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Monday, January 30, 2017

Section 149 of IPC. - common object of the unlawful assembly= It is trite law that the common object of the unlawful assembly has to be inferred from the membership, the weapons used and the nature of the injuries as well as other surrounding circumstances. Intention of members of unlawful assembly can be gathered by nature, number and location of injuries inflicted. In the instant case, repeated gun shots fired by Ram Chandra Sah on the person of deceased Ram Udgar Sah, and the injuries caused by lathis by other accused persons on the complainant and his second brother on their heads, clearly demonstrate the objective to cause murder of these persons. We, thus, do not find merit in this appeal which is, accordingly, dismissed.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1143 OF 2010


|GANGA RAM SAH & ORS.                       |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|STATE OF BIHAR                             |.....RESPONDENT(S)           |



                               J U D G M E N T


A.K. SIKRI, J.
                 The case of the prosecution, which  has  been  successfully
established before the trial  court  as  well  as  the  High  Court,  is  as
follows:
                 On 27.06.1983, a  fardbayan  was  given  by  the  informant
Yogendra Narayan Sah alleging  that  three  days  ago,  the  cattle  of  Ram
Chandra Sah, accused No. 5 herein (sole accused in Criminal Appeal  No.  285
of 1988 before the High Court) grazed the  paddy  field  of  the  informant,
which incident was  brought  to  the  knowledge  of  the  villagers  by  the
informant.  It was further alleged that on 27.06.1983, at  about  9  am,  he
showed grazed field to the Panches in the presence  of  accused  No.  5  Ram
Chandra  Sah.   The  Panches  advised  them  not  to  get  involved  in   an
altercation.  It was further  alleged  that  while  the  Panches  were  busy
inspecting the field, accused No. 2 Sita Ram Sah  inflicted  lathi  blow  on
the left leg and thigh of the informant's brother, Bauku Sah.   The  Panches
intervened and assured that the matter will be resolved shortly.
                 Further case of the prosecution is that the  informant  and
his brother returned to their house, whereas Ram Chandra Sah  and  Sita  Ram
Sah rushed to their house.  However, no sooner  did  the  informant  reached
his house and was standing south-west of it,  all  the  accused  persons  as
well as one Sukhdeo Sah (since deceased), father of  accused  Nos.4  and  5,
variously armed arrived there.  It was  further  alleged  by  the  informant
that accused No.5 was armed with gun  and  others  were  armed  with  lathi.
Soon thereafter, Sukhdeo Sah and accused  No.1  exhorted  other  accused  to
assault, whereupon accused  No.5  fired  two  gunshots  hitting  informant's
brother Ram Udgar Sah just at his  darwaja  (door  of  the  house),  thereby
causing his death instantaneously on the spot.  The informant  alleged  that
his brother Ram Udgar Sah sustained pellet wounds in  his  chest,  neck  and
mouth.  The other accused assaulted the informant with lathi as a result  of
which the informant sustained injuries on the right side  of  the  head  and
right  hand.   The  accused  persons  also  assaulted  the  brother  of  the
informant, Uday  Chandra  Sah  with  lathi,  on  account  of  which  he  too
sustained injuries on his head and fell on the  ground.   Uday  Chandra  Sah
was then taken to the hospital for treatment.  It was further  alleged  that
the accused persons fled away when the informant raised alarm and  witnesses
Ram Swaroop Yadav, Kapu Yadav, Sadhu Sah (PW-6), Dhodhai Sah  (PW-7),  Bauku
Sah  (PW-2) and others reached  the  place  of  occurrence.   The  informant
alleged that the accused persons herein committed the  offence  because  the
informant had chastised them for damaging his crops.  On the  basis  of  the
aforesaid fardbayan, a formal FIR was  drawn  for  offences  under  Sections
147, 148, 149, 307, 302, 325, 332 of the Indian Penal Code, 1860 (for  short
the 'IPC') and Sections 25A/26 of Arms Act, 1959  being  Mahishi  P.S.  Case
No. 33 of 1983 on 27.06.1983 at 6 pm.  On 28.06.1983,  Dr.  J.  Lal  (PW-13)
held postmortem on the body  of  the  deceased.   It  was  recorded  in  the
postmortem report that on opening the chest, the upper  lobes  of  both  the
lungs were found torn with free blood in both sides  of  the  chest  cavity.
The injury was anti mortem, fatal and caused by gun shot.

