Bombay High Court
Harising And Ors. vs State Of Maharashtra on 20 January, 2000
Equivalent citations: 2001CRILJ852
Author: S.D. Gundewar
Bench: S.D. Gundewar
JUDGMENT S.D. Gundewar, J.
1. This appeal under Section 374 of the Criminal Procedure Code is directed against the judgment and order dated 21-5-1994 passed by the learned 2nd Additional Sessions Judge, Khamgaon in Sessions Case No. 40/98.
The appellants, namely, Harising s/o Mansaram Chavan, Murlidar s/o Pandurang Mankar, Fulsingh s/o Narsingh Chavan, Virsingh s/o Mansaram Chavan and Ananta s/o Pandurang Mankar (original accused Nos. 1 to 4 & 8) along with 16 others (since one i.e. Sarangdhar s/o Pandurang Mankar died during the pendency of trial) were tried for the offences punishable under Sections 147, 148, 302 read with Section 149, 302 read with Section 34, 325 read with Section 149, 325 read with Section 34 and 323 read with Section 149 of the Indian Penal Code. The learned 2nd Additional Sessions Judge convicted and sentenced the appellants (original accused Nos. 1 to 4 & 8) in the manner stated hereinafter :-
(i) under Section 302 read with Section 149 of I.P.C. to imprisonment for life and to pay a fine of Rs. 500/- each, in default to undergo R.I. for six months.
(ii) under Section 147 of I.P.C. though found guilty no separate sentences awarded.
(iii) under Section 148 of I.P.C. to R.I. for one month and to pay a fine of Rs. 100/each, in default to undergo R.I. for seven days.
(iv) The trial Judge also convicted Fulsingh and Virsingh (original accused Nos. 3 & 4) Under Section 323 of I.P.C. simplicitor and sentenced each of them to R.I. for eight days.
(v) The trial Judge further convicted Virsingh (original accused No. 4) Under Section 324 of I.P.C. simplicitor and sentenced him to suffer R.I. for 15 days and to pay a fine of Rs. 100/-, in default to undergo R.I. for two days.
Substantive sentences imposed upon the appellants/accused were ordered to run concurrently.
2. Being aggrieved by the aforesaid judgment and order passed by the learned 2nd Additional Sessions Judge, Khamgaon, the appellants (original accused Nos. 1 to 4 & 8) only have preferred this appeal.
3. The prosecution case as unfolded during the trial is as follows :-
The incident which has given rise to the present criminal proceedings took place on 10-11-1987 in village Khadatgaon, Tq. Nandura, District Buldana. It appears that this village as others is cursed with keen rivalry and enmity between two factions. One group was led by Sarangdhar Mankar/original accused No. 4 (since deceased) and another by Dashrath (PW. 9), who at the relevant time was the Sarpanch of village Khadatgaon and is the younger brother of the deceased Narayan. All the accused persons including the present appellants were members of the rival faction. In the Gram Panchayat election of Khadatgaon held sometime prior to the incident in question Dashrath (PW. 9) was elected as Sarpanch of the village defeating Sarangdhar Mankar, the leader of the rival group.
