JAGDIP SINGH Vs. STATE OF U P

JUDGEMENT

(1.) Seven adult members of a family, Jagdeep Singh his five sons, Daljeet Singh, Paramjeet Singh, Saravajeet Singh, Vichhitra' Singh and Sukhwinder Singh son of Dalbir Singh, who belong to village Sitapur Tanda, Police Station Ram Nagar, District Nainital were charged with having committed several offences, the principal one of which was under Section 302 of the Indian Penal Code read with Section 149 thereof for committing the murder of Gyan Singh, son of Amric Singh, resident of village Shivpur-Tanda Police Station Ram Nagar, District Nainital. Dalbir Singh was allegedly with a gun (did not use it) while the remaining six persons had wielded lathis inflicting injuries on the person of Gyan Singh and Shiv Raj singh (PW 1) on the 29th of October, 1980 at about 6. 30 a. m. at a place to be hereinafter mentioned, which falls within the territorial limits of the said police station All the six assailants stand convicted by the 1st Additional Sessions Judge Nainital (Sessions Trial No. 39 of 1981) on three counts and each has been sentenced as under :- - (i) imprisonment for life under Section 302 of the Indian Penal Code with the aid of Section 149 thereof for committing murder of Gyan Singh; (ii) rigorous imprisonment for one year under Section 325 of the Indian Penal Code read with Section 149 thereof. Charge was framed for 'attempted murder' of Shiv Raj Singh PW 1 punishable under Section 307/149 of the Indian Penal Code, which was held as not proved, but punishment for voluntary caushing sample hurt on his person, a minor offence, has been awarded, and (iii) two years rigorous imprisonment under Section 148 of the Indian Penal Code for forming unlawful assembly to commit the said crimes. 2 All the said substantive sentences were directed to run concurrently. Being aggrieved, they have preferred appeal, which has been numbered as Cri minal appeal 1265 of 1982. 3. By the same judgment and order dated May 14, 1982, the trial Judge found Dalbir Singh not guilty and has acquitted him on all the charges stated above, ft is against this finding of acquittal that the State has preferred appeal, which has been registered as Government appeal 1945 of 1982. One Dhian Singh, brother of Gyan Singh, deceased, has also assailed the finding of acquitlal of Dalbir Singh by means of Criminal Revision hearing No. 972 of 1982. 4. Jagdeep Singh, accused appellant, died pending disposal. Therefore, appeal No. 1265 of 1982, in so far as it relates to Jagdeep Singh, abates. Both the appeals and the revision were heard together and are being disposed of by a common decision. 5. The prosecution case substantially rests on these facts Dalip Singh P. W. 7 is the realuncle of Cyan Singh, deceased, who was grandfather of Shiv Raj Singh (P. W. 1 ). Dalip Singh, who has property in village Shivpur-Tanda also, carries on business since 1954 A. D in Malaysia and has become a national of that country. He had come to village Shivpur-Tanda to make arrangement of his immovable property, after staying in India for about a week, he left his village in the early hours of the 29th of October, 1980 and boarded a train at 6. 30 a. m. at railway station, Perumadara, which is about 11 Km. away from the police station Ram Nagar in District Nainital Gyan Singh deceased, and Shiv Raj Singh (P. W. I) had accompanied him to the railway station to see him off. When the train had just steamed off, add the aboveiittmed seven persons came on the platform and on the exhortation of Dalbir Singh to finish off Gyan Singh and Shiv Raj Singh, the remaining six persons opened an assault on them with lathis. Gyan Siugh, on receiving two simple injuries, started fleeing in south-west direction, crossing the railway line. All the six assailants gave him a chase. Gyan Singh, as luck would have it, fell flat in a field after he had covered one and a half furlongs. All the six assailants leached there and started delivering blows from their lathis, as a consequence whereof he sustained injuries in his hands and feet. Dalip Singh, after getting down from his compartment, ruunuig behind the said pursuers of Gyan Singh along with Shiv Raj Singh P. W. I. Gurmej Singh, P. W 2, (he too, had come out from the morning tram), Ranvir Singh, P. W. 10, and some other person, raising shouts, as a consequence whereof, all the six assailants and Daibir Siugh, who had also rushed in the same direc tion with his gun and who continued inciting the assailant:, to end the life of Gyan Singh, bolted awy from the venue of the assault. 6 The prosecution goes on to say that Gyan Singh remained lying on the scene of occurrence for about 2 hours for want of proper conveyance, and was then taken to police station Ram Nagar on a tractor- trolly. 