Allahabad High Court
Budhar And Others vs State Of U.P. on 28 April, 2020
Bench: Sunita Agarwal, Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Case :- CRIMINAL APPEAL No. - 1768 of 1996 Appellant :- Bhudhar And Others Respondent :- State of U.P. Counsel for Appellant :- J.S.Tomar,Arvind Kumar Srivastava (A.C.) Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Pradeep Kumar Srivastava,J.
Heard Shri Arvind Kumar Srivastava, learned Amicus Curiae for the appellant no. 2 Chander son of Lallu Ram, Shri L.D. Rajbhar and Shri Sunil Kumar Tripathi learned A.G.As. for the State respondent.
The present appeal has been filed by three appellants Bhudhar, Chander and Roopram, all sons of Lallu Ram, residents of Village Adilabad, Police Station Bisalpur, District Pilibhit against the judgment and order dated 09.08.1996 passed by the Special/Additional Sessions Judge, Pilibhit in the Sessions Trial No.173 of 1986 under Sections 147, 148, 302/149 and 323/149 I.P.C., Police Station Bisalpur, District Pilibhit.
At the outset, we may note that nine persons were named in the first information lodged on 20.11.1985 for their involvement in the incident-in-question, out of whom accused Ganga Ram died during trial. Out of remaining eight, five accused persons namely Bhudhar, Chander, Roopram, Munna and Moti were convicted by the trial court for the offences under Section 302 read with Section 149 and Section 323 read with Section 149 IPC and sentenced each for life imprisonment alongwith fine of Rs.5000/-; as also for six months rigorous imprisonment for the above offences. In case of default or non-payment of the fine, they have to further undergo two years rigorous imprisonment. Four accused persons namely Chander, Roopram, Munna and Moti have also been convicted under Section 147 IPC and sentenced for six months rigorous imprisonment. Accused Bhudhar has also been convicted under Section 148 IPC and sentenced for one year rigorous imprisonment. All the punishment were to run concurrently.
However, out of five convicted accused persons, in the Connected Appeal No.1757 of 1996 two accused namely Munna and Moti had died and their appeal has been abated vide order dated 12.07.2019 by this Court. In the present appeal, the appellants Bhudhar and Roopram had died and appeal on their behalf has been abated vide order dated 19.09.2019. Thus, we are left with the challenge to the order of the conviction of only one accused person namely Chander son of Lallu Ram in the present appeal.
As the prosecution story unfolded, the incident in question occurred on 20.11.1985 at about 07.00 A.M. The first information report was lodged by the person namely as 'Register son of Bhikari Lal' (hereinafter referred as the 'first informant') resident of village Adlabad, Police Station Bisalpur, District Pilibhit on 20.11.1985 at about 09.30 A.M. The Chik FIR was drawn on oral statement of the first informant recorded by the Head Moharir Puran Lal posted in the Police Station Bisalpur, Pilibhit. The first informant is son of deceased Bhikari Lal. As per the averments in the first information report, some dispute regarding landed property was going on between three accused namely Bhudar, Chander and Roopram (the appellants herein who were real brothers) and their cousin Sudami Devi in Tehsil Bisalpur. In the legal proceeding, deceased Bhikari Lal was a witness from the side of Sudama Devi. The first informant states that on the previous day of the incident in the evening, an altercation took place between Bhudhar, Munna, Ram Asrey and Moti who were pressurizing the deceased not to give statement in favour of Sudama Devi. On his denial to accede to their pressure, the accused persons became inimical to the deceased. On 20.11.1985 at about 07.00 A.M., when deceased Bhikari Lal, the first informant Register and a villager namely Pusey son of Sohan were going to their fields located towards western side of the village, as soon as they reached at the field of Sadhu near the Canal, nine accused persons named above came out from the field of Moti each armed with deadly weapons and surrounded/gheraoed the victim party. Accused/appellant Chander exhorted by saying that Bhikari Lal should be taught a lesson for appearing as a witness in favour of Sudama and that he should be killed on that day. Hearing this, three persons of the victim party raised cries. Hearing their cries, Munna Lal son of deceased Bhikari Lal and their relatives namely Itwari, Sri Ram and Chotey lal ran towards the accused persons challenging them. At that point of time, the accused persons were assaulting Bhikari Lal (deceased) and Pusey with Lathi. Looking to the witnesses approaching them, Bhudhar and Ram Asrey opened fire from their guns. Deceased Bhikari Lal got hit by the fire, fell in the Canal and died on the spot. The accused persons ran away in the grove of Moti. The witnesses then took out the dead body from the Canal and kept it on the Chabutara of one Maniram. Injured Pusey was sent for treatment to the Hospital by bullock-cart. While leaving the dead body in the custody of his family members, the first informant went to the police station to lodge the report. The first informant also submitted two empty cartridges allegedly collected from the spot which were fired by the two accused persons. The Chik report drawn by the Head Moharir is endorsed with the thumb impression of the first informant and has been proved and exhibited as Exhibit Ka-'1'.
