Jagdip Singh and Others vs State of U.P.

R.K. Saksena, J.—Seven adult members of a family, Jagdeep Singh, hie five sons, Daljeet Singh, Paramjeet Singh, Sarvajeet Singh, Vichhitra Singh, Dalbir Singh and Sukhwinder Singh son of Dalbir Singh, who belong to village Sitapur-Tanda, police station Ram Nagar, District Nainital were charged with having committed several offences, the principel one of which was u/s 302 of the Indian Penal Code read with Section 149 thereof four committing the murder of Gyan Singh, son of Amrik Singh, resident of village Shivpur-Tanda, Police station Ram-Nagar, District fsainital. Dalbir Singh was allegedly armed with a gun (did not use it) while the remaining six persons had wielded lathis in inflicting injuries on the person of Gyan Singh and Shiv Raj Singh PW 1 on the 29th of October, 1980 at about 6.30 a.m. at a place to be here in after mentioned, which falls within the territorial limits of the said police station. All the six assailants stand convicted by the 1st Additional Sessions Judge, Nainital (Sessions Trial No. 39 of 1981) on three counts and each has been sentenced as under :

(i) Imprisonment for life u/s 302 of the Indian Penal Code with the aid of Section 149 thereof for committing murder of Gyan Singh ;

(ii) Rigorous imprisonment for one year u/s 323 of the Indian Penal Code read with Section 149 thereof.

Charge was framed for �attempted murder� of Shiv Rai Singh PW 1 punishable u/s 307/149 of the Indian Penal Code, which was held as not proved, but punishment for voluntary causing simple hurt on his person, a minor offence, hae been awarded and

(iii) Two years rigorous imprisonment u/s 148 of the Indian Penal Code for forming unlawful assembly to commit the said crimes.

All the said substantive sentences were directed to run concurrently. Being aggrieved, they have preferred appeal, which has been numbered as Criminal appeal 1265 of 1982.

By the some judgment and order dated May 14 1982, the trial judge found Dalbir Singh not guilty and has acquitted him on all the charges stated above. It is against this finding of acquittal that the State has preferred appeal, which has been registered as Government appeal No. 1945 of 1982, one Dhian Singh, brother of Gyan Singh, deceased, has also assailed the finding of acquittal of Dalbir Singh by means of Criminal Revision bearing No. 972 of 1982.

Jagdeep Singh, accused Appellant, died pending disposal. Therefore, appeal No. 1265 of 1982, in so far as it relates to Jagdeep Singh, abates. Both the appeals and the revision were heard together and are being disposed of by a common decision.

The prosecution case substantially rests on these facts. Dalip Singh PW 7 is the real-uncle of Gyan Singh, deceased, who was grand-father of Shiv Raj Singh PW 1. Dalip Singh, who has property in village Shivpur-Tanda also, carries on business since 1954 A.D. in Malysia and has become a national of that country. He had come to village Shivpur-Tanda to make arrangement of his immovable property, after staying in India for about a week, he left his village in the early hours of the 29th of October, 1980 and boarded a train at 6.30 a.m. at railway station, Perumadara, which is about 11 Km. away from the police station Ram Nagar in district Nainital. Gyan Singh, deceased, and Shiv Raj Singh PW 1 had accompanied him to the railway station to see him off. When the train had just steamed off, all the above named seven persons came on the platform and on the exhortation of Dalbir Singh to finish off Gyan Singh and Shiv Raj Singh, the remaining six persons opened an assault on them with lathis. Gyan Singh, on receiving two simple injuries, statred fleeing in south-west direction, crossing the railway line. All the six assailants gave him a chase. Gyan Singh, as luck would have it, fell flat in a field after he had covered one and a half furlongs All the six assailants reached there and started delivering blows from their lathis, as a consequence whereof he sustained injuries in his hands and feet. Dalip Singh, after getting down from his compartment, started running behind the said pursuers of Gyan Singh along with Shiv Raj Singh PW 1, Gurmej Singh, PW 2, (he too, had come out from the morning train), Ranvir Singh, PW 10, and some other persons, raising shouts, as a consequence whereof, all the six assailants and Dalbir Singh, who had also rushed in the same direction with his gun and who continued inciting the assailants to end the life of Gyan Singh, bolted away from the venue of the assault.

