Allahabad High Court
Durga Prasad Son Of Panna Lal And Ors. (In ... vs State Of U.P. on 23 August, 2007
Author: K.S. Rakhra
Bench: K.S. Rakhra
JUDGMENT K.S. Rakhra, J.
1. This is an appeal against the judgment and order dated 19.2.1981 passed by the VIII-Additional Sessions Judge (Non-Metropolitan Area), Kanpur in Sessions Trial No. 208/1979 convicting the appellant Durga Prasad and sentencing him to life imprisonment under Section 302 IPC, 7 years imprisonment under Section 307/149 IPC, two years imprisonment under Section 148 IPC and one year imprisonment under Section 323/149 IPC; appellant Arvind Kumar two years imprisonment under Section 148, 7 years imprisonment under Section 307 IPC life imprisonment under Section 302/149 IPC and one year imprisonment under Section 323 read with Section 149 IPC. The remaining 8 appellants namely, Ram Sewak, Sajivan, Ashok Kumar, Jai Prakash, Babu Lal, Jawahar son of Moti Lal, Sidh Nath and Ram Narain have been sentenced to life imprisonment under Section 302/149, 7 years imprisonment under Section 307/149 IPC, one year imprisonment under Section 323/149 IPC and one year imprisonment under Section 147 IPC.
2. During pendency of this appeal, four of the appellants namely, the appellant Durga Prasad, Ram Sewak, Sajivan and Ashok Kumar have died and, therefore, their appeal has abated.
3. The factual matrix of the prosecution case is that on 02.10.1977, at about sunset, Daya Shanker informant his brother Laxmi Shanker along with Baikunth alias Thullu, Devi Shanker, Devi Prasad and Jagdamba, were returning to their village Devpalpur after witnessing a wrestling competition (Dangal) at village Gadewa. When they reached near a pond known as 'Kadarwa Talab', the 10 appellants named above, who were laying in ambush and were armed with Lathis except Durga Prasad who was armed with a gun and Arun who was armed with a country made pistol, came out and started wielding Lathis on informant and his party and the latter also used Lathis in their defence. The appellant Ram Narain gave a Lathi blow to Laxmi Shankcr who tried to run away towards his village but Durga Prasad who was standing in front of him, opened fire whereupon, Laxmi Shanker received injury and fell to the ground. Jagdamba of the party of the informant, somehow, succeeded in snatching away the gun from the appellant Durga Prasad. Appellant Arun Kumar then aimed his pistol on Jagdamba whereupon, the latter took to his heels and ran away to the village along with the gun of Durga Prasad. Arun Kumar, however, opened fire on him from the backside causing firearm injury on the leg of Jagdamba but despite the injury, he succeeded in reaching his village. All this was witnessed by Laxmi Kant PW-3, besides Ayodhya Prasad, Rama Kant etc. When the witnesses started collecting, Durga Prasad and his party ran away. The incident took place within the circle of police station Shivali at Kanpur District.
4. In this incident, Laxmi Shankcr the deceased and Jagdamba PW-2 had received firearm injuries whereas, informant Daya Shankcr PW-1 and Devi Shanker had received Lathi injuries. Jagdamba and Laxmi Shanker were rushed by the informant and others to Hallet Hospital also known as LLRM Hospital at district Headquarter of Kanpur where, Laxmi Shanker breathed his last.
5. The prosecution further claims that the informant Daya Shankcr tried to lodge FIR about this crime at police station Swaroop Nagar of district Kanpur which was close by Hallet Hospital but the police refused to entertain his report and directed him to lodge the same at police station Shivali within whose jurisdiction, the crime had been committed. The FIR of the incident thereafter, was lodged in the night of 2/3.10.1977 at 01:30 a.m. at police station Shivali and was registered as crime No. 250-A/1977 and all the appellants were named in the report. Admittedly prior to the registration of the report of Daya Shanker, another case was registered as crime No. 250/1977 on the report lodged by the appellant Sajivan Lal scribed by the appellant Arun Kumar against 8 persons including Daya Shanker and his party men Baikunth, village Pradhan Mahavir, Up-Pradhan Shiv Kumar etc. That FIR was registered under Section 302 IPC at 11:30 p.m. on 02.10.1977. Sajivan Lal had alleged that Daya Shanker and others had assaulted him and his party whereupon, he and his companion Durga Prasad had received serious injuries while another companion Manni Lal was killed. The date and time of the incident alleged by Sajivan Lal was also 2.10.1977 at 07:30 p.m. Since report of Sajivan Lal had already been registered and date and time of both the incidents i.e., one lodged by Sajivan Lal and the other by the informant of the present case Daya Shanker, was almost the same, the police registered report of Daya Shanker as the crime No. 250-A/1977.
