Allahabad High Court
Ram Shanker vs State Of U.P. on 22 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1913
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 10 Case :- CRIMINAL APPEAL No. - 541 of 1998 Appellant :- Ram Shanker Respondent :- State Of U.P. Counsel for Appellant :- Anand Mohan,Begum Sabiha Kamal,Mohd. Shahid Akhtar Counsel for Respondent :- Govt. Advocate along with Case :- CRIMINAL APPEAL No. - 542 of 1998 Appellant :- Siya Ram Respondent :- State Of U.P. Counsel for Appellant :- Kr.Shanti Prakash,Begum Sabiha Kamal,K.M.Rakesh,Mohd. Shahid Akhtar Counsel for Respondent :- Govt. Advocate along with Case :- CRIMINAL APPEAL No. - 564 of 1998 Appellant :- Karan Singh & Another Respondent :- State Of U.P. Counsel for Appellant :- Anand Mohan,Begum Sabiha Kamal,Mohd. Shahid Akhtar Counsel for Respondent :- G.A. along with Case :- CRIMINAL APPEAL No. - 1839 of 2004 Appellant :- Kalloo Respondent :- State Of U.P Counsel for Appellant :- Begum Sabiha Kamal Counsel for Respondent :- Govt.Advocate Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
Per; Hon'ble Justice Mohd. Faiz Alam Khan, J.) Heard Shri Mohd. Shahid Akhtar, Advocate for the appellant in Criminal Appeal Nos. 542 of 1998, 564 of 1998, 541 of 1998 and as Amicus Curiae for appellant, Kalloo in Criminal Appeal No. 1839 of 2004 as well as Shri Chandra Shekhar Pandey, learned A.G.A. for the State.
These Criminal Appeal Nos. 542 of 1998, 564 of 1998, 541 of 1998, 1839 of 2004 have been filed by above appellants against the judgment and order dated 29.09.1998 passed by learned Additional Sessions Judge XIth, Lucknow in Sessions Trial No. 316 of 1996 "State vs. Siya Ram and others", arising out of Case Crime No. 86 of 1995, under Sections 147, 148, 149 and 302 I.P.C., Police Station Itaunja, District Lucknow, whereby all the appellants were convicted under Section 147, 148, 149 and 302 I.P.C. and sentenced for life imprisonment.
2. The prosecution case as borne out of the record of the Subordinate Court is that a written report was presented by Sri Rafique Khan son of Sri Husaini Khan resident of Village Ludhauli, Police Station Itaunja, District Lucknow to S.H.O. Police Station Itaunja, on 22.05.1995 at about 9:45 pm. alleging that the younger brother of the applicant namely Zaheer Khan is running a shop of Electric appliances at Manpur Chauraha. One Munna son of Ram Shanker Pasi is employed in his shop as a servant. On 22.05.1995 at about 8:30 pm., he (Rafique) and Zaheer went to the residence of Munna with regard to some work pertaining to installation of decorative lights and when Zaheer called Munna from the main gate of the house, Siya Ram Lodhi son of Munni Lal, Karan Singh son of Bhagwan Bux Singh, Harish Chandra son of Hem Raj, Santosh Singh son of Sheetla Bux Singh, Arjun Singh son of Bhagwan Bux Singh, Khem Chandra son of Munna, Ram Shanker son of Putti Lal and Kallu son of unknown emerged out from the house and dragged his brother namely Zaheer inside the house and started assaulting him by ''Kicks and Fists'. His brother fell down and Siya Ram took out a knife from his pocket and stabbed Zaheer below his chest with an intention to kill him. His brother (Zaheer)after receiving grievous injuries died at the spot, inside the house of Ram Shanker. On hearing alarm, Mohd. Shamim son of Maqsood Khan and Krishna Kumar Mishra son of Lal Bihari Mishra of the same village Ludhauli arrived on the spot and witnessed the incident in the light of torch and 'Dhibri' , which was lighting inside the house. The other villagers of the village also arrived on the spot and witnessed the incident. The dead body of his brother is lying inside the house of Ram Shanker.
3. On the basis of the aforesaid written application (Exhibit-ka-1), Chik FIR (Exhibit-ka-2) was prepared and a case was registered at Case Crime No. 86 of 1995 on 22.05.1995 at 9:45 pm, under Sections 147, 148, 149 and 302 I.P.C.. A corresponding G.D. entry (Exhibit-ka-3), was also made in the General Diary as Serial No. 86 of 1995 at 9:45 pm. on 22.05.1995 and investigation of the F.I.R. was entrusted to S.H.O. Shri M.M. Khan. The Investigating Officer visited the place of incident and prepared Inquest Report (Exhibit-ka-5) and other necessary papers for the purpose of postmortem of the dead body i.e. 'Photo Lash' (Exhibit-ka-7), Sample Seal (Exhibit-ka-6), letter to C.M.O, (Exhibit-ka-9), Form No.13 (Exhibit-ka-8). The Investigating Officer also prepared the Site Plan (Exhibit-ka-10) and collected the blood stained and simple soil from the place of occurrence and also prepared a Recovery-memo (Exhibit-ka-11). The dead body of deceased Zaheer was thereafter sent for postmortem.
4. P.W.-4/Doctor Nalini Kant Tripathi conducted the postmortem on the body of the deceased Zaheer on 23.05.1995 at 11:30 am and prepared a postmortem report (Exhibit-ka-4). He found the age of the deceased as about 32 years, a person of average built body. Rigor mortis was present all over the body. The postmortem staining was present on the back, Eyes were closed and mouth was half open.
The Doctor found following ante mortem injuries on the dead body of the deceased:-
Injury No.1/Stab wound of 5 cm. x 2 cm. x abdominal cavity deep present on point of abdomen 6 cm. above from umbilicus, margins are sharp and clear cut and well defined. On opening ecchymosis present beneath injury, small intestine cut through and through at one place place. Small intestine and abdomen omentum is coming out of wound. Direction is oblique forward to move downward.
Injury No.2/Stab wound of 4 cm. x 2 cm. x Abdomen cavity deep present on right side lower base 7 cm. behind mid line and 10 cm. above from post superior Iliac spine. Margins are sharp clear cut and well defined. Direction is obliquely forwarded upward from right to left. On opening ecchymosis present underneath injury. Stomach cut through and through at one place about 01 liter of fluid and clotted blood with food material present in abdominal cavity.
On internal examination, 90 ml. liquid food matter was found in the Stomach, digested food and gases were found in small intestine and faecal matter and gases were found in big intestine. Galbladder was empty. The cause of death was determined as death occurred due to shock and haemorrhage, as a result of, Anti-mortem stab wounds .
The Investigation Officer, during the course of investigation also sent the blood stained soil and other articles, recovered form the spot, for chemical examination and the report of the chemical analyst (Exhibit-ka-12) is available on record, which states that human blood has been found on all these articles. The Investigating Officer after completing the investigation filed a charge-sheet against all the named accused persons under Section 147, 148, 149 and 302 I.P.C.
5. The case being triable by the Court of Sessions was committed to the Sessions Court and charges under Section 147, 149/302 I.P.C. were framed against Karan Singh son of Bhagwan Bux Singh, Harish Chandra son of Hem Raj, Santosh Singh son of Sheetla Singh, Arjun Singh son of Bhagwan Bux Sing, Khem Chandra son of Munna, Ram Shanker son of Putti Lal, while charges under Section 148 and 149/302 of I.P.C. was framed against accused-appellant, Siya Ram. The appellants denied the charges and claimed trial.
