Rajasthan High Court - Jaipur
Ganpat And Ors vs State on 8 August, 2011
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T D.B. CRIMINAL APPEAL NO.1175/2002. Ganpat & Ors. Vs. State of Rajasthan Date of Judgment :- August 8, 2011. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ HON'BLE MR.JUSTICE S.S. KOTHARI Shri S.R. Bajwa, Senior Counsel with Shri V.R. Bajwa, Shri S.S. Sunda and Shri Harendra Singh Sinsinwar for the accused-appellants. Shri J.R. Bijarnia, Public Prosecutor for State. Shri R.K. Mathur, Senior Advocate with Shri Aditya Kiran Mathur for the complainant. ****** Reportable BY THE COURT:- (Per Mohammad Rafiq J.)
1) Aforementioned appeal has been filed by the accused-appellants u/S.374 of the Code of Criminal Procedure, 1973 assailing the judgment dated 29/8/2002 passed by learned Additional Sessions Judge, Fast Track, Kishangarh Bas, District Alwar whereby, accused-appellants Ganpat, Naresh and Nathu have been convicted for offences u/Ss.302, 147, 323, 325 & 307/149 IPC and accused-appellants Fakira, Mahipal, Santu & Suresh Kumar have been convicted for offences u/Ss.147, 323, 325, 307/149 & 302/149 IPC.
2) Appellants have been sentenced to undergo:-
- rigorous imprisonment for two years with fine of Rs.500/- each, in default of payment of which, they were required to further undergo sentence of rigorous imprisonment for six months for offence u/S.147 IPC;
- rigorous imprisonment for one year with fine of Rs.1000/- each, in default of payment of which, they were required to further undergo sentence of rigorous imprisonment for three months for offence u/S.323 IPC;
- rigorous imprisonment for three years with fine of Rs.1000/- each, in default of payment of which, they were required to further undergo sentence of rigorous imprisonment for one year for offence u/S.325 IPC;
- rigorous imprisonment for ten years with fine of Rs.1000/- each, in default of payment of which, they were required to further undergo sentence of rigorous imprisonment for three years for offence u/S.307/149 IPC; and
- imprisonment for life with fine of Rs.1000/- each, in default of payment of which, they were required to further undergo sentence of rigorous imprisonment for three years for offence u/S.302 IPC.
- All the sentences were directed to run concurrently. Learned Additional Sessions Judge however did not specifically award any sentence to the accused-appellants for offence u/S.302/149 IPC though accused-appellants Fakira, Mahipal, Santu and Suresh Kumar were convicted for that offence. It is be noted at the outset that accused Lalchand died during the pendency of trial hence, proceedings against him was dropped.
3) Brief facts giving rise to filing of the criminal appeal are that a written report was submitted by informant - PW1-Samiya S/o Ami Chand to S.H.O. Police Station Tijara, Alwar on 16/3/1992, inter-alia alleging therein that there was dispute between families of the informant and accused-Ganpat etc. with regard to the pathway leading to their agricultural field. On that day i.e. on 16/3/1992 at about 8.00 a.m., when Jaldip, Gajraj Singh and complainant-Samiya were going to their agricultural field, accused - Ganpat, Santu, Naresh, Nathu, Mahipal, Suresh Kumar, Fakira and Lalchand all armed with lathis came there. Lalchand with an intention to kill Gajraj Singh inflicted two repeated lathi blows on his head, as a result of which, Gajraj fell down. When Jaldip came to his rescue, accused-Ganpat inflicted lathi blow on his head. Yet another lathi blow was inflicted on his head by accused-Nathu and third blow by accused-Naresh was also inflicted on the head of Jaldip. Even when both, Gajraj and Jaldip fell down, accused kept on beating them. At this stage, Rampyari and Budha came to save them. Accused-Fakira inflicted lathi blow on the head of Rampyari. Accused-Santu also inflicted lathi blow on the person of Budha and accused-Suresh Kumar inflicted a lathi blow on the ribs of Gajraj. Accused-Mahipal inflicted a lathi blow on the left hand of Gajraj. When informant-Samiya came to their rescue, accused Ganpat and Lalchand inflicted lathi blows on his leg. It was stated that Surja (Surajbhan) and Jagmal intervened and saved the members of the complainant-party. They are witness to the incident. Condition of Gajraj and Jaldip deteriorated, they were taken to hospitalized.
4) On receipt of aforesaid written report, a regular first information report was chalked out for offences u/Ss.147, 148, 149, 323 & 307 IPC and investigation was started by the police. However, Jaldip succumbed to his injuries and died on 17/3/1992 and therefore offence u/S.302 IPC was also added. Charge-sheet was eventually filed against eight accused persons for offences u/Ss.147, 148, 323, 324, 325, 307 & 302/149 IPC. After committal of the case to the court of sessions, it was made over to the court of learned Additional Sessions Judge, Fast Track, Kishangarh Bas, Alwar for trial. Learned Additional Sessions Judge framed the charge for offence u/S.302 IPC simplicitor against accused-appellants Ganpat, Nathu and Naresh whereas, charge for offence u/S.302/149 IPC was framed against rest of the accused. Likewise, charge for offence u/S.307 IPC was framed against accused-Lalchand whereas, charge was framed against all other accused for offence u/S.307/149 IPC. In the same fashion, accused-appellant Mahipal was charged for offence u/S.325 IPC simplicitor whereas, charge was framed against all other accused for offence u/S.325/149 IPC. Accused-appellants Fakira, Santu & Suresh Kumar were charged for offence u/S.323 IPC; however, charge for offence u/S.147 IPC was framed against all the accused. During the course of trial, one accused-Lalchand expired therefore proceedings against him were dropped. Thus, there remain only seven accused, who have all been convicted in the manner stated hereinabove. Hence, this appeal.