In the night of 9-11-1987 Virsingh (original accused No. 5 renumbered as accused No. 4 after the death of Sarangdhar) was using loudspeaker near his house with high tone and hence, Dashrath (PW. 9) went there and told Virsingh not to use loudspeaker without permission. He also told Virsingh that as there was Kirtan in the village, he should not use loudspeaker. It seems that due to which some altercations were exchanged between Dashrath and the persons listening songs on the said loudspeaker including Virsingh and ultimately it appears that the use of loudspeaker was stopped. Sarangdhar Mankar, who learnt about the same did not like it and hence, on 10-111987 at about 2.30 p.m. he along with his companions, namely, Govinda, Ramdas, Arun and Murlidhar s/o Namdeo had been to the field of Dashrath (PW. 9), where Dashrath alone was present. All of them encircled Dashrath. Thereafter Sarangdhar caught hold the collar of the shirt of Dashrath and by felling him down, sat on his chest and gave fist blows on the left side of his chest. The others who had gone there along with Sarangdhar then rescued Dashrath from the clutches of Sarangdhar. Thereafter Sarangdhar and his companions proceeded towards the village. Dashrath followed them. On way, Dashrath met one Trimbak and told him about the incident that took place in his field. Dashrath and Trimbak also then started proceeding towards the village. On their way, Virsingh (original accused No. 4) also met them. All of them then returned to the village. When they came near the Gram Panchayat office of their village, they saw many persons gathered there. Supda, Mahadev, Namdeo, Govinda, Jagannath and Shriram were amongst them. Dashrath who was then carrying an empty pot straightway went to his house. He kept the pot in the house and after drinking water, he again went towards the Gram Panchayat Office. At that time, Virsingh (appellant No. 4) caught hold of his waist and pulled him. Harisingh (appellant No. 1), Murlidhar s/o Pandurang (appellant No. 2), Fulsingh (appellant No. 3) and Ananta (appellant No. 5) and one Govinda were then present there. The people gathered there intervened and separated Virsingh and Dashrath. Thereafter all of them went to their respective houses.
4. Thereafter while Dashrath (PW. 9) was being present in his house the deceased Narayan, his elder brother reached there. Dashrath told Narayan that Sarangdhar unnecessarily assaulted him. Thereupon the deceased Narayan asked Dashrath as to where Sarangdhar was and as to why he assaulted him. By that time, Virsingh (appellant No. 4) reached there on bicycle. He was followed by Harisingh, Murlidhar, Fulsingh, Ananta (appellants Nos. 1 to 3 & 5) and Govinda, Murlidhar s/o Namdeo, Sarangdhar and Arun who were armed with sticks and Shingadas (wooden stumps). Soon thereafter, Virsingh, Harisingh and Fulsingh assaulted Narayan with wooden stumps on his head and Ananta, Sarangdhar and Murlidhar s/o Pandurang assaulted Narayan with sticks on him back due to which Narayan fell down on the ground. Thereafter Virsingh, Murlidhar s/o Narayan and Govinda assaulted Dashrath (PW. 9) on his head due to which Dashrath sustained injuries and fell down on the ground and became unconscious. He regained his senses after about one and half hours. He then went to his shop, which is situated just opposite to his residential house and scribed a report (Exh. 132) on a piece of paper (chit) and sent it to the police Pimpalgaon Raja with one of the villagers. In the meantime, Police Patil Sopan (PW. 5) who learnt about the incident in question reached the spot and then reported the matter to the police vide his report (Exh. 116). Upon receipt of the aforesaid reports, the police arrived at the scene of offence along with Medical Officer, who examined the injured persons. The statements of some of the witnesses then came to be recorded. The spot panchnama (Exh. 110) and inquest panchnama (Exh. 109) also came to be drawn.
5. On the basis of the reports (Exhs. 116 & 131), an offence came to be registered as Crime No. 44/87 under Sections 147, 148, 302 read with Section 149 and 325 read with Section 149 of Indian Penal Code. P.S.I. Gedam (PW. 13) made the investigation in the matter.
6. During the investigation, the dead body of Narayan was sent for post-mortem examination. Dr. Eknath Choudhary (PW. 7) conducted post-mortem examination of the dead body of Narayan on 11-11-1987 and sent his post-mortem examination report (Exh, 126) to the police. The injured persons including Dashrath (PW. 9) were also sent for medical examination. Dr. Dashrath Patil (PW. 6) examined the injured persons and issued medico-legal certificates (Exhs. 122, 123 & 124). Accused persons came to be arrested and sticks and wooden stumps came to be recovered from them. The blood stained clothes of the deceased also came to be seized and sent to Chemical Analyser for his report. After completion of investigation, the charge-sheet came to be presented in the Court of J.M.F.C, Khamgaon. On commitmerit, the learned trial Judge framed charge (Exh. 64) on 6-12-1989 which came to be altered on 27-7-1993. An altered charge is at Exh. 152. The charge was explained to the accused persons to which they pleaded not guilty and claimed to be tried. Their defence was one of total denial and false implication on account of enmity. It was the defence of the accused persons that Sarangdhar and the members of Mankar community were intending to bring no confidence motion against Dashrath (PW. 9), who was then the Sarpanch of village and hence in order to take revenge, Dashrath (PW. 9), his deceased brother Narayan and the members of his party had been to the Mala of Sarangdhar to assault him. At that time, the excavated material of the well, which was dug in the field of Sarangdhar was lying there. On seeing Dashrath and his partymen, Sarangdhar managed to escape and in the process of chasing Sarangdhar, Dashrath (PW. 9), his brother Narayan and others fell on the said excavated material and sustained injuries. According to the accused persons, in order to shield the said incident, Dashrath and his partymen cooked up this story and falsely implicated them in this case. However, they have not adduced any evidence in support of their aforesaid defence.
