CASE NO.: Appeal (crl.) 1411 of 2007 PETITIONER: Kishan Chand & Ors RESPONDENT: State of U.P DATE OF JUDGMENT: 10/10/2007 BENCH: S.B. Sinha & Harjit Singh Bedi JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
1. Leave granted.
2. Phool Chand (Accused No. 1) was a retired Army Officer. He was
allegedly allotted some land bearing plot No. 596 at village Paigamberpur
Hamlet, Jarganwan, title whereof was in dispute. He was in possession
thereof but his right to make any construction thereupon was in dispute. His
earlier attempt to raise constructions on the said land had met with resistance
by the villagers. They made a complaint to the officers of the Tehsil.
Before the police authorities, Phool Chand is said to have given an
undertaking not to make any construction.
We may place on record that he had also intended to put up
constructions earlier but did not succeed. Villagers were claiming their right
to make common use the land in question, viz., for keeping Ghoor of the
village folks.
3. On 3.02.1978 at about 9 a.m., the said Phool Chand armed with a
double barrel gun, his brother Kishan Chand (Accused No. 2) armed with a
single barrel gun in the company Bhagauti (Accused No. 3), Badadin
(Accused No. 4) and Sheo Prasad (Accused No. 5) who were said to have
been armed with lathis came to the land in question. They started
construction thereupon with the help of hired labourers. A large number of
villagers assembled at the place. Accused were requested not to make any
construction till the disputes between them were determined by the
competent court.
4. Amongst the villagers, Ram Asrey (since deceased), his son Mishri
Lal (first informant), Hardev, Suraj Lal, Ram Singh, Ram Dass, Vishram,
Ram Saran, Shiv Pal, Mohan Lal, Shiv Prasad, Umrao, Pyare, Ram Lakhan,
Karam Ali and Ram Prasad were present. Allegedly, Phool Chand and
others started abusing them. Mishri Lal and his co-villagers asked him not
to do so. Accused Nos. 3 to 5, viz., Bhagauti, Badadin and Sheo Prasad,
allegedly exhorted Phool Chand and Kishan Chand to shoot Mishri Lal and
others whereupon Phool Chand ran towards the roof of the nearby Kothri
owned by Mishri Lal and from the roof thereof, he started firing. Kishan
Chand is also said to have fired from his gun. Ram Asrey standing at the
Galiyara received a gun shot injury. He died at the spot. Mishri Lal and
others also received firearm injuries. One of the persons, viz., Ram Harak
who had also sustained gun shot injuries breathed his last in the hospital. On
receipt of such gun shot injuries, the condition of Suraj Lal, Hardev, Mahan
Lal, Ram Dass and Ram Singh allegedly became serious.
Mishri Lal son of the deceased Ram Asrey lodged a First Information
Report at about 11.30 a.m. on the said date alleging death of Ram Asrey and
Ram Harak at the hands of the accused persons and receipt of injuries by as
many as 15 persons, viz., Mishri Lal, Pyare, Shiv Pal, Mohan Lal, Ram
Dass, Suraj Lal, Ram Singh, Hardev, Karam Ali, Shiv Prasad, Umrao,
Vishram, Prem Prasad, Ram Saran and Ram Lakhan.
5. The defence version in regard to the incident was that the Patta of
the disputed land was executed in the name of Phool Chand in the year 1973.
He allegedly had raised constructions on eastern and western wall.
However, in the year 1977, i.e., after his retirement when he was going to
construct his house thereupon, his attempt to do so was opposed by Mishri
Lal, Hardev, deceased Ram Asrey and others. An undertaking was said to
have forcibly been taken by Lekhpal and Station House Officer of the police
station. However, at a later stage, the Tahsildar of the area allegedly
directed the Station House Officer of police station Asandra to render all
help to him. However, the said order was not complied with. In the written
statement filed by the accused persons, the incident that the had taken place
on 3.02.1978 at about 9.00 a.m. was accepted but it was contended that
while the said Phool Chand with the help of others including hired labourers
started constructions, the deceased Ram Asrey and Ram Harak along with a
large number of persons being armed with guns and lathis reached there and
caused obstructions. Upon protest having been lodged, all of them advanced
towards him with a view to kill him. He then ran to the roof of his fathers
Baithaka but Ram Asrey and his companions surrounded his house. They
also entered therein. An attempt was also made to molest Smt. Shakuntala
Devi, sister of Phool Chand. Only at that time, with a view to save the
modesty and honour of his sister as also save the life of other members of
the family, they caused injuries to various persons. It was alleged that an
endeavour was made to lodge a First Information Report by Smt. Shakuntala
Devi but the same was not registered. It was further alleged that Smt.
