L.S. Mehta, J.
1. By his judgment, dated May 26, 1966, learned Sessions Judge Jaipur District, Jaipur, convicted Gangaram. Gheesha s/o Daula; Parsia, Chhotia, and Harchand under Section 304, part II, read with Section 149, I.P.C, and sentenced them to rigorous imprisonment for three years each. The above accused were further held guilty under Section 147, Penal Code, and were sentenced to rigorous imprisonment for six months each. Both the sentences were directed to run concurrently. Phulia, Sagaria, Chandgi, and Sunda were convicted under Section 147, I.P.C, and each of them was sentenced to rigorous imprisonment for three months and to pay a fine of Rs. 50/-, in default of payment of which to suffer rigorous imprisonment for one month. Each of the four accused was also found guilty and sentenced to two months' rigorous imprisonment under Section 323, read with Section 149, I.P.C. The sentences on the two counts were ordered to run concurrently. Learned Sessions Judge acquitted the rest of the accused persons, namely Rameshwar, Manshia, Bhagwana s/o Sewa Nathu, Hira s/o Ranjeeta, Bhagwana s/o Ranjeeta, Rura; Narain Gujar, Gheesa s/o Sadhu, Gheesa s/o Bholu and Hira s/o Tamola.
2. Succinctly put the prosecution story is that Mukhlia Bavari (deceased) and his family consisting of three sons, namely, Prahlad, Hanuman and Mahadeo, his wife Mst. Ghandi, and his sons Prahlad's wife Mst. Rampati lived in village Kharkbari. The accused persons also resided in the same village. The villagers wanted the three sons of Mukhlia to keep watch over the crops growing in their fields, situate in the vicinity of the village in the year 1964-65, as they had been doing hitherto. It is alleged that on December 1, 1934, the above named three sons of Mukhlia were called by the villagers at 'Paras' and were asked to keep watch over their crops. The sons of Mukhlia demanded grain from the people in lieu of iheir past services. But the villagers did not agree to part with grain. Thereupon Prahlad and his two brothers Mahadeo and Hanuman refused to undertake the work and they returned home. On their way back Harchand met them in front of his house. He caught hold of the neck of Mahadeo Another person Sagaria pulled his hand, Phulia alto gave beating to him. Rarrpati w/o Prahlad rescued him. Harchand gave a lathi blow to her. Mukhlia's family members wanted to report this incident to the police. The villagers told them not to do so, lest their lives would be in peril. On December 2, 1964, at about 8 a.m., Harchand and Sultan went lo the house of Mukhlia and told his three sons that they were called by Gangaram, Parsia and Gheesa. But they declined to meet them. Harchand and Sultan then returned to the 'Paras' and raised a cry that the Bavaris had the audacity to defy them. Thereafter, Gangaram, Gheesa, Parsia Chhotia, and Harchand rushed to the Bavarias' house. Harchand had a' lathi with him and the rest of the accused were armed with 'Pharsis'. Gangaram gave a 'Pharsi' blow with its wooden handle on Mukhlia's h, ad a s a result of which Mukhlia sustained a fracture on his head. Harchand also gave a lathi blow on the arm of Mukhlia, causing a fracture to it. The other three persons also administered beating with 'Pharsis' to Mukhlia. Mukhlia fell down and died on the spot. Soon after Phulia Sagaria. Chandgi, Sundia & others came to the residence of Bavaris and dealt various lathi blows to Hanuman, P.W. 2, Mahadeo, P.W. 3, Prahlad, P.W. 4, Mst. Rampati, P.W. 5, and Mst. Chandi, P.W. 6. It is further alleged that Harchand s/o. Sundaram Jat had lodged a report at the police station, Kotputli, alleging that Hanuman, Prahlad and Mahadeo had committed theft of his two bullocks and when they had been caught red handed, they had given beating to him. When that report had been lodged by Harchand, Satyapal, Head Constable, police Station, Kotputli, proceeded to the place of occurrence in connection with investigation of the theft case. In the village Head Constable, Satyapal, found the dead body of Mukhlia Bavari & when he was apprised of the whole incident, he immediately took in hand the investigation of Mukhlia's murder. He sent the dead body of Mukhlia for post mortem examination to Dr. Y.S Mathur, Medical Officer, Kotputli, P.W. 1. The Doctor noticed the following injuries on the person of Mukhlia:
1. Constused wound 1' X 1' X scalp deep left side of head 2' above the ear.
2. Fracture by humerus at about its middle displacement.
3. Slight swelling of the whole of right arm.
1. Haemtoma below external injury No. 1 occupying postero lateral part of vertex on left side.
2. Fissured fracture of left parietal 4' long.
3. Fissured fracture of 1' parietal occipital subture on right side of occipital reaching the ear level 7' long.
4. Fissured fracture of left parietal 2' long radiating from injur No. 3 2' from its anterior end going up.
5. Membrain and brain congested.
6. Laceration of right aim muscle round fractured humerus.
In the opinion of the Doctor, the cause of death was coma, as a result of the fracture of the scalp bone,. The death of the deceased took place about 24 hours prior to the post-mortem examination. The Doctor is further of the opinion that internal injuries Nos. 1 to 4 were sufficient in the ordinary course of nature to cause death.
