State of H.P. vs Rakesh Malik and Others

V.P. Bhatnagar, J.—This appeal, preferred by the State of Himachal Pradesh, is directed against the judgment dated October 4, 1978 of the learned Sessions Judge, Shimla. It has arisen out of an incident which took place during the night intervening 10th and 11th May, 1978 in a house known as "Alfin Lodge" located near the All-India Radio building below the main road leading from Indian Institute of Advanced Studies towards Raj Niwas. About 20 to 25 students are stated to have formed an un-lawful assembly, armed themselves with hockey sticks, iron rods, iron chains, wickets etc., forced their entry into Alfin Lodge and given indiscriminate and merciless beatings to the inmates of that house who had collected there for celebrating a marriage. As a result, one person succumbed to the injuries, another received grievous hurt and as many as 5 persons were inflicted simple injuries.

After completing the investigation, the police put up a challan against 14 accused all of whom were committed by the learned Chief Judicial Magistrate, Shimla under Sections 147/148 and Sections 302/307/323/325/353/427/452/201 read with Section 149 of the Indian Penal Code. Upon consideration of the record and the documents and after hearing arguments of both sides, the learned Sessions Judge was of the opinion that there were no sufficient grounds for proceeding against one of them, Kahan Singh Dogra by name, and, therefore, discharged him under the provisions of Section 227 of the Code of Criminal Procedure, vide his order dated July 5, 1978. The remaining 13 accused, namely, Rakesh Malik, Rakesh Singha, Kedar Singh, Hukam Chand, Chuni Lal, Chain Ram, Prem Nath, Mehar Singh, Hardev Singh, Arun Mahajan, Partap Singh, Jagrup Singh Chaudhary and Rajinder Chauhan were charged for having committed offences under Sections 302, 325, 452 and 457 read with Section 149 of the Indian Penal Code. Besides, the first 7 accused, out of the above named, were charged u/s 148 I.P.C. whereas the remaining 6 accused were charged u/s 147 I.P.C.

After the prosecution had closed its evidence and the statements of the accused u/s 313 Code of Criminal Procedure had been recorded, the learned Sessions Judge being of the view that there was no evidence to show if 7 of the accused persons, namely, Mehar Singh, Hardev Singh, Arun Mahajan, Partap Singh, Jagrup Singh Chaudhary, Rajinder Chauhan and Prem Nath had committed any of the offences for which they had been charged, acquitted them under the provisions of Section 232 Code of Criminal Procedure vide his order dated September 22, 1978. The remaining 6 accused, namely, Rakesh Malik, Rakesh Singha, Kedar Singh, Hukam Chand, Chuni Lal and Chain Ram were called upon to enter on their defence. They submitted a common list of 4 witnesses who were summoned but they give a statement, on the day fixed for the defence evidence, that they had no evi-dence to adduce.

The learned Sessions Judge, vide impugned judgment dated October 4, 1978 convicted accused Rakesh Malik and Raikesh Singha for offences punishable u/s 148 I.P.C. and also under Sections 452, 427 and - 325 read with Section 149 I.P.C. However, instead of sentencing them to any punishment, he directed that both these accused be released on their entering into a bond in the sum of Rs. 10,000/- with one surety in the like amount in each case undertaking to appear and receive sentence when called upon during a period of 2 years from the date of judgment and in the meantime to keep peace and be of good behaviour. As regards the remaining 4 accused, he found no evidence to establish the guilt of Hukam Chand, Chuni Lal and Chain Ram and further held accused Kedar Singh entitled to benefit of doubt and, therefore, acquitted the above-named 4 persons.

Aggrieved from the above judgment, the State of Himachal Pradesh has come up in appeal.

