S.L. TALATI

(1) This appeal is directed against the judgment rendered in Sessions case No. 39 of 1982 on 23-12-1982 by the learned Additional Sessions Judge Junagadh. The facts giving rise to this appeal may be briefly stated as under:

(2) The appellants-original accused had gone for girnar parikrma on 7-11-1981. Vitthal Govind P. W. 1 Ex. 10 head constable and three other police constables were on duty.

(3) The accused were near Ahmedabadi kua near Jenababa Medi on 9 at about 3.30 p.m. Thousands of pilgrims were also there. Accused No. 6 was a wanted accused as he was to be arrested because of the fact that C. R. No. 223/79 was pending against him which was filed on 1-1-1979 for offences under secs. 143 147 149 332 336 337 and 504 of the I. P. C That position is also clear because he was shown in absconding register kept at the Police Station. Both these facts are clear from the documents Ex 24 and Ex. 34. Now as Vitthal and other police constables saw these six persons they tried to catch hold of accused No. 6. Accused No. 6 was caught by police constable Lila who is examined as prosecution witness no. 3. The other accused persons namely accused nos. 1 to 5 wanted to see that the accused No. 5 should be released and therefore they started throwing stones. At that time accused no. 6 took out a knife and gave a knife blow to the police constable Lila. Ultimately the accused were successful in getting accused no. 6 freed from police constable Lila and they were also successful thereafter in running away. Immediately thereafter police constable Lila got himself treated and so also head constable Vitthal who was injured by stones. Thereafter the complaint was filed in due course and the same was investigated. Ultimately all the accused persons were charge-sheeted and in due course were committed to the Court of Sessions. The learned Sessions Judge after appreciating the evidence led before him came to the conclusion that accused nos. 1 to 5 were guilty for an offence under sec. 307 read with sec. 149 of the I. P. C. and were also guilty for an offence under secs. 143 147 225 and 332 of the I. P. C. Accused No. 6 was held guilty for an offence under secs. 144 148 224 307 and 332 read with sec. 149 I. P. C. Accused Nos. 1 to 5 each one was sentenced to suffer R. I. for 10 years and to pay a fine of Rs. 500.00i.d. to suffer imprisonment for three months. Accused No. 6 was also sentenced to suffer R. I. for 10 years and to pay a fine of Rs. 500-/ i.d. to suffer R. I. for three months. Accused No. 6 was also held guilty for an offence under sec. 135 of the Bombay Police Act but for that offence and for all other offences no separate sentence was awarded against accused no. 6. Accused challenged the conviction and sentence so passed by filing this appeal.

(4) The prosecution examined Dr. P. T. Kotadia P. W. 2 Ex. 12. In his evidence he has stated that he had examined Vitthal on 9-11-1981 and found the following injuries on his person:

1 Contused wound in the middle of the head 2x 1/4x 1/4. 2 Abrasion near the left eye-brow. 3 Abrasion on the palmer side of the left hand.

According to him all these injuries were posible by hard substance which had a sharp edge. According to him such injuries were possible by stones having edges. P W 9. Ex. 37 Dr. Arunrai J. Mankad has examined police constable Lila P. W. 3. He states that he had examined him on 9-11-1981 and found the following injuries on his person:

1 Incised would 1 1/4x1/4x muscle deep on the left chest between the 3 and 4th ribs. 2 Incised wound 1x1/4x muscle deep on the left hand little finger and the thumb.

According to his opinion both these injuries were possible by sharp cutting instrument. Now Vitthal is examined at Ex. 10 and in his evidence he has stated that he was on duty in plain dress from 7-11- 1981 and ultimately on 9-11-1981 he was at the medi of Jenababa. At about 3. 30p. m. he saw six accused coming from opposite direction and he immediately realised that accused no. 6 was a wanted accused in a criminal case which was filed against him under sec. 332 I. P. C. and who was absconding. He was immediately caught and he stated that he wanted to go for Parikrma and may be released but the head constable stated that he could not be allowed to go. All the accused persons got provoked and they tried to use force to get accused no. 6 released and for getting him released they started throwing stones. At that time accused no. 6 took out a knife which he had kept hidden near his left leg and he stated that this policeman is required to he killed and gave a knife blow on the left side of the chest of Police Constable Lila. Police Constable Sargadh caught right hand of accused no. 6 and at that time police constable Lila fell down. All the other accused persons were throughout throwing stones. The accused persons thereafter ran away in the forest. Witness further stated that because of stone throwing he received injuries on the head near left ye and on the left hand finger He was bleeding. Police Constable Lila was also bleeding . Immediately Harising brought vehicle and police Sub- Inspector Chavda also came there. They were also taken to the dispensary and P. S. I. recorded the complaint Ex. 11. In cross-examination he stated that accused nos. 3 6 and 1 were brothers and accused no. 4 was son of accused no. 1. It was brought out in the cross-examination that several raids under the Provision Act were carried out in Mubarakbag where the accused were residing. Witness denied having any knowledge as to whether the Minister for Prohibition purchased liquor at Mubarakbag and as a result some police constables were suspended. He admitted that after carrying out the raids accused no. 1 was prosecutor in several cases under the Prohibition Act. He also stated that all the accused persons were prosecuted under the prohibition Act except accused no- 2. He denied the suggestion that because of the prohibition raids there was enmity between the police and the accused. He also admitted that he had not noted down the names of any of the pilgrims who were present at that particular place. On further questioning he further stated that the accused had spoken what are you seeing Start beating ***.

