ST A TE OF RAJASTHAN A

NATHU AND ORS.

APRIL 28, 2003

[Y.K. SABHARWAL AND H.K. SEMA, JJ.]

Penal Code, 1860; Ss. 141, 148, 149, 302, 440, 451 and 454:

Murder of two children-Trial of seven accused-Conviction of five of C them by the trial court u/s.302 /PC with the aid of Section 149-Acquittal of all except one by the High Court on ground that no avert act has been attributed to the four accused-On appeal, Held: both the trial court and the High Court found accused persons forming an unlawful assembly and armed with lethal weapons-All of them enterd into the house of the victim by breaking the wall and one of the accused butchered the two children-High D Court proceeded on wrong assumptions of law that since fatal blow to the deceased was struck by one of the accused, no overt act could be attributed to remaining accused-Nature and behaviour of the assembly and the arms used by them conclusively proved that the common object of the unlawful assembly was to eliminate father of the deceased children to take avenge. E Hence all the five accused rightly convicted by the trial court for committing offence under Section 302 rlw Section 149 !PC

Unlawful assembly-liability of individual members-Held: once an unlm1:fid assembly has come into existence each of its members becomes vicariously liable for commission of criminal act by its member/members in F furtherance of common object of such assembly-Definite findings as to which of the accused caused fatal injwy is not necessaiy for conviction.

Words and Phrases: 'common object'-Meaning of in the context of unlav.ful assembly.

According to the prosecution, there was enmity between accused and PWI, father of the deceased children. On the fateful day, PWI and his two children were sleeping in their house. On hearing some noise, he got up and saw the accused persons armed with weapons moving towards his

house. He got frightened and hid himself in the nearby house. He saw the H

A accused entering into his house by breaking the wall and thereafter he heard the scream of his daughter. He thought that the accused might have killed his children and ran away crying for help. On hearing the alarm, his mother, brother and relatives also joined him. When accused fled away, his mother went into the house and found both the children murdered. PWI B and his brother lodged an FIR. Police got the post-mortem done of the dead bodies and investigated the matter. The accused persons were charged for committing the offence of murder u/s 302 r/w Section 149 IPC and for other offences under various sections of IPC. Trial Court found five of them guilty of committing murder of the children of PW! by forming an unlawful assembly and convicted and sentenced them. On appeal, High Court C acquitted all except one of the accused on the ground that no overt Act has been attributed to the rest of the accused. Hence the present appeal by the State.

It was contended on behalf of the respondents that there was inconsistency between the FIR and the statement of PWI; that the D prosecution had failed to prove entry of all the accused by breaking the wall; and that prosecution had failed to identify as to which of the accused member of the unlawful assembly had caused the death of the children.

Allowing the appeal, the Court

HELD: I. I. The High Court, having found the formation of unlawful assembly of five accused proved, proceeded on wrong assumption of law that only one of the accused had struck a fatal blow and no overt act has been attributed to the rest of four accused. The view taken by the High Court is a complete negation of the settled position of law. 1973-B, Cl

1.2. In the instant case, the accused persons were comprised of five and they had formed an unlawful assembly, is being founded by both the courts below concurrently and the evidence on record clearly established that the accused entered into the house of PW! by breaking down the wall G of the house and they were armed with weapons. A long-standing enmity between PW! and the accused persons was proved from the statements of PW6. It was also revealed that 7-8 days prior to the incident PWI and others had a quarrel with the members of the families of the accused persons. The murder has been committed in broad day light. Witnesses and accused were known persons. The accused persons formed an unlawful H assembly armed with formidable weapons, came to the house of PWt. They

STA TE OF RAJASTHAN v. NA THU 969

broke down the wall and entered into the house and butchered two children A of PWI by inflicting axe injuries. It is quite apparent that the accused had formed an unlawful assembly with an object to eliminate PWI to take avenge of long standing animosity and the quarrel between them. The common object to murder PWI and his family could be gathered from the formidable arms carried by the accused, their entering into the house by B breaking the wall and finding PW! not there, butchered his children.