3. The Doctor also examined Prahlad, son of Mukhlia. He found 20 injuries on his person. They were simple in nature and were caused by blunt weapon. The injury report is Ex. P. 2. The Medical Officer then examined Mst. Rampati w/o Prahlad. He found 7 injuries on her person. All of them were simple in nature except injury No. 1, which was grievous. The injuries were caused by a blunt weapon The injury report of Mst. Rampati is Ex. P. 3. Later, the Doctor examined Mst. Chandi w/o Mukhlia and he. found 3 simple injuries on her person. Thereafter Dr. Mathur examined Mst. Chandra Kanta, daughter of Prahlad. He saw two simple injuries on her person. The injury report is marked Ex. P. 5. Hanuman s/o Mukhlia was also examined by the Doctor and he found 15 simple injuries on his person. His injury report is Ex. P. 7. Ultimately, Mahadeo s/o Mukhlia was examined by the same Doctor and it was noticed that he sustained 18 injuries which were simple in nature The injury report is marked Ex. P. 8. On Dec. 28, 1964, X ray examination of Hanuman was conducted & after screening the Doctor found a fracture on the left ulna X ray report is marked Ex. P. 9. It may also be mentioned here that the accused Harchand was medically examined on Dec 2, 1964 by the same Doctor. Nine simple injuries were found on his person. They were all caused with blunt object. The injury report is marked Ex. P. 6. After completing necessary investigation the police put up a challan in the court of the Munsiff-Magistrate, Kot-Putli. The said Magistrate conducted preliminary inquiry in accordance with the provisions of Section 207A. Cr.P.C., and committed the accused to the court of learned Sessions Judge, Jaipur District, Jaipur, for trial.
4. The trial Judge charged Gangaram, Gheesa, s/o Daula, Parsia, Ghhotia and Harchand Under Sections 302, 148 and 325, read with Section 149, I.P.C. The other accused persons, including Phulia, Sagaria, Chandgi and Sundia, were indicted under Section 302 read with Sections 149, 325, read with Section 149, and under Section 147, I.P.C. The accused pleaded not guilty to the charges and claimed to be tried. In support of its case the prosecution examined 11 witnesses. The accused made total denial of the offences, with which they stood charged. In his defence of alibi, Parsia examined Ghisaram. D.W. 1. and Phulia produced Badluram, D.W. 2. Eventually the trial court convicted and sentenced the accused, as aforesaid.
5. Aggrieved against the above judgment, Gangaram and 8 others have filed appeal (S.B. Criminal Appeal No. 400 of 1966) for their acquittal, Mst. Chandi w/o Mukhlia has taken a revision (D.B. Criminal Revision No. 276 of 1966) against Gangaram and others against their acquittal Under Section 302, read with Section 149, I.P.C. and for enhancement of their sentences.
6. Contention of learned Counsel for the accused is that no case is made out against all the accused, particularly against the accused Gheesa s/o. Daula, Parsia and Chhotia and that the trial court wrongly convicted them under Section 304, read with Section 149, and Section 147, I.P.C. His further contention is that as a pretty long time has elapsed since the occurrence, Phulia, Sagaria, Chandgi and Sundia should not now be put behind the bar for undergoing the short sentences of imprisonment imposed by the trial court. Learned Counsel for Mst. Chandi has urged that the trial court went wrong in acquitting the accused of the offence Under Section 302, I.P.C, and in passing inadequate sentences for minor offences. Counsel for the State supported the judgment of trial court.
7. In this case there are two sets of the accused persons as has been classified by the trying Judge. The first set comprises Gangaram, Gheesa s/o Daula, Parsia, Sundia, and Harchand. The second set consists of Phulia, Sagaria, Chandgi and Chhotia. The first set is reported to have arrived at the spot at the initial stage of the happening. These persons are alleged to have administered beating to Mukhlia. Thereafter when Mukhlia had already been dead, the personnel of the other set, viz, Phulia, Sundia, Chandgi, Sagaria and others reached the spot and gave beating to Mahadeo, Hanuman, Prahlad, Rampati wife of Prahlad and Chandi w/o Mukhlia. The members of the other set cannot be said to have been connected with the murder of Mukhlia since they arrived late on the scene and not at the time when Mukhlia had been given actual beating. In that context,' the trial court rightly divided the accused persons into two sets.
