Bishan Singh and others vs The State

Gopal Singh, J.—This appeal is from the judgment of Shri Raghbir Singh, Additional Sessions Judge, Amritsar dated 23rd June, 1966 convicting the appellants Bishan Singh, Kishan Singh, Arjan Singh, Kaka Singh, and Santa Singh u/s 392 read with Section 149 Indian Penal Code and sentencing each of them to undergo life imprisonment and tinder Section 148 Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for one year. The two sentences in respect of each convict were directed to run concurrently. The other accused Kartar Singh and Achhar Singh, who were also proceeded against and charged for the same offences, were, however, acquitted.

The facts of the prosecution case are as follows:

On July 13, 1964, there took place a fight over barsati water between Kishan Singh and his companions of village Mandianwala in the district of Amritsar on one side and Darshan Singh deceased in the present case and his companions residents of the same village on the other. Darshan Singh attacked Kishan Singh and Bishan Singh. Injuries were caused to Kishan Singh by Darshan Singh and his companions. Darshan Singh and other persons of his party were prosecuted for offence u/s 324 read with Section 34, Indian Penal Code. They were, however, acquitted.

Security proceedings u/s 107, Code of Criminal Procedure, were initiated on August 13, 1964, against Darshan Singh and 17 other persons of his party as well as Kishan Singh and 9 other persons of his party. Persons belonging to both the parties and proceeded against, were bound down for one year to keep peace. The appellants thus came to cherish grudge and ill will against Darshan Singh.

On January 9, 1966 in the evening, Bishan Singh appellant while drunk visited the house of Darshan Singh. Bishan Singh was armed with a sota. Bishan Singh used abusive language against Darshan Singh. While addressing Darshan Singh, he remarked that he had come to wreak vengeance upon him for the injuries, which had been caused to his brother Kishan Singh over the dispute of barsati water and that the period of one year for keeping peace having expired, he would be suitably dealt with. It is stated that Bishan Singh brandished the sota towards Darshan Singh to inflict blow but Darshan Singh stepped back and saved himself from any injury being caused. Darshan Singh in retaliation gave a sota blow to Bisban Singh, which struck the latter on his head. Shrimati Indo sister of Darshan Singh, P.W. 3, Shrimati Parsino wife of Darshan Singh, P.W. 6 and Atu P.W. 9 were present at the tune this incident took place. This seems to have provoked Bishan Singh and the men of his party to trouble. The incident became the immediate cause of the occurrence, which took place the following day on January 10, 1966.

It is stated that Darshan Singh accompanied by his wife Shrimati Parsino and his sister Shrimati Indo, who is Panch of village Mandianwala, P.Ws. proceeded from village Mandianwala to village Bhillowal to purchase cloth and to get garments prepared for the occasion of Lohri festival, which came off on January 12, 1966. While Darshan Singh and the two ladies had gone to a distance of 150 karams from the village habitation and were near the field of Madan Lal, in which there is installed a tubewell, they were countenanced by the five appellants and their two acquitted co-accused. They had already been laying in ambush in the field closely by Bishan Singh, Arjan Singh and Kartar Singh were armed with spears, Achar Singh and Kishan Singh with kir-pans and Kaka Singh and Santa Singh with sotas. I have drawn up the following table from the material on the record indicating inter se relationship of various accused persons:

As the above table shows, Bishan Singh and Kishan Singh are brothers being sots of Sharkar Singh. Arjan Singh and Kaka Singh are married to the sisters of Kishan and Bishan Singh. Santa Singh is the son of Sukhram Singh uncle of Kishan Singh and Bishan Singh. Achhar Singh is the son of Santa Singh accused while Kartar Singh is the son of the brother of Santa Singh accused. They are all residents of village Mandianwala to which Darshan Singh deceased belonged.

