Rajasthan High Court - Jaipur
Chandra Shekhar Alias Shekhar & Ors vs State on 18 August, 2011
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN D.B. Criminal Appeal No.1206/2002 Chandra Shekhar @ Shekhar and Others Vs. State of Rajasthan Date of Order ::: 18.08.2011 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Mr. Justice S.S. Kothari Shri A.K. Gupta with Shri Vijayant Nirwan, and Shri S.S. Hora with Shri T.C. Sharma, counsel for appellant Shri Sanjeev Kumar Mahala, Public Prosecutor
Shri Suresh Sahni with Shri R.M. Sharma, counsel for complainant #### //Reportable// Per Hon'ble Mr. Justice Mohammad Rafiq:-
This appeal has been filed by nine accused-appellants against judgment and order dated 03.09.2002 of learned Additional Sessions Judge (Fast Track), Jhunjhunu, whereby they were convicted for offence under Section 302/149 of the IPC and sentenced to undergo life imprisonment with fine of Rs.2000/-, in default of payment whereof, they were further required to undergo two months simple imprisonment and were also convicted for offence under Section 323/149 of the IPC and sentenced to undergo rigorous imprisonment of one year and fine of Rs.500/-, in default of payment thereof, they were required to further undergo simple imprisonment of one month. Both the sentences were ordered to run concurrently.
Facts giving rise to this appeal are that one Ginni Devi submitted a written report to Station House Officer, Police Station, Udaipurwati, on 21.06.1996 stating therein that at 8.00 AM on that day, she and her son Ravindra @ Pappu, grandson Ajay Kumar @ Tinu and daughter Santosh were taking tea in the courtyard of their house. Subhash son of Jagdish Mali, the neighbour, came outside their house and started abusing her son and dared him to come out; whereupon Ravindra went out and with him also went her grandson Ajay. Ravindra asked him to stop abusing but he did not pay any heed to his request. Suddenly Shekhar, Prakash S/o Jagdish, Jagdish S/o Narain Saini, Sunita W/o Subhash, Hanuman and his two sons namely Nancha and Giga, and Kishore S/o Jhabar, also joined Subhash. They were all armed with lathis, pharsis and sword. They dragged Ravindra and Ajay to their land and started beating them. On hearing hue and cry, Santosh, daughter of informant, and her grandson Kanhaiya came rushing there. Subhash was having pharsi in his hand, with which he inflicted blow on the right leg of Ravindra. Shekhar caused injury on the hand of Ravindra by sword. Subhash also inflicted an injury on the head of Ravindra. Prakash inflicted a lathi blow on his body and also on his head. When her grandson Ajay tried to intervene, Shekhar inflicted 2-3 repeated blows on his head by sword. Thereafter, all accused persons left Ravindra and started beating Ajay by pharsis, lathis and sword. Subhash inflicted pharsi blow on the head of Ajay, Jagdish inflicted a lathi blow and then followed others. At this stage, Sua W/o Tara Chand Soni came to intervene. She fell upon Ajay in order to save him. When informant tried to intervene to save Ajay, she also received few injuries. Several persons reached on the scene of occurrence. These persons left Ajay taking him to be dead. It was further stated by the informant that she along-with her daughter Santosh with help of Shankar Lal and Om Prakash took both Ravindra and Ajay to hospital at Nawalgarh. Ravindra died soon thereafter. Condition of the Ajay was also critical. He was therefore referred to hospital at Jaipur. Her daughter and another grandson had accompanied her. The accused had old enmity with the family of informant and for that reason, they had murdered her son Ravindra and that condition of Ajay was very critical and even he could also die. It may be noted that Ajay, grandson of informant Ginni Devi, also succumbed to injuries at Jaipur on 24.06.1996.
Police on receipt of the written report, chalked out a regular FIR for offence under Sections 147, 148, 149, 447, 307, 302 and 323 of the IPC and started investigation.
All the accused were arrested during the course of investigation. Charges against them were framed for offence under Sections 148, 302/149 and 323/149 of the IPC, which they denied and claimed to be tried. The prosecution, in support of its case, examined as many as 23 witnesses i.e. PW-1 to PW-23 and produced total 86 documents and got the same exhibited as Exhibit P-1 to P-86 whereas defence examined only one witness Smt. Sua Devi as DW-1 and produced copies of statements recorded under Section 161 Cr.P.C., of Phool Chand, Ginni Devi, Kanhaiyalal, Ganesh, Shankar Lal, Vijay Kumar and Santosh, as Exhibits D-1 to D-6.
Learned trial court, after hearing both the parties, convicted and sentenced the accused in the manner indicated above.
We have heard Shri A.K. Gupta and Shri S.S. Hora, learned counsel for appellants, Shri Sanjeev Kumar Mahala, learned Public prosecutor and Shri Suresh Sahni, learned counsel for complainant.
Shri A.K. Gupta, learned counsel for appellants, has argued that genesis of incident has been completely suppressed by the prosecution. Although, investigation started at an earlier point of time, but the first information report was registered at a very late stage. Learned counsel in this connection referred to statement of informant PW-3 Ginni Devi who stated that she gave written report to the police at the time when the police came to her house. In earlier part of her statement, she stated that she along with her grandson Vijay, daughter Santosh and other persons, namely, Ganesh, Moolchand Nai and Shankar Lal Pareek, took Ravindra and Ajay in a jeep to government hospital at Nawalgarh, where Ravindra was reported dead and Ajay, because of his critical condition, was referred to government hospital at Jaipur, meaning thereby that informant came back to her house after a very long time. Lot of time was consumed by the informant in transportation of the injured to hospital at Nawalgarh because the incident had taken place at Udaipurwati, wherefrom she must have come back to Udairwati. Ultimately both Ravindra and Ajay died in hospital at Nawalgarh and Jaipur. It is further stated by Ginni Devi in her statement that the written report was given at 2-2 PM. Dinesh, who is related to her son, had written the report prepared. Report was given to the police which came to their house. In this connection learned counsel also referred to that part of cross-examination of her statement where this witness Ginni Devi stated that she left for Nawalgarh in between 10-11 AM and till that time they did not submit any report. In fact, police came to them after they reached the hospital but she did not submit any report at Nawalgarh. The FIR (Exhibit P-76) has thus been lodged at 2.30 PM. This shows that even police had reached at the place of occurrence and also at the hospital much before the lodgment of the FIR. PW-5 Ganesh Singh in his statement stated that the Assistant Sub Inspector came to the hospital at about 1.00 Pm. PW-6 Shanker Lal Pareek has stated that Ginni Devi went to Jaipur with Ajay. However, Ginni Devi in her statement has denied this fact. PW-13 Pabudan Singh has stated that police for the first time came to hospital at Nawalgarh. He also stated that he did not see informant Ginni Devi in hospital at Nawalgarh. This witness stated that Superintendent of Police and Deputy Superintendent of Police came to hospital; while S.P. stayed at the government hospital, Nawalgarh, the Dy. S.P. went to Udaipurwati for site inspection. With the help of this statement, learned counsel argued that investigation had already started by the police and also the site was inspected much before the FIR was registered. Learned counsel Shri A.K. Gupta also referred to statement of PW-18 Dr. Devendra Singh Choudhary and argued that this witness has stated that request for postmortem was received from the police Udaipurwati at 2.30 PM itself. The FIR therefore cannot be said to have been registered at the first point of time and it is hit by Section 162 of the Cr.P.C. Learned counsel in support of this argument relied on judgments of the Supreme Court in Thanedar Singh Vs. State of Madhya Pradesh (2002) 1 SCC 487, Sahib Singh v. State of Haryana (1997) 7 SCC 231, Meharaj Singh (L/Nk.) Vs. State of U.P. - (1994) 5 SCC 188.
