Shamsad Ali vs State Of U.P. on 29 September, 2016

[Cites 32, Cited by 0]

Allahabad High Court

Shamsad Ali vs State Of U.P. on 29 September, 2016

(Per Hon'ble Anil Kumar Srivastava-II,J.) (1) Since the above two appeals have arisen from the same judgment, hence, both of them have been heard together and are being decided by this common judgment and order.

(2) The aforementioned two appeals have been preferred against the judgment and order dated 3.11.2014 passed by learned Additional Sessions Judge, Court No.4, Sitapur in Sessions Trial No.653/99 arising out of Case Crime No.136 of 1999 under Sections 147,148,149,307,302,504,506 I.P.C., P.S.Tambour, District Sitapur.

(3) Initially, ten accused persons were facing trial out of which accused Abid Ali, son of Sharafat Ali; accused Hafiz Ali, son of Liaqat Ali and accused Shaukat Ali, son of Badal died during pendency of trial and their cases abated. Further during pendency of appeal, appellant no.4 Mustakeem, son of Bakreedi also died and his appeal stood abated vide order dated 8.9.2016 passed by this Court.

(4) Learned trial court has convicted and sentenced the accused-appellants (1) Sharafat Ali, son of Liaqat Ali; (2) Shamsad Ali; son of Liyaqat Ali; (3) Israr, son of Sujat Ali; (4) Abdul Maliq, son of Mohd. Umar; (5) Mustakeem, son of Bakreedi; (6) Asfaq Ali; son of Buniyad Ali; and (7) Amin, son of Mohd.Bux as under :-

a. under Section 302 I.P.C. read with 149 I.P.C. imprisonment for life and fine of Rs.8000/- each, in default two years' imprisonment;

b. under Section 307 I.P.C. read with 149 I.P.C. rigorous imprisonment for ten years and fine of Rs.5000/- each, in default one years' imprisonment.

c. under Section 148 I.P.C. rigorous imprisonment for two years and fine of Rs.2000/- each, in default four months' imprisonment.

(5) All the sentences were directed to run concurrently.

(6) According to the prosecution version, on 14.7.1999, Dunna, who was uncle of complainant Mohd. Naseem, was coming to his Village from Tambour. At about 7:30 a.m. when he reached near the house of Mohd. Husain, son of Anwar, then accused Sharafat Ali, armed with licensed gun; Hafiz Ali; Shaukat Ali; Israr; Shamsad Ali; Abdul Maliq; Mustakeem Abid Ali, Asfaq Ali; Amin and three-four unknown persons who were armed with unlawful arms, 'Lathi' and 'Danda' started firing upon Dunna. On hearing fire arm sound, complainant Mohd. Naseem and his brother Nisar Ahmad reached at the spot. Then, accused also fired upon them. Dunna died on the spot due to fire arm injuries while complainant Naseem and his brother Nisar received fire arm injuries. There was an atmosphere of fear due to firing.

(7) First information report of the incident was lodged by complainant Naseem on 14.7.1999 at 8:30 a.m. at P.S. Tambour which was registered at case crime no.199/1999 under Sections 147, 148, 149, 307, 302 I.P.C. and 7 Criminal Law Amendment Act. Investigation was handed over to Station House Officer V.K.Misra. Later on, a letter for medico-legal examination ('Chitthi Mazroobi) was handed over to Mohd. Naseem and Nisar who were medically examined at C.H.C. Tambour. Inquest proceedings were conducted on 14.7.1999 at 10:30 a.m. Dead body was sealed and sent for postmortem. Site plan was prepared. Blood stained and plain earth was collected from the spot. Statements of witnesses were recorded. Postmortem of the body of deceased Dunna was conducted on 15.7.1999 at 2:30 p.m. The recovered articles were sent to Forensic Science Laboratory. Subsequently, after investigation, charge sheet was submitted against the accused. Accused were charged for offences punishable under Sections 148, 302/149, 307/149 I.P.C., who denied the charges and claimed to be tried.

(8) In order to prove its case, prosecution has produced P.W.1 Mohd.Naseem (injured eye witness); P.W.2 Nisar Umar (injured eye witness); P.W.3 Dr. Anjani Kumar Dubey, who has conducted the medico-legal examination of the injured on 14.7.1999. According to Dr.Dubey, he has examined injured Nisar on 14.7.1999 at 8:00 a.m. and found the following injuries :

1. Firearm injuries on Rt. shoulder size 1/8 x 1/8 cm Margins inverted and Blackened.

2. Firearm wound of entry on Supra sternal Notch size1/8 cm x 1/8 cm Margins inverted and Blackened.

3. Oval wound of entry on right mid clavicular Sub costal margin size 1/8 cm x 1/9 cm margin inverted and Blackened.

4. Three wound of entry on right side below chest size 1/8cm x 1/8cm x cavity deep margins inverted and blackened 15cm below axilla.

5. Gun shot wound left over elbow size 1/8cm x1/8cm x depth not proved margins inverted blackening present.

6. Gun shot wound on right thigh interior aspect mid part margins inverted blackened size 1/8cm x 1/8cm.

7. Five wounds of entry on mid of left thigh in 15cm area size 1/8cm x 1/8cm x depth not proved. Margins inverted blackened.

8. Round wound of entry 1/8cm x 1/8cm at right leg x bone deep margin inverted.

Nature of injury kept under observation. Caused by firearm and fresh in duration.

(9) Injured complainant Naseem was examined by Dr.Dubey on 14.7.1999 at 8:45 a.m. and found the following injuries.

1. Oval wound of entry with margin inverted direction left to right side oblique entry size 1/8 cm x 1/9 cm x depth not probed (cavity deep) on Back left side at mid of Medial side of left scapula at distance of 2 cm Margin Blackened.

2. Two oblique wound of entry on lower end of right scapula lateral side size 1/8 cm x 1/9 cm x Margin blackened margin inverted.

3. Round wound on right arm of size of 1/8cm x 1/8 cm x muscle deep and blackened.

4. Two wounds of size 1/8cm x 1/8cm x muscle deep present on over back of right shoulder margin blackened.

5. Rounded wound over back of head over occiput of size 1/8cm x 1/8cm inverted and blackened margin such three wound present in area of 5cm around.

These all wounds are caused by firearm fresh in duration kept under observation.