Santa Singh threw challenge saying that Darshan Singh should be killed and not allowed to escape. Darshan Singh took to heels. He was overtaken at a distance of 70 karams from the point where he was challenged. Shrimati Indo and Shrimati Parsino P.Ws. also ran in pursuit of the appellants crying for Darshan Singh being spared. Koka, who works as a machanic on Madan Lal''s tubewell and was present close-by also raised an alaram. The first blow was given by Kartar Singh with his spear in the abdomen of Darshan Singh. The second one was dealt by Bishan Singh. His spear bit the right thigh of Darshan Singh. Arjan Singh inflicted the third blow on the back of Darshan Singh. As a consequence of the injuries caused by these blows, Darshan Singh dropped down. While fallen, Kishan Singh and Achhar Singh delivered blows to him with their respective weapons. Santa Singh and Kaka Singh also gave sota blows to Darshan Singh. After causing these injuries, the appellants and their two companions fled away from the scene of occurrence carrying with them their respective weapons. Nihal Singh brother of the deceased arrived at the spot soon after the occurrence. The arrival of Atma Singh, Tara Singh, Harnam Singh and Phulla Singh followed that of Nihal Singh.

A cot was brought by Nihal Singh from the village. Darshan Singh was placed on the cot and carried to Lopoke bus-stand. A taxi was engaged there. The deceased was brought by Shrimati Indo and Shrimati. Parsino P.Ws. and Nihal Singh to the V.J. Hospital at Amritsar. Other persons, who collected at the place of occurrence did not proceed with them beyond the bus-stand. Darshan Singh was admitted in the hospital at 5.30 p.m. on January 10, 1966. Dr. Faqir Chand examined him and found that he was not in a fit condition to make a statement. Copy of the medicolegal report along with intimation regarding arrival of Darshan Singh in injured condition was sent by Dr. Bhatia to Dilbagh Rai, ASI. of Police Guard posted in the hospital.

Dr. Bhatia P.W. 4, who examined Darshan Singh soon after his arrival in the hospital found the following eight injuries on his person:

Incised wound 1 1/2" X 1/4" bone deep on th8 inner side of left fore-arm lower third.

Reddish contusion 2" x 3/4 with abrasion 1/2" X 1/4" on the back and inner side of right fore-arm lower third.

Incised wound 2" X 1" over front of left thigh just above knee bone deep.

Incised stab wound 1/2" X 1/4" muscle deep over front of right thigh lower third.

Incised stab wound 1" X 1/2" deep to the abdominal cavity 1 1/2" to the right and 1" below the naval. Intestines were damaged, ruptured and protruded out of the wound.

Incised stab wound transverse in direction 3/4" x 1/4" depth not probed on the back of lower third of right chest 1" from mid line.

Contused wound X 1/3" bone deep on the right side of frontal region of head 4" above middle of right eye brow.

Incised wound 2 1/2" x 1/3" bone deep on the inner part of right sole 1" behind the basis of 5th, 4th and 3rd toes.

He gave the opinion that out of the above said injuries, injury No. 5 was dangerous to life. Injuries Nos. 1, 3 and 8 were caused by sharp-edged weapons and the rest could be caused with blunt weapons. He also gave the opinion that injury No. 5 was sufficient in the ordinary course of nature to cause death. When a specific question was asked in course of his examination as to whether injury No. 5 would be sufficient to cause death in the ordinary course of nature irrespective of the fact whether there might have been any infection due to unclean bandage, he replied in the affirmative.

Shri Dilbar Singh ASI again made an enquiry from the doctor and was told that the injured was not in a fit condition to make a statement. A ruqa Exhibit PH was sent at 7.00 p.m. by Dilbar Singh to the S.H.O. Police Station Lopoke. The distance of the Police Station from village Mandianwala is seven miles and from Amritsar it is 16 miles. In that ruqa, it was communicated to the SHO that Darshan Singh had been admitted in the hospital and that he had been declared by the doctor not in a fit condition to make statement. The medicolegal opinion of the doctor accompanied this ruqa. These two documents were sent through Karam Singh Constable. It was stated in the ruqa that necessary action be taken according to law.