Gathered from these facts and circumstances and evidence, it cannot be. said that the four accused joined the assembly as a matter of idle curiosity or they were passive onlookers without intending to entertain the common object of the unlawful assembly. 1974-B, C; 975-F-H; 976-A-DI

Lalji and Ors. v. State of U.P., 1198911 SCC 437 and Masalti v. State ofU.P., 1196418 SCR 133, relied on.

State of UP. v. Dan Singh and Ors., 1199713 SCC 747; State of A.P. v.

Thakkidiram Reddy and Ors., (19981 6 SCC 554; Anil Rai v. State of Bihar, 1200117 SCC 318 and Gangadhar Behera and Ors. v. State of Orissa, 120021 D sec 381, referred to.

1.3. The Trial Court after careful appreciation of the evidence gave a clear finding that two of the accused persons entered into the house of PWI after breaking the rear wall and remaining accused persons entered E through the door is inconsequential for determining their common object.

The fact that all the accused persons formed an unlawful assembly and entered into the house of PWI with formidable weapons is clearly deducible that they formed common object to eliminate PWI and his family.

1976-E-GI

1.4. When death had been caused in prosecution of common object F

of unlawful assembly, it is not necessary to record a definite and specific finding as to which particular accused out of the members of the unlawful assembly caused the fatal injury. Once an unlawful assembly has come into existence, each member of the assembly becomes vicariously liable for the G criminal act of any other member of the assembly committed in prosecution of the common object of the assembly. 1977-A, Bl

Rajendra Shanlaram Todankar v. State of Maharashtra, 120031 2 SCC 257, relied on.

A CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 432 of 1996.

From the Judgment and Order dated 11.1.1995 of the Rajasthan High Court in D.B. (Crl.) A. No. 342 of 1986.

B Alok Bachavat, Ranji Thomas, Bharati Upadhyaya, Ms. Sneh Mishra,

V.N. Raghpathy for the Appellant.

Sudhir Walia (AC) for the Respondents.

The Judgment of the Court was delivered by

SEMA, J. This appeal by special leave is preferred by the State of Rajasthan against the order of the High Court dated 11.1.1995 whereby and whereunder the High Court has maintained the conviction of accused Dhulla under Section 302 IPC simpliciter and recorded acquittal of the accusedrespondents Nathu s/o Nana, Walji (Balji) s/o Moola, Heera s/o Nana and D Dheera S/o Moola, thereby reversing the sentences and convictions recorded by the Trial Court in case No. 90 of 1985 under Section 302 with aid of Section 149 !PC and sentenced them to RI for life. The accused Dhulla is not before us.

E Two children of Bhima (PW- I) - son-Dinesh aged about four years and daughter-Jeevi aged about seven years, were butchered to death by inflicting axe blows between 12.00 - 1.00 noon on 26.6.1985. The post mortem shows that the necks of deceased Dinesh and Jeevi were choked and the same were connected with a thin layer of skin. The prosecution story briefly stated is that on 26.6.1985 at about 12.00 - 1.00 noon while the complainant Bhima F (PW-I) was sleeping on the cot along with his son Dinesh aged 4 years and his daughter Jeevi aged 7 years who were also sleeping on the palm carpet on the earth near the cot, he heard the noise of persons coming from the backyard of his house. He then got up and saw from the wall, made of wood, the accused persons - Nathu armed with gun; Heera armed with gun; Dheera

G armed with 'dhariya'; Balji armed with axe and Dhulla armed with axe and the other persons armed with lath is. Being frightened he ran out of his house and hid himself behind the hut situated in front of his house and started watching from there. The accused persons entered into his house after breaking the wall of wood from the backyard of the house. When he heard his daughter Jeevi's sound of 'Aah', Bhima (PW!) presumed that both the children have H been killed and he would also be killed. So he fled from the place towards

STATE OF RAJASTHAN v. NA THU [SEMA, J.] 971

the house of his father and raised an alarm. Being attracted by his alarm his A mother Kanku, brother Shankar, Arnn etc. reached there. They also saw the accused persons leaving the house. Thereafter, the mother of Bhima went to see the children. She found that both the children have been murdered. There was enmity between the accused persons and Bhima and a quarrel also took place between the complainant and the accused party 7-8 days prior to the B incident. The accused were stated to have taken avenge by committing the crime. Thereafter, PW-1 along with his brothers went to the police station Pahara and lodged the FIR (Ext.P-1). Inspector Bakhtawar Singh (PW-15) investigated the case. He also prepared panchnama of dead bodies (Ext. P- 2 and P-3) of Dinesh and Jeevi respectively. He also prepared sketch memo of the scene of crime. He also got the post mortem conducted of the deceased C Dinesh and Jeevi by Dr. Ramesh Chander Ohri (PW-12), (Ext. P-11 and P-12).