5) The record reveals that as many as 15 witnesses were examined by the prosecution out of which, 6 claims to be eye-witnesses, 3 were expert-witnesses, 3 were injured-witnesses and 2 were police-witnesses, apart from other witnesses. The prosecution exhibited as many as 41 documents. Accused-appellants exhibited as many as 21 documents in their defence. In their statements recorded u/s.313 Cr.P.C., defence was set up by them that complainant-party forcibly wanted to trespass over their agricultural field and subjected them to beating. They have therefore in exercise of their right of private defence of person and property in turn beaten them.
6) We have heard Shri S.R. Bajwa, learned senior counsel assisted by Shri V.R. Bajwa, Shri S.S. Sunda and Shri Harendra Singh Sinsinwar for the appellants, Shri J.R. Bijarnia, learned Public Prosecutor for the State and Shri R.K. Mathur, Senior Counsel for the complainant and perused the material available on record.
7) Shri S.R. Bajwa, learned senior counsel appearing for the accused-appellants has argued that the learned Additional Sessions Judge has committed a serious error of law in convicting the accused-appellants for offence u/S.302/149 IPC and other offences. Even though in the concluding part of the judgment, learned Additional Sessions Judge has recorded a finding that unlawful assembly that was formed by the accused-appellants was with the common object to give beating to the members of the complainant-party and that members of this assembly knew that their act could cause grievous hurt or resultant death. Even then, the Additional Sessions Judge has held the accused-appellants guilty of committing murder, which he could not do because he himself held that their intention to merely give beating and not to murder any one of them.
8) Shri S.R. Bajwa, learned senior counsel for the accused-appellants has argued that evidence that has been adduced by the prosecution clearly shows that the complainant-party was aggressor and it were they, who wanted to forcibly trespass over the land of the accused-party. Learned counsel in this connection referred to Exb.2, site plan and argued that according to this site plan, agricultural field of the complainant was adjoining the land of the accused and they wanted to forcibly create a pathway through the khatedari land of the accused. Reference was made to the report of the patwari, which is Exb.P.33 wherein it has been stated that Gajraj Singh S/o Ami Chand, who was khatedar of land bearing khasra No.1884, was claiming pathway through the agricultural land bearing Khasra No.1839, which according to the revenue record was entered in the names of accused Badlu, Bal Kishan, Lalchand etc., but in the revenue record i.e. jamabandi and revenue maps, no pathway was provided to Khasra No.1839. Referring to the statement of PW-2 - Surajbhan, learned senior counsel argued that this witness admitted that the agricultural fields of the parties were divided by 2 feet wide kaccha dolly and that complainant wanted to pathway through the agricultural field of the accused, which they did not agree to. Land bearing Khasra No.1839 measuring 8 bigha 15 biswa was recorded in the khatedari of Badlu, Ganpat, Lalchand and Balkishan of the accused-party. In this connection, reference was made to the statement of PW8-Narayan Singh, Patwari concerned, who has proved inspection report Exb.P.33 and has stated that as per record, Khasra No.1839 was entered in the khatedari of Badlu, Ganpat, Bal Kishan, Lalchand sons of Mangal Ahir R/o Mainaki of the accused-party and that according to the Jamabandi and revenue maps, no pathway was provided through this agricultural land to the field of complainant-party. It was therefore argued that in view of this, findings of the learned Additional Sessions Judge in para 31 of the judgment that accused appellants were aggressor and that they were not entitled to exercise right of private defence of person and property, is wholly unsustainable in law. Fact is that the agricultural land through which complainant forcibly wanted to create pathway and for that purpose forcibly entered into that agricultural field, as a result of which, ten persons namely; Lalchand, Badluram, Ramniwas, Naresh, Ganpat, Santu, Smt.Komal, Smt.Basanti, Smt.Bharpai and Smt.Chandrawati from the side of the accused-party received number of injuries. They had to therefore retaliate in exercise of their right of private defence of person and property. Two of the injured from their side namely; Smt.Bharpai and Santu received grievous hurts. Statement of PW13-Dr.Kailash Chand Gupta not only proved number of injuries on the persons of complainant-party but also those of the members of the accused-party and two of the injured from the side of the accused-party, received grievous hurts for which purpose, learned senior counsel referred to Exb.D-19 showing the fracture of upper 1/3 shaft of right radius of injured-Smt.Bharpai and Exb.D-20 showing fracture of nazal bone of injured-Santu. Finding recorded by the learned Additional Sessions Judge in para 39 of the judgment that the injuries sustained by ten members of the accused-party might have been caused to them by the members of the complainant-party in exercise of right of their (complainant's) private defence of person and property, is wholly erroneous and perverse finding because firstly - there was no basis to hold that accused-appellants were aggressor and secondly - this finding does not hold good in view of the fact that it were members of the complainant-party, who wanted to forcibly trespass the land of the accused-party.
