High Court
Case Details
1 Cr. Appeal (DB) No.142 of 1995(R) Against the judgment of Conviction and Order of Sentence dated 14.09.1995 passed by the Additional Sessions Judge, Bermo at Tenughat in Sessions Trial No.178 of 1994 arising out of Kasmar Police Station Case No.78 of 1993 ---- 1. Rathu Singh son of Late Jagarnath Singh (since deceased) 2. Bishu Singh son of Late Chamo Singh (since deceased) 3. Puran Singh son of Sri Bishu Singh 4. Dhiren Singh son of Sri Bishu Singh All residents of Village Hanslata, Police Station Kaswar, District Bokaro. … Appellants -versus- The State of Bihar (now Jharkhand) … Respondent ---- For the Appellants : Mr. Rajesh Kumar, Advocate For the State : Mr. Bhola Nath Ojha, APP ---- PRESENT SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J. ---- Upon hearing learned counsel for the parties, this Court passed the following, (Per Ananda Sen, J.) J U D G M E N T 1. This criminal appeal has been filed by the appellants, challenging the Judgment of Conviction and Order of Sentence dated 14.09.1995 passed by the Additional Sessions Judge, Bermo at Tenughat in Sessions Trial No.178 of 1994 arising out of Kasmar Police Station Case No.78 of 1993, whereby appellant Rathu Singh has been convicted for the offence punishable under Sections 302/323/34 and Section 148 of the Indian Penal Code, appellant Bishu Singh, Puran Singh and Dhiren Singh have been convicted for the offence punishable under Sections 302/149 of the Indian Penal Code and Section 147 of the Indian Penal Code, appellant Bishu Singh has further been convicted for offence punishable under Sections 323/34 of the Indian Penal Code; further appellant Rathu Singh has been sentenced to undergo life imprisonment and also imposed fine of Rs.2,000/- or in default to undergo simple imprisonment for six months for the charges under Section 302 of the Indian Penal Code; he has also been sentenced to undergo rigorous imprisonment for one year for the charge under Section 148 of the Indian Penal Code; he has further been sentenced to undergo rigorous imprisonment for six months for charge under Sections 323/34 of the Indian Penal Code; further the appellant Bishu Singh has been sentenced to undergo life 2 imprisonment and also imposed fine of Rs.1000/- or in default to undergo three months’ simple imprisonment for the charge under Sections 302/149 of the Indian Penal Code; he has also been sentenced to undergo rigorous imprisonment for six months for the charge under Section 157 of the Indian Penal Code; he has further been sentenced to undergo six months’ rigorous imprisonment for the charge under Sections 323/34 of the Indian Penal Code; further appellant Puran Singh has been sentenced to undergo life imprisonment and imposed fine of Rs.1000/- or in default to undergo simple imprisonment for three months for the charge under Sections 302/149 of the Indian Penal Code; he has also been sentenced to undergo rigorous imprisonment for six months for charge under Section 147 of the Indian Penal Code; further appellant Dhiren Singh has been sentenced to undergo life imprisonment and imposed fine of Rs.1000/- or in default to undergo simple imprisonment for the charge under Sections 302/149 for six months; he has also been sentenced to undergo rigorous imprisonment for six months for the charge under Section 147 of the Indian Penal Code. All the sentences were ordered to run concurrently. 2. At the very outset, from order No.11 dated 4th April, 2019 it is apparent that the original appellant No.1 Rathu Singh and original appellant No.2 Bishu Singh have expired during pendency of this appeal. There is no substitution petition. Thus, this appeal stood abated with respect to appellants Nos.1 and 2. 3. Now, this appeal has to be adjudicated only in relation to appellants Nos.3 Puran Singh and appellant No.4 Dhiren Singh. 4.
