{"id":122450,"date":"2007-10-10T00:00:00","date_gmt":"2007-10-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kishan-chand-ors-vs-state-of-u-p-on-10-october-2007"},"modified":"2019-03-10T15:41:02","modified_gmt":"2019-03-10T10:11:02","slug":"kishan-chand-ors-vs-state-of-u-p-on-10-october-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kishan-chand-ors-vs-state-of-u-p-on-10-october-2007","title":{"rendered":"Kishan Chand & Ors vs State Of U.P on 10 October, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kishan Chand & Ors vs State Of U.P on 10 October, 2007<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Harjit Singh Bedi<\/div>\n
           CASE NO.:\nAppeal (crl.)  1411 of 2007\n\nPETITIONER:\nKishan Chand & Ors\n\nRESPONDENT:\nState of U.P\n\nDATE OF JUDGMENT: 10\/10\/2007\n\nBENCH:\nS.B. Sinha & Harjit Singh Bedi\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
S.B. SINHA,  J :\n<\/p>\n
1. \tLeave granted.\n<\/p>\n
2.\tPhool Chand (Accused No. 1) was a retired Army Officer.  He was
\nallegedly allotted some land bearing plot No. 596 at village Paigamberpur
\nHamlet, Jarganwan, title whereof was in dispute.  He was in possession
\nthereof but his right to make any construction thereupon was in dispute.  His
\nearlier attempt to raise constructions on the said land had met with resistance
\nby the villagers.  They made a complaint to the officers of the Tehsil.
\nBefore the police authorities, Phool Chand is said to have given an
\nundertaking not to make any construction.\n<\/p>\n
 \tWe may place on record that he had also intended to put up
\nconstructions earlier but did not succeed.  Villagers were claiming their right
\nto make common use the land in question, viz., for keeping Ghoor of the
\nvillage folks.\n<\/p>\n
3. \tOn 3.02.1978 at about 9 a.m., the said Phool Chand armed with a
\ndouble barrel gun, his brother Kishan Chand (Accused No. 2) armed with a
\nsingle barrel gun in the company Bhagauti (Accused No. 3), Badadin
\n(Accused No. 4) and Sheo Prasad (Accused No. 5) who were said to have
\nbeen armed with lathis came to the land in question.  They started
\nconstruction thereupon with the help of hired labourers.  A large number of
\nvillagers assembled at the place.  Accused were requested not to make any
\nconstruction till the disputes between them were determined by the
\ncompetent court.\n<\/p>\n
4. \tAmongst the villagers, Ram Asrey (since deceased), his son Mishri
\nLal (first informant), Hardev, Suraj Lal, Ram Singh, Ram Dass, Vishram,
\nRam Saran, Shiv Pal, Mohan Lal, Shiv Prasad, Umrao, Pyare, Ram Lakhan,
\nKaram Ali and Ram Prasad were present.  Allegedly, Phool Chand and
\nothers started abusing them.  Mishri Lal and his co-villagers asked him not
\nto do so.  Accused Nos. 3 to 5, viz., Bhagauti, Badadin and Sheo Prasad,
\nallegedly exhorted Phool Chand and Kishan Chand to shoot Mishri Lal and
\nothers whereupon Phool Chand ran towards the roof of the nearby Kothri
\nowned by Mishri Lal and from the roof thereof, he started firing.  Kishan
\nChand is also said to have fired from his gun.  Ram Asrey standing at the
\nGaliyara received a gun shot injury.  He died at the spot.  Mishri Lal and
\nothers also received firearm injuries.  One of the persons, viz., Ram Harak
\nwho had also sustained gun shot injuries breathed his last in the hospital.  On
\nreceipt of such gun shot injuries, the condition of Suraj Lal, Hardev, Mahan
\nLal, Ram Dass and Ram Singh allegedly became serious.\n<\/p>\n
 \tMishri Lal son of the deceased Ram Asrey lodged a First Information
\nReport at about 11.30 a.m. on the said date alleging death of Ram Asrey and
\nRam Harak at the hands of the accused persons and receipt of injuries by as
\nmany as 15 persons, viz.,  Mishri Lal, Pyare, Shiv Pal, Mohan Lal, Ram
\nDass, Suraj Lal, Ram Singh, Hardev, Karam Ali, Shiv Prasad, Umrao,
\nVishram, Prem Prasad, Ram Saran and Ram Lakhan.\n<\/p>\n
5.\tThe defence version in regard to the incident was that the Patta of
\nthe disputed land was executed in the name of Phool Chand in the year 1973.
