Daya Kishan vs State Of Haryana

appeal filed by the appellant and confirmed judgment 2 dated January 19, 2004, passed by the learned Sessions

Judge, Sonipat in Sessions Case No. 21 of 1999/2003

convicting the appellant (1) under Section 302 read with

Section 149 of Indian Penal Code (IPC) and sentencing

him to R.I. for life and fine of Rs.3,000/- in default R.I.

for two years, (2) under Section 307 read with Section

149 IPC and sentencing him to R.I. for seven years and

fine of Rs.2,000/- in default R.I. for one year, (3) under

Section 323 read with Section 149 IPC and sentencing

him to R.I. for one year and (4) under Section 148 IPC

and sentencing him to R.I. for two years.

2. The facts emerging from the record of the case are

as under: -

Bhale Ram is a resident of Village Jagsi. He has

constructed shops on Bus Adda of Village Jagsi. There

is a liquor vend in one of the shops constructed by

him, while one shop, i.e., tea stall was being run by his

son Sanjay and nephew Rajesh, son of Balbir. Two

other shops are lying vacant and there is land behind

these shops for tethering the cattle. According to the 3 prosecution case a civil suit between Bhale Ram and

the appellant regarding the land was pending since

long time. The dispute relating to land was referred to

Panchayat of the village. It was the claim of Bhale

Ram that the said dispute was settled by the

Panchayat but thereafter also the members of the

family of the appellant were bearing a grudge against

him and his family. The incident in question took

place on November 30, 1998. At about 7.00 P.M. on

the said date Sanjay and nephew of Bhale Ram were

sitting in the shop when accused No. 1 Krishan, son of

the appellant, came to the shop and asked for some

goods. The goods were given by Sanjay to him. When

Sanjay demanded money, an altercation ensued.

Krishan threatened Sanjay that he would burn him.

Krishan went back to his house, which was just

behind the shop and after a short time (1) Krishan, (2)

Pohla @ Sat Narayan, both sons of the appellant Daya

Kishan, (3) the appellant Daya Kishan himself, (4)

Ajmer and (5) Raja, both sons of Lalchand Bairagi,

came there. They raised lalkara saying that Sanjay 4 would not be spared by them. Pohla was armed with a

gun whereas Ajmer was armed with Jelli and other

accused including the appellant were armed with lathi.

On coming to the place of incident, Pohla at once fired

a shot at Rajesh from his gun, which hit on the chest

of Rajesh. When Sanjay went to the rescue of Rajesh,

Pohla fired at Sanjay as a result of which Sanjay

sustained injuries. The appellant gave a lathi blow on

the right eye of the informant Bhale Ram whereas

other accused, namely, Ajmer caused injury to the first

informant with a jelli and Krishan gave a lathi blow on

the wrist of the informant. The other assailants

caused injuries to the informant's daughters, namely,

Kamlesh and Meena and wife Kishni and left. The

injured were taken to Health Centre, Gohana from

where they were referred to PGIMS, Rohtak. When

they reached PGIMS Hospital, Rohtak, Rajesh was

declared brought dead whereas others were admitted

to the hospital. The first informant Bhale Ram had

also caused injury to the appellant in self-defence. The

Head Constable on duty at PGIMS Hospital, Rohtak, 5 had informed the police station about the injured

having been admitted in the hospital for treatment.

Therefore, ASI Ram Prakash went to PGIMS Hospital

and recorded the statement of Bhale Ram. The ASI

sent the statement to P.S. Baroda for registration of

FIR. At the police station, FIR was registered against

the accused for commission of offences punishable

under Sections 148, 149, 323, 307 and 302 IPC as well

as under Sections 27, 54 and 59 of the Arms Act.

3. The Investigating Officer recorded statements of

the witnesses, who were found to be conversant

with the facts of the case. Inquest was held on

the dead body of the deceased and arrangements

were made by the ASI for conducting post mortem

examination on the dead body of the deceased.

On completion of the investigation the appellant

and three other accused were charge-sheeted in

the court of learned Judicial Magistrate, First

Class, Gohana for commission of offences 6 punishable under Sections 148, 149, 323, 307

and 302 IPC as well as Sections 27, 54 and 59 of

Arms Act. As the offences punishable under

Sections 307 and 302 IPC are exclusively triable

by Court of Sessions, the case was committed to

Sessions Court, Sonepat for trial. In the Charge-

sheet it was mentioned that accused Sat Narayan

was absconding and declared proclaimed

offender. Subsequently, he was arrested and a

supplementary challan was submitted resulting

into registration of Sessions Case No. 122 of

1999.

