JUDGMENT
S.M. Soni, J.
1. Appellants-original accused have preferred this appeal against the judgment and order of conviction dated 21-3-1988 passed by the Addl. Sessions Judge, Bhavnagar in Sessions Case No. 17 of 1986. Appellant No. 1 convicted under Section 302 I.P.C. and appellant No. 2 to 7 convicted under Section 302 read with Section 149 I.P.C. They are ordered to suffer rigorous imprisonment for life. All the accused are also convicted under Sections 147 and 148 of I.P.C. and are ordered to undergo R.I. for six months and 9 months respectively.
2. Appellants will be referred to as respective accused in this judgment.
3. It is stated at the Bar by the learned Advocate for the appellants-accused that the appellant No. 7 has died on 30-11-1992. Hence, so far as appeal of appellant No. 7 is concerned, it abates.
4. Facts which led the prosecution of the accused are as under:
Complainant P.W.1, P.W.5 and one Makabhai are the brothers and are cultivating their respective lands. Land named “Butiya”, admeasuring about 13 Bighat, fell to the share of the complainant and the same is situated in the sim of village Vadali. Some three months before the date of the incident, he had suspected that someone is stealing away grass from his field. He had, therefore, been to his field at night to enquire for the same. There, he found in the light of torch, that one Koli Nana Bhikha, Kana Bhikha and one Kababhai were cutting grass. As they were identified, Kana inflicted spear blow on the complainant and the complainant filed a complaint for the same before Mahuva Police. Said Nana Bhikha and Kaba Ukabhai (accused No. 1) then threatened the complainant to withdraw the complaint. Complainant, on advice of his Advocate, filed a complaint for breach of peace before Mahuva Police and Police filed a Chapter Case against them. In the evening of 19-10-1985, at about 8-00 p.m. complainant and his younger brother P.W. 5 were at the bus stand of their village Bhadrod. There, accused No. 1 and accused No. 4 came to them and abused them and threatened that they will see them in the evening. On their being so threatened, complainant and his brother came home. In the evening, near their house, Garabi was arranged. There deceased Desur Bavabhai, Babubhai P.W. 7, Jodhabhai P.W. 2, complainant P.W. 1 and Nanabhai P.W. 5 and others were singing Garbas. At that time, at about 9-00 p.m. accused, who are of village Tarodi, came there. Accused No. 1 had a spear. Accused No. 2 to 5 and accused No. 6 had dharia. Accused No. 1 gave a spear blow on the left side of the chest of Desur, who, on being injured, fell down. Complainant and others having intervened, P.W. 2, P.W. 5 and P.W. 7 were injured. At that time, P.W. 10 and P.W. 9 had also arrived and all the seven accused, who had come from the bus stand side, ran away in the northern direction. P.W. 9 brought rickshaw wherein said Desur and P.W. 5 and P.W. 7 were taken to the hospital at Mahuva. On the way, Desur was not speaking and in the hospital at Mahuva, doctor, on examination of Desur, declared him dead and a complaint was registered, being Crime Register No. 181 of 1985 of Mahuva Police Station. On completion of the investigation, accused were charge-sheeted and the learned J.M.F.C, Mahuva committed the accused to stand their trial before the Court of Session at Bhavnagar. The learned Addl. Sessions Judge, Bhavnagar, on completion of trial, found the accused guilty for the charge and imposed sentences as stated above. This judgment and order of conviction is under challenge in this appeal.
5. Learned Counsel Mr. K.J. Shethna for the appellants-accused has challenged the order of conviction and sentence broadly on the grounds, namely, (i) that the conclusion of the guilt of the accused arrived at by the learned Addl. Sessions Judge is not warranted by the evidence on record and/or there is no sufficient evidence to reach the conclusion of the guilt of the accused; (ii) that the learned Addl. Sessions Judge has not considered the self-defence spelled out from the evidence on record; (iii) that the learned Addl. Sessions Judge failed to appreciate that this is a case of free-fight and the nature of injuries spells out that there was no intention on the part of any of the accused to commit murder of Desur; and (iv) that there was no unlawful assembly at all formed by the accused and in the alternative, even if there was an assembly, it was not an unlawful assembly and if it was an unlawful assembly, its object was not to commit any offence muchless murder of Desur. At the most, the object was to threaten the complainant’s party to withdraw the criminal cases filed by them. Mr. Shethna, therefore, contended that applicability of Section 149 and/or 34 of I.P.C. are ruled out and each accused can be held guilty for his proved individual act and, therefore, the order of conviction of accused Nos. 2 to 7 under Section 302, read with Section 149 I.P.C. is bad in law and order of conviction of the accused No. 1 under Section 302 I.P.C. is also bad. It is contended in the alternative that the conviction at the most can be under Section 304 Part II of I.P.C.
6. Learned A.P.P. Mr. Divetia supports the judgment and order of conviction under appeal. Mr. Divetia contended that there is sufficient evidence on record to establish the guilt of the accused. The facts and circumstances of the case reveal and call upon to infer that all the accused had a common object to do away with the members of the complainant’s side if they do not withdraw the complaints. Mr. Divetia contended that a threat “to see them” if they do not withdraw the complaints, necessarily conveys serious consequences, if they do not withdraw the complaints. Mr. Divetia further contended that in a case, where the accused party is the aggressor, self-defence is not available to them and it is not a case of free-fight inasmuch as it is the accused who have come to the house of the complainant side with a view to deal with them, as they did not withdraw the complaints. Mr. Divetia further contended that every accused has acted in furtherance of the common object and, therefore, it cannot be said that any of the accused, and in particular accused Nos. 4 and 5, has not acted at all or has not over-acted in achieving the common object of the assembly. Mr Divetia, therefore, contended that the appeal should be dismissed and the judgment and order of the learned Addl. Sessions Judge be confirmed.
7. At the outset, it is stated that finding of the learned Addl. Sessions Judge that Desur died a homicidal death is not, disputed in this appeal. It is, therefore, not discussed.
