1. Radha Kishan, Chhajwa, Budhi and Ganeshi (hereinafter also referred to as the first four appellants ) with Ram Saran, Chandi, Rewati, Jagram, Inderaj and Harchandi (also referred as the last six appellants), ten in all, belonging to village Khusropur in Gurgaon district were brought to trial before the learned Sessions Judge of Gurgaon for rioting, constructive murder, causing of injuries both simple and grievous, vicariously under sections 148, 302/149, 325/149 and 323/149, Indian Penal Code. The learned Judge holding all the accused guilty of being instrumental in causing the death of Dulli and grievous hurts to his uncle Chhida P. W., and simple hurts to his father Radha Kishan, Fateh, Siri Chand and Mam Chand, sentenced all of them to life imprisonment under sections 302/149, six months' rigorous imprisonment for rioting (under section 148), one year's rigorous imprisonment for grievous hurts (under sections 325/149, Indian Penal Code). The sentences on these convicts who have appealed to this Court, have to run concurrently according to the orders of the Sessions Judge.
2. The houses of some of the appellants and the party of the deceased are on opposite sides of the lane in village Khusropur. Some dispute existed about the constructions of the drain in the street and in consequence proceedings arose under sections 107 and 133 of the Code of Criminal Procedure. On 28th of June, 1966, when the occurrence took place, the proceedings were pending in Court, and at about noon time that day, Radha Kishan, with the assistance of his deceased son Dulli and grievously injured brother Chhida, was excavating a drain to take off the water from their house, when the first four appellants came there armed with lathis and prevented them from carrying out their object. Ganeshi actually shouted a lalkara that he would look to the consequences and that he would look to the consequences and that the men of the other party should be killed. Het Ram, Harkesh, Fateh, Siri Chand and Mam Chand came upon the scene of occurrence and tried to pacify the first four appellants but did not succeed in this object. An attack was opened by the first appellant Radha Kishan with a lathi blow on the head of Dulli, followed by a lathi blow by Ganeshi on him. Chhajwa gave a lathi blow on the nose of Chhida while Budhi gave a blow on the head of Radha Kisha. The last six appellants then turned upon the scene and threw brickbats (sua rora) on the party of the complainants. Dulli Chand, who had become unconscious was taken to Civil Hospital by Siri Chand, nephew of Radha Kishan, and Budh Ram, in a cart, while Radha Kishan himself went to lodge the first information report at Palwal Police Station, which is at a distance of two miles from Khusropur. The report was recorded on the dictation of Radha Kishan by ASI Jagdish Chander at 3.30 p.m. and a case was registered originally under section 308 of the Indian Penal Code. Radha Kishan's bloodstained injury on the head was noticed by the recording officer and a note to this effect was made by him. An injury statement of Radha Kishan was prepared and he was sent to Civil Hospital Pawal for medical examination.
3-11. (After discussion of the medical and other evidence adduced their Lordships concluded).
The injuries on the deceased and the prosecution witnesses are more in harmony with the prosecution version and the medical evidence, and we consider, therefore, that the beating was given by the appellants as stated in the prosecution evidence.
12. There, however, remains the more difficult question of the manner of participation of the ten appellants and the nature of the offences committed by them. We regard it as an embellishment and improvement in the prosecution story that the attack by the ten appellants was simultaneous with lathis. We think that a more reliable version is given in the first information report where it was stated that only the first four appellants attacked Radha Kishan, his son and brother with lathis in the first instance, and the last six appellants came only after Dulli had been given the fatal injuries and Radha Kishan and Chhida had been injured. The last six appellants, as stated in the first information report, only used brickbats and the story of their being armed lathis has to be rejected as an after-thought and improvement. According to this conclusion, the assault has clearly to be split up into two stages. The first four appellants who gave the lathi blows to Radha Kishan, Dulli and Chhida could have been found guilty under Ss. 302/34. Indian Penal Code, and not under sections 302/149, Indian Penal Code. The unlawful assembly was formed after the arrival of the last six appellants and subsequent to the fatal injuries resulting in the death of Dulli, and the infliction of grievous injury on Chhida. After the arrival of the last six appellants only simple injuries were caused and the ten appellants can, therefore, be convicted only under section 148 and sections and sections 323/149, Indian Penal Code. The concurrrent sentences awarded to the appellants on these counts are of six months and three months rigorous imprisonment respectively. So far as as the other offences are concerned, the last six appellants are not liable. They were released on bail by a Bench of this Court and we reduce the sentences imposed on them under Ss. 148 and 323/149. Indian Penal Code to the terms they have already undergone.