The prosecution produced three witnesses of fact namely (i) Register son of the deceased/first informant, (as PW-1); (ii) Munna Lal another son of deceased Bhikari Lal as PW-2 and (iii) injured Pusey as PW-3. Amongst formal witnesses, PW-4, Doctor Harish Chandra Nath had appeared in the witness box to prove the injury report. (exhibited as Exhibit 'Ka-3') prepared by him of the injuries of the witness PW-3 Pusey. Doctor P.K. Srivastava (PW-8) proved the post-mortem report and the injuries sustained by deceased Bhikari Lal.
PW-7 is the Investigating Officer who proved the reports such as site plan, recovery memo of the blood stained earth and plain earth, exhibited as Exhibit Ka-'10'. He states that the statements of nine accused persons were recorded on 13.12.1985. The statement of injured witness Pusey was recorded on 03.01.1986, on the date when investigation was completed and charge sheet (proved as Exhibit Ka-'17') was submitted by him. He proved the G.D. entry of Chik FIR which had been recorded as Rapat No.14 at about 09.30 A.M. on 20.11.1985, by Head Moharir Puran Lal as Exhibit Ka-'18', as Head Constable Puran Lal died before commencement of trial. About the motive narrated in the first information report, PW-7 (Investigating Officer) states that though he made an effort to get the necessary papers relating to the dispute from Sudama Devi but those papers were not provided to him till submission of the charge sheet.
PW-7 further states that though he did not indicate the field of Bhikari and Register in the site plan, but location of the spot of crime has been correctly indicated therein. The village Abadi was about two furlong from the site of the incident. The place mentioned as "Chabutara of Maniram" was about 1½ half furlong from the Puliya over the Canal. He admitted that he did not mention the place where accused persons had assaulted Pusey, the injured witness. He further states that statements of the eye-witnesses of the incident were recorded by him on the spot as soon as he visited the place. He denied suggestion of Bhikari Lal (deceased) and first informant (Register) being men of criminal antecedent. He denied suggestion of FIR being Ante-timed or he having not visited the scene of the crime and states that he or any other police officer did not collect any empty cartridge from the spot of crime.
As noted above, the Doctors PW-4 and PW-8 proved the reports prepared by them by entering in the witness box. PW-4 proved that injured Pusey was brought to the Primary Health Centre, Bisalpur and his injuries were examined at about 12.30 P.M, the injury report was prepared in his handwriting and signature, it was exhibited as Exhibit Ka-'3'. The injuries found on the person of injured witness Pusey are relevant to be noted hereunder:-
"1. Abraded contusion 12 cm x 5 cm at left side forehead including left eye upper & lower side, eye cannot be opened due to slenderness and traumatic swelling and area round the eye ball. Kept under observation and advised x-ray of left fickle, Eye ball and forehead. Blood is present at conjunctiva.
2. Abrasion 1 cm x 0.5 cm at Rt. Eyebrow in middle fresh in duration.
3. Clotted blood present at both nostrils. But no any external mark of injury seen."
When confronted about the nature of said injuries, PW-4 states that it was possible that injury Nos.1 and 2 could occur by the blow of Lathi.
