Gajanand and Ors. vs State of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 18 March, 1954

Coram: Ghulam Hasan

In this case, the Court noted that the appeals were filed after special leave was granted on different dates and arose from two separate judgments of the Allahabad High Court dated 20 March 1950. The matters concerned a violent disturbance that took place at Manikarnika Ghat in Banaras on 9 December 1947 at about one o’clock in the afternoon. The Court decided to hear both appeals together and to dispose of them in a common judgment. The plan prepared for the trial showed that Manikarnika Ghat contains a water tank known as the Manikarnika Kund. Directly to the south of the Kund there is a narrow lane approximately seven feet wide, and further south a stone platform called “Takhat Hazara.” To the east of Takhat Hazara lies the Takhat of Gajanand; east of that is Sindhia Ghat. On the west side of Takhat Hazara a stone-paved platform stands, and to the west of this platform is a place named “Charan Paduka.” South of that platform is Chunawali-Marhi, where the Takhts of Anjaninandan are kept. West of Takhat Hazara there is an area called Dasgatra, the usual venue for Daswan ceremonies. The Court observed that two rival groups of Pandas operate at the Ghat, one led by Anjaninandan and the other by Gajanand. The Pandas, as is well known, attend to the needs of pilgrims visiting Banaras, and it is a matter of common knowledge that a long-standing enmity exists between the two groups. It was not disputed that a riot broke out on the stated date and time at Manikarnika Ghat. During the disturbance the group of Gajanand lost a member identified as Sukkhu, and the entire party sustained thirty-one injuries; the deceased Sukkhu alone suffered four wounds comprising incised, contused, lacerated injuries and abrasions. The injuries suffered by the Anjaninandan side were fewer and less serious, totaling ten. Both parties admitted that they were armed with sharp-edged weapons. Two contemporaneous reports were filed: one at one o’clock by Chammar, a servant of Gajanand, at Police Station Chowk located two furlongs from the incident, and another at one-thirty by Raghunath Dube on behalf of the rival group. The two accounts presented contradictory narratives. The first account claimed that while the Daswan ceremony of Pandit Raghunath Sharma was being performed at Chunawali-Marhi and the participants were having their heads shaved, fifteen or sixteen persons, including Gajanand, advanced and began assaulting the party of Anjaninandan. The opposite version asserted that Gajanand, together with his servants, was engaged in performing a puja for a pilgrim from Nepal when Anjaninandan and his men, armed with gandasas and spears, arrived and demanded a quarter of the offering; Gajanand’s refusal provoked Anjaninandan to insult him and order an attack, leading Gajanand’s men to defend themselves.

During the confrontation, Anjaninandan demanded a one-quarter share of the offering that Gajanand had received, and Gajanand refused to comply. Angered by this refusal, Anjaninandan verbally abused Gajanand and ordered his men to attack. In response, the men of Gajanand defended themselves and struck back, claiming they acted in self-defence. The resulting riot inflicted a variety of injuries on members of both parties, and the individual known as Sukkhu was killed.

A total of fifteen persons belonging to Gajanand’s group and twelve persons belonging to Anjaninandan’s group, including the two leaders of each side, were charged and sent to trial. The charges against both groups included offences under Section 147 of the Indian Penal Code, as well as offences under Sections 325 in conjunction with 149, 324 in conjunction with 149, and 323 in conjunction with 149. In addition, the members of Anjaninandan’s group faced an extra charge under Section 302 in conjunction with 149 for the murder of Sukkhu.

Two separate trials were conducted. The learned Sessions Judge convicted five members of Anjaninandan’s group, imposing various terms of imprisonment. The judge also found them guilty under Section 302 in conjunction with 149 and sentenced each of those five to life transportation. The judge further held that Lalji, a member of the same group, had delivered the fatal blow to Sukkhu with a gandasa and consequently imposed the capital punishment on him.

In the cross-case, all of the accused were acquitted on the ground that the prosecution’s version of events was intrinsically improbable and could not be accepted. The five convicted persons from Anjaninandan’s side appealed to the High Court, while the State appealed the acquittal order. The High Court, after reviewing the evidence, acquitted Lalji and another accused on the basis of reasonable doubt, but it upheld the conviction and sentences of the remaining accused on the various charges. In the State’s appeal, four persons identified as Gajanand, Dasu, Bathe and Chammar were convicted. They were sentenced under Section 147 of the Indian Penal Code to two years’ rigorous imprisonment, and under Sections 324 in conjunction with 149 and 323 in conjunction with 149 to three years’ rigorous imprisonment each, with all sentences to run concurrently. Both parties subsequently obtained special leave to appeal.