Shri Bhag Mal, ASI P.W. 16, arrived in the hospital the following day on January 11. 1966. He recorded the statement of Shrimati Indo P.W. Exhibit PD at 3.45 p.m. and sent her along with the statement to the Police Station. Lopoke for its being incorporated in a formal first information report to be recorded at the police station. A formal first information report was drawn up at 6.30 p.m. on January 11, 1966.

Dr. Faqir Chand examined Darshan Singh once again but he was found not in a fit condition to make any statement.

After recording the statements of Shrimati Indo, Shrimati Parsino and Nihal Singh and after taking into possession the bloodstained clothes, which had previously been removed from the person of Darshan Singh. Bhag Mal P.W. 16 preceded to the village. He arrived there at 8.30 p.m. when it was dark. He could not inspect the spot that day. In the morning on January 12, 1966 he inspected the spot and took into possession blood stained earth from the place where injuries had been caused to Darshan Singh Bishan Singh, Kishan Singh, Arjan Singh, Santa Singh, Achhar Singh and Kartar Singh surrendered themselves to Bhag Mal ASI in village Mandianwala on 12th January, 1966 at 2 p.m. When surrendered, these six accused persons were empty handed but later on they were asked by Bhag Mal to bring their respective weapons of offence with them. After return, Kartar Singh and Arjan Singh had barchis with them whereas Kishan Singh and Achhar Singh produced kirpans The two barchhis and the two kirpans were taken in possession by Bhag Mal. The six accused were also arrested.

Bishan Singh accused was examined by Dr. A. Phillips P.W. 2, Incharge of Health Centre, Lopoke on January 12, 1968 at 6.20 p.m. He found on his person a lacerated wound bone deep on the left side of the head and the wound was dressed. He also found an abrasion on the left, pinna, an abrasion with scab formation on the left knee and a bluish contusion on the right lumber region. He noted that Bishan Singh complained of pain on the right shoulder although no sign of injury was visible. The duration of injuries caused to Bishan Singh was stated by the doctor to be about 72 hours. He opined that the injuries could be caused by blunt weapon.

Kaka Singh accused produced himself on January 14, 1966, before Surjit Singh, Member of Panchayat of village Mandianwala Surjit Singh is also the attesting witness of the memos of recoveries pertaining to the blood-stained clothes of Darshan Singh deceased and blood stained earth collected from the spot. The Assistant Sub-Inspector completed the investigation in the village and proceeded on January 14, 1966. to the V.J. Hospital at Amritsar. On enquiry from Dr. Faqir Chand, be was informed that Darshan Singh was in a fit condition to make a statement. Dr. Faqir Chand gave a certificate Exhibit PG/4 to that effect at 5.20 p.m. on that date. Thereafter, the statement of Darshan Singh Exhibit PCC was recorded by Bhag Mal ASI on that very day. That statement constitutes the dying declaration of Darshan Singh who expired in the hospital on January 24 at 3.40 p.m. In the dying-declaration, Darshan Singh deceased referred to the motive, the necessary particulars of the prosecution case saying that while proceeding towords village Bhillowal accompanied by his wife and sister, he was waylaid by the seven accused armed as mentioned. He also refers to the causing of injuries by the various accused persons. In that statement, he gives the names of the three eye-witnesses including Kuka P.W. 7.

Dr. Narinder Mohan performed the post mortem examination on the dead body of Darshan Singh at 3.00 p.m. on January 25, 1966. Apart from the eight injuries on the person of the deceased located by Dr V.P. Bhatia Dr. Narinder Mohan also noticed a drainage wound from the umblicus on the right side of abdomen and a stitched wound on the inner side of the left little finger. The first was due to the incision caused consequent on surgical operation of the abdomen. It appears that second injury was not detected by Dr. Bhatia. Dr. Narinder Mohan, in his examination before the trail Court, gave an opinion that he was definite that injury No. 5 was due to peritonitis and it was sufficient in ordinary course of nature to cause death of the deceased.