(10) P.W. 4 is the Investigating Officer. P.W. 5 Dr.V.R.Saxena, who had conducted postmortem examination on body of the deceased on 15.7.1999 at 2.30 PM and found the following injuries:

1. Multiple fire arm wounds on right Rt. upper extremity in an area of 42 cm x 10 cm; 4.5 cm below Rt. shoulder joint (each size 0.3 cm x 0.3 c.m.);

2. Single fire arm wound on right side nose 2.5 above right ala of Nose (size 0.3 cm x 0.3 cm);

3.Multiple fire arm wounds right side chest in an area of 13.5 cm x 9.0 cm; 3.5 cm below right axilla;

4. Single fire arm wound on right side back 8 cm below right Iliac crest border. (size 0.3 cm x 0.3 cm) (Two pellets recovered from right lung one from nose and one from right arm muscle) (11) According to the doctor, duration of the death was one-and-a half day. Cause of death was shown as shock and haemorrhage as a result of ante-mortem fire arm wounds.

(12) In their statements under Section 313 Cr.P.C., accused have denied the allegations levelled against them and stated that the deceased was a hardened criminal. Due to enmity, somebody has caused injuries, resulting in death of Dunna. In defence, D.W.1 Mujeeb Ahmad was produced.

(13) After appreciating the evidence on record, the learned trial court has recorded finding of conviction against accused persons.

(14) We have heard Sri Nagendra Mohan, learned senior counsel for the appellants and Sri Umesh Verma, learned Additional Government Advocate for State at length.

(15) Learned counsel for the appellants submits that injured witnesses were not present at the scene of occurrence. They have not seen the incident and they are not eye witness. It is further submitted that the first information report is ante-time. It was lodged after medico-legal examination of P.W.2 Nisar. In order to elaborate his argument, learned counsel submits that medico-legal examination of Nisar was done at 8:00 a.m. while the first information report was lodged at 8:30 a.m. Further, in the inquest report, in the column where time of lodging of the F.I.R. is to be mentioned, it is mentioned that F.I.R. was lodged at 7:30 a.m. which shows that the first information report was not in existence at the time when the medico-legal examination of injured as well as inquest proceedings were conducted. It is further submitted that first information report was lodged after due consultation and deliberation with police authorities. It is further submitted that the injured persons have not received the injuries in the alleged incident, as claimed by the prosecution. It is stated that all the ten persons have fired upon the deceased and the injured persons Naseem and Nisar but the number and size of injuries does not corroborate this statement. It is also submitted that the place of occurrence could not be established by the prosecution. No independent witness was produced although it could have been produced by the prosecution. It is contended that the incident occurred on the road while the dead body of the deceased was found on a cot in front of his house. There is no explanation as to how the dead body reached in front of the house of complainant. It is further argued that the deceased and injured were hardened criminal. They could have got injuries during dark hours and accused have been falsely implicated.

(16) Per contra, learned A.G.A. submits that the first information report was lodged promptly. There is a mistake in mentioning time on the injury report of Nisar as doctor himself has admitted that accused Isfaq had also reached at the C.H.C., and he was treated prior to the injured persons. It is further submitted that time of lodging of F.I.R., as mentioned in the inquest report, is not challenged by the defence. No cross-examination was made on this point. Hence, this fact shall be treated as admitted. It was a clerical error. Two injured witnesses have been produced, who have received injuries in the same incident. It is further argued that defence itself has admitted the incident by giving a suggestion to P.W.1 that Ashfaq also received injuries in the same incident and an N.C.R. was lodged by accused Israr at the police station. It shows that presence of deceased as well as two injured witnesses have been admitted by the defence. It is further argued that there are minor contradictions which could not discredit the case of prosecution. It is further argued that the place of occurrence is fully established by the prosecution. If defence wanted to bring its case within the ambit of 'general exceptions', then, it was the burden of defence to produce evidence on the point. Even in the statement under Section 313 Cr.P.C., no case of self-defence has been taken, rather only a suggestion was given to P.W.1. In the statement under Section 313 Cr.P.C., accused have stated that they have been falsely implicated due to enmity. The defence is taking a false defence which itself shows its complicity in commission of crime.

(17) At the very outset, we would like to first deal with the medico legal aspect of the case, because, this is a case wherein according to the prosecution 10 persons have fired upon the deceased and two injured persons who have received total 17 injuries. One assailant was carrying the licensed gun while, according to P.W.1 Naseem, all other assailants were carrying single barrel country-made gun. Hence, at the very beginning, it is to be decided as to whether, the injuries sustained by the injured as well as the deceased were caused by different firearms which were being carried by the accused ?

(18) Interestingly, injured-Naseem and Nisar have received injuries of a dimension of 1/8cm.x 1/9cm. while deceased Dunna has suffered injuries of a dimension of 0.3cm x 0.3cm. It shows that the deceased as well as both the injured have sustained injuries by two types of weapons out of which one weapon has caused the injuries measuring 1/8cm x 1/8cm. while the other weapon has caused the injuries of 0.3cm x 0.3cm. Further according to P.W.3 Dr. Anjani Kumar Dubey, who has conducted the medico legal examination of the injured fires were shot from a distance of six feet. There was no overlapping of any injuries. P.W.5 Dr. Saxena, who has conducted the postmortem of the body of the deceased-Dunna has stated that there was no overlapping of injury on the body of the deceased. Fires were shot from the distance as there was no blackening and tatooning? Dispersal was also wide due to distance in firing. It means that when injuries of the deceased as well as injured were not overlapping which shows that all the injuries were caused by two type of weapons. If the injuries could have been caused by different type of weapons then definitely, size and shape of the injuries would have been different. It is also not possible that when injuries were caused by a particular weapon then the fire shot by another weapon would cause injuries of the same dimension as was caused by earlier used weapon. Because, according to expert opinion of the doctor, there was no overlapping on the injuries of the injured as well deceased. Hence, it is established that two type of weapons were used in commission of the crime as has been started by P.W.1 Naseem.

(19) It is contended by learned counsel for the accused that the first information report is antetime. First information report was lodged by P.W.1 Naseem on 14.07.1999 at 8.30AM which was registered at Case Crime No.136 of 1999, under Sections 147, 148, 149, 307, 302 IPC and Section 7 Criminal Law Amendment Act. Entry of the same was made at G.D. No.12. Chick FIR and G.D. were proved by P.W.4 S. I. Inspector Vijay Kant Mishra, who was investigating officer of the case. It is stated by P.W.4 S. I. Inspector Vijay Kant Mishra that Chick FIR was prepared by H.C. Mata Pher and entry in G.D. was also made by him. H.C. Mata Pher had remained posted with him, he has identified the writing and signatures of H.C. Mata Pher. It is further stated that H.C. Mata Pher had died about 4-5 years ago. Hence, as a secondary evidence P.W.4 S. I. Inspector Vijay Kant Mishra, proved the chick FIR and G.D. In the G.D. it is mentioned that the injuries of injured Naseem and Nisar were examined at police station and Chitthi Mazroobi was prepared and injured were sent to C.H.C. Tambour for medico legal examination. Witness was not cross-examined on this point as to whether chitthi Mazroobi were prepared and injured were sent to C.H.C. Tambour before lodging of the first information report which was lodged at police station at 8.30AM? Hence, it is an uncontroverted fact which shows that injured Naseem and Nisar were sent to C.H.C. Tambour along with chitthi Mazroobi. After lodging of FIR at 8.30AM.

