Allahabad High Court
Rambir Singh Son Of Tej Singh And Ors. vs State Of U.P. on 11 October, 2007
Author: Imtiyaz Murtaza
Bench: Imtiyaz Murtaza, R.N. Misra
JUDGMENT Imtiyaz Murtaza, J.
1. The above appeals have been filed against the judgment and order dated 12.6.1991 passed by Special Judge (E.C. Act), Aligarh in S.T. No. 159 of 1990 convicting and sentencing the appellants to undergo for life imprisonment under Section 302/149 I.P.C., under Section 307/149 I.P.C. to undergo R.I. for 5 years, under Section 452 and 148 I.P.C. to undergo 2 years R.I. each.
Both the appeals have been heard together. The Criminal Appeal No. 1146 of 1991 shall be treated as the leading appeal.
2. In this case, the incident has its genesis in the election rivalry between the accused persons on one hand and the deceased on the other hand. The occurrence is stated to have taken place at about 4.30 p.m. at Nagla Danda within the circle of P.S. Pisawa. The fracas, it would appear, erupted when the accused persons imputed the First Informant to have prevented certain persons from voting in a recently concluded election for Member of legislative Assembly. Initial bickering conflagrated into frayed temper and then followed the assault resulting in the loss of two lives and injuries to as many as seven persons. The first informant is one Man Singh who lodged the F.I.R. at Police Station Pisawa on 23.11.1989 at 7 p.m. The village where the incident occurred lies at a distance of about 15 Kms from the Police Station.
3. The facts forming back ground are that in the last election, Tek Chand father of the First Information had romped home and had been elected Pradhan which led to estrangement between the two sides. Prior to occurrence, Rajveer Singh accused had moved no confidence motion against the deceased and this resulted in reelection in which again the deceased won the election and was installed as Pradhan. Another causative factor for the annoyance of the accused persons was stated to be the wedding of Preetam Singh brother of the First Informant in the family of Vijendra Singh of Mahrauli (Delhi). It is stated that earlier the marriage was settled with Bhoj Raj Singh son of accused Ram Veer Singh and subsequently the girl's family snapped the betrothal on coming to know that the father of Bhojraj Singh had betaken a second wife and Bhojraj Singh was born of the 1st wife of Raj veer Singh and settled the marriage with Preetam Singh which was due to be solemnized after about one or two months. On the day of occurrence, i.e. 23.11.1989 at about 4.30 p.m. there took place heated exchange between the first Informant and Raj Veer Singh on first informant being accused by Raj Veer Singh that he had prevented certain voters from voting in the election which led to frayed tempers and thereafter Raj Veer Singh is said to nave left the place in a huff threatening to settle scores with the victim and after a short while he came back to the spot armed with his licensed gun accompanied by Mukut Satish, Bhojraj, Ramvir, Ashok and Udai Veer who are said to be armed with country-made pistols and after gaining entry into the house, Ram Veer Singh ignited attack and to begin with he opened fire at his. father while his accomplices in the crime also started firing. It is further stated that Tek Chand his father and Preetam Singh his brother succumbed to injuries instantaneously while the sister-in-law of Preetam Singh, namely. Sukhbiri sustained firearm injuries. It is further alleges that when other persons present on the scene namely Daryab Singh, Rajendra Singh, Nawab Singh, Ram pal Singh, Ravindra Singh and Sukhpai tried to intervene, they were also assaulted and sustained fire arm injuries. Vikram Singh brother of First Informant escaped attack narrowly. The incident is said to have occurred in the presence of Badan Singh Devi Ram and other family members who were present in the house.
4. The investigation was taken up by Zulfikar Ahmad, Station Officer of P.S. Pasawa who commenced investigation by reaching the place of occurrence where he prepared the site plan Ext. Ka 32. The inquest report and other relevant papers were processed on his direction by S.I. Raj Singh and thereafter, he recorded the statements of Man Singh, Smt. Sukhbiri, Sukhpal and other family members and recovered empty cartridges and bullets and prepared recovery memo marked as Ex. Ka 33. After the conclusion of Investigation, the charge sheet Ex.ka 34 was filed in the Court.
5. The autopsy on the bodies of Preetam Singh and Tek Chand was conducted by Dr. R.P. Gupta. The Doctor found following ante mortem injuries on the person of the deceased Preetam Singh.
1. Gun shoe wound of entry measuring 0.6 cm. X 0.6 cm x cavity deep to 0.8 cm x 0.8 cm x cavity deep on the following part. One at each part.
(i) Middle of Menubrium sterni.
(ii) Epigastrium.
(iii) 6 cm below the umbilicus at 5 O'clock position.
(iv) (Lt.) side of chest 8 cm. Below the nipple at 6.30 O'clock position.
(v) Upper part of (Rt.) exilla.