Shri A.K. Gupta, learned counsel for the appellant, further argued that while in parcha bayan and even in statements of various prosecution witnesses recorded under Section 161 of the Cr.P.C. there was no allegation of use of capsicum powder, but this story for the first time was introduced by prosecution witnesses in the court alleging that accused Sunita Devi threw capsicum powder in the eyes of deceased and reference was specifically made to statement of PW-3 Ginni Devi, who stated that Sunita threw capsicum powder in the eyes of Ravindra and then they inflicted injury to his eye by use of lathi. This line has been reiterated by other witnesses like PW-1 Moolchand, PW-8 Vijay Kumar, PW-16 Santosh Sharma. Learned counsel referred to the 161 Cr.P.C. statements of all these witnesses, which have been filed as Exhibit D-1 to D-7 and argued that in none of the statements of these prosecution witnesses they made any allegation against accused-appellant Sunita that she threw capsicum powder into eyes of the deceased to which they were all confronted in their court statement. This subsequent development was made only because some capsicum powder was found spread at the place of occurrence and a mention regarding thereto was made in the site plan. The complainant party in order to take advantage of this fact has made false implication of Sunita W/o Subhash on this specific overt act. PW-3 Ginni Devi in her statement under Section 161 Cr.P.C. did not utter a single word about allegation that accused Sunita threw capsicum powder into eyes of the deceased.
In this connection learned counsel Shri A.K. Gupta also referred to statement of PW-20 Phool Mohammad, who stated that when he reached at government hospital Nawalgarh, A.S.I. Iqbal Khan of police station Udaipurwati met him there and one of the injured had already died. This witness stated that the inquest report was prepared even before the site of the incident was inspected. When asked, he stated that he did not mention the time in the inquest report. He stated that though he made a mention thereabout in the case diary at about 1.30 PM on 30.06.1996 at serial no.5 but he could not specifically say what was the exact time. He also stated that no time was mentioned in the case-diary as to when site plan was prepared, seizure of belongings of deceased was made, inquest report was prepared and request was made to the medical officer for postmortem by the SHO. None of these documents contain any time. Exhibit P-54 is injury report of Ajay, which was prepared at Jaipur on 30.06.1996 in which also, although reference of police station Udaipurwati was given, but no time was mentioned.
Shri A.K. Gupta, learned counsel for accused-appellants, argued that all afore-noted facts go to show that much of the investigation had taken place even prior to lodgment of the FIR. The law insists that F.I.R. should be registered at earliest point of time so that possibility of false implication is ruled out, which has not been done in the present case. It was argued that even though the FIR was shown to be registered at 2.30 pm on 21.06.2002 but it was sent to the magistrate on the next day i.e. 22.06.2002 at 3.40 pm, whereas at that time the court used to function in the morning session. Provisions of Section 157 of the Cr.P.C. were thus violated. All these circumstances go to explain why entire family has been implicated instead of the persons, who must have actually participated in the incident. Apart from Jagdish who himself is an accused, his three sons - Chandra Shekhar, Chandra Prakash and Subhash have been made accused. Similarly Hanuman, brother of Jagdish, has been made accused with his two sons, namely, Radheyshyam @ Nanoram and Giga @ Ramavtar. Hanuman was aged 71 years at the relevant time. He was impleaded just because complainant party wanted to involve every member of the family.
Shri A.K. Gupta, learned counsel for appellants, has argued that Sua Devi, who was the only independent witness mentioned in the FIR, was not produced in evidence by the prosecution. It was Sua Devi who had come to save deceased Ajay. PW-3 Smt. Ginni Devi in her parcha bayan/FIR has stated that Sua Dvi intervened and, in order to save deceased Ajay, she fell upon him, but prosecution did not produce her in evidence as a witness, therefore the defence had to produce Smt. Sua Devi as DW-1. Shri A.K. Gupta, learned counsel, referred to statement of Smt. Sua Devi recorded under Section 161 of the Cr.P.C. and argued that though her statement cannot be read in evidence but the prosecution also now cannot take advantage thereof because they did not confront Sua Devi with that statement in cross-examination. Smt. Sua Devi was deliberately not produced in evidence as prosecution witness because the prosecution knew that she would have given independent version. Learned counsel submitted that PW-20 Phool Mohammad, investigating officer, stated that he had taken statement of Sua Devi and another lady Geeta, but they were not produced by prosecution in support of its case. In her court statement, Sua Devi stated that she only knew Jagdish and Hanuman and not their sons because their sons were not residing at Udaipurwati and were staying outside in some other big city.
Shri A.K. Gupta, learned counsel for accused-appellants, argued that PW-3 Ginni Devi, in her statement, has mentioned that, apart from deceased Ravindra and Ajay, two other persons including her daughter Santosh, were present, who were taking tea in the courtyard of their house in the morning on that fateful day. In her court statement, however, this version has been substantially improved by PW-3 Ginni Devi when she stated that apart from these persons, her two other grandsons, namely, Vijay and Kanu @ Kanhaiya were also taking tea with them. This has been purposely done to implant two more eye witnesses. PW-1 Mool Chand has not been named in the FIR and, therefore, he cannot be accepted as an eye witness. His statement was recorded nine days after the incident i.e. on 30.06.1996, whereas PW-8 Vijay Kumar also cannot be accepted as an eye witness because his name was not mentioned in the parcha bayan and his statement under Section 161 of the Cr.P.C. was also recorded nine days after the incident on 30.06.1996. Shri A.K. Gupta, learned counsel for appellants, further argued that statement of PW-16 Santosh under Section 161 of the Cr.P.C. was recorded by the police much belatedly on 04.07.1996 i.e. 16 days after the date of incident. PW-4 Kanhaiyalal, on his admission, is shown to have reached the place of incident very late and if he came in time, why did he not try to save deceased Ravindra Kumar and Ajay. PW-3 Ginni Devi is also not speaking truth that she received injuries in the scuffle. Referring to statement of PW-10 Dr. Girish Chandra Gupta, learned counsel argued that this witness stated that Ginni Devi received two injuries, and both of which were bruises on her right thigh, which were simple in nature and duration of the injuries, according to him, was 24 to 48 hours. She was medically examined on 24.06.1996, whereas the incident took place on 21.06.1996, therefore these injuries could not have possibly been received by her in the incident. It was argued that Ginni Devi, in her statement, has mentioned that at the time of incident, wives of Ravindra Kumar and Ramesh were present in the house but none of them has been examined in evidence as prosecution witness. It is argued that false/over implication is evident from the fact that the prosecution witnesses in their statements have alleged that Jagdish and Shekhar inflicted injuries on the person of deceased by use of sharp edged weapons such as from pharsi and sward etc., but none of the deceased has received injuries by sharp edged weapon.
