Research › Search › Judgment

Patna High Court · body

2002 DIGILAW 879 (PAT)

Mohan Rai v. State of Bihar

2002-08-12

S.N.JHA, T.P.SINGH

body2002
JUDGMENT S.N. JHA, J.:- There are 22 appellants in these two appeals 15 in Cr. Appeal 268/87 and 7 in Cr. Appeal 276/87. All of them have been convicted under section 302/149 Indian Penal Code and sentenced to rigorous imprisonment for life, and further convicted under section 427 of the Penal Code and sentenced to rigorous imprisonment for two years. Except appellants nos.8, 9, 10, 11, 12 and 15 of Cr. Appeal No. 268/87 who have been convicted under section 147 of the Penal Code and sentenced to rigorous imprisonment for one year, other appellants have been convicted under section 148 of the Penal Code and sentenced to rigorous imprisonment for two years. 2. It may be stated here that appellant no. 6 of Cr. Appeal 268/87, namely, Balmiki Rai and appellant nos. 2 and 3 of Cr. Appeal 276/87, namely, Dwarika Rai and Kalidas Rai are reported to have died during pendency of these appeals and accordingly the appeals were heard on behalf of the rest of the appellants alone. 3. The prosecution case, briefly stated, is as follows. On 17.1.80 at about 2.30 P.M. appellants Dwarika Rai, Kalidas Rai, Sukho Rai and Naresh Rai were uprooting Masur (lentil) crops in the filed of Nato Rai, situate at Sarhan Tal (at some places described as Sarhan Bahiar). Ramkishun Paswan, his labourer, informed him about the aforesaid act Nato Rai along with his brothers, Naresh Rai, Siyaram Rai, Suresh Rai and Karu Rai and said Ramkishun Paswan went there at about 4 P.M. They found all the appellants, one Dularchand Rai and others engaged in uprooting of the crops. They were variously armed with guns, saif, garasa, Bhala and lathis. The informant and his brothers protested against the act. Appellant Sukho Rai abused them and asked others to teach them lesson for purchasing the land. Sukho Rai and Dwarika Rai then ordered to kill, whereupon Dularchand Rai and Kalidas fired from their guns. Nato Rai and others fled. The appellants, however, chased catching them up at a distance of about 250 yards in the fields of Kunj Bihari Rai and Biso Rai and assaulted them. I shall refer to the specific case regarding manner of assault later. Continuing the sequence of events, the assault caused injuries to all the five brothers. People gathered at the place of occurrence and, thereafter the accused persons fled away. I shall refer to the specific case regarding manner of assault later. Continuing the sequence of events, the assault caused injuries to all the five brothers. People gathered at the place of occurrence and, thereafter the accused persons fled away. Naresh Rai later succumbed to injuries. 4. The occurrence was reported by Nato Rai to the Officer-in-charge, Pandarak P.S., S.I. Mahendra Prasad, on the same day at 7.30 P.M at his (informant’s) house. He stated that Suresh Rai, Karu Rai and Siyaram Rai had been taken to Nazrat hospital at Mokamah and the dead body of Naresh Rai had been brought to the house. He further stated that the cause of occurrence was dispute with respect to Masur field and other fields having area of 13 kathas for which case was pending before the Sub-divisional Officer, Barh. He also stated that on account of the said dispute there was serious enmity between them. 5. On the basis of the above said fardbayan Pandarak P.S. Case No.3 dated 17.1.80 was instituted in which at the end of investigation chargesheet was submitted against the appellants. 6. At the trial which followed after the usual commitment etc. the prosecution examined as many as 17 witnesses to prove its case. Out of them P.Ws. 5, 6, 7, 13, 15 and 17 were formal witnesses. Dr. B.K. Setty who examined injuries on Suresh Rai, Karu Rai and Siyaram Rai, was examined as P.W. 10. Dr. Baldeo Pd. Singh who examined the injuries on Nato Rai, was examined as P.W. 12. Dr. Digambar Jha who held the post mortem on deceased Naresh Rai was examined as P.W.14. S.I. Hari Bans Rai, who took the investigation from S.I. Mahendra Prasad and submitted chargesheet after completing the investigation, was examined as P.W. 16. (the main I.O. namely S.I. Mahendra Prasad was not examined as from the judgment it appears that he had died). The injured i.e. Suresh Rai, Karu Rai, Nato Rai (informant) and Siyaram Rai were examined as P.Ws. 4, 8, 9 and 11. Ramkishun Paswan was examined as P.W. 2. Besides them, Chandra Mauli Prasad and Shrawan Kumar, who also claimed to have seen the occurrence, were examined as P.Ws.1 and 3. Thus, excepting the formal witnesses and the official witnesses, the material witnesses in the case are P.Ws. 1, 2, 3, 4, 8, 9 and 11. 