Shakuntala Devi came to Barabanki with her father, uncle and brother Gokul
Chand and all of them were medically examined by a private doctor
whereafter a report was sent to the District Magistrate.
6. The prosecution in support of its case examined 13 witnesses. Mishri
Lal (PW-1), Suraj Lal (PW-2) and Ram Saran (PW-3) examined themselves
as eye-witnesses to the occurrence. They proved the genesis of the
occurrence as also the manner in which it took place. Other witnesses
examined by the prosecution were the doctors who had conducted post
mortem examination on the body of the deceased Ram Asrey and Ram
Harak as also examined the injuries on the body of 15 injured persons.
7. The defence examined Dr. L.K. Shukla (DW-1) who allegedly had
examined Smt. Shakuntala Devi, Sri Dutt, Ramfal and Gokul Chand. Smt.
Shakuntala Devi examined herself as DW-2.
8. The defence story was disbelieved both by the learned Trial Judge as
also the High Court. They came to the conclusion that all the five accused
were present at the place of occurrence and participated therein and used
their respective weapons to inflict injuries upon the victims in execution of
their common object and for the said purpose they had formed an unlawful
assembly. The plea of right of private defence raised by the accused was
also negatived. The purported injuries found on the person of the defence
witnesses and others were held to be self-inflicted ones.
9. On the aforementioned findings, Phool Chand and Kishan Chand were
convicted under Sections 148, 302/149 and 307 of the Indian Penal Code
and Bhagauti, Badadin and Sheo Prasad were convicted under Sections 147,
302/149 and 307/149 thereof. They were sentenced to undergo rigorous
imprisonment for life, four years rigorous imprisonment for attempt to
murder, two years rigorous imprisonment under Section 148 of the Indian
Penal Code and one year rigorous imprisonment under Section 147 thereof.
10. Indisputably, Accused No. 1 Phool Chand died during pendency of
the appeal in the High Court. Accused No. 3 also is said to have died about
three years back. Kishan Chand, Badadin and Sheo Prasad are before us.
11. Ms. Sandhya Goswami, learned counsel appearing on behalf of the
appellants, took us through the evidences of Mishri Lal (PW-1), Suraj Lal
(PW-2) and Ram Saran (PW-3) and submitted that from the deposition of
the said witnesses, it would appear that the injuries having been caused only
by Phool Chand (since deceased), the appellants cannot be said to have
formed a common object so as to attract the provisions of Section 149 of the
Indian Penal Code.
The learned counsel would point out that a large number of villagers
took part in the incident. Had the appellants been present, they would have
also sustained some injuries and, thus, their presence and participation in the
occurrence becomes doubtful.
It was urged that Phool Chand (since deceased) had exercised his right
of private defence inasmuch as from the prosecution case itself it would
appear that there were at least 16 persons who intended to cause bodily harm
to the accused persons apart from outraging the modesty of Smt. Shakuntala
Devi. In the event, it is found, it was urged, that the said Phool Chand
exceeded his right of private defence, other accused persons could not have
been convicted under Section 302/149 of the Indian Penal Code particularly
when it has been brought on record that Phool Chand alone had climbed up
the roof and fired causing the deaths.
Ms. Goswami submitted that the courts below committed a manifest
error in passing the impugned judgments insofar as they failed to take into
consideration that the injuries had been sustained by the family of the
accused.
It was further urged that in view of the finding of the High Court that
the accused Phool Chand was in possession of the site and the side walls. It
was brought to our notice that the Superintendent of Police Shri Jangi had
passed an order (Ex. Kha-1) dated 27.01.1978 validating the possession of
Phool Chand after he had given an undertaking to the officer incharge.