The prosecution goes on to say that Gyan Singh remained lying on the scene of concurrence for about 2 hours for want of proper conveyance, and was then taken to police station Ram Nagar on a tractor-trolly.

A written report of the incident was allegedly given by Shiv Raj Singh PW 1, at the police station on the same day 19-10-1980 at 10 a.m. Both the injured, namely Shivraj Singh and Gyan Singh were then sent by police to civil hospital Ram Nagar, where wound reports Ext ka 2 and Ka 3, were prepared by Dr. Om Shankar Sharma, PW 3, respectively at 10.45 and 11 a.m. The injuries have been reproduced in the impugned judgment and need no repetition here; relevant wounds will be referred to at appropriate place. Accepting the advice of the doctor, Gyan Singh was taken to Medical College, Meerut where he was admitted on the same evening, but he succumbed to the injuries on the following morning 30-10-1980 at about 4�o clock.

The investigation that followed resulted in the submission of charge sheet against all the above named seven persons, as a consequence whereof they were put up for trial. The version of all the accused was that of denial coupled with an assertion that they have been falsely roped in on account of enmity.

The prosecution, besides adducing medical evidence and other evidence of formal nature, examined Shivraj Singh, PW 1, Gurmej Singh PW 2, Dalip Singh PW 7 and Ranvir Singh, PW 10, who have given an ocular account of the incident, from its commencement till the fall of curtain. It further produced Smt. Laxmi Devi, PW 9, to prove the motive part of the crime about which Shiv Raj Singh PW 1, has also given statement, it will be referred to at proper place.

The accused, in their turn, examined a witness to discredit the claim of Gurmej Singh PW 2, in regard to his presence on the scene of occurrence.

The learned trial court has, after an evaluation of the evidence on record rejected the claim of the prosecution witnesses in so far as it relates to the complicity of Dalbir Singh in the crime and has, therefore, recorded a finding of acquittal in his favour. Accepting the remaining part of the claim of the eye-witnesses of the occurrence and the medical opinion about the cause of death of Gyan Singh, which has been found to be homicidal, the learned trial judge found the remaining six accused guilty and sentenced each of them as stated at the outset. Dissatisfied with the decision, the aggrieved have come up in appeal/revision.

We have given our anxious considerations to the facts, circumstances and the probabilities of the case and also to the arguments advanced on factual and legal points involved for determination. We would first like to take up the appeal/revision preferred against the acquittal of Dalbir Singh. It has been repeatedly emphasised that the appellate court should be slow in interfering with the order of acquittal because it strengthens the initial presumption of innocence and under sound principles of criminal jurisprudence, a judgment of acquittal is not interfered with unless the forms of legal process have been disregarded and the acquittal has been on unreasonable grounds, resulting in a gross miscarriage of justice.

In this legal a backdop, we have to examine the matter in regard to the complicity of Dalbir Singh in the crime. It may be recalled that he was allegedly holding a gun during the course of the commission of the crime and had, per evidence of the prosecution, not fired any shot from it. The Learned Counsel for, the State and also the Learned Counsel for the Revisionist vehemently argued that Dalbir Singh was guilty of committing offence, if he was a member of the unlawful assembly, being vicariously responsible even though he had not used his weapon. This position of law cannot be disputed. A member of an unlawful assembly would, undoubtedly, be guilty of some offence, but the real issue for determination is as to whether Dalbir Singh was at all present and had taken part, in any manner whatsoever, or a completely fabricated role has been deliberately assigned to him to falsely implicate him.

It becomes necessary at this stage to refer to the evidence given by all the four abovenamed eye-witnesses to show the complicity of Dalbir Singh. They have with one voice assigned the role of exhortation to him, the relevant time being before the commencement of the assault at the plat-form and also at the field where Gyan Singh was being given final blows. For the alleged incitment in the field, the statement, of Dalip Singh PW 7 is :

Tasalli Karlo ki yeh bach na pava para-5 Sbivraj Singh, PW 1 gives it in these words

�Aaj ise zinda nahi chchorna.� Ranbir Singh, PW 10, put it like this ; �Aaj Gyan Singh bachana nahi chahiye.