\nHe allegedly had raised constructions on eastern and western wall.
\nHowever, in the year 1977, i.e., after his retirement when he was going to
\nconstruct his house thereupon, his attempt to do so was opposed by Mishri
\nLal, Hardev, deceased Ram Asrey and others.  An undertaking was said to
\nhave forcibly been taken by Lekhpal and Station House Officer of the police
\nstation.  However, at a later stage, the Tahsildar of the area allegedly
\ndirected the Station House Officer of police station Asandra to render all
\nhelp to him.  However, the said order was not complied with.  In the written
\nstatement filed by the accused persons, the incident that the had taken place
\non 3.02.1978 at about 9.00 a.m. was accepted but it was contended that
\nwhile the said Phool Chand with the help of others including hired labourers
\nstarted constructions, the deceased Ram Asrey and Ram Harak along with a
\nlarge number of persons being armed with guns and lathis reached there and
\ncaused obstructions.  Upon protest having been lodged, all of them advanced
\ntowards him with a view to kill him.  He then ran to the roof of his fathers
\nBaithaka but Ram Asrey and his companions surrounded his house.  They
\nalso entered therein.  An attempt was also made to molest Smt. Shakuntala
\nDevi, sister of Phool Chand.  Only at that time, with a view to save the
\nmodesty and honour of his sister as also save the life of other members of
\nthe family, they caused injuries to various persons.  It was alleged that an
\nendeavour was made to lodge a First Information Report by Smt. Shakuntala
\nDevi but the same was not registered.  It was further alleged that Smt.
\nShakuntala Devi came to Barabanki with her father, uncle and brother Gokul
\nChand and all of them were medically examined by a private doctor
\nwhereafter a report was sent to the District Magistrate.\n<\/p>\n
6. \tThe prosecution in support of its case examined 13 witnesses.  Mishri
\nLal (PW-1), Suraj Lal (PW-2) and Ram Saran (PW-3) examined themselves
\nas eye-witnesses to the occurrence.  They proved the genesis of the
\noccurrence as also the manner in which it took place.  Other witnesses
\nexamined by the prosecution were the doctors who had conducted post
\nmortem examination on the body of the deceased Ram Asrey and Ram
\nHarak as also examined the injuries on the body of 15 injured persons.\n<\/p>\n
7. \tThe defence examined Dr. L.K. Shukla (DW-1) who allegedly had
\nexamined Smt. Shakuntala Devi, Sri Dutt, Ramfal and Gokul Chand.  Smt.
