Full Judgment Text
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PETITIONER:
LALJI & ORS.
Vs.
RESPONDENT:
THE STATE OF U. P.
DATE OF JUDGMENT14/08/1973
BENCH:
KHANNA, HANS RAJ
BENCH:
KHANNA, HANS RAJ
ALAGIRISWAMI, A.
CITATION:
1973 AIR 2505 1974 SCR (1) 367
1974 SCC (3) 295
ACT:
Criminal Law-Members of complainants party injured-No
evidence of any common object of accused-liability of
accused can only be for individual acts.
HEADNOTE:
As a result of a fight between the members of the accused
party and the party of the complainants the accused were
tried and convicted for various offences. The first.
appellant was convicted of the offence under S. 304, Part 1,
and of offences under Ss. 148, 323, 324 and 325 read with
14. The appellants were convicted of the offences under Ss.
147 and 04, 323, 324 and 325 read with s. 149. The High
Court, in appeal, while acquitting one of the accused,
observed that the conclusion reached by the trial court were
substantially correct and were based upon reasonable
appreciation of the evidence.
In appeal to this Court,
HELD : On the findings of the trial court neither party
attacked the members of the opposite party at the
commencement of the occurrence. There was at that stage
remonstrance and counter remonstrance only. Someone then
started ,a fight, and according to the trial court it could
not definitely be determined as to which of the two parties
struck the first blow. There was no premeditation :and the
occurrence was a sudden affair. The circumstances of the
case do not ,show that the appellants formed a common object
to do any of the acts mentioned in the 5 clauses of s. 141.
Section 141 (4), I.P ’ C., could not be relied upon by the
prosecution because, it could not be said that the common
object of the accused was to enforce any right or supposed
right by means of criminal force or show of criminal force.
The circumstances of the case show that the lathis were
weilded by the accused not with a view to enforce any right
or supposed right but because of the fact that a fight had
started and the complainants’ party was found to be armed
Therefore, it should be held that each accused was liable
for his individual act and not vicariously liable for the
acts of the others. Hence, the first appellant could be
convicted only of the offence under s. 304, part 1, I.P.C.
and his conviction for offences other than that should be
set aside. As regards the other appellants they caused
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simple hurt with their lathis and they could be convicted
only of the offence under a. 323 I.P.C. One grievous injury
was caused to a member of the complainants’ party but, on
the material on record, it could not be said who caused that
injury. [371B-H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 16 of
1970.
Appeal by special leave from the judgment and order dated
the 12-9-69 of the Allahabad High Court, in Criminal Appeal
Nos. 1096 and 1097 of 1966.
Nuruddin Ahmed and U. P. Singh, for the appellants. O. P.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by
KHANNA, J. This is an appeal by special leave by Lalji (23),
Mahabir (45), Nar Singh (30), Paras Nath (27) and Ram Naresh
(30) against the judgment of the Allahabad High Court
affirming on appeal the conviction and sentence of the
appellants. Lalji has been convicted under section 304 Part
I and section 148 Indian Penal Code
368
and has been sentenced to undergo rigorous imprisonment for
a period of ten years on the first count and rigorous
imprisonment for a period of two years on the, second count.
Lalji has, in addition to that, been convicted for offences
under section 324 read with section 149, section 325 read
with section 149 and section 323 read with section 149 and
has been sentenced to undergo rigorous imprisonment for a
period of two years, 21 years and one year respectively.
Mahabir, Nar Singh, Paras Nath and Ram Naresh have been
convicted under section 147, section 304 Part I read with
section 149, section 324 read with section 149, section 325
read with section 149 and section 323 read with section 149
Indian Penal Code and each of them has been sentenced to
undergo rigorous imprisonment for a period of 18 months,
five years, 18 months, 21 years and one year respectively.
The sentences in the case of each of the appellants have
been ordered to run concurrently. Budhdhu (50) and Munni
Lal (20) were tried along with the appellants. Munni Lal
was acquitted by the trial court, while Budhhu was acquitted
by the High Court.
The appeal arises out of an occurrence which took place at 7
a.m. on March 29, 1965 in Nawagarh near village Shahpur
Nawada at a distance, of five miles from police station
Chandauli in Varanasi district. As a result of that
occurrence, Pancham (45) received fatal injuries and later
died at 11 a.m. Injuries were also received by Nand Lal (PW
1), Munshi (PW 2), Jhuri (PW 3), Potan (PW 5) and Bhaggan on
the side of the complainant. On the side of the accused,
Lalji, Mahabir, Paras Nath and Ram Naresh received in
juries. Both parties rushed be the police station and
lodged reports. On the side of the complainant, report was
lodged by Nand Lal PW at 8.30 a.m., while on the side of the
accused, report was lodged by Mahabir at 8.35 a.m. On the
basis of those reports, two cases were registered and both
parties were sent up for trial. The trial court convicted
the accused appellants and Budhdhu in the present case, and
Nand Lal. Munshi, Jhuri, Bbaggan and one Sheo in the cross
case.