13. So far as the first four appellants are concerned, we think that Radha Kishan, the first appellant, was responsible for the fatal injury which resulted Budhi and Ganeshi could have been made liable for conviction under Ss.302/34 Indian Penal Code. They were, however, charged only under sections 302/149, Indian Penal Code. It has been held by the Supreme Court in Lakhan Mahto v. State of Bihar. AIR 1966 SC 1742, that section 149 constitutes a substantive offence and is not merely an enabling section 149 constitutes a substantive offence and is not merely an enabling section for imposition of vicarious liability. In other words, the conviction for vicarious liability cannot be altered by the appellate Court to conviction for direct liability. In the words of Mr. Justice Ramaswami at page 1745:
'There is a legal distinction between a charge under section 302, Indian Penal Code, and a charge of constructive liability under sections 302/149. Indian Penal Code, i.e., being a member of an unlawful assembly, the common object of which was to kill the deceased Sheosahay.' The Supreme Court approved of its earlier decision in Nanak Chand v. State of Punjab, AIR 1955 SC 274, where it was held that:- 'A charge for a substantive offence under Section 302, or Section 325, Indian Penal Code, is for a distinct and separate offence from that under Section 302 read with Section 149 or Section 325, read with Section 149. A person charged with an offence read with Section 149 cannot be convicted of the substantive offence without a specific charge being framed as required by Section 233, Criminal Procedure Code.'
Mr.Tewatia, the learned counsel for the State, has however, asked us to take into account the decision of the Supreme Court in W. Slaney v. State of Madhya Pradesh, AIR 1956 SC 116, and especially the observations of Chandrasekhara Aiyar J. at page 137 where it was observed by the learned Judge that:
'Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.
In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out . . .'
It is submitted by the learned State counsel that the charge under Ss. 302/149, Indian Penal Code, did not involve any prejudice to the accused Radha Kishan whose conviction under the substantive offence of section 302, Indian Penal Code, would be in order. I am afraid that in view of the categorical statement of the law in the Supreme Court decisions in AIR 1955 SC 274, and AIR 1966 SC 1742, it is not possible to say that any of the first four appellants could now be convicted under the substantive offence of section 302, Indian Penal Code. Can the first four appellants be, however, convicted under sections 302/34. Indian Penal Code, when they were actually charged under sections 302/149, Indian Penal Code? The answer to this question is provided by Mr. Justice Venkatarama Ayyar in Karnail Singh v. State of Punjab, AIR 1954 SC 204, where it was held that:
'If the common object which is the subject matter of the charge under section 149 does not necessarily involve a common subject matter of the charge under section 149 does not necessarily involve a common intention, then the substitution of section 34 for section 149 might result in prejudice to the accused and ought not therefore to be permitted.'
The trial proceeded on the basis that the ten appellants were members of an unlawful assembly, which had collected for the common object of causing death, grievous hurts and simple injuries to the persons of the complainant party. The change of conviction under sections 302/34, Indian Penal Code, would be fixing the first four appellants with the common intention of having caused death, grievous injuries and simple hurts to the persons concerned. It is something more than mere presence in an unlawful assembly that has to be brought out to bring the first appellant Radha Kishan voluntarily caused injuries which he knew could result in the death of Dulli. It is unfortunate that we cannot convict him under the substantive offence of section 302, Indian Penal Code. In our opinion, the first four appellants can be charged vicariously only for the grievous injuries caused to Dulli but considering that Radha Kishan was the person responsible for this, we would sentence him to a term of seven years' rigorous imprisonment under Ss. 325/34, Indian Penal Code, and the remaining three out of the first four appellants to three years' rigorous imprisonment each under sections 325/34, Indian Penal Code. It may be made clear that this is not a second conviction under Ss. 325/149. Indian Penal Code by the learned Sessions Judge in respect of the rigorous imprisonment thereunder (count 'thirdly' in the charge) and not for the grievous injuries inflicted to Dulli. The conviction and sentences of the first four appellants on the counts of sections 148 and 323/149, Indian Penal Code, would be upheld though in the case of the last six appellants the concurrent sentences of six months' and three months' rigorous imprisonment respectively are being reduced to those already undergone by them.
14. In the result, the appellants are convicted and sentenced as under and the appeal allowed to that extent:
(1) Radha Kishan: 7 years' rigorous imprisonment under sections 325/34. Indian penal Code, for causing grievous injuries to Dulli: one year's rigorous imprisonment under Section 325/34, Indian Penal Code, for causing grievous injury to Chhida; six months rigorous imprisonment under Section 148. Indian Penal Code and three months' rigorous imprisonment under section 323/149, Indian Penal Code all sentences to run concurrently.
(2) Chhajwa Budhi and Ganeshi; Three years' rigorous imprisonment under Sections 325/34, Indian Penal Code, for grievous Injuries to Dullil; one year rigorous imprisonment under Sections 325/34, Indian Penal Code. For grievous injury to Chhida; six months rigorous imprisonment under Section 148, Indian Penal code and three months' rigourous imprisonment under Sections 323/149, Indian Penal Code, all sentences to run concurrently.
(3) Ram Saran Chandi, Rewati, Jagram, Inderaj and Harachandi, the last six appellants; These appellants are on bail granted by this Court and have served a little over two months' rigorous imprisonment each. Upholding their convictions under sections 148 and 323 /149, Indian Penal Code the concurrent sentences on each count are reduced to those already undergone by them.
15. Appeal partly allowed.