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Judgment
K. Sreedhar Rao, J.—A2 and A3 are the sons of A1; A3 is the wife of A1; A4 is the wife of A2 and A5 is the daughter of A1. There was a dispute between the family of the accused and the deceased with regard to the share in the yield of mango tree. The deceased was demanding a share and accused had refused to give a share. On 11.4.1994 at about 5.30 p.m., A1 & A2 with wielding clubs accompanied by A3 to A5 and one Maruthi (son of A1) (Juvenile offender) come together to the house of the deceased and call out the deceased. A1 threatens the deceased not to demand any share. When the deceased insists a share, the accused gets flared up. A1 to A3 assault PW1, the son of the deceased comes to rescue he is assaulted by A1 and A2. As a result, the deceased sustained fracture of parietal bone. The deceased in the course of treatment dies two days after the incident on account of coma and Shocked haemorrhage.
The accused are charged for committing offences u/s 143, 148, 302, 324 and 504 r/w. Section 149 IPC.
PW1 - the injured eyewitness supports the prosecution case. PW 2 - eyewitness and who is the resident of the village and takes the deceased to hospital for treatment supports the prosecution case. PW3 - an eye witness to the incident, has turned hostile and does not support the prosecution case; and PW5 - is the wife of the deceased and an eye witness to the incident has supported the prosecution case.
The medical evidence discloses that MO1 to MO6 are the clubs used for the commission of the offence. The medical evidence discloses that the assault by MO1 to MO6 caused the injuries seen on the deceased. The death is a homicidal death. The trial Court on the basis of the eye witness evidence of PW-1, PW-2 & PW-5 has convicted all the accused for the offences Under Sections 143, 147, 148, 302, 324 and 504 r/w. Section 149 of IPC, The accused are in appeal.
The FIR version discloses that A1 to A5 along with Juvenile accused-Maruthi come to the house of the deceased. A1 to A3 were wielding clubs and A1 calls out the deceased. A1 to A3 assault the deceased with clubs. PW 1-the son of the deceased comes to rescue and he is assaulted by A2 and Juvenile accused-Maruthi. As a result of the assault, the deceased starts bleeding and he is taken to the hospital, the deceased succumbs. The FIR is lodged on the same day at 11 p.m.
The evidence of PW-1 discloses that A1 to A3 were wielding clubs and come to their house. A1 calls out the deceased. A1 tells the deceased that they would not give any share in the Mango crop. When the deceased insisted for a share, A1 assaulted with the clubs on the face. A2 assaulted on the head. The Juvenile accused-Maruthi assaulted with clubs on the back of the deceased. PW-1 comes for rescue. A2 assaulted with a club on the head of PW-1. The Juvenile accused- Maruthi with the club assaults on the back of the deceased. A2 and A3 instigated the deceased and the Juvenile accused-Maruthi not to leave the deceased and PW-1.
The provision of Sections 141 and 149 of IPC, are extracted herein for convenient reference:
Unlawful assembly.- An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is-
First.- To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or
Second.- To resist the execution of any law, or of any legal process; or
Third.- To commit any mischief or criminal trespass, or other offence; or
Fourth.- By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or
Fifth.- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
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 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.
The contents of FIR and the evidence of PW1 shows that accused come with a primary object of expressing their intention of denying the share in the Mango crop to the deceased. The conduct of the accused when they come to the house of the deceased does not show that they had an intention to cause the death. The discussion between the deceased and the accused would only show that the accused refused to give a share. The conduct of the accused falls squarely within the 4th category of the definition of Unlawful assembly u/s 141 of IPC. and by the said conduct all the accused would liable for punishment as being a member of unlawful assembly.
The Section 149 of IPC makes a member of the unlawful assembly vicariously liable for the acts of the other members only when such member shares the common object of that assembly or he knew of the acts of the other members likely to be committed in prosecution of their object.
In the context of the facts narrated above, it cannot be said that all the accused came to the house of the deceased with an intention to cause murder. May be that after they come to the house of the deceased, there was heated discussion later on the assembly become violent. There is no material to show that all the accused had knowledge that they are likely to cause murder and cause injuries to PW-1. In the absence of proof of ingredients of Section 149, convicting all the accused for an offence u/s 302 r/w. Section 149 of IPC is bad in law.
In the instant case, the acts of individual accused have to be taken into consideration to adjudge the guilt. There is no convincing evidence to show that A3 to A5 were members of the unlawful assembly and their conviction for offences u/s 143, 147, 148 is bad in law, so also the conviction of A1 to A3 for an offence u/s 324, 302 & 504 of IPC, is bad in law and the same is set aside.
A1 caused assault with the club on the face, resulting in fracture of mandible. A1 would be liable for committing offences u/s 326 IPC.
A2 caused assault with the club on the head, which result in fracture of parietal bone. The injuries caused by A2 is sufficient to cause death in the ordinary course. Therefore, A2 is guilty of offence u/s 302 IPC.
A3 has not caused any injuries to the deceased. Therefore, conviction of A3 for an offence u/s 302 IPC is bad in law and the same is set aside. However A3 is liable for conviction u/s 324 IPC for causing injuries to PW1.
For the reasons and discussions made above, the appeal is partly allowed. A1 is convicted for an offence u/s 326 IPC and sentenced to R.I. for a period of five years and to pay a fine of Rs. 50000/-, in default, to suffer S.I. for a period of three years.
A2 is convicted for an offence u/s 302 IPC and sentence to life.
A3 is convicted for an offence u/s 324 IPC for causing injuries to PW-1 and sentence to R.I. for a period of three years. A4 and A5 are acquitted of the charge.
The accused are entitled to the benefit of set off u/s 428 Cr.P.C.
It is said that A3 is serving sentence for the past four years, if that is so, she is deemed to have served the sentence, A3 is to be set free forthwith if not required in another case and A4 and A5 have also to be set free forthwith, if not required in any other case.
Communicate the operative portion of the order to the trial Court and to the Jail Authorities.