PW-20 Phool Mohammad has stated that he made enquiry from various neighbours of the complainant as well as accused party and he even mentioned names of some of them but he did not record their statements under Section 161 of the Cr.P.C. Learned counsel argued that there was deliberate effort on the part of the prosecution not to allow the truth to come to the light. Had anyone of independent witnesses was examined, he would have given the correct version of story. Learned counsel, in support of his arguments, relied on judgment of this Court in Satpal Vs. State of Rajasthan, 1992 Cr.L.R. (Raj.) 76, and that of the Supreme Court in Arulvelu v. State, (2009) 10 SCC 206. In support of the argument that the testimony of witnesses to the extent of improvements made upon the original version disclosed to the police in statements under Section 161 of the Cr.P.C., should be discarded and such witnesses have to be treated as untrustworthy, the learned counsel cited judgments of the Supreme Court in Santa Singh vs State Of Punjab AIR 1956 SC 526, Mohd Iqbal M. Shaikh and Ors. V. State of Maharashtra (1998) 4 SCC 494, Jagga Singh v. State of Punjab AIR 1995 SC 135, Baital Singh and Another v. State of U.P. - AIR 1990 SC 1982.
Learned counsel cited a judgment of the Supreme Court in Ram Kumar Pandey Vs. State of Madhya Pradesh - (1975) 3 SCC 815, and argued that the Supreme Court in that case declined to give any credence to version of three eye witnesses as they were not mentioned in the F.I.R. Learned counsel also argued that, except two accused, namely, Hanuman and Sunita, who were granted bail on the ground of old age and being woman, all accused have remained behind the bars for last more than nine years.
Shri A.K. Gupta, learned counsel for appellants, further argued that when all the family members have embroiled in a manner like this, the court has to minutely scrutinize the evidence on record so as to discover the truth so that innocent persons are not convicted even when they are made accused with the aid of Section 149 of the IPC. Even though Section 149 IPC fastens vicarious liability on all members of unlawful assembly for the act of any one of them but the prosecution has to prove by evidence that every member of unlawful assembly was aware of ultimate common object in furtherance of which they acted; that assembly may be lawful in the beginning but it may turn unlawful at the spot, which is not offence. For that purpose therefore the individual overact of the accused and their conduct immediately before, at the time of incident and after the incident has to be viewed. The court has also to find out as to what weapons the accused were having at the relevant time. All these factors may have to be looked into to determine culpability of accused.
Shri A.K. Gupta, learned counsel for appellants, referring to report of F.S.L. (Exhibit P-86), argued that allegation that accused-appellant Sunita threw capsicum powder into the eyes of deceased Ajay, has been disproved by the F.S.L. Report, which has opined that capsicum powder was not detected in Exhibit-16, which was the swab taken from the eyes of deceased Ajay.
Shri A.K. Gupta, learned counsel for the accused-appellants, argued that even if entire prosecution evidence is taken into consideration including statements of witnesses PW-3 Ginni Devi and PW-16 Santosh, who were named in the FIR, and, other two eye witnesses, who have been subsequently introduced, namely, PW-4 Kanhaiyalal and PW-8 Vijay Kumar, it would be clear that they have mentioned about specific role of accused-appellants Jagdish, Subhash, Chandra Shekhar @ Shekhar and Chandra Prakash @ Prakash whereas other accused have been merely named on omnibus allegation that they all gave beating to deceased thereafter. This court may therefore segregate their case from first four accused and may not treat them as member of unlawful assembly because their overt act does not prove because they have not been assigned any specific overt act. It is not proved that they were member of unlawful assembly and also shared the alleged common object of causing death of two persons. In support of the argument that the court has to look for the specific overt act of each accused to determine whether or not he was member of unlawful assembly and shared common object in furtherance of which such assembly was working, learned counsel for the appellants has cited various judgments of the Supreme Court in Kuldip Yadav and Others Versus State of Bihar (2011) 5 SCC 324, Shivjee Singh and others Vs. State of Bihar (2008) 11 SCC 631, and State of Karnataka Vs. Mallu Kallappa Patil and Others 1994 Supp (3) SCC 352.
Shri A.K. Gupta, learned counsel for accused-appellants argued that prosecution has not given any explanation for injuries sustained by accused. He argued that most of injuries that are sustained by deceased Ravindra Kumar @ Pappu (injury-report Exhibit P-52) and deceased Ajay (injury-report Exhibit P-54) are simple in nature and most of them were received by them due to their alleged dragging on the ground as has been given out by the prosecution witnesses. It cannot be concluded merely by proving injuries that all the accused had actively participated in the incident particularly when most of the injuries are superficial in nature and were received by the deceased either on the hands or legs.
Shri S.S. Hora, learned counsel for the appellant Nand Kishore @ Kishore, has argued that though in the FIR the allegation is against Nand Kishore whereas in the court statement PW-3 Ginni Devi, PW-16 Santosh, PW-4 Kanhaiyalal and PW-8 Vijay Kumar have wrongly mentioned name of Nand Kishore. Appellant Nand Kishore was not at all present at the scene of occurrence. While other accused received injuries but Nand Kishore did not even receive any injury, which proves the fact that he did not participate in the incident. Learned counsel submitted that recovery of lathi vide Exhibit P-12 at his instance, could not be believed because arrest of the appellant Nand Kishore was made on 22.06.1996 and it is on 26.06.1996 at 9.10 AM he gave information under Section 27 of the Evidence Act and pursuant thereto the recovery was made on 27.06.1996; this recovery was made from tin chhappar in the house of the complainant party whereas the investigating officer prepared the site plan on the same day i.e. 21.06.1996 vide Exhibit P-5. Recovery was shown to have been made at the instance of the accused Sunita on that very day vide Exhibit P-4. It was tin chhappar from where the lathi was shown to have been recovered at the instance of accused Sunita, therefore such a recovery cannot be believed because earlier also the police prepared site plan after making inspection of the same premises which was open place of tin chhappar. Reference was made to Exhibit P-11, Exhibit P-12 and Exhibit P-13. One of the witnesses of recovery, has not supported the recovery whereas another witness of recovery has not been examined. Learned counsel therefore argued that there are glaring discrepancies and contradictions in statements of various prosecution witnesses. The order of conviction cannot be recorded against the appellant on the strength of such a weak evidence. It is therefore prayed that accused-appellant Nand Kishore deserves to be extended benefit of doubt because charge against him has not been proved beyond reasonable doubt.
