1. This is an appeal against the judgment and order passed by the II Temporary Sessions Judge. Hamirpur. convicting Sukhdeo alias Sukhdeon. Maiyadin. Ram Dayal, Japat Pal. Ramnath. Sahdi, Ehagwati and Bishuntha alias Vishwanath appellants under Section 302. I.P.C. read with Section 149. I.P.C. and sentencing each of them to imprisonment for life. All ihe above appellants except Sukhdeo were convicted under Section 147. I.P.C. and were sentenced to one year's R. I. each. Gopali appellant was convicted under Section 302. I.P.C. simpliciter and was sentenced to imprisonment for life. Gopali and Sukhdeo appellants were convicted under Section 148. I.P.C. and each was sentenced to two years' R. I. All the nine appellants were further convicted under Section 325. IPC read with Section 149. IPC and each was sentenced to four years' R. I. under the first count and to two years' R. I. under the second count. All the sentences of all the appellants were ordered to run concurrently. Surajpal and Darbari were also tried along with the appellants, but they were acquitted by the trial Court.
2. The facts giving rise to this appeal are as follows:
Khushali (P.W. 2). Jagdeo. and Maiyadin (P.W. 3) had purchased certain land from Chhitwa Kewat. They had sown Jundhri and Sawan crops in this land. Surajpal. son of Chhitwa, filed an objection in the mutation proceedings. Khushali and his brother Jagdeo were vendees of 6 Bighas of land out of the total area of 24 Bighas,. referred to above. At the time of sale gram crop was standing in this area. It was agreed that after reaping the gram crop, they will hand over the gram to Chhitwa. Later on Jundhri and Sawars crops were sown in this area. Surajpal son of Chhitwa started interfering in the possession of the land of the vendees. A panchayat was called. In the Panchayat. Chhitwa told them that he had sold the land and the vendees had a right to cultivate the land.
3. In the afternoon of 13-9-I960 Khushali and his uncle Gajju went to cut the Sawan crop from the plot which had by then become ripe. When they started cutting the Sawan crop, the appellants along with Suraipal and Darbari reached there. Suraipal instigated his companions to beat Khushali and Galiu. Khushali and Gaiiu ran towards the village. The appellants as well as Suraipal and Darbari chased them. They surrounded them near the Khaliyan of Rajwa Gadariya, Suraipal and Darbari were armed with spears. Gopali and Sukhdeo were armed with Pharsas, while rest of the appellants were arm-ed_ with lathis. All these persons started beating Khushali. who fell down after receiving the iniuries. Gaiiu was all along shouting for help.
4. On the alarm raised by Gajju and Khushali Maiyadin and his sister's eon Babu Lai (deceased), who were then reaping their own crop in the adjoining field, ran to save Khushali. They tried to intervene. The appellants also assaulted Babul Lai and Maiyadin, Certain other witnesses also reached there. Thay challenged the assailants. Then the assailants ran away.
5. A bullock cart was arranged and the three iniured persons Khushali, Maiyadin, and Babu Lal were taken in it to village Kaithi. where they resided. At Kaithi. Babu Lal died. A report of the occurrence was then lodged at tthana Sumerpur .by Khushali at 3-30 A.M. on 14-9-1967. On the basis of this report, the police registered a case against the appellants as well as Surajpal and Darbari under Section 302, I.P.C. and various other sections of the Indian Penal Code. The police started the investigation. The Investigating Officer reached the spot. took the dead body of Babu Lal in his custody, and sent it for post-mortem examination. The blood stained clothes of the deceased were taken into his custody by the Investigating Officer. The blood-stained earth and ordinary earth were also taken from the place of occurrence by the Investigating Officer, in the presence of the witnesses. Recovery memos were prepared. The injuries of Maiyadin and Khushali were medically examined at 7-45 A.M. and 8-00 A.M. respectively on 14-9-1967. The Investigating Officer examined a number of witnesses and after completing the investigation, challenged the appellants as well as Surajpal and Darbari. As one of the witnesses is also named as Maiyadin. therefore, the accused will be referred to as Maiyadin accused and Maivadin witness will be referred to as Maiyadin injured. After the trial, the appellants were convicted and sentenced, as stated above, while Surajpal and Darbari were given the benefit of doubt by the trial Court and were acquitted.