6. The motive for commission of crime, alleged by the prosecution, was that the deceased Laxmi Shanker was a recovery witness in a case registered against the appellant Ram Narain and Durga Prasad at police station Swaroop Nagar, Kanpur wherein the police had shown recovery of some stolen property from their houses. These two appellants were persuading and pressurising Laxmi Shanker to file an affidavit to the effect that said recovery was made not from their house but was made from a 'Ghoora' outside the house. The deceased Laxmi Shanker did not accede to their request which became the immediate motive for commission of this crime.
7. Besides this, the prosecution claimed that the appellant SajivanLal had forcibly occupied some Gram Samaj land. The village Pradnan Mahavir Prasad and Up-Pradhan Shiv Prasad who were related to the informant Daya Shanker, had initiated legal proceedings by filing suit against Sajivan Lal and others which was another ground for annoyance. The third ground for annoyance was that the appellant Ram Narain used to frequently send complaints against complainant's party. In fact the enmity between the two sides has not been disputed by the defence also. The suggestion was even to the effect that Sajivan got Up-Pradhan Mahavir Prasad booked under MISA.
8. The appellants are either related to each other or are otherwise, close relations with one another. The appellant Durga Prasad is the father of the appellant Jai Prakash and appellant Babu Lal. Jawahar Lal and Ashok Kumar are cousin brothers of Durga Prasad. The appellant Ram Narain is his co-lateral uncle and Sidh Nam is the son of the sister of Durga Prasad. The appellant Arun Kumar is said to be the cousin brother of Sidh Nath. The prosecution has further claimed that the real sister of the appellant Ram Sewak is married to the cousin brother of Durga Prasad and that the appellant Sajivan Lal is a servant of Durga Prasad since his childhood. His brother takes land of Durga Prasad on Batai. The defence has not questioned these relationships.
9. Laxmi Shanker the deceased, was medically examined at Hallet Hospital by Dr. S.P. Tiwari PW-6 and the following injuries were found on him at 08:30 p.m.:
(1) Multiple punctured wounds on right side of face and scalp; present outer to the outer angle of right eye in front above and behind and below the right ear. About more than 20 in, number size 1/4" x 1/4" wound of entry depth not measured margins not well defined fresh bleeding present, no tattooing no charring of skin. No wound of exit on opposite side. (2) Lacerated wound in front of the lobule of right car, 3/4" x 1/2" skin loss, fresh bleeding on the base of wound one punctured wound also present size 1/4" x 1/4" depth not measured. (3) Diffused swelling present all over the right side of face and scalp, in front & below above & behind the ear. (4) Puffiness over the right upper eyelid with black pigmentation.
In the opinion of the doctor, all the injuries were fresh. The injury No. 1 was caused by firearm and injury No. 2 by blunt weapon like Lathi. The injury No. 3 was the effect of injury No. 1 and 2.
10. Similarly, injuries of Jagdamba Prasad PW-2 were examined by Medical Officer at the same Hospital on 2.10.1977 at 10:35 p.m. by Dr. Subhash Chandra Asthana PW-7 and the following injuries were found on his person:
1. Punctured wound with lacerated margins 0.3 cm diameter in mid calf region--Lt. leg. No tattooing or charring. Depth could not be probed. Hematoma of 1" diameter around punctured wound.
2. Punctured wound 0.2 cm diameter with lacerated margins. Depth could not be probed in It. calf 1" below injury (1) clotted blood present around wound. On being cleaned fresh bleeding present.
11. In the evidence this witness has stated that while describing the above injuries, he has committed error in showing them to be on left leg whereas, they were on right leg. In his opinion, these injuries were caused by firearm on 2.10.1977 at around 05:30 or 06:00 p.m.
12. Similarly, same doctor Subhash Chandra Asthana had examined the injury of another injured of the informant party i.e., Devi Shanker at 11:15 p.m. and had found the following injury:
One abrasion 0.5 cm on lateral side of left wrist.