Shri S.S. Hora, learned counsel for accused Nand Kishore, in support of his arguments, relied on following judgments:- Akbar Sheikh v. State of W.B, (2009) 7 SCC 415, Pandurang Chandrakant Mhatre v. State of Maharashtra, (2009) 10 SCC 773, Ashish Batham vs. State of M.P, (2002) 7 SCC 317, to argue that when the recovery witness has not fully supported the recovery, no credence can be attached to such a recovery and recovery becomes doubtful.
Shri Suresh Sahni, learned counsel for complainant, has argued that all the eye witnesses have mentioned that accused-appellant Sunita threw capsicum powder in the eyes of the deceased. learned counsel made reference to the statements of PW-3 Smt. Ginni Devi, PW-5 Ganesh Singh, PW-8 Vijay Kumar, PW-9 Om Prakash and PW-16 Smt. Santosh, and argued that there is a specific reference of capsicum powder in the site plan and the investigating officer has indicated that capsicum powder was spread over the distance of six foot-steps. PW-1 Mool Chand was native of that village. It is denied that there was any confusion about identity of Kishori Lal. In fact Ginni Devi in her parcha bayan specifically mentioned name of Kishori Lal with his father's name Jhabar Mal as accused. She has made an allegation against Mst. Sunita of throwing capsicum powder. It is argued that DW-1 in her statement has clearly stated that incident of 'maar-peet' with Ravindra and Ajay had taken place just in front of the house of the accused. PW-16 Santosh Sharma was a witness of site plan and recovery memo. Learned counsel referred to statements of PW-14 Dr. Pooran Chandra Vyas and PW-18 Dr. Devendra Singh Choudhary.
Shri Suresh Sahni, learned counsel for complainant, in support of his argument cited judgment of the Supreme Court in Karenel Singh Vs. State of M.P., (1995) 5 SCC 518, and argued that delay in FIR is not fatal to the prosecution story. Learned counsel for this purpose also relied on judgment of the Supreme Court in (1975) 4 SCC 69 and Venkata Ramana vs. Public Prosecutor, High Court of Andhra Pradesh - (2008) 5 SCC 368 to argue that FIR need not be encyclopedia of every thing. FIR is not a substantive piece of evidence. It cannot be utilized to contradict testimony of other witnesses. What is required is that FIR should contain essential details of incident. Each and every detail need not be stated in the FIR.
Shri Suresh Sahni, learned counsel for complainant, argued that PW-3 Ginni Devi is a rustic lady and the court has appreciated the situation that she was passing through at the time of lodging of the FIR. She had just lost her son and grandson was in critical condition. Even then, the FIR is fairly detailed one. It cannot be expected of her to give any further detail. It is denied that allegation of throwing capsicum powder has been added only because capsicum powder was found at the place of occurrence. The capsicum powder has found mention in the postmortem report of Ajay. However with the lapse of time, the sample of swab taken from eyes of deceased for detection of capsicum powder, was not found sufficient.
Learned counsel for the complainant cited judgment of the Supreme Court in Laxman Kalu Nikalje v. The State of Maharashtra AIR 1968 SC 1390 and argued that according to that judgment, Public Prosecutor cannot be permitted to cross-examine the defence witness, who was originally proposed to be examined as witness of the prosecution.
Shri Sanjeev Kumar Mahla, learned Public prosecutor has argued that all the offences against accused-appellants were fully proved. It cannot be said that there was no unlawful assembly and they did not form the unlawful assembly. Two deaths of Ravindra and Ajay were result of unlawful assembly in furtherance of common object of which the accused-appellants acted. They were aggressors. They reached the house of the informant and dragged Ravindra and Ajay to their side of land and subjected them to merciless beating. Learned Public Prosecutor submitted that each of the accused would be vicariously held responsible for all and every one of them because common object of that unlawful assembly was known to all the accused that they had to kill the members of the complainant party. Learned Public Prosecutor argued that because of minor discrepancies and contradictions, the statements of prosecution witnesses cannot be disbelieved. It is therefore prayed that the appeal be dismissed and conviction and sentence awarded to the accused-appellants be maintained.
We have bestowed our anxious consideration to the rival submissions and perused the material on record.
Examination of the record reveals that two persons, namely, Ravindra Kumar @ Pappu and Ajay, died in the incident. Injury report (Exhibit P-52) of deceased Ravindra Kumar @ Pappu shows that he received as many as 22 injuries, many of which were bruises, contusions and abrasions. But cause of death in his postmortem report (Exhibit P-53) was opined to be due to extensive injuries on the brain and its meninges these injuries, which were sufficient to cause death. PW-18 Dr. Devendra Singh Choudhary posted in the government hospital, Nawalgarh, who conducted postmortem on the body of deceased Ravindra, has proved both, the injury report and postmortem report. Deceased Ajay is shown to have received as many as four injuries. His injury-report is Exhibit P-54. However, in his postmortem report (Exhibit P-46) the cause of death was opined to be coma as a result of injuries to skull and brain, which were sufficient to cause death and the injuries were opined to be antemortem in nature. PW-14 Dr. Pooran Chandra Vyas has proved this postmortem report.