4, 8, 9 and 11. Ramkishun Paswan was examined as P.W. 2. Besides them, Chandra Mauli Prasad and Shrawan Kumar, who also claimed to have seen the occurrence, were examined as P.Ws.1 and 3. Thus, excepting the formal witnesses and the official witnesses, the material witnesses in the case are P.Ws. 1, 2, 3, 4, 8, 9 and 11. All of them claim to be eye witnesses to the occurrence. In fact, as seen above, four of them - P.Ws. 4, 8, 9 and 11 had sustained injuries in the occurrence. 7. The appellants also separately examined three witnesses in their defence two of them, namely D.W. 1 Mishri Lal and D.W. 2 Tirpit Narain Singh by one set and the third one, namely, D.W. 3 Krishna Deo Pd. Singh by another set, to prove on-going dispute and pendency of proceeding between the parties and their own possession over the field. It may be mentioned here that the prosecution party too claimed to be in possession of the filed. The trial court has recorded finding in favour of the prosecution on the point. 8. Shri Prakash Narayan Pandey, learned counsel for the appellants, rightly, if I may say so, did not go into the question of possession. He submitted that though bonafide dispute was going on between the parties regarding possession, and the appellants might have been cutting the crops in bonafide exercise of their right, in the facts of the case the question of possession is immaterial, in view of the fact that the appellants are said to have chased the injured upto distance of 250 yards. Thus, even if the appellants were in possession of the land they had no right to chase the injured and assault them in exercise of their right of private defence of property. He, however, submitted that there is no evidence to suggest that the appellants were armed when Ramkishun Paswan first saw them cutting the crops at 2.30 P.M. and reported this fact to his master Nato Rai. It is only when Nato Rai and his brothers reached the place at 4 P.M. that the appellants were seen with arms, which suggests that the appellants had armed themselves in the meantime anticipating arrival of the prosecution party and obstruction by them. Their object thus clearly was to scare away members of the prosecution party from cutting the crops. It is only when Nato Rai and his brothers reached the place at 4 P.M. that the appellants were seen with arms, which suggests that the appellants had armed themselves in the meantime anticipating arrival of the prosecution party and obstruction by them. Their object thus clearly was to scare away members of the prosecution party from cutting the crops. There was thus no intention to kill. Though common object could develop subsequently, even while they chased the prosecution party and assaulted them, the object merely was to cause injury. Thus, all of them cannot be held vicariously liable for the act of killing Naresh Rai. Counsel pointed out that from the manner of occurrence it would appear that the occurrence took place at two place-in the khesari field of Kunj Bihari and gram field of Biso Rai. Thus such of appellants who were not present at the place were the assault took place on Naresh Rai should be treated on different footing. In other words, the appellants should be individually dealt with and thus such of them who committed overt acts should be individually punished without making each of them vicariously liable in terms of section 149 of the Penal Code. In support of the above contentions reliance was placed on the cases of Shambhu Nath Singh Vs. State of Bihar, AIR 1960 Supreme Court 725, Musakhan Vs. State of Maharashtra, AIR 1976 Supreme Court 2566 and Allauddin Mian Vs. State of Bihar, 1989 Supreme Court 1456. As regards nature of offence, so far as deceased Naresh Rai is concerned, Shri Pandey submitted that having regard to the fact that a large number of injuries were found on his body and there is no medical evidence to the effect that any particular injury or injuries were such as to cause death in all probability, the concerned appellants could be convicted under section 304 part II of the Penal code. In this regard reliance was placed on the case of Sitaram Vs. State of U.P., 1993 SCC (Cr.) 384. Lastly, counsel submitted that the occurrence had taken place 23 years ago and, therefore, while considering the question of sentence, the Court may keep this aspect of the case under consideration. 9. It would thus appear that neither the factum of occurrence nor the manner thereof has been challenged by the appellants. State of U.P., 1993 SCC (Cr.) 384. Lastly, counsel submitted that the occurrence had taken place 23 years ago and, therefore, while considering the question of sentence, the Court may keep this aspect of the case under consideration. 