JUDGMENT
R.P. Gupta, J.
1. The appellant, in this case, has been convicted by Additional Sessions Judge, Khurai, by impugned judgment dated 16-1-1987 for having committed offences under section 329 read with section 149 and section 148, Indian Penal Code. They have been sentenced to R.I. for three years and fine of Rs. 1,000/- and in default of which, R.I. for six months each for the offence under section 329 read with section 149, Indian Penal Code. They have also been sentenced to R.I. for one year for the offence under section 148, Indian Penal Code. Both the sentences have been ordered to run concurrently.
2. The judgment was sequel to Sessions Trial No. 81/86.
3. The trial Court has found that these two appellants along with 3 others wanted to extort Rs. 400/- from complainant Sudeep Kumar (P.W. 1). This happened when Sudeep Kumar was closing the shutters of his godown on 12-10-1985 at about 12.30 p.m. Five persons had approached him and wanted him to shell out money. On refusal, they took out knives and threatened him that if he did not give them money, he would be killed. He persisted in his refusal. Three of them including these two appellants stabbed him on portions below lower abdomen on the lateral and inner side of thighs. The second injury caused a cut in a vein resulting in bleeding. He would have bled to death, but for timely medical intervention, he was operated upon and saved. The three others who were co-accused with these appellants were Babli @ Ramesh, Prakash and Satya Prakash Brahmin, Raju @ Rajendra. Those three have been given benefit of doubt and acquitted as they had not been named in F.I.R. and no Test Identification Parade about them has been held, but these two appellants were named in F.I.R. and were known to the victims.
4. The finding of guilt is based on the testimony of Sudeep Kumar (PW 1) and medical evidence of Dr. Munni Shroti (PW. 12) who examined the injured Sudeep on 13-10-1985 at 12.30 a.m. (that is the night between 12th and 13th October, 1985). She had noticed three cut wounds which had already been stitched. These were as under:-
(i) A cut stitched wound 3 cm. x .5 cm. oblique 6 cm. below and 3 cm. lateral to the anterior superior spine.
(ii) A stitched wound 4 cm. x .5 cm. postero lateral aspect at thigh just lateral to wound No. 1.
(iii) A stitched wound 2.5 cm. in size 1.5 cm. below and 4 cms. medial to postero inferior iliac spine in the mid line.
A bleeding vessel had been cut as part of wound No. 2. This was opined to be dangerous to life, but for medical management done by the Doctor. Injuries have been found to be caused within 24 hours. Injury Nos. 1 and 3 were simple in nature.
The other medical evidence consists of statement of Dr. Pushpa (PW. 11) who examined Sudeep initially at 2.30 p.m. on 12-10-1985 and noticed the above three wounds as incised wounds caused by sharp edged weapons. She had referred Sudeep to Hospital at Sagar -wherefrom, he was referred to Hamidia Hospital, Bhopal, where Dr. Munni (PW. 12) examined him and managed his injuries surgically. Dr. H. S. Binda (PW. 13) was house surgeon in that hospital and Sudeep was admitted and remained in ward from 13th October, 1985 to 20th October, 1985. 600 c.c. blood has been administered along with medicines to Sudeep. Discharge ticket is proved to be Ex. P.20.
5. Apart from this, corroboration was sought from the FIR which was recorded on the statement of Sudeep, the victim, on the date of incident itself at 1.50 p.m. i.e. within 1 1/2 hours of the incident. Some other witnesses were also examined as witnesses of incident who reached the spot after Sudeep raised hue and cry after being assaulted. They were Maksood, Mohd. Hanif and one Puran. Hanif and Maksood denied having seen any part of the incident. Puran only said that 4 to 5 persons had wanted money from Sudeep near his godown. He could not identify those boys. The time was past 12 p.m. or may be about 1.30 p.m. Maksood and Hanif were with him. He saw that the boys went away and Sudeep was lying there with injuries. They had gone to Sudeep because of his cries. They brought him to factory from where he was taken to Police Station. All these witnesses were cross-examined as hostile witnesses and confronted with the previous statements where they had supported the prosecution version. The I. O. is Jivanlal (PW. 7).
