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2019 DIGILAW 2795 (ALL)

Ram Lalak v. State

2019-12-17

PANKAJ NAQVI, SURESH KUMAR GUPTA

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JUDGMENT : Pankaj Naqvi, J. This appeal has been preferred against the judgment and order dated 26.9.1991 passed by Sessions Judge, Basti in S.T. no.33 of 1986, whereby appellants have been convicted/sentenced under Sections 302/149 IPC for life along with ancillary sentences. 1. The prosecution case is comprised in two parts:- The first part alleged that there is a mango grove across the house of P.W-1/the informant, belonging to the family of the informant. On 20.5.1984 at about 10 in the morning while P.W-1 was plucking mangoes, accused Ram Lalak (A-1), Bajrangi (A-4) (real brothers) and Devmani (A-2), Indramani (A-5) (real brothers) dissuaded P.W-1 from plucking mangoes. P.W-1 replied that trees have been planted by his father and ancestors, as such he was plucking them. Accused went back hurling abuses. 2. The second part alleged that on the same day while P.W-1 was tethering livestock in the grove, accused Ramlalak (A-1) with a DBBL gun, Devmani (A-2) and Ramchand (A-3) with SBBL guns, Indramani (A-5) and Rammilan (A-6) with lathis, and Bajrangi (A-4) with ballam came, out of whom, Ramlalak (A-1) exhorted P.W-1 that he better not move as he wanted to teach him a lesson. P.W-1 sensing trouble attempted to flee towards his house while raising cries for help. Dwarika (P.W.2), Ramdas, (deceased) (relatives of P.W-1) and Ayodhya ran to rescue PW-1. Accused Ramlalak (A-1), Devmani (A-2) and Ramchand (A-3) fired at P.W-1 which hit him on his head, waist and legs. The witnesses dissuaded the accused persons from doing so. Accused too exhorted the witnesses to stay away, upon which accused Ramlalak, Devmani and Ramchandra fired at Ramdas (deceased) and Dwarika (P.W-2). Ramdas (deceased) succumbed to the injuries on the spot. Dwarika (P.W-2) and Ayodhya (not examined) sustained pellete injuries, thereafter accused Bajrangi (A-4) inflicted ballam blow at Dwarika (P.W-2) on his waist, who fell down, followed by lathi blows on him by Indramani (A-5) and Rammilan (A-6). P.W-1 subsequently learnt that the accused Ramnarayan with a view to eliminate P.W-1 and his family had lent licensed ams belonging to his family to accused Ramlalak (A-1), Devmani (A-2) and Ramchandra (A-3). 3. The accused were charged under sections 27 and 28 of the Arms Act, 120-B, 302/109,147,148, 307/149 and 302/149 IPC. 4. Accused alleged that the trees were sown by father of Devmani (A-2) i.e, Gaya Prasad and they have been falsely implicated. No defence evidence was led. 3. The accused were charged under sections 27 and 28 of the Arms Act, 120-B, 302/109,147,148, 307/149 and 302/149 IPC. 4. Accused alleged that the trees were sown by father of Devmani (A-2) i.e, Gaya Prasad and they have been falsely implicated. No defence evidence was led. 5. The trial court after analysing the evidence finding ocular evidence compatible with the medical while convicting the appellants as above acquitted accused Ram Narayan, Ravindra, Umashankar and Master Badri Vishal for the role of conspiracy. 6. During pendency of appeal, A-6/Rammilan died, his appeal has already been abated. 7. Heard Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Prashant Vyas, for the appellants, Sri Ran Vijai Chaubey and Sri Raj Bahadur, learned counsel for the informant and Sri A.N. Mulla, the learned A.G.A. 8. The Learned Senior Counsel for the appellants argued that conviction of A-4 and A-5 i,e, Bajrangi and Indramani under section 302/149 IPC is not sustainable as the said appellants were not likely to know that A-1, A-2 and A3 would also commit the murder of Ramdas as the common object of all the appellants was to harm P.W-1 only with whom an altercation had taken place in the morning. He thus submits that the death of Ramdas was not a part of common object of A-4 and A-5. He placed reliance on Maiyadin and others vs. State 1973 (43) A.W.R 266. 9. The learned A.G.A, and the learned counsel for the informant opposed the submission on the ground that once an unlawful assembly is formed which is also armed with lethal weapons, then each and every member of such an assembly would be vicariously liable for the acts committed by any of the members. He further submitted that the common object of the unlawful assembly was not only to harm P.W-1 but also any other person who posed a threat for the appellants to enjoy the fruits of the trees including the deceased who is alleged to have sown the trees. 10. We before adverting to the evidence deem appropriate to discuss in brief the provisions relating to offences committed by an unlawful assembly. 11. Section 141 IPC provides that an assembly of 5 or more persons is considered an “unlawful assembly” if the common object of the persons comprising the assembly is one of the acts mentioned therein. 10. We before adverting to the evidence deem appropriate to discuss in brief the provisions relating to offences committed by an unlawful assembly. 11. Section 141 IPC provides that an assembly of 5 or more persons is considered an “unlawful assembly” if the common object of the persons comprising the assembly is one of the acts mentioned therein. Section 142 IPC provides that if a person intentionally joins the unlawful assembly, then he is said to be a member of such assembly. 12. Section 149 IPC can be split for convenience into 3 parts:- (I) If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or (II) such as the members of that assembly knew to be likely to be committed in prosecution of that object, (III) every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. 13. The first part would make every members of an unlawful assembly liable if an offence is committed in prosecution of common object i.e., each member of the unlawful assembly is aware of the common object and the offence committed must be connected immediately with the common object of the unlawful assembly. For example if 5 or more persons constituting an unlawful assembly of which the common object is to assault a particular person then all such members would be vicariously responsible for the acts committed by any of them in assaulting that particular person. 