(20) Non cross-examination of P.W.4 S.I. Inspector Vijay Kant Mishra, on the point of time of lodging of FIR as well as delivery of the chitthi Mazroobi for medico legal examination of injured shows that it is an uncontroverted statement. It was held by Hon'ble Apex Court in the case of Gangabhavani v. Rayapati Venkat Reddy & Ors. 2013 CRI. L. J.4618 (Supreme Court) wherein the Hon'ble Apex Court has placed reliance upon Laxmibai (Dead) through L.Rs. & Another v. Bhagwantbuva (Dead) through L.Rs. & Ors. AIR 2013 SC 1204:

"31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses." (Emphasis supplied) (See also: Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181; and Gian Chand & Ors. v. State of Haryana, JT 2013 (10) SC 515).

18. Thus, it becomes crystal clear that the defence cannot rely on nor can the court base its finding on a particular fact or issue on which the witness has not made any statement in his examination-in- chief and the defence has not cross examined him on the said aspect of the matter."

(21) Learned counsel for the accused has vehemently argued that in the medico legal examination report of injured Nisar time of examination is mentioned as 8.00 AM on 14.07.1999 while, time of examination of Naseem is mentioned as 8.45AM. In between accused Ashfaq was also medically examined by P.W.3 Dr. Anjani Kumar Dubey on 14.07.1999 at about 8.15AM. It is argued that when the injured Nisar was medically examined at 8.00AM then, it shall be presumed that by that time first information report was not lodged.

(22) During the cross examination, P.W.3 Dr. Anjani Kumar Dubey has stated that the injuries of injured Asfaq was done prior to the medico legal examination of Naseem and Nisar as they were brought, subsequent, to the arrival of Asfaq. This statement and the cross examination itself explains the mistake which has been committed by Dr. Anjani Kumar Dubey in mentioning the time of medico legal examination of Nisar at 8.00AM. No doubt Dr. Anjani Kumar Dubey is a medical expert, whose opinion is of utmost importance in a criminal trial. But, at the same time, if the medico legal evidence is not in consonance with the ocular evidence then definitely, ocular evidence would prevail over the medico legal evidnce as has been held in the case of Sadhu Saran Singh v. State of U.P. and others 2016 CRI. L.J. 1908 (Supreme Court) wherein Hon'ble Apex Court has placed reliance upon Darbara Singh v. State of Punjab (2012) 10 SCC 476 wherein it was held that:-

"................. So far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liabe to be disbelieved."

(23) Hence, when P.W. 3 Dr. Anjani Kumar Dubey has himself been cross-examined by the defence on the aspect of time of medico legal examination of injured Nisar that Dr. Dubey himself has given satisfactory explanation. Although, the prosecution has not discharged a duty satisfactorily to get the consistency explained through P.W.3 Dr. Anjani Kumar Dubey. But the same was got explained by the defence in cross-examination. Hence, we are of the view that when the discrepancy has been properly explained then, defence could not get any benefit out of it. It is settled legal position that the statement of witnesse shall be read as a whole, it cannot be read in piece meal.

(24) Learned counsel for the accused has drawn our attention towards the inquest report wherein it is mentioned that the date and time of lodging FIR is mentioned as 14.07.1999 at 7.30AM while the time of starting the inquest report is mentioned as 14.07.1999 at 10.30AM which concluded on 14.07.1999 at 12.00 Noon. It is submitted that time of lodging of FIR was shown at 7.30AM which means that the time of lodging of FIR information report at 8.30AM is wrong. We are not impressed with the argument of learned senior counsel. No doubt, time of lodging the FIR in the inquest report is shown as 14.07.1999 at 7.30AM. But, at the same time, it is to be kept in mind that the time of incident is shown as 14.07.1999 at 7.30AM in the first information report. Thereafter, first information report was lodged at 8.30AM which fact find support from From No.13 which was sent along with the dead body, wherein time of death is shown as 14.07.1999 at 7.30AM and the time of lodging of the FIR is shown at 8.30AM. It was also prepared by the investigating officer P.W.4 S.I. Vijay Kant Mishra.

(25) In Radha Mohan Singh @ Lal Saheb V. State of U.P.(2006) 2 Supreme Court Cases 450, a three Judges Bench of the Hon'ble Apex Court has dealt with the provisions of Section 174 Cr.P.C. in detail in the said case, it was argued that the time and date of lodging FIR has been mentioned as "10 p.m on 15.3.1979 ." Though, the prosecution has come out with a case that the FIR had been lodged at "10 p.m. on 14.3.1979". It was submitted by the learned counsel for accused that the FIR had in fact not been lodged by the time the inquest was held and the same has been ante-timed. Hon'ble Apex Court as held as under:

"In our opinion the date of lodging the report has been wrongly written in the inquest report as "15.3.79 samai 10 baje raat (15.3.79 at 10 p.m.)". At the top of the inquest report the crime number and the sections (Crime No.193/79 under Section 147/148/140/323/302 IPC) have been mentioned. The time of commencement of the inquest is written as "7 a.m. on 15.3.79" and the time of conclusion of the inquest is written as "8.30 a.m. on 15.3.79". If the inquest had been concluded by 8.30 a.m. on 15.3.79, there was no occasion for writing the time of lodging of the FIR as "10 p.m. on 15.3.79" as the person preparing the inquest report could not have written anything about an event which was yet to take place. We have not the slightest doubt that the investigating officer holding the inquest mentioned the date of lodging of the FIR as "15.3.79" instead of "14.3.79" inadvertently or by mistake. That apart, it is important to note that during the course of cross-examination PW.7 Ram Shabad Singh, SI, who held the inquest on the body of the deceased in the hospital, his attention was not drawn to the aforesaid fact that the date and time of lodging of the FIR was mentioned as "10 p.m. on 15.3.79". If the said discrepancy had been pointed out to him, he could have given an explanation for the same. No argument on the basis of an alleged discrepancy, overwriting, omission or contradiction in the inquest report can be entertained unless the attention of the author thereof is drawn to the said fact and he is given an opportunity to explain when he is examined as a witness in Court. Therefore, in the present case it is impermissible to draw any inference against the prosecution on the ground that the date of lodging the FIR was wrongly mentioned in the FIR."

