1. These are two appeals which have been brought by the convicts (Criminal Appeal No. 216 of 1956 by Arur Singh and Surjit Singh and Criminal Ap-(N. P.) (May) 1957 Punjab D.F./6 peal No 224 of 1956 of Jita and Surjan Singh)against their conviction under Section 326 read withS. 149 and Section 148 of the Indian Penal Code and sentence of seven years and three years' rigorous imprisonment each under the two counts. ArurSingh has also been convicted under Section 302 ofprisonment for life. All the accused have alsobeen convicted under Section 324 read with 149, IndianPenal Code, and sentenced to one year's rigorousimprisonment each. All the sentences are to runconcurrently. Ganga Ram complainant has alsofiled Criminal Revision No. 885 of 1956 againstthe acquittal of Puran Singh and Amarjit Singhaccused and enhancement of sentence passed onthe convicts.
2. The accused persons were Arur Singh and his two sons Bira and Surjit Singh who, it is stated by the prosecution were all armed with spears, Surjan Singh and his son Amarjit Singh, also armed with spears, and Puran Singh and his son Jita, of whom the former was armed with a kirpan and the latter with a spear. Bira is an absconder. The remaining 6 persons were tried under the abovementioned various charges but Amarjit Singh son of Surjan Singh and Puran Singh father of Jita have been acquitted by the learned Sessions Judge of Jullundur.
3. The occurrence took place in Akbarpur Kalan on the 13th of November 1955 (the Diwali Day) at about sunset. The first information report was made by Ganga Bam P. W. 6 to Assistant Sub-inspector Amar Nath at 9-45 p.m. while he was sitting at the shop of one Paqir Chand which is at a distance of a furlong from the Police Station. The complainant party are Aroras and of them Gobind Ram and Ganga Ram were brothers. Gobind Rarn has been murdered. Nand Lal was their nephew. He has also been murdered. Hira Lal is the nephew of Gobind Ram and Ganga Ram, being their sister's son. He hag been very badly injured.
4. The story of the Prosecution was that there wag enmity between the accused and the party of the complainants who are displaced persons from West Punjab and are rehabilitated in this village. Three years before the occurrence. Surjan Singh. Amarjit Singh and two others were procecuted for causing injuries with a spear to Hira Lal P. W. On the application of Ganga Ram, Arur Singh, Surjit Singh and two others were bound down under Section 107, Criminal P. C. Ganga Ram obtained an order of allotment in favour of Arur Singh in regard to a vacant piece of land cancelled about a year ago. As a member of the Panchayat, Ganga Ram made a report to the authorities that Arur Singh and his son Surjit Singh had cut and removed trees belonging to the Government and a case was registered against them and Gana Ram appeared as a witness. Ganga Ram has also stated that there were other causes which led to enmity between his party and the party of the accused.
5. On the Diwali Day at about sunset Oanga Ram and Gobind Ram were sitting in the baithak of Gobind Ram along with Nand Lal when so re-body shouted from outside 'Ganga Ram come out' and he did because he being a member of the Pan-chayat thought that some officer had come W call him. In the first information report he -has stated that Arur Singh had shouted out to him to come out and he came out of the baithak. He saw that Arur Singh, Surjan Singh and Puran Singh were standing outside. The first two were armed with spears and the third with a kirpan.
As soon as he went out he was attacked by Arur Singh with a spear which hit him on the right hand and then Surjan Singh gave him a thrust with his spear 'on the right side of the abdomen' which caused him injuries. He then rushed into the house of Bhagwan Dass which Is next-door to his house. The other accused persons, Surjit Singh, Amarjit Singh, Jita and Bira, were standing at a-distance of 2 or 3 karams near the wall of the gurdwara. Gangs Ram raised hue and cry which attracted Gobind Ram and Nand Lal to the place. Arur Singh gave a blow with his spear to Gobind Ram in his abdomen as a result of which he fell down. Then Surjan Singh and Puran Singh attacked him while he was down on the ground. Nand Lal in the meantime came up and snatched the spear from Arur Singh and was attacked by Surjit Singh, Amarjit Singh, Jita and Bira.