The prosecution ease may now be stated. The marriage of PW 7 Harnam Dass''s daughter was being celebrated at his house (Alfin Lodge) on May 10, 1978. This house is connected with the main road by a path, the exact location of the house vis-a-vis the road can be easily gathered from the site plan mark C which was drawn up as a result of the spot inspection by the learned Sessions Judge. Jeep bearing registration No. HPN-102 and belonging" to PW 7 Harnam Dass had been parked on the road above Alfin Lodge. Its driver PW 3 Shakti Ram returned to that place after taking his meals at about 10.30 P.M. when he found 2 boys pushing the jeep and a third one sitting on the steering. When he questioned the boys, they started abusing him and threatened to assault him. Shakti Ram then went down towards Alfin Lodge and met PW 4 Rakesh Sood on the way. Rakesh Sood is PW 7 Harnam Dass''s son. On being informed about the incident; both of them returned to the jeep. Rakesh Sood asked the boys as to why they were interfering with the jeep on which he had to face a volley of filthy abuses. The boys further declared that they had to go to the University hostel and that they shall go in that very jeep and further that nobody could stop them. Rakesh Sood then shouted for help on which the boys left the jeep and went away. While going, the boy who was sitting on the steering shouted that his name was "Singha" and that he would soon teach them a lesson. The marriage ceremony was then in progress at Alfin Lodge. PW 4, Rakesh Sood came there and informed his uncle PW 2 Dharam Pal Sood, who was then working as Additional District and Sessions Judge, Kangra at Dharamshala in Himachal Pradesh, about the incident. PW 2 Dharam Pal Sood brought the matter to the notice of PW 7 Harnam Dass and then rang up Police Siation, Boileauganj presumably for police protection. PW 35 Pritam Singh, Sho; Police Station, Boileauganj after sometime reached Alfin Lodge in a police van. The police party stayed there till about 1.30 A.M. when the marriage party and the bride departed. The police party then wanted to go back but left one Head Constable and one Constable at Alfin Lodge on the suggestion of PW2 Dharam Pal Sood. About 8 or 9 persons from the Bride''s side had yet to take their meals which were ordered to be served. It was then that PW 2 Dharam Pal Sood saw 20 or 25 boys rushing towards the main gate of Alfin Lodge. This happened about 20 minutes after the departure of the police. The distance between the main gate of the Alfin Lodge and the place where PW 2 Dharam Pal Sood and others were sitting and waiting for the meals was about 50 feet. PW 2 Dharam Pal Sood; on seeing the boys, proceeded towards them with the intention to persuade and stop them from entering the shamiana or the building. Coming face to face with them he disclosed his identity, hoping in vain that they might show some respect for a senior Judicial Officer. The boys were armed with various types of weapons like hockey sticks; iron rods; iron chains; dandies; empty bottles etc. PW''9-Naresh Kumar, Advocate, who is the bridge''s brother, followed PW 2 Dharam Pal Sood as also the other men-folk present there. The occurrence from there onwards may be more appropriately reproduced per verbatim as deposed to by PW 9 Naresh Kumar.

...One of those boys whom I can identify, (the witness pointed out at Kedar Singh accused) first entered in our main house but then came out and joined his other boys. I followed Dharam pal towards those boys and was five or seven steps behind him. I saw Rakesh Malik and Rakesh Singha accused present there. I knew both of them earlier. I placed my hand on the back of Rakesh Malik accused and inquired from him naming him as ''Malik'' as to what was the matter. Rakesh Malik accused then caught my necktie, pulled me towards him and questioned as to who had removed his boys from the jeep. So saying Rakesh Malik gave a hoc-key blow aiming towards my head which I received on my forearm resulting in the fracture of my ulna bone. Rakesh Maiik then suddenly took back step and shouted at the other boys "Aaj In Sab Ko Maja Chakhao Koi Jinda Na Rahe". He then facing another boy said, "Hukmi Kya Dekhta Hai." That fellow was armed with a rod and he inflicted a blow with that rod on the head of Suresh. Thereafter Rakesh Malik inflicted a hockey blow on the head of Suresh. Kedar Singh and Rakesh Singha then gave blows on the back of Suresh as a result of which he fell down. I then found my brother Rakesh lying injured on the ground and then I saw Ramesh also lying in the verandah with his head bleeding. I then heard cries of women-folk from inside the house. The boys then took to their heals (sic) and while running back they hurled stones on the building which resulted in the breaking of some window panes of kitchen and verandah. They also broke the flood light on the'' approach road while retreating. There was plenty of light all over inside and outside the building

