x 4.0 cm over Lt. Side of chest at nipple. Margins are everted.
The cause of death of the deceased was due to shock and haemorrhage as a result of antemortem injury.
6. During investigation, from Himani Arms Store, one licensed gun was seized, however, there is no ballistic expert report.
7. While framing charge, the trial judge has framed charge against all the accused persons under Sections 147, 148, 149, 323, 325, 504, 302 of IPC. In addition to this charge, charge under Section 7 of Criminal Law Amendment Act and Section 3 of Gangster and Anti Social Activities (Prevention) Act was also framed against all the accused persons.
8. So as to hold accused persons guilty, prosecution has examined eleven witnesses, whereas one defence witness has also been examined. Statements of accused person were recorded under Section 313 Cr.P.C. in which, they pleaded their innocence and false implication.
9. By the impugned judgment, the trial Judge has convicted the accused appellants under Sections 148, 325/149, 302/149 of IPC, Section 7 of Criminal Law Amendment Act and Section 3 of Gangster and Anti Social Activities (Prevention) Act and sentenced them as mentioned in paragraph no. 1 of this judgement.
10. Assailing the impugned judgement, three appeals were filed by the accused persons but as accused Abhijeet, who preferred Criminal Appeal No. 7085 of 2010, expired during the pendency of his appeal, his appeal stands dismissed being abated and presently, we are dealing with Criminal Appeal No. 7084 of 2010 and Criminal Appeal No. 7086 of 2010.
11. Learned counsel for the appellants submits:
(i) that two eye witnesses PW-1 Bhagwat Dayal and PW-2 Tulsi Das have not seen the actual occurrence and they have falsely implicated all the accused persons in commission of murder of the deceased. Learned counsel submits that PW-1 & PW-2 might have seen the first incident of 'marpeet' between the parties but from the spot map and their evidence, it is apparent that they had not seen the incident of murder of the deceased.
(ii) that postmortem report of the deceased does not support the statement of PW-1 Bhagwat Dayal and PW-2 Tulsi Das.
(iii) that in the incident, accused Kailash Yadav & Ajay @ Buddhu had also sustained injuries and, therefore, it cannot be said that it is the accused persons, who were assailants.
(iv) that four important injured witnesses Smt. Mithla, Ramesh, Jagdish and Dhan Singh have not been examined by the prosecution though some of them were cited as witnesses. According to defence counsel, 161 Cr.P.C. statement of these witnesses were recorded by the police of its own and, therefore, deliberately they have not examined these witnesses.
(v) that in the spot map, position of two eye witnesses PW-1 Bhagwat Dayal and PW-2 Tulsi Das have not been shown.
(vi) that no incriminating article has been seized by the prosecution and at least the same has not been connected with the occurrence.
(vii) that all accused persons have been convicted with the aid of Section 149 of I.P.C. whereas undisputedly, when 'marpeet' was going on between two groups, deceased Sant Ram was not present and, therefore, there cannot be a common object to commit the murder of Sant Ram. Learned counsel submits that it was just a co-incidence that Sant Ram also reached to the place of occurrence and then he was subjected to firearm injury by accused Kailash Yadav. It has been argued that if some act has been done by Kailash Yadav, for the same, all other accused persons cannot be convicted with the aid of Section 149 of I.P.C.
12. On the other hand, supporting the impugned judgment, it has been argued by the State counsel that conviction of the appellants is in accordance with law and there is no infirmity in the same.
Supporting the arguments advanced by State counsel, learned counsel for the informant also submits that conviction of the appellants is just and proper. It has been argued that accused-appellant Kailash Yadav cannot take any advantage of Section 85 of I.P.C. because he himself came at the place of occurrence in a drunken condition and it is not a case where liquor was offered to him or that any intoxication was administered to him without his knowledge or against his will.