8. P.W.1, Gadabhai has deposed that before a month less in two years, there was a standing crop of barley, millet and groundnut in their field. They were going to the field for guarding the same as someone was reaping away the crop and grazing away the catties. They had gone at about 9-00 p.m. at night. On that night, at about 12-00 midnight, they saw two bullocks grazing in their field. Two persons were also standing there and they were Kalu Devayat and Kana Bhikha. They were identified in the light of torch. When they were accosted, they gave threat asking them to run away. When he and Jadur Alsi went near to them, Kalu Devayat gave him a spear blow on the right side of the chest and Kana Bhikha gave a stick blow on the leg of Jadur Alsi. They, therefore, returned home. They went to Mahuva Hospital and took treatment and lodged a complaint before Police. After about two and half months of that incident, complainant and others were playing Garbi near their house. They were singing Garbas while sitting there. Complainant P.W. 1, P.W. 2, P.W. 5, P.W. 7, deceased Desur and his mother Godiben were sitting near Garba and were singing Garbas. Godiben’s other name is Jiviben. At about 9-00 p.m. on that day, accused came there. They had arms. Accused No. 1 had spear, accused No. 6 had dharia, accused No. 7 had a stick and others had axes. On coming there, they started giving abuses and challenges. At that time, complainant’s brother Desur Bava stood up and on his having stood up, accused No. 1 gave a spear blow in his chest. P.W. 5 was assaulted by accused No. 2 with the blunt portion of the axe and by accused No. 7 with a stick. P.W. 2 was injured on his head with axe by accused No. 3. P.W. 7 was injured on head by a dharia by accused No. 6. At that time, P.W. 6, P.W. 10 and P.W. 9 came there. At the time of incident, there was a light outside the house of one Megha Alsi. Complainant and the witnesses were singing Garbas in that light. At the time of incident, accused No. 7, accused No. 5 and accused No. 6 were also injured. P.W. 5 was caught hold by accused No. 5 and accused No. 2 and accused No. 7 were inflicting blows on him. P.W. 5, therefore, to escape from the hold of those accused, gave knife blows to accused No. 5. This part of evidence of P.W. 1, complainant, is corroborated by the evidence of injured witnesses P.W. 2, P.W. 5 and P.W. 7. This part of the evidence is further corroborated by the evidence of independent witness P.W. 10. It is also further corroborated by the evidence of P.W. 6 and P.W. 9, though they have turned hostile. Despite their being hostile, they have supported the evidence of P.W. 1 to the extent that there was a light at the house of Megha Alsi and in the said light, they were singing Garbas. What transpires from the evidence of these prosecution witnesses is (1) that the accused had come near the deli of P.W. 1 where all the witnesses, except P.W. 6, P.W. 9 and P.W. 10, were present and where P.W. 6, P.W. 9 and P.W. 10 came later on, on hearing the hue and cry of the incident; (2) accused were found with weapons as alleged by the complainant; (3) that P.W. 2, P.W. 5 and P.W. 7 were injured in the course of that incident and Desur was injured and died of that injury; (4) that accused No. 3, accused No. 6 and accused No. 7 who had respective weapons with them, had thrown away the weapons and have run away; and (5) that all the accused came from the bus stand side and all ran away in the same direction after the incident.
9. Learned Counsel Mr. Shethna has contended before us that the evidence of these witnesses is not acceptable in view of the contradictions proved through the evidence of P.S.I. Mr. D.B. Vadher P.W. 21. Learned Counsel Mr. Shethna took us through the contradictions in the evidence of P.W. 2, P.W. 5, P.W. 7 and P.W. 10, but, in our opinion, these contradictions are not that important to reject the whole testimony of the witnesses. One can say that P.W. 1, P.W. 2, P.W. 5 and P.W. 7 are inter se related, but P.W. 6, P.W. 9 and P.W. 10 are independent witnesses. No doubt, P.W. 6 and P.W. 9 have turned hostile, but their evidence supports the case of the prosecution on the point that there was light at the place of incident; that the accused were present at the place of incident with respective weapons; and deceased Desur was found injured at the scene of offence. Thus, in our opinion, we do not find any substance in the contention of Mr. Shethna that the role attributed to each of the accused is not true in view of the omission and contradiction shown in the evidence of witnesses and especially through the evidence of P.S.I. When such a milli takes place, there is bound to be some contradictions, but one has to take the overall view of the situation. One has to bear in mind that when one party assaults the other, the victim’s side witnesses are not that attentive to watch with a photographic recording as to which accused injured which witness, at which part of body and to what extent and with what part of the weapon which he had with him. One has to take in such situation an overall picture as to whether the evidence of the witnesses sound truth or not. In our opinion, in the instant case, evidence of P.W. 1, P.W. 2, P.W. 5 and P.W. 7, of which P.W. 2, P.W. 5 and P.W. 7 are injured witnesses, is not only truthful one, but is corroborated and supported in material aspects by the independent evidence of P.W. 10, P.W. 6 and P.W. 9 on material aspect. The law is not to reject the entire testimony of a hostile witness. What is corroborated and not disputed can be accepted and relied upon.
10. Mr. Shethna, Learned Counsel for the accused, contended that there are no independent witnesses, though they would be available in the instant case. It is not correct to say that there are no independent witnesses. P.W. 6, P.W. 9 and P.W. 10 are independent witnesses and P.W. 10 has supported the prosecution on material aspects while P.W. 6 and P.W. 9, though they have turned hostile, their uncontroverted and undisputed part of evidence supports the prosecution on the material aspects. Thus, it cannot be said that there are no independent witnesses in the instant case.
11. Mr. Shethna also contended that witnesses are interested witnesses and their evidence should be accepted with care and scrutiny. Incident took place at the residence of prosecution witnesses and when incident takes place near the residential premises, only the occupants in the locality can be the witnesses. Therefore, if such occupants are the witnesses, they cannot be said to be interested witnesses simply because they reside there. It must have been shown that they have some interest to prosecute and secure conviction. In absence of any such material, these witnesses cannot be said to be interested ones.
12. Mr. Shethna contended that evidence of the witnesses should not be accepted inasmuch as the F.I.R. is silent as to the injuries on the person of the accused Nos. 5, 6, and 7. From the evidence, it transpires that accused Nos. 5, 6 and 7 according to them, were injured near the bus stand. Mr. Shethna, therefore, contended that the incident not only took place at the S.T. bus stand, but the injuries on the person of the accused are suppressed by the prosecution witnesses. He has relied on a judgment in the case of Iswar Singh v. Stale of Uttar Pradesh in support of his contention. No doubt in that case, the Supreme Court has held that the trial Court in convicting the appellants overlooked certain significant features of the case and the High Court in confirming the judgment of the trial Court failed to advert to those circumstances. In that case, the circumstance was that the F.I.R. was silent as to the injuries received by some of the accused. In that case before the Supreme Court there was inordinate and unexplained delay in despatching the F.I.R. to the Magistrate; there was difference in account given by the prosecution witnesses and as appearing from the F.I.R. of the occurrence; and there was non-examination of material witnesses. In the instant case, prosecution witnesses have in cross-examination explained the injuries on the person of the accused No. 5. Question to expain injuries on the person of accused Nos. 6 and 7 does not arise because on their say they were injured at ST. stand and not at the place of accident. Therefore, we do not find any substance in the contention of the learned Advocate Mr. Shethna.