(26) In the present case also there is discrepancy about time of lodging the FIR as mentioned in the inquest report which is mentioned as 14.7.1999 at 7.30AM. While the first information report was lodged on 14.7.1999 at 8.30AM. It appears that since the time of occurrence was shown as 14.7.1999 at 7.30AM. Hence, instead of writing 14.7.1999 at 8.30AM investigating officer has wrongly mentioned time of lodging FIR as 14.7.1999 at 7.30AM. Further as has been held by the Apex Court in the case of Radha Mohan Singh @ Lal Saheb (supra) investigating officer has nowhere been cross-examined, on this point by the defence, so as to enable him to give opportunity to explain the fault. Hence, we are of the view that the time of lodging FIR as shown in the inquest report as 14.7.1999 at 7.30AM is wrongly mentioned.

(27) Defence has produced Mujeeb Ahmad as D.W.1 who is scribe of the written report. It is stated by him in examination-in-chief that at about 8-9 AM he wrote the written report on the dictation of Naseem who was injured. A suggestion was also given to him that he has prepared the written report on the dictation of police which he denied. It means that the defence himself has admitted the fact that the written report was written by D.W.1 Mujeeb who was the witness of defence and stated in examination-in-chief that he has written the written report on the dictation of Naseem who was in injured condition. This witness has not been declared as hostile by the defence meaning thereby that now defence cannot rescile with the statement of D.W.1 Mujeeb Ahmad. He has further stated the time of writing the first information report at about 8-9 AM.

(28) Hence, we are of the considered view that the first information report was lodged on 14.7.1999 at 8.30AM by injured Naseem. First information report is not ante-time.

(29) Now, we have to consider as to whether the evidence of P.W.1 Naseem and P.W.2 Nisar is wholly reliable, trustworthy and credible evidence or not ?

(30) According to the prosecution version when Dunna was coming back from Tambour to his Village when the accused assaulted him by rifle, lathi and danda. There are 10 accused named in the first information report.

(31) At the very out-set, it is relevant to mention here that no injuries of lathi and danda were found on the body of injured Naseem and Nisar or the dead body of deceased (Dunna). All three have received firearm injuries. According to P.W.3 Dr. Anjani Kumar Dubey, injured Naseem has received five injuries of firearm out of which injuries no.2 and 4 were two wounds of entry likewise, injured Nisar received total eight wounds of firearm injuries out of which injury no.4 was having three wounds of firearm with inverted margins. Injury no.7 were five wounds of firearm with inverted margins. In the same manner deceased (Dunna) had received the four injuries out of which injury nos.1 and 3 were multiple firearms wounds. Although, the size of wound was similar, it shows that the different weapons were used. Number of injuries caused as well as injured persons individually they might have received less number of injuries but collectively we found that total number of injuries of deceased as well as two injured is quite large which corroborates the prosecution version that 10 persons have fired upon the deceased and injured who received gun shot injuries.

(32) Now it is to be seen as to whether P.W.1 Naseem, P.W.2 Nisar were present at the place of occurrence and received injuries by firearms used by the accused ?

(33) P.W.1 Mohd. Naseem has stated that all the accused belongs to one family and are related to each other. Motive was also stated by the witness wherein it was stated that Bakreedi father of accused Mustakeem was murdered in 1976 wherein Mehandi Husan father of P.W.1 Naseem and his uncle Dunna (deceased) were named accused. They were convicted by the court. At the time of occurrence they were on bail. So far as motive is concerned even in the statement given under Section 313 Cr.P.C. it is admitted that Bakreedi was killed by Dunna who was convicted in the trial of murder of Bakreedi. It shows that admittedly there was enmity between the parties.

(34) Enmity itself is a double egged weapon which can be used either way. It was held in Sunil Kundu versus State of Jharkahnd (2013) 4 SCC 422, that enmity is a double edged weapon but possibility of false involvement because of deep rooted enmity also cannot be ruled out.

(35) That enmity is doubled edged weapons which can be used for false implication at the same time for attacking that persons. Hence, so far as enmity is concerned when it is an admitted fact then there is no question of drawing any inference that there was no motive for commission of the crime by the accused.

(36) In the first information report, it is mentioned that :---------

"सुबह जैसे ही ग्राम डवदेही के मो. हुसेन पुत्र अनवर के घर के पूरब सड़क पर पहुचे तेसे ही पहले से एक राय होकर बन्दुके व लाढी डण्डा लिया गाड़ा पर बढ़े शराफत अली पुत्र लियाक़त अली अपनी लाशेनसी बन्दुक व बाकी हाफिज अली व प्रधान पुत्र लियाकत अली सोकत अली पुत्र बादल, इसरार, समसाद अली पुत्र गाज सुजात अली, अब्दुल मालिक पुत्र मो. उमर, मुसतबीज पुत्र बकरीदी, आबिद अली पुत्र शराफत अली उर्फ़ शरफू, असफाक अली पुत्र बुनयाद अली, अमीन पुत्र मो. बकस व तीन चार अन्य लोग नाजायज असलह| व लाठी डण्डा से मेरे चाचा दुन्ना पर फायर करने लगे बन्दुक की आवाज व मेरे चाचा के चिल्लाने पर मै व मेरा भाई निसार अहमद दौड़ कर मौके पर आ गये| हम लोगो पर भी असलाह से फायर करना शुरू कर दिये| फायर की चोट से मेरे चाचा दुन्ना की मौके पर मृत्यु हो गयी मुझे व मेरे भाई निसार को फायर की चोट आयी है| ताबड़ तोड़ फायरिंग होने से आने जाने वाले तथा बच्चे तथा पडोसी भय के कारण भाग गये तथा अपने घरो का दरवाजा बन्द कर लिए लास मौके पर घर वालो की देखरेख मे पड़ी है||"

(37) Which shows that 3-4 unknown persons are also mentioned in the first information report but in the statement of P.W1 Naseem he has stated that the accused Sarafat was armed with double barrel licensed gun and all others were armed with single barrel country made gun and they fired from their weapons nowhere used of lathi and danda is stated. Further no injuries of lathi was found either on the body of the deceased or injured persons.

(38) According to P.W.1 Naseem, he reached at the spot on hearing the shrieks. He was sitting on shop which is shop of Rais at a distance about 50 steps from the place of occurrence. While his brother Nisar came from eastern side of road from the field. Nisar met him at the place of occurrence. Nisar arrived there prior to him. While P.W. 2 Nisar has stated that when he reached at the spot Naseem had already reached there.