(vi) (Rt.) side of abdomen 20 cm. Away from umbilicus at 10 O'clock position.
No wound of exit seen. No blackening & charring seen.
2. G.S. Wound of entry (Lt) front of (Rt) elbow joint. No wound of exit. No blackening & charring seen. Measuring each 0.8 cm. X 0.8 cm. X skin to muscle deep, causing of humerus & radius and ulna (Rt) side.
The doctor opined the death due to shock and hemorrhage as a result of injuries.
6. On the person of deceased Tek Chand the Doctor found the following ante-mortem injuries.
Gun shot wound of entry on following parts measuring 0.4 cm. X 0.4 cm. X skin to cavity deep on following parts. No blackening & charring seen. No wound of exit seen.
(i) One on (Lt) side of head. 13 cm above the (Lt) ear.
(ii) Two over body of sternum.
(iii) Six wounds on front of (Lt) shoulder.
(iv) Two wound on (Lt) In this case also, the Doctor opined death due to shock and haemorrhage as a result of injuries noted in ante mortem injuries.
7. Dr. S.C. Agarwal medical officer, P.H.C. examined the injured on 24.11.1989 at 1.30 a.m. namely Nawab Singh, Ram Pal Singh, Ravindra Singh, Rajendra Singh and Smt. Sukhbiri and Dariyab Singh. All the injured witnesses were found to have sustained firearm wounds of different dimensions.
8. The accused persons repudiated the charge and claimed to be tried. However, they pleaded their false implication in the case on account of enmity.
9. The prosecution examined 10 witnesses out of whom P.W. 2 Smt. Sukhbiri and P.W. 3 Sukhpal are the injured witnesses who have sustained fire-arm injuries.
10. P.W. 1 Man Singh is the First Informant and son of deceased Tek Chand. He deposed that while he was sitting near his house, two accused persons namely Ramvir and Rajvir flung accusation at him that he had prevented certain voters from casting their votes in the election held for electing M.L.A. which he refuted. The accused persons thereafter hurled abuses at him and left the place threatening that they would settle scores with him. It is explained in his deposition by the witness that his house lies at a distance of about 30 to 35 paces. After a short while, proceeds the deposition, the accused persons came back out of whom Rajvir was armed with his licensed gun while other accused persons namely, Ramvir Mukut, Satish Ashok Udaiveer and Bhojraj were equipped with country made pistols. He further deposed that seeing them, the witness ran into the safety of his house but he was hotly pursued and when Tek Chand deceased, father of the witness, tried to rescue him, Rajveer, ignited attack exhorting the other co-accused persons to kill and he himself fired upon Tek Chand and on receiving gun-shot injuries, Tek Chand fell down. Thereafter, it is further deposed, the accused persons opened fire from their country made pistols. His brother Preetam Singh was also fired upon and he fell down and succumbed to injuries. In the firing, Sukhviri his sister in law, Ravindra, Sukhpal, Dariyab Singh, Raj Pal Rajendra Singh, Nawab Singh and Rampal Singh also sustained fire arm injuries. He explained in his deposition that the aforesaid injured persons had collected at his house for smoking Hukka. He further explained in his deposition that accused Ashok and Udaiveer are sons of Rajvir while Bhojra; is the son of Bhojraj, Rajvir and Ramvir are real brothers, Mukut and Satish are nephews of Rajvir and Ramvir and are also real brothers and sons of kartar Singh. He also deposed about previous enmity stating that a no confidence motion was moved against his father who had been elected Pradhan of the Village which led to re-election and on second time also, his father won the election and this left them annoyed. He also referred to another circumstance which aggravated the relations between them. According to him, the marriage of Bhojraj son of Ramvir had been settled with the daughter of Vijendra Singh and subsequently, Vijendra Singh declined marriage on gathering information that his father had betaken a second wife and instead, agreed to marry his daughter to Preetam Singh deceased which was to be solemnized after one or two months of the occurrence and on this count also, they nurtured ill-will against them and had once menaced them with dire consequences.
11. The second witness is Smt. Sukhbiri arrayed as P.W. 2. She happens to be sister-in-law of the First Informant and in the occurrence, she also sustained injuries. From a scrutiny of her deposition, it would appear that she lent affirmance to the statement of P.W. 1 in all essential details. Deposing about her presence at the time of occurrence, she stated that she had been there to see her ailing brother-in-law Preetam Singh and also to bandage his injuries and at that time, Tek Chandra, Preetam Singh and Mam Chandra and Veeresh her sister in law were present in the house. She further deposed that all the accused persons namely Rajvir, Ramvir, Mukut, Satish, Bhojraj, Ashok and Udaiveer raided the house out of whom Rajvir was carrying a gun and other accused persons were armed with country made pistols. She explained in her deposition that the accused persons were known to her as they belonged to the same village. She further deposed that the accused persons opened fire on Tek Chand and thereafter on Preetam Singh who died on the spot. She also deposed that the accused persons also opened fire on her, Sukhpal, Dariyab Singh, Rampal Ravindra Nawab Singh and Rajendra Singh who all sustained fire am injuries.