He brandished the spear which he had snatched from Arur Singh and caused injuries to some of the accused persons. Hira Lal his nephew, Bhagwan Dass, Kartar Singh Mukhtiar Singh, Gurandilta and Sant Lal also eame to the place. Hira Lal was attacked by all the accused. Surjit Singh gave a blow with his spear to Nand Lal in his abdomen. Nand Lal continued brandishing his spear for a little while after he received the injury in his abdomen. Then he was given blows by Bira. Surjit Singh, Amarjit Singh and Jita also gave blows to Nand Lal and when the other persons arrived the accused ran away. Ganga Ram then went and made the first information report. As a result of the injuries Gobind Ram and Nand Lal died. Hira Lal was very severely injured.
6. Ganga Ram P. W. 6, Hira Lal P W. 8, Kartar Singh P. W. 8, Sant Lal P W. 10, and Bhagwan Dass P. W. 11 have appeared to support the prosecution story. Besides the testimony of the eye-witnesses the blades of the spears were found at the place of the occurrence. When the house or Arur Singh wag searched a bloodstained Stick (Exhibit P-9) was found. Puran Singh stated that a kirpan was lying in his kotha and it was recovered at his instance. All these articles have been found to be stained with human blood. There is also the dying declaration of Nand Lal, which is Exhibit P. DD at page 43 of the paper-book, in which he has named all the accused and has given the same story which has been given by the prosecution.
7. Ganga Ram P. W. 6 has made a statement supporting the prosecution. In cross-examination it was put to him which he denied that Surjit Singh and 'Jita were throwing crackers in front of his baithak, that Gobind Ram. Nand Lal, Hira Lal and Ganga Ram asked them to desist from doing so and then started beating them when they refused to comply with this request and they were abused by Surjifc Singh and Jita, that Arur Singh and Surjan Singh came because of the hue and cry raised by Surjit Singh and Jita and that other Villagers came to rescue those boys and injuries were caused to the party of the complainants.
He was asked about the non-mention in the F.I. R. of the snatching of the spear from the hands of Arur Singh and he stated that he had forgotten it at the time. He also stated that before he came out of the baithak he had not seen any of the accused and that he had not recognized the voice of Arur Singh and that 'Arur Singh gave me a thrust blow without exchanging any words'. He was ask-ed if the first information report was written by the Assistant Sub-Inspector in the village but this also he denied.
8. The next eye-witness is Hira Lal, who was very badly injured. He stated that he heard the noise of his uncle shouting 'Killed, killed', ran towards his baithak and saw the three persons, Arur Singh, Surjan Singh and Puran Singh, standing there. Gobind Ram was coming out of the baithak of Ganga Ram and Ganga Ram was standing in the door of Bhagwan Dass. He did hot see the other accused there at that time. Arur Singh and Surjan Singh had spears and Puran Singh a kir-pan. Arur Singh aimed a spear blow at the abdomen of Gobind Ram as he came out of the baithak and he (Gobind Ram) fell down. Surjan Singh and Puran Singh then attacked him while he was lying down. Then Nand Lal came out of the baithak of Ganga Ram and snatched the spear from Arur Singh.
Thereupon Surjit Singh, Amarjit Singh, Jita and Bira, shouted that they had come. Nand Lal continued to brandish his spear and caused injuries to Surjan Singh and Arur Singh. Surjit Singh and Jita also received injuries at his hands and then Surjit Singh gave a spear blow which struck Nand Lal in his abdomen. Then all the four persons, Surjit Singh, Amarjit Singh, Jita arid Bira, gave him blow after he had fallen down, and when the witness tried to intervene he was also injured in the abdomen by Amarjit Singh and Bira and then by all the other accused and he also fell down.
9. Kartar Singh P. W 9 is the next witness. He is a Jat of the village. No doubt the fact that there has been some litigation between him & Surjan Singh, but that by itself is no reason for disbelieving his testimony if it is otherwise acceptable. He has a house not very far from the house of the complainants. He stated that he was in his house when he heard the noise & came out of the lane and saw the whole occurrence. There is nothing in his cross-examination to detract from his testimony except the litigation in regard to lambardari which is hardly a ground for disbelieving his statement.