(39) So far as minor contradictions are concerned, it is settled legal position that minor contradictions are bound to occur in the evidence of witnesses when their evidence were recorded after a long gap from the date of incident.

(40) In Sadhu Saran Singh v. State of U.P. & Ors.2016 CRI. L.J. 1908; Hon'ble Apex Court has held that if there is a long gape of cross-examination which is done on several dates then natural minor discrepancies are bound to occur. Further, it is to be seen as to whether the discrepancies are going to the root of the matter or are trivial in nature. In the case at hand, so far as it is concerned as to whether P.W.1 Naseem arrived first at the spot or P.W. 2 Nisar arrived first at the spot. It is a minor contradiction. Both these witnesses have received gun shot injuries. At this stage, we may very carefully examine the suggestion has given to P.W.1 Naseem as well as P.W.2 Nisar by P.W. 3 Dr. Anjani Kumar Dubey and P.W.4 I.S. Vijay Kant Mishra, investigating officer.

(41) P.W. 3 Dr. Anjani Kumar Dubey was put to cross-examination by the defence and got the injuries of accused Asfaq proved from this witness wherein he has stated that on 14.7.1999 at 8.15 AM. he had medically examined the accused Ashfaq Ali son of Buniyad Ali and found following two injuries on his body:-

(1) lacerated wound ½ cm x 1/10c.m into bone deep fresh bleeding present surrounded by traumatic swelling all over dorsom of left hand pain tenderness and crepitus present in palm and lower part of forearm.

(2)Traumatic swelling pain and tender right forearm and hand.

(3) Pain and tender both leg. Contusion present on right leg upper part.

(4) Contusion of size 6cm x1/2cm present over left size over interior aspect of left thigh.

Nature of injury under observation. Caused of blunt objection duration fresh.

(42) According to Dr. Dubey these injuries were fresh in nature which was kept under observation and caused by blunt object. It is further stated by Dr. Dubey that these injuries could have been caused on 14.7.1999 at about 7, 7.30AM patient was referred to district hospital. It means that Dr. Dubey has given a specific report about the fact that accused Ashfaq has received a minor injury on 14.7.1999 at about 7.30AM. It is further suggested that Asfaq has lodged a report at the police station regarding incident prior to the FIR lodged by P.W.1 Naseem. Further, so far as injuries are concerned defence has given a suggestion that deceased alongwith injured Naseem, Nisar were trying to pluck mango from tree and they were asked not to do it by the owner of grove. They ran away Quarrel took place. Firing also took place. They have beaten Ashfaq who got badly injured thereafter Israr Ahmad took him to the police station and lodged first information report. It is further suggested that no other accused was involved in the incident of marpit.

(43) P.W.4 S.I. Inspector Vijay Kant Mishra investigating officer has stated that no report of Ashfaq was brought to his knowledge as to whether NCR No.57 under Sections 323, 504 was lodged by Ashfaq or not. Defence has admitted the incident and the defence was taken about lodging a cross FIR. But, no such FIR is brought on record. Nothing has been brought on record to show that any such FIR was lodged or if lodged then whether permission of the Magistrate under Section 155(2) Cr.P.C. was obtained or not in the NCR. At this stage, learned counsel for the defence has place reliance upon State of Rajasthan vs. Manoj Kumar (2014) 5 Supreme Court Cases 744 wherein it is held that even if plea of private defence is not taken by the accused. It is open to the Court to consider such a plea if such a plea arises from the material available on record and burden to establish such a plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record. Learned counsel for the accused submits that the court can consider the plea of self-defence by accused on the basis of facts and circumstances of the case. Further, it is submitted that at the most it could be a case of exceeding the right of private defence by the accused, Ashfaq and Israr as the prosecution has failed to establish the presence of other accused on the place of occurrence.

(44) In 2010(4)SCC (Criminal) 378 Bhanwar Singh Vs. State of M.P. it was held that for a plea of right of private defence to succeed in totality to succeed, It must be proved that there is existed a right to private defence in favour of accused and that this right is extended to causing death. In the case at hand, firstly, we have to consider as to whether, although specific plea is not taken by the accused about right, from the evidence on record any case is make out for exercising the right to private defence by the accused? At this stage, we are not going to touch the issue as to how many accused were involved in the matter. But, so far as, exercise of right of private defence is concerned, a suggestion was given to P.W.1 Naseem that the deceased and the injured were trying to pluck the mango from the mango grove and when owner of mango grove objected and apprehended and trying to apprehend them that they ran away, thereafter, fight took place where firing was also done and injuries were caused to Ashfaq. If we compare injures of Ashfaq with deceased as well as the injured persons, we found that only one simple injury was found on the body of Ashfaq while multiple fire arm wounds were found on the body of deceased and injured Naseem and Nisar. Hence, it cannot be inferred that any right to private defence occurred in favour of accused which has been exceeded by them.

(45) There is no iota of evidence to show that the deceased or the injured have made any attempt to pluck the mango from mango grove. At this stage, the place of occurrence also becomes very important. Place of occurrence as shown in the first information report is on the road near the house of Mohd. Husain. In the site plan place of occurrence is shown by letter 'A' which is on the road towards eastern side of the house of Mohd. Husain. Accused were firing from point 'B-C' which are towards western and eastern side of the road. In cross-examination, it is stated by P.W. 4 S.I. Vijay Kumar Mishra Investigating officer that the house of deceased and complainant is about 100 yards towards northern side from the place of occurrence. It is further stated by him that when he reached at the spot he found the dead body lying on a cot in front of the door of the complainant. Although, the investigating officer has not shown that place in the site plan which he should have shown but it can be termed as fault on the part of investigating officer. But, at the same time any lapse or defect in the investigation could not extend the benefit of the accused. Unless and until it is shown that material prejudice is to caused to the accused. P.W.4 S.I. Vinay Kumar Mishra himself has admitted that when he reached at the spot he found the dead body lying on a cot. Investigating officer has recovered the plain and blood-stained earth from the place of occurrence. P.W.1 Naseem and P.W.2 Nisar have also stated that the incident took place on the road. At the same time, when defence himself is admitting that the fight took place on the pretext of theft of mango and they are challenging the place of occurrence. Hence no mango grove is shown in the site plan near the place of occurrence. Copy of NCR was not filed by the defence. It should have been proved that in the cross version accused have been shown the place of occurrence some where else from the place as have been shown by the prosecution. Hence, we do not find any force in the argument that the injuries on the body of the injured P.W.1 Naseem and P.W.2 Nisar and deceased were caused by the accused in self defence. While, the injured or deceased were trying to commit theft of mango and fight took place.