Legal Reasoning
Learned counsel appearing on behalf of the surviving appellants, while arguing, submits that admittedly, the murder was committed by appellant Rathu Singh, who is now dead. So far as these two surviving appellants are concerned, they have been convicted with the aid of Section 149 of the Indian Penal Code, which, considering the evidence led by the prosecution, is not sustainable in the eyes of law. Further, the conviction under Section 147 of the Indian Penal Code is also bad as there are no materials to attract the said penal Section. As per him, learned Trial Court did not even put the relevant circumstances against these appellants, which surfaced from the evidence of the witnesses, while recording their statement under Section 313 of the Code of Criminal Procedure, which vitiates the entire prosecution case. In a most perfunctory manner, examination of the accused under Section 313 of the Code of Criminal Procedure was recorded. The basic ingredients and the 3 foundational evidence to attract the offence under Section 149 of the Indian Penal Code is missing in the instant case. Prosecution has not put forth any material to suggest that the surviving appellants had any common object nor did they knew the intention of Rathu Singh (since deceased) and in absence of such knowledge and also in absence of common object, the appellants could not have been convicted and their conviction by the Trial Court cannot be sustained. As per him, Section 147 of the Indian Penal Code is also not applicable in this case as this is not a case of rioting as basic ingredients of Section 147 of the Indian Penal Code is missing, which would be evident from the prosecution evidence itself. 5. Learned counsel appearing on behalf of the State submits that the evidence would suggest that the unlawful assembly was formed by these two surviving appellants and others, when appellant Rathu Singh assaulted the deceased and thereafter committed his murder. The offence is complete and there is application of Sections 147 and 149 of the Indian Penal Code also. So far as perfunctory recording of the statement of accused under Section 313 of the Code of Criminal Procedure is concerned, he submits that the appellant has failed to establish that they have been put to any prejudice. 6. The prosecution case emerges from the Fardbeyan of informant, Bigu Singh (P.W.8). His farbeyan was recorded by A.S.I. of Police, Uday Pratap Singh (P.W.11) on 15.11.1993 at 07.00 a.m. at Tola Kulu Guju in front of Bigu Singh’s house in Village Hanslata within Kasmar Police Station in the district of Bokaro. According to the Fardbeyan, the informant along with his family members, on 14.11.1993 at 05.00 p.m. had come to their house after performing Gaur Puja. After distributing “Prasad”, at about 10.00 p.m., they were about to go to bed, when the accused Rathu Singh came and asked for “Prasad”. On this, the informant came out and expressed his inability since entire “Prasad” had already been distributed and nothing was left. Accused Rathu Singh not relishing such reply, started abusing the informant and assaulted him with danta (thick stick) on his head, as a result of which blood started oozing. On hearing hue and cry, father of the informant, Jai Mangal Singh came and intervened. In the meantime, accused Puran Singh, Dhiru Singh, Rati Singh, all came there and started assaulting informant’s father with lathi. In midst of such assault to his father, Rathu Singh rushed to his house and brought a Tangi (axe) and assaulted informant’s father on his forehead, as a result of which, informant’s father fell down and lost consciousness and later on he died. Younger brother of the informant, Mohan Singh, family members of 4 the informant and neighbours came there when the accused left the place of occurrence. Case was registered as Kasmar Police Station Case No.78 of 1993 on the basis of Fardbeyan of Bigu Singh. After investigation, chargesheet was submitted under several Sections, including Sections 302 and 307 of the Indian Penal Code. Case was committed to the Court of Sessions. Accused persons denied the charges and claimed to be tried. 