2.     After  investigation,  the   police   submitted   final   chargesheet
implicating all five persons named in the FIR, as accused.  The trial  court
framed the charges against them under the aforesaid  provisions.   To  prove
these charges, the prosecution examined 15  witnesses  altogether.   Out  of
the aforesaid 15 witnesses, Uday Chandra Sah (PW-1), Bauku Sah (PW-2),  Anar
Devi (PW-3), wife of deceased Ram Udgar Sah, Parvati Devi (PW-4), mother  of
the deceased, Ful Kumari (PW-8) and the informant Yogendra Narayan Sah  (PW-
10) were eye-witnesses of the occurrence.  One of  the  injured,  Sabo  Devi
(PW-9) did not support  the  prosecution  case  and  was  declared  hostile.
Sadhu Sah (PW-6) and Dhodhai Sah  (PW-7),  both  village  Panches  have  not
supported the occurrence.  They denied to have seen  the  actual  commission
of occurrence and were declared hostile.  Dr. P.K. Jha (PW-11) examined  the
injured persons, namely, Uday Chandra Sah  (PW-1),  Bauku  Sah  (PW-2),  Ful
Kumari  (PW-8),  Sabo  Devi  (PW-9)  at  Maheshi  Hospital  on  the  day  of
occurrence.  Jugeshwar Singh (PW-12) is the Investigating  Officer  of  this
case.  Dr. J.  Lal    (PW-13),  Civil  Assistant  Surgeon,  Sadar  Hospital,
Supaul held postmortem on the dead body of the deceased.  J.K. Mishra   (PW-
14) and Chotelal Yadav (PW-15) are formal witnesses.

The defence version of the appellants before the trial court was  that  they
have been falsely implicated in the P.S. Case No.33  of  1983  as  they  had
lodged a complaint case against the prosecution party bearing  No.338(C)  of
1983 for an occurrence of same date under Sections 147, 148, 149, 323,  324,
352 and  380  of  the  IPC  filed  against  the  prosecution  party  wherein
cognizance has been taken.  As a matter of fact,  accused  Ram  Chander  Sah
took the plea of alibi saying that he was being treated for Jaundice by  Dr.
J.K. Thakur, at Laheriasarai between 24.06.1983 to 10.07.1983 and  therefore
on the day of occurrence, he was not present in the village.

On defence side  also,  eight  witnesses  were  examined.   These  witnesses
included one Dr. Gajendra Prasad Thakur (DW-7), a  medical  practitioner  of
Laheriasarai.  After the trial was over,  the  learned  Additional  Sessions
Judge after analysing the evidence and material produced before him came  to
the  conclusion  that  charges  against  the  accused   persons   had   been
satisfactorily proved by the prosecution.  Ram Chandra Sah was sentenced  to
undergo rigorous imprisonment for life  for  the  offence  punishable  under
Section 302 IPC and rest of the  accused  persons  were  also  sentenced  to
undergo rigorous imprisonment for life  for  the  offence  punishable  under
Section 302/109 IPC.

Against the aforesaid conviction, these accused persons  had  preferred  two
criminal appeals which were heard  together  by  the  High  Court  and  have
resulted in dismissal, since the High Court has affirmed the conviction  and
sentence recorded by the trial court.

Two special leave petitions were filed against  the  judgment  of  the  High
Court.  Four accused filed one petition and Ram Chandra  Sah  filed  another
special leave petition.  On 16.11.2009,  while  notice  was  issued  in  the
special leave petition filed by the four accused persons,  the  petition  of
Ram Chandra Sah was  dismissed  in  limine.   In  this  manner,  insofar  as
conviction of Ram Chandra Sah is  concerned,  that  has  attained  finality.
Leave was granted in the other special leave petition  on  13.05.2010  which
was converted into the instant appeal  i.e.  Criminal  Appeal  No.  1143  of
2010.  During the pendency of this appeal, appellant Nos.2 and 4  i.e.  Sita
Ram Sah and Jagdish Sah have passed away and,  therefore,  appeal  qua  them
stood abated.  In these circumstances, we heard the appeal of the other  two
appellants, namely, Ganga Ram Sah and Pitambar Sah.

Mr. Nagendra Rai, learned senior counsel  appearing  for  these  appellants,
submitted that allegation against Ganga  Ram  Sah  was  that  he  had  given
orders and exhorted others to assault whereupon  Ram  Chandra  Sah  shot  at
Uday Chandra Sah.  This was the only role attributed to Ganga  Ram  Sah  but
the same was not proved inasmuch as four eye-witnesses, namely, PW-3,    PW-
4, PW-8 and PW-9 did not make any  such  assertions  in  their  depositions.
Insofar as appellant No. 3 Pitambar Sah is concerned, Mr. Rai has  submitted
that no role is attributed to  him  in  the  FIR  and  because  of  previous
animosity between the parties, he had been falsely implicated.

