NANGE ALIAS GOPAL Vs. STATE

JUDGEMENT

(1.) Criminal Appeal No. 294 of 1880 has been filed by Vijai Kumar on his conviction and sentence under Sec tions 147, 302/149, 307/149 and 332/149, IPC passed by the Til Additional Sessions Judge, Varanasi. 2, Criminal Appeal No. 353 of 1980 has been filed by Nange alias Gopal against his conviction and sentence in the above sections by the 111 Additional Ses sions Judge, Varanasi. 3, Criminal Appeal No. 354 of 1980 has been filed by Bittu against his convic tion and sentence by the same Court in the above offences. 4. All the three appeals arise out of one conviction and sentence in Crime No. 169 of 1978 of Police Station Chowk, Varanasi out of the same incident, there fore, all the appeals have been taken to gether for disposal. 5. Appellants Vijai Kumar, Nange and Bittu have been sentenced to one year R. I. under Section 147, IPC. , Imprison ment for life under Section 302/149, IPC, regious imprisonment for five years under Section 307/149, IPC and rigorous impris onment for two years under Section 332/149, IPC. All the sentences have been directed to run concurrently. 6. The brief facts of the case are that there was a gang of one Sheo Sardar in district Varanasi. It used to do crimes. On 21-4-1978 S. I. Dalsingar Pandey PW-1, Who was on paudi duty. At about 6. 45 p. m. he was going from towards Brahm Nal to Neelkanth Mandir. In the way he met Head Constable Chandrabali Yadav (since murdered ). Constable Daya Shankar and Constable Jawahar Singh who in formed that the gang of Sheo Sardar has assembled in the small Mandir of Sheoji in Neelkanth Gali and is likely to commit some grave crime. On this information all the four police personnel reached at the Mandir at about 6. 45 p. m. and there in the light of electricity they saw that outside the Mandir at a Patti, Bhola, Ashok (both not tried) and Bittu (since convicted) were sitting. As soon they reached. Head Con stable Chandrabali Yadav caught hold of Bhola and started to search him to recover if there was any illicit weapon with them. In the meantime Sheo Sardar, Shambhu Giri (not tried) and Vijai Kumar (since convicted) and 2 or 3 other bandits, whose names were not known but who were rec ognised, came from inside the Mandir, Sheo Sardar exhorted and fired. It hit Jawahar Singh. Accused Nange alias Gopal (since convicted) caught hold of right hand of Chandrabali Yadav and Shambhu Giri (not tried) caught hold of left hand of Chandrabali Yadav and Nange and Shambhu exhorted to kill. On this Bhola made two fires at Chandrabali-Yadav which hit him and he fell down. Bhola and Sheo Sardar were constantly firing and exhorting, Ashok (since not tried) assaulted on the head of the infor mant Delsingar Pandey who suffered inju ries. Daya Shankar was also beaten by kick, fists and dandas. Sheo Sardar ran away alongwith his gang. The occurrence was witnessed by Sita Ram (PW-8) and Suraj Yadav. The accused persons could not be apprehended. 7. The informant Sub-Inspector Dalsingar Pandey SI went at the Police Station and lodged the first information report at 6. 55 p. m. The original first in formation report is Ext. K-l. A case was registered on the General Diary. The In vestigating Officer visited the spot. He recovered a few Chappals and prepared a Fard Ext. K-18. He also took some pieces of the blood stained Patiya and prepared a Fard Ext. K-19. He also took some sample of the plasters and prepared the Fard Ext. K-20. He also recovered some cartridges and prepared the Fard Ext. K-21. He also recovered the rod, by which Dal Singar Pandey, the informant was assaulted and prepared the Fard Ext. K-22. 8. Constable Jawahai Singh was sent for medical examiantion. He was medi cally examined at District Hospital, Varanasi on 21-4-1978 at 7. 25 p. m. He has got 8 injuries and except one, all the injuries were gun shot injuries. Injury No. 3 was simple abrasion. 9. Dalsingar Pandey was examined on 21-4-1978 at 8. 00 p. m. and he has got one lacerated wound at his head. This is the injury which is said to have been caused by iron rod. Besides, injury No. 1 he had got 3 abrasions. 10. Constable Daya Shankar Prasad was examined on 22-4-1978 at 8. 10 a. m. he had got only 2 contusions on his right fore-arm. 11. The dead body of constable Chandrabali Yadav was subjected to post mortem on 22-4-1978 and on his person 2 gun shot injuries were found. These are said to be the two fires, which are said to have been made by Bhola. The injury re ports are Exts. K-7 to K-9 and post mortem report is Ex t. K-2. 12. It is not clear as to whether Sheo Sardar, Bhola, Ashok and Shambhu Giri were arrested or not but accused Vijai Kumar, Nange and Birru were committed to the Court of Session by the Chief Judi cial Magistrate, Varanasi. 13. The learned Sessions Judge con solidated both the Sessions Trial Nos. 321 of 1978 and 199 of 1979 into one and took the evidence of the prosecution. 14. The prosecution examined PW-1 Dalsingar Pandey, Sub-Inspector, who is the informant of the case and injured eye witness, whose presence on the spot can not be doubted. 