In addressing the appeal of Gajanand and the other respondents, the High Court examined the evidence and the circumstances surrounding the incident. The Court recorded that the disturbance took place while Gajanand was entertaining a pilgrim from Nepal, and that the immediate cause of the riot was the dispute raised by Anjaninandan, who claimed he was entitled to a share of the offerings made by Gajanand. The Court rejected the version presented by Anjaninandan’s party, which alleged that Gajanand’s party had attacked them at Chunawali-Marhi during the Daswan ceremony, describing that version as incredible. Instead, the Court found, to its satisfaction, that the fight occurred in a narrow lane or path, as asserted by Gajanand’s group. In reaching this conclusion, the judges were understandably influenced by the presence of blood-stained marks in the narrow lane and the complete absence of such evidence at Chunawali-Marhi. After stating these findings, the Court observed that the dispute appeared to have arisen between Raghunath Dube and Gajanand’s men who were positioned on the takhat, while Gajanand himself was at the ghat below; and, given the longstanding enmity between the two groups, the situation provided an opportunity for a fight that seemed predetermined.

The Court observed that there were two opposing groups and that the presence of these two groups gave them an occasion to engage in a fight, a situation that appeared to have been predetermined. According to the findings, the men associated with Gajanand left the vicinity of Gajanand’s takhat, while the complainant’s party departed from the location where the Daswan ceremony was being performed. Both groups were armed with lethal weapons and engaged in combat with one another. The Court stated that neither side could be described as having acted in self-defence. Counsel appearing on behalf of the appellants argued that this observation conflicted with the earlier finding of the High Court and that the High Court, on appeal, had invented a new case that had neither been raised by the opposing side nor been established by the Sessions Judge. The counsel further contended that if the narrative that Gajanand, accompanied by fourteen persons, left his takhat to launch an attack on Anjaninandan’s group at Chunawali-Marhi is found to be false and is rejected, and if instead the version that the confrontation occurred in the narrow lane is accepted, then it necessarily follows that the party of Anjaninandan were the aggressors and that Gajanand’s party acted in self-defence. The Court noted that the High Court’s view—that Gajanand’s men moved from near his takhat and that the opposing side also moved from the site of the Dasawan ceremony in order to engage in a “free fight”—was based merely on conjecture and was not supported by admissible evidence.

The Court referred to the definition of a “free fight” given by Harrison J in Ahmad Sher v. Emperor, AIR 1931 Lah 513, wherein a free fight is described as a situation in which both sides intend from the outset to fight, go out to fight, and engage in a pitched battle, making the question of who attacks and who defends immaterial and dependent only on the tactics adopted by the rival commanders. Applying this principle, the Court concluded that a free fight could not be said to have existed in the present matter because the High Court had clearly found that the party of Anjaninandan were the aggressors. Considering the High Court’s finding that the riot took place in the narrow lane as a result of a dispute over the Nepali pilgrim, and noting that Gajanand’s party suffered a greater number of injuries, including a fatality, the Court held that it was obvious that Gajanand’s party could not be characterized as constituting an unlawful assembly. The Court observed that Gajanand’s party was engaged in the peaceful performance of worship at their own takhat and was occupied with the puja for the Nepali pilgrim; there was no suggestion that they were members of an unlawful assembly at that time, nor any material to justify a conclusion that they became members thereafter. It was the party of Anjaninandan that left its place and approached Gajanand’s takhat, apparently to contest the offerings made by the Nepali pilgrim, and they arrived armed with deadly weapons. One of them delivered a severe blow to Sukku, causing his death, and others sustained as many as twenty-seven serious injuries. In these circumstances the Court found that the notion of a pre-determined trial of strength or a free fight was untenable.

The Court observed that the factual matrix did not permit a suggestion that both groups had entered the encounter with a pre-determined intention to test each other's strength in an open fight. The members of Gajanand’s group suffered the most serious injuries, and although they also caused injuries to the opposing side, those injuries were sustained in the legitimate exercise of self-defence. Counsel for the State was unable to identify any material on record that demonstrated a transformation of Gajanand’s party from a lawful assembly at its inception to an unlawful one thereafter. Consequently, the Court held that the convictions and sentences imposed on Gajanand and his associates under Section 147 and Sections 324/149 as well as 323/149 of the Indian Penal Code could not be sustained. The appellants had originally been acquitted by the Sessions Judge, but the High Court had convicted them on an appeal filed by the State. The Court found that the circumstances did not warrant interference with the Sessions Court’s order of acquittal. Accordingly, the appeal was allowed, the convictions and sentences were set aside, and the appellants were ordered to be released immediately.