The injury was fresh and was caused by blunt object.
13. The informant Daya Shanker PW-1 had gone to police station Shivali at 01:30 a.m. in the night to lodge his report. Sajivan informant of crime No. 250/1977 was already there. After registering the report of Daya Shanker, he as well as Sajivan were sent by thepolice to PHC Chaubeypur for examination of their injuries. Dr. Laxmi Sahai Jauhari PW-9 who had examined their injuries had found the following injuries on Sajivan Lal appellant on 3.10.1977 at 10:00 a.m.:
(1). Lacerated wound 1" x 1/4" x 1/4" depth superficial at Lt. side of scalp, 2 1/2" from midline of scalp. (2). Traumatic swelling 1" x 1" at rt. side of scalp 3" above rt. ear.
(3). One contusion 1/2" x 1/2" at the rt. shoulder region.
(4). Traumatic swelling at whole of rt. shoulder region around injury No. 3, on scalp 3 1/2" x 3 1/2". (5). One contusion 2 1/2" x 1/2" at posterior aspect of Rt. elbow joint.
(6). One abrasion 1" x 1/2" at posterior aspect of Lt. wrist joint. Duration-within 12 to 24 hours.
The injury No. 1 to 6 and 7 were simple injuries while rest were kept under observation. According to his opinion, all these injuries could have been suffered on 2.10.1977 at 5:30 or 6:00 p.m. and were caused by blunt object like Lathi.
14. The informant of the present case, was taken into custody by the police when he had gone to lodge his report. On reference made by the police, Dr. Jauhari PW-9 had examined Daya Shanker the informant on 4.10.1977 at about 12:00 in the noon and had found following injuries on his person:
1. Traumatic swelling 1 1/2" x 1 1/2" at Lt. side of scalp 1/2" from midline of scalp.
2. One abrasion 1/2" x 1/4" at posterior aspect of upper 1/3rd of Lt. forearm, (superficial).
3. One contusion 3" x 1/2" at posterior aspect of upper 1/3rd of Lt. forearm, oblique in shape at size of Injury No. 2.
4. One abraded contusion 1 1/2" x 1/2" at Ant. aspect of Lt. leg 3" below Lt. knee joint.
In his opinion, the injuries were caused by blunt object like Lathi and were about 48 hrs. old.
15. Since Laxmi Shanker had died on 2.10.1977 itself at Hallet Hospital (Lala Lajpat Rai Hospital), Kanpur within the circle of PS Swaroop Nagar, the inquest of the dead body was performed by SI Kishan Kal PW-13. The corpse was sent for autopsy which was performed by Dr. S.K. Govil who also found corresponding injuries as were found by Dr. S.P. Tiwari of LLR Hospital, who had examined the injuries on 2.10.1977 while the victim was alive. The cause of death as determined by the doctor on autopsy was shock and haemorrhage resulting from multiple gunshot wounds in an area of 5 inches x 4 inches on the right side of the face in the region of right ear. The margin of the wounds were blackened and each wound was 1/5 inches x 1/5 inches x scull deep. The autopsy report has been proved by PW-16 Dr. B.K. Sharma.
16. Durga Prasad appellant who also claimed to have received injuries, was medically examined by Dr. A.K. Gupta PW-15 at 2:00 a.m. on 3.10.1977 at UHM Hospital, Kanpur by Emergency Medical Officer as a private case in the presence of Shiv Kumar Pandey brother of Durga Prasad and the following injuries were found:
(i). Lacerated wound 3 cm x 0.5 cm scalp deep right side top of head.
(ii). Lacerated wound 4 cm x 0.5 cm x scalp deep sittated 2.5 cm below injury No. 1.
(iii). Contusion 4 cm. x 4 cm. just over right ear.
(iv). Lacerated wound 3 cm x 0.5 cm x muscle deep on the lower part of chin.
(v) Multiple contusion with one abrasion 6 cm x 2.5 cm on the back of chest and abdomen.
(vi). Traumatic swelling 5 cm x 3 cm on dorsal side of left hand.
(vii). Traumatic swelling whole of right hand dorsal side with little and ring finger.
(viii). Traumatic hard swelling 12 cm x 6 cm. back of left leg in upper half.