8. Now it is to be seen whether the accused can be convicted under Section 147, I.P.C. and whether Section 149 I.P.C. is applicable to this case.
9. The prosecution examined 5 eye witnesses' namely, P.W.2. Hanuman, P.W 3 Mahadeo, P.W. 4, Prahlad, P.W. 5 Rampati and Mst. Chandi, P.W. 6. All these witnesses are unanimous on the point that the accused Gangaram gave a 'Pharsi' blow on Mukhlja's head External injury No. 1. on the head of the deceased, according to the Doctor, was caused by one blow. Internal Luxuries Nos. 1 to 4 were the result of the external injury No. 1. External injury No. 6 was due to internal injury No. 2. The Doctor opines that the deceased received only 2 injuries, one on the head and the other on the arm. The above named witnesses have deposed that Gangaram inflicted head injury to the deceased and Harchand delivered a lathi blow on the deceased. Thus, the specific parts played by Gangaram and Harchand have been pointedly attributed by the witnesses. The witnesses have stated that Gheesa, Parsia and Chhotia also inflicted injuries to Mukhlia, but this fact is not borne out by the medical evidence. That shows that the witnerses have falsely implicated Gheesa, Parsia, and Chhotia These three persons might be present on the spot, but that does not mean that they were possessed of criminal intention and that they administered beating to Mukhlia.
10. It is a settled law that for the applicability of Section 149, I.P.C, an overt act need not be proved against the person who is alleged to be a member of an unlawful assembly. What has to be proved is that he was one of the persons constituting the assembly, and he entertained along with the other members of the assembly the common object, as defined in Section 141. I.P.C. An assembly of five or more persons actuated by and entertaining one or more of the common object, specified by Section 141, I.P.C., is an unlawful assembly. The crucial question to be determined in such a case is whether the assembly consisted of 5 or more persons and whether the said persons entertained one or more of the common objects, as mentioned in Section 141, I.P.C. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive spectators and had joined the assembly as a matter of idle curiosity without intending to entertain the common objects of the assembly : Section 149, I.P.C. makes it clear that if an offence is committed by any member of an unlawful assembly in; prosecution of its common objects, or such as the persons of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, and is guilty of the offence committed by the assembly. This position brings out the principle of punishment prescribed in Section 149, which is, in a sense vicarious and does not always proceed on the basis that the offence must have been actually committed by every member of the unlawful assembly.
11. In the absence of clear evidence against the above named 3 persons, their mere presence would not necessarily show that they were members of an unlawful assembly. Unless there is positive evidence, it cannot be said with certainty that the three accused persons Gheesa, Parsia and Chhotia entertained along with other members of the assembly the common object, as defined by Section 141, Penal Code. If these people entertained common object and were in possession of 'Pharsis' why they remained silent spectators is not understandable. The whole occurrence took place on the initiation of Gangaram and all of sudden fight flared up on the spot. From this circumstance also it can be inferred that these three accused persons had no common object of committing some offence. It was necessary for the prosecution to lead evidence pointing but to the irresistible conclusion that these three appellants before us had entertained a common object with the assembly in accordance with the provision of Section 141, I.P.C. The evidence as recorded against them is in general terms to this effect that they were miscreants and were armed with 'Pharsis'. This kind of omnibus testimony has to be very closely scrutinised in order to eliminate all chances of false or mistaken implication. We are not satisfied' with the fact that the three accused persons had joined the assembly with the common object of Committing an offence. On a proper examination of the case, it is apparent that the three accused might have been mere spectators and they might have been wrongly branded as members of the unlawful assembly. The trial court, therefore, was not correct in applying Section 149, I.P.C., to them and convicting them Under Section 304 (Part II), read with Section 149, I.P.C. Similarly they also cannot be held liable Under Section 147, I.P.C. These persons might possibly have been spectators who got up mixed in the crowd. They will, therefore, be given the benefit of doubt and acquitted.
12. Appellant Gangaram has been named by all these witnesses mentioned as having taken a leading part in the occurrence, He inflicted a 'Pharsi' blow on the vital portion of the body of Mukhlia. The episode of the fracture of the scalp is corroborated by the medical evidence. It must, therefore, be held that Gangaram was not a mere spectator. The trial court convicted him under Section 304, Part II, Penal Code. We do not feel' inclined to disturb that finding though, 'in our opinion, his conviction under Section 147, I.P.C. is not sustainable.