(46) It is submitted that P.W.1 Naseem and P.W.2 Nisar are real brother. They are interested and related witnesses. Further, they are harden criminals and their evidence could not be believed. It is further argued that no independent witness is produced.

(47) P.W.1 Naseem and P.W.2 Nisar are brother and related witnesses. Deceased-Dunna is their uncle. This is an admitted situation but whether, the evidence of related and interested witnesses is trustworthy or not ?. It is to be tested on the touchstone of their evidence. In the case of Upendra Pradhan v. State of Orissa, (2015) 11 SCC 124 : (2015) 4 SCC (Cri) 309 it was held that:

"18. The second ground pleaded before us by the counsel for the appellant-accused, that the testimonies of PW 1 and PW 7 should not have been considered, as they were interested witnesses, holds no teeth. We are of the opinion that the testimonies of interested witnesses are of great importance and weightage. No man would be willing to spare the real culprit and frame an innocent person. This view has been supplemented by the decision of this Court in Mohd. Ishaque v. State of W.B Bindeshwari Prasad Singh v. State of Bihar, (2013) 14 SCC 581 : (2014) 4 SCC (Cri) 299."

(48) P.W.1 Naseem is an injured witness, who has admitted in his evidence that daughter of Kamruddin was married to him. Kamruddin was uncle of Abdul Maliq. P.W.1 Naseem has divorced his wife. Now, she is living in the house of accused Abdul Maliq. He has also given reason for divorce. It is stated that his wife and Naseem could not live together. As there was no understanding between them. A suggestion given to the witness due to this enmity, he has falsely implicated all the relatives. We do not find any force in the suggestion. Presence of P.W.1 Naseem at the spot is established from the evidence on record. According to the P.W.1 Naseem at the time of occurrence, he was sitting on Khokha about 50 steps away. He reached are the spot on hearing the sound of firing and shrieks of his uncle Dunna. According to P.W.1 Naseem when he reached at the spot his brother Nisar had already reached at the spot. While, there is contradiction in the statement of P.W.2 Nisar who has stated that when he reached at the spot, Naseem was already present there. This contradiction in their statement is not such which creates doubt about their presence at the spot. It may so happen that when any incident occurs and few persons reached at the spot. It might be possible that they may reach there, simultaneously or just after reaching one and another but this itself could not be a ground to disbelieve their presence at the spot. Every person reacts differently in a given situation, it is not possible that every one should react in a particular manner in particular situation. It might be possible that P.W.1 Naseem and P.W.2 Nisar may have reached at the spot, simultaneously, or behind each other but their presence at the spot could not be doubted in view of injuries sustained by them. Further defence has given a suggestion to the effect that incident has taken place therein. One accused Ashfaq also got injuries and his report was lodged by accused Israr.

(49) P.W.1 Naseem has stated that written report was scribed by Mujeeb Ahmad who was produced as D.W.1 Mujeeb Ahmad by the defence. P.W.1 has stated that in the written report it is mentioned that some unknown persons were accompanying the named accused who were carrying lathi and danda with them. At one place in cross-examination of P.W.1 Naseem has stated that it was written on the dictation of the police but D.W.1 Mujeeb Ahmad scribe of the written report was examined by defence who has stated that the report was written on the dictation of Naseem. Further specific suggestion was given to the witness that he has written the report on the dictation of police. D.W.1 Mujeeb Ahmad denied this suggestion. It means that defence witness has proved the prosecution version. At the same time, statement of D.W.1 Mujeeb Ahmad further corroborates the prosecution version.

(50) P.W.1 Naseem has stated that all the accused were collected at one place who were armed with guns. Although, in the site plan, it is shown that the accused were present at point 'B-C' and fired from point 'B-C'. P.W.1 Naseem has stated that he reached at the spot from the northern side then other persons were also present there. He requested them to accompany him. But, nobody accompanied him. At time of firing, he and his brother was standing two steps away from the accused. This fact find support from the medico legal examination wherein doctor found blackening and tatooning on the injuries of the injured. Hence, presence of eye witnesses P.W.1 Naseem and P.W.2 Nisar is fully established.

(51) So far as, non-examination of the independent witnesses are concerned. It is not always necessary that the independent witnesses should be produced by the prosecution. It is always necessary that independent witnesses are willing to deposed agianst the accused. In Sadhu Saran Singh v. State of U.P. and Ors. 2016 CRI. L.J. 1908 has held as under :-

"(VI) As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the Court as they feel it distressing and stressful. Though, this kind of human behaviour is indeed unfortunate, but it is a normal phenonmena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy."

(52) It is also settled legal position that quality not quantity of evidence which matters in a criminal trial. It is always not necessary that large number of witnesses should be produced to prove the charges against accused rather if injured witnesses are produced whose evidence is trustworthy and reliable then conviction can be based on his evidence. Hence, we are of the considered view that even if independent witnesses are not produced then prosecution evidence cannot be discarded.

(53) There are some lapses on the part of the investigating officer. P.W.1 Naseem has stated that he has not got spot inspection done by the investigating officer. In the evidence of P.W.4 investigating officer has stated that he cannot say as to whether the complainant accompanied him to the occurrence of place or not. P.W.4 investigating officer has prepared the site plan. On whose pointing out, he prepared the site plan is not stated by him. But the suggestion which was given to P.W.1 Naseem by the defence shows that the incident has taken place on the road. It is stated by " यह सही है कि जब इस सड़क के पशचमी अन्य बागात में एक बाग़ अशफ़ाक़ के पिता बुनियाद अली के है, घटना वाले दिन आम के फसल का दिन था ऐसा नहीं है कि हमलोग बाहरी बाग़ बचाने वाले लोगो का दबंगई के कारण धमका कर आम तोड़ा करते थे| ऐसा नहीं है कि घटना वाले दिन सुबह हम उपरोक्त चारो लोगो का जबरदस्ती व चोरी से आम तोड़ने के लिया बागवानों ने पीछा किया उनसे झगड़ा हुआ फायर हुई और हमलोगों ने अशफ़ाक़ को बुरी तरह मारपीट कर घायल कर दिया| (54) P.W. 2 Nisar another suggestion was given to P. W.1 that " यह भी कहना गलत है कि गांव के दक्षिण पर इसी सड़क पर भागते समय आम बचाने वाले के फायर हमलोगों को चोट आया और हमलोग वही असहाय कर मारे जिसे आज चोट आये है जिससे उसके हाथ पैर टूट गए | "

(55) This suggestion itself shows that the defence is admitting the incident as well as place of occurrence. Although, the investigating officer has also committed certain mistake. It settled legal position that a defect in the investigation could not extend any benefit to the accused.

