Judgment:
A.K. Gohil, J.
1. This appeal is directed against judgment dated 2-4-92 passed by II Additional Sessions Judge, Shivpuri in Sessions Trial No. 157/89 whereby appellants are convicted and sentenced under Sections 148, 302 read with Sections 149, 452 and 325 read with Section 149, IPC for one year R.I., life imprisonment, two years' R.I. and two years' R.I. respectively.
2. The allegation against the appellants is that they formed an unlawful assembly in Village Nandpur with a common object of committing the murder of deceased Badri and causing injuries to Goura (P.W. 5) and in pursuance of the said common object, injuries were caused to them. Ultimately Badri died (hereinafter referred to as deceased only) and Goura (P.W. 5) sustained injuries.
3. In nutshell, prosecution story as unfolded during trial is that on 9-9-89 at about 12 noon, two cows belonging to deceased entered into the field of appellants Ramjilal and Badri and damaged the crop of sesame and groundnut which was standing in the field. On this, Badri started taking the cows to cattle pond. Deceased told him not to take the cows to the cattle pond and he is willing to pay the loss. On this, there was wordy quarrel between them. Deceased assaulted by Lathi on the head of accused Badri. He received injuries in the temporal region. Deceased ran away from the spot. Thereafter, appellant Ramswaroop armed with Luhangi and appellants Ramjilal, Badri, Chintu, Roshan and Brijmohan armed with Lathis came to the door deceased and mutual abuses were exchanged between the parties. At the door of deceased, Vijay Singh Kushwaha, Buddha Amarsingh and Lakhu were also sitting. Appellant Chintu dragged the deceased from the 'Paur' and thereafter he was beaten by all. Deceased received injuries on his right and left chest and also suffered injuries on other parts of his body. During the incident Goura (P.W. 5) is said to have rushed to save the deceased who was her son, whereupon accused Badri gave a lathi blow on her right hand, as a consequence of which Goura (P.W. 5) also sustained injuries. Deceased alongwith his brother lodged FIR (Ex. P-1) at Police Chowki Amol Patha on which crime was registered and matter was investigated. Deceased who was injured at that time was referred to hospital for medical examination and treatment but he died in the way. Injured Goura (P.W. 5) was also referred for medical examination. Dead body was also referred for post mortem. Spot map was prepared. Accused persons were arrested, memos under Section 27 of the Evidence Act were prepared, weapons were seized at the instance of the appellants and charge-sheet was filed.
4. During trial, appellants abjured their guilt. Their defence was that they have not committed any offence and they have been falsely implicated. They have also taken a defence that it was the deceased who gave lathi blow to appellant Badri who was taking both the cows to cattle pond. Deceased ran away from the spot and when he was approaching his house, he himself fell down on 'Dehri' and received injuries. Badri had also received serious injury. Report of the incident was also lodged at Police Station Amola. He was also medically examined. In defence they have also examined one Buddharam (D.W. 1).
5. After considering the evidence on record, Trial Court found that the prosecution has successfully proved the charges against the appellants beyond reasonable doubt and convicted and sentenced them as aforesaid against which they have preferred this appeal.
6. Shri Gupta, learned Senior Counsel appearing for appellants submitted that there is no case that the appellants formed an unlawful assembly with a common object to cause the murder of deceased. He submitted that all the independent witnesses and even the highly interested witnesses have admitted that the cows of the deceased entered into the field of accused Badri and caused damages to the crop and it was the deceased who caused a lathi injury on the body of accused Badri and thereafter the deceased ran away from the spot and fell down on the 'Dehri' of his own house. In any case the prosecution story is belied by medical evidence. He submitted that the defence version is more reasonable and probable and is corroborated by surrounding circumstances and medical evidence. He further submitted that prosecution witnesses are highly interested and partisan. Even if the injury which is said to have been caused to the deceased is caused in the right of exercise of self defence. Mother of the deceased has not implicated three accused persons at all. There is no medical evidence that the injuries were sufficient to cause death in the ordinary course of nature. Report was not lodged by the deceased as it could not be lodged by him because the deceased had fallen unconscious on spot. Statement of Narain (P.W. 11) who is said to be an eye-witness was recorded after fourteen days of the incident and there is no explanation for this delay. There is no compliance of the provisions of Section 157 of the Code of Criminal Procedure. Intimation report was sent after three days and prayed for acquittal of the appellants. He submitted that during the pendency of this appeal appellant No. 3 Badri s/o Ramlal has expired therefore appeal against him stands abated.