9. It would thus appear that neither the factum of occurrence nor the manner thereof has been challenged by the appellants. The thrust of the argument of the appellants' counsel was that they may be convicted for their individual acts, and in awarding sentence (s) to them the fact that the occurrence took place 23 years ago may be taken into consideration. 10. As seen above while deceased Naresh Rai and informant Nato Rai were assaulted in the khesari field of Kunj Bihari Rai, Suresh Rai, Karu Rai and Siyaram Rai were assaulted in the gram filed of Biso Rai. The evidence is discrepant on the point as to whether they were assaulted at one place or separate place, that is to say, whether the deceased and Nato Rai were assaulted together at the same place or at different place in the field of Kunj Bihari Rai, and likewise, whether Suresh Rai, Karu Rai and Siyaram Rai were assaulted at the same place in the field of Biso Rai or at different places. However, having regard to the specific case of the deceased and the injured being assaulted by different appellants, I am inclined to think that each of them, was assaulted at separate places, though in the same field(s). According to the witnesses the deceased was assaulted by Sukho Rai, Dwarika Rai, Kalidas Rai (each by Bhala), Naresh Rai, Suresh Rai (both by saif) and Ajo Rai (by gun), informant Nato Rai was assaulted by Doman Rai and Mishri Rai (by lathi). Suresh Rai was assaulted by Kesara Rai. Balmiki Rai (both by garasa) and Tribeni (by lathi). Karu Rai was assaulted by Rohan Rai, Sakal Rai, Mishri Rai (each by lathi), Mohan Rai (by saif), and Siyaram Rai (by gun). Lastly, Siyaram Rai was assaulted by Aajo Rai, Harkhit Rai, Hariha Rai, Bidhan Rai (each by saif), Jagdish Rai and Ramashray Rai (both by guns), and Dularchand Rai (also by gun - not sent up for trial. 11. It would thus appear that each of 22 appellants has been assigned specific role as being members of the different groups which assaulted the deceased and the injured. 11. It would thus appear that each of 22 appellants has been assigned specific role as being members of the different groups which assaulted the deceased and the injured. This lends credence to the appellants' counsel's contention that while chasing the deceased and the injured the appellants came to form different groups-each group succeeding in catching up fleeing members of the prosecution party and then assaulting them. Thus, though the occurrence as a whole took place at not far away places, it would be difficult to hold responsible members of one group for the acts committed by the members of the other group or groups. No doubt, if it is held that when the appellants armed themselves after Ramkishun Paswan went to inform the prosecution party about their (appellant') act of cutting the crops, hey formed a common intention to kill the members of the prosecution party or developed a common object to do so, and with that common intention or object started chasing them, the conclusion may be different. As I have said common object may develop at any point of time but having found that the appellants chased the deceased or the injured separately, and having caught them up assaulted them separately in a surrounding position at different places-though not far away from each other-it would be difficult to hold them vicariously liable for the acts of others. I am inclined to think that neither there was common intention nor the appellants shared a common object when they were at the Masuri field to kill the deceased. It may be pointed out that Ramkishun Paswan who saw the Masuri crops being uprooted for the first time at 2.30 P.M. and went to inform Nato Rai about it, named only Naresh Rai and Dwarika Rai, amongst the appellants as present in the field and uprooting the crops. But when Nato Rai and others reached the place they found all the appellants, and others, present there variously armed. I am therefore inclined to think that the appellants had assembled there in order to prevent the prosecution party from disturbing them from uprooting the crops. At that time they did not know as to why, and how many of them, from the prosecution party would come and whether they would come with arms to prevent them from cutting the crops. At that time they did not know as to why, and how many of them, from the prosecution party would come and whether they would come with arms to prevent them from cutting the crops. They seem to have assembled there apprehending obstruction at the hands of the prosecution party. The prosecution party, however, went there only five in number, all being brothers, besides Ramkishun Paswan. They were not carrying any arm. But they tried to verbally stop the appellants from cutting the crops stating that the land belonged to them. At that point of time Sukho Rai asked other appellants to ''teach them a lesson" for purchasing the land. The prosecution party retreated and tried to flee away when they were chased and assault took place. In the circumstances, I do not think they shared a common object of killing the deceased. 