13. Learned Counsel for the accused further contended that the case of the prosecution should not have been accepted as the prosecution has not come out with a true genesis of the case. It is true that in the F.l.R. it has been stated that accused came at about 9-00 p.m. on the day of incident near the deli of P.W. 1 complainant and when Desur stood up, accused No. 1 gave a spear blow in the chest and other accused also assaulted P.W. 2, P.W. 5 and P.W. 7. What is the genesis? Genesis means the beginning of the incident. Genesis means as to how the incident commenced. It is clear from the evidence of prosecution witnesses that accused had threatened them to withdraw the complaint filed by P.W. 1. On such threat, a further complaint was filed by P.W. 1 and the Police on the basis of the said complaint has instituted a Chapter Case against accused No. 1 and certain others. Accused Nos. 1 and 6 are the sons of accused No. 2; accused Nos. 4 and 5 appear to be brothers; and accused No. 7 appears to be their cousin. So, accused wanted the complainant to withdraw the complaint filed against brother of accused No. 7 and his relation, who had trespassed in his field and tried to graze away the standing crops. On the date of the accident at about 8-00 p.m., accused Nos. 1 and 4 have not only given abuses, but also threatened P.W. 1 and his brother that they will see them and immediately at about 9-00 p.m., all the seven accused have gone to their deli. Accused belong to village Tarodi, which is 5 kms. away from Bhadrod, the village of the complainant party. Thus, keeping in mind the previous incident whereby P.W. 1 was injured and had filed a complaint and that a threat was given to withdraw the complaint, and in consequence thereof a Chapter Case came to be filed by the compalinant side against one of the accused and others and in the evening of the incident near bus stand accused Nos. 1 and 4 gave abuses to P.W. 1 and P.W. 5 and threatened them to see them, it cannot be said that the genesis is not correctly stated. Accused came near the deli, for which they had no reason and when Desur stood up, accused No. 1 gave a spear blow in the chest. Therefore, in our opinion, what is stated in the complaint by P.W. 1 and when he has stated on oath in evidence before the Court that accused came and started giving abuses and Desur stood up, cannot be said to be an untrue genesis, but is a natural consequence stated by the complainant. Simply because history prior to the incident is not stated, it cannot be said that genesis is incorrectly stated. Thus, we do not find any substance in the contention of leared Counsel for the accused that the genesis is not correctly stated by the prosecution.
14. Mr. Shethna, Learned Counsel for the accused, contended that there was no such motive because of which such an incident would occur. It is the case of the prosecution that accused formed an unlawful assembly with a common object to compel, by means of criminal force or show of criminal force, P.W. 1 to withdraw the criminal complaint filed by him, which he was not legally bound to do. Mr. Shethna contended that even as per the prosecution, the common object was not to commit murder of Desur. If a common object of an assembly is to compel any person to do what he is not legally bound to do by means of criminal force or show of criminal force, it is an unlawful assembly. Can it be said that accused had only intention to threaten the complainant and the members of his side to withdraw the criminal complaint and if they do not withdraw the criminal complaint filed by P.W. 1, they will disburse and go away and that they will not act in furtherance to reach their object of withdrawal of the complaint? Would they like to allow the complainant side to feel that their threat is a hollow one? Had they in their mind only to give a threat to the complainant side to withdraw the complaint and if they do not withdraw the complaint, they do not mind? The fact that after giving a threat to withdraw the complaint, not only not withdrawing the complaint but lodging of a Chapter Case, suggested that complainant side has not submitted to the threat of the accused. Accused, therefore, in furtherance of implementing their threat, had gone to the house of the complainant side in the night of incident with deadly weapons to see that their threat is materialised and as they have not submitted to the threat, to do away with them. What was conveyed at the bus stand by accused Nos. 1 and 4 was that they will be done away with, as they have not submitted to their threat. Therefore, the common object was not a simple threat to withdraw the complaint, but was a threat to kill also if they do not submit to their threat and withdraw the complaint. This can safely be said from the conduct that a criminal force was used by them to compel the complainant side to withdraw the complaint, which they were not legally bound to do. Thus, motive of the accused was not simpliciter a threat, which if not carried out, they do not mind, but was a threat if not submitted to, to be materialised by use of criminal force with deadly weapons. Thus, motive was sufficient on the part of the accused side to see that the complaint is withdrawn and if not to get it withdrawn by criminal force or the complainant is done away with. Therefore, we do not find any substance in the say of Learned Counsel for the accused that the motive was not such that such an incident would occur.
15. As per law, every member of unlawful assembly would be guilty of offence committed by a member in furtherance of the object of such assembly. Mr. Shethna, Learned Counsel, contended that in the instant case, there is nothing to show that accused Nos. 4 and 5 have over-acted in any manner in furtherance of the object of unlawful assembly. This contention of Mr. Shethna is required to be stated to reject the same. Accused No. 4 in the company of accused No. 1 had given a threat to P.W. 1 and P.W. 5 at the bus stand before an hour of the incident. Accused No. 4 was present with other accused at the time of incident. Accused No. 4 if he was not the member of the unlawful assembly and was not knowing the common object of that assembly had no reason to accompany other accused and come all the way from Tarodi to Bhadrod. Accused No. 5 came to be injured in the incident. If accused Nos. 4 and 5 had come from Tarodi to Bhadrod to see Garbas, they had no reason to come with axe, deadly weapon. May be that an agriculturist may have an axe with him, but need not be at a time when he intends to visit a Garba, a religious festival, and that too at night. Prosecution witnesses have specifically referred to the presence of accused Nos. 4 and 5 at the time of incident. Prosecution witnesses have also stated that accused No. 5 caught hold of P.W. 5 and to escape the grip, P.W. 5 gave knife injuries to accused No. 5. Therefore, it cannot be said that accused No. 5 had not acted in furtherance of the common object. He has over-acted in furtherance of the common object. Thus, it is clear from the evidence of prosecution witnesses that accused No. 4 gave abuses and threat at the bus stand to P.W. 1 and P.W. 5 and was also present with other accused at the time of incident and with weapon. Thus, we do not find any substance in the contention of Learned Counsel for the accused that accused Nos. 4 and 5 have not over-acted in the course of the incident. In our opinion, they were active members of the unlawful assembly constituted by the present accused.
16. Learned Counsel Mr. Shethna contended before us that accused Nos. 5, 6 and 7 are injured in the course of incident. The injuries on the person of accused No. 5, as found, were to the following effect:
1″ long oblique stab wound It. hack 9 deep;
1″ long vertical stab wound It. sap. region 9 deep;
3/4″ long horizontal stab wound 3″ below post axillary angle 9 deep;
1″ long oblique incised wound sub cut deep bilateral cervical region. Bleed + from all wounds;
On the person of accused No. 6, the injuries, as found, were as under:
2″ long scalp deep C.L.W. It. parietal region, Blood + skull bone seen.