12. Mr. Shail Kumar Dwivedi, learned Additional Advocate General for
the State of U.P. appearing on behalf of the respondent, on the other hand,
took us through the judgments of the learned Trial Judge as also the High
Court and submitted that for determining the question as to whether the
accused shared common intention or common object, the backdrop of events
including the fact that they had tried to raise constructions earlier which had
been resisted by the villagers, the fact that the accused were armed with
deadly weapons whereas the prosecution parties were absolutely unarmed,
the undertaking of Accused No. 1 not to make any construction and the
prejudice which would be caused to the villagers if such constructions are
allowed to be made, viz., it will take away the right of some of the villagers
to take their carts through the pathway concerned, the false defence raised by
the accused persons are the determination factors.
13. The land in question was allotted to Phool Chand. He indisputably
was in possession thereof. The ownership of the land was, however,
disputed. Whether allotment in his favour was valid keeping in view the fact
that the villagers in general had been claiming user of the said land for a
particular purpose is not in dispute. It is furthermore not in dispute that the
accused persons had made several attempts to raise constructions thereupon.
Such attempts on their part had been foiled. Accused No. 1 had also given
an undertaking that he would not make any construction.
14. From the materials brought on record, it is evident that the villagers
never intended to dispossess Phool Chand. They were only resisting his
right to raise any constructions thereupon. When the appellants together
with Phool Chand and Accused No. 3 went to raise constructions, they were
armed with deadly weapons. Accused Nos. 1 and 2 were armed with a
double barrel gun and a single barrel gun respectively, the others were
having lathis in their hands. They had hired labourers also with them. Only
when they started raising constructions, the deceased and the prosecution
witnesses objected thereto. It had come on record that they were not
required to raise construction till the lis is determined. The accused persons
did not listen to the said advice. They started abusing the members of the
prosecution party. They were requested not to use abusive language. At that
juncture, it is alleged that Accused Nos. 3, 4 and 5 asked Accused Nos. 1
and 2 to kill them or to assault them. Accused No. 1 went to the roof top of
a house. He was holding a double barrel gun. He fired shots at least aiming
at two persons standing at two different places. He must have fired some
other shots also. Deceased No. 1 Ram Asrey was standing at the Galiyara
whereas deceased No. 2 was standing near the wall towards the West of the
said Kothi. It has been proved that Accused No. 2 also fired shots. 17
persons received injuries.
Dr. H.C. Nigam (PW-4) who conducted the post mortem examination
on the body of the deceased Ram Harak found the following injuries:
(1) Lacerated wound 3/1/2 cm x = cm. Bone
deep on the forehead 6 cm over the nose bridge.
There was swelling on all four sides of this injury.
Multiple firearm entry wounds in an area of 36 cm
x 30 cm spread over chest and right side of
abdomen and on chest and left side of abdomen.
(2) Multiple firearm entry wounds on entero-
medival aspect of right hand in an area of 7 cm x
cm (sic), 7/1/2 cm above right side.
(3) Multiple firearm entry wounds in an area of
11 cm x 8 cm towards the front side of right
forearm 7 cm below the elbow.
(4) Multiple firearm entry wounds in an area of
9 cm x 6/1/2 cm on the backside of the palm of
right hand,7 cm below from the wrist joint.
Dr. Gopal Swaroop (PW-5) who conducted the post mortem
examination on the body of the deceased Ram Asrey found the following
injuries:
1. Multiple punctured wound (caused by
firearm) found over right side of face in an area of
8 cm x 6 cm muscle deep on which 4-5 marks of
pellets were found, they were marks of black
colour of shots whose margins were inverted.
These wounds of entry were of varying size of < x
cm.
2. Multiple punctured wounds (firearm
wounds) over the right side of neck in an area of
15 cm x 6 cm x muscle deep marks of 2-3 pellets
in number which were towards the inner side.
These were inverted wound of entry of varying
size of < x cm.
3. Multiple punctured wound in an area of 21
cm x 6 cm x muscle deep over the right shoulder in
the upper limbs just below the shoulder joint of
black colour. The wounds of entry were of
varying size of < cm x cm x > cm.
4. Multiple punctured wound (firearms) 42 cm
x 26 cm x muscle deep towards the front side of
right chest on which approximately mark of 50 to
60 pellets were present which were wounds of
entry whose size differed from < cm x
cm x > cm.
The injuries on the deceased, therefore, must have been caused as a
result of more than one shots fired at each of them.