15. PW-2 Dr. S. M Das Gupta has done the post mortem of the dead body of Constable Chandrabali Yadav. He has stated that all the injuries of Chandrabali Yadav are possible to have been caused by fire. 16. PW-3 Constable Jawahar Singh is another eye and injured witness. He has narrated the entire prosecution story. 17. PW-4 Daya Shankar is a Police Constable. He is also said to have been assaulted on the spot. His injuries are said to be doubtful because he was not sent for medical examination on the same day along with the 'chitthi Mazrubi' but he was medically examined on the next day. For this, specific explanation by the prose cution that since the injuries of Daya Shankar were minor, he was directed to stay at the place of occurrence where the dead body of Chandrabali Yadav was lying and when he returned the other day in the morning, he was sent for medical exami nation. Therefore, the delay in his medical examiantion is fully explained, the Gen eral Diary entries specifically show that although 'chitthi Mazrubi' was not pre pared but Daya Shankar was directed to get himself medically examined. 18. PW-5 Subhash Singh is the Head Moharrir who had written the first infor mation report and prepared the other po lice papers. 19. PW-6 Dr. A. K. Rastogi had medi cally examined the injuries of Constable Jawahar Singh and Sub- Inspector Dalsin gar Pandey and had proved the injuries and injury reports. 20. PW-7 Dr. Prem Shankar Shukla has proved the injuries of Daya Shankar and injury report. 21. PW-8 Sita Ram is a witness of public and has proved the occurrence. 22. PW-9 Uma Shankar Singh is the constable who has brought the dead body of Chandrabali Yadav for post mortem. 23. PW-10 Surya Nath Yadav is the Investigating officer. 24. PW-11 Ram Jhalak Rai, Sub-Inspector has prepared the inquest report of the dead body of Chandrabali Yadav and Challan Nash, Photo Nash and report of post mortem. These are Exts. K-13 to K- 16. 25. After this the prosecution has closed the evidence. The statements of the accused persons under Section 313, Cr. P. C. were recorded. They denied the entire prosecution and alleged false implication. They did not lead any evidence in their defence. 26. After hearing the learned counsel for the parties, the learned Sessions Judge convicted all the three accused persons who faced their trial on the different charges and sentenced them as stated above. 27. Being aggrieved by their convic tion and sentence, the appellants have preferred these three appeals, which are being disposed of by a common judgment. 28. We have heard the learned coun sel for the parties and gone to the records. The death of Chandrabali Yadav has not been denied. The injuries of Dal Singar Pandey and Jawahar Singh have not been challenged. It is only said that the injuries of Daya Shankar are false and frivolous. There were two injured witnesses. There was no necessity for the prosecution to have fabricated one more injured witness. The reasons for late medical examiantion of Daya Shankar without a 'chitthi Mazrubi' has already been discussed above, the case of the prosecution cannot be said to be false and frivolous. The occurrence took place at 6. 45 p. m. The Po lice Station is just at distance of 500 steps from the place of occurrence. The first information report has been immediately lodged and there is absolutely no delay in lodging the first information report. 29. The case of the accused side is only that of denial. It is true that some of the accused persons could not be arrested and tried in this case but the case has to be discussed as it had come before the Court and on the close scrutiny of the entire evi dence, it is clear that there is sufficient evidence against the accused persons and they had rightly been convicted in this case. 30. Learned counsel for the accused persons argued and stressed that all the accused persons are bound and liable by their individual act because there is abso lutely no evidence that there was any un lawful assembly. 31. It was further argued that al though there is no criminal record of ac cused Bhola, Ashok and Bittu but even if they have got any record, their sitting to gether without any criminal intention is no bar under any provisions of law. 32. It was also argued that taking the prosecution case as correct, there is noth ing to show that the accused persons had got any common intention or common object. According to the first information report also Bhola, Ashok and Bittu were sitting at a 'patiya' outside the Mandir. Sheo Sardar is said to be sitting along with Nange, Shambhu Gin, Vijai Kumar and 2 or 3 more bandits inside the Mandir. It was argued that they were not at all sitting together and even if the prosecution case is taken to be correct, they were sitting at two places. 33. It was further argued that S. I. Dalsingar Pandey was going. The other police personnel also came. They were all in plain clothes and they informed that the gang of Sheo Sardar is to commit any grave crime. There cannot be any common object without any object to do any crime, it is not said what was that common ob ject. It is further not said who gave the information that they were to commit crime. It is further not said that any wit ness heard any of these accused persons talking that they will commit this particu lar crime soon after. 