Kaleshwar and Jawahar (In Jail) vs State of U.P.

Saroj Bala, J.—This criminal appeal is directed against the judgement and order dated 8.10.1982 passed by the IV Additional Sessions Judge. Fatehpur in S.T. No. 740 of 1980 State v. Kaleshwar and Anr. whereby convicting the appellants for the offences punishable under Sections 302/149, 307/149.399 read with Section 402 I.P.C and sentencing each of them to rigorous imprisonment for life u/s 302/149 I.P.C. two years rigorous imprisonment with fine with default clause u/s 307/149 I.P.C. and five years rigorous imprisonment with fine with default clause for the offence u/s 399/402 I.P.C. The appellant No. 1 Kaleshwar has also been convicted for the offence u/s 25 of the Arms Act and sentenced to one year''s rigorous imprisonment.

The background facts leading to this appeal are.

On receiving information, through police informer about the likely assemblage of dacoits at the tube-well to commit dacoity in the house of Bhagwant Singh (P.W.3) in village Pariharan Dera. S.H.O. P.S. Kalyanpur Jai Karan Singh (P.W.4) along with police force, arms and ammunition proceeded to village Pariharan Dera at about 8.15 P.M. on 21.6.1977 and reached at the tube-well of Shambhu Nath Bajpayee. Constables Mannan Singh and Ram Gopal Singh reached there along with public witnesses Suraya Bhan Singh (P.W.1) Ram Swaroop (P.W.2), Bharat Singh (P.W.5) and others and joined the police party. The Station Officer (P.W.4) divided the force and public witnesses in two parties. The first party took position towards the southern western-side of tube-well whereas the second party stood in wait for the arrival of miscreants on the eastern side. The culprits came one by one after about 15-20 minutes and assembled in the thatched room of the tube-well. On hearing their conversation S.H.O. Jai Karan Singh and members of both the parties were satisfied that it was a gang of dacoits. S.H.O (P.W.4) challenged the dacoits to surrender and fired a V.L.P. shot. The miscreants ran away towards the northern side of tubewell opening fire at the police personnel and public witnesses. Bharat Singh (P.W.5) and one Ram Adhar sustained firearm injuries. The appellants were captured at a distance of about one furlong from the tube-well. On their personal search the recovery of lathi was made from the appellant No. 2 Jawahar and of Pharsi from appellant No. 1 Kaleshwar. The injured and captured appellants were given in the custody of A.S.I Laxmi Narayan. The other members of the police party continued their chase after the fleeing daciots. On the way Bachoo Kachi (deceased) resident of village Govindpur and Devi Dayal Pradhan and others joined the police and ''public in chasing the fleeing dacoits. Bachoo Kachi sustained injuries with the shot fired by the dacoits and later on succumbed to the injuries. Two dacoits were killed with the shots fired by the police personnel and public witnesses. The killed dacoits were identified by the appellants. The recovery of arms was ''made from the possession of killed dacoits. The recovery memo (Ext. kal) was prepared by the S.H.O. Jai Karan Singh Chauhan (P.W.4) at the spot. On the basis of recovery memo chick F.I.R. (Ext Ka-2) was prepared by Constable Moharir Jagdev Prasad (P.W.7) and crime was registered at serial No. 2 of the G.D. at 12.10 A.M. on 22.6.1977. The G.D. entry is (Ext.ka-7).

The injured Bharat Singh and Ram Adhar were medically examined by Dr. B.R. Bajpayee (P.VV.6) on 22.6.1977 at 1 A.M. and 1.15 A.M. respectively. Gun shot injuries were found on the person of both the injured. Their injury reports are Ext. ka-3 and Ext. Ka-4.

The autopsy on the dead body of Bachoo Kachi was conducted by Dr. P.S. Mishra on 22.6.1977 and a gun a shot wound of entrance 21 cm. x 21cm. abdominal cavity deep was found. The death was caused as a result of shock and hemorrhage due to gunshot injury. The postmortem certificate is Ext.ka34. The postmortem was also conducted on the dead bodies of dacoits lndra Pal and Sajjan by Dr. Abdul Wahid. Their postmortem certificates are Ext. Ka 35 and Ext. Ka 36.