6. The prosecution in order to bring home the charges framed against appellants/accused persons relied on following documentary evidence:-
1. Application FIR, Exhibit-ka-1
2. Chick FIR, Exhibit-ka-2
3. G.D. Entry of FIR, Exhibit-ka-3
4. Postmortem report, Exhibit-ka-4
5. Inquest Report, Exhibit-ka-5
6. Seal Sample, Exhibit-ka-6
7. Photo Lash, Exhibit-ka-7
8. Form-13, Exhibit-ka-8
9. Letter to C.M.O, Exhibit-ka-9
10. Site Plan, Exhibit-ka-10
11. Seizure Memo of Simple & blood stained Soil, Exhibit-ka-11
12. Chemical Analyst Report, Exhibit-ka-12
13. Charge-sheet, Exhibit-ka-13 Apart from the above mentioned documentary evidence, the prosecution also testified following witnesses :-
P.W.-1/Rafique Khan (Informant/Eye witness) P.W.-2/Mohd. Shamim (Eye witness) P.W.-3/Constable Vishnu Narayan Shukla, (Scribe of the Chick FIR and G.D.) P.W.-4/Doctor Nalini Kant Tripathi, (Doctor, who conducted the postmortem) P.W.-5/Shri M.M. Khan, (Investigating Officer) P.W.-6/Raees Khan @ Rahees, (Scribe of the application of FIR)
7. After the completion of prosecution evidence, the statement of appellants was recorded under section 313 of the Code Of Criminal Procedure wherein they denied the occurrence as alleged by the prosecution and alleged false implication due to enmity. Appellant Siyaram also denied his presence at the spot and further stated that police has shielded the actual culprits. He claimed that deceased has been murdered as he was of bad character. Appellant Ram Shankar Stated that injured Zaheer entered his house to save his life. He went to the house of Rafique to call him and when he went to lodge the report the dead body of deceased remained in his care.
Appellants in their defence also produced D.W.-1 Loknaam, D.W.-2 Khemchandra, D.W.-3 Santram and D.W.-4 Krishna Kumar.
8. The Trial Court after appreciating and analyzing the evidence made available on record came to the conclusion that the prosecution has been able to prove its case beyond reasonable doubt against appellants Siya Ram, Karan Singh, Harishchandra, Ram Shanker and Kalloo, and vide impugned judgment and order convicted and sentenced the appellants in the manner described in the first paragraph of this judgment. Trial Court by the same judgment and order acquitted the accused persons Santosh Singh, Arjun Singh and Khemchandra of the charges under Sections 147, 148, 149/302 I.P.C. No appeal, till date, is stated to have been filed by the State against the Judgment and Order of acquittal, pertaining to Santosh Singh, Arjun Singh and Khemchandra.
Shri Mohd. Shahid Akhtar, learned counsel for the appellants while referring to the judgment of the Trial Court submits that the Court below has convicted the appellants only on the basis of ''surmises, assumptions and conjectures'. The prosecution, according to him, failed in its duty to prove the charges against the appellants.
9. Learned counsel for appellant-accused further submits that as per the facts and circumstances of the present case, the case of other appellants is different from the case of appellant Siyaram and in absence of any unlawful assembly they could not be convicted for the Act of Siyaram.
Learned counsel for the appellants further submits that the Court below have acquitted 03 accused persons and convicted the appellants on the same set of evidence. No motive has been proved of the crime and the prosecution story is highly improbable.
He further submits that the evidence of 02 eye witnesses namely P.W.-1/Rafique and P.W.-2/Mohd. Shamim is not trustworthy in facts and circumstances of the case and also on the count that they are related to the deceased Zaheer and, therefore, their evidence is partisan and interested and could not be believed He further submits that the story of the prosecution is highly improbable specially the fact that deceased Zaheer was dragged inside the house by all accused persons and the theory of prosecution that all accused persons caught hold of him and dragged the deceased for some distance is not believable in the facts and circumstances of the case, as no mark of injury or any sign has been found on the body of the deceased, which may suggest any scuffle. The Investigating Officer namely P.W.-5/M.M. Khan has also not found any sign of scuffle at the spot. Therefore, the story of the prosecution is full of lies.
He further submits that, in fact it is a blind murder. Deceased Zaheer has been murdered somewhere else by some unknown persons and to save himself, he came in the Courtyard of Ram Shanker and simply on the basis that his dead body has been found there, the appellants have been falsely roped in.
He further submits that P.W.-2/Mohd. Shamim is a chance witness and other independent witness/Krishna Kumar has not been produced by the prosecution and he testified himself as defence witness (D.W.-4) and in his statement has stated that P.W.-2/Mohd. Shamim was with him at the time of occurrence. Therefore, the presence of P.W.-2/Mohd. Shamim at the spot is highly doubtful and could not be believed in the facts and circumstances of the case.
It is further submitted by learned counsel for the appellants that the accused persons were not having any prior information of the arrival of the deceased and, therefore, in absence of any prior enmity, there was neither any opportunity nor occasion for the appellants to form any unlawful assembly. No member of the assembly except Siya Ram was having any arm with him and the fact that Siya Ram is possessing a knife, was not known to any other accused person either before or during the hot talks or during alleged scuffle of deceased with Siya Ram. Therefore, there was no unlawful assembly formed at any time of the alleged incident.
10. Per contra, Shri Chandra Shekhar Pandey, learned A.G.A. submits that the prosecution by reliable and acceptable evidence has proved the case of prosecution and in cases of direct evidence, the prosecution is not obliged to prove the motive and, therefore, the case is to be decided on the basis of direct evidence of eye witnesses.
He further submits that on the day of occurrence the deceased was dragged into the house by all accused persons and the unlawful assembly was formed at that point of time when deceased was dragged inside the house by all appellants and accused Siya Ram as a member of that Unlawful Assembly, in order to achieve its common object, stabbed deceased Zaheer in his Stomach and waist and caused his death. Therefore, each and every appellant is liable for the murder of Zaheer, being part and parcel of the Unlawful Assembly.Therefore, the Court below has not acted illegally in convicting the appellants and no interference is required in the Judgment and Order of the Trial Court and the appeal is liable to be dismissed.
11. Before proceeding further, it is expedient to have a brief survey of the evidence of the prosecution as well as of the defence available on record, so that the evidence available on record may be appreciated in a better way in the backdrop of the arguments advanced on behalf of the appellants and State.
P.W.-1/Rafique Khan is the brother of the deceased Zaheer and was accompanying him at that point of time. He has stated that Munna was working with Zaheer and on the fateful day at 8:30 pm, when he along with Zaheer came to the house of Munna to take him (Munna) with them and gave a call to him from his main door, father of Munna i.e. Ram Shanker came out followed by Siya Ram, Kalloo, Harishchandra, Karan Singh and 03 other unknown persons and they caught hold of the deceased. Ram Shanker, Kallu, Harishchandra and Karan Singh caught hold of the deceased and Siya Ram took out a knife from his pocket and started stabbing the deceased below his chest. The incident was witnessed by him as well as by Shamim and Krishna Kumar, who were holding torches in their hand and a''Dhibri' was also lighted inside the house. He also narrated the motive of crime as some dispute about monetary transaction between Siya Ram and Zaheer. He acknowledges that the FIR was written by Raees on his dictation.
In cross-examination, he stated that Munna was working as an employee of Zaheer, so was Putanni. On the fateful night, they took a contract of decorative lighting near Shamsherganj and all material pertaining to that was already transported to the Site and as Munna did not come to the shop, they came to the house of Munna to call him. He further stated that responding to the call given by deceased- Zaheer, at first, Ram Shanker came out and thereafter other accused persons named by him in his chief-examination emerged and dragged Zaheer inside the house. They took his brother inside the house near the door of ''Baretha' and at that time Siya Ram took out a knife and stabbed Zaheer. He did not go inside the house and raised an alarm. His brother used to come at the house of Munna as and when required. The dead body of Zaheer was lying near the door. He further stated that a women lived in the house of Munna and he did not know whether she was of loose character. He stated to have told ''Daroga Ji' that she was of loose character and she was on talking terms with his brother Zaheer and his brother has been killed due to this.