The appellants were proceeded against for offense under 148 and Section 302 read with Section 149, Indian Penal Code. In their statements u/s 342, Code of Criminal Procedure, the appellants pleaded complete ignorance about the occurrence and added that it is on account of enmity with the appellants and two other accused that they had been falsely implicated. With reference to the injuries on his person, Bishan Singh appellant stated that those injuries were caused to him by one Tara Singh when he remonstrated with him against his cattle having strayed into his field.

The prosecution relied on the eye-witnesses, the dying declaration and recoveries. The appellants and tin other two accused contended before the trial Court that there had occurred inordinate delay in lodging the first information report, that the eye-witnesses were nearly related to the deceased and interested in the prosecution and consequently undefendable, that recoveries of weapons of offence were made after the accused were specifically asked by the Investigating Officer to come armed with their weapons and that the dying-declaration was not a genuine document. The trial Court came to the conclusion that there bad occurred delay in making the first information report and that on account of delay, the evidence of the eye-witnesses has to be scrutinized with caution, that the dying-declaration was a detailed statement and could not be the statement of the deceased and that little reliance could be placed upon the recoveries of weapons of offence with which the accused after surrender, had been asked to come armed. The trial Court accepted the evidence of Shrimati Indo and Shrimati Parsino P.Ws. and held that they were natural witnesses and had seen the occurrence with their own eyes. As regards Kuka P.W. 7, the trial Court took the view that as he had appeared four days after the occurrence and had failed to establish his absence from the village, no reliance could be placed on his testimony.

Believing the existence of motive and the evidence of the two lady eye-witnesses, the trial Court convicted the appellants. Finding that there could be no motive on the part of Achhar Singh and Kartar Singh accused to participate along with the five appellants in the commission of the crime, the trial Court gave benefit of doubt and acquitted them.

The learned counsel for the appellants has raised the following points:

There has been tremendous and purposeful delay in the recording of the first information report.

No immediate cause of trouble or motive has been satisfactorily established.

The eye-witnesses are got up witnesses and the prosecution story is false.

Kartar Singh accused responsible for causing injury No. 5 which proved to be fatal, having been acquitted, the appellants should be convicted u/s 326 read with Section 149, Indian Penal Code and not u/s 302 read with Section 149, Indian Penal Code.

As regards the first point pertaining to the delay in making of first information report, it was contended on behalf of the appellants that the occurrence took place at about the noon of January 10, 1966 and the report was lodged at 4.45 p.m. on January 11, 1966. Thus there is delay of 27/28 hours.

Shrimati Parsino wife of Darshan Singh deceased, his sister Shrimati Indo and the brother of the deceased would be anxious to see that his life was saved rather than to report the matter to the police. Their first impulse would be to take him immediately to the nearest hospital where competent medical aid to save his life would be available. It is on account of that impulse that they lost no time in proceeding to Lopoke bus-stand and from there hired a taxi to reach the hospital in the shortest possible time. There is no doubt that they could break their journey on the way at Lopoke but the urgency of securing medical aid at the earliest moment dictated them to the contrary. The dear and near ones accompanying Darshan Singh thought that his life mattered more than to lodge a complaint against the assailants to the authorities concerned. It is also in the evidence of Smt. Indo P.W. 3 that Darshan Singh desired that he should be immediately taken to the hospital at Amritsar and facilities of necessary medical aid provided. It will be quite natural on the part of the wife, sister and brother of the deceased to accede to his wishes when the thought of his death in the face of the fatal injury caused to him, was hanging on the minds of all. They reached the hospital at 5.30 p.m. They must have got themselves busy in contacting the doctor and other members of the staff in the hospital to secure his admission into the hospital without any delay and to see that he was examined without any loss of time and necessary treatment given. Soon after their arrival, Dr. V.P. Bhatia P.W. 4 examined him, drew up medico legal report incorporating the injuries observed by him and sent its copy to Dilbar Singh P.W. 8 Thereafter, Dilbar Singh contacted the doctor and enquired if Darshan Singh was fit to make a statement As per endorsement Exhibit PG/1 made by Dr. Faquir Chand on January 10, 1968, Darshan Singh was declared not fit to make any statement. In the face of that situation, Dalbar Singh ASI lost no time in addressing raja Exhibit PH with the contents as stated above to the S.H.O., Lopoke That ruqa was handed over at 7.00 p.m. by Dilbar Singb P.W. to Karam Singh Constable. It is not clear from the record as to what exactly transpired that the ruqa was not delivered in the Police Station Lopoke till at about noon on January 11, 1966. In any case, it was within the knowledge of the relations attending to Darshan Singh that intimation had been sent by Dilbar Singh ASI to S.H.O. Lopoke regarding the admission of Darshan Singh in the hospital with injuries caused to him and that he was unable to make any statement.