(5) Police Constable Lila P.W 3 is examined at Ex. 15. In his evidence he also gave practically the similar version as that given by the head constable Vitthal. According to him after arrest of accused no. 6 as he stated that as accused no. 6 was a wanted person he will not be released and at that time accused nos. 1 and 2 stated that what do you watch. Start beating ***. Thereafter stone throwing was started and accused no. 6 got himself released and thereafter he abruptly took out a knife and gave a knife blow on the chest Immediately police constable Harising caught him and he fell down.Thereafter the complaint was filed and he was treated. According to Police constable Lila the incident lasted for about 20 minutes. This he stated in the cross-examination. According to him during the incident 15 to 20 persons had passed from that place.

(6) The version of Harising P.W. 4 Ex. 16 is practically of the similar nature. In cross-examination also nothing more was taken out. A panchnama of the scene of offence was drawn up which is proved by panch-witness Dilipkumar Ex. 18 and the panchnama is produced at Ex. 19. It appears that only knife was attached by that panchnama. One Maganlal another panch is examined at Ex. 20 and it appears that in his presence the panchnama regarding the scene of offence was prepared. One leaf was attached on which there were blood stains. Head constable Chanshyamsing Ex. 22 produced entry Ex. 34. The Notification published by the District Magistrate Junagadh was also produced at Ex. 29 by which the persons were forbidden from carrying arms under sec. 37(1) of the Bombay Police Act and it was to remain in force from 24-10-1981 to 15-11-1981. That was for the purpose of establishing a case under sec. 135 of the Bombay Police Act. One investigating officer is examined at Ex. 40 and another investigating is examined at Ex. 41.

(7) I earned Advocate Shri H. K. Thakore for the accused-appellants submitted that the injury on the person of police constable Lila was a simple injury and at the highest the accused could be guilty for an offence under sec. 324 of the I P C. or as Police Constable Lila was a public servant if that position is accepted the offence light fall under sec. 332 of the I.P.C. According to him the incident happened abruptly and it was unnatural that all the accused meaning thereby accused nos. 1 to 5 would throw stones for 20 minutes and only one constable would be injured The theory propounded was not required to be accepted and according to him therefore accused nos. 1 to 5 were not the persons who formed all unlawful assembly within the meaning of sec. 141 of the I.P.C Under these circumstances accused could not be guilty for an offence under sec 147 and accused no. 6 could not be guilty for offence under sec 144 and 149 I.P.C. and none of the accused persons could be convicted for any vicarious responsibility as contemplated by sec. 149 of the I.P.C. He also submitted that the accused nos. 1 to 5 could not be convicted under sec. 225 of the I.P.C. though accused no. 4 may be guilty for offence under sec. 224 of the I.P.C.

(8) Having carefully considered the entire evidence on record we are not fully in agreement with the arguments advanced by the learned Advocate Mr. H. K. Thakore The evidence is consistent to establish the presence of all the six accused persons at that particular place. Head Constable Vitthal is injured by stone edges There are three injuries It is not possible for him to say as to 5. high stone was thrown by a particular accused but the general say is that all the accused were throwing stones. It may be three stones and one accused or one each stone and three accused or two or one one way or the other struck. In any case he was injured by three stones Now accused persons were also experienced persons in the sense that they had several dealings with the police because of the prohibition cases and because of the activities which are brought on record. So also the Police Constables and head constable were conversant as to how they deal with the criminals. Though a Parikrma was going on evidence shows that many persons were not present at the time of incident. Hardly 15-20 persons passed by way. Now stone throwing practically started after accused no. 6 got himself released. During these circumstances Police constable Lila had fallen down. It was not likely that any stone would be thrown against him. Now only two police constables and one head constable remained against whom stones were required to be thrown. Vitthal was a leading person and naturally therefore he would be the first target. All these persons would not remain passive throughout. They would have either tried to avoid the stones which were being thrown upon them or would do something else. Under these circumstances it may not be possible to say that every police constable is likely to be injured. The main purpose was not to injure all the police constables and the head constable. The main purpose was to get accused no. 6 released. Once that object was achieved accused persons had no reason to stay there but they would like to run away. They would go on throwing stones in order to see that the policemen may not persue them. Now therefore some stones would have been thrown at the time of running At that time the stones are not aimed but they are thrown in a particular direction only to prevent the Policemen from following them. Under these circumstances the question does not assume any importance as to how many police constables were inJured in the stone-throwing. What is important is to find out as to whether there was any object as contemplated by sec. 141 of the I.P.C. sec. 141 of the I.P C. clearly lays down as under:

141 An assembly of five or more persons is designated as unlawful assembly if the common object of the persons composing that assembly is First- ......... Second ....... Third ........ Fourth ........ 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.