(ix). Traumatic swelling 5 cm x 4 cm medial side of right leg.
In the opinion of the doctor, all the injuries except injury No. 5, 6 and 7, were simple. The injury No. 5, 6, and 7 were kept under observation. He opined that Durga Prasad could have suffered these injuries on 2.10.1977 at 05:30 or 6:00 p.m. by Lathi.
17. At police station Shivali on the report of Daya Shanker, the case was registered under Section 147, 148, 149, 302, 307 IPC and investigation was undertaken by the SI Hardev Singh PW-4. After one day's investigation, it was taken on by the SHO of PS Shivali Sri Lallan Rai PW-5 who ultimately filed chargesheet against all the appellants.
18. In the trial court, the appellant Durga Prasad admitted the fact that the incident took place in the field of Moti Lal as alleged by the prosecution but claimed that it took place in a different manner. According to him, he alone was returning to his village Devpalpur after witnessing the "Dangal" and when he reached near 'Kadarwa Talab', he was encountered by Jagdamba, Devi Shanker, Laxmi Shanker, Devi Prasad and Daya Shanker. When he was about to walk past them, they opened an attack on him with Lathis. Daya Shanker informant had exhorted his companions to snatch away his gun and to eliminate him as he along with ManniLal was doing Pairvi for the cause of Harijans. On the attack being made, his gun which was loaded, fell from his hands and accidentally, a fire was made. He was beaten so severely that he became unconscious and regained consciousness only when his brother Shiv Kumar had taken him to Ursla Hospital at Kanpur. This stand was taken by Durga Prasad in his statement under Section 313 Cr PC.
19. Appellant Arun Kumar in his statement under Section 313 CrPC disclosed that he is the grandson of ManniLal deceased of crime No. 250/1977 PS Shivali under Section 302 IPC. According to him, ManniLal was a prosecution witness in a case under Section 302 IPC against the father of deceased Laxmi Shanker and informant Daya Shanker. He was also a witness for the prosecution in a case under Section 436 IPC against Laxmi Kant PW-3. About the incident, he claimed that on 2.10.1977, at 8:30 p.m., he was informed by the appellant Sajivan at village Talaganj that his grandfather ManniLal has been killed by Daya Shanker, Mahavir, Ram Kumar, Chhunni, Rama Kant, Kripa Shanker, Shiv Prasad. On getting the information of the incident from appellant Sajivan, he prepared a written report and sent it to the police station Shivali under his signature through appellant Sajivan. He further claims that incident relating to crime No. 250-A/1977 i.e., the incident of the present case also took place on the same day but it was subsequent, to the incident in which Manni Lal had been killed. On account of enmity and also because he is the informant of crime No. 250/1977 PS Shivali, he has been falsely implicated in the case. Appellant Jai Prakash and appellant Ram Sewak claimed that they have been falsely implicated. Jai Prakash was falsely implicated also in a criminal complaint with regard to murder of ManniLal but has been acquitted therein. Ram Sewak claimed that he is the Khandani of Manni Lal and was an eyewitness of his murder. Since the informant and his party members were chargesheeted in the murder of Manni Lal, he has been falsely implicated. Appellant Ram Narain, in his statement under Section 313 Cr PC referred to the murder of Manni Lal. According to him, on 2.10.1977 he along with Manni Lal, Sajivan, Babu, Dhobi, Arjun, Jawahar and Ram Sewak were returning to their village after witnessing Dangal in village Garewa when near Railway Crossing Tataiyaganj, ManniLal was done to death by Daya Shanker, Mahavir, Rama Kant, Baikunth Nath, Shiv Kumar, Shiv Prasad, Kripa Shanker, Raj Kumar, Chhanni in his presence. Since he was a witness in this crime, in subsequent report in crime No. 250-A/1977 at police station Shivali the informant Daya Shanker named him also as an accused.
20. Similarly, appellant JawaharLal claimed to be an eyewitness of murder of ManniLal and says that he has been falsely implicated. Appellant Ashok Kumar has claimed that he has been falsely implicated being Khandani of Durga Prasad.