7. A written report of the incident was allegedly given by Shiv Raj Singh P. W. I, at the police station on the same day (29-10-1980) at 10 a. m. Both the injured, namely Shivraj Singh and Gyan Singh were then sant by police to civil hospital Ram Nagar, where wound reports Ext Ka 2 and Ka 3, were prepared by Dr. Om Shankar Sharma. P. W. 3 respectively at 10 45 and 11 a. m. The injuries have been reproduced in the impugned judgment and need no repetition here; relevant wounds will be referred to at appropriate place. Accepting the advice of the doctor, Gyan Singh was taken to Medical College, Meerut where he was admitted on the same evening, but he succumbed to the injuries en the following morning (30-10-1980) at about 4. o'clock. 8. The investigation that followed resulted in the submission of charge sheet against all the above named seven persons, as a consequence whereof they were put up for trial. The version of all the accused was that of denial coupled with an assertion that they have been falsely roped in on account of enmity. 9. The prosecution, besides adducing medical evidence and other evidence of formal nature, examined Shivraj Singh, P. W. 1, Gurmej Singh P. W. 2, Dalip Singh P. W. 7 and Ranvir Singh, P. W. 10, who have given an ocular account of the incident, from its commencement till the fall of curtain. It further produced Smt. Laxmi Devi, P. W. 9. to prove the motive part of the crime about which Shiv Raj Singh P. W. 1, has also given statement, it will be referred to at proper place. 10. The accused, in their turn, examined a witness to discredit the claim of Gurmej Singh P. W. 2, in regard to his presence on the scene of occurrence. 11. the learned trial court has, after an evaluation of the evidence on record rejected the claim of the prosecution witnesses in so far as it relates to the complicity of Dalbir Singh in the crime and has, therefore, recorded a finding of acquittal in his favour. Accepting the remaining part of the claim of the eye witnesses of the occurrence and the medical opinion about the cause of death of Gyan Singh, which has been found to be homicidal, the learned trial Judge found the remaining six accused guilty and sentenced each or them as stated at the outset. Dissatisfied with the decision, the aggrieved have came up in appeal/revision. 12. We have given our anxious considerations to the facts, circum stances and the probabilities of the case and also to the arguments advanced on factual and legal points involved for determination We would first like to take up the appeal/revision preferred against the; acquittal of Dalbir Singh. It has been repeatedly emphasized that the appellate court should be slow in interfering with the order of acquittal because it strengthens the initial presumption of innocence and under sound principles of criminal jurisprudence, a judgment of acquittal is not interfered with unless the forms of legal process have been disregarded and the acquittal has been on unreasonable grounds, resulting in a gross miscarriage of justice, 13 In this legal backdrop, we have to examine the matter in regard to the complicity of Dalbir Singh in the crime. It may be recalled that he was allegedly holding a gun during the course of the commission of the crime and had, per evidence of the prosecution, not tired any shot from it. The learned counsel for the State and also the learned counsel for the Revisionist vehemently argued that Dalbir Singh was guilty of committing offence, if ho wat; a member of the unlawful assembly, being vicariously responsible even though he had not used weapon. This position of law cannot be disputed. A member of an unlawful assembly would, undoubtedly, be guilty of some silence, but the real issue for determination is as to whether Dalbir Singh was at all present and had taken part, in any manner what sever, or a completely fabricated role has been deliberately assigned to him to falsely implicate him. 14. It becomes necessary at this stage to refer to the evidence given by all the four above-named eye- witnesses to show the complicity of Dalbir Singh. They have with one voice assigned the role of exhortation to him, the relaviat time being before the commencement of the assault at the platform and also at the field where Gyan Singh was being given final blows. For the alleged incitement in the field, the statement, of Dalip Singh, P. W. 7 is : "tasalli Karto ki yeh bach na pave (para-5) Shivraj Singh, P. W. 1 gives it in these words : "aaj ise zinda nahi chhorna" Rambir Singh, P. W. 10, puts it like this : Aaj Gyan Singh bachna nahi chahiye. ' 15. Yet we find that Gyan Singh was left alive; only his hands feet were the situs of injuries. Had Dalbir Singh been present in to the filed at relevant time and the lathiwalas had started flasing, abandoning their urgst, there was hardly any difficulty in firing shot at Gyan Siigh, Likewise, Dalbir Singh could conveniently fire shot at Shivraj Singh at the platform whan his alleged associates had started chasing Gyan Singh, leaving Shivraj Singh alone at the platform. The suggestion of the learned counsel for the State/revisionist that the shot was not fired for fear that it might not hit and involve his own associates has, therefore, No substance and force. Further, the contention that the gun was being held only to scare away persons approaching nearby is also too far fetched to be seriously entertained. These suggestions were advanced before the trial court also, which did not rightly attach any weight to it and repelled the contention, giving sound reasons. 