PW-8, Doctor P.K. Srivastava who conducted the post-mortem proved the medico-legal report prepared by him as Exhibit Ka-'19' in his handwriting and signature. He proved the injuries found on the body of the deceased in external and internal examination as under:-
"Lacerated wound on the right side of head 4cm X1/12 C bone deep 8 cm above the right ear.
2. Gun shot wound of entry 3C X 3C circular size on the right side of abdomen blackening, tatooing and scroching not found, 5cm. below the lower rists.
3. Multiple gun shot wound of exit in 5 cm x 15 cm area on the Rt. Side of chest just below the right clavicle."
The post-mortem was conducted on 21.11.1985 at about 02.00 P.M. The possible time of occurrence of the injuries could be 24 to 48 hours prior to the postmortem. The possible time of murder could be around 07.00 A.M. on 20.11.1985. Injury Nos.2 & 3 were typical of the firearm whereas injury No.1 could occur from a blunt object like Lathi. Ante-mortem injuries were sufficient to cause death. Injury No.2 which is entry wound of 3x3 c.m. probably had been caused from behind.
From the medico-legal report of the deceased, it is evident that deceased had sustained one injury on his head as the blow of Lathi; Injury Nos.2 & 3 found on the body of the deceased correspond to each other, which means the deceased had sustained one firearm injury. As far as the injuries of PW-3 Pusey are concerned, from the injury report, it is evident that in all probabilities they have been caused by the blow of Lathi which hit him on his forehead. His eyes contained traumatic swelling which could occur within 24 hours as per the statement of the Doctor. These injuries, however, were not fatal and are mentioned as 'simple' in the injury report.
It is noted that from the statements or reports of three formal witnesses nothing could be elicited or pointed out to create any doubt or dent in the prosecution story.
We are, thus, left with the ocular version of the witnesses of fact. The prosecution produced three witnesses (PW-1, PW-2 and PW-3) as eye witnesses of the occurrence, amongst whom PW-3 is an injured witness.
In his deposition before the Court, the first informant Register (PW-1) reiterated his version in the first information report. Giving vivid details of the incidents, he narrates that Bhudhar and Ram Asrey were carrying guns whereas Mohan and Bulaki had "Kaanta" in their hands, rest of the accused persons were carrying Lathi. They first assaulted deceased Bhikari and Pusey by Lathi and seeing the witnesses/villagers approaching them, Bhudhar and Ram Asrey opened fires which hit the deceased. As noted above, from the medico-legal report it is evident that only one fire hit the deceased. The statement of the first informant that two fires hit his father (deceased) before he fell down is, thus, not correct. Two empty cartridges found from the spot were allegedly handed over by this witness to the police but they were not tallied with the Gun of Ram Asrey which was allegedly recovered by police. It is, thus, difficult to accept the version of the first informant that both the accused Bhudhar and Ram Asrey had opened fire. The presence of Ram Asrey on the spot was also doubted by the trial court. With regard to other accused persons Mohan and Bulaki to whom weapons namely 'Kaanta' had been assigned, it was noted by the trial court that no corresponding injury was found. It appears that for these reasons, trial court had acquitted three accused persons namely Mohan, Bulaki and Ram Asrey of all the offences under which they were charge sheeted.