9) Shri S.R. Bajwa, learned senior counsel at this juncture referred to Section 100 of the Indian Penal Code, 1860 and argued that case of the appellants falls within the purview of second category of cases of Section 100 IPC, which inter-alia provides that the right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right, if such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Along with this, Section 104 IPC is also available to the accused-appellants, which inter-alia provides that if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does not extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death. According to the learned senior counsel, it can at best said to be a case of exceeding right of private defence of person and property, which comes within the purview of Exception 2 of Section 100 of IPC. Appellants can at the most be said to have exceeded their right of private defence of person and property available to them u/Ss.100 & 104 of IPC and therefore their case would fall within Exception 2 of Section 300 IPC. And thus, this would be a case of culpable homicide not amounting to murder. This is what exactly has been held by the learned trial court also in para 43 of its judgment yet, it has illegally convicted the accused-appellants for offences u/Ss.302/149 and 302 IPC simplicitor.
10) Shri S.R. Bajwa, learned senior counsel has argued that investigation officer Balveer Singh has not been examined as a witness therefore accused-appellants were put to a great disadvantage in not being able to subject him to cross-examination with reference to various facets of the prosecution evidence.
11) Shri S.R. Bajwa, learned senior counsel has argued that the entire prosecution evidence if it is accepted in its entirety, also clearly prove that possession of the land of Khasra No.1839 was with the accused-persons on the day when the incident took place and it were members of the complainant-party, who wanted to forcibly trespass into the land of the accused, which was resisted by them in exercise of their right of private defence of person and property. Law permits them to exercise such right and their assembly at the place of incident therefore cannot be described as unlawful assembly because whatever they did was for a lawful purpose that was permissible under the law. Assemblage of the appellants therefore cannot be said to be unlawful because their act was pursuant to their right to resist criminal trespass of their land, which cannot be said to be unlawful. None of the accused can therefore be convicted with the aid of Section 149 IPC. Learned senior counsel further argued that the case set-up by the prosecution for unlawful assembly of the accused-appellants so soon the complainant-party reached the scene of occurrence, cannot be accepted because if unlawful assembly of the accused-party was formed in advance how was it then that ten persons from their side received number of injuries. It was argued that in so far as injuries sustained by injured-Gajraj Singh on the side of the complainant-party is concerned, it was as a result of exercise of right of private defence of person and property and even otherwise, those injuries have been assigned to accused-Lalchand, who was convicted by the learned Additional Sessions Judge for offence u/S.307 IPC simplicitor and for which injuries, other accused cannot be held responsible. Accused-Lalchand has already died therefore for the two injuries sustained by injured-Gajraj; namely; (i) fracture of left parietal bone and (ii) fracture of ulna bone of right fore-arm, all other accused cannot be convicted with the aid of Section 149 IPC. In regard to the allegation of inflicting lathi blows on the head of deceased-Jaldip, one each by accused-Ganpat, Nathu and Naresh, learned senior counsel argued that there are lot of contradictions in the statements of the prosecution-witnesses, who have ruled out the presence of one another, therefore their statements are highly suspicious. Learned senior counsel in this connection submitted that even though the prosecution has claimed six persons to be the eye-witnesses and three of them were injured eye-witnesses but the Additional Sessions Judge in his judgment has held that PW2-Surajbhan and PW4-Jagmal cannot be accepted as eye-witnesses because in the discussion made in para 35 of its judgment, learned Additional Sessions Judge has observed that they have admitted in cross-examination that they reached the scene of occurrence after accused had given severe beating to deceased-Jaldip and injured-Gajraj Singh. PW9-Rampyari herself in her statement has stated that PW2-Surajbhan and PW4-Jagmal reached there after the injuries were already caused to the deceased. PW3-Budha in his cross-examination has also admitted that when he reached the scene of occurrence, he saw Gajraj and Jaldip lying there in a pool of blood. In fact, PW5-Gajraj Singh, an injured eye-witness in his statement has also stated that PW3-Budha and PW9-Rampyari reached at the scene of occurrence after the injuries were already caused to Jaldip. In a scenario like this, benefit of doubt should go to other accused namely; Santu, Mahipal, Suresh Kumar and Fakira, who have been convicted for offence u/S.302/149 IPC because according to the post-mortem report, three head injuries, which cumulatively caused death of Jaldip, one each was attributed to these three accused namely; Ganpat, Nathu and Naresh, only they were responsible for the death of Jaldip. It cannot be said that except these three, any one else was responsible for the death of deceased-Jaldip. It is argued that PW1-Samay Singh, informant while lodging the first information report made allegation against all the three accused namely; Ganpat, Nathu and Naresh but in the statement before the court has now not named Nathu as one responsible for causing injuries on the head of deceased. Learned senior counsel argued that it was a case of free fight where both the parties have sustained number of injuries and therefore it cannot be said that there was unlawful assembly of the accused with the common object of causing death of any one.