On the person of accused No. 7, the injuries, as found, were as under:
1″ long horizontal stab wound rt. parietal region, deep blood.
2″ bone deep incised wound rt. shoulder region. Blood + ;
3″ Tender deep incised wound It. calf muscle bleed + ;
17. It is contended by the Learned Counsel Mr. Shethna that these injuries were caused on the person of the accused and while defending them, injuries on the person of deceased Desur and P.W. 1, P.W. 2, and P.W. 5 are caused. Thus, it is the say of the accused that accused have caused injuries on prosecution side in self-defence. Question of self-defence will arise, if the case falls within the purview of Section 97 of I.P.C. Section 97 of I.P.C. reads as under:
97. Every person has a right, subject to the restrictions contained in Section 99, to defend –
First – His own body, and the body of any other person, against any offence affecting the human body;
Secondly – The property; whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
18. To attract the right of private defence, it is necessary to establish or show from the record that person who claims self-defence either to his own body or body of any other person is subjected to any offence affecting the human body. In the instant case, it is clear from the evidence of the prosecution witnesses that accused Nos. 1 and 4 first threatened P.W. 1 and P.W. 5 at the bus stand and said threat was given, as they did not submit to the demand to withdraw complaints lodged by them against one of the accused and others of their group. In furtherance of the threat given at the bus stand, all the accused had gone near the deli of P.W. 1 where they were peacefully singing Garbas, there being a festival of Navratri. After the accused reached near the deli of P.W. 1 it is in evidence that they started giving abuses and when Desur, the deceased, stood up, accused No. 1 immediately gave a spear blow. There is nothing on the record to show; nor even any suggestion in the cross-examination of any of the prosecution witnesses, that when accused persons reached near deli of P.W. 1, they were assaulted by the prosecution witnesses and to save their life, the accused were required to use some force to defend themselves. On the contrary, it is in evidence that the prosecution side persons, who were singing Garbas peacefully near the deli of P.W. 1, were not armed at all. It is clear from the evidence of prosecution witnesses that all the accused were armed with respective weapons referred above. Thus, defence is not able to show from any evidence on record that either whole body or any part of body of any person of the accused was subjected to any offence affecting the human body. When act of any of the prosecution witnesses has not reasonably caused apprehension of death or of grievous hurt; nor there is an attempt to cause such hurt, the question of self-defence does not arise. On the contrary, it is clear from the evidence of P.W. 5 as to how and why injuries on the person of accused No. 5 are caused. It is also clear from the evidence of prosecution witnesses that they were injured when they tried to save themselves from the assault by the accused. Thus, in our opinion, question of self-defence does not arise in this case. Thus, from the prosecution evidence, it does not emerge; nor can it be made out; that the injuries caused on the person of prosecution witnesses Nos. 1, 2 and 5 and injuries on the person of Desur was caused by the accused person in their self-defence.
19. It is contended by Learned Counsel Mr. Shethna that it is a case of free-fight and it does not matter who is an aggressor, but looking to the nature of injuries on the person of accused Nos. 5, 6 and 7, it cannot be inferred that accused had any intention to cause murder of deceased Desur. Mr. Shethna also contended that when there is an unlawful assembly and the object is not to cause death, then also intention to cause death cannot be inferred. In case of free-fight, which normally happens because of sudden quarrel, neither Section 149 nor Section 34 I.P.C. is attracted and the same is to be ruled out. It is clear from the evidence of the prosecution witnesses, as discussed above, that accused formed an unlawful assembly to compel the prosecution side to withdraw a complaint filed by them against accused No. 1 and two others and the common object of their assembly was to compel the prosecution side by means of criminal force or by a show of criminal force to withdraw the criminal complaint filed by them. The prosecution side was not legally bound to withdraw that complaint. Accused wanted to get it done by means of criminal force or show of criminal force. As stated earlier, threatening the prosecution witnesses to withdraw the complaint was not joke. Their intention was to compel the prosectuion side to withdraw the complaint, if the complaint was not withdrawn with a verbal threat, then to use the criminal force on failure to withdraw the complaint. Accordingly criminal force is used by the accused persons; as a result of which Desur died and P.W. 1, P.W. 2 and P.W. 5 were injured. The incident which took place in the night of 19-10-1985 at the deli of P.W. 1 shows that accused who belong to village Tarodi, which is 5 kms. away from village Bhadrod, the village wherein the incident took place, have deliberately and intentionally come to the deli of P.W. 1, with a specific intention and a common object. There is no question of any sudden quarrel or a free-fight and everything was pre-planned and prearranged. The injury caused on the person of the accused suggests and shows and makes it clear that they were injured by the prosecution side in their self-defence. However, on assault by accused persons, Desur died of spear blow in the chest and P.W. 1, P.W. 2 and P.W. 5 were injured. Thus, we do not find any substance in the contention that it is a case of free-fight or a sudden quarrel and Section 149 of I.P.C. is not attracted.
20. The Learned Counsel Mr. Shethna relied on the following judgments to show that the evidence of the prosecution witnesses should not be accepted as the genesis as put forth by the prosecution is not acceptable. In the case of Thakarda Lalaji v. State of Gujarat , it is observed that:
We think that it is far more likely that the occurrence took place “without premeditation in a sudden fight in the heat of passion without taking undue advantage or acting in a cruel manner”. The whole pattern of the case and facts admitted by both sides lead us to believe that this was the more natural and correct inference to reach in this case.
In view of this observation, it is held:
We think that the findings of the Sessions Judge as well as High Court, on the manner in which the incident took place, would bring the offence committed by the appellant within Exception No. 4 of Section 300 I.P.C, if we eliminate a part of the prosectuion story which appears to us to be most improbable. This was that the appellant went back to his own house and fetched the Dharia to inflict the injury on the head of the deceased. Apart from the fact that it is very doubtful whether the injury was inflicted with the sharp edge of the Dharia, we think that it is most unlikely that the appellant would have thought of coming back to the scene of offence after having gone to his own house when there were three men hostile to him who were not quite unarmed, as injuries on his own body show.
21. In the present case, when accused came duly armed all the way from their village, which is 5 kms. away, to the deli of P.W. 1 and gave abuses to the prosecution side, who were singing Garba being Navratri, it cannot be inferred to say that the arrival of the accused was without pre-meditation and there was a sudden fight in the heat of passion without taking undue advantage or acting in a cruel manner. On the contrary, from the prosecution evidence, it is clear that the accused came with pre-meditation and took undue advantage of prosectuion witnesses being unarmed and were taken by surpirse by their presence at their deli. Thus, in the facts of the present case, the principle laid down in this judgment is not applicable.