In the above scenario, learned counsel for the appellant vehemently argued that firstly no evidence was brought by the prosecution regarding the motive alleged in the FIR. The eye witness account of the manner of assault on the victim party is not corroborated. The injuries of the witness PW-3 may have been caused on account of falling on the ground. Five persons assailed to have attacked deceased by Lathis which they were carrying individually whereas single injury of the blunt object was found on the person of deceased. Further, the prosecution story that deceased and first informant were going to their field at about 07.00 A.M. is unbelievable, in as much as, in the internal examination of deceased, his stomach was found empty and faceal matter was present in both small and large intestine. This condition of the dead body makes the whole prosecution story untruthful about the timing of the incident. From the fact that small and large intestine both were full with faceal matter, in all probabilities death had occurred before defecation by the deceased. This situation clearly proves that the prosecution has not come with clean hands as the death had been caused during the night hours. Presence of both PW-1 and PW-2 at the scene of occurrence, thus, becomes highly doubtful. The ocular versions of PW-1 of accompanying the deceased and PW-2 of reaching on the spot of occurrence hearing the cries of PW-1, are not corroborated from the medico-legal report. The statement of PW-3, projected as injured witness, is inconsistent with other witnesses of fact as the place of occurrence is highly disputed. Moreover, the place of occurrence had not been ascertained by sending blood stained earth and plain earth for chemical examination. The act of PW-1 in bringing empty cartridges to the police station on his own substantiates the defence version about the doubt with regard to the timing and place of occurrence.
In the whole prosecution story there is no independent witness. Even the witnesses who allegedly reached on the spot hearing the cries of the victim party are all related to the deceased. Moreover, none of them had been produced before the Court. Further, the prosecution has not proved the genesis of the alleged unlawful assembly. Three accused persons were real brothers to whom motive has been assigned whereas other members of the accused party have no concern. The act of eyewitnesses in implicating six persons unconnected with the crime is nothing but exaggeration. False implication of fellow villagers makes the version of eyewitnesses wholly uncreditworthy. Moreso, when no injury corresponding to the weapon (Kaanta) assigned to two accused was found. Further though Lathi was assigned to five accused persons but the version of eyewitness regarding the manner of assault is difficult to believe as single blow of Lathi was sustained by deceased. The submission, thus, is that the testimony of eyewitness becomes a blatant lie and the exaggeration and embellishment in their version shake the entire prosecution case.
As far as PW-2 Munna Lal is concerned, it is submitted that he is a Chance witness. He has been projected by the prosecution only to give credence to the testimony of the PW-1 only with the idea to cover up the discrepancies in his testimony.
As regards PW-3, it is urged that he had sustained injuries somewhere else and he was brought in the story simply to make the testimony of PW-1 creditworthy. The inherent improbabilities and inconsistencies in the statement of the three eye witnesses makes their version about the timing of the incident and place of occurrence wholly unreliable. Reliance is placed on decision of the Apex Court in (Ganga Ram Sah & others Vs. State of Bihar)1 decided on 27.01.2017 and Lallu Manjhi & another Vs. State of Jharkhand2 to assert that where the weapons assigned to the accused persons, (included as member of the unlawful assembly) do not correspond to the injuries sustained by the deceased, the testimony of eye-witness becomes wholly unreliable. In that event, the Court has to look for corroboration in material particulars by reliable testimony, whether direct or the circumstantial before acting upon the testimony of the eye witnesses. And where the ocular version is inconsistent with other evidence on record, it would be dangerous to believe the prosecution version of common object of the unlawful assembly to commit murder so as to convict all accused persons of the offence of murder by taking recourse to Section 149 Cr.P.C.
Placing the decision of the Apex Court in Lakshmi Singh Vs. State of Bihar3 (emphasis laid on para 13 to 16), it was vehemently urged by the learned counsel for the appellant that omission on the part of the prosecution to send the blood stained and plain earth collected from the place of occurrence for chemical examination, which could have fixed situs of the assault, proves to be fatal to the prosecution case. If the defence succeeds in throwing a reasonable doubt on the prosecution case, it is sufficient to enable the Court to reject the prosecution version and, thus, to set aside the conviction. The solitary firearm injury on the person of deceased in contradiction to the statement of prosecution witnesses PW-1 & PW-2 that two accused persons namely Bhudhar and Ram Asrey had opened fires from their guns which also hit the deceased, shows the falsehood of the prosecution story. In view of the exaggerations and embellishments found in the version of the eyewitnesses P.W.-1 & PW-2, it was necessary for the prosecution to corroborate the evidence of the eye witnesses through the expert evidence of the Doctor, and since no corresponding injuries were found on the person of deceased, the prosecution was required to explain the inconsistencies. The entire genesis and origin of the occurrence put forth by the prosecution is surrounded with suspicious circumstances and negatives the truth of the prosecution case.
