B.C. Varma, J.
1. In all five persons were prosecuted and have since been convicted under Sections 148 and 302, Penal Code, for forming an unlawful assembly with common object to assault and for causing the death of Rambharos. This appeal was filed by all of them against that conviction. However, during the pendency of this appeal, accused Jagdish and Jai Narayan, both sons of Somaji died/There appeal thus abates.
2. In village Sontalai, Police Station Handiya, in Harda district, there exists long standing fued between members of Jat community on one hand and Vishnoi on the other. In the year 1961, one Jagannath Vishnoi was killed. Rambharos (the deceased) was an accused in that case. Since then, members of the two communities had always been hostile to each other. The incident which has given rise to this appeal is dated 16-8-1982. Two persons -- Rambharos of the Jat Community and Sona of the Vishnoi community -- were killed. The appellants have been convicted for causing death of Rambharos. The prosecution alleged that at about 11.00 a.m., while Rambharos followed by his nephew Rewaram(P. W. 4) was returning home from his field, he was engaged in talks by appellant Badri. This gave an opportunity to Sona and Jagdish (both dead) to pounce on Rambharos and assault him. When Rambharos, in a bid to escape, ran away a few paces, the other three accused, viz., Teja Jainarayan and Bhika, rushed at him from the opposite direction duly armed with deadly weapons like ballam etc. All of them mercilessly beat Rambharos. Rambharos received multiple injuries practically on all parts of his body and died instantaneously. Rewaram rushed to inform his father Harnarayan, both of them came to the spot and claimed to have witnessed the assault on Rambharos. The accused then ran away firing in air. Harnarayan then made a written report (Ex. P/1) to the police. This was scribed by Rewaram. Usual investigation followed. Appellants were taken into custody and axe, ballam and one knife found stuck at the back of the deceased, were seized and got examined at Forensic Science Laboratory. On a few of them only blood-stains were found but in absence of the report of Serologist the source could not be ascertained. Rambharos's dead body was subjected to post mortem examination, which was performed by Dr. Jain (PW. 10). His post-mortem report is Ex. P/15. As many as 51 injuries were found. The death was opined to be homicidal.
3. The learned Additional Sessions Judge framed charges against the five accused persons under Section 148 and also under Section 302 Indian Penal Code. It is noteworthy that no charge under Section 149 Indian Penal Code was framed. At the trial, besides Harnarayan and his son Rewaram, one Ramavtar of the adjoining village Bichola, within jurisdiction of the same police station Handiya, were examined as eye-witnesses. The trial Court rejected the testimony of Harnarayan as an eye-witness. He, however, accepted the version of Ramavtar and found it to be duly corroborated by the medical evidence. It rejected the plea of alibi raised by accused/ appellants Badri and Bhikaji. Consequently, the appellants have been held guilty and convicted as aforesaid. Each of them has been sentenced to imprisonment for life for offence of murder and also for one year's rigorous imprisonment for offence under Section 148 Indian Penal Code. The sentences are to run concurrently.
4. That Rambharos died a homicidal death is no more in dispute. It also cannot be doubted that his death resulted from the injuries received by him. Dr. Jain who performed the autopsy, found 51 injuries on the person of Rambharos. These injuries included lacerated wounds, incised wounds as also perforating injuries. The head was smashed. Compound fractures of the parietal and occipital bones were found. The injuries, according to him, could be caused by axe, pharsa and knife. The head injuries were sufficient to cause death. He has, however, stated in examination-in-chief that the beating even continued ten to twenty minutes after death. His opinion is: 'the head blow itself was sufficient to cause death but injury to every vital organ could lead to death at spot within minutes.'
5. Shri Rajendra Singh, for the appellants, was at pains to argue that the prosecution has failed beyond reasonable doubts to prove that the author of the injuries found on the deceased Rambharos were the five accused persons who are the present appellants. The criticism has been that the prosecution has not placed the true picture of the incident, that disinterested witnesses, though available, have been kept back, that possibility of false implication due to enmity cannot be ruled out, that Ramavtar (PW 3) is a got up witness, being always available to assist the police as a witness against any one and that the trial Court wrongly rejected the plea of alibi by appellants Badri and Bhikaji.
