Umesh
Singh & ANR Vs. State of Bihar [2000] INSC 319 (10 May 2000)
Y.K.Sabharwal,
S.R.Babu RAJENDRA BABU, J. :
On a
report made by Jugeshwar Singh [PW-7] alleging that the appellants herein along
with several other persons numbering about 20 came to `Khalihan' [threshing
floor] of Bhola Singh where he and other members of his family were threshing
paddy. They tried to take away the paddy.
Upendra
Singh threatened that any resistance would be met with such action which might
even result in death.
Thereafter
Rajendra Singh hit Bhola Singh with a lathi and Upendra Singh moved backward
and fired at Bhola Singh with gun as a result of which Bhola Singh was hit and
fell down writhing in pain. Saryu Singh was shot at by Rajendra Singh and Bhagwat
Dayal Singh, who was also inflicted a bhala blow by Arvind Singh, appellant in
the connected matter, Umed Singh and Sheonandan Singh fired at Rajdeo Singh as
a result of which he fell down. When Dharmshila, wife of Bhola Singh reached
the threshing floor with her child aged about one and half years old in her arm
named Rinku, Sheonandan Singh snatched the child and threw the child on the
ground as a result of which the child died. After investigation, the police
submitted a charge sheet against seven persons named in the FIR as three of
them had died during the pendency of the investigation. The trial court
convicted Sheonandan Singh and Upendra Singh under Section 302 IPC and
sentenced them to death, one of the accused - Satyendra Singh, was acquitted
and rest of the accused persons were convicted under Section 302 IPC read with
Section 149 and sentenced for life imprisonment. They were further convicted
under Section 324 read with Section 148 IPC and under Section 27 of the Arms
Act. On appeal to the High Court, conviction was maintained while sentence of
death on Sheonandan Singh and Upendra Singh was reduced from one of death to
life imprisonment thereafter. Appeals have been preferred before this Court.
In the
appeals before us, two of the accused are in appeal in Crl.A.Nos.824-825 of
1998 while in the connected appeal Crl.A.No.659/99, Arvind Singh and Bipin
Singh have filed appeals. However, Bipin Singh not being able to surrender his
appeal has been dismissed. In the appeals of Umesh Singh s/o Sheonandan Singh
and Rajendra Singh s/o Pragash Singh, Shri U.R.Lalit, learned senior advocate
for the appellants, considering the fact that there are four witnesses (who
were injured) and two eye witnesses to the incident and their evidence has been
believed by the two courts below, did not pitch their cases too high but
confined his arguments only to certain probabilities arising even accepting the
evidence tendered before the courts below on the basis of the acts attributed
to the appellants. His submission is that while Rajendra gave a blow to decease
Bhola Singh with a lathi, he could not have intended his death and the act
attributed to Umesh Singh is that he fired at Rajdeo Singh and no doctor has
been examined with reference to the injuries inflicted upon Rajdeo Singh but
only after post-mortem examination took place, a doctor has been examined. He
addressed an argument that the common objective was only to take away paddy
from the threshing floor and it was not that it should be one to cause injuries
much less than death to anyone. If that is so, they could not be attributed
vicarious liability punishable under Section 149 IPC and when Rajendra Singh
gave blow with lathi to Bhola Singh, he could not be stated to be intending to
cause death of Bhola Singh and the gun which is stated to have been used by Umesh
Singh has not been recovered. The medical evidence tendered also is not very
clear in this regard to support the case of the prosecution as to the manner in
which the incident has taken place. The fact remains that Rajendra Singh
attacked with lathi and the injuries were sustained by Bhola Singh. As appeared
from the evidence of the doctor PW-5 the injuries on Bhola Singh include a
fracture of the left leg above ankle joint which was confirmed by dissection. Bhola
Singh had received seven blows on his leg with lathi and several pellet
injuries were found in the front of his chest and abdomen which had caused
damage to the internal system resulting in his death.