12) Lastly, Shri S.R. Bajwa, learned senior counsel argued that accused-Lalchand was convicted for offence u/S.307 IPC simplicitor and he died during trial, accused-Ganpat, Naresh and Nathu have been convicted for offence u/S.302 IPC simlicitor whereas, other remaining accused were convicted for offence u/S.302/149 IPC whereas, all of them were convicted for offence u/S.307/149 IPC. Accused-Naresh is behind the bars for last more than nine years & one month. Likewise, accused-Nathu has been in jail for last more than eight years & one month. Accused-Ganpat was released on bail on the ground of his old age. He remained in jail only for six months & twelve days. His sentence was suspended by this Court on 16/1/2003 on the ground of his old age of 70 years and by now, he is 78 years old. The alternative argument of the learned senior counsel before is that if this Court is not persuaded to acquit them, their conviction may be altered from offence u/S.302 IPC to that of offence u/S.304 Part-II IPC and case of accused-appellant Ganpat may be considered for his release on probation by enhancing fine, looking to his old age and keeping in view the fact that incident took place almost twenty years ago in the year 1992 at the heat of the moment generated by the act of trespass committed by the complainant-party. It is therefore prayed that the appeal be allowed and the impugned-judgment & order of conviction & sentence be set-aside or the alternative submission may be accepted.
13) Per contra, Shri J.R. Bijarnia, learned Public Prosecutor and Shri R.K. Mathur, Senior Advocate for the complainant have opposed the appeal and argued that evidence that was led before the learned Additional Sessions Judge clearly proved that not only the complainant-party but other farmers also used to go to their field through the agricultural field of the accused-party bearing Khasra No.1839. Learned Public Prosecutor in this connection referred to the report of the 'halka patwari' Exb.P.33 wherein he stated that farmers of the adjoining fields of Khasra Nos.1884/1934, 1884, 1885 & 1888 used to go through the agricultural field of Khasra No.1839 belonging to the accused-party, although such pathway was not provided in the jamabandi and the revenue maps. In this connection, he has referred to the statement of PW8-Narain Singh, Patwari, who has stated that except this, no other pathway was available to the complainant-party to reach their agricultural field. It was therefore argued that right of private defence of person and property was not available to the accused-appellants. All the six eye-witnesses namely; PW1-Samay Singh, PW2-Surajbhan & PW4-Jagmal including three injured eye-witnesses namely; PW3-Budha, PW5-Gajraj Singh & PW9-Smt.Rampyari have consistently maintained that three accused persons namely; Ganpat, Nathu and Naresh were the persons, who one after another inflicted lathi blows on the head of deceased-Jaldip. There is no contradiction on this aspect of the matter. Testimony of these witnesses cannot be disbelieved merely because they happen to be related to the deceased. It is argued that minor contradictions in the statements of witnesses have to be ignored because eye-witnesses cannot be expected to graphically remember and narrate the incident with minor details. It is the substance of the statement of one witness, which must tally with statement of other witnesses and their statements have to be seen in totality, which in this case clearly brings home the guilt of the accused beyond all reasonable doubts. The evidence has come on record that when the complainant-party reached their agricultural fields, accused-party was already armed and waiting for them to come and immediately subjected them to severe beating. It was definitely therefore a case of unlawful assembly with the common object of causing death of members of the complainant-party. Even though the investigation officer could not appear in witness box because he has died, no prejudice thereby has been caused to the accused-appellants because all other motbir-witnesses have been examined to prove the site plan, arrest memos, recoveries etc. PW15-Prem Singh, a police-witness has appeared in the witness-box to identify the signatures of investigation officer Balveer Singh, who died during course of trial.
14) Lastly, Shri J.R. Bijarnia, learned Public Prosecutor and Shri R.K. Mathur, Senior Counsel for the complainant in their alternative argument submitted that even if this is considered to be a case of right of private defence, it is certainly a case where accused-appellants have exceeded such right therefore, at the maximum, case can be considered for their conviction for offence u/S.304 Part-II IPC. It is therefore prayed that the appeal be dismissed.
15) We have given our anxious consideration to the rival submissions of the parties and perused the material available on record.
16) The question, which needs consideration at the outset, is whether the accused-appellants indeed had right to exercise right of private defence of their person and property and if so, whether they have not exceeded such right?
