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Judgment
M.C. Jain, J.—There are five Appellants, namely, Brij Mohan alias Minto, Shyam, Ram Babu alias Dak, Bachhu and Bheem. Shyam and Ram Babu alias Dak are the sons of first Appellant Brij Mohan alias Minto. All the five have preferred this appeal against judgment and order dated 10.4.1997 passed by Sri Niyaz Ahmad, the then IVth Additional Sessions Judge, Mathura in S.T. No. 113 of 1995 and 279 of 1995 which were tried and decided together. Brij Mohan alias Minto, Shyam and Ram Babu alias Dak faced trial in S.T. No. 113 of 1995 whereas Bachhu and Bheem were accused in connected S.T. No. 279 of 1995. All of them have been convicted u/s 302, I.P.C. read with Section 149, I.P.C. and sentenced to life imprisonment, u/s 323, I.P.C. read with Section 149, I.P.C. with six month''s rigorous imprisonment u/s 147, I.P.C. with six month''s rigorous imprisonment and u/s 148, I.P.C. with one year''s rigorous imprisonment. All the sentences have been ordered to run concurrently.
One Shanker Singh, son of Sukh Ram died in the incident whereas Brij Nandan P.W. 1 sustained injuries at the hands of the Appellants which took place on 31.10.1994 at about 6 p.m. in front of the house of Babu Mallah in Mohalla Ratan Khatri, police station Brindawan, district Mathura. The distance of police station from the place of occurrence was two kilometres and the report was lodged the same day at 7.50 p.m. by Brij Nandan P.W. 1. Shyam and Bheem were allegedly armed with pharsa and spear respectively whereas remaining Appellants wielded lathis.
The facts, shortly stated, are that the Appellants being of bad character, had often been arrested by the police. They suspected that Shanker Singh, advocate (deceased) was instrumental in getting them arrested and working as informer of the police. They were, therefore, inimical against him. On the fateful day at about 6.00 p.m., when Shanker Singh reached in front of the house of Babu Mallah in Mohalla Ratan Khatri for going to his elder brother Mahabir''s house, the five accused Appellants appeared there and surrounded him. Brij Mohan alias Minto shouted aloud that he was informer of the police and he be done to death. All the five accused Appellants with their weapons pounced upon Shanker Singh. When Brij Nandan rushed up to save him, he was also assaulted. The incident was witnessed by Mahabir, Govind Ram and others. The accused Appellants made their escape good from the spot. Shanker Singh in injured condition was taken to hospital, where he was declared to be dead. The case was registered on the report of Brij Nandan and the investigation followed. The post-mortem over the dead body of the deceased Shanker Singh was conducted on 1.11.1994 at 2.00 p.m. by Dr. Subhash Chandra P.W. 6. He was aged about 25 years and about one day had passed since he died. The following ante-mortem injuries were found on his person:
(1) Incised wound 3 cm. - 1 cm. - bone deep over right side of head. 5 cm. above right eyebrow. Margins clean cut. Underlying bone is fractured. Direction transverse oblique.
(2) Lacerated wound 2.5 cm. - 0.5 cm. - scalp deep over top of head 13 cm. above bridge of nose.
(3) Lacerated wound 0.5 cm. - 0.3 cm. - scalp over top of head 3 cm. behind injury No. 2.
(4) Contusion 4 cm. - 4 cm. over right mastoid region.
(5) Abrasion 2 cm. - 2 cm. right side chest 10 cm. above nipple.
(6) Multiple abraded contusions 20 cm. - 5 cm. back right forearm upto wrist size 1 cm. - 1 cm. - to 5 cm. - 3 cm.
(7) Contusion 6 cm. - 5 cm. right hip outer and upper part.
(8) Abraded contusion 5 cm. - 4 cm. right buttock.
(9) Contusion 7 cm. - 2 cm. back right thigh middle.
(10) Contusion 4 cm. - 2 cm. back right knee.
(11) Multiple abrasions area 10 cm. - 7 cm. front and outer aspect right knee and upper part right leg. Size 1 cm. - 1 cm. to 3 cm. - 2 cm.
(12) Abrasion 5 cm. - 4 cm. outer aspect left thigh upper part.
(13) Multiple abrasions area 20 cm. - 6 cm. over front of left knee and leg size 2 cm. - 1 cm. to 6 cm. - 2 cm.
On internal examination, right frontal and parietal bones were found fractured. Membranes and brain were also lacerated. The cause of death was coma as a result of ante-mortem head injury.
The injuries of Brij Nandan P.W. 1 were also examined on 31.10.1994 at 11.30 p.m. by Dr. S. K. Gupta P.W. 4. The following injuries were found on his person:
(1) Red contusion size 10 cm. - 3 cm. on right side of the neck, 2 cm. above from middle of right clavicle.
(2) Red contusion size 8 cm. - 3.5 cm. on left side of the back, 30 cm. below from upper part of left shoulder.