7. In reply Shri C.S. Dixit, appearing for respondent/State supported the judgment of the Trial Court and prayed for dismissal of the appeal.
8. There is no dispute about the fact that appellant Badri has expired during the pendency of this appeal and his name has been deleted from the array of memo of appeal vide order of this Court dated 5-8-02.
9. FIR (Ex. P-1) was lodged by the deceased himself. He has stated in the FIR that the dispute took place because his two cows had entered into the field of appellants Ramjilal and Badri and had damaged the crop. Thereafter, Ramswaroop armed with Luhangi, Ramjilal, Badri, Chintu, Roshan armed with lathi and Brijmohan bare handed came at the door of his house where Vijay Singh, Buddha Kushwaha, Amar Singh Kushwaha and Lakhu were sitting and talking. Ramswaroop, Ramjilal and Badri caught hold of him in the 'Paur' and brought him outside the 'Paur'. Ramswaroop assaulted by Luhangi on his chest near left rib. Brijmohan slapped him on his cheeks. Ramjilal assaulted by lathi on left side of his neck. Badri also assaulted by lathi on his right cheek. Chintu also assaulted by Lathi on the left side of the ribs and Roshan assaulted by lathi on left side of his neck. When his mother Goura (P.W. 5) came to save him, Badri assaulted her by lathi on her right hand. The incident took place at around 2 PM. Report of the same was lodged at 17.45 hours. The distance of police station from the place of incident was around ten kilometers. Statement of the deceased under Section 161 of the Code of Criminal Procedure was also recorded by Goverdhan Soni (P.W. 13) which is Ex. P-28. Oral dying declaration was also made by the deceased to Birkhu (P.W. 7). He has stated that after receiving information from Parvat Singh about quarrel, he had come at the house of the deceased. At that time, wife of the deceased was giving heat to the chest of deceased. He asked the deceased and thereafter the deceased narrated the story and the assault made by the appellants to him. Deceased could not be medically examined because he died in the way while he was being taken to the hospital after lodging of FIR, memo for his medical examination inquest report (Ex. P-25) was prepared by Goverdhan Soni (P.W. 13). In these documents, four injuries have been mentioned. One on the ribs, another on the left side of neck and two other on both the cheeks. Dr. S.P. Jain (P.W. 4) had performed the post mortem of the dead body and found the following injuries on the body of the deceased :-
(1) One contusion over left Pectoral region extending upto axilla of size 8 cm x 4cm.
(2) One abrasion on right side of chest lower part of size 5 cm x 1 cm.
On opening of chest, fractures were found on the 4th, 5th, 6th and 7th rib. Pleura was also found torn. The middle and upper part of the left lung was also found torn. About one liter of blood had collected in pleura cavity. Both the chambers were empty. Injuries were caused by hard and blunt object within twenty four hours. His examination report is Ex. P-7. In the re- examination he has submitted that the injuries mentioned in the post mortem report (Ex. P-7) were sufficient to cause death in the ordinary course of nature.
10. Goura (P.W. 5) is the mother of the deceased. As per her statement, she was present on spot. She had seen the incident and she also came to save her son and she also received injuries. She is aged about seventy years. She was also medically examined by Dr. R.K. Goyal (P.W. 14). As per his report, he had seen two contusions. One of size 3 cm x 2 cm on the middle of right forearm, above this injury, there was a lacerated wound of size 1 cm x 1/2 cms. Swelling was also there and the same was paining on touching. The other contusion was on the upper side of left forearm of size 1 cm x 1 cm. For injury No. 1 X-ray examination was advised. Injury No. 2 was found simple in nature. Both the injuries were caused by some hard and blunt object. Ramkishan (P.W. 10) is the witness of inquest report as well as notice (Ex. P-24) which was issued to him for preparation of the same.
11. Apart from the aforesaid evidence of dying declaration in the form of FIR, statement under Section 161 of the Code of Criminal Procedure as well as oral dying declaration of deceased to Birkhu (P.W. 7) are also available on record. He has also supported the prosecution evidence. Lakkhu (P.W. 6) was declared hostile but in the cross-examination he has admitted that he had seen the injuries on the body of the deceased.
