DHARAM PAL & ORS. versus THE STATE OF U.P.

DHARAM PAL & ORS.

THE STATE OF U.P.

September 1, 1975

[M. H. BEG, P. N. BHAGWATI AND R. S. S.~11.ICARIA, JJ.]

/, P. C. Sl'c. ,J02 rec.d with sec. 149'_ and 34--Conviction of four accused and acquittal of re.~t-Whe1her unlawful assentbly-W/lether conviction under co1nn1on i111e11tion-Vica1ious lki.bility-U.P. CJdldren Act, 1951-Sec. 29- ' Young accused-Recdn11nendntion of re111issio11,

The 4 appellants were trled along with 14 others for the offence of rioting in the course of which 2 n1urders were conunitted at 6-30 a.m. on 7~6--1967. The prosecution revealed Jong standing. enmity between the tyo grOups; one' to which the appellants belonged and the. other to which the deceased belonged. Thei defence -case was that people belonging to the group of the deceased! kille.d the deceased and that thereafter they attacked the 3 injured appellants. At the trial, however, the defence witnesess stated that the 3 witnesses who were injured attempted to save, the deceased and were, therefore, injured.

The prosecution evidence suffered from-some quite obvious infirmities. Each of the 4 injured eye witnesses while naming each of the 18 accused person~ as participants in the occurrence an~_~ecifying_ their weapons _without arty contradiction had failed to assign any partkular part of any of them. Each injured eye-witness said that all 18 accused nersons \Vere assaulting the injurtd. This was hardly consistent with the medicaf evidence.

The 1'ria1 Court acquitted 11 accused giving them the benefit of doubt <n1d convicted 7 including the 4 appellants under section 302 read with section 149.

The High Court gave the benefit of doubt to a11 the accused except the 4 appellants. The High Court came to the conclusion that the 4 appellants had. taken part in the attack in viCw of the· adn1ission of the 4 accused about their participation in the occurrence corroborated by the injuries on the bodies of 3 of then1;

On appeal by Special· Leave, it was contended by the appellants that sini:e 14 out of 18 accused persons were actually ac·quitted the Court n1ust presume that total number or assailants was less than 5 and that they, therefore, cannot he convicted under section 149.

HELD : 1. It is true that the acquittal of an accused person does raise, in the eye of law, presumption that he is innocent even if be \Vas actua1ly guilty, but it is only the acquitted accused person and not the convicted accused person who can, as rule. get the· benefit of such presun1ption. The effect of findings on qu~stions of f~ct depends upon the nature of those findings. If only five known persons are a11eged to have participated in an attack and the courts find that 2 of them were falsely implicated it would be quite natural and logical to infer or presume that the participants were less th.an 5 in number. On the other hand, if the court holds that the assailants were· actually 5 in number but there could be doubt as to the identity of 2 of the aJlcged assailants, and. therefOre, acquits 2 Of them., the others will not get thei benefit of doubt, so long as there is firn1 finding based on good evidence and sound reasoning that the participants we·re 5 or more in nuni.ber. Such ca .. -.e i-.; one of doubt only as to ideritity or some participants and not as to total number of participants. [594A-C] ·

2. It is true that there are some infirmities in the -prosecution evidence. Ho~ver, the impression of rustic witnesses sou&}lt to be .conveyed tbrou~h their statements cannot be interprc.ted as though they were made in Carefully -drawn up docun1ents calling for literal ·interpretation. [592 F, HJ