Contention of learned counsel for appellants is that substantial improvements have been made by prosecution witnesses in their statements inasmuch as PW-3 Ginni Devi while giving parcha bayan mentioned that she along-with her deceased son Ravindra and deceased grandson Ajay Kumar and daughter Santosh was taking tea in the courtyard of their house whereas in her statement in the court, she has added two more names i.e. her grandsons Vijay and Kannu @ Kanhaiya and therefore they should not be believed. But then, this has to be analyzed in the light of the fact as to whether these two have given any version different than that was given by Ginni Devi in her parcha bayan (Exhibit P-14). She in her parcha bayan had stated that, it was Subhash who had come to their house and started abusing Ravindra and dared him to come out of the house. Ravindra thereupon went outside and, behind him also went Ajay. Ravindra asked him to stop abusing but Subhash did not stop and kept on abusing. Suddenly accused-appellants Chandra Shekhar @ Shekhar, Chandra Prakash @ Prakash, Jagdish, Santosh, Hanuman, Nanga, Giga and Kishore, all of them armed with lathis, pharsi, swords etc. came there and dragged Ravindra and Ajay to their land, and started giving them beating. Ginni Devi has further stated in her parcha bayan that her daughter Santosh and grandson Kanhaiya rushed there to save them. This indicates that Kanhaiya was mentioned in parcha bayan itself. Therein she further stated that subsequently Subhash has inflicted the pharsi blow on the right leg of Ravindra. Shekhar inflicted a blow of sword on his head. Then Subhash inflicted a blow on his head. Prakash, who is also known as Chandra Prakash, inflicted a lathi blow on his body and head. In between, when her grandson Ajay intervened to Ravindra, then Shekhar inflicted 2-3 sword blows on his head. Then all these persons turned to Ajay and subjected him to beating. Subhash inflicted a blow of pharsi on the head of Ajay. Jagdish inflicted another lathi blow followed by other persons, who inflicted lathi blows on his person. In her court statement, Ginni Devi (PW-3) has substantially repeated the same version showing that Subhash had come outside their house and started abusing Ravindra. Thereupon Ravindra and Ajay both went outside the house and suddenly other accused, who were all armed as stated above, came there and started beating Ravindra and Ajay. Shekhar was having a sword and others were having lathis fitted with steel blades. Jagdish inflicted another lathi blow on the head of Ravindra and inflicted a lathi blow on the temple of Ajay. Subhash also inflicted a lathi blow on Ravindra. Sunita then threw capsicum powder in the eyes of Ravindra and punctured his eyes by lathi blow. This is that first line where it can be said that she has improved upon her version in parcha bayan about the role assigned to Sunita of throwing capsicum powder in the eyes of Ravindra and puncturing his eye. PW-3 Ginni Devi then stated that she was not aware where from Sunita got the capsicum powder. She states that Moolchand Nai was also pleading crying from some distance to spare them. Jagdish kept on beating Ravindra until his tongue came out of his mouth. When she (Ginni Devi) fell down on Ravindra, Jagdish pushed her aside and inflicted a lathi blow on her knees and then they went away.
Another eye witnesses PW-4 Kanhaiyalal has also given the substantially same version that it was Subhash who had come to the gate of their house and started abusing Ravindra. When his uncle Ravindra and brother Ajay went outside, they also followed them. So soon Ravindra and Ajay went outside the gate, other accused, namely, Hanuman, Ramavtar, Radheyshyam, Jagdish, Chandra Shekhar and Chandra Prakash, Kishore, Sunita came rushing. Sunita had thrown capsicum powder into the eyes of Ravindra and Ajay then rest of the accused started beating Ravindra and Ajay. Shekhar was having a sword and others were armed with lathis. Shekhar inflicted the blow of sword on the head of Ajay. Other accused inflicted lathi blows. They also were beating Ravindra. They kept beating them till tongue of Ravindra and Ajay came out of their mouths. Her grandmother Ginni Devi, brother Vijay and aunt Santosh were praying to save them. Moolchand Nai was also standing at a distance and was crying and appealing to the accused to spare them. Yet another eye witness is PW-8 Vijay Kumar, who has also given the similar statement stating that Subhash had come outside their house and started abusing Ravindra. He dared Ravindra to come out. When Ravindra and Ajay went outside, all other accused, namely, Hanuman, Ramavtar, Radheyshyam, Jagdish, Chandra Shekhar, Chandra Prakash, Kishore, Sunita started beating them. On hearing hue and cry, they went outside. Subhash had sword and lathis with a blade fitted on that. Shekhar had an old sword. All other accused had lathis in their hands. Subhash inflicted a lathi blow on the head of Ravindra and then inflicted another blow on his right leg with pharsi. Shekhar inflicted a sword blow on the head of Ajay when Ajay and Ravindra fell down all of them. They dragged them to their side of the land and beat them with lathis, swords and pharsis. Vijay Kumar (PW-8) further stated that when he wanted to intervene, he was also threatened. Accused left taking the Ravindra and Ajay to be dead.
PW-16 Smt. Santosh, who is also an eye witness, has stated that she, her mother Ginni Devi and brother Ravindra and nephews Ajay, Vijay and Kanhaiya were taking tea in the court yard of their house. Accused Subhash came at the main gate of their house and started abusing Ravindra. When Ravindra went outside, accused suddenly attacked him. Jagdish inflicted a lathi blow on the head of Ravindra. Sunita threw capsicum powder into his eyes, as a result of which Ravindra fell down. Then accused dragged him to their land and gave him beating. When Ajay followed him, Sunita threw capsicum powder also into his eyes. Chandra Shekhar inflicted a sword blow on the head of Ajay from behind. Subhash inflicted a pharsi blow on the person of his body. Subhash then inflicted another pharsi blow on the body of Ravindra. Chandra Shekhar inflicted a sword blow on his neck. They kept on beating them with the lathis. Smt. Santosh has stated that she and her mother Ginni Devi, Kanhaiya and Vijay kept crying that somebody should come to save them. Moolchand Nai was there but he was also at some distance and did not come closure to them.
Contention that deceased Ravindra and Ajay, who are alleged to have been dragged by the accused to their land must have received injuries in the course of such dragging, cannot be accepted firstly because what has come in evidence that it was a kachcha land and not a pucca land and location of injuries does not justify such a view.
Thus it is evident that these eye witnesses have made similar statements and only improvement from the original version given in the parcha bayan is about the role assigned to Sunita that she threw capsicum powder into the eyes of deceased Ravindra and Ajay. Although Sunita is named in the parcha bayan. But being wife of Subhash, she appears to have been assigned this specific overt act because when site plan was prepared, capsicum powder was found spread over a part of the place of incident. Since it is Subhash who had first of all initiated this occurrence by coming to the house of the deceased and started abusing him and therefore naming her subsequently and assigning her use of capsicum powder, shall have to be scrupulously scrutinized by the court. No doubt, some of the witnesses such as PW-2 Megh Raj, PW-5 Ganesh Singh, PW-6 Shankar Lal Pareek and also investigating officer PW-20 Phool Mohammad have stated that capsicum powder was found lying at the place of occurrence, and the fact about availability of capsicum powder has been mentioned even in the site plan of the place of incident (Exhibit P-1), at place 'ga' to 'gha' till about six footsteps but that by itself may not be sufficient to connect accused Sunita with crime. Whether or not it was thrown into the eyes of deceased Ravindra and Ajay by Sunita has not been proved in evidence, has to be examined. As far as Ravindra is concerned, his postmortem report does not indicate any such sign. However in the postmortem report of Ajay (Exhibit-46), it is indicated that one sealed vial containing one swab from each eye for detection of capsicum powder, was taken. The FSL report is on record as Exhibit P-86, where the capsicum powder lifted from the site of incident was described as Exhibit 1 and sample from the eyes of the deceased was described as Exhibit 2. Result of examination was that capsicum powder was not detected in exhibit no.2 (from packet marked 'X') and capsicum powder was detected in exhibit no.1 (from packet marked 'D'), which means that two swabs which were taken from the eyes of deceased Ajay did not have the capsicum powder. It could not thus be established as a question of fact from two swabs that were taken from the eyes of Ajay, that capsicum powder was thrown into his eyes.