P.W.-2/Mohd. Shamim is a witness, who though was not accompanying the deceased or P.W.-1/Rafiq Khan, but on the fateful day, he went to the shop of deceased, as he was in need of some money and when he did not find Zaheer at the shop and was informed by a neighbor Shopkeeper that Zaheer had gone to Munna's home, he came to Manpur. When he reached near the Railway line, he heard an alarm being raised by Rafique, which was coming from the house of Munna. He went near the main door of Munna and saw 5 to 6 persons catching hold of Zaheer, he recognized few of them as Siya Ram, Kalloo, Harishchandra and Ram Shanker but could not identify others. Siya Ram stabbed Zaheer with a knife, who fell down and he gave another blow and thereafter, accused persons fled away. He was having a torch and according to him, a ''Dhibri' was also lighting inside the house. In nut shell, he stated that he went to the shop of Zaheer as he was in need of some money and after being informed that Zaheer had gone to the house of Munna, he came there and on the way he met Krishna Kumar. When he reached the spot, he found Rafique raising an alarm that Zaheer was being dragged and he found all accused persons surrounding the deceased and therefore, he could not see who amongst the accused persons was holding which part of the body of Zaheeer. Siya Ram's face was in front of Zaheer and all other accused persons were scattered here and there. There was no source of light at the place, where Zaheer was being dragged and only a ''Dhibri' was lighting at the door. He again stated that the main door of the house was open and he did not make any attempt to save his brother. He further stated that his brother was dragged for about 10 ft. and all accused persons were catching hold of him. He remained at the door till the incident was over and when the accused persons stopped assaulting the deceased, he returned to his home. He further stated that Krishna Kumar took his own way from Manpur Crossing. When he first heard the alarm raised by Rafique, he could not understand that Zaheer is being done to death or who are the persons committing the crime. Zaheer was injured below his chest and he had told at his home that the knife might have been used by only one person.
P.W.-3/Constable Vishnu Narayan Shukla has proved the Chick FIR, Exhibit-ka-2 and G.D., Exhibit-ka-3 to be in his own hand writing and signatures.
P.W.-4/Doctor Nalini Kant Tripathi has proved to have conducted the postmortem on the body of the deceased (Zaheer) on 23.05.1995 at about 11:30 am and also to have prepared the postmortem report, Exhibit-ka-4. The injuries noted by him on the person of the deceased Zaheer as well as other observations pertaining to internal and external examination have been elaborately dealt with in Para no. 4 of this Judgment.
P.W.-5/Shri M.M. Khan is the Investigating Officer of the crime, who proved preparation of Inquest Report as Exhibit-ka-5. He also stated to have prepared and proved necessary papers required for the postmortem of the deceased and have stated to have also prepared the Site Plan, Exhibit-ka-10 and Memo of collection of blood stained and simple soil as Exhibit-ka-11 and also to have submitted the Charge-sheet against the accused persons as Exhibit-ka-13.
In cross-examination, he stated that the body of the deceased was lying inside the house of Ram Shanker. There was a pool of blood around the body. He found one wound below the chest of deceased, which may be caused by any sharp aged weapon. According to him, he found no other visible injury marks on the body of the deceased and he also did not find any trail of blood from the main door of the house till the place, where the body was lying. He further stated in his cross-examination that he did not find any sign of ''struggle' near the dead body. He admitted to have been told by witness Shamim that deceased was of a bad character and he along with accused persons were having illicit relationship with the same girl and reason of his murder was the bad character of the deceased. He further stated that if someone is standing at the right side of the main door of the house of Ram Shankar, where the dead body of the deceased was found, he could not see what is happening inside the house. While referring to the Site Plan, this witness stated that from Point-B and C shown in the Map, one could not be able to see Point-A. P.W.-6/Raees Khan @ Rahees is brother of deceased, who stated to have written the FIR on the dictation of P.W.-1/Rafique Khan and proved the same in his hand writing as Exhibit-ka-9. Admittedly, he came at the scene of occurrence after the incident was over, therefore, his testimony is not of much relevance so far as the commission of the crime is concerned.
Accused persons in their defence have also produced 04 witnesses:-
D.W.-1 Loknaam has been produced by the accused persons to prove the fact that the police arrested the Khemchandra at about 9-10 pm from his home.
D.W.-2 is Khemchandra, has also stated that he was arrested at about 9-10 pm. by the police from his home.
D.W.-3/Santram has stated that Siya Ram accused is known to him as they are residents of the same village. He is son of Ram Shanker Pasi. Munna is also the other son of Ram Shanker. He stated that deceased Zaheer was done to death and his dead body was lying in the house of Ram Shanker. Siya Ram also went to see the dead body along with him. He further stated that on the next day also, he saw Siya Ram in the village.
D.W.-4/Krishna Kumar is the witness about whom, P.W.-2/Mohd. Shamim has stated that he met him at Manpur Crossing and from there, he took his own way. This witness stated that Ram Shanker came to meet him about 10 days ago. He met with the Investigating Officer, however, his statement was not recorded by him. He went to the scene of crime. Before incident, he was at Manpur Crossing, where he met with Shamim (P.W.-2) who told him to accompany him to village Manpur. Thereafter, Shamim departed from there and he after taking beetle returned to his home. When he arrived at his house, a little thereafter there was alarm in the village that Shamim had been killed. He also went to the spot along with others and saw that the dead body of Zaheer was lying inside the house of Ram Shanker and there was a pool of blood. He went to the spot at about 8:00 pm. He was not having any watch with him. He stated that Ram Shanker was also there.
12. Having gone through the evidence made available on record, the case of the prosecution, as put forth in the shape of oral and documentary evidence before the Court below, is that, deceased Zaheer was running a shop of electrical goods at Village Manpur and he was also doing the work of electricity decoration. Munna, who is the son of accused-appellant/Ram Shanker Pasi was working in his shop as an employee and he used to install decorative lights as and when required. On the fateful night, deceased Zaheer came to the house of Munna with his younger brother Rafiq, as he had sent decorative material at a Site and as on that day Munna did not come to the shop, they came to the house of Munna for the purpose of sending him to the Site for installation of decorative lights. The story as unfolds further from the statement of witnesses is that at 8:30 pm, when deceased Zaheer along with Rafique arrived at the house of Munna and called him (Munna) from the main door of his house, at first Ram Shanker emerged from inside the house and, thereafter, all other accused persons came and caught hold of Zaheer and dragged him inside the house of Ram Shanker, while others caught hold of the deceased from all around , Siya Ram took out a knife and stabbed Zaheer below his chest and all other assaulted him with fists and kicks.
13. The first submission of Ld. Counsel for the appellants is that PW1 Sri Rafique and P.W.-6 Raees Khan are the real brothers of deceased and they are interested witnesses. Trial Court by the same judgment and order has acquitted the accused persons Santosh Singh, Arjun Singh and Khemchandra of the charges under Sections 147, 148, 149/302 I.P.C. and on the same set of evidence convicted the appellants, which is not tenable in the facts and circumstances of the case.
So far as the submission of Ld. Counsel for the appellants pertaining to the two witnesses i.e. PW1 Sri Rafique and P.W.-6 Raees Khan, being relatives of the deceased is concerned, this issue is no more res inregra. Hon'ble Supreme Court in Gangabhavani vs. Rayapati Venkat Reddy and Ors. , MANU/SC/0897/2013 has held as under :-
"11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.(Vide: Bhagaloo Lodh and Anr. v. State of U.P. MANU/SC/0700/2011 : AIR 2011 SC 2292; and Dhari and Ors. v. State of U.P. MANU/SC/0848/2012 : AIR 2013 SC 308).
