Rajasthan High Court - Jaipur
Kanhiya Lal Alias Kana And Ors. vs State Of Rajasthan on 8 September, 1988
Equivalent citations: 1988WLN(UC)524
JUDGMENT S.S. Byas, J.
1. Appellant Kanhiya Lal alias Kana was convicted under Sections 302 and 147 while the remaining five appellants (1) Gopal, (2) Madan, (3) Babu Lal, (4) Tejpal, and (5) Dhanna Lal were convicted under Sections 303/149 and 147 and each of them was sentenced to imprisonment for life with a fine of Rs. 1,000/- under Section 302 and 302/142 and one years' rigorous imprisonment with a fine of Rs. 100/- under Section 147 IPC by the Sessions Judge, Jhalawar by his judgment dated June 8, 1988
2. PW 2 Panna Lal, PW 7 Dwarka Lal are the brothers. PW 2 Mohan Lal is the nephew and PW 1 Kanti Bai is the widow of the deceased victim Dhanna Lal Mebar. Appellants Gopal, Kanhiya and Madan are the cousins of the deceased victim. They all resided in village Harigarh P,S. Khanpur, District Jhalawar Relations between then were quite cordial. How ever, accused Gopal used to accused the deceased Dhannalal stealing his hens. In the noon of 4-6-1987, accused Gopal fell out with the deceased Dhanna Lal and threatened him with dire consequences. At about 10.30 p m. on that very day the appellants caught hold of Dhanna Lal outside the house of Ram Karan. Each of them had a Lathi. Accused Kanhiya Lal alias Kana struck a blow of his lathi on the head of Dhanna Lal. Dhanna Lal fell down. PW 2 Panna Lal and PW 7 Dwarka Lal tried to intervene and they too were not spared. Dhanna Lal got up and tried to run away. Accused Kanhiya alias Kana then struck one more blow of his lathi on the head of Dhanna Lal. Dhanna Lal fell down and never regained senses thereafter. He passed away then and there after some minutes. Panna Lal went to Police Station Khanpur and verbally lodged report Ex.P-2 of the occurrence at about 00.30 hours on 5-6-187 i.e. within two hours of the incident. The Police registered a case and took up the investigation. The Investigating officer Kishan Kant PW 11 arrived on the spot, inspected the site and prepared the inquest report of the victim's dead body. The medical legal autopsy of the victim's dead body was conducted by PW 10 Dr. Surjeet Singh the then Medical Officer Incharge Government Dispensary Harigarh. The Doctor noticed the following injuries on the victim's dead body.--
External--
(1) Bluish at mid of celloid region right side;
(2) Bluish mid of triceps region of right upper arm;
(3) Lacerated wound 1" in size at the temporal region above 4 cms of left pinna.
Internal--
(1) Posterior border of frontal bone fractured one inch in size placed in cerebrum.
3. The internal injury was the result of external injury No. 1. In the opinion of the Doctor, the cause of death was due to the fracture bone posterior broder one ineh in size placed in the cerebrum which caused cerbral haemorrhage. The post mortem examination report issued by the Doctor is Ex. P 24. The culprits were arrested and in consequence of the information furnished by them, lathies were recovered. On the completion of the investigation, the police submitted the challan against the six appellants in the court of Additional Munsif-cum-Judicial Magistrate Aklera who in his turn committed the case for trial to the court of Sessions. The learned Sessions Judge framed the charges under Sections 147 and 302 against the accused Kanhiya Lal and under Sections 147 and 302/149, IPC against the remaining five. They pleaded not guilty and faced the trial In support of its case, the prosecution examined 11 witnesses and filed some documents. In defence, the accused adduced no evidence. The defence taken by the accused was that of complete denial. On the conclusion of trial, the learned Sessions Judge held the charges duly proved against all of them. They were consequently convicted and sentenced as mentioned at the very outset. Aggrieved against their conviction, the appellants have come up in appeal.
4. We have heard Mr. A.K. Gupta, learned Counsel for the appellants and the learned Public Prosecutor Mr. OP. Sharma. We have also gone through the case file carefully.
5. It may be pointed out before proceeding further that Mr.Gupta did not challenge the testimony of PW 10 Doctor Surjeet Singh relating to the cause of death, of the deceased victim's Dhanna Lal. It may be stated that only one injury was found on the victims head and that caused his death. The injuries found on the left and right foue-arm were trivial having no significance. We have also gone through the testimony of Doctor Surjeet Singh and find no reason to distrust his opinion. The death of Dhanna Lal was thus homicidal and not natural.
6. Mr Gupta also did not challenge the incident as stated by the eye witnesses PW 2 Panna Lal, PW 3 Mohan Lal and PW 7 Dwarka Lal. He has challenged the conviction of the appellants Gopal, Madan Lal, Babulal. Tejpal and Dhanna Lal on the ground that they were wrongly taken to be the members of the unlawful assembly. It was argued that even according to the eye witnesses, they did nothing and used no force or violence against the deceased Dhannalal. The incident took place outside the house of the appellants and as such their presence on the scene of occurrence is not unusual or unnatural. The learned Sessions Judge erred in recording a finding that they had constituted or formed an unlawful assembly with the common object of committing the murder of Dhanna Lal or that his death was caused in prosecution of any such common object. It was argued that even if their presence was established it was wholly insufficient to show that they had formed an unlawful assembly. It was on the other hand contended by the learned Public Prosecutor that these five appellants assembled on the spot at unusual time end that is sufficient to show that they had formed an unlawful assembly. We have taken the respective submissions into consideration.