12. Narayan (P.W. 11) is the son of the deceased. He is also the eye-witness of the incident. He had seen the incident and he has narrated that Ramswaroop was carrying Luhangi, Badri, Ramjilal and other appellants were carrying Lathi in their hands and they caused injury to his father and also to his mother and he has supported the prosecution case but his statement was recorded after fourteen days. No reasonable explanation has been furnished, therefore, his testimony is not reliable. Ramprakash Tiwari (P.W. 1) is the Head Constable who was posted at Police Station Amola. He had received the copy of FIR (Ex. P-1) which was recorded at Police Chowki Amola Patha as Ex. P-2 and crime was registered. Ex P-3-C, copy of the FIR was also forwarded to the Magistrate by him. Its entry was made in the Dak Book (Ex. P-4) and receipt from the Court was also obtained in the Dak Book (Ex. P/4-C). Constable Dayaram (P.W. 2) had brought the FIR (Ex. P-1) from Police Chowki Amola Patha to Thana Amola. Khurshid Ahmad (P.W. 3) is the Patwari who had prepared the spot map (Ex. P-6). Vijay Singh (P.W. 8) was cited as an eye-witness and was also the witness of spot map (Ex. P-10) and seizure memos (Exs. P-11, P-12, P-13, P-14 and P-15) but he has not supported the prosecution and has said that his signatures were obtained under pressure and has denied the fact of recovery in his presence. Anoop Singh (P.W. 9) is the witness of arrest memos (Exs. P-17, P-18 and P- 19). He was also declared hostile. Ramkishan (P.W. 10) is the witness of Safina Lash (Ex. P-24). Head Constable Vishnuram Joshi (P.W. 12) is the witness of issuance of Safina form (Ex. P-24), Panchayatnama Lash (Ex. P-25) and memo of post mortem (Ex. P-8). Head Constable Goverdhan Soni (P.W. 13) had recorded the FIR (Ex. P-1) which was lodged by the deceased, prepared the memo for his medical examination (Ex. P-26), referred the injured for medical examination and had also prepared memo (Ex. P-27) for examination of the injuries of Goura (P.W. 5). He had also recorded statement of the deceased under Section 161 of the Code of Criminal procedure which is Ex. P-28. Deceased himself had told him the names of the assailants and the weapon which they were carrying and the injuries which were caused to him. He has proved the aforesaid documents. Sub Inspector Lallasingh Kushwaha (P.W. 15) had investigated the matter later on and he had visited the spot on 10-9-89 and prepared the spot map at the instance of Vijay Singh. He had also recorded the statement of witnesses and arrested the accused persons and thereafter, at their instance, weapons were seized and memos and seizure memos were also prepared and has also been proved by him.
13. Dr. R.K. Goyal (P.W. 14) had also examined one Badri Prasad s/o Ramlal who was brought by Head Constable numbered 784 Abdul Hafiz from Police Station Amola and had found one contusion of size 1 cm x 1 cm on the left thumb thenar eminence and one lacerated wound of size 8 cm x 1/2 cm skin deep over the left parietal region longitudinally placed 4 cm left lateral to median plane. He had also found one lacerated wound of size 4 cm x 1/2 cm bone deep over the right parietal region 2 cm left right lateral to the median plane, longitudinally placed. The injuries were caused by hard and blunt object. The injuries were simple in nature. Injury No. 1 was not self inflicted. Both the injuries were separate. Duration of the injuries was within twenty four hours.
14. Goura (P.W. 5) has admitted in her cross-examination that their cow had damaged the crop of Sesame and groundnut which was in the field of appellant Badri. When appellant Badri was trying to take the cows to cattle pond, her son, the deceased, had reached there and there was wordy quarrel between them. The incident took place opposite her house and the fields of the appellants are also situated opposite her house. The field belongs to Ramjilal and Badri. Ramjilal is the owner of the field and appellant Badri was his 'Bataidaar'. She has further admitted that on the field of Ramjilal, there was altercation between her son (deceased) and appellant Badri and the deceased had given a lathi blow to appellant Badri which he received in his temporal region. Badri and Ramswaroop have also lodged the report and when the deceased came back to his house, the appellants chased him upto his house and beat him. Though she-has stated that blood was oozing from the body of the deceased and his clothes were also stained with blood but this part of her statement is not found factually correct as no blood was oozing from his body.