In view of the inherent improbabilities, serious omissions and infirmities in the version of the eye witnesses coupled with the fact that eye witnesses PW-1 and PW-2 are closely related to deceased being his son, there cannot be any two opinion that the prosecution has miserably failed to prove the case against the appellant beyond reasonable doubt. As the prosecution rests its story entirely on eye witness account, their version having been found uncreditworthy, the whole prosecution case falls. The trial court has committed grave error in convicting five accused persons on the shaky version of the alleged eye witnesses projected by the prosecution. Moreover, the appellant Chander herein has been assigned only the role of exhortion in the prosecution version itself. There is no evidence that he assaulted the deceased though he was assigned Lathi, he cannot be convicted of the offence of murder under Section 302 IPC by taking recourse to Section 149 IPC. The appellant Chander, therefore, is entitled to be acquitted of all the offences of murder and assault on deceased Bhikari and injured Pusey. The appeal deserves to be allowed.
Learned AGA, on the other hand, submits that there is direct evidence of the occurrence. The testimony of three eye witnesses is consistent and there is no apparent contradiction in their version about the occurrence of the incident. Five out of nine accused persons being members of unlawful assembly were rightly held to be guilty of same offence by taking recourse to Section 149 IPC. There is no delay in lodging of the first information report. The injuries sustained by the injured witness and deceased correspond to the weapons Lathi and firearm assigned to the accused persons. The fact that no injuries of deadly weapon "Kaanta" was found on the person of deceased or injured witness by itself does not make the prosecution story doubtful. Even the presence of a person who is a member of unlawful assembly at the spot of crime without any overt act in execution of the common object of unlawful assembly to commit murder, is sufficient to implicate him and hold him guilty of murder on the principle of vicarious liability which is fundamental principle for invocation of Section 149 Cr.P.C.. Overt act or any specific act of a member of unlawful assembly in prosecution of common object of the assembly is not necessary to be proved to hold him guilty of the crime committed by that assembly. Reliance is placed on the decision of the Apex Court in Om Prakash Vs. State of Haryana4.
Analyzing the testimony of eye witnesses produced by the prosecution, we find that as far as PW-2 is concerned, as per his own version, he was not present with the deceased and reached the place of incident hearing cries of the persons of the victim party. He also assigned weapons in the hands of the accused persons in the same manner as averred by PW-1. Even the exhortation made by appellant Chander has been narrated by him in the same words as stated by PW-1. The act of fire opened by Bhudhar and Ram Asrey (two accused person) is also narrated in the same language. The distance of house of PW-2 where he was present at the time can be culled out from the description given by him in the cross-examination as under:-
(i) the place of occurrence was located at the western side of the village in question;
(ii) Maniram Ka Chabutara was the first place to reach while coming to the village from the western boundaries;
(iii) the house of PW-1 and deceased was situated on the East-West road approaching the village at a distance of 20 paces from Maniram Ka Chabutara;
(iv) the incident had occurred at a distance from Maniram Ka Chabutara, near the Canal at the field of Sadhu located near the field of Natthu Lal Sharma;
(v) the accused person came to the spot from the grove of Moti adjacent to the field of Nathu Sharma located near the place of occurrence;
(vi) in between their house and the place of murder, there lies only one field of Natthu Lal Sharma which was vacant at the relevant point of time;
(vii) the place of incident was at a distance of 20 to 30 paces from their house where PW-2 was present when he heard the cries of the first informant.
PW-2 further states that the place of incident was visible though not clear from their house and when he heard the cries of "bachao-bachao", he was outside the house. He immediately ran to the place of occurrence and when he left the house he could see some persons at the place of incident, but could identify them only when he reached at the field of Nathhu Sharma. He further states that after leaving the house when he reached at Maniram Ka Chabutara, at about 12 paces away from the place of occurrence he could identify the accused persons and saw them assaulting deceased Bhikari Lal and injured witness Pusey. As soon as the accused persons saw him and he simultaneously looked at them, Bhudhar and Ram Asrey opened fire. By the time firing was made he had reached at the field of Nathhu Lal Sharma.