22. Mr. Shethna has also relied on a judgment in the case of Dharman v. State of Punjab AIR 1957 SC 325xx. In the said case, the Court has found from the testimony of witnesses that deceased party was also armed with dangerous weapons and when two such contending parties, each armed with sharp edged weapons, clashed and in the course of a free-fight injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner. On this finding of fact, it is held that the case against the appellant clearly falls within Exception 4 of Section 300 of the I.P.C. It will be pertinent to note that in this very judgment, in para 7, it is observed that it would be otherwise if the deceased and his party were unarmed or armed with weapons which were not lethal or dangerous and the accused’s party used sharp weapons. This observation governs the present case. In our opinion, the deceased and his party were unarmed and the accused party used sharp weapons like dharia, spear and axe. Therefore, the accused have acted in a cruel and unusual manner. Therefore, in our opinion, the facts of this judgment, on the contrary helps the prosecution than the defence.
23. Mr. Shethna has relied on a judgment in the case of Jumman v. State of Punjab . In that case also, a mutual conflict developed and there was no reliable and acceptable evidence as to how the conflict started and as to who was the aggressor and it was, therefore, held to be a case of sudden fight and conflict and conviction was converted from Section 302 to Section 304 Part I.I. the present case, there is reliable and acceptable evidence to show that not only there was no mutual conflict instantly developed, but it is the accused who deliberately came to the house of the prosecution witnesses and assaulted the deceased. Thus, in our opinion, this judgment is not of any assistance to the defence.
24. Mr. Shethna relied on a judgment in the case of Hem Raj v. The State (Delhi Administration) . The established facts there were as under:
All these three witnesses consistently testify that the appellant stabbed the deceased with a knife. As the occurrence had taken place in broad day light, the question of identity of the appellant does not arise. On carefully scanning the evidence of these three witnesses, we, without any reservation, agree with the concurrent findings of the Courts below that it was the appellant and appellant alone who inflicted the injury on the deceased.
The only question that remained to be considered on the established facts of the case was whether the offence committed by the appellant is the one punishable under Section 302 I.P.C. It was also found there that the true and accurate version of the prosecution as to the origin and genesis of the occurrence is not brought out clearly. It was also found that nonetheless, it is inferable from the circumstances that the occurrence had happened in a spur of moment and in the heat of passion upon a sudden quarrel. It was also found there that it is clear that it was during the course of the sudden quarrel the appellant gave a single stab which unfortunately landed on the chest of the deceased, causing an injury, which in the opinion of the Medical Officer was sufficient in the ordinary course of nature to cause death. In view of the said facts, it is observed there:
As the totality of the established facts and circumstances do show that the occurrence had happened most unexpectedly in a sudden quarrel and without premeditation during the course of which the appellant caused a solitary injury, he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury; but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III of Section 300 I.P.C. will be attracted.
25. Mr. Shethna has relied on a judgment in the case of Gurmail Singh and Ors. v. State of Punjab . There in our opinion, the facts are self-eloquent to bring the case under Section 304 Part II of I.P.C. The facts are as under:
The facts found by the High Court are that on an indecent joke being cut by accused No. 4 with Jagir Kaur, wife of P.W. Bogha Singh on the day previous to the date of occurrence, P.W. Bogha Singh and his brother P.W. Gura Singh both went to the house of the accused to complain against the misbehaviour of accused No. 4. That is the genesis of the quarrel. Dispute thus was between Bogha Singh and Gura Singh on the one hand and the accused on the other. Deceased Tej Singh was nowhere in the picture. There was no animosity against him. There could not have been even a passing thought of causing any injury to Tej Singh. The High Court found as a matter of fact that Tej Singh appeared on the scene after the accused assaulted Bogha Singh and Gura Singh. In fact, according to the High Court when Tej Singh attempted to intervene to save Bogha Singh and Gura Singh from further harm, a blow with a barchha was given by accused No. 1 Gurmail Singh, which landed on Tej Singh. There is nothing to indicate in the evidence that Gurmail Singh ever intended to cause any injury to Tej Singh assuming transmission of malice is inferable… We are of the opinion that in the facts found by the High Court it could not be said that accused No. 1 Gurmail Singh intended to cause that particular bodily injury which in fact was found to have been caused. May be, the injury inflicted may have been found to be sufficient in the ordinary course of nature to cause death. What ought to be found is that the injury found to be present was the injury that was intended to be inflicted. It is difficult to say with confidence, in the present case, keeping in view the facts found by the High Court that accused No. 1 Gurmail Singh intended to cause that very injury which was found to be fatal.
Thus, in the facts of the present case, the observations in the said judgment are also not of any assistance to the defence.
26. Mr. Shethna has also relied on a judgment in the case of Ram Karan and Ors. v. State of Uttar Pradesh (AIR 1992 SC 1185). There, the admitted facts are that the entire occurrence seems to have been the result of a chronic land dispute between the parties in which several commissions were issued and which ultimately proved futile. The prosecution has no doubt proved that the two persons were killed at the hands of the accused and that the occurrence had taken place while the Commissioners were present at the spot though they were not able to see the actual assault and were, therefore, not in a position to depose the detailed manner in which the assault had taken place. There, it is also found that “we find no evidence of any intention to kill the two deceased on the part of the accused because the occurrence itself had taken place suddenly when, to begin with, the entire episode started for the particular purpose of partitioning the land by the Commissioners who had visited the village”. Then it is held that Exception 4 of Section 300 I.P.C. is attracted and the offence of murder would be reduced to culpable homicide in respect of accused Sunil Kumar and Ved Prakash. In the instant case, the incident has not taken place suddenly. On the contrary, the episode begins from the threat of compelling by criminal force to withdraw the complaint filed by prosecution side against accused No. 1 and two others. Therefore, this judgment also is of no assistance to the defence.
27. Mr. Shethna has relied on a judgment in the case of Surinder Kumar v. Union Territory, Chandigarh . There, the Supreme Court has held in para 6 as under:
To invoke this exception, four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no pre-meditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.
The requirements to invoke Exception 4 to Section 300 I.P.C. were very much satisfied in that case. However, in the instant case, there is not a sudden fight; there was a pre-meditation; the act was not done in a heat of passion and the assailant had taken undue advantage or has acted in a cruel manner inasmuch as they attacked persons who were doing prayer by Garbas. In the instant case, we would like to say, at the cost of repetition, that accused duly armed with deadly weapons had gone to the residence of prosectuion side with a view to make them understand the result of the threat to withdraw the complaint. Thus, in view of the facts of the present case, this judgment of the Supreme Court is also not of any assistance to the defence.