Yet we find that Gyan Singh was left alive; only his hands and feet were the situs of injuries. Had Dalbir Singh been present in the field at the relevant time and the lathiwalas had started fleeing, abandoning their target, there was hardly any difficulty in firing shot at Gyan Singh. Likewise, Dalbir Singh could conveniently fire shot at Shiv Raj Singh at the plat form when his alleged associates had started chasing Gyan Singh, leaving Shivraj Singh alone at the plat form. The suggestion of the Learned Counsel for the State/Revisionist that the shot was not fired for fear that it might not hit and involve his own associates has, therefore, no substance and force. Further, the contention that the gun was being held only to scare away persons approaching nearby is also too far fetched to be seriously entertained These suggestions were advanced before the trial court also, which did not rightly attach any weight to it and repelled the contentions giving sound reasons.

On behalf of the State/Revisionist our attention was drawn towards the relationship of Dalip Singh with Jagdeep Singh (since dead) and his offsprings, who figure as accused in the case; the former is �sala� of the latter. This make, prima facie, look to be an important weapon of attack in the armoury of the prosecution, but if we closely scrutinise the evidence of Dalip Singh, we would find that he harbours grudge against the accused and has his own axe to grind. Some land was allotted to his son Gajjan Singh and also to Jagdeep Singh, the latter has taken possession over the land of the former (vide para 17 of his statement). He further stated in the same continuation that he did not know whether Jagdeep Singh had, obviously by Chicanery, got his name mutated over the land allotted to Gajjan Singh, who has started living in Malaysia. It was put to him in cross examination that he has a grouse against Jagdeep Singh who refused to deliver-back possession to him/son over that land. The suggestion was no doubt denied by him but the denial is inconsistent with human phychology. One can never be happy with another who grabs his land and refuses to part with it. This bone of contention very often leads to serious consequences. We have, therefore, no hesitation in holding that the witness is not truthful and straight forward, rather is inimically disposed towards Jagdeep Singh and his off-springs (all the accused of the case).

Since we have touched the evidence of Dalip Singh, on whom much reliance was placed on behalf of the prosecution, we would like to point out some other infirmities and absurdities spelling out therefrom. He was about 60 years old at the time of incident and had a poor vision, vide his own statement. This is also his admission that he could not run so fast as some of the accused could do. He got down from the moving train with his attache and a Jhola, went upto the tractor on which he had come from the village to catch train and which was standing at a distance of 25-30 paces from his compartment, threw his luggage in the tractor and then turning his face in the opposite direction (west) he started running. This is also in his statemen that the assailants were then at a distance of 40-50 paces from him while he was still at the plat-form. The assailants had chased Gyan Singh upto a distance of about one a half furlongs. If we picture to ourselves the scene of occurrence in the light of the statement referred to above we can un-hesitatingly say this claim of having seen the actual assault by each of the six alleged assailants as redi-culous and funtastic ; by the time he neared the victim of the assault, the matter would have ended for the simple reason that he would leg for behind. It is pertinent to point out here that if Daljeet Singh was running in the same direction with the gun, Shivraj Singh, PW 1, or for that matter, any one could not have mustered courage to come within the hitting range of the fire arm.

We have, thus, pointed out some of the inherent absurdities, which appear in the claim of the said eye-witnesses, so far as the role attribute to Daljeet Singh is concerned with which the question of common object/intention to kill Gyan Singh or Shivraj Singh is linked. Let us, therefore, consider as to whether there was the said common object intention of the assailants. It brings us to the determination of the back ground in which the alleged murderous attack was made, i e. the motive part. The first information report of the occurrence recites this much only that the accused of the case wanted to surreptitiously take the land of Smt. Laxmi Devi, aunt of Gyan Singh, who was extending aid to her This was disclosed as the only reason due to which the members of the family of the accused were nurshing grudge against Gyan Singh. Smt. Laxmi Devi stated that shortly after the death of her husband, Daljeet Singh (accused) had, by chisancery. obtained five years� lease from her in respect of the agricultural land left by her husband, who had died about one and a half month before this incident. She further stated that when it was discovered, she filed a suit for cancellation of the lease in which Daljeet Singh filed a compromise, thereby surrending his claim in respect of that land It has come in the cross examination of Shiv Raj Singh, PW 1, that the compromise had been filed a month before the episode under-consideration. The statements of both the witnesses show that Gyan Singh was extending help to his aunt, Smt. Laxmi Devi, in that matter. The filling of the compromise in the suit is accepted by Daljeet Singh. It is significant to note that the controversy remained only for a fort night or so and it is evident that the matter was settled outside the court, a month before the incident. On the foot of these facts it is claimed by the prosecution that Daljeet Singh started harbouring grudge against Gyan Singh In view of the amicable settlement of the matter, it is difficult to swallow the suggestoin without demur.

