Kesho and Others vs The State of Uttar Pradesh

C.A. Vaidialingam, J.—In this appeal, by special leave, Mr. O.P. Varma, learned Counsel for the Appellants, challenges the conviction and sentence, passed against the Appellants, under various heads. In granting special leave to the Appellants, on 12-11-1964, this Court has limited the same to the nature of the offence committed by the Appellants. Hence the scope of the appeal is very limited.

The live Appellants were charged Under Sections 147, 302 and 323 read with 149, IPC, in that, in the prosecution of their common object, they committed the offences of rioting, the murder of one Narayani and caused simple hurts to PWs. 1, 5 and one Amar Singh, on 19-11-1961. One of the Appellants, Kishan Lal, in particular, was charged exclusively, u/s 302 IPC, as well, inasmuch as he was alleged to have given a lathi blow on the head of Narayani, resulting in her death.

The prosecution story, in brief, was as follows. A theft took place in the shop of one Bhik Chand Vaish, on 14-11-1961. That occurrence was stated to have been noticed by PW 8, who was having a shop nearby. According to him, the persons who committed the theft were two of the Appellants, viz., Kesho and Kishan Lal. Bhik Chand had filed a report to the police, about the theft, on 15-11-1961, at about 5 p.m., mentioning the name of these two accused, Kesho and Kishan Lal, among others. One of the eyewitnesses, referred to in the complaint, was PW 8. Coming to know about this, Kesho and Kishan Lal, are stated to have told PW 8 not to give any evidence against them, but PW 8 did not accede to their request.

On 19-11-1961, PW 8, when he was returning home, after making some purchases, is stated to have been attacked by Kesho and Kishan Lal. This was witnessed by PW 1. PW 1 interceded and this was not relished by these two accused. In consequence, on the same day, at about 8 p.m. when PW 1 was in the company of PWs. 5, 6 and Araar Singh, the Appellants, armed with lathis, came to that place and abusing PW 1 for having interceded on behalf of PW 8, beat him. When PW 1 raised an alarm and was running, his mother, Narayani, on hearing his alarm, came out of her house, when she was encircled by the five Appellants. Kesho gave her a blow with the lathi, on her right forearm and a second blow was delievered on her head by Kishan Lal, on which she fell down. PWs 1, 5 and 8 intervened and they were also further given beating. Narayani, who had fallen down, never regained consciousness and she died at about 2 a.m. the same night.

The injuries, on PWs 1, 5 and 8, were attended to and have been recorded by the medical officer. The postmortem, on Narayani, was conducted by PW 2, the medical officer. He had noted five injuries on her body, four of which were on the head and the fifth was a contusion on the right fore-arm middle. According to PW 2, the parietal-frontal sutures on both sides had become loose and there was also a fracture, on the right parietal bone, near the parietal junction. Another fracture in the right frontal parietal bone, going towards the back of the parietal-parietal suture, was also noted In particular, Doctor has also stated that the four injuries on the head, noted in the postmortem certificate, must have been caused by different blows, which means that four separate blows must have been given on the head and one on the hand, separately.

The Doctor has also stated that the injuries, found on the head, were sufficient, in the ordinary course of nature, to cause death. All the Appellants, except Kanhaya and Kishan Lal, have, denied their presence and have also stated that they have been implicated falsely. Kanhaya and Kishan Lal, on the other hand, while admitting their presence at the time of the incident, stated that certain cows, belonging to the prosecution witnesses, had strayed into their field and those cows were being take a by them for being impounded into the village cattle pound. When they were so going, PW 1, PW 5 and Amer Singh, attacked them and these two Appellants resisted their attack in order to frighten their aggressors and wielded their lathis, which might have caused injuries to those persons. At that time, Narayani suddenly came out of her house and during the confusion, was struck with a blow on the right and the same blow also fall on her head. But, according to these Appellants, it is not known who was the author of that blow. In fact, they also stated that one of them, viz., Kanhaya, received some injuries. The learned Sessions Judge has, by and large, accepted the evidence adduced by the prosecution, regarding the occurrence. The plea of the accused has been rejected. It is the view of the learned Judge that Kesho and Kishan Lal alone could not have inflicted the five injuries found on Narayani and the eight injuries found on PW1, PW 5 and Amar Singh. That is according to the learned Judge, all the Appellants must have participated in inflicting injuries on Narayani and the other witnesses, referred to above.

