GAFOOR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellants were convicted by the Sessions Judge, Bharatpur, by his judgment Dated November 7, 1973, for the offences under Sections 302/149, 326/149, I. P. C, and some of them have been convicted under Sections 148, 147, 326, 324, and 323 I. P. C. Under Section 302/149, I. P. C. , they have been sentenced to imprisonment for life and under section 326/149, and 326, I. P. C, they have been sentenced to five years' rigorous imprisonment and to pay a fine of Rs. 500/-, in default of payment of fine to undergo a further rigorous imprisonment for one year. Those, who have been convicted for the offence under Sec. 323, I. P. C, have been sentenced to one year's rigorous imprisonment and to pay a fine of Rs. 200/-, in default of payment of fine to undergo further rigorous imprisonment for six months and those who have been convicted under Sec 148, I. P. C, have been sentenced to three years rigorous imprisonment and those, who have been convicted under Sec. 147, I. P. C, have been sentenced to two years' rigorous imprisonment. THE substantive sentences have been ordered to run concurrently.

(2.) THE prosecution case, as unfolded at the trial, is that there is a Rathe-wala field situated in the out skirt of village Khainchtan belonging to Chav Khan and Naval Khan. THEre had been commission of theft on that field earlier as well, so before dawn on 24. 3. 1969 Chav Khan and his brother Amru (P. W. 11) concealed themselves in the field of Mehtabi. THEy observed Kalu alias Muhruddin and lliyas tying the cut crop of gram in bundles. THEy lifted those bundles and started from the field. Amru (P. W. 11) was sent to the village by Chav Khan to call some men from the village. He, thereupon, visited the village and awoke Atar Khan, Hulla and Dhoop Khan and told them that Kalu and Iliyas are tying gram, so they have been called by Chav Khan. THEreupon all the three accompanied Amru to the fields of Rathewala, which was at a distance of 10-12 fields. Kalu and Iliyas met them carrying bundles of gram at the Charkhi of Sallu Hazi. Chav Khan had also arrived at the Charkhi of Sallu Haji following Kalu and Iliyas. On seeing them, both of them dropped their bundles and ran away towards the bungalow of Papaiya, which was at a distance of about 3-4 fields from Sallu Hazi's Charkhi. THEn they lifted the two bundles and brought them to the Per (thrashing floor) of Atar Khan THEy did not carry the bundles to the Per of Chav Khan, but Chav Khan's Per adjoins the Per of Atar Khan. In the F. I. R. Statement (Ex. P/1), by Makbooli (P. W. 1), it was stated that when Hulla and Atar Khan had gone to the field of Rathewala before dawn, they observed Kalu, Iliyas and Rujdar tying the cut crop of gram. THEy were prevented there. THEn they left the bundles and ran away. THEreafter Hulla and Atar Khan brought the gram crop at the thrashing floor, which is near the village on the way of Kundan Nagla and they along with Dhoop Khan started winnowing operations, it is alleged that at 8. 03, a. m. , 17 accused persons assembled at the bungalow of Papaiya and thereafter they come to the Per of Atar Khan armed with Pharsas, Ballam and Lathis. According to Amru, Sallu came a little ahead of them by 10-12 paces and told that they will settle the matter regarding the gram and the report may not be lodged to the police. Soon thereafter the accused persons opened an attack on Atar Khan, Hulla and Dhoop Khan. On hearing their alarm Kamal Khan (P. W. 2), Ajmat (P. W. 3), Muttar (P. W. 9), Sampat (PW 10), Amru (P. W. 11), Smt. Mahto (P. W. 19), and Chand Mal (PW. 20) were attracted to the crime scene. Makbooli was already at the place of occurrence. THEse witnesses were also dealt with injuries by the members of the accused party. According to F. I. R. version Lila (P. W. 21), Ratti (P. W. 22), Chahat (P. VV. 23) and Inayat (P. W. 24), residents of Sindhara had also arrived there and rescued them. THE accused persons then went away from the spot. Out of the injured persons, Atar Khan and Hulla died. Atar Khan died on the way to Kama and Hulla died on the way when he was being carried from Kama to the General Hospital, Bharatpur. Jaswant Singh (P. W. 4), A. S. I. , Police Station, Kama, when came to know about the occurrence, visited the Govt. Dispensary, Kama, at about 3. 00, p. m. He recorded the statement (Ex. P/1) of Makbooli (PW. l), wife of the injured Chand Mal. He sent the statement to the Police Station for registration of the case and he commenced investigation. On receipt of the F. I. R. statement (Ex, P/l), case under Sections 148, 149, 302, 307 and 324, I. P. C , was registered by the S. H. O. at 4. 