(56) P.W. 2 Nisar is also the real brother of the P.W.1 Naseem who has also supported the prosecution version. He is also an injured witness who has received injuries of firearm from a distance of 7-8 feet. This witness reached at the spot from his field from the eastern side as has been discussed earlier. There is a little discrepancies about arrival of the two witnesses at the sport. But that itself is not shown material which may affect the credibility of their evidence. P.W.2 Nisar has stated that he along with his brother got injuries by firing of accused. He reached at the spot on hearing shrieks of his uncle Dunna. Initially, he ran towards the spot on hearing the sound of firing. When he reached near the place of occurrence, he found that all the accused were standing surrounding his uncle. When he alongwith his brother Nisar reached accused also fired upon them with close range which caused injuries to them. Statement of this witness finds support from the medico legal evidence of P.W. 3 Dr. Dubey. P.W. 2 Nisar has also explained the injuries of accused Ashfaq wherein it is stated that Ashfaq received the injuries in this incident but the nature of injuries caused to Ashfaq is such which is trivial type of injuries which could not be extend the benefit of right of private defence in favour of the accused. We are of the considered view that the evidence of P.W.2 Nisar is also fully reliable.

(57) Learned counsel for the defence submits that the dead body was found at the main door of the house of deceased on cot. While according to the prosecution version incident took place on the road how the dead body reached there is not explained by the prosecution. It has come in the evidence of P.W.1 Naseem and P.W.4 investigating officer that the distance of the house of deceased and P.W.1 Naseem from the place of occurrence is about 100 yards. Neither eye witness nor the investigating officer was cross-examined on the point as to how the dead body reached there. Even if the death body was found on the cot, it does not make any differences on the point of place of occurrence. As has been held earlier place of occurrence was constructed road wherein defence himself is taking a plea that the injuries were caused in exercise of the right of private defence.

(58) It is submitted that according to the prosecution of 10 accused fired upon the deceased as well as injured persons. Whose fire hit the deceased and whose fire hit the injured could not be established. Hence, the benefit of doubt should be given to accused. In the first information report all the accused are named. Further P.W.1 Naseem has specifically stated the name of all the accused. It is specifically stated that accused Sarafat Ali was armed with licensed double barrel gun and other armed with country-made single barrel gun. Presence of all the accused is fully established from the evidence of P.W.1 Naseem and P.W.2 Nisar. It has also come in the evidence that all the accused were firing when the presence of all the accused alongwith overt act committed by them is stated by the witnesses then the presence of all the accused cannot be doubted.

(59) According to P.W. 5 Dr. V. R. Saxena injuries on the body of the deceased-Dunna must have been caused by firing from a distance. He did not find any blackening or tatooning on the injuries. Further dispersal was also in large area. According to the prosecution, accused Sharafat was armed with double barrel licensed gun. While, other accused were armed with single barrel country-made gun. P.W.1 Naseem has stated that the firing was done upon the deceased-Dunna from a distance of about 15 to 20 steps. It means that the injuries corelates with the ocular testimony of P.W.1 Naseem, P.W.2 Nisar. So far as injuries of P.W.1 Naseem and P.W.2 Nisar are concerned, there were blackening and tatooning on the wounds. P.W.2 Nisar has stated that fires upon P.W.1 Naseem and P.W.2 Nisar were made from a distance of about 3-4 'Kassi'. One kassi means three steps and one step is measured about two feet. Meaning thereby that fires were shot at a close range of about six feets. This statement further finds support from the medico legal examination report of P.W.1 Naseem and P.W.2 Nisar which was duly proved by P.W.3 Dr. Anjani Kumar Dubey, who has stated that the injuries of Naseem and Nisar were caused by firing from a distance of about six feet. Hence, so far as, fire arms injuries of deceased-Dunna and fire arms injuries received by P.W.1 Naseem and P.W.2 Nisar are concerned, they are fully proved by the ocular evidence as well as fully supported and corroborated by the medical evidence.

(60) Now, it is to be seen as to whether involvement of all the accused in the incident is proved by the prosecution or not ? All the accused are named in the first information report which was lodged by P.W.1 Naseem who himself is an injured in the incident. Scribe of the report is produced by the defence as D.W.1 Mujeeb Ahmad, who has proved that the written report was dictated to him by injured Naseem. First information report was lodged promptly as we have already held that it was not ante-time as has been argued on behalf of accused-appellants. Further, first information report contains all the facts relating to the incident. We have already held that the first information report is reliable document. Further, P.W.1 Naseem and P.W 2 Nisar are injured witnesses who have deposed before the court that all the accused have caused injuries to Dunna as well as Naseem and Nisar. Dunna succumbed due to the injuries. Nature of injuries coupled with the medico-legal evidence also corroborates the prosecution version. It is the defence case that accused Ashfaq has also received injuries in the same incident and Israr lodged the FIR at the police station which has already been discussed in the earlier part of body of the judgment. Incident in question is fully proved by the evidence of prosecution, thereafter by the defence taken by the accused.

(61) So far as role of accused in commission of crime is concerned, according to the prosecution version, all the accused have assaulted upon the deceased Dunna and injured Naseem and Nisar by the firearms. Ocular evidence of PW-1 Naseem and PW-2 Nisar coupled with the evidence of PW-3 Dr. Anjani Kumar Dubey and PW-5 Dr. V.R. Saxena establishes that the deceased Dunna and injured Naseem and Nisar have received firearm injuries on 14.7.1999 at 7:30 AM. Defence itself has taken a plea of cross version that accused Ashfaq have received injuries in the incident and accused Israr has taken the accused Ashfaq to the police station to lodge the first information report which part has already been discussed in the earlier part of the judgment. Now, it is to be seen as to whether the involvement of all the accused in commission of the crime is proved or not ? Whether all the accused can be punished with the aid of Section 149 IPC ? Whether an unlawful assembly was made by them? Whether in furtherance of the common object of the unlawful assembly all the accused can be held guilty with the aid of section 149 ?

(62) In recent judgment of the Hon'ble Apex Court State of Maharashtra versus Ram Lal Devappa Rathod and others (2016) 2 SCC Criminal 638 Hon'ble the Apex Court has held as under :-

"22.We may at this stage consider the law of vicarious liability as stipulated in Section 149 IPC. The key expressions in Section 149 IPC are:

(a) if an offence is committed by any member of an unlawful assembly;

(b) in prosecution of common object of that assemble;

(c) which the members of that assembly knew to be likely to be committed in prosecution of that object;

(d) every person who is a member of the same assembly is guilty of the offence.

