Allahabad High Court
State vs Ram Naresh And Others on 18 August, 2022
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R RESERVED Court No. - 48 Case :- GOVERNMENT APPEAL No. - 3339 of 1985 Appellant :- State Respondent :- Ram Naresh And Others Counsel for Appellant :- A.G.A.,A.D. Giri Counsel for Respondent :- Ravindra Rai,Ashok Kumar Mishra, Ramji Singh Patel Hon'ble Suneet Kumar,J.
Hon'ble Vikram D. Chauhan,J.
(Suneet Kumar, J)
1. Heard Sri Vikas Goswami, learned A.G.A. for the State and Sri Ashok Kumar Mishra, learned counsel for the accused respondents.
2. The instant appeal has been filed against the judgment and order dated 05.09.1985, passed by the Ist Additional District and Session Judge, Varanasi, in Session Trial No. 244 of 1984, under sections 302/149, 307/149 I.P.C., whereby, the accused respondents have been acquitted.
3. The appeal has been filed against all the acquitted accused. During pendency of the appeal the second respondent- Yadurai, S/o Sri Alakh Narain, and third respondent-Harishankar, S/o Sri Brajnath Singh, have died. Accordingly, the appeal against them stands abated. First respondent-accused Ram Naresh, fourth respondent-Devendra and fifth respondent-Virendra are opposing the appeal and the present appeal is confined to the said accused.
Prosecution case:
4. As per prosecution case, accused Yadurai was assigned the role of firing and accused-Harishankar of causing injury by lathi. First, fourth and fifth respondent have been assigned assault weapon gadasa and farsa. Fourth and fifth respondents are brothers and sons of first respondent.
5. As per F.I.R., complainant Udaynath Singh (P.W.-1) alleged that about 20-25 days prior to the incident there was quarrel between the accused and Baba @ Digvijay Nath Dubey. Attempts were made to arrive at a compromise between the quarrelling parties, but failed. On 08.04.1984, at about 9 P.M., a community panchayat was convened at the door of the complainant to settle the matter between the parties, both the parties were invited to the panchayat. It is stated that Baba @ Digvijay Nath Dubey (P.W.-3), his sister Pramila Devi, his aunt Indrawati Devi, his younger brother Narendra Nath Dubey and Dhirendra Nath Dubey had come to attend the panchayat. The complainant's father Kedar Singh (deceased) and his younger brother Mahendra (P.W.-2), Surendra, Rajendra and the wives of Rajendra and Surendra were also present. Panchayat was convened by father of the complainant on the consent of both the parties.
6. It was further stated that there was electric light burning at the door of the complainant and a mercury light at the crossing of the road. It was moonlit night. A person was sent to call the accused persons. He returned informing that they will come shortly. It is alleged that in the mean time accused Yaduri armed with gun, accused Harishankar with lathi, accused Ram Naresh, Devendra and Dhirendra armed with gadasa came on the spot. Accused started hurling abuses and exhorted that family of Kedar Singh (deceased) wants to suppress and humiliate them in collusion with the family of Baba; and at that moment accused Yadurai fired five shots from his gun injuring Kedar, Smt. Nirmala Devi, Mahendra, Smt. Pramila and Smt. Indrawati. Mahendra is said to have also received single blow of lathi afflicted by accused Harishankar. Ram Naresh Singh, Virendra and Devendra wielded gadasa, but, no one was injured. An alarm was raised, patrol police reached, accused escaped. The complainant send his injured father, Nirmala Devi, Pramila, Indrawati alongwith his younger brother Rajendra to district Hospital at Varanasi; father of the complainant (Kedar Singh) succumbed to the injuries in the hospital on the same night.
7. On written complaint, F.I.R. was promptly registered, the case was investigated and upon investigation, charge sheet was submitted against the accused under sections 302/149, 307/149 I.P.C. The case was committed to the court of session for trial. The prosecution examined in all eight witnesses. (P.W.-1) complainant Uday Nath Singh, eye witness and he proved the report; (P.W.-2) Mahendra Singh brother of the complaint is an injured eye witness; (P.W.-3) Digvijay @ Baba is also the eye witness; (P.W.-4) Nirmala a family member of complainant, is an injured eye witness; (P.W.-5) constable Achhaiber Nath Yadav took the dead body to the mortuary for post mortem; (P.W.-6) Dr. T.B. Rai examined the injuries of deceased Kedar Singh and other injured persons. He found the following injuries caused to Kedar Singh.
1. Gun shot wound 1 cm x 1 cm depth not probed on the back of right high lower part with blackening and charring. Kept under observation. Advised X-ray.
2. Gun shot wound 1 cm x 1 cm depth not probed with blackening and charring on right knee joint kept under observation. Advised X-ray.
8. He also examined Smt Nirmala (P.W.-4) and found the following injuries:
Gun shot wound on the left elbow with blackening and charring. Kept under observation. Depth not probed. Advised X-ray and expert opinion.
9. He examined Smt. Indrawati and found the following injuries:
1. Gun shot wound 25 cm x 25 cm x depth not probed with blackening and charring on back of right fore-arm upper part.
2. Gun shot wound 25 cm x 25 cm x through and through with blackening and charring on the right index finger on top.
3. Gun shot wound 25 cm 25 cm x depth not probed on front and outer of right elbow joint.
4. Gun shot wound multiple eight in number each 25 cm x 25 cm x depth not probed with blackening and charring on right thigh is already 20 cm x 3 cm.
5. Gun shot wound 25 cm x 25 cm blackening and charring present on front of right leg middle.
6. Multiple gun shot wound with blackening and charring 25 cm x 25 depth not probed on middle of abdomen.
7. Multiple gun shot wound each 25 cm x .25 cm depth not probed with blackening and charring on front and out of left thigh.
10. He also examined Smt. Pramila Devi and found the following injuries:
1. Gun shot wound 2 cm x .5 cm x depth not probed blackening and charring on right side thigh outer aspect upper part.
2. Gun shot would 25 cm x .25 cm x depth not probed will blackening and charring on front and outer right thigh lower part.