Shri Devnath Pandey (P.W.8) then posted as S.H.O P.S. Bindaki was entrusted with the responsibility to investigate the crime. He conducted inquest on the dead bodies of killed dacoits. The injured Bachoo Kachi died in the district i hospital the same day. The inquest on his dead body was also conducted. After completing the necessary formalities the dead bodies were sent him to the mortuary for postmortem. He prepared the site plan of the tube-well of Shambhu Nath Bajpayee and of the field of Sheetlu. After interrogating the witnesses he submitted charge sheet (Ext. 32 and Ext. 33) against the appellants and two

The committal proceedings were conducted by the Chief Judicial Magistrate. The appellants were committed to the court of sessions by the order dated 8.12.1980 for standing trial under Sections 399/401 302, 307 I.P.C. and Section 25 of the Arms Act. Co-accused Fuddi and Chhatrapal died before the committal of the case to the court of sessions.

Both the appellants were charged for the offences under Sections 399. 402, 307/149 and 302/149 I.P.C. The appellant Kaleshwar was separately charged u/s 25 of the Arms Act. They pleaded not guilty and claimed to be tried.

The prosecution, in support of the charges examined Surya Bhan Singh (P.W.1), Ram Swaroop (P.W.2) S.H.O. Jai Karan Singh Chauhan (P.W.4), injured Bharat Singh (P.W.5) as witnesses of fact. Dr. B.R. Bajpayee (P.W.6) was examined to prove the injury reports. Constable Moharrir Jagdeo Prasad (P.W.7) proved the entries made in the G.D. S.H.O. Dev Nath Pandey (P.W.8) was the investigation officer. Bhagwant Singh (P.W.3) was the person in whose house dacoity was to be committed.

The accused -appellants in their statements u/s 313 Cr.P.C. stated that they had been taken away by the police from their residence and were falsely implicated due to enmity with the people of ''Thakur'' community of village Pariharan Dera.

On appraisal of evidence the trial court recorded the finding of conviction against the appellants.

We have heard Shri R.B. Sahai, learned Counsel for the appellants, learned A.G.A. and have gone through the trial court record.

The learned Counsel for the appellants submitted that there was no common object to commit murder and causing injuries. Bachoo Kachi was killed with the shot fired by co-accused to scare the public witnesses and police personnel while fleeing away. It was pointed out that injuries were caused to Bharat Singh and Ram Adhar by the co-accused while running away from the spot. The learned Counsel urged that none of the appellant was armed with firearm nor caused any injury to the injured or deceased. It was further argued that the appellants were arrested at a short distance from the tube-well of Shamhhu Nath Bajpayee. The contention was that the appellants shared a common object with co-accused to commit dacoity. The injuries and death having been caused by the co-accused to save themselves from arrest, the appellants are not liable to be convicted for the offences under section. 307/149 and 302/149 I.P.C.

In order to appreciate the submissions raised by the learned Counsel for the appellants it would be appropriate to scrutinise the prosecution evidence.

