Allahabad High Court
Ganga Singh And Ors. Etc. vs State Of U.P on 4 November, 1999
Equivalent citations: 2000CRILJ1695
Author: J.C. Gupta
Bench: J.C. Gupta
JUDGMENT J.C. Gupta, J.
1. These two connected appeals are directed against the judgment and order dated 21-7-80 passed by the then 9th Addl. Sessions Judge, Bareilly convicting the appellants and sentencing each of them to one year R.I. under Section 147, IPC, one year R.I. under Section 328 read with Section 149, IPC, two years R.I. under Section 325 read with Section 149, IPC and imprisonment for life under Section 302 read with Section 149, IPC. All the sentences have been ordered to run concurrently.
2. The prosecution case briefly stated is that the first informant Nathoo P.W. 1 and accused Babu Ram are neighbours in village Arrupura. On 2-5-78 when Nathoo got up in the morning at about sunrise and went to give fodder to his cattle, he noticed smoke emanating from his Chhapper. With the help of villagers fire was extinguished. However, it was found that much of the fodder stored in the Chhapper had been reduced to ashes. He suspected the hands of accused Babu Ram in this mischief. At about 7 a.m. he called accused Babu Ram by name saying "see, Babu Ram someone has set my fodder on fire". Accused Babu Ram taking ill of this accusation retorted and called other accused persons saying that Nathoo has concocted a case and was making a false allegation against him, therefore, he be beaten. All the accused persons then started assaulting Nathoo with lathis. Smt. Jalpa and Om Prakash, wife and brother of Nathoo respectively were also assaulted when they intervened to save Nathoo. Om Prakash was then taken to Chabutara of Babu Ram in an injured state. The incident was also witnessed by Hem Raj, P.W. 2 Shujat Ali P.W. 3, Paley Khan and others. Nathoo took his injured wife Jalpa in a bullock cart to the police station and there he dictated an oral report at 8-30 a.m. which was reduced to writing in the check register by Head Moharrir Ram Singh, Dharam Chand P.W. 6, the Station Officer was present when the case was registered, so he took up the investigation and recorded the statement of Nathoo and Smt. Jalpa at the police station itself and sent them for medical examination. The Investigating Officer then reached the place of incident at about 10-30 a.m. and arrested accused Badan Singh, Bankey and Ganga Singh. Accused Bankey gave him a written script Ex. Ka. 10. Madan Singh accused gave a key Ex. IV by which lock Ex. V of the house of Ram Bharose was opened. Om Prakash was found lying unconscious on a cot inside the house of Ram Bharose. One SBBL gun Ex. II with one live cartridge Material Ex. III in its barrel were also recovered from beneath the cot. One catridge Ex. I was also found in the pocket of the shirt of Om Prakash. Pieces of blood stained "Bandh" of the cot were also collected. All these articles were taken into possession through recovery memo Ex. Ka. 4. Injured Om Prakash was then sent to the hospital with a police constable. The Investigating Officer then collected blood stained and plain earth Ex. VI and Ex. VII from the place of incident. Blood stained and plain earth Ex. VIII and Ex. IX were also collected from the Chabutara where Om Prakash was said to have been taken in injured state. Sample of semi burnt fodder was also collected through Ex. Ka. 3. Site plan Ex. Ka. 11 was also prepared. After the death of Om Prakash the case was converted to under Section 302, IPC. Charge sheet Ex. K. 15 was then submitted against all the accused persons after completion of investigation.
3. Dr. G.C. Rohtagi P.W. 4 examined the injuries of Smt. Jalpa at 1.30 p.m. on 2-5-78 and he found the following injuries on her body;
Lacerated wound 4 cm. x 1 cm. x whole depth of the upper right lip with fracture of part of the upper jaw pushing in the right, two incisors lacerating the upper gum also.
4. Injuries of Nathoo P.W. 1 were also examined by Dr. Rohtagi on the same day at 1.45 p.m. and following injuries were found :
1. Lacerated wound 2.4 cm. x 1 cm. into muscle deep at the palmer aspect of the right thumb with swelling on hand.
2. Lacerated wound 3 cm x 1 cm. x muscle deep on the right side of in line with ear.
3. Lacerated wound 2 cm x 1 cm x muscle deep at the upper part right side fore head.
4. Contusion 10 cm. x 2.2 cm. across the left side of back.
Injury No. 1 was kept under observation and rest of the injuries were reported to be simple.
