Girja Shanker Pandey And Others vs State Of U.P.
2018 Latest Caselaw 2461 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 
Case :- CRIMINAL APPEAL No. - 438 of 1988
 

 
Appellant :- Girja Shanker Pandey And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- H.C. Tripathi,Nagendra Mohan,P.S. Pandey,S.P. Pathak
 
Counsel for Respondent :- P C Agrawal
 
                                          *****
 
Hon'ble Ritu Raj Awasthi,J.

Hon'ble Mahendra Dayal,J.

(Per Mahendra Dayal,J.)

This criminal appeal arises out of the judgment and order dated 30.07.1988 passed by the Sessions Judge, Sultanpur in Session Trial No.175 of 1986 whereby the appellants and Santosh Kumar Pandey were convicted and sentenced to imprisonment for life under Section 302/149 IPC, rigorous imprisonment for a term of five years under Section 307/149 IPC, rigorous imprisonment for a term of one year under Section 147 IPC and rigorous imprisonment for a term of six months under Section 323/149 IPC.

One of the convicted accused appellants namely Santosh Kumar Pandey filed separate Appeal No.474 of 1988 but on account of his death during pendency of the appeal, the appeal was abated. In the present appeal, out of the four accused appellants, two, namely Kamlakar Pandey and Ram Pal Pandey also died during pendency of the appeal. This appeal is, therefore, being decided only in respect of appellants Girja Shanker Pandey, Ram Nain Pandey and Nand Kumar Pandey.

The prosecution case in short is that on 14.04.1986 at about 3.30 p.m., the accused appellants Girja Shanker Pandey, Kamlakar Pandey, Ram Nain Pandey and Nand Kumar Pandey armed with lathi and Ram Pal Pandey and Santosh Kumar Pandey empty handed, jointly came to the house of the complainant and started abusing them. It is mentioned in the FIR that there was previous enmity between Girja Shanker Pandey and the complainant. When the wife of the complainant namely Gayatri Devi, his brother namely Surya Mani and Gayatri Prasad, the wife of his nephew Vidya Devi came out of the house and stopped them from abusing, the accused appellants armed with lathi started assaulting them. The accused appellants who were empty handed started throwing bricks on them. While this was going on, it is said that Kamlakar Pandey asked Girja Shankar Pandey to bring gun and kill all of them. It is alleged that on the exhortation of Kamlakar Pandey, Girja Shankar Pandey went in side his house and brought a single barrel gun and fired twice. The first fire hit the left leg of Surya Mani while the other fire hit the right hand of the complainant and the wife of the complainant. According to the FIR, the wife of the complainant died on the spot. The occurrence was witnessed by the relatives of the complainant who were present in the house and other village people. It was also mentioned in the FIR that Smt. Vidya Devi, Gayatri Devi, wife of Gayatri Prasad and Rakesh Prasad received injuries as a result of brick-batting by the accused appellants.

The FIR was lodged by the complainant on 14.04.1986 itself at 4.30 p.m. with police station Chanda, District Sultanpur. The injured complainant and Surya Mani, who were present in the police station at the time of lodging of the FIR, were referred for medical examination. The investigation was handed over to the Station House Officer, police station Chanda.

The investigating officer after taking over investigation, visited the place of occurrence and prepared site-plan. He also took samples of blood stained earth and sealed the same. One empty cartridge was also found on the spot which was taken in to possession. Apart from this, some other articles like foot wear and blood stained clothes were also recovered by the investigating officer. The inquest report was prepared on the same day at 5.30 p.m. The dead body was sealed and was sent for postmortem examination alongwith relevant papers. The postmortem of the body of Smt. Gayatri Devi was conducted on the next day i.e. on 15.04.1986 at 3.30 p.m. by Dr. Raees Ahmad who noted the following ante mortem injuries:-

1. Multiple fire arm wounds 0.25 cm x 0.3 cm in an area of 48 cm on back and lateral side of left upper limbs extending from shoulder to 3 cm. above wrist joint. These wounds were skin to bone deep.

2. Multiple fire arm wounds 0.25 cm x 0.5 cm. x skin to cavity deep on left axilla and left front of chest and lateral side of abdomen in an area of 36 cm. x 2 cm.

3. Abrasion 2.5 cm. x 1 cm. on front of right leg, 9 cm. below knee joint.

4. Abrasion 2 cm. x 0.5 cm. on the back of right elbow joint.

The injured were examined by Dr. K.P. Jaiswal produced as P.W.3, at P.H.C. Pratapur Kamaycha. The injury of complainant Jantri Prasad were three in number and in the opinion of the doctor, all these injuries were grievous and were caused by fire arm.

In the medical examination of Surya Mani also, three injuries were found, out of which two injuries were grievous and caused by fire arm, while the third injury was simple in nature and was caused by some blunt object.