Therefore,
there is ample evidence on record in the shape of the evidence of the eye
witnesses and the witnesses who had sustained injuries, sounding a ring of
truth to prosecution case put forward, with the trial court and the High Court
having taken identical views, we do not think there is any good reason to upset
those findings. Vicarious liability, we may state, as rightly contended for the
State by Shri B.B.Singh relying upon the decisions of this Court in Shamshul Kanwar
vs. State of U.P., 1995 (4) SCC 430 and Bhajan Singh & Ors. vs. State of U.P., 1974(3) SCR 891, extends to members of the unlawful
assembly only in respect of acts done in pursuance of the common object of the
unlawful assembly or such offences as the members of the unlawful assembly are
likely to commit in the execution of that common object. An accused whose case
falls within the terms of Section 149 IPC as aforesaid cannot put forward the defence
that he did not with his own hand commit the offence committed in prosecution
of the common object of the unlawful assembly or such as the members of the
assembly knew to be likely to be committed in prosecution of that object.
Everyone must be taken to have intended the probable and natural results of the
combination of the acts in which he had joined. It is not necessary in all
cases that all the persons forming an unlawful assembly must do some overt act.
Where the accused had assembled together, armed with guns and lathis, and were
parties to the assault on the deceased and others, the prosecution is not
obliged to prove which specific overt act was done by which of the accused.
Indeed the provisions of Section 149 IPC, if properly analysed will make it
clear that it takes an accused out of the region of abetment and makes him
responsible as a principal for the acts of each and all merely because he is a
member of an unlawful assembly. We may also notice that under this provision,
the liability of the other members for the offence committed during the
continuance of the occurrence rests upon the fact whether the other members
knew beforehand that the offence actually committed was likely to be committed
in prosecution of the common object. Such knowledge can reasonably be intended
from the nature of the assembly, arms or behaviour, at or before the scene of
action. If such knowledge may not reasonably be attributed to the other members
of the assembly then their liability for the offence committed during the
occurrence does not arise. Tested on this touchstone, we may safely say that in
the present case when the appellants were members of an unlawful assembly which
was armed with lathis and guns and a declaration had been made that in the
event there is any resistance to take away the paddy which is stated to have
been the original object, they were willing to take life out of the deceased
and take away the paddy. If that is the position, it is futile to contend for
the appellants that their conviction is in any way bad. In that view of the
matter, we find absolutely no merit in Crl.A.Nos.824-825/98 and we dismiss the
same. So far as Arvind Singh, appellant in Crl.A.No.659/99, is concerned, his
case stands on a different footing. On the evidence on record, the learned
counsel for the appellant, was not in a position to point out any infirmity in
the conviction recorded by the trial court as affirmed by the appellate court.
The only contention put forward before the court is that the appellant is born
on 1.1.67 while the date of the incident is 14.12.1980 and on that date he was
hardly 13 years old. We called for report of experts being placed before the
court as to the age of the appellant, Arvind Singh. The report made to the
court clearly indicates that on the date of the incident he may be 13 years
old. This fact is also supported by the school certificate as well as
matriculation certificate produced before this court which indicate that his
date of birth is 1.1.67. On this basis, the contention put forward before the
court is that although the appellant is aged below 18 years and is a child for
the purpose of the Bihar Children Act, 1970 on the date of the occurrence, his
trial having been conducted along with other accused who are not children is
not in accordance with law.
However,
this contention had not been raised either before the trial court or before the
High Court. In such circumstances, this Court in Bhola Bhagat vs. State of
Bihar, 1997(8) SCC 720, following the earlier decisions in Gopinath Ghosh vs.
State of West Bengal, 1984 Supp.SCC 228 and Bhoop Ram vs. State of U.P. 1989(3)
SCC 1 and Pradeep Kumar vs. State of U.P., 1995 Supp(4) SCC 419, while
sustaining the conviction of the appellant under all the charges, held that the
sentences awarded to them need to be set aside. In view of the exhaustive
discussion of the law on the matter in Bhola Bhagat case [supra], we are
obviated of the duty to examine the same but following the same, with respect,
we pass similar orders in the present case.
Conviction
of the appellant, Arvind Singh, is confirmed but the sentence imposed upon him
stand set aside. He is, therefore, set at liberty, if not required in any other
case. The appeal filed by Arvind Singh succeeds to the extent indicated above.
The appeal is allowed in part accordingly.
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