Patna High Court
Siban Yadav & Ors vs The State Of Bihar on 14 February, 2013
Author: Aditya Kumar Trivedi
Bench: Shyam Kishore Sharma, Aditya Kumar Trivedi
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.185 of 1990
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1. Kusmi Yadav
2. Siban Yadav sons of Mewa Lal Yadav
3. Boua Lal Yadav, son of Bhogi Yadav
4. Mahakant Yadav, son of Gosain Yadav
5. Uttimlal Yadav
6. Shivnandan Yadav @ Shiban Yadav sons of Prem Lal Yadav
7. Bhogi Yadav son of Bagaru Yadav, All residents of Village, Parikoch, P.S.
Kishanpur (Now Maraun), Distt- Saharsa,
8. Kamal Yadav, son of Ram Tahal Yadav,
9. Ram Tahal Yadav, son of Lakshman Yadav, both residents of village, Jhingawa,
P.S. Kishanpur (now Marauna), Distt- Saharsa
10. Asharfi Mahto, son of Jiwachh Mahto
11. Jiwachh Mahto son of Budhan Mahto
12. Bulan Mahto son of Jiwachh Mahto
13. Gauri Lal Yadav son of Gokhul Yadav, All residents of Tola Gidrahi, Village
Jhingawa, P.S. Kishanpur (Now Marauna), Distt-Saharsa
.... .... Appellant/s
Versus
The State Of Bihar
.... .... Respondent/s
with
Criminal Appeal (DB) No. 213 of 1990
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Gosain Yadav son of Shri Mewa Lal Yadav, resident of village Parikoch, P.S.
Kishanpur (Now Marauna), Distt-Saharsa
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. B.P. Pandey, Sr. Advocate
Mr. Ashok Kumar Sinha No.3, Adv
Mr. P.K. Sinha, Adv
For the State : Mr. Ajay Mishra, APP
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CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
and
HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) Date: 14 -02-2013 Appellants, Gosain Yadav (since deceased), Kusmi Yadav 2 (since deceased), Kamal Yadav, Asarfi Yadav, Jiwachh Mahto (since deceased), Baulal Yadav, Mahakant Yadav, Uttimlal Yadav (since deceased) Shivnandan Yadav, Bulan Mahto, Bhogi Yadav (since deceased), Gaurilal Yadav, Siban Yadav, Ram Tahal Yadav (since deceased) have challenged the judgment of conviction and sentence dated 16.05.1990 passed by 2nd Additional Sessions Judge, Saharsa in Sessions Trial No. 145/1978 whereby and whereunder appellant Gosain Yadav (since deceased) was found guilty for an offence punishable under Sections 302, 148 of the IPC and directed to undergo R.I. for life under Section 302 of the IPC, however, no separate sentence was passed under Section 148 of the IPC while appellant, Kusmi Yadav (since deceased), Kamal Yadav, Asarfi Mahto, Jiwachh Mahto (since deceased), Boulal Yadav, Mahakant Yadav, Uttimlal Yadav (since deceased), Shivnandan Yadav, Bhulan Mahto, Bhogilal Yadav (since deceased), Gaurilal Yadav, Siban Yadav, Ram Tahal Yadav (since deceased) have been found guilty for an offence punishable under Sections 302/149 IPC and further been directed to undergo R.I. for life, appellants Siban Yadav and Kusmi Yadav (since deceased) were found guilty for an offence punishable under Sections 326/148 of the IPC and directed to undergo R.I. for two years while Kusmi Yadav (since deceased) was also found guilty for an offence punishable under Section 324 IPC and directed to 3 undergo R.I. for one year. Appellants Kusmi Yadav (since deceased) and Siban Yadav were also found guilty for an offence punishable under Section 148 IPC but no separate sentence was passed. Remaining appellants, namely, Shivnandan Yadav, Uttimlal Yadav (since deceased), Boulal Yadav, Mahakant Yadav, Bhogi Yadav (since deceased), Jiwachh Mahto (since deceased), Bulan Mahto, Asarfi Yadav, Gaurilal Yadav, Ram Tahal Yadav (since deceased), Kamal Yadav were found guilty for an offence punishable under Section 147 of the IPC but no separate sentence was passed therefor.