28. Mr. Shethna has also relied on a judgment in the case of Mathew Alias Natgacgab v. State of Kerala . There, it is clearly found that accused was provoked by the removal of his child, Jiji, from the residence of P.W. 4 where she was kept and on account of that provocation, a quarrel had ensued between him and his father -in-law in the afternoon and later when they accidentally met at the shop of P.W. 2. In the course of the quarrel there was a heated argument followed by a scuffle and thereafter the knife wounds. In the backdrop of these facts, the trial Court thought that the case fell within clause Thirdly of Section 300 I.P.C. and awarded a sentence of rigorous imprisonment for six years. The High Court on a re-appreciation of the evidence concluded as under:
There was no sudden fight in the heat of passion upon a sudden quarrel. The attack was all one-sided. Considering the manner of attack, the nature of the injuries caused, the parts of the body chosen for the attack and the type of weapon used, there need not be any hesitation to hold that the offence committed by the appellant is nothing short of murder.
However, Supreme Court found that there was a sudden fight which led to grappling. Both of them fell on the ground and it was in that heat of the moment that the appellant whipped out a knife which he was carrying and caused the injuries in question and the judgment rendered by the Sessions Court came to be confirmed on setting aside the judgment of the High Court. But, it is clear that in that case, there was a sudden fight in the heat of passion upon a sudden quarrel, which is absent in the present case.
29. Mr. Shethna relied on a judgment in the case of Jagtar Singh v. State of Punjab and contended that the case of the accused would fall under Section 304 Part II of I.P.C. in view of the principle laid down in that judgment. In that case, the quarrel took place on the spur of moment. Appellant never expected to meet the deceased. When the deceased was just passing by the road in front of the house of the appellant, his forehead dashed with the parnala of the house of the appellant which provoked the deceased to remonsrate the appellant. There was exchange of abuses and at that time appellant gave a blow with a knife, which landed on the chest of the deceased. In view of these facts, Supreme Court held that the circumstances in which the incident occurred would clearly negative any suggestion of pre-meditation. It was in a sudden quarrel to some extent provoked by the deceased, that the appellant gave one blow with a knife…. we cannot confidently say that the appellant intended to cause that particular injury which is shown to have caused death. There was no pre-meditation. There was no malice. The meeting was a chance meeting. The cause of quarrel though trivial was just sudden and in this background, the appellant, a very young man, gave one blow. He could not be imputed with the intention to cause death or the intention to cause that particular injury which has proved fatal and the conviction under Section 302 I.P.C. was set aside and the appellant there was convicted under Section 304 Part II I.P.C. So far as the facts of the present case are concerned, facts which were present in the aforesaid Supreme Court case to convert the conviction to Section 304 Part II from Section 302 I.P.C, are absent. It is in evidence that there was pre-meditation; there was malice; the meeting was not a chance one and the cause of quarrel was not just sudden. Accused from the village at the distance of 5 kms. away came duly armed with lethal weapons to materialise their threat was common object of their assembly, as the complainant party has not withdrawn the complaint filed against accused No. 1 and two others. Thus, in our opinion, the ratio of Jagtar Singh’s case (supra) is not attracted in the facts and circumstances of the present case.
30. It is clear from the facts of each case referred to and relied upon by the Learned Counsel for the accused that in each case it was found that there was sudden fight in the heat of passion on sudden quarrel and in the facts of each case, it was found that conviction under Section 302 I.P.C. was not proper and was converted to one under Section 304 Part II of I.P.C. However, in the present case, there is no question of sudden fight in the heat of passion on a sudden quarrel. On the contrary, it is clear from the evidence that it is the accused who deliberately went to the house of prosecution witnesses with a previous intimation to enforce the earlier threat to withdraw a criminal complaint filed by prosecution side against accused No. 1 and two others. Thus, none of the judgments referred to by the Learned Counsel for the defence is of any assistance to them.
31. Learned A.P.P. Mr. Divetia relied on a judgment in the case of Sone Lal and Ors. v. State of U.P. , where it is held that “aggressors, even if they receive injuries from the victims of their aggression cannot have the right of private defence”. It is found there that appellant were aggressors; occurrence took place on the land in front of the house of P.W. 1 Pahelwan, who was in possession therefor; and that P.W. 1 and deceased had the right of private defence of property and person and they did exercise that right. In the present case, accused are the aggressors who have gone to the residence of prosecution side; they were armed and their intention was to overawe the prosecution side to withdraw the criminal complaint filed by them.
32. Learned Counsel for the accused has contended before us that in the facts and circumstances of the present case, Section 149 I.P.C. is not attracted for accused Nos. 2 to 7 and in view of the fact that only one injury is caused on the person of Desur, case of accused No. 1 will not be governed by Section 302 I.P.C. Section 300, Clause 3 reads as under:
Except in the cases hereinafter excepted, culpable homicide is murder… if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death;
The question, therefore, is whether the accused can be said to have caused the injury with an intention to cause the death of deceased. The totality of the facts and circumstances do show that the occurrence had happened expectedly and deliberately with pre-meditation, during the course of which accused No. 1 caused a solitary injury. Accused No. 1 caused the injury with a spear on the person of the deceased. Said injury was caused with an intention of causing bodily injury and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It is not the case of accused No. 1 that even if he intended to cause injury, he intended to cause the injury at some other part of the body which landed on the chest. It is not the case of the accused No. 1 that it was done but not with an intention of causing bodily injury. Causing injury with a spear on a standing man would in all probability fall on chest and it has landed on the chest. This act falls within the purview of clause thirdly of Section 300 I.P.C. Therefore, we do not find any substance in the contention that the case of the accused does not fall in clause thirdly of Section 300 I.P.C.
33. Learned Counsel contended that accused No. 1 has given a spear blow and, therefore, his case would fall in clause thirdly of Section 300 I.P.C, and punishable under Section 302 I.P.C. Therefore, Mr. Shethna contended that accused reached the house of prosecution side and after there being some verbal exchange, accused No. 1 gave a spear blow, which fell on the chest of Desur, who died as a result of that injury. In view of these facts, inference of not knowing that the injury is likely to cause death, cannot be drawn. To take out a case from Clause 3 of Section 300 I.P.C., Supreme Court in the case of Virsa Singh v. State of Punjab has rightly laid down certain principles. The Supreme has held there as under:
11. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he doesn’t know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense; the kind of enquiry that “twelve good men and true” could readily appreciate and understand.
12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 “thirdly”;
First, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved; These are purely objective investigations;
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these elements are proved to be present, the enquiry proceeds further, and
Fourthly, it must be proved that the injury of the type just described made up to the three elements set up above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout), the offence is murder under Section 300 “thirdly”. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to turn around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.
