M.L. Jain, J.
1. This is an appeal against the judgment of the Sessions Judge, Jaipur District, Jaipur, dated April 26, 1972, by which he convicted and sentenced each of the appellants as follows:
(1) Under Section 304 part II read with Section 149 IPC, to rigorous imprisonment for three years and to a time of Rs. 300/- in default whereof to rigorous imprisonment for two months.
(2) Under Section 148 IPC, to rigorous imprisonment for six months and to a fine of Rs. 100/- in default whereof to rigorous imprisonment for one month,
(3) Under Section 323 read with Section 149 IPC to rigorous imprisonment for three months and a fine of Rs. 100/ in default whereof to rigorous imprisonment for one month.
The substantive sentences of imprisonment were directed to run concurrently.
2. I have seen the record and beard the arguments. The prosecution case is that in village, Prempura, there is a well known as Hanuman Sagar' and the land thereof is known as 'Guwarwala (sic). On 11-1-71, at about noon, Bhoorasson of Goma and Mangu accused went to their (sic) question with a cart loaded with stones. The complainant party asked them not to unload the stones in the field but they did not agree. There upon, Girdhari deceased, who was repairing the engine on the well Hanuman Sagar' went to ask them to desist from unloading the stones. Girdhari was followed by other members of be complainant party who were working in the field On the other side, Ramu, Ruda, Hardev, Baksha, Surja, Mota, Heera, Bhoora and Bboora rushed to the help of Bhoora son of Goma are Mangu. Ramu had a Genda in his hand and Bhoori had a 'Jeli', while the remaining accused were armed with lathis. It is alleged that they were saying that anyone who prevented then from unloading the stones, would be done to death. Immediately they attacked the complainant party. Ramu, Ruda, Hardev, Mangu and Bhoora son of Goma inflicted blows on the bead of Girdhari. The accused party also inflicted injuries on Lalu, Ghisa PW. 3, Isar PW. 9 Laxman PW. 8, Teeja and Rama PW. 1, Hearing the cries of the injured persons witnesses Nathu PW. 6 and Kishan PW. 7 who happended to pass by that side rushed to their rescue. The accused then went away with their cart.
3. The injured were taken to hospital Bhainshana where Dr. Banwari Lal PW. 6 examined them. He found the following injuries an the person of Girdhari:
(1) Lacerated wound 1/2' x 1/4'' x 1/4' on the left side of the scalp 4 1/4' from the root of the nose.
(2) Fracture of the lower tooth incisor, bruise present on the inner fide of the lower check 2' x 1' in size, profuse bleeding from the gum sockets, bleeding on pressure, tooth could not be found in the socket.
(3) Head injury because of rupture of some artery in the brain leading to pressure symptoms, possibly sudural hemorrhage.
The injuries could be caused by 'Genda' or by lathis. Girdhari was referred to the SMS Hospital, Jaipur but he appears to have died on the way. Dr. S.B.L. Mathur PW 14 of the SMS Hospital, Jaipur performed the postmortem examination He noted the following external injuries:
(i) Lacerated wound 3 1/2 cm x 1/4 cm x 1/4 cm oblique in medial line parietal region (sic) middle.
(ii) Bruise as haemotoma 8cm x 8 cm. on scalp right side temporo partietal and frontal regions.
(iii) Abrasion 1 cm x 1 cm on back of the right elbow joint.
(iv) Bruise as haemotoma 8 cm x 6 cm on scalp 1 ft side partietal temporal region
On opening the body be found the skull fractured at various places There was hemorrhage in the brain and quid had clotted blood over the surface of the brain under the membrane. The medical (sic) was of the opinion that the death occurred on account of coma by bead injury. The jurist was further of the view that collectively the injuries were sufficient in the ordinary course of nature to cause death, though no one injury was so sufficient. He could not say which of the external injury caused internal effects in the skull. He did not find any injury on the face or mouth.
