Allahabad High Court
Rammilan And 4 Others vs State Of U.P. on 1 February, 2019
Author: Aniruddha Singh
Bench: Aniruddha Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 23.01.2019 Delivered on 01.02.2019 Court No.-50 Case :- CRIMINAL APPEAL No.-3048 of 2016 Appellant :- Rammilan And 4 Others Respondent :- State of U.P. Counsel for Appellant:- Rajiv Dwivedi, Ajay Prakash, Amit Malik, Arshid Husain, Vinod Kumar Counsel for Respondent :- G.A., Shrichandra Hon'ble Aniruddha Singh, J.
1. Heard Sri B. Malik, assisted by Sri Vinod Kumar and Sri P.C. Shakya, learned counsel for the appellants, Sri Pankaj Rai (B.H.) learned counsel appearing for the State and perused the record.
2. This criminal appeal has been preferred by the appellants-Rammilan, Haridas, Bharatlal, Kamta Prasad and Phoolchandra under Section 374 (2) of Cr.P.C. against the impugned judgment and order dated 25.5.2016 passed by the learned Additional Sessions Judge, Court No.1, Chitrakoot in S.T. No.112 of 2013, arising out of Case Crime No. 69 of 2013, under Sections 147/148, 304/149, 323/149, 504 and 506 I.P.C., Police Station Mau, District Chitrakoot whereby the appellants were convicted and sentenced under Section 147/148 I.P.C. for two years rigorous imprisonment each with fine of Rs.2,000/- each and in case of default of payment of fine, they were directed to undergo three months additional simple imprisonment, under Section 304/149 of I.P.C. for ten years rigorous imprisonment each with fine of Rs.5,000/- each and in case of default of payment of fine, they were directed to undergo five months additional simple imprisonment, under Section 323 read with Section 149 I.P.C. for one year rigorous imprisonment each with fine of Rs.500/- each and in case of default of payment of fine, they were directed to undergo one month additional simple imprisonment, under Section 504 I.P.C. for one year rigorous imprisonment each with fine of Rs.500/- each and in case of default of payment of fine, they were directed to undergo one month additional simple imprisonment and under Section 506 I.P.C. for one year rigorous imprisonment each with fine of Rs.500/- each and in case of default of payment of fine, they were directed to undergo one month additional simple imprisonment. All the sentences shall run concurrently.
3. Learned counsel for the appellants submitted that impugned judgment is against law and fact, charges levelled against the appellants were not proved against the appellants beyond reasonable doubt. There is contradiction in the statement of witnesses of fact. Sentences awarded by the court concerned are excessive and harsh. Only one head injury was found on the body of the deceased but all persons were convicted and sentenced by the trial court wrongly.
4. Learned A.G.A. submitted that there is sufficient evidence against the accused/appellants to convict them and there is no illegality in the impugned judgment and order passed by the court below convicting and sentencing the appellants.
5. In nutshell, according to prosecution case, F.I.R. was lodged against five accused persons-appellants- Rammilan, Haridas, Bharatlal, Kamta Prasad and Phoolchandra alleging therein that on 6.5.2013 at 2:30 p.m. they assaulted by lathies and dandas to Rajbali, who was 60 years of age (father of the complainant) and resultantly died on the same day due to ante-mortem injuries. He sustained two injuries, which are quoted below:
"(i) Contused swelling 08 X 06 cm. left temporal partial region.
(ii) Abrasion 02 X 01 cm. just above right eyebrow.
Right ear bleeding present."
Recovery of lathi was shown from the possession of Rammilan, which was used in this crime.
6. A case was registered. After investigation, charge-sheet was submitted against all the appellants. Charges were framed under Sections 147/148, 304/149, 323/149, 504 and 506 I.P.C. on 19.8.2013 to which they pleaded not guilty and claimed for trail.
7. In support of his case, the prosecution examined ten witnesses, namely, P.W.1- Shankarlal (complainant), P.W.2- Tirath Prasad, P.W.3- Smt. Sukhraniya Devi, P.W.4-Chiraunji Lal, P.W.5-Rajkaran, P.W.6-Dr. Shekhar, P.W.7- S.I. Sujan Singh Tomar, P.W.8-S.I. Siyaram Ahirwar, P.W.9-Constable Ugreshdutt Tripathi and P.W.10- Dr. C.J. Gautam.
8. Statements of the accused-appellants were recorded under Section 313 Cr.P.C. in which they denied the charges levelled against them and pleaded not guilty stating therein that they are innocent and have been falsely implicated.
9. After hearing learned counsel for the appellants as well as District Government Counsel (Criminal), the impugned judgment and order dated 25.5.2016 was passed. Hence this appeal.
