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PETITIONER: UMESH SINGH & ANR.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       10/05/2000

BENCH: Y.K.Sabharwal, S.R.Babu

JUDGMENT:

     RAJENDRA BABU, J.  :

     On  a  report made by Jugeshwar Singh [PW-7]  alleging that  the appellants herein along with several other persons numbering  about 20 came to ‘Khalihan’ [threshing floor]  of Bhola  Singh  where he and other members of his family  were threshing  paddy.   They  tried  to  take  away  the  paddy. Upendra  Singh  threatened that any resistance would be  met with  such  action  which  might   even  result  in   death. Thereafter  Rajendra Singh hit Bhola Singh with a lathi  and Upendra  Singh moved backward and fired at Bhola Singh  with gun  as a result of which Bhola Singh was hit and fell  down writhing in pain.  Saryu Singh was shot at by Rajendra Singh and Bhagwat Dayal Singh, who was also inflicted a bhala blow by  Arvind  Singh, appellant in the connected  matter,  Umed Singh and Sheonandan Singh fired at Rajdeo Singh as a result of which he fell down.  When Dharmshila, wife of Bhola Singh reached  the  threshing floor with her child aged about  one and  half years old in her arm named Rinku, Sheonandan Singh snatched  the  child and threw the child on the ground as  a result  of  which the child died.  After investigation,  the police  submitted a charge sheet against seven persons named in  the FIR as three of them had died during the pendency of the  investigation.   The trial court  convicted  Sheonandan Singh  and Upendra Singh under Section 302 IPC and sentenced them  to  death, one of the accused - Satyendra  Singh,  was acquitted  and  rest of the accused persons  were  convicted under  Section  302 IPC read with Section 149 and  sentenced for  life  imprisonment.  They were further convicted  under Section  324 read with Section 148 IPC and under Section  27 of  the  Arms Act.  On appeal to the High Court,  conviction was  maintained while sentence of death on Sheonandan  Singh and  Upendra  Singh  was reduced from one of death  to  life imprisonment thereafter.  Appeals have been preferred before this Court.

     In  the  appeals before us, two of the accused are  in appeal  in Crl.A.Nos.824-825 of 1998 while in the  connected appeal  Crl.A.No.659/99,  Arvind Singh and Bipin Singh  have filed  appeals.   However,  Bipin Singh not  being  able  to surrender  his appeal has been dismissed.  In the appeals of Umesh  Singh  s/o  Sheonandan Singh and Rajendra  Singh  s/o Pragash  Singh, Shri U.R.Lalit, learned senior advocate  for the  appellants,  considering the fact that there  are  four witnesses  (who  were injured) and two eye witnesses to  the

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incident  and  their evidence has been believed by  the  two courts  below,  did  not  pitch their  cases  too  high  but confined his arguments only to certain probabilities arising even accepting the evidence tendered before the courts below on  the basis of the acts attributed to the appellants.  His submission  is  that while Rajendra gave a blow  to  decease Bhola  Singh  with a lathi, he could not have  intended  his death and the act attributed to Umesh Singh is that he fired at  Rajdeo  Singh  and  no doctor  has  been  examined  with reference  to  the injuries inflicted upon Rajdeo Singh  but only  after post-mortem examination took place, a doctor has been  examined.   He addressed an argument that  the  common objective  was  only to take away paddy from  the  threshing floor and it was not that it should be one to cause injuries much  less than death to anyone.  If that is so, they  could not  be  attributed  vicarious  liability  punishable  under Section 149 IPC and when Rajendra Singh gave blow with lathi to  Bhola  Singh, he could not be stated to be intending  to cause  death  of Bhola Singh and the gun which is stated  to have  been used by Umesh Singh has not been recovered.   The medical  evidence  tendered also is not very clear  in  this regard  to  support  the case of the prosecution as  to  the manner  in  which  the incident has taken place.   The  fact remains  that  Rajendra  Singh attacked with lathi  and  the injuries  were  sustained by Bhola Singh.  As appeared  from the  evidence of the doctor PW-5 the injuries on Bhola Singh include  a fracture of the left leg above ankle joint  which was confirmed by dissection.  Bhola Singh had received seven blows on his leg with lathi and several pellet injuries were found in the front of his chest and abdomen which had caused damage  to  the  internal  system resulting  in  his  death. Therefore, there is ample evidence on record in the shape of the  evidence of the eye witnesses and the witnesses who had sustained  injuries, sounding a ring of truth to prosecution case  put  forward, with the trial court and the High  Court having  taken identical views, we do not think there is  any good  reason to upset those findings.  Vicarious  liability, we  may  state, as rightly contended for the State  by  Shri B.B.Singh  relying  upon  the  decisions of  this  Court  in Shamshul  Kanwar  vs.  State of U.P., 1995 (4) SCC  430  and Bhajan  Singh  & Ors.  vs.  State of U.P., 1974(3) SCR  891, extends  to members of the unlawful assembly only in respect of  acts  done  in  pursuance of the common  object  of  the unlawful  assembly  or such offences as the members  of  the unlawful  assembly are likely to commit in the execution  of that  common object.  An accused whose case falls within the terms of Section 149 IPC as aforesaid cannot put forward the defence that he did not with his own hand commit the offence committed  in  prosecution  of  the  common  object  of  the unlawful  assembly  or such as the members of  the  assembly knew  to  be likely to be committed in prosecution  of  that object.   Everyone  must  be  taken  to  have  intended  the probable  and natural results of the combination of the acts in  which  he had joined.  It is not necessary in all  cases that  all  the persons forming an unlawful assembly must  do some  overt act.  Where the accused had assembled  together, armed  with guns and lathis, and were parties to the assault on  the deceased and others, the prosecution is not  obliged to  prove which specific overt act was done by which of  the accused.   Indeed  the  provisions of Section  149  IPC,  if properly  analysed  will  make  it clear that  it  takes  an accused  out  of  the  region  of  abetment  and  makes  him responsible  as  a  principal for the acts of each  and  all merely  because he is a member of an unlawful assembly.   We may  also notice that under this provision, the liability of