4. The learned Sessions Judge framed charge

against the appellant and other accused for

commission of offences punishable under

Sections 148, 149, 323, 307 and 302 IPC. The

same was read over and explained to them. They

pleaded not guilty to the same and claimed to be

tried. The prosecution, therefore, examined 7 several witnesses and produced documents in

support of its case against the appellant and

others. In his statement under Section 313

accused Krishan denied all the allegations

levelled against him by the prosecution. He

stated that when he was present in his house

with his father Daya Kishan, i.e., the appellant

and ladies, Sanjay, who was armed with Gandasa

along with 20 to 25 persons armed with weapons

came to his house and raised lalkara to teach a

lesson to them. According to him Sanjay gave

Gandasa blow to him and other persons who

were in the house and therefore in the defence of

himself (Krishan) and other members of the

family, his father Daya Kishan (`the appellant'

therein) fired a shot from a gun. Krishan further

mentioned in his statement that other accused

namely Ajmer, Sat Narayan and Raja were not

present in the house.

8

Ajmer in his further statement stated that he

was not present at the time of occurrence and was

falsely implicated.

The appellant in his statement under Section

313 of Cr.P.C. denied the allegations of the prosecution

and mentioned that when he was present in his house

along with his son Krishan and ladies, Sanjay, who was

armed with Gandasa and came with 20 to 25 other

persons armed with weapons came to his house.

According to him, after raising lalkara to teach him and

others a lesson, Sanjay gave Gandasa blow to him and

other persons and, therefore, to rescue him and his son,

Krishan, he fired a shot from a gun and other persons,

namely, Ajmer, Raja and Sat Narayan were not present

at all.

Accused Raja denied all the allegations of the

prosecution and stated that he was not present at the

place of incident. In defence the accused examined (1)

Dr. Gaurav Bhardwaj as DW-1, (2) Bhan Singh as DW-

2, (3) Khajan Singh as DW-3 and (4) Dr. S.S. Gupta as

DW-4.

9

It may be mentioned that after recording of

defence evidence was over, three other accused, i.e.,

Krishan, Ajmer and Raj Singh alias Raja jumped the

bail. Their presence could not be procured despite the

proclamation issued by the learned Additional Sessions

Judge, Sonipat. Ultimately, they were declared

proclaimed offenders and in such circumstances,

Sessions Case No.121 of 1999 was tried and decided

only against the present appellant. However,

subsequently Raj Singh alias Raja was also arrested and

his trial was concluded. Raj Singh was convicted under

Section 148/302/307/323 read with Section 149 IPC

and was visited with sentences mentioned in the

judgment.

5. On appreciation of the evidence adduced by the

parties, the learned Judge came to the conclusion

that it was proved by the prosecution beyond

reasonable doubt that deceased Rajesh had died

a homicidal death. Placing reliance on the

depositions of the injured informant and other 10 witnesses, the trial court concluded that it was

proved by the prosecution that there was no delay

in lodging the FIR nor any evidence could be

produced to suggest that the First Information

Report was filed after due deliberation or that the

accused were falsely implicated. After referring to

the prosecution story as narrated by the

witnesses and defence version as narrated by the

defence witnesses, the learned Judge came to the

conclusion that the incident had taken place at

the site mentioned by the prosecution and not at

the house of the accused. The learned Judge

held that the deceased Rajesh had died because

of the shot fired on him from a gun by Pohla @

Sat Narayan and he had also injured witness

Sanjay, who had gone to the rescue of the

deceased Rajesh. According to the learned Judge

it was not probablised by the defence that the

appellant had fired shot at deceased Rajesh and

Sanjay in exercise of right of self-defence whereas

the injuries sustained by the appellant were 11 explained by the first informant Bhale Ram. The

learned Judge held that it was proved by the

prosecution that the accused had formed an

unlawful assembly, common object of which was

to cause death of Rajesh and injure other

witnesses and, therefore, the appellant was liable

to be convicted under Section 302 read with

Section 149 IPC, Section 307 read with Section

149 IPC, Section 323 read with Section 149 IPC

and Section 148 IPC. The learned Judge

accordingly convicted the appellant and imposed

sentences referred to above. It may be noticed

that in Sessions Case No.122 of 1999/2003

accused Sat Narayan alias Pohla was released on

interim bail vide order dated 5.4.2000. His bail

was continued till the next date of hearing. On

27.4.2000, when Sat Narayan failed to surrender

before the court, warrants for his arrest were

issued. Despite best efforts, his presence could

not be procured and hence he was declared

proclaimed offender vide order dated 16.1.2001 12 by the learned Additional Sessions Judge,