16. On behalf of the State/revisionist our attention was drawn towards the relationship of Dalip Singh with Jagdeep Singh (since dead) and his off springs, who, figure as accused in the case; the former is 'sala' of the latter. This make, prima facie, look to be an important weapon of attack in the armoury of the prosecution, but if we closely scrutinise the evidence of Dalip Singh, we would find that he harbours grudge against the accused and his his own axe to grind. Some land was allotted to his son Gajjan Singh and also to Jagdeep Singh, the latter has taken possession over the land of the forms (vide para 7 of his statement ). He further stated in the same continuation chat he did not know whether Jagdeep Singh had, obviously by chicaaary, got his name mutated over the land allotted to Gajjan Singh, who has started living in Malaysia It was put to him in cross-examination that he has a grouse against Jagdeep Singh who refused to deliver back possession to him/son over that land. The suggestion was no doubt denied by him but the denial is inconsistent with human phychology. One can never be happy with another who grabes his land and refuses to part with it. This bone of contention very often leads to serious consequences. We have, therefore, no hesitation in holding that the witness is not truthful and straight forward, rather is inimiually disposed towards Jagdeep Singh and his off-springs (all the accused of the case ). 17. Since we have touched the evidence of Dalip Singh, On whom much reliance was placed on behalf of the prosecution, we would like to point out some other infirmities and absurdities spelling out there from. He was about 60 years old at the time of incident and had a poor vision, vide his own state ment. This is also his admission that he could not run so fast as some of the accused could do (para 10 ). He got down from the moving train with this attached and a jhola, went upto the tractor on which he had cone from the village to catch train and which was standing at a distance of 2 5-30 paces from his compartment, threw his luggage in the tractor and then turning his face in the opposite direction (west) he started running. This is also in his statement that the assailants were then at a distance of 40-50 paces from him while he was still at the platform (para 5 ). The assailants had chased Gyan Singh upto a distance of about one and half furlongs If we picture to ourselves the scene of occurrence in the light of the statement referred to above we can unhesitatingly say that his claim of having seen the actual assault by each of the six assailants as ridiculous and fantastic by the time he neared the victim of the assault, the matter would have ended for the simple reason that he would leg far behind. It is pertinent to point out here that if Daljeet Singh was running in the same direction with the gun, Shivraj Singh, P. W. or for that matter, any one could not have mustered courage to come within the hitting range of the fire arm. 18. We have, thus, pouted out some of the inherent absurdities, which appear in the claim of the said eye-discusses, so far as the rote airtime to Daljeet Singh is concerned with which the question of common object/intention to kill Gyan singh or Shivraj Singh is linked. Let us, therefore, consider as to whether there was the said common object intention of the assailants. It brings us to the determination of the back ground in which the alleged murderus attack was made, i, e. the motive part. The first information report of the occurrence recites this much only that the accused of the case wanted to take the land of Smt. Laxmi Devi, aunt of Gyan Singh, who was extending and to her. This was disclosed as the only reason due to which the members of the namily of the accused were nursing grudge against Gyan Singh. Smt. Laxmi Devi stated that shortly after the death of her husbaad, Daljeet Singh (accused) had, by chicanery, obtained five years' lease from her in respect of the agri cultural land left by her husband, who had died about one and a half month before this incident. She further stated that when it was discovered, she filed a suit for cancellation of the lease in which Daljeet Singh filed a compromise, thereby surrendering his claim in respect of that land. It has come in the cross-examination of Shiv Raj Singh, P. W. 1, that the compromise had been filed a month before the episode under consideration. The statements of both the witnesses show that Gyan Singh was extending help to his cunt, Smt. Laxmi Devi, in that matter. The filing of the compromise in the suit is accepted by Daljeet Singh. It is significant to note that the controversy remained only for a fort-night or go and it is evident that the matter was settled outside the court, a month before the incident. On the foot of these facts it is claimed by the prosecution that Daljeet Singh started harbouring grudge against Gyan Singh. In view of the amicable settlement of the matter, it d difficult to swallow the suggestion without demur. 