11. He examined Mahendra Singh (P.W.-2) and found the following injuries:-
1. Lacerated wound 4 cm x .5 cm x scalp deep on back of head 13 cm above left ear.
2. Gun shot wound with blackening and charring 2 cm x .5 cm x depth not probed on right thumb kept under observation advised X-ray.
12. (P.W. 6) Dr. T.B. Rai proved the injury reports Ex- Ka-2 to Ex. Ka-6.
13. (P.W.-7) S.I. Shiv Shaknar Tripathi investigated the case and proved the report Ex. Ka-7 and case diary entry Ex. K-8. He prepared the site plan (Ex. Ka-9) and after the death of Kedar Singh converted the case into Section 302 I.P.C. vide case diary Ex. Ka-10. He also collected blood smear soil and plain earth and an empty cartridge from the spot and prepared memo Ex. Ka-10 and Ka 12, respectively. He prepared the panchayatnama Ex. Ka-13 and various other documents Ex. Ka 14 to Ka 16 for the post mortem. P.W.-7 submitted charge sheet under section against the accused Ex. Ka 17.
14. (P.W.-8) Dr. A.K. Kocher conducted the post mortem of deceased Kedar Singh and found the following injuries:
1. Gun shot wound 1 cm x 1 cm depth not probed on the back of right high lower part with blackening and charring. Kept under observation. Advised X-ray.
2. Gun shot wound 1 cm x 1 cm depth not probed with blackening and charring on right knee joint kept under observation. Advised X-ray.
1. Gun shot wound of entry of 1 cm diameter in front of right knee just above the patella bone with margin contused and lacerated and margin inverted distance 52 cm above right heel. The missile has passed through skin, subcut..... tissue, muscles, fractured into pieces to the lower end of femur bone, raptured poplitial vessel, passed through thigh muscle, subcut.... Tissue and made on.
2. Wound of exits 1.5 cm in diameter, circular with irregular lacerated and everted margin on the posterior surface of right thigh 52 cm above right heel. Direction front to back.
3. Multiple abraded contusion 1.5 c.m. x 2 cm on the right side of front of abdomen at the level of umbilicus and 8 cm outer to umbilicus.
Internal Examination:
Both lungs pale, part both side empty.
Stomach: digested food one litre.
15. Accused pleaded not guilty and alleged that they have been falsely implicated due to enmity; accused Ram Naresh stated that complainant had always attempted to grab his land. For this purpose, a false sale deed was got executed by the complainant and Badri, a suit in that regard is pending. The accused further stated that he was not present; the deceased and injured received gun shot injuries from some unknown persons. He has been falsely implicated due to enmity. Accused Devendra and Virendra stated that Badri and deceased wanted to grab land of Ram Naresh for which a false sale deed was executed and they were implicated due to enmity. Accused have filed various documents in defence.
16. The trial court upon examining the evidence reached a finding that the prosecution failed to prove the charge framed under Sections 148, 302/149, 307/149 I.P.C., accordingly, the accused were held not guilty for the offence and were acquitted.
Submissions:
17. Learned State Counsel, in the backdrop of the prosecution evidence, submits that the finding reached by the trial court is perse perverse on misreading/appreciation of the evidence and the site plan; place and time of incident was duly proved by the witnesses of fact, including, injured witnesses; the identity of the accused is not disputed being neighbours; the site plan shows the spot of firing duly corroborated by the witnesses of fact; injury report and post mortem report corroborates the prosecution case. The witnesses had categorically stated that the place of incident was duly illuminated; light was at the door of the complainant, as well as, street light at the crossing of the road; further, it was a moonlit night. The F.I.R. was lodged promptly; empty cartridges of 12 bore rifle was recovered from the spot; marks caused by pellet was found on the wall of the house of P.W.-1; the deceased and injured received pellet injury fired from close range. Learned State counsel submits that prosecution proved the case beyond reasonable doubt, the impugned judgment and order is liable to be set aside and the accused-respondents are liable to be convicted.
18. Learned counsel appearing for the accused-respondents submits that the impugned judgment is well reasoned based on appreciation of evidence; role of firing was assigned to accused Yadurai and accused Hari Shankar was assigned the role of causing injury by lathi on the head of Mahendra Singh, both the accused have since died during the pendency of the appeal. The accused-respondents are father and sons and were assigned the role of exhortation and hurling gadasa, but no injury was caused with the assault weapon. He further submits that insofar the case of the accused-respondents is concerned the offence would not travel beyond Section 304 Part (II) I.P.C. He accordingly submits that appeal is liable to be dismissed.
Appellate Court-Scope of enquiry:
19. At the out set, it would be apposite to examine the law on the scope of enquiry by an appellate court under Section 378 Cr.P.C. while dealing with an appeal against acquittal.
20. The Supreme Court in Anwar Ali v. State of Himanchal Pradesh1 held as under:
"14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 which reads as under: [Babu v. State of Kerala2]:
"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635], Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [1992 Supp (2) SCC 312], Triveni Rubber & Plastics v. CCE[1994 Supp (3) SCC 665], Gaya Din v. Hanuman Prasad[(2001) 1 SCC 501], Aruvelu v. State, [(2009) 10 SCC 206] and Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636])."
21. In Atley v. State of U.P.3, Supreme Court observed and held as under:
"It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well- established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated."
22. In Chandrappa v. State of Karnataka4, Supreme Court has laid down the general principles regarding the powers of the appellate Court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
23. In Murugesan v. State5, Supreme Court held:
"only in cases where conclusion recorded by the trial court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. In the said judgment, distinction from that of "possible view" to "erroneous view" or "wrong view" is explained. In clear terms, this Court has held that if the view taken by the trial court is a "possible view", the High Court not to reverse the acquittal to that of the conviction."
Analysis: Case of the prosecution witness.