Lalji accused is the son of Budhdhu accused. Ram Naresh,
Paras Nath and Nar Singh accused are the maternal uncle’s
sons of Mahabir accused.
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The prosecution case is that Nand Lal PW is the owner of
plot No. 129/2. Mahabir accused, who is a collateral of
Nand Lal PW. owns the adjoining plot. Mahabir had put up a
hut on his own plot. There is a mend (dividing ridge)
between the plots of Nand Lal and Mahabir, On the morning of
March 29, 1965, it is stated, Pancham deceased and Nand Lal
PW saw that Budhdhu and Mahabir were digging earth and thus
extending the frontage of Mahabir’s hut. Ram Naresh armed
with a gandasa, Lalji and Munni Lal armed with spears and
Nar Singh and Paras Nath armed with lathis were standing
close to Mahabir with a view to help him. Pancham raised a
Drotest against the act of the accused party whereupon
Mahabir and Budhhu picked up lathis and those two accused
along with the other accused started beating Pancham and
Nand Lal with their respective weapons. Jhuri and Munshi
then came there, but they too were attacked. Potan and
Bhaggan also tried to intervene, but injuries were caused to
them also by the accused party.
369
During the course of this occurrence, Lalji thrust his spear
in the abdomen of Pancham who fell down on the ground. Nana
Lal, Jhuri, and others on the side of the complainant used
their lathies, and in the process the accused were injured.
Bhaggan on medical examination was found to have two
’injuries caused by blunt weapon. One of those injuries was
grievous as it had resulted in the fracture of humerus bone
of the left forearm. Jhuri, Munshi and Nand Lal PWs had
nine, seven and nine simple injuries respectively caused by
blunt weapon. Potan PW had four simple injuries, out of
which three had been caused by blunt weapon and one with
sharp-edged pointed weapon. Post mortem examination of Pan-
cham revealed that he had six injuries, out of which one was
a stab, wound, one was an incised wound, three were
contusions and one was an abrasion. The fatal injury was
the stab wound in the abdominal cavity measuring 2" x 1
Omentum and about 12" long portion of small intestines was
protruding out of this wound. Death of Pancham was due to
shock and haemorrhage resulting from cutting of small
intestines, mesentery and blood vessels by some sharp edged
pointed weapon.
The accused were examined by Dr. K. P. Rai and subsequently
by Dr. K. A. Khan in jail. The trail court and the High
Court have relied upon the medical examination of the
accused by Dr. Rai. According to Dr. Rai, he found nine
injuries on Mahabir Nar Singh, Paras Nath and Ram Naresh
accused had four injuries each on their persons while Lalji
had one injury. The injuries on the persons of the accused
were simple and had been caused by blunt weapon.
The defence version was that there was sugar can crop in the
plots of Mahabir, Ram Naresh and Nar Singh accused. Those
fields used to be irrigated from the well of the accused
which was close to the hut of Mahabir. A water channel ran
over the intervening ridge between the plots of Mahabir and
Mand Lal. On the day of occurrence, it is stated, Mahabir
and Ram Naresh accused had started repairing the water
channel by digging earth from a portion of Mahabir’s plot.
Part of the water channel had been repaired with that earth
when Pancham, Nand Lal, Munshi, Jhuri, Bhaggan, Sheo and
Sotan appeared on the scene. Pancham and others were all
armed at that time. Bhaggan then demolished the water
channel which had been repaired by Mahabir and Ram Naresh.
When Mahabir protested, the party of the complainant
attacked them. Mahabir and Ram Naresh then picked up
agricultural implements and wielded the same in self-
defence. The other appellants too arrived at the spot and
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they too wielded lathis in exercise of the right of private
defence Ram Naresh accused came into, the witness box and
gave evidence in support of the defence version.
The trail court on scrutiny of the evidence came to the
conclusion that the witnesses on both sides had stated only
the half truth and resorted to exaggeration, twisting and
embellishment of the true account of the occurrence. It was
further held by the trail court that the well near the hut
of Mahabir was being used for irrigation pur-
370
poses, that the channel through which the water from this
well used to be taken was along the disputed ridge and that
on the day of occurrence the party of the accused was
digging and putting earth on the ridge in order to repair
and reconstruct the water channel. The trial court in this
context referred to the evidence of the investigating
officer, according to whom earth had been taken by the party
of the accused from a pit in Mahabir’s plot. The trail
court did not accept the evidence of the prosecution
witnesses that Pancham and Nand Lal first went to the spot
and thereafter Jhuri and Munshi arrived there and after that
Bhaggan, Potan and Sheo appeared there. In the view of the
trail court, all the members of the complainant’s party
reached the place of occurrence almost simultaneously. The
prosecution allegation that the other accused Were standing
nearby when Mahabir and Budhdhu were digging the earth and
repairing the water channel was not accepted. In the
opinion of the trial court, these persons were present at
the hut which was only 15 or 20 paces from the ridge in
question. As regards the actual assault, the trial court
came to the conclusion that no attack was made immediately
by either party on the arrival of the complainant’s party.