Capital was sought to be made out by the learned counsel for the appellants from the fact that Shrimati Indo and Shrimati Parsino P.WS. had stated that Bhag Mal ASI arrived from Lopoke at 5.00 a.m. on January 11, 1966. On the other hand, the time of receipt of ruqa in police Station Lopoke coupled with the statement made by Bhag Mal leaves no doubt that he could not have arrived at 5.00 a m. on January 11, 1966. It is stated that he arrived in the hospital at 3.00 p.m. Here it may be mentioned that the distance between Police Station Lopoke and Amritsar is about 16 miles. There is a metalled road with buses constantly running between these two stations. The evidence of Smt. Indo P.W. was recorded at 4.45 p.m. The time of recording of evidence of Shrimati Indo further points out to the time of arrival of Bhag Mal ASI It appears that when these two ladies had first stated that the time of arrival of Bhag Mal was 6.00 a.m., they were eicher suffering from certain lapse of memory or may be they lacked sense of precision of time. Another reason which seems to have prevailed in the minds of the rela-tions locking after Datshan Singh deceased seems to be that be held been asking them to take him to the hospital at Amritsar and that it was very likely that he would make a statement. They thought that that statement would be incorporated in the formal first information report to be drawn up. As the ill luck would have it he was not in a fit condition to make a statement so soon alter his arrival in the hospital as was expected. Moreover it is not a case in which it can be contended that nothing was done on the part of those placed under obligation to inform the police authorities. Dilbar Singh, ASI who knew of the occurrence took the necessary step of intimating to the S.H.O. at Lopoke

Considerable stress was laid on the suggestion that delay in making the first information report must have been availed of for consultations and collaboration so as to conjure up a case involving as accused the largest number of persons belonging to the party of Bishan Singh and Kishan Singh accused. It is very unlikely that the two ladies would be party to designed delay and avail of the delay for that purpose. From the proceedings of earlier litigation, Nihal Singh brother of the deceased does not seem to be a party to those proceedings. He seems to be quite an unconcerned person in so far as the earlier disputes and fights between the deceased and inimically disposed party of the appellants were concerned. If any such consultation could be made or conspiracy could be hatched, it should have been on the initiative and at the instance of Darshan Singh deceased, whose enmity with the party of the appellants drove the latter to impel! them to assault him and to finish him. But the tongue and mind of Darshan Singh failed him.