4. Dr Banwari Lal bad also examined Isar PW. 9 and he found one lacerated wound on the left mastoid bone with slight haematoma 1' x 1/2' x 1/2' caused by blunt weapon. He also examined Kishan Ram PW. 4 who had suffered five simple injuries. Out of these injuries, two were lacerated wounds, two were bruises and one was a haematoma Mst. Ramli PW. 1 wife of Girdhari had a lacerated wound on the left side of scalo. Teeja had two injuries, one lacerated wound and one bruise Ghisa Ram PW. 6 had five injuries, three being bruise and two were abrasions Bhoori PW. 2 had an abrasion and a lacerated wound. Laxman PW. 8 had one bruise. Ladu received four bruises.
5. When the accused were arrested, three of them were found injured. Mangu had an abrasion on the right index finger and another abrasion on the scalp. Heera had a bruise on the left thigh and a lacerated wound on the left parietal region. Ramu got a lacerated, wound on the second toe of the left foot.
6. The learned trial Judge after discussing the evidence led on both sides found that the occurrence took place in that part of the field which was to possession of the accused persons though the field was of the joint ownership of the parties. The learned trial Judge therefore, was of the view that it was not possible to say that all or any of the accused persons committed criminal trespass by entering the field. The learned trial Judge however, came to the conclusion that the accused bad formed in o an unlawful assembly and their common object was to give beating to Girdhari and party. He rejected the contention that the accused had any right of private defence of property or person The accused were accused by the desire to punish the persons of the complainant party by inflecting numerous injuries They were already prepared to pounce upon the complainant party who were obstructing unloading of their cart in the joint field which was not partitioned The learned trial Judge then further came to the conclusion that Mangu, Bhoora son of Goma, Ruda, Ramu and Hardev a were certainly member of that unlawful assembly as deposed to by Bhoori PW. 2, Ghisa Ram PW. 3, Kesri PW. 4, Kesra PW. 7 and by Bodu DW. 4. The learned Judge further held that the injuries received by Girdhari were definitely likely to cause his death and the accused persons-knew that this was the likely result of he injuries He therefore, convicted all the accused persons under Section 304 part II read with 149 IPC Similarly for the injuries received by the other members of the complainant party, he convicted the aforesaid five persons under Section 323 read with 149 IPC He also found that they were armed with lethal weapons and there one, guilty under Section 148 IPC The learned trial judge acquitted ail the accused of the charge under Section 447 IPC as the case against them was not proved beyond all manner of reasonable doubt. He sentenced the accused appellants as aforesaid but granted probation to Hardeva because be was below 21 years of age.
7. The learned Counsel for the accused appellant submitted that once the learned trial Judge held that the accused were not guilty of criminal trespass under Section 447 IPC, then their ac of filing stones in that portion of the field which was in their possession, was not an unlawful act, rather it should have been held that it were the complainant party who committed criminal trespass, and if the accused did no permit them to commit criminal trespass and repelled them, then, it cannot be said that their act was covered by any of the objects enumerated in Section 141 IPC It was painted out that the assailants could not be five in number as it is not possible for anyone to believe that five persons will attack Girdhari and cause only two injuries; one on the head and the other on the tooth, (sic), in the charge, which was read over to the accused persons, the common object of the unlawful assembly was stated to be to commit criminal trespass but the finding of the trial court was that the object of the unlawful assembly was to inflict injuries on the complainant patty. This is not permissible as held in King Emperor v. Akbar Molla : AIR1924Cal449 Thus a common object shared by five persons having not been proved, there was no unlawful assembly, it the court comes to the conclusion that there was no unlawful assembly, then the accused can be held responsible for individual acts only the trial Judge also erred in rejecting the right of private defence of property and person. The theory of right of private deference was taken up by putting to witness Isar Singh PW. 9 question that it were the complainant party who attacked and injured the accused party the prosecution has also failed to explain the injury a of the accused out of whom Heera even got a lacerated wound on the head. In these circumstances, the learned trial Judge should have upheld the plea of self defence. All the accused were thus entitled to acquittal.