12. In State of Rajasthan v. Smt. Kalki and Anr. MANU/SC/0254/1981 : AIR 1981 SC 1390, this Court held:
"5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased"......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W. 1 had no interest in protecting the real culprit, and falsely implicating the Respondents."(Emphasis added)(See also: Chakali Maddilety and Ors. v. State of A.P. MANU/SC/0609/2010 : AIR 2010 SC 3473).
13. In Sachchey Lal Tiwari v. State of U.P. MANU/SC/0865/2004 : AIR 2004 SC 5039, while dealing with the case this Court held:
"7....Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."
14. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."
In Bhagaloo Lodh and Ors. vs. State of U.P. reported in MANU/SC/0700/2011, It was held as under :-
"14. Evidence of a close relation can be relied upon provided it is trustworthy. Such evidence is required to be carefully scrutinised and appreciated before resting of conclusion to convict the accused in a given case. But where the Sessions Court properly appreciated evidence and meticulously analysed the same and the High Court re-appreciated the said evidence properly to reach the same conclusion, it is difficult for the superior court to take a view contrary to the same, unless there are reasons to disbelieve such witnesses. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are inter-related to each other or to the deceased. (Vide: M.C. Ali and Anr. v. State of Kerala MANU/SC/0247/2010 : AIR 2010 SC 1639; Myladimmal Surendran and Ors. v. State of Kerala MANU/SC/0670/2010 : AIR 2010 SC 3281; Shyam v. State of Madhya Pradesh MANU/SC/7112/2007 : (2009) 16 SCC 531; Prithi v. State of Haryana MANU/SC/0532/2010 : (2010) 8 SCC 536; Surendra Pal and Ors. v. State of U.P. and Anr. MANU/SC/0713/2010 : (2010) 9 SCC 399; and Himanshu @ Chintu v. State (NCT of Delhi) MANU/SC/0006/2011 : (2011) 2 SCC 36).
In view of the law laid herein above, no fault can be found with the evidence recorded by the courts below accepting the evidence of closely related witnesses."
It is therefore settled that merely because witnesses are close relatives of victim, their testimonies cannot be discarded. Relationship with deceased is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. However, in such a case Court has to adopt a careful approach and analyse the evidence of such witness to find out whether he is a natural witness and whether in the facts and circumstances of the case his evidence is cogent and credible. Keeping in view the above factual and legal matrix, we do not find any substance in the sumissions of Ld. Counsel for appellants that the testimony of the PW-1 Sri Rafeeque and PW-6 Raees be discarded only on the basis of their relation with the deceased.How ever the same has to be appreciated with care and caution.
So far as second submission of the Ld. Counsel for appellants with regard to the fact that some accused persons have been acquitted and some have been convicted on the same set of evidence by the trial Court is concerned, it is permissible for any Criminal Court to sift the evidence produced by the prosecution and to seprate truth from falsehood and if in this exercise the trial Court is able to seprate grain from the chaff, the reliable and acceptable part of the evidence can be accepted and the untruthful part of the evidence may be rejected and on the basis of truthful evidence some accused may be convicted and others may be acquitted.
Hon'ble Supreme Court Of India in Mahendran and Ors. Vs. State of Tamil Nadu and Ors. Reported in MANU/SC/0257/2019 in para 38 of the report held as under :-
"38. .............. The argument that the entire case set up is based on falsehood and thus not reliable for conviction of the Appellants, is not tenable. It is well settled that the maxim "falsus in uno, falsus in omnibus" has no application in India only for the reason that some part of the statement of the witness has not been accepted by the trial court or by the High Court. Such is the view taken by this Court in Gangadhar Behera's case, wherein the Court held as under:
15 . To the same effect is the decision in State of Punjab v. Jagir Singh MANU/SC/0193/1973 : (1974) 3 SCC 277 and Lehna v. State of Haryana, MANU/SC/0075/2002 : (2002) 3 SCC 76. 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. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory Rule of evidence". (See Nisar Alli v. State of U.P. MANU/SC/0032/1957 : AIR 1957 SC 366) Merely because some of the Accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the Accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab MANU/SC/0122/1955 : AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound Rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. MANU/SC/0254/1972 : (1972) 3 SCC 751 and Ugar Ahir v. State of Bihar MANU/SC/0333/1964 : AIR 1965 SC 277.) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. MANU/SC/0093/1952 : AIR 1954 SC 15 and Balaka Singh v. State of Punjab MANU/SC/0087/1975 : (1975) 4 SCC 511.) .........."
3 9 . Therefore, the entire testimony of the witnesses cannot be discarded only because, in certain aspects, part of the statement has not been believed."
In view of above factual and legal background the trial Court, within permissible limits, could sift the evidence and act on the acceptable part of the testimony of prosecution witnesses with regard to some accused persons and can reject the same with regard to the other accused persons.
14. The next submission of Ld. Counsel for the appellants is to the effect that the deceased might have been injured somewhere by some unknown persons and to save his life, he fell down in the courtyard of Ram Shanker's house and due to the fact that body of the deceased has been found in the house of Ram Shanker, he and other appellants have been falsely roped in.
Perusal of the record and evidence available thereon, in the background of the above argument would reveal that P.W.-1/Rafiq has stated in his statement that when Zaheer called Munna from his main gate, Ram Shanker and other accused persons emerged out and dragged deceased in the house and Siya Ram thereafter stabbed him in the Stomach.P.W.-2/Mohd. Shamim has also narrated the same story and deposed that the body of deceased was lying inside the house, after he was stabbed with a knife by Siya Ram. P.W.-5/Shri M.M. Khan, Investigating Officer of the crime has also found a pool of blood near the dead body and collected the blood stained and normal soil from there and prepared a memo, Exhibit-ka-11. Significantly, no trail of blood was found by him from the main door of Ram Shanker's house till the spot whereon body of deceased was lying. In Inquest, (Exhibit-ka-5) also it is stated that the body of deceased was lying inside the house of Ram Shanker Pasi, where there is a pool of blood around it. Importantly, D.W.-4/Krishna Kumar also in his statement stated that he visited the house of Ram Shanker Pasi on the same night, where the dead body of the deceased was lying and there was a lot of blood around it.
The above evidence available on record, clearly suggests and prove that the deceased Zaheer was done to death at the place where his body was found and the submission of Ld. Counsel for the appellants that deceased got himself injured somewhere else and just to take shelter, he came in the house of Ram Shanker Pasi, appears to be not correct in the facts and circumstances of the case.
15. Ld. Counsel for the appellants further submits that the appellants were not having any prior information about arrival of deceased at the house of Munna and their was no previous enmity of deceased with appellants, therefore there was neither any time nor occasion for the appellants to form any unlawful assembly and infact no unlawful assembly was ever formed by the appellants and the evidence of eye witnesses is not reliable. In the alternative it is also argued that even if the case of prosecution is taken on its face, the act of Siyaram may not travel beyond second part of Section 304 IPC. Moreover the motive in the instant case assumes importance and not proving of motive renders the case of prosecution as not believable and the Trial Court has materially erred in convicting the appellants with the aid of section 149 of IPC.
Hon'ble Supreme Court Of India in Chanakya Dhibar (Dead) Vs. State of West Bengal and Ors., MANU/SC/1096/2003 while dwelling on the scope of section 149 IPC has held as under :-
"11. The emphasis in Section 149 IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine 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. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it, a common object may be formed by express agreement after mutual constitution, but that is by no means necessary. It may be formed at any stage by all or a few members or the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly.
12. 'Common object' is different from a "common intention" as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. 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 behavior 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 cutset. 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 co instanti.
13. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that he offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behavior at or before or after the scene of incident. The word 'knew' used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object, but would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikarange Gowda and Ors. v. State of Mysore, MANU/SC/0116/1956 : 1956CriLJ1365 ."
In Lalji v. State of U.P. MANU/SC/0283/1989 it was observed that:
"Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behavior of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.""