19. However, assuming that the said conduct of Gyan Singh had given a cause of annoyance to Daljeet Singh. The question is as to whether it was of such a nature which prompted Daljeet Singh, his father, his brothers and a nephew to end the life of Gyan Singh. In the back ground that there is nothing to suggest bitter animosity or fierce hostility, we have no hesitation answering the question in the negative. The motive as laid was, in our opinion, too weak to actuate the said persons to cut short the life of Gyan Singh and, interestingly enough, a well frequented area (platform railway station) and such a time when a train had not completely left the platform, were chosen for implementing the evil design after covering 4-5 Km. from their houses. These facts speak volumes and go a long way to negative the theory of preplanned or pre-medicated attack. Realising the weakness in the alleged motive, Shivraj Singh tried to strengthen it by making a statement that the accused had purchased a truck which was not allowed to be plied by the Union and the accused formed an impression that the Union had been persuaded by Gyan Singh, deceased, to take that stand. This was not disclosed in the first information report and we find nothing substantial even to corroborate in the bald statement has been falsely made obviously to show the accused had strong motive to end the life of Gyan 20. Furthers the conduct of the assailants (whosoever they be) tells-tale-They inflicted only two simp's injuries of the person of Shivraj Singh (conations-middle of right leg and just below the calf) and injuries on the legs and hands of Gyan Singh, even though there was no obstruction, of any nature whatso ever, in the accomplishment of the said design, namely, object/intention to kill. Regard being had to the nature, sites and number of injuries detected by the doctor on the person of Shivraj read in conjunction with other circum stances, the learned trial court held that the theory of propounding a plan to kill Shivraj Singh is mere concoction. It, therefore, rightly found that the charge under Section 307/49 of the Code was not proved. It is significant that neither the nor Shivraj Singh Ins assailed the order of acquittal all the sever persons recorded under Section 307/149 of the Code. 21. From the discussions made above, it is manifest that Dalbir Singh was not present at the time of occurrence or for that matter, did not take part, in any manner whatsoever, in he incident under- consideration. In this respect, the learned trial judge observed : - "under these circumstances, the presence of. 'the accused Dalbir Singh with a gun in his heads is doubtful. The testimony of the four eye-witnesses implicating him as one of the culprits with a gun in his hand is not worthy of acceptance. Since the presence of he accused Dalbir Singh and his participation in the commission this crime is doubtful, he would be acquitted. " 22. What we feel is that user of the word 'doubtful' is not appropriate. There should not have been a hesitation in recording J clear and categorical finding that Dalbir Singh was neither present nor he participated in the assault made on Shiv Raj Singh and Gyan Singh. There is no reason at all for enter taining 'doubt' in this respect. 23. In the result, the appeal and revision, both, preferred against to acquittal of Dalbir Singh fail and are to be dismissed. 24. Let us now proceed to consider other points involved for date agna tion in the appeal preferred by the convicts. We have seen that there is a fool proof narration by witnesses, not faulting anywhere, in regard to the role assigned to Dalbir Singh and we have found that the narration given in that respect is lifeless and a fabricated one. It may be recalled that one of the witnesses, namely, Shivraj Singh is an injured witness Normally, the evidence of an injured witness is ranked high but if there are disquieting features therein, the witness has to be stamped with a verdict not wholly reliable. Shivraj Singh, can be safely placed, for the reasons given abovs, in that category. True, there are decisions to the effect that if there is an omnibus statement implicating ail