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2017 DIGILAW 384 (RAJ)

BHAGWATI v. STATE OF RAJASTHAN

2017-02-02

NAVIN SINHA, VIJAY KUMAR VYAS

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JUDGMENT : NAVIN SINHA, J. 1. Appellant No. 5 Bal Krishna @ Khutto having been deceased during the pendency of the appeal it stood abated against him by order dated 30.03.2010. 2. All the six accused were convicted under Section 302/149 IPC for the death of Banshi to life imprisonment with fine and default stipulation. They were further convicted under Section 323/149 IPC to three months rigorous imprisonment with fine and default stipulation for the injuries caused to PW-4, Parmanand and under Sections 427, 447 IPC to six months and two months of rigorous imprisonment respectively. Appellant Arti Nandan further stands convicted under Section 148 IPC to three years rigorous imprisonment with fine and default stipulation while the others have been convicted under Section 147 IPC to two years rigorous imprisonment with fine and default stipulation. The sentences have been directed to run concurrently as ordered by the Sessions Judge, Gangapurcity dated 15.04.1985 in Sessions Case No. 57/1983. 3. The prosecution version is that PW-4, Parmanand was in his fields at six am on 24.03.1983 which he had taken as share cropper from PW-6, Murlidhar and sown crops. The Appellants came on his lands with their cattle for grazing destroying his crops. The Appellant drove the cattle out of his fields and was taking them to the cattle pen. At this time Appellant Banshi objected and the others also joined in. The assault followed then. Appellant Arti Nandan had an axe and the rest possessed lathis. Appellant Hari and Munshi assaulted the witness on the shoulder with lathi. Appellant Arti Nandan assaulted on the head with the blunt edge of the axe. The other Appellants were standing. The deceased Banshi came to his aid and was assaulted on the shoulder by Arti Nandan with the sharp edge of the axe while Bhagwati and Munshi assaulted on the head with lathi. A written report Exhibit P/8 was lodged by PW-4, Parmanand at 4.45 pm on 25.03.1983 at the hospital. Formal FIR Exhibit P/15 was registered on 26.03.1983. Banshi succumbed to his injuries 64 hours later on 26.03.1983 in the hospital at 10.00 pm. The injury report of PW- 4, Parmanand Exhibit P/9 dated 24.03.1983 conducted by PW-8, Dr. Nandlal found three injuries on his person. The injury report of Bashi, Exhibit P/11 found four injuries on his person. Formal FIR Exhibit P/15 was registered on 26.03.1983. Banshi succumbed to his injuries 64 hours later on 26.03.1983 in the hospital at 10.00 pm. The injury report of PW- 4, Parmanand Exhibit P/9 dated 24.03.1983 conducted by PW-8, Dr. Nandlal found three injuries on his person. The injury report of Bashi, Exhibit P/11 found four injuries on his person. The first injury was an oblique lacerated wound 1 cm x cm x whole skin deep with swelling and fresh bleeding on left side of frontal part of scalp. The second injury was a swelling 2 cm x 2cm on right parietal part of scalp with tenderness. The third injury was oblique incised wound 7 cm x2 cm x 2mm deep on right median side of scapula region and the last injury was swelling of left cheek. Injury Nos. 1 after X-ray was found to be grievous revealing fracture of communicated type of left frontal bone. Injuries 2, 3 and 4 were simple in nature. Injury No. 3 was attributed to a sharp weapon. 4. The post-mortem of the deceased Exhibit P/13 was conducted by PW-8, Dr. Nandlal on 27.03.1983 at 7.30 am opining that death was occasioned because of internal brain hemorrhage and coma due to severe nature of head injury by hard blunt object attributable to injury No. 1 alone. 5. Learned Counsel for the Appellants submitted that the genesis of the occurrence was trivial with regard to grazing of cattle. There was no common object to kill the deceased much less any intention to do so. The Appellants did not go the fields armed with any common object. A lathi is a common item kept by any villager and axe is an agricultural instrument. The Appellants were only agitated because PW-4, Parmanand not only drove their cattle out of the fields but was forcibly taking them to the cattle pen instead of handing over it to the Appellants. The Appellants only intended to teach PW-4, Parmanand a lesson for having done so. Arti Nandan did not assault the witness with the sharp edge of the axe. The assault and injury on the deceased was only incidental because he came in the way. If the deceased had not intervened no injury would have been caused to him. The assault on the deceased is attributed to Appellants Arti Nandan, Munshi and Bhagwati. Arti Nandan did not assault the witness with the sharp edge of the axe. The assault and injury on the deceased was only incidental because he came in the way. If the deceased had not intervened no injury would have been caused to him. The assault on the deceased is attributed to Appellants Arti Nandan, Munshi and Bhagwati. No assault was attributed to the deceased Appellant Bal Krishan @ Khutto and Appellant No. 6 Radhey Shyam. If common object did not exist the mere presence of Appellant No. 6 with a lathi and no overt act was not sufficient to infer common object. 6. Not only was there no common object to kill, even knowledge cannot be attributed as death is attributable to injury number one only. The prosecution has not established whether Bhagwati or Munshi caused injury number one. The second injury on the head region was simple in nature. Relying on AIR 1972 SC 2462 , Ram Lal v. Delhi Administration, it was submitted that in similar circumstances where there were two injuries on the head of the deceased and it was not clear who gave the fatal assault the conviction was reduced to one under Section 325/34 IPC from 302 IPC on the ground that it could not be said with certainty which of the assailants had caused the fatal injury. 