21. In order to prove its allegations, the prosecution had examined 16 witnesses in all out of them, informant Daya Shanker PW-1; injured witness Jagdamba PW-2 and Laxmi Kant PW-3 claimed to be the eyewitnesses of the occurrence. They have fully supported the prosecution version with regard to date, time and place of the occurrence, the participation of all the 10 appellants as well as the role and weapons attributed to each of them. Laxmi Kant PW-3 is the resident of the same village and at the relevant time, was going with few others to ease himself near the pond when he saw the occurrence.
22. SI Hardev Singh PW-4 is the first investigating officer who received papers of this crime on 3.10.1977 at 08:00 a.m., for the purpose of investigation, when he was busy in the investigation of some other crime. He had found Jagdamba Prasad PW-2 in the village and on his pointing a site plan of the place of occurrence was prepared and samples of bloodstained and plain earth were collected from the field of Moti Lal Pandey. He had also found from the place of occurrence one Tikli (paper seal used on the mouth of the cartridge) and collected the same after preparing a recovery memo. He has supported the prosecution version and added that on the next day, the investigation was taken over by the SHO Lallan Rai. PW-5 Lallan Rai also supported the prosecution version. He had also collected the injury report of Daya Shanker. PW-2 Jagdamba who had snatched away the gun of Durga Prasad, had deposited the said gun at police station Shivali on 9.10.1977. The investigating officer collected the memo relating to the deposit of the gun and recorded the statement of witness, he also collected inquest and postmortem reports and effected the arrest of the accused persons. After completion of investigation, he submitted chargesheet.
23. Rest of the witnesses examined by the prosecution, are formal witnesses examined for proving various medical reports, inquest and post mortem examination reports. In short, Dr. S.P. Tiwari PW-6 had medically examined Laxmi Shanker at LLR Hospital and issued injury report, Dr. Subhash Chandra Asthana PW-7 had examined Jagdamba Prasad and Devi Shanker on 2.10.1977 and issued injury reports showing the injuries which have already been mentioned. Dr. J.N. Dwivedi PW-8 had taken X-ray of right leg of Jagdamba and had given report that there was a metallic shadow like that of a pallet of a firearm, in the right leg of Jagdamba. Dr. Laxmi Sahai Jauhari PW-9 was Medical Officer at PHC Chaubeypur police station Shivali and had examined injuries of SajivanLal on examined on 3.10.1977 at 10:00 a.m. and of Daya Shanker Dwivedi examined on 4.10.1977 at 12:00 noon and had found injuries which have been mentioned earlier. Sri Kripa Shankcr ShukJa PW-10 is a Clerk posted at LLR Hospital Kanpur and had stated on the basis of bed-head-ticket that the deceased Laxmi Shanker was admitted in the Hospital on 2.10.1977 at about 9:00 p.m. and had expired the same day at 10:10 p.m. Sri C.P. Yadav PW-11 is the X-ray Technician of X-ray Department of LLR Hospital who had taken X-ray of Jagdamba Prasad's leg on 2.10.1977.
24. Chandrakesh Singh retired Head-constable was Head Moharrir at police station Shivali and had registered on the report of Daya Shanker, as crime No. 250-A/1977 under Section 147, 148, 149, 302, 307, 323 IPC on 3.10.1977 at 1:30 a.m. He has also proved the fact that on 9.10.1977 Jagdamba Prasad PW-2 had deposited at the police station Shivali one single barrel 12 bore gun with its manufacturing No. 651-68 which is the same gun that had been snatched from Durga Prasad. He has also confirmed the fact that since crime No. 250/1977 had already been registered at the instance of the appellant Sajivan and since Daya Shanker informant of crime No. 250-A/1977 was present at the police station, he was arrested by the police at 1:30 a.m.
25. PW-13 had conducted inquest on 3.10.1977 and had issued inquest report and sent the dead body of Laxmi Shanker for autopsy.
26. Sri J.P.N. Mishra PW-14 Arms Clerk of Collectorate, Kanpur had deposed that in the official records, the Gun No. 651/68 was purchased by Durga Prasad from M/s. Mahboob alam Arms Dealer of Kanpur and was duly registered on the license issued by the Collectorate, Kanpur on 20.9.1977.
27. Dr. A.K. Gupta PW-15, was Medical Officer at Ursla Hospital (UHM) at Kanpur and had examined the injuries of Durga Prasad who was brought by his brother Shiv Kumar Pandey. The injuries have already been mentioned in this judgment.