8. I have considered over the objections raised by tire learned Counsel for the appellants. I agree that no assembly can be designated as an unlawful one unless it consists of five or more persons and unless their common object was one or more of the common objects specified in Section 141 IPC, Out of them, the ones that can be considered relevant for our purpose are (1) to Commit any mischief, criminal trespass or other offence, or (2) by means of criminal force or show of criminal force, to any person to take or obtain possession of any property etc., or to enforce any right or supposed right, vide clause third and fourth of Section 141 IPC.
9. Now there is no question of committing mischief. The learned trial Judge has acquitted the accused of the charge of criminal trespass under Section 447 IPC He has also come to the conclusion that the field in question was o joint ownership but the portion in which the occurrence to k place was in the cultivatory possession of the accused persons. If that is the position as it appears it is, then, the complainant party had no right to prevent the accused from unloading stones in the disputed portion It is also a fact that it was the complainant party (including Girdhari) which went to the field which was in possession of the accused patty One, therefore, has got to agree with the argument that it were the complainant party who were the aggressors. If the accused resisted the acts of the complainant party, then, it cannot be said that their object was unlawful as they were not taking or obtaining possession of the land nor were they depriving the complainant party of any use or enjoyment of any incorporable right, nor were they enforcing any right or supposed right. Rather it was the other way round even if one were to hold as was held by the learned trial Judge, that the accused party were waiting ready to pounce upon the complainant party, even then, it cannot be said that their object was merely to commit an offence i.e. to bear the complainant party and not to resist obstruction It is in evidence that Mangu and Bhoora were engaged in unloading their part. They the before, con not from the start be considered to be the members of an unlawful assembly of five Other members of the accused party arrived later on but then their idea too was only to prevent the complainant party from interfering with the work of unloading. Moreover whatever common object was alleged, that too was not proved. In the charge the common object stained was to commit criminal trespass, while the common object that was proved, was to chastise Girdhari and party. Serious prejudice has thus by this change, been caused to the accused in putting up their defence therefore, hold that the accused have been wittingly convicted for the offence of forming an unlawful assembly, and they cannot be held guilty under Sections 148 and 149 IPC. I need not back any support for this conclusion from the two Supreme Court decisions it Kishori Prasad v. State of Bihar 1969 CAR 48 (SC) and State of Bihar v. Nathu Pandey 1969 CAR 214 (SC) which have lard down that where an assembly commits an act which would be an offence but for its being done in the E exercise within legally prescribed limit, of a right of private defence of person on property, such an act can obviously not be held to be covered by any of the objects specified in Section 141 IPC. Tomy mind, of an act is a legitimate, exercise of self defence, then it is no offence in the eye of law as provided by Section 96 IPC and that being so, there is hardly any occasion for consideration whether it is an act covered by any provision relating to a joint liability under Section 34 or 35 IPC or to a vicarious liability under Section 149 IPC. But where it is alleged that the exercise of the right of private defence crossed the limits laid down by law the court shall be required to consider whether that right has been exceeded and if so, then to determine upon the evidence on record what the individual liability of the accused is.
10. The learned public prosecutor contends that even though the accused were held to have had no such common object as to convert their into an unlawful assembly, yet the accused have not been able to show that they had any right of private defence of person or of property and even if they had any semblance of it, they had for exceeded it by voluntarily causing the death of Girdhari an intervener, unarmed and helpless. He relied upon Girbachan Singh v. State of Haryana : 1974CriLJ463 and urged that it was proved that the deceased Girdhari was unarmed and went to the accused just to ask them not to unload stones in the land which has been found by the learned trial court to be in joint ownership though in cultivatory possession of the accused. This was if at all a kind of trespass on the part of Girdhari which was nor covered by Section 103 IPC and therefore, the accused could not cause his death. Rama accused had got only one of his toes lacerated and co accused Heera also got a hurt on the bead but that too a simple one. There was absolutely no apprehension that if Girdari was not silenced, death or grievous hurt on the side of the accused was the likely consequence of the assault made by the opposite party, It will be noticed that there could be no such threat in the feast emanating from the deceased Girdhari the case therefore, falls within the mischief of exception 2 to Section 300 IPC as exceeding the power given by law without any intention but certainly with the (knowledge) of doing more harm than was necessary for the purpose, The accused can and should therefore be convicted under Section 304 Part II.