However, assuming that the said conduct of Gyan Singh had given a cause of annoyance to Daljeet Singh. The question is as to whether it was of such a nature which prompted Daljeet Singh, his father, his brothers and a nephew to end the life of Gyan Singh ? In the back ground that there is nothing to suggest bitter animosity or firece hostiiity, we have no hesitation in answering the question in the negative. The motive as laid was in our opinion, too weak to actuate the said persons to cut short the life of Gyan Singh and interestingly enough, a well frequented area (plat-form of a railway station) and such a time when a train had not completely left the plat-form, were chosen for implementing the evil design after covering 4-5 km from their houses. These facts speak volumes and go a long way to negative the theory of preplanned or pre maditated attack. Realising the weakness in the alleged motive, Shivraj Singh tried to strengthen it by making a statement that the accused had purchased a truck which was not allowed to be plied by the Union and the accused formed an impression that the Union had been persuaded by Gyan Singh, deceased, to take that stand. This was not disclosed in the first information report and we find nothing substantial even to corroborate it. The bald statement has been falsely made obviously to show that the acccsed had strong motive to end the life of Gyan Singh.

Further, the conduct of the assailants (who-so-ever they be) tells -- tale. They inflicted only two simple injuries on the person of Shivraj Singh (contusions-middle of right leg and just below the calf) and injuries on the legs and hand of Gyan Singh, even though there was no obstruction, of any nature what-so-ever, in the accomplishment of the said design, namely, object/intention to kill. Regard being had to nature, situs and number of injuries detected by the doctor on the person of Shivraj Singh read in conjunction with other circumstances, the learned trial court rightly held that the theory of propounding a plan to kill Shivraj Singh is a mere concoction. It, therefore, rightly found that the charge u/s 307/149 of the Indian Penal Code was not proved. It is significant that neither the State nor Shivraj Singh has assailed the order of acquittal of all the seven person recorded u/s 307/149 of the Code.

From the discussions made above, it is manifest that Dalbir Singh was not present at the time of occurrence or for that matter, did not take part in any manner whatsoever, in the incident under-consideration. In this respect, the learned trial judge observed :

Under these circumstances, the presence of the accused Dalbir Singh with a gun in his hands is doubtful. The testimony of the four eye-witnesses implicating him as one of the cuiprits with a gun in his hand is not worthy of acceptance. Since the presence of the accnsed Dalbir Singh and his participation in the commission of this crime is doubtful, he would be acquitted.

What we feel is that user of the word �doubtful� is not appropriate. There should not have been a hestitation in recording a clear and categorical finding that Dalbir Singh was neither present nor he participated in the assault made on Shivraj Singh and Gyan Singh. There is no reason at all for entertaining �doubt� in this respect.

In the result, the appeal and revision, both, preferred against the acquittal of Dalbir Singh fail and are to be dismissed.

Let us now proceed to consider other points involved for determination in the appeal preferred by the convicts. We have seen that there is a fool-proof narration by witnesses, not faulting anywhere, in regard to the role assigned to Dalbir Singh and we have found that the narration given in that respect is lifeless and a fabricated one. It may be recalled that one of the witnesses, namely, Shivraj Singh is an injured witness. Normally, the evidence of an injured witness is ranked high but if there are disquieting features therein, the witness has to be stamped with a verdict not wholly reliable. Sbivraj Singh, can be safely placed, for the reasons given above, in in that category. True, there are decisions to the effect that if there is an omnibus statement implicating all the accused and it is found that one or two of them have been falsely roped in, it is highly unsafe to rely thereon against any of the accused ; reliance placed on such evidence is likely to result in miscarriage of justice. But it is equally true and is an every day happening that the witnesses add embroidery to make the case look as black as possible. It has been settled view that this by itself is no ground to throw the case overboard; if true, in the main. In such cases, it becomes the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. The instant case, in our opinion, falls in the latter category, for the reason that it was, indisputably, a day-light incident in which one of the injured suffered such injuries which proved fatal, the cause of death of Gyan Singh, which was homicidal has not been challenged on behalf of the accused.