Sonipat. Thus, Sessions Case No.122 of

1999/2003 has remained unconcluded. It was

clarified by the learned Sessions Judge that

finding of conviction recorded against the present

appellant would not amount to expression of

opinion for or against other remaining four

accused unless they and the prosecution are

heard. A direction was given by the learned

Judge that file of this case and that of Sessions

Case No.122 of 1999/2003 should be consigned

to the record room but should be restored as and

when the accused who are declared proclaimed

offenders are produced by the police for hearing.

6. Feeling aggrieved, the appellant preferred

Criminal Appeal No. 277-DB of 2004 before the

High Court of Punjab and Haryana at

Chandigarh. The Division Bench of the High

Court dismissed the same by judgment dated 13 August 21, 2006, giving rise to the instant

appeal.

7. This Court has heard the learned counsel for the

parties at length and considered the record of the

case summoned from the trial court.

8. The fact that the deceased Rajesh died a

homicidal death is not challenged before this

Court. PW-3, Dr. Vimal Kumar Sharma stated in

his testimony that he had conducted post mortem

examination on the dead body of the deceased

Rajesh on December 1, 1998 at about 2.30 P.M.

and found that there were bluish circular 0.5 cm

to 1.00 cm in diameter multiple holes on the

anterior surface of chest and upper part of

abdomen in the area of 25 cm x 22 cm starting

from 5 cm. above the nipple and 6 cm. above the 14 umbilicus. Margins were abraded and inverted.

According to him on dissection the internal

organs were found perforated and pellets had

pierced the internal organs. What is mentioned

by him is that 26 pellets were found on internal

examination of the body, which were handed over

to the police. According to the doctor, the cause

of death of the deceased was shock and

haemorrhage caused by fire arm injuries, which

were ante mortem in nature and sufficient to

cause death in ordinary course of nature. The

testimony of the doctor, who performed autopsy

on the dead body of the deceased, gets complete

corroboration from the contents of post mortem

notes produced by the prosecution. On the facts

and in the circumstances of the case this Court is

of the opinion that it is proved beyond pale of

doubt that the deceased Rajesh had died a

homicidal death.

15

9. The trial court as well as the High Court had

relied upon the testimony of injured informant as

well as other witnesses and had rightly recorded

the conclusion that the deceased had died

because of shot fired at him by the accused Pohla

from his gun. The Sessions Court referred to the

injuries sustained by Sanjay and has correctly

come to the conclusion that he had sustained

injuries from the shot fired by the accused Pohla.

The other findings recorded by the Sessions

Court and the High Court relating to commission

of offences under Sections 323, 307 and 148 IPC

are based on appreciation of reliable evidence.

The learned counsel for the appellant has failed

to satisfy this Court that those findings are either

perverse or not borne out from the evidence.

Under the circumstances those findings deserve

to be confirmed and are hereby confirmed. 16

10. The only point argued was that the appellant

could not have been fastened with the liability

under Section 302 read with Section 149 IPC for

the death of Rajesh, which was caused by the

accused Pohla @ Sat Narayan. According to the

learned counsel for the appellant, the prosecution

has not proved that common object of the

unlawful assembly was to cause death of the

deceased Rajesh, but at best it can be said that it

was proved by the prosecution that common

object of the assembly was to teach Sanjay a

lesson and in that process to injure him and,

therefore, the instant appeal should be accepted.

It was maintained that the act of Sat Narayan of

firing a shot at Rajesh was his individual act and,

therefore, the appellant should not have been

convicted for murder of Rajesh with the aid of

Section 149 IPC. The learned counsel

emphasised that the prosecution has failed to

prove that the appellant knew that death of

Rajesh was likely to be caused by any member of 17 the unlawful assembly in prosecution of the

common object because common object of the

unlawful assembly was to teach a lesson to PW-

10, Sanjay and, therefore, the conviction of the

appellant under Section 302 with the aid of

Section 149 IPC should be set aside.

