PETITIONER:
HARIJAN DHANA BADHA & ORS.
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT: 26/04/1996
BENCH:
MUKHERJEE M.K. (J)
KURDUKAR S.P. (J)
CITATION:
JT 1996 (6) 124 1996 SCALE (4)39
ACT
HEADNOTE
JUDGMENT
(With Crl A. No. 598 of 1987)
JUDGMENTM.K. MUKHERJEE, J.
11 persons (hereinafter referred to as A1 to A11 respectively) were tried by the additional Sessions Judge, Gondal for rioting with deadly weapons and committing the murder of Dana Pitha in prosecution of their common object. The trial Court acquitted eight of them and convicted and sentenced A2, A6 and A7 under Section 302 IPC. Against the judgment of the trial Court two appeals were preferred one by the three convicts and the other by the State challenging the acquittal of A1, A3 to A5 and A8 to A10, but not of A11. In disposing of the appeals by the impugned judgment the High Court upheld the conviction of A2, A6 and A7 (after altering the conviction A7 to one under Section 302/149 IPC) and the acquittal of A9 and A10, but reversed the acquittal of A1, A3 to A5 and A8 and convicted them under Sections 148 and 302/149 IPC. Against dismissal of their appeal A2, A6 and A7 has filed one of these two appeals (Criminal Appeal No. 598 of 1987) while the other one has been filed by A1, A3 to A5 and A8, against their conviction and sentence as recorded by the High Court. Both the appeals have been heard together and this judgment will dispose of them. 2. Bereft of details the prosecution case is as under: (a) The deceased Dana Pitha hailed from village Ambardi in Gondal Taluka where all the accused also live. A month prior to the incident with which we are concerned in these appeals a quarrel took place between accused Nos. 1 and 2 and members of Dana Pitha’s family in their village for which a complaint was lodged at the formers’ instance with the police against Dana Pitha and his two sons. (b) In the morning of April 26, 1481 Dana Pitha had gone to the market place of their village while his son Ramji Dana (PW 1) along with his two brothers had gone to the field to work as labourers. Uga Lakha (PW 3), who hails from village Machharda, had come to the house of Dana Pitha in that morning and having come to know that Dana had gone to the market went there. On their way back from the fields at or about 8.30 A.M. Ramji proceeded towards their house in the Harizan Vas to leave the shovel he was carrying and his two brothers went to the village market. While Ramji was going home he saw his father Dana and Uga Lakha also going towards their house. (c) For going to the house of Dana one has to go along a road which runs north to south. That road meets a lane which runs east to west and in that lane is the house of Dana. While proceeding along the Road when Dana and Uga reached near the house of A 10, which is on its eastern side, A9 and A10 threw stones from the terrace of the house which hit deceased Dana. Immediately thereupon the other accused persons rushed there from the adjoining deli of Gova Daya armed with various weapons including Dharia axe, pick-axe (Trikam), pipes and sticks and started beating Dana with their respective weapons. As a result of such beating Dana fell down dead. The accused persons then fled away. (d) In the meantime Ramji, who had come out of their house after leaving the shovel, heard the shouts of Uga for help and rushed to the scene of occurrence. Devuben, who was sitting in the osari of her house heard her daughter, who was playing in the lane, crying and she also ran there. (e) An information about the incident was given to the police station over phone by Uga Lakha and on receipt of the same Jamadhar Sri Shukla came to the village. He recorded the complaint of Ramji and sent it to the police station. On that complaint a case was registered and Shri V.S. Gupta, assistant Superintendent of police took up investigation. Shri Shukla then went to the scene of offence and prepared the inquest panchanama as also the panchnama of the scene of offence. He then recorded the statements of Devuben, Uga Lakha and other witnesses. After completion of investigation police submitted chargesheet and in due course the case was committed to the Court of Session. 3. The accused pleaded not guilty to the charges levelled against them and contended that whey had been falsely implicated. 4. The main stay of the prosecution case at the trial was the evidence of the three eye witnesses, namely Ramji (PW 1), Uga Lakha (PW 3) and Devuben (PW 8). Besides, the prosecution relied upon the medical evidence to corroborate their evidence. The trial Court found the evidence of PWs 1 and 3 partly reliable but the evidence of PW 8 wholly unreliable. On discussion of the evidence of PWs 1 and 3 and that of Dr. Vasudeva, who held the post mortem examination upon the dead body of Dana, the trial Court first held that the incident occurred at the time and place alleged by the prosecution, and that Dana met with his death owing to injuries that were inflicted on various parts of his body. The trial Court then proceeded to consider "whether the accused had formed an unlawful assembly with the common intention to murder deceased Dana Pitha and in furtherance of that common intention the accussed armed themselves with various deadly weapons and assaulted the deceased and caused his death." (emphasis supplied). After discussing the evidence of PWs 1 and 3 relating to the first part of the incident, namely, throwing of stone from the house of A10 the trial Court observed as under:
"What is required to be established
for unlawful assembly is that there
must be a preconcert or pre-
meditation on the part of the
accused and in furtherance of that
preconcert or pre-meditation they
ought to have gathered armed with
their weapons in order to carry out
their common intention and
therefore to accomplished their
object. Here none of these
ingredients are established in our
case merely because if we go by the
prosecution case then simply by
having the number of accused
gathering cannot be said to be
termed into a unlawful assembly. It
is pertinent to note going by the
prosecution case that neither the
accused no. 9 Kala Pitha nor the
accused no. 11 Pala Pitha shouted
or made any sound or noice after
throwing the stone on the head of
the deceased Dana Pitha and as a
result of that about, noice or
sound the rest of the accused
gathered and then assaulted the
deceased Dana Pitha to death.