30, p. m. Shri Jaswant Singh then prepared the Panchnama Lash (Ex. P/3 ). At about 5. 00, p. m. , investigation was taken by Shri Karan Singh (C. W. I ). Dr. Nathta Mal (P. W. 8) conducted the autopsy on the dead body of Atar Khan. He found eleven injuries on the person of Atar Khan, out of which, eight were incised wounds, two were contusions and one was an abrasion. Two incised wounds were grievous and one contusion was grievous. THE contusion has caused fracture of the right humerus bone. Out of the two grievous incised wounds, one grievous wound was an ulna bone cut at the wrist. THE grievous incised wound, which proved fatal, was an incised wound 8" x 1-1/4" and bone deep, whereby the left parietal and temporal bones were cut down to the brain matter. According to him, this injury No. 7 on the head, was sufficient to cause death in the ordinary course of nature. THE Post Mortem Report is Ex. P/25. He also examined the injuries on the persons of Muttar (P. W. 9) Mst. Kapoori, Mst. Mehto (P. W. 19) and Sampat (PW. 10) on 25. 3. 1969 between 10. 00, a. m. , to 10. 35, a. m, Muttar had two contusions vide injury report Ex. P/21, Mst. Kappori had one swelling and one abrasion vide injury report Ex. P/22, Mst. Mehto had one swelling and two abrasions vide injury report Ex P/23, Sampat had six abrasions and two swellings vide injury report Ex. P/24. THE injuries on the persons of all these injured were simple in nature. Dr. Banshi Dhar (P. W. 15) conducted the Post Mortem Examination on the dead body of Hulla on 25. 3 1969 at 12. 35, p. m. In all he found eleven injuries on the person of Hulla, out of which three were incised wounds, three were lacerated wounds, one bruise, one contusion, two abrasions and one injury in the nature of bleeding from the left ear and both sides of nose. Out of the eleven injuries, three injuries were grievous, two by blunt weapon and one by sharp weapon. THE blunt weapon grievous injuries were in the nature of compound fracture of tibia of fibula resulting from the lacerated wound on the right lower one third of the leg and the other was fracture of nasal bone resulting from contusion 1/2"x1/2" withecchymosis on the nose just near the nasal bridge. Injury No. 9 was a fatal injury. According to the Doctor, the incised wound of the occipital region was sufficient in the ordinary course of nature to cause death, as the bone underneath was cut. THEre was one lacerated wound on the left parietal occipital region, which was bone deep. He also examined the injuries on the person of Kundan, Ajmat Amru, Dhoop Khan and Chand Mal. He found one abrasion and one complaining of pain on the person of Kundan. On the person of Ajmat be found one lacerated wound, one contusion, one bruise and one abrasion. On the person of Amru one incised wound was found on the left groin and one abrasion on the left shoulder. On the person of Dhoop Khan, he found one incised wound on the left upper arm causing fracture of the humerus bone and the rest of the three injuries on his person were in the nature of lacerated wound, abrasion and bruise. Chand Mal had two incised wounds and one contusion. THEre was a depressed fracture of the frontal bone. THE other incised wound was on the middle of vertex vertical touching the fore-head. Karan Singh S. H. O. (CW 1) conducted spot investigation and also arrested the accused persons on various dates and on their information and at their instance recoveries of weapons were also effected. After completion of investigation, 15 accused persons were challaned and they were committed by the Addl. Munsif-Magistrate, Deeg, by his order dtr 28. 4. 1971. In respect of two accused persons, namely Suleman and Sahab Khan, cognizance was taken by the learned Magistrate on 14 10. 1970 and he conducted an inquiry against them, but during the pendency of the inquiry, the accused Suleman died. However, after inquiry Sahab Khan was committed on 8. 1. 1973 to stand trial for the offences under Sections 147, 323 and 302/149, I. P:c, Both the Sessions Cases, that is, Sessions Case No. 12 of 1971 against fifteen accused persons and Sessions Case No. 7 of 1973 against the accused Sahab Khan, were consolidated by the learned Sessions Judge, vide order dated 8. 1. 