7. The learned trial Judge after hearing both the sides and assessing the entire oral as well as documentary evidence on record, held that appellants guilty of the aforesaid offences. Hence, this appeal by them.
8. The learned trial Judge also held that the charge under Sections 147, 148 & 324 of Indian Penal Code against Govinda (original accused No. 7) and Murlidhar s/o Namdeo (original accused No. 6) has been proved against them but they have not preferred any appeal against their aforesaid conviction. The learned trial Judge, however, acquitted all the other accused persons of the offences with which they were charged.
9. In support of its case, the prosecution examined in all 13 witnesses, namely, PW. 1 Namdeo s/o Vithal, PW. 2 Shriram s/o Shankar, PW. 3 Rajaram s/o Masu, PW. 4 Gonvinda s/o Janardhan, PW. 5 Sopan s/o Deepchand, PW. 6 Dr. Dinkar Patil, PW. 7 Dr. Eknath Choudhary, PW. 8 Gopal Kulkarni, PW. 9 Dashrath s/o Sampat, PW. 10 Jagannath Bawaskar, PW. 11 Ravindraprasad Shukla, PW. 12 Janardhan Bawaskar and PW. 13 PSI Gedam.
10. Shri M.R. Daga, the learned counsel for the appellants/accused, urged before us that there was no common object to cause the murder of the deceased Narayan. There is no evidence to show that all the appellants were aware of the common object and they concurred in it. So also there is no evidence to show that any such common object was developed on the spur of the moment. The evidence on record is also not clear as to who gave the fatal blow. So looking to the totality of circumstances, it was not proper on the part of the learned trial Judge to have convicted the appellants/accused under Section 302 read with Section 149 of Indian Penal Code. Accordingly to Shri Daga, at the most the alleged offence would fall under Section 326 read with Section 149 of I.P. Code and not under Section 302 read with Section 149 of I.P. Code. For this, he placed reliance on the decisions in Masalti v. State of Uttar Pradesh ; S.P. Sinha v. State of Maharashtra reported in 1993 SCC (Cri) 684 : (1992 Cri LJ 2754) Thokore Dolji Vanvirji v. State of Gujarat reported in 1993 SCC (Cri) 704 : (1992 Cri LJ 3953) and Haramant Laxmappa Kukkadi v. State of Karnataka reported in 1994 SCC (Cri) 326 : (1994 Cri LJ 1422).
11. As against this, Shri A.G. Mujumdar, the learned Additional Public Prosecutor, vehemently urged before us that looking to the fact that the appellants/accused who formed unlawful assembly and assaulted the deceased Narayan with sticks and wooden stumps on his head, i.e. vital part of his body and considering the severity of blows given by them which caused external as well as internal injuries to the deceased, it can safely be inferred that their intention was to cause the death of Narayan and assault Dashrath (PW. 9). According to him, even after the deceased Narayan fell down on the ground, the appellants/accused and others assaulted him which also indicates their intention to cause his death. It is further submitted by him that once the common object is proved, then who gave which blow is not material. As such, according to him, the learned trial Judge has rightly convicted the appellants/accused of the offences with which they have been charged and, therefore, no interference by this Court is called for. In this connection, he placed reliance on the decision in Lalji v. State of Uttar Pradesh .