13. We have heard counsel for the parties and perused the record.
14. PW-1 Bhagwat Dayal is the first informant and eye witness to the incident, states that on 17.09.2005 at 06.30 P.M., when he was standing near middle school square, accused Kailash Yadav and Ajay @ Buddhu came there and started abusing him and his brothers. He asked them not to behave in such a manner and soon thereafter accused Ajay @ Buddhu started beating him by a club and upon hearing his cries, injured Jagdish and Tulsidas also reached there and in the meanwhile, accused Kailash also called for help and then co-accused persons namely Prakash, Rajendra, Abhijeet and Ranjeet also reached there. Kailash was carrying rifle in his hand, whereas Abhijeet was having double barrel gun and other accused persons were armed with club. He states that injured Jagdish was first beaten and thereafter injured Dhan Singh, Mithla and Ramesh were also beaten. In the meanwhile, his brother Sant Ram (deceased) also reached at the place of occurrence, who had returned from Jhansi and leaving everyone, accused persons stated that it is Sant Ram who is a big scoundrel and therefore, he be killed. Accused persons chased his brother and when deceased Sant Ram turned his face towards the accused persons, accused Kailash and Abhijeet caused firearm injuries to him as a result of which deceased fell down and died instantaneously. He states that accused-appellant Kailash was shouting for ensuring the death of the deceased. He states that deceased Sant Ram was also beaten by accused Ajay, Prakash, Rajendra and Ranjeet by club. He states that indiscriminate fight went on for some time and thereafter the accused persons left the place of occurrence. By the time he reached to his brother, he was already dead. In cross-examination this witness remained firm and nothing could be elicited from him, which may be of any help to the accused persons. In cross-examination, he further states that till the 'marpeet' was going on at the first place of occurrence, no fire was made by accused Kailash and Abhijeet. He further states that in the incident accused Kailash and his son Ajay also sustained injuries and that blood was oozing from their wounds. Thereafter he stated that injuries were sustained by Kailash and Ajay from the clubs of co-accused persons. He has further clarified that the incident was in two parts. The first part took place near square and then in the second part after the arrival of deceased he was chased and then was done to death by Kailash. He further states that the first incident continued for about five to six minutes and in the said first incident, accused Kailash and Abhijeet have not used firearm. He has further stated that when he was assaulted by a club, he raised his cries and upon hearing the same, injured Jagdish, Tulsi Das, Ramesh and Mithla reached to the place of occurrence within a minute and after hearing the call of accused Kailash, the other accused persons also reached there within a few minutes. He further states that accused Kailash was drunk and was not in a position even to stand. He further states that quite often accused Kailash used to consume liquor.
15. PW-2 Tulsi Das is other eye-witness to the incident. While supporting the prosecution case, he states that upon hearing the cries of PW-1 Bhagwat Dayal, when he reached to the place of occurrence, he saw accused Kailash carrying rifle with him, whereas accused Ajay was having club in his hand and he was beating Bhagwat Dayal. He states that Kailash was hurling abuses and in the meanwhile, other injured persons Jagdish, Dhan Singh, Mithla and Ramesh also reached to the place of occurrence and upon hearing the call of Kailash, other accused persons, namely, Prakash, Rajendra, Ranjeet and Abhijeet also reached there. Except Abhijeet, other accused persons were having club with them. He further states that while this 'marpeet' was going on, deceased Sant Ram, brother of Baghwat Dayal reached there from Jhansi and after seeing him, accused persons shouted for ensuring the killing of Sant Ram. Sant Ram ran for his life, but was chased and as soon as he turned his face towards the accused persons, accused Kailash and Abhijeet caused firearm injuries to him as a result of which Sant Ram fell on the ground. He further states that accused Kailash was shouting to ensure the death of the deceased and then the other accused persons also gave a beating to him by the clubs. In cross-examination, he states that the incident of 'marpeet' started all of a sudden after exchange of abuses by the parties. He further states that in the first incident, accused Kailash and Abhijeet, though, were carrying firearm with them but they did not use the same. Injured Jagdish, Dhan Singh, Mithla, Bhagwat Dayal and Ramesh were not having any arm with them and that they were trying to intervene in the matter. He further states that accused Kailash made a call to his brother to ensure that he might not be weakened in the incident.
16. PW-3 Dr. D.K. Yadav medically examined the injured Bhagwat Dayal, Mithla and Ramesh.
17. PW-4 Dr. Ajay Vikram Singh conducted postmortem on the body of the deceased.
18. PW-5 Dr. Harish Chandra medically examined the injured Dhan Singh and Jagdish.
19. PW-6 Lalta Prasad has proved the X-Ray report of Jagdish. PW-7 G.P. Ojha did initial part of investigation. PW-8 Guru Prasad Upadhyay registered the FIR. PW-9 Sushil Kumar is an Investigating Officer, who has duly supported the prosecution case. PW-10 Matadeen Jatav assisted during investigation. PW-11 Rajesh Kumar Singh is the Investigating Officer, who filed the charge-sheet.