6. The trial Court's finding that there had been an unlawful assembly and that the appellants were its members has been attacked on the ground that the testimonies of witnesses have not been properly appreciated in the light of circumstances appearing in the case. It has also been argued that the plea of alibi raised by appellants Bhikaji and Badri has been wrongly rejected. In order to establish the formation of unlawful assembly, the prosecution placed reliance upon the testimony of Harnarayan (PW 2), Ramavtar (P. W. 3) and Rewaram (P. W. 4). The trial Court has rejected the testimony of Harnarayan (P. W. 2) when he claimed to have seen the incident. Harnarayan deposed that on being informed by Rewaram (P. W. 4), they both went to the spot and saw the mar-pit. He has further deposed that on seeing them the appellants ran away after firing in the air. This witness cannot be relied upon when he states that he had seen the assault himself. Apart from Harnarayan (P. W. 2), however, we have the evidence of Rewaram (P. W. 4). This witness is the nephew of the deceased and deposed that on the date of incident he was coming back to his village after agricultural operations, the deceased walking in front of him. He deposed that appellant Badri met the deceased on the way and the two were engaged in some conversation. The witness further deposed that it is then that Soma and appellant Jagdish (since deceased) appeared on the spot with tangiyas in their hands. Badri pulled out a knife and then they assaulted the deceased. He ran away to inform his father Harnarayan (P. W. 2) and Kailash. He also deposed that he came back on the spot with his father Harnarayan. According to this witness the beating still continued. This witness was subjected to a searching cross-examination. Some contradictions were brought about in his deposition with the statement made by him under Section 161 Criminal Procedure Code, vide Ex. B/4. The contradictions so brought about, in our opinion, do not render his testimony unreliable. It is true that like Harnarayan, this witness also deposed that even on return he saw the appellants beating the deceased. In the samesequal, the witness also deposed that the appellants ran away towards the side of tank firing in the air. From this all, we hold that the witness means to say is that when he returned with his father on the spot, the appellants were still there, the deceased lying down. It is thereafter that they left. It is worth mentioning that he was not cross-examined relating to details of the assault by any of the appellants after his arrival back on the spot. So that as it may. The witness firmly establishes that all the five appellants were on the spot duly armed and at least two of them viz., Badri and Jagdish, caused the beating.
7. Version of Rewaram (P. W. 4) is sought to be corroborated by that of Ramavtar (P. W. 3). He has deposed to have seen the entire incident and according to him it is all the five appellants who caused beating with different weapons. It is true that he is a resident of a different village. It is equally true that according to him he remained at the shop for about half an hour to make some purchases as the shop was closed. However, merely for this he cannot be held to be unreliable. It is not unnatural for him to have come to village Sontalai where the incident took place from a different nearby village and once having so come it was quite probable for him to have waited for the shop to be opened to enable him to make purchase. It was also not necessary that his name should have figured in the first information report. The first information report in this case was hurriedly taken down on dictation from Harnarayan (P. W. 2). This was on information given to him by Rewaram (P. W. 4). We have seen that according to Rewaram, he ran away to inform Harnarayan about the incident soon after it began and came back with Harnarayan only when beating was practically finished. Thereafter their attention was entirely focused on the deceased. There was hardly any time to note the presence of those who had witnessed the incident. Under these circumstances the non-mention of the name of this witness in the first information report appears to us to be wholly inconsequential. It was also suggested that this witness was available in the village on the date of incident but his statement was recorded by the police on the next day. The witness explained that he went back to his village and came back again in the morning when his statement was recorded by the police. This witness was cross-examined to say that he quite often was listed as prosecution witness in different cases and has also deposed in a few. We do not know whether in all such cases where he figured as witness he was ever disbelieved or his general conduct was adversely criticised. Nothing, therefore, turns on that. We have ourselves gone through the entire evidence and we find that reliance can be well placed upon his testimony. We are also not prepared to brand this witness Ramavtar as merely a chance witness for he had come to make purchases in this village in ordinary course.