The accused were arrested vide memo Ext.P-21 to Ext.P-27. The accused Nathu, Heera, Dhulla and Balji gave disclosure statements vide Ext.P-28 to

P-32 and pursuant to the disclosure statements lath is of cane were recovered vide Ext.P-11 and P-12. Pursuant to the disclosure statement of accused Nathu, gun was recovered vide (Ext.P-9). Pursuant to the disclosure statement D of accused Dhulla and Balji axes were recovered vide Ext.P-8 and P-10.

After the completion of the investigation seven accused persons were challened.

Accused Dhulla and Balji were charged under Sections 148, 302 & 414 !PC.

Accused Kalu and Jumji were charge-sheeted under Sections 148, 302 read with Section 149 I PC. Accused Nathu, Heera and Dheera were charged under E Sections 148, 302 read with Section 149 and 454 !PC. The accused pleaded not guilty and sought to be tried. The learned trial court framed as many as five issues and after examining the evidence and documents on record fou'ld all the issues established against the accused and held the accused Dhulla guilty of offence punishable under Sections 302 read with Section 149, 454 and 148 !PC; accused Balji guilty of offence punishable under Sections 302 F read with Section 149, 454 and 148 IPC; ancl the accused persons Heera, Dheera and Nathu also guilty for the offence punishable under Sections 302 read with Section 149, 451 and 148 IPC. Accused Jumji s/o Nanji and accused Kalu s/o Nanji were acquitted of the charges of the aforesaid offences. Accused Dhulla was awarded life imprisonment under Section 302 !PC and a fine of G Rs.100 and in default Rl for one month. He was also awarded life imprisonment under Section 302 read with Section 149 and a fine of Rs. 50 and in default RI for 15 days. He was also awarded two years RI for offence under Section 454 !PC and a fine of Rs. I 00 and in default RI for one month and two years RI for offence punishable under Section 148 !PC. Accused Balji was awarded life imprisonment under Section 302 read with Section H

A 149 IPC and a fine of Rs.50 and in default RI for 15 days. He was also awarded two years RI for an offence punishable under Section 454 and a fine of Rs.100 and in default RI for one month and two years RI for the offence under Section 148 IPC. Accused Heera, Dheera and Nathu had been awarded life imprisonment under Section 302 read with Section 149 and a fine of B Rs.50 and in default RI for 15 days. They were also awarded sentence of one year RI for the offence under Section 451 IPC and two years RI for the offence under Section 148 IPC. The sentences were ordered to run concurrently.

At this stage it will be pertinent to point out that altogether eight accused C were mentioned in the FIR. Accused Kana was separately tried by the Juvenile

Court and the remaining seven accused faced trial before the Trial Court - out of which five accused were convicted as noticed above and two were acquitted by the Trial Court.

Aggrieved by the above conviction five accused Nathu, Balji, Heera, D Dheera and Dhulla filed criminal appeal before the High Court of Rajasthan being Criminal Appeal No. 342 of 1986. The High Court on re-appraisal of the evidence on record and after hearing counsel for both the sides maintained the conviction of accused Dhulla under Section 302 IPC and acquitted accused Nathu, Balji, Heera and Dheera for the offence under Section 302 read with Section 149 IPC on the ground that common object has not been established E

by the prosecution and no overt act whatsoever has been attributed to them.

This is what the High Court has said:

"We are, however, of the opinion that in the absence of any common object on behalf of the other accused to cause culpable injury either to Bheema or any member of his family. Provisions ofSec.149 of the

l.P.C. cannot be resorted to in order to attract the theory of any common object of revenge. There must be on record evidence of formation of such object and in any case, there must be a statement regarding such being object of the accused. In the absence of any such statement and evidence it is impermissible in law to take recourse to provisions of Sec. 149 of the J.P. C. or convicting others who admittedly are present and who have not been attributed over/act whatsoever.