The learned trial court has also, after rejecting the evidence of all the four eye-witnesses insofar as it was against Daibir Singh, proceeded to shift the e\\idence for disengaging truth from falsehood. It, however, lost sight of one important fact that the report of this nature loses its authencity and no implicit reliance can be placed on its contents; it was obviovsly, the result of deliberations and consultations and the affort on the part of the complainant-party was to falsely rope in some adult innocent members of the family of the accused along with the real assailants. At various places in his judgment, the learned trial Judge has referred to the first information report of the incident and has observed that it was prompt and spontaneous it normally conveys that the contents disclose true facts. This appears to have materially affected his rr.ind and he forgot that it contains even according to his finding, as false accusation atleast against an innocent person whose name was introduced to achieve one object, viz. conviction of all the adult members of the family of the accused.

However, let us see whether six Appellants of Criminal Appeal No. 1265 of 1982 did take real part in the assault made on Gyan Singh. One of them was Jagdeep Singh whose appeal has abated, but we feel, after a close assessment of the circumstances of the case, that a false role was assigned to him also. He was sufficiently aged at that time and was a close relation of the deceased. There was, as pointed out no deep-seated enmity or fierce hostility. We have also shown above that the assault was not made pursuant to a well chalked out plan or pre maditation. It does not stand to reason that this old man covered a distance of four five kms. from his house upto the railway plat-form along with sons and grandson to end the life of his near relation, Gyan Singh. We have further shown that common object or intention to kill Gyan Singh was completely lacking and wanting. Further, the witnesses have with one voice stated that after Gyan Singh had fallen on the ground while running, he was surrounded by six persons, of different ages, including Jagdeep Singh, and all made an assault on him with lathi.

This claim in regard to the manner of assault on Gyan Singh in the feild is ridiculous and fantastic. Gyan Singh was given a chase upto I 1/2 furlongs, and six persons, including the old man, Jagdeep Singh, were allegedly the pursuers. We can unhestitantly and legitimately infer that all the six pursuance did not reach Gyan Singh at one and the same time; in that race some did lag behind and Jagdeep Singh, the old man, must necessarily be one of them, if at all he was present. One, who proceed ahead and was the first or second or, for that matter, third in reaching upto Gyan Singh, obviously, started showring blows on the fallen man without waiting for others to reach there. It we picture to ourselves the scene of occurrence, we would find that the story that Gyan Singh was �surrounded� by six persons and then raining of blows commenced is absurd and unworthy of belief. Further, we cannot conceive a situation that when the remaining, who had lagged behind reached there, the former vacated the place to unable them to shower a few blows.

Regard being had to the outstanding features of the case, which stand out prominently and about which a reference has been made in the preceeding para, we are firm in our conviction that it was not a case of assault by six persons and have further no hesitation in holding that Jagdeep Singh has also been assigned a false role. One may, prima-facie, feel that when the appeal of Jagdeep Singh has abated, it was not necessary to discuss his alleged participation, but the finding in regard to his participation reflects on reality and has a bearing on other aspects also, principal being the false implication or assigning a completely fabricated role.

This brings us to the determination of the question as to what offence the remaining five persons, namely, Daljeet Singh, Paramjeet Singh, Sarvajeet Singh, Vichhitra Singh and Sukhwinder Singh have committed. For an appreciation of the arguments advanced on behalf of the parties, to be hereinafter dealt with, it is necessary to sum up the findings on facts recorded above. Each case presents its own problems and no decision can be an authority on facts. Therefore, for applying the principles of law enunciated in any decision it is essential to keep in mind the facts of each case. The findings, in the instant case, are :

(i) False implication of atleast two persons, namely, Daljeet Singh and Jagdeep Singh, attributing active role to each of them.

(ii) The first information report loses its authenticity-it is the result of deliberations and consultations.

(iii) No fierce hostility or deep seated enimosity to prompt and actuate all the adult persons of the family of Jagdeep Singh to kill Gyan Singh or Shivraj Singh; there was no common object/intention to that effect.

(iv) Attack was not a pre-maditated one.