5. Om Prakash, when was alive was also medically examined on the same day at 1.25 p.m. and following injuries were found :
1. Lacerated wound 5 cm. x 1 x cm. x bone deep on the top of the head in the middle
2. Lacerated wound 4 cm. x 1 cm. x bone deep 2.5 cm. back behind injury No. 1
3. Contusion 6 cm. x 2 cm. lateral side of left elbow.
4. Contusion 10 cm. x 2 cm. anterio lateral aspect of the middle of the right thigh.
5. Abrasion 1 cm. x 1 cm. on left knee 1/4 cm. circular incisor right 5 cm. on the toe.
6. Lacerated wound 6 cm. x 1 cm. x bone deep a bit lateral to injury No. 2 clotted blood on right ear.
The head injuries were kept under observation while other injuries were reported to be simple.
6. The post mortem examination on the dead body of Om Prakash was conducted by Dr. K.S. Tiwari P.W. 7 on 3.5-78 at 4-30 p.m. and following ante mortem injuries were noticed :
1. A stitched wound 2 1/2 cm. long with one stitch present on the top of head near middle 12 cm from bridge of nose.
2. A stitched wound 4 cm. long with 3 stitches on top of head near middle 4 cm behind injury No. 1.
3. A stitched wound 5 cm. long with 3 stitches on scalp posterior part 1 cm behind and to the right of injury No. 2.
4. Lacerated wound 1 cm. x 0.5 cm. scalp deep on right side scalp 5 cm above right ear.
5. Lacerated wound 1.5 cm. x 0.5 cm. x muscle deep on the posterior part of right pinna of ear.
6. Contusion 6 cm. x 4 cm. on the scalp left side 3 cm. above left ear.
7. Contusion 1 cm. x 1 cm. on the back of right shoulder upper part.
8. Abrasion 1 cm. x 0.5 em. on the back of right elbow joint.
9. Contusion 6 cm. x 2 cm. on the lateral aspect of right thigh upper part.
10. Contusion 8 cm. x 2 cm. on the lateral side of right thigh middle.
11. Contusion 10 cm. x 2 cm. on the back of right side chest in middle.
12. Contusion 6 cm. x 2 cm. on the right scapular region.
13. Abrasion 0.5 cm. x 0.5 cm. on the back of left elbow joint.
14. Contusion 10 cm. x 4 cm. on the lateral side of left arm and elbow joint.
15. Abrasion 0.5 cm. x 0.5 cm on the front of left knee joint.
7. The post mortem report Ex. Ka. 17 was prepared and in the opinion of the doctor, the death of Om Prakash occurred on account of coma due to head injuries.
8. At the trial prosecution produced three witnesses of fact namely Nathoo P.W. 1, Hem Raj P.W. 2 and Shujat Ali P.W. 3. Out of these witnesses P.W. 1 Nathoo himself received injuries during the course of incident. A perusal of his injury report Ex. Ka. 6 would show that two of the lacerated wounds were on head region and one contusion was on the left side back. It has been stated by Dr. Rohtagi P.W. 4 that all the injuries of Nathoo could be possible by a blunt weapon like Lathi. By no stretch of imagination these injuries could be said to be self-inflicted or self-suffered. Therefore, presence of Nathoo P.W. 1 at the time of incident cannot be doubted. This witness has narrated the entire details of the incident and the manner of assault. According to him all the accused persons first started assaulting him and when his wife Jalpa and deceased Om Prakash came to his rescue they were also assaulted by accused persons with Lathis. A bare perusal of injury reports of Smt. Jalpa Ex. Ka. 5 and of Om Prakash Ex. Ka. 2 and post mortem report Ex. Ka. 17 would indicate that all the injuries sustained by the aforesaid persons were the result of assault made by Lathis. The statement of P.W. 1 Nathoo is also fully corroborated by the testimony of two witnesses namely P.W. 2 Hem Raj and P.W. 3 Sujat Ali. Against Hem Raj it is pointed out that as admitted by P.W. 1 Nathoo this Hem Raj was prosecuted along with P.W. 1 and Munshi in a case of dacoity committed at the house of Babu Ram much prior to the present occurrence. Therefore, it is argued that as far as Hem Raj is concerned he is an interested witness. Be that as it may, after examining his evidence carefully no doubt is left in our mind that he is the truthful witness and his testimony is reliable. So far as P.W. 3 Sujat Ali is concerned, he appears to be a totally independent witness. According to him at the time of the incident he was coming from his thresher and when he reached near the house of Nathoo, he found that smoke was coming out from the Chhapper of Nathoo and the fodder kept therein had been set on fire. He with the help of Idda Khan, Wasir Khan, Paley Khan, Hem Raj and others succeeded in extinguishing the fire. After some time Nathoo called Babu Ram and said that some body has set his fodder on fire. On this accused Babu Ram said {hat Nathoo has concocted a case against him and asked other accused persons to beat him whereupon all the accused persons started assaulting Nathoo and then they also asaulted Smt. Jalpa and Om Prakash when they came to save Nathoo. This witness was cross-examined at length but nothing material could be brought out on record which may create any doubt about his presence at the time of the incident. Learned Sessions Judge has thus committed no error in placing reliance on the testimony of these three witnesses.