12. The 3rd ocular witness is Sukhpal who is arrayed as P.W. 3. This witness is also an injured witness. He deposed that at the time of occurrence, he was smoking Hukka sitting in the Baithak of Tek Chand alongwith Nawab Singh, Rajendra Ram Pal Duriyab and one other person. He heard the firing and noticed that accused persons namely Rajvir, Ashok Udaiveer, Mukut, Satish Ramvir and Bhojraj were firing in the courtyard of Tek Chand and in the occurrence, Tek Chand and Preetam Singh died on the spot. He initially denied to have witnessed any one being injured in the occurrence but subsequently, recalled that Sukhbiri had received firearm injuries. He further deposed that they remonstrated with the accused persons who also opened fire on them and as a result, he alongwith Nawab Singh, Rajendra Rampal, Dariyab and one other person also sustained injuries.
13. P.W. 4 to P.W. 10 are formal witnesses. P.W. 4 is Dr. R.P. Gupta who conducted autopsy on the dead bodies of deceased Preetam Singh and Tek Chand, P.W. 5 is Manik Chand H.C. No. 150 who proved Ex. 4 and 5, which are Chik F.I.R. and copy of G.D. entry. P.W. 6 Raj Singh is the Sub Inspector who had prepared inquest on the dead body of Tek Chand and proved Ex.ka 6. He also proved Ext. Ka 7 and ka 8 to Ka 12. He also proved Ex ka 13 i.e. inquest memo on the dead body of deceased Preetam Singh and also Ex. ka 14 to 19. P.W. 7 Dr. A.K. Gautam is Radiologist. He proved x ray examination report of Sukhpal Ex. Ka 22. he also proved x ray examination report of Ravindra which are Ex.t ka 23 and ka 24. P.W. 8 is constable Ganga Saran who deposed that he had accompanied Inspector Raj Singh alongwith two Home-guards namely Udaiveer Singh and Devendra Kumar and in his presence, Inspector had prepared the inquest memos on the dead bodies of Tek Chand and Preetam Singh which are Ext, ka 6 and Ka 13. He further deposed that dead bodies were sealed and handed over to him which he and Home-guards took to the mortuary. P.W. 9 is Dr. S.C. Agarwal who medically examined injured witnesses arid proved injury reports Ex Ka 25 to Ka 31. P.W. 10 is Zulfekar Ahmad S.H.O. of P.S. Pisawa. He investigated the crime and prepared site plan Ex.ka 32. He also proved Ex.ka 33 i.e. recovery men o and Ex. Ka 34, charge sheet which he submitted in the court after conclusion of investigation.
14. On behalf of defence, Om Prakash Mani Trlpathi, Ballistic Expert was examined as D.W. 1. From a scrutiny of post mortem report of Preetam Singh, he opined that looking to dispersal of the pellets which is about 1 feet, the distance of firing maybe about 35-36 feet. He also opined in his deposition that the injuries are also possible from single shot. From a scrutiny of post mortem report of Tek Chand deceased, he opined in his deposition that injuries of Tek Chand are dispersed in an area of about 1 feet and looking to the dispersal, it appear to him that he was fired upon from a distance of 34 to 35 feet. On a scrutiny of injury report of Smt. Sukhbiri, the witness opined that her injury is from a single pellet and it is the result of firing from a distance of 15-20 feet. He explained that he has based his opinion on a scrutiny of penetration of the wound.
15. The learned Counsel for the appellant assailed the judgment and order of the court below citing that the prosecution case bristled with following infirmities and contradictions.
1. The first argument of the learned Counsel is that independent witnesses were available but they were withheld. He tried to impeach the prosecution case arguing that only two ocular witnesses were examined who too ware closely related to deceased being sons and therefore their evidence cannot be acted upon for basing conviction against the appellants.
2. He also assailed the investigation istating to be tainted. In this connection, he drew attention to overwriting in the inquest report about the exact time or arrival of Investigating officer. He also drew attention to second page of inquest report in which it stated that it is clearly visible that sections have been added. He also drew attention that even G.D. number is also added subsequently attended with further argument that in the photo lash and other police papers crime number etc. is not mentioned. He also drew attention to Chithi Mazroobi stating that crime number is conspicuous by its absence. Ultimately, he argued that the prosecution has not come with clean hands inasmuch as it has withheld many injured witnesses who had received injuries.
3. He also argued that leading role is assigned to Rajveer of opening fire on deceased Tek Chand and Preetam Singh who died from single shot while injured persons have received only stray pellets.