(v) Gyan Singh was not �surrounded� by all the remaining five persons in the field, the injuries sustained by him were caused by 2-3 persons, who had succeeded in reaching upto him immediately on his fall and that too, are after thereafter.

(vi) The persons, who have given an ocular account of the incident, are not wholly reliable :

We have also to be mindful of the nature and situs of the injuries suffered by Gyan Singh in the assault. He was examined by Doctor Om Shankar Sharma, PW 3, who had found nineteen injuries on his person. Its detailed description appears in the judgment under-appeal, a brief reference would therefore serve the purpose :

Left hand - a lacerated wound, two abraded contusions and three contusions (six in all).

below the lacerated wound of the left arm, there was a simple fracture.

Right Hand -- three injuries, a lacerated wound and two contusions. There was a simple fracture underneath one injury.

Left thigh -- A contusion and a simple fracture beneath it.

Left knee -- a lacerated wound and two contusions.

Left leg -- a lacerated wound and a contusion.

Left ankle -- a lacerated wound.

Right leg -- a lacerated wound an abraded contusion and a contusion.

Seven injuries were found bleeding at the time of examination.

The doctor, who conducted an autopsy on the dead body had, on internal examination, found blood in heart. Further there was no internal haemorrhage or eompoundrracture; four simple fractures were detected on different parts of the body. Ordinarily, simple fractures are not dangerious to life, and, as pointed out above, the assailants had no intention to cause death of Gyan Singh. The medical evidence however shows that the injuries caused were cumulatively sufficient to cause death in the ordinary course of nature and that the death ensued due to shock and haemorrhage. It is, however, difficult to find out as to how much blood had gushed out from the wounds before the first-aid was given at the hospital about four hours after the incident. Therefore, let us accept the opinion of the doctor, who was not cross examined on that point before the trial court.

Sri V.P. Goel, Advocate, was engaged by the members of the family of the deceased. On the basis of the medical evidence referred to above Sri Goel advanced arguments that :

(i) even if there was no intention to kill and no vital part of the body of Gyan Singh was hit, yet clause thirdly of Section 300 of the Indian Penal Code which defines �murder� stands attracted, and

(ii) each member of the unlawful assembly, the object of which may have been beating alone, is vicariously responsible for the murder of Gyan Singh.

So far as the first part of the argument is concerned, there is absolutely no difficulty in accepting it. Clause �thirdly� of Section 300 may be usefully quoted here :

3rdly -- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

In a decision reported in State of Andhra Pradesh Vs. Rayavarapu Punnayya and Another, the position was considered and it was held :

The expression �bodily injury� in clause thirdly includes also its �plural�. The clause, thus, covers a case where all the injuries intentionally caused by the accused are cumulatively sufficient to cause death in the ordinary course of nature, even if none of those injuries individually measures upto such sufficiency. The sufficiency spoken of in this clause is the high probability of of death in the ordinary course of nature and if such sufficiency exists and death is caused and the injury causing it is �intentional� the case will fall under the clause �thirdly� of Section 300.

This decision alone is sufficient for showing the principle of law. Since much emphasis was laid on this decision and it was contended by Sri Goel that it applies on all fours to the facts of the instant case, we would like to, briefly, point out the facts of the case. There were two factions having fierce hostility and bad blood. There had been clashes even earlier. The incident was preceded by an election. Police force was posted in the village. The deceased was 50 years old man. Nineteen injuries were indiscriminately caused by two persons (Al and A2) with heavy wooden object involving the arms and legs. There were nine grievous injuries. Dying declaration of the victim of the assault had been recorded. Regard being had to these facts, it was held that clause �thirdly�, referred to above, applies and both the assailants shared common intention to cause those bodily injuries, which were cumulatively sufficient in the ordinary course of nature to cause death.

We should, however, not be unmindful of the fact that clause �thirdly� will apply only when the bodily injury/injuries detected on the persons of the victim of the assault, were �intended� to be inflicted and once the existence of injury is proved, the intention to cause that injury will be presu med, unless the circumstances warrant an opposite conclusion. In other words, if the assailant and had not the intention to inflict such bodily injury, which was found on the person of the deceased, clause �thirdly� will not apply. The matter may be elucidated by an example :

A. with the intention of causing an injury with lathi on the buttocks of B delivers a blow, before the blow actually lands, sits down as a consequence whereof the blow hits the head region, causing an injury which proved fatal.