12. So, the question to be examined by us in the instant case is whether the appellants/accused were members of the unlawful assembly at the relevant time and whether there was enough corroboration for their individual participation in the commission of offence. We have, therefore, carefully perused the judgment and scrutinised the evidence in detail.
13. It has come in the evidence of PW. 9 Dashrath, the brother of deceased Narayan, that in the night of 9-11-1987 Virsingh (appellant No. 4) was using loudspeaker and hence, on hearing the noise of the same he went there and asked him not to use loudspeaker without permission. He also told Virsingh not to use loudspeaker as Kirtan of one Sadhubuwa was arranged in the village in that night. Virsingh, therefore, stopped using loudspeaker after listening 2-3 songs. It seems that Sarangdhar, who learnt about the same, did not like it. It has further come in his evidence that on 10-11-1987 at about 2.30 p.m. while he was alone present in his field Sarangdhar came there along with his companions, namely, Govinda, Ramdas, Arun and Murlidhar and caught hold of the collar of his shirt and by felling him down sat on his chest and gave fist blows on the left side of his chest. He was then rescued by the companions of Sarangdhar and thereafter all of them returned to village. On way, he saw many persons gathered in front of the Gram Panchayat office of their village due to shouting of Virsingh and Sarangdhar. However, he went to his house and after drinking water again came near the Gram Panchayat office. At that time, other appellants, namely, Harisingh, Murlidhar s/o Pandurang, Fulsingh and Ananta were present there. The people who were then present there separated him and Fulsingh and thereafter he went to his house. After he reached his house, the deceased Narayan, his elder brother came there, to whom he informed that Sarangdhar assaulted him for no reason. Thereupon Narayan enquired as to where Sarangdhar was and why he assaulted him. By that time, Virsingh reached there on a bicycle. He was followed by Harisingh, Murlidhar s/o Pandurang, Fulsingh, Ananta, Govinda, Murlidhar s/o Namdeo, Sarangdhar and Arun, who were armed with sticks. Soon thereafter all of them started assaulting the deceased Narayan. Virsingh, Harisingh and Fulsingh assaulted Narayan with sticks on his head and Ananta, Sarangdhar and Murlidhar s/o Pandurang gave stick blows on the back of Narayan due to which Narayan sustained injuries and fell down. Thereafter Virsingh, Murlidhar s/o Namdeo and Govinda assaulted him with sticks on his hand due to which he also sustained injuries and fell down on the ground and became unconscious. It is also stated by him that he regained his senses after about one or one and half hours and thereafter, he went to his shop, which is situated just opposite to his residential house and scribed a report on a piece of paper (chit) and sent it to the Police Station Pimpalgaon Raja with one of the villagers. Upon receipt of the same, police arrived at the scene of offence and made enquiry.
14. This evidence of Dashrath (PW. 9) finds corroboration on some material particulars from the evidence of other eyewitnesses, namely, PW. 1 Namdeo Vithal, PW. 2 Shriram Shankar, PW. 3 Rajaram Masu, PW. 4 Govinda Janardhan, PW. 10 Jagannath Narayan and PW. 12 Janardhan Mahadeo. They have stated that on the call given by Virsingh to beat Narayan and Dashrath, all the appellants including Virsingh and others assaulted Narayan, Dashrath and others with sticks and wooden stumps due to which Narayan and Dashrath sustained injuries and fell down on the ground. Narayan died on the spot while Dashrath became unconscious. Amongst these eye-witnesses, PW. 4 Govinda Janardhan and PW. 10 Jagannath Narayan are the injured persons. PW. 4 Govinda Janardhan deposed that Virsingh assaulted him with a stick on his back near shoulder while PW. 10 Jagannath Narayan stated that Sarangdhar, Fulsingh, Harisingh and Virsingh assaulted him with sticks and wooden stumps. It is also stated by him that Virsingh and Fulsingh gave stick blows on his head.