Therefore, in view of the
circumstances I am of the opinion
that the prosecution has failed to
establish the unlawful assembly on
the part of the accused within the
meaning of Sec. 147, 148, 149 IPC
and that, therefore, we will have
to consider the individual act on
the part of each of the accused and
whether those individual acts
constitute any offence so far as
each of the accused is concerned.
(emphasis supplied) The trial Court then undertook the task of finding out the individual roles played by the accused in the murder from the testimonies of PWs 1 and 3 and drew the following conclusion:
"........If the accused who are
eleven in number had given the
blows then there would be only 11
injuries and not 12 injuries. If
the accused had given three to four
blows in all as per the testimony
of Uga lakha and six to seven blows
as per the testimony of Ramji Dana
then the injuries on the deceased
Dana Pitha have not been explained
as to how he got more injuries than
six to seven injuries which would
have been if he would have been
given six to seven blows. This,
therefore, would go to show that
the presence of the accused Nos.
1,3,4,5,8 and 11 at the time of the
incident is highly doubtful."
In drawing the above conclusion the trial Court also commented upon the contradictions in the evidence of the two eye witnesses, one of which related to the sequential order in which the accused appeared on the scene of occurrence and the other reads as under:
"............So, looking to this
part of his (PW 3) evidence we find
that if we go by his evidence then
Dhana Badha had given two dharia
blows both on the head and face of
deceased Dana Pitha when the
complainant Ramji Dana says that
the first blow which he saw was on
the face of his father and that
same person also gave the blow on
the head of his father. But Ramji
Dana sticks to his case that the
accused Dhana Budha gave a Dharia
blow on the face of his father only
and not on the head of his father.
So looking to this material
contradiction in this evidence of
the complainant Ramji Dana it
appears that the complainant Ramji
Dana is confused as to who gave the
dharia blow on the face of his
father and he is not able to know
as to the person who actually gave
the dharia blow on his father,
because if we go by his case, then
surely, the accused no. 1 has not
given the dharia blow on the head
of his father, whereas, the
complainant has said that two
dharia blow were given on his
father, one on the head and one on
the face and later on he resiled
from this statement by saying that
only one dharia blow was given.
Thus from this it is difficult to
believe that the dharia blow was
given by the accused No.1 Dhana
Badha."
The trial Court, however, found the evidence of PWs 1 and 3 trustworthy so far as they testified about the roles of A2, A6 and A7 in the murder and convicted and sentenced them as indicated carrier.
In its judgment the High Court first observed that he entire approach of the trial Court in dealing with the case was patently wrong for it confused common intention with common object and applied the test of former instead of the latter. In making the above commet the High Court relied upon the decisions of this Court in Sukhe vs State of Rajasthan AIR 1956 SC 513 Masalti vs state of Uttar Pradesh AIR 1965 SC 202, and Muthu Naicker vs. State of Tamil Nadu AIR 1978, SC 1647. The High Court next referred to the evidence of PW 8 to point out that the finding of the trial Court that she was not a reliable witness was not a proper one. In criticising the observetion of the trial Court that the evidence of PWs 1 and 3 contradicted each other as to sequence of the surfacing of the accused persons on the scene the High Court observed:
"The incident happened in quick
sequence and, therefore merely
because there is some contradiction
between the witnesses about Becher
and Jetha coming to the scene of
offence in a particular sequence,
that by itself is not sufficient
to discard the evidence and hold
that presence of accused Nos.
3,4,5,8 and 11 was doubtful. The
reasoning adopted and conclusion
arrived at by the learned trial
Judge is perverse."