The Supreme Court in Mohd Iqbal M. Shaikh's case, supra, while considering the conduct of prosecution witnesses held that when a witness in his former statement made to the police had omitted to state several aspects and those omissions have been confronted to the witness to which he denied and the investigating officer also had brought out as to what the witness stated in his examination under Section 161 Cr.P.C., those material omissions amount to contradiction and those material contradiction makes the witness untrustworthy. In Jagga Singh's case, supra, similar observations were made by the Supreme Court in respect of the prosecution witnesses. It was held that such omission has to be regarded as material and the same would greatly water down the statement made by such witness before the court. Similar observations were also made by the Supreme Court in Baital Singh's case, supra.
Thus, it is evident that accused-appellant Sunita was not assigned any such specific role in parcha bayan by PW-3 Ginni Devi or any other eye witness in their statements recorded under Section 161 Cr.P.C. to which they were confronted in their court statements. This is a serious improvement upon her original version, therefore to that extent her testimony becomes unreliable and benefit of which doubt has to be extended to accused-appellant Sunita.
Contention that investigation would be hit by Section 162 of the Cr.P.C. because the site plan was prepared, requisition for postmortem was given, police had reached the site of incident, even the S.P. and Dy. S.P. reached the hospital, even before the FIR was registered, cannot be of much significance because the S.P. Or the Dy. S.P., as the police officer have also the responsibility of maintaining law and order situation. Their reaching the hospital immediately merely explain that they wanted to take control of the situation and did not want the situation to get worsened because in the district in which they are posted two deaths had taken place. The priority of the complainant could not have been to first lodge the FIR and for obvious reason their first priority would be to rush the injured to hospital so that, if possible, their lives could be saved. In this connection, we may refer to the statement of PW-5 Ganesh Singh who reached the place of incident immediately after the occurrence and stated that deceased Ravindra and Ajay were in very critical condition. The mother and sister were crying. Shankar Lal Purohit and Moolchand Nai were also present there. Injured were rushed to the hospital in the jeep of Om Swami. Shankar Lal Pareek has been examined as PW-6 who has also stated that he too reached at the site of incident immediately after the occurrence had taken place. He saw Ginni Devi, Santosh, Vijay and Kanhaiyalal standing there and crying; they were pleading for taking the injured to the doctor. Vijay Kumar had gone to fetch the vehicle. He saw Vijay Kumar bringing the Jeep of Om Prakash Swami. Om Prakash Swami himself has been examined as PW-9, who has stated that he was approached by Vijay Kumar and Ganesh and on their request he took the injured to the hospital who were unconscious. Complainant party was first trying to save the life of the injured and took them to hospital rather than going to police station for lodging the FIR, than awaiting a request from the SHO to the hospital for medical examination of the injured, who were in such a critical condition that they ultimately died also. It would have been rather unnatural, if they had not acted the way they did. Contention that FIR was given by PW-3 Ginni Devi as per her version in the court statement only when police had come to their house at Udaipurwati about 2.30 to 3.00 in the noon, and the postmortem report and the site inspection has to be therefore understood in the backdrop of these facts.
The Supreme Court in Animireddy Venkata Ramana and Others Vs. Public Prosecutor, High Court of Andhra Pradesh - (2008) 5 SCC 368, held that when an information is received by an officer incharge of a police station, he in terms of the provisions of the Code is expected to reach the place of occurrence as early as possible. It is not necessary for him to take that step only on the basis of FIR. An information received in regard to commission of a cognizable offence is not required to be preceded by a First Information Report. Duty of the State to protect the life of an injured as also an endeavour on the part of the responsible police officer to reach the place of occurrence in a situation of this nature is his implicit duty and responsibility. It is not necessary that FIR should contain each and every detail.
The judgment cited by Shri A.K. Gupta, learned counsel for the appellants, on this aspect are materially distinguishable on facts. There can no quarrel with proposition of law laid down in the judgments of the Supreme Court cited by learned counsel for the appellant in Thanedar Singh Vs. State of Madhya Pradesh (2002) SCC (Cri) 153, Sahib Singh v. State of Haryana (1997) 7 SCC 231 and Meharaj Singh (L/Nk.) Vs. State of U.P. - (1994) 5 SCC 188. But ratio thereof cannot be applied to the present case.
Thanedar Singh's case, supra, was a case where observations were made in Para 53 based on fact of an inordinate and unexplained delay in sending of FIR to the Magistrate. In the present case there is no such extraordinary delay because the FIR was sent on the very next day. At the relevant time, the courts were functioning in the morning and the FIR was sent at about 3.45 PM and that did not make any difference.
In Meharaj Singh's case, supra, also FIR was registered with inordinate delay but here the facts indicate that the police had already swing in action. The injured were immediately removed to the hospital. The police reached there also and thereafter the inspected the scene of occurrence. The FIR was also lodged at 2.30 PM on that very day. Such an FIR cannot be said to be very delayed. In Meharaj Singh's case, the FIR was ante time. In the present case it cannot be said to be ante time, therefore, those cases are distinguishable.