3. The number and location of injuries on both sides also indicate an attack by group of persons which must have surrounded the party of the deceased persons travelling ill the Buggi. Even if 2 persons are engaged in stopping th..: Bugg_i and there are 2 on each side of the Buggi then the number would be 6. Again, even if one person is assumed to be the assailant of each oi' the victims in a. simultaneous attack upon them the number of such assailants alone would conie to at least 6. 'The dece~sed had injuries with 9harp edged weapons and lat/tis. It is·, therefore, clear that each one was attacked by more than one person. These facts were enough to come to the conclusion that the total number of assailants could not conceivably have been less than 5. [593 C.·E} 4. Even if the number of assailants couJd have been less than 5 (which 011 the facts stated was really not possible), we think that tho fact that the attacking party was clearly shown to have wait~d for the Buggi to reach near the field of Daryao in the early hours shows pre-planning. Some of the assailants bad sharp edged weapons. They were obviously lying in wait for the. Buggi to arrive. more convincing evidellCe( oi' pre-concert was not necessary. Therefore, if necessary,. we would not have hesitated to apply section 34 of I.P.C, also to this case. The principle of vicarious liability does not depend upon the necessity to convict the required number of persons, but, it depends uoon proof of facts beyond reasonable doubt which makes. such principle applicable. [594 F-H, 595-A] Yeshwant & Anr. v. State of Maharashtra [1973) 1 S.C.R. 291 at 302-303, and Sukh Rflni v. State of U.P. [1974] 2 S.C.R. 518 distinguished. 5. The age of appellant On1 Pal at the ti'me of trial wa:Y 15 years. Section 29 of the U.P. Children Act, 1951, was applicable to the case. This question was not raised either beforu the Trial Court or bef'ore the High Court. Although Om Pal accused was said to be armed with lath~ no specific part was assignedl to him by the prosecution witnesses. He must have been misltd by the bad example of his elders. No previous participation in such .case and no previous conviction was shown against him. The ap-propriate action under section 29 of ther Children Act eould have been taken in his case if the question had been raised in time. The Court recommended the remission of the remaining period of Om Pal to the authorities concerned. [59,80, H, 599A-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 108 of 1971.

Appeal by Special Leave from the Judgment and Order dated the 20th November, 1970 of the Allahabad High Court in Crimh1al Appeal No. 495 of 1968.

D. Mukherjee, U. K. Jha and U. P. Singh : for the Appellant.

D. P. Unival and 0. P. Rana for the Respondent.

The Judgment of the Court was delivered by-

BEG, J.-.,.-The ·four appellants Darya.a Singh, aged 46 years, Birbal aged 50 years, Dharam Pal aged 29 years and Om Pal, •aged 15 years, were tried, alongwith 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 path adjoiaing the field of the appellant Daryao 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 con-victed under Section 302, read with SectiD',1 149, Indian Penal Code and sentenced to life imprisonment, in addition to charges and convic-tions under Section 149/324 and 149/34 I.P.C. and either under Sec-tion 147 or Section 148 I.P.C. depending upon the weapon alleged _lo have been used by an accused person.

.. ,,.-

The prosecution case revealed 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 dispute over cultivable land between coli'aterals who had some joint Khatas. fl 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 partition suit which was pendi[1]ag at the time of the occurrence. It appears that Hargyan, the father of the appellant Daryao, first cousin pf Mukhtara, the murdered man, had also been murdered in 1953 over similar dispute. Asa Ram (P.W.1), and Raghubira (dece_as-ed), 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.

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.l, 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 short distance with some food for the party. When this buggi reached the field of Daryao Singh, where number of persons, said to be eighteen altogether, whose names are m~.1tioned in the First Information Report lodged at Police Station Doghat at 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 attucked its occupants with balams and lathies shouting that the whole party in the buggi should be killed. Five occupants of. t~e buggi, and, after that, Smt. Jahani, who soon joined them, were miured. Two of them, Mukhtara and Raghubir, died very soon after the attack. It was alleged that Dharam Pal, Birbal a'ad Daryao, appellants, and Nahar, Ajab Singh, and Ram Kishan acquitted persons, were armed with balams one Salek Chand was armed with spade, and the rest with la this. 'A number of witnesses are said to have arrived in response to the shout 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, in.xt in. on the head, 4 in. above the middle of the left eye-brow.