4. He then argued that presence of P.W. 2 is shrouded in doubt inasmuch as she claimed to have come to the house for bandaging the injuries of deceased Preetam Singh but this fact was not disclosed to Investigating officer and as such he argued her explanation about presence at tee time of occurrence in the house is not acceptable. He also argued that injuries said to have been sustained by he appear to have been manufactured to portray herself as injured witness.
5. He then doubted the presence of Man Singh P.W. 1 on the scene of occurrence arguing that he appeared to be the main target but he having not received are injury, his presence is highly doubtful.
6. It is next argued that large number of accused persons have been falsely implicated in the case due to enmity attended with further argument that the occurrence took place in the dead of night by some unknown miscreants.
7. Lastly it was argued that conviction of all the appellants with the aid of Section 149 is erroneous inasmuch as the overt-act is assigned to only one person and there was no visible motive for commission of the crime.
16. So far as first argument that ocular witnesses being related to the deceased, their evidence cannot be acted upon for basing conviction as recorded against the appellants, is concerned., we nave considered the submission in all its ramifications and in our opinion there is no measure of substance in this submission. There is no general rule that every witness particularly injured witness having kinship with the deceased has to be disbelieved or thrown above board. By a catena of decisions, the position is now well enunciated that there is no proposition of law that relatives are to be treated as untruthful witness. Merely because the witnesses are related to the deceased would be no valid ground to discard their testimony, if otherwise their testimony has a ring of truth or inspires confidence. The logic for this proposition is that by reason of their kinship with the deceased, they would not be reconciled to a situation that the real culprits should go scot-free. To rephrase it, the injured witness would not in a case substitute a wrong person for the actual assailant. It would be their endeavour to see that real culprits are punished and normally they would not implicate wrong person in the crime, so as to screen the real culprits
17. In the case of Ravi v. State , the Apex Court been observed that "It is settled by a catena of cases by this Court that the evidence of eyewitnesses cannot be rejected merely because they are related. In such a situation, the evidence of PW 2 in the present case, there is no strong motive or ill will on the part of PW 2 to exonerate the real person who caused the injuries to her son and to implicate the accused." From a scrutiny of the evidence on record, it would transpire that the village was a factious village and the accused persons having tasted defeat on two occasions in the election of Pradhan were boiling with anger and the relations further soured with breaking of marriage engagement from the family of accused and this poured oil over the fire. On the day of occurrence, an altercation ensued which seemingly afforded opportunity to the accused to avenge the insult. Considering that as many as nine persons suffered injuries including two deceased and ocular witnesses, does indicate that the witnesses were speaking truth and nothing has been brought to our notice which may cast aspersion upon their evidence or about their substituting wrong persons for real culprits. In the above perspective, this Court is of the view that there is no measure of substance that the ocular witnesses being related to the deceased cannot be relied upon for basing conviction recorded against them.
18. The other limb of the submission revolves round non-examination of other witnesses. According to the prosecution case the independent/injured witnesses were available but they were not examined by the prosecution. The submission that two witnesses examined were interested and partisan witnesses and their evidence cannot be given so much weight as to sustain conviction against the appellant is not potent enough to disbelieve the entire prosecution case. Mere failure to examine all the witnesses who may have witnessed the occurrence will not result in out right rejection of the prosecution case if whatever witnesses examined by the prosecution are found to be truthful and reliable. Dwelling on this aspect, what the trial Judge observed is excerpted below.
It is therefore clear that simply because no independent witness of the locality has been examined by the prosecution this fact by itself does not make the prosecution case doubtful or unreliable. Since-independent witnesses were available and since they have not been examined, the only caution the courts will have to take is that evidence of the three P.Ws. who have come in the witness box should be examined rather minutely and if after minute examination of their evidence, their evidence is found to be reliable and trustworthy, a conviction can certainly be based on their evidence.
19. As regards P.W. 1 Man Singh the trial court observed that inspite of the fact that P.W. 1 was cross examined quite at length on behalf of the accused but nothing could be elicited to show that either he was not present at the scene of occurrence or he is not speaking the whole truth. The court below further observed that it was Man Singh who lodged F.I.R. of the case and therefore, the evidence of P.W. 1 Man Singh is of the type on which implicit reliance can be placed.
20. As regards P.W. 2, the trial court observed that n doubt discrepancy is there but undue importance cannot be give, to the same as well because such discrepancies are bound to arise in the statement of the witnesses. If the evidence of P.W. 2 is read as a whole it inspires confidence and an impression is created that she is in fact speaking truth and since because of fire arm injuries on her, her presence is established, and there is nothing on the file to disbelieve her evidence as well.