As regards the second point, the Counsel for the appellants conceded that there did take place the occurrence on July 13, 1964 leading to the prosecution of the deceased at the instance of the party of the appellants and his acquittal. He also amitted that in security proceedings parties of either side had been bound down and time of security bond of one year had expired. He, however, levelled his attack against the immediate cause of the trouble, namely the incident which took place in the evening of January 9, 1966, in the house of the deceased where Bishan Singh appellant received sota blow at the hands of the deceased and also received certain abrasions caused by his fall on the ground. Shrimati Indo, Shrimati Parsio and Atu P.Ws. are the witnesses who supported the prosecution in establishing the incident which took place on that day. It was suggested that Shrimati Parsin in her statement does not name Shrimati Indo to be present at the time Bishan Singh aimed with sota visited the rouse of the deceased. There is no doubt that she does not specifically say that Shrimati Indo was present there when the deceased and Bishan Singh wrangled with each other and injury was caused to Bishan Singh with sota blow by the former. In examination-in-chief, Shrimati Parsino does state that the house of Shrimati Indo is at a distance of 80 karams from the house of the former implying thereby a reference to her presence at the time when the deceased and Bishan Singh confronted each other. No attempt was made in course of cross-examination by the defence to ask specific question as to whether Shrimati Indo was there. Atu P.W. 9 specifically referred to the presence of Shrimati Indo. Nothing was brought out in course of cress examination of this witness to suggest that Shrimati Indo was not present at the time of the incident. Bishan Singh was examined by Dr. A. Phillips P.W. 2 at 6.20 p.m. on 12.1.1966. As referred to earlier, he found five injuries including one on the head of Bishan Singh. Apart from the nature of injuries tallying with the nature of weapon employed by Darshan Singh and the injuries which could be caused as a result of fall, the doctor specifically says that the duration of the injuries could be 72 hours. In other words, the injuries to Bisban Singh were caused at the time at which the above said incident is said to have taken place. Thus the evidence of these three eyewitnesses pertaining to the incident is reinforced by the medical evidence. It appears that the learned Additional Sessions Judge did not appreciate the question of motive in its proper perspective in relation to Kartar Singh and Achhar Singh whom he acquitted on the ground that they were strangers and they had nothing to do with the other appellants and consequently the above referred to facts pertaining to the motive which could impell the five appellants to commit the crime could not drive the acquitted accused to do so.

The table of inter se relationship of the seven accused persons shows that Kartar Singh is the son of Banta Singh who is brother of Santa Singh, and Achhar Singh is the son of Santa Singh. Thus the trial Court has not taken correct view in coming to the conclusion that these two accused persons had nothing to do with the commission of the crimp. Injury No. 5 which the prosecution stated to have been caused by Kartar Singh armed with a lethal weapon like spear and which caused the death of the deceased fully warrants the conviction of Kartar Singh for offence u/s 302 read with Section 149. Indian Penal Code. It is this erroneous view on the part of the trial Court which has resulted in uncalled for acquittal of these two persons. Be that as it may, no appeal against the acquittal of these two accused-persons having been preferred by the State, their acquittal stands.

The third point of argument raised by the Counsel for the appellant is that Shrimati Indo P.W. is the sister of the deceased and Shrimiti Parsino P.W. is his wife. It was urged that these two witnesses are very nearly related and consequently highly interested in the deceased. He suggested that their evidence should not be depended upon by the Court for conviction of the appellants. There is no doubt that these witnesses are very nearly related but the fact cannot be ignored that they were going along with the deceased towards village Bhillowal for purchasing cloth and getting garments prepared lor the festival of Lohri which came off on January 12, 19b6. The occurrence took place at a distance of 150 karams from the village. There is nothing in the lengthy cross-examination directed against these two witnesses to indicate that they were not accompanying the deceased. Thus they are natural witnesses and if their evidence does not suffer from any inherent improbabilities, conviction of the appellants could be founded on it. No doubt certain discrepant statements have been made by Shrimati Indo but those discrepancies are inconsequential in so far as the attack by the appellants on the deceased is concerned. In Darya Singh and Others Vs. State of Punjab, their Lordships of the Supreme Court made the following observations while considering the evidentiary value to be attached to the testimony of interested witnesses:

In a trial for the offence of murder where the witness is a close relation of the victim and is shown to share the victim''s hostility to his assailant, that makes it necessary for the criminal Courts to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, Courts begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. If the offence has taken place in front of the house of the victim, the ''act that on hearing his shouts, his relations rushed out of the house cannot be ruled as being improbable, and so, the presence of the eye witnesses cannot be properly characterised as unlikely If the criminal Court is satisfied that the witness who is related to the victim was not a chance witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars. It cannot be held that such witnesses are no better than accomplices and that their evidence, as a matter of law, must receive corroboration before it is accepted.

