Allahabad High Court
Ram Pal vs State Of U.P. on 13 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 2756
Bench: Ritu Raj Awasthi, Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No.-3 AFR CASE :- CRIMINAL APPEAL NO.-577 OF 2009 Appellant :- Ram Pal Respondent :- The State of U.P. Counsel for Appellant:- Ashok Verma, Anil Kumar Pandey (Amicus) Pramod Kumar Shukla, Sanandan Kumar Misra, Soniya Mishra Counsel for Respondent :- G.A., M.L. Syal, Shashi Kiran Arya [AND] CASE :- CRIMINAL APPEAL NO.-371 OF 2009 Appellant :- Babu Ram Respondent :- The State of U.P. Counsel for Appellant:- Arun Sinha, Anoop Bajpayee, D.K. Singh Chauhan, Kapil Misra, Riyaz Ahmad Counsel for Respondent :- G.A. [AND] CASE :- CRIMINAL APPEAL NO.-655 OF 2009 Appellant :- Lala Ram Respondent :- The State of U.P. Counsel for Appellant:- Arun Sinha, Awadhesh Kumar Sharma, Kailash Nath Tewari, Rajiv Mishra, Riyaz Ahmad, Soniya Mishra, Udai Pratap Singh Counsel for Respondent :- G.A. Hon'ble Ritu Raj Awasthi,J.
Hon'ble Vikas Kunvar Srivastav,J.
(As per Vikas Kunvar Srivastav, J.) These three criminal appeals have arisen out from the judgment of Trial Judge, the Additional Sessions Judge (Fast Track Court), No.7 in Sessions Trial No.431 of 1985, dated 03.02.2009, whereby the accused-appellants, namely Ram Pal, Lala Ram and Babu Ram are convicted of the offence punishable under Section 302 IPC read with Section 34 of the IPC and awarded with sentence to undergo life imprisonment with fine to the tune of Rs.5,000/- each. In case of failure to pay the fine, they are further sentenced to undergo imprisonment of six months.
1. The Criminal Appeal no.371 of 2009 is preferred by appellant, ''Babu Ram', represented by Sri Kapil Mishra, Advocate assisting learned Senior designate Sri Jyotindra Mishra, Advocate. The criminal Appeal No.577 of 2009 is preferred by ''Ram Pal', who is represented by learned counsel Sri Anil Kumar Pandey in the capacity of Amicus Curiae. The Criminal Appeal No.655 of 2009 is preferred by ''Lala Ram' who is represented by learned counsel Sri U.P. Singh.
2. Initially, a Case Crime No.48 of 1985 was registered on 4.4.1985 at 7:30 p.m. in Police Station 'Behta Gokul', District 'Hardoi' under Section 302 read with Section 34 of the I.P.C. upon the information of Chhotey Lal, who is further examined by the Trial Court as prosecution witness no.1. The written complaint was directed against: (1) Raj Pal (2) Ram Pal, both sons of Bihari R/o Police Station Behta Gokul, District Hardoi (3) Lal Ram (4) Babu Ram, both sons of Digga R/o village Paitapur, Police Station Pali, District Hardoi.
3. When the first chargesheet was submitted excluding the name of two named accused Lala Ram and Babu Ram by the Police before the Chief Judicial Magistrate, Hardoi, he committed the case, as the same was triable by the Sessions Judge on 17.07.1985. It comes out from the judgment of learned Trial Judge dated 02.01.1987 that Lala Ram and Babu Ram were summoned for trial along with the chargesheeted accused when the first informant chhotelal, during his examination in chief recorded during trial, reiterated the name of aforesaid accused along with other two accused named in the FIR, in exercise of power under the provision of Section 319 Cr.P.C. It also comes out from the judgment that during the sessions trial, accused Raj Pal died, therefore, the trial as against the deceased-Raj Pal was abated vide order dated 19.09.2000. Accordingly, the trial proceeded with three accused, namely, Babu Ram, Ram Pal and Lala Ram. All the three accused after having been convicted and sentenced by the impugned judgment and order of sentence dated 03.02.2009 by the Trial Judge, have preferred their appeal separately which are described hereinabove.
4. All the appellants are accused of the same criminal incident and were tried in the same sessions trial, therefore, evidences adduced against them are common. We heard the learned counsels on behalf of their respective accused-appellants. In our opinion, it would be proper to decide all the three appeals through a consolidated judgment so as to avoid anomaly and contrary finding on the same evidence.
5. The accused-appellants in the three appeals shall be addressed hereinafter as A1 (Babu Ram) in Criminal Appeal No.371 of 2009, A2 (Rampal) in Criminal Appeal No.577 of 2009 and A3 (Lala Ram) in Criminal Appeal No.655 of 2009.
6. The case in brief, as comes out from the written complaint submitted by Chhoteylal, the First Information Report founded thereupon and the evidences, is that on 04.04.1985 at about 7:30 p.m., Chottey Lal S/o Raggha Raidas R/o Village and Police Station 'Behta Gokul', District 'Hardoi' along with Saheb Lal, (injured) approached to the police station with a report written in his hand writing and signature informing thereby that his brother Ganga Ram was killed by the accused person, namely (1) Raj Pal, (2) Rampal both sons of Behari, R/o village and Police Station Behta Gokul, District Hardoi, (3) Lala Ram and (4) Babu Ram both sons of ''Digga' residents of village Paitapur, Police Station Pali, District Hardoi. The report disclosed that on 04.04.1985 at about 6:00 p.m. when the deceased Ganga Ram, his brothers Chottelal (informant) and Saheb Lal, after sowing sugarcanes in their field were on their way to home and reached near the bridge over Sharda Canal, the accused persons namely Raj Pal, Lala Ram (A3), Babu Ram (A1) and Ram Pal (A2), suddenly plunged over the bridge from their hide, intercepted and asked Ganga Ram to halt. Raj Pal (dead) was armed with country-made pistol, A3 with gun, A2 with Lathi (Stick) and A1 was armed with a Gandasa (Chopper). The two accused persons carrying fire arms named above fired on ''Ganga Ram' with their respective weapon due to which he got injuries and collapsed on the ground. Thereafter A1 and A2 inflicted on the body of Ganga Ram blows of Gandasa and lathi respectively. Saheblal in order to save Gangaram received lathi blows from A2 to ward him off and was injured. When Chhotey Lal, the informant made hue and cry, ''Vijay Pal' son of Laxman and ''Kadhiley' son of Sukkha residents of same village Behta Gokul, who were coming on bullock-cart, ran towards the scene of crime. ''Ganga Ram' who was severely injured due to profused bleeding succumbed to death on spot. On seeing the witnesses rushing up to the spot of incident, the accused persons fled away. The informant has also disclosed the motive behind the commission of crime by the accused-appellant, that a criminal prosecution was continuing against the deceased (Ganga Ram), along with the other co-accused, with regard to murder of ''Digga', (father of both A1 and A3), wherein though Sessions Court recorded conviction against all the accused, but in appeal preferred by deceased in the High Court he was released on bail during the pendency of appeal. He further disclosed that father of Raj Pal, namely, Bihari had also lodged a criminal case under Section 307 I.P.C. against deceased Ganga Ram wherein he was acquitted. Because of these reasons, the accused hatched enmity with deceased Gangaram and in vengeance, they attacked Ganga Ram and done him to death on spot. He approached to the police station after the arrival of other family members, leaving dead body in their supervision.
7. It would be important and relevant to take notice of the fact that on receiving the written report from Chhotey Lal, (the informant), the officer in charge of the Police Station registered FIR and the special report was sent to the concerned Magistrate about the commission of the offence. Site map was prepared. Inquest proceeding was done on the spot where the dead body of ''Ganga Ram' was lying since after the incident and ultimately the dead body was sent for post-mortem to the mortuary. From the stage of receiving the written report of the incident upto sending off the dead body for post-mortem, the investigation was done by Sub Inspector 'Ram Ruchi Arya' and thereafter further investigation upto the stage of submission of chargesheet before the concerned Magistrate was done by S.I., Jitendra Nath Singh S.H.O. posted in the Police Station with the first named I.O. The subsequent Investigating Officer, named herein-above, submitted three chargesheets. Out of the four named accused persons in the FIR viz Raj Pal, Lala Ram, Ram Pal and Babu Ram, the first chargesheet was submitted only against Raj Pal and Ram Pal under Section 302 IPC read with Section 34 IPC. Second chargesheet thereafter was submitted against two strangers namely Pramod Kumar and Rameshwar under Section 302 IPC read with Section 34 of the IPC. Lastly, a third chargesheet was submitted by the said Investigating Officer against one more stranger to the FIR, ''Devi Dayal' in the same incident under Section 302 IPC read with Section 34 IPC. In all the three chargesheets the named accused Lala Ram and Babu Ram were not included. Accordingly, the Trial Judge in the matter of murder of Ganga Ram as reported in FIR dated 04.04.1985 by Chhotey Lal, on 19.11.1985 tried along with Raj Pal, Ram Pal the additional chargesheeted accused also Pramod and Rameshwar charging them under Section 302 IPC read with Section 34 IPC. Thereafter once again the charge was framed against Devi Dayal also on 28.07.1986. On 28.07.1986, when trial began, on the denial from charges by the aforesaid accused persons, the informant, Chhotey Lal was produced as PW-1 by the prosecution for examination on oath before the court. He firmly said about the involvement of Raj Pal, Ram Pal alongwith Babu Ram and Lala Ram who were named by him in the FIR. He firmly denied the involvement of Pramod, Rameshwar and Devi Dayal and even stated not to know them. Therefore, the trial Judge exercising its power under Section 319 Cr.P.C. summoned the accused Lala Ram and Babu Ram, who were dropped out from the chargesheet by the Investigating Officer, for trial alongwith the chargesheeted accused persons. Consequent thereupon, the charge of committing offence under Section 302 IPC read with Section 34 IPC with regard to the murder of Ganga Ram with the other two named accused was framed against Babu Ram and Lala Ram on 11.03.1987.
8. The record reveals that during trial accused Pramod Kumar was throughout absconding from last 15 years, therefore his case was separated subjected to the proceedings under Section 299 of the Cr.P.C. Further on the report submitted by the concerned police station about the death of Devi Dayal, his case was abated. Likewise, receiving report about the death of Rameshwar and Raj Pal respectively the proceedings against them were also abated. Thereafter three surviving accused namely Lala Ram (A3), Babu Ram (A1) and Ram Pal (A2) were proceeded with and subjected to further trial.
9. The prosecution to prove its case against the accused-appellants produced eight witnesses and documents prepared during the process of investigation which were proved by their respective witnesses in the court during their examination. For easy reference, the respective witnesses and documents proved by them marked as Exhibits in the course of trial are given hereunder in the appended chart.
PW-1, Chhotey Lal, the informant Proved his written report submitted in the Police Station Behta Gokul.
Exhibit Ka-1 Pw-2, Dr. Surendra Singh Proved the post-mortem report, submitted after autopsy of dead body of deceased Ganga Ram Exhibit Ka-2 PW-3, Vijay Pal, witness of fact PW-4, Dr. P.K. Gangwar Who examined on the reference of Investigating Officer, the injury sustained by Saheb Lal Exhibit Ka-3 PW-5, Sunder Lal, the Head Muharrar, posted in PS Behta Gokul when the incident was reported He proved the First Information Report and entry of the same in G.D. the Nakal report Letter for medical examination of injured Saheb Lal to District Hospital Lucknow and injury report of Saheb Lal Exhibit Ka-4 and Ka-5 Exhibit Ka-6 respectively PW-6, Saheb Lal The injured witness of fact PW-7, Rameshwar Shukla, Constable posted in P.S. Behta Gokul on 04.04.1985 To whom the dead body of deceased Ganga Ram after having been sealed was handed over for carrying the same to Post-mortem House. He submitted his personal affidavit to prove the said fact not cross examined.
Lastely, PW-8, Ram Ruchi Arya, Sub Inspector, posted in PS Behta Gokul at the time of incident.
He did the investigation from the stage of registering the FIR upto the stage of sending the body for post-mortem and also prove the inquest report Challaned Lash along with letter to CMO along with Photos The empty cartridge recovered from the spot of incident prepared the memo thereof on the spot proved in the trial court The plain soil and blood stained soil collected from the spot, sealed, prepared memo thereof and proved in the court.
Prepared site map and proved in the court After stage of sending the body of deceased for post-mortem of sending the body of deceased for Post-mortem, the subsequent Investigating Officer, Jitendra Nath Singh who has submitted three chargesheets, referred hereinabove, was also proved by PW-8, being acquainted with the handwriting and signature of the aforesaid Investigating Officer as PW-8 was working with him during trial at PS Behta Gokul. The chargesheets were proved by him Exhibit Ka-7 Exhibit Ka-8 to Ka-12 Exhibit Ka-13 Exhibit Ka-14 Exhibit Ka-15
10. The trial Judge after recording evidence of the aforesaid prosecution witnesses nos.1 to 8 called the accused-appellants to submit their explanation, if any, against the incriminating facts and circumstances proved on evidences against them under Section 313 of the Code of Criminal Procedure 1973. All the three accused-appellants stated the said evidences false and concocted to implicate them due to enmity. They proposed to produce witnesses in their defence. Consequent thereupon, two witnesses were examined namely, Sushil Bajpayee (DW-1) and Gaya Prasad (DW-2). Sushil Bajpayee supported the plea of alibi of A1 (Babu Ram) deposing that on the date, time and place of incident as reported by PW-1 in his written report and FIR dated 04.04.1985, Babu Ram was not at the spot of incident but was on duty. DW-2 Gaya Prasad stated on oath that he identified three unknown assailants in the District Jail Hardoi who committed the crime with Raj Pal. The Trial Judge evaluated the evidence of aforesaid defence witnesses but did not find the same credible, reliable and trustworthy therefore, discarded. The learned Trial Judge dealing with issues as to the trustworthiness and credibility of the prosecution witnesses held them reliable for recording conviction of the accused-appellants. Learned Trial Judge in his judgment has elaborately discussed both factual and legal aspects of the prosecution case and that of the defence case and held that the prosecution has been successful in proving its case with all certainty beyond all reasonable doubts. The learned Trial Judge thus reached at conclusion that the murder of Ganga Ram was committed by the accused persons named in the First Information Report and none else, therefore, recorded conviction against them for the offence punishable under Section 302 IPC with the aid of Section 34 IPC. Accordingly, awarded the punishment.
11. The learned counsel made submissions on behalf of their respective accused appellants separately. We heard their submissions anxiously devoting several days. We heard the learned Additional Government Advocate for the State and thereafter awarded opportunity of second round of submission in reply to the respective counsels of the appellants. We think it proper and necessary to give a short account of the arguments preferred before us by the learned counsels for the appellants and the respondent State. We perused the voluminous record so as to move ahead for decision on the moot issues involved in all the abovesaid three criminal appeals through a consolidated judgment.
12. Considering the facts and evidences led before the learned Trial Judge and argued before this court also the prosecution case involves four accused, named in the First Information Report dated 04.04.1985, Exhibit Ka-4. The named accused, four in number; are respectively Raj Pal (names), out of whom Raj Pal died during trial. The proceeding abated against him but so far as the role of Raj Pal alongwith other accused as participant in commission of the crime is concerned, it is necessary to be considered in context that accused-appellants are convicted under Section 302 IPC read with section 34 IPC. In other word they are held to have committed the homicide of Ganga Ram in furtherance of their common intention. We are of the opinion to examine and re-appreciate the evidence in view of the above so as to find out whether the prosecution has been successful in proving its case beyond all reasonable doubts. We have to consider also the effect of induction of three other persons as accused by the second Investigating officer J.N Singh namely Pramod Kumar, Rameshwar and Devi Dayal in the context that neither in the First Information Report they were named by the informant nor any of the prosecution witness named them as participant in commission of crime during trial.
Arguments submitted by learned Senior designated Sri Jyotindra Mishra, Advocate assisted by Sri Kapil Mishra , Advocate for and on behalf of the accused-appellant A-1, namely, Babu Ram Contention as to Ingenuinity of the FIR
13. Learned counsel opened his arguments with condemnation of the First Information Report alleging the same ante-timed and ante-dated as the information received from PW-1 (the informant) Chhotey Lal was got reduced into writing after consultation with the Investigating Officer. The purpose behind this was illustrated by contending the fact that only Raj Pal and Ram Pal were charge-sheeted after investigation alongwith two others, namely, Pramod Kumar and Rameshawar in the chargesheet submitted by the Investigating Officer before the Magistrate concerned. The name of Babu Ram and Lala Ram was added on the consultation with informant and accordingly the First Information Report was styled and registered naming them in the written report and FIR which is ante-timed and ante-dated. He further contended that the statements of prosecution witnesses are suffering from serious discrepancies as to the fact, the weapon, namely, Gandasa (Chopper) allegedly held and used by A-1 in the course of commission of offence. PW-1 and PW-6 assigned to A1 the role in inflicting blows of Gandasa, whereas the PW-3 assigned the role to A-1 of having Lathi in his hand while committing the offence in question. Therefore, the witnesses loose their credibility by virtue of such kind of serious discrepancy in their narration as to the commission of offence by the accused-appellant, A-1.
Discrepancies in the testimony of eye witnesses and the reasons not to believe them.
14. Learned counsel further assailed the credibility and trustworthiness as well as the truthfulness of the witnesses on the ground that their oral statement as a witness of incident is not corroborated with the medical evidence. He pointed out towards the Post-mortem report of deceased Ganga Ram which referrers the injuries no.1 to 7 on his body, as lacerated injuries. A lacerated wound which in the opinion of doctors PW-2 who did autopsy on the dead body of Ganga Ram, would have been caused from an article having blunt edge. In the post-mortem report, Exhibit Ka-2, no incise wounds are reported on the body of deceased Ganga Ram, therefore, probability of using ''Gandasa' by accused-appellant A-1 is ruled out. As such the witnesses PW-1 and PW-6 are falsely implicating the accused-appellant A-1, they are not reliable witnesses.