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the  other  members  for the offence  committed  during  the continuance  of  the occurrence rests upon the fact  whether the  other members knew beforehand that the offence actually committed  was likely to be committed in prosecution of  the common  object.   Such knowledge can reasonably be  intended from  the  nature of the assembly, arms or behaviour, at  or before  the  scene  of action.  If such  knowledge  may  not reasonably  be  attributed  to  the  other  members  of  the assembly  then  their  liability for the  offence  committed during  the  occurrence  does  not arise.   Tested  on  this touchstone,  we may safely say that in the present case when the  appellants  were members of an unlawful assembly  which was  armed  with lathis and guns and a declaration had  been made  that in the event there is any resistance to take away the  paddy which is stated to have been the original object, they  were willing to take life out of the deceased and take away  the  paddy.  If that is the position, it is futile  to contend  for the appellants that their conviction is in  any way  bad.  In that view of the matter, we find absolutely no merit  in Crl.A.Nos.824-825/98 and we dismiss the same.   So far  as  Arvind  Singh,  appellant  in  Crl.A.No.659/99,  is concerned,  his case stands on a different footing.  On  the evidence  on record, the learned counsel for the  appellant, was  not  in  a position to point out any infirmity  in  the conviction  recorded  by the trial court as affirmed by  the appellate court.  The only contention put forward before the court is that the appellant is born on 1.1.67 while the date of the incident is 14.12.1980 and on that date he was hardly 13  years old.  We called for report of experts being placed before  the  court  as to the age of the  appellant,  Arvind Singh.   The report made to the court clearly indicates that on  the  date of the incident he may be 13 years old.   This fact  is also supported by the school certificate as well as matriculation  certificate produced before this court  which indicate  that his date of birth is 1.1.67.  On this  basis, the contention put forward before the court is that although the  appellant is aged below 18 years and is a child for the purpose  of the Bihar Children Act, 1970 on the date of  the occurrence, his trial having been conducted along with other accused  who are not children is not in accordance with law. However,  this contention had not been raised either  before the  trial  court  or  before   the  High  Court.   In  such circumstances,  this  Court  in Bhola Bhagat vs.   State  of Bihar,  1997(8) SCC 720, following the earlier decisions  in Gopinath  Ghosh vs.  State of West Bengal, 1984 Supp.SCC 228 and  Bhoop Ram vs.  State of U.P.  1989(3) SCC 1 and Pradeep Kumar  vs.   State  of  U.P., 1995 Supp(4)  SCC  419,  while sustaining  the  conviction of the appellant under  all  the charges,  held that the sentences awarded to them need to be set  aside.  In view of the exhaustive discussion of the law on  the matter in Bhola Bhagat case [supra], we are obviated of the duty to examine the same but following the same, with respect,  we  pass  similar  orders  in  the  present  case. Conviction  of the appellant, Arvind Singh, is confirmed but the  sentence  imposed  upon him stand set  aside.   He  is, therefore,  set  at  liberty, if not required in  any  other case.   The  appeal  filed by Arvind Singh succeeds  to  the extent  indicated  above.   The appeal is  allowed  in  part accordingly.