2. Hari Narain Yadav (PW-14) gave his Fardbeyan (Ext-1) on 22.07.1976 at about 2:00 p.m. at Supaul P.S. carrying dead body of his uncle Sahdeo Yadav along with Ram Pd. Yadav (Mukhiya), Muneshwar Yadav, Hari Prasad Yadav, Bahuran Nadal (Chaukidar), Kubru Paswan (Chaukidar) disclosing therein that his father had purchased 10 Katthas of land from Tunni Yadav about 2-3 years ago which was in southern Badh of his Villager, Parikoch. His co-villager, Siyaram Yadav had planted paddy on Bataai which had ripen for harvesting. On 21.07.1976 at about 10:00 a.m. his co-villager, Gosain Yadav along with Haseri having variously armed came at the land and began to harvest which was seen by Siyaram Yadav and accordingly informed. On this information, he along with his uncle Sahdeo Yadav, Siyaram Yadav, Laxmi Yadav and father Asarfi Yadav had gone to 4 the field and found hundreds of persons armed with bow and arrow, lathi, farsa were engaged in cutting paddy crop wherein he identified, Gosain Yadav, Siban Yadav son of Mawalal Yadav, Kusmi Yadav, Siban Yadav son of Premlal Yadav, Uttimlal Yadav, Mahakant Yadav, Ulmi Sah, Baulal Yadav, Bhogi Yadav, Jivachh Mahto, Bulan Mahto, Asarfi Mahto, Gourilal Yadav, Ram Tahal Yadav, Kamal Yadav. He along with his father forbade them from harvesting the paddy crop over which Gosain Yadav ordered to assault. He had himself shot an arrow causing injury over the chest of Sahdeo Yadav who fell down. Siban Yadav also shot the arrow to Siyaram on account of which he sustained injury and the arrow blown by Kusmi Yadav, Laxmi Yadav sustained injury. Gosain Yadav and Kusmi Yadav also aimed at Siyaram Yadav. Perceiving to danger to their lives they rushed therefrom and went to the place of Mukhiyaji and informed him accordingly, who came to the place of occurrence along with Kusheshwar Yadav, Sitaram Yadav and others, till then, the accused persons had gone out from the field after cutting paddy crop of an area of 3-4 Katthas. The deceased along with injured who were lying near the place of occurrence were lifted Marawna Hospital but as no doctor was present there, therefore, injured Siyaram Yadav and Laxmi Yadav were carried to Laheria Sarai Hospital. He was also informed that the O/C had come to Supaul, hence he has come along 5 with dead body of deceased Sahdeo Yadav. It has further been asserted that the land under dispute belongs to them having their exclusive possession. The accused persons have got no title or interest therein.
3. While the Fardbeyan of PW-14 was sent to P.S. for registration of the case, side by side investigation was taken up and after concluding the same charge-sheet was submitted against the accused persons whereupon they were put up for trial which ultimately concluded in a manner subject matter to instant appeals.
4. The defence case as is evident from mode of cross- examination as well as from their statement recorded under Section 313 of the Cr.P.C. is of complete innocence. It has further been asserted that the land under dispute happens to be exclusive property of the appellants and their possession was duly affirmed in a proceeding under Section 145 Cr.P.C. wherein Asarfi Yadav along with his vendor was first party who lost the game up to the Hon‟ble High Court. Although, not pleaded in specific terms but the manner of cross-examination suggest that there is exercise of right of private defence and to support the same, series of document have been exhibited on their behalf.