14. The second part makes the members of an unlawful assembly liable vicariously only if the members of the unlawful assembly have the knowledge that an offence is likely to be committed in the prosecution of the common object. Conversely, if the act complained of is absolutely distinct having no nexus with the common object those members cannot be made vicariously liable who have not committed any overt act as in such an eventuality the members who commit such overt act which is not likely to be committed in prosecution of common object, would be individually responsible for their acts. 15. Third part makes each person vicariously liable for the offence committed, who was the member of the unlawful assembly at the time of committing the offence, whether such member individually committed the offence or not, is of no consequence. 16. 15. Third part makes each person vicariously liable for the offence committed, who was the member of the unlawful assembly at the time of committing the offence, whether such member individually committed the offence or not, is of no consequence. 16. The scope of Section 149 IPC has been explained in the leading judgment of the Apex Court in Mizaji vs. State of U.P., 1959 AIR (SC), 572. Para-6 thereof is extracted hereunder:- 6. This section has been the subject matter of interpretation in the various High Court of India, but every case has to be decided on its own facts. The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a pre-concert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of section 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all. There is a great deal to be said for the opinion of Couch, C.J., in Sabid Ali's case (1873) 20 W.R. 5, that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part, but not within the first. The distinction between the two parts of section 149, Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. 17. We in the light of above legal position proceed to examine as to whether in the light of the evidence, the prosecution has been able to establish the guilt of A-4 and A5 under the second part of Section 149 IPC? 18. The informants and the accused are members of the same family. There is animosity between the two over fruit bearing trees. A-1 to A-3 were armed with guns Bajrangi (A4) with Ballam, Indramani (A-5) and Rammilan/(A-6) (since deceased) armed with lathis. P.W.1 alleged that the fruit bearing trees had been sown by his uncle/Ramdas (deceased), while appellant Ramlalak exhorted other accused not to spare P.W-1. Ramdas (deceased) alongwith Dwarika and Ayodhya were present in the near vicinity of P.W-1. While appellants were assaulting P.W-1, deceased alongwith Dwarka and Ayodhya sought to intervene, so as to dissuade the appellants. All the appellants exhorted that interveners stay away. A-1 to A-3 fired at Ramdas (deceased) and Dwarka while P.W-2 was being assaulted by Bajrangi with a ballam (pointed weapon). 19. Once all the appellants are armed with lethal weapons, the common object as sought to be bifurcated by learned senior counsel for appellants only qua P.W-1 cannot be sustained as the deceased had sown the seeds of the fruit bearing trees, which were being plucked in the earlier part of the day by P.W-1 (nephew of the deceased), to which all the 4 accused had taken an offence. The deceased was not a rank outsider who can be said to have no interest in the dispute between P.W-1 and the appellants. P.W-1 is a close blood relative of the deceased, was being attacked with lethal weapons. It was but natural for the deceased (Ram Das) alongwith Dwarka and Ayodhya (family members of P.W-1) to make an attempt to rescue P.W-1. The appellants instead of acceding to the request of the deceased, attacked not only Ramdas (deceased) but also persons accompanying him i.e, Dwarika and Ayodhya. The object of the appellants cannot be bifurcated qua P.W-1 and the deceased. Thus in view of above A-4 and A-5 cannot feign ignorance that they had no knowledge that such assault was likely to be made on Ramdas in prosecution of the common object. 20. We have perused the judgment of Maiyadeen (supra) and are of the view that the said decision would not come to the rescue of appellants as in the said case Maiyadeen (injured) and Babulal-deceased were cutting their crops. The evidence indicated that the said appellants' grievance was against Khushali as the latter was cutting the crops at the fields at which there was dispute between them. The said appellants chased Khushali. While the chase was on Maiyadeen and Babulal sought to intervene. One of the appellants therein assaulted them as a result of which Babulal died and Maiyadeen got injured. The said appellants never resisted Maiyadeen and Babulal from cutting the crops. On such evidence appellants therein were not convicted with the aid of Section 149 IPC as the common object of the unlawful assembly was to harm Khusali. 21. We find that in so far the role of A-1 to A-3 is concerned, same was undoubtedly established with the evidence of P.W-1 and 2 unequivocally. Learned Senior Counsel for A-1 to A-3 in all fairness submitted that in view of direct clinching evidence he is not in a position to assail their conviction. We too, independent of his submission find that there was strong previous enmity between both the faction, a day light occurrence supported by testimony of injured witnesses and nothing has been elicited in their cross-examination to doubt their credibility, prosecution has established its case beyond reasonable doubt against all the appellants, the appeal is bereft of merits, liable to be dismissed. 22. The appeal is dismissed. The appellants are on bail. 22. The appeal is dismissed. The appellants are on bail. Their bail bonds stand cancelled. They shall be taken into custody forthwith to serve the remainder sentence. 23. Let a copy of this judgment along with records be sent to the learned Sessions Judge, for compliance and intimation to this court within 2 months.