Lalji & Ors Vs. The State of U. P
 INSC 138 (14 August 1973)
KHANNA, HANS RAJ KHANNA, HANS RAJ
CITATION: 1973 AIR 2505 1974 SCR (1) 367 1974
SCC (3) 295
Criminal Law-Members of complainants party
injured-No evidence of any common object of accused-liability of accused can
only be for individual acts.
As a result of a fight between the members of
the accused party and the party of the complainants the accused were tried and
convicted for various offences. The first.
appellant was convicted of the offence under
S. 304, Part 1, and of offences under Ss. 148, 323, 324 and 325 read with 14.
The appellants were convicted of the offences under Ss.
147 and 04, 323, 324 and 325 read with s.
149. The High Court, in appeal, while acquitting one of the accused, observed
that the conclusion reached by the trial court were substantially correct and
were based upon reasonable appreciation of the evidence.
In appeal to this Court,
HELD : On the findings of the trial court
neither party attacked the members of the opposite party at the commencement of
the occurrence. There was at that stage remonstrance and counter remonstrance
only. Someone then started ,a fight, and according to the trial court it could
not definitely be determined as to which of the two parties struck the first
blow. There was no premeditation :and the occurrence was a sudden affair. The
circumstances of the case do not ,show that the appellants formed a common
object to do any of the acts mentioned in the 5 clauses of s. 141.
Section 141 (4), I.P ' C., could not be
relied upon by the prosecution because, it could not be said that the common
object of the accused was to enforce any right or supposed right by means of
criminal force or show of criminal force.
The circumstances of the case show that the
lathis were weilded by the accused not with a view to enforce any right or
supposed right but because of the fact that a fight had started and the
complainants' party was found to be armed Therefore, it should be held that each
accused was liable for his individual act and not vicariously liable for the
acts of the others. Hence, the first appellant could be convicted only of the
offence under s. 304, part 1, I.P.C.
and his conviction for offences other than
that should be set aside. As regards the other appellants they caused simple
hurt with their lathis and they could be convicted only of the offence under a.
323 I.P.C. One grievous injury was caused to a member of the complainants'
party but, on the material on record, it could not be said who caused that
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 16 of 1970.
Appeal by special leave from the judgment and
order dated the 12-9-69 of the Allahabad High Court, in Criminal Appeal Nos.
1096 and 1097 of 1966.
Nuruddin Ahmed and U. P. Singh, for the
appellants. O. P.O. P. Rana, for the respondent.
The Judgment of the Court was delivered by
KHANNA, J. This is an appeal by special leave by Lalji (23), Mahabir (45), Nar
Singh (30), Paras Nath (27) and Ram Naresh (30) against the judgment of the
Allahabad High Court affirming on appeal the conviction and sentence of the
appellants. Lalji has been convicted under section 304 Part I and section 148
Indian Penal Code 368 and has been sentenced to undergo rigorous imprisonment
for a period of ten years on the first count and rigorous imprisonment for a
period of two years on the, second count.
Lalji has, in addition to that, been
convicted for offences under section 324 read with section 149, section 325
read with section 149 and section 323 read with section 149 and has been
sentenced to undergo rigorous imprisonment for a period of two years, 21 years
and one year respectively.
Mahabir, Nar Singh, Paras Nath and Ram Naresh
have been convicted under section 147, section 304 Part I read with section
149, section 324 read with section 149, section 325 read with section 149 and
section 323 read with section 149 Indian Penal Code and each of them has been
sentenced to undergo rigorous imprisonment for a period of 18 months, five
years, 18 months, 21 years and one year respectively.
The sentences in the case of each of the
appellants have been ordered to run concurrently. Budhdhu (50) and Munni Lal
(20) were tried along with the appellants. Munni Lal was acquitted by the trial
court, while Budhhu was acquitted by the High Court.
The appeal arises out of an occurrence which
took place at 7 a.m. on March 29, 1965 in Nawagarh near village Shahpur Nawada
at a distance, of five miles from police station Chandauli in Varanasi district.
As a result of that occurrence, Pancham (45) received fatal injuries and later
died at 11 a.m. Injuries were also received by Nand Lal (PW 1), Munshi (PW 2),
Jhuri (PW 3), Potan (PW 5) and Bhaggan on the side of the complainant. On the
side of the accused, Lalji, Mahabir, Paras Nath and Ram Naresh received in
juries. Both parties rushed be the police station and lodged reports. On the
side of the complainant, report was lodged by Nand Lal PW at 8.30 a.m., while
on the side of the accused, report was lodged by Mahabir at 8.35 a.m. On the
basis of those reports, two cases were registered and both parties were sent up
for trial. The trial court convicted the accused appellants and Budhdhu in the
present case, and Nand Lal. Munshi, Jhuri, Bbaggan and one Sheo in the cross
Lalji accused is the son of Budhdhu accused.