16. Hon'ble Supreme Court in Roy Fernandes vs State of Goa and Ors. Reported in MANU/SC/0072/2012 while eloborating the scope of section 149 of the penal code has held as under :-
"19. In Gajanand and Ors. v. State of Uttar Pradesh MANU/SC/0173/1954 : AIR 1954 SC 695, this Court approved the following passage from the decision of the Patna High Court in Ram Charan Rai v. Emperor MANU/BH/0073/1945 : AIR 1946 Pat 242:
"Under Section 149 the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behavior, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise.
20. This Court then reiterated the legal position as under:
The question is whether such knowledge can be attributed to the Appellants who were themselves not armed with sharp edged weapons. The evidence on this point is completely lacking. The Appellants had only lathis which may possibly account for Injuries 2 and 3 on Sukkhu's left arm and left hand but they cannot be held liable for murder by invoking the aid of Section 149 Indian Penal Code. According to the evidence only two persons were armed with deadly weapons. Both of them were acquitted and Sosa, who is alleged to have had a spear, is absconding. We are not prepared therefore to ascribe any knowledge of the existence of deadly weapons to the Appellants, much less that they would be used in order to cause death.
21. In Mizaji and Anr. v. State of U.P. MANU/SC/0040/1958 : AIR 1959 SC 572 this Court was dealing with a case where five persons armed with lethal weapons had gone with the common object of getting forcible possession of the land which was in the cultivating possession of the deceased. Facing resistance from the person in possession, one of the members of the assembly at the exhortation of the other fired and killed the deceased. This Court held that the conduct of the members of the unlawful assembly was such as showed that they were determined to take forcible possession at any cost. Section 149 of Indian Penal Code was, therefore, attracted and the conviction of the members of the assembly for murder legally justified. This Court analysed Section 149 in the following words:
6. This section has been the subject matter of interpretation in the various High Court of India, but every case has to be decided on its own facts. The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a pre-concert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of section 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all.
22. In Shambhu Nath Singh and Ors. v. State of Bihar MANU/SC/0214/1959 : AIR 1960 SC 725, this Court held that members of an unlawful assembly may have a community of object upto a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he shares the community of object. As a consequence, the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly. Decisions of this Court Gangadhar Behera and Ors. v. State of Orissa MANU/SC/0875/2002 : 2002 (8) SCC 381 and Bishna Alias Bhiswadeb Mahato and Ors. v. State of West Bengal MANU/SC/1913/2005 : 2005 (12) SCC 657 similarly explain and reiterate the legal position on the subject."
17. Hon'ble Supreme Court Of India in Kuldip Yadav and Ors. Vs. State of Bihar, MANU/SC/0390/2011 while commenting on the scope of conviction with the aid of section 149 of penal Code has held as under :-
"Para 25-.........149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-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.
26. The above provision makes it clear that before convicting accused with the aid of Section 149 IPC, the Court 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 persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, essential ingredients of Section 141 IPC must be established.
The above principles have been reiterated in Bhudeo Mandal and Ors. v. State of Bihar MANU/SC/0125/1981 : (1981) 2 SCC 755.
27. In Ranbir Yadav v. State of Bihar MANU/SC/0245/1995 : (1995) 4 SCC 392, this Court highlighted that where there are party factions, there is a tendency to include the innocent with the guilty and it is extremely difficult for the court to guard against such a danger. It was pointed out that the only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on acceptable evidence which in some measure implicates such accused and satisfies the conscience of the court.
28. In Allauddin Mian and Ors. Sharif Mian and Anr. v. State of Bihar MANU/SC/0648/1988 : (1989) 3 SCC 5, this Court held: ...Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of any one or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149, IPC....
29. It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. 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. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC.
30. In Rajendra Shantaram Todankar v. State of Maharashtra and Ors. MANU/SC/0002/2003 : (2003) 2 SCC 257 : 2003 SCC (Crl.) 506, this Court has once again explained Section 149 and held as under:
14. Section 149 of the Indian Penal Code provides 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. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the 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 behavior of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 - either clause - is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act...." (Emphasis ours)
18. Hon'ble Supreme Court Of India in Manjit Singh Vs. The State of Punjab, MANU/SC/1195/2019 held as under :-
"14.4. In the case of Subal Ghoral v state of West Bengal, MANU/SC/0296/2013 (supra), this Court, after a survey of leading cases, summed up the principles as follows:
52. The above judgments outline the scope of Section 149 Indian Penal Code. We need to sum up the principles so as to examine the present case in their light. Section 141 Indian Penal Code defines unlawful assembly to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 Indian Penal Code postulates that whoever being aware of facts which render any assembly an unlawful one intentionally joins the same would be a member thereof. Section 143 Indian Penal Code provides for punishment for being a member of unlawful assembly. Section 149 Indian Penal Code provides for constructive liability of every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object. The most important ingredient of unlawful assembly is common object. Common object of the persons composing that assembly is to do any act or acts stated in clauses "First", "Second", "Third", "Fourth" and "Fifth" of that section. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of theperson falls within the ingredients of Section 149 Indian Penal Code, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of Section 149 Indian Penal Code if they shared common object of the unlawful assembly.
53. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 Indian Penal Code. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the Accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a Rule of caution."
19. Therefore the evidence of the instant case is to be appreciated on the basis of principles highlighted in the above mentioned case reports.The facts of the case, as are canvassed by the prosecution eye witnesses PW-1 Rafique and PW-2 Shamim, who claimed to have seen the crime, are to the tune that when deceased at the fateful night arrived at the house of Munna, with his brother Rafique and called him, he was dragged in the house by the accused persons. Deceased was further dragged towards the inner side of the house to a place called ''Baretha', and it was there, while he was being caught hold by other accused persons, Siya Ram stabbed him in the stomach. Perusal of First Information Report would also reveal that no motive of the crime has been attributed to the accused persons. However, it has come in the statement of P.W.-1 Rafique that there was some dispute between the deceased Zaheer and Siya Ram with regard to the payment of some money, but nothing has come either in the statement of this witness or other witnesses of the prosecution as to what was the transaction between the deceased and Siya Ram. No other prosecution witness has stated about this motive, therefore, this motive in the facts and circumstances of the case appears to be neither genuine nor has been proved by the prosecution. P.W.-1/Rafique Khan in his cross-examination has stated that a women lived in the house of Munna and she was on talking terms with his brother Zaheer. He further stated to have informed ''Daroga Ji' (investigating officer) that this lady was of loose character and due to this, his brother has been killed. P.W.-5/M.M. Khan, Investigating Officer in his evidence has stated that deceased and accused persons were having illicit relationship with the same women, but neither he nor P.W.-1/Rafique has stated as to who was the women with whom deceased as well as accused persons were having illicit relationship. Therefore this Lady has also not been identified by the Investigating Officer as well as by P.W.-1/Rafique. Hence this motive is also not proved by prosecution.
20. Though, no motive of the crime was alleged in the FIR, however, in the statement before the Court, a motive pertaining to some dispute of money was attempted to be developed by P.W.-1/Rafique. However, during his cross-examination he developed another motive, when he stated that his brother has been killed as he was having terms with a lady living in the house of Munna, but no name and particulars of that lady was narrated by him. Therefore, in the facts and circumstances of the case, no motive has been proved by the prosecution which may be accepted in the facts and circumstances of the case, which might have prompted the accused persons to commit the crime.
