Handoo and ors. Vs. State of Rajasthan - Court Judgment

Excerpt:
penal code - section 302/149 and 325/149--unlawful assembly with common object to give beating to complainant party--injuries mostly on legs--not possible to infer that accused has knowledge thai death was likely to cause--held, accused can he convicted under section 325/149 and not under section 302/149.;it is true that the accused formed an unlawful assembly. the common object of the unlawful assembly was to give beating to the members of the complainant party. the injuries that were inflicted on the deceased were mostly on legs. on post-mortem, one injury was detected on the neck. the other injuries that were discovered in the post-mortem were on the liver and kidney.... from the nature of the injuries and the use of weapons by the members of the assembly, it is not possible to infer that any member had the knowledge that death was likely to be caused in prosecution of common object of assault. in the facts and circumstances of the case, we are of the opinion that the conviction under section 302 read with section 149, ipc is not maintainable. they should, however, be convicted under section 325/149, ipc.;appeal partly allowed - - 7. from the evidence of the eye witnesses it is not clearly borne out as to who is responsible for causing the injury on the neck, it is also not clear from the opinion of the doctor that the injury on the neck i. the hon'ble supreme court also observed that the nature of the injuries clearly exhibited that the common object was not to kill kalu and, further it was not possible to infer that any member of the mob had the knowledge that the death was likely to be caused in prosecution of the common object of assault.panna chand jain, j.1. this appeal is directed against the judgment dated 25th june, 1984, passed by the learned additional sessions judge, deeg, (bharatpur), in sessions case no. 10 of (984, by which he convicted the accused-appellants under sections 302/149, 323/149, 148 and 147, ipc; and sentenced to imprisonment for life under section 302/149, ipc and to pay a fine of rs 200/- and in default to further undergo an imprisonment for two months. the accused-appellants were also sentenced to undergo 9 month's rigorous imprisonment for committing an offence under section 323/149, ipc. they were also sentenced to undergo a imprisonment for two years for committing an offence under section 148, ipc. the accused-appellants were also sentenced for committing an offence under section 447, ipc and to undergo imprisonment for two months (ri). all the sentences were ordered to run concurrently.2. the facts of the case lie in a very narrow compass and may be stated thus. there is an agricultural field bearing khasra no. 357, which was allotted to the accused party and it is alleged that subsequently this was allotted to the complainant party. another field bearing khasra no. 538 is situated along with field khasra no. 537. it is alleged that khasra nos. 537 and 538 are comprised in one track. the prosecution story further is that on 5th october, 1983, at about 6.00 p.m. the complainant party went to cultivate their land bearing khasra no. 538. it is alleged that 11 accused persons, viz. dhundhal, jharmal, kasim, juharu, hanif (juhar's sons), zabar khan, handu, yakub, baner khan, ibrain and six other persons, namely umar khan, satari, rozdar, baney singh sheru and ashu came from the field khasra no. 537 and made an attack on the complainant party. they belaboured and assaulted the complainant party. it is alleged that dhundhal received lathi blows, kasim and jharmal also received simple injuries. dhundal died. jhuharu lodged fir on 5th october, 1983 at about 10.00 a.m. the police registered a case against the accused under sections 147, 148, 447, 302 read with 149 ipc and challan was filed in the court against the accused-appellants. the other accused are facing trial in the lower court. the accused-appellant denied their complicity in the offence.3. in order to prove the charge against the accused-appellants, the prosecution has examined 11 witnesses, viz. pw 1 juharu, pw 2 jharmal, pw 3 randheer, pw 4 kasim, pw 5 hanif, pw 6 fazaru, pw 7 daroga, pw 8 ishlam, pw 9 s.r. meena, pw 10 shri ram taksak and pw ii dr. jitendrasingh. out of the above witnesses, pws 1. 2, 4, 5, 6, and 8 are said to be the eye-witnesses. pws 3 and 7 are motbirs. pw 9 and pw 10 investigated the case. pw 11 dr. jitendrasingh conducted the postmortem examination. the post-mortem report is ex. p. 12. fir is ex. p 1, ex. p 2 is site plan, inquest report is ex p 3. ex. p 4 is the injury report of jharmal, ex. p 5 is the injury report of juharu and ex. p 11 is the injury report of kasim. the learned sessions judge after appreciating the evidence on record convicted the accused-appellants as aforesaid.4. shri jagdeep dhankar, learned counsel for the accused-appellant submitted that the finding of the learned trial court is unjustified as no case is made out against the accused-appellants for which they were charge-sheeted.5. we have carefully gone through the entire evidence on record and perused the same. we are of the opinion that the finding of guilt recorded by the learned additional sessions judge is based on proper appreciation of evidence. from the evidence of juharu, pw 1 jharmal pw 2, kasim pw 4, hanif pw 5 and fazru pw 6 it is evident that all the accused-appellants, including the other co-accused trespassed into the field of the complainant and inflicted lathi blows on jhuru pw 1, jharmal pw 2, and kasim pw 4, who are the injured eye-witnesses and they have corroborated the testimony of pw 1 jhuru, pw 5 hanif and pw 6 fazru. the said prosecution witnesses have deposed that the accused persons belaboured and assaulted dhundhal and inflicted injuries upon jharmal and kasim. dhundhal, as stated above, died at the spot. the learned addl. sessions judge rendered his finding on a careful and analytical conclusion of the evidence. since we are in complete agreement with the findings arrived at by the learned addl. session's judge regarding the guilt of the