34. It was also argued that there is ab solutely no evidence of common object to commit any crime and it was again stressed that sitting of criminals together without any criminal intention or common object, will not make a case under Sections 147 and 148 or Section 149, IPC. 35. Again taking the first information report, Bhola, Ashok and Bittu were sit ting together. The police party came. They arrested Bhola, Ashok and Bittu. There is absolutely no evidence that these persons offered any resistance. Constable Chandrabali Yadav caught hold of Bhola and started to search him. Till this time there was absolutely no resistance. It was argued that 3 persons have already submit ted to the custody of the police. Where was the question of any common object or criminal intention. They even did not cry, Sheo Sardar rush up and save us. It was also argued that this fact was also sup ported from evidence. 36. In the statement of PW-1 it has come that Bhola, Ashok and Bittu were sitting. Chandrabali Yadav caught hold of Bhola and started searching him. Sheo Sardar out of his own, came out and ex horted. Similar is the statement of PW-3 Constable Jawahar Singh. He has stated in para 3 that there was 'mukhbiri regarding the intention of Sheo Sardar but the 'mukhbir' was not with them. He did not state what the 'mukhbir' actually informed them by which common object could be derived. 37. PW-4 Constable Daya Shankar also gave the same statement. 38. PW-8, an independent witness also stated in the same fashion. What comes out from the evidence is that 3 per sons were sitting outside the Mandir. Sheo Sardar and others were sitting inside the Mandir. Police party has apprehended Bhola, Ashok and Bittu and were taking search of Bhola. In the meantime Sheo Sardar came out and exhorted and made fire. No fire was made by Bittu and Vijai Kumar although Vijai Kumar had come out from inside but there is no evidence on record to show what was the earlier com mon object but there is nothing on record to show that on the exhortation of Sheo Sardar, Vijai Kumar fired. 39. It was argued that in the circum stances aforementioned, every body shall be bound by his individual act and there was no question of any common object and, therefore, the accused persons cannot be convicted with the aid of Section 149. IPC. 40. We fully agree with these argu ments of the learned counsel for the appel lants. There is no proof of any earlier common object or common intention, there is no evidence that any body has heard any talk by these persons to commit any crime. Bhola, Ashok and Bittu had already submitted to the custody of the police and this is Sheo Sardar, who all of a sudden, came out and exhorted, common object if any, was created thereafter. While the search of Bhola was being taken out, he did not assault any person. It is on the exhortation of Sheo Sardar that he fired at Chandrabali Yadav and caused the death of Chandrabali Yadav. Earlier when Chandrabali Yadav was making search of Bhola neither Ashok nor Bittu assaulted him. Therefore, any body, who is respon sible for the murder of Chandrabali, is Sheo Sardar or Bhola. Both of them have not been tried in this case. 41. The individual role of Bittu and Vijai Kumar is not said in the first infor mation report. It is also not said in the first informatkion report that they were armed with any fire arm, it is said in the state ment of PW-1 that Bittu, Vijai Kumar and 2 and 3 other persons beat constable Daya Shankar by kick, fists and dandas. 42. In the cross-examiantion of Dalsingar Pandey in para 12, he has stated that he has not written in the first infor mation report that Bittu and Vijay Kumar had assaulted Daya Shankar by kick and fists. 43. Similar is the statement of other eye-witnesses. There is nothing on record to show that Vijai Kumar and Bittu were armed with any 'danda as well. No body is going to believe that the accused persons had assembled to commit some grave crime who were without any deadly weapon. Thus, from the evidence, it ap pears that all the accused persons may be of one gang but they were not sitting with any common object. Merely because they were sitting together, there shall not be any presumption of common object and it is all of a sudden that the object of the as sembly became criminal by exhortation of Sheo Sardar but there being no premedita tion or common object. If all of a sudden a 'marpeet' took place, every body shall be guilty of his individual act. 44. Bittu and Vijai Kumar have as saulted the police party only by kick and fists. The police party, which got the in jury, was on their duty as public servant, Therefore, Vijai Kumar and Bittu shall be guilty only under Section 332, IPC. They have been convicted under Section 332/149, IPC as well for a period of two years' R. I. 45. The death of Chandrabali Yadav has been caused by Bhola on the exhorta tion of Sheo Sardar. He all of a sudden fired at Chandrabali Yadav. Earlier Bhola was not at all of criminal intention, he was surrounded by the police party. He was giving his search peacefully. Thereafter all of a sudden, on exhortation of Sheo Sardar, he fired. Therefore, Bhola alone is liable for his individual act of firing and killing of Chandrabaii Yadav. The other accused persons cannot be convicted under Section 302/149, IPC for the individual act of Bhola. 