5. While assailing the judgment of conviction and sentence, it has been argued on behalf of the appellants that the judgment of 6 conviction and sentence recorded by the learned trial court lacks of judicial mind. To support the same, it has further been submitted that the learned trial court should have considered the documents more particularly, judgment of the executive court by which possession of appellants over disputed land found to be declared way back in 1974 and against the aforesaid order the vendor of the prosecution party had fought up to High Court, however lost. It has further been submitted that there is admission on this score by the prosecution witnesses. Then in that event, it has been submitted that the status of the appellants would not have been accepted as a stranger or being an aggressor while having their presence at the place of occurrence. In continuity, it has also been submitted that the prosecution had shown Siyaram Yadav to be his Bataidar but surprisingly enough, when the evidence of aforesaid Siyaram Yadav one of the so-called injured who has been examined as PW-11 is gone through, he had failed to divulge since when his status as Bataidar has been recognized. Not only this, his father Laxmi Yadav PW-13 is also silent on this very score. However, the learned trial court, it appears as well as having glance of the judgment impugned suggest that those relevant documents have not been taken into consideration.
6. Further elaborating, it has been urged on behalf of the appellants that all the witnesses are interested, related and inimical to 7 the appellants. Therefore, their evidence has to be taken into consideration after close and minute observation. When the aforesaid principle is fully applied while scrutinizing the evidence of PWs, their evidence became unethical, unreliable on account of discrepancy persisting therein which has been confronted and exhibited by the I.O., PW-20. Not only this, the witnesses have exulted so much that even as per Fardbeyan their status happens to be that of hearsay witnesses, came forward and deposed like an eyewitness more particularly, PW-3, Mukhiyaji and his associate who admittedly, arrived at the place of occurrence along with informant and his father Asarfi Yadav till then the accused persons had already made their departure along with paddy crop.
7. It has further been submitted that when the evidence of the PWs is taken into consideration in the background of unimpeachable document filed on behalf of the appellants, the presence of other co-accused who have been convicted and sentenced with an aid of 149 of the IPC is found to be not at all justifiable because of the fact that their status happens to be as labourers who was engaged for cutting of paddy crop as well as from the prosecution evidence itself it is evident that save and except Gosain Yadav, Kusmi Yadav and Siban Yadav none had even remotely associated himself with the occurrence. In likewise manner, it has also been argued that 8 none of the appellants had formed and been a member of an unlawful assembly while having over, the land under dispute, then in that event, presence of prosecution party at that very place recognized their status as aggressors and so whatever act was committed, that was by way of repulsion without having pre-meditation. As such, individual act of appellant is to be taken into consideration that too in the background of privilege having in their favour under the general exception. Then the only question remains whether the individual appellant by his independent activity has crossed the barrier so imposed. The cumulative effect, in the aforesaid background happens to be that the judgment of conviction and sentence recorded by the learned trial court should be held to be non sustainable in the eye of law.
8. On the other hand, learned APP while supporting the finding recorded by the learned trial court has argued that for coming to a particular conclusion, entire materials whatsoever been adduced during course of trial have to be minutely observed. Though to discredit the prosecution version, the defence had tried to place some of the exhibits but those exhibits are found to be worthless in the background of the consistent oral evidence conclusively proving possession of prosecution party over the place of occurrence. In that event, presence of appellants along with others variously armed at the place of occurrence shown their status as an aggressor who forcibly 9 tried to dispossess the prosecution party by cutting paddy crop and during course thereof they caused murder of Sahdeo Yadav while injuring Siyaram Yadav and Laxmi Yadav. The conclusiveness of oral evidence on this score makes the documents whatever been produced on behalf of defence full of fumidness.
9. So far inconsistency amongst the evidence of the PWs is concerned, it has been submitted that those things are but natural. Where the witnesses are tutored, then and then only a parrot-like statement is expected otherwise the same has to be taken into consideration under the guise of individual perspective, mental equilibrium, mode of expression and the most vital part is time elapsed from the date of occurrence to the date on which witnesses are being examined which may adversely be affected with the loss of memory. The evidence in its entirety is to be taken into consideration to arrive at a conclusion and conclude the finding with regard to particular point wherein the prosecution has succeeded. Hence, the judgment impugned is fit to be confirmed.