15. He has further submitted that PW-3, Vijay Pal has been declared hostile witness by the prosecution as he did not support the prosecution case against the accused-appellant A-1 of his having used ''Gandasa' in the course of occurrence of killing Ganga Ram. He further drew attention towards the statement of PW-3 in cross examination by prosecution in Para-4 to the effect that he could not see anyone inflicting the blow of Gandasa because he was crying for rescue at that time. Further in his cross examination done on behalf of accused-appellant A-1, in Para 7 he again asserted that he could not see anyone inflicting the blow of Gandasa. He further assigned the role to the accused-appellant A-1 of having Lathi and using the same during the incident by inflicting blow of Lathi upon the body of Ganga Ram, (deceased).
Doubt as to the presence of PW-1 and PW-6 on the spot of incident
16. Learned counsel doubted upon the presence of PW-1 and PW-6 at the time of incident on 04.04.1985. He argued the said two witnesses were not present at the spot of incident and did not see anything and have only told a lie to poise their vengeance against the accused-appellant A-1 due to prolonged enmity.
Doubt as to PW-6 being injured witnesses and alleging him to be a planted witnesses
17. Learned defence counsel further argued that witness Saheb Lal (PW-6) is a planted witness. Neither he is an eye witness nor a witness injured in the occurrence. His injuries were self inflicted by him so as to masquerade him an eye witness present during the incident to falsely implicate the accused-appellant A-1. To fortify his argument, he emphasized on the fact that the medical examination of his alleged injuries were not made promptly but the same was procured in consultation with Investigating Officer on 05.04.1985 in District Hardoi. On the basis of above contention, learned counsel assailed the judgment and order of sentence impugned in this appeal that despite the fact that prosecution failed to prove its case by reliable witnesses, the learned Trial Judge committed serious error in appreciating the evidence.
Plea of alibi taken in defence of ''A1'
18. To prove his allegation against the truthness of prosecution case and particularly against the prosecution witnesses, learned defence counsel relied on the statement of DW-1, Sushil Bajpayee. The DW-1 has deposed that 'Babu Ram Verma' was on duty in the Board Examination during second inning on 04.04.1985, as such he gave evidence in support of plea of alibi so as to show the prosecution witnesses implicating falsely the accused-appellant A-1 who actually was not present on the spot of incident on 04.04.1985 at the relevant time of occurrence.
Arguments of learned counsel Sri Anil Kumar Pandey, Amicus Curiae for and on behalf of the accused-appellant A-2, namely, Ram Pal.
False implications
19. Learned Amicus Curiae assailed the judgment of conviction and sentence against Ram Pal on the ground that he is arraigned in the incident for his being brother of the co-accused Raj Pal (died during the trial). He emphatically relied on statement on oath of PW-1, Chottey Lal to argue that he himself admitted in the statement as to his running away to save his life from the spot. As such the learned Amicus Curiae argued that how one can claim himself an eye witness when he left the spot of incident under the fear of his life, when the occurrence just began to occur.
No evidence against A-2
20. He argued that nothing incriminating circumstance against A2 was stated to him when he was called under Section 313 Cr.P.C. to explain. He further emphasized that prosecution has not proposed and adduced evidence against the accused-appellant A-2 to prove his presence on the spot of crime with ''lathi'. On bare perusal of question asked to him no weapon is assigned to the accused-appellant A-2 which he was alleged to hold and used in the course of commission of crime. He argued that A2 in his explanation to the question no.13 during examination under Section 313 Cr.P.C. has submitted that the informant, PW-1 and his family members were having enmity with him for the reason, he (accused-appellant A-2) has been a witness in prosecution against Ganga Ram with regard to murder of Digga, the father of accused-appellant A-1 (Babu Ram). The learned trial Judge has not appreciated the evidence correctly and on false implication though the prosecution has not been successful in proving it's case beyond all reasonable doubt, has convicted and sentenced the A2 in the matter of killing of Ganga Ram.
Arguments submitted by learned counsel Sri U.P. Singh, Advocate in Criminal Appeal No.655 of 2009, Lala Ram Vs. State of U.P. for and on behalf of accused-appellant A-3.
Objection as to reliability of prosecution witness of fact
21. Most of the arguments done by learned counsel are as to the falsity of the prosecution case and the prosecution witnesses being untrustworthy and not worthy of reliance for recording a conviction for the offence of murder of ''Ganga Ram' are quite similar to that submitted in putting the case of accused-appellant A-1.
22. Learned Advocate Sri U.P. Singh further raised the issue of trustworthiness of the witness of the prosecution witnesses of fact, namely, PW-1, Chhotey Lal, PW-6, Saheb Lal on the ground of their being ''Related' and ''interested' as they are real brothers of deceased-Ganga Ram, whereas the prosecution witness no.3 is also related with the deceased-Ganga Ram being his cousin brother. On the basis of this contention, he submitted that in no way the said witnesses may be termed as independent witnesses or disinterested witnesses, rather they stand on the footings of interested witnesses having inimical relation with the accused-appellant, therefore, their evidence before the court required thorough care and caution while considered for reliance so as to record conviction against the accused but the learned Trial Judge failed to do so.
Absence of P.W-3 on spot
23. Learned counsel further argued that the informant, PW-1, Chottey Lal was not on the spot of incidence and the written report filed by him i.e. Exhibit Ka-1 was prepared and submitted in the police station with prior consultation and pre-plan to falsely implicate the accused-appellant A-3.
False implication
24. Learned counsel further drew attention of the court towards the fact which we ourselves have noticed in one of the preceding paras, that the investigating officer submitted the first chargesheet excluding Lala Ram and Babu Ram and a final report of no evidence was submitted with regard to them. Chargesheet was submitted dropping their names against rest of the named accused in the FIR namely Raj Pal and Ram Pal. He further submitted that during the investigation, name of two other persons came into light, namely, Pramod and Rameshwar, thereafter one Devi Dayal also came into picture. The case of Pramod could not proceed further in the trial as he was absconding from last 15 years, whereas Devi Dayal and Rameshwar died during trial, therefore, prosecution continued against three surviving accused persons. One of the named accused is Lala Ram (A-3). The conviction recorded not only the role of the accused-appellant but also his presence accompanied with other co-accused was necessary to have been proved, which the prosecution failed to do.
Eye witness's evidence is not in consonance with medical evidence
25. Learned counsel further argued that none of the prosecution witnesses are credible and genuine. The oral account given by the witnesses as to the manner and mode allegedly adopted by A-3 in committing the offence of killing the deceased ''Ganga Ram' is not in consonance with the medical evidence. The weapon assigned to the accused-appellant A-3 is a gun whereas a country-made pistol in the hand of Raj Pal (died during trial). The oral account given by the prosecution witnesses as to the distance from the victim Ganga Ram of the accused having firearm his direction from the victim and relatively location of firearm wound on the body of the deceased are not in consonance with each other. The nature of wound does not support the eye witnesses' account of incident and, as such, the witnesses proved themselves not present on the spot of incidence and, therefore, they cannot be said to have seen anything on the spot. Like the learned counsel for the appellant A-1, learned counsel for the appellant A-3 also emphasized on the discrepancies that occurred in the statements of PW-1 and PW-2 as to the manner of attack and weapons said to be used by them. The declaration of hostility of PW-3 is also taken into consideration by learned counsel for the appellant A-3 illustrating inconsistencies between the prosecution witnesses with regard to the use of weapon. In doing so, learned counsel stepped into the capacity as counsel for A-1 with regard to use of Gandasa by him, otherwise the case of accused-appellant A-3 for whom the learned counsel appeared and argued is with regard to the use of gun in the couse of incident of killing Ganga Ram making firearm injury. He further stressed on the point of enmity which induced the informant PW-1 and other prosecution witnesses to falsely implicated the accused -applicant.
Ingenuinity of FIR
26. Learned counsel lastly argued that FIR is ingenuine. The incident is said to have happened on 6:00 p.m. on 04.04.1985. The police station was only two kilometers away from the place of incidence even then PW-1 and PW-6 reached the police station at 7:30 p.m. The delay is not explained. It is, therefore, the FIR is post-dated and ante timed, registered after consultation with the police officer. He summed up his arguments with the fact that there is a proved enmity between the informant, his family members and the accused-appellants. In view of the proved enmity, the witness who are not only relatives of the deceased Ganga Ram but also stands on the footings of interested witnesses, their evidence without proper scrutiny, care and caution and appreciation, could not be taken into reliance for recording conviction against the accused-appellants.
Defence witness not considered
27. In supporting his contentions as to the legal requirement of considering the testimony of defence witnesses and evidentiary value thereof. Learned counsel Sri U.P. Singh, Advocate referred the judgment of the Hon'ble Supreme Court in State of Haryana Vs. Ram Singh with Rai Saheb and Anr. Vs. State of Haryana reported in (2002) 2 SCC 426. When it is held elaborately in para 19, the evidence tendered by defence witnesses cannot always be termed to be a tainted one. The defence witness are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and trustworthiness ought to be attributed with the defence witnesses at par with that of the prosecution witnesses.
Argument by Sri Chandra Shekhar Pandey, the learned Additional Government Advocate for and on behalf of the State:-
28. Learned A.G.A countered the objection and upon objurgation done by the respective counsels as to the weakness of the prosecution case, witnesses and evidences of the three appellants, he submitted categorically on each and every point. First of all, he clarified that the incident happened in course of the day, when there was sufficient day light at 6:00 p.m. in the evening of 04.04.1985, as the witnesses could have faced no difficulty in properly seeing the incident taking place and identify the accused. They did so, with all certainty. The informant named the accused in the FIR as they were well known to him as well as to other witnesses of fact. He further submitted that the First Information Report was lodged promptly by the police on receiving written complaint from the informant, Chhotey Lal (PW-1) on 7:30 p.m. He read over the relevant paras extracted from the statement recorded by the Trial Judge of PW-1 and other witnesses like Investigating Officer and Head Moharrir (respectively PW-8 and PW-5) as well as another witness of the fact, who was injured in the course of incident, (PW-6, Saheb Lal), to explain the gap of time between time of occurrence (6:00 p.m.) and lodging of the FIR in the Police Station (7:30 p.m.) while the distance of police station from the spot of incident was two kilometers. He submitted that the time spent by PW-1, the informant is well explained from the evidence as firstly he waited his family members and the village Chaukidar thereafter handing over the dead body of Ganga Ram, he proceeded along with his brother, PW-6 Saheb Lal towards the police station and reached there within a reasonable time. He bought plain paper from a nearby shop, wrote the report in his handwriting and then handed over the same to the officer on duty in the police station.
29. Learned A.G.A vehemently denied the argument as to the FIR being ante-timed and ante-dated, quoting the statement of Head Moharrir Sunder Lal (PW-5) that immediately after registering the First Information Report at 7:30 p.m., the special report was sent at 8:40 p.m. on the same day to the concerned Magistrate. He further quoted from the statement of PW-5 that after registering the First Information Report, the police party moved to the spot where the dead body of the deceased-Ganga Ram was lying near the bridge over Sharda Canal in village Karuna Kheda. At the spot necessary inquiry was done. The inquest proceeding before 'Panchas' of dead body was performed and prepared the inquest report. Quoting from Exhibit Ka-7 (the inquest report) he argued that the inquest proceeding started at 2130 hours (9:30 p.m. in the evening) and continued upto 2230 hours (10:30 p.m.) on the same day i.e. 04.04.1985, after the completion of inquest proceeding the dead body was sent for post-mortem. He further added that the Exhibit Ka-7 itself bears the Case Crime No.48 of 1985, under Section 302 IPC registered in Police Station Behta Gokul on 7:30 p.m. and even the memo along with the dead body, sending for the same to post-mortem, bears the said case crime number. All these documents are duly proved by PW-5 and PW-8 in the course of their examination before the Trial Judge and no cross-examination in this regard was done by the counsels for the defence, therefore, the statements with regard to registration of FIR, it's time and date stand un-controverted and even sufficiently corroborated by the proof of documents like Exhibit Ka-1, Exhibit Ka-4 etc. The aforesaid Exhibit Ka-1, Exhibit Ka-4, First Information report and Exhibit Ka-5, FIR and copy of the FIR had been furnished to the informant on the same day. Learned A.G.A. submitted that the arguments advanced by learned counsels for the appellants as to the FIR being ante-dated and ante-timed is baseless.
30. Learned Additional Government Advocate further submitted that the First Information Report was lodged promptly and quickly by the informant, Chhotey Lal (PW-1) clearly naming the accused persons who were four in number, namely, Raj Pal, Lala Ram, Ram Pal and Babu Ram and no one else in their aid in the commission of offence. The first Investigating Officer, PW-8, SI, Ram Ruchi Arya had promptly registered the FIR on the basis of written report then there was no room for any consultation or dictation on the part of the investigating officer on duty from the stage of lodging of the FIR up to the stage of sending the dead body of deceased-Ganga Ram for postmortem. All the proceedings under investigation were done by Ram Ruchi Arya and thereafter when the investigation was taken over by the S.H.O. himself namely J.N. Singh. He on his own when submitted chargesheet arraigned Ram Pal and Raj Pal only and excluded the named accused persons Babu Ram and Lala Ram. Furthermore by way of second charge sheet, he added the names of Pramod and Rameshwar while they were never named by the informant or any other witness of fact during the investigation. He further added the name of Devi Dayal whose name was also not given in the first information report nor disclosed by any witnesses of fact during the investigation. The actual culprits named by the informant could only be arraigned after the examination of PW-1, the informant, Chhotelal before the Trial Judge, when the witness during his examination in chief gave the whole account of the incident took the name of Lala Ram and Babu Ram involved in the incident as reported by him on 04.04.1985 at 7:30 p.m. upon which the FIR was registered, the learned Trial Judge summoned both aforesaid persons for trial along with other accused already chargesheeted by the second investigating officer. Charges were framed afresh against the summoned accused Lala Ram and Babu Ram and evidence were recorded de novo by the Trial Judge.
31. Learned A.G.A submitted that when the prosecution case was clearly confined with the role of four accused, named in the written report, (Exhibit Ka-1) and in the FIR registered thereupon as (Exhibit Ka-4), then induction of Pramod Kumar, Rameshwar and Devi Dayal was done with the malafide on the part of second Investigating Officer with ulterior motive, however, second Investigating Officer could not be traced out for examination before the court and the chargesheet submitted by him was proved in the court by the investigating officer, Ruchi Ram Arya, PW-8.
32. Learned A.G.A. further submitted that the presence, the role assigned to the respective accused, the weapons used by them, the time of occurrence and the presence of ocular witnesses, all are proved by the witness of facts, PW-1, PW-3 and PW-6 without any contradiction, inconsistency and doubt. Further, the narration of the factual aspect of the incident is stated by the witnesses PW-1, PW-3 and PW-6, finds support with the independent corroborative evidence like post-mortem report (Exhibit Ka-2), injury report of PW -6 (Exhibit ka-3), site plan (Exhibit Ka-15) and other formal witnesses.
33. Countering the arguments of learned counsel for the appellant A-1 (Baburam) learned A.G.A submitted that the doubt raised as to the weapon (Gandasa) used by the accused Babu Ram in the course of the commission of the incident is proved by the witness of fact, namely, PW-1 and PW-6. Moreover, the inquest report, Exhibit Ka-7 also supports as during the enquiry of the dead body by the police officer and other witnesses of inquest there were incised wounds on the body of deceased-Ganga Ram.
34. Learned A.G.A. further submitted that so far as the presence of the A-1 on spot in the course of the occurrence is concerned, even the witness PW-3, Vijay Pal, who was declared hostile by the prosecution, has stated about his presence and involvement in the commission of offence, though the weapon used by him is differently stated as ''Lathi'.
35. Learned A.G.A further submitted on the objection as to the non-examination of one of the named witness ''Kadhiley' by the prosecution. He argued that it is the wisdom and discretion of the prosecution to propose by what witness and evidence it has to prove the case. He further drew attention towards the provision of the Indian Evidence Act, 1872 Section 134 of the Act emphasizes on quality of the witness and not upon the quantity of witnesses. If the prosecution has no trust upon the bonafide of witnesses then it is not binding upon it to produce such witness for examination before the court. It is proved by evidence of PW-1 that the said ''Kadhiley' was in the company of accused-appellants, therefore, he was not supposed to give a true and real account of incident, if proposed to be examined before the court in trial. As such, the argument of non examination of ''Kadhiley' as witness of prosecution is of no avail.
36. Learned A.G.A. concluded his argument saying that prosecution has been successful in proving its case on the basis of statement of witnesses, the materials produced and proved before the court beyond all reasonable doubts, therefore, there was sufficient evidence and corroborating materials before the Trial Judge for recording conviction of the named accused in the first information report, lodged by the informant, PW-1, for the offence of murder of Ganga Ram punishable under Section 302 IPC with the aid of Section 34 IPC. Accordingly sentence of life imprisonment and fine vide judgment dated 03.02.2009 is just and proper. As such there is no error of fact or law in the judgment and the same deserves to be confirmed.