17) Statement of PW8-Narain Singh, the then patwari of the area concerned and the report prepared by him are the most significant and important piece of evidence in this respect. He has proved the enquiry report Exb.P.33 and has stated that according to the revenue record, Khasra No.1839, where occurrence took place, was entered in the name of Badlu, Balkishan, Ganpat and Lalchand sons of Mangal Ahir R/o Mainaki. All these persons are the members of the accused-party. Exb.P.33 is the report prepared by the patwari wherein he has in great details given the description of the land and adjoining lands. It has been stated therein that Gajraj Singh, injured in this case, has claimed a right of pathway to his agricultural field bearing Khasra No.1884, through the land of Khasra No.1839, was recorded in the name of the accused-party and the boundaries of these two khasras are adjoining each other. Though, PW8-Narain Singh in his report has stated that no other pathway was available to the complainant-party to reach their agricultural field in Khasra No.1884 but that cannot become a basis to ignore the other part of his statement based on revenue record, which definitely proves that the land of Khasra No.1839 was recorded in the khatedari of the accused-party. PW2-Surajbhan in his statement has also admitted the fact that Khasra No.1839 measuring 8 bigha 15 biswa was recorded in the khatedari of Badlu, Ganpat, Bal Kishan, Lalchand sons of Mangal Ahir R/o Mainaki, all are members of the accused-party. PW5-Gajraj Singh, injured eye-witness in his statement stated that the incident took place on the land bearing Khasra No.1839. Site plan Exb.P.2 also corroborates these statements that the lands of the accused-party and the complainant-party were adjoining each other and the complainant wanted to have a pathway through the land of the accused-party, which was found to have been freshly dug through the agricultural land of the accused. The accused-party did not want to give them the pathway through their agricultural land. PW1-Samay Singh in his statement also stated that they have purchased their agricultural land from Prabhati and Gheesa two years before the date of incident. He has admitted that accused persons were having their huts and boring (tube-well) also in the agricultural fields through which, the complainant-party wanted a pathway. PW1-Samay Singh admitted that accused persons have in clandestine manner got the land bearing Khasra No.1839 entered in their khatedari, which was being opposed by the villagers. PW2-Surajbhan had stated that accused-appellants had boring (tube-well) and also the huts in the agricultural field. Evidence thus clearly shows that it was the complainant-party, which wanted the pathway through the agricultural field of the accused-party and that in the site plan it has been shown that a freshly dug pathway was prepared. Accused-appellants were resisting this act of the complainant, which led to the incident.
18) Evidently, members of the complainant-party trespassed the agricultural field of the accused-party and that though one unfortunate death has taken place on the side of the complainant-party but as many as ten persons from the side of the accused-party have also received injuries, out of which, two persons namely; Bharpai and Santu received grievous injuries respectively of fracture of upper 1/3 shaft of right radius & fracture of nazal bone. In the light of this evidence, we find ourselves unable to endorse that finding of the learned Additional Sessions Judge, where he held that accused-appellants were aggressors. That being so, further view expressed by the learned Additional Sessions Judge that the complainant-party caused number of injuries to the members of the accused-party in exercise of their right of private defence of person and property is also difficult to approve because when members of the complainant-party have forcibly trespassed into the agricultural field of the accused-party, it were they (complainant-party), who were aggressors and they cannot be said to have caused those injuries to the members of the accused-party in exercise of their right of private defence of person and property.
19) In view of above, it must therefore be held that accused-appellants had the right of private defence of both their person and property but that right certainly can be justified in law only to the permissible extent. It is trite that right of private defence is necessary if such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Exception 2 of Section 100 IPC provides that the right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right, if such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Clearly, in the face of the evidence that has come on record, it cannot be held that accused-appellants could have entertained any such apprehension, especially nature of injuries, which they have sustained does not substantiate such a belief. Although, it is another matter that number of injured from their side is as highest as ten. This case however would certainly attract second category of cases of Section 100 IPC, where it may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault, which has actually also happened because two persons from accused side have received grievous hurts.
20) According to Section 104 of IPC, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated therein, that right does not extend to the voluntary causing of death, but does not extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death. There are four categories enumerated in Section 300 of IPC. While first three of them may not be attracted to the present case but fourth category may be attracted in case of house trespass and as may reasonably cause apprehension that grievous hurt will otherwise be the consequence of such assault if such a right of private defence is not exercised.
21) On the evidence that has been adduced from both the sides, it is evident that the accused-appellants have applied much more force in retaliation than was necessary, reasonable or justified, which has resulted into death of one of the members of the complainant-party namely; deceased-Jaldip but which of the member of the accused-party exceeded right of private defence and if one or the other member of the accused-party exceeded such right of private defence, can all others be held responsible for exercising of such a right in excess is the moot question to be answered? Related thereto is also the question whether all the members of the accused-party can be said to have formed an unlawful assembly when they did not take initiative of committing offence and there is no tangible evidence to show that they collectively acted in prosecution of any common object or knew that ultimate result of this was likely to be the death of deceased-Jaldip or the fracture of parietal bone of injured-Ganpat? In the facts of the case, the question, which also arises for consideration is whether, it can be said that only three of the accused namely; Ganpat, Naresh and Nathu, who inflicted one lathi blow each on the head of deceased-Jaldip, and Lalchand, who inflicted two repeated lathi blows on the head of injured-Gajraj Singh, shared a common intention and not the rest of the accused?
22) The allegation that all the accused appellants were armed with lathis shows that none of them was armed with any deadly weapon. Preparation was not such as would indicate the common object of causing death of any member of the complainant-party. Besides, in the scuffle that has taken place, ten members from the side of the accused-party have also received injuries. In order to therefore appreciate that aspect of law, a few precedents of the Supreme Court may be noticed.
23) In Maranadu and another Vs. State by Inspector of Police, Tamil Nadu : (2008) 16 SCC 529, Supreme Court held as under:-
For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti.