(3) C/o Pain all over chest O/E tenderness is present but no external visible injury is seen.
(4) Red contusion size 7 cm. - 2 cm. on outer surface of left thigh, 14 cm. above from left knee.
(5) Red contusion size 4 cm. - 2 cm. on outer surface of left leg, 5 cm. above from lateral malleolus (Left).
All injuries were simple in nature and caused by hard and blunt object. The duration was fresh.
The prosecution, in all, examined seven witnesses out of whom Brij Nandan, injured P.W. 1, Mahabir P.W. 2 and Govind Ram P.W. 3 were eye-witnesses.
The defence was of denial and of false implication due to enmity. The accused Appellant Brij Mohan alias Minto who is the father of the Appellants Shyam and Ram Babu alias Dak also stated u/s 313, Cr. P.C. that eye-witnesses had earlier murdered his uncle-in-law. In that case, the deceased and witness Mahabir had been convicted and sentenced. He used to live in his sasural and the witnesses wanted to grab his land. It was the reason for the false case planted against him and his sons. The accused-Appellants also examined three witnesses in defence whose evidence was of negative character which is of no help at all to decide the case.
We have heard Sri Hardwar Singh, learned Counsel for the Appellants and Sri Ratan Singh, learned A.G.A. from the side of the State in opposition of the appeal. The record of the lower court has been summoned which is before us. We have carefully perused it.
Argument of learned Counsel for the Appellants is that no independent witness has been examined by the prosecution to support its case. This blanket contention does not carry force. It is pertinent to find that Brij Nandan P.W. 1 is the informant and himself the injured. Therefore, his presence at the spot cannot at all be doubted. At the time of the incident, he was accompanying his brother Shanker Singh, advocate to reach the house of their brother Mahabir P.W. 2 when the Appellants, who were laying in wait, suddenly emerged at the spot in Mohalla Ratan Khatri in front of the house of Babu Mallah and assaulted Shanker Singh with lethal weapons held by them causing injuries which ultimately proved to be fatal and resulted in his death. The names of other two eye-witnesses, namely, Mahabir P.W. 2 and Govind Ram P.W. 3 are also found mentioned in the F.I.R. which had been lodged by the injured Brij Nandan P.W. 1 without loss of time. No doubt, Mahabir is the own brother of the deceased Shanker Singh and injured Brij Nandan P.W. 1 and Govind Ram P.W. 3 is their brother-in-law (bahnoi). But this relationship alone does not justify the rejection of their testimony. No other witness was named in the F.I.R., though it is stated that some other persons also witnessed the incident. It goes without saying that in the present scenario of the society, no unconcerned person easily comes forward to stand as a witness for the fear of procuring enmity or trouble for himself in times to come. In the present case, the prosecution case has been that the Appellants were notorious outlaws and the cause of the incident was that they suspected Shanker Singh deceased to be instrumental in passing information to the police against them and getting them arrested now and then. The prosecution case, in our opinion, is not at all adversely affected by non-examination of other witnesses of the public when no one is so named either in the F.I.R. Mahabir P.W. 2 and Govind Ram P.W. 3 have given plausible reason for their being present at the spot and having seen the occurrence. Mahabir P.W. 2 had called his brother Shanker Singh at his house for certain discussion relating to some transaction of land. As Shanker Singh did not reach there, he took his bahnoi, Govind Ram with him and started for reaching the house of Shanker Singh and witnessed the incident in the way in Mohalla Ratan Khatri. It is noted from the testimony of Brij Nandan P.W. 1 that he and Shanker Singh had started for reaching the house of Mahabir P.W. 2. They had reached only in Mohalla Ratan Khatri when this incident took place. Mahabir P.W. 2 also stated that this house was at a distance of 80-90 yards from the spot. Govind Ram had been taken by Mahabir with him to accompany him to the house of Shanker Singh and Brij Nandan for talks and discussion. There is nothing unusual, if all these persons had to assemble at one place to discuss certain domestic matters of personal nature relating to the family. We, therefore, find the testimony of the three eye-witnesses to be perfectly capable of inspiring judicial confidence. Their testimonial assertions are consistent and reconcile with medical evidence. Their presence at the spot is well explained. It may be stated at the risk of repetition that one of them Brij Nandan P.W. 1 injured is the victim of the felony also.