21. As regards P.W. 3 the court below observed that no doubt omission is there hut it is of no practical importance. The court below further observed that P.W. 3 Sukhpal has corroborated the evidence of P.W. 1 Man Singh and P.W. 2 Sukh Biri in material particulars and he is also injured. Ultimately, the court below converged to the conclusion that the evidence of P.W. 3 Sukh Pal is also of the type on which implicit reliance can be placed.
22. In connection with the contention that inspite of the fact that independent witnesses were available, none of then were examined, there is need to delve into the human instinct. There is no denying of the fact that many eye witnesses shy away from giving evidence for obvious reasons. The decision in Appabhai v. State of Gujarat reported in 198S (supp.) SCC 241 is a case on the point under security in which the Apex Court has observed as under:
Experience reminds us that civilized people an generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror-stricken witness at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not he of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner.
23. In the case of Seeman v. State the Apex court had observed that 'The prosecution's non-production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement.'
24. This argument was also addressed before the trial court and the trial Judge after rummaging through the various decisions on the point converged to a categorical conclusion that merely because other witnesses had not been examined would not emasculate the prosecution case. The learned trial Judge observed that the witnesses examined were injured and therefore their presence on the spot cannot be brought within the domain of doubt we are in full agreement with the reasons assigned for repelling the arguments addressed on behalf of the accused persons on this point. Therefore the arguments advanced across the bar on this point by learned Counsel for the appellant being devoid of substance, falls short of acceptability.
We therefore, do not find any substance in the contention of the learned Counsel for the appellant on this count.
25. The next submission put forth by the learned Counsel is that the investigation is faulty and has many holes and bristles with discrepancies. As stated supra, he pointed out there is overwriting in the inquest report about the time of reaching of the Investigating Officer. He also drew attention to second page of inquest report and pointed out that sections have been added which mistake is visible from naked eye. He also pointed out that even G.D. number has been subsequently added attended with further submission that in the photo lash and other police papers crime number etc. is not mentioned. He also drew attention that in Chithi Mazroobi crime number has not been mentioned and citing these discrepancies, he argued that the investigation is tainted and a reasonable apprehension can be drawn that the prosecution has not given a complete picture of what really happened. Before proceeding further with the submissions, it may be noticed here that there is no overwriting in the time of lodging F.I.R. and in form No. 13 time etc. are mentioned. No doubt, there are discrepancies but these discrepancies, in our opinion, cannot put on so high a pedestal as to render the entire prosecution case as unworthy of reliance. If there was any mistake committed by the investigating officer in the preparation of the recovery memo the eyewitness account cannot be disbelieved. The Apex Court in the case of Ram Bali v. State of U.P. has held In the case of a defective investigative the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation s designedly defective.
26. Learned Counsel has also submitted that as the names of the accused or the weapons carried by them and the names of the eyewitnesses had not been mentioned in the inquest report, it clearly showed that by the time the inquest report had been prepared viz. 8.30 a.m. on 15-3-1979, the prosecution was not sure about its case and the FIR had not come into existence, m support of this contention strong reliance has been placed on some observations made by a two-Judge Bench of this Court in Meharaj Singh v. State of U.P. SCC p. 195 in para 11 of the reports which read as under:
It deserves to be noticed that in the inquest report even the name of the accused has not bf an mentioned. It also does not contain the names of the eyewitnesses or the gist of the statement of the eyewitnesses. It does not reveal as to how many shots had been fired or how many weapons had been used. The inquest report is not signed by any of the eyewitnesses, although the investigating officer has categorically asserted that Kamlesh and Shiv Charan were present at the place of occurrence when he visited and he recorded their statements. If he had actually recorded their statements, there is no reason why the details which we have found missing from the inquest report should not have been there.
And also the following observations made in para 12:
Even though the inquest report, prepared under Section 174 Cr.P.C., is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after out deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value end authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8.
27. The provision for holding of inquest is contained in Section, 174 Cr.P.C. and the heading of the section is Police to enquire and report on suicide, etc. Sub-sections (1) and (2) thereof read as under:
174. Police to enquire and report on suicide, etc. - (1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other parson has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, un less otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-Divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted. (2) The report shall be signed by such police office and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-Divisional Magistrate.
28. The language of the aforesaid statutory provision is plain and simple and there is no ambiguity therein. An investigation under Section 174 Cr.P.C. is limited in scope and is confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by animal and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined under Section 175 Cr.P.C. The details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of proceedings under Section 174 Cr.P.C. Neither in practice nor in law is it necessary for the person holding the inquest to mention all these details.