24) In Nagarjit Ahir Vs. State of Bihar : (2005) 10 SCC 369, Supreme Court held that it may be safe to convict only those persons against whom overt act is alleged with the aid of Section 149 IPC lest some innocent spectators may get involved. In Pandurang Chandrakant Mhatre and others Vs. State of Maharashtra : (2009) 10 SCC 773, Supreme Court held that where a large number of persons are alleged to have participated in the crime and are sought to be convicted under section 149 IPC, the court needs to consider all the facts situation and convict only those accused whose presence was clearly established and overt acts were proved.
25) In Vishnu and others Vs. State of Rajasthan : (2009) 10 SCC 773, Supreme Court sounded a note of caution that court has to ascertain whether every member of an unlawful assembly knew the offence likely to be committed in prosecution of a common object, only then a person, who at the time of committing that offence was such member, would be guilty of the offence committed. The court should guard against danger of convicting innocent persons and for that purpose scrutinize record carefully and if doubt arises, should give benefit thereof to the accused. The common object may be commission of one offence while there may be likelihood of commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly and whether a member of such unlawful assembly was aware as regards likelihood of commission of yet another offence or not would depend upon the facts and circumstances of each case. Background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime would be relevant factors for drawing an inference in this behalf. (emphasis ours)
26) In Bachan Singh Vs. State of Bihar : (2008) 12 SCC 23, Supreme Court re-visited previous case law on the subject in Masalti & Ors. Vs. The State of Uttar Pradesh : AIR 1965 SC 202, Lalji and others Vs. State of U.P. : (1989) 1 SCC 437 & Shamushul Kanwar vs State of U.P : (1995) 4 SCC 430 and held that where prosecution fails to prove the existence of common object of all the members of unlawful assembly, it is unsafe to convict all on the basis of overt acts of few. It was further held by the Supreme Court that it was the case where free fight took place and thirteen accused were charged however only those who caused fatal injuries, were liable to be convicted. The Supreme Court acquitted other accused-appellants, who were charged with the aid of Section 149 IPC giving them benefit of doubt. It may be noted at this very stage that one of the arguments in Bachan Singh supra was that the investigation officer had migrated to Pakistan and died there and thereby serious prejudice was caused to the accused because he was not produced as a witness and could not be cross-examined. Supreme Court held that in the circumstances, it was not possible for the prosecution to produce him as a witness. Since the witnesses were confronted with their previous statements recorded under Section 161 Cr.P.C. and the trial court looked into the case diary to additionally test the veracity of the witnesses, no prejudice can be said to have been caused to the accused in the peculiar facts of the case. Same was the situation in the present case where investigation officer Balveer Singh could not be produced by the prosecution because he died during trial. Nevertheless, signature of the investigation officer has been proved by another police-witness PW15-Prem Singh, who appeared in the witness-box and identified the signatures of investigation officer Balveer Singh. Other prosecution witnesses have been confronted with their statements recorded under Section 161 Cr.P.C. No prejudice can thus be said to have been caused to the accused.
27) In Deomuni Sharma Vs. State of Jharkhand : (2009) 16 SCC 80, the dispute related to possession and ownership of a plot between complainants and accused persons. Five of the accused appellants were found responsible for causing injuries resulting into death by use of fire arm. However, accused persons claimed right of private defence on the ground that plot was owned by them and was in their possession and that complainants had tried to disturb the situation. Evidence revealed that on seeing the mob, accused persons entered their house and returned with firearms. They initially fired in air for scattering them. It was held that till that moment at least, accused persons could not be said to be member of unlawful assembly nor can assembly itself be termed as unlawful assembly with a definite common object. The accused persons were found to have fired pursuant to their right of private defence though exceeding the same, this act of their cannot be attributable to an unlawful assembly. Conviction of accused under Section 307/149 IPC was set-aside however, accused were convicted for offences u/Ss.147 & 148 IPC.