The Court then turned to the second appeal concerning the persons alleged to belong to the party of Anjaninandan. Twelve individuals had been prosecuted in relation to the incident. The Sessions Judge had convicted six of them while acquitting the remaining six. On appeal, the High Court upheld the acquittal of two persons, one of whom, Lalji, had previously been convicted and sentenced to death, and it affirmed the convictions of four others, namely Raghunath Dube, Baij Nath, Paras Nath and Ramutar. The Court noted the divergent outcomes at the various stages of adjudication and prepared to examine the legal basis for sustaining those convictions.

Representing the appellants, Dr. Tek Chand contended that the conviction of the four accused under Section 302 in conjunction with Section 149 of the Indian Penal Code lacked legal support. The defence relied on medical testimony indicating that the deceased, Sukkhu, died as a result of shock and haemorrhage stemming from a skull fracture and brain injury caused by a sharp-edged weapon. The fatal injury, labelled as “injury No 1,” was described as an incised angular wound measuring six and a half inches in length on the top of the head, extending from the front backward and to the right, and requiring eleven stitches. According to the prosecution’s case, the accused Lalji possessed a gandasa, while another individual, Mullu, who had been acquitted by the Sessions Judge, had a sharp-edged weapon. The defence argued that none of the appellants were in possession of any sharp-edged weapon, and therefore they could not be convicted under Section 302/149 unless it could be shown that they had knowledge that a member of the assailant’s party was armed with a deadly weapon or that such a weapon would be used to cause death.

In support of its analysis, the Court referred to the judgment in Ram Charan Rai v. Emperor, AIR 1946 Pat 242, which held that under Section 149 liability of other members for an offence committed during the continuation of the occurrence depends upon whether those members knew, before the offence, that the act was likely to be committed in pursuit of the common object. Such knowledge may be inferred from the nature of the assembly, the presence of arms, or the behaviour observed at or before the scene. The Court agreed with this principle and examined whether the knowledge required by Section 149 could be attributed to the appellants, who themselves were not armed with sharp-edged weapons. The evidence showed that the appellants were equipped only with lathis, which could possibly explain injuries numbered two and three on Sukkhu’s left arm and left hand, but did not justify holding them liable for murder under Section 149. Only two persons present at the incident were found to be armed with deadly weapons; both of those individuals had been acquitted, and a third person, Sosa, alleged to have possessed a spear, remained at large. The Court concluded that there was insufficient evidence to impute to the appellants any knowledge of the existence of deadly weapons, let alone an intention that such weapons would be employed to cause death. Accordingly, the Court held that the appellants could not be found guilty of the offence under Section 302 in association with Section 149 of the Indian Penal Code.

In applying the law, the Court affirmed that liability under Section 149 of the Indian Penal Code depends on whether the other members of the assembly possessed knowledge that the offence was likely to be committed in furtherance of the common object. The Court held that if such knowledge cannot be reasonably attributed to the members, their liability for offences committed during the occurrence does not arise. The question before the Court was whether this knowledge could be imputed to the appellants, who themselves were not armed with any sharp-edged weapon. The record was found to be completely silent on any such knowledge. The evidence showed that the appellants were equipped only with lathis, which might explain the injuries numbered two and three on Sukkhu’s left arm and left hand, but there was no basis for holding them liable for murder by invoking Section 149. The prosecution proved that only two persons had deadly weapons, both of whom were acquitted, and that another individual, Sosa, alleged to have possessed a spear, was at large. Consequently, the Court was not prepared to attribute any awareness of the presence of deadly weapons to the appellants, let alone the intention to use such weapons to cause death. Accordingly, the Court held that the appellants were not guilty of the offence punishable under Section 302 read with Section 149 of the Indian Penal Code, and therefore set aside their conviction and the sentence of transportation for life. The Court noted that this decision did not terminate the proceedings, as the appellants remained convicted under several other provisions.

The appellate record showed that the appellants had been sentenced under Section 147 of the Indian Penal Code and under Sections 323, 324 and 325, each read with Section 149, with rigorous imprisonment terms of two years, one year, three years and five years respectively, the sentences to run concurrently. The trial court had found the appellants to be the aggressors, a finding supported by the material on record, and the Court regarded this finding as binding. Hence, the Court saw no reason to disturb those convictions or the accompanying sentences. The defence contended that the trial was vitiated because the prosecution had not been conducted fairly, highlighting the High Court’s strong criticism of the investigation, particularly the police’s failure to produce the police diary despite repeated reminders. While the Court declined to pass on the fairness of the trial, it noted that such irregularities did not affect the merits of the case. The High Court, fully aware of these defects, had nevertheless commented severely on the prosecution’s conduct but still arrived at an adverse finding against the appellants concerning their participation in the offence. In the final analysis, the Court partially allowed the appeal by overturning the conviction and sentence under Section 302 read with Section 149, but dismissed the remainder of the appeal and upheld the convictions and sentences imposed by the High Court for the other offences.