From the above description of PW-2, it is evident that there was no occasion for him to hear the words of exhortation allegedly made by appellant Chander as he was not present on the spot with the victim party since the beginning. His omnibus narration of the incident cannot but be said to be an effort of the prosecution to add weight to the testimony of PW-1.
From the careful analysis of version of PW-2, it is evident that neither he was present at the scene of occurrence since the beginning nor he could reach on the spot when accused persons started assault by Lathi.
Even accepting his version as true, at the most, it can be said that he had reached near the place of occurrence on hearing cries of his father and brother and witnessed the act of firing by the accused. From his statement, it can also be culled out that as soon as he reached the field of Natthu Sharma, the accused persons opened fire at his father and ran away. The site plan was prepared in the presence of this witness (PW-2) which also indicates his presence at the place marked by letter 'B' which lies in the middle of the field of Natthu Sharma, at a distance from the spot of occurrence. It is, thus, clear that PW-2 had no chance to witness the whole sequence of events since the beginning. It is evident from his version that neither he could distinctly see weapons in the hands of individual members of the accused party nor he could hear the words of exhortation allegedly spoken by appellant Chander in the beginning of the incident. The prosecution has projected this witness as an eyewitness though his version from the cross-examination is proved to be a hearsay evidence. His narration of the incident appears to be from the eyes of PW-1, his brother and not his own and he had seen only some part of the incident and not the whole. His testimony seems to be self-contradictory and uncreditworthy so as to form basis of the conviction.
Considering the above, we are left with the testimony of remaining two eye witnesses PW-1 and PW-3. We find that PW-1 in his deposition in the Court has reiterated his first account of the incident given in the first information report. His statement of the genesis of the incident, the manner in which it took place on the fateful day, the weapons carried by the accused party and the injuries caused to deceased is same as in the FIR. He deposed in the examination-in-chief that two empty cartridges handed over by him to the police were collected from the spot and they were fired by Bhudhar and Ram Asrey from their guns and that both fires hit his father. Single firearm wound of entry has been found on the body of deceased in addition to only one blow of Lathi on his head. The argument of the defence is that ocular version of PW-1 being in contradiction to the medical evidence it is evident that this witness is telling a lie. It cannot be assumed that another shot fired by one of the accused persons missed and as such it did not hit the deceased. It is, thus, urged that the ocular version of PW-1 is to be discarded as a whole and the defence theory that deceased was brought to death in the night hours and noone had seen the incident has to be accepted.
We find that the statement of PW-1 (first informant) and PW-3 regarding the incident and place of occurrence is consistent and is corroborated from other material evidence such as site plan which gives complete description and the distance of the place of occurrence from the house of deceased. Thus, it cannot be said that the place of homicidal death of Bhikari lal (deceased) was not proved. The place 'A' from where the dead body was lifted by the first informant and place 'C' where deceased was shot by the accused persons as indicated in the site plan is consistent with the testimony of eye witnesses PW-1 and PW-3.
Both these witnesses are found consistent in their statement that deceased was first assaulted by the accused persons by Lathi and when they saw other witnesses approaching them, fire was opened by accused Bhudhar which hit deceased who fell on the ground near canal; the accused party immediately ran away towards the field/grave of Moti. The appellant Chander herein has been assigned the role of exhortation in the following words:-
"आज भिखारी लाल को सुदामा देवी के मुक़दमे मे गवाही देने का मज़ा चखा दो और जान से मार दो"
PW-3, the injured witness states that when accused party was assaulting deceased Bhikari Lal, many people had reached the spot. He was also attacked by Roopram (a co-accused since deceased) by Lathi when he raised cries seeing accused persons assaulting deceased Bhikari lal. According to him, Bhudhar had opened fire on the deceased which hit him and he fell on the bank of the Canal and died on the spot. The accused persons immediately fled towards the west. The witnesses then lifted the body of deceased and kept it at the Maniram Ka Chabutara. His own injuries were examined by the Doctor. From the cross-examination of PW-3, it appears that his house was near the house of deceased. He being a neighbour and injured witness, his presence at the scene of occurrence cannot be doubted. It is difficult to accept that an injured witness would falsely implicate the accused persons leaving the real assailants, more-so when there is no suggestion of any enmity of the accused persons with the injured witness PW-3.