11. But the learned Counsel for the appellant maintained that the appellants were charged with an offence under Section 302/149 IPC and were convicted under Section 304 Part II read with Section 149 IPC. No one of them can now be convicted of the substantive offence under Section 304 part II IPC. Raliance for this proposition was placed by him on Lakha Mahto v State of Bibar : 1966CriLJ1349 allowed in Ram Swarup v. State 1972 RLW 325.
12. Lakhan Mahto's case : 1966CriLJ1349 the accused was charged under Section 302 IPC but was acquitted thereof & instead was convicted under Section 302/149 IPC the State filed no appeal against his acquittal but be did against conviction The High Court altered the conviction from 302/149 to a min offence under Section 326 IPC the Supreme Court acquitted the accused on the following grounds:
(a) Since there was no appeal against the order of acquittal under Section 302 IPC, the High Court had no jurisdiction to convict the accused under Section 326 IPC Reliance was placed on State of Andhra Pradesh v. Narayana : 2SCR904 .
(b) The accused could not be convicted of an offence with which he had not been charged. Reliance was placed on Nanakchand v. State of Punjab : 1955CriLJ721 and Suraj Pal v. State of Uttar Pradesh : 1955CriLJ1004
13. Now, as to the first ground what I understand from Andhra Pradesh v. T. Narayana : 2SCR904 and Jai Ram Vithoba v. State of Bombay AIR 1966 SC 146 is that where a trial court acquits a person of an offence, be cannot be convicted of that offence unless there is an appeal or revision against such acquittal. IN Ishwar Singh v. State of Rajasthan 1972 WLN 269 this rule was applied even to a case where the trial court does not say anything about the charge and thus, there occurs an implied acquittal, In the instant case, we are not faced with any such problem as the trial court had not acquitted the accused of an offence under Section 304 part II IPC.
14. As regards the second ground, both Nanakchand's case : 1955CriLJ721 and Surajpal's case : 1955CriLJ1004 were considered in W. Slaney, v. State of M.P. (12) and were distinguished on facts. The Supreme Court pointed out that under Section 535 and 537 (now Section 464 New) Cr. PC no finding, sentence or order is invalid on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges unless in the opinion, of the court of appeal, confirmation on revision a failure of justice has in tact occasioned thereby. It was remarked, that the code is emphatic that whatever the irregularity it is not to be regarded as fatal unless there is prejudice. It is immaterial what the offence is and whether the irregularity occasioned any prejudice 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. However, omission to frame a charge is a grave defect and should be diligently guarded against In some cases it may be so serious that by it sell it would vitiate a trial and render it illegal, prejudice to the accused being taken for granted Slaney's case (12) was not brought to the notice of the court in Lakhan Mahto's case : 1966CriLJ1349 .
15. However, Section 221 (237 old) Cr. P.C. permits that where an accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged he may be convicted of the offence which he is shown to have committed, although he was not charged with it. Under Section 222 (238 old) Cr. P.C. when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence and such combination is proved or when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it. In a recent case of the Supreme Court Maina Singh v. Stale of Rajasthan 1976 CAR 145 (SC) the Sessions Judge bad found that it was not possible to record the conviction Under Section 332 read with Section 149 IPC and convicted the accused Under Section 302 read with Section 34 IPC. The High Court also upheld the conviction Since the other coaccused were given the benefit of doubt and were acquitted (and it was not the prosecution case that there were some persons other than the person so acquitted, along with appellant in causing the injuries to the deceased) it was held that it was as such not permissible to invoke Section 149 or Section 34 IPC. The appellant would be responsible for the offence, if any, which could be shown to have been committed by him without regard to the participation of others. Accordingly, the Supreme Court altered the conviction of Maina Singh under Section 302 read with Section 34 to one under Section 326 IPC This view is in accordance with the observations in the penultimate para of Kishori Prasad's case 1969 CAR 48 (SC) which, lays down that where a person is acquitted of an offence read with Section 149 IPC, he is liable for his individual acts. In Ishwar Singh v. State of Rajasthan 1972 WLN 269 and also in Ram Swarup v. State : 1955CriLJ721 it was reitereated that where a person attacks in self-defence, he cannot be convicted under Section 149 or under Section 34 IPC, and the liability of the accused in such a case is only in individual liability. Indeed, as is urged, if he could not be convicted of an offence based on his individual acts, then what use would it be to consider his individual acts?
