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PETITIONER: HARIJAN DHANA BADHA & ORS.

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT:       26/04/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) KURDUKAR S.P. (J)

CITATION:  JT 1996 (6)   124        1996 SCALE  (4)39

ACT:

HEADNOTE:

JUDGMENT:                (With Crl A. No. 598 of 1987)                       J U D G M E N T M.K. MUKHERJEE, J.      11 persons  (hereinafter  referred  to  as  A1  to  A11 respectively) were tried by the additional Sessions Judge, Gondal for rioting with deadly weapons and committing the murder  of Dana  Pitha in  prosecution of  their  common object.  The   trial  Court  acquitted  eight  of  them  and convicted and sentenced A2, A6 and A7 under Section 302 IPC. Against the  judgment of  the trial  Court two  appeals were preferred one  by the  three convicts  and the  other by the State challenging  the acquittal  of A1,  A3 to A5 and A8 to A10, but  not of  A11. In  disposing of  the appeals  by the impugned judgment  the High  Court upheld  the conviction of A2, A6 and A7 (after altering the conviction A7 to one under Section 302/149  IPC) and  the acquittal  of A9 and A10, but reversed the  acquittal of A1, A3 to A5 and A8 and convicted them under  Sections 148  and 302/149 IPC. Against dismissal of their  appeal A2,  A6 and  A7 has  filed one of these two appeals (Criminal  Appeal No.  598 of  1987) while the other one has  been filed  by A1,  A3 to  A5 and A8, against their conviction and  sentence as recorded by the High Court. Both the appeals  have been heard together and this judgment will dispose of them. 2.  Bereft of details the prosecution case is as under: (a) The  deceased Dana  Pitha hailed from village Ambardi in Gondal Taluka where all the accused also live. A month prior to the incident with which we are concerned in these appeals a quarrel  took place  between accused  Nos.  1  and  2  and members of  Dana Pitha’s family in their village for which a complaint was  lodged at  the  formers’  instance  with  the police against Dana Pitha and his two sons. (b) In  the morning of April 26, 1481 Dana Pitha had gone to the market  place of  their village while his son Ramji Dana (PW 1)  along with his two brothers had gone to the field to work as  labourers. Uga Lakha (PW 3), who hails from village

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Machharda, had  come to  the house  of Dana  Pitha  in  that morning and  having come  to know  that Dana had gone to the market went  there. On  their way back from the fields at or about 8.30  A.M. Ramji  proceeded towards their house in the Harizan Vas  to leave the shovel he was carrying and his two brothers went  to the  village market. While Ramji was going home he saw his father Dana and Uga Lakha also going towards their house. (c)  For going  to the  house of  Dana one has to go along a road which runs north to south. That road meets a lane which runs east  to west  and in  that lane  is the house of Dana. While proceeding  along the  Road when  Dana and Uga reached near the house of A 10, which is on its eastern side, A9 and A10 threw  stones from  the terrace  of the  house which hit deceased  Dana.  Immediately  thereupon  the  other  accused persons rushed  there from  the adjoining  deli of Gova Daya armed with  various weapons  including Dharia  axe, pick-axe (Trikam), pipes  and sticks  and started  beating Dana  with their respective  weapons. As  a result of such beating Dana fell down dead. The accused persons then fled away. (d)  In the  meantime Ramji, who had come out of their house after leaving  the shovel,  heard the shouts of Uga for help and rushed  to the  scene of  occurrence. Devuben,  who  was sitting in  the osari  of her  house heard her daughter, who was playing in the lane, crying and she also ran there. (e) An  information about  the incident  was  given  to  the police station over phone by Uga Lakha and on receipt of the same Jamadhar  Sri Shukla  came to  the village. He recorded the complaint of Ramji and sent it to the police station. On that complaint  a case  was registered  and Shri V.S. Gupta, assistant Superintendent  of police  took up  investigation. Shri Shukla  then went  to the scene of offence and prepared the inquest panchanama as also the panchnama of the scene of offence. He  then recorded  the statements  of Devuben,  Uga Lakha and other witnesses. After completion of investigation police submitted  chargesheet and in due course the case was committed to the Court of Session. 3.   The accused  pleaded not guilty to the charges levelled against them  and  contended  that  whey  had  been  falsely implicated. 4.   The main  stay of the prosecution case at the trial was the evidence  of the  three eye  witnesses, namely Ramji (PW 1), Uga  Lakha (PW  3) and  Devuben  (PW  8).  Besides,  the prosecution relied  upon the medical evidence to corroborate their evidence.  The trial Court found the evidence of PWs 1 and 3  partly reliable  but the  evidence  of  PW  8  wholly unreliable. On discussion of the evidence of PWs 1 and 3 and that of  Dr. Vasudeva,  who held the post mortem examination upon the  dead body of Dana, the trial Court first held that the incident  occurred at  the time and place alleged by the prosecution, and  that Dana  met with  his  death  owing  to injuries that  were inflicted  on various parts of his body. The trial  Court then  proceeded to  consider  "whether  the accused had  formed an  unlawful assembly  with  the  common intention to  murder deceased  Dana Pitha and in furtherance of that  common intention the accussed armed themselves with various deadly weapons and assaulted the deceased and caused his  death."   (emphasis  supplied).  After  discussing  the evidence of  PWs 1  and 3  relating to the first part of the incident, namely,  throwing of  stone from  the house of A10 the trial Court observed as under:      "What is required to be established      for unlawful assembly is that there      must  be   a  preconcert   or  pre-      meditation  on   the  part  of  the