15. From the prosecution evidence it is clear that the incident took place because of the act of the complainant party. Their cows had entered in the field of accused persons and damaged their crop and when they objected and were taking the cattle to the cattle pond, deceased himself assaulted appellant Badri. Therefore, it is clear that the quarrel took place because of the act and action of the complainant party. Naturally when the appellant Badri was assaulted and he received injury in his temporal region and the deceased ran away from the spot, all the appellants chased him and beat him in front of his house. Therefore, beating of the deceased was in reply and may be with a view to take revenge from him. The action on the part of the appellants may be a natural consequence to some extent as their own man Badri was beaten by the deceased for his no fault.
16. In the light of aforesaid evidence on record, if we consider the question of formation of unlawful assembly, it is clear that the appellants chased the deceased and came upto the door of the deceased carrying Luhangi and Lathis in their hands while as per FIR version, appellant Brijmohan came bare handed and they formed unlawful assembly, but it can not be said that the object of all the members of the unlawful assembly was to cause the death of the deceased as is apparent from the injuries received by the deceased. The deceased received one contusion and one abrasion on the chest. One is attributed to Ramswaroop and the other is attributed to Chintu. Though it is said that the other appellants were also present and appellant Brijmohan caused injuries on the cheeks of the deceased by his hands and Ramjilal gave lathi blow on the neck and Roshan also gave a lathi blow on the neck, but as per the post mortem report, the doctor has not found any injury on the cheeks or on neck of the deceased. Therefore, it can not be said that the object of all the members of the unlawful assembly was to commit murder of the deceased. There can be different objects of different members of the unlawful assembly and they all may not participate in the incident and may not incur any joint liability upon them. This question arose before the Apex Court in the case of Shambhu Nath v. State of Bihar : AIR1960SC725 and the Hon'ble Supreme Court has held that :-
6. Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done on prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. But '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 and as a consequence of this the effect of Section 149 of the Indian Penal Code maybe different on different members of the same unlawful assembly.
In the case of Shivalingappa Kallyanappa v. State of Karnataka : [1991]3SCR26 , the Supreme Court after considering the role assigned to the appellants and different intentions of different members of the unlawful assembly, has held as under :-.. It is established by the prosecution that A-1 to A-5 formed into an unlawful assembly variously armed and participated in the occurrence during which two deceased persons died and P.Ws. 2 to 4 received injuries. The next question is whether the common object of the unlawful assembly was to commit the murders. Whether there was such a common object or not depends upon various factors. A-1 and A-2, though armed with axes, did not use the sharp side but only gave one or two blows on the heads with the butt ends. A-4 and A-5 who were armed with sticks dealt blows only on the legs and/or on the hands which were not serious. A-3 did not participate in the attack on any of the two deceased persons. These circumstances show that the common object of the unlawful assembly can not be said to be to cause murders and at any rate it can not be said that all the accused shared the same and that they had knowledge that the two deceased persons would be killed and with that knowledge continued to be the members of the unlawful assembly. However, taking all the circumstances of the case into consideration, the common object can be held to be only to cause grievous hurt. A-1 and A-2, however, dealt blows with the butt ends of the axes on the two deceased persons and the injuries on the heads caused by them proved to be fatal. Having given our earnest consideration to this aspect of the case, we are of the view that A-1 and A-2 must be held liable for their individual acts and they would be liable to be punished under Section 302, IPC and A-3 to A-5 under Sections 326/149, IPC so far as the attack on the two deceased persons is concerned.
Thus, as held above, an unlawful assembly may have different objects and members of an unlawful assembly may have a community of object upto a certain point beyond which they may differ in their objects and as a consequence of this, the effect may be different on different members of the same unlawful assembly. In this case, the common object of all the members of the unlawful assembly was to cause grievous hurt but the object of the two members was to cause death. Therefore, for causing the death, it is found that only two appellants are responsible and the other members of the unlawful assembly are not responsible but they are responsible for causing grievous hurt. The conviction for the offence of causing death as well as grievous hurt in prosecution of the common object of the unlawful assembly can be maintainable.
17. Before concluding we would like to consider the defence evidence of Budhram (D.W. 1) produced on behalf of the appellants. The defence version does not appear to be plausible and probable that the deceased himself fell down on the 'Dehri' of his own house and he received the injuries. Dr. S.P. Jain (P.W. 4) in his opinion has clarified that the injuries were caused by hard and blunt object and were sufficient to cause death in the ordinary course of nature. He has further clarified that injury No. 1 received by the deceased could have been received by him on falling from a height of 20-25 fts. It is not the defence version that he fell down from such a height. So far as the compliance of Section 157 of Cr.PC is concerned, considering the evidence of dying declaration and the evidence of oral dying declaration to Birkhu (P.W. 7) and the ocular evidence of his mother Goura (P.W.5) which is corroborated by medical evidence and all other surrounding circumstances, the delay of three days in compliance of Section 157 of Cr.PC is not fatal to the prosecution and the entire prosecution story can not be thrown out simply on that ground.