7. Prosecution examined altogether 11 (eleven) witnesses in course of trial to bring home the charges. P.W.1 Bishuni Devi is the wife of the informant Bigu Singh. P.W.2 is Meghia Devi, who is wife of younger brother of the informant. P.W.3 Mohan Singh is younger son of the deceased and brother of the informant. P.W.4 Badho Singh is full brother of the deceased Jai Mangal Singh. P.W.5 Dr. Upendra Prasad is the doctor who had conducted postmortem examination. P.W.6 Kartik Singh is a tender witness. P.W.7 Jagdish Mahto is a villager. P.W.8 Bigu Singh is the informant. P.W.9 Hardwar Singh is also a Medical Officer, who had medically examined the informant Bigu Singh. P.W.10 Birendra Prasad is an advocate clerk, who was a formal witness and P.W.11 is Uday Pratap Singh, A.S.I. of Police, who had recorded the Fardbeyan of the informant and was the Investigating Officer. The following documents were also exhibited in support of the prosecution case: - Ext.1 : Signature of Mohan Singh Ext.1/1 Signature of Jagdish Mahto on the inquest report. Ext.2 Ext.3 Ext.4 Ext.5 Ext.6 Ext.7 Ext.8 Postmortem Report Signature of Bigu Singh on the Fardbeyan Injury Report Fardbeyan Endorsement of fardbeyan Formal FIR Injury report of Bigu Singh Defence also examined two witnesses. Gopi Singh and Bariyar Mahto. 8. On conclusion of the trial, by Judgment of Conviction and Order of Sentence dated 14.09.1995 passed by the Additional Sessions Judge, Bermo at Tenughat in Sessions Trial No.178 of 1994 arising out of Kasmar Police Station Case No.78 of 1993, appellant Rathu Singh has been convicted for the offence punishable under Sections 302/323/34 and Section 148 of the Indian Penal Code, appellant Bishu Singh, Puran Singh and Dhiren Singh have been 5 convicted for the offence punishable under Sections 302/149 of the Indian Penal Code and Section 147 of the Indian Penal Code, appellant Bishu Singh has further been convicted for offence punishable under Sections 323/34 of the Indian Penal Code; further appellant Rathu Singh has been sentenced to undergo life imprisonment and also imposed fine of Rs.2,000/- or in default to undergo simple imprisonment for six months for the charges under Section 302 of the Indian Penal Code; he has also been sentenced to undergo rigorous imprisonment for one year for the charge under Section 148 of the Indian Penal Code; he has further been sentenced to undergo rigorous imprisonment for six months for charge under Sections 323/34 of the Indian Penal Code; further the appellant Bishu Singh has been sentenced to undergo life imprisonment and also imposed fine of Rs.1000/- or in default to undergo three months’ simple imprisonment for the charge under Sections 302/149 of the Indian Penal Code; he has also been sentenced to undergo rigorous imprisonment for six months for the charge under Section 157 of the Indian Penal Code; he has further been sentenced to undergo six months’ rigorous imprisonment for the charge under Sections 323/34 of the Indian Penal Code; further appellant Puran Singh has been sentenced to undergo life imprisonment and imposed fine of Rs.1000/- or in default to undergo simple imprisonment for three months for the charge under Sections 302/149 of the Indian Penal Code; he has also been sentenced to undergo rigorous imprisonment for six months for charge under Section 147 of the Indian Penal Code; further appellant Dhiren Singh has been sentenced to undergo life imprisonment and imposed fine of Rs.1000/- or in default to undergo simple imprisonment for the charge under Sections 302/149 for six months; he has also been sentenced to undergo rigorous imprisonment for six months for the charge under Section 147 of the Indian Penal Code. All the sentences were ordered to run concurrently. 9. It is an admitted case that these two appellants have been convicted under Section 302 of the Indian Penal Code with the aid of Section 149 of the Indian Penal Code and also been convicted under Section 147 of the Indian Penal Code. It is an admitted prosecution case that the fatal blow was given by one Rathu Singh. Section 149 of the Indian Penal Code reads as follows: - 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 6 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 committing of that offence, is a member of the same assembly, is guilty of that offence. 10. From the aforesaid provision of law, it is clear that there has to be a common object of the unlawful assembly or the members of that assembly knew about the offence likely to be committed in prosecution of the common object. Until and unless these ingredients of common object is fulfilled, a person cannot be prosecuted with the aid of Section 149 of the Indian Penal Code. In this case the overt act is of murder. The evidence of P.W.1 Bishuni Devi suggests that the deceased was in his house. A puja was being organized in the village. The deceased, after having meal, went to sleep at night when Rathu Singh came and asked for “Prasad”. The husband of P.W.1 stated that “Prasad” had been distributed and nothing is