Kuka P.W. 7 is an independent witness. No fault could be found with him on the ground of his being a partisan or relative of the deceased and consequently being interested in him for giving false evidence. He was employed as a mechanic on the tubewell of Madan Lal. It is in the field and near the tubewell of Madan Lal that the occurrence took place. His presence at the place of occurrence is quite natural unlike a chance witness. His testimony was criticised on the plea that he had not appeared as a witness before the police for four days after the occurrence took place. It may be recalled that the Sub-Inspector inspected the spot on the third day of occurrence, namely in the morning of January 12, 1966 He appeared as a witness before the police on January 14, 1966. He has given cogent explanation of his having gone to Amritsar for repair of piston of the motor with which the tubewell is made to work. The trial Court refused to believe the presence of Kuka P.W. on the spot at the time of occurrence on the ground that he had no proof in the form of documentary evidence to show that he had got the piston repaired at Amritsar and consequently could not be in village Mandianwala from 12th to 14th January, 1966 until he appeared before the police for his statement being recorded. The presence of the witness could not be doubted on the trival plea of absence of a voucher or a receipt pertaining to the repair of piston. The trial Court has not otherwise found any infirmity or flaw in the evidence of this independent witness showing lack of veracity in what he stated.

The number and nature of the injuries found on the person of the deceased as reproduced above from the statement of Or. Bhatia P.W. tally with the weapons used by the various accused-persons in inflicting injuries to the deceased. Dr. Bhatia in his statement has divided the injuries into three categories. He found injuries Nos. 1, 3 and 8 to have been caused with sharp-edged weapons, injuries Nos. 4,5 and 6 caused with sharp edged pointed weapons and injuries Nos. 2 and 7 with blunt weapons. Thus the evidence of the eye witnesses receives convincing corroboration from the medical evidence.

Another piece of corroborative evidence lending further assurance about the testimony of eye witnesses is the dying-declaration made by Darshan Singh deceased on January 14, 1966. The trial Court has discarded the dying-declaration from consideration in support of the prosecution case on the ground that it is a detailed statement, that the phraseology of the statement is suggestive of narration by Bhag Mal ASI, who recorded it, that it was not recorded by a Judicial Magistrate and consequently could not be treated a faithful record of the statement of the deceased. The reasons assigned by the trial Court are rather plausible and not correct and tenable. Dr. Faqir Chand gave a certificate on January 14 1966 at 5.20 p.m. as per endorsement Exhibit PG/4 made in Exhibit PG to the effect that the deceased was in a fit condition to make a statement. It is difficult to appreciate as to how after definite opinion was given by the doctor preceding the recording of the statement to the effect that the deceased was fit to make a statement, a doubt and lack of faithfulness could be imported in the statement so recorded. The criticism of the trial Court on the ground that the document was a longish or detailed one is without any basis. We have examined the document Exhibit PCC. It is brief narration of the relevant facts pertaining to the injuries caused to the deceased. He refers to the names of the assailants, the weapons with which they were armed and the witnesses who saw the occurrence. There is also a reference though not in detail, to the motive which led to the trouble against the deceased. The lack of fidelity attributed to Bhag Mal ASI in taking down the statement of the deceased is purely imaginary and not supported by any material on the record. The view expressed by the trial Court that the dying-declaration should have been recorded by a Judicial Magistrate and the suggestion made by the Counsel for the appellant that the statement recorded by Bhag Mal, an Assistant Sub-Inspector of Police, is a statement made u/s 161 of the Code of Criminal Procedure and cannot be considered as substantive evidence in the case, ignore to take into consideration the provisions of Section 162, Code of Criminal Procedure. It is laid down in that Section that the statements recorded by the Police cannot be treated as substantive evidence with the exception, inter alia, those recorded u/s 32(1) of the Evidence Act. A statement recorded as dying declaration by a Police Officer conducting the investigation if recorded after the medical opinion as to the person making the statement being in a fit conation to make it, would be as good as recorded by a Judicial Magistrate provided there is nothing to doubt the varacity of the witness recording the statement and the record of the statement being true and correct as made by its maker. Considering that the discarding of dying-declaration by the trial Court is unwarranted, we rely upon it There is a reference therein to the three eye witnesses. Their presence thus stands reinforced from the dying declaration.