Dr. P.N. Pandey (PW-6) examined Mishri Lal, Pyare and Shiv Pal.
The following injuries were found on the body of the Mishri Lal:
(1) Firearm wound 0.5 cm x 0.4 cm on left side
neck 12 cm above left sterno clavicle joint.
(2) Lacerated wound 1 cm x 0.5 cm on left palm
in between middle and lateral fingers.
(3) Abrasion 0.5 cm x 0.5 cm on joint of right
side knee.
On the body of Pyare, the following injuries were found:
(1) Abrasion 0.2 cm x 0.2 cm on left side back
of chest 10 cm away from vertebral column.
(2) Abrasion 0.2 cm x 0.2 cm on inner side on
left foot 6 cm beneath the knee joint.
The following injuries were found on the body of Shiv Pal:
(1) Abrasion 0.5 cm x 0.5 cm on left side of
chest 8 cm above the left nipple.
(2) Abrasion 0.5 cm x 0.5 cm on left side thigh
upper part 35 cm above left knee joint.
As regards injuries on the body of Mishri Lal, Dr. Pandey opined:
Injury No. 1 of Mishri Lal can be caused by a
pellet fired from rifle. Injury No. 2 can be caused
by some blunt weapon, for instance, lathi. The
remaining injuries can be caused by pellets from
the rifles of the three accused.
As regards injuries on the persons of Pyare and Shiv Pal, Dr. Pandey
opined that the injuries were caused by friction.
Participation by all the accused in causing death of two persons and
injuries sustained by others is, therefore, apparent.
15. This Court in Mizaji and Another v. The State of U.P. [(1959) Supp
(1) SCR 940] opined that there are two parts of Section 149 of the Indian
penal Code. To attract the first part, it was not necessary that there should
be a pre-concert. In regard to the second part, it was stated:
Even if the offence committed is not in direct
prosecution of the common object of the assembly,
it may yet fall under Section 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. For instance, it is a matter of
common knowledge that when in a village a body
of heavily armed men set out to take a woman by
force, someone is likely to be killed and all the
members of the unlawful assembly must be aware
of that likelihood and would be guilty under the
second part of Section 149. Similarly, if a body of
persons go armed to take forcible possession of the
land, it would be equally right to say that they have
the knowledge that murder is likely to be
committed if the circumstances as to the weapons
carried and other conduct of the members of the
unlawful assembly clearly point to such knowledge
on the part of them all
16. In Bishna Alias Bhiswadeb Mahato & Ors. v. State of West Bengal
[(2005) 12 SCC 657 : 2005 (9) SCALE 204], this Court held :
For the purpose of attracting Section 149
and/or 34 IPC, a specific overt act on the part of
the accused is not necessary. He may wait and
watch. Inaction on the part of an accused may
some time go a long way to hold that he shared a
common object with others.
17. In Triloki Nath and Others v. State of U.P. [(2005) 13 SCC 323], the
law has been stated in the following terms:
For the purpose of attracting Section 149 of
the IPC, it is not necessary that there should be a
pre-concert by way of a meeting of the persons of
the unlawful assembly as to the common object. If
a common object is adopted by all the persons and
shared by them, it would serve the purpose.
18. Ms. Goswami relied upon a decision of this Court in Munna Chanda
v. State of Assam [(2006) 3 SCC 752] wherein the accused persons were
held to have not formed any common object keeping in view the genesis of
the said occurrence which took place at three different stages. Appellants
therein were involved only at the third stage. It was in the peculiar fact
situation obtaining therein this Court opined:
The appellants herein were not armed with
weapons. They except Bhuttu were not parties to
all the three stages of the dispute. At the third
stage of the quarrel, they wanted to teach the
deceased and others a lesson. For picking up
quarrel with Bhuttu, they might have become
agitated and asked for apologies from Moti.