2. Transverse abrasion, in. x ! in. on the head, 5 in. above the right eye-brow.

3. R?und swelling,, 2 in.X2 in. on the right side of the head, t m. above the ear, there was depresse~ fracture 2 in.X2 in. underneath on the bone.

4. Transverse incised wound Hin. x t in. Xbone and brain deep on the head 1 in. behind the middle of the right ear. Brain matter was coming out of the wound.

5. ASGHAR

··1. Contusion 2 in.xt in.xt in. going from front to back 3t in. above the nose.

2. Punctured wound I in. x t in. x t in. on the left hand, outer side 2 in. below the elbow.

6. BTJAI SINGH:

"!. Contused wound i in.xt in. X skin deep at the part above the r;'ail of the thumb of right ha'ad with contusion 1 t in. X J in. in the inner part of the nail.

2. Contusion 2t in.Xl in. extending from the palm on the !st and 2nd kunckles whcreblood had clotted in an area of t in. X t i'.1. on the palmer side.

3. Abrasion l in. X t in. on the back and anterior side of Right hand, 3t in. above the wrist.'" Injuries were found on the side of the accused on 3 appellants only. They were as follows

I. OM PAL

'·I. Lacerated wound t in.X4/W in.x2/10 in. on the inner side of left forearm .. 31 in. above the left wrist.

2 Lacerated wound 2/10 in.X2/10 in.x6/10 in. on the inner side of left forearm.

3. Abrasion 3110 in.X2/10 in. on the upper side of left forearm, 3t in. above the left wrist."

2. DARYAO :

"!. Abrasion! in.X3/10 i'.1. on the left shoulder in front side.

2. Wound with scab 4/ 10 in.x2/iO in. on the left arm outer side, 6 in. below left shoulder": '

3. BIRBAL :

''I. Lacerated wpund 2 in.X3/l0 in. bone deep on the front side of head.

2. Abrased contusion I in.X2/10 in. on the left side of. head, 3 in. above the left ear.

3. Contusion ~ in.X4/10 in. on .the right side of head, 2 in. above the right ear.

4. Abrasion t in. X t in. on the index finger of the right hand upper side on the middle phalux.

5. Abrasion t in.xt in. on the upper side at the root of the middle finger of right ha'.1d.

# 6._ Abrasion i in.Xl/10 in. on the inner side of the lower por-tion of left fore-arm, i in. above the wrist.

7. Abrasion 3/10 in.X.1/10 in. on the inner side of left wrist.

8. lJacerated wound 3/10 in.Xl/10 in.X3/10 in. o',1 the right at distance of 3! in. from side of thigh, anterior iliac spine".

It is significant that in answer to the last question put to Dar~ao Singh, appellant, in the Committing Magistrate's C~urt, under Secttun 342 Criminal Prncedure Code, whether he had nothing else to say, the first thing that came to his mind was that Asa Ram P.W.L and Bijai, P.W.10, and Raghubir (deceased) had killed his father about 15 years ago.

The defence case seemed quite absurd. It was that, Asa Ram and Bijai and Asghar, -after having killed Mukhtara and Raghubir, had come and attacked the three injured appellants at the time and place given by the prosecution. Their defence witness, however, in an obvious attempt to explain the injuries of the three appellants, put forward the entirely new version that, when Asa, Bijai, and Asghar, were killing Mukhtara and Raghubir, the three injured appellants had attempted to save the murdered men and were injured as .consequ-ence. The accused had even filed First Information Report on these lines. They unsuccessfully tried to prosecute Asa and Bijai and Asghar who could not, as the Trial Court and the High Court had rightly observed, be expected to run berserk suddenly and attack persons on their own side for no explicable reason.