10. The matter before the Court is to assess the impugned judgment whether it was manifestly wrong and it had led to miscarriage of justice. Whether the offence levelled against the appellants was proved beyond reasonable doubt or not.
11. This Court after scanning the evidence on record, has to adjudicate whether the prosecution has proved charges levelled against accused appellants beyond reasonable doubt or not. Word 'proved' is defined under Section 3 of Evidence Act as under:-
"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
12. The question is that whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt.
13. According to prosecution case, in this incident, one person Rajbali, who was 60 years of age, was died. Smt. Sukhraniya Devi, wife of Rajbali, Shankarlal and Chiraunji Lal have received injuries. Smt. Sukhraniya Devi received two injuries i.e. contusions and abrasion. Shankarlal received three injuries i.e. contusions on head and thigh. Chiraunji Lal received two injuries of abrasion.
14. On the point of conviction, the statements of injured witnesses are very important because they were present on spot and received injuries. On this issue, the Hon'ble Supreme Court in the case of injured witness has observed as under:
"In the case of Jarnail Sing vs. State of Punjab, 2009 (6) Supreme 526, the Court has held that deposition of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies for the reason that his presence on the scene of incident established in the case and it is proved that he suffered the injuries during the said incident.
In the case of Maqsoodan vs. State of U.P., (1983) 1 SCC 218, the Apex Court has held that presence of the injured witnesses at the time and place of the occurrence cannot be doubted as they had received injuries during the course of incident and they should normally be not disbelieved"
15. P.W.1-Shankarlal, the son of the deceased, so called eye witness, has clearly stated in examination-in-chief that all the five accused-appellants came armed with lathi and dandas in the field but he specifically stated that appellants Haridas and Rammilan had assaulted his father Rajbali (deceased) on head. Other accused-appellants had assaulted to him, his mother and his brother.
16. P.W.2-Tirath Prasad, the son of the deceased, so called eye witness, has also clearly stated in examination-in-chief that Rammilan and Haridas had assaulted his father by lathi and dandas on head.
17. P.W.3-Smt. Sukhraniya Devi, so called injured, the wife of deceased (Rajbali), also stated that first lathi was assaulted by Rammilan, second was assaulted by Bharatlal and third was assaulted by Haridas and Phoolchandra upon her.
18. P.W.4- Chiraunji Lal has stated the same version that Rammilan and Haridas had assaulted his father on his head. Other accused-appellants had assaulted to another person.
19. P.W.5- Rajkaran has stated that all accused had assaulted Rajbali (deceased) on his head.
20. P.W.10-Dr. C.J. Gautam has clearly stated that on 7.5.2013, postmortem of deceased (Rajbali) was done by him and he found one head injury on his head i.e. 08 cm. X 06 cm. on left side temporal and parietal contusions with swelling. Hence parietal and temporal bones were found fractured. He clearly stated that injury no. 2 was abrasion and injury no. 3 was found due to hydrocele. Therefore, it is very clear that deceased (Rajbali) was died due to single injury received on head.
21. Question is that who had caused this fatal injury to deceased.
22. As stated above, all the witnesses of fact have stated that two persons, namely, Haridas and Rammilan had assaulted the deceased (Rajbali) on head. The wife of the deceased has stated that first lathi blow was caused by Rammilan. Recovery of stick (lathi) was also found on the pointing out of the accused-appellant Rammilan. During investigation that was proved before the court below.
23. From perusal of the record, as discussed above, it is very clear that deceased (Rajbali) was died due to one injury received on his head and it is also proved by the prosecution beyond reasonable doubt that the said injury was caused by one accused-appellant Ram Milan. Therefore, the conviction of Ram Milan under Section 304 I.P.C. is also proved beyond reasonable doubt.
24. Now, the question is that whether other co-accused, namely, Haridas, Bharatlal, Kamta Prasad and Phoolchandra are also liable for punishment under Section 304 read with Section 149 I.P.C. or not.
25. On this issue, it is very relevant to mention that all other injuries i.e. injuries no. 2 and 3 and all other injuries of other injured are simple in nature and covered under Section 323 I.P.C. only.
26. In a criminal case, every person is responsible for his own act. Hence the question is whether on the basis of Section 149 IPC these five accused appellants Rammilan, Haridas, Bharatlal, Kamta Prasad and Phoolchandra would be liable to be held guilty under Section 304 IPC or not. Section 149 IPC is reproduced herein-under:-
"Section. 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 it 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."
27. The word "common object" used under Section 149 IPC is very material and it can be decided on case to case basis. It is settled law that if common object is proved but no overt act is attributed to the individual accused, section 149 of the code will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common object is absent, Section 149 IPC cannot be invoked. In other words, it requires a pre-arranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds. It is also settled principle of law that burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common object at a prior concert. In this case common object is absent as discussed above. Hence they are entitled for benefit of doubt under Section 304 IPC except the appellant Rammilan.