8. The trial Court in paragraphs 18 and 19 of the impugned judgment has considered the plea of alibi raised by appellants Badri and Bhikaii. Bhikaji claimed to be in some place by name, Birla in Jodhpur district and asserted that on the relevant date he was admitted in the hospital for operation. Dr. B. S. Dandetha (D. W. 1) who is alleged to have treated Bhikaji in the hospital could not make any positive statement as to the identity of the person whom he treated there. The other witness relied upon to prove his presence at Birla in Jodhpur has been rightly rejected by the trial Court. Badri also seems to be raising a false plea as to his being in a running train at the time when the incident took place. Since we agree with the appreciation of the evidence adduced by Bhikaji and Badri to establish his plea of alibi, we need not discuss it over again. That plea has been rightly rejected.
From the above, we have no hesitation in affirming the finding of the trial Court that all the appellants including the deceased Jagdish and Jainarayan formed an unlawful assembly duly armed with deadly weapons.
9. The common object of the unlawful assembly formed by the appellants has been found to cause injuries. The specific charge against the appellants was also one under Section 148 Indian Penal Code. The common object specified in the charge is 'assaulting Rambharos son of Laxminarayan.' Against each of them a further charge to the following effect has been framed :
'Secondly you on the same date, time and place did commit murder of the said Rambharos son of Laxminarayan by intentionally causing his death and thereby....'
Charge further reads :
'...and thereby committed offence under Sections 148 and 302 of the Indian Penal Code and with the cognizance of this Court.'
The evidence in the case, which we have discussed above and have accepted, indicates that the appellants were armed with deadly weapons. Badri engaged the deceased in talk and caused injuries by knife while the others inflicted injuries on the deceased by axe and Ballam. They caused injuries practically simultaneously. It can, therefore, be safely inferred that the common object of the assembly was to cause injuries. The trial Court has reached such a finding which we affirm. This finding is sufficient to uphold the conviction of the appellants under Section 148 Indian Penal Code.
10. There can be no doubt in view of the evidence of Dr. Jain (P. W. 10) that it is these injuries sustained by deceased Rambharos which resulted in his death. The learned Government Advocate, duly assisted by Shri A. D. Deoras, therefore, submitted that although no specific charge has been framed against the appellants under Section 149 Indian Penal Code, still they must be held guilty under Section 149 and, consequently, under Section 302, Indian Penal Code. It was submitted that the charge need not be amended because as the charge stands, all the appellants well knew that they were being charged for forming an unlawful assembly and for committing murder of Rambharos. It is now well settled that absence of any specific charge may not affect the result of the trial unless it can be demonstrated by the party adversely affected that non-framing of any specific charge has caused prejudice to that party. Before a conviction can be successfully assailed because of want of a specific charge prejudice will have to be demonstrated. The nature of the charge framed also assumes importance. Thus where a charge against two accused was framed under Section 302, read with Section 34 Indian Penal Code but no separate charge was framed under Section 302 against either of them and after trial only one was convicted under Section 302 Indian Penal Code while the other was acquitted, it was held by the Supreme Court in Willie (William) Glaney v. State of M. P., AIR 1956 SC 116: (1956 Cri LJ 291), that having regard to the nature of charge framed the omission to frame a separate charge under Section 302 Indian Penal Code was only a curable irregularity which in the absence of pre judice could not affect the legality of conviction under Section 302, Indian Penal Code. So also in Rawalpenda Venkalu v. State of Hyderabad, AIR 1956 SC 171 , (1956 Cri LJ 338), where charge framed was only under Section 302 Penal Code and Section 34 of the Code was not added, it was held that in view of the charge-sheet the accused had noticed that they were being charged with the offence of committing murder in pursuance of their common intention to put an end to the life because the trial Judge in explaining the charge to them stated 'you are charged of the offence that you with the assistance of other present accused with common intention..... committed murder.'