10. In order to substantiate its case the prosecution has examined altogether 20 PWs out of whom PW-1 is Jairam Singh, PW- 2 is Ramdeo Singh, PW-3 is Ram Prasad Singh, PW-4 is Kusheshwar Yadav, PW-5 is Sitaram Yadav, PW-6 is Sobhitlal Yadav, PW-7 is Jagarnath Yadav, PW-8 is Binu Yadav, PW-9 is Dr. H.M. Santhalia, 10 PW-10 is Ramdeo Yadav, PW-11 is Siyaram Yadav, PW-12 is Rameshwar Yadav, PW-13 is Laxmi Yadav, PW-14 is Hari Narain Yadav, PW-15 is Dr. M.M Rahim, PW-16 is Dr. Krishna Kumar Singh, PW-17 is Asarfi Yadav, PW-18 is Chotelal Yadav, PW-19 is Kartik Prasad Singh and PW-20 is Shivnath Prasad as well as prosecution has also exhibited Ext-1, Fardbeyan, Ext-2, Postmortem Report, Ext-3, signature of Harinarain Yadav of Fardbeyan, Ext-4 Injury certificate of Laxmi Yadav, Ext-4/1, injury certificate of Siya Ram Yadav, Ext-5, First Information Report, Ext-6 dead body Chalan Ext-7, inquest reports, Ext-8 series, injury reports of Siyaram Yadav and Laxmi Yadav, Ext-9 series, forwarding letter to FSL by SDJM, Supaul, Ext-10 report of FSL. Material Exhibit-I, I/I happens to be arrow.
11. The defence has also examined three DWs out of whom, DW-1 is Shankar Prasad Gupta, DW-2 is Bhouli Prasad Yadav and DW-3 is Ram Lakhan Yadav as well as also exhibited, Ext-A- signature of Shiv Nandan Yadav, B-series part receipt, C-C.C. of sale deed dated 16.02.1963, D-C.C. of Case No.42 of 1974, D/1- C.C. of Cr. Revision No.207/75, D/2 C.C. of Misc.Case No.685/75, D/3- C.C. of Settlement Register, B/4-C.C. of C.S.Khatiyan, C/5-C.C. of R.S.Khatiyan, E-C.C. of Case No.13/64-65.
12. Taking into account the medical evidence, there is no 11 hitch in accepting death of Sahdeo Yadav as well as receiving of injuries at the end of Siyaram Yadav as well as Laxmi Yadav. For better appreciation the postmortem report and injury reports of Siyaram Yadav and Laxmi Yadave respectively are being incorporated hereinbelow:-
(1) One arrow entered through the right 5th intercostals space adjacent to the external and went through the lower lob of right lung and the right lob of liver, coming out from the right lumber region. 1"
of the metallic end of the arrow outside the skin surface. About 2" of the wooden portion of the arrow was outside the skin surface at the sight lung and right lob of liver resulting haemorrhage in the chest and abdominal cavity.
(2) Lacerated wound of the scalp in the occipital region 1 ½" x ½". On opening skull there was extra dural collection of blood at the site of injury. There was depressed fracture of the occipital bone.
The doctor opined that the death was due to haemorrhage and shock due above mentioned injuries and the time elapsed since death was 36 to 48 hours.
13. PW-16, Dr. Krishna Kumar Sinha examined Siyaram Yadav and found the following injuries on his person:-
(1) Arrow inside the chest on right side posterior auxiliary lying 3" below the nipple line.
(2) Penetrating injury 1" x 1/2" x 2" over ventral aspect of right fore-arm in the middle.
(3) Arrow inside the chest on right side 2"
below the interior angle of aspula.
(4) Arrow inside over right groin.
(5) Penetrating injury over right chest 12 ¼"x1/4"x1" deep 3" lateral to right nipple.
(6) Penetrating injury over right side of chest in back ¼"x1/4"x2" .
(7) Penetrating injury over right scapula ¼"x1/4"x 2 1/2" deep.
(8) Penetrating injury 1" x ¼" over dorsum of right hand.
14. PW-15 Dr. M.M. Rahim examined Laxmi Yadav and found the following injuries on his person:-
(1) Incised wound ½" x 1/6" x bone deep over right leg with crack fracture medial maleolar region in the right leg. The nature of injury was grievous and caused from the sharp pointed weapon with cutting edge.