Station Officer Jai Karan Singh Chauhan (P.W.4) deposed that on 21.6.1977 he was posted as S.H.O. P.S. Kalyanpur district Fatehpur and at 8.10 P.M. he received information through informer that a dacoity would be committed tonight in the house of Bhagwant Singh (P.W.3) and for that purpose dacoits would assemble at the tube-well of Shambhu Nath Bajpayee. At this information he alongwith police force reached village Pariharan Dera. Constables Manan Singh and Ram Gopal Singh along with public witnesses also reached there. The public witnesses were apprised of the information received about commission of dacoity. After taking search of each other the police force and public witnesses were divided into two parties. He (P.W.4) was incharge of first . party and S.I. B.K. Singh was incharge of second party. The first party took position towards southern western side of tube-well whereas second party was placed towards its eastern side. He went on to state that about 15-20 minutes thereafter six miscreants came from the side of village Pachkhara and sat in the thatched room of tube-well and engrossed in conversation. On hearing their conversation he (P.W.4) as well as other members of both the parties were satisfied that it was a gang of dacoits about whom prior information was received. On being challenged the dacoits opened fire to kill the members of both the parties. The witness (P.W.4) fired a V.L.P. shot. The dacoits started running away towards the northern direction opening fire. The witness Bharat Singh .(P.W.5) and Ram Adhar sustained firearm injuries. The accused Kaleshwar and Jawahar were arrested with Pharsi and Lathi at a distance of about 200-300 yards and were left in custody of S.I. Laxmi Narayan Dubey. The witness testified that he along with police force and public witnesses chased the remaining dacoits. Bachoo Kachi of village Govindpur and Devi Dayal Pradhan and others also joined them in the chase. Bachoo Kachi sustained injuries with shots of fire opened by the miscreants. Two daciots were killed with the shots fired by the police and public witnesses.

The injured witness Bharat Singh (P.W.5) testified that on 21.6.1977 at about 9 P.M. two constables came to their village for calling them. Ramadhar Singh, Suryaya Bhan Singh (P.W.1), Ramswaroop Singh (P.W.2), Pratap Singh and he himself along with two constables reached at the tube-well. S.H.O. Jai Karan Singh, two sub-inspectors and five constables were present there since before their reaching there. S.H.O. told about the information received through informer and asked to accompany them for capturing the dacoits. Two constables were sent to the house of Bhagwant Singh after giving necessary directions. The personal search of each other was taken and thereafter they reached the tube -well of Shambhu Nath Bajpayee. Two parties were formed by S.H.O. At about 9.45 P.M. the first party took position towards the southern side and second party towards the eastern side of tube-well of Shambhu Nath Bajpayee. S.I. Vijay Kumar Singh was the incharge of his party. After sometime the miscreants came one by one and assembled in the Chhappar of tube-well, There were five or six miscreants. S.H.O. who was leader of first party, after hearing the conversation of assembled miscreants challenged them to surrender. At this the miscreants opened fire at the first party. S.H.O. fired a V.L.P. in the light of which the miscreants were seen running away towards the northern side. The miscreants opened fire at police personnel and public witnesses while fleeing away. The dacoits were chased by the police and public witnesses. Co-accused Fuddi opened fire which hit him and one Ramadhar Singh. The appellants were captured at a distance of half furlong from the tube-well towards its northern direction and were handed over to the custody of S.I. Laxmi Naraian Dubey. The recovery of lathi (Ext.2) from accused Jawahar and Pharsi (Ext.1) from the possession of co-accused Kaleshwar was made. The members of both the parties continued their chase. After sometime the injured and captured accused were taken to the field of Sitlu Kewat where two dacoits were lying dead. The killed dacoits were identified by the captured accused. He further stated that Bachoo Singh sustained injuries with fire opened by the miscreants.

To the same effect is the testimony of witnesses Surya Bhan Singh(P.W.l) and Ram Swarup (P.W.2).

The appraisal of the testimony of eyewitnesses brings out that the incident comprises of three parts. Firstly the appellants along with four co-accused assembled in the thatched hut of the tube-well of Shambhu Nath Bajpayee with the common object to commit dacoity in the house of Bhagwant Singh (P.W.3). Secondly injuries were caused to Bharat Singh and Ram Adhar by co-accused Fuddi while fleeing away and appellants arrest at a distance of about half furlong the tube-well. Thirdly deceased Bachoo Kachi sustained injuries with the fired by the co-accused at a distance of about 1 km. in the midst of Abadi of village Govindpur. The dead bodies of killed daciots were found lying in the field of Sitlu situated at a distance of about two furlong towards the northern eastern side of village Govindpur.