6. In support of its case, the prosecution examined Khushali (P.W. 2), Maiyadin (P.W, 3). Chunubad (P.W. 4), and Nathu (P.W. 5). besides certain other witnesses whose statements are more or less formal in nature.
7. The appellants denied the charge and pleaded not guilty. Gopali, Sahdi. and Sukhdeo appellants stated that the croc standing in the field was raised by them, and when Babu Lal, Maiyadin iniured. Khushali. and others started reaping it wrongfully they went to stop them from taking unlawful possession of the crop, they were assaulted, and in their right of private defence they also caused iniuries to Maiyadin injured. Khushali. and Babul lal. They did not lead any evidence in support of their defence.
8. The post-mortem examination on the dead body of Babu Lal was conducted by Dr. R. Chandra at 5-00 P.M. on 15-9-1967. In the opinion of Dr. Chandra, the deceased was about 25 years of age, and the probable time since death was about two days. He found the following ante-mortem iniuries on the dead body of Babu Lal:
1. Incised wound 10' x 1' x brain deep with pulpy brain tissues coming out obliquely on posterior aspect of head starting from 2-f/2' above right ear and terminating at 2' behind left ear. Bones underneath cut through and through.
2. Bruise 3' x l' over forehead, 1-1/2' above left eve brow.
9. In the opinion of Dr. Chandra, Babu Lal died due to shock and haemorrhage resulting from the iniuries.
10. There is. therefore no room for doubt that Babu Lal died as a result of the iniuries which he received.
11. The time, date, and place of the occurrence have not been disputed. We. therefore, hold that the occurrence took place at the time. date, and place, as alleged by the prosecution.
12. The iniuries of Maivadin iniured were medically examined at 7-45 A.M. on 14-9-1967 by Dr. M. A, Kabir. He found the following iniuries on the person of Maiyadin injured.
1. Contused wound 2'xl/4'x scalo deep, vertically along the right side of front of head. 5' above right ear. and 3 above, the right eve brow.
2. Incised wound 3/4' x 1/6' x skin deep, transversely across the bridge of the nose, left side and its lower end touching the inner angle of left eye.
3. Incised wound 1/2' x 1/8' x skin deep, obliquely across the upper part of left side of face. 1/2' below left eye.
4. Contusion 2-1/4' x 1/2' obliquely across the middle of inner margin of left forear.
5. Contusion 6-1/2' x 3/4' obliquely across the middle of back of right forearm with fracture of the right ulna bone at its middle underneath.
6. Incised wound l'xl/8'x skin deep obliquely across the outer aspect of upper margin of right half of chest, its upper end was touching outer end of right clavicle (collar) bone.
7. Incised wound 1/2' x 1/6' x skin deep vertically along the lower part of middle line of front of left leg.
8. Contusion 3-1/2' x 1-1/4' obliquely across the upper part of back of right arm.
9. Contusion 4-1/4' x 1' obliquely across the middle of right half of back.
10. Incised wound 1-1/4' x 1/6' x skin deep, transversely across the middle of right side of face .just in front of right ear.
13. In the opinion of the doctor, injury No. '5 was a grievous injury.
14. The same doctor examined the injuries of Khushali the same day at 8-00 A.M. Khushali had the following injuries:
1. Contused wound 2' x 1/3' x scalp deep vertically along the middle of back of head.
2. Contusion 1-3/4' x 1/2' obliquely across the upper lid of right eye, right, corner of forehead.
3. Abrasion l'x3/4' obliquely across the back of left shoulder.
4. Incised wound 2' x 3/4' x skin deep obliquely across the lower part of back of inner margin of left forearm.
5. Contusion 9'xl/2' obliquely' across the middle of back.
6. Contusion 3' x 1/2' obliquely across the upper part of right half of back.
15. The medical evidence, therefore, leaves no room for doubt that Khushali. Maiyadin injured, and Babu Lal (deceased) received injuries in the same occurrence.
16. The first point which has to be considered in this case is as to whether the occurrence took place as alleged by the prosecution or as contended by the defence.
17. No one from the side of the appellants received any injury. On the other hand, as many as three persons from the side of the complainant received serious injuries which had been caused with lathis and some sharp cutting weapon.
