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SUPREME COURT OF INDIA
M.H. BEG, P.N. BHAGWATI AND R.S. SARKARIA, JJ.
Dharam Pal and others, Appellants
Versus
The State of U.P. Respondent.
Criminal Appeal No. 108 of 1971.
D/1-9-1975.
Advocates Appeared
Mr. D. Mukherjee. Sr, Advocate (Mr.U. K. Jha. Advocate for Mr. U. P. Singh. Advocate with him), for Appellants: Mr.D. P. Uniyal. Sr. Advocate (Mr. O. P.Rana, Advocate with him), for Respondent.
Indian Penal Code, 1860 - Sections 149/324, 149/34 and 302 - Offence of Rioting - Offence of Murder - Prosecution case revealed a long standing enmity between two groups of village: one to which appellants belonged and another to which Mukhtara and Raghubir, murdered men, and four other injured persons belonged - As is not unusual, origin of hostility between the two sides seems to have been a dispute over cultivable land between collaterals who had some joint P. W. 1 Claimed to be in separate possession of some plots with his two brothers, including Raghubira (murdered) and his uncle murdered - It was alleged by P. W. 1 that appellant wanted to take forcible possession of some land cultivated by him - Daryao Singh and others had already filed a partition suit which was pending at time of the occurrence. It appears that Hargyan the father of the appellant Daryao, a first cousin of Mukhtara, the murdered man, had also been murdered (sic?) dispute P. W. 1, and (deceased), P. W. 10 and P. W. 4 had been convicted and sentenced to life imprisonment - They had been released on parole after five years imprisonment – Held, Attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours, shows pre-planning. Some of the assailants had sharp-edged weapons - They were obviously lying in wait for the buggi to arrive - They surrounded and attacked the occupants shouting that the occupants will be killed - We do not think that more convincing evidence of a pre-concert was necessary - Therefore, if we had thought it necessary, we would not have hesitated to apply Section 34, I. P.C. also to this case - we are considering is that there is no uniform, inflexible, or invariable rule applicable for arrving at what is really a an inference from the totality of facts and circumstances which varies from case to case - We have to examine the effect of findings given in each case on this totality - It is rarely exactly identical with that in another case - Other rules are really subsidiary to this basic verity and depend for their correct application on the peculiar facts and circumstances in context of which they are enunciated - Appeal dismissed.
A longstanding enmity existed between two groups in village Nirpura due to disputes over cultivable land between collaterals. (!) [1000166880001] One group included appellants Daryao Singh (46), Birbal (50), Dharam Pal (29), and Om Pal (25), while the other included murdered persons Mukhtara and Raghubir, and injured Asa Ram (PW1), Bija (PW10), Asghar (PW4), and Smt. Jahani (PW3). (!) [1000166880001][1000166880002] Previously, Daryao's father Hargyan (Mukhtara's first cousin) was murdered, leading to convictions and parole of some from the victims' side including PW1, deceased Raghubir, PW10, and PW4.[1000166880001] Daryao and others had filed a pending partition suit, and Daryao allegedly sought forcible possession of PW1's land.[1000166880001] On 7-6-1967 at ~6:30 a.m., Mukhtara, Raghubir, PW1, and PW10 traveled in a buggi driven by PW4 near Daryao's field; PW3 followed with food.[1000166880002] ~18 persons, including appellants armed with balams (sharp-edged) and lathis, waited on the field boundary, surrounded the buggi, attacked occupants shouting to kill them, causing deaths of Mukhtara and Raghubir, and injuries to others. (!) [1000166880002] Mukhtara had multiple head abrasions, swellings, depressed fracture, and deep incised wounds exposing bone/brain. (!) (!) (!) [1000166880003][1000166880004][1000166880005] Raghubir had abrasions, punctured wound, lacerated and round head wounds. (!) (!) (!) (!) (!) PW1 (Asa Ram) had punctured wound on chest, multiple abrasions, contusion, incised wound. (!) (!) (!) (!) (!) (!) (!) [1000166880006] PW3 (Smt. Jahani) had lacerated wound and contusions from blunt weapon. (!) (!) (!) (!) PW4 (Asghar) had contusion and punctured wound. (!) (!) PW10 (Bija) had contused/lacerated wounds and abrasion. (!) (!) (!) (!) Appellants Om Pal, Daryao, and Birbal had minor lacerations, abrasions, contusions. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) [1000166880007] Trial court convicted 7 (including 4 appellants) under 302/149, 149/324, 149/34 IPC and 147/148 IPC; acquitted 11. (!) High Court acquitted 3 more, upheld 4 appellants' life sentences. (!) [1000166880008] Defence claimed victims' side killed deceased then attacked appellants absurdly; appellants admitted presence at scene via injuries. (!) (!) Daryao spontaneously recalled PW1 etc. killing his father 15 years prior. (!)