According to PW 2 Dharam Pal Sood, he received some iron chain blows on his right forearm and left forehead near the eye. He was having a wrist watch on his left forearm which fell down in that scuffle. According to PW 4 Rakesh Sood, someone attacked him on his head on which he became un-conscious and when he regained consciousness, he found him-self lying inside the house. PW 5 Ramesh Sood has deposed that some boys started beating him as a result of which he received injuries on his head and back. He started bleeding from his head and became unconscious. PW 8 Umesh was changing his clothes in the bath room when he heard the noise and came out. He found Ramesh, Rakesh and Suresh lying injured on the floor of the deori. Ramesh and Rakesh were both lying unconscious but he could not say anything about Suresh. He then saw the boys outside beating the inmates of the house and went to their rescue. However, he was also beaten by the boys and received injuries. PW 20 Vidya Sagar, Advocate, a close relative of PW 7 Harnam Dass, also received injuries on his head and he got aside. Meanwhile, PW 2 Dharam Pal Sood again telephoned Police Station, Boileauganj. The women-folk and the children by then had started crying. The boys then ran away. This part of the incident took about 5 or 6 minutes. The police reached there after about 20 minutes. The statement Ex. PW 2/A of PW 2 Dharam Pal Sood was recorded. This statement constitutes the FIR in this case.

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The above medical evidence shows the nature of injuries inflicted by the members of the un-lawful assembly on their victims. While Suresh died as a result thereof and PW Naresh Kumar suffered grievous injury inasmuch as the ulna bone of his left forearm was fractured, the other inmates of Alfin Lodge, namely, PW 2 Dharam Pal Sood, PW 4 Rakesh Sood, PW 5 Ramesh Sood and PW 20 Vidya Sagar suffered only simple injuries.

During police investigations, accused Hukam Chand, Chuni Lal and Chain Ram are stated to have made disclosure statements under the provisions of Section 27 of the Indian Evidence Act which led to the recovery of blood stained iron rod, leg of a chair and iron cycle chain respectively.

In their statements recorded u/s 313 Code of Criminal Procedure accused Rakesh Malik and Kedar Singh resorted to denial simplicitor from the beginning till the end so much so that they pleaded ignorance as to why they had been involved in this case. Accused Rakesh Singha also denied all the incriminating circumstances put to him but towards the end of his statement explained that he had been falsely implicated merely on suspicion and that there were many students in the University with the surname "Singha". The remaining 3 accused, namely, Hukam Chand, Chuni Lal and Chain Ram also resorted to denial except that they, in order to explain their signatures on the disclosure statements, stated that the same had been obtained by holding out threats, coercion and torture by the police.

There can be no manner of doubt whatsoever that the incident did take place as unfolded by the prosecution. In fact, the prosecution has fully established, by way of adducing overwhelming evidence in this case that 3 boys, including accused Rakesh Singha and Kedar Singh whose identity stands proved, tried to unauthorisedly drive away jeep No. HPN-102, belonging to PW 7 Harnam Dass at about 10.30 P.M. on May 10, 1978. The marriage ceremony of Harnam Dass''s daughter was being celebrated in his house situate nearby at that time. There can be two views with respect to the manner and the extent to which the members of the marriage party went to save the jeep from the clutches of these 3 boys. The learned Sessions Judge, relying on the testimony of PW Chet Ram and PW Tulsi Ram, has held that the boys were "manhandeled and humiliated". If so, they could not but blame themselves for it. The member of the marriage party and particularly the owner of the jeep had every right to stop these boys from taking away the jeep and even to take recourse to permissible force in exercise of the rights of private defence of property. Be that as it may, the jeep incident need not hold us any longer since it is not of much importance except on the point that it did infuriate the boys involved in it as also those belonging to their group and residing in nearby (about 5 minutes walk) Himkreet Hostel of Himachal Pradesh University, to such an extent that they took it as a challenge and decided to teach the members of the marriage party a lesson they would never forget. And, this is what they did.