The pellets removed from the body of the deceased were separately sealed by the doctor and were sent to the police.

The investigating officer took statement of the complainant and other injured persons and also interrogated the eye witnesses. After completing the formalities of investigation and collection of evidence charge-sheet was submitted against all the accused persons.

The learned trial court framed charges against the accused appellants and thereafter called upon the prosecution to produce evidence. The prosecution in all examined seven witnesses to prove its case. After the prosecution evidence was over, the statement of the accused was recorded under Section 313 Cr.P.C. in which they denied the occurrence and stated that they were falsely implicated due to enmity.

The defence also examined three witnesses in defence, one witness Suresh Ram S.H.O. was also examined as court witness.

The learned trial court on appreciation of evidence came to the conclusion that the charges against the accused appellants were proved beyond doubt and after giving them opportunity of hearing on quantum of sentence, convicted them in the manner indicated herein above.

We have heard Sri Nagendra Mohan learned counsel for the appellants, learned Additional Govt. Advocate and Sri P.C. Agarwal learned counsel for the complainant and also perused the record.

Sri Nagendra Mohan learned counsel for the appellants has argued that the conviction of the appellants for the offence of murder with the aid of Section 149 IPC is contrary to the evidence on record. There is no evidence at all to prove that all the accused appellants had common object to kill the deceased. According to the learned counsel for the appellants, the accused appellants should have been convicted keeping in view the roles attributed to them. Mere presence of the accused appellants on the place of occurrence, does not lead to the conclusion that all of them had common object. It is an admitted case of the prosecution that two of the accused appellants were empty hand and as such it cannot be said that they also had any intention to kill the wife of the complainant. It has also been pointed out by the learned counsel for the appellants that while mar-peet was taking place, the accused appellant Girja Shanker Pandey, on the exhortation of Kamlakar Pandey, brought gun from his house and fired twice as a result of which the wife of the complainant was killed. Had there been any common object of all the accused persons to kill some one, they would have come prepared with fire arms or other dangerous weapons to give effect to their object but pelting of stones by some of the accused, nowhere suggests that they also shared common object to kill the wife of the complainant.

It is next argued by the learned counsel for the appellants that in fact the accused appellants acted in exercise of their right of private defence because the property where the occurrence is said to have taken place, belongs to the accused appellants and the complainant side was raising construction over the said land. The accused appellants therefore had every right to stop them from doing so in order to protect their property from being occupied by them. Their case is, therefore, covered under Section 106 of the IPC which provides that if in exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. Thus, the accused appellants exercised their right of private defence to protect their property and while doing so if they exceeded their right, the case would fall under Section 304 IPC and not under Section 302 IPC as held by the trial court.

It has also been argued by Sri Nagendra Mohan that the motive as indicated by the prosecution is self-contradictory. At one place, it has been said that on the date of occurrence, the children of the complainant and the accused-appellants had some scuffle at about 10.00 a.m. and the occurrence took place because of this altercation. Another motive suggested by the prosecution is that on the date of occurrence at about 11.00 a.m., the accused appellants Ram Nain Pandey and Nand Kumar Pandey had cut a branch of mango tree which belongs to the complainant and the mar-peet took place because of this illegal act of the accused appellants. The third motive suggested by the prosecution is that the complainant was raising construction over his land and the accused appellants while using force to stop construction, committed the crime. The submission of the learned counsel for the appellants is that when different motives have been suggested by the prosecution, it goes to show that the prosecution was not clear as to what was the actual cause of the incident. The prosecution has not been able to prove any of the suggested motives. The learned counsel has referred to certain documents produced in defence to show that the disputed land belongs to the accused appellants and the complainant Jantri Prasad was trying to raise construction over the same by force which the accused appellants had a legal right to stop and while doing so the occurrence took place. Thus, at the most, it is a case of exceeding right of private defence.

Learned Additional Govt. Advocate as well as the learned counsel for the complainant both have argued that so far as the dispute with regard to the ownership of the land is concerned, the same is the subject matter of the civil court but it is an admitted fact that all the accused appellants jointly came at the house of the complainant and started abusing him. This clearly shows that the mar-peet initiated because of the accused appellants themselves. They not only abused the complainant and his family members but also pelted stones and used lathi to cause grievous injuries to them. The accused appellant Girja Shanker Pandey on the exhortation of Kamlakar Pandey brought a gun from his house and used the same killing the wife of the complainant on the spot. When Girja Shanker Pandey brought the gun, the other accused appellants present there, had an occasion to stop him from doing so but they instead of stopping him from using fire arm, remained there as mute spectator. Their conduct therefore shows that they also shared common object to kill the wife of the complainant. The learned trial court has, therefore, not committed any illegality in convicting all the accused appellants with the aid of Section 149 IPC.

