SARWAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) IN the village Ajari Khurd, there is a parcel of land (Khasra No. 91), situate on its precincts. According to the prosecution this land comprised 'muafi', dedicated to Shivji's temple, located in the village. The land was under the cultivatory possession of the temple through its Pujari Gorunath According to the accused Sarwan this land was a 'johra' (Pasture land) on which every villager had a right to graze his cattle, Dispute arose between the two parties in respect of this land. A civil case relating thereto is still sub-judice. Both the parties were in possession of certain documentary evidence in support of their respective claim. On June 25, 1967, Gorunath, disciple of Sumernath Jogi, went to the field to till it for raising crop along with his hired labourers, Kishna (deceased) Mangilal, P. W. 2, Motaram, PW. 3, Ramkaran and Gangadhar, PW. 4. Kishna and Mangilal started ploughing the northern part of the land. The rest of the above-named persons remained towards its southern side with their ploughs. The accused Sarwan and 12 others, armed with spears, fbarchis' and lathis, rushed to the spot with a view to preventing Gorunath from undertaking sowing operation. The accused persons, namely, Sarwan, Sugana, Tarachand, Bhagwana S/o Uda and Bhagwana s/o Hardeve, pounced on Kishna with a spear and 'barchi'. They inflicted several injuries on his person and put an end to his life on the spot. The remaining accused, namely, Hariprasad, Mala, s/o Puran, Mala son of Sundar. Ganpat, Rekha, Lekhuram, Birbal and Goruram, assaulted Mangilal, P. W. 2, and caused a number of injuries to him with lathis. First information report of the incident (Ex. P. 9) was promptly lodged by Gorunath at 10 a. m. on 25. 6. 1967, with the police station, Jhunjhunu, giving requisite details of the whole happening. Shri Laxman Singh, P. W. 8, incharge, police station, Jhunjhunu, registered a case against the accused-persons under secs. 147, 148. 149, 302 read with 149, I. P. C. IN the course of investigation the police prepared site plan Ex. P. 10, seizure memo of the blood stained clothes of the deceased Kishna Ex. P. 11, seizure memo of blood stained spear Ex. P. 13 necessary documents. Autopsy of the dead body of Kishna was conducted by Dr. Satya Prakash Johari, P. W. 7, Medical Officer, INcharge Government Hospital, Jhunjhunu, on June 27, 1967. Following injuries were noticed on his person: - 1. INcised wound 2-1/2" x 1/2" x skin deep, on the anterior aspect of left forearm, in its middle one-third. 2 Penetrating wound with sharply cut edges, on the left side of the neck, just below the angle of mandible, going anteriorly and down-wards. Its size was 2" x 1/2" deep upto the vertebrae, penetrating from above downwards. 3. INcised wound 1-1/2" x 1/2" on the left occipital temporal region. 4. INcised wound 2-1/2" x 1/2" on the occipital parietal region, anterior- posteriorly placed. 5. Punctured wound 1/2" x 1/2" x 1/2" on the posterior aspect of left arm, lower one third. | 6. INcised wound 2-2/4" x 2/4" on the left fore-arm, obliquely cutting the skin and muscles. 7. Contusion 9" x 1-1/4" on the left side of the back, running obliquely, from the mid-line laterally. 8. Contusion 6" x 1-1/4" on the left loin, transversely placed. 9. Contusion 5' x 1-1/3" on the right loin, obliquely placed. The cause of death, in the opinion of the Doctor, was asphyxia and syncope due to opening of the trachea and aspiration of blood from the wound, resulting from cutting of the carotid vessels from the left side of the neck. All the injuries were ante mortem and injury No. 2 was sufficient in the ordinary course of nature to cause death.

(2.) THE same day Dr. Satya Prakash Johari, examined Mangilal. He found the following injuries on his person: - 1. Contusion 8" x 1/4" on the right side of the chest, on its lateral aspect, obliquely placed. 2. Contusion 9" x 1/4" on the right chest, posteriorly, extending from scapular region, down and inwards. 3. Contusion 6" x 1/4" on the left side chest, posterior lateral aspect. 4. Abrasion 3" x 2" on the left side of the neck, 5. Contusion 6" x 1-1/4" on the left glutial region, lateral aspect. 6. Generalised swelling of the left fore-arm, in hand, with a deep abrasion 1" x 1" on the posterior middle aspect of the left wrist. 7. Lacerated wound 1-3/4" x 1/4" on the posterior aspect of the right elbow. All these injures were simple and were caused by some hard blunt object. THEse injuries, the Doctor opined, could have been caused by lathis. Mangilal was admitted to the hospital as an indoor patient on June 25, 1967, and underwent treatment therein till July 22, 1967.

(3.) THE distinction between the 2 parts of the section has well been dealt with by the Calcutta High Court in the case of Jahiruddin vs. Queen-Empress (2 ). Ratio decidendi therein received the approval of their Lordships of the Supreme Court in Shambhu Nath's case [supra]. In Jahiruddin's case the common object of the assembly was simply to turn out the opposite party from certain huts in their occupation. In the course of the prosecution of that object, B, who had a gun, shot dead a person belonging to the opposite party and thus committed the offence of murder. A, the accused, who was the member of the unlawful assembly, knew that B was carrying a gun and that a murder was likely to be committed by B. It was held that A was vicariously liable under S. 302, read with S. 149, Indian Penal Code.