24. To appreciate the submissions of learned State counsel in the backdrop of the general principles regarding powers and scope of the appellate court, we would briefly refer to the prosecution case and the evidences in support thereof, and examine as to whether the finding reached by the trial court acquitting the accused is against the weight of evidence and is the ''possible view'; and or whether the finding defies logic as to suffer from the vice of irrationality.
25. The incident is alleged to have taken place on 08.04.1984, at 9.00 P.M., report was lodged promptly at 12.35 in the night on the same day.
26. Udaynath Singh (P.W.-1), son of the deceased, alleged that Baba @ Digvijay Nath Dubey and the accused persons Ram Naresh, Yadurai, Harishankar, Devendra and Virendra had a quarrel on the occasion of Holi, efforts were being made to settle the dispute and for that purpose the complainant had convened a panchayat (meeting) of both the quarrelling sides at 9.00 P.M. at his door (house). Baba @ Digvijay Nath Dubey (P.W.-3) along with his family arrived, however, to call the other side i.e. Ram Naresh, Yadurai, Harishankar, Devendra and Virendra, complainant sent a person. The person returned and stated that they will arrive shortly. Immediately, thereafter, accused Yadurai armed with gun, Harishankar with lathi, Ram Naresh, Devendra and Virendra with gadasa reached the spot and started hurling abuses; they rushed towards the door of the complainant exhorting that the family of Kedar (deceased), in connivance with Baba @ Digvijay Nath Dubey wants to intimidate and falsely implicate them, today the family would be eliminated. Yadurai with the intention to kill fired five shots at the complainant, his father and brothers, consequently, complainant's father (Kedar), younger brother and Smt. Nirmala, wife of his younger brother, Surendra, Mahendra, Smt. Pramila Devi and Indrawati incurred gun shot injuries. In the firing the condition of Kedar, Smt. Nirmala Devi, Smt. Pramila Devi and Indrawati became serious; Rajendra Pratap the younger brother of the complainant immediately had taken them to the hospital.
27. Udaynath Singh (P.W.-1) was examined, he reiterated the prosecution version and deposed in detail regarding the location of his house and that of his younger brother, his father Kedar Singh (deceased), the direction from where the accused had come and the place from where firing was resorted. He stated that 24-25 days earlier at the Holi festival the accused and Baba @ Digvijay Nath Dubey had a quarrel and the panchayat was convened on 08.04.1984, at 9.00 P.M. at his residence to settle the dispute. On specific query, he categorically stated that meeting was convened by his father Kedar Singh (deceased) on the request of the rival parties. He further stated that there was sufficient illumination at his door and the mercury light at the road crossing was illuminating his entrance door. He further stated that it was moonlit night. He reiterated that Yadurai had a gun, Harishankar was armed with lathi, Ram Naresh and his sons Devendra and Virendra were armed with gadasa. The accused exhorted to eliminate the family membe+rs of Kedar Singh and in furtherance thereof, Yadurai continuously fired five shots, which hit his father and other family members. Accused Hari Shankar, thereafter, assaulted with lathi on the head of his younder brother Mahendra (P.W.-2), whereas, Ram Naresh, Virendra and Devendra hurled gadasa to assault, but, no injury was caused. The accused escaped upon arrival of patrol police.
28. In cross examination, P.W.-1 stated that his family and that of the accused are not enimical. He further stated that one hour before the incident his family members were seated in front of the house on the open land which is part of their house. He further stated that there is no chabutara (elevated platform) but an open verandah without any cover. He further stated that on the open verandah and in front of the verandah on the ground people were sitting.
29. The trial court picking up a single sentence of P.W.-1 that there is no chabutara in front of his house was of the opinion that the place of incident is doubtful, whereas, in contrast all the other injured witnesses had stated that family members of Baba @ Digvijay Nath Dube and Kedar Singh had assembled and were sitting on the chabutara and on the open ground beyond the chabutara. Relevant portion of the trial court judgment is extracted:
"Not only this there are conflicting version about the place of Panchayat. According to Udai Nath Singh P.W.-1 there is no chabutara attached to his house. The prosecution case is that there was a Chabutara whereupon certain persons were sitting and waiting for the accused. Udai Nath Singh has stated in para 12 of his cross examination that there is no Chabutara in his house but there is an open verandah. People had collected in this open verandah and open land. The Chabutara was introduced by complainant's brother Mahendra Singh P.W.-2. No Chabutara was found by the I.O. nor the same has been shown any where in the site plan."
30. P.W.-1 further testified in cross examination that both the quarrelling parties were asked to assemble at 9.00 P.M., Baba @ Digvijay Nath Dubey and his family had arrived, Narendra Nath Dubey was sent to call the accused. He returned shortly within one and half minutes and immediately thereafter the accused arrived on the spot. P.W.-1 further stated that he could not disclose the name of Narendra Nath Dubey in the F.I.R. who was sent to call the accused due to tension of the incident. He further stated that the accused came from the east direction and when the accused arrived, he along with his wife Shanti Devi, his younger brothers Surendra, Rajendra and Ramnath Dubey were sitting on the chabutara. The accused were 2-3 steps away from the chabutara and stood at north east corner and exhorted that Kedar Singh in connivance with the family of Baba @ Digvijay Nath Dubey wants to show the accused down, to pressurize them and to falsely implicate them. Thereafter, Yadurai fired five gun shots facing west-south corner. He further stated that Yadurai fired the shots from the same spot standing. Thereafter, P.W.-1 reiterated that Harishankar caused assault with lathi upon Mahendra. He further deposed that after the gun shots were fired, thereafter, assault was made by lathi and gadasa upon the injured.