It has also been argued by the learned counsel for the complainant that the plea of private defence has been taken for the first time before this Court. This plea was not taken before the trial court and as such the same cannot be allowed to be raised at this stage. Learned counsel has referred to the statement of the accused appellants recorded under Section 313 Cr.P.C. to show that no such statement was made by them in their statement. It has further been argued that presence of all the accused appellants is not disputed and it is established from the record that all of them were members of unlawful assembly. It is a settled law that every member of unlawful assembly is responsible for the act done by any one of them. For this reason also, their conviction with the aid of Section 149 IPC is proper and justified.

We shall now proceed to assess the contentions of the learned counsel for the parties. The first question which arises for consideration by us is whether all the appellants can be convicted under Section 302 with the aid of Section 149 IPC.

Section 149 IPC reads as under:-

"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-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."

The provision has essentially two ingredients. First is the commission of an offence by any member of an unlawful assembly and second ingredients is that such offence must be committed in prosecution of the common object of the assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once it is established that the unlawful assembly had common object, it is not necessary that all persons forming unlawful assembly, must be shown to have committed some overt act. The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a meeting of the members. It is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part the offence, it 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, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. If a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed, if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly, clearly point to such knowledge on the part of them.

A ''common object' does not require a prior meeting of mind before the attack. It is enough if each member of the unlawful assembly has the same object in view of their number and their number is five or more that their act as an assembly is to achieve that object. The ''common object' of an assembly is to be ascertained from the acts and conduct of the members and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. 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, every person who, at the time of the committing of that offence, is a member, would be guilty of that offence.

In the light of the aforesaid legal position, we now proceed to appreciate the evidence of the prosecution produced during the course of trial.

From the evidence on record, we find that all the accused appellants forming a group, came at the disputed site, where the construction was going on. Out of the accused, two were not having any arm and were empty hand, while the remaining were having lathi. The allegation is that as soon as they reached the place of occurrence, the accused who were empty handed, started pelting stones and those who were having lathi, started assaulting the complainant and other members of his family with lathi. While this "Mar-peet", was going on, one of the accused-appellant namely Kamlakar Pandey asked another accused-appellant Girja Shankar Pandey to bring gun and kill all of them. It is alleged that on the exhortation of Kamlakar Pandey, Girja Shankar Pandey went inside his house and brought a single barrel gun. He, thereafter, fired twice killing the wife of the complainant on the spot and causing injuries to others. Although it is alleged that the accused-appellants, who were armed with lathi, gave lathi blows to the deceased and injured, but the post-mortem report of the deceased does not indicate any injury caused by hard and blunt object. The injuries sustained by the injured are mostly firearm injuries and one injury of the injured is in the nature of lacerated wound caused by hard and blunt object.

The dispute as stated by the prosecution arose when the complainant side was raising construction over the land in dispute and the accused-appellants reached there to stop the construction. Initially they pelted stones and used lathi. After some "Mar-peet", the accused-appellant Girja Shankar Pandey on the exhortation of Kamlakar Pandey brought gun and fired twice. In the instant case, the first and notable circumstance shown that the accused-appellants were the members of unlawful assembly, but the way the occurrence took place, does not reveal that all the accused-appellants shared common object to kill the wife of the complainant. Thus, the act of one or two accused-appellants cannot be attributed to all of them because they had no knowledge from the beginning that Girja Shankar Pandey would bring gun and kill the wife of the complainant. They had no knowledge of the likelihood that the accused-appellant Girja Shankar Pandey would inflict fatal injury upon the deceased. It is the admitted case of the prosecution that two of the accused-appellants were unarmed and, therefore, their knowledge that any one can be killed, cannot be gathered from the circumstances of the case. The death of the wife of the complainant is a result of sudden action of two of the members of unlawful assembly and does not constitute an act in prosecution of the common object of unlawful assembly. Therefore, we are of the considered view that the learned trial court fell in error in convicting all the accused-appellants for the offence under Section 302 and 307 read with Section 149 IPC. However, there is no doubt that their conviction under Sections 323/149, 147, 148 IPC as awarded to them is perfectly justified.

Another question for consideration which arises in this appeal is as to whether the accused-appellants held guilty for the murder of the complainant's wife, or other accused-appellants guilty of causing injuries, acted in the exercise of their right of private defence.

It is not disputed that the plea of right of self-defence has been raised for the first time before this Court during the course of hearing of the appeal. No such plea was raised before the trial court. The statements of the accused-appellants recorded under Section 313 Cr.P.C., nowhere reveals that they raised this plea during trial. This plea, therefore, cannot be allowed to be raised for the first time before this Court during hearing of appeal. Moreover, it is not established from the evidence on record that the disputed land over which the complainant was raising construction, belongs to the accused-appellants. The right of self-defence to protect property, can only arise if it is proved that the said land belongs to the accused-appellants and that they had legal right to protect their land from being occupied by others. In the absence of any proof of ownership, the plea of self-defence is not tenable. It is not the case of the accused-appellants that first they were attacked by the complainant side and in order to defend themselves, they also used arms. In these circumstances, the plea raised by the accused-appellants with regard to right of self-defence is not at all acceptable.