18. So far as the possession of lend is concerned, from the prosecution evidence it is proved to the hilt that 6 Bighas land, which was in possession of Khushali. originally belonged to Chhitwa who had sold it to Khushali. We are also satisfied from the evidence on the record that the Sawan crop which was standing in this plot had been sown by Khushali. After holding that the land belonged to Khushali and the crop had been raised by him. it would not be possible to hold that the appellants or anv of them had a right of private defence. Had Khushali and his companions been the aggressors, they would not have received all these injuries and the appellants, who pleaded the right of private defence, would not have escaped even without a scratch. After screening the entire prosecution evidence in the light of the above facts and circumstances, we have no room for doubt that the occurrence took place as alleged by the prosecution.
19. Khushali and Maiyadin injured were the two persons who had received injuries in the occurrence. Their presence at the spot, therefore, cannot be doubted. We have not come across anything in the statements of Chunubad (P.W. 4) and Nathu (P.W. 5) on account of which their statements could be rejected. Both these witnesses were named in the first information report which was lodged at the thana without any delay. They are natural and trustworthy witnesses. Nothing has been shown to us in their statements on account of which their statements could be rejected. Believing their evidence, in the light of the above facts and circumstances. we have not the least doubt in our minds that Khushali and his uncle Gaiiu were reaping the crop when the appellants went there armed with lathis and pharsas and stopped them from reaping the crop. We have also no doubt in our minds that when Khushali was running away. Maiyadin injured and Babu Lai came for their rescue and they were assaulted by the appellants.
20. The only question which now remains to be decided is as to what offence was committed by the appellants.
21. It was argued that the common object of the appellants was to stop Khushali from cutting the crop ,and to assault him and those who interfered in the achievement of the aforesaid common object, and. therefore, all the appellants were equally guilty for the murder of Babu Lai with the aid of Section 149. I.P.C. and for causing injuries to Maiyadin injured and Khushali with the aid of the same section. It would be stretching the object of Section 149. I.P.C. beyond its scope by giving such a wide interpretation to it. The main question would arise as to whether Maiyadin injured and Babu Lai (deceased) joined Khushali in interfering with the common object of the unlawful assembly in achieving its object regarding the assault on Khushali. It is true that after Khushali left reaping the crop and ran away for saving his life, the object of the unlawful assembly in stopping Khushali from reaping the crop was achieved but because the unlawful assembly chased Khushali up-to the Khaliyan and started assaulting trim it can be safely presumed that the common object of the unlawful assembly was to assault Khushali as well. But. could this common object be stretched further by saying that the common object of the unlawful assembly was to assault Babu Lai (deceased) and Maiyadin injured as well.
22. In order to find out the proper reply to the above question it has to be seen as to what was the purpose of Babu Lal (deceased) and Maiyadin injured in coming running from their field to intervene in the assault. Learned Deputy Government Advocate argued that the deceased and Maiyadin injured were also cutting the crop from that plot about which they claimed their right as vendees and Sura.ipal claimed his right as son of Chhitwa. This argument loses its force for the simple reason that Maiyadin injured and Babu Lai (deceased) were cutting the crop in their field simultaneously, but none of the appellants, Surajpal or Darbari went to that field to stop Maiyadin injured and Babu Lai to stop them from reaping the field. Therefore, it can be safely presumed that the common object of the unlawful assembly was not to stop these two persons from cutting their crop and. therefore, if they went to save Khushali it would be presumed that the common object of the unlawful assembly was not to assault them as well.
23. In this very connection it has also to be seen as to whether Babu Lal (deceased) and Maiyadin injured were peaceful interveners or had gone to Khushali to obstruct the unlawful assembly in achieving their object of assaulting Khushali. It is true that Babu Lai (deceased) was armed with a lathi. But. there is consistent evidence of Maiyadin injured. Khushali and two other witnesses that he did not ply his lathi but only warded off the blows of the appellants. when the appellants Started assaulting him. It is also proved from the evidence that Maiyadin injured was empty handed and he was only requesting the appellants not to assault Khushali. This evidence, therefore, leads to the irresistible conclusion that Both Babu Lal (deceased) and Maiyadin injured were peaceful interveners. This fact that both Babu Lal (deceased) and Maiyadin injured _ were peaceful interveners clearly indicated that the persons who assaulted them were individually liable for the assault. One could thus infer that they assaulted Maiyadin injured and Babu Lal deceased in furtherance of their common intention which was formed then and there. The view which we have taken is also supported by a series of decisions of this Court and other High Courts.
