CHANDER PAL @ RAJ PALversusSTATE OF HARYANA

                   CHANDER PAL @ RAJ PAL                               A
                                  v.
                       STATE OF HARYANA

                          OCTOBER 16, 2003

       [K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.]                    B

     Penal Code, 1860 :

     Ss. 3021149, 3261149-Common object-Unlawful assembly-
Members armed with deadly weapons-Attacking the victims-Meanwhile C
one more person from the side of victims appeared on the scene and
accused started assaulting him-One of the accused shot him as a result
of which he died later-Conviction uls 3021149 by courts below-Accused
who shot at the deceased not filing appeal-Held, there is no evidence to
show that the unlawful assembly had any common object to do away with · D
the deceased-No motive or enmity on the part ofaccused alleged against
deceased-No evidence to indicate that the other accused were aware that
one of them was armed with a pistol-It cannot be said that unlawful
assembly was to cause death ofthe deceased-Object of unlawful assembly
must have been to cause injuries to complainant party-So, the offence
committed by appellants would come uls 3261149-Appellants convicted E
accordingly.

    CRIMINAL APPELLATE JURISDICTION : Criminal appeal No.
744 of 2003.
                                                                        F
    From the Judgment and Order dated 18.9.2002 of the Punjab and
Haryana High Court in Crl. A. No. 174-DB of 1999.

                                WITH

     Crl. A. No. 745 of 2003.                                          G

     P.S. Mishra, A.T.M. Rangaramanujam, Rakesh K. Khanna, Rajeev
Singh, Ms. Ritu Jalali, H. Tatakat, Amitesh, Ms. Ranjana Narayan, Adv.
for Rajesh Prasad Singh, Aftab Ali Khan and V. Balalji for Variner Kumar
Sharma for the Appellants.                                               H
                                  865
    866                SUPREME COURT REPORTS {2003] SUPP. 4 S.C.R.

A         D.P. Singh, V.K. Garg and Avneet Toor for the Respondent.

          The Order of the Court was delivered :

          Eleven accused persons were tried by the Additional Sessions Judge,
B Faridabad for the offence punishable under section 148, 302/325 324, 323
    and 412 read with section 149. The Sessions Judge convicted seven out
    of eleven for the offence punishable under section 302 read with section
    149 and also for the various other offences for which they were charged.
    These seven appellants filed appeal before the High.Court and the Division
C   Bench of the Punjab & Haryana High Court acquitted two of them. As
    regards the five other accused, the High Court confirmed the conviction
    and sentence imposed on them. Criminal Appeal No. 744/2003 is the
    appeal preferred by one of the convicted persons, namely Chander Pal @
    Raj Pal. Criminal Appeal No. 745/2003 is filed by the Rakesh, Shiv Kumar
D   alias Shibbu and Anang Pal. Sunder, who was also convicted along with
    these appellants, has not filed any appeal challenging his conviction and
    sentence.

          The incident took place on 11.7.1996 at about 4.00 a.m. at place
    called Ballabhgarh in Haryana State. PW-4 Mann Singh and PW-6
E   Surinder Singh were milking their cows in their cattle shed. According to
    the prosecution about' I 0 to 12 persons including these appellants came to
    that place and attacked PW-4 Mann Singh and PW-6 Surinder Singh with
    lathi and ballam. At this time Megh Shyam came to the place and on seeing
    him all the accused surrounded him and attacked him with Ballam, Pharsa
F   and Lathi. Accused Surinder was armed with a country ma~e Pistol and
    he shot Megh Shyam and caused injury on his head. All the appellants left
    the place with their weapons of offence. PW-4 and PW-6 and one Giani
    Singh also sustained injury. PW-4 and PW-6 and Megh Shyam were taken

G
    to B.K. Hospital and as the condition of Mann Singh was serious, he was
    referred to Safdarjung Hospital, Delhi. On a telephonic information being
                                                                                  ..
    received by ASI Ram A vtar, he went to the hospital and recorded the
    statement of Mann Singh. Pursuant to that, crime was registered against
    accused persons. PW-16 conducted the investigation and questioned the
    witnesses and finally filed the charge-sheet implicating all the eleven
H   accused.
                CHANDER r,AL @ RAJ PAL v. STA TE                       867

      We heard Shri P.S. Mishra, the learned senior counsel for the A
appellant Chandra Pal @ Raj Pal and Mr. A.T.M .. Rangaramanujam, the
learned senior counsel for appellants Rakesh and Ors. and also counsel for
the State. The counsel for the appellant contended that the evidence
adduced by the prosecution would only show that the object of the unlawful
assembly was not to cause the death of Megh Shyam and reliance was B
placed on the testimony of PWs. 4 and 6. Our attention was drawn to the
injuries sustained by Megh Shyam,,PW4 and PW6 and also Gian Singh,
who was not examined in this case. It was pointed out that the motive for
committing this crime was that the daughter of Beera eloped with some
person and Beera Singh had filed a complaint against PW4 Mann 'Singh
and his brother Surinder and on account of this there was enemity between C
Beera Singh and his sons on the one hand and Mann Singh and his brother
on the other. We have carefully considered the evidence adduced and it
would show that the appellants came to the place of incidence to teach a
lesson to PW-4 and PW-6. These two witnesses had not suffered very
serious injuries. Of course, one of the injuries sustained by PW-4 is D
grievous in nature. When these witnesses were being attacked Megh Shyam
came there and the accused persons turned against him. There is no
evidence to show that the unlawful assembly had any common object to
do away with the Megh Shyam. Prosecution has not even alleged any
motive or any enemity on the part of the accused persons against Megh E
Shyam. It is also important to note that incident happened ·at 5.00 a.m. and
all the appellants allegedly came with various types of weapons. There is
no evidence to indicate that these appellants were aware that Surinder was
armed with a country made gun. It is quite possible in that frenzy, Surinder
 must have taken weapon and caused injury to Mann Singh and that resulted
 in his death. Under these circumstances, it is difficult to assume that the F ·
 unlawful assembly was to cause death of Mann Singh and in our opinion
 the sessions Judge as well as the High Court erred in convicting these
 appellants for the offence under section 302 read with section 149.

       The next question that would arise for consideration is what would G
be the common object of the unlawful assembly. We have gone through
the medical certificate of the PW-4 and PW-6 and deceased Megh Shyam.
It is clear that these appellants had caused grievous injuries to these Megh
Shyam and PW-4. These appellants were carrying weapons like Phrasa,
Ballam and Lathi. They are admittedly weapons of offence. It is clear that H
    868                 SUPREME COURT REPORTS [2003) SUPP. 4 S.C.R1
A the object of the unlawful assembly must have been to cause grievous
    injuries either to PW-4 of PW-6 or Megh Shyam. That being so, the offence
    committed by these appellants would come under section 326, IPC read
    with section 149.

B        In the result, we acqui.t the appellants for the offence punishable under
    Section 302 read with section 149 and instead convict the appellants for
    the offence punishable under section 326 read with section 149. These
    appellants have also been convicted for various other minor offences, and
    we are not interfering with the conviction and sentence on these counts.
    For the offence punishable under section 326 read with section 149 they
C   are sentenced to undergo imprisonment for a period of 5 years and a fine
    of Rs. 20,000 each, in default they have to suffer sentence of one year.

           The appeals are disposed of to the above ·extent.

    R.P.                                                       Appeals disposed.