\nShakuntala Devi examined herself as DW-2.\n<\/p>\n
8. \tThe defence story was disbelieved both by the learned Trial Judge as
\nalso the High Court.  They came to the conclusion that all the five accused
\nwere present at the place of occurrence and participated therein and used
\ntheir respective weapons to inflict injuries upon the victims in execution of
\ntheir common object and for the said purpose they had formed an unlawful
\nassembly.  The plea of right of private defence raised by the accused was
\nalso negatived.  The purported injuries found on the person of the defence
\nwitnesses and others were held to be self-inflicted ones.\n<\/p>\n
9. \tOn the aforementioned findings, Phool Chand and Kishan Chand were
\nconvicted under Sections 148, 302\/149 and 307 of the Indian Penal Code
\nand Bhagauti, Badadin and Sheo Prasad were convicted under Sections 147,
\n302\/149 and 307\/149 thereof. They were sentenced to undergo rigorous
\nimprisonment for life, four years rigorous imprisonment for attempt to
\nmurder, two years rigorous imprisonment under Section 148 of the Indian
\nPenal Code and one year rigorous imprisonment under Section 147 thereof.\n<\/p>\n
 10.\tIndisputably, Accused No. 1 Phool Chand died during pendency of
\nthe appeal in the High Court.  Accused No. 3 also is said to have died about
\nthree years back.  Kishan Chand, Badadin and Sheo Prasad are before us.\n<\/p>\n
11. \tMs. Sandhya Goswami, learned counsel appearing on behalf of the
\nappellants, took us through the evidences of Mishri Lal (PW-1), Suraj Lal
\n(PW-2) and Ram Saran (PW-3) and submitted that from the deposition of
\nthe said witnesses, it would appear that the injuries having been caused only
\nby Phool Chand (since deceased), the appellants cannot be said to have
\nformed a common object so as to attract the provisions of Section 149 of the
\nIndian Penal Code.\n<\/p>\n
 \tThe learned counsel would point out that a large number of villagers
\ntook part in the incident.  Had the appellants been present, they would have
\nalso sustained some injuries and, thus, their presence and participation in the
\noccurrence becomes doubtful.\n<\/p>\n
 \tIt was urged that Phool Chand (since deceased) had exercised his right
\nof private defence inasmuch as from the prosecution case itself it would
\nappear that there were at least 16 persons who intended to cause bodily harm
\nto the accused persons apart from outraging the modesty of Smt. Shakuntala
\nDevi.  In the event, it is found, it was urged, that the said Phool Chand
\nexceeded his right of private defence, other accused persons could not have
\nbeen convicted under Section 302\/149 of the Indian Penal Code particularly
\nwhen it has been brought on record that Phool Chand alone had climbed up
\nthe roof and fired causing the deaths.\n<\/p>\n
 \tMs. Goswami submitted that the courts below committed a manifest
\nerror in passing the impugned judgments insofar as they failed to take into
\nconsideration that the injuries had been sustained by the family of the
\naccused.\n<\/p>\n
 \tIt was further urged that in view of the finding of the High Court that
\nthe accused Phool Chand was in possession of the site and the side walls.  It
\nwas brought to our notice that the Superintendent of Police Shri Jangi had
\npassed an order (Ex. Kha-1) dated 27.01.1978 validating the possession of
\nPhool Chand after he had given an undertaking to the officer incharge.\n<\/p>\n
12. \tMr. Shail Kumar Dwivedi, learned Additional Advocate General for
\nthe State of U.P. appearing on behalf of the respondent, on the other hand,
\ntook us through the judgments of the learned Trial Judge as also the High
\nCourt and submitted that for determining the question as to whether the
\naccused shared common intention or common object, the backdrop of events
\nincluding the fact that they had tried to raise constructions earlier which had
\nbeen resisted by the villagers, the fact that the accused were armed with
\ndeadly weapons whereas the prosecution parties were absolutely unarmed,
\nthe undertaking of Accused No. 1 not to make any construction and the
\nprejudice which would be caused to the villagers if such constructions are
\nallowed to be made, viz., it will take away the right of some of the villagers
\nto take their carts through the pathway concerned, the false defence raised by
\nthe accused persons are the determination factors.\n<\/p>\n
13. \tThe land in question was allotted to Phool Chand.  He indisputably
\nwas in possession thereof.  The ownership of the land was, however,
\ndisputed.  Whether allotment in his favour was valid keeping in view the fact
\nthat the villagers in general had been claiming user of the said land for a
\nparticular purpose is not in dispute.  It is furthermore not in dispute that the
\naccused persons had made several attempts to raise constructions thereupon.