From the above, it clearly transpires that the cause of death of the wife of the complainant is the result of assault by the accused-appellant Girja Shankar Pandey and this assault was made by him on the exhortation of Kamlakar Pandey. The accused-appellant Kamlakar Pandey had knowledge that acting on his exhortation, Girja Shankar Pandey will take out his gun and also use the same which may cause the death of anyone. The intention of Kamlakar Pandey and Girja Shankar Pandey was, therefore, common and they are liable to be convicted under Section 302 read with Section 149 IPC. The firearm used by Girja Shankar Pandey has caused firearm injuries to the injured and, therefore, they are guilty of offence of attempt to murder punishable under Section 307 IPC. The accused-appellants, who were having lathi have also caused grievous hurts and shared common object, but their intention to kill anyone, is not made out from their act and conduct and, therefore, they are not liable to be punished under Section 307 read with Section 149 IPC. The accused-appellants, who were empty handed and were not having any arm, pelted stones causing injuries to the injured and were with other accused persons having lathi and as such they had every knowledge that the accused having lathi would use them and, therefore, they also shared common object with all other accused persons.

The question now arises that the acquittal of four accused of the charge of murder is sufficient to negative the theory of their being unlawful assembly of which all the accused appellants were members.

The answer to this question was given by the Hon'ble Apex Court in the case of Khem Karan vs. State of U.P., reported in 1974 SCC (Cri) Page 639. In this case, it was observed by the Hon'ble Apex Court that where a large number of accused-appellants committed the crime and some of them were acquitted and the remaining who have been convicted are less than five, cannot vitiate the conviction with aid of under Section 149 IPC. If for example, only five known persons are allowed to have participated in an act, but the Court finds that two of them were falsely implicated, it would be quite natural and logical to interfere or presumption that the participants were less than five in number. On the other hand, if the Court holds that the assailants were actually five in number, but there could be a doubt as to the identity of two of the alleged assailants and, therefore, acquits two of them, the other will not get the benefit of doubt about the identity of two accused so long as there is a confirmed finding based on the evidence that the participants were five or more in number.

Keeping in view the aforesaid legal position, acquittal of four accused-appellants in comparison to unlawful assembly, does not in the light of the settled legal position, make any material difference. So long as there were other persons, who had the common object of committing the offence, the assembly establish is unlawful assembly and nature of acquittal of some of those who were members to unlawful assembly of reason of the benefit of doubt given to them notwithstanding.

We have held that commission of murder, was not the common object of all the accused persons. They certainly had come to the spot with a view to prevent the complainant and others from raising construction. They only used force using lathi and bricks.

In the result, we partly allow this appeal and set aside the conviction and sentence awarded to Ram Nain Pandey, Nand Kumar Pandey, under Section 302 and 307 read with Section 149 IPC and acquit them of that charges. The conviction of the appellants Girja Shankar Paney and Kamlakar Pandey only under Section 302 and 307 read with Section 149 IPC is upheld, but since Kamlakar Pandey is dead, therefore, only Girja Shankar Pandey shall serve the sentence awarded to him. The conviction of Girja Shankar Pandey under Sections 302, 307, 148, 323 read with Section 149 IPC is upheld. The appellants Ram Nain Pandey and Nand Kumar Pandey are responsible for the simple injury caused to Surya Mani Pandey and, therefore, their conviction under Section 147 and Section 323 read with Section 149 IPC only is upheld. For each of the offences, they have been awarded one year and six months imprisonment respectively. They are acquitted of the charges under Section 302/149, 307/149 IPC.

While deciding this appeal, we keep in mind that the occurrence in question took place in the year 1986 and a period of about 32 years has passed. The appellants have already faced a prolonged trial, therefore, considering the fact that they have no criminal antecedents, we, while holding their conviction, modify their sentence to the period already undergone by them provided they deposit the fine imposed on them by the trial court within three weeks from the date of this judgment failing which they shall undergo sentence in default imposed by the trial court. The appellant Girja Shankar Pandey is on bail. He shall surrender before the court below within two weeks from the date of this judgment to serve the sentence imposed on him, failing which, the Chief Judicial Magistrate, Sultanpur shall cause him to be arrested and sent to jail. The compliance report shall be submitted to this Court by the Chief Judicial Magistrate, Sultanpur within three weeks.

Order Date :- 11th September, 2018

ANK-Rakesh/-