Admittedly, it was so done at the instance of
Nirmal, Moti was assaulted by Bhuttu at the
instance of Rattan. However, it cannot be said that
they had common object of intentional killing of
the deceased. Moti, however, while being
assaulted could free himself from the grip of the
appellants and fled from the scene. The deceased,
was being chased not only by the appellants herein
but by many others. He was found dead next
morning. There is, however, nothing to show as to
what role the appellants either conjointly or
separately played. It is also not known as to
whether if one or all of the appellants were present,
when the last blow was given. Who are those, who
had assaulted the deceased is also not known. At
whose hands he received injuries is again a
mystery. Neither Section 34 nor Section 149 of
the Indian Penal Code is, therefore, attracted. [See
Dharam Pal and Others v. State of Haryana
(1978) 4 SCC 440 and Shambhu Kuer v. State of
Bihar AIR 1982 SC 1228].
19. Right of self-defence is a plea which is available to the accused but
the burden to prove the same would be on them.
The High Court, in our opinion, committed an error in rejecting the
plea of self-defence raised on behalf of the accused stating that the incident
took place at an open space. There is no law that right of self-defence
cannot be exercised in relation to a dispute over an open space. But the
factual matrix obtaining in the instant case being absolutely different, we are
of the opinion that right of self-defence on the part of the accused was not
available. Accused persons were the aggressors. They had gone to the
scene of occurrence with weapons. Phool Chand and other accused, in all
probability, thought that having regard to the order passed by the
Superintendent of Police asking his subordinate officers to afford them
protection, they could take law in his own hands. Thus, they could raise
construction by show of force.
Evidences adduced on behalf of the prosecution in no unmistakable
terms point out that all the overt acts started from the side of the accused
persons. They rejected the advice not to raise any construction till the
dispute is determined. They started using abusive language and even when
asked not to do so they continued to do so. Only when a protest was made
by the villagers, Accused No. 1 Phool Chand went to the roof top of a house
and started indiscriminating firing. He was in army. He was presumably a
good marks man. Shots fired by him hit the deceased on vital parts of their
bodies.
20. It is not the case of the appellants that the villagers intended to
dispossess them. We have noticed hereinbefore that they were not armed at
all. They had assembled at the place only with a view to resist the attempt
on the part of the accused persons to raise constructions in respect whereof
Accused No. 1 himself had given an undertaking that he would not do so.
The Superintendent of Police might have issued certain directions to the
Sub-Inspector but indisputably the lis was pending adjudication before a
competent authority. Accused could not have taken law in their own hands
only because the Superintendent of Police has asked his police officer to
give protection to him.
21. It has been found by the learned Trial Judge as also the High Court
that the prosecution witnesses did not enter into their house. The plea that
the modesty of Smt. Shakuntala Devi was outraged has been rejected by
both the courts. The accused did not lodge any First Information Report in
that behalf. They, for reasons best known to them, did not go to a
government doctor to get their purported injuries examined on their persons.
Although the offence took place in the morning of 3.02.1978, they went to
DW-1 only on the next day to get their purported injuries examined. For
valid and cogent reasons, the testimonies of the DWs had not been accepted.
The question as to whether in a situation of this nature the right of private
defence could be exercised by the accused persons must be considered
having regard to the following facts:
(i) the prosecution witnesses were not armed;
(ii) there is nothing to show that they attempted to dispossess Accused
No. 1.
(iii) They did not dismantle the structures.
(iv) Accused persons themselves started abusing them.
(v) They intended to establish their right of raising constructions for
which they were fully prepared.
(vi) Had the matter been otherwise, the villagers would have also gone
to the site with arms.
(vii) Why all the five accused persons were armed has not been
explained.
22. The fact that number of injuries sustained by the prosecution
witnesses and the nature thereof, viz., they suffered gun shot injuries as also
injuries caused by lathis, goes a long way to show that the accused persons
had shared common object.
From the post mortem as also the injury report, it is evident that more
than one gun was used for commission of the offence. The prosecution
witnesses also suffered injuries which could only be caused by lathis. It is,
therefore, a case where all the appellants together with Phool Chand had
taken part in the commission of the offence.