31. P.W.-2 Mahendra Singh, the injured witness, reiterated the prosecution version stating that some of the family members were sitting on the chabutara at the door of P.W.-1 while the rest on the ground beyond the chabutara. He further stated that the assailants are known, they were armed with gun, lathi and gadasa. Upon exhortation to eliminate the family of Kedar Singh, five shots was fired by Yadurai; Harishankar assaulted with lathi on his head and the other accused hurled gadasa to cause injury, but no injury was caused. He categorically stated that Baba @ Digvijay Nath Dubey and his family were sitting on the chabutara, whereas, his family was sitting on the ground beneath of chabutara. He further stated that the accused fired from a distance of 2-4 steps away from western and southern corner from the chabutara. Yadurai was 3-4 steps away from chabutara in front of the house of Uday Nath Singh (P.W.-1).
32. P.W.-3 Digvijay Nath Dubey @ Baba, reiterated the prosecution version and specifically assigned the role to the accused of having caused injury by firing, lathi and hurling gadasa. He stated that the direction from where the accused came (north and east) and the firing was made from a distance of 3-4 steps away from the chabutara.
33. P.W.-4 Nirmala, daughter-in-law of the deceased, stated that she is a teacher of primary school. She reiterated the prosecution version and further stated that at the door of the P.W.-1 both families assembled. The door site was lit by a bulb and street light at the road crossing. It was moonlit night. In cross examination, she stated that Yadurai facing north and east direction was firing from a distance 3-4 steps away from the chabutara.
34. P.W.-6 Dr. T.B. Rai examined injured Kedar Singh (deceased), Smt. Nirmala Singh ( P.W.-4) and Indrawati, seven gun shot injuries, blackening and charring is noted; Smt. Pramila suffered two gun shot injuries, blackening and charring; Mahendra Singh (P.W.-2) suffered gun shot injury, blackening and charring; lacerated wound 4 x 5 cm. scalp deep on the back of the head.
35. P.W.-7 Shiv Shankar Tripathi, Sub Inspector/Investigating Officer deposed that the complainant (P.W.-1) and his younger brother injured Mahendra Singh (P.W.-2) came to the Thana to lodge report; injured was sent to the hospital; on the subsequent day i.e. 09.04.1984 statement of Mahendra Singh was recorded, blood smeared soil and plain soil was collected from the spot; two empty cartridges was recovered from the spot; he prepared panchayatnama and the site plan on the pointing of P.W.-1 and Mahendra Singh P.W.- 2. He further, deposed that he had not shown the place of panchayat/chabutara in the site plan, but had shown the place from where the gun shots was fired, which is marked "Ka" and the distance ''X' is three steps away; deceased was shot at the spot marked ''X'. In cross examination, he stated that chabutara is in front of the house of P.W.-1 extending east to the house of Mukhram; house of P.W.-1 was shown in the site plan. Blood was found three steps away from the tea shop corner of Mukhram; he further stated that pellet mark was seen on the wall of the house of P.W.-1; blood was collected from spot "X". On specific query, the witness stated that ''X' is 5-6 steps away from the house of P.W.-1; he further stated that the gun shot was fired from three steps towards the east of ''X'. He further stated that there was sufficient light at the door of P.W.-1, and there was street light.
36. P.W.-8 Dr. A.K. Kochar, Medical officer, conducted the post mortem on the body of the deceased on 09.04.1984, at 3.00 P.M. In his opinion, the deceased died on 08.04.1984; deceased was healthy.
Grounds of acquittal:
37. In acquitting the accused, trial court in the impugned judgment, inter alia, recorded: (i) motive in the case is not proved; (ii) theory of panchayat is doubtful: (iii) theory of light at the place of occurrence is highly doubtful; (iv) there is inconsistent statement on the manner of the incident and none of the witnesses could see the incident ; (v) there is no independent witness except family members; (vi) the prosecution story is not correct.
38. The relevant portion of the judgment and order is extracted:
"Thus in this case the motive, the place of occurrence is not proved and the manner in which the incident is said to have taken place is also highly doubtful."
Findings and analysis:
39. The learned trial court reached a finding that it is a case of no motive as against the accused Yadurai and Hari Shankar who joined hands with the accused to commit the offence. The trial court relying upon Ex. Ka-3, Ka-4 and Ka-5 noted that there was a quarrel between Ram Naresh, his sons and Baba @ Digvijay Nath Dubey and proceedings under section 107/117 Cr.P.C. was initiated, but, P.W.-1 categorically stated in his testimony that this quarrel had taken place with all the accused persons. Further, P.W.-3 suppressed the fact about proceedings under section 107 Cr.P.C. Ex Ka-5 shows that P.W.-3 Digvijay Nath Dubey @ Baba and others appeared in the court pursuant to proceedings under section 107 Cr.P.C. Meaning thereby, there was some quarrel between Ram Naresh, his sons and Digvijay Nath Dubey @ Baba, proceedings under section 107/117 Cr.P.C. was initiated. The relevant portion of the trial court judgment is extracted:
"There is no evidence regarding any such quarrel on the occasion of Holi. No such witness has been examined. Thus apparently there can be no motive for accused Yadurai and Hari Shanker to join hands with accused. There is nothing on record to show that there was any privity between Yadurai and other accused. Udai Nath Singh P.W.1 has stated that the quarrel of Holi had taken place but he did not know about any proceedings u/s 107 Cr.P.C. He has categorically stated that this quarrel had not taken place with the family of only Ram Naresh but with all the accused persons. In other words, he has repeated the F.I.R. version. Mahendra Singh P.W.-2 the real brother of complainant has also stated the role of Yadurai and hari Shanker in the quarrel which took place on Holi. Digvijay Nath Dubey P.W.-3 has also suppressed the fact about the proceedings u/s 107 Cr.P.C. where as the copy of notice Ex. Kha 5 clearly shows that Digvijay Nath Dubey and others had appeared in the court in pursuance of notice in the proceedings u/s 107 Cr.P.C. The copy of reports ex. Kha-3 and Kha 4 and Ex. Kha 5 clearly shows that there was some quarrel between Ram Naresh, his sons and Digvijay Nath Dubey and the proceedings u/s 107/117 Cr.P.C. was initiated. The defence papers referred to above, clearly shows that accused Yadurai and Hari Shanker had nothing to do with the quarrel between Digvijay Nath Dubey and family of Ram Naresh nor the family of deceased had to do anything. If the version given by the complainant in his F.I.R. and in his statement about the involvement of accused Yadurai and Hari Shanker then their names must have been in the first information report. Thus there was absolutely no motive for accused Hari Shanker and Yadurai to commit the offence.