\nSuch attempts on their part had been foiled.    Accused No. 1 had also given
\nan undertaking that he would not make any construction.\n<\/p>\n
14. \tFrom the materials brought on record, it is evident that the villagers
\nnever intended to dispossess Phool Chand.  They were only resisting his
\nright to raise any constructions thereupon.  When the appellants together
\nwith Phool Chand and Accused No. 3 went to raise constructions, they were
\narmed with deadly weapons.  Accused Nos. 1 and 2 were armed with a
\ndouble barrel gun and a single barrel gun respectively, the others were
\nhaving lathis in their hands.  They had hired labourers also with them.  Only
\nwhen they started raising constructions, the deceased and the prosecution
\nwitnesses objected thereto.  It had come on record that they were not
\nrequired to raise construction till the lis is determined.  The accused persons
\ndid not listen to the said advice.  They started abusing the members of the
\nprosecution party.  They were requested not to use abusive language.  At that
\njuncture, it is alleged that Accused Nos. 3, 4 and 5 asked Accused Nos. 1
\nand 2 to kill them or to assault them.  Accused No. 1 went to the roof top of
\na house.  He was holding a double barrel gun.  He fired shots at least aiming
\nat two persons standing at two different places.  He must have fired some
\nother shots also.  Deceased No. 1 Ram Asrey was standing at the Galiyara
\nwhereas deceased No. 2 was standing near the wall towards the West of the
\nsaid Kothi.  It has been proved that Accused No. 2 also fired shots.  17
\npersons received injuries.\n<\/p>\n
 \tDr. H.C. Nigam (PW-4) who conducted the post mortem examination
\non the body of the deceased Ram Harak found the following injuries:\n<\/p>\n
(1) \tLacerated wound 3\/1\/2 cm x = cm.  Bone
\ndeep on the forehead 6 cm over the nose bridge.
\nThere was swelling on all four sides of this injury.
\nMultiple firearm entry wounds in an area of 36 cm
\nx 30 cm spread over chest and right side of
\nabdomen and on chest and left side of abdomen.
\n(2)\tMultiple firearm entry wounds on entero-
\nmedival aspect of right hand in an area of 7 cm x
\ncm (sic), 7\/1\/2 cm above right side.\n<\/p>\n
(3) \tMultiple firearm entry wounds in an area of
\n11 cm x 8 cm towards the front side of right
\nforearm 7 cm below the elbow.\n<\/p>\n
(4)\tMultiple firearm entry wounds in an area of
\n9 cm x 6\/1\/2 cm on the backside of the palm of
\nright hand,7 cm below from the wrist joint.<\/p>\n
 \tDr. Gopal Swaroop (PW-5) who conducted the post mortem
\nexamination on the body of the deceased Ram Asrey found the following
\ninjuries:\n<\/p>\n
1. \tMultiple punctured wound (caused by
\nfirearm) found over right side of face in an area of
\n8 cm x 6 cm muscle deep on which 4-5 marks of
\npellets were found, they were marks of black
\ncolour of shots whose margins were inverted.
\nThese wounds of entry were of varying size of < x
\n cm.\n<\/p>\n
2.\tMultiple punctured wounds (firearm
\nwounds) over the right side of neck in an area of
\n15 cm x 6 cm x muscle deep marks of 2-3 pellets
\nin number which were towards the inner side.\n<\/p>\n
These were inverted wound of entry of varying
\nsize of < x  cm.\n<\/p>\n
3.\tMultiple punctured wound in an area of 21
\ncm x 6 cm x muscle deep over the right shoulder in
\nthe upper limbs just below the shoulder joint of
\nblack colour.  The wounds of entry were of
\nvarying size of < cm x  cm x > cm.\n<\/p>\n
4.\tMultiple punctured wound (firearms) 42 cm
\nx 26 cm x muscle deep towards the front side of
\nright chest on which approximately mark of 50 to
\n60 pellets were present which were wounds of
\nentry whose size differed from < cm x
\ncm x > cm.<\/p>\n
\tThe injuries on the deceased, therefore, must have been caused as a
\nresult of more than one shots fired at each of them.\n<\/p>\n
 \tDr. P.N. Pandey (PW-6) examined Mishri Lal, Pyare and Shiv Pal.