28) Out of the eight accused in the present case, who went to trial, one accused-Lalchand, who was held guilty of committing offences u/Ss.307 & 325 IPC, has already died during trial of the case. It is three accused only namely; Ganpat, Nathu and Naresh, who inflicted one lathi blow each on the person of deceased-Jaldip, one after another in quick succession and death of Jaldip was result of cumulative effect of those three injuries. Rest of the accused namely; Fakira, Mahipal, Santu and Suresh Kumar are those, who were assigned injuries on the person of other members of the complainant-party, which almost all are simple in nature. Perusal of the injury report reveals that Samay Singh received four bruises, Budha received one bruise & one abrasion and Rampyari sustained two injuries and all were simple in nature. It is only Gajraj Singh, a member of the complainant-party, who received seven injuries of which one was fracture of parietal bone for which Lalchand was convicted for offence u/S.307 IPC simplicitor. All his other injuries are simple in nature. However, for those injuries of Gajraj Singh, all these accused were additionally convicted for offence u/S.325 IPC. If we analyse the evidence on that aspect, we find that PW2 Surajbhan and PW4 Jagmal have not been accepted as eye-witnesses even by the learned Additional Sessions Judge. PW1-Samay Singh in his cross-examination has named only Lalchand responsible for not only the first injury on the head of Gajraj Singh but also the second injury on the head of Gajraj Singh, both by use of lathi. He has not made any statement in this regard against any one in so far as Gajraj Singh is concerned. PW3-Budha has also similarly held Lalchand responsible for the injuries of Gajraj Singh. Then comes PW5-Gajraj Singh himself, who too has attributed two repeated lathi blows on his head to Lalchand and has thereafter made a general allegation against accused-Santu, Suresh Kumar and Mahipal not assigning any injuries to any one of them in specific. PW9-Rampyari, only other remaining eye-witness has also attributed the injury on the head of her husband-Gajraj Singh to accused-Lalchand by stating that he inflicted two lathi blows on the head of Gajraj Singh. Thereafter, she has not assigned any other injury on the person of Gajraj Singh to any other accused. In those facts, remaining four accused namely; Fakira, Mahipal, Santu and Suresh Kumar, in our considered view, could not have been convicted for offences u/Ss.323 & 325 IPC or for that matter, u/S.307/149 IPC because in our view, they cannot be said to have in any manner exceeded their right to private defence. It is only three accused namely; Ganpat, Nathu and Naresh against whom charge for offence u/S.302 IPC simplicitor was framed, who have inflicted one lathi blow each on the head of deceased-Jaldip, which has been corroborated by the post-mortem report as also the injury report. Now, this act of theirs was certainly in excess of the permissible limit upto which they could exercise the right of private defence of person and property. But the significant question that needs consideration is whether they can be said to have had any common intention in causing three lathi blows in quick succession on the head of Jaldip, which cumulatively proved responsible for his death.
29) In Prem Singh and others Vs. State of Haryana : (2009) 14 SCC 494, five accused persons were convicted by the Additional Sessions Judge for murder of deceased under Section 302/149 IPC however, High Court acquitted three of them by extending benefit of doubt. Question however arose whether they could still be convicted with the aid of Section 34 IPC viz. for offence u/S.300/34 IPC. Supreme Court held that it cannot be said that only because three of the accused were given benefit of doubt and were acquitted, no case of any intention was made out. Appellants came together armed and had threatened the deceased and went back together. It was held that on the basis of the evidence available on record, High Court was justified in affirming that opinion.
30) In the present case, a question may arise as to when and at what stage, these three accused shared common intention and acted in furtherance of common intention because how would they have meeting of minds so as to arrive at a common intention. Reference for this question may be made to the judgment of Supreme Court in Abdul Sayeed Vs. State of Madhya Pradesh : (2010) 10 SCC 259. It was held therein that the phrase common intention implies a prearranged plan and acting in concert pursuant to the plan. Any common intention must be there prior to the commission of the offence in point of time but the common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances attending thereto. Common intention under Section 34 IPC is to be understood in a different sense from the same intention. In para 51 of the report, the Supreme Court in categorical terms held that undoubtedly, the ingredients of Section 34 i.e. the accused had acted in furtherance of their common intention is required to be proved specifically or by inference, in the facts and circumstances of the case. Law on this aspect is thus clear that Section 34 IPC can be attracted even where some of the accused have been acquitted provided that against rest of the accused it can be proved either by direct evidence or by inference that they all acted in furtherance of the common intention. Any common intention must be there prior to the commission of the offence in point of time but the common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances attending thereto.
31) In Hariom Vs. State of U.P. : 1993 Supp. (2) SCC 1 [1993(1) Crimes 294 (SC)] it was held by the Supreme Court that in order to bring a case under Section 34, it is not necessary that there must be a prior conspiracy or pre-meditation and common intention can also be formed suddenly.
32) In Virendra Singh Vs. State of Madhya Pradesh : (2010) 8 SCC 407, Supreme Court held that a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such crime is committed. In most of the cases, it is difficult to procure direct evidence of such intention and can be inferred from acts or conduct of accused and other relevant circumstances for which documents on record acquire a great significance and they have to be very carefully scrutinised by the court.
33) In Sangappa Sanganabasappa M. and others Vs. State of Karnataka and others : (2010) 11 SCC 782, Supreme Court held that on perusal of entire circumstances only accused appellants before it were found to be sharing common intention and not remaining accused persons who were acquitted. The findings of the Additional Sessions Judge and the High Court that the accused did not fall u/S.149 IPC were held correct and the High Court was held justified in upholding the finding of the Additional Sessions Judge and conviction of the accused for offence u/S.302 with the aid of Section 34 IPC was upheld.
34) In the present case, other four accused persons namely; Santu, Mahipal, Suresh Kumar and Fakira, who were convicted by the trial court, were not found to have actively participated in the incident but so far as three accused namely; Ganpat, Nathu and Naresh, who are alive, and fourth accused Lalchand, who has died, are concerned, they certainly inflicted lathi blows on the head of two persons of the complainant-party. While three accused Ganpat, Nathu and Naresh inflicted three lathi blows, one each, which cumulatively resulted into death of Jaldip, Lalchand also inflicted two repeated lathi blows on the head of Gajraj Singh resulting into fracture of parietal bone. The common intention thus was shared by these four accused only.