37. With the conclusion of his argument, the learned A.G.A. cited case laws, he relies, in supporting his contentions. Learned A.G.A. gave reference of judgement of Hon'ble Apex Court in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat (1983) 3 SCC 217. Though facts of the case were with regard to sexual harassment by the accused-appellants of two minor girls, but the learned A.G.A. cited the case carving out the general principle laid down by their Lordships of the Supreme Court on minor inconsistencies in and between the statements of witnesses of fact. The relevant reasons as enumerated contained in Para-5 of the judgment. It is held as under:-
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -- Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
38. Learned A.G.A further posed reliance in this regard on Shivaji Sahab Rao Bobade Vs. State of Maharashtra (1973) 2 SCC 793 (801) para 8, which reads as under:-
"8. Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. The learned Sessions Judge has at some length dissected the evidence, spun out contradictions and unnatural conduct, and tested with precision the time and sequence of the events connected with the crime, all on the touchstone of the medical evidence and the post-mortem certificate. Certainly, the court which has seen the witnesses depose, has a great advantage over the appellate Judge who reads the recorded evidence in cold print, and regard must be had to this advantage enjoyed by the trial Judge of observing the demeanour and delivery, of reading the straightforwardness and doubtful candour, rustic naivete and clever equivocation, manipulated conformity and ingenious unveracity of persons who swear to the facts before him. Nevertheless, where a Judge draws his conclusions not so much on the directness or dubiety of the witness while on oath but upon general probabilities and on expert evidence, the court of appeal is in as good a position to assess or arrive at legitimate conclusions as the Court of first instance. Nor can we make a fetish of the trial Judge's psychic insight."
He also relied on Mahendra Vs. State of Tamil Nadu (2019) 8 SCC 359. He further cited para 12.4 from the judgment of Apex Court in State of Karnataka Vs. Savarnamma (2015) 1 SCC 323 arguing the rule of benefit of doubt, thus reads as under:-
"12.4. State of Haryana v. Bhagirath [(1999) 5 SCC 96 : 1999 SCC (Cri) 658] : (SCC pp. 100-01, paras 8-11) "8. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression ''reasonable doubt' is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge.
9. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
''It is difficult to define the phrase "reasonable doubt". However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case [Commonwealth v. Webster, 5 Cush 295 : 59 Mass 295 (1850)] . He says: "It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."'
10. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
''The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt.'
11. In Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : (1974) 1 SCR 489] this Court adopted the same approach to the principle of benefit of doubt and struck a note of caution that the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. This Court further said: (SCC p. 799, para 6) ''6. ... The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.'"
39. On point of defective investigation that for certain defect in investigation the accused cannot be acquitted, learned A.G.A. relied on para 10, 11 and 12 of Hema Vs. State through Inspector General of Police AIR 2013 SC 1000 (1004):-
"10. It is settled law that not only fair trial, but fair investigation is also part of the constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Accordingly, investigation must be fair, transparent and judicious and it is the immediate requirement of the rule of law. As observed by this Court in Babubhai v. State of Gujarat [(2010) 12 SCC 254 : (2011) 1 SCC (Cri) 336] the investigating officer cannot be permitted to conduct an investigation in a tainted and biased manner. It was further observed that where non-interference of the court would ultimately result in failure of justice, the court must interfere. Though reliance was placed on the above decision in Babubhai case [(2010) 12 SCC 254 : (2011) 1 SCC (Cri) 336] by the appellant, it is not in dispute that in that case, the High Court has concluded by giving detailed reasons that the investigation was totally one-sided based on mala fides. Further, in that case, the charge-sheets filed by the investigating agency in both the cases were against the same set of accused. This was not the situation in the case on hand. Though the State Crime Branch initiated investigation, subsequently, the same was taken over by CBI considering the volume and importance of the offence.
This extract is taken from Hema v. State, (2013) 10 SCC 192 : (2013) 4 SCC (Cri) 755 : 2013 SCC OnLine SC 20 at page 199
11. In this regard, Mr Raval, learned ASG by drawing our attention to the relevant provisions of the Delhi Special Police Establishment Act, 1946 submitted that the course adopted by CBI is, undoubtedly, within the ambit of the said Act and legally sustainable.
This extract is taken from Hema v. State, (2013) 10 SCC 192 : (2013) 4 SCC (Cri) 755 : 2013 SCC OnLine SC 20 at page 199
12. Section 5 of the said Act speaks about extension of powers and jurisdiction of special police establishment to other areas. Section 5 of the Act is relevant for our purpose which reads as under:
"5.Extension of powers and jurisdiction of special police establishment to other areas.--(1) The Central Government may by order extend to any area (including Railway areas), in a State, not being a Union Territory the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under Section 3.
(2) When by an order under sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of a police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police station.
(3) Where any such order under sub-section (1) is made in relation to any area, then, without prejudice to the provisions of sub-section (2) any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer in charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station."
To counter the argument of defence with regard to injury wounds and weapon, learned A.G.A. relied on Sukhdeep Singh Vs. State of Uttar Pradesh & Anr. (2010) 9 SCC 177 wherein Honorable Supreme Court has held that it would be impossible for any witness to give a categorized statement as to the posture that deceased or assailants were holding at the time when firing incident happened. He further relied on Mallikarjun Vs. State of Karnataka (2019) 8 SCC 359 to stress the contention that medical evidence when may cast doubt on the ocular testimony would prevail unless medical evidence rules out such possibility of injury being caused by in the manner stated by the prosecution. He relied on Dinesh Yadav vs State of Jharkhand (2017) 174 ADC 76 as the defence did not examine the investigating officer with regard to lacerated wounds.
40. After hearing the learned counsels for the respective appellants, learned Additional Government Advocate for the State and even the arguments advanced in reply to the arguments of learned A.G.A., we in course of the hearing the arguments traversed through the evidences, both oral and documentary brought before the court with regard to the material facts as to the involvement and role of the accused-appellants have formulated the following two points of determination as to reach at conclusion for decision in the appeal, which are as follows:
(i) Whether the prosecution has been successful in proving its case against the accused, named in the FIR dated 04.04.1985 beyond all reasonable doubts?
(ii) Whether the accused-appellants are equally liable jointly for the conviction under section 302 IPC with regard to the killing of Ganga Ram in the incident occurred on 04.04.1985, as reported in the FIR dated 04.04.1985 irrespective of their specific role manner of involvement and weapons assigned to them by prosecution.
Date, time and place of the incident
41. The written report submitted by the informant (PW-1) and proved before the Trial Judge as Exhibit Ka-1 itself mentions the date of incident on 04.04.1985 in the evening at 6:00 p.m. when the deceased ''Ganga Ram' along with his younger brother namely Chhotelal (is found the PW-1) and Saheblal (PW-6) after sowing in their field seeds of sugarcane and just reached the bridge over Sharda Canal on the way to their home. Further during examination on oath on 20.12.1986 PW-1 stated that the said bridge over Sharda Canal is situated from their house in Behta Gokul in west at about one and a half kilometers. He further stated the bridge is in the village Karauna Kheda near the village ''Behta Gokul' PW-1 further clarified in his statement that their field from where after sowing the sugarcane seeds they were returning back home, is known as ''Jhabra' and is far from the said bridge about one and half ''furlong' in north west direction (generally furlong is used for measuring distance, especially on a horse racing track; one eighth of a mile; 220 yards or 201 meter). The site map prepared and proved in the court (Exhibit Ka-15) by the investigating officer (PW-8) is relevant to exactly understand the location. In the said map the way leading to the home village of deceased Ganga Ram and his brothers (PW-1 and PW-6) passing through the bridge over Sharda Canal in a direction from east-west. The bridge is shown lying over the canal running from north to south direction. As such the ''Bridge' has two side boundary one at north and another at south. The place of incident is shown about to the North boundary wall of the bridge at it's western end marked as A-1.
42. On reversion to the statement of PW-1, again, we found him stating in para-14 during his cross examination on 29.7.1987 the sides of the bridge over the canal, in north and south both are bounded with wall of about 4-5 feets in height. We were coming to the bridge from west direction through the road. When we reached at the western end of the bridge, the accused were on the north of the said boundary wall of the bridge, and there was no water in the canal. The place where the accused sat hidden, the boundary wall on the road side foot path over the bridge on the canal was about 4-5 feet in height. That place was not visible from the road through which we were coming. This portion of statement extracted out from the cross examination is fully corroborated with the independent corroborative evidence on record, the Exhibit Ka-15, duly proved by the investigating officer, PW-8.
43. The statement of PW-1 is further supported from the statement of another eye witness PW-6 Saheb Lal who is injured also in the course of same incident. Undoubtedly PW-6 is the brother of the deceased victim of incident, ''Ganga Ram' and the informant Chhotelal (PW-1), therefore, at this juncture of discussion we would not go into the evidentiary value of his deposition before the court, and will confine ourselves to the fact proved by him. He stated in his examination-in-chief before the Trial Judge on 6.1.1988. At the time of recording his statement he was 20 years of age. On the date of incident which occurred about 2 years and 8 months ago the witness was approximately 17 years of age. Without any inconsistency he stated, on the day of incident, I was coming back to home from our field known as ''Jhabra' after sowing the sugarcane seeds therein. I was accompanied with my brothers ''Ganga Ram' (deceased) and Chhotelal (PW-1). At about 6:00 p.m., when we reached at the Bridge over canal near the village ''Karauna Kheda', the accused Lala Ram, Babu Ram, Raj Pal and Ram Pal, popped out from their hiding behind the boundary wall of the bridge and intercepted us armed with their respective weapons. As such PW-6 had also proved the date, time and place as stated by PW-1 and reported by him in the written report Exhibit Ka-1 on 04.04.1985 submitted in Police Station - Behta Gokul.
44. Another witness of fact examined as PW-3 in the trial is cousin brother of the deceased Ganga Ram and the witnesses PW-1 and PW-6, PW-3, Vijay Pal, though declared hostile by the prosecution itself, but what he has stated about the date, time and place of incident is important. We shall discuss further the evidentiary value of the deposition made before the trial Judge during his examination PW-3 in his statement recorded on 02.12.1987 stated in para-2, "When I was coming on my bullock cart towards the bridge and was 15-20 steps away from the western end of the bridge, ''Ganga Ram' (deceased), Chhotelal and Saheblal were also ahead of me, proceeding towards the bridge. The accused persons Lala Ram, Raj Pal, Babu Ram and Ram Pal popped out from behind the northern boundary wall of the bridge and attacked over Ganga Ram with their respective weapons. During his cross-examination by defence counsel PW-3 affirms his above referred statement in para-7. He stated the canal was devoid of water. I did not see the accused sitting hidden behind the wall, rather saw them popping out therefrom. No doubt this witness also proved the date, time and place of occurrence in full consistency with the earlier witness PW-1 and PW-6.
45. Lastly on this point the reference of inquest report proved in the court by the Investigating Officer (Exhibit Ka-7). In the inquest report, under the head ''the name of village in which the body was found' it is filled in before the witnesses and signed by them, "in the territorial limit of village Behta Gokul" about 2 k.m. away from Police Station Behta Gokul. The dead body was then mentioned to have been lifted from bridge over the canal within the limit of village Behta Gokul to be sent for post-mortem. As per the discussions made above, from the statements of the witnesses it comes out that the incident of killing by the accused persons of Ganga Ram occurred on 04.04.1985 at about 6:00 p.m. at the western end of the bridge over Sharda Canal near village Karauna Kheda lying within the territorial limit of village Behta Gokul and 2 k.m. away from the Police Station of Behta Gokul. The incident took place near the northern boundary wall of the bridge abutting to the road side path of the bridge at it's western end.
Sufficiency of light
46. It was evening when at about 6:00 p.m. the incident took place. The witness PW-3 and PW-6 both were questioned about the sufficiency of light at that time to see the things. Both the witnesses firmly stated that there was sufficient light and it is wrong to say that it was dark when the incident occurred. They boldly denied that at the time of incident it was dark due to sunset. We do not find any improbability in the aforesaid statement as to the sufficiency of light at 6:00 p.m. on 04.04.1985 when the incident took place. April is the beginning of summer season when the days are comparatively longer than in it's preceding months. Generally the time of sun set in April is after 6:30 p.m. It does not mean that immediately after sun set darkness falls as technically it takes around 70-100 minutes in accordance with location proceeding to north to get complete darkness. Sunset is a period when only a part of the Sun and not all the sun is below the horizon. By reason of this astronomical phenomenon, up to sunset time and even after that for a considerable long period there is twilight wherein things are visible. We are therefore fully convinced with the statement of all the three witnesses viz. PW-1, PW-3 and PW-6 that at about 6:00 p.m. in evening of 04.04.1985 when the incident occurred there was sufficient light to make things visible to the witnesses.
Moreover, the witnesses were very well aware with the accused persons, the reasons being that two of them namely Ram Pal and Raj Pal were native villagers, whereas two others namely Babu Ram and Lala Ram were not only their relative but also inimical to the deceased and well known to them.
The manner and mode adopted and weapon used in committing the offence by the accused-appellant
47. It would be unnecessary reiteration of the narration of the incident as informed to the police through the written report Exhibit Ka-1, therefore, we think it proper to discuss the relevant portions of statement of PW-1, PW-2 and PW-3 stating the manner and mode wherein the accused attacked over ''Ganga Ram' with their respective weapon as assigned to them by the informant. Earlier we have considered and discussed the statement of witness as to the date, time and place of occurrence and found settled that Ganga Ram (deceased) alongwith his brother PW-1 and PW-6 (Chhotelal and Saheblal) after sowing their field with seeds of sugarcane was on the way to his home in village Behta Gokul, when he reached at the western end of bridge on their way over Sharda Canal, the accused persons who were hiding behind the northern boundary wall abutting the road side path of the canal, popped out therefrom along with their arms, intercepted him and attacked fatally. Now upon going through the statements of the witnesses and to scrutinizing whether the witnesses have consistently and convincingly deposed before the court about manner and mode wherein the accused with their respective weapon assigned to them by the informant PW-1 has attacked Ganga Ram because of which he succumbed to death.
48. In Exhibit Ka-1 and FIR ( Exhibit Ka-4) the weapon assigned to the accused Raj Pal (died during trial) is a country made pistol (Tamancha), the accused-appellant A-3 (Lala Ram) with gun, the accused-appellant A2 (Babu Ram) with ''Gandasa' (Chopper) and the accused appellant A-1 (Rampal) with a lathi (stick). PW-1 in his statement during examination-in-chief dated 20.8.1986 and against his examination-in-chief recorded afresh after the trial court summoned the accused appellant A-2 and A-3 for trial under Section 319 of the Criminal Procedure Code 1973, stated firmly that Raj Pal was armed with country made pistol A-3 with gun, A-2 with Gandasa and A-1 with a lathi when they popped out from behind the wall for intercepting the victim (deceased). In para 7 of the statement in chief dated 20.12.1986 PW-1, stated that coming out from where they were hiding, accused shouted and asked to stop and A-3 (Lala Ram) fired on ''Ganga Ram' from his gun and Raj Pal fired from his country made pistol over Ganga Ram. Ganga Ram when fell down on the ground unconscious then A-2 and A-1 (Babu Ram and Ram Pal) began to inflict blows over the body of Ganga Ram with their respective weapons namely Gandasa and Lathi. PW-6, Saheblal when swoop in to save Ganga Ram towards accused person he was also beaten by A-1 (Ram Pal) with Lathi due to which he was severely injured. On the hue and cry made by PW-1 and PW-6 for their rescue other witnesses namely Vijay Pal (PW-3) who was coming on his bullock-cart along with ''Kadhiley' also saw the incident and raised alarm, on this, the accused ''Raj Pal' fled away towards east and rest of them towards west along with their respective weapons. When the witnesses reached upto the place where Ganga Ram was lying on ground, injured who died because of excessive bleeding. The statement accounting the incident in question is further subjected to cross-examination on 29.3.1987. In para-20, PW-1, stated, when intercepted by accused persons (as described earlier in preceding paras) I had seen the weapons held by them in their hands. Ganga Ram did not tried to run away but I ran away from the spot and Saheblal stayed there, first fire on Ganga Ram was done just after intercepting him within one minute. In quick succession thereto, Raj Pal made second fire upon Ganga Ram. Ganga Ram on sustaining two firearm injuries and fell down on the ground soon.. Thereafter, Lala Ram (A-3) fired shot from his gun upon Ganga Ram. Ganga Ram was injured with three shots of firearms. First shot from fire arm injured Ganga Ram below the mandible on left side of neck. Second shot made by Raj Pal caused injury on chest, third fire made by A-3 (Lala Ram) caused injury on the back of head of Ganga Ram while he was lying collapsed on ground A-3 made the fire from a distance of 3 to 4 steps in north from the head of Ganga Ram lying collapsed on the ground. Ganga Ram when A-3 made first fire upon him was standing facing east and the nozel of the gun held by A-3 pointed towards him was 3 to 4 steps away Raj Pal fired on Ganga Ram standing in north direction from him he stood facing east and nozzle of Raj Pal's pistol for 3 to 4 steps away from his chest.
49. About the roles of A-2 (Babu Ram) and A-1 (Ram Pal) PW-1 stated in his cross examination done by the learned defence counsel that when Ganga Ram fell on ground sustaining fire arm injuries, A-2 and A-1 began to inflict blows on Ganga Ram with lathi over his body. He stated that since at that time he (PW-1) was crying and weeping he could not seen on which part of Ganga Ram's body the blow of Gandasa and lathi were made by these two accused, but he saw the accused A-2 blowing Gandasa standing towards head of Ganga Ram which A-1 was blowing lathi over him standing at a distance of about two feet from his legs. For himself, PW-1 stated, "I was standing 4-5 steps away in west direction from Ganga Ram-PW-6 (Saheblal) during his examination-in-chief recorded by the Trial Judge on 6.1.1988 stated about the manner, mode and weapon used in the crime that, when the accused popped out from their place of hiding and intercepted Ganga Ram along with him and PW-1, A-3 was armed with a gun, Rajpal was with country made pistol, A-2 was with a ''Gandasa' and A-1 was with a lathi. A-3 asked Ganga Ram to halt and simultaneously both of them fired at him from their respective fire arms. A-2 and A-1 attacked from their respective weapons when the injured Ganga Ram fell on the ground. The PW-6 further stated when he swooped in to save Ganga Ram. A-1 he also sustained lathi blows and upon listening the hue and cry for rescue, witnesses Vijay Pal and Kadhiley also came on spot who saw the incident. After committing the crime accused Raj Pal fled away from the spot towards east while rest of them towards west, Ganga Ram was lying dead on the spot. In para-7 of his statement PW-6 stated while cross-examined, Ganga Ram was just 1 or 2 steps ahead of me when the accused intercepted him at the spot of incident. In para 8 this witness firmly stated again that A-1 hit him with lathi. Whereas A-2 inflicted 6 to 7 blow of Gandasa on the head of Ganga Ram. In para 8 when again cross-examined about his injury sustained during the incident he replied I got contusion with bluish mark which persisted for about 15 days approximately.