11. The learned counsel for the State contented that

the appellant himself armed with a lathi was a

member of unlawful assembly, common object of

which was to cause death of Sanjay as well as

those who were accompanying him and,

therefore, it is not correct to say that the

provisions of Section 149 IPC would not apply to

the facts of the case. According to the learned

counsel for the State, the appellant, who was a

member of the unlawful assembly, had come with

other four accused and was armed with lathi and

after fatal injury was caused to Rajesh and

Sanjay was seriously injured with others, the 18 appellant had left the place of incident with other

accused and, therefore, the Sessions Court and

the High Court committed no error in convicting

the appellant under Section 302 with the aid of

Section 149 IPC for causing death of deceased

Rajesh. What was maintained was that sufficient

evidence was brought on record by the

prosecution to prove that the appellant had

known that death of the deceased Rajesh was

likely to be caused by any member of unlawful

assembly in prosecution of the common object

and, therefore, well recorded conviction of the

appellant under Section 302 read with Section

149 IPC should be upheld by this Court.

12. Section 149 IPC creates a constructive or

vicarious liability on the members of the unlawful

assembly for the unlawful acts committed

pursuant to the common object by any other

member of that assembly. The basis of the

constructive guilt under Section 149 IPC is mere

membership of the unlawful assembly, with the 19 requisite common object or knowledge. This

Section makes a member of the unlawful

assembly responsible as a member for the acts of

each and all, merely because he is a member of

an unlawful assembly. While overt act and active

participation may indicate common intention of

the person perpetrating the crime, the mere

presence in the unlawful assembly may fasten

vicariously criminal liability under Section 149.

There are two essential ingredients of Section

149, viz., (1) commission of an offence by any

member of an unlawful assembly and (2) such

offence must have been committed in prosecution

of the common object of that assembly or must be

such as the members of that assembly knew to be

likely to be committed. Once the court finds that

these two ingredients are fulfilled, every person,

who at the time of committing that offence was a

member of the assembly has to be held guilty of

that offence. After such a finding, it would not be

open to the court to see as to who actually did the 20 offensive act nor it would be open to the Court to

require the prosecution to prove which of the

members did which of the offensive acts.

Whenever a court convicts any person of an

offence with the aid of Section 149, a clear finding

regarding the common object of the assembly

must be given and the evidence discussed must

show not only the nature of the common object

but that in pursuance of such common object the

offence was committed. There is no manner of

doubt that before recording the conviction under

Section 149 IPC, the essential ingredients of

Section 149 IPC must be established.

13. Applying the abovementioned well settled

principles to the facts of the present case, this

Court finds that the prosecution has not led any

evidence to prove that the accused party had any

grievance or grudge against the deceased Rajesh,

who was nephew of the first informant Bhale 21 Ram. The only fact, which can be held to be

proved by the prosecution, is that the accused

Krishan had an altercation with Sanjay relating

to purchase of some goods, after which Krishan

had threatened Sanjay and had then left the shop

and come back within a short duration with other

four accused including the appellant, who were

variously armed. The further fact proved by the

prosecution is that immediately on coming to the

place of incident, the son of the appellant named

Sat Narayan @ Pohla had fired a shot at Rajesh

without any provocation or previous enmity or

any other reason. It may be mentioned that the

defence had tried to prove enmity between the

first informant and the appellant but the

substantive evidence of first informant Bhale

Ram, examined as PW-4, and injured Sanjay,

examined as PW-10, in fact goes to prove that

there was no such dispute relating to the land

and/or enmity between the first informant Bhale

Ram and the appellant. The record does not 22 indicate that any altercation had taken place

between Krishan, who is son of the appellant, and

deceased Rajesh when accused Krishan had gone

to the shop of injured Sanjay for purchasing

certain articles. In fact, the altercation had taken

place between Krishan and injured Sanjay.

Though it was the case of the prosecution that

after reaching the place of incident, the members

of the unlawful assembly had given lalkara before

the attack, the first informant in his substantive

evidence before the court has not mentioned

anything about the said lalkara though it was so

mentioned by him in his FIR. Thus, the fact that

lalkara was made before the attack will have to be

disbelieved. If the evidence of the injured witness

is appreciated in the above background, it

becomes evident that no evidence could be

adduced by the prosecution to establish that

common object of the unlawful assembly was to

do away with Rajesh or cause any injury to him.