In the example cited, there was no intention at all to cause bodily injury actually found to be present. Therefore, the subjective requirement of clause �thirdly�, namely, injury caused was the one which was intended, is utterly wanting and the case goes out of the ambit of clause �thirdly�.

In this back ground, let us examine the evidence that has been adduced by the prosecution in the instant case. All the four witnesses, who have given an ocular account of the incident, have stated with one voice that the victim of the assault (Gyan Singh) was raising his hands and feet, obviously to save the blow landing on vital parts of his body (Hath Pair Uthakar Apne Ko Bachane Ki Koshish Karta tha) If we accept this part of the evidence, we can unhesitatingly concluse that the injuries on hands and legs were not �intended� at all and that these parts were affected because of the movement and act on the part of the victim of the assault. The case, therefore, goes out of clause �thirdly�. But this part of the evidence does not ring true and is not acceptable. The prosecution introduced it at a late stage (the witnesses did not state accordingly before the Investigaiing officer) only to show that the assailants, wanted to hit the vital parts of the body to end the life of the victim, but they could not achieve that object on account of the conduct of Gyan Singh. This is only to make the case look as black as possible and to show that the object/intention was to kill. This false embro-diery is, therefore, not to be attached any weight and we have no hesitation in concluding that only limbs and legs were intended to be affected by the blows actually delivered. Clause thirdly will, therefore, stand attracted.

Now comes the cruicial argument of Sri Goel as to whether each member of the unlawful assembly can be vicariously held responsible for the murder of Gyan Singh even though the common object/intention was not to kill. Sri G.C. Chaturvedi, Advocate, who represented the said five Appellants, on the contrary, argued that each member of the unlawful assembly is not necessarily guilty of the offence of murder, if it was not committed in pursuance of the common object of the assembly or such as the members of the assembly know to be committed in prosecution of the object i.e. if the second part of Section 149 of the Indian Penal Code is not attracted.

It is well known that an assembly of five or more persons actuated by or intending one or more of the common objects as specified by the five clauses of Section 141 of the Indian Penal Code will be an unlawful assembly. This is also not open to doubt or suspicion that the second part of Section 149 of the Indian Penal Code, which deals with knowledge, implies much more than conjecture or speculation and further that Section 149 as a whole is declaratory of vicarious liability. What is the common object is initially a question of fact to be determined keeping in view the nature of the assembly, the arms it carries, the behaviour of its members at the scene of incident and the nature and situs of the injuries inflicted. If on an evaluation and scrutiny of the evidence it is found that the common object/intention of the assembly was only to beat or for that matter to cause only grievous injury and one of the assailants delivers a blow on head region causing injury which proved fatal, the other members of the assembly cannot be said to have possessed knowledge that such an injury will be caused by a member of the assembly which would result in the death of the victim. In a case like this, only the person, who inflicted fatal injury is punishable u/s 302 of the Indian Penal Code, simpliciter, his case having been attracted by clause thirdly of Section 300; others cannot be held guilty of that offence with the aid of Section 149. A decision of the Supreme Court reported in Shambhu Nath Singh v. State of Bihar AIR 1961 725, may be usefully quoted here. Their Lordships held that all the members of the unlawful assembly cannot be held liable u/s 302/149 of the Indian Penal Code, if the common object of the members of the assembly was only to cause grievous injury, but per chance a fatal blow was given by one of them. In the cases cited by Sri Goel if it was found that the injuries inflicted were cumulatively sufficient in the ordinary course of nature to cause death all the assailants were held responsible under clause thirdly of Section 300. For reference in Thakur Das case reported in 1967 All. 495, seven persons armed with spear, Gupti and lathis had taken active part in the assault itself and the death had resulted owing to loss of blood and shock. In Rajwant Singh�s case reported in AIR 1966 SC 1874 two persons were involved in the commission of the crime. They had not only tied hands and feet of the intended victim, but had covered his mouth also with adhesive plaster and had plugged his nostrils with cotton wool soaked in chloroform and death was due to asphysia. It was held that the matter was covered by clause �thirdly� and both the participants were responsible for causing the death of the victim. They were, therefore, punished u/s 302/34 of the Indian Penal Code. In Anda�s case reported in Anda and Others Vs. The State of Rajasthan, ail had taken part in beating. There were nine fractures and thirty wounds had been caused. All were, therefore, found guilty of committing murder. It is relevant to refer again the case reported in State of Andhra Pradesh Vs. Rayavarapu Punnayya and Another, (finds a mention at page 21 of this judgment). In this case also five persons were tried but only two of them, who had assaulted the deceased with heavy wooden object were held guilty of murder. The remaining three who had not taken part in the actual assault had not been convicted for that offence which fell under clause thirdly.