It is admitted to Digvijay Nath Dubey that there was no altercation or enmity with accused Yadurai except the Holi incident which is not proved. Thus the motive in the case is not proved."
40. It is settled principle that F.I.R. is not an encyclopedia and neither the complainant is required to report the details of the back ground of the crime. Merely not stating or suppressing the involvement of accused Yadurai and Hari Shankar during Holi quarrel that would not be fatal to the prosecution case. All the witnesses of fact, including, injured witnesses have clearly stated that the quarrel between the parties had taken place 20-25 days earlier on the festival of Holi and panchayat was convened by the deceased at his door to settle the dispute. It is then the incident had occurred. The testimony supports the FIR version of the prosecution case. Further, motive is not relevant to disbelieve the prosecution version on the face of sterling and truthful eye witness account. The finding reached by the trial court that the motive of the case is not proved is perse perverse and not borne from the evidence. The exhortation by the accused to eliminate the family of the deceased for siding with Baba and to falsely implicate the accused was the motive of the crime. Motive of committing the offence in any case is not relevant in the backdrop of the eye witness account.
41. The Supreme Court in Tarsem Kumar v. Delhi Administration6 held as follows:
"8. Normally, there is a motive behind every criminal act and that is why investigating agency as well as the court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the court should ascertain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question. ......."
42. The trial court doubted the theory of panchayat merely for the reason that the I.O. has not shown the place, in the site plan, where the panchayat has taken place. Further, trial court relying on the prosecution version of the F.I.R., was of the opinion that there was no mention of the light in the report, the theory of light was setup for the first time when the witnesses were examined also makes the place and site of panchayat doubtful. The name of the person sent to call the accused to attend the panchayat was not disclosed in the FIR by P.W.-1. Further, the trial court noted that there is conflicting version about the exact place of panchayat. Reliance was placed on the contradictory statement of P.W.-1 and the injured witness, brother of the complainant P.W.-2 in that regard. The relevant portion of the finding is extracted:
"Besides this fact that motive in the case is not proved, the theory of Panchayat is also doubtful. The I.O. has not shown any place in the site plan which show that this Panchayat has taken place. The oral testimony on this point also does not inspire confidence. Complainant Udai Nath Singh P.W. 1 has mentioned in the F.I.R. that he has called the Panchayat. When he entered in the witness box, he has stated that his father had called the Panchayat. Digvijay Nath Dubey who was alleged to be one of the parties, whose matter was to be settled in the Panchayat, has stated that the Panchayat was called by his younger brother Narendra Nath and deceased Kedar Singh. Udai Nath Singh P.W. 1 has stated that his family members and the family members of Digvijay Nath Dubey were sitting from one hour prior to the incident for the said Panchayat. Mahendra Singh the brother of complainant has stated that they had assembled just 2 or 3 minutes prior to the incident. The two contradictory version cannot be reconciled. According to the prosecution, the Panchayat had to take place at 9 P.M. Uday Nath Singh P.W.-1 has stated that Narendra Nath Dubey was sent to call the accused persons 2 or 3 minutes prior to 9 P.M. This appears to be unreasonable because of the reason that once a particular time has been fixed for Panchayat with intimation to the parties, any party not arriving within time shall be called only after the given time has expired and the people who are waiting there, thus there can be absolutely no chance for sending the man prior to 9 P.M. Learned counsel for the defence has submitted that there was absence of light and the injured persons were made injured by the unknown assailants. I have perused the F.I.R. on this point, I find that the incident took place at 9 P.M. but there is no mention of the light in the report. The theory of light was introduced for the first time when the witnesses were examined. The question of light was challenged by the defence. Udai Nath Singh P.W.-1 has stated that he could not mention the presence of light in his report as he was got perplexed. He has stated that he has told about the light to the I.O. but this fact also does not find place in the statement u/s 161 Cr.P.C. The learned counsel for the defence has further submitted that this fact is confirmed by the statement of I.O. as well. The I.O. Sri S.S Tripathi PW7 has not stated anything about the light in his statement but at the close of the cross examination he was re-examined by the prosecution wherein he has stated that there was light in the house of complainant and at the crossing of the road. The learned counsel for the accused has submitted that if there was any light, why the I.O. could not collect the empty cartridges or prepare the site plan when he visited the place at 10.45 P.M. and then at 12 P.M. This fact also confirms the defence suggestion that there was no light. Thus the theory of light, being on the place of occurrence, has become highly doubtful. Not only this there are conflicting version about the place of Panchayat. According to Udai Nath Singh P.W.-1 there is no chabutara attached to his house. The prosecution case is that there was a Chabutara whereupon certain persons were sitting and waiting for the accused. Udai Nath Singh has stated in para 12 of his cross examination that there is no Chabutara in his house but there is an open verandah. People had collected in this open verandah and open land. The Chabutara was introduced by complainant's brother Mahendra Singh P.W.-2. No Chabutara was found by the I.O. nor the same has been shown any where in the site plan."
43. Recently, in Mukesh v. Stae (NCT of Delhi)7, Supreme Court observed as follows:
"57. As far as the argument that the FIR does not contain the names of all the accused persons is concerned, it has to be kept in mind that it is settled law that FIR is not an encyclopaedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopaedia which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear. If any overt act is attributed to a particular accused among the assailants, it must be given greater assurance."