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    accused and  in furtherance of that      preconcert or  pre-meditation  they      ought to  have gathered  armed with      their weapons in order to carry out      their    common    intention    and      therefore  to   accomplished  their      object.   Here    none   of   these      ingredients are  established in our      case merely because if we go by the      prosecution  case  then  simply  by      having  the   number   of   accused      gathering  cannot  be  said  to  be      termed into a unlawful assembly. It      is pertinent  to note  going by the      prosecution case  that neither  the      accused no.  9 Kala  Pitha nor  the      accused no.  11 Pala  Pitha shouted      or made  any sound  or noice  after      throwing the  stone on  the head of      the deceased  Dana Pitha  and as  a      result  of  that  about,  noice  or      sound  the   rest  of  the  accused      gathered  and  then  assaulted  the      deceased  Dana   Pitha  to   death.      Therefore,   in    view   of    the      circumstances I  am of  the opinion      that the  prosecution has failed to      establish the  unlawful assembly on      the part  of the accused within the      meaning of  Sec. 147,  148, 149 IPC      and that,  therefore, we  will have      to consider   the individual act on      the part of each of the accused and      whether   those   individual   acts      constitute any  offence so  far  as      each of the accused is concerned.                      (emphasis supplied) The trial  Court then  undertook the task of finding out the individual roles  played by  the accused  in the murder from the testimonies  of PWs  1 and  3  and  drew  the  following conclusion:      "........If  the  accused  who  are      eleven  in  number  had  given  the      blows then  there would  be only 11      injuries and  not 12  injuries.  If      the accused had given three to four      blows in  all as  per the testimony      of Uga lakha and six to seven blows      as per  the testimony of Ramji Dana      then the  injuries on  the deceased      Dana Pitha  have not been explained      as to how he got more injuries than      six to  seven injuries  which would      have been  if he  would  have  been      given six  to  seven  blows.  This,      therefore, would  go to  show  that      the presence  of the  accused  Nos.      1,3,4,5,8 and 11 at the time of the      incident is highly doubtful."      In drawing  the above  conclusion the  trial Court also commented upon the contradictions in the evidence of the two eye witnesses,  one of which related to the sequential order in which the accused appeared on the scene of occurrence and the other reads as under:      "............So,  looking  to  this