It is, thus, not possible for us to accept the hypothesis of the defence that the murder had occurred during the night hours in the absence of both PW-1 and PW-3. The presence of two eye witnesses PW-1 and PW-3 cannot be discarded being natural at the scene of occurrence. Their statement about the assault by the accused party cannot be disbelieved.
Thus, from a careful analysis of the evidence produced by the prosecution, the following circumstances are emerging:-
(i) The first information report is prompt having been lodged within two and a half hours of the incident.
(ii) The homicidal death of the victim Bhikari Lal had occurred in the early morning when both PW-1 and PW-3 were accompanying him while going to their fields.
(iii) The statement of eye witnesses (PW-1 & PW-3) is consistent to the extent that accused persons had beaten deceased Bhikari Lal and injured witness PW-3 from Lathi. The injuries found on the person of deceased and PW-3 injured witnesses are also proof of the said fact.
(iv) The injuries of PW-3 were examined on the same day at about 12.30 PM and the Doctor who prepared the injury report had proved that the injuries had been caused by Lathi and are, thus, related to the weapon (Lathi) assigned to the members of accused party.
(v) Firearm injuries found on the vital part of the deceased alongwith one wound of Lathi in his head and from the narrtion of the eyewitness it is clear that the deceased was first beaten by accused persons by Lathi and later was brought to death by the single fire opened by Bhudhar (appellant No.1). There is no evidence of second shot of fire made by accused Bhudhar.
(vi) Mere fact that the injuries on the person of PW-3 are minor, it cannot be accepted that his statement is not to be given the weightage of the testimony of an injured witness. From the injuries found on the body of PW-3, atleast this much is proved that he was present on the scene of occurrence.
However, at the same time, we find that the prosecution has not been able to explain the following circumstances:-
(i) The allegation of firing made by another accused person Ram Asrey is not proved. No explanation has been given by the prosecution about the said part of statement of the first informant PW-1.
(ii) The recovery of gun allegedly used by Ram Asrey is disbelieved by the trial court being farce.
(iii) PW-3 Pusey did not utter a single word in his examination-in-chief regarding presence of Ram Asrey at the place of occurrence or he having fired at the deceased. He rather refused to identify Ram Asrey present in the Court and stated that he could recollect only this much that there was one more person with the accused party who was standing behind his house carrying gun of his father.
(iv) In cross-examination, Pusey PW-3 states that he heard the sound of fire while running away from the place of occurrence towards west. He then changed his version by saying that he heard the sound of fire while standing on the spot and that both fires were made by Bhudhar which hit the deceased.
(v) PW-3 Pusey was interrogated by the police after approximately three months of the incident on the day when charge sheet was submitted by the Investigating Officer. No explanation has been given by the Investigating Officer for causing delay in recording statement of the injured witness PW-3 under Section 161 Cr.P.C. His version regarding involvement of Ram Asrey and role of firing attributed to him, therefore, is unbelievable. On confrontation by the defence, this witness explained that he was interrogated by the Investigating Officer after about three months.
(vi) There is no injury corresponding to 'Kaanta' a weapon assigned to two members of the accused party and for this reason the trial court had (rightly) acquitted three accused persons doubting their presence at the scene of occurrence.
From the above analysis, we find that the witnesses produced by the prosecution are neither wholly reliable nor wholly unreliable. In Vadivelu Thevar Vs. The State of Madras5, the Apex Court had laid down the test to assess the quality of oral evidence led by the prosecution for proving or disproving a fact. It was held therein that :-
".....................................Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial..............................."