9. It was next argued by the learned counsel for the appellants that it was suggested to P.W. 1 Nathoo that at the behest of police P.W. 1 Nathoo, Om Prakash (deceased) Munshi, Manohar and Meharaban tried to enter into the house of accused persons at about 3 in the night for committing dacoity and at that time Om Prakash was armed with a gun while others were having Lathis and country made pistols. When they were making their entry into the house of the accused persons the villagers threw brick bats over them whereupon Smt. Jalpa, Nathoo and Om Prakash received injuries and this cross version was suggested to P.W. 1 and had also been put forward from the defence side in writing when accused Bankey gave a script Ex. Ka-10 to the Investigating Officer on his arrival at the spot at about 10.30 a.m. It. may be noted here that accused in his statement under Section 313, Cr.P.C. denied of his having given any such scrept. It is also pertinent to note here that no such cross version was stated by any of the accused persons in their statement recorded under Section 313, Cr.P.C. In any view of the matter there is nothing on the record to substantiate the said alleged cross-version. As per the cross-version one Maiku also sustained injuries but neither the said Maiku was produced from the defence side nor his injuries were got proved. The suggestion given to P.W. 1 Nathoo remained only as a bald suggestion without their being any proof in support thereof. Learned counsel for the appellants vehemently argued that even as per the prosecution case when the Investigating Officer reached the spot and got opened the house of Ram Bharose, Om Prakash was found lying injured in an unconscious state on a cot and one SBBL gun with a live cartridge fitted in its barrel were also found under the cot and one more cartridge was found in the pocket of the shirt of Om Prakash and this circumstance supports the defence suggestion that Om Prakash and others had come to commit dacoity in the house of the accused persons. It has come in the statement of P.W. 3 Sujat All that at the time of the incident Om Prakash was not possessing gun or any other weapon and he was empty handed and after his assault Om Prakash was taken to the house of accused person by them. Therefore, if the gun and catridge were planted by the accused persons, the veracity of the prosecution case cannot be doubted merely from the recovery of the gun and cartridge from the room where Om Prakash had been kept and locked. It has also come in the evidence of the Investigating Officer that he had examined the gun before the same was taken into possession and it was found not to have been used recently nor any empty cartridge was found at the place of incident. The crossversion therefore, as suggested to P.W. 1 has neither been proved by any defence evidence nor there are any such circumstances appearing in the prosecution case which may create any doubt in our mind.
10. We hasten to add that we are mindful of the principle of law that prosecution must stand on its own legs and no advantage can be availed of by the prosecution on the weaknesses of defence. Therefore, the mere fact that suggestion put to P.W. 1 Nathoo in the form of cross-version has not been substantiated will not be conclusive to accept the prosecution case and keeping this principle in view we have thoroughly examined the evidence on record and in our considered view the prosecution case that accused persons forming an unlawful assembly first assaulted the first informant P.W. 1 Nathoo with Lathis and when his wife Jalpa and Om Prakash, his cousin brother intervened, they were also assaulted with Lathis, is proved beyond any reasonable doubts. The injury of Smt. Jalpa was grievous while Om Prakash went into coma on receiving the injuries and later on died due to those injuries.
11. The next question which arises for consideration in this appeal is whether for the death of Om Prakash, appellants could be convicted under Section 302 read with Section 149, IPC.
12. It was submitted on behalf of the appellants that even if it was assumed that the story as given out by the eye-witnesses was true, the appellants could not be held guilty and convicted under Section 302, IPC with the aid of Section 149, IPC in respect of the charge relating to the death of Om Prakash. It was argued that from the injury report Ex. Ka. 2 it was clear that only three injuries on head were inflicted on Om Prakash by as many as seven accused persons and it is not known as to who out of the seven appellants actually caused those head injuries and according to the learned counsel for the appellants, the offences would, therefore, fall under Section 325 read with Section 149 IPC only.