44. Further, all the witnesses of fact have clearly stated that there was sufficient light, it was moonlit night. In the site plan, the light has been shown and marked ''L' at the door of the complainant and at the road crossing. The place from where gun shot was fired is 2-3 steps away from the place of incident causing injury to the deceased and others. The site plan duly corroborates the testimony of the eye witnesses, including, that of the complainant. The finding reached by the trial court that the place of incident, theory of panchayat and the chabutara is not identifiable, therefore, sufficient to discard the prosecution case is perse perverse. Not mentioning of light in the report is not a relevant fact to nonsuit the prosecution case. The witnesses of fact have clearly stated that light was at the door and at the street, duly marked (L) in the site plan, it was moonlit night; P.W.-7 I.O. on re-examination clearly stated that there was light at the house of the complainant and at crossing of the road. Similarly, not mentioning in the report the name of the person as to who was sent by P.W.-1 to call the accused is of no relevance. In cross examination, he named the person.
45. On close scrutiny of the statement of witnesses, the finding reached by the trial court is perse perverse, defies logic, and against the weight evidence available on record. The complainant P.W.-1 clearly stated that for settlement of the dispute between the quarrelling parties panchayat was convened at his door (house). He further stated the names of the family members of the deceased and that of Baba @ Digvijay Nath Dubey who were present at the panchayat. He further deposed that panchayat was convened by the deceased on the request of the parties at the door of his house, there was light at his door and mercury light at the crossing of the road; it was moonlit night. Therefore, door and the site of the incident was sufficiently lit. He categorically stated that he or his family had no enmity with accused Yadurai and Harishankar. In para 12, P.W.-1 has stated that outside the house the families of the deceased and Baba @ Digvijay Nath Dubey had assembled and were sitting at the adjacent land which is part of the house, he though at one place during cross examination stated that there is no chabutara, but an uncovered verandah and at the adjacent land the people were sitting. This part of the statement has been taken out of context by the trial court to form an opinion that the place of incident was not proved. As against the statement of P.W.-1, other witness of fact stated that people were sitting on the chabutara and the adjacent ground. In paragraph 16, P.W.-1, however, categorically stated that accused Yadurai shot from a distance of 3-4 steps from the chabutara and Mahendra Singh (P.W.-2) was assaulted by Harishankar with lathi.
46. On conjoint reading of the statement of P.W.-1 in para 12 and para 16 and that of other injured witnesses of fact, we do not find any contradiction. The open verandah is probably the chabutara referred to in para 16. Merely, stating that there is no chabutara is not a contradiction going to the root, to discard the prosecution case. The other witnesses of fact have clearly stated that outside the door, in front of house of the complainant there is a chabutara, thereafter, an open land which is part of the pathway; some of the assembled persons were sitting on the chabutara and the others on the ground. Chabutara is a raised platform outside the house which is part of the house of P.W.-1.
47. Reading together of the testimony of witnesses of fact P.W.-1, P.W.-2, P.W.-3 and P.W.-4 the F.I.R. version of the prosecution case is duly supported, there is no contradiction. Minor contradictions are natural. With regard to chabutara the finding reached by the trial court, is perverse, against the weight of the evidence. The testimony of I.O. (P.W.-7) also corroborates the prosecution case. Non mentioning in the F.I.R. by P.W.-1 the name of the messenger sent to call the accused, to attend the panchayat; or the site being lit with bulb/street light or the chabutara; is of no consequence. The prosecution case is duly supported by the witnesses, they categorically deposed that the panchayat was convened at the door of P.W.-1; the site was duly lit, the families assembled and were seated at the chabutara which is part of the house of P.W.-1 and the ground adjoining the chabutara. The spot of firing is two-three steps from the chabutara. Medical expert opinion noting blackening and charring duly corroborates the prosecution version.
48. Further, the trial court was of the view that discovery of cartridges was not made by the I.O. (P.W.-7) on the date of incident despite visiting the spot twice in the night of the incident, therefore, doubts the recovery. The fault of the I.O. would not absolve the accused in the back drop of the truthful and consistent statement of the prosecution witnesses. Merely for the reason that two empty cartridges was collected by the I.O. on the following day and not on the day of the incident is not sufficient to discard or discredit the prosecution version in the backdrop of the consistent testimony of the eye witnesses. The discovery of two empty cartridges from the spot and presence of blood where the deceased was shot corroborates the testimony of eye witness account of the incident and the prosecution case. The presence of the accused at the site and commission of the crime is duly proved. The ocular evidence, if truthful and duly corroborated would prevail not only over medical evidence but also any minor discrepancy in the site plan or lack of motive of the offence. In the given facts, the prosecution has been successful to prove the prosecution case by the testimony of the ocular witness; including, injured witness. The place and site of incident; the injury caused by firing; the time of incident, and the close range of firing has been duly proved and corroborated by the injury report, post mortem report and the site plan. The only possible view in the given facts points to the guilt of the accused in commission of the crime. No other view or theory is possible. The finding reached by the trial court lacks logic and suffers from irrationality.
49. In the case of Sardul Singh v. State of Punjab8, Hon'ble Supreme Court has held that "ocular evidence will prevail over medical evidence when credibility of eye witnesses is established beyond doubt."
50. The trial court further has picked up one sentence from here and there from the statement of the prosecution witnesses to reach a finding that there are contradictions in the statements of the prosecution witnesses. The trial court has gone in detail to examine as to which of the family members were sitting on the chabutara and that on the ground adjacent to the chabutara, further, contradiction with regard to the carpet (dari) and the persons sitting on it has been discussed in detail to dislodge the prosecution case. The trial court concluded:
"All these contradictions about the existence of chabutara and Duri and place of sitting falsified the prosecution theory of Panchayat. If there was any such Panchayat as alleged by the prosecution, the version of the prosecution witnesses would have been consistent on all the points. It will not be out of place to mention that certain shifting in the statement has been made in order to suit the prosecution case."
51. The trial court has further doubted the place of occurrence and has in detail examined the distance to precession with regard to the spot and direction of firing reaching a finding based on the apprehension of the defence that the incident was caused by some other persons.