It is true that in a case based on direct evidence, motive looses its significance, however, since here we are dealing with a case, where no prior enmity between the deceased Zaheer and accused persons has been proved and in the background of the fact that it is not a case where accused persons have gone somewhere by forming an unlawful assembly rather Victim Zaheer himself came to the place of occurrence, which is the dwelling house of some of the accused persons, therefore, the motive in the peculiar facts and circumstances of the case, becomes important in the background that the accused persons have been convicted by the Trial Court with the aid of Section 149 of I.P.C. and it was not the case of prosecution that on the fateful day accused persons were having any prior information that deceased Zaheer was coming to the house of Munna. Per contra, the case of the prosecution is that, on the fateful day, as Munna did not go to the shop of Zaheer and as deceased had taken some assignment of decoration in a village and material of the same had already been dispatched, they came to Munna's house to take him to fix decorative lights at the site and when deceased Zaheer gave a call to Munna, accused persons dragged him inside the house and P.W.-1/Rafique remained outside at the main door as accused persons dragged the deceased inside for some distance and thereafter Siya Ram took out a knife from his pocket and stabbed Zaheer in Stomach and thereafter all accused persons fled away.
21. It has also come in the evidence that at the time of incident only a ''Dhibri' was lighted at the ''Barotha'. P.W/.-5/Investigating Officer Shri M.M. Khan in his evidence has stated that those standing at B and C points in the Map could not see anything happening at the Point-A. It is to be recalled that P.W.-2/Mohd. Shamim has stated that he along with DW-4 Krishna Kumar witnessed the crime while standing at Point-B and C. So keeping in view the fact that there was only a ''Dhibri' lighting and though PW-1 Rafique was having torch with him, he could not have seen the minute details of incident happening at or beyond ''Barotha', as is evident from the Site Plan, Exhibit-ka-10. Both witnesses of fact P.W.-1/Rafique and P.W.-2/Mohd. Shamim have also admitted that they did not go inside the house beond the main door till accused persons fled away. Therefore both these witnesses may have an impression of involvement of all accused persons in the incident.
22. We now revert to the discussion that nobody amongst the accused persons was having any information that deceased and his brother Rafique was coming to take Munna with them and on being called, the accused persons, in the spur of the moment, dragged Zaheer inside and after dragging him for some distance, he was caught hold by accused persons and, thereafter, Siya Ram stabbed him in the Stomach. This part of the story of prosecution is highly improbable and not acceptable as when the accused persons were not having any prior information or knowledge about the arrival of deceased, there is no possibility that any unlawful assembly might be formed by accused persons before that time, either to cause murder or hurt to deceased Zaheer. Now, when there is no previous enmity proved between accused persons and the deceased, the unlawful assembly could not have been formed at the point when Zaheer gave a call to Munna from his main door. So the only probability or possibility of formation of an unlawful assembly may be at the time, when accused persons saw the deceased Zaheer. In this backdrop, statement of Investigating Officer P.W.-5/Shri M.M. Khan is significant, when he stated that he did not find any sign of Scuffle near the dead body. In the same line is the statement of P.W.-4/Dr. Nalini Kant Tripathi, who conducted the postmortem on the body of the deceased and stated that there were only 02 incised wounds, one at Stomach and another at waist of the deceased. He categorically stated that apart from these 02 injuries, there was no other injury of any kind found on the body of the deceased. He specifically stated that there was no bruise, contusion or abrasion found on the body of the deceased. It is highly improbable, rather next to impossible that if deceased was being dragged for some distance by 7 or 8 persons and was having a scuffle, which is natural in the facts and circumstances of the case, he would not receive any kind of marks or injuries on his body during the dragging. Certainly he shall receive at least bruises, contusions or abrasions or, at least, some marks on his wrist or hands, when he was caught hold by 7 to 8 persons. Strangely, neither any injury nor any such mark has been found on the body of the deceased and absence of any such injury or mark, which may be the result of dragging and scuffling or even of catching hold coupled with the statement of P.W.-5/Shri M.M. Khan, Investigating Officer that he did not notice any sign of struggle near the body, belies the statement of prosecution eye witnesses, so far as their statement pertaining to the dragging of the deceased by 7 or 8 persons inside the house of Ram Shanker is concerned.
In Lallu Manjhi vs. State of Jharkhand, AIR 2003 SC 854, Hon,ble Supreme Court has held in Para 10 that "The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable, nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness."
In AIR 2003 SUPREME COURT 3617, Sucha singh v/s State of Punjab Honble Apex Court after considering Masalti and others vs. State of U.P. MANU/SC/0074/1964, State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana (2002 (3) SCC 76), has opined as under:- "Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out 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 major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from 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 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 liar. 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. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence.' (See Nisar Ali v. State of Uttar Pradesh (AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurcharan Singh and another v. (AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because18witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justicewould come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and another v. State of Madhya Pradesh, 1972 3 SCC 751) and Ugar Ahir and others v. State of Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and others v.state of punjab (AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and another (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and others v. State of Bihar etc. (2002 (4) JT (SC) 186)."
23. Therefore the fact of dragging the deceased by appellants for some distance, in absence of any injury or mark on his body and at the spot, does not appear to be either probable or has been proved by the evidence available on record. Now, when the dragging part of the story of the prosecution has not been found truthful and acceptable, there is nothing in the evidence produced by the prosecution, which may classify the assembly of the accused persons as Unlawful Assembly. In absence of any previous enmity and any prior information of the arrival of deceased at the house of Munna, the assembly of accused persons at the house of Ram Shanker could not be termed as Unlawful Assembly. Therefore, what transpires from the evidence available on record is, that when deceased Zaheer went inside the house of Ram Shanker, as he was a regular visitor of house of Munna, accused persons were inside the house and there was some scuffle of the deceased only with Siya Ram as a result of which he stabbed the deceased in his Stomach and by such assault, the deceased died at the spot. In this whole factual backdrop, there was no possibility of formation of any unlawful assembly by the accused appellants, with an object to murder Zaheer.
In AIR 2013 SUPREME COURT 3150, Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan, Hon,ble Supreme Court has held that Para 17 "Suspicion, however grave it may be, cannot take place of proof and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
Therefore, keeping in view the evidence on record, it is evident that there was no unlawful assembly formed by accused persons, as there was neither any motive nor sufficient time or prior information of the arrival of deceased nor it is proved that all accused persons dragged the deceased inside the house, as no injury of any kind has been found on the person of the deceased except two incised wounds stated to be inflicted by Siya Ram. Therefore, Simply by standing and witnessing a quarrel from howsoever close range, could not render the other appellants as being part and parcel of any unlawful assembly. In view of above discussion, it can not be believed that the accused persons had formed any unlawful assembly or had acted in furtherance of any unlawful object or common intention.
24. The instant case can be viewed from another angle as there cannot be any doubt to the preposition that unlawful assembly could also be formed at the spur of the moment just before or during the occurrence. It has been held by Catena of Decisions, some of which have been quoted herein-before, that the formation of any unlawful assembly can be gathered by the behavior of the assembly prior, during or subsequent to the commission of the crime as well as the arms, which are being carried by the members of such Unlawful Assembly and also the manner of assault. As said earlier, It is also possible that any unlawful assembly may be formed at the spur of the moment, but for that purpose, in our considered opinion, there must be some prior enmity between the parties, so on the basis of that enmity without happening of anything special or without any communication between the members, the accused persons may form an assembly instantly, which may be unlawful, having an illegal object. But here we are dealing with a case, where no prior enmity has been proved and the motive, which has been suggested is neither acceptable nor proved in the facts and circumstances of the case. The admitted facts on record are that none of the appellants, except Siya Ram, was carrying any arm of any kind at the place of incidence. It is also established that only Siya Ram is possessing a knife or any other sharp edged weapon and this was not disclosed to any other appellant. Nothing has either been produced on record or stated by any eye witness as to what communication, if any ?, the members of the unlawful assembly were making with each other, during the time of alleged scuffle, whereby any inference of instant formation of unlawful assembly can be derived. Therefore there is no evidence available on record whereby the formation of any unlawful assembly, in the spur of the moment, may be inferred either before or during the alleged scuffle, as no sign of any scuffle has either been found on the spot or on the body of deceased and the part of the prosecution story pertaining to dragging of deceased by all accused persons inside the house of Ram Shanker has been held herein before, not believable. Hence there is nothing left on record which may prove the fact that the accused persons during the course of alleged scuffle were having any conversation with each other, which may suggest that any unlawful assembly was actually formed in the spur of moment and the proved facts suggest only one inference that whatever arguments or any scuffle occurred at that point of time the same occurred only between the deceased and the appellant Siya Ram and other appellants were only present there and that there was no unlawful assembly formed either before or during the occurrence.