Explanation: An assembly which was not unlawful when it assembled may subsequently become an unlawful assembly.

Here the persons wanted to see that the police constables omit to arrest accused No. 6 whom they were entitled to arrest. Now if for that purpose they tried to get accused No. 6 released or tried to deter the police constable for the purpose of seeing that they do not arrest accused No. 6 though he was a wanted person as they were more than five persons the assembly could be easily designated as an unlawful assembly which was not in the beginning unlawful assembly because it was going on parikrma. That lawful assembly became unlawful assembly so soon as accused No. 6 was arrested and the accused tried to release him. It is not necessary to punish any of the accused persons for offence under sec. 143 of the I.P.C. because it is a minor offence as all the accused has committed an offence under sec. 146 of the I.P.C. which reads as under:

146 Whenever force or violence is used by an unlawful assembly or by any member thereof in prosecution of the common object of such assembly every member of such assembly is guilty of the offence of rioting.

Now what is necessary to see is that it is not necessary that force or violence must be used by all members of that assembly but any member of that particular unlawful assembly in prosecution of the common object of such assembly. And the common object here was to see that accused No. 6 was released and so soon as force was used by any one of them all the six would be guilty for an offence under sec. 146 and for that offence the punishment is provided by sec. 147 of the I P.C. which reads as under:

147 Whoever is guilty of rioting shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.

Therefore all the accused persons would be guilty for an offence under sec. 147 I. P. C. Now accused No. 6 was armed with a knife-a deadly weapon. Therefore he was guilty for an offence under sec. 144 of the I. P. C. but again it is a minor offence. In the sense that he is required to be convicted for an offence under sec. 148 I. P. C. which reads as under:

148 Whoever is guilty of rioting being armed with a deadly weapon or with anything which used as a weapon of offence is likely to cause death shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.

Therefore accused no. 6 would be guilty for an offence under sec. 148 of the I. P. C. It is therefore not necessary to punish him under secs. 144 or 147 of the I. P. C. It is therefore required to be held that accused Nos. 1 to 5 are required to be convicted for an offence under sec. 147 of the I. P. C. and accused no. 6 is required to be convicted under sec. 148 of the I. P. C.

(9) Now the real question which is further required to be decided is as to what offence accused no. 6 committed when he used knife. The case of the prosecution is that as the accused no. 6 used a deadly weapon and as blow was given on the left side of the chest he must be held guilty for an offence under sec. 307 I. P. C. Thus the real question is as to what was the offence of accused no. 6. The main idea of accused no. 6 was to see that he is not arrested. He is first of all arrested. He got himself freed and thereafter he wanted to successfully run away from that place. He was the only person out of the six persons who was having a knife hidden on his left leg. Accused Nos. 1 to 5 cannot be attributed with the knowledge that accused no 6 was in possession of a knife. He took it out he gave a blow with a knife and it could be easily inferred that he voluntarily caused hurt with that knife to the police constable. Can we further infer that he intended to inflict that very injury which is caused to Police constable Lila Then the question is were all the persons standing like statutes or they were all struggling or moving. Lila was in the process of seeing that accused no. 6 does not run away. Accused No. 6 had main intention to run away. He had already freed himself. He wanted to see that he is not arrested. He had a knife. He used it for that purpose. Under these circumstances is it possible to infer that he intended to inflict a blow on the chest or he intended to give a blow with knife which fell on the chest. This is important because of the definition of sec. 307. Sec. 307 reads as under:

307 Whoever does any act with such intention or knowledge and under such circumstances that if he by that act caused death he would be guilty of shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine and if hurt is caused to any person by such act the offender shall be liable either to imprisonment for life or to such punishment as is herein before mentioned.

