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PETITIONER: MOHAN AND ORS.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT:       29/07/1997

BENCH: M. K. MUKHERJEE, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE, J.      Five persons, namely, Mohan Yadav were, Chhotkun Yadav, Muneshwar Yadav  and Kantoo  Yadav were arraigned before the Sessions Judge,  Azamgarh  for  rioting,  murder  and  other allied offences.  The trial  ended in  conviction of  all of them under  Sections 302/149  IPC, 307/149  IPC and  323/149 IPC. In  addition, Mohan was convicted under Section 148 IPC and the  other four  Section 148  IPC  and  the  other  four Section 147  IPC. For the convictions so recorded, they were sentenced to  different  terms  of  imprisonment,  including life,  with   a  direction  that  the  sentences  would  run concurrently. As  the appeal  preferred by  them in the High Court was  dismissed, they  filed the  instant appeal  after obtaining special  leave. During the pendency of the appeal, two of  them, namely  Tapsi and Chhotkun died and hence, the appeal so for as they are concerned abate. 2. The prosecution case briefly stated is as under : (a)  The chak  belonging to Kumar (P.W.3), father of Bandhoo (the deceased)  and Chhotai (P.W.4), is just in front of the house of  Tapsi. For  sometime  past  Tapsi  was  trying  to acquire that  chak and he had even asked Kumar to sell it to him. Kumar,  however, did  not agree  to such proposal. Over that issue  there was  a long standing dispute between them. Besides, there  were other  disputes between  kumar and  his sons on the one hand and accused persons on the other. 2 (b).    In  the  morning  of  October  13,1977,  when  the deceased went  to plough  the chak  with bullocks, Tapsi and the other  accused resisted  him and  tried to  beat him up. Leaving his bullock and plough in the chak, Bandhoo then ran towards his  house. The  five accused  persons  then  chased Bandhoo armed  with  various  weapons.  While  Mohan  had  a country-made piston with him, Tapsi and Chhotkun had ballams (spears), Kantoo  a  burcha  and  Muneshwar  a  lathi.  When Bandhoo reached  the sehan  (courtyard) of  his house, Mohan fired  at  him  with  his  country-made  pistol.  The  shot, however, did not hit Bandhoo. Thereafter, Tapsi and chhotkun beat Bandhoo  with their  respective weapons. When Kumar and Chhotai rushed  there to  save Bandhoo,  Muneshwar hit Kumar with the  lathi and  Kantoo hit  Chhotai, with  his  burcha.

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Thereafter, all  the five  accused persons ran away. Bandhoo was then  taken to  the district hospital where he succumbed to his injuries in the same evening. (c)  A written  report of  the incident  was  given  to  the police station  by kumar on the same day at 9.30 A.M. and on that information  a case  was registered  against  the  five accused persons.  Both  Kumar  and  Chhotai  were  medically examined at the District Hospital, Azamgarh for the injuries they had sustained. (d)  Sub-Inspector   Bhagirathi   Singh   (PW-7)   took   up investigation  of the case and went to the spot. He prepared a site  plan and seized some blood stained earth from there. On completion  of investigation,  he submitted  charge-sheet against the above-mentioned five accused persons. 4.   The accused  persons pleaded  not guilty to the charges leveled against  them and  their defence  was that Kumar met with his  death in a dacoity that was committed in his house by some  unknown  persons.  In  support  of  its  case,  the prosecution  examined  ten  witnesses,  of  whom  Kumar  and Chhotai figured  as eye  witnesses. No  witness was  however examined on behalf of the defence. The Trial Court found the evidence  of  the  above  two  witnesses  reliable  and  as, according to  it, their  evidence stood  corroborated by the evidence of  Jhingur (PW-6),  who claimed  to have  seen the accused persons  running away immediately after the incident the medical evidence and the FIR that was lodged with utmost dispatch, it  convicted the  five  accused  persons  in  the manner as stated earlier. The High Court concurred with each of the  findings of  the Trial  Court concurred with each of the findings  of the  Trail Court  in dismissing  the appeal preferred by the five convicts. 5.   Since the concurrent findings of fact arrived at by the learned courts  below are  based on proper discussion of the evidence and  since convincing  reasons have  been given for relying upon the same, we do not find any justifiable ground to disturb the same. However, having regard to the manner in which the  incident took  place, it  is difficult  for us to conclusively hold  that the  accused persons  had the common object of  committing he murder of Bandoo. It appears to us, on going  through the  entire record  that they (the accused persons) wanted to teach Kumar and his sons a lesson for not selling the  chak to  them and  not to  kill them. It is, of course, true  that according  to  the  prosecution,  accused Mohan fired  a shot  from a country-made pistol but there is no satisfactory  evidence to  conclusively prove that it was aimed at  Bandhoo. If  the common  object  of  the  unlawful assembly of  which he (Mohan) was a member was to commit the murder nothing  prevented him  form firing  further shots to achieve that  object. In arriving at the above conclusion as regards the  common object of the unlawful assembly, we have also  drawn  inspiration  from  the  fact  that  except  the puncture a  wound on  the left  side of the chest of Bandhoo which was  caused by  Tapsi and which resulted in his death, the other  three injuries  which were  found on  his person, were simple  injuries inflicted  on non-vital  parts of  the body, namely,  right thigh,  left arm and right arm. Similar is the  injuries that  were found  on the person of Chhotai. and Kumar.  Considering all  these aspects of the matter, we hold that  the common object of the unlawful assembly was to cause grievous  hurt and  not to  commit murder;  l and  the injury that  was inflicted  by Tapsi  to cause  the death of Bandhoo was  his individual act for which he would have been liable for conviction under section 302 IPC (Simpliciter). 6.   For the  foregoing discussion  we alter the convictions of the  three surviving  accused-appellants, namely,  Mohan,

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Muneshwar and  Kantoo under Sections 302/149 IPC and 307/149 IPC to  Section 326/149  IPC (two counts) but maintain their conviction under  Section 323/149  IPC. We also maintain the conviction of Mohan under Section 148 IPC and that of Kantoo and Muneshwar under Section 147 IPC. 7.   Coming now to the sentence, we find that the appellants have already  served five  years of  rigorous  imprisonment. Considering the  fact that since the offences were committed almost twenty  years have elapsed, we reduce the sentence of Mohan, Muneshwar  and Kantoo  for their  altered convictions under Section  326/149 IPC  to the period already undergone. Since they have already served out the sentences imposed for their other  convictions, we  direct that  they be  released forthwith unless wanted in connection with any other case. 8.   The appeal is thus disposed of.