the accused and it is found that one or two of them have been falsely roped it is highly unsafe to rely thereon against any of the accused ; reliance placed on such evidence is likely to result in miscarriage of justice. But it is equally true and is an ovary day happening that the witnesses add embroidery to the case look as black as possible. It has been a settled view that this by itself is no ground to throw the case overboard, if true, in the main. In such cases, it becomes the duty of the court to cull out the nuggets of truth from the" evidence unless there is reason to believe that the inconsistencies or are so glaring as utterly to destroy confidence in the witnesses. The instant case in our opinion, falls in the latter category, for the reason that it was, indisput ably, a day-light incident in which one of the injured suffered such which proved facal, the cause of death of Gyan Singh, which was holmic all have not been challenged on behalf of the accused. 25. The learned trial court has also, after rejecting the evidence of all the four eye-witnesses insofar as it was against Dalbir Singh, proceeded to sift the evidence for disengaging truth from falsehood. It, however, lost sight of one important fact that the report of this nature looses its authenticity and no implicit reliance can be placed on its contents it was, obviously, the result of delibera tions and consultations and the effort on the part of the complainant-party was to falsely rope in some adult innocent members of the family of the accused along with the real assailants. At various places in his judgment, the learned trial Judge has referred to the First-Information Report of the incident and has observed that it was prompt and spontaneous it normally conveys that the contents disclose true facts. This appears to have materially affected his mind and he forgot that it contains even according to his finding, as false accusations at least against an innocent person whose name was introduced to achieve one object, viz. conviction of all the adult members of the family of the accused. 26. However, let us see whether six appellants of Criminal Appeal No. 1265 of 1982 did take real part in the assault made on Cyan Singh. One of them was Jagdeep Singh whose appeal has abated, but we feel after a close assessment of the circumstances of the case, that a false role was assigned to him also. Ha was sufficiently aged at that time and was a close relation of the deceased. There was, as pointed out no deep seated enmity or fierce hostility. We have also shown above that the assault was not made pursuant to a well chalked out plan or premeditation. It does not stand to reason that this old man covered a distance of four-five kms. from his house up to the railway plat form along with sons and grandson to end the life of his near relation, Cyan Singh. We have further shown that common object or intention to kill Cyan Singh was completely lacking and wanting. Further, the witnesses have with one voice stated that after Cyan Singh had fallen on the ground while running, he was surrounded by six persons, of different ages, including Jagdeep Singh, and all made an assault on him with lathi. 27. This claim in regard to the manner of assault on Cyan Singh in the field is ridiculous and fantastic. Cyan Singh was given a chase upon 1j furlongs, and six persons, including the old man, Jagdeep Singh, were allegedly the pur suers. We can unhesitatingly and legitimately infer that all the six pursuers did not reach Gyan Singh at one and the same time in that race some did lag behind and Jagdeep Singh, the old man, must necessarily be one of them, if at all he was present. One, who proceeded ahead and was the first or second or, for that matter, third in reaching upto Gyan Singh, obviously, started showering blows on the fallen man without waiting for others to reach there. If we picture to ouiselves the scece of occurrence, we would find that the story that Gyan Singh was 'surrounded' by six persons and then raining of blows commenced is absurd and unworthy of belief. Further, we cannot conceive a situation that when the remaining, who had lagged behind reached there, the former vacated the place to enable them to shower a few blows. 