28. In this case from perusal of the record and the evidence produced by the prosecution, it transpires that incident was done suddenly. There was no per-planned to kill the deceased. The dispute arises due to grazing crops of wheat by cattle. Therefore, it is very clear that this incident was done suddenly without per-planned. Hence, on this issue, it will not be proper to punish all accused-appellants under Section 304 I.P.C.
29. It is also clear from the evidence produced by the prosecution that on head of the deceased, no repeated blows was done by any person and one single blow was done by Ram Milan only. Therefore, it is very clear that the intention to injured the deceased on head was confined only to accused Ram Milan otherwise on the head of the deceased it is natural that more than one injury has to be found.
30. Section 141 of I.P.C. is also relevant, hence it is quoted below for ready reference:-
"Section 141. Unlawful assembly.- An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is-
First.--To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second.--To assist the execution of any law, or of any legal process; or Third.--To commit any mischief or criminal trespass, or other offence; or Fourth.--By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the employment of a right of way, or of the of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.--By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."
31. In the case of Bhudeo Mandal v. State of Bihar, reported in AIR 1981 SC 1219, it was held that Section 149 creates a specific offence. So, there should be a clear finding as to what was the object of the unlawful assembly and if so whether the object was unlawful, that is, to commit murder, grievous hurt or simple hurt.
32. When there is no evidence to warrant the finding of formation of unlawful assembly with common object, the accused cannot be convicted under Sections 147, 148 or 149 I.P.C. but any member of that assembly could only be liable for his own individual act as it was held in the case of Mariadasin v. State of Tamil Nadu, reported in A.I.R. 1980 SC 573.
33. Sections 34 and 149 I.P.C. deal with liability of constrictive criminality. Liability of offence not committed by the person charged.
34. It is true that for the application to attract Section 149 I.P.C. it is not sufficient to prove that each of the participating culprits had the same intention to commit a certain act. What is required is that each must share the intention of the other. When a murder is committed and two assailants are armed and only one armed, common object of all the three to murder stands ruled out as it was held in the case of Dajya Moshaya Bhil v. State of Maharashtra, reported in AIR 1984 SC. 1717.
35. It is difficult, if not possible, to procure direct evidence to prove the object of that individual and in most cases the common object have to be interfered from of his act or conduct or other relevant circumstances of the case. The common object can be inferred from the circumstances of the case and that the object can be gathered from the circumstances as they arise even during an incident.
36. In the case of Karia and another v. State of Rajasthan reported in (2012) 10 SCC 433 it was held by the Hon'ble Supreme Court that the Court has to examine the prosecution evidence in regard to application of Section 149 I.P.C. cumulatively and if the ingredients are satisfied, the consequences must follow. It is difficult to state any hard and fast rules which can be applied universally to all cases. It will always depend on the facts and circumstances of the given case whether the person involved in the commission of the crime with a common object can be held guilty of the main offence committed by them together.
37. In above backdrop, as discussed above, this Court finds that offence under Section 304 I.P.C. is proved beyond reasonable doubt against Ram Milan only and other accused-appellants, namely, Haridas, Bharatlal, Kamta Prasad and Phoolchandra the offence under Section 304 read with Section 149 I.P.C. is not proved beyond reasonable doubt hence they are liable to be acquitted under Section 304/149 I.P.C.
38. From perusal of the record, it is very clear that other accused-appellants, namely, Haridas, Bharatlal, Kamta Prasad and Phoolchandra had assaulted Chiraunji Lal, Shankar Lal and Smt. Sukhraniya. They received injuries but the injuries were found simple in nature. As stated by P.SW.5- Dr. Shekhar that no injury of other injured was found dangerous to life.
39. All injured had stated clearly in their statements before the Police as well as before the court on oath that all accused-appellants had assaulted Chiraunji Lal, Shankar Lal and Smt. Sukhraniya, hence all accused are liable to be punished under Section 323 read with Section 149 I.P.C.
40. Learned counsel for the appellants raised several arguments relating to change of place of incident, manner of assault, motive, etc. but this Court finds no force in the argument raised by the learned counsel for the appellants because on this issue, injured have clearly stated in their statements that Ram Milan had assaulted the deceased (Rajbali) resulting his death and all other accused with Rammilan had assaulted them by lathi and dandas.
41. It is also pertinent to mention here that some witnesses have stated that appellants-Haridas and Ram Milan had assaulted the deceased (Rajbali) by lathi but it has been clearly sated in the statements of witnesses that the lathi, in which spade was fitted (sharp edged weapon), was in hand of Haridas, but no injury of the said weapon was found on the body of the deceased, hence statements of the witnesses alleging that Haridas had assaulted the deceased is not believable. Therefore, this Court finds that Haridas is not liable for punishment provided under Section 304 I.P.C.