7. Appellant Arti Nandan, Hari Babu and Radhey Shyam have undergone approximately four months of custody and Appellants Bhagwati and Munshi have undergone approximately one years three months of custody. Their conviction therefore deserves to be altered from Section 302/149 IPC to 325/34 IPC and sentenced to the period already undergone, more so when Appellant Bhagwati is approximately 80 years of age today and Munshi is approximately 75. The occurrence was of the year 1983 and the Appellants have been facing travails of the criminal trial for long. 8. Counsel for the State submitted that PW-4, Parmanand is an injured witness. His credibility has to be high. According to the witness, Appellant Bhagwati gave the first assault and therefore injury number one is attributable to him. Making of two assaults on the region of the head, a sensitive part of the human body, is an event which speaks for itself with regard to the intention of the Appellants. His credibility has to be high. According to the witness, Appellant Bhagwati gave the first assault and therefore injury number one is attributable to him. Making of two assaults on the region of the head, a sensitive part of the human body, is an event which speaks for itself with regard to the intention of the Appellants. Even if their cattle was being taken away, there was no occasion or reason to make a murderous assault. 9. We have considered the submissions on behalf of the parties and examined the evidence on record also. 10. PW-4 Parmanand is an injured witness. His credibility naturally has to be high as the law presumes that having been injured in the same incident, he was speaking the truth. His assertion that he was assaulted on the shoulder and on the head stands corroborated by his injury report. Appellant Arti Nandan assaulted him with the blunt side of the axe and not the sharp edge which speaks for itself that the intention was never to cause any fatal injury. 11. The deceased was assaulted by three of the Appellants, Arti Nandan, Bhagwati and Munshi. While the first assault was on his shoulder was with the sharp edge of the axe, simple in nature the allegation against Bhagwati and Munshi is omnibus to have caused head injury one of which is simple in nature. The prosecution has not led any evidence which of the two Appellants caused the first injury. Naturally the first injury has to be attributed to one of them and the other caused simple injury. It is not possible to infer any common object to kill. If there existed no common object the Appellant who caused injury number one leading to death will alone be answerable for his acts. 12. To demonstrate common object, there can never be direct evidence and it will have to be culled out from the entirety of the facts and circumstances of the case if there existed any common object and the very offence committed in persecution of the common object. The underlying principles to establish common object is settled law and reference may only be made to (2003) 2 SCC 257 (Rajendra Shantaram Todankar v. State of Maharashtra) holding as follows:- "14. The underlying principles to establish common object is settled law and reference may only be made to (2003) 2 SCC 257 (Rajendra Shantaram Todankar v. State of Maharashtra) holding as follows:- "14. Section 149 of the Indian Penal Code provides 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. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149-either clause-is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act...." 13. Applying the aforesaid test, the Appellants were undoubtedly present in the fields of PW-4, Parmanand and their cattle were grazing and damaging the crops. But it cannot be said that they had come together to the fields with any common object much less to murder. They were not armed with any weapons. Lathi is a common item carried by any villager especially when they go out in the fields. An axe is also an agricultural instrument. That they can be used as weapons of offence also cannot classify them in the latter category. If the common object had been to kill there is no reason why they would have caused simple injuries to PW-4, Paramanand and desisted from using the sharp edge of the axe. The assault on the witness was primarily for the reason that he refused to heed their request to free their cattle. They may have been apprehensive that if their cattle were deposited in the cattle pen, it would create further complications and difficulties for them in getting them released including payment of fine etc. The assault on the deceased was not in persecution of any common object to cause death and if the deceased had not intervened no harm would have been caused to him. The incident occurred at the spur of moment without premeditation. Evidently the Appellants intended to only cause such harm as necessary to the deceased for having intervened. 14. The assault on the deceased was not in persecution of any common object to cause death and if the deceased had not intervened no harm would have been caused to him. The incident occurred at the spur of moment without premeditation. Evidently the Appellants intended to only cause such harm as necessary to the deceased for having intervened. 14. In the facts and circumstances of the case, the conclusion that no common object can be said to have existed and that the prosecution has failed to establish which of the two Appellants gave the fatal blow on the head of the deceased causing injury number one the following observations in Ram Lal(supra) become relevant:- "8.............It was essential in this case, in order to bring home the offence of murder to the appellant, that the lathi blow given by him on the head had proved fatal. Since the evidence clearly discloses that two lathi blows had been given on the head and there is no evidence which of these two was given by the appellant, the benefit of doubt must go to him. He may have given the fatal blow or he may have given the blow which did not prove fatal......" 15. The Appellants cannot be said to have formed an unlawful assembly much less have had a common object to kill. The nature of head injury on the deceased also confirms that there was no common object to cause death. That the assault was not made with severity is evident from the post mortem report that death was occasioned because of internal brain hemorrhage. The conviction of the Appellants under Section 302/149 is altered to one under Section 325/34 IPC. The rest of the conviction and sentence calls for no interference. That leaves the question for the appropriate sentence to be imposed under the former. 16. Considering that the occurrence is very old of the year 1983, the Appellants have been facing the travails of a prolonged criminal trial for no fault of theirs, that there existed no common object to kill as co-villagers they only intended to teach a lesson to PW-4, Parmanand, that they have gone on in years and some of them are about 75 and 80 years of age, they are sentenced to the period undergone for all the offences. 17. With the modification of conviction and sentence, the appeal is partly allowed.