Prosecution evidence showed >5 assailants waited with weapons near Daryao's field for buggi, surrounded/attacked victims, indicating pre-planning and common object; S.149 IPC applied despite acquittals reducing convicted to 4, as total participants established ≥5 beyond doubt from injuries, circumstances, and admissions. (!) [1000166880008][1000166880009][1000166880010] Acquittal of some (benefit of doubt/identity) does not benefit convicted if firm finding on ≥5 participants; no presumption innocent extends to convicted, nor requires exactly 5 convicted for S.149.[1000166880009][1000166880013] No inflexible rule on numbers; inference from totality of facts/circumstances case-specific; doubt as to some identities does not negate overall unlawful assembly if common object proved. (!) [1000166880009][1000166880013] Facts showed pre-concert sufficient for S.34 IPC alternatively (vicarious liability not number-dependent).[1000166880010] Injuries on both sides, victim accounts (despite non-specific roles/tutoring suspicion), and scene consistent with group attack > victim numbers. (!) (!) For juvenile Om Pal (~15 years at trial, lathi-armed, no specific role/prior), S.29 UP Children Act applicable for approved school commitment, not adult sentence; recommend remission.[1000166880014][1000166880015] (!) (!) Appeal dismissed, convictions/sentences affirmed (subject to Om Pal observation).[1000166880016] (!) (!)
Judgement
BEG, J. :- The four appellants Daryao Singh aged 46 years, Birbal aged 50 years. Dharam Pal aged 29 years and Om Pal aged 25 years, were tried along with 14 others, for the offence of rioting in the course of which two murders were committed, on 7-6-1967 at about 6-30 a.m. on a path adjoining the field of the appellant Daryas Singh leading to village Parsoli from village Nirpura in Police Station Doghat, in the District of Meerut. The trial Court acquitted eleven accused persons giving them the benefit of doubt and convicted seven including the four appellants. Each of the accused persons was charged and convicted under Section 302, read with Section 149, Indian Penal Code and sentenced to life imprisonment, in addition to charges and convictions under Sections 149/324 and 149/34. I. P. C. and either under Section 147 or Section 148, I. P. C. depending upon the weapon alleged to have been used by an accused person.
2. The prosecution case revealed a long standing enmity between two groups of village Nirpura: one to which the appellants belonged and another to which Mukhtara and Raghubir, the murdered men, and the four other injured persons belonged. As is not unusual, the origin of the hostility between the two sides seems to have been a dispute over cultivable land between collaterals who had some joint Khatas. Asa Ram. P. W. 1. claimed to be in separate possession of some plots with his two brothers, including Raghubira (murdered). and his uncle Mukhtara (murdered). It was alleged by Asa Ram (P. W. 1 ) that Daryao Singh appellant wanted to take forcible possession of some land cultivated by him. Daryao Singh and others had already filed a partition suit which was pending at the time of the occurrence. It appears that Hargyan the father of the appellant Daryao, a first cousin of Mukhtara, the murdered man, had also been murdered (sic?) dispute. Asa Ram (P. W. 1), and Raghubira (deceased), Bija (P. W. 10) and Asghar (P. W. 4) had been convicted and sentenced to life imprisonment. They had been released on parole after five years imprisonment.
3. On the date of occurrence, Mukhtara, the murdered man, was said to be proceeding with Raghubir, who was also murdered, and Asa Ram, P. W. 1. and Bija. P. W. 10, all sitting in a buggi driven by Asghar, P. W. 4. and Smt. Jahani, P. W. 3. the wife of Asa Ram P. W, 1, was said to be following the buggi at a short distance with some food for the party. When this buggi reached the field of Daryao Singh, where a number of persons, said to be eighteen altogether, whose names are mentioned in the first Information Report lodged at Police Station Doghat at a distance of three miles from village Nirpura at 8.30 a. m., were sitting on the boundary. These persons are alleged to have surrounded the buggi and attacked its occupants with balams and lathies shouting that the whole party in the buggi should be killed. Five occupants of the buggi, and, after that Smt. Jahani, who soon joined them were injured. Two of them, Mukhtara and Raghubir, died very soon after the attack. It was alleged that Dharam Pal, Birbal and Daryao, appellants, and Naihar, Ajab Singh, and Ram Kishan, acquitted persons, were armed with balams, one Salek Chand was armed with a spade, and the rest with lathis. A number of witnesses are said to have arrived in response to the shouts of the injured occupants of the buggi. The following injuries are shown to have been sustained by the victims of the attack :
1. MUKHTARA:
"1. Vertical abrasion, 1 1/2 " x 1/2 " on the head, 4" above the middle of the left eyebrow.
2. Transverse abrasion, 1 3/4 " X 3/4 " on the head, 5" above the right eyebrow.
3. Round swelling. 2"x2" on the right side of the head, 1/2 " above the ear there was a depressed fracture 2"x 2 underneath the bone.
4. Transverse incised wound 1 1/2 " x 1/2 " x bone and brain deep on the head 1" behind the middle of the right ear. Brain matter was coming out of the wound.
5. Transverse incised wound 1 1/4 " X 1/2 " x b
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