6. As regards the acquitted three accused, namely Babli Parihar, Raj Thakur and Prakash; although Sudeep Kumar in his evidence in Court vouched that from amongst them, Babli had given him a knife blow on the left thigh (which was the lower of the two thigh injuries) and Prakash and Raj Thakur had held him from the back, the trial Court observed that these three accused had not been named in the FIR by Sudeep and had claimed that he had known them by face. He had further claimed that his workshop workers Hanif, Puran and Maksood had disclosed the names of these three accused to him in Hospital. However, no test identification parade of these three accused was got conducted by prosecution from Sudeep witness and that three witnesses Maksood, Puran and Hanif have not supported Sudeep in this respect. So the trial Court found that the participation of these three accused in this assault was not established beyond doubt. The trial Court further noticed that the names of these three accused were missing from the statement given by this witness Sudeep to Naib Tahsildar which is Ex. D.2. It was recorded in contemplation that Sudeep may not survive, but it has the status of a previous statement confrontable under section 145 of Evidence Act about the incident and omissions of names of these three accused were relied upon by the trial Court as Additional ground to give them benefit of doubt. So the trial Court concluded that the evidence of Sudeep regarding participation in the assault by these three accused did not have any corroboration whatsoever and so they were granted benefit of doubt.
7. The trial Court observed after giving benefit of doubt to these three accused and holding that the two appellants had definitely assaulted Sudeep who knew them from before, that since 5 persons had demanded money from Sudeep and on his refusing, they had hit him with knife. So the offence is made out against Raju Shrivastava and Vijay Shrivastava under section 148, Indian Penal Code and under section 329, Indian Penal Code read with section 149, Indian Penal Code. The trial Court had found that injury No. 2 on the person of Sudeep although dangerous to life as opined by Dr. Munni Shroti could not fall within the scope of attempt to murder under section 307, Indian Penal Code as the thigh was not a vital part of the body. The trial Court further observed that Raju Shrivastava and Vijay Shrivastava had three other companion assailants with them and one of those three had caused one injury to Sudeep and that might have been the dangerous injury. So sections 148 and 149, Indian Penal Code were attracted in spite of the fact that benefit of doubt had given to Babli Parihar and two other accused persons.
8. The learned counsel for appellants has assailed this part of the finding of learned trial Court vehemently. He urges that trial Court has gone wrong on legal principles in holding that while giving benefit of doubt to three named persons and when there was no charge of any unnamed persons having joined hands with the appellants. Sections 147, 148, 149, Indian Penal Code could not be attracted. He urges that there is distinction between a case where some named persons and some unnamed persons join unlawful assembly and it is established that some persons out of named persons and other unnamed persons (total five or more) had formed unlawful assembly and some of them caused hurt or other violence, then all could be fastened with the responsibility of having committed the crime by application of section 149, Indian Penal Code, but where the specific case of the prosecution was that the unlawful assembly consists of five particular named persons and some of them were given benefit of doubt, then the theory of some unnamed persons or unknown persons having joined, could not be introduced and section 149, Indian Penal Code or for that matter the formation of unlawful assembly could not be held as established. The argument is that evidence, at worst against these appellants, is that they caused two injuries with their knives and third injury was caused allegedly by Babli Parihar who has been given benefit of doubt. So, we do not know how it was caused. Two of the three injuries were simple in nature. We cannot assume that any one of these two accused caused grievous injury. So, giving benefit of doubt to that extent to these two appellants, it has to be held that they caused simple injuries. So their offence would be covered by section 324; Indian Penal Code. It is urged that the complainant has filed an application for compounding the offence and his statement had been recorded in this Court on 21st August, 1995, but all that statement and application have been kept on record to be considered at the final decision of appeal. It is urged that permission should be granted to compound the offence under section 324, Indian Penal Code. Of course, no permission has been given by the Court to compound the offence when the application for compounding the case was moved or when the statement was made. The learned counsel for appellant has relied upon two Supreme Court pronouncements for proposition putforth by him at the bar. These are: Mohan Singh v. State of Punjab, AIR 1963 SC 174, Maina Singh v. State of Rajasthan, AIR 1976 SC 1084. In Mohan Singh’s case three judge Bench of Supreme Court had observed as under:-
“Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and evidence are confined to the persons named in the charge and out of the persons so named, two or more are acquitted leaving before the Court less than five persons to be tried, then section 149 cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well, who were not identified and so not named. In such cases, either the trial Court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under section 149 because along with the two or three persons convicted were others who composed the unlawful assembly, but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under section 149 because on the evidence, a Court of facts is liable to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five.”
9. In the latter case of Maina Singh, the Supreme Court observed: “even if, in a case, the charge disclosed only the named persons as co-accused and the prosecution witnesses confine their testimony to them, even then, it would be permissible to come to conclusion that others named or unnamed besides those mentioned in the charge or the evidence of the prosecution witnesses, acted co-jointly with one of the charged accused if there is other evidence to lead to the conclusion, but not otherwise”. In the cited case the charge related to commission of offence of unlawful assembly by the appellant along with other named four co-accused and with no other person. The trial in fact proceeded on that basis through out, there was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person. The other four co-accused had been given benefit of doubt and had been acquitted. The Court said that in such circumstances it would not be permissible to hold that there must have been some other person along with the appellant in causing the injury to the deceased and it was as such not permissible to invoke section 34, Indian Penal Code.