15. Now the next question roams around the genesis as well as manner of occurrence. There is consistent evidence right from its initial version that deceased was done to death as well as both two injured had sustained injuries when then came to the land to forbid the accused persons from cutting paddy crop. Informant had claimed the land by virtue of purchase made by his father Asarfi Yadav who has been examined as PW-17. Asarfi Yadav during cross-examination at para-4 had disclosed that the P.O. land bears Khesra No. 4625 corresponding to Khata No.53 having total area of 2 Bigha 6 Kattha and 18 Dhur out of which he had purchased 10 Kattha of land. Further he denied that this land originally belongs to Musahro Mandal which was auctioned on account of non payment of rent by Rajdarbhanga and was subsequently settled in favour of Dunni Yadav who had only 13 one daughter, Gangia Devi. Kusum Lal Yadav is her son. In para-5 he had narrated that Gosain Yadav is claiming the land on the basis of sale-deed executed by the daughter of Dunni Yadav. He had further denied existence of 144 as well as 145 Cr.P.C. proceeding amongst them which was decided against him. Revision filed on their behalf had also been dismissed up to the Hon‟ble High Court but fairly concedes that rent receipt is being issued in favour of accused persons. He had further denied that revisional survey Khatian has been opened in the name of accused persons. The aforesaid disclosure has completely been demolished by PW-3 who had deposed in para-4 of his cross-examination that his brother Sheetal Yadav had also purchased some portion of disputed land from Dunni Yadav. In para-5 he had admitted that there was litigation amongst Dunni Yadav with accused persons before the alleged date of occurrence.
16. PW-10 is brother of PW-3, in para-5 had admitted that Sheetal Yadav is his full brother. There was 145 Cr.P.C. proceeding in between accused persons with Dunni Yadav relating to P.O. land wherein Dunni Yadav had lost. Dunni Yadav had filed revision against the aforesaid order wherein he also lost. Dunni Yadav had again filed a case before Hon‟ble High Court which met the same fate. He had purchased part of land in the name of Asarfi yadav and Sheetal Yadav from Dunni Yadav. PW-11 had again shown ignorance 14 with regard to pendency of 145 Cr.P.C. proceeding in between Dunni Yadav, Asarfi Yadav at one side while accused persons at other.
17. PW-14, Hari Narain Yadav is the informant who in para-3 of his examination-in-chief had deposed that P.O. land comprised of 10 Kattha which his father had purchased from Dunni Yadav through sale deed. The aforesaid land was given under Batai to Siyaram Yadav. During cross-examination at para-5 had admitted that the accused, Gasain Yadav claimed the land. He further shown his ignorance with regard to pendency of 145 Cr.P.C. proceeding which was decided in favour of Gosain Yadav relating to P.O. land. In para- 11 of his cross-examination he again show ignorance with regard to total area of P.O. land to be 2 Bigha 6 Kattha and 18 Dhur.
18. PW-20, Shivnath Prasad is the Investigating Officer who had also found the place of occurrence to be part and parcel of Khesra No.4625. He had also deposed that father of informant had shown Kewala to him but surprisingly, in spite of having positive assertion on behalf of prosecution party more particularly, by the Asarfi Yadav PW-17, the prosecution had not exhibited any relevant document to show that vendor of Asarfi Yadav was under exclusive possession over the P.O. land and further Asarfi Yadav had with regard to 10 Kattha of land which he claimed to have purchased from Dunni Yadav. In spite of clear-cut assertion that the revisional survey 15 Khatian has been recorded in his name with regard to P.O. land but surprisingly enough, the same has not been filed. Contrary to it, the defence had filed series of document that means to say, the judgment of executive Magistrate dated 09.06.1975 passed in connection with Misc. Case No. 42/1974, trial no. 95/1975 Dunni Yadav & Ors v. Gosain Yadav & Ors under Seciton 145 Cr.P.C. wherein the land under dispute has been declared to be in possession of accused persons. Against the aforesaid order Cr. Revision No. 207/1975 was filed by Dunni Yadav (Ext-D/1) and the same was dismissed in limine which was challenged under Cr. Revision No. 685/1975 before the High Court and the same was dismissed vide order dated 04.10.1997 (Ext-D/2). Not only this, from Ext-D/3 it is evident that the P.O. land in its entirety was auctioned. From Ext-D/5, it is evident that during revisional survey the land under dispute was recorded in favour of Gosain Yadav, Kusum Lal, Shivnandan Yadav and Langru Yadav. From Ext-E series, it is evident that the mutation was effected in favour of accused persons. There is no occasion left for putting doubt over genesis of the aforesaid document and considering thereof it is found and held that the P.O. land bearing Khesra No. 4625 in its entirety happens to be under peaceful possession of appellant.