We are not convinced with the aforesaid  arguments.   It  may  be  mentioned
that the FIR  was  registered  on  the  basis  of  fardbayan  given  by  the
informant Yogendra Narayan Sah immediately after the incident.  There is  no
time lag between the incident and the FIR.  In the said FIR, both  appellant
Nos. 1  and  3  are  specifically  named.   Insofar  as  appellant  No.1  is
concerned,  specific  allegation  is  made  in  the  FIR  that  it  was  the
exhortation of appellant No.1 which led to the said  assault.   Accused  Ram
Chandra Sah fired two gun shots  hitting  Ram  Udgar  Sah  (brother  of  the
informant) which caused instant death.  Two other eye-witnesses, namely, PW-
1 and PW-2 have also  specifically  given  the  statement  to  this  effect,
thereby supporting the version of the  prosecution.   These  witnesses  were
cross-examined at length but their testimony could not be shaken.   Presence
of Ganga Ram Sah at the scene of occurrence has not been denied.   The  role
attributed to him, therefore, stands proved, as rightly held  by  the  trial
court as well as the High Court.

It has to be borne in mind  that  all  these  persons  are  convicted  under
Section 149 of IPC as well.  It has also to be borne in mind that  appellant
Nos. 1 to 4 are closely related.  In  fact,  appellant  No.  4  Jagdish  Sah
(since dead) was father of the other three  appellants,  namely,  Ganga  Ram
Sah, Sita Ram Sah (since dead) and Pitambar Sah.   The  reason  for  causing
murder of one person and injuring other persons, all of  whom  were  related
and belonged to the rival group, is obvious as stated in the FIR itself.   A
dispute had arisen between the two groups three  days  before  the  date  of
incident in question, which incident was brought to  the  knowledge  of  the
villagers by the informant and Panches had advised both the  groups  not  to
involve in any altercation.  It is the  specific  case  of  the  prosecution
that while the  Panches  were  busy  inspecting  the  field,  Sita  Ram  Sah
inflicted lathi blow on the left leg and thigh of Bauku Sah (brother of  the
informant).  The matter could be resolved with the intervention of  Panches.
 However, when informant and his brother returned to their  house,  convicts
Ram Chandra Sah and Sita Ram Sah along with four others  came  there,  armed
with weapons.  Ram Chandra Sah was  holding  a  gun  whereas  other  accused
persons were carrying lathis.  At that stage, appellant No.1 Ganga  Ram  Sah
exhorted other appellants to charge the members of  the  other  group.   It,
thus, becomes clear that all these appellants had come with clear motive  in
mind to bodily harm the members of the informant's family  and  with  common
objective.  A calculated action was spearheaded.  All  the  accused  persons
were very well aware of the consequence of this action.  The  Courts  below,
therefore, rightly held that ingredients for the offence under  Section  149
also stood proved.  In that event, both these appellants  are  also  equally
liable for the consequence of causing murder of Ram Udgar  Sah  and  attempt
to murder other victims.

We may mention here at this stage that  Mr.  Nagendra  Rai,  learned  senior
counsel appearing for the appellants, had made a fervent plea to the  effect
that offence under Section 149 IPC was not proved inasmuch as there  was  no
clear finding recorded by the courts below regarding the  nature  of  common
object and that the object was unlawful.  For this purpose, he  referred  to
the judgment of this Court in Bhudeo Mandal &  Ors.  v.  State  of  Bihar[1]
wherein the Court has held that before convicting accused with  the  aid  of
Section 149, the Court must give clear  findings  regarding  the  nature  of
common object and that the object was unlawful and that in  the  absence  of
such findings, offence under Section 149 IPC cannot be held  to  be  proved.
In that case, the Court held that mere fact that the  accused  persons  were
armed would not be sufficient to prove the common object.   In  the  instant
case, however, as already described above, there is a  clear  finding  about
the common object and calculated/concerted  action  in  furtherance  of  the
said object.