Now therefore what can be attributed to accused No. 6 He wielded a knife. Therefore he intended or had the knowledge that he would use that knife. Further attribution could be made to him that use of a knife might cause injury to the person against whom the knife is used Important question is whether if death is caused would he have been guilty for murder. For convicting a person under sec. 302 I. P. C. what is required to be satisfied is clause 3rdly of sec. 300 of Sec. 300 of the I. P. C. runs as under:

300 Except in the cases hereinafter excepted culpable homicide is murder if death or - 2 ... ... ... ... ... 3 If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or 4 If the person committing the act knows that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Now what is required to be considered is clause 3rdly. For that purpose what is required to be established is as under:

1 The prosecution must establish quite objectively that a bodily injury is present; 2 The nature of injury must be proved. These are purely objective investigations. 3 It must be proved that there was an intention to inflict that particular injury that is to say that it was not accidental or unintentional or that some other kind of injury was not intended; 4 It must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.

Out of the four ingredients which are required to be proved in the case we have to see that whether in this particular case there was an intention to inflict this particular injury on Lila in the sense that some other kind of injury was not intended. To our mind the only intention could be to cause a bodily injury with a knife. Attributing it any thing further and to say that he intended to cause this particular injury at this particular place and he never intended to inflict some other kind of injury by the knife would be stretching the case too far and the resultant effect would be that if Lila had died accused would not have been guilty for murder but would have been guilty for culpable homicide not amounting to murder.This view is taken in the case of HARJINDER SINGH V. DELHI ADMINISTRATION AIR 1968 S. C. 867. There the scope and applicability of sec. 300 Thirdly and sec. 304 were considered. Intention of accused to inflict the particular injury on the particular place was not proved. It was held that sec. 300 Thirdly could not apply. It was further held on facts that it was quite legitimate to hold that the accused struck the deceased with the knife the intention to cause an injury likely to cause death and that therefore the offence fell under sec. 304 part I. Now if the police constable Lila had died the accused could have been convicted under sec. 304 Part I or under sec. 304 Part II depending upon the injury. In these circumstances this act would not be an offence under sec. 307 I.P.C. Further here the injury was neither sufficient in ordinary course of nature to cause death nor it was likely to cause death. The police constable did not die. He even did not receive a grievous injury. Normally a man is presumed to know the result of the act that he does and he is required to be punished accordingly. Here the injury found is a simple injury and therefore the accused would be only liable for the injury which he causes. Accused No. 6 was also guilty for an offence under sec. 224 I P.C. inasmuch as he escaped from the custody of the Police Constable who lawfully arrested him by offering resistance to him. That offence is also punishable for a term which may extend to two years. Accused Nos. 1 to 5 could be held guilty for the offence under sec. 225 for resisting the lawful apprehension of other person namely accused no. 6. The punishment prescribed is two years. Again accused no. 6 is held guilty for an offence under sec. 324 I P C. The punishment is three years. Though the policeman were in plain dress as accused no. 6 was arrested the immediately knew 332 of the I.P.C. There the punishment prescribed is for three years. So far as sec. 149 of the I.P.C. is concerned no resort can be taken to that section because sec. 149 reads as under:

149 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.

It is therefore difficult to hold that accused nos. 1 to 5 knew that accused no. 6 had a knife with him. Even if that section was required to be resorted to the highest punishment for accused no. 6 could be awarded as we have stated for all the offences would be three years.

(10) So far as sec. 135 of the Bombay Police Act 1951 is concerned only accused no. 6 can be punished and that section lays down that the minimum imprisonment of four months should be given and the maximum prescribed is one year. Now considering all these circumstances one more thing is required to be stated that accused nos. 1 to 5 are in jail from 23-12-1982. Seven months are over and we believe that they have undergone imprisonment for injuring the police constables by throwing the stones. Coming to the sentence of accused no. 6 he was first arrested on 21-12-81 and thereafter he was released on bail on 23-3-1982. Thus he remained in jail for about three months as undertrial prisoner. Thereafter he is in jail for last about seven months as he was convicted on 23-12-1982 and none of the accused persons during the pendency of the appeal are released on bail except accused no. 1 who was released on bail upto 11-7-1983 which order was passed on 11-3-1983 meaning thereby that during the period of 7 months he remained on bail for about 4 months. He was released on bail because his wife was a T. B. Patient. Considering the fact that the accused nos. 2 to 4 remained in jail for seven months and accused no. 1 remained in jail for 3 months and considering the fact that he was released on bail on the ground that his wife was suffering from T.B. no useful purpose would now be served by keeping the accused any longer in jail. Sentence undergone therefore would serve the purpose. However the sentence of fine is maintained.

(11) So far as accused no. 6 is concerned we have come to the conclusion that he is guilty for offences under secs. 332 224 and 148 I.P.C. and 135 of the Bombay Police Act. We do not think that any useful purpose will be served by keeping him in jail any longer. The sentence of fine is maintained. If any accused has not paid the fine he shall undergo the sentence imposed in default thereof. The appeal is allowed to that extent and the sentences imposed upon the accused are reduced accordingly. The accused to be released from jail forthwith if they have paid the fine unless required in connection with some other offence. Appeal partly allowed.