28. Lastly, Dr. B.K. Sharma, PW-16 was the Medical Officer of Kanpur who had proved the postmortem report issued by Dr. S.K. Govil on 4.10.1977.
29. All these prosecution witnesses supported the prosecution story and deposed about the facts for which they were examined by the prosecution.
30. The accused appellants also examined two witnesses in their defence. Sri Surendra Singh DW-1 was X-ray Technician at Ursla Hospital, Kanpur and had proved the X-ray report issued by Dr. R. Prakash on the basis of X-ray report. Sri Hari Krishna Srivastava DW-2 was the local MLA at the relevant time and had also gone to witness the Dangal. He says that he had seen Manni Lal, Ram Narain, Ram Sewak and JawaharLal in Dangal of village Garewa and deposed that a representation was given to him at the guest house situate at about one mile South of village Garewa. This representation was given by the deceased ManniLal and Ram Narain and this representation was with regard to illegal allotment of Gram Samaj land of village Devpalpur. According to this witness, they had met him with a representation at about sunsel.
31. Admittedly, the case relating to crime No. 250/1977 gave birth to Sessions Trial No. 381/1978 and Sessions Trial No. 69/1979. Both these cases were tried together and ended in acquittal, vide judgment and order dated 30.6.1980, passed by the X-Additional Sessions Judge, Kanpur.
32. We have heard Sri Viresh Mishra, learned Senior Counsel for the appellants and Sri Suman Kumar Yadav, learned A.G.A. for the State and have carefully gone through the evidence on record.
33. The argument raised by Sri Mishra concisely is that there was undue delay in lodging of FIR and it had been lodged after consultation and deliberations as crime No. 250/1977 had already been registered at 11:30 p.m. at police station Shivali on 2.10.1977 on the report of Sajivan Lal. He has also argued that the prosecution had not come with truth as to the origin of the incident and they have not explained the death of ManniLal of the party of the accused persons. The present case and trial relating to death of ManniLal should have been tried as cross cases. According to him, all the witnesses are partisans and interested witnesses; there are contradictions in the statement of the witnesses and the prosecution story given in the FIR. In the alternative, it has been argued by Sri Mishra that there was no evidence on record to show that the accused persons had formed an unlawful assembly with an object to cause death of Laxmi Shanker or to make an attempt on the life of Jagdamba. The argument is that if Durga Prasad had fired on Laxmi shanker, it may be held to be his individual act and he alone would be convicted under Section 302 IPC. Similarly, with regard to appellant Arun Kumar who had fired on Jagdamba when he was running to his village to save his life, the act can be attributed to Arun Kumar alone and not to other co-accused. Since the injury was caused on leg and the circumstances do not show any intention to cause death, Mr. Mishra argued that the case of Arun Kumar could fall only under Section 324 IPC and not beyond it. With regard to rest of the appellants, Mr. Mishra contended that if the prosecution is believed, there conviction can be only for offence under Section 147, and 323 IPC read with 149 IPC.
34. Learned A.G.A. on the other hand, argued that the prosecution evidence is wholly reliable and the eyewitnesses including the injured witnesses have supported the prosecution story. There was unlawful assembly with a common object which was to cause death of Laxmi Shanker or to make an attempt on the members of the opposite parties and, therefore, the conviction of the appellant under various heads by the trial court, is liable to-be confirmed.