1973 and a joint trial was conducted. During the pendency of the trial, the accused Sallu also died. Thus, in all fifteen accused persons were tried. THE accused were charged of the various offence, but they denied the charges and claimed to be tried. At the trial, the prosecution examined as many as twenty- five witnesses and the statement of the Investigating Officer was recorded as a Court witness. THE statements of the accused persons were recorded, in which they denied the prosecution case and stated that they have been falsely roped in out of ill-will, as they belong to the party of Suleman. While the complainant and the prosecution witnesses belong to the party of Bhagwat and Kamal Khan. THEy denied having given any information and having effected any recoveries. THE accused persons examined one witness in defence Ishaq (D. W. I ). THE learned Sessions Judge found the case against the appellants proved, whereas benefit of doubt was given by the learned Sessions Judge to the six accused persons, namely. Sahab Khan, Iliyas, Deenu, Majra, Bhagmal and Kamar Khan. It was found by the learned Sessions Judge that the nine accused persons were the members of the unlawful assembly, the common object of which was to cause murder and to cause grievous injuries with sharp weapons. Consequent to that finding, the learned Sessions Judge convicted and sentenced the accused persons for the offences under Sections 302/149 and 326/149, I. P. C. , and for other individual offences. Dissatisfied with their convictions and sentences the present appeal is filed.

(3.) WE have carefully considered the rival submissions made before us. It is a serious question in the instant case as to what was the common object of the unlawful assembly? Was it simply giving of severe thrashing or beating with Pharsas and Lathis So far as spears are concerned, it appears that spears where not used) or the common object was to cause murder of Atar Khan and Hulla? For the determination of this question, relations between the parties are quite significant Along with the relations, what culminated in the occurrence, cannot also be ignored. Along with the relations and the back-ground, in which the occurrence took place, the injuries, which had been inflicted in the occurrence, are also required to be given due consideration. But the first two factors need to be given much more weight and predominantly those factors would give us the clue to the state of mind of the assailant-party. Makbooli (PW. l) and other witnesses have clearly stated that before this occurrence they had no quarrel with the accused persons. They had love and affection with each other. The accused persons were not inimical or hostile to them and the members of both the parties are the descendants of a common ancestor. When such were the relations between the members of the two parties, then it is unbelievable that in the background of a tripple incident of stealing, the members of the accused-party would have formed a common object to kill any member or members of the victim-party. So looking to the relations and the circumstances, which led to the occurrence, it cannot reasonably be inferred, said and found that the accused persons formed an unlawful assembly with a common object to kill any member or members of the complainant party. Even the injuries on the person of Atar Khan and Hulla indicate that such was not the common object of the unlawful assembly, as there were only single blow on the heads of both. The other injuries mostly are on limbs and other on non-vital parts of the body. On the person of Hulla, there were two grievous injuries caused by blunt object resulting into fracture of tibia and fibula bones of the right leg and fracture of nasal bone. There was one lacerated wound on the left parietal occipital region. Besides a fatal blow on the head with sharp weapon, there were two incised wounds, one on the left forearm and the other on the left scapular region. Atar Khan had only one head injury and there were no other injuries on any vital part of the body, although he had eight incised wounds and as a result of incised wound, his ulna bone was also cut. The death of the two had also not be instaneous. From the injuries as well, thus it can be inferred that the common object of the unlawful assembly was to, cause grievous injuries on the person of Atar Khan and Hulla and any one or two members of the unlawful assembly exceeded the common object and inflicted fatal blows on the heads of Atar Khan and Hulla. Still the question is that when the members of the assailant-party were armed with pharsas and Lathis and intended to open attack with such lethal weapons causing grievous injuries, whether knowledge can be attributed to them that their actions may likely to result in death? In order that the case may fall under the second part of Sec. 149, I. P. C. , the prosecution is required to establish not only the mere possibility of action resulting into the death, but a probability of that and a definite knowledge on the part of the assailant-party of that probability.