As regards the other comment of the trial Court, regarding contradictions in the evidence of PWs 1 and 3 (quoted earlier) the High Court had this to say:
"This appreciation of the evidence
of complainant Ramji relating to
the injuries caused by Dhana Badha
is mis-reading of evidence and is
nothing but perverse Ramji has
clearly stated that Dharia blow was
inflicted by accused No.1 Dhana
Badha on the face of his father.
Merely because at one stage he
stated that injury was caused on
the head and immediately corrected
himself is not by itself sufficient
to discard his evidence. Madical
evidence on the point is very clear
Dr. Vasadava (Ex. 32) has stated
that incised wound was on the left
side of the forehead and a
punctured wound was in between the
eye brows. Another punctured wound
was on the left side mendibls
region, and incised wound could
have been caused by Dharia and
punctured wound could have been
caused by the pointed edge of
Dharia."
After pointing out the above perversities in the judgment of the trial Court the High Court reappraised the evidence to ascertain whether the accused persons formed an unlawful assembly with the "common object" of committing the murder of Dana and concluded that the eight appellants did share such a common object.
Having carefully perused the prolix judgments of the trial Court and the High Court (they run through 93 and 99 pages respectively) in the light of the evidence on record we do not find any merit in these appeals. We hasten to add that in drawing our above conclusion we have left out of our consideration the evidence of PW 8 as, in our opinion, the reasons given by the trial Court for discarding the same cannot be said to be proper. Before, however, we proceed to consider the evidence of these two witnesses we may point out that Judgment of the trial Court is the outcome of its failure to distinguish between common object and common intention and of giving undue importance to ignorable contradictions. In the case of Masalti (supra) to which, as noticed earlier, the High Court has made a pointed reference this Court has in no uncertain terms laid down the principle to be applied in dealing with a case of rioting and commission of offence in furtherance of common oject of an unlawful asssembly with the following words:
"The crucial question to determine
in such a case is whether the
assembly consisted of five or more
persons and whether the said
persons entertained one or more of
the common objects as specified by
Section 141. While determining his
question, it becomes relevant to
consider whether the assembly
consisted of some persons who were
merely passive witnesses and had
joined the assembly as a matter of
idle curiosity without intending to
entertain the common object of the
assembly ..........................
...................................
it would not be correct to say that
before a person is held to be a
member of an unlawful assembly, it
must be shown that he had committed
some illegal overt act or had been
guilty of some illegal omission in
pursuance of the common object of
the assembly. In fact 5. 149 makes
it clear that if an offence
committed by any member of an
unlawful assembly in prosecution of
the common object of that assembly,
or such as the members of that
assembly in prosecution of the
common object of that assembly, or
such as the members of that
assembly knew to be likely to be
committed in prosecution of that
object, every person who, at the
time of the committing of that
offence is a member of the same
assembly, is guilty of that
offence, and that emphatically
brings out the principle that she
punishment prescribed by 5.149 is
in a sense vicarious and does not
always proceed on the basis that
the offence has been actually
committed by every member of an
unlawful assembly." Instead of deciding the case in the light of the above principles of law, which it was required to do, the trial Court decided it confining its attention to the individual acts of the accused persons only. As regards the other infirmity in the judgment of the trial Court, which we have mentioned earlier, we can only refer to the nature of contradiction noticed and relied upon by it (quoted earlier); and the comments of the High Court thereon (quoted earlier), with which we are in complete agreement.
That brings us to the evidence of P.Ws 1 and 3 who narrated the entire prosecution case. Of the above two witnesses P. W.3 unquestionably is an independent witness and his evidence alongwith that of P.W.1, is cogent and consistent. On perusal of their evidence we find that even though both of them was subjected to a lengthy crossexamination nothing could be elicited by the accused persons in their favour to impair their credibility. Their evidence also gets ample corroboration from that of the doctor who held autopsv and found as many as 12 injuries on the person of the deceased, including incised and punctured wounds. Besides, he found fracture of the skull bones. The evidence of the above two eye-witnesses unmistakably proves that the appellants came together from the deli of Gova Daya armed with sharp cutting weapons like Dharia, pointed weapon like pic-axe and blunt weapons like sticks and pipes and started assaulting Dana, which resulted in his instantaneous death. It is manifestly clear therefore that their common object was to commit the murder of Dana. Their evidence further indicates that the accused A6 inflicted 2/3 blows or the neck and A2 gave blows on the head which proved fatal. Such being the state of evidence obtaining on record we find no hesitation in upholding the judgment of the High Court and dismissing both these appeals. The appellants, who are on bail, will now surrender to their bail bonds to serve out the remainder of the sentence.