50. PW-6 was also cross-examined about the direction of and distance between accused and Ganga Ram (deceased) during the incident. He stated when A-3 made first fire Ganga Ram was facing east and A-3 himself was near Ganga Ram in his north side. When fire was made by Raj Pal at that time also Ganga Ram was facing east. Both the fires made by Raj Pal over Ganga Ram was from north of Ganga Ram.
51. PW-3 Vijaypal is also the witness of fact for whom PW-1 Chhotelal has stated in his examination that he along with another villager ''Kadhiley', was coming on his bullock cart and when they heard the cries made for rescue and blast of fire they ran towards the spot. He stated both PW-3 and Kadhiley saw the incident. In para-20 PW-3 stated in his cross-examination about his position at the spot of incident from where both of them were watching the incident. He stated, when Ram Pal (A-1) was inflicting blows of lathi over Ganga Ram, Babu Ram (A-2) was standing towards the head of Ganga Ram, I was about four steps away towards west from Ganga Ram, ''Kadhiley' was standing about 50 steps away towards south and Vijay Pal was standing about 15 steps away from me towards west. In the context of this position of the witness PW-3, we considered the oral account of the incident deposed before the trial Judge recorded on 21.12.1987. PW-3 in his examination-in-chief reiterated the weapons assigned to the accused A-2 and A-3 as well as to Raj Pal but for the weapon (Gandasa) assigned to A-1, he deviates from the statement of PW-1, and PW-6. He stated, A-1 (Babu Ram) was holding Lathi. He firmly stood with the FIR version that A-3 and Raj Pal fired on Ganga Ram while A-2 (Rampal) and A-1 hit him with lathi when he fell down on the ground on sustaining fire arm injuries. The witness PW-3 further confirmed the witness of the incident in addition to him to ''Kadhiley' only by saying that no one else saw the commission of incident. PW-3 firmly stood with the statement of PW-1 and PW-6 as to the fact that after commission of crime accused Raj Pal fled away towards east whereas rest of them towards west and when they reached near Ganga Ram he was lying dead on the spot. The prosecution declared PW-3, it's hostile witness and opted to cross-examine him. During cross-examination PW-3 firmly stood with the statements of PW-1 and PW-6 with regard to role and weapon of crime assigned to A-3 and Raj Pal by saying that first fire of Ganga Ram was made by A-3 (Lalaram) at that time Ganga Ram was standing, he could not see if the bullet struck to Ganga Ram, but after that fire Ganga Ram fell on the ground at the spot. Just thereafter second fire was made by Raj Pal when Ganga Ram was lying on the ground. Total three fires were made. With regard to the role and weapon assigned to the rest of the two accused A-1 and A-2 (respectively Gandasa and lathi) when he was cross-examined he replied to the prosecution that he did not see any one inflicting blow of gandasa because at that time he was crying for rescue. He further stated about his statement recorded by the Investigating Officer that A-1 was holding Gandasa in his hand, he replied with quite absurdity, if it is written in my statement then I might have spoken this to him (I.O) I do not remember, Babu Ram whether hit Ganga Ram with lathi and Gandasa. However, PW-3 when cross-examined by learned counsel for defence, on the same point he replied in para-7 of his statement, "I did not see any one beating Ganga Ram with ''Gandasa'. He stood firmly with the statement as to the role of Raj Pal and A-3, and number of fires made by them on Ganga Ram. He further supported the statement of Saheb Lal (PW-6) that he (PW-3) was 2-3 steps behind the PW-1 and PW-6. He was at 15-20 steps away towards east from the accused-assailants.
52. We are now summing up the statements of the three witnesses PW-1, PW-3 and PW-6 discussed hereinabove as to the mode, manner, weapon held and used by the accused appellants in the commission of incident and their specific roles while acting in consortium during the occurrence. We reached at the finding, (i) the witnesses with all certainty without any inconsistency or anomaly have established that all the accused Lala Ram (A-3) Babu Ram (A-1) Ram Pal (A-2) and Rajpal sat hidden behind the north side of boundary wall of road side patri of Bridge over Sharda Canal lying on the way, heading from west to east, toward the native village of deceased-Ganga Ram namely village Behta Gokul, the deceased Ganga Ram who was coming along with his brothers PW-1 & PW-6 from his field after sowing sugarcanes in their field known as ''Jhabra' situated in west. (ii) All the accused popped out from their place of hiding as and when Ganga Ram reached along with his brothers (PW-1 and PW-6) near the western end of the Bridge towards patri abutting to the northern boundary of the bridge, and asked him to halt. (iii) Simultaneously Lala Ram made first fire from his gun over Ganga Ram Rajpal made second fire which respectively hit him below the mandible on the neck and on chest of the Ganga Ram. Ganga Ram on sustaining firearm injuries collapsed on spot. When attacked by the aforesaid two accused Ganga Ram stood facing east while the accused duo were towards north of him about 3-4 steps away. (iv) When Ganga Ram collapsed on the ground Raj Pal made another shot which injured him behind his head. (v) Ram Pal hit PW-6 Saheb Lal with lathi when he swooped in to save Ganga Ram and thus PW-6 got contusion and blow mark over his arm and elbow. (vi) According to PW-1 and PW-6 Babu Ram inflicted the blow of Gandasa after Ganga Ram collapsed on ground sustaining fire arm injury. Babu Ram was blowing Gandasa over Ganga Ram standing towards his head, while Rampal was inflicting blow of lathi standing towards his legs. (vii) According to PW-3, Rampal hit Ganga Ram from lathi when he collapsed on sustaining fire arm injuries. He stated Babu Ram also gave several blows over the body of Ganga Ram after he collapsed on ground.
53. The prosecution has declared PW-3, it's hostile witness because he did not support the role assigned by it to the A-1 of having ''Gandasa' from which he inflicted blows upon the body of Ganga Ram when he collapsed on ground. When we go through the statement of PW-3 we found it versatile in nature and intent only to the extent of weapon assigned to A-2 only. For rest of the prosecution version as to the date, time, place of incident, participation of accused persons in the commission of crime the role and weapon used in the commission of crime by the accused, the witness PW-3 is in full consistency with other witness PW-1 and PW-6. Since, the common law principle, ''falsus in uno falsus in omnibus' do not apply in Indian Law of Evidence, therefore, the statement of PW-3 is not liable to be discarded as a whole, moreover the statement of PW-3 has not confidently and firmly denied the fact of holding ''Gandasa' by A-1 but states that he could not see him or anyone else armed with Gandasa because at the time of incident he was crying for help. As such his denial of the fact of Babu Ram armed with Gandasa and beating Ganga Ram when he collapsed on ground is not firm, confident and full hearted. Leaving the fact of ''Gandasa' allegedto have been used by A-1 in the course of commission of crime to be settled on the basis of other independent corroborative evidence, we, reach at finding with all certainty that undoubtedly A-1 was present througout the incident with rest of the named accused person, moreover, the defence has also not taken a firm stand of his absence on the spot and have argued as to his role and participation in crime with lathi and not with Gandasa, as such the presence of accused at the spot of crime in the course of commission of offence along with other accused is a proven fact on evidence led by prosecution beyond all reasonable doubt. We will discuss further it's effect over his liability in the commission of crime.
The reason why PW-1, PW-3 and PW-6 are believed as a witness of fact
54. PW-1 (informant-Chhotelal), PW-6 (injured witness-Saheb Lal) are real brother of Ganga Ram deceased-victim of the incident dated 04.04.1985 for the commission of which the accused appellants and Raj Pal (died during trial) are arraigned for prosecution. The said trio of witness claimed themselves to be eye witnesses of the incident.
55. The P. Ramnatha Aiyar's Law Lexican (third edition, reprint in 2011 by Lexis Nexis Butterworths Wadhwa) Page-431, defines ''Eye Witness', one who saw the act, fact or transaction to which he testifies. Hon'ble the Supreme Court in Vishnu Narayan Moger Vs. State of Karnataka 1996 Cr.L.J. 1121 held, "An eye witness is one, who saw the act, fact of transaction to which he testifies. A witness is able to provide graphic account of attack on the deceased can be accepted as eye witness" Needless to signify the witness PW-1, PW-3 and PW-6 eye witnesses who in the case before us giving the graphic account of the attack by the named accused person over the deceased in the incident dated 04.04.1985, therefore, they are the best evidence subject to their cross examination which is essential in testing the veracity and trustworthiness of the witnesses.
56. It is the established law of evidence that the evidence of a witness is assessed by it's worth. In Sir John woodsoff and Syed Amir Ali's "Law of Evidence" Page 461 (S.V. Joga Rao/17th Edition Butterworth, Vol.1, reprint 2001), The appreciation of evidence of eye witness depends upon -
(a) The accuracy of the witness's original observation of the events which he described, and
(b) The correctness and extent of that he remember and his veracity.
57. The credibility of a witness has to be decided by referring to his evidence, finding out how he has fared in cross-examination and what impression is created by his evidence, taken in other context of the case and not by entering into the realm of the conjecture and surmises. We have discussed a lot in preceding paras with the statements recorded in evidence by the Trial Judge, under different heads. We find out on their appreciation firstly that the presence of witnesses PW-1 and PW-6 with Ganga Ram was naturally probable, for the reason
(i) they are real brother of the deceased and their family being agriculturist were ploughing and sowing sugarcane seeds in their field known as ''Jhabra' measuring about 11 acrs. for the whole day starting from 7:00 a.m. in the morning of 04.04.1985.
(ii) though the entire field could not been sown that day, therefore, the brothers trio, before the dusk leaving the rest of the unsown field for the next day, departed for their home in village Behta Gokul situated towards west of the ''Jhabra' field. On their way to home there was a bridge over Sharda Canal (The place of incident).
(iii) PW-3 villager of the same village Behta Gokul to which deceased and PW-1, PW-6 belonged, was also coming behind them from his field after finishing his agricultural work for the day, as the time was running towards dusk, on his bullock cart along with his native villager ''Kadhiley'.
(iv) in agricultural calendar month of April is usually of harvesting of wheat and sowing of sugarcane etc.
58. In the light of above proven fact by evidence of witnesses PW-1, PW-3 and PW-6 which remained constant consistent and uncontradicted even in cross examination emanate our finding as to the aforesaid witnesses that they were naturally present on the spot of incidence. Further they have given graphical account of the incident without any contradiction shaking the case of the prosecution. Therefore, they proved themselves a cogent and reliable eye witness.
59. It has been vehemently argued by learned counsel for defence to discredit witness PW-1 referring his statement that in the course of incident he did nothing to save the deceased Ganga Ram, rather he ran back some steps away when the assailants A-3 and Raj Pal fired on Ganga Ram and A-1 and A-2 were inflicting blows from their respective weapon over the body of Ganga Ram and he collapsed on ground sustaining fire arm injuries. This argument has no weight in the light of proved fact that none of the brother trio namely deceased, Ganga Ram, PW-1 Chhotelal and PW-6 Saheblal or even PW-3 Vijaypal were armed at that time, whereas the accused assailants were armed with their respective weapons. In a similar set of facts before Hon'ble the Apex Court in the case of Sucha Singh Vs. State of Punjab AIR 2003 SC 3617: 2003 (7) SCC 643 it is held, where both the eye witnesses were unarmed and bare handed, while the accused were armed with deadly weapons then how a person would react in a situation like this, could not be encompassed by any rigid formula. It would depend on many factors, such as, where witnesses were unarmed but the assailants were armed with deadly weapons, in a given case instinct of self preservation would be the dominant instinct. The court held that in the case, their inaction in not coming to the rescue of the deceased, could not be a ground for discarding their evidence. So in present case also, the argument of learned defence counsel to discard the evidence of PW-1 (Chhotelal) treating his presence doubtful on the spot of incident at the relevant time of occurrence, on the ground of his statement that he ran back when the assailants fired on Ganga Ram and he did not physically tried to rescue his brother Ganga Ram is not tenable. It is proved that this witness was unarmed at the time of occurrence and was crying for rescue, in response whereof other witnesses rushed to the spot.
60. Another ground raised for discrediting the evidences of PW-1, PW-3 and PW-6, argued by the defence counsel is their being relatives of the deceased. We considered the argument in the context of the present case. The deceased Ganga Ram was killed on a place lying in rural area road running through villages, where general activities of people comes to a retardation with the falling of evening. The brothers trio Ganga Ram (deceased), PW-1 and PW-6 were also after finishing the agricultural work throughout the whole day from 7:00 a.m. and onward going back to their home. At about 6:00 p.m. they reached at the spot where the accused persons sat hidden armed with their respective weapon, waiting for them. PW-6 the cousin brother of deceased was also coming behind them on his bullock cart after finishing agricultural work, from his field along with ''Kadhiley' his native villager. All of them were native of the same village and the way leading to their home village ''Behta Gokul' from their fields was the only one and common. These are the proved and undisputed facts. As such, they are naturally probable witnesses of the incident happened at the western end of bridge over Sharda Canal lying on their way to home. Law of Evidence does not bar any such person from being a witness of an incident which he had seen being committed before them, even if he is a relative of the victim. In a catena of cases dealt by Hon'ble Apex Court Bhagwan Swaroop Vs State of U.P. AIR 1971 SC 429, State of U.P. Vs. Paras Nath Singh AIR 1973 SC 1093 and Swarn Singh Vs. State of Punjab 1976 Cr.L.J. 1757 it is held, the fact that the witnesses are related to each other is no ground for disbelieving their evidence. Relative should have no interest to falsely implicate the accused or protect the real culprit. In the present case, since as eye witnesses PW's statement neither in itself nor inter se found by us, inconsistent or self contradictory, therefore, the same cannot be discarded on the ground of their being related with the deceased as well as with each other. More over they cannot be said interested in implicating falsely to the accused. In Dahari & Ors. Vs. State of U.P. (2012) 10 SCC 256 Hon'ble Apex Court in para-11, 12 and 24 has held as under:-
"11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. [Vide Himanshu v. State (NCT of Delhi) [(2011) 2 SCC 36 : (2011) 1 SCC (Cri) 593] , Ranjit Singh v. State of M.P. [(2011) 4 SCC 336 : (2011) 2 SCC (Cri) 227 : AIR 2011 SC 255] and Onkar v. State of U.P. [(2012) 2 SCC 273 : (2012) 1 SCC (Cri) 646] ]
12. Man Bahadur (PW 1) and Raj Bahadur (PW 2) undoubtedly, are the real brothers of the deceased. They, at the time of the incident, were following the deceased on their "moped". They have supported the case of the prosecution to the fullest extent, and even though they were thoroughly questioned by the defence in the course of cross-examination, they did not elicit anything which could shake their testimony. Thus, we do not see any reason to discard their testimonies.
24. It is a broad daylight murder at 9.00 a.m. on the main road. The eyewitnesses had been following the deceased on the "moped" as they had to attend the court's proceedings at Azamgarh. The enmity between the parties stood fully established as criminal cases were pending between them. The case of the prosecution stood fully corroborated by the medical evidence and the ocular evidence. It is not probable that the real brothers of the deceased who had been the eyewitnesses would implicate the appellants falsely sparing the real assailants, though false implication of some of the persons may not be ruled out. Thus, the High Court was justified in acquitting some of the convicts as they did not belong to the family of the appellants/assailants."
61. Hon'ble Apex Court in para -26 of the case of Vijendra Singh & Ors. Vs. State of U.P. (2017) 11 SCC 129 has held as under:-
"26. In Lallan Rai v. State of Bihar [Lallan Rai v. State of Bihar, (2003) 1 SCC 268 : 2003 SCC (Cri) 301] the Court relying upon the principle laid down in Barendra Kumar Ghosh [Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49 : (1924-25) 52 IA 40 : AIR 1925 PC 1] has ruled that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular result."
62. The witnesses PW-1, PW-3 and PW-6 were vehemently termed, in the argument by learned counsel for the defence, not only ''interested' being relatives of the victim but also interested in false implication, due to enmity with accused. Considering the said argument we carefully examined and scrutinized the statement of the said witnesses to find out the hostility, if any, of the victim (deceased-Ganga Ram) against the accused. We also tried to find out whether and also that the witnesses or any one of them shared any such hostility with the deceased against the accused. We have gone through the statement of PW-1 (the informant Chhotelal) who seems to have been grilled in the cross-examination for a long on the point of enmity. PW-1 has himself in his written complaint (Exhibit Ka-1) and the FIR (Exhibit Ka-4) disclosed that the victim Ganga Ram (deceased) was accused of the murder of one ''Digga' the father of A-3 (Lala Ram) and A-1 (Babu Ram). The deceased Ganga Ram was also prosecuted by father of another accused Rajpal under Section 307 IPC wherein he was acquitted. In para 6 of the examination in chief recorded on 20.12.1986, he clarified the position by saying that Ganga Ram was one of the accused in the trial with regard to the murder of Digga and was convicted and sentenced by the Sessions Court. In appeal to the High Court he was released on bail during the pendency of the appeal. At the time of incidence Ganga Ram was continuing on bail. Likewise in the criminal prosecution under Section 307 IPC, on the complaint of Bihari (accused Raj Pal and Ram Pal's father) Ganga Ram was convicted and sentenced by the Sessions Court but acquitted from the High Court in appeal. In Examination in chief recorded on 20.7.1987 PW-1 stated, he knowns the accused Raj Pal and Ram Pal sons of Bihari who are natives of his village Behta Gokul while the accused Lala Ram and Babu Ram are sons of Digga resident of nearby village Partapur. In cross examination dated 20.7.1983 para-17 PW-1 stated that father of PW-3 Lakshman was also accused with Ganga Ram in the criminal prosecution under Section 307 IPC launched by Bihari. The defence has set forth these two criminal prosecution against Ganga Ram as enmity on the part of witnesses PW-1, PW-3 and PW-6 against accused a cause for false implication. In the cross-examination the learned counsels for the defence could not extract any criminal prosecution by or against the said witnesses or civil litigation by or against them pending with the accused, moreover, in the criminal prosecution against Ganga Ram none of the witnesses were co-accused with him. The said prosecution were in a period of more than 12 years ago from the incident of killing of Ganga Ram. Even as we have discussed earlier it was Ganga Ram only, to whom the assailants intercepted and shot down. This is also note worthy here that even on the part of Ganga Ram who was arraigned in trial for murder case of Digga and in prosecution under Section 307 I.P.C. by 'Behari', no criminal prosecution by him against any of the accused was ever launched. There is nothing coming out from the evidence on record as to the witnesses shared any hostility along with Ganga Ram against the accused which may induce them to falsely implicate them for the murder of Ganga Ram.