15. The aforesaid evidence of all the eyewitnesses, including Dashrath (PW. 9) in our view clearly establishes the fact that all the appellants as also the original accused No. 6 Murlidhar Namdeo and No. 7 Govinda Mahadeo were the members of unlawful assembly, the common object of which was to cause murder of Narayan. Their evidence further goes to show the individual participation of appellants and the other above two accused in the commission of offence in question. The fact of gathering of appellants and others near the house of Dashrath (PW. 9) armed with sticks and wooden stumps and then immediately on a call given by Virsingh assaulting Narayan, Dashrath and others is sufficient to hold that they assembled there with the common object to cause the death of Narayan and assault Dashrath (PW. 9). However, in so far as the original accused No. 6 Murlidhar Namdeo and original accused No. 7 Govinda Mahadeo are concerned, they being already acquitted under Section 302 read with Section 149 of the Indian Penal Code, in the absence of appeal by the State against their acquittal for the said offence, we are helpless to do anything in relation to their conviction in the instant appeal.
16. Shri Daga, the learned counsel for the appellants/accused, has pointed out certain contradictions from the evidence of the aforesaid prosecution witnesses and submitted that their evidence being inconsistent with each other on material particulars, does not inspire confidence and hence, the same may not be relied upon so as to base the conviction of the appellants/accused. However, on careful scrutiny of the evidence of all the aforesaid eye-witnesses, we find that the contradictions pointed out by Shri Daga are not so material or substantial so as to discard the neither testimony of these witnesses. Admittedly, the incident in question occurred on 10-11-1987 and the evidence of prosecution witnesses came to be recorded in the month of November, 1992, i.e. after about 5 years of the incident and, therefore, naturally some discrepancies are bound to occur in the evidence of these witnesses, otherwise they would have been branded as tutored witnesses. In this view of the matter and looking to the nature of the contradictions pointed out to us by Shri Daga, we find no merit in the aforesaid submission made by him.
17. We also find that the manner of the assault given out by all the aforesaid eyewitnesses is corroborated by the medical evidence. The evidence of Dr. Eknath Choudhary (PW. 7) shows that he had conducted the post-mortem examination of the dead body of Narayan on 11-11-1987 in between 12.30 p.m. and 1.45 p.m. On examination, he noticed the following external injuries on dead body of Narayan :-
1. Contusion over right upper eye-lid size 3/4" x 3/4" red in colour.
2. Contusion over right side front to temporal region size 2" x 1" reddish in colour.
3. Contusion over left upper arm on medical and lateral aspect, reddish in colour, size 2 1/2" x 1" both margins are parallel each other with repetation, fracture of the left fumerous medical 1/3rd, blood clots present while given incision, reddish in colour.
4. Contusion over the left side of chest wall 4" below the left axilla obliquely situated size 8 1/2" x 1" reddish in colour, both margins are parallel to each other.
According to Dr. Choudhary, all the aforesaid external injuries were ante-mortem and are possible by hard and blunt object like lathi (stick).
18. On internal examination, Dr. Choudhary noticed the following injury on the dead body of Narayan :-
Fracture of left temporal and parietal bone, I have given diagram of second injury. There was haematoma on left side fracture area. Brain covering are torn on right side of brain blood clots and blood seen. Beneath the fracture area, and over the torn area blood clots were seen. Torn size is 1" x 1/2". Superficial surface of brain is congested and blood clots seen over the right side.
Thorax :- Fracture of left side 2nd rib on lateral aspect. Stomach pale coffee colour fluid.
His post-mortem examination report is at Exh. 126. Dr. Choudhary opined that the probable cause of death was due to shock on account of injuries mentioned by him in Column Nos. 17,19 & 20 of his post-mortem report. According to Dr. Choudhary, all the injuries mentioned by him in column Nos. 17, 19 and 20 in his post-mortem report (Exh. 126) were fatal and in the ordinary course of nature they were sufficient to cause death. Nothing has come out from his cross-examination to dispute his aforesaid findings and concluding opinion. We have, therefore, no hesitation In accepting his evidence, which in our view corroborates the manner of assault given out by the aforesaid eye-witnesses.