This section makes both the categories of persons, those who committed the offence as also those who were members of the same assembly liable for the offences under Section 149 IPC, if other requirements of the section are satisfied. That is to say, if an offence is committed by any person of an unlawful assembly, which the members of that assembly knew to be likely to be committed, every member of that assembly is guilty of the offence. The law is clear that membership of unlawful assembly is sufficient to hold such members vicariously liable.

23. It would be useful to refer to certain decisions of this Court. In State of U.P. v. Kishanapal (2008) 16 SCC 73: it was observed :

"47....... It is well settled that once a membership of an unlawful assembly is established it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. In other words, mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unalwful assembly or such which the members of the unlawful assembly knew were likely to be committed."

Further in Amerika Rai v. State of Bihar (2011) 4 SCC 677 it was observed as under :

"13. The law of vicarious liability under Section 149 IPC is crystal clear that even the presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly."

24. The liability of those members of the unlawful assembly who actually committed the offence would depend upon the nature and acceptability of the evidence on record. The difficulty may however arise, while considering the liability and extent of culpability of those who may not have actually committed the offence but were members of that assembly. What binds them and makes them vicariously liable is the common object in prosecution of which the offence was committed by other members of the unlawful assembly. Existence of common object can be ascertained from the attending facts and circumstances. For example, if more than five persons storm into the house of the victim where only few of them are armed while the others are not and the armed persons open an assault, even unarmed persons are vicariously liable for the acts committed by those armed persons. In such a situation it may not be difficult to ascertain the existence of common object as all the persons had stormed into the house of the victim and it could be assessed with certainty that all were guided by the common object, making every one of them liable. Thus when the persons forming the assembly are shown to be having same interest in pursuance of which some of them come armed, while others may not be so armed, such unarmed persons if they share the same common object, are liable for the acts committed by the armed persons. But in a situation where assault is opened by a mob of fairly large number of people, it may at times be difficult to ascertain whether those who had not committed any overt act were guided by the common object. There can be room for entertaining a doubt whether those persons who are not attributed of having done any specific over act, were innocent bystanders or were actually members of the unlawful assembly. It is for this reason that in Masalti v. State of U.P., AIR 1965 SC 202 this Court was cautious and cognizant that no particular part in respect of an overt act was assigned to any of the assailants except Laxmi Prasad. It is in this backdrop and in order to consider "whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly", this Court at SCR pp. 148-49 in Masalti v. State of U.P., AIR 1965 SC 202 observed that his participation as a member of the unlawful assembly ought to be spoken by more than one witness in order to lend corroboration. The test so adopted in Masalti was only to determine liability of those accused against whom there was no clear allegation of having committed any overt act but what was alleged against them was about their presence as members of the unlawful assembly. The test so adopted was not to apply to cases where specific allegations and overt acts constituting the offence are alleged or ascribed to certain named assailants. If such test is to be adopted even where there are specific allegations and overt acts attributed to certain named assailants. it would directly run counter to the well-known maxim that "evidence has to be weighed and not counted" as statutorily recognised in Section 134 of the Evidence Act.

(63) It was further held that "We do not find anything in Masalti v. State of U.P., AIR 1965 SC 202 which in any way qualifies the well settled principle that the conviction can be founded upon the testimony of even a single witness if it establishes in clear and precise terms, overt acts constituting the offence as committed by certain named assailants and if such testimony is otherwise reliable. It was further held that the test adopted in Masalti (supra) is required to be applied while dealing with the cases of those accused who are sought to be made vicariously responsible for the acts committed by others only by virtue of their alleged presence as members of unlawful assembly when any specific allegations of overt acts committed by them or where giving the nature of the assailant by the mob, the court comes to the conclusion that it would have been impossible for particular witness to have witnessed the relevant facets constituting the offecne.

(64) In another recent case of Susanta Das v. State of Orissa, (2016) 4 SCC 371 Hon'ble the Apex Court has dealt with the provisions of Section 149 IPC and held that it has to be necessarily shown that there was an assembly of five or more persons forming an unlawful assembly. When once such an participation of five or more persons is shown who indulge in an offence as a member of such an assembly, for the purpose of invoking section 149 IPC, it is not necessary that there must be specific overt act played by each of the member of such an unlawful assembly in the commission of an offence. What is required to be shown is the participation as a member in pursuance of a common object of the assembly or being a member of that assembly such person knew as to what is likely to be committed in prosecution of any such common object. Hon'ble the Apex Court has further placed reliance upon Ajit Savant Majagvai versus State of Karnataka (1997) 7 SCC 110. Hon'ble the Apex Court further approved and relied upon Rajendran versus State of Tamil Nadu (2004) 10 SCC 689 and Bishna versus State of West Bengal (2005) 12 SCC 657.

(65) In the Susanta Das case (supra) the facts of the case were that on 3.4.1996 at about 4:00 PM PW-8 and 11 alongwith deceased Padma Lochan Jena was attacked by accused who were five in number, each of them armed with deadly weapon. Learned trial court convicted the accused Ashok Das for offence punisable under section 302 IPC but acquitted the other accused on the ground that no clinching evidence was found to support the individual role played by each of the accused. On appeal High Court reversed the finding of acquittal and sentenced the four accused who were acquitted by the trial court. On appeal Hon'ble the Apex Court had dismissed the appeal holding that all the accused were liable for conviction with the aid of Section 149 as participation of all the accused in the offence was established.

(66) In the present case in the first information report PW-1 Naseem has named all the accused armed with firearms in the first information report. In the evidence also PW-1 Naseem and PW-2 Nisar, who were also injured in the incident, named all the accused and assigned them the role of firing. As has been held in the earlier part of the judgment defence version of self defence has failed, prosecution has successfully established the specific role of all the accused who have formed an unlawful assembly at the place of occurrence. It is proved by the evidence of PW-1 Naseem and PW-2 Nisar that accused have formed unlawful assembly near the place of occurrence. They all were present there. When the deceased Dunna came he was assaulted by the firearms by the accused in furtherance of the common object of the unlawful assembly.

(67) Hence, we are of the considered view that the learned trial court has rightly held the accused guilty for the offence of committing murder of Dunna and causing injuries to Naseem and Nisar. Prosecution has successfully proved the charges against the accused appellants.

(68) We are of the considered view that appeals are devoid of merit and are liable to be dismissed and are accordingly dismissed. Impugned judgment and order of conviction and sentence is confirmed. Accused appellants are in jail. They shall serve out the sentence as imposed by the learned trial court.

(69) Office is directed to certify this order to the learned trial court to ensure compliance. Office is further directed to transmit the lower court record forthwith.

(Anil Kumar Srivastava-II,J.) (Anil Kumar,J.) Order Date :- 29.09.2016 kvg/Subodh/-

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