18. The appellants might have formed an unlawful assembly but it is clear that intention or object of all the members of unlawful assembly was not to kill or to commit the murder of the deceased, but, the intention and common object of the members of unlawful assembly was to beat him and to teach him a lesson for causing injuries to appellant Badri. It is almost certain that appellants Ramswaroop and Chintu have changed their object and intention and have caused fatal injuries to the deceased and the deceased died immediately. As per medical evidence, the-injuries received by him were sufficient to cause death in the ordinary course of nature. Therefore, it can be held that the object and intention of other appellants. Under these circumstances it can not be held that they caused injuries in right of private defence as they both have not received any injury earlier as only appellant Badri had received injury in his head. Thus, looking to their overt act, the conviction of appellants Ramswaroop and Chintu is liable to be maintained under all the sections as awarded by the Trial Court.
19. So far as that the participation of remaining appellants Brijmohan, Ramjilal and Roshan is concerned, though they were members of the unlawful assembly, but, there is nothing on record to prove that their common object was to kill the deceased. Their common object may be to cause injury to deceased. As is clear from the dying declaration of the deceased made in the FIR, Brijmohan was bare handed and had only slapped the deceased on his cheeks. Ramjilal assaulted by lathi on left side of his neck and Roshan also assaulted by lathi on left side of his neck. Though these injuries have not been found by the doctor on the body of the deceased for two reasons- one that the doctor who conducted the post mortem might not have noticed the injuries on the cheeks and neck of the deceased or it might have not been possible for him to see those injuries because of presence of rigour mortis over the dead body as the post mortem was conducted after twenty hours, but, as per FIR (Ex. P-1) and the statement of the deceased (Ex. P-28), he received injuries on these parts of his body and these injuries are further corroborated by inquest report (Ex. P-25) as well as the memo (Ex. P-26) in which all the injuries have been mentioned. The aforesaid documents have been duly proved. Therefore, in the light of the aforesaid evidence and looking to the participation of the appellants in the crime and the injuries sustained by the deceased, it can not be held that the intention and common object of remaining appellants Brijmohan, Ramjilal and Roshan was to commit murder of the deceased but it can only be held that their common object was simply to cause injuries or grievous hurt with a view to teach him a lesson. Therefore, the conviction of all the aforesaid appellants under Section 302/149, IPC is not liable to be sustained and deserves to be set aside but their convictions under other Sections, i.e., 148, 452 and 325/149, IPC is liable to be affirmed. The injury caused to injured Goura (P.W. 5) has been attributed to appellant Badri who has already expired and now the appeal stands abated against him.
20. Consequently, this appeal is partly allowed. Convictions and sentences of appellants Ramswaroop and Chintu under all the sections as awarded by the Trial Court are affirmed and it is held that to that extent the Trial Court has not committed any error. Appellant Badri is dead. Conviction of rest of the appellants Brijmohan, Ramjilal and Roshanlal under Section 302/149 is set aside, but their convictions under other Sections, i.e., 148, 452 and 325/149 is affirmed and the jail sentence awarded by the Trial Court under the aforesaid sections is modified to that already undergone by them as they have already suffered jail sentence of four months each, but fine amount of Rs. 10,000/-(Rupees ten thousand only) is imposed upon them and in default of payment of fine amount they shall suffer one year's R.I. each. Appellants are on bail. Bail bonds of appellants Ramswaroop and Chintu stand cancelled. They shall surrender before CJM Shivpuri within thirty days from today for undergoing remaining part of their jail sentence failing which CJM Shivpuri shall have liberty to take them into custody and commit them to jail. The three appellants Brijmohan, Ramjilal and Roshanlal shall deposit the fine amount of Rs. 10,000/-(Rupees ten thousand only) each within a period of thirty days from today failing which CJM Shivpuri shall have liberty to take them into custody and commit them to jail. If the fine amount is deposited then a sum of Rs. 25,000/- (Rupees twenty five thousand only) be paid as compensation to the legal representatives of deceased Badri.