13. As defined in Section 141, IPC an assembly of five or more persons is designated as an 'unlawful assembly', if the common object of the persons composing that assembly is to do any act or acts stated in clauses firstly, secondly, thirdly, fourthly and fifthly of that section. An assembly, as the explanation to the section says which was not unlawful when it assembled may subsequently become an unlawful assembly. Whoever being aware of the facts which render any assembly an unlawful assembly intentionally joins that assembly or continues in it, is said to be a member of that unlawful assembly. Therefore, whenever five or more persons meet together to support each other in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence then even though they ultimately depart without doing anything whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence. Of course, the alarm must not be merely such as would frighten any foolish or timid person but must be such as would alarm persons of reasonable firmness and courage. The common object of an unlawful assembly can be gathered from the nature of the assembly, the arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.
14. From the evidence on record it is evident that in the morning of 2-5-78 the fodder belonging to P.W. 1 Nathoo and kept in his chhapper was put to fine and Nathoo suspected the hands of accused Babu Ram in the same. He called Babu Ram by name which infuriated Babu Ram and he called other accused persons and then decided to assault Nathoo whereupon all the accused persons came there and started assaulting Nathoo P.W. 1 and inflicted as many as four injuries on his person. It cannot, therefore, be disputed that all the appellants formed an unlawful assembly within the meaning of Section 141, IPC. It has also come in evidence that when Smt. Jalpa and Om Prakash intervened, they were also assaulted by Lathis. It may be mentioned here that out of the four injuries sustained by Nathoo two were on his head region. On Prakash and Smt. Jalpa were also unarmed and as many as 15 injuries including 3 or 4 on the head of Om Prakash were caused by the accused persons. It is further in the evidence that Om Prakash was given a beating at the place of incident and was then removed to the Chabutara of the accused. There is no evidence that he was further assaulted at the Chabutara. There is also no evidence that Om Prakash was given beating even after he had fallen down. Therefore, on the analysis of the medical evidence and circumstances appearing in the case and having regard to the fact that only Lathis were used in the incident, our considered view is that, the prosecution has been successful in proving that accused persons formed an unlawful assembly whose common object initially was to cause grievous injuries to Nathoo and Smt. Jalpa but during the course of incident, the common object developed for causing such injuries on Om Prakash which the members of the unlawful assembly knew or had reasons to believe that they might result in the death of Om Prakash. It was not necessary for the prosecution to prove positively as to who were the authors of the injuries sustained by the deceased on his head. The vicarious liability of the members of the unlawful assembly extended to the acts done in pursuance of the common object of the unlawful assembly or to such offences as the members of 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 141, IPC, the question that a particular member of that assembly 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 as the members of the assembly knew likely to be committed in prosecution of the common object. In the present case when Om Prakash came unarmed to the rescue of Nathoo, he was assaulted by all the accused persons and as many as 15 injuries were caused on his person. The weapon used were Lathis but they were also inflicted on various parts of the body and in fact at least three or four injuries were inflicted on the head region resulting fracture of parietal and temporal bones and the cause of death was head injuries. Therefore, it can be safely inferred that the appellants as members of unlawful assembly knew that death was the likely result of the injuries caused to Om Prakash. In this view of the matter, the appellants are to be held guilty under Section 304, Part-II read with Section 149, IPC for causing the death of Om Prakash instead of Section 302 read with 149, IPC; to this extent their conviction under Section 302 read with 149, IPC is altered to under Section 304, Part II read with Section 149, IPC. The conviction of the appellants under Sections 323 and 325 read with Section 149, IPC for causing injuries to Nathoo and Smt. Jalpa respectively needs no modification.
15. Coming on the question of sentence, we find that the incident had occurred 21 years ago and most of the appellants are now aged between 55-60 years and with the passage of time their socio-economic conditions must have undergone radical changes during this long interval. Looking to these facts and having regard to the circumstances in which the crime was committed where the appellants were unnecessarily suspected of having set fire to the fodder of Nathoo, to the kind of weapons used (ordinary Lathis in this case), the number and nature of injuries caused, the antecedents of the accused persons etc. it would not be reasonable to award severe punishment to the appellants and in our opinion the ends of justice would be sufficiently be met if each of the appellants is sentenced to three years R.I. under Section 304, Part-II read with Section 149, IPC and to pay a fine of Rs. 5000/- each. Rest of the sentences as awarded by the trial Court shall remain same and all the sentences shall run concurrently. Out of the fine so deposited or realized, half of the amount shall be paid to the legal heirs of the deceased Om Prakash. In case of default in payment of fine, each of the appellants shall further undergo rigorous imprisonment for one year. With the above modification the order of the learned Sessions Judge convicting and sentencing the appellants is upheld. The appellants are on bail. They shall be taken into custody forthwith to serve out the sentences as modified by this Court. Both the appeals are accordingly decided.