7. The contention raised by Mr. Gupta is not ineffective. It has much force and substance. PW 1 Smt. Kanti Bai is the widow of the deceased victim Dhanna Lal. She did not support the prosecution case and was declared hostile. PW 2 Pannalal and PW 7 Dwarkalal are the real brothers of the deceased victim Dhannalal. They arrived on the spot on hearing the noise. They simply stated that accused Kanhiyalal alias Kana struck a blow of his lathi on the head of Dhannalal. Of course, they stated that the remaining five appellants also struck blows to Dhannalal. But that is patently false because no injury other than the head injury was found on the victim's body. PW 3 Mohanlal who is the real nephew of the deceased victim stated the same facts and added nothing more. The allegation of these three witnesses that the deceased victim Dhannalal was struck blows by all the appellants thus stand falsified and contradicted by the medical evidence. The role of beating assigned to these five appellants is unfounded and baseless. This allegation has been made against them with the oblique motive to make them members of an unlawful assembly. These five appellants did not strike any blow to the deceased Dhannalal.
8. Even if the presence of these five appellants Madan Lal, Gopal, Babulal, Tejpal and Dhanna Lal at the scene of incident is accepted their mere presence is not sufficient to record finding that they constituted an unlawful assembly. A look into the site plan Ex. P 3 shows that the incident had taken place outside the house of Ram Karan who is father of PW 3 Mohan Lal. The houses of the appellants as is shown in the site plan Ex.P3 are situate in the same vicinity. The place where the incident took place is the common court yard (chowk) of the parties. As such the presence of these five appellants on the site is nither unusual nor unnatural. By their mere presence on the spot it is difficult to infer that they constituted an unlawful assembly. In order to invoke Section 149, IPC the constitution or the formation of an unlaw ful assembly is a condition precedent. It is the common object of the unlawful assembly which is the central fact on which the liability of persons other than the actual doer of the act depends. If the unlawful assembly is not there, no question arises for the applicability of Section 149 IPC The existence of conmon object is mentioned in Section 149 IPC has to be proved by the prosecution, Direct evidence relating to common object is generally not available. It is to be inferred from the facts and circumstances of each case. The facts and circumstances generally available are the acts of the accused, the motive for the crime and the weapons used. In the instant case these five appellants had no motive for causing the death of the deceased victim They did not use any force or violence against the deceased victim. Their presence on the site was not unnatural or unusual The role assigned to them does not stand proved. In view of these facts and circumstances, it is difficult to hold that these five appellants had formed an unlawful assembly with accused Kanhiya Lal alias Kana to commit the murder of Dhanna Lal. In fact there is not the slightest material on record even to raise such a suggestion. We are, therefore, unable to maintain the finding of the court below about the formation of the unlawful assembly, Section 149 IPC has been wrongly pressed into service against these five appellants by the Sessions Judge. Their conviction under Section 302 with the aid and applicability of Section 149 IPC is wholly erroneous and cannot be maintained. They are entitled to acquittal.
9. As regards accused Kanhiya Lal alias Kana, it was argued by Mr. Gupta that he has only one hand. He has no left hand According to the eye witnesses he struck the blow only with his right hand. It was argued that blow with one hand cannot be struck with that much force and impact when a blow is struck with both the hands. The appellants are the cousins of the deceased victim. Relations between them were quite cordial except that a petty quarrel over the stealing of hens had taken place. Accused Kanhiya cannot be, therefore, imputed with the intention to cause the death of the deceased victim. The offence under Section 302 IPC cannot be said to have been made out. It was argued that it is a case of single injury and the offence made out does not travel beyond Section 323 IPC. The learned Public Prosecutor contended that the injury struck to the deceased victim was on the head and it was found sufficient to cause death. The accused was therefore, rightly convicted under Section 302 IPC.
10. Admittedly there was no bad blood between the deceased victim and the appellant Kanhiya A petty quarrel over the stealing of hens had taken place between them but that was wholly insufficient to instigate the appellant Kanhiyalal to cause death of the deceased victim. Appellant Kanhiya has no left hand. According to the eye witnesses he struck the blow only with his right hand as his left hand is missing. The medical evidence shows that only one blow was hit on the deceased victim. The incident had taken place in the night. We are not sure whether accused Kanhiya intended to cause that particular injury which was found on the victim's head Clause thirdly of Section 302, IPC can not be, therefore, safely invoked to make out an offence Under/Section 300, IPC. How ever, in as much as death has been caused the case must at least fall within the third clause of Section 299 IPC because the accused can be imputed with the knowledge that he is likely by such act to cause death, in our considered opinion the offence committed by the accused Kanhiya Lal alias Kana, therefore, falls under Section 304, Part II, IPC as the act was done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death.
11. In the result:
(1) The appeal of accused (1) Gopal, (2) Madan Lal, (3)Babu Lal (4) Tejpal, and (5) Dhanna Lal is allowed. Their conviction under Sections 147 and 302/49 IPC and sentences awarded to them there under are set aside. They are acquitted of the said offences. They are in jail and shall be immediately set forth at liberty if not wanted in any other case, (2) The appeal of accused Kanhiya Lal alias Kana is party allowed. His conviction under Section 302 and 147, IPC and the sentences awarded to him thereunder are set aside. He is, how ever, convicted under Part-II of Section 304, IPC and sentenced to seven year's rigorous imprisonment. He is already serving the sentence in jail.
12. The appeal shall accordingly stand disposed of.