28. Regard being had to the outstanding features of the case, which stand out prominently and about which a reference has been made in the preceding para, we are firm in our conviction that it was not a case of assault by six per sons and have further no hesitation in holding that Jagdeep Singh has also been assigned a false role. One may, prima facie, feel that when the appeal of Jagdeep Singh has abated, it was necessary to discuss his alleged participation, but the finding in regard to his participation reflects on reality and has a bearing on other aspects also, principal being the false implication or assigning a completely fabricated role. 29. This brings us to the determination of the question as to what offence the remaining five persons, namely, Daljeet Singh, Paramjeet Singh, Sarvajeet Singh, Vichhitra Singh and Sukhwinder Singh have committed. For an appre ciation of the arguments advanced on behalf of the parties, to be hereinafter dealt with, it is necessary to sum up the findings on facts recorded above. Bach case presents its own problems and no decision can be an authority on facts. Therefore, for applying the principles of law enunciated in any decision it is essential to keep in mind the facts of each case. The findings, in the instant case, are: (i) False implication of atleast two persons, namely, -Daljeet Singh and Jagdeep Singh, attributing active role to each of them. (ii) The first information report loses its authenticity - it is the result of deliberations and consultations. (iii) No fierce hostility or deep seated animosity to prompt and actuate all the adult persons of the family of Jagdeep Singh to kill Gyan Singh or Shivraj Singh there was no common object/intention to that effect. (iv) Attack was a pre-meditated one. (v) Gyan Singh was not 'surrounded' by all the remaining five persons in the field, the injuries sustained by him were caused by 2-3 persons, who had succeeded in reaching up to him immediately on his fall and that too, are after thereafter. (vi) The persons, who have given an ocular account of the incident, are not wholly reliable. We have also to be mindful of the nature and situs of the injuries suffered by Gyan Singh in the assault. He was examined by Doctor Om Shankar Sharma, PW 3, who had found nineteen injuries on his person. Its detailed description appears in the judgment under appeal, a brief reference would therefore serve the purpose. Left hand - a lacerated wound, two abraded contusions and three contusions (six in all ). Below the lacerated wound of the left arm, there was a simple fracture. Right Hand - three injuries, a lacerated wound and two contusions. There was a simple fracture underneath one injury. Left thigh - A. contusion and a simple fracture beneath it. Left knee - a lacerated wound and two contusions. Left leg - and lacerated wound and a contusion. Left ankle - and lacerated wound. Right/leg - a lacerated wound an abraded contusion and a contusion. Seven injuries were found bleeding at the time of examination. " The doctor, who conducted an autopsy on the dead body had, on internal exa mination, found blood in heart. Further there was no internal hemorrhage or compound fracture four simple fractures were detected on different part of the body. Ordinarily, simple fractures are not dangerous to life, and as pointed out above, the assailants had no intention to cause death of Gyan Singh. The medical evidence however shows that the injuries caused were cumulatively suffi cient to cause death in the ordinary course of nature and that the death ensued due to shock and haemorrhage. It is, however, difficult to find out as to how much blood had gushed out from the wounds before the first-aid was given at the hospital about four hours after the incident. Therefore, let us accept the opinion of the doctor, who was not cross-examined on that point before the trial court. 30. Sri V. P. Goel, Advocate, was engaged by the members of the family of the deceased. On the basis of the medical evidence referred to above, Sri Goel advanced arguments that: (i) even if there was no intention to kill and no vital part of the body of Cyan Singh was hit, yet clause thirdly of Section 300 of the Indian Penal Code which defines 'murder' stands attracted, and (ii) each member of the unlawful assembly, the object of which may have been beating alone, is vicariously responsible for the murder of Gyan Singh. 31. So far as the first part of the argument is concerned, there is absolute ly no difficulty andin accepting it. Clause 'thirdly' of Section 300 may be usefully quoted here : "3rdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted ii sufficient in the ordinary course of nature to cause death" 32. In a decision reported in AIR 1977 SC 45 - State of Andhra Pradesh v. Ranjavarapa and others, the position was considered and it was held : "the expression 'bodily injury' in clause thirdly includes also its 'plural'. The clause, thus, covers a case where all the injuries intentionally caused by the accused are cumulatively sufficient to cause death in the ordinary course of nature, even if none of those injuries individually measures upto such sufficiency. The sufficiency spoken of in this clause is the high probability of death in the ordinary course of nature and if such sufficiency exists and death is caused and will fall under the clause 'thirdly' of Section 300. " This decision alone is sufficient for showing the principle of law. Since much emphasis was laid on this decision and it was contended