It has next been argued by the learned Counsel for the Appellants that death of Shanker Singh cannot be deemed to have been caused in prosecution of common object of the unlawful assembly of the Appellants. We have been taken through the testimony of three eye-witnesses. It has been pointed out that as per Brij Nandan P.W. 1, Bheem had wielded his ballam as a lathi. It has also been stated by him that he had been assaulted by Brij Mohan alias Minto. Ram Babu alias Dak and Bachhu with lathis and at the start of the incident, Shanker Singh had been assaulted. The witness also stated that Shyam had plied a pharsa which hit Shanker Singh at his head. The statement of Mahabir P.W. 2 has also been referred to that Brij Nandan had been assaulted by Brij Mohan, Ram Babu alias Dak and Bachhu by lathis. In the beginning, all the Appellants had started assaulting Shanker Singh out of whom Bheem had a spear and Shyam held a pharsa. The statement of Govind Ram P.W. 3 is also to the effect that Bheem was using ballam as a lathi. We have been taken through the medical examination report of Brij Nandan P.W. 1 that all his five injuries were simple and caused by hard and blunt object. It has also been pointed out from the post-mortem report of Shanker Singh that he received only one injury of sharp edged weapon (incised wound on right side of head-ante-mortem injury No. 1, underlying bone fractured). It is urged that as per the testimony of eye-witnesses, it is attributable to Shyam who struck a pharsa blow on the head of the deceased.
The question of degree of culpability argued by the learned Counsel for the Appellants needs consideration. It is obvious that the injured Brij Nandan received only blunt object injuries which were simple and deceased Shanker Singh received one incised wound on head as sharp weapon injury which, according to the prosecution, was caused by Shyam wielding a pharsa. We, however, note that the deceased sustained two lacerated wounds also over the top of his head (ante-mortem-injuries No. 2 and 3). On internal examination, right frontal and parietal bones were found fractured. Membranes and brain were also lacerated. The assailants were five in number out of whom three, namely, Brij Mohan alias Minto, Ram Babu alias Dak and Bachhu were wielding lathis. Though Bheem was holding a spear, but he used it as a lathi as per the own case of the prosecution. The incised wound was caused on the head of the deceased by Shyam wielding a pharsa. But, as we said, he sustained two lacerated wounds over top of his head capable of being caused by the lathis.
Section 149, I.P.C. fastens vicarious liability. All the members of unlawful assembly render themselves liable to punishment for any or every offence committed by any or more members of that unlawful assembly. But the requirement is that the commission of the offence must have been in contemplation of the unlawful assembly directly or impliedly. In the present case, the evidence is that despite three persons wielded lathis and fourth one Bheem also used a ballam as a lathi. Two lathi blows were struck on the head of the deceased Shanker Singh and incised wound on his head was caused by Shyam wielding a pharsa. Several other injuries of blunt object were also caused to the deceased. Considering all these facts, it should justifiably be inferred that common object of the unlawful assembly was not the murder, but only to cause grievous injuries. The Appellants Brij Mohan alias Minto, Ram Babu alias Dak, Bachhu and Bheem as also Shyam were the members of the unlawful assembly, the common object of which was to cause grievous injuries. However, Shyam exceeded and crossed the common object of unlawful assembly by causing incised wound on the head of the deceased with pharsa, even fracturing underlying bones. The death of the deceased was due to coma as a result of head injury. It was his individual act. Therefore, Shyam alone would be liable for killing Shanker Singh. The aid of Section 149, I.P.C. cannot be invoked to fasten the liability of murder on the other four Appellants who were also the members of the unlawful assembly with Shyam. Shyam committed the offence of Section 302, I.P.C. as killing Shanker Singh was his individual act. Other members of the unlawful assembly with him only committed an offence of Section 325, I.P.C. read with Section 149, I.P.C. Of course, Shyam and Bheem who wielded pharsa and ballam respectively also committed offence of rioting punishable u/s 148, I.P.C. and the remaining three Appellants, namely, Ram Babu alias Dak, Bachhu and Brij Mohan committed offence of rioting punishable u/s 147, I.P.C.
In the result, the appeal is partly allowed with the following final order of conviction and sentences, modifying the judgment and order passed by the trial court accordingly:
(1) Appellant Shyam is convicted u/s 302, I.P.C. and sentenced to life imprisonment ;
(2) All the Appellants, namely, Brij Mohan alias Minto, Ram Babu alias Dak, Bheem, Shyam and Bachhu are convicted u/s 325, I.P.C. read with Section 149, I.P.C. and each of them is sentenced to undergo rigorous imprisonment for a term of four years ;
(3) Appellants, Bheem and Shyam are convicted u/s 148, I.P.C. and each is sentenced to undergo rigorous imprisonment for one year ;
(4) Appellants, Brij Mohan alias Minto, Ram Babu alias Dak and Bachhu are convicted u/s 147, I.P.C. and each is sentenced to undergo rigorous imprisonment for six months.
All the substantive sentences of imprisonment of the Appellants shall run concurrently.
As per the record, Appellant Brij Mohan alias Minto and Bheem are on bail and the remaining three Appellants, namely, Shyam, Ram Babu alias Dak and Bachhu are in jail. The Appellants Brij Mohan alias Minto and Bheem who are on bail, shall be arrested and lodged in jail to serve out the sentences passed against them. C.J.M., Mathura, shall verify from jail that Shyam, Ram Babu alias Dak and Bachhu are actually lodged in jail in connection with this case. If any of them is also enjoying his liberty, he, too, shall be arrested and lodged in jail to serve out the sentences.