29. In the case of Radha Mohan Singh v. State of U.P. (2006) 1 SCC (Crl.) 661, the relevant part of observation runs to the effect that thus, it is well settled by a catena of decisions of this Court that the purpose of holding an inquest is very limited viz. to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, rimes of the accused or the names of the eyewitnesses or the gist of their statements, nor is it required to be signed by any eye witness. Referring to Mehraj Singh v. State of U.P. it was observed by the Apex Court that the language used by the Legislature in Section 174 Cr.P.C. was not taken note of, nor the earlier decisions of this Court were referred to and some sweeping observations have been made which are not supported by the statutory provisions. Lastly, it was observed by the Apex Court that "we are, therefore, of the opinion that the observations made in paras 11 and 12 of the reports do not represent the correct statement of law and therefore, they are hereby overruled."
30. The next contention in this regard is that the requisition sent by PW 8 to PW 4 i.e. the doctor to conduct post-mortem did not contain the requisite particulars as indicated in the inquest report and the grievance raised like lack of particulars of the case, the weapon used and the names of the accused persons, etc. In this connection, the trial judge after scanning the entire materials on record, observed that if there was some negligence on the part of the Investigating officer in preparation of some of the documents at the time of preparation of the Panchayatnamas from the same this conclusion cannot be drawn that F.I.R. is ante-timed. As regards Chithi Majroobi lacking in requisite details, the court below took notice of the deposition of the Investigating officer in which the P.W. 10 explained that the said Chitthi Majroobi was prepared by a constable and from a constable cannot be expected that he should mention such minute details. The omission is fully explained by the prosecution. Even otherwise, lack of details like non-mentioning of the crime number etc. does not go the root of the matter and therefore, regard being had to the scope of Chitthi Majroobi, it cannot be treated to be a serious hiatus undermining the veracity of the prosecution case. The court below also observed that "what is more in the said occurrence a number of persons had received gun shot injuries and two persons had died and therefore local police was in a hurry to send the injured for their medical examination and in this background also non-mentioning in of the case crime number of heading of the case is irrelevant". Discussing the contentions, the court below ultimately held that there is no tangible material on the file, which may prop up the conclusion that F.I.R. of the present case was ante timed. In Malkiat Singh v. State of Punjab , the Apex Court held that "it is not a rule of law that the memo should bear names with cause title of accused". The quintessence of what has been held is that the omission of names of the accused in the memos sent to the medical Officer is not evidence except as record of investigation. It is not a rule of law that the memo should bear names with cause title of accused. It is enough if the name of the injured is mentioned in the memo.
31. The next argument that leading role is assigned to Rajveer Singh who opened fire at Tek Chand and Preetam Singh deceased, seems to have been made with the ostensible object of whittling down the role of other co accused persons. Much emphasis has been placed by learned Counsel for the appellant on the evidence of D.W. 1 who in his deposition opined that from examination of injuries on the person of the injured witnesses and also the deceased that injuries must have been caused due to single shot. However, in the cross examination, he yielded that the injuries could be the result of more than one shots. The learned trial Judge by referring to the Ext Ka I i.e. F.I.R. and also by referring to evidence of P.W. 1 to P.W. 3 the essence of which was that all the seven assailants opened fire and referring to the above evidence and also evidence of D.W. 1 converged to the conclusion that injuries were the result of more than one shots. The trial Judge also repelled the submissions observing that the gun shot injuries were sustained by seven persons and two deceased persons and injuries to such large number of people could not be caused by single shot. The learned Judge also discarded the defence plea that injuries to as many as nine persons could not have been caused in such a small court yard observing that from the evidence of ocular witnesses and also from medical reports, the prosecution case appears to be probable one about the manner of occurrence and about involvement of accused persons. We fully agree with the conclusions drawn by learned trial judge and have no tangible material before us to take a different view and therefore, the submissions made on behalf of the appellants are apt to be rejected having no ring of truth.
32. The learned Counsel for the appellant also tried to impeach the evidence of P.W. 2 on the ground that in her statement recorded under Section 161 Cr.P.C. she did not spell out the reasons for her presence in the house at the time of occurrence and further tried to find fault with her evidence on the premises that she in her statement categorically stated that she had used clinical bandage while from the evidence on record it is clear that the infected part of the body of Preetam Singh deceased was found to be tied op with a piece of cloth of her Dhoti. It would suffice to say that the omission is not one which goes to the root of the matter. The next submission impeaching her evidence is that she stated in her deposition that she did not accompany P.W. 1 Man Singh to the police station to lodge the F.I.R. but she went with the dead bodies. All these contentions were agitated before the trial judge as well and the learned trial judge discarded the submissions observing that these are minor variation and inconsistencies which cannot be blown out of proportion regard being had to the fact that she was an injured witness and therefore, her presence cannot be doubted. Though inconsistencies are there but we fully agree with the view of the trial judge that these inconsistencies cannot be put on such a high pedestal as to be treated as fatal blow to the substratum of the prosecution case. It is clear from the medical evidence that the infected part of the body of Preetam Singh was found to be bandaged and it is hardly of significance whether it was clinical bandage or it was a piece of cloth of lady's Dhoti. As stated supra, the witness is an injured witness having sustained pellets injuries and therefore we have no reason to doubt her presence at the scene of occurrence or to discard her evidence merely on ground of trivial inconsistencies between her statement under Section 16 Cr.P.C. and also in her deposition before the court below.