A passing reference may be made to the testimony of PW 13 Tulsi Ram, Assistant Professor, Himachal Pradesh University who was then working as Warden in the Himkreet Hostel on that night. At about 11.30 or 12 in the night, Daulat Ram Chowkidar, informed him that some boys from the Hostel had proceeded towards Chaura Maidan where a marriage was being celebrated and that there was apprehension of some quarrel being picked up. According to this witness, he passed on the above information telephonically to the security staff of the University "for necessary action". It was informed by the Chowkidar 10 or 15 minutes later that the security staff has reached the Hostel but that the Hostel boys had also come back without any untoward incident. Now this witness was not cross-examined at all which means that it is not disputed that something was brewing up amongst the residents of Himkreet Hostel and further that something had happened which had led to apprehension regarding breach of peace.

After completion of the marriage ceremony at Alfin Lodge, the bridegroom''s party left at about 1.30 A.M. during the night soon after which the main police party led by PW 35 Pritam Singh, SHO, Police Station, Boileauganj also went back to the Police Station in their van leaving behind PW 38 Parma Nand, Head Constable and PW 41 Chattar Singh, Constable. The students, 20--25 in number, who must have on the watch and seen the police party leaving, armed with hockey sticks, iron rods, iron chains, chair leg, wicket etc. marched inside Alfin Lodge within about 20 minutes of the departure of the police party. The manner in which these students be laboured and inflicted injuries to the inmates of the Alfin Lodge has been fully brought out by the un-impeachable eye-witness account given by PW 2 Dharam Pal Sood, PW 4 Rakesh Sood, PW 5 Ramesh Sood, PW 7 Harnam Dass, PW 8 Umesh Sood, PW 9 Naresh Kumar and PW 20 Vidya Sagar. All of these persons are natural witnesses and had no reason whatsoever to falsely implicate any of the accused persons. Moreover, all except PW 7 Harnam Dass received injuries during the short duration of 5--6 minutes after which the assailants fled away. They stand fully corroborated by the contents of FIR Ex. PW 2/A which was lodged immediately after the occurrence. Their testimony also finds complete support from the medical evidence which has already been narrated above, in detail. And then, there are no discrepancies in their statements which touch the sub-stratum of the prosecution case.

This brings us to the question of identity of those persons who formed the unlawful assembly at the relevant lime. The learned Sessions Judge has given formidable reasons in support of his findings that there can be hardly any doubt about the involvement of Rakesh Malik and Rakesh Singha. We do not think there is any good reason to take a different view on this point. PW 9 Naresh Kumar, Advocate, had met both of these accused earlier. It was he who had kept one of his hand on Rakesh Malik''s shoulder at the place of the main occurrence and had addressed him: "Malik, kia bat hai?" Accused Rakesh Malik, however, directed a hockey stick on Naresh Kumar''s head which the latter warded off by his left forearm resulting in fracture of ulna-bone, which fact is borne out by the medical evidence. That PW 9 Naresh Kumar had so addressed accused Rakesh Malik before the members of the un-lawful assembly started inflicting injuries to whosoever came in their way is borne out from the testimony of other eye-witnesses as well. PW 4 Rakesh Sood, PW 5 Ramesh Sood and PW 20 Vidya Sagar, Advocate, have identified Rakesh Malik in the Court. Even if much weight is not attached to such identification, there is no reason at all to misbehave the testimony of PW 9 Naresh Kumar who has come out totally un-scathed in his cross-examination as far as the identification of Rakesh Malik and Rakesh Singha is concerned. PW 11 Chet Singh has deposed that he along with other University students, after hearing that some of the students had been beaten and were lying by the side of the road, had proceeded to the place where jeep had been parked. He saw accused Kedar Singh and Rakesh Singha lying on the roadside at a distance of about 10 paces from the dhaba being run by PW 10 Raj Kumar. PW Raj Kumar had then told them that Rakesh Singha and Kedar Singh had a quarrel with some members of the marriage party. This part of his testimony has not been challenged in the cross-Examination which establishes the involvement of these 2 persons in the jeep incident. PW 10 Raj Kumar was declared hostile and his demeanour in the witness box was noted by the learned Sessions Judge with observations that he was trying to act in an over-clever manner and was forestalling the questions put to him and was volunteering replies even before the questions were complete. Even this witness identified accused Kedar Singh being involved in the jeep incident though he denied having made a statement before the police that Kedar Singh had told him about Rakesh Singha having misbehaved with the driver under the influence of liquor. Thus, it stands proved beyond reasonable doubt, that accused Rakesh Malik and Kedar Singh were two persons out of the three who had tried to drive away the jeep. As regards the identification of the culprits at the time of main occurrence which took place at about 2 A.M., it is writ large on the statements of eye-witnesses in this case that none of them had a desire to implicate anyone falsely. Cumulatively, therefore, we are in entire agreement with the learned Sessions Judge about the identity of accused Rakesh Malik and Rakesh Singha having been fully established.