The omission to mention Section 34 Penal Code in the charge under the circumstances was held only of academic significance. Reference may also be made to another decision of the Supreme Court in the same volume, at page 731 (Chikkarange Gowda v. State of Mysore, AIR 1956 SC 731: (1956 Cri LJ 1365)). In that case, the charge showed the common object of the unlawful assembly was only to administer chastisement to the deceased. The charge did not mention that the members of the unlawful assembly knew that the deceased was likely to be killed in prosecution of the common object. During the incident the victim was killed. It was held that members who did not cause any fatal injury could not be held guilty under Section 302, read with Section 149 or Section 34 Indian Penal Code. In Thakur Shah v. Emperor, AIR 1943 PC 192 which has been relied upon by the learned counsel appearing for the State and the complainant, it was pointed out that the power to amend the charge must be used with discretion so as not to prejudice the accused. It was further pointed out that no course should be taken by reason of which the accused may be prejudiced either because he is not fully aware of the charge made or was not given full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred. Reference may also be made to a Division Bench case of Orissa High Court, in Pitamber Dehuns v. State of Orissa, 1985 Cri LJ 424. In that case, the accused were charged under Section 148 Penal Code being members of unlawful assembly. They were also charged under Section 302, read with Section 34 Penal Code for committing murder of deceased by causing his death intentionally in furtherance of their common intention.
They were convicted under Section 302/149, although all of them were not specifically charged for that. Conviction under Section 302/149 Penal Code was upheld because it was found that the accused knew that the gravamen of the charge was that they formed an unlawful assembly the common object of which was to kill the deceased and in prosecution of that common object all of them armed with weapons assaulted the deceased as a result of which he died. It was found that no prejudice was caused to those who were so convicted.
11. In the present case, we have quoted the charges framed above. While each of the accused has been charged separately under Section 302 Penal Code for committing murder, the common object of the assembly was only to assault Rambharos. True it is that each of the accused was separately charged under Section 302 Penal Code, but then in that event the accused was only required to separately defend himself against the charge by showing that either he did not cause any injury or even if he inflicted any, he did not intentionally do so or did not have the knowledge that the injury would result in death. He was not required to defend the specific charge of common object to kill. The first essential element of Section 149 is the commission of an offence by any member of an unlawful assembly; the second essential part is that the offence must be comitted 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. Thus, before persons are held guilty under Section 149 vicariously for the act of another member of the unlawful assembly, the charge must bring out that precise common intention. In any case, from the entire reading of the charge, particular common intention must at least be inferred and made out although may not have been expressly mentioned. When the charge does not mention that the common object of the members of the unlawful assembly was to kill nor can it be made out from the charge that the members knew that the deceased was likely to be killed in prosecution of the common intention/object, the conviction under Section 302, read with Section 149, Indian Penal Code cannot be maintained. This is what has precisely been held in Chikkarange Gowda's case, AIR 1956 SC 731 : (1956 Cri LJ 1365) (supra). In that case also the charge did not mention nor could it be made out from the nature of the charge that the common intention of the unlawful assembly was to kill or that the members knew that such was the common intention. Instead, as the charge specifically mentioned the common object to be the chastisement, it was held that the charge gave no notice to the accused that they had a separate common intention of killing the deceased. If, however, particular injury or injuries found on the deceased and sufficient in the ordinary course of nature to cause death can be attributed to any particular accused, he will have to be held guilty of offence punishable under Section 302 without the aid of Section 149 Indian Penal Code. If the finding on evidence is that the injuries on the deceased were cumulatively sufficient to cause death, it will be necessary to hold each of the accused guilty under Section 302, read with Section 149, Indian Penal Code to find that the common object of the unlawful assembly was to cause death or that the members of the unlawful assembly knew it to be likely that an offence under Section 302 Indian Penal Code would be committed in prosecution of the common object. Such is the ratio of the decision of the Supreme Court in Sarwan Singh v. State of Punjab, AIR 1978 SC 1525 : (1978 Cri LJ 1598). In that case, on assessment of evidence, it was held that the common object of the assembly was not to cause such bodily injury which would be sufficient in the ordinary course of nature to cause death but the common intention was to cause bodily injury as was likely to cause death. The accused were, therefore, held guilty under Section 304(1), read with Section 149, Penal Code.
12. In the instant case, the precise charge against the appellants was that the common object of the assembly was to cause assault. The trial Court has also found so. We have earlier affirmed that finding. That being so, none of the accused/appellants can be held guilty under Section 302, read with Section 149, Penal Code. All the same, as the evidence of Dr. Jain (P. W. 10) shows that the deceased had multiple injuries ante-mortem and perforating injuries which could be caused by sharp edged weapon like Kulhari, Pharsa and knife, and that the injuries resulted in fractures of parietal bones, all the appellants must be held guilty under Section 326, read with Section 148, Indian Penal Code.
