Bhajan Lal vs State of Haryana

S.D. Bajaj, J.

Brahma Devi wife of Lakhan and daughterinlaw of Hari Ram author of the FIR had gone to the Government water tap in village Atali to bring water therefrom around 8.00 A.M. on 121987. Wife of Hari Singh accused, named Raj Wati was also there to get water from the same water tap. Both the ladies quarreled. Hari Singh, Lekhi and Bhajan Lal, all the three arrayed as accused, besides others, came to the help of Raj Wati and started hurling filthy abuses, on Brahma Devi. Data Ram, Hari Ram and Bhag Wati then came on the side of Brahma Devi and allegedly attempted to pacify both the quarrelling women. Lekhi then gave a lathi blow to Hari Ram which hit him on the head Bhajan Lal gave Hari Ram a lathi blow on the elbow. Data Ram was given a lathi blow by Bhajan Lal on the elbow. Hari Singh accused gave kicks, slaps and fist blows to Hari Ram. Daya Ram gave a brickbat blow on the head of Brahma Devi. Parkashi wife of Daya Ram accused and Raj Wati wife of Hari Singh accused also threw brickbats at Bhagwati which struck her on the head and blood oozed out of her mouth and nostrils as a result of it. Both the parties were then separated by Hari Ram and Manglu. Bhag Wati died of her head injury in Badshah Khan Hospital, Faridabad around 3.30 P.M. on 221987. Injuries sustained by the other victims at the hands of accused were given out in the expert medical evidence as simple, caused with a blunt weapon.

On being charged with the commission of offences under sections 304, 323, 149 and 148 of the Indian Penal Code all the six accused pleaded not guilty and claimed to be tried. Vide its impugned judgment dated 28101987, learned trial Court convicted all the six accused of the commission of offences under sections 304/149, 323/149 and section 148 of the Indian Penal Code and sentenced them to undergo individually imprisonment for life in regard to their conviction under section 304/149 of Indian Penal Code, rigorous imprisonment for three months each for their conviction under section 323/149 of Indian Penal Code and rigorous imprisonment for a period of six months each for their conviction under section 148 of the Indian Penal Code. All the three substantive sentences of imprisonment awarded to the six accused aforesaid were however, ordered to run concurrently.

Feeling dissatisfied therewith all the six accused have jointly filed Criminal Appeal No. 560DB of 1987 in this Court.

We have heard Shri I. N. Kaushal, Senior Advocate with Mr. Ashok Jindal, Advocate, for the appellants, Shri Ram Avtar Singh, Additional Advocate General, Haryana for the State and have carefully scrutinized the evidence on record.

The head injury with brickbat on the head of Bhag Wati deceased was ascribed in the course of evidence by Hari Ram PW5 to Smt. Raj Wati accused. No common object can, therefore, be attributed to other five accused for its infliction. There was initially remonstrance and counter remonstrance which resulted in a fight. There was no premeditation on the part of Smt. Raj Wati or any other of the five accused to cause death of Bhag Wati thereby. The fight was a sudden affair and was the result of heated passion. For this individual act Smt. Raj Wati alone can be held liable and that too under section 325 of the Indian Penal Code and not under section 304/149. In view of the distance from which the stone was thrown it could not be said that at the time when the accused threw the stone she was aware that the stone would hit the deceased on the head or any vital part of the body. On the basis that the accused threw the stone it could not be said that she had the knowledge that the said stone when it hits would cause such an injury as was likely to cause the death of Bhag Wati. In the circumstances conviction of Smt. Raj Wati accused under section 304/149 of the Indian Penal Code cannot be sustained. The only offence of which she can be held guilty is the offence for causing grievous hurt punishable under section 325 of the Indian Penal Code.

For hurling of abuses, infliction of brickbats blows, lathi blows, fist blows, kicks and slaps etc. every one of the five remaining accused can be held individually liable under section 323 of the Indian Penal Code, for the injuries individually caused by every one of them to their victims add the mischief of section 149 of the Indian Penal Code is not attracted for application to their individual acts aforesaid.

Faced with a similar situation in Lalji and others v. State of U.P., AIR 1973 Supreme Court 2505 and Bhudeo Mandal and others v. State of Bihar, AIR 1981 Supreme Court 1219 their Lordships of the Supreme Court observed, "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 nearby, at a distance of 15 or 20 paces from the ridge, then came there. Therewas remonstrance and counterremonstrance which resulted in a fight.

There was no premeditation on the part of LaIji or any other accused to cause Pancham''s death and that the fight was a sudden affair and was the result of heated passion. In the circumstances, it cannot be said that the appellants who were present in front of their hut formed an. unlawful assembly. 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 counterremonstrance. Someone then started the fight. Held : As there was no premeditation and the occurrence was a sudden affair, each of the appellants, should be held to be liable for his individual act and not vicariously liable for the acts of others.

"Whenever the Court convicts any person or persons of an offence with the aid of section 149, a clear finding regarding the common object of the assembly must be given andthe evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under section 149 of the Indian Penal Code, the essential ingredient of Section 141 of the Indian Penal Code must be established, Section 149 creates a specific offence and deals with the punishment for that offence. There is an assembly of five or more persons having a common object and the doing of acts by members is in prosecution of that object. The emphasis is on common object".

In the circumstances as they emerge in the course of evidence in this case no common object can be attributed to the persons collected at the place of occurrence in driblets. The charge, conviction and sentence under section 148 of the Indian Penal Code is also washed away.

For the reasons given above, the Criminal Appeal partly succeeds and is allowed. Smt. Raj Wati is convicted of the commission of the offence under section 325 of the Indian Penal Code while the remaining five accused are held guilty for the commission of the offence under section 323 of Indian Penal Code only. Bail was declined to Smt. Raj Wati by this Court on November 19, 1987. She has, therefore, been in jail for a period of more than two years already. The sentence awarded to her for her conviction under section 325 of the Indian Penal Code would be for the period already undergone. Similarly, for their conviction under section 323 of Indian Penal Code the sentence awarded to every one of the remaining five accusedappellants shall be for the period already undergone.