52. It is settled principle that while examining the testimony of the witnesses unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer. The evidence of P.W.-1 simultaneously keeping in view the appreciation of the evidence of this witness and other witnesses (P.W.-2, P.W.-3 and P.W.-4) by the trial court, we have no hesitation in holding that the trial court was in error in rejecting or doubting the testimony of the ocular witnesses as a whole whose evidence appears to us trustworthy, consistent and credible and duly corroborated.
53. In State of U.P. v Anil Singh9, the Supreme Court observed that:
"............If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses."
54. The Court can separate the truth from the false statements in the witnesses' testimony. In Leela Ram v. State of Haryana10, the Supreme Court held as follows:
"12. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment -- sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their overanxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same."
55. Moreover, it is not necessary that the entire testimony of a witness be disregarded because one portion of such testimony is false. But that is not the case in the given facts. The testimony of the ocular account of the crime and role of the accused is consistent and cannot to said that the inconsistent or falsehood are so glaring to utterly destroy the prosecution case. Supreme Court observed thus in Gangadhar Behera v. State of Orissa11:
"15. To the same effect is the decision in State of Punjab v. Jagir Singh [(1974) 3 SCC 277 : 1973 SCC (Cri) 886 : AIR 1973 SC 2407] and Lehna v. State of Haryana [(2002) 3 SCC 76 : 2002 SCC (Cri) 526]. Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of "falsus in uno, falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno, falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno, falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded."
56. Section 3 of the Evidence Act, 1850 (for shot ''Act'), while explaining the meaning of the words "proved", "disproved" and "not proved" lays down the standard of proof, namely, about the existence or nonexistence of the circumstances from the point of view of a prudent man. The Section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, "believe it to exist" and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the Court believes that it does not exist or considers its non-existence so probable in the view of a prudent man and coming to the third stage where in the view of a prudent man the fact is not proved i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'.
57. There is a difference between a flimsy or fantastic plea which is to be rejected altogether. But a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version indirectly succeeds. The doubt which the law contemplates is certainly not that of a weak or unduly vacillating, capricious, indolent, drowsy or confused mind. It must be the doubt of the prudent man who assumed to possess the capacity to "separate the chaff from the grain". It is the doubt of a reasonable, astute and alert mind arrived at after due application of mind to every relevant circumstances of the case appearing from the evidence. It is not a doubt which occurs to a wavering mind.
58. Lord Denning, J. in Miller v. Minister of Pensions12, while examining the degree of proof required in criminal cases stated:
"That degree is well-settled. It need not reach certainty but it must reach a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course, it is possible but not in the least probable", the case is proved beyond reasonable doubt......"
59. Regarding the concept of benefit of reasonable doubt Lord Du Paraq, in another context observed thus:
"All that the principle enjoins is a reasonable scepticism, not an obdurate persistence in disbelief. It does not demand from the Judge a resolute and impenetrable incredulity. He is never required to close his mind to the truth."
60. The prosecution case has been proved beyond shadow of doubt, the approach of the trial court in picking out irrelevant details from the testimony of the witnesses, site plan to non suit the prosecution case is an obdurate persistence in disbelief and not a reasonable scepticism. The trial court closed its mind to truth which is writ large from the prosecution evidence.
61. The learned counsel for the accused respondents finally submitted that as per prosecution case and the evidence, the accused respondents armed with sharp assault weapon have not caused any injury. It is, therefore, urged that the case against the accused respondents would not travel beyond Section 304(II) I.P.C.
62. We find no merit in the submission of the learned counsel for the accused respondents. The prosecution proved that the accused respondents came to the site along with Yadurai and Hari Shankar. Yadurai armed with gun fired; Hari Shankar armed with lathi assaulted P.W.-2 after the firing; accused respondents hurled gadasa with the intention of causing injury but failed to injure. The accused exhorted to finish Kedar Singh and his family. Kedar Singh succumbed to the injury and other members of his family suffered gun shot injury, duly corroborated by the medical examination report. The accused respondents were merely not passive witnesses, but a part of the unlawful assembly duly armed with gadasa entertaining the common object of the assembly i.e. to finish Kedar Singh and his family. In this background Section 149 creates a constructive or vicarious liability, every member of an unlawful assembly at the time of committing of the offence would be guilty of that offence for unlawful acts done in pursuance of common object. Section 149 does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. As such the members of that assembly knew that if an offence is committed or likely to be committed by any of the members of the unlawful assembly, every person who is a member is guilty of that offence.
63. In Masalti v. State of U.P.13, it was observed that any member of the unlawful assembly can be prosecuted for the criminal act; it need not to be proved that he had committed an overt act:
"17. ...what has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that however, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continue in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified in Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin v. State of U.P., AIR 1956 SC 181 assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly."
64. In Lalji v. State of U.P.14, Supreme Court observed as follows:
"9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge."
65. The prosecution has been able to prove beyond doubt that accused respondents appeared on the spot of the incident along with accused Yadurai and Hari Shankar. All were armed with gun, lathi and gadasa. Upon exhortation to finish Kedar Singh and his family firing was resorted from close range, lathi injury was caused after the firing and the accused respondents hurled gadasa with an intention to cause injury but missed. The accused respondents being members of the unlawful assembly is proved. All of them were armed with assault weapon. The common intention of the members was to teach a lesson to Kedar Singh for siding and conniving with Baba to falsely implicate the accused. The members of the assembly in prosecution of their common object exhorted to finish Kedar Singh and his family. Yadurai resorted to firing (five shots) causing injury to Kedar Singh (deceased) and other four members of his family. Thereafter, all the accused escaped together. The accused respondent wielded gadasa and hurled to cause injury but missed the target is of no consequence. Their overt act and active participation indicate the common intention of the members of that assembly and would fasten upon them the vicarious criminal liability under Section 149 I.P.C.