20. DW-1 Ram Babu has been examined to prove the plea of alibi on behalf of accused Rajendra.
21. Close scrutiny of the evidence makes it clear that after consuming liquor, in an intoxicating condition accused Kailash and Ajay reached to the place of first occurrence and started abusing PW-1 Bhagwat Dayal and his brothers. When he was asked not to hurl such abuses, accused Ajay caused club injury to PW-1 and upon hearing the cries of PW-1, when Jagdish and Tulsi Das reached there, they too were beaten by club. In the meanwhile, main accused Kailash gave a call to his brothers and other family members and upon hearing the same, the other accused persons also reached there and started beating the victim party. At this time, though accused Kailash and Abhijeet were carrying rifle and double barrel gun with them, but they did not use the same. While this 'marpeet' was going on, unfortunately deceased Sant Ram reached to the place of occurrence, who had returned from Jhansi and after seeing him, the accused persons chased him. Sant Ram made an attempt to escape from the clutches of the accused persons but near the school when he turned his face towards Kailash and Abhijeet, they caused firearm injury to him resulting his instantaneous death.
22. Considering the evidence of PW-1 Bhagwat Dayal and PW-2 Tulsi Das, complicity of all the accused persons in commission of offence has been duly proved by the prosecution. Medical report of injured Bhagwat Dayal, Mithla, Ramesh, Jagdish and Dhan Singh also supports the prosecution case. The postmortem report of Sant Ram shows one firearm entry wound and exit wound on his chest. Admittedly, the firearm injury has been caused by Kailash who was carrying firearm with him and was in a drunken condition. Considering the evidence of two eye-witnesses and the medical report of the deceased, we are of the view that conviction of appellant Kailash under Section 302 of IPC is in accordance with law and there is no infirmity in the same. Instead of convicting him under Section 302/149 of IPC, we convict him under Section 302 of IPC.
23. The next question which arises for consideration of this Court is as to whether the conviction of other accused persons with the aid of Section 149 of IPC is in accordance with law or not.
24. Section 149 of IPC reads as under:
"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.
In order to attract section 149 of the Code it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in prosecution of common object. If members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of a common object, they would be liable for the same under section 149; Waman V. State of Maharashtra, AIR 2011 SC 3327: (2011) 7 SCC 295: JT 2011 (7) SC 24: (2011) 6 SCALE 594: 2011 Cr LJ 4827.
When the charge is under section 149, the presence of the accused as part of unlawful assembly is sufficient for conviction even if no overt act is imputed to him; Yunis alias Kariya V. State of Madhya Pradesh, AIR 2003 SC 539.
Even if no overt act is imputed to a particular person, when the charge is under section 149, the presence of the accused as part of unlawful assembly is sufficient for conviction; Yunis alias Kariya v. State of Madhya Pradesh, AIR 2003 SC 539."
25. The Hon'ble Apex Court in paragraph no.8 in the case of Shivjee Singh & Ors. vs. State of Bihar; 2008 (3) JIC 725(SC) has held as under:
"8. A plea which was emphasized by the appellants relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. 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. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of 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 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 have 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. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly"
26. While considering the applicability of necessary ingredients Section 149 of IPC, the Apex Court had an occasion to consider the same in the case of Shaji & Ors. vs. State of Kerala; AIR 2011 SC 1824. In paragraph no.11 of the said judgment, it has been held as under:
"11. While considering the applicability of necessary ingredients of Section 149 IPC, we had an occasion to consider the same in Kuldip Yadav & Ors. vs. State of Bihar, JT 2011 (4) SC 436. After analyzing the conditions therein, it was held in paragraph 26 of the judgment as under:
"26) The above provision makes it clear that before convicting accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, essential ingredients of Section 141 IPC must be established. ............"
The above principles have been reiterated in Bhudeo Mandal & Ors. vs. State of Bihar (1981) 2 SCC 755, Ranbir Yadav vs. State of Bihar (1995) 4 SCC 392, Allauddin Mian & Ors. Sharif Mian & Anr. Vs. State of Bihar, (1989) 3 SCC 5, Rajendra Shantaram Todankar vs. State of Maharashtra & Ors. (2003) 2 SCC 257 and State of Punjab vs. Sanjiv Kumar @ Sanju & Ors. (2007) 9 SCC 791."