\nThe following injuries were found on the body of the Mishri Lal:
\n(1) \tFirearm wound 0.5 cm x 0.4 cm on left side
\nneck 12 cm above left sterno clavicle joint.\n<\/p>\n
(2)\tLacerated wound 1 cm x 0.5 cm on left palm
\nin between middle and lateral fingers.\n<\/p>\n
(3)\tAbrasion 0.5 cm x 0.5 cm on joint of right
\nside knee.<\/p>\n
 \tOn the body of Pyare, the following injuries were found:\n<\/p>\n
(1)\tAbrasion 0.2 cm x 0.2 cm on left side back
\nof chest 10 cm away from vertebral column.\n<\/p>\n
(2)\tAbrasion 0.2 cm x 0.2 cm on inner side on
\nleft foot 6 cm beneath the knee joint.<\/p>\n
 \tThe following injuries were found on the body of Shiv Pal:\n<\/p>\n
(1)\tAbrasion 0.5 cm x 0.5 cm on left side of
\nchest 8 cm above the left nipple.\n<\/p>\n
(2)\tAbrasion 0.5 cm x 0.5 cm on left side thigh
\nupper part 35 cm above left knee joint.<\/p>\n
 \tAs regards injuries on the body of Mishri Lal, Dr. Pandey opined:\n<\/p>\n
Injury No. 1 of Mishri Lal can be caused by a
\npellet fired from rifle. Injury No. 2 can be caused
\nby some blunt weapon, for instance, lathi.  The
\nremaining injuries can be caused by pellets from
\nthe rifles of the three accused.<\/p>\n
 \tAs regards injuries on the persons of Pyare and Shiv Pal, Dr. Pandey
\nopined that the injuries were caused by friction.\n<\/p>\n
\tParticipation by all the accused in causing death of two persons and
\ninjuries sustained by others is, therefore, apparent.\n<\/p>\n
15. \tThis Court in Mizaji and Another v. The State of U.P.<\/a> [(1959) Supp
\n(1) SCR 940] opined that there are two parts of Section 149 of the Indian
\npenal Code.  To attract the first part, it was not necessary that there should
\nbe a pre-concert.  In regard to the second part, it was stated:\n<\/p>\n
Even if the offence committed is not in direct
\nprosecution of the common object of the assembly,
\nit may yet fall under Section 149 if it can be held
\nthat the offence was such as the members knew
\nwas likely to be committed. The expression know
\ndoes not mean a mere possibility, such as might or
\nmight not happen. For instance, it is a matter of
\ncommon knowledge that when in a village a body
\nof heavily armed men set out to take a woman by
\nforce, someone is likely to be killed and all the
\nmembers of the unlawful assembly must be aware
\nof that likelihood and would be guilty under the
\nsecond part of Section 149. Similarly, if a body of
\npersons go armed to take forcible possession of the
\nland, it would be equally right to say that they have
\nthe knowledge that murder is likely to be
\ncommitted if the circumstances as to the weapons
\ncarried and other conduct of the members of the
\nunlawful assembly clearly point to such knowledge
\non the part of them all<\/p>\n
16.\tIn Bishna Alias Bhiswadeb Mahato & Ors. v. State of West Bengal<\/a>
\n[(2005) 12 SCC 657 : 2005 (9) SCALE 204], this Court held :\n<\/p>\n
\tFor the purpose of attracting Section 149
\nand\/or 34 IPC, a specific overt act on the part of
\nthe accused is not necessary.  He may wait and
\nwatch.  Inaction on the part of an accused may
\nsome time go a long way to hold that he shared a
\ncommon object with others.  <\/p>\n
17. \tIn Triloki Nath and Others v. State of U.P.<\/a> [(2005) 13 SCC 323], the
\nlaw has been stated in the following terms:\n<\/p>\n
\tFor the purpose of attracting Section 149 of
\nthe IPC, it is not necessary that there should be a
\npre-concert by way of a meeting of the persons of
\nthe unlawful assembly as to the common object.  If
\na common object is adopted by all the persons and
\nshared by them, it would serve the purpose.<\/p>\n
18. \tMs. Goswami relied upon a decision of this Court in Munna Chanda
\nv. State of Assam<\/a> [(2006) 3 SCC 752] wherein the accused persons were
\nheld to have not formed any common object keeping in view the genesis of
\nthe said occurrence which took place at three different stages.  Appellants
\ntherein were involved only at the third stage.  It was in the peculiar fact
\nsituation obtaining therein this Court opined:\n<\/p>\n
\tThe appellants herein were not armed with