Conclusion:
66. The trial court, in nutshell, has taken pains and stretched itself in fishing out very minor discrepancies to dislodge the prosecution case, ignoring overtly the consistent testimony of the ocular witnesses. We have noted on scrutinising the evidence, the discrepancies pointed out by the trial court would not demolish the prosecution case. The discrepancy noted by the trial court include:
(i) that the time of the incident occurring at 9 p.m. has been doubted, as PW-1 stated he had sent the messenger to call the accused at 9 p.m. The trial court ignored that part of the statement of PW-1 that within one and half minutes the accused reached the spot following the messenger. 9 p.m. does not certainly mean sharp 9 p.m. by 5-10 minutes up and down.
(ii) that the position and place from where Yadurai fired gunshot, was disbelieved by the trial court upon noticing contradiction in the testimony of the ocular witness that PW-1, P.W.-2 stated Yadurai fired in standing position from two-three steps, whereas, in contradiction PW-3 stated Yadurai fired turning around. This contradiction will have no bearing upon the prosecution case. Investigating Officer collected blood and two empty cartridges from the spot of firing narrated by the witnesses. Whether Yadurai was firing standing at a place or turning around while firing is of no relevance as long as firing was caused by Yadurai, killing one and injuring four persons of the same family.
(iii) that the trial court doubted the recovery of the empty cartridges by the Investigating Officer merely for the reason that the same was recovered by the Investigating Officer on the following morning and not on the night of the incident when he visited the spot twice. The site being illuminated was also doubted for the same reason. The finding is perse perverse having regard to the overwhelming truthful ocular account of the incident duly corroborated by the site map, medical evidence. The conduct of the Investigating Officer or shortcoming in the investigation is of no advantage to the accused to demolish the prosecution case based on ocular evidence.
(iv) that the place of the chabutara or whether chabutara is present in front of the house of PW-1; whether dari (carpet) was on the chabutara or the adjoining ground, whether the blood of the deceased/injured would have fallen on the dari or the ground; the place and distance from where firing was resorted were irrelevant consideration to demolish the prosecution case. The site plan clearly marks the place of shooting and the spot from where the blood smeared soil was collected. The medical examination of the deceased and the injured records blackening and charring. The empty cartridges recovered from the spot is of 12 bore, injury suffered is of pellets. The firing was resorted from a close range corroborating the ocular testimony. Pellet marks was seen on the wall of the house of P.W.-1.
(v) that the trial court discarded/doubted the ocular witness account being members of the same family, but ignored the testimony of PW-3 Baba an independent witness. Further, there was no occasion to implicate the accused, PW-1 stated that their family is not inimical with the accused.
67. In final analysis to put in perspective the prosecution case and the evidence in support thereof. The incident was reported promptly, the complainant P.W.-1 and the injured P.W.-2 had gone to the Thana to lodge the report. From Thana, P.W.-2 was sent to the hospital. As per the prosecution version a panchayat was convened at the door of P.W.-1 to effect a settlement between Baba @ Digvijay Nath P.W.-3 and the accused. The families of the deceased and that of Baba had already assembled. P.W.-1 sent a person to call the accused. The accused reached shortly within few minutes, hurled abuses, and exhorted to finish the deceased and his family. Families of the deceased and Baba were sitting on the chabutara and on the ground adjacent to the chabutara. Yadurai fired five shots from close range (2-3 steps) from the chabutara, consequently, deceased, P.W-2 and three others incurred gun shot injury duly supported and corroborated by the medical examination report. Firing from close range is established noting blackening and charring. From the site blood was collected by the I.O. and two empty cartridges (12 bore) recovered. After resorting to firing, accused Hari Shankar assaulted P.W.-2 with lathi on his head, duly corroborated by the medical examination report. The appellants weilded gadasa to assault but injury was not caused. The prosecution version has been supported by ocular witnesses of which some are injured, Baba @ Digvijay P.W.-3 is an independent witness. The assailants are known to the prosecution witnesses. P.W.-1 categorically stated that there is no personal enmity with the accused. The site of incident is illuminated, duly corroborated by the ocular witness and the I.O. The spot of incident is duly identified by the prosecution witnesses. The deceased and the injured suffered gun shot injury caused by pellets. I.O. categorically stated that pellet marks on wall of the house of P.W.-1 was seen. On cumulative scrutiny of the ocular witness account, duly corroborated by the medical report, post mortem report and the site map, the only possible view is the guilt of the accused in commission of the offence.
68. In our considered opinion, having regard to the prosecution case setup in the FIR and the testimony of the prosecution witnesses, including the injured witness, stands duly corroborated by the injury report, post-mortem report and site plan. The perversity in the finding reached by the trial court on all counts is writ large. No two opinion can be formed except that leading to guilt of the accused in commission of the offence. The trial court has totally ignored the basic principles with regard to reading and examination of the testimony of ocular witness account and has gone over board in acquitting the appellants.
69. Accordingly, the trial court judgment and order dated 05.09.1985 is set aside; the respondent-accused are held guilty for the offence under Section 302 read with 149 I.P.C. Consequently, the respondent-accused Ram Naresh, Devendra and Virendra are sentenced under Section 302 read with 149 I.P.C. to life imprisonment and fine at Rs. 50,000/- is imposed on each accused, in case of default the accused-respondents to undergo two years further rigorous imprisonment.
70. Government appeal is, accordingly, allowed.
71. The benefit of set-off under section 428 Cr.P.C. to be extended to the accused-respondents.
72. The accused-respondents are on bail, the accused-respondents shall be taken into custody, forthwith, to serve out the sentence awarded to each of them.
73. The Registry to send copy of this order to Chief Judicial Magistrate and Senior Superintendent of Police, District Varanasi, to ensure compliance and shall send a report to this Court within one month.
74. The Registry to return the lower court record along with this order for compliance and necessary action.
Order Date:- 18.08.2022
K.K. Maurya
(Vikram D. Chauhan,J.) (Suneet Kumar,J.)