33. Yet another ground urged by the learned Counsel for the appellants is that she in her statement deposed that she accompanied the dead bodies which were carried on a tractor and did not go with P.W. 1 to the police station for lodging of he F.I.R. and this part of version, it is argued, differs from the statements of the P.W. 1 and P.W. 10. He also drew attention to the relevant portion of the testimony of the Investigating officer in when it has been stated that the P.W. 2 had come to the Police station at the time of lodging of the F.I.R. with P.W. 1. He also drew attention of the Court to the medical report which manifests that she alongwith other injured persons was examined at the P.H.C. in the night at about 1.30 a.m. on 24.11.89. This argument was also raised before the court below which although found the statements discrepant but at the same time, whittled down the same stating that "No doubt above discrepancy is also there but undue importance cannot be given to the same as well because suet minor discrepancies are bound to arise in the statement of the witnesses. It was further stated that if the evidence of P.W. 2 is read as a whole it inspires confidence and an impression is created that she is in fact speaking truth and since because of fire arm injuries on her, her presence is established, there his nothing on the file to disbelieve her evidence as well."
34. We have scrutinized the evidence all over again. She did say that she accompanied the dead bodies carried on a tractor but she alighted at Khair for medical examination. Although there s visible variation in the two statements but we fully agree with the view of the court below that no undue importance can be attached to the variation on which the defence has laid much emphasis. The statement of the witness was recorded before the trial court after a lapse of about 8 months and therefore possibility cannot be ruled out that contradiction may have occurred on account of slip of memory. The view that discrepancies, which do not go to the root of the matter and do not shake the basic version of the witnesses, cannot be annexed with undue importance receives reinforcement from various decisions of the Apex Court and one such decision on the point is Bhogin Bai v. State of Guj. . Another decision on the point is State of U.P. v. Ran Sagar Yadav AIR 1985 SC 416 in which the Apex Court substantially observed that discrepancy in petty details which befog real issue and minor contradictions which are inevitable when the story of a grave crime is narrated are not material. Be that as it nay, the discrepancy in the statement cannot be over emphasised and it can well be overlooked as a mere faux-pas of an unsophisticated rustic lady having no clue about the legal intricacies.
35. The next submission is directed against the creditworthiness of the deposition of P.W. 1. It has been argued that Man Singh was the main target and it is unbelievable that he escaped unhurt. From a close scrutiny of his evidence, it clearly transpires that the witness on being chased had escaped to a room and hid himself there by bolting the door from inside. There is nothing implausible in his deposition. The learned trial judge also repelled the submissions that merely because he escaped unhurt does not cast any doubt on the veracity of the prosecution case or his evidence or his presence on the scene of occurrence. There are decisions on this point stating that mere a witness escaped unhurt is no ground to discredit his, testimony. Therefore, this submission also does not command to us for acceptance.
36. The next argument canvassed before us is that large number of persons have been attributed to be equipped with deadly weapons by means of which they carried out attacks appears to be improbable in the facts and circumstances of the case. This aspect has been dealt with at prolix length in the body of this judgment. The requirement of law in such situation is that in a case of murder where large number of accused are charged with carving out assault, the evidence of the witnesses has to be subjected to a close scrutiny in the light of their earlier statements. Further he F.I.R. has also to be examined carefully. Another requirement is that the F.I.R. should give a detailed account of the occurrence and should mention the names of the witnesses and also the names of the deceased persons. At the risk of repetition, it would suffice to say that the evidence of the witnesses have been closely scrutinized and nothing has been elicited from their evidence which may cast doubt on the prosecution case. The evidence of all the witnesses have been consistent on the point that all the accused persons participated in the commission of the crime and there is no contradiction about weapons in the possession of the accused persons. In the circumstances, there is nothing on record, which probabilises the defence plea to the detriment of the prosecution case. Besides the injuries sustained by as many as nine persons including two deceased do not warrant the belief that all the accused named in the case had not participated in the commission of the offence. Further the F.I.R. lodged in the case also embodies all the essential details relating to accused persons and in the circumstances, there is no credible material on record warranting a view contrary to the view taken by the trial court and therefore, we are of the irresistible view that the submission does not command to us for acceptance.
37. It was further canvassed that the conviction recorded against law the appellants with the aid of Section 149 I.P.C. is wholly erroneous and he premised his argument on the ground that the overt-act was assigned to only one person i.e. appellant Ranveer Singh accused.