12. Section 149 of the Penal Code read as follows: "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." It would appear that there are two parts of the Section. The first part refers to the existence of a common object and committing an offence in prosecution of that object. The second part refers to existence of knowledge of the members of the unlawful assembly that the offence is likely to be committed in prosecution of such common object. As observed by the Supreme Court in Shambhu Nath Singh Vs. State of Bihar (supra) section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. State of Bihar (supra) section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. Their Lordships quoted a passage from Jahiruddin Vs. Queen Empress, ILR 22 Cal 306, running as follows, "members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Sec. 149 of the Indian Penal Code may be different on different members of the same unlawful assembly." 13. In Musakhan Vs. State of Maharashtra (supra) the Supreme Court observed as under:- "Thus a court is not entitled to presume that any and every person who is mob at any time or to have joined or left it at any stage during its activities is in law "guilty of every act committed by it from the beginning to the end, or that each' member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stage." 14. In Allauddin Mian Vs. State of Bihar, 1989 East Cr. C 591, the Supreme Court explained Section 149 of the Penal Code in these words : "Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done in 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. 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 prosecution of anyone 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." 15. In the backdrop of above binding precedents it is to be considered whether conviction of the appellants under section 302/149 can be maintained. Such conviction can be maintained only if it is proved that the appellants committed that offence in prosecution of the common object of the assembly, or that they knew such offence was likely to be committed in prosecution of the object. 16. In the facts and circumstances of the case it appears that the common object of the appellants was only to prevent the prosecution party from disturbing them in their act of uprooting the Masur crops. After Naresh Rai and others reached there, the appellants chased them. In that process they came to form different groups. Each group succeeded in apprehending the deceased and four injured separately and variously assaulting them. Since the deceased and the injured were assaulted, separately, by different groups of appellants it would be difficult to hold that the members of one group knew about the offence likely to be committed in prosecution of any common object. Therefore, the second part of Section 149 also is not attracted. Thus, for the offence of murder committed by a particular group of appellants, the members of the other groups cannot held liable. The appellants, thus, can be convicted only for their individual acts. 17. Now coming to the acts/offence committed by the appellants, as seen above, deceased was surrounded and then assaulted by appellants Sukho Rai, Dwarika Rai, Kalidas Rai, Suresh Rai, Naresh Rai and Chando Rai. There of them, namely, Sukho Rai, Dwarika Rai and Kalidas Rai were armed with Bhala while Naresh Rai and Suresh Rai were armed with saif. The deceased received as many as ten injuries caused by sharp cutting weapons, like saif and Bhala, as stated by the doctor, five of them on vital parts of the body. There of them, namely, Sukho Rai, Dwarika Rai and Kalidas Rai were armed with Bhala while Naresh Rai and Suresh Rai were armed with saif. The deceased received as many as ten injuries caused by sharp cutting weapons, like saif and Bhala, as stated by the doctor, five of them on vital parts of the body. The nature of injuries found on the person of the deceased would thus appear to tally with the weapons carried by five out of concerned six appellants. Though common object to kill the deceased was lacking at the beginning of the occurrence, having regard to the manner of assault as evidenced by the injuries, it would appear that a common object to kill the deceased developed in course of assault. It can, therefore, be held that all the six members of the group knew about the offence likely to be committed and each of them must be held to be conjointly liable for the murder of the deceased with the aid of section 149. The conviction of Sukho Rai, Dwarika Rai, Kalidas Ral, Suresh Rai, Chando Rai under section 302/149 is therefore fit to be maintained. 