Thus, it is manifest that if clause �thirdly� of Section 300 of the Indian Penal Code is attracted and there was no common object to kill, rather the common object was only to beat, only such member of the unlawful assembly will be liable for committing murder, who inflicted such iujuries, which were cumulatively sufficient to cause death in the ordinary course of nature; the other members of the unlawful assembly, who did not take part in the actual assault and had only a common design to beat cannot be vicariously held responsible for the offence of murder.

Now, as observed earlier, no case can be an authority on facts and each case presents its own factual problems. Let us recapitualte what has been concluded earlier on questions of fact. There was no common object/ intention to kill. The whole thing appears to have developed at the spun of the moment. There was no deep seated enmity and the object was only to beat. It has also been found that only 2-3 persons had inflicted injuries on the body of Gyan Singh and had finished the assault before others reached near Gyan Singh; they could not see and had no knowledge also as to how many blows had been delivered on the limbs and legs of Gyan Singh. Such members of the unlawful assembly cannot be saddled with the responsibility of causing the death of Gyan Singh and clause �thirdly� will not apply to them. It is significant that we do not know and cannot safely put our hands on those who had inflicted injuries on the person of Gyan Singh. Therefore, none of these five persons can be convicted u/s 302 of the Indian Penal Code read with Section 149 thereof. The learned trial court has failed to closely analyse the matter from a correct angle of vision and has, therefore, erred in convicting all those persons u/s 302/149 of the Indian Penal Code. Keeping in view the facts and circumstances of the case, we can, however, legitimately infer that the knowledge that grievous injury could be caused can be safely attributed to each member and, therefore, each of the said five persons had committed offence punishable u/s 325 of the Indian Penal Code read with Section 149 thereof. The conviction recorded under other counts is, however, un-sustainable.

In the end comes the question of sentence. Four Appellants, namely, Bichitra Singh, Daljeet Singh, Paramjeet Singh and Sarvjit Singh have already remained in jail since their conviction, i.e. for a period of 8 years which is more than the period for which they could have been sentenced. So far Appellant, Sukhvinder Singh alias Pappu is concerned, he was still in his teens when he committed the crime. Sufficient time has lapsed and has settled down to his avocation and the ends of justice does not require that he be lodged in jail again in this crime. The period for which he remained in jail is, in our opinion, sufficient punishment,

In the result :

(1) The appeal/revision, both preferred against the acquittal of Dalbir Singh fail and are, hereby dismissed.

(2) The appeal preferred by Jagdeep Singh against his conviction abates.

(3) The appeal of remaining five persons, namely, Bichitra Singh, Daljit Singh, Paramjit Singh, Sarvjit Singh and Sukhvinder Singh alias Pappu is allowed in part. Their conviction u/s 302 of the Indian Penal Code read with Section 149 thereof and the sentence awarded thereunder are set aside and instead, each is convicted u/s 325 of the Indian Penal Code read with Section 149 thereof. They have been in jail for a period larger than they could have been sentenced u/s 325 of the Indian Penal Code. Their conviction u/s 323 of the Indian Penal Code with the aid of Section 149 thereof and also u/s 148 of the Indian Penal Code are confirmed. All of them except Sukhvinder Singh Alias Pappu have served out the sentence awarded under these two counts. The sentence awarded to Sukhvinder Singh alias Pappu under these counts shall stand substituted by the period already undergone. He is on bail. The sureties are discharged.

(4) Appellants Bichitra Singh, Daljit Singh, Paramjit Singh and Sarvajit Singh are in jail. They should be released forthwith unless wanted in any other crime.

Sri V.P. Goel. Advocate, orally prays that a certificate be issued for filing appeal to the Supreme Court of India. We do not find it a fit case for grant of Special Leave. Therefore, the prayer is not accepted.