24. In Queen v. Sabed Ali. (1873) 20 Suth WR (Cri) 5, the case was that an unlawful assembly was formed by a number of persons to take forcible possession over a piece of land. When the members of the unlawful assembly went there, Samad Ali. one of the persons who resisted the possession. plied his Lathi and thereupon Tureeboollah. who was armed with a gun, fired a shot and killed Samad Ali. The question arose in this case as to whether all the members of the unlawful assembly were guilty of committing the murder of Samad Ali. It should be noted here that Samed Ali in resisting the forcible possession of the land had plied his lathi and then one of the members of the unlawful assembly Tureeboollah fired his gun and killed him. It was held that killing of Samed Ali was the individual act of Tureeboollah and the other members of the unlawful assembly were not liable for it. By the majority judgment it was held that the common object was to achieve a certain object and at the spur of the moment one of the members, though the other members knew was armed with a gun, fired a shot on a member of the other party, the other members were not liable for murder by the operation of Section 149. I.P.C. because neither first part nor second part of Section 149, I.P.C. would apply as by mere carrying of the gun no inference could be drawn that all the members knew that that particular offence was likely to be committed in the prosecution of the common object.
25. In Charan Singh v. State : AIR1959All255 it was observed .as below :
Even if the Act is an individual act of one member and it is not actually done in prosecution of the common object all the other members will be liable for it. provided they knew and it must be noted here that positive knowledge is necessary, it is not sufficient to show that they ought to have or might have known or that they had reason to believe that it might happen that the act was likely to be committed in prosecution of the common object. 'The use of the word 'Likely' in the -second part of Section 149. I.P.C. implies some thins more than a possibility. A thing is likely to happen only when it will probably happen or may very well happen.
26. In Hukum Singh v. State : AIR1959All690 it was observed as below:
The difficulty. however. arises when the common obiect of the assembly is not murder but some other unlawful object, and death is caused in the course of the achievement of that object. The question that arises, in such a case is whether the evidence discloses 'that in achieving the common object which was not the commission of murder, the members of the assembly wec determined to go to any length, even to the length of committing murder. If the answer to this question is in the -affirmative, the commission of murder must be deemed to have been included within the common object of the assembly. On the other hand, if the answer to the question is in the negative an.d yet on the sudden coming into existence -of an unexpected situation, death is caused by the isolated act of one of the 'members of the assembly, that member alone will be liable for the killing, and 'the aid of Section 149. Indian Penal 'Code, cannot, in such a case be invoked to fasten liability for the murder on the other members of the assembly.
27. In Hanif v. State : AIR1962All272 . the following observation was made :
The plain meaning of the first part of Section 149. I.P.C in my opinion, is that all the members of an unlawful assembly render themselves liable to punishment for any and every offence committed by any member or more members of that assembly in prosecution of the common object of the unlawful assembly which as I understand it, means that its commission was in the 'contemplation of the unlawful assembly directly or impliedly. In the present case, in view of the finding of Mulla J. -with which I have respectfully agreed, that the killing of Darshan was not in the contemplation of or intended by any other member of the unlawful as-isembly except Hanif. it cannot be said that his murder was committed in furtherance of the common object of the -assembly and so the eleven appellants, -whose case is before me, are not liable to punishment under the first part of Section 149. I.P.C.
27A. Further, it was held as '.'below:
In the circumstances it cannot be Iheld that the eleven accused, who were armed with lathis and who by their conduct gave a positive indication of their mind not to kill Darshan but only to beat him. realised or knew that the murder of Darshan was likely to be committed in prosecution of their common obiect. Therefore, they cannot be held guilty under Section 302, I.P.C. even with the application of the second part of Section 149. I.P.C.