As regards the other accused, namely, Kedar Singh, Hukam Chand, Chuni Lal and Chain Ram also, we are in-clined to accept the findings of the learned Sessions Judge. None of them was identified at the place of main occurrence at about 2 A.M. as no prosecution witness was acquainted with anyone of them before the incident. The prosecution did not hold any identification parade and much weight cannot be attached to some of these persons having been identified, for the first time, in the Court. The law pertaining to the evidentiary value of such identifications made for the first time in the Court is well-settled. The main evidence against accused Hukam Chand, Chuni Lal and Cham Ram comprises of their disclosure statements under the provisions of Section 27 of the Evidence Act in pursuance of which blood-stained weapons of offence were recovered. Here also, the witnesses of these statements and the recovery memos either turned hostile or otherwise did not support the prosecution case. The only other incriminating circumstance against accused Hukam Chand is that Rakesh Malik addressed one of the members of the un-lawful assembly as "Hukmi" and commanded him to attack. This piece of evi-dence also does not advance the prosecution case very much in fixing the identity of accused Hukam Chand.

According to the prosecution case, iron rod Ex. P-4 was recovered in pursuance of the disclosure statement made by Hukam Chand in the presence of PW 12 Prof. Dr. K. C. Malhotra who was then the Dean of the Students Welfare of the Himachal Pradesh University, Shimla. Similarly, PW 15 K.S. Shirkot, Asstt. Professor, Himachal Pradesh University, Shimla was a witness to another recovery. Shockingly enough, both these witnesses did not support the prosecution case even to that limited extent on the point of recoveries although none denied their signatures on the recovery memos. That they, being educated persons of such high status, would disown the documents to which they have been signatories, to say the least, is full of mystery. Anyway, the net result is that the accused, named above, cannot be held to have been the members of that un-lawful assembly beyond reasonable doubt.

PW 2 Dharam Pal Sood, in addition, has identified accused Kedar Singh while in the witness box in categorical terms. Mr M.S. Chandel, learned Asstt. Advocate General has forcefully contended that the findings of the learned trial court with respect to the above named 4 accused, particularly that of Kedar Singh, require up-setting. We are afraid we cannot agree. Apart from the scanty evidence in this behalf, it has to be borne in mind that these accused have earned acquittal and what we are dealing with is an appeal against acquittal. The principles regarding re-appraisal of evidence in such appeals have been summarised by the Supreme Court in Ajit Singh Thakur Singh and Another Vs. State of Gujarat, wherein R.S. Pathak, J. (as he then was) speaking for the Court observed:

We may observe that the High Court had before it an appeal against an order of acquittal. The approach to be adopted by the High Court when exercising its appellate powers in such a case has been defined in a long line of cases. As long ago as Sheo Swarup and Others vs. King Emperor the Privy Council declared that the High Court must give proper weight and consideration to "such matters as (1) the view of the trial judge as to the credibility of the witnesses; (2) the presump-tion of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The approach has been endorsed by this Court repeatedly, and in a very recent decision, Ganesh Bhavan Patel v. State of Maharashtra (1979) 2 SCR 94 : Ganesh Bhavan Patel and Another Vs. State of Maharashtra, to which one of us (Sarkaria, J.) was party, it was also observed:

Where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dis-lodged or demolished, the High Court should not disturb the acquittal.