10. On factual matrix, the learned counsel for appellants has urged that Sudeep, the only eye-witness in this case, who of course is the victim, has been found to be a partly reliable witness in so far as his testimony regarding the three acquitted accused has been discarded by the trial Court. So his testimony without independent corroboration should not be taken as sufficient even for the conviction of the present two appellants.
11. After perusing the evidence of Sudeep, the FIR given by him and the medical evidence, it becomes clear that he is not a partly reliable witness with regard to these two accused/appellants. His testimony in Court that these two appellants had struck him with sharp edged weapons (Knives) is corroborated by his narration in the FIR and is further corroborated by medical evidence showing the nature of injuries which he testified. A perusal of the judgment of the trial Court discloses that benefit of doubt was given to the acquitted accused regarding their identity whether they were three of the five extortionists. The reason given is that they were not named although they were residing in the neighbourhood. Their descriptions were not given, it was not stated in the FIR by Sudeep that he knew them from before except for their names, that other persons who took Sudeep to hospital being workers of his factory and knowing the three other acquitted accused persons would have disclosed their names to Sudeep, if they had seen them running and then Sudeep would have given their names in the FIR, that there was no test identification parade conducted for their arrest. For all these reasons, benefit of doubt was given to them regarding their identity. The trial Court has held that ‘there were five persons’ and not that ‘there must have been five persons’. A definite finding has been given based on evidence rather than based on conjectures or presumptions. The trial Court has given a definite finding in para-15 of Judgment that Raju Shrivastava, Virendra and three other boys demanded money from Sudeep Kumar and when he refused to pay, they assaulted him with knives.
12. The contention of the learned counsel for appellant is that the charge as well as the evidence specifically stated that these named five accused had demanded money and since the demand was not conceded they assaulted Sudeep and three of them knifed him. Sudeep has stated so. Nobody has stated that Raju Shrivastava and Virendra Shrivastava and three others assaulted Sudeep. So there is no scope for finding that three others than the acquitted accused must have been present with the two convicted appellants.
13. Such a situation in fact is dealt with by the Supreme Court in Maina Singh’s case (supra) in its observation that even if the prosecution witnesses confine their testimony only to the named persons as co-accused, still it is permissible for the trial Court to come to conclusion that others named or unnamed besides those mentioned in the charge or in evidence, acted conjointly with one of the charged accused, if there is other evidence to lead to the conclusion. So the finding has to be based on some evidence which could be even circumstantial.
14. In fact, in the present case, the Court need not have taken recourse to section 149, Indian Penal Code although the charge was under section 307 read with section 149, Indian Penal Code and section 148, Indian Penal Code. Even if the offence under section 148 was not proved the persons actually assaulting together would be liable for each others act by operation of section 34, Indian Penal Code, that is acting in furtherance of common intention. In this case, there is ample evidence that these two appellants and others approached the victim Sudeep together. They were both armed. One third person was also there with arms. They made the demand for money and on refusal of their demand, they attacked with their respective knives. They caused injuries, one of which was dangerous to life, if not treated. In fact three persons had given three knife stabs, one was below the abdomen, second was on the thigh in the groin region and third one was below that second injury. Sudeep has stated in the FIR that one stab was given by Raju Shrivastava, second by Virendra Shrivastava and third one given by third person was the lowest on the thigh. He named the third person as Babli (of course Babli’s identity has not been found to be established). The Doctor has opined that abdominal and the lowest thigh injuries were simple in nature. But the thigh injury had cut the vein leading to bleeding which could cause death. On reading the two testimonies together, it becomes clear that the injury given by Virendra Shrivastava was that which cut the vein. So one after the other three persons gave knife injuries to Sudeep and then they escaped when the people gathered. The circumstances clearly show that these two accused and their third companion who knifed Sudeep along with them, were acting in concert in order to force Sudeep to part with money. So they were acting in furtherance of their common intention. When a charge is for commission of certain offences by unlawful assembly and vicarious liabilities is sought to be fixed on a person by operation of section 149, Indian Penal Code, even if unlawful assembly is not established and more than one person are proved to have participated in the violence in furtherance of their common intention, the Court shall take resort to section 34, Indian Penal Code for fastening vicarious liability for each others act. In the present case, in the FIR, Sudeep said that there were these two appellants and three more boys who were extortionists and assailants. In evidence, he named five including these two appellants. He also particularly named these two accused and a third one who gave him knife injuries. The medical evidence is that there were three knife injuries to Sudeep. The identity of other three accused than the appellants, was not believed by trial Court on the theory of benefit of doubt to them. So in spite of acquittal of the three accused, the circumstances clearly show that they were more than these two accused, one of whom was also a co-assailant. The trial Court was therefore justified within the scope of observations of Supreme Court in Maina Singh’s case to reach a conclusion that these two accused and three others had assaulted Sudeep for non-fulfilment of demand of Rs. 400/-. So the arguments of learned counsel for appellants that resort could not be had to section 149, Indian Penal Code or that offence under section 148, Indian Penal Code was not established against the appellant, is not acceptable.