63. It would be relevant to refer the decision of Hon'ble Apex Court in Darya Singh Vs. State of Punjab AIR 1965 SC 328 (331) which speaks about related witness who is closely related to the victim that he is not necessary an interested witness. Hon'ble the Apex Court in Mahendra Singh Vs. State of U.P. (2017) 11 SCC 129 has held in para-31 as under:-
"31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P. [Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13) "[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v. State of Bihar [Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : 1996 SCC (Cri) 188] has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason".
64. Arguing on the non-examination of material witnesses, the learned counsel referred ''Kadhiley' who was with PW-3 Vijay Pal on his bullcart few steps behind the victim Ganga Ram and his brothers PW-1 and PW-6 when Ganga Ram was intercepted and attacked by the accused assailants, he had seen the entire incident. It is discussed by us in preceding paragraphs that the prosecution has examined three material witness on the fact of killing Ganga Ram by the accused namely PW-1, PW-3 and PW-6. On the same fact prosecution was at liberty to examine or not any more witness. In the evidence of PW-1, he has already stated that ''Kadhiley' has been won over by the accused and would not be able expected to tell the truth in the court. In a similar set of facts before Hon'ble Apex Court in Vijendra Singh Vs. State of U.P. (2017) 11 SCC 129 in para 35, 36, 37 has held as under:-
"35. The next plank of argument of Mr Giri is that since Nepal Singh who had been stated to have accompanied PW 2 and PW 3 has not been examined and similarly, Ram Kala and Bansa who had been stated to have arrived at the tubewell as per the testimony of PW 2, have not been examined, the prosecution's version has to be discarded, for it has deliberately not cited the independent material witnesses. It is noticeable from the decision of the trial court and the High Court, that reliance has been placed on the testimony of PWs 1 to 3 and their version has been accepted. They have treated PW 2 and PW 3 as natural witnesses who have testified that the accused persons were leaving the place after commission of the offence and they had seen them quite closely. The contention that they were interested witnesses and their implication is due to inimical disposition towards accused persons has not been accepted and we have concurred with the said finding. It has come out in evidence that witnesses and the accused persons belong to the same village. The submission of Mr Giri is that non-examination of Nepal Singh, Ramlal and Kalsa is quite critical for the case of the prosecution and as put forth by him, their non-examination crucially affects the prosecution version and creates a sense of doubt. According to Mr Giri, Nepal Singh is a material witness. In this regard we may refer to the authority in State of H.P. v. Gian Chand [State of H.P. v. Gian Chand, (2001) 6 SCC 71 : 2001 SCC (Cri) 980] wherein it has been held that: (SCC p. 81, para 14) "14. Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses were available for being examined in the court and were yet withheld by the prosecution."
The Court after so holding further ruled that it is the duty of the court to first assess the trustworthiness of the evidence available on record and if the court finds the evidence adduced worthy of being relied on and deserves acceptance, then non-examination of any other witnesses available who could also have been examined but were not examined, does not affect the case of the prosecution.
36. In Takhaji Hiraji v. Thakore Kubersing Chamansing [Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145 : 2001 SCC (Cri) 1070] , it has been held that: (SCC p. 155, para 19) "19. ... if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. ... If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable, the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses."
37. In Dahari v. State of U.P. [Dahari v. State of U.P., (2012) 10 SCC 256 : (2013) 1 SCC (Cri) 22] , while discussing about the non-examination of material witness, the Court expressed the view that when he was not the only competent witness who would have been fully capable of explaining the factual situation correctly and the prosecution case stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, no adverse inference could be drawn against the prosecution. Similar view has been expressed in Manjit Singh v. State of Punjab [Manjit Singh v. State of Punjab, (2013) 12 SCC 746 : (2014) 4 SCC (Cri) 531] and Joginder Singh v. State of Haryana [Joginder Singh v. State of Haryana, (2014) 11 SCC 335 : (2014) 3 SCC (Cri) 366] ."
65. Tested on the aforesaid parameters we are unable to accept the submission of learned counsels for the defence that due to non examination of ''Kadhiley' who had been referred to by PW-3 (Vijay Pal) and PW-1 (Chhotelal) would affect the prosecution version or would create any doubt in the mind of the court. Thus in our considered opinion the witnesses examined by the prosecution are trustworthy and the court could safely rely on their testimony. In the facts of present case no adverse inference can be drawn against the prosecution.
66. Non examination of independent witnesses is argued by learned counsels for defence so as to shake the testimonies of prosecution witness. It would be relevant to refer in this regard the case before Hon'ble Apex Court Raghubeer Singh Vs. State of U.P. (1972) 3 SCC 79. It is held in para-10:-
"10. As against the argument that some witnesses mentioned in the first information report were not examined, it is enough to repeat, what has often been ruled that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. The appellant's counsel has nut shown how the prosecution story is rendered less trustworthy as a result of the non-production of the witnesses mentioned by him. No material and important witness was deliberately kept back by the prosecution. Incidentally we may point out that the accused too have not considered it proper to produce those persons as witnesses for controverting the prosecution version. In this connection general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when spirits on both sides are running high has to be borne in mind."
Injured witness
67. PW-6 Saheblal is an eye witness who himself got injury caused by blows of lathi in the course of incident, as A-2 (Ram Pal) warded him off when he swooped in to rescue Ganga Ram from the assailants. The 16/17 years old boy, after the incident was medically examined under the memo of police by Dr.P.K. Gangwar the incharge medical officer posted in District Hospital Hardoi on 5.4.1985. The said doctor is produced as witness for examination before the Trial Judge. Who proved before the court the report prepared by him under his signature and handwriting pursuant to the letter of investigating officer handed to him by Chowkidar. The report is Exhibit Ka-3 wherein the PW-4 (doctor) has entered complaint of pain at left elbow joint but no external mark of injury seen. PW-1 in his statement and even PW-6 when examined has stated about the injury suffered by him in the course of incident. PW-5 the Head moharrir posted at Police Station Behta Gokul on the relevant date of incident on 04.04.1985 who registered the FIR, when examined before the Court, has also confirmed in para-3 of statement that Saheblal (PW-6) who accompanied PW-1, when arrived at the Police Station, was injured. He further stated that entry to the above effect was made by him in the general diary at report no.29. He stated that a written letter for medical examination was sent by him with the injured Saheblal to District Hospital, Hardoi through Chowkidar. As such Saheb Lal is an injured witness and was present at the spot of incident in the course of commission of crime is undoubted.
68. Hon'ble the Apex Court in Maqsoodan Vs. State of U.P. (1983) 1 SCC 218 (three Judges Bench) has held in para-8 as under:-
"8. The High Court has found that the testimony of the eyewitnesses, namely, PWs 1, 2, 3 and CW 1 "suffer from numerous infirmities". It, therefore, sought support to their testimony from the two earlier statements, erroneously called dying declarations, Exts. Ka-22 and Ka-23 made by PW 3 Vijay Kumar and PW 2 Jagdish respectively. The infirmities referred to by the High Court consisted in, according to the High Court, improvements made by the witnesses and variations in their earlier and latter statements. In our opinion, on that ground alone, the testimony of PWs 1, 2, 3 and CW 1 cannot be Held to be infirm. It is the duty of the court to remove the grain from the chaff. These four witnesses are the injured witnesses having received the injuries during the course of the incident. Their presence at the time and place of the occurrence cannot be doubted; in fact it has not been challenged by the defence. As both the parties were inimical for a long time, it will be prudent to convict only those persons whose presence and participation in the occurrence have been proved by the prosecution beyond reasonable doubt. We agree with the finding of the High Court that the presence and participation of the appellants Maqsoodan, Madan Mohan, Prayagnath and Nando, who are appellants in Criminal Appeal No. 175 of 1974 has been proved beyond reasonable doubt, despite the improvements and variations in their evidence.
69. Hon'ble the Apex Court in para-22 of Veer Singh Vs. State of U.P. (2014) 2 SCC 455 has held as under:-
"22. In the present case we are left with the sole testimony of the injured eyewitness PW 4 Harbans Kaur. She has lost all the members of her family in the attack during the occurrence. There is no reason for her to falsely implicate any of the accused in the case. On the contrary she would only point out the correct assailants who are responsible for killing her family members. We are of the considered view that the testimony of PW 4 Harbans Kaur is cogent, credible and trustworthy and has a ring of truth and deserves acceptance. All the twelve victims of the occurrence died of homicidal violence is established by the oral testimony of the doctors who conducted autopsies on their bodies and the certificates issued by them to that effect."
70. Hon'ble the Apex Court in para 21 and 22 of Shyam Babu Vs. State of U.P. (2012) 8 SCC 651 has held as under:-
"Evidentiary value of related witnesses
21. Mr V.K. Shukla, learned counsel for the appellant submitted that since most of the prosecution witnesses are related to the deceased persons, the same cannot be relied on. We are unable to accept the said contention.
22. This Court has repeatedly held that the version of an eyewitness cannot be discarded by the court merely on the ground that such eyewitness happened to be a relative or friend of the deceased. It is also stated that where the presence of the eyewitnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence, it will not be permissible for the court to discard the statement of such related or friendly witnesses. To put it clear, there is no bar in law on examining family members or any other person as witnesses. In fact, in cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. If the statement of witnesses, who are relatives or known to the parties affected is credible, reliable, trustworthy and corroborated by other witnesses, there would hardly be any reason for the court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party or friend, etc. These principles have been reiterated in Mano Dutt v. State of U.P. [(2012) 4 SCC 79 : (2012) 2 SCC (Cri) 226] and Dayal Singh v. State of Uttaranchal [(2012) 8 SCC 263] ."
71. Hon'ble the Apex Court in para-28 of Brahma Swaroop Vs. State of U.P. (2011) 6 SCC 288 has held as under:-
"28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." (Vide State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2021] , Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214] , Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472] , Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] , Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302] , Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630 : AIR 2009 SC 2661] and Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] .)"
Evidentiary value and reliability of the witness PW-3 (Vijay Pal)
72. Much have been discussed over the statement of Vijay Pal (PW-3) earlier in preceding paras. He is declared hostile only to the extent that he did not support the prosecution case that A1 was wielding Gandasa over the body of Ganga Ram when he collapsed on ground sustaining fire arm injuries. Since we have discussed earlier that for rest of the prosecution case PW-3 has been supporting witness and proved a material fact as to the presence and participation of accused in committing crime in question along with the other accused from the very inception through his statement recorded in the Court. The deviation from the statements of other two prosecution witnesses PW-1 and PW-6 is in assigning the weapon whether a ''lathi' or a ''Gandasa'. His statement to this regard is in contradiction with his pretrial statement given to the Investigating Officer, which he accepted before the Court. He could not explain the contradiction of pretrial statement confidently. Rather he stated during his examination that if the investigating officer has reduced it in to writing his statement that A-1 (Babu Ram) was armed with ''Gandasa' and inflicted it's blows over Ganga Ram, then he would have said it to the investigating officer. He further stated on oath that he could not see whether A1 was having a lathi or a Gandasa as he at the time of incident was crying for rescue. Certainly this much of his statement regarding Babu Ram having a ''Gandasa', shakes the prosecution version but rest of his tetimony which support the prosecution case as to the presence of A1 at the spot of incident and participation in crime with rest of the accused cannot be discarded for the reason he has been declared hostile by the prosecution itself. In the above context we proceed to ascertain the evidentiary value of and reliability over the statement of this witness in the light of the law laid down by Hon'ble the Apex Court in various cases.
73. It would be relevant to refer the case of Guru Singh Vs. State of Rajasthan (2011) 2 SCC 205 where it is held in para-11 and 12:-
"11. There appears to be a misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh v. State of Haryana [(1976) 1 SCC 389 : 1976 SCC (Cri) 7 : AIR 1976 SC 202] held that merely because the Court gave permission to the Public Prosecutor to cross-examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa [(1976) 4 SCC 233 : 1976 SCC (Cri) 566 : AIR 1977 SC 170] it was observed that by giving permission to cross-examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy.
12. The terms "hostile", "adverse" or "unfavourable" witnesses are alien to the Indian Evidence Act. The terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling witness" are all terms of English law. The rule of not permitting a party calling the witness to cross-examine are relaxed under the common law by evolving the terms "hostile witness and unfavourable witness". Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and an unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite test. In India the right to cross-examine the witnesses by the party calling him is governed by the provisions of the Indian Evidence Act, 1872. Section 142 requires that leading question cannot be put to the witness in examination-in-chief or in re-examination except with the permission of the court. The court can, however, permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved. Section 154 authorises the court in its discretion to permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. The courts are, therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. Permission for cross-examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness. Extensively dealing with the terms "hostile, adverse and unfavourable witnesses" and the object of the provisions of the Evidence Act this Court in Sat Paul v. Delhi Admn. [(1976) 1 SCC 727 : 1976 SCC (Cri) 160 : AIR 1976 SC 294] held: (SCC pp. 741-43 & 745-46, paras 38-40 & 52) "38. To steer clear of the controversy over the meaning of the terms ''hostile' witness, ''adverse' witness, ''unfavourable' witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared ''adverse' or ''hostile'. Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath Chattorji v. Prasannamoyi Debya [AIR 1922 PC 409 : 27 CWN 797] . The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of ''hostility'. It is to be liberally exercised whenever the court from the witnesses' demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as ''declared hostile', ''declared unfavourable', the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English courts.
39. It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party. Under the English law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under Section 155. Under the English Act of 1865, a party calling the witness can ''cross-examine' and contradict a witness in respect of his previous inconsistent statements with the leave of the court, only when the court considers the witness to be ''adverse'. As already noticed, no such condition has been laid down in Sections 154 or 155 of the Indian Act and the grant of such leave has been left completely to the discretion of the court, the exercise of which is not fettered by or dependent upon the ''hostility' or ''adverseness' of the witness. In this respect, the Indian Evidence Act is in advance of the English law. The Criminal Law Revision Committee of England in its Eleventh Report, made recently, has recommended the adoption of a modernised version of Section 3 of the Criminal Procedure Act, 1865, allowing contradiction of both unfavourable and hostile witnesses by other evidence without leave of the court. The Report is, however, still in favour of retention of the prohibition on a party's impeaching his own witness by evidence of bad character.
40. The danger of importing, without due discernment, the principles enunciated in ancient English decisions, for interpreting and applying the Indian Evidence Act, has been pointed out in several authoritative pronouncements. In Praphullakumar Sarkar v. Emperor [ILR (1931) 58 Cal 1404 : AIR 1931 Cal 401 (FB)] an eminent Chief Justice, Sir George Rankin cautioned, that ''when we are invited to hark back to dicta delivered by English Judges, however eminent, in the first half of the nineteenth century, it is necessary to be careful lest principles be introduced which the Indian Legislature did not see fit to enact'.
It was emphasised that these departures from English law ''were taken either to be improvements in themselves or calculated to work better under Indian conditions'.
52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stand thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
74. In Attar Singh Vs. State of Maharashtra (2013) 11 SCC 719 Hon'ble the Apex Court has held that if the statement of a witness declared hostile is corroborated with other evidence and inspires confidence it can be relied. Paras-14, 15, 16 and 17, read as under:-
"14. We have meticulously considered the arguments advanced on this vital aspect of the matter on which the conviction and sentence imposed on the appellant is based. This compels us to consider as to whether the conviction and sentence recorded on the basis of the testimony of the witness who has been declared hostile could be relied upon for recording conviction of the appellant-accused. But it was difficult to overlook the relevance and value of the evidence of even a hostile witness while considering as to what extent their evidence could be allowed to be relied upon and used by the prosecution. It could not be ignored that when a witness is declared hostile and when his testimony is not shaken on material points in the cross-examination, there is no ground to reject his testimony in toto as it is well settled by a catena of decisions that the court is not precluded from taking into account the statement of a hostile witness altogether and it is not necessary to discard the same in toto and can be relied upon partly. If some portion of the statement of the hostile witness inspires confidence, it can be relied upon. He cannot be thrown out as wholly unreliable. This was the view expressed by this Court in Syad Akbar v. State of Karnataka [(1980) 1 SCC 30 : 1980 SCC (Cri) 59] whereby the learned Judges of the Supreme Court reversed the judgment of the Karnataka High Court which had discarded the evidence of a hostile witness in its entirety.