To the same effect is a recent pronouncement of the Supreme Court in Tola Singh and Anr. v. State of Punjab 1987 2 Cri 54. In that case, Balakrishna Eradi, J. has observed:

This Court has repeatedly pointed out that the mere fact that the Appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous.

Consequently, we do not think it is a fit case which calls for any interference relating to the above-named four accused. Their order of acquittal is, therefore, confirmed and the appeal preferred by the State of Himachal Pradesh, to that extent, dismissed.

The main thrust of the argument addressed by the learned Asstt. Advocate General have been that accused Rakesh Malik and Rakesh Singha have been wrongly acquitted of the charge u/s 302 read with Section 149 I.P.C. That the students did have the common object to commit murder, so the argument runs, can be easily gathered from the facts of this case. They had the knowledge that the weapons of offence would be used in a lethal way. But for it, the assailants would not have directed so many blows on vital parts of the injured. The ferocity of the blow given by accused Rakesh Malik to PW 9 Naresh Kumar can be well imagined since it resulted in fracture of ulna-bone when Naresh Kumar tried to save his head. This blow could have been fatal, had it struck the head and Rakesh Malik could not be unaware of it. Then, Suresh died on account of the blows inflicted on his head and PW 25 Dr. C. Madhav Rao has stated that any of the injuries at Sr. No. 1 to 3 found on the dead body of Suresh as a result of post-mortem examination was sufficient in the ordinary course of nature to cause death. Rakesh Singha has been identified to have inflicted blows on the back of Suresh deceased. Head injuries were also inflicted to PW 4 Rakesh Sood, PW 5 Ramesh Sood and PW 20 Vidya Sagar. Two persons, as a result of the injuries inflicted on them, became unconscious then and there. On the above facts, it has been emphatically argued that the common object of 20-25 students was not only to commit trespass, mischief and grievous hurt, as held proved by the learned trial court, but they had also the intention to cause death.

On the other hand, Mr. T.R. Chandel, learned Counsel for the accused has maintained that the common object of the students was nothing more than to chastise the inmates of Alfin Lodge and that sticks, iron rods, chains, wickets etc. could not be regarded as lethal weapons. He has relied upon the facts and the law laid down in Chikkarange Gowda and Others Vs. State of Mysore, which, according to his submissions, is a case on all fours. In that case, the High Court had held that the common object of the un-lawful assembly was merely to administer chastisement and the members thereof did not know that Gowda was likely to be killed in prosecution of that common object. The above findings of fact were maintained even by the Supreme Court with the result that it was held that conviction u/s 302 read with Section 149 of the I.P.C. was not justified in law. Every case is an authority on its own fact and the facts of Chikkarange Gowda''s case, as stated above, are quite distinguishable and, therefore, of no help to the accused.

After considering the pros and cons of this case, we are of the firm opinion that the students did have the common object to give beating with full knowledge that it would be likely to cause death. It was in prosecution of that object that Suresh was killed. Therefore, an offence u/s 304, Part II read with Section 149 I.P.C. is established beyond doubt against accused Rakesh Malik and Rakesh Singha. The students, duly armed, had decided to attack a gathering of persons, mostly belonging to one family. They must have anticipated some resistance though met with none. Blows were mainly directed on the heads with full force by quite a few of them. One person died, another received grievous injury and five others simple injuries. Two became unconscious at the spot. The students came together and, after inflecting injuries, fled together. The above acts, accumulatively, cannot but be interpreted so as to attribute to the inlawful assembly, common object to give beating with full knowledge that it would be likely to cause death. In this connection, the facts and law laid down in Mehtab Singh and Ors. v. The State of Madhya Pradesh AIR 1075 S.C. 274 and by the Division Bench of Andhra Pradesh High Court in Attepalli Gopaiah Vs. The State of Andhra Pradesh, may be referred to.