10. Sant Lal P. W. 10 is a resident of village which is at a distance of 100 karamg from Akbarpur Kalan. He also witnessed the occurrence and has given the same story as given by others. The reason for his being at the spot was that he had come to buy some sweets for the Diwali Day. He stated that he did not come forward to rescue the party of the complainants nor did he raise a hue and cry nor did he attempt to catch hold of any of the accused.
11. Bhagwan Dass P. W. 11 is the next witness. He was also attracted to the place by the noise raised and his story about the incident is the same as that given by the other witnesses. In his examination-in-chief he stated that Nand Lal had a spear in his hand but he did not know where he got it from and that he used it in self-defence. In cross-examination he stated that Nand Lal had a spear in his hand when he came out of the baithak of Ganga Ram. Guranditta P. W 12 and Mukhtiar Singh P. W. 13 were only tendered for cross-examination.
12. Jagan Nath P. W. 19 who is a Lambardar is a witness of recoveries of bloodstained earth and bloodstained stick (Exhibit P-9) and a kirpan from Puran Singh's house. The other witness of recoveries is DES Raj P. W. 21 who has deposed as to the recovery of the kirpan at the instance of Puran Singh.
13. The last witness for the prosecution is Sub-Inspector Amar Nath who investigated the case. He stated that when he went to the spot he found Gobind Ram lying dead and Nand Lal ana Hira Lal lying Injured. The injured persons were taken to the hospital where both of them made statements, and as Nand Lal is dead, his statement (Exhibit P. DD) has been used as a dying declaration. According to this witness the place from where bloodstained earth was taken is about 12 feet from the baithak of Ganga Ram and two bloodstained blades of spears (Exs. P-1 and P-2) were taken into possession from the place. It is unfortunate that nobody has asked him anything about the crackers.
14. The defence was that Surjit Singh and Jita accused were throwing crackers to which objection was taken by Ganga Ram, Hira Lal, Hand Lal and Gobind Bam, and as they refused to stop throwing crackers there was an altereation which attracted Arur Singh to the place and he was injured by the complainant party which made him unconscious. But injuries to the complainants by the accused was denied.
15. The question to be determined then is have the prosecution proved their case that the arc sed were the aggressors and that the complainants were the victims of that aggression and Section 149, Indian Penal Code, applies to the facts of this case. It is also to be determined which of the accused persons have taken part in the offence and what is the offence committed, if any.
16. The place of the occurrence end the nature of the injuries caused on the complainant party lead me to the conclusion, supported as it is by the testimony of eye-witnesses who have materially corroborated each other, that the case of the prosecution is substantially correct. It cannot be said that the accused went there because of the trouble due to crackers and somebody else caused the injuries. It is not possible to believe that' the complainant party would have fared so badly and with such fatal results if they had been armed and had been the aggressors.
The number of the injuries and the nature of the injuries are indicative of the fact that whoever attacked the complainant party were very well armed and that the party of the complainant should have fared so badly near their own house shows that the attack was with certain amount of deliberateness and by a large number of people than the complainants. It was submitted that four of the accused, i.e., Bira, Surjit Singh, Amarjit Singh and Jitn, came later on in order to rescue the other accused persons who had become victims of the complainants' aggression and that even according to the prosecution story they were standing separately.
That by itself will not show that they were not members of the unlawful assembly. Three of the elders, ie., Arur Singh, Sirjan Singh and Puran Singh, according to the prosecution, went there first. They were armed with spears and a kirpan and it was afterwards that the youngsters, i.e., Bira, Surjit Singh, Amarjit Sinah and Jita joined the attack. Considering that they were all very well armed and were present at the place and took part in the assault and caused such severe injuries it cannot be said that the party of the accused did not have a common object.