27. Applying the above legal position in the present case, what emerges is that the incident occurred in two phases. At the first place, the accused Kailash and his brother Ajay started abusing PW-1 Bhagwat Dayal and his brothers and thereafter the victim party screamed for help and upon hearing the same, other injured persons also reached there. To show more power and strength, the accused Kailash Yadav called his brothers and then other accused persons reached to the place of occurrence. Though, accused Kailash and Abhijeet were carrying firearm weapons with them but they did not use the same and only club injuries were caused by the other accused persons to PW-1 and other injured persons. Till this stage, it is apparent that the only intention of unlawful assembly was to beat the victim party by causing some injuries but unfortunately, deceased Sant Ram also reached to the place of occurrence, who was returning from Jhansi and seeing him, the accused persons, in particular, Kailash and Abhijeet, chased him and it is alleged that both of them have caused firearm injury to the deceased. Postmortem report of the deceased Sant Ram makes it clear that he sustained firearm injury caused by accused Kailash. There is absolutely no evidence to show that the object of unlawful assembly was to commit the murder of anyone but incidentally, Sant Ram reached there, who was done to death by Kailash. No doubt, Section 149 of IPC is wide in its sweep but in fixing the membership of the unlawful assembly and inferring the common object, various circumstances also have to be taken into consideration. Having regard to the omnibus allegation, we think that it is not safe to convict everyone of them for the offence of murder by applying Section 149 of IPC.
28. On the careful examination of the entire prosecution case and surrounding circumstances, we think the common object of unlawful assembly was only to cause grievous hurt. The accused Kailash Yadav acted in his own individual manner and caused one firearm injury which proved fatal. In the case of Vijay Pandurang Thakre and Ors vs. State of Maharashtra; AIR SC 897 the Supreme Court held as under:
"No doubt Section 149 IPC is wide in its sweep but in fixing the membership of the unlawful assembly and in inferring the common object, various circumstances also have to be taken into consideration. Having regard to the omnibus allegation, we think it is not safe to convict every one of them for the offence of murder by applying Section 149 IPC. On a careful examination of the entire prosecution case and the surrounding circumstances, we think the common object of the unlawful assembly was only to cause grievous hurt. But A-1 acted in his own individual manner and caused one injury with the sword which proved fatal."
29. From the facts it is apparent that there was no pre-meditation and the occurrence was a sudden affair, each of the appellants, in our opinion, should be held to be liable for his individual act and not vicariously liable for the acts of others. In the case of Lalji & Ors. vs. State of U.P; (1974) 3 SCC 295, the Apex Court held as under:
"As there was no pre-mediation and the occurrence was a sudden affair, each of the appellants, in our opinion, should be held to be liable for his individual act and not vicariously liable for the acts of others."
30. We conclude that accused Kailash Yadav is liable to be convicted under Section 302 of IPC, whereas the other accused persons are acquitted of the offence under Section 302/149 of IPC. The conviction of all the accused persons under Section 325/149 and 148 is maintained. However, conviction of Kailash Yadav and other accused persons under Section 3 of Gangsters Act is set aside because the basic ingredients of the said Section have not been proved by the prosecution as required under the law.
31. The next question which arises for our consideration is as to what would be appropriate sentence to be imposed upon the other accused persons, namely, Ranjeet Yadav, Prakash @ Om Prakash, Rajendra @ Raju and Ajay @ Buddhu. Considering the fact that the incident occurred about 14 years back and they have already remained in jail for about one year, their sentence is reduced for the period already undergone by them. However, considering the law laid down by the Apex Court in Ankush Shivaji Gaikwad vs. State Of Maharashtra, these accused persons are directed to pay a fine of Rs. 10,000/- each (total Rs. 40,000/-) to the widow of the deceased and if the widow is not surviving, the parents of the deceased. Let this be done by the other accused persons within a period of six months from today.
32. Accused Ranjeet Yadav, Prakash @ Om Prakash, Rajendra @ Raju and Ajay @ Buddhu are already on bail, therefore no fresh order is required in their respect. Likewise accused Kailash Yadav also, no fresh order is required, as he is in jail.
33. The appeal in respect of accused-appellant Kailash Yadav is dismissed.
34. The appeal in respect of accused-appellants Ranjeet Yadav, Prakash @ Om Prakash Yadav, Rajendra @ Raju Yadav, Ajay @ Buddhu is partly allowed.
Order Date :- 26.03.2019
SK/A. Tripathi
(Raj Beer Singh, J.) (Pritinker Diwaker, J.)