19. Further, the evidence of Dr. Dinkarrao Patil (PW. 6) goes to show that he examined Govinda Janardhan (PW. 4) on 10-11-1987 itself at village Khadatgaon and noticed the following injury on his person :-
Contusion of size 5" x 2" over the right back, place obliquely and from the right side from upward to downwards, 1" from the midline. The injury was due to hard object, duration 4 to 6 hours.
He had accordingly issued a medico-legal certificate which is at Exh. 122. On the same day, he also examined Jagannath Bawaskar (PW. 12) and on examination he noticed the following injuries on his person :-
1. Lacerated wound of size 1/4" x 1/8" x 1/8" over the left little finger on anterior side.
2. Abrasion of size 1/4" x 1/4 x 1/4" over the right ring finger on posterior side.
A medico-legal certificate to that effect was issued by him which is at Exh. 123. Similarly, on the same day he examined Dashrath (PW. 9) and noticed the following injuries on his person :
1. Abrasion of size 1/4" x 1/4" x 1/4" over the left shoulder on superior side of left clavicle.
2. Contusion of size 4" x 4" over the left clavicle of left shoulder.
A medico-legal certificate in that regard issued by him is at Exh. 124. According to Dr. Patil, the injuries sustained by all the aforesaid persons are possible by hard, rough and blunt object like stick. In our view, the evidence of Dr. Patil also corroborates the manner of assault given out by aforesaid eye-witnesses.
20. It is true that there is a recovery of one Jujube stick at the instance of Fulsingh (appellant No. 3) under memorandum and recovery panchnama (Exhs. 117 & 118) and one Nimstick at the instance of Harisingh (appellant No. 1) under memorandum and recovery panchnama (Exhs. 119 & 120). It appears that both the appellants have produced the aforesaid sticks from their respective houses. Admittedly, other members of the family of the aforesaid appellants reside in their respective houses and, therefore, in our view the learned trial Judge has rightly disbelieved the evidence in respect of recovery of weapons at their instance.
21. The appellants while denying the charge levelled against them contended that as Sarangdhar (since deceased) and members of Mankar community were intending to bring no. confidence motion against Dashrath (PW. 9), who was the Sarpanch of the village and hence in order to take revenge, Dashrath (PW. 9), his deceased brother Narayan and members of his party has been to the Mala of Sarangdhar to assault him. At that time, excavated material of the well, which was dug in the field of Sarangdhar was lying there. On seeing Dashrath and his partymen, Sarangdhar managed to escape and in the process of chasing Sarangdhar, Dashrath (PW. 9), the deceased Narayan and his partymen fell on the said excavated material and sustained injuries and in order to shield the said incident Dashrath (PW. 9) and his partymen cooked up this story and falsely implicated the appellants in this case. However, the appellants have not adduced any evidence in support of their aforesaid contention. So also there is nothing on record to show that Dashrath (PW. 9) and his partymen had been to the field of Sarangdhar to assault him. In the absence of any evidence in this regard, we find no merit in the aforesaid contention raised by the appellants.
22. We would be failing in our fairness if we do not refer the decisions cited on behalf of the appellants.
23. Firstly, Shri M.R. Daga, the learned counsel for the appellants/accused, placed reliance in Masalti v. State of Uttar Pradesh . In this case, the Apex Court while considering the question as to whether the person is a member of unlawful assembly has given certain tests. In this regard, the Apex Court held as below (at page 233-234; of Cri LJ) :
That the mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under Section 142, I.P.C. cannot be read as laying down a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of such an unlawful assembly. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141, I.P.C. An assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case 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 by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. In fact, Section 149 makes it clear that 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; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.
24. In the instant case, the actual act of assault has been attributed to all the appellants. The evidence of all the eye-witnesses clearly goes to show that there was individual participation of appellants in the commission of offences in question as they assaulted the deceased Narayan, Dashrath (PW. 9) and others by means of sticks and wooden stumps. We, therefore, find that the aforesaid decision is of no avail to the appellants.