Mr. Rai also referred to the judgment in the case of Thakore Dolji  Vanvirji
& Ors. v. State of  Gujarat[2]  and  specifically  read  out  the  following
discussion contained therein:
“3. …Now the question is whether all the  accused  would  constructively  be
liable for an offence of murder by virtue of Section 149 IPC. So far A-1  is
concerned, it is the consistent version of  all  the  eyewitnesses  that  he
dealt a fatal blow on the head with a sword and the medical  evidence  shows
that there was a fracture  of  skull  and  the  blow  must  have  been  very
forceful because even the brain was  injured.  Therefore,  he  was  directly
responsible for the death of the deceased and the  High  Court  has  rightly
convicted him under Section 302 IPC. Now coming to the rest of the  accused,
all the eyewitnesses have made an omnibus allegation against them.  Even  A-
2, according to the eyewitnesses, gave only one blow and that the  remaining
accused gave stick blows. All these  injuries  were  not  serious  and  were
simple. The injury attributed to A-2 was on the cheek  and  the  doctor  did
not say that it caused any damage. So it must also be held to  be  a  simple
injury. Then we find only a bruise and an abrasion  on  the  right  arm  and
some bruises on the back. These injuries did  not  result  in  any  internal
injuries. There was not even a fracture of rib. Therefore they must also  be
simple injuries. It is only injury  No.  1  which  was  serious  and  proved
fatal. Therefore the question is whether under  these  circumstances  common
object of the unlawful assembly was to cause the death of the  deceased  and
whether every member of the unlawful assembly  shared  the  same?  No  doubt
Section 149 IPC is wide in its sweep but in fixing  the  membership  of  the
unlawful assembly and in inferring the common object, various  circumstances
also have to be taken into  consideration.  Having  regard  to  the  omnibus
allegation, we think it is not safe to convict every one  of  them  for  the
offence of murder by applying Section 149 IPC. On a careful  examination  of
the entire prosecution case and the surrounding circumstances, we think  the
common object of the unlawful assembly was only to cause grievous hurt.  But
A-1 acted in his own individual manner and caused one injury with the  sword
which proved fatal.”


The aforesaid discussion is in the context of evidence that emerged  in  the
said case wherein the Court found, as a fact,  that  the  common  object  of
unlawful assembly was only to cause grievous hurt. Thus, in that case,  when
common object to commit murder was not established and the Court found  that
apart from the primary accused (A-1) who had inflicted a fatal  blow,  there
were omnibus allegations of involvement qua other accused  persons,  it  was
not safe to convict other persons under Section 302 with the aid of  Section
149 of IPC.  The situation, in the present case,  is  altogether  different.
Here the accused persons had gone to the  house  of  the  complainant  fully
armed with gun and lathis.  This visit was preceded by a scuffle  which  had
taken place just before that.  One person was carrying  gun  whereas  others
were  armed  with  lathis.   The  moment  they  reached  the  house  of  the
complainant, who was there with his family members, appellant No.1  directed
others to attack the victims party.  On this exhortation,  Ram  Chandra  Sah
pulled his gun and shot twice at  Ram  Udgar  Sah.   Other  accused  persons
started assaulting Uday Chandra Sah who sustained wounds on his chest,  neck
and face.  They also assaulted the complainant  as  well  his  brother  Uday
Chandra Sah with lathis.  Complainant sustained injuries on the  right  side
of the head and right hand whereas Uday Chandra Sah  sustained  injuries  on
his head and had to be carried to hospital for treatment.   All  these  acts
and events taken together proved beyond doubt that the common object of  the
unlawful assembly was not only to  cause  grievous  hurt  but  to  kill  the
members of the opposite camp.  The aforesaid judgment, therefore,  does  not
apply to the facts of this case.

It is trite law that the common object of the unlawful assembly  has  to  be
inferred from the membership,  the  weapons  used  and  the  nature  of  the
injuries as well as other surrounding circumstances.  Intention  of  members
of unlawful assembly can be gathered  by  nature,  number  and  location  of
injuries inflicted.  In the instant case, repeated gun shots  fired  by  Ram
Chandra Sah on the person of  deceased  Ram  Udgar  Sah,  and  the  injuries
caused by lathis by other accused persons on the complainant and his  second
brother on their heads, clearly demonstrate the objective  to  cause  murder
of these persons.  We, thus, do not find merit  in  this  appeal  which  is,
accordingly, dismissed.


                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                              (R.K. AGRAWAL)

NEW DELHI;
JANUARY  27, 2017.


-----------------------
[1]
      (1981) 2 SCC 755
[2]   1993 Supp (2) SCC 534

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