accused-appellants, it is therefore, unnecessary for us to burden this judgment with the repetition of details of the evidence.6. after having arrived at the finding that the accused-appellants are responsible for causing injuries on the deceased, jharmal and kasim, the question that remains for our decision is, what offence the accused-appellants had committed? pw 11 dr. jitendrasingh, who conducted the post-mortem examination, opined that the cause of death of dhundhal was excess loss of blood due to injuries on liver and shock. it was also the opinion of the doctor that other injuries also caused a cumulative effect in death. it was also the opinion of the doctor that the liver and the kidney were also injured. in his statement before the court, the winess has opined that the death was caused on account of excessive loss of blood and also on account of displacement of vertebrate of neck. the doctor also deposed that the stomach of the deceased was full of blood, liver was ruptured and there was swelling on the left kidney. a careful reading of the opinion expressed in the post-mortem report and the opinion expressed in the statement before the court, by dr. jitendrasingh pw 11 would reveal that there is inconsistency between the two. in the postmortem report the doctor has pointed out five injuries on the body of the deceased and he expressed the opinion that the cause of death was on account of excess loss of blood due to injuries to liver and also on account of cumulative effect of other injuries. but in this statement. dr. jitendrasingh pw 11 has stated that the cause of death was excess loss of blood and the displacement of vertebrate of the neck. the injuries found on the body of dhundhal are mostly on the leg and other parts of the body. there was no external injury on any vital part of the body. the external injuries pointed out by the doctor in the post-mortem report are as under:6 injuries detected over the body described in column. the rigor mortis. pupils are whittled dialated. one injury is lacerated at right leg. other are injuries or contusions at different parts of body on back and left aspect of chest wall on right side.7. from the evidence of the eye witnesses it is not clearly borne out as to who is responsible for causing the injury on the neck, it is also not clear from the opinion of the doctor that the injury on the neck i.e. displacement of vertebrae was by itself sufficient to cause death of the deceased in the ordinary course of nature. the learned trial court convicted the accused with the aid of section 149, ipc. it is an established principle of law that before recording a conviction under section 149 ipc the essential ingredients of section 141, ipc must be established. section 149 ipc creates a specific offence and deals with the punishment for that offence. there is an assembly of five or more persons having a common object. the emphasis is on 'common object.' from the evidence on record it can be inferred that the common object of assembly was to give beating to the members of the complainant party there was no common object to commit the murder of the deceased: state of haryana v. prabhu : 1979crilj892 a question arose before the hon'ble supreme court whether the high court committed an error in converting the conviction of seven respondents from one under section 302/149, ipc to section 325/149 ipc. in that case, there was no common object to commit the murder of deceased kalu. all the members of the mob were armed with lathis. the members of the mob used their lathis in assaulting kalu and others. the hon'ble supreme court also observed that the nature of the injuries clearly exhibited that the common object was not to kill kalu and, further it was not possible to infer that any member of the mob had the knowledge that the death was likely to be caused in prosecution of the common object of assault. the hon'ble supreme court justified the inference drawn by the high court on the facts of that case and did not interfere with the order passed by the high court. similar circumstances are in the instant case. it is true that the accused formed an unlawful assembly. the common object of the unlawful assembly was to give beating to the members of the complainant party. the injuries that were inflicted on the deceased were mostly on legs. on post mortem one injury was detected on the neck. the other injuries that were discovered in the post-mortem were on the liver and kidney. the opinion of the doctor was that the death had occasioned on account of excess loss of blood due to injuries to liver and other injuries, cumulatively. undoubtedly, in the statement recorded in the trial court, the doctor has stated that the death was caused on account of excess loss of blood and displacement of neck vertebrae. from the nature of the injuries and the use of weapons by the members of the assembly, it is not possible to infer that any member had the knowledge that death was likely to be caused in prosecution of common object of assault. in the facts and circumstances of the case, we are of the opinion that the conviction under section 302 read with section 149, ipc is not maintainable. they should, however, be convicted under section 325/149, ipc.8. accused zabbar khan and handoo were arrested on 10th october, 1983 while accused yakub, ibrahim and baney khan were arrested on 12th october, 1983. since then they are in custody. they have, thus, remained in custody for a period of about 3 years (2 years and 11 months).9. in the premises aforesaid, we partly allow the appeal of the accused appellants, their convietion and sentence awarded are set aside. instead, they are convicted under section 325 read with section 149, ipc and each of them is sentenced to imprisonment for the period already undergone by them. their conviction and sentences under sections 323/149, 148 and 447, ipc are maintained. all the sentences shall run concurrently. since the appellants have already served out the sentences they shall be set at liberty forthwith, if not required in any other case. the appeal shall stand disposed of accordingly.