14. xxx
15. …That is exactly the position here. No evidence or explanation is given about why the appellant thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three places. In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and another conclusion is reasonably possible in this case, and in any case it is a question of fact), the rest is a matter of objective discrimination, from the medical and other evidence about the nature and seriousness of the injury.
In the instant case, there is no evidence, nor explanation given by the accused No. 1 as to why he inflicted a spear blow on the chest of the deceased. From the medical evidence, it is clear that said spear blow was given with a force that it pierced the medial border of the left lung. In the absence of evidence or reasonable explanation that accused No. 1 did not intend to inflict spear blow on the chest with a degree of force sufficient to pierce in the medial border of the left lung, or indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. No other conclusion is reasonably possible in this case other than the accused No. 1 inflicted the injury on the chest. Thus, case of accused No. 1 squarely falls within Clause 3 of Section 300 I.P.C. and, in our opinion, he has been rightly convicted under Section 302 of I.P.C.
34. Mr. Shethna further contended that unlawful assembly had no common object to commit murder of anybody in the facts and circumstances of the case. At the most, the common object was to compel by force to withdraw the criminal complaint filed by the prosecution side against accused No. 1 and two others and if a member of the unlawful assembly in furtherance of the common object of compelling the prosecution side to withdraw the criminal complaint, commits the murder of someone, then all the members of the unlawful assembly cannot be said to have a common object to commit the murder and be held guilty under Section 302 read with Section 149 I.P.C. To substantiate this argument, Mr. Shethna relied on a judgment in the case of Allauddin Maian and Ors. v. State of Bihar . There, the prosecution case was that:
On the afternoon of 25th July 1984 around 4-30 p.m. when P.W. 6 Baharan Mian was sitting at the entrance of his house, the aforesaid six accused persons came from the west armed with deadly weapons; accused Nos. 1 and 2 were carrying ‘farsas’, accused Nos. 3 and 4 were armed with spears (bhalas) and accused Nos. 5 and 6 were armed with sticks (lathis). On seeing them, P.W. 6 got up and went to the osri (verandah) of his house. Accused No. 3 began to untie the buffalo tethered in front of the house while the other accused persons showered abuses on P.W. 6, to which the latter objected. Thereupon, accused Nos. 4 and 6 shouted “Sale ko jan se mar do”. Immediately thereafter, accused Nos. 1 and 2 moved menacingly towards P.W. 6. The two infants Sahana Khatoon and Chand Tara were then playing in the “dalan” outside the western room. On seeing accused Nos. 1 and 2 approaching him duly armed with farsas, P.W. 6 apprehended trouble and ran into the adjoining roon to arm himself with a spear. His wife P.W. 5 Laila Khatun, who was in the room, however, prevented him from going out for fear that he may be done to death by the accused persons. Realising that P.W. 6 had entered the inner room and was prevented by his wife from coming out, accused No. 1 gave farsa blows on the head, abdomen and left thumb of Sahana Khatoon causing serious injuries. Accused No. 2 gave one farsa blow on the head of infant Chand Tara. The neighours P.W. 2 Ful Mohammad Mian, P.W. 3. Ali Asgar, P.W. 4 Vidya Giri and others, namely, Jalauddin Ahmad, Sadik Mian, etc. intervened, pacified the assailants and sent them away. After the assailants had left the scene of occurrence, the two injured girls were removed to the city dispensary by the where the First Information Report of P.W. 6 was recorded at about 6-45 P.M. Unfortunately, Sahana Khatoon died shortly after she was admitted to the dispensary. Her younger sister Chand Tara succumbed to her injuries on 23rd August 1985. Immediately after the two injured were removed to the dispensary for treatment, P.W. 7 Dr. Haliwant Singh who examined Sahana Khatoon noted that she had a sharp cutting injury on the anterior half of the head causing a fracture of cranial bone with a brain substance protruding out, a sharp cutting injury on the left illiac fossa and a sharp cutting injury on the left thumb and left index finger. P.W. 1 Dr. Anil Kumar Verma, the Senior Assistant Surgeon in Siwan Sadar Hospital, performed the autopsy on the dead body of Sahana Khatoon on the afternoon on 26th July 1985. Since the fact that Sahana Khatoon died a homicidal death is not in dispute, we need not set out the findings, recorded by P.W. 1 in his post-mortem report. Suffice it to say that in the opinion of P.W. 1 death was due to shock and hemorrhage resulting from the injuries caused to the victim with a farsa.
35. The question was whether the said act of killing two girls was in prosecution of the common object of that assembly or the act done is such as is to be committed in prosecution of the common object of that assembly? While considering this question, the Supreme Court observed after referring to Section 149 of I.P.C. as under:
Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly, the prosecution must prove that the act of constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the 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 strictly 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 prsecution 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 I.P.C. In the present case, the common object of the unlawful assembly as alleged in the charge was to kill P.W. 6 Baharan Mian. To accomplish that objective, accused Nos. 1 and 2 went after P.W. 6. Sensing danger, P.W. 6 ran into the adjoining room to fetch a spear to defend himself. His wife P.W. 5, however, blocked his way and did not permit him to go out. When accused Nos. 1 and 2 realized that P.W. 6 was beyond their reach, they, frustrated at their failure to accomplish their mission, wielded their weapons on the innocent girls, who were playing in the “Dalan”. The common object having thus been frustrated, accused Nos. 1 and 2 took out their wrath on the innocent girls which was no part of the common object of the unlawful assembly. It was not necessary to kill these girls to accomplish their object of killing P.W. 6, as these two girls had not prevented them from reaching P.W. 6. The Learned Counsel for the accused, therefore, rightly submitted that while accused Nos. 1 and 2 can be punished for their individual acts committed after the common object stood frustrated and abandoned on P.W. 6 placing himself beyond their reach, the other members of the unlawful assembly could not be punished for the acts of accused Nos. 1 and 2 as the killing of the girls was not part of the common object of the assembly. Once P.W. 6 was beyond the reach of his two tormenters, the common object to kill him stood frustrated and whatever the individual members did thereafter could not be said to have been done in prosecution of the common object of the assembly. 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, 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 under Section 149 I.PC. In the instant case, however, the members constituting the unlawful assembly had gone to the house of P.W. 6 to kill him. That was the common object of the unlawful assembly. For accomplishing that common object, it was not necessary to kill the two girls who were not a hindrance to accused Nos. 1 and 2 accomplishing their common object. We are, therefore, of the opinion that accused Nos. 3 to 6 cannot be convicted for the injuries caused to the two minor girls by accused Nos. 1 and 2 with the aid of Section 149 I.P.C..