\nweapons.  They except Bhuttu were not parties to
\nall the  three stages of the dispute.  At the third
\nstage of the quarrel, they wanted to teach the
\ndeceased  and others a lesson. For  picking up
\nquarrel with Bhuttu, they might have become
\nagitated and asked for apologies from Moti.\n<\/p>\n
Admittedly, it was so done  at the instance of
\nNirmal, Moti was assaulted by Bhuttu at the
\ninstance of Rattan.  However, it cannot be said that
\nthey had common object of intentional killing  of
\nthe deceased.  Moti,  however, while being
\nassaulted could free himself from the grip of the
\nappellants and fled from the scene.  The deceased,
\nwas being chased not only by the appellants herein
\nbut by many others.  He was found dead next
\nmorning.  There is, however, nothing to show as to
\nwhat role the appellants either conjointly or
\nseparately played.  It is also not known as to
\nwhether if one or all of the appellants were present,
\nwhen the last blow was given. Who  are those, who
\nhad assaulted the deceased is also not known. At
\nwhose hands he received injuries is again a
\nmystery.  Neither Section 34 nor Section 149 of
\nthe Indian Penal Code is, therefore, attracted. [See
\nDharam Pal and Others v. State of Haryana<\/a>
\n(1978) 4 SCC 440 and Shambhu Kuer v. State of
\nBihar<\/a>  AIR 1982 SC 1228].<\/p>\n
19. \tRight of self-defence is a plea which is available to the accused but
\nthe burden to prove the same would be on them.\n<\/p>\n
\tThe High Court, in our opinion, committed an error in rejecting the
\nplea of self-defence raised on behalf of the accused stating that the incident
\ntook place at an open space.  There is no law that right of self-defence
\ncannot be exercised in relation to a dispute over an open space.  But the
\nfactual matrix obtaining in the instant case being absolutely different, we are
\nof the opinion that right of self-defence on the part of the accused was not
\navailable.  Accused persons were the aggressors.  They had gone to the
\nscene of occurrence with weapons.  Phool Chand and other accused, in all
\nprobability, thought that having regard to the order passed by the
\nSuperintendent of Police asking his subordinate officers to afford them
\nprotection, they could take law in his own hands.  Thus, they could raise
\nconstruction by show of force.\n<\/p>\n
 \tEvidences adduced on behalf of the prosecution in no unmistakable
\nterms point out that all the overt acts started from the side of the accused
\npersons.  They rejected the advice not to raise any construction till the
\ndispute is determined.  They started using abusive language and even when
\nasked not to do so they continued to do so.  Only when a protest was made
\nby the villagers, Accused No. 1 Phool Chand went to the roof top of a house
\nand started indiscriminating firing.  He was in army.  He was presumably a
\ngood marks man.  Shots fired by him hit the deceased on vital parts of their
\nbodies.\n<\/p>\n
20. \tIt is not the case of the appellants that the villagers intended to
\ndispossess them.  We have noticed hereinbefore that they were not armed at
\nall.  They had assembled at the place only with a view to resist the attempt
\non the part of the accused persons to raise constructions in respect whereof
\nAccused No. 1 himself had given an undertaking that he would not do so.
\nThe Superintendent of Police might have issued certain directions to the
\nSub-Inspector but indisputably the lis was pending adjudication before a
\ncompetent authority.  Accused could not have taken law in their own hands
\nonly because the Superintendent of Police has asked his police officer to
\ngive protection to him.\n<\/p>\n
21. \tIt has been found by the learned Trial Judge as also the High Court
\nthat the prosecution witnesses did not enter into their house.  The plea that
\nthe modesty of Smt. Shakuntala Devi was outraged has been rejected by
\nboth the courts.  The accused did not lodge any First Information Report in
\nthat behalf.  They, for reasons best known to them, did not go to a
\ngovernment doctor to get their purported injuries examined on their persons.