25. Secondly, Shri Daga placed reliance on the decision in S.P. Sinha v. State of Maharashtra reported in 1993 SCC (Cri) 684 : (1992 Cri LJ 2754). In the said case, a crowd consisting of 200-300 persons attacked the deceased. Some of the members of the crowd surrounded and inflicted injuries on the person of deceased due to which he fell down and succumbed to his injuries and hence, the Apex Court held that in such magnitude of occurrence in the absence of any clinching evidence to show the presence of some of the accused and their participation, they cannot be held to be the members of unlawful assembly showing common object of killing the deceased. It was only at later stage that unlawful assembly developed a common object of inflicting fatal blows on the deceased and hence, the conviction of the accused persons was altered from Section 302 read with Section 149 to that under Section 326 read with Section 149 of Indian Penal Code. Here, it is not so. In the instant case, the evidence of all the eye-witnesses clearly goes to show that on the call given by Virsingh, all the appellants and others who were armed with sticks and wooden stumps assaulted the deceased Narayan, Dashrath (PW. 9) and others. Their evidence also goes to show that all the appellants and others had come to the house of Dashrath (PW. 9) well-prepared and, therefore, in our view, the aforesaid decision is also of no avail to the appellants.
26. Nextly, Shri Daga relied upon the decision in Thakore Dolji Vanvirji v. State of Gujarat, reported in 1993 SCC (Cri) 704 : (1992 Cri LJ 3953). In the said case, one of the accused acting on his own inflicted fatal blow on the vital part of the deceased causing his death. In the instant case, the evidence on record clearly goes to show that all the appellants gathered at the house of Dashrath (PW. 9) with the common object to cause the death of Narayan and assault Dashrath (PW. 9) and they in fact took active part in the commission of offences in question and, therefore, in our view, the aforesaid decision also does not help the appellants in proving their innocence.
27. Lastly, Shri Daga placed reliance upon the decision in Haramant Laxmappa Kukkadi v. State of Karnataka reported in 1994 SC (Cri) 326 : (1994 Cri LJ 1422). In the said case, two persons, namely, Pandappa & Alappa were murdered. It was not disputed that Pandappa, a child aged about one year, accidentally received injury on head by accused No. 11 and, therefore, Apex Court held that from the said attack it cannot be inferred that the common object of unlawful assembly was to commit his murder. So far as the death of other person, namely, Alappa was concerned, he died two days later and though some of the accused were armed with deadly weapons like axes and other cutting weapons, they did not inflict a single injury on the deceased Alappa and hence, the Apex Court found that if common object was to commit murder of Alappa, the accused who were armed with deadly weapons would have certainly used them and also found from the nature of injuries that assailants did not use much force or cause much violence and, therefore, it held that the common object of assembly was to cause grievous hurt and not to cause death and hence, altered the conviction and sentence from Section 302 read with Section 149 of I.P.C. to that of Section 326 read with Section 149 of I.P. Code. In the instant case, the act of actual assault is attributed to all the appellants. The evidence of all the eye-witnesses shows that some of the appellants assaulted the deceased Narayan on vital part of his body, i.e. head and some on his back which clearly indicates that they had a common object to cause the death of Narayan and, therefore, in our view, the aforesaid decision also does not help the appellant in any way.
28. The principle of Section 149 of Indian Penal Code has been explained at length by the Apex Court in Lalji v. State of U.P., cited on behalf of prosecution. In the said case, the Apex Court held as follows (at page 852; of Cri LJ) :-
9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specified and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the Section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This Section makes a member of the unlawful assembly responsible as a principle for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.
10. Thus once the Court hold that certain accused persons formed an unlawful assembly and an offence in committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it.
29. Considering the aforesaid principle of law and having regard to the evidence of all the eye-witnesses, we find that all the appellants took active part in the commission of offences in question and being the members of the unlawful assembly each of them is guilty of the offences in question and, therefore, in our view, the learned trial Judge has rightly convicted the appellants/accused for the offences with which they are charged.
30. In the result, the Criminal Appeal is dismissed. The conviction and sentence passed by the learned trial Judge against the appellants/accused are hereby confirmed.