15. Similarly, other High Courts in Gulshan Kumar v. State [1993 Cri LJ 1525 (Del)] as also Kunwar v. State of U.P. [1993 Cri LJ 3421 (All)] as also Haneefa v. State [1993 Cri LJ 2125 (Ker)] have held that it is not necessary to discard the evidence of the hostile witness in toto and can be relied upon partly. So also, in State of U.P. v. Chet Ram [(1989) 2 SCC 425 : 1989 SCC (Cri) 388 : AIR 1989 SC 1543 : 1989 Cri LJ 1785] , it was held that if some portion of the statement of the hostile witness inspires confidence it can be relied upon and the witness cannot be termed as wholly unreliable. It was further categorically held in Shatrughan v. State of M.P. [1993 Cri LJ 120 (MP)] that hostile witness is not necessarily a false witness. Granting of a permission by the court to cross-examine his own witness does not amount to adjudication by the court as to the veracity of a witness. It only means a declaration that the witness is adverse or unfriendly to the party calling him and not that the witness is untruthful. This was the view expressed by this Court in Sat Paul v. Delhi Admn. [(1976) 1 SCC 727 : 1976 SCC (Cri) 160 : AIR 1976 SC 294]
16. Thus, merely because a witness becomes hostile it would not result in throwing out the prosecution case, but the court must see the relative effect of his testimony. If the evidence of a hostile witness is corroborated by other evidence, there is no legal bar to convict the accused. Thus testimony of a hostile witness is acceptable to the extent it is corroborated by that of a reliable witness. It is, therefore, open to the court to consider the evidence and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused.
17. While examining the instant matter on the anvil of the aforesaid legal position laid down by this Court in several pronouncements, we have noticed that the support rendered by the daughter Mangibai approving the incident should be accepted as reliable part of evidence in spite of she being a hostile witness. The witness Mangibai's evidence pushes the accused with his bag to the wall and the accused is obliged to explain because her evidence shows that the accused was the only person in the company of the deceased soon before the death. The defence of the accused that Nagibai's injury was a result of fall is ruled out by medical evidence and the details available of the location in the panchnama of offence. The courts below thus have rightly drawn some support from the reports of the chemical analysis since all the articles of the victims and clothes of the accused are found having bloodstains of human Blood Group A. This was in view of the fact that the results of the analysis for determination of the blood group of the victim and accused were conclusive when blood sent in phial was analysed. Thus, the evidence of the daughter of the deceased coupled with other material as also evidence of other witnesses i.e. Ramesh, Khandu, Bhatu and Makhan, provided a complete chain and the prosecution successfully proved that the incident occurred in the manner and the place which was alleged."
75. In Mrinal Das Vs. State of Tripura (2011) 9 SCC 479 Hon'ble the Apex Court it is settled that corroborated part of evidence of hostile witnesses regarding commission of offence is admissible. His statement cannot be discarded enblock only for the reason he has been declared hostile. Relevant para-67 of the judgment thus reads as under:-
"67. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of the prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."
76. In somehow similar situation of a case before Hon'ble Supreme Court in Anil Rai Vs. State of Bihar (2001) 7 SCC 318, where merely because a witness has been declared hostile because of not mentioning the name of one of the accused it is held that his entire evidence cannot be wiped out. Para-26 thus reads as under:-
"26. I also do not find any substance in the submission of the learned counsel for the appellant Subhash Chand Rai (A-2) that as Mukati Singh (PW 12) was declared hostile in not naming his client, the prosecution case could not succeed. The mere fact that the Court gave the permission to the Public Prosecutor to cross-examine his own witness by declaring him hostile does not completely efface the evidence of such witness. The evidence remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence. The said witness in his statement recorded in the Court stated that after the meeting in the Panchayat Bhawan he along with Lal Muni Rai and others were coming back to the village and when they reached near puwal heap of Baij Nath Ram he saw accused Avinash Chand Rai (A-1), Anil Rai and Awadh Bihari Rai with others, equipped with rifles and guns. They caught hold of Lal Muni Rai. The witness cried and raised alarm that Lal Muni Rai was held by the aforesaid persons after which a number of people from the village rushed to the place including Chand Muni Rai (deceased). He, however, did not mention the presence of Subhash Chand Rai (A-2) for which he was declared hostile. In his cross-examination he admitted that bloodstained earth was recovered from the spot where Lal Muni Rai and Chand Muni Rai had fallen down. Regarding presence of the eyewitnesses he stated, "I do not remember that I stated before Darogaji that by that time the wife and son of Chand Muni Rai came to secure Chand Muni Rai." The occurrence having taken place and the two persons having died on the date of occurrence have been admitted even by PW 12. There is, therefore, no reason to hold that as Mukati Singh (PW 12) has not named appellant Subhash Chand Rai (A-2), he is entitled to acquittal."
77. In the discussion made above we reached at this conclusion that statement of PW-3 declared hostile is admissible and reliable to the extent it is in corroboration with the other evidences including statements of PW-1 and PW-6 with regard to presence at spot of incident and participation with all the accused in commission of crime since the very inception till the completion of the criminal act of killing ''Ganga Ram' (deceased). All the three witnesses of fact are natural eye witnesses, truthful and credible and trustworthy.
Corroboration from medical evidence.
78. After the commission of crime the accused fled away from the spot and when the prosecution witnesses PW-1, PW-3 and PW-6 reached near the body of victim Ganga Ram lying collapsed on the ground in a pool of blood, they found him dead on spot with bleeding wounds, all these stand proved by the evidence of aforesaid witnesses, as we have discussed earlier in preceding paras. It is also found proved that after registration of offence against the assailants, in the course of investigation on spot inspection with examination of dead body was done and inquest report (Exhibit Ka-7) was prepared. The inquest report (Exhibit Ka-7) discloses the wounds stained with profused blood on the right side of chest, on the neck below the right ear, marks of pillets' injury caused by fire arm along with several incised lacerated wounds and contusions and abraded injuries on the body of deceased Ganga Ram. In their examination on oath the eye witnesses have consistently and without any anomaly have given a graphical account of the incident in question in detail, how the accused assailants armed with their respective weapons attacked over Ganga Ram and that A-3 with Rajpal fired upon him with their gun and country made pistol thus injured him. The rest of the accused also hit Ganga Ram with their weapon (lathi and Gandasa) when he collapsed. At this stage the wounds and other injuries found on the body of Ganga Ram is a fact relevant to the issue of killing of Ganga Ram by the accused. Though the evidence of PW-1, PW-3 and PW-6 prove sufficiently and reliably as to who caused the injuries to the victim Ganga Ram. Further the nature and effect of the injuries whether sufficient to cause death in the ordinary course of nature, is proved by producing the doctor who did the autopsy of deceased body and prepared post mortem report. PW-2 Dr. Surendra Singh, the then Medical Officer, posted on 5.4.1985 in District Hospital, Hardoi, has proved the post mortem (Exhibit Ka-2), for easy reference the relevant extract from Exhibit Ka-2 is reproduced hereunder:-
Antemortem Injuries
(i) Lacerated wound 4 c.m. x 1.5 c.m. x scalp deep on middle of head 12 c.m. above the bridge of nose.
(ii) Lacerated wound 4 c.m.x 1.5 c.m. x scalp deep on the right side of the middle of the head 10 c.m. above right eye brow.
(iii) Lacerateed wound 2 c.m.x1 c.m. x bone deep on the left eye brow.
(iv) Lacerated wound 1 c.m. x 1.5 c.m. bone deep on the bridle of the nose.
(v) Lacerated wound 3 c.m. x 1.5 c.m. x bone deep on the right eye brow.
(vi) Abraded contusion 5 c.m. x 3 c.m. on the right side of the face.
(vii) Abraded contusion 4 c.m. x 3 c.m. on the left side of the face.
(viii) Firearm wound of entry 3 c.m. x 2.5 c.m. x bone deep on right angle of mandible margins are inverted and lacerated 3 c.m. below from right ear lower end. Blacking present around the wound direction upward and right to left.
(ix) Firearm wound of entry 2 c.m. x 1.5 c.m. X skin deep through and through on right side of upper part of chest including some part of right shoulder joint 8 c.m. above right nipple at 11 O'clock. Blackening present margins inverted and lacerated.
(x) Firearm wound of Exit 3 c.m. x 2.5 c.m. just below the injury no.9 communicated with injury no.9 c.m. above right nipple at 10 O'clock. Margins everted and lacerated.
(xi) Multiple abrasions in the area of 10 c.m. x 5 c.m. on the right side of the chest 1.5. c.m. above and left to the right Nipple measuring .25 c.m. x .25 c.m. to .5 c.m. x .5 c.m.
(xii) Abrasion 2 c.m. x 1 c.m. on right knee joint.
(xiii) Abrasion 1 c.m. x 1 c.m. on left knee joint.
Cause of Death:- In my opinion death occurred due to shock and hemorrhage as result of Antimortem injury."
79. Surendra Singh (PW-2) confirmed his opinion as to the cause of death of victim of the incident dated 4.4.1985 before the trial Judge also. He stated that in his opinion death of the deceased caused due to shock and excessive hemorrhage on account of the ante mortem injuries caused to him. He further stated that two wading pieces of bullet and 10 big size pillets were found on his body. The injuries reported by him, in the ordinary course of nature, were sufficient to cause death. PW-2 further opined about the time of death on the basis of post mortem staining and rigour mortis of the victim Ganga Ram that it might have occurred on 4.4.1985 at about 6:00 p.m. in evening. He also confirmed that injuries No.8,9 and 10 would have been caused by fire arm like gun and country made pistol (tamancha) and injuries reported at serial No.1 to 7 being lacerated wounds, would have been caused by any blunt end object like lathi also. He did not ruled out the use of ''Gandasa' which has one side sharp edge while other side being bat or handle, a blunt end, if the same is wielded on the body of deceased from blunt end. In totality the post mortem report Exhibit Ka-2 and the evidence of Doctor (PW-2) are in consonance with the graphical account of the incident as given by the defence through cross examination of the Doctor (PW-2) but seems to have put much vehemence in asking about the distance and direction of the accused from deceased when made shot at him, so as to falsitfy the statement of accused as to the location of assailants while they are said by them to have fired at Ganga Ram in the course of incident. They argued a lot on the basis of their hypothetical questions and their answer by doctor (PW-2) so as to shake the credibility of the eye witnesses referring the statement of eye witnesses as to the possible direction and distance from the deceased of the accused in the course of incident, keeping in view the fire arm injury wounds on the body of deceased having their margin inverted, lacerated everted or their specific location on the body. However, PW-2 opined that the assailant who caused injury no.8 would have been standing in the right side of the deceased at a distance about one and a half to two feets whereas injury no.9 would have been caused when the victim was lying supine on the ground.
80. The evidence of PW-2 (doctor) is merely an opinion of expert under Section 45 of the Indian Evidence Act. In the case before us the weapons stated to have been used by the accused in the course of commission of incident are proved and the effect caused through them are also found corelated wounds by virtue of the report as to ante mortem injuries found on the body of deceased Exhibit Ka-2 also commensurate with the nature of weapon. We have held that the witnesses PW-1, PW-3 and PW-6 are wholly reliable therefore, the expert evidence of (PW-2) is of not much importance as corroborative evidence. However, it is not in repugnancy with the evidence of the aforesaid eye witnesses of fact. The expert is a valuable witness when it becomes utmost necessary for the court to record his evidence to form an accurate opinion to determine that the offence was committed by the accused. The other evidences corroborated with the expert's witness' deposition fixes the guilt on the accused. In the present case before us the victim of the incident is proved not only by the witnesses of fact PW-1, PW-3 and PW-6 to have on spot died because of the injuries sustained by him from the weapon used by accused. They saw him lying in pool of blood and died on spot. The inquest report also confirms the ante mortem injuries on the dead body and post mortem report also mentions the said ante mortem injuries which in the opinion of PW-2 were fatal to cause death of Ganga Ram. Minor deviation, if any, as to the location of wound on the dead body, the distance between the assailants and the deceased in the deposition of the witness is not material to disbelieve the eye witness's account of the incident. In most of the details given by the witnesses as to the direction and distance they are more or less near the standard condition under forensic science. Ballistic parameters are not strictly the same as the same depend on the kind and strength of the firearms on their bore and the gun powder used in the bullets.
81. It is established law that the testimony of eye witness should be paramount unless medical evidence is so conclusive as to rule out even the possibility of eye witness's version to be true. A three Judges Bench of Hon'ble Supreme Court [Hon'ble M.M. Punchi, (C.J.), Hon'ble K.T. Thomas and Hon'ble S. Rajendra Baboo, J.J] in State of U.P. Vs. Harban Sahai & Ors. (1998) 6 SCC 50 has held in para-9:-
"9. The second reason put forth by the High Court for disbelieving the version of the eyewitnesses is this: PW 1 (Shashi Bhushan) and PW 2 (Shiv Sagar Lal) said that two accused had fired the gun simultaneously, but the deceased sustained only one gunshot injury which is described in the post-mortem certificate as Injury 2. The Public Prosecutor in the trial court endeavoured to show that Injury 7 would possibly have been the result of a gunshot. Dr R.S. Pandey (PW 7) answered to the said query saying that there is a possibility of that injury being caused in a gunshot if pellets have touched that part of the face and deflected therefrom. Injury 7 is described as "multiple abrasions in an area of 7 cm × 6 cm on the right side of the face 2.5 cm below the right eye". But the High Court ruled out the possibility of the said injury having been caused in gunshot on the following reasoning:
"But in the cross-examination the doctor has denied the possibility of such injury being caused while the deceased was being chased from behind and that is exactly what the prosecution case is, that while the deceased was running away the two appellants armed with guns, fired from behind. Consequently Injury 7, even if it is said to be a gunshot injury, would not go to corroborate the prosecution case in any manner."
The High Court has thus knocked out an eyewitness on the strength of an uncanny opinion expressed by a medical witness. Overdependence on such opinion evidence, even if the witness is an expert in the field, to checkmate the direct testimony given by an eyewitness is not a safe modus adoptable in criminal cases. It has now become axiomatic that medical evidence can be used to repel the testimony of eyewitnesses only if it is so conclusive as to rule out even the possibility of the eyewitness's version to be true. A doctor who conducted post-mortem examination or examined an injured person is usually confronted with such questions regarding different possibilities or probabilities of causing those injuries or post-mortem features which he noticed in the medical report. But the answers given by the witness to such questions need not become the last word on such possibilities. After all he gives only his opinion regarding such questions. But to discard the testimony of an eyewitness simply on the strength of such opinion expressed by the medical witness is not conducive to the administration of criminal justice. (Vide Piara Singh v. State of Punjab [(1977) 4 SCC 452 : 1977 SCC (Cri) 614 : AIR 1977 SC 2274] , Mange v. State of Haryana [(1979) 4 SCC 349 : 1979 SCC (Cri) 985 : AIR 1979 SC 1194] , Ram Dev v. State of U.P. [1995 Supp (1) SCC 547 : 1995 SCC (Cri) 402 (2)] )"
82. Further in Thaman Kumar Vs. State of Union Territory of Chandigarh (2003) 6 SCC 380, Hon'ble Apex Court has held in para-16 as under:-
"16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony."
83. It would be relevant to refer the significance of distance between victim and the fire arm from which the fire of bullet is discharged. From Modi's Medical Jurisprudence and Toxicology 23rd Edition (reprint 2009) page No.721 following is extracted:-
"If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a grayish or white deposit on the skin around the wound. If the area is photographed by infrared light, a smoke halo round the wound may be clearly noticed. Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or no distinction can be made between on distant shot and another, as far as distance is concerned. Scorching in the case of the latter firearms is observed within a few inches, while some evidence of scorching in the case of shotguns may be found even at one to three ft. Moreover, these signs may be absent when the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame smoke and particles of gunpowder will all follow the track of the bullet in the body. Wetting of the skin or clothes by rain reduces the scorching range. Blackening is not affected by wet surface although it can easily be removed by a wet cloth. Blackening with a high power rifle can occur up to about one ft. Usually, if there are unburnt powder grains, the indication is that the shot was fired from a revolver or a pistol and shorter the barrel of the weapon used the greater will be the tendency to the presence of unburnt of slightly burnt powder grains."
84. In the present case PW-1 have deposed before the court that assailants along with their fire arms were in north direction from the deceased at a distance of 3 to 4 steps. One feet is equal to 0.3048 meter. The distance covered by a single step assuming a stride length of 0.762 meters or 2.5 feet. Although stride length varies from person to person as per his/her activity. As such 2.5 feet would be a maximum measurement of one step, otherwise normally, while walking it would be less than 2.5 feet. PW-3 has also stated about distance of fire arm (country made pistol) in the hand of Raj Pal about two steps from the deceased. All the witnesses have consistently deposed that accused persons fired three shots on Ganga Ram simultaneously. The dead body was found with three fire arm wounds measuring 3 c.m.x2.5 c.m. with inverted and lacerated margin and blackening around the wound (injury no.8). Secondly, entry wound measuring 2 c.m.x1.5 c.m. 5 c.m. deep and blackening around the wound with inverted and lacerated margin, thirdly wound of 3 c.m.x2.5 c.m. just below the injury no.9 with margin inverted and lacerated. The witnesses have also deposed the deceased was standing east facing towards the spot when the accused fired at him from north. The fire arm injuries are also on the right side of the body of deceased on mandible below the right ear on neck and right upper side of chest.