The last point raised on behalf of the appellants is that it is a case in which the appellants should be convicted u/s 326 read with Section 149, Indian Penal Code and not u/s 302 read with Section 149, Indian Penal Code. According to the prosecution evidence, injury No. 5, which was responsible for the death of Darshan Singh deceased was caused with spear by Kartar Singh accused since acquitted. The determination of the question whether Section 326 read with Section 149 Indian Pinal Code applies or not will depend upon the nature of the common object of the assembly in prosecution of which injuries other than the fatal injury were caused by the appellants. The o(sic)fect of the unlawful assembly comprising the appellants was to make an assault upon the deceased.

Offence of causing grievous injuries on the part of the appellants was committed in prosecution of that object. The injuries caused by the appellants being grievous in nature and having been caused with lethal weapons like spears and kirpans by the appellants while members of an unlawful assembly in prosecution of the common object of assault, the appellants committed offence u/s 326 read with Section 149, Indian Penal Code. The common object may be gathered from the initial purpose for which the members of the unlawful assembly constitute themselves as such to commit an offence which may later on undergo change and become different from the one with which the assembly was constituted. Nature of injuries as caused by the appellants is an index of their object in attacking the deceased. In any case, the appellants who were members of an unlawful assembly knew that the offence of causing injuries as they did was likely to be committed in prosecution of that object.

Section 149 incorporates the principle of vicarious liability. The section is declaratory of the circumstances under which that principle could be applied. According to the Section, the liability of the members other than the principal offender rests upon the fact whether those members knew that the offence actually committed was likely to be committed in prosecution of its common object, the knowledge which they had of the purpose for which an unlawful assembly was formed, the conduct of its members, the nature of arms with which they armed themselves and whether the common object underwent any change prior to or at the time of occurrence, if such knowledge may not reasonably be attributed to other members of the assembly, their liability for the offence committed during the occurrence does not arise The scope and effect of Section 149 was considered in Jahiruddin v. Queen-Empress ILR 2 Cal. 306. It was observed that members of an unlawful assembly may have community of object only upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object will vary not only according to the information at his command but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 may be different on different members of the same unlawful assembly. It was further observed that while dealing with cases of vicarious liability u/s 149. its necessary for the protection of the accused that he should not merely by reason of his association with others as members of an unlawful assembly be held criminally liable for offence committed by his associates which he himself neither intended nor knew to be likely to be committed. Their Lordships of the Supreme Court in Sambhu Nath Singh and others v. State of Bihar AIR 1950 S.C. 725 a case in which one of the members of the unlawful assembly caused death of the deceased while causing grievous hurt in prosecution of its common object, held as under :

Conviction for an offence under Sec. 326 read with Sec. 149 of the Indian Penal Code may be recorded against the members of an unlawful assembly, even if it be established that an offence of murder was committed by a member of that assembly. The offence under Sec. 326 of the Indian Penal Code is in its relation to the offence of murder a minor offence and the language used in Sec. 149 of the Indian Penal Code does not prevent the court from convicting for that minor offence merely because an aggravated offence, is committed. In Moti and Others Vs. State, with facts analogous to the facts of the present case, following the above referred to judgment of the Supreme Court, it was held that the appellants constituting unlawful assembly armed with spears and lathes who caused injuries to several persons one of whom died and the person who inflicted the fatal injury to the deceased could not be ascertained precisely, the appellants ware convicted u/s 326 read with section 149, Indian Penal Code.

For the reasons stated above, the appeal is allowed to the extent that the appellants are found guilty u/s 326 read with Section 149, Indian Penal Code and are convicted accordingly instead of their conviction being maintained u/s 3J2 read with Section 140. The appellants are sentenced to four year''s rigorous imprisonment each. Their convictions u/s 143, Indian Penal Coda are maintained and so also their respective sentences of rigorous imprisonment of one year each thereunder. Both the sentence of each convict will run concurrently.

Shamsher Bahadur, J.

I agree.