13. It was argued on behalf of the respondent/State that as each of the accused/ appellants was charged under Section 302, Indian Penal Code, each of them can still be held guilty of that offence if the injuries inflicted resulted in death. There can be no such quarrel with this proposition. Even at the cost of repetition, we may again refer to the decision in Sarwan Singh's case AIR 1978 SC 1525 : (1978 Cri LJ 1598) (supra) saying that if the injuries that are sufficient in the ordinary course of nature to cause death are traced to a particular accused, he will be guilty of an offence under Section 302, without the aid of Section 149, Indian Penal Code. Dr. Jain (P. W. 10) has in para 5 of his deposition stated that the head blow itself was sufficient to cause death but the injury to every vital organ could lead to death at the spot within a minute. At the same time, in paragraph 4, the witness opined that 'the deceased was probably encircled by number of persons who probably gave the blow over the skull by hard and blunt object and rest injured him by heavy sharp cutting object like Kulhari or Pharsa and Knife or Chhura perforating the deceased from all sides till the last breath or even 10 to 20 minutes after the death.' (underlining is ours). True it is that in the opening sentence of para 4 of his deposition, the witness stated that all the injuries were ante-mortem. This inconsistency has not been explained by the prosecution. In cross-examination, he deposed that third and sixth injuries which are lacerated wounds on the forehead and the left parietal are respectiely, could cause instantaneous death. In this state of deposition of Dr. Jain, it was incumbent upon the prosecution to have ascertained from him as to which of the injuries found on the deceased were postmortem caused within ten minutes of the victim's death. The prosecution, instead of making this factor clear, has left us in doubt as to any specific injury on the deceased being ante-mortem or post-mortem. It will, therefore, be difficult to say with any amount of definiteness as to the particular injury which resulted in death was ante-mortem or post- mortem. We may also mention that Dr. Jain opined in para 6 of his deposition that the cause of death was shock due to combined effect of all injuries. Any of the appellants, therefore, can be convicted under Section 302, Indian Penal Code only if from the evidence any particular injury which could have resulted in death, can be attributed to him. The evidence of Harnarayan (P. W. 2) throws no light on this aspect. Ramavtar (P. W. 3) deposed that while Jagdish and deceased Somaji assaulted with tangiya Bhikaji and Jainarayan as also Teja assaulted with Ballam, and Badri used knife. From para 6 of the deposition of this witness, it is clear that he could not assign any particular injury found on the deceased to any of the accused.
(Matter in vernacular omitted -- Ed.)
It is only Rewaram (P. W. 4) who deposed that it is (deceased) appellant Jagdish who dealt a Tangiya blow on the head of the deceased. He further deposed that appellants Bhika, Teja and Jainarayan caused Ballam blows on the stomach and thigh of the deceased and Badri used the knife. On this evidence Jagdish could have been held guilty under Section 302 Indian Penal Code for causing head injury resulting in death. Jagdish's appeal, however, has abated because of his death. Jainarayan has also died. Since there is no evidence that Ballam injuries on the stomach could individually cause death and since the evidence of Dr. Jain (P. W. 10) is that the injuries were cumulatively sufficient to cause death and only injuries on head could by themselves cause death, even appellants Bhika and Teja cannot be said to have caused injuries which themselves could have resulted in death of Rambharos. They, therefore, cannot be held guilty under Section 302, Indian Penal Code on the strength of evidence on record. We would, therefore, hold Teja and Bhika as also Badri guilty only under Section 326, read with Section 148, Indian Penal Code and not under Section 302 Ibid.
14. For the aforesaid reasons, the appeal succeeds and is partly allowed. Conviction and sentence of the appellants Teja, Badri and Bhikaji under Section 302, Indian Penal Code are set aside. Instead, they are convicted, under Section 326, read with Section 148, Indian Penal Code and sentenced to rigorous imprisonment for five years with fine of Rs. 1,000/- each or, in default of payment of fine, to further imprisonment for six months. Their conviction under Section 148 Indian Penal Code and one year's rigorous imprisonment on that count are upheld. Both the sentences shall run concurrently.