by Sri Goel that it applies on all fours to the facts of the instant case, we would like to, briefly, point out the facts of the case. There were two factions having fierce hostility and bad blood. There had been clashes even earlier. The incident was proceeded by an election. Police force was posted in the village. The deceased was SO years old man. Nineteen injuries were indiscriminately caused by two persons (A-l and A-2) with heavy wooden object involving the arms and legs. There were nine grievous injuries. Dying declaration of the victim of the assault had been recorded. Regard being had to these facts, it was held that clause 'thirdly', referred to above, applies and both the assailants shared common intention to cause those bodily injuries, which were cumulatively sufficient in the ordinary course of nature to cause death. 33. We should, however, not be unmindful of the fact that clause 'thirdly' will apply only when the bodily injury/injuries detected on the persons of the victim of the assault, were 'intended' to be inflicted and, once the exis tence of injury is proved, the intention to cause that injury will be presumed, unless the circumstances warrant an opposite conclusion. In other words, it the assailant had not the intention to inflict such bodily injury, which was found on the person of the deceased, clause 'thirdly' will not apply. The matter may be elucidated by an example J-- "a. with the intention of causing an injury with/a the on the buttocks of B delivers a blow, B before the blow actually lands, sits down as consequence whereof the blow hits the head region, causing an injury which proved fatal. 34. In the example cited, there was no intention at all to cause bodily injury actually found to be present. Therefore, the subjective requirement of clause 'thirdly', namely, injury caused was the one which was intended, is utterly wanting and the case goes out of the ambit of clause' 'thirdly'. 35. In this background, let us examine the evidence that has bee adduced by the prosecution in the instant case. All the four witnesses, who have given an ocular account of the incident, have staled with one voice that the victim of the assault (Cyan Singh) was raising his hands and feet, obviously to save the blow landing on vital parts of his body (Hath Pair Uthakar Apne Ko Bachane Ki Koshish Karta tha ). If we accept this part of the evidence, we can unhesitatingly conclude that the injuries on bunds and legs were not 'intended' at all and that these parts were affected because of the movement and act on the part of the victim of the assault. The case, therefore, goes out of clause 'thirdly'. But this part of the evidence does not ring true and is not acceptable. The prosecution introduced it at a late stage (the witnesses did not state accordingly before the Investigating officer) only to show that the assailants, wanted to hit the vital parts of the body to end the life of the victim, but they could not achieve that object on account of the conduct of Cyan Singh. This is only to make (he case look as black as possible and to show that the object/intention was to kill. This fake embroidery is, therefore, not to be attached any weight and we have no hesitation in concluding that only limbs and legs were intended to be affected by the blows actually delivered. Clause thirdly will, therefore, stand attracted. 36. Now comes the crucial argument of Sri Goel as to whether each member of the unlawful assembly can be vicariously held responsible for the murder of Cyan Singh even though the common object/intention was not to kill. Sri G. C. Chaturvedi, Advocate, who represented the said five appellants, on the contrary, argued that each member of the unlawful assembly is not necessarily guilty of the offence of murder, if it was not committed in pursuance of the common object of the assembly or such as the members of the assembly know to be committed in prosecution of the object i. e. if the second part of Section 149 of the Indian Penal Code is not attracted. 37. It is well known that an assembly of five or more persons actuated by or intending one or more of the common objects "as specified by the five clauses of Section 149 of the Indian Penal Code will be an unlawful assembly. This is also not open to doubt or suspicion that the second part of Section 149 of the Indian Penal Code, which deals with knowledge, implies much more than conjecture or speculation and further that Section 149 a$ a whole is declaratory of vicarious liability. What is the common object is initially a question of fact to be determined keeping in view the nature of the assembly, the arms it carries, the behaviour of its- members at the scene of incident and the nature and situs of the injuries inflicted, if on an evaluation and scrutiny of the evidence it is found that the common object/intention of the assembly was only to beat or for that matter to cause only grievous injury and one of the assailants delivers a blow on head region causing injury which proved fatal, the other members of the assembly cannot be said to have possessed knowledge that such an injury will be caused by a member of the assembly which would result in the death of the victim. In a case like this, only true person, who inflicted fatal injury is punishable under Section 302 of the Indian Penal Code, simplicities, his case having been attracted by clause thirdly of Section 300 others cannot be held guilty of that offence with the aid of Section 149. A decision of the Supreme Court reported in AIR 1961, CC 12. 