19. Once a legal and valid right is found to be in favour of accused persons with regard to P.O. land and the aforesaid status 16 though half heartedly is found to be acknowledged by prosecution witness then in that event, having the accused persons over the P.O. land cannot be said to be under the banner of aggressor rather they have a genuine cause.
20. At this juncture, the genuineness of the assertion of Siyaram Yadav, PW-11 being a Bataidar of the aforesaid land has to be taken into consideration. PW-11, Siyaram Yadav during cross- examination at para-6 had disclosed that he happens to be Bataidar over the land for the last nine years six months. He had further disclosed that he had got no paper to support the same. In para-7 had disclosed that he had planted paddy crop in the P.O. land of which Ramdeo Yadav, Ram Pd. Yadav, Rameshar Yadav and Asarfi Yadav are the witnesses.
21. PW-13, Laxmi Yadav is his father. He in chief at para- 2 had disclosed that P.O. land belongs to Asarfi Yadav which was taken on Batai by Siyaram Yadav. Siyaram Yadav had planted paddy crop. In para-5 of his cross-examination, he had disclosed that he cannot say since when Siyaram Yadav had taken land on Batai. In para-8, he had admitted that he had not seen Siyaram Yadav ploughing/sowing the P.O. land but had seen while weeding the crop.
22. PW-14, Hari Narain Yadav, the informant in para-3 of his examination-in-chief had deposed that P.O. land comprises 10 17 Kattha which was purchased by his father from Dunni Yadav. That land was given on Batai to Siyaram Yadav who had planted paddy crop and the same was looted away by the accused persons. In para-5 of his cross-examination he had disclosed that the land was purchased about three years earlier from the date of occurrence. After purchasing the land he had himself cultivated and then thereafter, he had given the land on Batai. So from the evidence as referred above, it is evident that there happens to be contrary statement amongst the evidence of PW-14, informant as well as PW-11, Siyaram Yadav, Bataidar and that is found sufficient to discredit their version on that very score resulting severe taint in the case of the prosecution as propounded. Admittedly, there is allegation of individual act identifying three accused independently for the act which they have been shown to have committed. While Gosain Yadav was identified to be assailant of deceased Sahdeo Yadav while Siban Yadav responsible for causing injury to Siyaram Yadav and Kusmi Yadav to be responsible for causing injury to Laxmi Yadav. Others have not been shown to be involved in any manner during commission of the occurrence nor were they armed with lethal weapon.
23. In the background of the fact that the prosecution evidence is found to be deficient with regard to exclusive possession over the P.O. land then in that event, presence of prosecution party 18 with an intention to forbid the accused persons, is found to be and act which was not legally entertainable. Moreover, the trial court had convicted the remaining appellant save and except Gosain Yadav with the aid of Section 149 as well as 147, 148 of the IPC.