Argument has been raised that Moolchand Nai has been subsequently introduced as an eye witness and therefore he should not be believed. All other eye witnesses, namely, Ginni Devi, Kanhaiya, Ganesh, Shanker Lal Pareek, Vijay Kumar, Santosh, have stated that Moolchand Nai was present at the time of incident and witness to incident. In fact what they stated that this witness was crying from a distance and appealing to the good senses of the accused to spare both the deceased persons but they did not pay any heed to his request. When we go through the statement of PW-1 Moolchand, we find that he has not assigned any specific role to any of the accused and simpally named all the accused as assailant responsible for beating of Ravindra and Ajay, therefore, even if we ignore statement of this witness, it is not going to much help the accused-appellants. The fact about the statement of some of the prosecution witnesses recorded under Section 161 Cr.P.C. such as Moolchand Nai having been recorded on 30.06.1996 would also be not of much significance. Regarding Vijay Kumar however it is alleged that his statement was recorded on 30.06.1996 i.e. nine days after the incident and for Santosh it is alleged that her statement was recorded 13 days after the incident i.e. on 04.07.1996, we find that even though their statements under Section 161 Cr.P.C. may have been recorded at some later stage but their version is exactly same as that of Ginni Devi (PW-3), minus the role assigned to Sunita Devi for throwing capsicum powder into the eyes of two deceased. When they were confronted with their police statement, they could not justify that and to that extent we are also not inclined to believe them. We are also not persuaded to uphold the argument that conduct of Kanhaiya and Vijay Kumar, Santosh, if they were present there was unnatural because, had they been there, they would have tried to save the deceased. This argument is noticed only to be rejected for the simple reason that despite DW-1 Sua Devi and PW-3 Ginni Devi intervening to save them, accused did not pay any heed to their repeated prayers. Vijay Kumar has stated that he did try to intervene to save them but he was pushed aside. PW-4 Kanhaiya also has stated that he also tried to intervene and save the deceased Ravindra and Ajay, he was also pushed aside. Ginni Devi also tried to save them and according to PW-4 Kanhaiyalal, accused Jagdish inflicted lathi blow on her right knee. Another argument that according to PW-3 Ginni Devi, wives of Ravindra and Ramesh were present at the home, why they have not been cited as witness, also cannot be accepted because learned counsel for appellant himself has stated that further improvements have been made by the prosecution after the parcha bayan was recorded and in parcha bayan they did not find mention that they were not present at the scene of incident. Reason why they were not present of course is not on record but on that basis it cannot be held that they have been deliberately withheld by the prosecution because it is nobody's case that they were present at the scene of occurrence and none of the witnesses has indicated about their presence.
Merely because the witnesses have assigned pharsi blow to accused Jagdish and sword below to accused Chandra Shekhar @ Shekhar, and since sharp edged injuries were not found on the person of deceased, they should not be considered as member of unlawful assembly, cannot be accepted. Their presence in any case cannot be doubted in view of consistent version of number of prosecution witnesses thereabout. What has been stated is that lathis were fitted with plates and lathi blows have been assigned to all other accused except Shekhar for whom it is alleged that he was having a sword. This sword, according to the prosecution witness PW-8 Vijay Kumar, was a very old sword and that also appears from the recovery-memo Exhibit P-6 that sword which has been described to be an old, handle of which was also broken. The handle was about 6 length and the remaining sword was about 1'x10. It was broken upto the piece of 6 and it was said to have contained blood stains on both sides. In the circumstances when the sword was very old, its sharpness may not have maintained to inflict a sharp injury with precision and that also does not deviate the specific role assigned to accused Shekhar in the statement of all prosecution witnesses that he was one of the leading member of the unlawful assembly but actively participated in causing repeated blows on the persons of both the deceased.
Contention of learned counsel for appellants that DW-1 Sua Devi was the only independent eye witness and the prosecution deliberately did not produce her in evidence therefore defence had to produce her as DW-1 and further contention that since the prosecution did not cross-examine her to confront with the statement under Section 161 Cr.P.C., cannot be accepted firstly because this witness DW-1 Sua Devi by her statement does not at all inspire any confidence. Firstly she has not named any accused as assailant, secondly, she stated that her house was situated within one kilometer of the house of the accused, and thirdly she has stated that she did not know most of the accused except Jagdish and Hanuman. Reason why did she do so is not far to seek. She stated, as is evident from last line of the statement, that it was accused Jagdish, who has brought her to the court to give that statement. Thus, it was the right decision of the prosecution in dropping this witness to produce in evidence and not producing her was prompted by these reasons. Since this witness was included in the calendar of the prosecution witness, the prosecution could not subject her to cross-examination in view of law laid down by the Supreme Court in Laxman Kalu Nikalje v. The State of Maharashtra AIR 1968 SC 1390, wherein it was held that Indian law does not admit of cross-examination of such a witness in respect of statements before the Police. In view of above, this argument of the appellant is not also rejected.
As regards the difference in duration of injuries received by PW-3 Smt. Ginni Devi, we may merely refer to judgment of the Supreme Court in Bhagwati Prasad Vs. State of M.P. - (2010) 1 SCC 697, wherein similar argument was rejected with observation that it must be borne in mind that in the postmortem report, the determination of precise duration of the injuries can be possible due to the internal examination of the injuries, whereas no such advantage is available to the Doctor when he examines the injuries in the nature of contusions.
Even when an offence is alleged to have been committed by unlawful assembly, the court has to guard against danger of punishing any innocent person(s) and for that purpose, it has to ultimately look for a specific overt act assigned to every accused, which can be examined on the basis of evidence available in the case and that would always vary from case to case.
The Supreme Court in Kuldip Yadav's case, supra, held that it is mandatory for a court that before convicting accused with the aid of Section 149 IPC, it must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused, mere fact that they were armed would not be sufficient to prove common object. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. Before recording a conviction under Section 149 IPC, essential ingredients of Section 141 IPC are required to be established. In that case, it was held by the Supreme Court that there was no material to show that all the accused shared the common object, the object itself is not proved and their participation in it was not made out by credible evidence and no overt act was assigned to any other accused except one. Conviction of the rest of accused with the aid of Section 149 was held unsustainable.
In Shivjee Singh's case, supra, it was held that for determination of common object of unlawful assembly, conduct of each of members of unlawful assembly, before and at the time of attack and thereafter, motive for the crime, are some of the relevant considerations. In State of Karnataka Vs. Mallu Kallappa Patil and Others, supra, it was held that that where large group of persons coming to the spot to raise the dispute regarding the cleaning of the well were on the spot and when the quarrel took place some of the accused committed certain acts of violence, they must be held liable for individual acts to avoid large scale convictions by virtue of the application of Section 149 of the IPC.
In Pandurang Chandrakant Mhatre and Others v. State of Maharashtra (2009) 10 SCC 773 held that an FIR is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in Court as a witness. It was held that conduct of each of members of unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident.
In Maranadu and another Vs. State by Inspector of Police, Tamil Nadu : (2008) 16 SCC 529, Supreme Court held as under:-
For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti.
In Nagarjit Ahir Vs. State of Bihar : (2005) 10 SCC 369, Supreme Court held that it may be safe to convict only those persons against whom overt act is alleged with the aid of Section 149 IPC lest some innocent spectators may get involved. In Pandurang Chandrakant Mhatre and others Vs. State of Maharashtra : (2009) 10 SCC 773, Supreme Court held that where a large number of persons are alleged to have participated in the crime and are sought to be convicted under section 149 IPC, the court needs to consider all the facts situation and convict only those accused whose presence was clearly established and overt acts were proved.