In the backdrop of prosecution evidence the question for determination is whether the conviction of appellants u/s 307 read with Section 149 I.P.C and Section 302 read with Section 149 I.P.C. is legally maintainable. The scope of Section 149 I.P.C. came up for consideration before the Apex Court in -the case of Mizaji and Another Vs. The State of U.P., and it was held as hereunder:

The first part of Section 149 IPC means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall u/s 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression "know" does not mean a mere possibility, such as might or might not happen. Though it can be said that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object that does not make the converse proposition true; there may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149, Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of Section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be commuted in prosecution of the common object and falls within the second part.

In Allauddin Mian v. State of Bihar the import of Section 149 IPC was explained as under:

This section creates a specific offence and makes every member of the unlawfui assembly liable for the offence or offences committed in the course of fag occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be safely construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the [assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of any one or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149 1PC. It is not the intention of the legislature in enacting Section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to invoke Section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object they would be liable for the same u/s 149 IPC.

In Narayan Prasad Lohia Vs. Nikunj Kumar Lohia and Others, the Apex Court explaining the scope of Section 149 I.P.C. has held as below:

Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the some of the committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 either clause is attracted and the court is convinced, on facts and in law, both of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act.

The Section 149 of the Penal Code fastens vicarious liability for the offence committed by any member of an unlawful assembly in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of another offence, the knowledge of which is attributable to the members of the unlawful assembly. The knowledge of likelihood of commission of another offence is inferable from the facts and circumstances of each case. The inference about the prior knowledge of likelihood of commission of another offence would be drawn from the background of the incident, motive, weapons carried by the members of the assembly their common object and conduct soon before or after the commission of offence. The evidence of witnesses Surya Bhan Singh (P.W.1), Ram Swarup(P.W.2), P.W.2), S.O Jai Karan Singh Chauhan (P.W.4) and Miami Singh (P.W.5) reveals that on the date of the incident the appellants formed an unlawful assembly the common object of which was to commit dacoity in the house of Bhagwant Singh (P.W.3) and with that object the appellants along with co-accused assembled in the hut of tube-well of Shambhu Nath Bajpayee. The common object of unlawful assembly was not to kill Bachoo Kachi or to cause injuries to Bharat Singh (P.W.5) and Ram Adhar. The injuries to the deceased and injured persons were caused by the co-accused. The injured witness Bharati Singh (P.W.5) in his deposition has attributed the role of causing injuries to him and Ram Adhar to co-accused Fuddi. The victim Bachoo Kachi was killed after the interception of appellants by the police. The common object of the appellants who were arrested at a short distance from the place of assemblage was not the same as the common object that was subsequently formed by the other members of the assembly who opened fire at the injured and deceased. The appellants were armed with lathi and pharsi and they have not caused any injury to the injured or deceased. The appellants could not have known the subsequent change in the common object of some of the members of assembly who caused injuries. The appellants cannot be fastened with the criminal liability of the overt act of those members of the unlawful assembly who caused injuries to the injured and deceased. However, the appellants will be liable for punishment under Sections 399/402 I.P.C. for sharing the original common object of unlawful assembly for preparation and assemblage for the purpose of committing dacoity.

For the reasons stated above the appeal is partly allowed. The judgement and order appealed against is modified to the extern that the conviction and sentence passed against the appellants for the offences under Sections 302/149 and 307/149 I.P.C. is set aside. The conviction and sentence of both the appellants for the offence u/s 399/402 I.P.C. and of appellant Kaleshwar u/s 25 of the Arms Act is affirmed.

The appellants Kaleshwar and Jawahar were released on bail during the pendency of appeal vide order dated 12.10.1982. The Chief Judicial Magistrate Fatehpur shall cause them to be arrested and lodged in jail to serve out the sentence awarded by the trial court and affirmed by us.

Certify the judgement to the lower court within a week. The record of the case be also transmitted to the court below immediately. The compliance shall be reported by the Chief Judicial Magistrate Fatehpur within four weeks from date of receiving the copy of this order.