MEHTA, J - (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. After the investigation was concluded, the police put up a challan in the court of the Civil Judge-cum-First Class Magistrate, Jhunjhunu. The said court took proceedings in accordance with the provisions of sec. 207-A. Cr. P. C. , and committed the 13 accused persons to the court of Sessions Judge, Jhunjhunu. The trial court charged the accused Sarwan, Tarachand, Bhagwana s/o Uda, Bhagwana S/o Hardeva, and Sugna under secs. 148, 447, 302, 325, and 323 read with sec. 149, I. P. C. The rest of the accused were indicted under Ss. 447, 147, 325, and 323, read with S. 149, and 302, read with S. 149, IPC. To these accusations the accused pleaded not guilty. In support of its case the prosecution examined 9 witnesses, including eye witnesses, PW. 1 Gorunath, PW. 2 Mangilal, PW. 3 Motaram and PW. 4 Gangadhar. In their statements, recorded under sec. 342, Cr. P. C. the accused exhibited total ignorance of the happening and further stated that the prosecution witnesses bore enmity and they made inaccurate statements against them. In support of their defence they examined 5 witnesses. The trial court, by its judgment, dated 12. 8. 1968, convicted the accused Sarwan, Tarachand, Sugna, Bhagwana s/o Uda, and Bhagwa-na s/o Hardeva of the offence under sec. 302. read with S. 149, IPC, and sentenced each of them to imprisonment for life. It further convicted all these 5 accused under secs. 148 and 417, I. P. C. and sentenced them to undergo rigorous impri-sonment for two years each on the first count and to rigorous imprisonment for two months each on the second charge. These sentences were directed to run concurrently. The rest of the 8 accused persons were acquitted of all the charges with which they were tried. Aggrieved by the above verdict, Sarwan, Tarachand, Sugna, Bhagwana s/o Uda and Bhagwana s/o Hardeva have taken appeal (D. B. Criminal Appeal No. 501 of 1968 ). The State Government also had grievance against the above decision and has preferred appeal for setting aside the acquittal of 8 accused persons. This appeal has been registered as D. B. Criminal Appeal No. 686 of 1968. Both these appeals are disposed of together by this judgment. The contention of learned counsel for the five convicts is that the trial court has gone wrong in punishing Sarwan and 4 others under sec. 302, read with sec. 149, I. P. C Sarwan, according to the learned counsel, could have at the most been convicted under sec. 304 Part I I. P. C. and the conviction of the remaining 4 accused could not have travelled beyond the ambit of sec. 326 or 324 I P. C. , simpliciter Learned counsel also urged that the accused had no enmity against Kishna. Had the intention of the culprits been to murder Kishna, they would have added further injuries on his person after he fell down. The prosecution witnesses have suggested that 4 injuries were caused with a sharp edged weapon on the head of Kishna, whereas according to the medical evidence only 2 such injuries were found on his head. This is a material discrepancy which the trial court should not have disregarded deliberately. Learned counsel also submitted that had the intention of the accused been to commit murders of all those, who were ploughing the land, they would not have felt contented with causing simple injuries to Mangilal. Learned Deputy Government Advocate, while arguing the State Appeal No. 686 of 1968, complained that the trial court fell in error in acquitting the accused Hari Prasad and 7 others of the crimes with which they stood charged. When all the accused persons formed an unlawful assembly and some of them caused the death of Kishna, every one of them ought to have been found guilty of the offence under sec. 302 read with sec. 149, Indian Penal Code, on the principle of vicarious liability. In this case the most decisive or crucial point that needs examination. whether or not Khasra No. 91, situate on the precincts of village Ajari Khurd, was in possession of Gorunath. In this connection the prosecution has produced the following documents - 1. Entry in 'misal Hakiyat' (records of rights) of smt. year 1919 (Ex. P 1 ). Column No. 4 of the 'hakiyat' speaks that the Khasra stood in the name of Shivji's temple and was under the cultivatory possession of its Pujari Sumernath Column No. 9 reads that the land measures 47 Bighas 7 Biswas and column No. 10 shows that the land was 'banjar' Johar'. 2. Parcha Lagan (rent slip) Ex. P. 2, issued by the settlement Department. The relevant entry reads that the land in dispute measured 47 Bighas 7 Biswas 'banjar Johar Doyam', dedicated to Shivji's temple and was under cultivatory possession of Pujari Gorunath. 