The prosecution had, in addition to examining injured witnesses, mentioned above, produced Rattan Singh P.W.2, Kain, P.W.9. and L•akhi, P.W.7, whose testimony was discarded by it on two grounds : firstly, because each one was shown to have some enmity with some accused perso'.1; and, secondly, because they were said to have been standing at Hara! nearly 400 paces away from where, according to the High Court, they could not have seen the occurrence. If there was no obstruction to the range of vision, and none was shewn by evi-dence, these witnesses could at least make ont the number of assailants from this distai,1ce as sunlight was there.The prosecution evidence suffered from some quite obvious infirmi-ties. Each of the four injnred eye witnesses, while naming each of the eighteen accused persons as participants in the occurrence and specifying their weapons, without any contradiction, had failed to assign i:i.:iy particular part to any of them. Each injured witness said that all the eighteen accused persons, n•amed in the First Information Report, were assaulting the injured. This was hardly consistent with either the medical evidence or the very short time the whole occurrence was said to have lasted. It was physically impossible for all the eighteen accused persons to attack simultaneously each of· the five victims. However, we eoannot interpret the impressidllS of rustic witnesses, sought to be conveyed through their statements, as though they were made in carefully drawn up documents calling for literal interpretation. It was likely that each of them had seen some acts of some assailants, bnt, due to natural discrepancies in their accounts, as each could only depose the part he had observed each had bee!,1 instructed to omit this part of his testimony. That ~ay explain how each consistently stated that all the accused persons were attacking

his or her party although he or she could not specify which accused attacked which victim. From the manner in which each witness could, without making any mistake, name each of the eighteen accused per-sons, almost in the same order, and specify the weapon each cauied, without any discrepancy, some tutoring could be suspected. Never-cheless, both th.e Trial Court and the High Court had reached the definite conclusion that the party of assailants consisted of more than five persons. It also found that this party was sitting on the boundary of the field of Daryao, apparently waiting with their weapons for the buggi, carrying Raghubir and Mukhtara and others,, to reach the spot where they surrounded it and attacked. It was clear, from the nature and number of injuries of both sides, which we have set out above in extenso, that the attacking party must have consisted of more persons than the party of the male victims who were five in number. Even if these five victims were sitting in the buggi they were not all empty handed. Some of them had lathis which they plied in self-dcfencc. The '1umber and location of injuries on both sides also indicated an attack by group of persons which must have surrounded the party travelling in the buggi. Even if two persons are engaged in stopping the buggi and there are two on each of the two sides of the buggi their number would be six. Again, even if at least one per-D son is assumed to be the assailant of each of the victims. in simul-taneous att•ack upon them, the number of such assailants ·alone would come to at least six. It is, however, clear from the injuries of Mukhtara and Raghubir that each was attacked by more than one person because each had injuries with sharp edged weapons and !athis. These facts were enough to come to the conclusion that the total number of assailants could not conceivably have been less than five. The High Court however, after giving the benefit of doubt to four of the accused persons, on the ground that their cases did not differ from those of the others acquitted, came to the obviously correct conclusion that at least the four appellants before us must have taken part in th~ attack because they admitted their participation in the occurrence which took place at the time and place of the incident in which Raghu-bir and Muk]!tara had lost their lives. Three of the accused persons, as already indicated, had received injuries. On their own version, these injuries were sustained in the same occurrence. If, therefore, the prosecution version about the broad character of the incident is correct, the only question which remained was : Against which accused person was the case of participation in the attack established beyond reason-able doubt? The High Court came to the conclusion that the admissions of ·the four accused, corroborated by the injuries on the bodies of three of them, left no doubt whatsoever that they were, In any case, among the assailai,1ts. The others had merely been given the benefit of doubt Jest some injustice is done by relying implicitly on partisan witnesses appearing in type of case in which the innocent are not infrequently sought to be roped in with the guilty who are, of course, not spared. This did not mean that the total number of assailants was actually Jess than five as the learned Counsel for the appellants asked us to presume from the fact that fourteen out of the eighteen accused persons were actually, acquitted.It is true that the acquittal of an •accused person does raise, in the eye of Jaw, presumption that he is innocent even if he was actually guilty. But, it is only the acquitted accused person a'.1d not the con-victed accused persons who can, as rule, get the benefit of such presumption. The effect of findings on questions of fact dep~mb upon the nature of those findings. If, for exampk, only five known persol.as arc alleged to have participated in an attack but the Courts find that two of them were falsely implicated, it would be quite natural and logical to infer or presume 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 doubt as to the identity of two of the alleged assailants, and, therefore, acquits two of them, the others will not get the benefit of doubt about the identity of the two accused so long as there is firm finding, based on good evi-dence and sound reasoning, that the participants were five or more in number. Such case is one of doubt only as to identity of some participants :rad not as to be total number of participants. It may be that definite conclusion that the number of participants was at least five may be very difficult to reach where the allegation of parti-cipation is confined to five known persons and \here is doubt about the identity of even one. But, where large number of ktaown persons (such as eighteen, as is the case before us), are alleged to have partici-P'ated and the Court acts on the principle that it is better to err on the side of safety; so that no injustice is done to possibly wrongly impli-cated accused, and benefit of doubt is reaped by large number, with the result that their acquittal, out of abundant cauticm, reduces the number of those about whose partiCipation there can be n.o doubt to less than five, it may not be really difficult at all, as it not in the case before us, to reach the conclusion that,. having regard to undeniable facts, the number of partiCipants could not possibly be Jess than five. We have, for the reasons given above, also rrnched the same conclusion as the learned Judges of the Allahabad High Court. We wish that the High Court had itself givela such reasons, which are not at all difficult to find in this case, so that its conclusion on the num-ber of participants may not have appeared ratlier abrupt. Justice has not only to be done, but, as has been often said, must manifestly appear to be done.