Ram Naresh, Paras Nath and Nar Singh accused are the maternal uncle's sons of
The prosecution case is that Nand Lal PW is
the owner of plot No. 129/2. Mahabir accused, who is a collateral of Nand Lal
PW. owns the adjoining plot. Mahabir had put up a hut on his own plot. There is
a mend (dividing ridge) between the plots of Nand Lal and Mahabir, On the
morning of March 29, 1965, it is stated, Pancham deceased and Nand Lal PW saw
that Budhdhu and Mahabir were digging earth and thus extending the frontage of
Mahabir's hut. Ram Naresh armed with a gandasa, Lalji and Munni Lal armed with
spears and Nar Singh and Paras Nath armed with lathis were standing close to
Mahabir with a view to help him. Pancham raised a Drotest against the act of
the accused party whereupon Mahabir and Budhhu picked up lathis and those two
accused along with the other accused started beating Pancham and Nand Lal with
their respective weapons. Jhuri and Munshi then came there, but they too were
attacked. Potan and Bhaggan also tried to intervene, but injuries were caused
to them also by the accused party.
369 During the course of this occurrence,
Lalji thrust his spear in the abdomen of Pancham who fell down on the ground.
Nana Lal, Jhuri, and others on the side of the complainant used their lathies,
and in the process the accused were injured.
Bhaggan on medical examination was found to
have two 'injuries caused by blunt weapon. One of those injuries was grievous
as it had resulted in the fracture of humerus bone of the left forearm. Jhuri,
Munshi and Nand Lal PWs had nine, seven and nine simple injuries respectively
caused by blunt weapon. Potan PW had four simple injuries, out of which three
had been caused by blunt weapon and one with sharp-edged pointed weapon. Post
mortem examination of Pancham revealed that he had six injuries, out of which
one was a stab, wound, one was an incised wound, three were contusions and one
was an abrasion. The fatal injury was the stab wound in the abdominal cavity
measuring 2" x 1 Omentum and about 12" long portion of small
intestines was protruding out of this wound. Death of Pancham was due to shock
and haemorrhage resulting from cutting of small intestines, mesentery and blood
vessels by some sharp edged pointed weapon.
The accused were examined by Dr. K. P. Rai
and subsequently by Dr. K. A. Khan in jail. The trail court and the High Court
have relied upon the medical examination of the accused by Dr. Rai. According to
Dr. Rai, he found nine injuries on Mahabir Nar Singh, Paras Nath and Ram Naresh
accused had four injuries each on their persons while Lalji had one injury. The
injuries on the persons of the accused were simple and had been caused by blunt
The defence version was that there was sugar
can crop in the plots of Mahabir, Ram Naresh and Nar Singh accused. Those
fields used to be irrigated from the well of the accused which was close to the
hut of Mahabir. A water channel ran over the intervening ridge between the
plots of Mahabir and Mand Lal. On the day of occurrence, it is stated, Mahabir
and Ram Naresh accused had started repairing the water channel by digging earth
from a portion of Mahabir's plot.
Part of the water channel had been repaired
with that earth when Pancham, Nand Lal, Munshi, Jhuri, Bhaggan, Sheo and Sotan
appeared on the scene. Pancham and others were all armed at that time. Bhaggan
then demolished the water channel which had been repaired by Mahabir and Ram
When Mahabir protested, the party of the
complainant attacked them. Mahabir and Ram Naresh then picked up agricultural
implements and wielded the same in selfdefence. The other appellants too
arrived at the spot and they too wielded lathis in exercise of the right of
private defence Ram Naresh accused came into, the witness box and gave evidence
in support of the defence version.