In fact the prosecution is completely silent on the point as to whether any communication was made between Siyaram and other members of alleged unlawful assembly during alleged assault. None of the eye witnesses has stated anything allegedly done or said by the other accused persons during alleged scuffle. As said earlier, the theory of prosecution pertaining to the fact that the deceased was dragged by all accused persons in the house has not been found believable, in the facts and circumstances of the case, nothing thereafter is left on record which may render the assembly of accused persons in the house of Ram Shanker, as unlawful. When formation of any unlawful assembly either at the beginning or during the course of occurrence is not proved, the appellants could not be convicted with the aid of Section 149 of the I.P.C. Hence, in this situation, the role of every individual accused/appellant is to be seen for the purpose of determining his culpability. The theory of prosecution that other accused persons except Siya Ram caught hold of the deceased is not truthful and it appears that the genesis of the incident has been suppressed by the prosecution and also that there is no overt assigned to the other accused persons (Except Siya Ram), therefore, all accused persons except Siya Ram appear to have committed no offence. Simply being present in the house of Ram Shanker could not be an offence, when formation of any unlawful assembly with any of the object classified under Section 141 of the I.P.C. has not been found proved. In these circumstances, the appellants i.e. Karan Singh, Harish Chandra, Ram Shanker and Kalloo are liable to be acquitted of the charges framed against them.
25. Ld. Counsel for the appellants has also submitted that even if the prosecution case is taken to be established with regard to appellant Siya Ram, his act will not travel beyond the ambit of section 304 part II and according to him the trial Court has acted illegally in convicting him under section 302 IPC.
Hon'ble Supreme Court in Budhi Singh Vs. State of H.P. reported in MANU/SC/1126/2012 has held as under:-
"21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable: homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code.
22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.
11. A Bench of this Court in the case of Thangaiya v. State of Tamil Nadu [MANU/SC/1046/2004 : (2005) 9 SCC 650] pointed out the distinction between the two sections and observed as under:
9. This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of Indian Penal Code culpable homicide is the genus and "murder" its specie. All "murder" is "culpable homicide" but not vice versa. Speaking generally, "culpable homicide" sans "special characteristics of murder is culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of the generic offence, Indian Penal Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the gravest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304."
Hon'ble Supreme Court Of India in Arjun and Ors. Vs State of Chhattisgarh reported in MANU/SC/0153/2017, wherein the appellants assaulted the deceased with katta, gandasa and stone and deceased fell down and sustained injuries on his head and his brain matter came out and he died on the way to the hospital has held as under :-
"20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. Union Territory of Chandigarh MANU/SC/0589/1989 : (1989) 2 SCC 217, it has been explained as under:
7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly..............
21. Further in the case of Arumugam v. State, Represented by Inspector of Police, Tamil Nadu MANU/SC/8108/2008 : (2008) 15 SCC 590, in support of the proposition of law that under what circumstances exception (4) to Section 300 Indian Penal Code can be invoked if death is caused, it has been explained as under:
18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 Indian Penal Code is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general Rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.
23. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I Indian Penal Code and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II Indian Penal Code. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the Appellants had intention and knowledge to cause the injuries and thus it would be a case falling Under Section 304 Part I Indian Penal Code. The conviction of the Appellants Under Section 302 read with Section 34 Indian Penal Code is modified Under Section 304 Part I Indian Penal Code. As per the Jail Custody Certificates on record, the Appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date the Appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction Under Section 304 Part I Indian Penal Code, the sentence is modified to that of the period already undergone."
In Surinder Kumar v. Union Territory, Chandigarh MANU/SC/0589/1989 (1989) 2 SCC 217, Hon'ble Supreme Court held that if on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of the Exception of section 300 IPC provided he has not acted cruelly. It was held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken place on account of a sudden and unpremeditated fight and the offender must have acted in a fit of anger. Dealing with the provision of Exception 4 to Section 300 this Court observed:
"..... To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly."
In Ghapoo Yadav and Ors. v. State of M.P. (2003) 3 SCC 528, MANU/SC/0124/2003, it is held as under :-
"...The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight: (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300. IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4 It is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'."
In Sukhbir Singh v. State of Haryana (2002) MANU / SC/0116/2002, (2002) 3 SCC 327, the appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the appellant had acted in a cruel and unusual manner in following words :-
"...All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 IPC. After the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with Bhala caused injuries at random and thus did not act in a cruel or unusual manner."
The question whether the act of the appellant will fall undder Section 304 Part I or Part II of the IPC, a distinction between these two parts of that provision was drawn in Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648, MANU/SC/0015/2012 in the following words:
"..... For punishment under Section 304 Part I, the prosecution must prove: the death of the person in question; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death...."
In Singapagu Anjaiah v. State of Andhra Pradesh (2010) 9 SCC 799, MANU/SC/0451/2010, it was observed:
"16. In our opinion, as nobody can enter into the mind of the accused, its intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused..."
In Basdev v. The State of PEPSU AIR 1956 SC 488, drew a distinction between motive, intention and knowledge in the following words:
"....Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things..."
Hon'ble Supreme Court in Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC 444, MANU/SC/8419/2006 enumerated some of the circumstances relevant to find out whether there was any intention to cause death on the part of the accused :-
"...Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre- meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention..."
In the case of Surain Singh Vs. State of Punjab reported in MANU/SC/0399/2017 (2017) 5 SCC 796, Hon'ble Supreme Court has reiterated the settled legal position about the purport of Exception 4 to Section 300 of IPC. In this case, the accused had repeatedly assaulted the deceased with a Kirpan and caused injuries resulting into death. After restating the legal position, the Court converted the offence to one under Section 304 Part-II instead of Section 302 IPC and observed as under:-
"15. The weapon used in the fight between the parties is 'Kirpan' which is used by 'Amritdhari Sikhs' as a spiritual tool. In the present case, the Kirpan used by the Appellant-accused was a small Kirpan. In order to find out whether the instrument or manner of retaliation was cruel and dangerous in its nature, it is clear from the deposition of the Doctor who conducted autopsy on the body of the deceased that stab wounds were present on the right side of the chest and of the back of abdomen which implies that in the spur of the moment, the Appellant-accused inflicted injuries using Kirpan though not on the vital organs of the body of the deceased but he stabbed the deceased which proved fatal. The injury intended by the Accused and actually inflicted by him is sufficient in the ordinary course of nature to cause death or not, must be determined in each case on the basis of the facts and circumstances. In the instant case, the injuries caused were the result of blow with a small Kirpan and it cannot be presumed that the Accused had intended to cause the inflicted injuries. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. It is clear from the materials on record that the incident was in a sudden fight and we are of the opinion that the Appellant-accused had not taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly.
16. Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall Under Section 304 Part II. We are inclined to the view that in the facts and circumstances of the present case, it cannot be said that the Appellant-accused had any intention of causing the death of the deceased when he committed the act in question. The incident took place out of grave and sudden provocation and hence the Accused is entitled to the benefit of Section 300 Exception 4 of the Indian Penal Code." (Emphasis Ours) Hon'ble Supreme Court in Atul Thakur vs. State of H.P. & others, MANU/ SC/0018/2018, AIR 2018 SC 570, while considering the applicability of Section 304 I.P.C., where deceased was assaulted with knife, held as under:-
"12. Taking overall view of the matter, the facts of the present case warrant invocation of Exception 4 to Section 300 of Indian Penal Code. For, it is a case of culpable homicide not amounting to murder inasmuch as the incident happened on account of sudden fight between the friends who had gathered for a drink party arranged at the behest of Hitesh Thakur. There was no pre-mediation and the act done by the Appellant was in the heat of passion without the Appellant taking any undue advantage or acted in a cruel manner. The number of wounds caused by the Appellant, it is a well established position, by itself cannot be a decisive factor. The High Court committed manifest error in being influenced by the said fact. What is relevant is that the occurrence was sudden and not premeditated and the offender acted in the heat of passion. The evidence supports the case of the Appellant in this behalf. The fact that the Appellant used weapon such as knife, is also not a decisive factor to attract Section 302 of Indian Penal Code. Neither the use of a knife in the commission of offence nor the factum of multiple injuries given by the Appellant would deny the Appellant of the benefit of Exception 4.
Therefore the role of appellant-Siya Ram, in commission of crime, is to be analyzed and appreciated in the background of above mentioned legal position.
26. Perusal of record would reveal that both eye witnesses of the crime i.e. P.W.-1/Rafique and P.W.-2/Mohd. Shamim have categorically stated in their statements that it was Siya Ram, who had stabbed deceased below his chest with a knife, which he was keeping in his pocket. The evidence of these witnesses of fact is believable and is reliable in the facts and circumstances of the case. P.W.-4/Dr. Nalini Kant Tripathi in his statement has corroborated the testimony of these eye witnesses by stating that at the time of postmortem, he found 02 incised wounds i.e. one at the stomach and the other at the waist of the deceased, of the dimension of 5 cm. x 2 cm. and 4 cm. x 2 cm., respectively. These 02 incised wounds correspond to the weapon of assault (knife) allegedly held by the appellant Siya Ram in his hand during the course of incident. P.W.-4 Doctor Nalini Kant Tripathi, further corroborated the testimony of P.W.-1/Rafique and P.W.-2/Mohd. Shamim with regard to the time of death of the deceased about which, he stated that the deceased might have died one day before the postmortem. He also stated that the knife used in the assault was having sharp edges on its both side.
Apart from the above mentioned 02 incised wounds, no other injury has been found on the body of the deceased as well as no other signs of struggle have been noticed by the Doctor on the body of the deceased. He also did not find any contusion, bruise or even friction on any of the part of the deceased. P.W.-4 Doctor Nalini Kant Tripathi has also categorically ruled out that Injury No.2 could not be inflicted to the deceased from behind, if 6 to 7 persons had gripped the deceased from all around. Therefore, it is also established on record that the author of both these injuries found at the person of deceased, was Siya Ram and the same has been caused from the front of the deceased. This factual matrix also finds corroboration from the statement of P.W.-2/Mohd. Shamim at Page No. 2 of his statement, when he stated that only Siya Ram was in front of Zaheer (Deceased) and all other accused persons were standing here and there. Therefore, it is also proved beyond any doubt that fatal injuries to the deceased were actually inflicted by none other than the appellant Siya Ram in his individual capacity and not as a member of any unlawful assembly.
27. The motive suggested by P.W.-1/Rafique in his statement has not been proved and it transpires that either the prosecution has suppressed the actual motive or there was no motive at all. The only significant fact surfaced in the evidence of P.W.-1/Rafique and P.W.-5/Shri M.M. Khan, Investigating Officer of the crime is that there was some woman, who lived in the house of Munna with whom deceased was on talking terms and as per the Investigating Officer, deceased and accused persons were having illicit relationship with one and the same woman and this fact was informed to the Investigating Officer by P.W.-2/Mohd. Shamim. However, in contrast, P.W.-2/Mohd. Shamim in his cross-examination, on being categorically asked has stated that, he did not know whether deceased was of loose character and he did not have any talk with ''Daroga Ji' (Investigating Officer) about any illicit relationship of deceased with any woman or regarding him being of loose character. So, in this factual backdrop, no motive or prior enmity of Siya Ram with the deceased has been proved.
28. As has been said earlier there was no prior information available to the accused persons, pertaining to the arrival of deceased Zaheer and it is also established by the acceptable and reliable part of the evidence of P.W.-1/Rafique and P.W.-2/Mohd. Shamim that the incident had happened without any pre-planning or pre-meditation, in the spur of the moment and only 02 blows of knife have been given by appellant Siya Ram in the Stomach and waist of the deceased, it is also established on record that appellant Siya Ram has not acted in any brutal or cruel manner and actually no undue advantage has been taken by him in commission of the crime. Perusal of record further reveals that appellant Siya Ram was of 25 years old on 29.07.1998, when his statement under Section 313 of Cr.P.C. was recorded, therefore, he may be of the age of 45 or 46 years as of now. In the FIR, it is stated that Siya Ram gave a single blow below the chest of the deceased. In Inquest, Exhibit-ka-5, only one injury of knife has been found below the chest, though any question has not been put to the Doctor who conducted the postmortem and the knife, whereby injuries have been caused has not been recovered, the possibility of inflicting of these two injuries by a single blow of any arm having a little longer blade with both sides sharp, could also be not ruled out. P.W.-1/Rafique has also stated that appellant Siya Ram started stabbing deceased below his chest. P.W.-1/Rafique in his cross-examination at Page No. 3 has stated that appellant, Siya Ram gave knife blows to the deceased causing him fall down. P.W.-2/Mohd. Shamim in his evidence has also stated that accused Siya Ram gave 02 blows.
29. Therefore, in peculiar facts and circumstance of the case as well as from the established facts, it is apparent that the act of appellant Siya Ram is covered under Section 304 Part-I of the I.P.C. instead of Section 300 punishable under Section 302 of the I.P.C. and, therefore, appellant Siya Ram is liable to be convicted under Section 304 Part-I of I.P.C. and not under Section 302 I.P.C.
30. In view of our aforesaid discussion, the appeal filed by the appellants namely Karan Singh, Harish Chandra, Ram Shanker and Kalloo is allowed. Appellants are acquitted of the charges levelled against them. From amongst the above appellants, appellant Kallo has been released on remission of sentence by State Government and other appellants are reported to be on bail, therefore, they need not to surrender in this case. Their bail bonds are cancelled and sureties are discharged. However, each of the appellant i.e. Karan Singh, Harish Chandra, Ram Shanker and Kalloo shall file a personal bond and two sureties each in the like amount to the satisfaction of the court concerned in compliance of the Provision as contained under Section 437-A of the Code of Criminal Procedure.
31. So far as appeal pertaining to appellant, Siya Ram is concerned, the same is partly allowed. The conviction of appellant Siya Ram is maintained, but in the facts and circumstances of the case as well as on the basis of established and proved facts, he is convicted under Section 304 Part-I of the I.P.C. instead of Section 302 I.P.C. and his sentence of imprisonment for life, as awarded by the Trial Court is modified to the sentence of 09 years' rigorous imprisonment along with fine of Rs. 20,000/- and in default of payment of fine to undergo further simple imprisonment of 03 months. Out of the amount of fine, Rs. 15,000/- shall be paid to the wife of the deceased (If she is alive), and in case she is dead, this amount shall be paid to his other legal heirs in equal proportion.
Shri Shahid Akhtar, Advocate was appointed as Amicus Curiae in Criminal Appeal No. 1839 of 2004 for appellant/Kalloo will get Rs. 10,000/- as honorarium.
Appellant Siyaram is reported to be on bail. He will surrender before the Trial Court within 15 days from today to serve the sentence as modified by this Court.
A copy of this judgment be sent to the Trial Court immediately for compliance and information.
(Mohd. Faiz Alam Khan,J.) (Devendra Kumar Upadhyay,J.)
Order Date :- 22.10.2019
Praveen