The maximum that has been proved in the present case is that the accused persons did assemble together and went towards the house H of Bheema. Having found that he is not there, three remained away,

STATE OF RAJASTHANv. NATHU [SEMA, J.] 973

five entered the premises. Dheera is alleged to have hit the children A of Bheema who has run away but even this is not proved and only Dhoo/a has struck a fatal blow. We are, therefore, unable to agree with the learned Sessions Judge in convicting the other accused persons under Sec. 302 read with Sec. 149 of the /.P.C."

(Emphasis supplied) B

From the above finding of the High Court the accused fonned themselves an unlawful assembly and went together towards the house of Bhima is proved. Having found the unlawful assembly of five accused proved, the High Court proceeded on wrong assumption of law that only accused Dhulla had struck a fatal blow and no overt act has been attributed to the rest of four C accused. The view taken by the High Court, in our opinion, is a complete negation of the settled position of law enunciated by a catena of decisions of this Court, which we shall be dealing at an appropriate time.

As already noticed, accused Dhulla did not challenge his conviction D affinned by the High Cou1t and, therefore, only remaining four accused are before us.

Before we advert further, we may dispose of a few arguments of Mr.

Sudhir Walia, learned amicus curiae as we are of the view that such submissions should not detain us any longer. It is the contention of Mr. Walia E that in the FIR PW-I had mentioned that a lalkara had been raised by the accused whereas in the evidence before the Court he had not stated so, and therefore, there is inconsistency in the FIR and in the statement of PW I in the Court. Such minor discrepancy, in our view, is inconsequential and that would not demolish the prosecution story otherwise found established by convincing evidence. The other contention of Mr. Walia is that the recovery F of axe pursuant to the disclosure statement of accused Dhulla (Ext.3 I) is doubtful inasmuch as the voluntary disclosure about axe by the accused Dhulla was made on 27.6.1985 whereas vide Ext.P-8 the axe was recovered on 30.6.1985 after a delay of three days. Apart, from this aspect the matter has been dealt in detail by the Trial Court, which has rejected the contention. G As already noticed, accused Dhulla is not before us and the recovery of the axe pursuant to the disclosure statement of the accused Dhula has attained its finality.

The main thrust of submission of Mr. Walia is that the prosecution has failed to establish common object to eliminate Bhima (PW-I) by leading H

A convincing evidence.

Section 141 !PC defines an unlawful assembly to be an assembly of five or more persons, where the common object of the persons comprising that assembly is to commit any of the acts enumerated in the five clauses of that Section. Section 149 provides that every member of unlawful assembly B is guilty of offence committed in prosecution of common object and 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 C of the same assembly, is guilty of that offence. In the instant case, the accused persons were comprised of five and they had formed an unlawful assembly, is being found by both the courts concurrently.

The next question that remains to be considered is as to what is the common object of that assembly.

In La/ji and Ors. v. State of U.P., [1989) I SCC 437, this Court pointed out at sec p.441 as under:

"The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section

141 IPC. Common object of the unla11ful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. fl is an inference to be deduced from the facts and circumstances of each case. " (Emphasis supplied)

In Masalti v. Stale ofU.P., [1964) 8 SCR 133, a Constitution Bench of G five learned Judges presided over by P.B. Gajendragadkar, CJ (as his Lordship then was) considered the scope of Section 149 in depth and held at SCR pp.148-149 thus:

"The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said

STATEOFRAJASTHAN 'NA THU [SEMA, J.) 975

persons entertained one or more the common objects as specified by A s. 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this B Court in the case of Bal ad in (AIR I 956 SC 181) assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly; it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, s.149 makes it clear that ifan offence is committed C by any member of an unlawful assembly in prosecution of the common object of tliat 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 s.149 is in D 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. Therefore, we are satisfied that the observations made in the case of Baladin (AIR 1956 SC 181) must be read in the context of the special facts of that case and cannot be treated as laying down E an unqualified proposition of law such as Mr. Sawhney suggests,"

The principle enunciated by this Court in Masalti (supra) and lalji

(supra) has been followed consistently by this Court thereafter in catena of decisions. Avoiding multiciplity see: State of U.P. v. Dan Singh and Ors., (1997] 3 SCC 747; State of A.P. v. Thakkidiram Reddy and Ors., (1998] 6 F SCC 554; A nil Rai v. State of Bihar, (200 I] 7 SCC 318; Gangadhar Behera and Ors. v. State of Orissa, (2002] SCC 381.