35) Since we have held that injuries that were caused to the members of the complainant-party by the accused-appellants were though caused in exercise of right of private defence of person and property and in doing so, they exceeded such right of defence, yet this case would fall within Exception 2 of Section 300 IPC and therefore they must be held guilty of culpable homicide amounting to murder with the knowledge that their act was likely to cause death but without any intention and it must be held that they did so with the knowledge that their act is likely to cause death but without any intention of death or to cause such bodily i3njury as would likely to cause death.
36) Accused-appellants Ganpat, Nathu, and Naresh are thus, held guilty for offences u/Ss.304 Part-II r/w. 34 IPC and Section 307 r/w. 34 IPC, whereas accused-appellants Fakira, Mahipal, Santu and Suresh Kumar are acquitted of all the charges.
37) Coming now on the question of sentence, it should be noted that while accused-appellant Naresh has already remained behind the bars for sufficiently long period and has served the sentence of more than nine years & one month, accused-appellant Nathu has also served the sentence of eight years & one month. Accused-appellants Naresh and Nathu thus deserve to be sentenced to the period already undergone by them for both the aforesaid offences. We order accordingly.
38) So far as however accused-appellant Ganpat is concerned, he has remained behind the bars only for six months & twelve days. He happens to have been born in the year 1932 and was aged 60 years at the time of incident, which took place in March 1992. This Court was though not inclined to suspend the sentence of accused-appellants Naresh and Nathu, yet suspended sentence of accused-appellant Ganpat keeping in view his age. He was released on bail upon suspension of his sentence vide order dated 16/1/2003 on consideration of fact that he was aged about 70 years and he is by now more than 78 years old.
39) We are conscious of the fact that in the normal course, accused-Ganpat having been convicted for committing offence u/Ss.304 Part-II r/w. 34 IPC and Section 307 r/w. 34 IPC should be awarded commensurate sentence. We are however persuaded to grant him benefit of probation on consideration of the aforesaid circumstances and in doing so we are guided by the judgment of Supreme Court in the State of Karnataka Vs. Muddappa : (1999) 5 SCC 732 wherein Supreme Court held that there is no statutory bar for application of either Section 360 of the Code of Criminal Procedure, 1973 or Section 4 of the Probation of Offenders Act, 1958 to an offence u/S.304 Part II IPC where the maximum punishment is neither death nor imprisonment for life. Observing thus, Supreme Court did not interfere with the order of the High Court extending benefit of probation to the accused. We still however feel that as compared to other two accused i.e. Naresh and Nathu, who have respectively already undergone sizable period of sentence of nine years & one month and eight years & one month, the period of sentence only for six months & twelve days served by accused-appellant Ganpat is very short. We therefore deem it just and proper to additionally impose fine of Rs.2,00,000/- (Rupees Two Lacs) on accused-appellant-Ganpat.
40) In the result, this criminal appeal under Section 374 Cr.P.C. is allowed in the following terms:-
(a)the impugned judgment & order of conviction & sentence dated 29/8/2002 passed by learned Additional Sessions Judge, Fast Track, Kishangarh Bas, District Alwar is set-aside to the extent of conviction of accused-appellants Nathu and Naresh for offences u/Ss.302 & 307/149 IPC, which conviction is converted into conviction for offences u/Ss.304 Part-II r/w. 34 IPC and Section 307 r/w. 34 IPC and they are sentenced to the period already undergone by them for both the aforesaid offences;
(b)the impugned judgment & order of conviction & sentence dated 29/8/2002 passed by learned Additional Sessions Judge, Fast Track, Kishangarh Bas, District Alwar is set-aside to the extent of conviction of accused-appellant Ganpat for offences u/Ss.302 & 307/149 IPC, which conviction is converted into conviction for offences u/Ss.304 Part-II r/w. 34 IPC and Section 307 r/w. 34 IPC and he is sentenced to the period already undergone by him for both the aforesaid offences with additional fine of Rs.2,00,000/- (Rupees Two Lacs), which he shall deposit with the trial court within a period of one month from today, failing which, he shall have to further undergo rigorous imprisonment for five years against which, period of sentence of six months & twelve days already served by him would be liable to be set-off. Upon however his complying the aforesaid condition, he is extended the benefit of probation under the provisions of Section 4 of the Probation of Offenders Act, 1958 and he shall be released on probation provided, he shall furnish an Undertaking/Bond to the Probationary Officer so appointed by the Additional Sessions Judge provided under Section 4(4) of the Act of 1958 to maintain peace and be of good behavior and conduct during the period of one year w.e.f. the date of his release with the stipulation not to indulge again in similar offence in future and would regularly appear before the probationary officer as and when he is called upon to do so by the probationary officer or with regular intervals within one year, so directed by the probationary officer.
(c)Learned Additional Sessions Judge, Fast Track, Kishangarh Bas, District Alwar shall disburse the amount of Rs.2,00,000/- (Rupees Two Lacs) so deposited by accused-Ganpat to the widow of deceased-Jaldip.
(d)So far as accused-appellants Santu, Mahipal, Suresh Kumar and Fakira are concerned, they are acquitted of all the charges for offences u/Ss.147, 323, 325, 307/149 & 302/149 IPC.
(S.S. KOTHARI), J. (MOHAMMAD RAFIQ), J. ani