\nAlthough the offence took place in the morning of 3.02.1978, they went to
\nDW-1 only on the next day to get their purported injuries examined.  For
\nvalid and cogent reasons, the testimonies of the DWs had not been accepted.
\nThe question as to whether in a situation of this nature the right of private
\ndefence could be exercised by the accused persons must be considered
\nhaving regard to the following facts:\n<\/p>\n
(i)\tthe prosecution witnesses were not armed;\n<\/p>\n
(ii)\tthere is nothing to show that they attempted to dispossess Accused
\nNo. 1.\n<\/p>\n
(iii)\tThey did not dismantle the structures.\n<\/p>\n
(iv)\tAccused persons themselves started abusing them.\n<\/p>\n
(v)\tThey intended to establish their right of raising constructions for
\nwhich they were fully prepared.\n<\/p>\n
(vi)\tHad the matter been otherwise, the villagers would have also gone
\nto the site with arms.\n<\/p>\n
(vii)\tWhy all the five accused persons were armed has not been
\nexplained.\n<\/p>\n
22. \tThe fact that number of injuries sustained by the prosecution
\nwitnesses and the nature thereof, viz., they suffered gun shot injuries as also
\ninjuries caused by lathis, goes a long way to show that the accused persons
\nhad shared common object.\n<\/p>\n
  \tFrom the post mortem as also the injury report, it is evident that more
\nthan one gun was used for commission of the offence.  The prosecution
\nwitnesses also suffered injuries which could only be caused by lathis.  It is,
\ntherefore, a case where all the appellants together with Phool Chand had
\ntaken part in the commission of the offence.\n<\/p>\n
23. \tIn Shambhu Nath Singh and others v. State of Bihar [AIR 1960 SC
\n725], this Court opined:\n<\/p>\n
6. Section 149 of the Indian Penal Code is
\ndeclaratory of the vicarious liability of the
\nmembers of an unlawful assembly for acts done in
\nprosecution of the common object of that assembly
\nor for such offences as the members of the
\nunlawful assembly knew to be likely to be
\ncommitted in prosecution of that object. If an
\nunlawful assembly is formed with the common
\nobject of committing an offence, and if that
\noffence is committed in prosecution of the object
\nby any member of the unlawful assembly, all the
\nmembers of the assembly will be vicariously liable
\nfor that offence even if one or more, but not all
\ncommitted the offence. Again, if an offence is
\ncommitted by a member of an unlawful assembly
\nand that offence is one which the members of the
\nunlawful assembly knew to be likely to be
\ncommitted in prosecution of the common object,
\nevery member who had that knowledge will be
\nguilty of the offence so committed. But “members
\nof an unlawful assembly may have a community of
\nobject upto a certain point, beyond which they may
\ndiffer in their objects, and the knowledge
\npossessed by each member of what is likely to be
\ncommitted in prosecution of their common object
\nmay vary not only according to the information at
\nhis command, but also according to the extent to
\nwhich he shares the community of object and as a
\nconsequence of this the effect of Section 149 of the
\nIndian Penal Code may be different on different
\nmembers of the same unlawful assembly.”\n<\/p>\n
Jahiruddin v. Queen Empress, ILR 22 Cal 306.<\/p>\n
24. \tIn Shivalingappa Kallayanappa and Others v. State of Karnataka<\/a>
\n[1994 Supp (3) SCC 235], this Court opined:\n<\/p>\n
9. From the above discussion it is established by
\nthe prosecution that A-1 to A-5 formed into an
\nunlawful assembly variously armed and
\nparticipated in the occurrence during which two
\ndeceased persons died and P.Ws. 2 to 4 received
\ninjuries. The next question is whether the common
\nobject of the unlawful assembly was to commit the
\nmurders. Whether there was such a common object
\nor not, depends upon various factOrs. A-1 and A-
\n2, though armed with axes, did not use the sharp
\nside but only gave one or two blows on the heads
\nwith the butt ends. A-4 and A-5 who were armed
\nwith sticks dealt blows only on the legs and or on
\nthe hands which were not serious. A-3 did not
\nparticipate in the attack on any of the two deceased
\npersons. These circumstances show that the