3. Judgment of Sub-Divisional Magistrate, Jhunjhunu (Ex. P. 3), dated May 30, 1963. It relates to proceedings under sec. 145, Cr. P. C. In that judgment the Sub Divisional Magistrate declared that Gorunath was in actual possession of the land. 4. Order of the Collector, Jhunjhunu [ex. P. 1], dated November 3o, 1964, setting aside the order of attachment, issued by the Tehsildar on October 21, 1964, and declaring that the land was in possession of Gorunath. 5. It appears that in the course of litigation between the parties a receiver was appointed by the Assistant Collector to manage the land in dispute. That order was put into abeyance by the Board of Revenue by its decision, dated August 9, 1965. It is marked Ex. P. 5. 6. Proceedings were conducted under sec. 147, Cr. P. C. in the court of the Sub Divisional Magistrate, Jhunjhunu. The Sub Divisional Magistrate by his order, dated May 25, 1965. Ex. D. 2, restrained Gorunath from interfering with the grazing rights of the villagers over the land in dispute. Against that order a revision petition was filed in the court of the Collector, Jhunjhunu. Thereupon order was passed by the Collector, Jhunjhunu, on June 1, 1966, directing the Assistant Collector, Jhunjhunu, to refrain from implementing his order. The Collector's order is marked Ex. P. 6. 7. The District Magistrate, Jhunjhunu, submitted a reference to this court, vide [ex. D. 3], dated September 21, 1966, stating therein that the land in question was in possession of Gorunath and, therefore, the order of the Sub Divisional Magistrate, Jhunjhunu, dated May 25, 1966, be set aside. This Court accepted the reference, saying that the land was in possession of Gorunath. The order of this court is dated August 18, 1967 and is marked Ex. P. 7. 8. The accused Sarwan and others filed a civil suit in a revenue court. That suit was ultimately dismissed by the Revenue Board holding that the revenue court was not competent to try the case: vide its judgment Ex. P. 8, dated March 16. 1967. 9. Khasra Girdawari of Samvat year 2007 produced by the accused persons and is marked Ex. D. 18. It shows that the land in dispute comprised 'muafi', dedicated to Shivji's temple. 10 Ex. D. 19 Khasra Girdawari from Samvat year 2009 to 2012. It shows that the land comprised 'muafi' of Shivji and was under the management and cultivation of Pujari Sumernath, Guru of Gorunath. 11. Khasra Girdawari of Samvat year 2013 to 2015 [ex D. 20]. It reads that the land belonged to the temple of Shivji. In column No. 32 it is given that the land was under the possession of Gorunath. An Additional insertion "sarvjanik Bhumi" [public land] was made in the above column. 12. Ex. D. 21 Khasra Girdawari from Samvat year 2016 to 2018 showing that the land was the 'maufi' of Shivji's temple and was under the possession of its 'pujari', but an additional entry was made in column No. 32 as was done in the case of Ex. D. 20. Besides the above documents all the 4 eye witnesses, namely, Gorunath, P. W. 1, Mangilal, PW. 2, Motaram, P. W. 3, [who is the neighbour of the land in dispute] and Gangadhar, P. W. 4, have categorically deposed that the land had been in possession of the temple through P. W. 1, Gorunath. The above evidence, both oral and documentary, including the documents produced by the accused themselves, reveals that the land in question had been in possession of Gorunath. The land in fact comprised 'muafi' dedicated to Shivji's temple and the Pujari of the temple Gorunath was having its occupation on behalf of Shivji. Though efforts were made from time to time by adding entries in columns Nos. 32 of the Kharas Girdawari, marked Exs. D 20 and D 21, to the effect that the land was meant for the use of general public, it has not been clarified how such an addition was abruptly made in the last 2 documents. However, the fact remains that even in these 2 documents Exs. D. 20 and D. 21 mention has been made in column No. 5 as also in column No 6 that the land is dedicated to Shivji's temple and was in possession of Gorunath. The classification of the land is Johara' [pasture land], but that does not mean that it did not belong to Shivji's temple, the Pujari of which was Gorunath. From what has been said hitherto, we are convinced that Khasra No. 91 in the village Ajari Khurd was under the cultivatory possession of Shivji through Pujari Gorunath, P. W. 1. When the land (Khasra No. 91) was in the de facto possession of Shivji through Gorunath and when admittedly a litigation was in progress in a civil court, pertaining to this land, it was highly improper on the part of the accused persons to go to that land armed with various types of weapons and by taking law in their own hands commit criminal trespass and prevent its possessor and his ploughmen from undertaking agricultural operations. It is thus manifest that the steps taken by the accused were unlawful or unauthorised. Now the question is: whether the 5 accused-appellants can be vicariously held liable for the offence of murdering Kishna. S. 149, I. P. C. , is in the terms following: - "if an offence is 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 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 assembly, is guilty of that offence. " For the applicability of S. 149, I. P. C. , the following elements are necessary: 1. that there must have been an unlawful assembly; 2. that an offence is committed by a member of that assembly; 3. [a] that the offence is committed in prosecution of the common object of the assembly, or [b] that the persons sought to be made liable knew that the offence was likely to be committed in prosecution of the common object. Assembly of 5 or more persons is designated as unlawful assembly, if the common object of the persons composing that assembly is to commit criminal trespass or other offence or by means of criminal force to take or obtain possession of any property or to deprive any person of his right over the property or to enforce any right or supposed right. It is a general principle that a person is liable for what he himself does and does not for what other persons do. S. 149, read with S. 141, I. P. C. , is an exception to the general rule. A member of an unlawful assembly is vicariously liable under the circumstances mentioned in this section, for an offence committed by another member of the assembly. It has been held by their Lordships of the Supreme Court in Shambhu Nath vs. State of Bihar (1): "sec. 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. " Thus, there are 2 ways in which the liability of accused A, a member of an unlawful assembly, may arise for an offence committed by B, another member of the assembly: (a) where the offence committed by accused B is the direct object assembly, or, as has been expressed in some cases, is immediately connected with the common object of the assembly ; (b) where the common object of the assembly is to commit a particular offence X, but the accused B commits another offence which is not the common object of the assembly. In that case the accused A would be liable for the offence though not committed by him, if he knew that such offence was likely to be committed in the course of the prosecution of the common object to commit the offence X.
(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. The distinction between the two parts of S. 149, IPC, has also been dealt with by the Supreme Court in Mizaji vs. State of U. P. (3 ). The relevant observation in that case is as follows: - "in order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under S. 149 if it can be held that the offence was such as the members knew was likely to be committed. " In Methu vs. T. C. State (4), his Lordship Bose J. , speaking for the court, observed: - "now sec. 149 applies not only to offences actually committed in pursuance of the common object but also to the offences that members of the assembly knew are likely to be committed. " In Masaltii vs. State of U. P. (5) the Supreme Court laid down - "in fact sec. 149 makes it clear that if an offence is 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 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 the punishment prescribed by sec, 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 the unlawful assembly. " We may also usefully refer to another decision of the Supreme Court in Hukam Singh vs. State of U. P. (6 ). In that case his Lordship Raghubar Dayal J, held - "when several persons are armed with lathis and one of them is armed with a hatchet and are agreed to use those weapons in case they are thwarted in the achievement of their object, it is by no means incorrect to conclude that they were prepared to use violence in prosecution of their common object and that they knew that in the prosecution of such common object it was likely that some one may be so injured as to die as a result of those injuries. Where violence is used in prosecution of their common object and one person dies as a result of the injuries inflicted, the offence made out on account of the death caused by the concerted acts} of the several accused is the offence of murder. " In a recent case Ramu Gope vs. State of Bihar (7), his Lordship Shah J. observed - "where the offence was such that it was known to be likely to be committed, every person who was a member of that unlawful assembly at the time of the commission of the offence would by virtue of sec. 149, I P. C. be guilty of the offence committed. " In the case of Harrington vs. California (8), the Supreme Court of America illustrated the principle like this - "persons aiding and abetting commission of robbery, one of them killing a person while acting in furtherance of common design, all are guilty of murder. " ;