In considering the nature of the offences, with which the Appellants should be found guilty of, the trial Court expresses the view that the murder of Narayani was caused in furtherance of a common intention of the members of the unlawful assembly, consisting of the Appellants and they should be held liable for an offence u/s 302 read with Section 149. The trial Court also says that the initial common object was to administer chastisement to PW1. But, inasmuch as Section 149 will come into the picture, if it is found that the common object has been formed even suddenly, in this case, there is evidence to show that when Narayani came out requesting that her son PW1 should not be injured, some of the Appellants had cried out that Narayani should be disposed of. It was after that incitement, so to say, that Kesho beat her on the hand and Kishan Lal, on her head and two or three more blows were given on the head, as a result of which the skull was fractured. Though the trial Court is doubtful as to whether the three further blows were administered on the head of Narayani by Kesho, Kanhaya or the other three, it is of the view that all these blows were given with the common object of all the five accused. On this reasoning the trial Court holds all the Appellants guilty of the murder of Narayani and convicts them u/s 302 read with Section 149 IPC and for this offence, each of them was sentenced to undergo imprisonment for life. All the Appellants were, again, found guilty u/s 147 IPC for which 1 year's rigorous imprisonment was awarded and for the offence u/s 323 read with Section 149 IPC, of which also they were found guilty, each of them was sentenced to undergo 1 year's rigorous imprisonment. In view of the sentence of imprisonment for life, passed for the conviction, u/s 302 read with Section 149 IPC the other sentences were directed to run concurrently.

The Appellants challenged this conviction before the High Court of Allahabad. The learned Judges of the High Court have substantially accepted the case of the prosecution, as found by the trial court. But they are of the view that even, on the prosecution case, it is evident that it was not the common object of the Appellants originally to beat or murder Narayani. On the other hand, the common object of the Appellants was only to give a beating to PW1, for the assistance rendered by him to PW 8 (Inderman). Narayani's appearance on the scene was itself unexpected and her coming was on hearing the shouts of her son PW1. The further view of the learned Judge is that the attack on Narayani, by Kesho and Kishan Lal, must have been in furtherance of a common intention to cause such injuries on her as are sufficient, in the ordinary course of nature, to cause death. The case of the prosecution regarding the injuries caused to PW 1, PW 5 and Amar Singh, is accepted by the High Court. Though it was urged that Kesho could not be said to have shared the common intention, with Kishan Lal, to cause the death of Narayani, the learned Judges do not accept this plea. They observe that it was Kesho who initiated the attack on Narayani; and they hold that it is impossible to believe that Kesho and Kishan Lal were not responsible for inflicting blows on the head of Narayani. On this reasoning, the High Court comes to the conclusion that both these persons, viz., Kesho and Kishan Lal, are liable to be convicted, u/s 302 read with Section 34 IPC. So far as the conviction of Raghbir, Chitta and Kanhaya, for the offence u/s 302 read with Section 149 IPC, is concerned, the High Court does not agree with the finding of the trial Court. On the other hand, the High Court feels considerable doubt as to whether these three persons, or any of them, inflicted any injury on Narayani. Therefore, the benefit of doubt was given, on this aspect, to those three accused and their conviction, for the other offences, by the trial Court, was confirmed, while the conviction u/s 302 read with Section 149, was set aside.