18. The submission that the conviction of the aforesaid six appellants may be altered to section 304 Part II, in view of the decision in the case of Sita Ram Vs. State of U.P., 1993 SCC (Cr.) 384, cannot be accepted. In that case 28 injuries were found on the deceased but none of them was on any vital part of the body. Injuries were not found to be cumulatively sufficient in the ordinary course of nature to cause death. It was held that the common object was only to belabour the deceased and in the circumstances while altering the conviction to section 304 Part II, the appellants were awarded sentence of rigorous imprisonment for seven years. 19. As regards other appellants, Kesara Rai, Balmiki Rai and Tribeni Rai are said to have assaulted P.W. 4. While Kesara Rai and Balmiki Rai were armed with garasa, Tribeni was armed with lathi. The injury were described as simple caused by blunt portion of garasa. Having regard to the nature of the injuries, they cannot be convicted for any major offence. While Kesara Rai and Balmiki Rai were armed with garasa, Tribeni was armed with lathi. The injury were described as simple caused by blunt portion of garasa. Having regard to the nature of the injuries, they cannot be convicted for any major offence. On the same footing stand appellants Rohan Rai, Mohan Rai, Sakaldeo Rai, Ram Baran Rai, Misri Rai who assaulted P.W.8 Karu Rai, and appellants Doman Rai and Ishri Rai who assaulted P.W. 9 Nato Rai. Injuries found on them too were described as simple caused by lathi. These ten appellants are accordingly convicted under section 323/149 of the Penal Code. 20. P.W. 11 Siyaram Yadav is said to have suffered grievous injuries,- three of them by saif and one by butt of the gun, besides four simple injuries. The appellants said to have assaulted him are Ajo Rai, Harkhit Rai, Harihar Rai, Bidehan Rai, Jagdish Rai and Ramashray Rai, besides one Dularchand (not sent up for trial). Four of them were armed with saif. Two were carrying guns. Considering that only three injuries by saif were found on injured, it may be difficult to identify as to which three of the four appellants armed with saif caused the injuries. However, considering the manner of occurrence all of them can be convicted with the aid of section 149 under sec on 326 of the Penal Code. 21. Besides the above convictions, all the appellants are also liable to be convicted under section 427 and sections 147/148 of the Penal Code. The convictions awarded to them by the trial court thereunder are accordingly upheld. 22. Now coming to the question of sentence, considering that the occurrence took place 23 years ago, except Sukho Rai, Dwarika Rai, Kalidas Rai, Naresh Rai, Suresh Rai and Chando Rai, who have been convicted under section 302/149 of the Penal Code, others are sentenced to periods already undergone by each of them, under various sections. They are thus discharged of the liability of their respective bail bonds. 23. In the result, (a) the appeals on behalf of Balmiki Rai, Dwarika Rai and Kalidas Rai are dismissed as abated on their death; (b) the appeals on behalf of Sukho Rai, Suresh Rai, Naresh Rai and Chando Rai are dismissed, the conviction and sentences awarded to them are upheld. They are on bail. 23. In the result, (a) the appeals on behalf of Balmiki Rai, Dwarika Rai and Kalidas Rai are dismissed as abated on their death; (b) the appeals on behalf of Sukho Rai, Suresh Rai, Naresh Rai and Chando Rai are dismissed, the conviction and sentences awarded to them are upheld. They are on bail. Their bail bonds are cancelled and they are directed to surrender in the trial court to serve the remaining part of their sentence; (c) the appeals on behalf of the rest of appellants, namely, Mohan Rai, Ram Bran Rai, Jagdish Rai, Harihar Rai, Bidehan Rai, Kesara Rai @ Karu Rai, Misri Rai, Ishri Rai, Tribeni Rai, Rohan Rai, Sakaldeo Rai, Ajo Rai, Harkhit Rai, Doman Rai and Ramashray Rai too are dismissed, but subject to the modification in the conviction and sentence as indicated above. As they have been sentenced to the periods already undergone, they are not required to surrender. TARKESHWAR PD. SINGH, J.:-I agree.