Even if the number of assailants cm1ld have been less than five i11 the instant case (which, we think, on the facts stated above, was really not possible), wo think that the fact that the attacking) party wa5 clearly shown to have waited for the buggi "' reach near the field of Daryao in the early hours of 7.6.1967, shows pre-planning. SoP' of the assailants kad 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 pre-concert was necessary. Therefore, if we had thought it 11eccssary, we would not have hesitated to apply Section 34, I.P.C. also to this case. The principle of vicarious liability does not depend upon the necessity to convict required num-ber of persons. It depends upon proof of facts, beyond reasonable

,.I. r.

doubt, which makes such principle applicable. (See: Yehwant & Anr. v. State of Maharashtra;(') and Sukh Ram v. State of U.P.)('). The most general and basic rule, on a_queslio". sue~ as. the one we are considering, is that there is no umform, mfieioble, or invariable rule applicable for arriving at what is really an inference· from the totality of facts and circumstances which varies from case to case. We have to examine the eliect 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 the context of which they are enuncrated. fa Yeshwant's case (supra), the question was whether the acquittal of an alleged participant, said to be Brahmanand Tiwari, for the murder· of man called Sukal, could make it impossible to apply the principle of vicarious liability to convict, under Section 302/34 I.P.C., Yeshwant, the only other participant in murder. This Court observed (at p. 303) :

"The benefit of this doubt can oniy go to the appellaat Brahmanand Tiwari and not to the other accused persons who were known well to eacli eye-witness."

Distinguishing Krishna Govind Patil v. State of Maharashtra,('} this Court said in Yeshwant's case (supra) (at p. 302) :

"We do not think that this decision which depends upon its own facts, as criminal cases generally do, lays down any general principle that, where the identity of one of the partici-pants is doubtful, the whole case must ead in acquittal. Such question belongs to the realm of facts and not of law:"

The following cases were also cited before us : Dalip Singh & Ors. v. State of Punjab;(') ·Bharwad Mepa Dana & Anr. v. State· of Bombay;(') Kartar Singh v. State of Punjab;(') Mohan Singh v. State of Punjab;(') Ram Bi/as Singh & Ors. v. State of Biliar.(')