85. So far as the injuries inflicted by Gandasa by A1 is concerned the inquest report Exhibit Ka-7 shows presence of incised wound over the head and upper portion of body whereas in post mortem report (Exhibit Ka-2) no incised wound is reported on the body of deceased rather injuries no.1 to 7 are found to be lacerated wound PW-1 and PW-6 both have assigned ''Gandasa' in the hand of A-1 and in their deposition before the court A-1 is stated to inflict blow of Gandasa over the head of Ganga Ram collapsed on the ground struck with firearms' shot made by A-3 and Rajpal. PW-3 in contradiction with his earlier statement given to Investigating Officer PW-8 under Section 161 Cr.P.C. has not supported while examined before the court. In his statement on oath, A-2 was stated by him to have been holding a lathi. However, in cross-examination by prosecution PW-3 stated he could not see whether A-1 was having Gandasa as he was crying for rescue at that time. He also asserted, if the investigating officer has written his statement regarding A-1 was armed with and used in the incident Gandasa then he would have been stated to him (I.O.). In view of the above the defence of A1 that he was not armed with Gandasa in the course of commission of offence is not corroborated with medical evidence. The expert opinion as to the lacerated wound depend before the court is that they might have been caused by some blunt end object like lathi. He further, added in case ''Gandasa' is blown to inflict injury from it's reverse end which used to be blunt then it might have caused lacerated wound. The doctor's opinion firstly confirms in his report and statements apart of fire arm injuries on the body of deceased Ganga Ram, existence of lacerated wounds (at serial no.1 to 7) also on the body of the deceased Ganga Ram as ante mortem injuries. He opined further that such injuries might have been caused by using some blunt object. Further in cross-examination by the learned counsel for the defence that injuries No.1 and 2 could not be caused if the blows of lathi (stick) had been made from the side of legs of the deceased who lay fallen on the ground. Injuries no.1 and 2 are on the head of the deceased. It has come in statement on oath examination of PW-1 and PW-2 that A-2 was standing towards the head side of the Ganga Ram when he fell on ground and began to inflict blows of Gandasa. It is not asked by the learned counsel for the defence from aforesaid witness whether A-2 used the ''Gandasa' for inflicting injuries from sharp edged and of the Gandasa or from reverse end which used to be blunt.
Corroboration from other materials proved in the Court.
86. The prosecution has produced for examination before the trial Judge the Head Moharrir (PW-5) who received the complaint (Exhibit Ka-1) from the informant PW-1 and registered the First Information Report which he proved when examined during trial as Exhibit Ka-4. He placed before the court the G.D. entry of the said FIR at serial no.29, in original and proved the FIR to have been registered in the P.S. Behta Gokul on 04.04.1985 at 7:30 p.m. He has also proved the fact that PW-1 and PW-6 both came together in Police Station to lodge FIR of the incident and that PW-6 was injured to whom he alongwith Chowkidar named ''Subedar', sent for medical examination to District Hospital, Hardoi, along with his letter. Exhibit Ka-3. In cross examination this witness confirmed the special report pursuant to the lodging of FIR of the incident was sent to the concerned Magistrate at 8:40 p.m. on the same date 04.04.1985 through a constable named Abdul Samad. This witness as such proved one of the most vital fact, 'the prompt lodging of the FIR' of the incident on 04.04.1985 without any unreasonable delay. This overrules the argument of learned counsel for the defence as to the FIR being ante-timed and ante-dated. He further proved that PW-6 was injured at the time of his arrival at police station for filing FIR and proved this physical condition of PW-6 by showing entry to the same effect in the General Diary dated 04.04.1985 maintained in the Police Station.
87. Another police witness produced before the Trial Judge for examination is the Investigating Officer ''Ram Ruchi Arya' as PW-8. He was posted in P.S. Behta Gokul as Additional Sub Inspector. He deposed before the Trial Judge that the FIR of the case concerned in the Police Station was lodged in his presence and that the investigation was handed over to him. He further proved the inquest report (Exhibit Ka-7) prepared in the presence of ''Panch' witnesses on 04.04.1985, after enquiry of the dead body, in his own hand writing and signature. He stated that the then S.H.O. Jitendra Nath Singh, S.I. Vipin Singh and S.I. Shreepal Singh Constable Mohd. Yusuf and Ramasre Shukla (PW-7) were also present at the time of inquest. We thoroughly perused the Exhibit Ka-7 (Inquest report) it has properly mentioned crime no.48 registered under Section 302 IPC. None of the column in the prescribed format under Section 174 Cr.P.C is left unfilled. The time of occurrence date and place, the condition of the dead body, incised wounds and fire arm injuries present over the body of the deceased, the time when inquest proceeding started, the opinion of the witnesses as to cause of death all are duly filled. All the details furnished in the inquest report are in full consistency with those stated by the ocular witnesses in their deposition before the Court. The time of reporting as mentioned in Exhibit Ka-7 is 7:30 p.m. on 04.04.1985 and the initiation of proceeding at 9:30 p.m. whereas after completion of inquest proceeding the handing over of the dead body for post mortem at 10:30 p.m. on 04.04.1985 clearly overrules the argument as to the FIR being ante timed and ante dated. No discrepancy in inquest report is argued by learned counsel for defence but for the non mentioning of the name of accused therein. In this regard it would be relevant to give reference of the decision of Hon'ble Apex Court in Brahma Swaroop Vs. State of U.P. (2011) 6 SCC 288 in para-9 has held as under:-
"9. The whole purpose of preparing an inquest report under Section 174 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating as in what manner, or by what weapon or instrument such wounds appear to have been inflicted. For the purpose of holding the inquest it is neither necessary nor obligatory on the part of the investigating officer to investigate into or ascertain who were the persons responsible for the death. The object of the proceedings under Section 174 CrPC is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings i.e. the inquest report is not the statement of any person wherein all the names of the persons accused must be mentioned."
88. Summing up our discussion over the first point of determination framed by us we reached at the conclusion that the prosecution has been successful in proving it's case against the accused-appellants A-1, A-2 and A-3 beyond all reasonable doubts through it's witnesses PW-1, PW-6 who are totally reliable for the reason their deposition before the Trial Judge has ever been free from any inconsistency anomaly, contradiction or improbability and as such in totality give a true, natural and trustworthy graphical account of incident wherein on 04.04.1985 at about 6:00 p.m. the accused appellants (and Rajpal died during trial) attacked Ganga Ram, deceased popping out from their place of hiding with their respective weapons at the western end of the bridge over the Sharda Canal on the way to village Behta Gokul for the reason of enmity with the deceased. We do not find any error in the judgment of the Trial Judge in this regard.
Defence witnesses of behalf of the accused appellants
89. We have earlier held that in the present case before us, which is based on direct and ocular witnesses of the incident, the prosecution has been successful in proving it's case with the help of it's reliable and trustworthy witnesses of fact namely PW-1, PW-3 and PW-6 as well as the formal witnesses and medical witnesses against the accused appellant with regard to their presence and participation in the killing of Ganga Ram (deceased). After closure of prosecution evidence the Trial Judge called the accused appellants personally under Section 313 of the Cr.P.C. so as to enable them to explain incriminating circumstances emerging out from the evidence against them. As such all the three accused appellants were personally given opportunity to explain his stand on the incriminating circumstances in addition to what their counsels would have already done by way of cross-examination. All of them have availed the opportunity and commonly blamed the incriminating which came out from prosecution evidence to be ''false implication by reason of enmity'. Further they all wanted to adduce evidence in their defence. One of them (A-2) namely ''Babu Ram' in addition to the common explanation of ''false implication due to enmity' claimed himself to be on duty in Board Examination thus took plea of alibi. Two witnesses namely Sushil Bajpayee (DW-1) and another ''Gaya Prasad' (DW-2) were examined from the side of accused appellant.
90. We perused the judgment of learned Trial Judge to examine whether the defence offered by the accused has been duly considered or not. We found that in compliance of the mandatory duty cast upon the trial court under Section 313 (1)(b) Cr.P.C. the Trial Judge not only recorded the oral examination of the two defence witness DW-1 and DW-2 but also discussed in his judgment on the norms and parameter held by the decisions of our High Courts and the Apex Court for placing reliance on them. The Trial Judge found the plea of alibi not tenable on the ground of specifying the name and identification of the person in respect of whom the photo copy of a duty chart of Board Examination was placed before the Court, the want of mention of specific session of exam whether forenoon or afternoon and period of examination. Likewise the primary fact of appointment and posting of the accused (A-2) as teacher or in any other capacity in the institution at the relevant date was not shown. So far as the document (duty chart in Board Examination) is concerned the trial court observed, it was not admissible for the uncertainty as to the authority who prepared and issued the same. The Trial Judge considered DW-2 as a witness planned to save the accused appellants otherwise by his deposition he has admitted and proved the day, date, time and place of incident along with one of the accused appellant, Raj Pal. Before proceeding to scrutinize the evidence of the defense witnesses, we think it proper to give reference of some decisions of Hon'ble Apex Court relevant to the issue.
91. Hon'ble Apex Court in a recent judgment delivered in Reena Hazarika Vs. State of Assam (2019) 13 SCC 289 has discussed the scope of Section 313 Cr.P.C. and nature of burden of proof of defence given by the accused. Hon'ble Apex Court in para 19, 20, 21 has held as under:-
"19. Section 313 CrPC cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2) CrPC. The importance of this right has been considered time and again by this Court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) CrPC the Court is duty-bound under Section 313(4) CrPC to consider the same. The mere use of the word "may" cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available, is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 CrPC, in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 CrPC and to either accept or reject the same for reasons specified in writing.
20. Unfortunately neither the trial court nor the High Court considered it necessary to take notice of, much less discuss or observe with regard to the aforesaid defence by the appellant under Section 313 CrPC to either accept or reject it. The defence taken cannot be said to be irrelevant, illogical or fanciful in the entirety of the facts and the nature of other evidence available as discussed hereinbefore. The complete non-consideration thereof has clearly caused prejudice to the appellant. Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt. The accused has only to raise doubts on a preponderance of probability as observed in Hate Singh Bhagat Singh v. State of Madhya Bharat [Hate Singh Bhagat Singh v. State of Madhya Bharat, AIR 1953 SC 468 : 1953 Cri LJ 1933] observing as follows: (AIR p. 471, para 26) "26. We have examined the evidence at length in this case, not because it is our desire to depart from our usual practice of declining to re-assess the evidence in an appeal here, but because there has been in this case a departure from the rule that when an accused person puts forward a reasonable defence which is likely to be true.... then the burden on the other side becomes all the heavier because a reasonable and probable story likely to be true when pitted against a weak and vacillating case is bound to raise reasonable doubts of which the accused must get the benefit. ..."
21. A similar view is expressed in M. Abbas v. State of Kerala [M. Abbas v. State of Kerala, (2001) 10 SCC 103 : 2002 SCC (Cri) 1270] as follows: (SCC p. 108, para 10) "10. ... On the other hand, the explanation given by the appellant both during the cross-examination of prosecution witnesses and in his own statement recorded under Section 313 CrPC is quite plausible. Where an accused sets up a defence or offers an explanation, it is well settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities. ..."
92. Here the question before us, is that whether, against the proved case of prosecution as to the presence and participation of accused in crime, the accused persons have put forward a reasonable defence which is likely to be true and can raise a reasonable doubt against the prosecution case. We think it proper to consider the defence case one by one.
(a) Plea of Alibi by accused appellant A-2 (Babu Ram)
93. To examine the plea of alibi set as defence by accused Baboo Ram we have gone through the evidences of PW-1, PW-3 and PW-6. The presence of the said accused on spot of crime his participation along with other accused in commission of crime is proved consistently by all the witnesses of fact named above. The nature of injury found on the body of deceased also corroborated the deposition of eye witnesses. We carefully scrutinized the chief examination and thereafter the cross examination of all the three witnesses of fact whether fact of Baboo Ram's having his employment on the relevant period of incident in an educational institution in any capacity teaching or non-teaching staff. Even assuming him on duty the distance of institution from the spot of incident is not asked from any of the said witness. Moreover, in statement recorded under Section 313 (1)(b) Cr.P.C., this accused has not stated his status as teaching or non-teaching staff in a particular institution. He simply stated, I was on duty in board exam. Further DW-1 Sushil Bajpayee was produced, he too had not disclosed the capacity in which he was in board examination duty on 04.04.1985 in the Inter College ''Pali', District Hardoi. He stated about one Baboo Ram Verma working with him on that day in examination duty. He filed a photo state copy of document purported to be duty chart of examination duty of the 04.04.1985 is second session but failed to state who prepared the same and who was the authority to issue that. In totality of facts and circumstances available on record as proved by the evidences, where the issue is whether the accused Baboo Ram was present anywhere else other than the spot of incident, there is nothing on record even to make it possible at least by preponderance of probability.
94. Hon'ble the Apex Court in the judgment delivered in Sheikh Sattar Vs. State of Maharashtra (2010) 8 SCC 430 has held, the burden to establish the plea of alibi is on the accused. Para 34 and 35 are thus reads as under:-
"34. Except for making a bald assertion about his absence from his rented premises, the appellant miserably failed to give any particulars about any individual in whose presence, he may have read the namaz in the morning. He examined no witness from Chikalthana before whom he may have read the Koran in the evening prior to the incident. He examined nobody, who could have seen him in the masjid during the night of the incident. Therefore, the trial court as also the High Court concluded that this plea of being away from the rented premises at the relevant time was concocted.
35. Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. We may also notice here at this stage the proposition of law laid down in Gurpreet Singh v. State of Haryana [(2002) 8 SCC 18 : 2003 SCC (Cri) 186] as follows: (SCC p. 27, para 20) "20. ... This plea of alibi stands disbelieved by both the courts and since the plea of alibi is a question of fact and since both the courts concurrently found that fact against the appellant, the accused, this Court in our view, cannot on an appeal by special leave go behind the abovenoted concurrent finding of fact."
95. This view was further reiterated by the Apex Court in para-64 and 71 of Jitendra Kumar Vs. State of Haryana (2012) 6 SCC 204 which reads as under:-
"64. The mere fact that the accused were residents of a village at some distance would be inconsequential. As per the statement of the witnesses, both these accused were seen by them in the house of Ratti Ram where the deceased was murdered. We are also unable to accept the contention that presence of PW 10 and PW 11 at the place of occurrence was doubtful and the statements of these witnesses are not trustworthy.
71. Once PW 10 and PW 11 are believed and their statements are found to be trustworthy, as rightly dealt with by the courts below, then the plea of abili raised by the accused loses its significance. The burden of establishing the plea of alibi lay upon the appellants and the appellants have failed to bring on record any such evidence which would, even by reasonable probability, establish their plea of alibi. The plea of alibi in fact is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the place of occurrence and in the house which was the home of their relatives. (Ref. Sk. Sattar v. State of Maharashtra [(2010) 8 SCC 430 : (2010) 3 SCC (Cri) 906] .)"
96. Thus we uphold the finding of learned Trial Judge that accused appellant Baboo Ram failed to establish his plea of alibi even on the preponderance of probabilities in the totality of proven facts and circumstances as on record.
(b) false implication due enmity
97. In one of the preceding paras under the head ''enmity' we have discussed the evidence on record by cross examination of PW-1 and PW-6 the real brothers of deceased Ganga Ram. We have found it proved that whatever enmity might have been is amongst Ganga Ram and the accused brother Lala Ram, Baboo Ram. The proved reason of enmity was the murder of ''Digga' father of accused brothers Lala Ram and Baboo Ram, for which they were prosecuting Ganga Ram and two others namely Vishram and Ram Kumar. The trial ended at the level of Sessions Judge with conviction of the accused but in appeal by Ganga Ram he was released on bail by the High Court. Admittedly none of the witness was accused in that trial nor any civil or criminal litigation was pending between the witnesses and the accused. Therefore, by cross examination whatever material came on record, it is not proved that the witnesses aforesaid shared any enmity against accused with Ganga Ram (deceased).
98. The witness DW-2 ''Gaya Prasad' claims himself an eye witness of the incident. He stated to have seen the murder of ''Ganga Ram' by Raj Pal (died duing trial) and three other unknown assailants to whom he identified in District Jail Hardoi. He stated that the family members of Ganga Ram and the I.O. were told by him about the assailants. In cross examination he stated that he don't know why he is not made a witness in the case by prosecution. The Trial Judge has evaluated his deposition and found him an unreliable witness coming forward to save the accused by false story.
99. We scrutinized the evidence of DW-2 Gaya Prasad along with other facts proved on evidence of prosecution witnesses. PW-1 in his statement on oath dated 20.12.1986 in para-4 have stated about the aforesaid ''Gaya Prasad' that he knows him as he is resident of the same village Behta Gokul to which he belongs. He further told the court that Gaya Prasad is the companion of Deo Narayan and Ram Murari, his enemies. He ruled out the involvement of any stranger than the named accused as stated by the witnesses DW-2. DW-2 stated that he told the I.O. the fact of unknown assailants, but this seems to be false because on 04.04.1985 just after the time of occurrence at 6:00 p.m. in Police Station Behta Gokul FIR of the incident was lodged at 7:30 p.m. against the named accused namely Raj Pal, Lala Ram, Baboo Ram and Ram Pal. Even the special report to concerned Magistrate was sent and thereafter inquest proceeding was initiated on spot of incident at 9:30 p.m. and completed by 10:30 p.m. Till then the ''Gaya Prasad' did not appear as eye witness. It may be seen in the inquest report itself (Exhibit Ka-7) wherein name of the Panch witnesses present on spot is written which does not include name of Gaya Prasad. Even the hostile witness PW-3 in his cross-examination by defence counsel firmly denied the presence of any other witness on spot than him, Kadhiley and PW's 1 and 3. All these prove the DW-2 an inimical witness to the PW-1 and PW-6 the real brother of Ganga Ram. He seems to be a fictitious witness planned to save the accused. The Trial Judge is not in error to hold this witness unreliable, because the witness whether of prosecution or of defence has to fulfill the same criterion as to be treated trustworthy and reliable.
100. On the basis of above discussion we reached at the conclusion that the accused appellant could not establish defence set up by them even on preponderance of probabilities so as to raise any doubt as to the prosecution case.