At first there was remonstrance and counter remonstrance. A
fight thereafter ensued when the complainant’s party
insisted that they would not allow the earth to be put on
the disputed ridge and the party of the accused claimed that
they must put the earth and reconstruct the water channel.
The intransigence of the parties, in the opinion of the
trial court, led to a free fight and none of them could
therefore plead the right of private defence. The accused,
other than Lalji, in the opinion of the trial court, were
armed with lathis only.
The High Court in appeal held that the conclusions reached
by the trial court were substantially correct and were based
upon reasonable appreciation of evidence.
In appeal before us Mr. Nuruddin on behalf of the appellants
has :argued that the present is not a case wherein the
accused party can be said to be members of the unlawful
assembly or wherein the injuries caused by Lalji to Pancham
can be said to have been caused in prosecution of the common
object of the accused-appellants. Although Mr. Rana on
behalf of the State has controverted the above contention,
we find considerable force in the same. The trial court has
found that Mahabir accused had been using water from the
well near his hut for irrigation purposes and that he along
with Ram Naresh was repairing the old water channel on the
ridge when the party of the complainant came there and
stopped Mahabir and Ram Naresh from further repairing the
water channel. The other accused who were present in the
hut nearly. at a distance of 15 or 20 paces from the ridge.
then came there. There was remonstrance and counter remon-
strance which resulted in a fight. The trial court has also
found that there was no premeditation on the part of Lalji
or any other accused to cause Pancham’s death and that the
fight was a sudden affair and was the result of heated
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passion. In the circumstances, in our opinion it cannot be
said that the appellants who were present in front of
371
their hut formed an unlawful assembly. An assembly of five
or more persons is designated an unlawful assembly if the
common object of the persons composing that assembly is to
do any of the acts mentioned in the five clauses of section
141 Indian Penal Code. According to the explanation to that
section, an assembly which was not unlawful when it
assembled may subsequently become an unlawful assembly.
The, facts found by the trial court and the High Court and
the circumstances of the case do not show that the
appellants formed a common object to do any of the acts
mentioned in the five clauses of section 141. Reference has
been made to clause (4) of section 141, according to which
an assembly of five or more persons. would be unlawful if
the common object of the persons composing that assembly is
to enforce any right or supposed right by means of criminal
force or show of criminal force. This clause cannot be of
much avail because it cannot be said that the common object
of the appellants was to enforce any right or supposed right
by means of criminal force or show of criminal force. As
mentioned earlier, no party attacked the members of the
opposite party at the commencement of the occurrence. There
was only at that stage remonstrance and counter,
remonstrance. Someone then started the fight and, according
to, the trial court, it could not definitely be determined s
to which of the two parties struck the first blow. The
circumstances of the case show that lathis were then wielded
by the appellants, other than. Lalji, not with a view to
enforce any right or supposed right in respect of the water
channel but because of the fact that a fight had, started
and the complainant’s party was found to be armed. As there
was no premeditation and the occurrence was a sudden affair,
each of the appellants, in our opinion, should be held to be
liable for hi& individual act and not vicariously liable for
the acts of others.
Lalji gave the spear blow in the abdomen of Pancham. His
conviction should, therefore, be maintained for the offence
under section 304 Part I Indian Penal Code. The sentence of
rigorous imprisonment for a period of ten years awarded to
Lalji for the injury caused to, Pancham cannot be held to be
excessive. As regards the other appellants, we find that
they caused simple hurt with their lathis. There is no
doubt that one grievous injury was caused to Bhaggan with
blunt weapon, but on the material on record it cannot be
said as to who caused the said injury. We would accordingly
maintain the conviction of Mahabir, Nar Singh, Paras Nath
and Ram Naresh for the offence under section 323 Indian
Penal Code. The conviction of Lalji for offences other than
that under section 304 Part 1, and of the other four
appellants for the offences other than that under section
323’ Indian Penal Code is set aside. Lalji is sentenced to
undergo rigorous imprisonment for a period of ten years for
the offence under section 304 Part 1. As regards the other
four appellants who have been convicted under section 323
Indian Penal Code, their sentence of imprisonment is reduced
to the period already undergone.
V.P.S. Conviction and sentence modified.
372