36. On reading the aforesaid observations, it is clear that to hold the other member of the unlawful assembly vicariously liable for the act done by one them, there must be a nexus between the common object and the act 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. 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 the 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 under Section 149 I.P.C.
37. In the instant case, each member of the unlawful assembly, i.e., each of the accused, very well knew that their common object is to compel by either criminal force or show of criminal force to withdraw the criminal complaint filed by the prosecution side. They had given a threat or intimidation much in advance to the prosecution side to withdraw the said complaint. When that intimidation was given, the prosecution side on the contrary took advice of a lawyer and filed a Chapter Case. This means that they did not submit to the threat. As their threat to the prosecution side to withdraw the criminal complaint filed by them did not materialise, the accused had gone to the place of prosecution side duly armed with deadly weapons with a view to achieve their object and it is clear that their object of withdrawing the complaint could not be achieved as the complaint could not be withdrawn at the residence of someone, but to use force and as a consequence of not withdrawing, it can be said that their purpose was to punish them for not submitting to their threat. It is clear in this case that ordinary assaults have not worked to make them afraid and some higher degree of force was required and that may be assault or killing as the circumstance then may require. Here, killing was the only mode available to them as other lesser types of assaults have failed. Thus, there is a nexus between the common object and the offence committed, i.e., of murder by accused No. 1 and the same is committed to accomplish the common object and, therefore, every member of the assembly would be liable for the same. Thus, the principle laid down in Allauddin’s case (supra), in our opinion, is attracted in the present case and all the accused shall be liable for the charge under Section 302 read with Section 149 I.P.C.
38. Mr. Shethna has also relied on a judgment in the case of Puran v. State of Rajasthan, . Relying on this judgment, Mr. Shethna contended that Section 149 of I.P.C. cannot be invoked in the case of sudden mutual fight between the parties. In the case of sudden mutual fight between the parties, i.e., of the accused and the deceased, Section 149 of I.P.C. cannot be invoked for the simple reason that Section 149 contemplates formation of an unlawful assembly and the offence is committed by that assembly in prosecution of the common object. When there is a sudden and mutual fight, there is no unlawful assembly in the initial stage nor even subsequent thereto. There the parties gather initially for some innocent purpose but then the situation so changes and there is a sudden mutual fight between them. Initially, none of them had even an idea of there being fight at all, as they had assembly for any lawful purpose. Thus, in the case of sudden mutual fight, Section 149 I.P.C. is not attracted, as there is no formation of unlawful assembly for any object at the relevant time. Applicability of Section 149 anticipates formation of unlawful assembly, which is absent when a sudden mutual fight takes place between the two groups. However, in the facts of the present case, this judgment is of no assistance to the Learned Counsel for the defence.
39. Learned A.P.P. Mr. Divetia contended that all the accused entertained common object. It will be pertinent to note that accused No. 2 is the father of accused No. 1 and accused No. 6. Accused Nos. 4, 5 and 7 are cousins while accused No. 3 is their acquaintance. They all came together from their village Tarodi to Bhadrod duly armed with deadly weapons in the evening hours of 9-00 p.m. and also left together the scene of offence. Accused No. 2 injured Desur; accused Nos. 2, 3 and 6 have injured P.W. 5, 2 and 7 respectively. Accused Nos. 5 to 7 are injured and accused No. 4 was present when a threat was given at the bus stand before all the accused reached to the deli of P.W. 1. This conduct by itself suggests that their presence at the scene of offence was not innocent. They were present in the assembly and each of them had done something or omitted to do something in furtherance of their common object which makes him a member of the unlawful assembly. It is also clear from the evidence that not only they constituted unlawful assembly, but entertained common object as defined in Section 141 of I.P.C. From the evidence, it is clear that none of the members of the said assembly, i.e., none of the accused, was merely a passive witness and had joined the assembly out of curiosity without intending to entertain the common object of the assembly. As different offences are committed by the accused Nos. 1, 2, 3 and 6 in furtherance of their common object of the unlawful assembly, each of them is liable for the offence under Section 149 I.P.C. This contention of Mr. Divetia is supported by the judgment in the case of Masalti v. State of Uttar Pradesh wherein the relevant observation reads as under:
In fact, Section 149 makes it clear 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 time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.
Mr. Shethna, Learned Counsel for the accused, has contended that as per the charge, at the most common intention would be to compel the prosecution to withdraw forcibly the criminal case against the accused. But as discussed earlier, use of force was not with a view to compel the prosecution side simpliciter to withdraw the criminal case and if they do not withdraw the same, further act of injuring the witnesses resulting in murder of Desur was a probable out come of their common object. Thus, every member of the unlawful assembly had a common object to forcibly compel the prosecution side to withdraw the complaint filed by them against accused No. 1 and two others and in furtherance of the same, deceased Desur came to be assaulted by accused No. 1 and was killed and P.W. 1, 5 and 7 were injured. This was in furtherance of their common object and all the members of the assembly knew that the said offence is committed in furtherance of the common object and they also very well knew in advance that an offence was likely to be committed in prosecution of that object. Thus, there is no question of common intention, but there was a common object and the act committed by the accused was with a view to accomplish the common object of their unlawful assembly and, therefore, every person, i.e., all the accused, who were engaged in prosecuting the same object, will be guilty of an act which fulfils or tends to fulfil the object which he is himself engaged in prosecuting in the circumstances mentioned in the section. Thus, in view of the observations in the case of Sheo Mahadev Singh v. State of Bihar the circumstances showed that the assault on P.W. 1, 5 and 7 and murder of Desur took place in the same transaction because the members of the unlawful assembly attacked prosecution party in furtherance of their common object to forcibly compel them to withdraw the complaint. It is also clear that all the members of the assembly were armed with deadly weapons and it can be said that they knew that the murder was likely to be committed in prosecution of the common object and they did so and, therefore, they are guilty of charge under Section 302 read with Section 149 I.P.C.
40. In view of the above discussion, it is clear that this is neither a case of ‘ free-fight, nor any of the accused is entitled to a plea of self-defence; nor a case of sudden quarrel. This is a case of pre-meditation and accused are the aggressors and were armed with deadly weapons and they have gone to the place of the victims side where victims were unarmed and singing Garba peacefully near their deli. Therefore, in our opinion, the conviction, as held by the learned Judge of the accused No. 1 under Section 302 and accused Nos. 2 to 7 under Section 302 read with Section 149 I.P.C. as also of all the accused under Sections 147 and 148 of I.P.C. does not call for any interference at our hands. The learned Judge has also rightly found the accused guilty under Sections 326, 324 and 323 of I.P.C. but has rightly not awarded sentences separately, as they are found guilty of the offences referred above.
In the result, the appeal fails and is dismissed.