Liability under Section 34 IPC
101. Our second point of determination in these three criminal appeals of accused appellants is as to their liability consequent upon their joint participation in the commission of crime. Before we proceed to discuss this issue it would be relevant to refer hereunder the provision of Section 34 of the Indian Penal Code, 1860 which reads as under:-
"34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
102. Simply stating Section 34 of the Indian Penal Code, provides that all those persons who have committed a crime with a common intention and they have acted while keeping in mind their common institution, then every one should be liable for the act of another done in common intention as if the act is done by the person alone. This is the concept of joint liability enshrined in the Section 34 IPC. The essential ingredients for the application of the joint liability under Section 34 of the IPC obvious from it's language are-
(i) a criminal act is done by several persons.
(ii) the criminal act must be to further the common intention of all,
(iii) there must be participation of all the persons in furthering the common intention.
103. The learned Trial Judge took into consideration the proved facts and materials on record in the light of the three essential ingredients referred hereinabove and held the accused in furtherance of their common intention to take revenge of the murder of accused appellants' (A-2 and A-3) father ''Digga' sat hidden with their weapons on the way leading to Ganga Ram's home and when he reached near they suddenly jumped out and intercepted him. A-3 and Rajpal (died during trial) fired on Ganga Ram with their respective fire arms injured thereby when he collapsed on the ground A-2 and A-1 inflicted on his body the blows of their respective weapon namely Gandasa and lathi. Seeing the people rushing to the spot on the hue and cry made by PW's 1, 3 and 6 all the accused fled away from the spot. The Trial Judge on the basis of the said proved facts held all the accused to have participation and role in murder of ''Ganga Ram' committed in furtherance of their common intention. Accordingly, he convicted all of them being jointly liable for the offence punishable under Section 302 read with aid of Section 34 IPC.
104. Out of the four accused persons Raj Pal (died during trial) and his case stood abated before the final decision in the trial. The rest of the three convicted accused A-1 (Baboo Ram) A-2 (Ram Pal) and A-3 (Lala Ram) have preferred separate appeals. The vehemence of argument done by their learned counsel is upon the effect caused from specific weapon assigned to them by prosecution and the nature of injury caused to the deceased through their weapon, whether fatal in consequence and sufficient to cause his death. However, with regard to A1 one fact proved on the evidence by deposition of PW-1, PW-6 and PW-3. Consequently, is the presence of all the four accused from the very inception throughout the occurrence of incident. The medical expert's opinion (PW-2, Dr. Surendra Singh) is also corroborative of the evidence of eye witnesses that the cause of death of Ganga Ram is the shock and excessive hemorrhage due to ante mortem injuries. The ante mortem injuries mentioned in the inquest report Exhibit Ka-7 and post mortem report (Exhibit Ka-2) are not only the fire arm wounds but also large and deep lacerated wound on head and other part of the body.
105. In the context of above proved facts it would be relevant to refer one of the earliest case on the concept of joint liability under Section 34 IPC decided by the Privy Council, 'Barendra Kumar Ghosh Vs. King Emperor' (AIR 1925 P.C. 1) where the court convicted one person for the act of another done in furtherance of common intention. The fact of the case are that several armed persons entered into a post office to extort money from the post master who was counting there the cash. They fired on him from pistol due to which he died on the spot. All the assailants fled away without taking money. The police caught one of the assailants Barendra Kumar Ghosh who was standing outside the post office for watching the police and alarm the other members of the group. Calcutta High Court rejected his plea that he was only a watchman and convicted him under Section 302 IPC with the aid of Section 34 IPC. Privi council also rejected the appeal.
106. A perusal of the evidence of PWs no.1, 3 and 6 the presence over spot of incident and participation in crime of all the accused is proved. Therefore, to gather from the evidences inference as to a common intention and that the accused persons were acting in furtherance thereto so as to fasten their joint liability, irrespective of the weapon assigned to them and their use by them it would be relevant to refer the judgment of the Constitution Bench of the Supreme Court in Mohan Singh Vs. State of Punjab AIR 1963 SC 174, relevant para nos. 14 and 15 are thus reads as under:-
"14. What then are the facts and circumstances proved in the present case? It is proved that the appellants shared with Dalip Singh the motive which impelled Dalip Singh to inflict the fatal blow on Gurdip Singh. The close relationship between the appellants and Dalip Singh leaves no room for doubt that they shared the same motive with Dalip Singh to the same extent. It is also proved that Dalip Singh and the two appellants were lying in wait for Gurdip Singh. We have also seen that when the party accompanying Gurdip Singh told the appellant Mohan Singh that the Patwari and the Qanungo had come on the spot to deliver possession of the land to Gurdip Singh, Mohan Singh pretended that he was hungry and went away. Then he seems to have contacted Dalip Singh and Jagir Singh and all the three were lying in wait for Gurdip Singh, who, they knew, would pass that way. Thus, the two appellants and Dalip Singh deliberately concealed themselves behind a grove of Khajoor trees and were armed with lathis. This conduct on the part of the three assailants clearly shows that they had the common intention of fatally assaulting Gurdip Singh. That alone can explain why they were armed with lathis and why they hid themselves behind the Khajoor trees. Besides, as soon as Gurdip Singh and Harnam Singh came near the place where the appellants lay concealed, all of them rushed on Gurdip Singh and chased him when he and Harnam Singh began to run away. This conduct also clearly indicates the presence of the common intention. After chasing the victims, three of them surrounded them and Dalip Singh gave the fatal blow on Gurdip Singh. In the act of surrounding Gurdip Singh, the two appellants undoubtedly played their part and thus helped Dalip Singh. After Gurdip Singh was fatally assaulted, the three assailants apprehended that the villagers would rush on the scene because an alarm had then been raised and so, they ran away together. On these facts, the conclusion appears to be inescapable that the appellants and Dalip Singh were actuated by the common intention to kill Gurdip Singh and the attack made by Dalip Singh on Gurdip Singh was in furtherance of the said common intention. Therefore, in our opinion, there is no difficulty whatever in coming to the conclusion that the appellants are guilty under Section 302/34 of the Indian Penal Code. We have no doubt that if the appellants had raised before the High Court the contention that Section 149 was inapplicable to their case, the High Penal Code. This modification in the order of the conviction does not require any change in the order of sentence at all. For the offence under Section 302, read with Section 34 of which we are convicting them, they would be sentenced to imprisonment for life. The conviction and sentence for the offence under Section 147 is, however, set aside and they are ordered to be acquitted in respect of that offence." Court would have without any hesitation altered their conviction from under Section 302/149 into one under Section 302, read with Section 34.
15. The result is, the conviction of the appellants is accordingly altered into one under Section 302, read with Section 34 of the Indian Penal Code. This modification in the order of the conviction does not require any change in the order of sentence at all. For the offence under Section 302, read with Section 34 of which we are convicting them, they would be sentenced to imprisonment for life. The conviction and sentence for the offence under Section 147 is, however, set aside and they are ordered to be acquitted in respect of that offence."
107. In a latest case before Hon'ble Supreme Court Virendra Vs. State of Haryana decided on 16.12.2019 by Hon'ble Mohan M. Shantanagendar and K.M. Joseph, J.J. (Manu/SC/1751/2019), it is held as under:-
"11. In order to invoke the principle of joint liability in the commission of a criminal act as laid down in Section 34, the prosecution should show that the criminal act in question was done by one of the accused persons in furtherance of the common intention of all. If this is shown, the liability for the offence may be imposed on any one of the persons in the same manner as if the act was done by him alone. It may be difficult to procure direct evidence to prove the intention of an individual, and in most cases it has to be inferred from the facts and relevant circumstances of the case. The common intention may be through a pre-arranged plan, or it may be generated just prior to the incident. Just as a combination of persons sharing the same common object is one of the features of an unlawful assembly, so is the existence of a combination of persons sharing the same common intention one of the features of Section 34."
108. Each case has to rest on its own facts. Whether the crime is committed in furtherance of common intention or not, well depend upon the material brought on record and the appreciation thereof in proper perspective. Hon'ble the Apex Court in Vijendra Singh & Ors. Vs. State of Uttar Pradesh AIR 2017 SC 860 : (2017) 11 SCC 129 has given reference of some of it's earliest decision which are :-
"22. In this regard, we may usefully refer to a passage from the authority in Pandurang v. State of Hyderabad [Pandurang v. State of Hyderabad, AIR 1955 SC 216 : 1955 Cri LJ 572] . The three-Judge Bench in the said case adverted to the applicability and scope of Section 34 IPC and in that context ruled that: (AIR p. 222, paras 32-33) "32. ... It requires a prearranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor [Mahbub Shah v. King Emperor, 1945 SCC OnLine PC 5 : (1944-45) 72 IA 148 : AIR 1945 PC 118] . Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely, the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a prearranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King Emperor [Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49 : (1924-25) 52 IA 40 : AIR 1925 PC 1] and Mahbub Shah v. King Emperor [Mahbub Shah v. King Emperor, 1945 SCC OnLine PC 5 : (1944-45) 72 IA 148 : AIR 1945 PC 118] . As their Lordships say in the latter case, ''the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice'.
33. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a prearranged plan however hastily formed and rudely conceived. But prearrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose."
23. And, again: (Pandurang case [Pandurang v. State of Hyderabad, AIR 1955 SC 216 : 1955 Cri LJ 572] , AIR p. 222, para 34) "34. ... But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, ''the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis'. (Sarkar's Evidence, 8th Edn., p. 30.)"
24. In this context, we may refer with profit to the statement of law as expounded by the Constitution Bench in Mohan Singh [Mohan Singh v. State of Punjab, AIR 1963 SC 174 : (1963) 1 Cri LJ 100] . In the said case, the Constitution Bench has held that Section 34 that deals with cases of constructive criminal liability provides that if a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for the act in the same manner as if it were done by him alone. It has been further observed that the essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. The common intention in question animates the accused persons and if the said common intention leads to commission of the criminal offence charged, each of the person sharing the common intention is constructively liable for the criminal act done by one of them. The larger Bench dealing with the concept of constructive criminal liability under Sections 149 and 34 IPC, expressed that just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34. In some ways the two sections are similar and in some cases they may overlap. The common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. Thereafter, the Court held: (Mohan Singh case [Mohan Singh v. State of Punjab, AIR 1963 SC 174 : (1963) 1 Cri LJ 100] , AIR p. 181, para 13) "13. ... It is now well settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. King Emperor [Mahbub Shah v. King Emperor, 1945 SCC OnLine PC 5 : (1944-45) 72 IA 148 : AIR 1945 PC 118] common intention within the meaning of Section 34 implies a prearranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the prearranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case."
25. In Harshadsingh Pahelvansingh Thakore [Harshadsingh Pahelvansingh Thakore v. State of Gujarat, (1976) 4 SCC 640 : 1977 SCC (Cri) 26] , a three-Judge Bench, while dealing with constructive liability under Section 34 IPC has ruled thus: (AIR p. 643, para 7) "7. ... Section 34 IPC fixing constructive liability conclusively silences such a refined plea of extrication. (See Amir Hussain v. State of U.P. [Amir Hussain v. State of U.P., (1975) 4 SCC 247 : 1975 SCC (Cri) 505] ; Maina Singh v. State of Rajasthan [Maina Singh v. State of Rajasthan, (1976) 2 SCC 827 : 1976 SCC (Cri) 332] .) Lord Sumner's classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse "They also serve who only stand and wait" a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code."
This extract is taken from Vijendra Singh v. State of U.P., (2017) 11 SCC 129 : (2017) 3 SCC (Cri) 881 : 2017 SCC OnLine SC 21 at page 144
26. In Lallan Rai v. State of Bihar [Lallan Rai v. State of Bihar, (2003) 1 SCC 268 : 2003 SCC (Cri) 301] the Court relying upon the principle laid down in Barendra Kumar Ghosh [Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49 : (1924-25) 52 IA 40 : AIR 1925 PC 1] has ruled that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular result.
This extract is taken from Vijendra Singh v. State of U.P., (2017) 11 SCC 129 : (2017) 3 SCC (Cri) 881 : 2017 SCC OnLine SC 21 at page 144
27. In Goudappa v. State of Karnataka [Goudappa v. State of Karnataka, (2013) 3 SCC 675 : (2013) 2 SCC (Cri) 8] the Court has reiterated the principle by opining that Section 34 IPC lays down a principle of joint liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention. The Court posed the question how to gather the common intention and answering the same held that the common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and from the nature of the injury caused by one or some of them and for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration.
This extract is taken from Vijendra Singh v. State of U.P., (2017) 11 SCC 129 : (2017) 3 SCC (Cri) 881 : 2017 SCC OnLine SC 21 at page 144
28. The aforesaid authorities make it absolutely clear that each case has to rest on its own facts. Whether the crime is committed in furtherance of common intention or not, will depend upon the material brought on record and the appreciation thereof in proper perspective. Facts of two cases cannot be regarded as similar. Common intention can be gathered from the circumstances that are brought on record by the prosecution. Common intention can be conceived immediately or at the time of offence. Thus, the applicability of Section 34 IPC is a question of fact and is to be ascertained from the evidence brought on record. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the fact of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts. (See Kripal v. State of U.P. [Kripal v. State of U.P., AIR 1954 SC 706 : 1954 Cri LJ 1757] .) In Bharwad Mepa Dana v. State of Bombay [Bharwad Mepa Dana v. State of Bombay, AIR 1960 SC 289 : 1960 Cri LJ 424] , it has been held that Section 34 IPC is intended to meet a case in which it may be difficult to distinguish the acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. The principle which the section embodies is participation in some action with the common intention of committing a crime; once such participation is established, Section 34 is at once attracted.
This extract is taken from Vijendra Singh v. State of U.P., (2017) 11 SCC 129 : (2017) 3 SCC (Cri) 881 : 2017 SCC OnLine SC 21 at page 145
29. In the case at hand, it is contended that there is no injury caused by lathi or ballam. Absence of any injury caused by a lathi cannot be the governing factor to rule out Section 34 IPC. It is manifest from the evidence that the appellant-accused had accompanied the other accused persons who were armed with gun and they themselves carried lathi and ballam respectively. The carrying of weapons, arrival at a particular place and at the same time, entering into the shed and murder of the deceased definitely attract the constructive liability as engrafted under Section 34 IPC."
109. Similarly in the case before us the argument raised by the learned counsel for A-1 (Baboo Ram) and A-2 (Ram Pal) that there is no injury sufficient to cause death of Ganga Ram by lathi and Gandasa, absence of any such injury cannot be the governing factor to rule out application of Section 34 IPC. It is manifest from the evidence that the said appellant accused armed with their respective weapon (lathi and Gandasa) had accompanied the two other accused armed with Gun and country made pistol. The carrying of weapon, sitting collectively at the place of hiding adjacent to the spot of incident waiting for the Ganga Ram (deceased) who was on the way back to home along with his brothers PW-1 and PW-6 intercepting Ganga Ram, hurling fire from the gun and pistol by two accused and when Ganga Ram fell collapsed on the ground beating him by other two accused from their lathi and Gandasa. As such they assured his death and then fled away from the spot seeing the people rushing to the spot on cries to rescue raised by the witnesses. All these proved facts circumstances and materials available on record attract the constructive liability enshrined in the provision of Section 34 of the IPC.
110. Therefore, the act of accused appellants collectively amounts culpable homicide amounting to murder under Section 300 IPC punishable under Section 302 IPC brings all of them under joint liability of the offence irrespective of their weapons and injury caused thereby to the deceased, Ganga Ram. We do not find error in finding of the learned Trial Judge in this regard. It is evincible from the evidences that all the accused were in prior concert and preplanned to kill Ganga Ram and to further this common intention they sat armed together in their place of hiding and in continuance of the same common intention they intercepted Ganga Ram when he reached near to them and ultimately after killing him fled away. We reached thus at the conclusion that accused appellants are jointly liable for the offence of murder of Ganga Ram punishable under Section 302 IPC with the aid of Section 34 IPC.
111. In view of the aforesaid analysis, we do not find any merit in all the three criminal appeal Nos. 371 of 2009 (Baboo Ram Vs. State of U.P.), 577 of 2009 (Ram Pal Vs. State of U.P.) and 655 of 2009 (Lala Ram Vs. State of U.P.) and the same is accordingly liable to be dismissed.
Order
(i) The criminal appeal nos. 371/2009 preferred by accused-appellant Babu Ram, 377/2009 preferred by accused-appellant Ram Pal and 655/2009 preferred by Lala Ram are arising out of judgment and order of sentence passed in Sessions Trial No.431 of 1985, Crime No.48/1985, Police Station Behta Gokul, District Hardoi under Section 302/34 IPC are dismissed. The judgment and order of sentence of life imprisonment along with sentence of fine imposed on each one and consequent upon the failure to deposit the same further imprisonment of six months are confirmed.
(ii) The accused appellant Babu Ram, Ram Pal and Lala Ram are on bail. Their bail bonds and surety bonds are hereby cancelled, the sureties are therefore discharged.
(iii) The accused appellants Ram Pal, Babu Ram and Lala Ram are ordered to surrender before the court of Chief Judicial Magistrate, District Judgeship of Hardoi within 15 days from the date of order. In case of their failure to surrender within aforesaid period, the Chief Judicial Magistrate, Hardoi in order to ensure the compliance shall adopt all coercive measures in accordance with law and send them to jail for undergoing sentence of life imprisonment.
(iv) In case of failure to comply with the sentence of fine the Chief Judicial Magistrate is to ensure the recovery in accordance with law.
(v) Copy of the judgment be sent to Sessions Judge, Hardoi to ensure compliance under intimation to this Court.
(vi) The Office is directed to provide the copy of the judgment separately to all the three appellant promptly.
(vii) The office is further directed to enter the judgment in compliance register maintained for the purpose on the Court.
Order Date:- 13.05.2020 Gaurav [Vikas Kunvar Srivastav, J.] [Ritu Raj Awasthi, J.]