28. In Kshudiram Majhi v. State of W, Bengal. : 1972CriLJ756 , a similar view was held.
29. A perusal of these cases, therefore, leave no room for doubt that the unlawful assembly was not formed to give a beating to Maiyadin injured or to commit the murder of Babu Let (deceased). The first part of Section 149, I.P.C. would, therefore, not apply on the facts which we have found in this ease. The second part of Section 149. I.P.C. too will not apply for the simple reason that the evidence fell short of coming to the conclusion that the murder of Babu Lai or the assault on Maiyadin injured was probably to happen or might have very well happened. The use of the word 'Likely1 in the second part of the section means some clear evidence that the unlawful assembly had such a knowledge. In the present case, none of the members of the unlawful assembly knew that while they were chasing Khushali. Maiyadin injured and Babu Lai (deceased) would drop in and try to peacefully intervene. Therefore, only those appellants against whom there is clear evidence that they caused injuries to Babu Lai resulting in his death would be guilty of the murder with the aid of Section 34, I.P.C. Similarly, only those appellants against whom there was clear evidence that they caused injuries to . Maiyadin injured would be liable for his injuries.
30. There is evidence on the record that Gopali caused injuries to Babu Lai with his pharsa and Vishwa-nath caused injuries to him with a lathi. It can be safely presumed that there was a meeting of minds between these two appellants for causing injuries to Babu Lai. which resulted in his death. Both these appellants, therefore, will be deemed to have caused injuries to Babu Lai in furtherance of their common intention and. as such. they alone can be held guilty for the murder of Babu Lai by applying Section 34. I.P.C.
31. It is proved from the evidence on the record that one of the injuries of Maiyadin injured was of a-grievous nature. It is further proved that he was assaulted by Ram Dayal, Maiyadin accused. Bhagwati Gopali, and Sukhdeo. The last two were armed with Pharsas and this fact is fully proved from the evidence on the record. In their case also, Section 34. I.P.C would aPPlv. They assaulted Maivadin injured in 'furtherance of their common Intention and. therefore, they are guilty of the offence under Section 325. I.P.C. read with Section 34. I.P.C.
32. So far as the causing of injuries to Khushali is concerned. there is no room for doubt that Khushali was assaulted in prosecution of the common object of the unlawful assembly of which the appellants were the members. All the appellants are therefore, guilty under Sction 324. I.P.C. read with Section 149, I.P.C. because one of the injuries of Khushali was an incised wound. As members of this unlawful assembly. Gopali and Sukhdeo were each armed with a Pharsa,. Therefore, they are also guilty under Section 148 I.P.C. The rest of the appellants beine armed with a lathi each, are guilty of the offence under Section 147 I.P.C.
33. In the result, the appeal succeeds in part. The conviction and sentence of Sukhdeo alias Sukhdeon. Maiyadin. Ram Dayal, Jagat Pal. Ramnath. Sahdi and Bhagwati appellants under Section 302. I.P.C. read with Section 149. I.P.C. are set aside. The conviction. of Gopali appellant under Section 302. I.P.C. and of Bishuntha alias Vishwanath appellant under Section 302, I.P.C. read with Section 149. I.P.C. is converted into one under Section 302, I.R.C. read with Section 34. I.P.C. and the sentence of life imprisonment awarded to them for committing the murder of Babu Lal is maintained.
34. The conviction and sentence of all the appellants under Section 325, I.P.C. read with Section 149. I.P.C. are set aside. Ram Dayal. Maiyadin. Bhag-wati. Gopali and Sukhdeo appellants are convicted under Section 325 I.P.C. read, with Section 34 I.P.C. and each sentenced to three years' R. I. for causing grievous injury to Maiyadin injured.
35. The conviction and sentence of all the appellants under Section 324, I.P.C. read with Section 149. I.P.C. are maintained,
36. The order of conviction and sentence passed upon Jagatpal, Ram-nath, Sahdi. Bishuntha alias Vishwa-nath. Ram Dayal. Maivadin. Bhagwati appellants under Section 147. I.P.C. is maintained.
37. The conviction and sentence of Gopali and Sukhdeo appellants under Section 148 are upheld.
38. All the sentences of all the appellants shall run concurrently.
39. Gopali appellant is in jail. He shall serve out the sentences awarded to him. The rest of the appellants are on bail. They shall be taken into custody forthwith to serve out the sentences awarded to them.