46. Likewise it is said that Sheo Sardar came out, exhorted and himself fired which hit Jawahar Singh. Jawahar Singh had got dangerous injuries on vital parts of the body. There was no assault by any other accused over Jawahar Singh. Therefore, Sheo Sardar is individually liable for having fired at Jawahar Singh under Section 307, IPC. There was no common object of other accused persons to fire at Jawahar Singh. Therefore, Vijai and Bittu etc. cannot be convicted under Sec tion 307/149, IPC for Sheo Sardar having fired at Jawahar Singh, Since the common object could not be proved, therefore, the accused persons cannot be convicted under Section 147, IPC. There is no evidence on record that Vijai Kumar and Bittu were armed with any weapon or were of any common object. Therefore, the sentence of Vijai Kumar and Bittu under Sections 147, 302/149 and 307/149, IPC is not at all justified and they are to be acquitted of all the charges. Both Vijai Kumar and Bittu have rightly been convicted of the charge under Section 332, IPC although it should not have been done with the aid of Section 149, IPC, 47. As regards Nange, his case is en tirely different. He was sitting inside the Mandir along with Sheo Sardar who was armed with deadly weapon. He came out along with Sheo Sardar and on the exhor tation of Sheo Sardar that these police people are harassing them, they should be killed. Nange. thereafter immediately caught hold of Chandrabali Yadav, who was taking search of Bhola. Criminal in tention of Nange is, therefore, clear that he caught hold of Chandrabali Yadav because he was searching Bhola. He caught hold of Chandrabali Yadav only because Sheo Sardar had exhorted to kill. Therefore, he had become of the common object with Sheo Sardar as soon as Sheo Sardar ex horted. Therefore, Nange is guilty under Section 147, IPC. It is because he caught hold of Chandrabali Yadav on the exhor tation of Sheo Sardar and thereafter Chandrabali Yadav was killed. Therefore, he is also guilty under Section 147, IPC for the murder of Chandrabali Yadav. He came out with common intention with Sheo Sardar. Sheo Sardar fired. Therefore, Nange is also liable for the fire made by Sheo Sardar over Constable Jawahar Singh. Therefore, he is also guilty under Section 307, IPC with the aid of Section 149, IPC. He shall also be liable of the acts of the other accused persons. Therefore, he is also guilty under Section 332, IPC for the assault over Dalsingar Pandey and Daya Shankar. Therefore, he is also guilty under Section 332, IPC with the aid of Section 149, IPC. 48. The net result is that Criminal ap peal No. 353 of 1980 (Nange v. State) is liable to be dismissed. 49. As regards appeals of Vijai Kumar and Bittu, these appeals are liable to be partly allowed and they are to be acquitted of the charges under Sections 147, 302/149 and 307/149, IPC and they are to be convicted and sentenced only for the charge under Section 332, IPC simplicitor, 50. We have heard the learned coun sel for the parlies on sentence as well. It was contended by the learned counsel for Bittu and Vijai Kumar that they have al ready remained in custody for more than 1- 1/2 years. They were not members of the gang of Shco Sardar. They had got no ear lier criminal history. There is also nothing on record to show that these two accused persons have taken part in any other crime after 1980. Thereiore, it was prayed that lenient view may be taken in the matter. 51. We have considered this aspect of the case as well and find that the period of already undergone, which is more than 1-1/2 years, shall be sufficient punishment for the appellants under Section 332, IPC. We. therefore, order as under: 52. Criminal Appeal No. 353 of 1980 (Nange v. State) is hereby dismissed. The conviction and sentence of Na inder Sections 147. 302/149, 307/149', 2/'49 IPC is hereby maintained. He is on bail. He shall be taken into custody forthwith to serve out the sentences. 53. Let a copy of this order be sent to Chief Judicial Magistrate, Varanasi for taking him into custody to serve out the sentences. The Chief Judicial Magistrate, Varanasi will report compliance within 3 months. 54. Criminal Appeal Nos. 294 of 1980 (vijai Kumar v. State) and 354 of 1980 (Bittu v. State) are partly allowed and partly dismissed. The conviction and sen tence of Vijai Kumar and Bittu under Sections 147, 302/149 and 307/149, IPC is hereby set aside and they are acquitted of these charges. Their conviction under Section 332, IPC is maintained and the sentence is modified to the extent of the period already undergone. They are on bail. They need not surrender and their bail bonds are cancelled and the sureties are hereby discharged. Appeala postly allowed .