In the case of Ram Bi/as Singh (supra) previous decisions of this Court on the question argued before us have been considered at some· length and passage from Krishna Govind PatU's c•ase (supra) was also quoted. In none of these cases was it decided that where, out of abm1dance of caution, large number of accused persons obtained an acquittal with the result that the number of those whose participation is established beyond reasonable doubt is reduced to le~s than five, but, at the same time, it is clear that the total number of assailants could not be less than five, the convicted accused persons must neces-sarily get th~ benefit of doubt arising in the case of the acquitted· accused perso,is. case like the one before us stands on the same footing as any other case where there is certainty that the number of participants was not. less than five but there is doubt only as to-

- --(!)[19131' i-s.c.R. p. 291 @ 3ol & 303. (3) [1964] (l) S.C.R. 678.

(2) [1974) 2 S.C.R. p. 518.

(4) [19541 S.C.R. 145.

(5) [1960] 2 S.C.R.172.

(6) [1962] 2 S.C.R. 395.

(7) [1962] Suppl (3) S.C.R. 848.

(8) [1964] (l) S.C.R. 775.

1he identity of some of the participants. It h•as to be remembend that doubts may arise with regard to the participation of particular accused person in circumstances whose benefit ca.n 011ly be reaped by the accused who raises such doubt. Doubts may also arise about the veracity of the whole prosecution version and doubts about the partici· pation of individual accused persons may contribute to the emergence of such doubts which may cover and engulf the whole case. Never-theless, if, as in the instant case, the Courts, whose duty is to separate the chaff from the grain, does hold that the convicted persons were certainly members of an unlawful assembly which must have consisted of more than five persons, we do not see any principle of law or justice which could stand in the way of the application of Section 149 I.P.C. for convicting those found indubitably guilty of participation in carrying out of the common object of an unlawful assembly.The only remaining question arises from the age of Om Pal Which, at the time of·trial, was fou'ild by the Trial Court to be about 15 years. This means that Section 29 of the Uttar Pradesh Children Act, 1951, was applicable to the case. This Section reads as follows :

"29. Commitment of child to approved school. ....... .

'(!) Where a. child is found to have committed an offence punishable with transportation or imprisonment, the Court, if satisfied on inquiry that it is expedient so to deal with the -child, may order him to be scat to an approved school for such period of stay as will not exceed beyond the time when the child· will attain the age of 18 years or for shorter period, the reasons for such period to be recorded in writing. ( 2) Where prior to the commencement of this Act youthful offender has been sentenced to transportation or imprisonme'ilt, the State Government may direct that in lieu of undergoing or completing such sentence he shall, ii under the age. of sixteen years, be sent to an approved school, and thereupon the offender shall be subject to all the provi-sions of this Act as if he !rad been originally ordered to be detaliled in such school."

This. question was not arised earlier so that the Trial Court or the High Court may take the action it was open to the Courts to take after due inquiry. Such action, if considered expedient, could only be to send the appellant to an approved school. We may observe that, although the ap.Pellant Om Pal was said to be armed with lathi, no specific part was assigned to him by any prosecutio"1 witnesses. He was bound, with the background of hostility ·between two sides and

the events mentioned above, to have been misled by the bad example· of his elders. No previous participation .in such case and no pre-vious conviction wa;; sheW'u against him. We, therefore, think that appropriate action under Section 29 of the Children's Act could have been ·taken in his case if the question had been raised in time. We hope that the punishment he has already undergone has had salutary effect in making him conscious of the gravity of the consequec.1ces of joining an unlawful assembly. All that we can do now, in the circumstances of Om Pal's case, is to recommend the remission of the remaining period of Om Pal's sentence to the authori · ties concerned.

Subject to the observations made above with regard to Om Pal,. we affirm the convictions and sentences and dismiss this appeal..

Appe(l/ dismissed~