As mentioned earlier the evidence clinchingly 23 establishes that immediately after reaching the

place of incident a shot was fired by accused

Pohla from his gun. It would have been a

different matter if Rajesh had suffered injuries in

some other manner, e.g., Rajesh had tried to

intervene when Sanjay was being attacked and

was shot at. In such circumstances provisions of

Section 149 IPC could have been well invoked.

There is no evidence regarding meeting of minds

or formation of the common object even at the

spur of the moment, when Pohla immediately

after reaching the place of incident shot at the

deceased Rajesh. There is no evidence suggesting

that the appellant said something to indicate that

he wanted the deceased to be done away with.

There is nothing to establish that the appellant

knew that Pohla would cause fatal injuries to the

deceased, though the appellant must have

anticipated that Pohla would cause injuries to

Sanjay. In the present case, no overt act is

attributed to the appellant so far as the deceased 24 is concerned. Mere fact that the appellant was

armed with a lathi by itself would not prove that

he shared common object with which the main

accused Pohla was inspired. The prosecution has

not led the evidence to establish nexus between

the common object and the offence committed.

The appellant, being father of the accused

Krishan, who had an altercation earlier with

injured Sanjay, had accompanied Krishan, which

can be termed as natural conduct on the part of

the appellant. It is relevant to notice that in the

course of the incident the appellant himself had

sustained serious injuries. The testimony of PW-

14, Dr. Rajesh Saini indicates that he had

examined the appellant Daya Kishan on

December 1, 1998 at 2.30 P.M. and noticed

abrasion of 1.5 cm x 0.2 cm on anterior surface of

left leg and swelling around the abrasion.

According to him the movements of leg were

restricted and he had also found lacerated wound

of 6 cm x 0.3 cm on left parietal region. The 25 testimony of Dr. Gaurav Bhardwaj, examined as

DW-1, makes it clear that the appellant had

sustained fracture of both bones of the left leg for

which POP cast was given. As noticed earlier the

first informant Bhale Ram has mentioned in his

First Information Report itself that he had caused

injuries to the appellant in exercise of his right of

self-defence. The record does not indicate that

the injuries sustained by the appellant were

caused by deceased Rajesh. It is not the case of

the prosecution that the appellant retaliated or

asked others to attack the first informant despite

having received serious injuries, which would

indicate that the appellant had no grudge nor

shared the object with which the accused Pohla

had fired shot at the deceased Rajesh. The only

circumstance on the basis of which the

prosecution wants to hold that the common

object of the unlawful assembly was to murder

Rajesh is that Pohla had a gun and the appellant

was a member of an unlawful assembly. The test 26 for application of Section 149 IPC as suggested by

the prosecution cannot be accepted. On the

peculiar facts and in the circumstances of the

case it can be safely concluded that the appellant

did not share common object of one of the

members of the unlawful assembly to cause

death of Rajesh. The appellant cannot be

reasonably attributed with knowledge that there

was likelihood of commission of murder of

Rajesh, because no altercation or quarrel had

taken place between Rajesh and the accused

Krishan nor there was any enmity between the

appellant and Rajesh. Under the circumstances,

this Court is of the opinion that the conviction of

the appellant recorded under Section 302 read

with Section 149 IPC for causing death of

deceased Rajesh is not well-founded and is liable

to be set aside. As far as conviction of the

appellant under Section 307 read with Section

149 IPC is concerned, this Court finds that the

said conviction recorded by the Sessions Court 27 and affirmed by the High Court is amply borne

out from the evidence on the record. So also the

learned counsel for the appellant could not

demonstrate that the conviction of the appellant

under Section 323 read with Section 149 IPC and

under Section 148 IPC are contrary to the

evidence on record. Therefore, those convictions

will have to be upheld.

14. The net result of the above discussion is that the

appeal filed by the appellant partly succeeds. His

conviction under Section 302 read with Section

149 IPC for causing death of the deceased Rajesh

recorded by the Sessions Court and affirmed by

the High Court is hereby set aside. His

conviction under Section 307 read with Section

149 IPC for attempting to commit murder of

injured Sanjay, under Section 323 read with

Section 149 IPC and under Section 148 IPC is

confirmed. This Court also finds that the 28 sentences imposed on the appellant for

commission of abovementioned offences are just

and proper and no case is made out to interfere

with the same.

15. Subject to above observations, the appeal stands

disposed of.

..............................J. [J.M. Panchal]

..............................J. [Deepak Verma]

New Delhi;

April 22, 2010.