15. However, in the alternative, this Court finds that it is fully established that those who assaulted Sudeep did so in furtherance of their common intention also and in common concert. So they are liable for each other’s stab under section 34, Indian Penal Code also. Although, there is evidence in this case that grievous hurt was caused by the stab given by Virendra Shrivastava, yet legally this finding is not necessary as to who caused the grievous hurt.
16. In the case of Yashwant v. State of Maharashtra, AIR 1973 SC 337, it was held that in a case where there was evidence that the man who used Axe on the victim was a man who looked like the appellant, but as the Court was not satisfied that the identity of that person who used the Axe on victim, was satisfactorily established that of Brahmanand appellant, it took the view that remaining accused could be convicted with the aid of section 34 of Indian Penal Code for the offence committed by them.
17. In the present case, the trial Court has given benefit of doubt regarding the identity of acquitted accused, but has still held that there were five persons who assaulted. This finding based on evidence will be in consonance with the observations of Supreme Court in Maina Singh’s case and in the alternative conviction would be justified with the aid of section 34, Indian Penal Code as was observed by the Supreme Court, in Yashwant Singh’s case.
18. The learned counsel for appellant had argued that it was not certain that grievous injury was caused by any of these two appellants, that it might have been caused by a third assailant who according to Sudeep, in Court statement, was Babli, but Babli has been acquitted, and so whatever was done by that third person or Babli could not be vicarious responsibility of these two appellants. These arguments lose sight of the principle propounded by the Supreme Court in the case of Yashwant Singh’s referred above. The accused Babli was given benefit of doubt about the identity and nothing more. It has not been held that a third person was not there who caused the injury. It was not the case of prosecution that these two appellants had caused three injuries. So whoever the third person was, these two accused appellants were responsible for his acts also, they were all responsible for each others act. I have already discussed that there is sufficient evidence to establish that the grievous injury was caused by Virendra Shrivastava. Each of the two appellants has vicarious criminal liability also for injuries caused by the other and by any unknown companion. So in no circumstance, they can evade conviction for the grievous hurt caused to victim.
19. In view of the above discussion, I reach the conclusion that the conviction of the appellants for the offence punishable under section 148, Indian Penal Code as well as section 329, Indian Penal Code read with section 149, Indian Penal Code is just and proper. In the alternative, even if the resort is not had to sections 148 and 149, Indian Penal Code, these two appellants are liable to be convicted for the offence punishable under section 329 read with section 34, Indian Penal Code. The sentence meted to them is R. I. for 3 years and fine of Rs. 1,000/-. The sentence to them cannot be less even if they are held liable for offence punishable under section 329, Indian Penal Code read with section 34, Indian Penal Code.
20. The learned counsel for appellant made a last resort argument that for application of section 329, Indian Penal Code, actual extortion should be there. This argument, however, is misconceived and the learned counsel could not support it with any Authority. It is against the very wording of section 329, Indian Penal Code which discloses the scope of this offence:-
Section 329, Indian Penal Code is in following terms:-
“Whoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer, or from any person interested in the sufferer, any property or valuable security, or of constraining the sufferer or any person interested in such sufferer to do anything that is illegal or which may facilitate the commission of an offence, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
In this provision the words “for the purposes of extorting” are most important to meet the argument of learned counsel for appellant. This will include an attempt to extort also. This provision would be attracted even if extortion is not complete. Section 329, Indian Penal Code deals with grievous hurts caused for the particular purpose that is extortion or other purposes mentioned in the section. The offence of extortion may or may not have been completed. So this assertion of the learned counsel for appellant does not help.
21. The net result is that I find no force in this appeal. The conviction and sentence against the appellants are confirmed. The appellants are found guilty for the offences punishable under section 329, Indian Penal Code read with section 149, Indian Penal Code as well as section 148, Indian Penal Code. In the alternative, they have committed offences punishable under section 329 read with section 34, Indian Penal Code. There is no justification for reducing the sentence of three years R.I. and fine of Rs. 1,000/- and in default of fine R.I. for six months. The sentence is also confirmed. The appeal is dismissed.
Warrant of confirmation be sent.