42. Learned counsel for the appellants further submitted that the deceased was heart patient and he received injury by fallen and died but this Court finds no force in the argument raised by learned counsel for the appellants.
43. Learned counsel for the appellants further submitted that F.I.R. was lodged ante-time but this Court, on this issue, also finds no force in the argument raised by the learned counsel for the appellants.
44. It is also pertinent to mention here that the incident is of broad-day light on 06.05.2013 at 2-30 a.m and F.I.R. was lodged in the night at 8:30 p.m. F.I.R. is the only information given to the Police from a person about the crime and that was sent to the Police Station within reasonable time.
45. Learned counsel for the appellants vehemently pressed on the point that F.I.R. was lodged on second day of the incident. How and when the witnesses went to the Police Station, Chitrakoot from Allahabad for getting treatment of the deceased. Thereafter, when they went to their village and lodged the F.I.R. at Police Station Chitrakoot., hence F.I.R. was lodged anti-time but this Court finds no force in the argument raised by the learned counsel for the appellants.
46. From perusal of the record, it is not proved beyond reasonable doubt that the object of other persons than Ram Milan was common to kill the deceased by assaulting him.
47. It is also pertinent to mention here that appellant Ram Milan was convicted under Section 304 I.P.C. It denotes that intention of Ram Milan was also extended up to culpable homicide not amounting to murder only otherwise he was liable to be tried and punished under Section 302 I.P.C. Hence, this Court finds that common object of other accused was not proved beyond reasonable doubt than common object of Ram Milan under Section 149 I.P.C.
48. In so far as the offence under Sections 504 and 506 I.P.C. is concerned, from perusal of the record and even in chief-examination of the witnesses of fact, ingredients mentioned under Sections 504 and 506 I.P.C. are not proved beyond reasonable doubt hence all appellants are liable to be acquitted under Sections 504 & 506 I.P.C. This Court finds that it is not necessary to discuss on this issue because even in examination-in-chief without cross-examination if it is carefully examined all ingredients necessary under Sections 504 & 506 I.P.C. are not established to prove the offence beyond reasonable doubt. The accused-appellants namely, Haridas, Bharatlal, Kamta Prasad, Rammilan and Phoolchandra convicted and sentenced under Sections 504 and 506 I.P.C. are liable to be acquitted.
49. Appellants-Haridas, Bharatlal, Kamta Prasad and Phoolchandra are liable to be acquitted under Section 304/149 I.P.C.
50. The appeal of appellant-Ram Milan under Section 304 I.P.C. is also liable to be dismissed.
51. Learned counsel for the appellants submitted that appellants, namely, Ram Milan, Haridas and Bharatlal are languishing in jail since 25.5.2016 from the date of judgment. Appellants-Kamta Prasad and Phoolchandra were enlarged on bail vide order dated 29.7.2016 passed by this Court. From 25.5.2016 to 29.7.2016 (more than two and half months) and before that they were also served out the sentences at the time of hearing but specific date is not noted here.
52. In these circumstances, this Court finds that ends of justice would be served if the appellants, namely, Haridas, Bharatlal, Kamta Prasad and Phoolchandra are sentenced to the period already undergone under Section 323/149 I.P.C. with fine Rs. 1,000/-only.
53. In above backdrop, the appeal is partly allowed. The impugned judgment and order dated 25.5.2016 passed by the learned Additional Sessions Judge, Court No.1, Chitrakoot is set aside and the appellants, namely, Haridas, Bharatlal, Kamta Prasad and Phoolchandra are convicted and sentenced to the period already undergone under Sections 323/149 I.P.C. with fine Rs. 1,000/-only. Appellants-Haridas and Bharatlal shall be released forthwith because they are languishing in jail for more than two and half months, if they are not wanted in any other case.
54. Appellant-Ram Milan was sentenced by the court below for the offences under Section 304/149 I.P.C for ten years R.I. with fine of Rs.5,000/- and under Section 323/149 I.P.C. for one year R.I. with fine of Rs. 500/- are confirmed. He is acquitted under Sections 504 & 506 I.P.C.
55. The appellants, namely. Haridas, Bharatlal, Kamta Prasad and Phoolchandra are directed to deposit the fine of Rs.1,000/- (one thousand) within a period of two months from today. They are acquitted under Sections 504, 506 & 304/149 of I.P.C.
56. Office is directed to send the copy of this order along with lower court record to the court concerned immediately for necessary compliance. Compliance report shall be submitted within three months, which shall be kept on record.
Order Date:- 01.02.2019 op