35. We have examined the evidence in light of the arguments of both the sides.
36. The evidence on record establishes beyond doubt that the incident in which ManniLal was killed, was a different incident although, the incident of the present crime also took place on the same day after a short interval. The present incident as per the prosecution witnesses Daya Shanker PW-1, Jagdamba PW-2and Laxmi Kant PW-3, took place in the field of Moti Lal Pandey near a pond known as Kadarwa Talab. In fact, Durga Prasad accused had also admitted this place and time of occurrence but has stated that he was alone and was assaulted by Jagdamba etc. in which he was attacked with Lathis and his gun accidentally fired. Not only this, the statement given by the appellant Ram Narain under Section 313 Cr PC also shows that ManniLal was done to death in a different incident near a Railway Crossing Tataiyaganj. Accused Arun Kumar who is grandson of deceased Manni Lal, had also given statement in the trial that the incident relating to crime No. 250-A/1977 of police station Shivali i.e., the incident relating to crime in question, was a separate incident subsequent to the one in which Manni Lal had been killed. It appears that since crime No. 250/1977 was registered at police station Shivali, Kanpur on 2.10.1977 at 10:30 p.m. itself relating to murder of Manni Lal and since there were some common parties and the present informant Daya Shanker was an accused in crime No. 250/1977, the police at police station Shivali, registered subsequent report of Daya Shanker as crime No. 250-A/1977 as if it was a cross case relating to one and the same incident. The facts discussed above, however, made it clear that the incident relating to murder of ManniLal and the incident relating to murder of Laxmi Shanker were different incident although, both these offences were committed in close proximity of time on the same day and some of the parties were common in both of them as per FIR version. We, therefore, do not agree with the contention of Sri Mishra that the two cases were cross cases and any prejudice has been caused due to their separate trials. For the same reason, we also do not find any merit in the argument of Sri Mishra that the prosecution in this case was obliged to explain the death of Manni Lal. The prosecution does not show presence of ManniLal on the spot whereas, the appellant SajivanLal and Durga Prasad were shown present on the spot along with their eight companions and the prosecution also claims that the prosecution party also used Lathis in their defence when they were attacked by the accused persons. The medical evidence and particularly, the statement of PW-9 Dr. Laxmi Sahai with regard to injuries of Sajivan and Dr. A.K. Gupta PW-15 with regard to injuries of Durga Prasad appellant clearly show that they had suffered blunt object injuries. The opinion of the doctor also confirms that these injuries could have been caused on the date and time as alleged by the prosecution. The injuries suffered by SajivanLal and Durga Prasad are, therefore, fully explained by the prosecution and there was no necessity for proving or explaining the injuries resulting into the death of ManniLal which had occurred in the separate incident. Therefore, for want of explanation about the death of Manni Lal, it cannot be said that the prosecution has not cone with clean hands and has concealed real genesis of the incident.
37. The prosecution version of the incident has been fully proved by Daya Shanker PW-1 and Jagdamba PW-2 both of whom are injured witnesses. Their testimonies corroborated by another eyewitnesses Laxmi Kant PW-3 and medical evidence which has been already referred to earlier in this judgment. The presence of injured witnesses cannot be doubted and there are no material contradictions or inconsistencies or even improbability in the deposition made by them. The trial court in our opinion appears to have rightly relied upon their testimonies.
38. There admittedly, was enmity between two sides and as discussed earlier, there was also motive for commission of crime and the immediate motive as stated by PW-1 Daya Shanker, was the refusal of deceased Laxmi Shanker to accede to the request of Durga Prasad and Ram Narain and his insistence to depose in the court against them about the recovery of stolen property in a case of theft registered against them at police station Swaroop Nagar, Kanpur. Appellant Sajivan Lal was also having a grouse against Mahavir Prasad Pradhan and Shiv Prasad on account of their proceeding against him in grabbing of Gram Samaj land.
39. The place of occurrence, besides the deposition of eyewitness, is also confirmed by the fact that the investigating officer had collected bloodstained and plain earth and wad pieces from there. The investigating officer had prepared the recovery memo Ext. Ka-4 and Ka-5 and Durga Prasad appellant had also admitted the place of occurrence.
40. The real question which appears to be arising for consideration is the offence committed by each of the accused appellant in light of the facts established before the court. We find force in the argument of the learned senior counsel Sri Mishra that admitting the entire prosecution story it cannot be inferred that the common object of the assembly of the appellants was to commit murder or to make an attempt on the life of any person. It is significant to note that out of 10 accused persons, 8 were armed with Lathis and only two namely, Durga Prasad and Arun Kumar were armed with firearms. The prosecution version itself shows that the appellants laid in ambush, near the place of occurrence and as the prosecution party, arrived there, all the appellants surrounded them and opened attack with Lathis which was returned by the prosecution party as well. We agree with the argument that if there was any intention or common object of the unlawful assembly to commit murder, the appellants Durga Prasad and Arun Kumar would have opened firearm attack on the prosecution party straight away without there being any exchange of Lathi blows. The description of the incident given by Daya Shanker PW-1 Jagdamba PW-2 also confirms the fact that the common object of their assembly was only to chastise and belabour the members of the prosecution party on account of previous enmity. The testimony of Daya Shanker to the effect that the appellant Ram Narain who was an accused along with Durga Prasad in a theft case of police station Swaroop Nagar had first of all, given a Lathi blow to Laxmi Shanker who was a witness of recovery in the said case. The exchange of Lathi blows started thereafter and when Laxmi Shanker tried to run away towards village Devpalpur, appellant Durga Prasad with a gun was in front of him and opened fire on Laxmi Shanker. In the circumstances mentioned above, we are of the view that murder of Laxmi Shanker on account of firearm injury was nothing beyond an individual act of Durga Prasad falling under Section 302 IPC. Rest of the appellants could not be vicariously held guilty for the act of Durga Prasad as there was neither any common object nor v. as there any common intention of the accused persons to cause death of Laxmi Shanker.