5 - Shambhu Nath Singh v. State of Bihar may be usefully quoted here. Their Lordihips hold that all the members of the unlawful assembly cannot be held liable under Section 302/149 of the Indian Penal Code, if the commoa object of the members of the came assailants were held responsible under cause thirdly of Son 300 For reference in Thakur Dasft case reported in 1967 Allahabad. pat 495 seven persons arm with spear, Gupti and lathis had taken active Kin the assault itself and the death had resulted owing to loss of blood and hock In Rahvant Singh's case reported in AIR 1 were involved in the commission of the crime. They had not only tied can feet of the intended victim, but had covered his mouth also with five laser and had plugged his nostrils with cotton wool soaked land death was due to asphysia. It was held that the matter was covered by dausl thirdly' and both the participants were causing find taken Sin beating. There were nine fractures and thirty wounds had not page 2 1 of his judgment ). In this case also five persons were tried assault had not been convicted for that offence which fell under clause thirdly. 38. Thus, it is manifest that if clause 'thirdly' of Section 300 of the Penal Code is attracted and there was no common object to kill, rather Penal cock member un lawful, assembly lush who inflected such injuries; which where not to cause death in the ordinary course of nature; the wig; wild did not take part in the actual as had only a common design to beat cannot be vicariously held responsible for the offence of murder. 39. Now, as observed earlier, no case can bean authority on facts and 'rants its own factual problems. Let us recapitulate what has been assembly cannot be' Julys will not apply to them. It is significant that Gyan Singh and clause aridly win not who had inflicted. reefers, none of these five persons knowledge that grievous injuries persons had come tea optic read with icon 149 other counts is, however, unsustainable. 40. In the end comas the question of sentence. Four appellants, namely, Bichitra Singh, Daljeet Singh Paratnjit Singh and Sarvjit Singh have already remained in jail since their convection, i. e, for a period of 8 years which is more than the period for which they could have been sentenced. So far appellant, Sukhvinder Singh alias Pappu is concerned he was suit in his teens when lie com mitted the crime. Sufficient tine has lapsed and has settled down to his avocation and the ends of justice does not require that he be lodged in jail again in this crime. The period for which he remained in jail is, a our opinion, sufficient punishment. 41. In the result: (1) The appeal/revision, both preferred against the acquittal of Balbir Singh fail and are, hereby dismissed. (2) The appeal preferred by Jagdip Singh against his conviction abates. (3) The appeal of remaining nve persons, namely, Bichitra Singh, Daljit Singh, Paranijit Singh, Sarvjit Singh and Sukhvinder Singh a,as Pappu is allowed part. Their conviction under Section 302 of the Indian Penal Code read with Section 149 thereof and the sentence awarded there under are set aside and instead, each is convicted under Section 325 of the Indian Penal Code read with Section 149 thereof. They have been in jail for a period larger than they could have been sentenced under Section 325 of the Indian Peal Code. Their conviction under Section 323 of the Indian Penal Code with the aid of Section 149 thereof and also. under Section 148 of the Indian Penal Code are confirmed. All of them except Sukhvinder Singh alias Pappu have served out the sentence awarded under these two counts. The sentence awarded to Sukhvinder Singh alias Pappu under these counts shall stand substituted by the period already undergone. He is on bail. The sureties are discharged. (4) Appellants Bichitra Singh, Daljit Singh, Paramjit Singh and Sarvjit Singh are in jail. They should be released forthwith uncle s wanted in any other crime. By the Court.- Sri V. P. Goel, Advocate, orally prays that a certificate be issued for filing appeal to the Supreme Court of India. We do not find it a fit case for grant of Special Leave. Therefore, the prayer is not accepted. Appeals and Revision decided accordingly. .