Here, in all fairness, we may notice some of the other arguments addressed to us by Mr. T.R. Chandel, learned Counsel for the accused. His first contention has been that there is a serious infirmity in the charge-sheet framed against accused in as much as the common object state there is to commit mischief, criminal tress-pass and causing hurt but not the ingredients of Section 302 I.P.C. or, for that matter, those of Section 304 I.P.C. He has relied upon-Chikkarange Gowda''s case (supra) for the purposes of this argument as well. It has already been noticed by us that the facts of that case are totally distinguishable. The defects in the charge-sheet framed in that case were entirely different. In any case the accused there in had been acquitted of the charge u/s 302 read with Section 149 I.P.C. primarily on the ground that the common object of the unlawful assembly, as a matter of fact had been held by all the courts including the Supreme Court, to merely administer chastisement. In the case in hand, both accused Rakesh Malik and Rakesh Singha have been charged for the) offense u/s 302 read with Section 149 I.P.C. although it has not been specifically stated in the charge-sheet that the common object of the unlawful assembly, inter-alia, included the knowledge that the acts done were likely to cause death or that the common object was to commit murder. Moreover, the error relied upon is such as would not lead to the conclusion that a failure of justice has in fact been occasioned there by. The case would, therefore, be covered by the provisions of Section 464(1) of the Code of Criminal Procedure. It may also be mentioned here that no submission has been made to us as would indicate as to how these accused have been prejudiced especially in view of the fact that they have been duly charged for having committed an offence under. Section 302 read with Section 149 I.P.C.

The next plea advanced by Mr. Chande is that specific injuries found in the medical evidence have not been put to the accused and, therefore, cannot be read against them. This is factually incorrect. Reference in this connection may be had to questions Nos. 9, 10, 12, 13, 14 and 15 put to both the accused. These questions, in our view, constitute ample compliance with the pro-visions of Section 313 Code of Criminal Procedure. In any case, it cannot be said under any stretch of imagination that these accused have been prejudiced on this score.

It has then been submitted that the real genesis of the main incident has been with held and the prosecution witnesses to that extent have resorted to lies. The argument is that the three students involved in the jeep incident had been, in fact, thoroughly man-handled and beaten. If so, there was no occasion for accused Rakesh Malik to state immediately before the com-mencement of alleged indiscriminate beating as to "who had removed his boys from the jeep?" We have already dealt with this aspect of the case and have held that what exactly happened as a part of the jeep incident is hardly of much importance. We have no reason to believe that the prosecution witnesses have resorted to falsehood on this point as is being made out but even if it were so, the crux of the prosecution case would remain absolutely unaffected and in no way it would render the substantial portion of the eye-witnesses account un-trustworthy.

As a result of the above discussion, we uphold the order of conviction of the learned Sessions Judge of accused Rakesh Malik and Rakesh Singha for having committed an offence punishable u/s 148 of the I.P.C as also under Sections 452, 427 and 325 read with Section 149 I.P.C. However, we are of the firm opinion that the prosecution has succeeded in bringing home guilt to both these accused for having committed an offence u/s 304, Part II read with Section 149 I.P.C. and convict them thereunder as well.

As regards the quantum of punishment, we are greatly tempted to reproduce per verbatim some of the observations made by the learned Sessions Judge himself. In the very first paragraph of his judgment, he has to say as follows:

This trial would recall the sad and tragic incident that occurred in the Capital Town of Shimla on the night intervening 10th and 11th May this year evoking a Town wide public protest in the form of processions and complete Hartal and wherein allegedly a group of irresponsible University students armed with various types of weapons and aided by inaction on the part of the local police, at a dead hour of night like 2 A.M. forced their entry into a residential house known as Alfin Lodge which only a few minutes earlier was the venue of a Hindu marriage and gave indiscriminate beatings to the in-mates of that house causing both types of injuries, simple as well as grievous, to a number of them and which in one case proved fatal and thus converted the merry making occasion of marriage into mourning of a funeral.