The trail court on scrutiny of the evidence
came to the conclusion that the witnesses on both sides had stated only the
half truth and resorted to exaggeration, twisting and embellishment of the true
account of the occurrence. It was further held by the trail court that the well
near the hut of Mahabir was being used for irrigation purposes, that the
channel through which the water from this well used to be taken was along the
disputed ridge and that on the day of occurrence the party of the accused was
digging and putting earth on the ridge in order to repair and reconstruct the
water channel. The trial court in this context referred to the evidence of the
investigating officer, according to whom earth had been taken by the party of
the accused from a pit in Mahabir's plot. The trail court did not accept the
evidence of the prosecution witnesses that Pancham and Nand Lal first went to
the spot and thereafter Jhuri and Munshi arrived there and after that Bhaggan,
Potan and Sheo appeared there. In the view of the trail court, all the members
of the complainant's party reached the place of occurrence almost
simultaneously. The prosecution allegation that the other accused Were standing
nearby when Mahabir and Budhdhu were digging the earth and repairing the water
channel was not accepted. In the opinion of the trial court, these persons were
present at the hut which was only 15 or 20 paces from the ridge in question. As
regards the actual assault, the trial court came to the conclusion that no
attack was made immediately by either party on the arrival of the complainant's
At first there was remonstrance and counter
remonstrance. A fight thereafter ensued when the complainant's party insisted
that they would not allow the earth to be put on the disputed ridge and the
party of the accused claimed that they must put the earth and reconstruct the
The intransigence of the parties, in the
opinion of the trial court, led to a free fight and none of them could
therefore plead the right of private defence. The accused, other than Lalji, in
the opinion of the trial court, were armed with lathis only.
The High Court in appeal held that the conclusions
reached by the trial court were substantially correct and were based upon
reasonable appreciation of evidence.
In appeal before us Mr. Nuruddin on behalf of
the appellants has :argued that the present is not a case wherein the accused
party can be said to be members of the unlawful assembly or wherein the
injuries caused by Lalji to Pancham can be said to have been caused in
prosecution of the common object of the accused-appellants. Although Mr. Rana
on behalf of the State has controverted the above contention, we find
considerable force in the same. The trial court has found that Mahabir accused
had been using water from the well near his hut for irrigation purposes and
that he along with Ram Naresh was repairing the old water channel on the ridge
when the party of the complainant came there and stopped Mahabir and Ram Naresh
from further repairing the water channel. The other accused who were present in
the hut nearly. at a distance of 15 or 20 paces from the ridge.
then came there. There was remonstrance and
counter remonstrance which resulted in a fight. The trial court has also found
that there was no premeditation on the part of Lalji or any other accused to
cause Pancham's death and that the fight was a sudden affair and was the result
of heated passion. In the circumstances, in our opinion it cannot be said that
the appellants who were present in front of 371 their hut formed an unlawful
assembly. An assembly of five or more persons is designated an unlawful
assembly if the common object of the persons composing that assembly is to do
any of the acts mentioned in the five clauses of section 141 Indian Penal Code.
According to the explanation to that section, an assembly which was not
unlawful when it assembled may subsequently become an unlawful assembly.
The, facts found by the trial court and the
High Court and the circumstances of the case do not show that the appellants
formed a common object to do any of the acts mentioned in the five clauses of
section 141. Reference has been made to clause (4) of section 141, according to
which an assembly of five or more persons. would be unlawful if the common
object of the persons composing that assembly is to enforce any right or
supposed right by means of criminal force or show of criminal force. This
clause cannot be of much avail because it cannot be said that the common object
of the appellants was to enforce any right or supposed right by means of
criminal force or show of criminal force. As mentioned earlier, no party
attacked the members of the opposite party at the commencement of the
occurrence. There was only at that stage remonstrance and counter,
remonstrance. Someone then started the fight and, according to, the trial
court, it could not definitely be determined s to which of the two parties
struck the first blow. The circumstances of the case show that lathis were then
wielded by the appellants, other than. Lalji, not with a view to enforce any
right or supposed right in respect of the water channel but because of the fact
that a fight had, started and the complainant's party was found to be armed. As
there was no premeditation and the occurrence was a sudden affair, each of the
appellants, in our opinion, should be held to be liable for hi& individual
act and not vicariously liable for the acts of others.
Lalji gave the spear blow in the abdomen of
Pancham. His conviction should, therefore, be maintained for the offence under
section 304 Part I Indian Penal Code. The sentence of rigorous imprisonment for
a period of ten years awarded to Lalji for the injury caused to, Pancham cannot
be held to be excessive. As regards the other appellants, we find that they
caused simple hurt with their lathis. There is no doubt that one grievous
injury was caused to Bhaggan with blunt weapon, but on the material on record
it cannot be said as to who caused the said injury. We would accordingly
maintain the conviction of Mahabir, Nar Singh, Paras Nath and Ram Naresh for
the offence under section 323 Indian Penal Code. The conviction of Lalji for
offences other than that under section 304 Part 1, and of the other four
appellants for the offences other than that under section 323' Indian Penal
Code is set aside. Lalji is sentenced to undergo rigorous imprisonment for a
period of ten years for the offence under section 304 Part 1. As regards the
other four appellants who have been convicted under section 323 Indian Penal
Code, their sentence of imprisonment is reduced to the period already
V.P.S. Conviction and sentence modified.