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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