In Vishnu and others Vs. State of Rajasthan : (2009) 10 SCC 773, Supreme Court sounded a note of caution that court has to ascertain whether every member of an unlawful assembly knew the offence likely to be committed in prosecution of a common object, only then a person, who at the time of committing that offence was such member, would be guilty of the offence committed. The court should guard against danger of convicting innocent persons and for that purpose scrutinize record carefully and if doubt arises, should give benefit thereof to the accused. The common object may be commission of one offence while there may be likelihood of commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly and whether a member of such unlawful assembly was aware as regards likelihood of commission of yet another offence or not would depend upon the facts and circumstances of each case. Background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime would be relevant factors for drawing an inference in this behalf. (emphasis ours) It may be noted at this very stage that one of the arguments in Bachan Singh supra was that the investigation officer had migrated to Pakistan and died there and thereby serious prejudice was caused to the accused because he was not produced as a witness and could not be cross-examined. Supreme Court held that in the circumstances, it was not possible for the prosecution to produce him as a witness. Since the witnesses were confronted with their previous statements recorded under Section 161 Cr.P.C. and the trial court looked into the case diary to additionally test the veracity of the witnesses, no prejudice can be said to have been caused to the accused in the peculiar facts of the case. Same was the situation in the present case where investigation officer Balveer Singh could not be produced by the prosecution because he died during trial. Nevertheless, signature of the investigation officer has been proved by another police-witness PW15-Prem Singh, who appeared in the witness-box and identified the signatures of investigation officer Balveer Singh. Other prosecution witnesses have been confronted with their statements recorded under Section 161 Cr.P.C. No prejudice can thus be said to have been caused to the accused.
In Prem Singh and others Vs. State of Haryana: (2009) 14 SCC 494, five accused persons were convicted by the Additional Sessions Judge for murder of deceased under Section 302/149 IPC however, High Court acquitted three of them by extending benefit of doubt. Question however arose whether they could still be convicted with the aid of Section 34 IPC viz. for offence u/S.300/34 IPC. Supreme Court held that it cannot be said that only because three of the accused were given benefit of doubt and were acquitted, no case of any intention was made out. Appellants came together armed and had threatened the deceased and went back together. It was held that on the basis of the evidence available on record, High Court was justified in affirming that opinion.
The Supreme Court in Abdul Sayeed Vs. State of Madhya Pradesh, (2010) 10 SCC 259, held that the phrase common intention implies a prearranged plan and acting in concert pursuant to the plan. Any common intention must be there prior to the commission of the offence in point of time but the common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances attending thereto. Common intention under Section 34 IPC is to be understood in a different sense from the same intention. In para 51 of the report, the Supreme Court in categorical terms held that undoubtedly, the ingredients of Section 34 i.e. the accused had acted in furtherance of their common intention is required to be proved specifically or by inference, in the facts and circumstances of the case. Law on this aspect is thus clear that Section 34 IPC can be attracted even where some of the accused have been acquitted provided that against rest of the accused it can be proved either by direct evidence or by inference that they all acted in furtherance of the common intention. Any common intention must be there prior to the commission of the offence in point of time but the common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances attending thereto.
In Hariom Vs. State of U.P., 1993 Supp. (2) SCC 1 = 1993(1) Crimes 294 (SC), it was held by the Supreme Court that in order to bring a case under Section 34, it is not necessary that there must be a prior conspiracy or pre-meditation and common intention can also be formed suddenly.
In Virendra Singh Vs. State of Madhya Pradesh, (2010) 8 SCC 407, Supreme Court held that a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such crime is committed. In most of the cases, it is difficult to procure direct evidence of such intention and can be inferred from acts or conduct of accused and other relevant circumstances for which documents on record acquire a great significance and they have to be very carefully scrutinized by the court.
In Sangappa Sanganabasappa M. and others Vs. State of Karnataka and others : (2010) 11 SCC 782, Supreme Court held that on perusal of entire circumstances only accused appellants before it were found to be sharing common intention and not remaining accused persons who were acquitted. The findings of the Additional Sessions Judge and the High Court that the accused did not fall u/S.149 IPC were held correct and the High Court was held justified in upholding the finding of the Additional Sessions Judge and conviction of the accused for offence u/S.302 with the aid of Section 34 IPC was upheld.
In view of the law noticed above, whether or not common intention of committing murder was shared by some of the accused, can be proved specifically or even by inference in the facts and circumstances of the case that they have of acted in furtherance of common intention. Except accused appellant Sunita Devi with respect to whom, the appellants are justified in saying that the prosecution has tried to improve upon the original version, dispassionate examination of evidence shows that from very beginning to end, specific role with active participation has been consistently assigned by prosecution witnesses to only four of the accused, namely, Subhash, Chandra Shekhar @ Shekhar, Chandra Prakash @ Prakash and Jagdish. There is however an omnibus allegation against all other accused that they also inflicted lathi blows on both deceased at the end. Evidence in the matter proves that only those four accused actively indulged in causing repeated injuries on vital parts of deceased Ravindra and Ajay as a result of which they died. At the same time, as per the analysis of evidence made above, none of the other accused including Sunita can be said to have caused any injury on the person of either Ravindra or Ajay and therefore regarding these accused, it can neither be said by direct evidence nor even by inference that they shared such common intention with rest four accused, namely, Chandra Shekhar @ Shekhar, Chandra Prakash @ Prakash, Subhash and Jagdish of committing murder of deceased.
As a result of aforesaid discussion, it must be held that only these four accused shared the common intention of committing murder of deceased Ravindra and Ajay. They are therefore liable to be held guilty of committing offence under Section 302 read with Section 34 of the IPC. Other accused-appellants, namely, Radheyshyam @ Nanuram @ Nancha, Nand Kishore @ Kishore, Hanuman, Geega @ Ramaotar and Sunita, are however held entitled to benefit of doubt because in respect of each one of them the prosecution has even failed to prove any individual act on their part beyond reasonable doubt. Their conviction under Section 302/149 of the IPC is set aside. Conviction of accused-appellants, namely, Chandra Shekhar @ Shekhar, Chandra Prakash @ Prakash, Subhash and Jagdish, under Section 302/149 of the IPC is altered and they are instead convicted for offence under Section 302/34 of the IPC.
Accused-appellants Hanuman and Sunita are on bail. Their bail bonds and sureties are discharged. Accused-appellants, namely, Radheyshyam @ Nanuram @ Nancha, Nandkishore @ Kishore and Giga @ Ramaotar, who are in jail, if not required in any other criminal case, be released forthwith. However, keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants Radheyshyam @ Nanuram @ Nancha, Nandkishore @ Kishore and Giga @ Ramaotar are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months. In the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Supreme Court.
Appeal thus stands partly allowed.
(S.S. Kothari) J. (Mohammad Rafiq) J. //Jaiman//