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    part of his (PW 3) evidence we find      that if  we go by his evidence then      Dhana Badha  had given  two  dharia      blows both  on the head and face of      deceased  Dana   Pitha   when   the      complainant Ramji  Dana  says  that      the first  blow which he saw was on      the face  of his  father  and  that      same person  also gave  the blow on      the head  of his  father. But Ramji      Dana sticks  to his  case that  the      accused Dhana  Budha gave  a Dharia      blow on the face of his father only      and not  on the head of his father.      So   looking   to   this   material      contradiction in  this  evidence of      the  complainant   Ramji  Dana   it      appears that  the complainant Ramji      Dana is confused as to who gave the      dharia blow  on  the  face  of  his      father and  he is  not able to know      as to  the person who actually gave      the  dharia  blow  on  his  father,      because if  we go by his case, then      surely, the  accused no.  1 has not      given the  dharia blow  on the head      of   his   father,   whereas,   the      complainant  has   said  that   two      dharia  blow   were  given  on  his      father, one  on the head and one on      the face  and later  on he  resiled      from this  statement by saying that      only one  dharia  blow  was  given.      Thus from  this it  is difficult to      believe that  the dharia  blow  was      given by  the  accused  No.1  Dhana      Badha."      The trial  Court, however,  found the evidence of PWs 1 and 3  trustworthy so  far as they testified about the roles of A2,  A6 and  A7 in the murder and convicted and sentenced them as indicated carrier.      In its  judgment the  High Court first observed that he entire approach  of the trial Court in dealing with the case was patently  wrong for  it confused  common intention  with common object  and applied the test of former instead of the latter. In  making the  above commet  the High  Court relied upon the  decisions of  this Court  in  Sukhe  vs  State  of Rajasthan AIR  1956 SC 513 Masalti vs state of Uttar Pradesh AIR 1965  SC 202,  and Muthu Naicker vs. State of Tamil Nadu AIR 1978,  SC 1647.   The  High Court  next referred  to the evidence of  PW 8 to point out that the finding of the trial Court that  she was  not a reliable witness was not a proper one. In  criticising the observetion of the trial Court that the evidence  of PWs  1 and  3 contradicted each other as to sequence of  the surfacing  of the  accused persons  on  the scene the High Court observed:      "The  incident  happened  in  quick      sequence  and,   therefore   merely      because there is some contradiction      between the  witnesses about Becher      and Jetha  coming to  the scene  of      offence in  a particular  sequence,      that by  itself is  not  sufficient      to discard  the evidence  and  hold      that  presence   of  accused   Nos.

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    3,4,5,8 and  11 was  doubtful.  The      reasoning  adopted  and  conclusion      arrived at  by  the  learned  trial      Judge is perverse."      As regards  the  other  comment  of  the  trial  Court, regarding contradictions  in the  evidence of  PWs 1  and  3 (quoted earlier) the High Court had this to say:      "This appreciation  of the evidence      of complainant  Ramji  relating  to      the injuries  caused by Dhana Badha      is mis-reading  of evidence  and is      nothing  but   perverse  Ramji  has      clearly stated that Dharia blow was      inflicted  by  accused  No.1  Dhana      Badha on  the face  of his  father.      Merely  because  at  one  stage  he      stated that  injury was  caused  on      the head  and immediately corrected      himself is not by itself sufficient      to discard  his  evidence.  Madical      evidence on the point is very clear      Dr. Vasadava  (Ex. 32)  has  stated      that incised  wound was on the left      side  of   the   forehead   and   a      punctured wound  was in between the      eye brows.  Another punctured wound      was  on   the  left  side  mendibls      region,  and  incised  wound  could      have  been  caused  by  Dharia  and      punctured  wound  could  have  been      caused  by   the  pointed  edge  of      Dharia."      After  pointing  out  the  above  perversities  in  the judgment of  the trial  Court the High Court reappraised the evidence to  ascertain whether the accused persons formed an unlawful assembly with the "common object" of committing the murder of  Dana and  concluded that the eight appellants did share such a common object.      Having carefully  perused the  prolix judgments  of the trial Court  and the  High Court (they run through 93 and 99 pages respectively)  in the  light of the evidence on record we do  not find any merit in these appeals. We hasten to add that in drawing our above conclusion we have left out of our consideration the  evidence of  PW 8 as, in our opinion, the reasons given  by the  trial Court  for discarding  the same cannot be  said to be proper. Before, however, we proceed to consider the  evidence of  these two  witnesses we may point out that  Judgment of  the trial Court is the outcome of its failure to  distinguish between  common  object  and  common intention  and  of  giving  undue  importance  to  ignorable contradictions. In  the case of Masalti (supra) to which, as noticed earlier, the High Court has made a pointed reference this Court has in no uncertain terms laid down the principle to be  applied  in  dealing  with  a  case  of  rioting  and commission of  offence in  furtherance of common oject of an unlawful asssembly with the following words:      "The crucial  question to determine      in  such  a  case  is  whether  the      assembly consisted  of five or more      persons  and   whether   the   said      persons entertained  one or more of      the common  objects as specified by      Section 141.  While determining his      question, it  becomes  relevant  to      consider   whether   the   assembly