23. In Shambhu Nath Singh and others v. State of Bihar [AIR 1960 SC
725], this Court opined:
6. Section 149 of the Indian Penal Code is
declaratory of the vicarious liability of the
members of an unlawful assembly for acts done in
prosecution of the common object of that assembly
or for such offences as the members of the
unlawful assembly knew to be likely to be
committed in prosecution of that object. If an
unlawful assembly is formed with the common
object of committing an offence, and if that
offence is committed in prosecution of the object
by any member of the unlawful assembly, all the
members of the assembly will be vicariously liable
for that offence even if one or more, but not all
committed the offence. Again, if an offence is
committed by a member of an unlawful assembly
and that offence is one which the members of the
unlawful assembly knew to be likely to be
committed in prosecution of the common object,
every member who had that knowledge will be
guilty of the offence so committed. But “members
of an unlawful assembly may have a community of
object upto a certain point, beyond which they may
differ in their objects, and the knowledge
possessed by each member of what is likely to be
committed in prosecution of their common object
may vary not only according to the information at
his command, but also according to the extent to
which he shares the community of object and as a
consequence of this the effect of Section 149 of the
Indian Penal Code may be different on different
members of the same unlawful assembly.”
Jahiruddin v. Queen Empress, ILR 22 Cal 306.
24. In Shivalingappa Kallayanappa and Others v. State of Karnataka
[1994 Supp (3) SCC 235], this Court opined:
9. From the above discussion it is established by
the prosecution that A-1 to A-5 formed into an
unlawful assembly variously armed and
participated in the occurrence during which two
deceased persons died and P.Ws. 2 to 4 received
injuries. The next question is whether the common
object of the unlawful assembly was to commit the
murders. Whether there was such a common object
or not, depends upon various factOrs. A-1 and A-
2, though armed with axes, did not use the sharp
side but only gave one or two blows on the heads
with the butt ends. A-4 and A-5 who were armed
with sticks dealt blows only on the legs and or on
the hands which were not serious. A-3 did not
participate in the attack on any of the two deceased
persons. These circumstances show that the
common object of the unlawful assembly cannot
be said to be to cause murders and at any rate it
cannot be said that all the accused shared the same
and that they had knowledge that the two deceased
persons would be killed and with that knowledge
continued to be the members of the unlawful
assembly. However, taking all the circumstances
of the case into consideration, the common object
can be held to be only to cause grievous hurt. A-1
and A-2, however, dealt blows with the butt ends
of the axes on the two deceased persons and the
injuries on the heads caused by them proved to be
fatal. Having given our earnest consideration to
this aspect of the case, we are of the view that A-1
and A-2 must be held liable for their individual
acts and they would be liable to be punished under
Section 302 I.P.C. and A-3 to A-5 under Sections
326/149 I.P.C. so far as the attack on the two
deceased persons is concerned.
25. In Bunnilal Chaudhary v. State of Bihar [(2006) 10 SCC 639], this
Court held:
13We may say here that it is now the settled
law that under Section 149 IPC, the liability of
other members for the offence committed during
the continuance of the occurrence rests upon the
fact whether the other persons knew before hand
that the offence actually committed was likely to
be committed in prosecution of the common
object. Such knowledge may reasonably be
collected from the nature of the assembly, arms or
behaviour on or before the scene of occurrence
26. In Sunil Balkrishna Bhoir v. The State of Maharashtra [2007 (7)
SCALE 184], this Court held:
17. Section 149 per se constitutes a substantive
offence. The object of this section is to make clear
that an accused person whose case falls within its
terms cannot put forward the defence that he did
not, with his own hand, commit the offence
committed in prosecution of the common object of
the unlawful assembly or such as the members of
the assembly knew to be likely to be committed in
prosecution of that object. Unlawful assembly was
formed originally to assault and something might
have happened all of a sudden.
27. In a case of this nature, the injuries on the part of the defence
witnesses need not detain us as sufferance of such injuries at the hands of the
prosecution witnesses had not been believed by both the courts below. We
do not see any reason to differ with the said findings.
28. If Phool Chand was armed by the purported order passed by the
Superintendent of Police that he should have assistance from the police
officers. We fail to see any reason as to why he could not go to the police
station and lodge a First Information Report. Why the injured persons did
not go to a Government Hospital for getting themselves examined on that
date itself. It betrays common sense as to why they had to go to a private
doctor and that too on the next date. The accused persons even did not mind
setting up a false plea to the effect that modesty of Smt. Shakuntala Devi had
been outraged. The testimony of Smt. Shakuntala Devi has been discarded
by the courts below. No attempt even had been made before us to assail the
correctness of that part of the judgment.
29. For the reasons aforementioned, we do not find any merit in this
appeal which is dismissed accordingly.