24. Whether there happens to be applicability of Section 149 of the IPC, that could be taken into consideration in light of Section 141 of the IPC which are being incorporated herein below :-
"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.- x x x x x x x x x x x Second.-x x x x x x x x x x Third.-To commit any mischief or criminal trespass, or other offence"
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
A plain reading of the above would show that the provision is in two parts. The first part deals with cases in which an offence is committed by any member of the assembly "in prosecution of the common object" of that assembly. The second part deals with cases where the commission of a given offence is not by itself the common object of the unlawful assembly but members of such assembly „knew that the same is likely to be committed in prosecution of the common object of the assembly‟. As noticed above, the commission of the offence of murder of Felix Felicio Monteiro was itself not the common object of the unlawful assembly in the case at hand. And yet the 19 assembly was unlawful because from the evidence adduced at the trial it is proved that the common object of the persons comprising the assembly certainly was to either commit a mischief or criminal trespass or any other offence within the contemplation of clause (3) of Section 141 of the IPC, which may to the extent the same is relevant for the present be extracted at this stage:
25. The scope of 149 IPC has been dealt with in detail in the case of Roy Fernandes vs. State of Goa and Ors as reported in 2012 Cr. Law Journal, 1542, undar para-14, 15, 18, 19, 20, 21 and 22 which are as follows :-
14. What then remains to be considered is whether the appellant as a member of the unlawful assembly knew that the murder of the deceased was also a likely event in prosecution of the object of preventing him form putting up the fence. The answer to that question will depend upon the circumstances in which the incident had taken place and the conduct of the members of the unlawful assembly including the weapons they carried or used on the spot. It was so stated by this Court in Lalji and Ors. v. State of U.P.[1989 (1) SCC 437: (AIR 1989 SC 754)] in the following words:
"8. x x x x x x x x x x x x x x x x Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.
15. The Court elaborated the above proposition in Dharam Pal and Ors. v. State of U.P.[1975 (2) SCC 596:
(AIR 1975 SC 1917)] as:
"11. Even if the number of assailants could have been less than five in the instant case (which, we think, on the facts stated above, was really not possible), we think that the fact that the attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours of 20 June 7, 1967, shows pre-planning. Some of the assailants had sharp-edged weapons. They were obviously lying in wait for the buggi to arrive. They surrounded and attacked the occupants shouting that the occupants will be killed. We do not think that more convincing evidence of a pre-concert was necessary. Therefore, if we had thought it necessary, we would not have hesitated to apply Section 34, I. P.C. also to this case. The principle of vicarious liability does not depend upon the necessity to convict a required number of persons. It depends upon proof of facts beyond reasonable doubt, which makes such a principle applicable. (See : Yeshwant v. State of Maharashtra, (AIR 1973 SC 337); and Sukh Ram v.
State of U. P. (AIR 1974 SC 323)) The most general and basic rule, on a question such as the one we are considering is that there is no uniform, inflexible, or invariable rule applicable for arrving at what is really a an inference from the totality of facts and circumstances which varies from case to case. We have to examine the effect of findings given in each case on this totality. It is rarely exactly identical with that in another case. Other rules are really subsidiary to this basic verity and depend for their correct application on the peculiar facts and circumstances in the context of which they are enunciated."
18. In Chikkarange Gowda & Ors. v. State of Mysore [AIR 1956 SC 731] this Court was dealing with a case where the common object of the unlawful assembly simply was to chastise the deceased. The deceased was, however, killed by a fatal injury caused by certain member of the unlawful assembly. The court below convicted the other member of the unlawful assembly under Section 302 read with Section 149 IPC. Reversing the conviction, this Court held :
9. It is quite clear to us that on the finding of the High Court with regard to the common object of the unlawful assembly, the conviction of the appellants for an offence under S. 302 read with S. 149, Penal Code cannot be sustained. The first essential elements of S. 149 is the commission of an offence by any member of an unlawful assembly; the second essential part is that the offence must 21 be committed in prosecution of the common object of the unlawful assembly, or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object.
In the case before us, the learned Judges of the High Court held that the common object of the unlawful assembly was merely to administer a chastisement to Putte Gowda. The learned Judges of the High Court did not hold that though the common object was to chastise Putte Gowda, the members of the unlawful assembly knew that Putte Gowda was likely to be killed in prosecution of that common object. That being the position, the conviction under S. 302 read with S. 149 Penal Code was not justified in law.
19. In Gajanand & Ors. v. State of Uttar Pradesh [AIR 1954 SC 695], this Court approved the following passage from the decision of the Patna High Court in Ram Chanran Rai v. Emperor [AIR 1946 Pat 242]:
"under Section 149 the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behaviour, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise."