41. Similarly, the testimony of Daya Shanker and Jagdamba PW-1 and PW-2, shows that Jagdamba had snatched away the gun of Durga Prasad when he was trying to load it again. The injuries on Durga Prasad is a corroboration of this fact that he was beaten and gun was snatched. Appellant Arun Kumar had fired on Jagdamba from behind only when the later was running with a gun towards the village Devpalpur. Significantly, Arun had not opened fire in the main incident of assault on the prosecution party nor had fired on Jagdamba till the later snatched away gun of the appellant Durga Prasad. The firing on Jagdamba from behind and the injury caused on the leg of Jagdamba clearly shows that the intention of Arun appellant was only to prevent Jagdamba from taking away the licensed gun used by Durga Prasad in this incident. We are, therefore, of the view that Arun had no intention to cause death or make an attempt on the life of Jagdamba and his act could fall within the scope of Section 324 IPC alone. We are further of the opinion that other appellant cannot be held vicariously responsible for this act of Arun.
42. The very fact that Jagdamba had not lodged any report with the police about the misplacement or snatching away of his licensed gun also is a strong circumstance to show that the prosecution version of the incident is true.
43. The delay in lodging FIR in the present case was fully explained by the prosecution by leading evidence to the effect that Laxmi Shanker and Jagdamba were rushed to Hallet Hospital, Kanpur, situated at a distance of 27 miles and the FIR was lodged at Shivali only after the police at police station Swaroop Nagar in the vicinity of Hallet Hospital had refused to entertain the report of Daya Shanker on the ground that the crime related to police station Shivali. Since the prosecution story is otherwise, established by convincing and reliable evidence, no advantage can be given to the accused for delay in lodging of FIR.
44. Analysing the entire prosecution evidence in the circumstances of the case, we are of the view that prosecution had succeeded in establishing only that the appellant had formed an unlawful assembly, the common object of which was to chastise and belabour the prosecution party on account of previous enmity. The appellant Durga Prasad had exceeded the prosecution of common object of unlawful assembly by firing on Laxmi Shanker causing his death and was in addition liable to have committed an offence punishable under Section 302 IPC. Similarly, appellant Arun exceeded the common object of unlawful assembly in committing an offence under Section 324 IPC by causing firearm injury on the leg of Jagdamba.
45. Since 4 of the appellants i.e., Durga Prasad, Ram Sewak, Sajivan and Ashok have already expired during pendency of appeal and their appeal has abated, the verdict has to be given only with regard to the remaining appellants. In light of the facts and circumstances mentioned above, we are of the opinion that appellant Arun is liable to be convicted for committing offences punishable under Section 148, 324 and 323 read with 149 IPC only. Remaining appellants Jai Prakash, Babu Lal, Jawahar, Sidh Nath and Ram Narain can be held guilty only forcommitting offence punishable under Section 147 and 320 read with 149 IPC. Their appeal is accordingly partly allowed and the conviction of Arun appellant under Section 307 and 302 IPC and sentences passed therein are set aside. His conviction under Section 148 and 323 read with 149 and sentences passed thereon by the trial court is confirmed. He is further held guilty and convicted under Section 324 IPC and sentenced to 3 years rigorous imprisonment.
46. The conviction of appellant Jai Prakash, Babu Lal, Jawahar Sidh Nath and Ram Narain under Section 302/149 and 307/149 IPC and sentences passed thereon by the trial court, arc set aside. Their conviction under Section 147 IPC and 323/149 IPC and sentences passed thereon by the trial court are, however, confirmed.
47. All the appellants are already in custody. Let a copy of this judgment be sent to the trial court for execution of sentences.