13. Appellent Harchand has also been assigned the specific part of inflicting a lathi blow on the hand of Mukhlia. The evidence of the above named five-eyewitnesses directly implicates him in the crime. This evidence negatives the theory of his having been a mere site-seer. The court below convicted him under Section 304, read with Section 149 and Section 147, I.P.C In our opinion, he is guilty of the specific part played by him and he should have been convicted under Section 325, instead of Section 147, and 304 read with Section 149, I.P.C. His plea that a theft had been committed in his house by the Bavris & that he had been beaten by them in the night has not been proved and it appears to be a camouflage to cover up his sin.
14. We may now turn to the second set of the accused persons, namely, Phulia, Sagaria, Chandgi and Sundia. Hanuman, P.W. 2, has said that Phulia gave him a lathi blow. Sundia also beat him. P.W. 3 Mahadeo told the court that Phulia, Chandgi and Sagaria beat him. Sagaria gave 3 lathi blows on his head and Chandgi hit a lathi blow on his back, Prahlad P.W. 4 testifies that Phulia and Sagaria beat him. Phulia gave a 'Jeli' blow on his hand. Sundia struck a lathi blow on his foot. Mst. Rampati P.W. 5, states that Chandgi gave a lathi blow on her back and foot. Mst. Chandi P.W. 6 points out that Chandgi and Sagaria beat her son Mahadeo that Phulia gave a 'Jeli' blow on her head. All these witnesses assigned specific part to Phulia, Sagaria, Chandgi and Sundia. It may also be mentioned here that when a concerted attack is made on a number of persons, it is often difficult to determine the actual part played by each of the offender. At any rate, there is clear, credible and convincing evidence on the record to suggest what specific part was played by Phulia, Sagaria, Sundia and Chandgi and that part is corroborated by medical evidence. Therefore, the accused are clearly guilty of the offence under Section 323, I P.C. We, however, for the reasons stated above, feel hesitant in applying Sections 149 and 147, I.P.C, to the case of these 4 accused persons also.
15 Learned Counsel for the petitioner Mst. Chandi urged that the accused ought to have been convicted under Section 302/149, I.P.C. and adequately punished. The State Government has not filed any appeal against the acquittal of the accused Under Section 302, read with Section 149, I.P.C, or for the enhancement of the sentences. It is true that it is open to the High Court in revision to set aside an order of acquittal, even at the instance of a private party, though the State may not have thought fit to prefer an appeal or make a revision. But such a power has to be exercised only in exceptional cases, when there is some glaring defect in the procedure or there is manifest error on a point of law, resulting in a flagrant miscarriage of justice. Sub-Section (4) of Section 439 Cr.P.C., does not empower a High Court to convert a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by indirect method of ordering retrial. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that such a power can be exercised. These cases may be when the trial court had no jurisdiction to try the case and still it acquitted the accused, or when the trial court had wrongly shut out the evidence which the prosecution or the defence wished to produce. These and other cognate matters can properly be held to be cases of exceptional kind, where the High Court can justify interference with the order of acquittal. Here, no such exceptional grounds are forthcoming. It can neither be said that the trial court had no jurisdiction to try the case nor can it be said that it shut out the relevant evidence to be produced by the party concerned. Under the circumstances, we do not feel inclined to accept the revision application for setting aside the acquittal of the accused under Section 302 read with Sac. 149. I.P.C, by a private party.
16 In the result, we accept the appeal of Gheesa, Parsia, and Chhotia and acquit them of the offences under Sections 147 and 301, read with Section 149, I.P.C They need not surrender to their bail bonds. We also partially accept the appeal of accused Gangaram and acquit him of the offence under Section 147, Penal Code. We convict him for the offence under Section 304 (Para II), I.P.C, and sentence him to three years' rigorous imprisonment. We also partially accept the appeal of Harchand and set aside his conviction under Section 304, read with Section 149, I.P.C, and under Section 147, Penal Code. We convict him under Section 325, I.P.C, and sentence him to imprisonment for two and half years. We also partially accept the appeal of Phulia, Sagaria, Chandgi and Sundia and acquit them of the offences under Section 323, read with Section 147, I.P.C, and instead convict them under Section 323, Penal Code. As more than 4 years have elapsed since the occurrence, we do not propose to maintain the short terms of substantive sentences of imprisonment under Section 323, I.P.C. We accordingly sentence them to the payment of a fine of Rs. 250/-, in default of payment of which to undergo rigorous imprisonment for a period of two months each. Out of the amounts of fine so recovered, Rs. 100/- may be given to each of the injured family members of the deceased Mukhlia, viz. Prahlad, Mahadeo, Hanuman, Mst. Chandi and Mst. Rampati. One month's time is given to the accused persons to pay the amounts of fine. The District Magistrate, Jaipur, is directed to take necessary steps for the arrest of the accused Gangaram and Hdrchand and send them to Jail to serve the sentences awarded to them. The bail bonds of other accused persons stand cancelled.