20. This Court then reiterated the legal position as under :
" The question is whether such knowledge can be attributed to the appellants who were themselves not armed with sharp edged weapons. The evidence on this point is completely lacking. The appellants had only lathis which may possibly account for injuries Nos. 2 and 3 on Sukku's left arm and left hand but they cannot be held liable for murder by invoking the aid of Section 149, I.P.C. According to the evidence only two persons were armed with deadly weapons. Both of them were acquitted and Sosa, who is alleged to have had a spear, is absconding. We are not prepared therefore to ascribe any knowledge of the existence of deadly weapons to the appellants, must less 22 that they would be used in order to cause death."
21. In Mizaji and Anr. v. State of U.P. [AIR 1959 SC 572] this Court was dealing with a case where five persons armed with lethal weapons had gone with the common object of getting forcible possession of the land which was in the cultivating possession of the deceased. Facing resistance from the person in possession, one of the members of the assembly at the exhortation of the other fired and killed the deceased. The Court held that the conduct of the members of the unlawful assembly was such as showed that they were determined to take forcible possession at any cost. Section 149 of IPC was, therefore, attracted and the conviction of the members of the assembly for murder legally justified. This Court analysed Section 149 in the following words:
" 6. This section has been the subject matter of interpretation in the various High Courts of India, but every case has to be decided on its own facts. The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly it may yet fall under S. 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of S. 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of 23 the unlawful assembly clearly point to such knowledge on the part of them all".
22. In Shambhu Nath Singh and Ors. v. State of Bihar [AIR 1960 SC 725], this Court held that members of an unlawful assembly may have a community of object upto a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he shares the community of object. As a consequence, the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly. Dicisions of this Court Gangadhar Behra and Others v. State of Orissa [2002 (8) SCC 381 : (AIR 2002 SC 3633 : 2002 AIR SCW 4271] and Bishna alias Bhiswadeb Mahato and Others v. State of West Bengal [2005 (12) SCC 657 : (AIR 2006 SC 302 : 2005 AIR SCW 5798)] similarly explain and reiterate the legal position on the subject.
26. Now coming to the facts of the case, when P.O. land is found to be under exclusive possession of the appellant then in that event, presence of appellant at the place of occurrence cannot be construed as an unlawful assembly and so identifying them independently under Section 147 as well as 148 of the IPC and in likewise manner with the aid of Section 149 of the IPC cannot be held legally entertainable.
27. The aforesaid fact further finds support from own prosecution version confining the appellants within the periphery of P.O. land itself and not beyond that. They have not been shown to have chased any of the members of the prosecution party. The 24 prosecution also failed to suggest that at the time of commission of occurrence also, the other members have formed common object with the main assailant having part of an unlawful assembly.
28. Now, coming to the individual act, certainly the presence of prosecution party near about the place of occurrence or at the place of occurrence was found to be empty handed. Exercise of right of private defence is permissible only to that extent to avert the danger or to defend the property. Therefore, individual act of appellant is found to be transgressing the right of private defence and accordingly appellant Gosain Yadav, Siban Yadav and Kusmi Yadav are found to be responsible for the act. Gosain Yadav is accordingly, found responsible for causing death of Sahdeo Yadav and in likewise manner, Kusmi Yadav is found to be responsible for causing injury to Laxmi Yadav. Siban Yadav son of Mewalal Yadav is found to be responsible for causing injury to Siyaram Yadav. Because of the fact that Gosain Yadav and Kusmi Yadav are dead. Now only Siban Yadav son of Mewalal Yadav survives who is accordingly found and held guilty for an offence punishable under Sections 326 of the IPC. At the time of occurrence Siban Yadav was shown to be aged about 60 years. The occurrence is of the year 1976 and on account thereof, now he appears to be aged about more than 90 years. In the aforesaid background punishment inflicted by the learned trial court is modified 25 to that extent period already undergone.
29. Accordingly, Cr. Appeal No. 185/1990 is allowed to the extent of remaining surviving appellants while is dismissed with modification in sentence so far it relates to appellants, Siban Yadav son of Mewalal Yadav as indicated above.
(Shyam Kishore Sharma, J) (Aditya Kumar Trivedi, J) Patna High Court February 14th 2013 Md.Perwez Alam/AFR