17. It has been held in several cases which we have discussed at great length in Jit Singh v. State, Criminal Appeal No. 199 of 1953 (A) that there need not be a prior meeting of minds. It is enough that each has the same object in view. (See also Sukha and others v State of Rajasthan (S) AIR 1958 SC 513 (B). The Privy Council held in Barendra Kumar Ghosh v. Emperor, 52 Ind App 40 at P. 52: (AIR 1925 PC 1 at P. 7) (C) that the element of participation in action which is a leading feature of Section 34, Indian Penal Coda, is replaced in Section 149, Indian Penal Code, by membership of the assembly at the time of committing of the offence. In R.V. Bridmore, (1913) S Cr. App. Rep. 198 (D), the test for cases of this kind was laid down to be 'was the nature of the enterprise such that every member of the unlawful assembly ought to have realized that murder was likely to be committed.'
18. In a later case in the Supreme Court, Chikkarange Gowda and others v. State of Mysore, (S) AIR 1956 SC 731 (E), the elements of Section 149, Indian Penal Code, have been held to be-
(1) commission of an offence by any member,of an unlawful assembly;
(2) commission of the offence in prosecution of the common object of the unlawful assembly; and
(3) the offence must be such as the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object. Their Lordships approved of the statement of the law in Queen v. Sabed Ali, 20 Suth WR (Cr) 5 (F). Applying these tests in my opinion it is proved in this case that if the number was five or more the common object of the assembly was at least to commit an offence which would fall under Section 326, Indian Penal Code. I would have been inclined to say that the common object was murder, but that case has been negatived by the learned Judge below and there is no appeal by the State and therefore I confine myself to holding that the common object was at least to cause grievous injury within Section 32G, Indian Penal Code, which is clear from the place of the occurrence, the weapons used and the injuries caused.
19. It was then contended that there were not five people. This I am unable to accept because the learned Judge who acouitted two of the accused only gave them benefit of the doubt & the finding arrived at was that there were five persons or more and, in any case, every witness has stated that Bira was present and four of the accused persons are injured and their presence is undeniable.
20. Counsel for the appellant then submitted that injuries were caused on the persons of the accused and the complainants have not accounted for them. They have in the present case accounted for them by putting a scear in the hands of Nand Lal who either brought it from his house or snatch-ed it from Arur Singh, but the nature of the injuries on the persons of the accused is comparatively minor and it does not support the theory of a sudden fight because, as I have said above, if the occurrence had taken place as is claimed by the defence then the complainant party would not have fared so badly being near their own house and they could easily have either run into their own house or would have come out better armed.
21. The appellants then contend that because the origin of the fight is unknown the appellants are entitled to acquittal and rely on Ahmed Sher v. Emperor, AIR 1931 Lah 513 (G). In the first place this contention, even if tenable, is not applicable to the present case where the facts as to the beginning of the attack are riot unknown or shrouded in mystery. The prosecution has given their version of the origin of the assault which had been discussed by me above. There is no reason to reject this portion of the prosecution evidence. In this view of the matter the case relied on by the defence AIR 1931 Lah 513 (G), is not applicable. Besides the farts of that case were wholly different. There the parties had a free fight and it was found that the evidence of the prosecution was unreliable and therefore the origin of the fight became a material circumstance.
22. The Law of Homicide is contained in Sections 299 and 300, Indian Penal Code. If the easel falls under Section 300 then it is murder unless one of the exceptions to the section- becomes applicable The other defences to a charge of murder are contained in earlier sections which might make it excusable or justifiable homicide but in any case unless one of the various sections of the Indian Penal Code applies the onus under Section 105. of the Evidence Act is not discharged and in this matter it is not necessary to consider the applicability of the English rule in Woolmington v Public Prosecutions Director, 1935 App Cas 462 (H) or its modification in Mancini v. Public Prosecutions Director, 1942 App Cas 1 at p. 11 (I).
23. In my opinion the learned Judge has rightly convicted the accused persons and I would therefore dismiss both the appeals.
24. The State has not appealed and I do not find sufficient reasons for interfering in the petition filed by the complainants and ordering a retrial. I would therefore also dismiss the revision petition.
25. I agree.