left. Rathu Singh got infuriated and started abusing, when the father-in-law of P.W.1 and others came out of house, Bishu Singh instigated to assault them. Rathu Singh started assaulting them. Other appellants also reached at the place and started assaulting the father-in-law of P.W.1. Rathu Singh (since deceased), thereafter went inside his house, brought an axe and assaulted the father-in- law of P.W.1 on his head, who died. This version is consistently narrated by the P.W.2 and P.W.3 also. Evidence on this point is consistent, so we are not repeating the same. From the aforementioned statement, it is clear that it was Rathu Singh, who initially assaulted the deceased on his head by lathi and, thereafter, suddenly went inside his house, brought an axe and gave the fatal blow. Further, fact which emerges is that Rathu Singh demanded “Prasad” and when inability was shown by the husband of P.W.1 to offer Prasad to Rathu Singh, Rathu Singh started hue and cry and abused family of the deceased, upon which these appellants and others assembled. At that point of time, the entire incident occurred. There is nothing in the evidence to suggest that there was any common object amongst these appellants to commit murder of the deceased or to create a ruckus. Further, they assembled only after hearing Rathu Singh started abusing the family of the deceased. This assemblage cannot also be said to be unlawful assembly, as it is natural in a village , when a ruckus is being caused by a person, the other villagers will come out. It is also not the case of the prosecution that when Rathu Singh went to the house of the deceased to demand Prasad, these appellants also accompanied him by forming an assembly. Thus, it is clear that the prosecution has failed to prove any unlawful assembly in the instant case. Further, there is no evidence 7 to suggest that these two appellants knew that the offence of murder was to be committed by Rathu Singh. The Hon’ble Supreme Court in the case of Joseph versus State represented by Inspector of Police reported in (2018) 12 SCC 83 at paragraphs 11, 11.1, 11.2 and 11.3 has held as under: - 11. Before we consider the testimony of the witnesses, let us consider the requirements for invoking the vicarious liability under Section 149 IPC. Section 149 IPC consists of two parts: 11.1. The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. 11.2. The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149, if it can be shown that the offence was such as the members knew was likely to be committed. 11.3. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the court finds that the ingredients of Section 149 IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the court to see as to who actually did the offensive act nor would it be open to the court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established. 11. In absence of any evidence of common object and unlawful assembly, there is no application of Section 149 of the Indian Penal Code in the instant case. Thus, these two appellants could not have been convicted for offence under Section 302 of the Indian Penal Code with the aid of Section 149 of the Indian Penal Code. 12. So far as Section 147 of the Indian Penal Code is concerned, the same is a punishment for committing the offence of rioting. Rioting is defined in Section 146 of the Indian Penal Code, which reads as under:- 146. Rioting. – Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. 8 13. As per the aforesaid provision also, there should be unlawful assembly in prosecution of common object. As held earlier, prosecution has failed to prove that assemblage of appellants with others was unlawful and thus, the conviction under Section 147 of the Indian Penal Code so far as these two appellants are concerned, cannot be sustained. 14.
Decision
In view of what has been held above, we hold that this appeal has merit. We are inclined to allow this appeal qua the two appellants, namely, Puran Singh and Dhiren Singh. The impugned Judgment of Conviction and Order of Sentence dated 14.09.1995 passed by the Additional Sessions Judge, Bermo at Tenughat in Sessions Trial No.178 of 1994 arising out of Kasmar Police Station Case No.78 of 1993 qua the two appellants, namely, Puran Singh and Dhiren Singh, is hereby set aside. Since the appellants are already on bail, they are discharged from the liabilities of the bail bond. 15. This appeal qua the appellants Puran Singh and Dhiren Singh stands allowed. (Sanjaya Kumar Mishra, C.J.) (Ananda Sen, J.) High Court of Jharkhand, Ranchi Dated, the 27th of April, 2023. NAFR Kumar/Cp-03