\ncommon object of the unlawful assembly cannot
\nbe said to be to cause murders and at any rate it
\ncannot be said that all the accused shared the same
\nand that they had knowledge that the two deceased
\npersons would be killed and with that knowledge
\ncontinued to be the members of the unlawful
\nassembly. However, taking all the circumstances
\nof the case into consideration, the common object
\ncan be held to be only to cause grievous hurt. A-1
\nand A-2, however, dealt blows with the butt ends
\nof the axes on the two deceased persons and the
\ninjuries on the heads caused by them proved to be
\nfatal. Having given our earnest consideration to
\nthis aspect of the case, we are of the view that A-1
\nand A-2 must be held liable for their individual
\nacts and they would be liable to be punished under
\nSection 302 I.P.C. and A-3 to A-5 under Sections
\n326\/149 I.P.C. so far as the attack on the two
\ndeceased persons is concerned.<\/p>\n
25. \tIn Bunnilal Chaudhary v. State of Bihar<\/a> [(2006) 10 SCC 639], this
\nCourt held:\n<\/p>\n
13We may say here that it is now the settled
\nlaw that under Section 149 IPC, the liability of
\nother members for the offence committed during
\nthe continuance of the occurrence rests upon the
\nfact whether the other persons knew before hand
\nthat the offence actually committed was likely to
\nbe committed in prosecution of the common
\nobject.  Such knowledge may reasonably be
\ncollected from the nature of the assembly, arms or
\nbehaviour on or before the scene of occurrence<\/p>\n
26. \tIn Sunil Balkrishna Bhoir v. The State of Maharashtra<\/a> [2007 (7)
\nSCALE 184], this Court held:\n<\/p>\n
17. Section 149 per se constitutes a substantive
\noffence. The object of this section is to make clear
\nthat an accused person whose case falls within its
\nterms cannot put forward the defence that he did
\nnot, with his own hand, commit the offence
\ncommitted in prosecution of the common object of
\nthe unlawful assembly or such as the members of
\nthe assembly knew to be likely to be committed in
\nprosecution of that object. Unlawful assembly was
\nformed originally to assault and something might
\nhave happened all of a sudden.<\/p>\n
27. \tIn a case of this nature, the injuries on the part of the defence
\nwitnesses need not detain us as sufferance of such injuries at the hands of the
\nprosecution witnesses had not been believed by both the courts below.  We
\ndo not see any reason to differ with the said findings.\n<\/p>\n
28. \tIf Phool Chand was armed by the purported order passed by the
\nSuperintendent of Police that he should have assistance from the police
\nofficers.  We fail to see any reason as to why he could not go to the police
\nstation and lodge a First Information Report.  Why the injured persons did
\nnot go to a Government Hospital for getting themselves examined on that
\ndate itself.  It betrays common sense as to why they had to go to a private
\ndoctor and that too on the next date.  The accused persons even did not mind
\nsetting up a false plea to the effect that modesty of Smt. Shakuntala Devi had
\nbeen outraged.  The testimony of Smt. Shakuntala Devi has been discarded
\nby the courts below.  No attempt even had been made before us to assail the
\ncorrectness of that part of the judgment.\n<\/p>\n
29. \tFor the reasons aforementioned, we do not find any merit in this
\nappeal which is dismissed accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kishan Chand & Ors vs State Of U.P on 10 October, 2007 Author: S.B. Sinha Bench: S.B. Sinha, Harjit Singh Bedi CASE NO.: Appeal (crl.) 1411 of 2007 PETITIONER: Kishan Chand & Ors RESPONDENT: State of U.P DATE OF JUDGMENT: 10\/10\/2007 BENCH: S.B. Sinha & Harjit Singh Bedi JUDGMENT: J U […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-122450","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKishan Chand & Ors vs State Of U.P on 10 October, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kishan-chand-ors-vs-state-of-u-p-on-10-october-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kishan Chand & Ors vs State Of U.P on 10 October, 2007 - 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