Reverting to the facts of the case, evidence on record clearly established that accused Dhulla, Balji, Nathu, Heera and Dheera entered into the house of Bhima by breaking down the wall of the house and amongst them accused G Dhulla was armed with axe, Balji was armed with axe, Heera and Dheera were armed with lathis and Nathu was armed with gun. A long standing enmity between PW- I Bhima and the accused persons is proved from the statements of Bhima, Shankar, Vasu, Nani and Kanku. It is also revealed from the above evidence that 7-8 days prior to the incident Bhima and others H

A had a quarrel with other members of the families of the accused persons.

As noticed above, the murder has been committed in broad day light between 12.00 noon and 1 p.m. Witnesses and accused are known persons.

The accused persons had formed an unlawful assembly anned with formidable weapons; came to the house of Bhima; broke down the wall and entered into B the house. They found Bhima not in the house and butchered his two children by inflicting axe injuries. As has been held by this Court in lalji (supra) the common object of an unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. Deduced from the aforesaid facts and C circumstances, it is quite apparent that the accused had formed an unlawful assembly with object to eliminate Bhima to take avenge of long standing animosity and the quarrel ensued 7-8 days prior to the incident. It is quite apparent, therefore, that the accused persons had formed an unlawful assembly with a common object to take avenge from Bhima and family members and committed the murder. The common object to murder Bhima and his family D can be gathered from the formidable arms carried by the accused, entering the house by breaking the wall and finding Bhima not there, butchered his children. Gathered from the above facts and circumstances and evidence on record it cannot be said that the four accused joined the assembly as a matter of idle curiosity or they were passive onlookers without intending to entertain E the common object of that assembly.

Mr. Walia, learned an1icus curiae contended that the prosecution did not prove the breaking down of the wall by all the accused persons. We are unable to countenance this submission. The Trial Court after careful appreciation of the evidence gave a clear finding that two accused persons F Dhulla and Balji entered into Bhima's house after breaking the rear wall of the house and the remaining three accused persons Nathu, Heera and Dheera entered through the door. This would go to show that all the five accused had entered into the house of Bhima. The question whether two accused came to the house after breaking the rear wall and remaining accused persons entered through door is inconsequential for determining their common object. The G fact that all the accused persons formed an unlawful assembly and entered into the house of PWl with formidable weapons is clearly deducible that they formed common object to eliminate Bhima and his family. As already noticed, the common object to kill Bhima can be gathered from the formidable weapons, which the accused carried and their aggressive behaviour of entering the H house by breaking down the wall. No other conclusion is possible.

+ -

STATE OF RAJASTHAN v. NA THU [SEMA, J.] 977

Mr. Walia next contended that the prosecution has failed to prove as to A which of the accused from the members of the unlawful assembly had caused the death of deceased Dinesh. This contention is also liable to be rejected. If death had been caused in prosecution of common object of unlawful assembly, it is not necessary to record a definite and specific finding as to which particular accused out of the members of the unlawful assembly caused the B fatal injury. Once an unlawful assembly has come into existence, each member of the assembly becomes vicariously liable for the criminal act of any other member of the assembly committed in prosecution of the common object of the assembly. See: Rajendra Shantaram Todankar v. State of Maharashtra, [2003] 2 sec 257 at sec p.264).

For the afore-stated reasons, we allow the appeal, preferred by the State, by setting aside the order of acquittal recorded by the High Court and restore the convictions and sentences recorded by the Trial Court against the accused persons viz., Nathu s/o Nana, Walji s/o Moola, Heera s/o Nana and Dheera s/o Moola. They are directed to surrender to their bail bonds to serve

out the sentence imposed by the Trial Court.

Before parting with the record we record our deep appreciation to Mr.

Walia, learned amicus curiae for rendering abled assistance to the Court.

S.K.S.

Appeal allowed.