16. I, therefore, reject the contention that the appellants cannot be convicted by this court even of a minor or other offence if they were initially required to meet only a charge of an offence read with Section 149 IPC and were not charged with such minor of other offence. Such a contention can be upheld only if it could be shown that prejudice has been caused to the accused.
17. Let us now turn to the evidence to find the individual part played by the accused persons in this case, and also see if any one of them had exceeded the right of self defence So for as the simple hurts are concerned one can at once say that there has been no excess; Is there then evidence to show as to who gave the fatal wound to Girdhari and whetted in doing so he had exceeded such a right & it so. what is the offence committed by that accused?
18. In this connection, in order to determine the presence of injuries on the head of Girdhari, medical evidence has a considerable bearing. Dr. Banwarilal P.W. 16 found one lacerated would on the left side of the calp. Dr. Mathur PW. 14 found a lacerated wound (sic) in parietal region in the middle. He further noticed two bruises as haemotama on the (sic) and right sides He could not say if any of the external injuries could cause the internal effects in the skull Upon these statements of the two doctors I am inclined to say that the two bruises as haemotama were a later development, otherwise Dr. Banwarilal could not have failed to notice them earlier. I can further safely hold that it was the injury of the scalp which caused the skull fractured and internal bleeding resulting in coma and finally death. What is then the evidence regarding the author of this wound?
19. Mst. Rama PW. 1 who is the widow of Girdhari deposed that Rama, Ruda Hardeva, Mangu and Bhoora all attacked Girdhari As argued by the learned Counsel for the appellant, this cannot be believed because the deceased Girdhari had only two or three injuries. She was also confronted with her police statement Ex D. 1 in which she had omitted to state that the said five persons bad simultaneously attacked Girdhari. Thus, this contradiction makes her statement unreliable on this point Bhoori PW. 2 had deposed that Ramu gave a Genda blow on the head of Girdhari and Ruda gave a lathi blow. Then Mangya, Hardeva and thereafter all the aforesaid five persons attacked him. Bhoori was confronted with her police statement Ex. D 2 in which she omitted to state that the aforesaid five persons injured Girdhari. Her evidence therefore, cannot he believed except against Ramu and Ruda. Ghisa Ram PW. 3 and Kesri PW 4 have deposed that Ramu and Ruda hit Girdhari on the head. Kishan PW. 7 deposed that Ramu gave a lathi blow on the head of Girdhari. Ruda also gave a blow to the deceased. Laxman PW. 8 has deposed that Ramu gave a 'soti' blow to Girdhari. Ruda also hit him It was the blow of Mangu which broke the tooth of Girdhari He further stated that it was Ramu who gave the first blow on the head of Girdhari.
20. From the aforesaid evidence, it transpires that ail the eye witnesses deposed that Ramu and Ruda hit the deceased on the head but as stated by Dr. Banwari Lal PW. 16 there was only only one injury on he head; the other two haematoma noticed later on by Dr. Mathur PW. 14 appear to be consequential to the internal injury of the head, It there is only one injury assigned to two persons by the witnesses then it amounts to saying that either both or none can be held responsible for the same. Since there is no evidence of common intention, Section 34 IPC cannot be pressed into service, the result is that both Ramu and Ruda become entitled to the benefit of doubt No individual liability can therefore be fastened on any of the appellants in respect of the head injury though it was certainly in excess of the legitimate exercise of the right of defence of person or property.
21. Consequently, this appeal succeeds the conviction and sentences of the appellants are set aside. Fine, if paid, shall be refunded. The appellants are on bail and need not surrender.