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    consisted of  some persons who were      merely passive  witnesses  and  had      joined the  assembly as a matter of      idle curiosity without intending to      entertain the  common object of the      assembly ..........................      ...................................      it would not be correct to say that      before a  person is  held to  be  a      member of  an unlawful assembly, it      must be shown that he had committed      some illegal  overt act or had been      guilty of  some illegal omission in      pursuance of  the common  object of      the assembly.  In fact 5. 149 makes      it  clear   that  if   an   offence      committed  by   any  member  of  an      unlawful assembly in prosecution of      the common object of that assembly,      or such  as  the  members  of  that      assembly  in   prosecution  of  the      common object  of that assembly, or      such  as   the  members   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,   is   guilty   of   that      offence,  and   that   emphatically      brings out  the principle  that she      punishment prescribed  by 5.149  is      in a  sense vicarious  and does not      always proceed  on the  basis  that      the  offence   has  been   actually      committed by  every  member  of  an      unlawful assembly." Instead of  deciding the  case in  the light  of  the  above principles of  law, which  it was  required to do, the trial Court decided  it confining  its attention to the individual acts of  the accused  persons only.  As  regards  the  other infirmity in  the judgment of the trial Court, which we have mentioned earlier,  we can  only  refer  to  the  nature  of contradiction  noticed   and  relied   upon  by  it  (quoted earlier); and the comments of the High Court thereon (quoted earlier), with which we are in complete agreement.      That brings  us to  the evidence  of P.Ws  1 and  3 who narrated the  entire prosecution  case.  Of  the  above  two witnesses P.  W.3 unquestionably  is an  independent witness and his  evidence alongwith  that of  P.W.1, is  cogent  and consistent. On  perusal of  their evidence we find that even though both  of them  was  subjected  to  a  lengthy  cross- examination nothing could be elicited by the accused persons in their  favour to impair their credibility. Their evidence also gets  ample corroboration  from that  of the doctor who held autopsv  and found as many as 12 injuries on the person of the  deceased, including  incised and  punctured  wounds. Besides, he  found fracture of the skull bones. The evidence of the  above two eye-witnesses unmistakably proves that the appellants came  together from  the deli  of Gova Daya armed with sharp  cutting weapons like Dharia, pointed weapon like pic-axe and  blunt weapons like sticks and pipes and started assaulting Dana,  which resulted in his instantaneous death. It is  manifestly clear  therefore that  their common object was to  commit the  murder of  Dana. Their  evidence further

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indicates that  the accused  A6 inflicted  2/3 blows  or the neck and  A2 gave blows on the head which proved fatal. Such being the  state of  evidence obtaining on record we find no hesitation in  upholding the  judgment of the High Court and dismissing both  these appeals.  The appellants,  who are on bail, will  now surrender  to their  bail bonds to serve out the remainder of the sentence.