38. The pivotal question which begs consideration is the applicability of Section 149 IPC. The said provision has its foundation on constructive liability which is the sine qua ion for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141 IPC. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149 IPC. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141 IPC. It cannot be laic down as a general proposition of law that unless an overt-act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of such an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141 IPC. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 IPC has to be strictly construed as equivalent to "in order to attain the common object". It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to 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 may 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 be effect of Section 149 IPC may be different on different members of the same assembly. In the case of Sunil Kumar v. State of Rajasthan , the Apex Court had observed as under: The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arm;, carried by the members, and the behaviour of the members at or near the scene of the incident. It was further observed that An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard-and-fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at the time of or before or after the occurrence.
39. In the case of Munivel v. State of T.N. . The Apex Court has held as under:
the common object may be commission of one offence while there may be likelihood of commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of unlawful assembly. Whether a member of such unlawful assembly was aware as regards likelihood of commission of another offence or not would depend upon the facts and circumstances of each case. Background of the incident, the motive the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime would be relevant factors for drawing an inference in that behalf.
40. In connection with the argument, we have examined the record and also scrutinized the finding embodied in the judgment of the trial court. It was suggested before the trial court on behalf of the accused that the occurrence had taken place not in the house as alleged by the prosecution but in the lane and that too in the dead of night by some unknown miscreants and large number of persons have been falsely implicated attended with further argument that the number of accused had been increased and that in fact only one or two persons have participated in the occurrence and the other accused persons with whom there was enmity have bean falsely roped in. The learned trial court having analytically examined the evidence on record, repelled the argument observing that recovery of cartridges, pellets and blood alongwith two dead bodies of the deceased from inside the house do indicate that the occurrence had taken place in the manner as unfolded by the prosecution. The learned trial court also repelled the arguments that cartridges etc were planted by the prosecution to give prop to its failing case. The trial court has discussed the arguments in requisite retails and converged to the conclusion that there is no force in the arguments that the occurrence took place in the dead of night and that the accused persons had been implicated in the case on account of previous enmity.
41. The eyewitness account is credible about the participation of all the accused and the recoveries of empty pellets and injuries to large number of persons corroborate testimonies of the witnesses about participation of all the accused persons. The report is also lodged with promptitude, which eliminates the chances of false implication. The witnesses have described the prosecution case in a very truthful manner and the learned Sessions Judge has rightly recorded the findings of conviction of all the accused.
42. We are in full agreement with the finding recorded by the trial court, which are supported by well-knit reasoning by analytical examination of the evidence on record. In the circumstances, the submission that the occurrence had not taken place in a manner as unfolded by the prosecution, does not commend to us for acceptance.
43. An allied question has also been raised regarding motive. It has been argued that the motive alleged is too feeble to be taken into reckoning or to stimulate the accused to have committed the crime of this diabolical nature. It is also argued that even if it be assumed that accused had motive, there was no motive for the co-accused to have joined the accused in the crime. Although the Court has elucidated on the point in the preceding paragraphs and we need not dwell on the evidence all over again. It would suffice to say that in the First Information report the motive has been efficiently indicated which finds support from the evidence of P.W. adduced before the court below. There is no denying of the fact that the village is factious and feuding parties were ranged against each other. Yet another aggravating circumstance was the breaking of marriage by Vijendra Singh, which was earlier scheduled to be solemnized with Bhojraj son of the accused Ramveer Singh. These two circumstances were sufficient to imbue the accused persons with the powerful motive and ignition to the same was provided by the altercation on the fateful day.
44. From a close scrutiny of the materials on record, it would appear that it is a case of direct evidence and existence of motive may not be very material. Before proceeding further, it would be useful to say that the motive in a criminal case is not to be treated may not be very material. Before proceeding further, it would be t useful to say that the motive in a criminal case is not to be treated as a sine qua non or else it would be very difficult for the V prosecution in every case to cull out motive and to bring the same on record. The well enunciated principle laid down on this aspect by the Apex court is that if the prosecution proves the existence of motive, it would be well and good for it, particularly in a case hinging on circumstantial evidence, for such motive could then be counted as one of the circumstance. In a case, which turns on direct evidence, the element of motive does not play so crucial b role as to cast a doubt on the creditworthiness of the prosecution witness.
45. In the result, both the appeals preferred by the appellants fail and are dismissed and conviction and sentences imposed by the trial court are affirmed. The appellants are on bail. They would surrender to their bonds in order to serve out the sentences. The C.J.M., Aligarh is also directed to take the appellants into custody forthwith on receipt of a copy of this judgment and send them to jail to serve out the sentences awarded by the learned trial court and confirmed by us. Let a copy of this judgment be placed on the file of Criminal Appeal No. 1147 of 1991.