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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
MANOJ MISRA, SAMEER JAIN, JJ.
Harnath Singh And Others - Appellants
Versus
State of U.P. - Respondent
Criminal Appeal No. 2345 of 1983
Decided on : 24-12-2021
Indian Penal Code, 1860 - Sections 147, 148, 149, 307, 323 and 302 - Juvenile Justice (Care and Protection of Children) Act, 2015 - Section 2 (k) and 2 (35) - Criminal Procedure Code, 1973 - Section 313 - Gunshot injury - Unlawful assembly - Murder - Injuries and Weapons - Appeal against conviction - Juvenility - Punishment - Whether appellants were part of unlawful assembly which had a common object of causing injury to the deceased - Prosecution case is that co-accused opened fire upon deceased, who was standing in the open field of Fatte Lal Katiyar; after that, co-accused opened fire through his country made pistol. Following that, surviving appellants started hurling their lathies along with other accused, who also had lathies - Admittedly, till both gun shots were fired, surviving appellants were standing in front of the house of co-accused and had not participated in causing any injury either to deceased or to injured (PW-2). The allegation against them is that after two fires were made, they started using their lathies.
Finding of the Court :
As per Section 149 IPC to convict a person with the aid of this Section, it is necessary to prove following ingredients; (1) the offence is committed by any member of an unlawful assembly; and offence must be committed in prosecution of common object of an unlawful assembly; or such as the members of that assembly knew to be likely to be committed in prosecution of that object - Court below while convicting appellant no.5 under Section 147 IPC has not awarded any fine and as we, in present appeal, have convicted him under Section 323/149 IPC after setting aside his conviction under Section 323 IPC, therefore, the quantum of fine is to be determined by the Juvenile Justice Board after giving opportunity of hearing to appellant no.5 - All accused were stated to be standing in front of their own house and not having gone as a group of persons, armed, to another place to commit an offence, they cannot be said to be part of an unlawful assembly with a common object, at the stage, when the gun shots were fired - The word object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it - Offence was committed by the appellant when the Juvenile Justice Act, 1986 was in force. Therefore, only the "punishments' not greater than those postulated by the Juvenile Justice Act, 1986 ought to be awarded to him. This is the requirement of Article 20(1) of the Constitution. The "punishments' provided under the Juvenile Justice Act, 1986 are given in Section 21.
Result: Appeal of appellant No. 7 allowed and appeal of appellant No. 5 partly allowed
JUDGMENT :
Sameer Jain, J.
1. The present appeal was filed by seven appellants. The appeal of appellant no.1 (Harnath Singh); appellant no.2 (Vishwa Nath Singh); appellant no.3 (Shivnath Singh); appellant no.4 (Raghvendra Singh) and appellant no.6 (Aditya Singh) has already been abated, on account of their deaths, vide order dated 23.12.2015.
2. The appeal of appellant no.5 (Brijendra Singh) and appellant no.7 (Saleem) survives. Therefore, by way of present judgment, we will decide the appeal of appellant no.5 (Brijendra Singh) and appellant no.7 (Saleem) the surviving appellants.
3. Appellant no.5 (Brijendra Singh) and appellant no.7 (Saleem) have been convicted vide judgment and order dated 29.9.1983 passed by 2nd Additional Sessions Judge, Farrukhabad in Sessions Trial No.210 of 1981(State Vs. Harnath Singh and others) under Sections 302/149 IPC and under Sections 147 and 323 IPC and awarded life imprisonment for offences under Sections 302/149 IPC; and six months rigorous imprisonment for offence under Sections 147 and 323 IPC.
4. The case of the prosecution in nutshell is that on 22.7.1980 at about 9.30 AM Kanchan Singh(PW-1) lodged FIR of the present case against appellant no.5 (Brijendra Singh) and appellant no.7 (Saleem) and five other co-accused persons at Police Station Kannauj, under Sections 147,148,149, 307, 323 and 302 IPC, District Farrukhabad vide Case Crime No. 395 of 1980.
5. As per the FIR, on 22.7.1980 at about 7.00 AM in the morning when nephew of Kanchan Singh (the informant) (PW-1), namely, Dhirendra Singh, was returning back after attending nature's call, the appellant no.5 (Brijendra Singh) and appellant no.7 (Saleem) along with five other co-accused persons exhorted him and co-accused Harnath Singh fired at Dhirendra Singh from his licensed gun whereas co-accused Aditya Singh opened fire from his country made pistol, which hit Rajendra (PW-2), the son of informant. In the incident, Dhirendra Singh, nephew of the informant Kanchan Singh (PW-1), died at spot. The above incident is said to have taken place due to long standing enmity between both the parties. In the FIR it is further stated that number of cases of civil and criminal nature were pending in the court between the parties.
6. According to the FIR, appellant no.5 (Brijendra Singh) and appellant no.7 (Saleem), who were armed with lathies, along with co-accused Shiv Nath Singh, Vishwa Nath Singh and Raghvendra Singh, also wielded their lathies. It is further mentioned in the FIR that after the incident accused persons entered the house of co-accused Shiv Nath Singh and bolted it from inside, which was surrounded by villagers.
7. After the FIR, the Police arrived at the spot and arrested appellant no.5 (Brijendra Singh) along with co-accused Harnath Singh, Vishwa Nath Singh, Shiv Nath Singh, Raghvendra Singh and Aditya Singh from the house of co-accused Shiv Nath Singh. Appellant no.7 (Saleem), however, could not be arrested as he was not found there. At the time of arrest licensed gun of Harnath Singh was also recovered but country made pistol allegedly used by Aditya Singh could not be recovered.
8. During investigation, Investigating Officer prepared recovery memo of licensed gun and cartridges (Ext.Ka.18 and Ext. Ka.23). The Investigating Officer also prepared recovery memo of blood stained shirt of injured Rajendra Singh (PW-2) (Ext. Ka-24) and he also prepared recovery memo of blood stained soil (Ext.Ka.25). Injured Mahipal Singh (not examined), Kanchan Singh (PW-1) and Rajendra Singh (PW-2) were medically examined at Primary Health Centre, Saray Mira, Kannauj, District Farrukhabad on 22.7.1980 between 4.00 PM to 4.30 PM and their injury reports were exhibited as Ext.Ka.6, Ext.Ka.7 and Ext.Ka.8 respectively. The post mortem of the body of deceased Dhirendra Singh was conducted on 23.7.1980 at about 3.45 PM (Ext. Ka.5) and after investigation, Investigating Officer submitted charge sheet against surviving appellant no.5 (Brijendra Singh) and appella
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