While deliberating upon the quantum of punishment to be awarded in this case, the learned Sessions Judge has this to say:

...It was certainly extremely savagery and a lack of proper sense of a responsible citizen on the part of the members of the unlawful assembly to trespass into Alfin Lodge armed with weapons at that hour of the night and to assault the inmates of that house. The conduct of the members of the assembly not only amounted to denial of the rule of law but was also an abuse of the protection which the law gives to every citizen. Normally persons accused of offences of this nature committed under such circumstances deserve deterrent punishment....

What prompted the learned Sessions Judge to order release of these accused on their entering into bonds was, in his own words:

...the young and the tender age of the accused and also the fact that they are post-graduate students and after completing their educational career are now at the threshold of entering into their new leaves of life....

In our view, the learned Sessions Judge has fallen here into an| error, displaying misplaced sympathy, likely to set in extremely dangerous trends for the society at large. Both the accused were in their twenties on the day of occurrence. We are not averse to applying the provisions of the Probation of Offenders Act, which is applicable to the State of Himachal Pradesh, as liberally as possible in consonance with the Reformative Theory of punishment. Such application, nevertheless, cannot be extended to the facts which are obtainable in this case and the effect of which has been rightly noticed by none else than the learned Sessions Judge himself in his observations reproduced above. Those who show such scant regard for Rule of Law and indulge in activities indicative of flagrant violation of every norm hardly deserve the type of leniency bestowed upon them; for such leniency cannot but shake the faith of people at large in smooth functioning of the society in a civilised manner. And then, it is not as if the penal provisions of the Indian Penal Code are meant to be invoked only in the cases of poor and illiterate.

Also, the quantum of punishment will have to be revised in view of our acceptance of the appeal preferred by the State of Himachal Pradesh to the extent that accused Rakesh Malik and Rakesh Singha have in addition been convicted of the offence u/s 304, Part II read with Section 149 of the I.P.C. In view of what we have stated above, we are not persuaded by the contention of Mr. T.R. Chandel on the point of quantum of punishment that the accused have already completed 2 years of probation, without misbehaving and, therefore, reappraisal is not called for after 9 years of the incident.

Keeping in view the facts and circumstances in its entirety, we sentence both the accused namely, Rakesh Malik and Rakesh Singha to undergo rigorous imprisonment for a period of 5 years each u/s 304 Part II read with Section 149 I.P.C. They are further sentenced to rigorous imprisonment for a period of 3 years for each of the offences under Sections 325 and 452 read with Section 149 I.P.C. They are further sentenced to 2 years rigorous imprisonment u/s 148 of the Indian Penal Code. We consider it needless to award separate sentences u/s 427 read with Section 149 I.P.C. It is however, ordered that all the above sentences will run concurrently. The a boys named accused will surrender to their bail bonds forthwith to undergo remaining part of their sentences and the learned Sessions Judge, Shimla will ensure implementation of this order.

The police inaction shown by various functionaries has attracted severe criticism from the learned Sessions Judge towards the close of his judgment. We are in complete agreement with it. In particular, the conduct of PW 38 Parma Nand and PW 41, Chattar Singh who were left behind at Alfin Lodge, showsdereliotion of duty to an extent which calls for holding of a depart-mental enquiry against them. In their statements they would like the court to believe that the members of the unlawful assemblymet them at about 2 A.M. on their way to the scene of occurrence and that they tried to stop them but were given belows. They then went to the nearby official residence of the Hon''ble Chief Justice where police guard remains posted. They tried to phone the Police Station but the telephone was engaged. When they returned to Alfin Lodge, students were no longer there and the S.H.O with other police personnel had already arrived. This is a cock and bull story meant to save their skin. We, there-fore, order that a copy of this judgment be sent to the Director General of Police, Himachal pradesh with the recommendation to initiate such proceedings against the delinquents as he may consider necessary for inculcating a sense of duty and discipline in the members of the force.