In this Court, the conviction of the Appellants for the offences mentioned above, are no doubt challenged. The entire evidence have been read to us by Mr. Varma, learned Counsel for the Appellants and Mr. Rana learned Counsel for, the State of Uttar Pradesh. Though, as pointed out earlier, the conviction of all the Appellants is challenged, in this Court, we are not satisfied that the learned Counsel for the Appellants has been able to point to any error or defect in the appreciation of the evidence, either by the trial Court, or by the High Court. The prosecution case, as spoken to by the witnesses, has been accepted by, the trial Court and the High Court. The conclusions arrived at, are on pure questions of fact. Inasmuch as concurrent findings have been recorded, as against all the Appellants, for convicting them for offences u/s 147 and 323 read with Section 149 IPC, we have no hesitation to confirm the conviction, as well as the sentence, passed against them for these offences.

But One aspect has been pressed before us by learned Counsel for the Appellants, viz., the conviction of Kesho and Kishan Lal (Appellants 1 and 2), for offences u/s 302 read with Section 34 was not correct in law. Counsel pointed out that though they were sentenced by the trial Court for an offence u/s 302 read with Section 149 IPC, the High Court has set aside that conviction and in turn, hrs convicted them, u/s 302 read with Section 34, IPC. Counsel pointed out that apart from the fact that there was no charge against these Appellants, u/s 302, read with Section 34, IPC, there was absolutely no material evidence on record from which it was possible to conclude that both of them had, while attacking Narayani, the common intention of causing her death. In this connection, counsel pointed out that the witnesses, by and large, spoke to the fact that Kesho hit Narayani on her hand and Kishan Lal, gave her a blow with a lathi, on her head. The evidence of the Doctor, PW 2 and the post-mortem certificate, show that there were as many as four injuries on the head of Narayani and one injury on her hand. The Doctor has further deposed that the four injuries found on the head, must have been the result of four different blows and his evidence is also to the effect that Narayani died due to head injuries. Though the prosecution witnesses speak to the fact that all the five Appellants beat Narayani on the head, that evidence has not been accepted, by the High Court at any rate, because three of the Appellant have been acquitted of the offence u/s 302. Therefore there is no evidence to show that both Kesho and Kishan Lal caused injuries on Narayani, with the common intention of causing her death, nor is there evidence to show that the single blow given by Kesho on her hand and the single blow given by Kishan Lal, on her head, was sufficient, in the ordinary course of nature, to cause death. That is, we understood counsel for the Appellant to urge that neither Kesho nor Kishan Lal can be convicted for an offence, u/s 302. The argument on the face of it may look attractive, but we are satisfied that there is no merit in it. It is no doubt true that the learned Sessions Judge has proceeded on the basis that all the Appellants, when they attacked Narayani, with the common object of causing her death and that is why they were all convicted, u/s 302, read with Section 149, IPC. But, on the other hand the High Court, has, on a consideration of the evidence, differentiated the case in respect of the attack on Narayani, of Kesho and Kishan Lal, on Lie one hand, from that of Raghbir, Chitta and Kanhaya, on the other. Though the witnesses generally speak to the fact that all the Appellants beat Narayani on the head, the High Court was prepared to accept their evidence in a limited manner, having due regard to the conduct of Kesho and Kishan Lal. II. PW 1, in cross-examination by the accused, has stated that Narayani, as soon as she came into the scene, pleaded on behalf of her son; the accused stated that she must be killed and it was Kesho, who really led the attack on Narayani then, followed by Kishan Lal. It is the view of the High Court-and we are satisfied that it is correct-that,, in the setting mentioned above, it is impossible to believe that there was no common intention between Kesho and Kishan Lal, who must be held responsible for inflicting the fatal blows on the head of the deceased. The medical evidence, we have pointed out earlier, shows that the injuries on the head were fatal and under these circumstances, we see no reason to interfere with the conviction of Kesho and Kishan Lal, u/s 302, read with Section 34, IPC and the sentence of imprisonment for life, passed against them, for that offence. The result is that the appeal fails and is dismissed.