It was, thus, held in a case that where the testimony of witnesses of prosecution is neither wholly reliable nor wholly unreliable, the Court has to circumspect and has to look for corroboration in material particulars by reliable testimony before acting upon the testimony of such witnesses. It is equally settled that no rigid formula can be derived to assess the weight to be attached to the oral evidence which would be dependent upon the facts and circumstances of each case. No hard and fast rule or straitjacket formula can be laid to test the truthfulness of the statement of witnesses. In such a case, whole testimony of the eye witnesses alongwith surrounding circumstances has to be considered by the Court in order to separate grain of truth from the chaff. It would be a dangerous trend to discard the whole testimony of an eyewitness because the witness was speaking an untruth in some aspect. Witnesses tend to decorate by given embroidery in a story. One hardly came across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. 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 respect as well. The evidence has to be sifted with care.
As observed by the Apex Court in State of Rajasthan Vs. Kalki 1981 (2) SCC 752 normal discrepancies in evidence are those which are due to normal error of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like, as they are always be 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.
Finding us in such a situation, in the instant case while carefully scrutinizing the prosecution evidence in our effort to separate grain of truth from the chaff, we find that the accused party formed an assembly which consisted of three brothers and other villagers. They reached the place of occurrence carrying Lathi and in a pre-mediated manner in prosecution of common object of the assembly attacked the deceased by Lathi. The injured witness (PW-3) was also assaulted when he raised cries. The assembly formed by the accused persons is proved to be an unlawful assembly within the meaning of Section 141 of the Indian Penal Code. As per the eye witness (PW-1 & PW-3) account, there were nine persons who were armed with Lathis, Kaantas and guns and all of them had attacked deceased Bhikari Lal with the common object to kill him. Whereas only one injury of blow of Lathi (a blunt object) was found on the person of the deceased Bhikari lal. Injured witness PW-3 was also assaulted by Lathi when he raised cries but there was no assault on the first informant (Register). Both the witnesses PW-1 and PW-3 are also found consistent in their statement that Bhudhar opened fire when he saw other witnesses/villagers approaching them. There is single firearm wound on the person of deceased which evidently was sufficient to cause his death. The alleged second fire opened by Ram Asrey could not be proved by the prosecution. Specific role of exhortation has been assigned to the surviving appellant Chander whereas general role of assault on the victim party has been assigned to all other members of the assembly.
The questions, thus, have arisen before us is to ascertain as to what was the common object of the unlawful assembly and whether appellant Chander can be convicted for the offence of murder under Section 302 IPC with the aid of the provision of Section 149 IPC.
To reach at any conclusion, it would be apt to go through some legal pronouncements to understand the essence of words "common object" used in Section 149 IPC. It is well established principle of law that when the conviction is recorded with the aid of Section 149, relevant enquiry to be made by the Court is whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not. The Constitution Bench of Apex Court in Masalti Vs State of U.P.6 has stated at page No.148 as under:--
"What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by s.141, I.P.C. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141."
Further at page No.149 it is said:-
"In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly."
Considering the above legal position it was considered in State of U.P. Vs. Kisan Chand & others 2004 (7) SCC 6297, that the common object of the unlawful assembly can be gathered from the nature of assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deducted from the facts and circumstances of each case (reference para 12 of the report) (emphasis added).
In a subsequent decision in Dani Singh & others Vs. State of Bihar8, it is said that 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 the vicarious liability of the members of an unlawful assembly (consisted of five or more persons) is as to 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 overact 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 unlawful 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.
Considering the literal meaning of the "common object" it is said:-
"11...................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 consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of 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. "
While explaining further, it is observed that "common object" is different from a "common intention" as it does not require a prior concert and a common meeting of mind before the attack. It is enough if each (member of the assembly) has the same object in view and their number is five or more and that they act as an assembly to achieve that object. It is held that:-
"12.........................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 behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti."
It was further explained that :-
"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 the 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 behaviour 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 Chikkarange Gowda and others v. State of Mysore"
The argument that since definite roles have not been assigned to the accused persons (members of the assembly) and, therefore, Section 149 is not applicable was held as untenable considering the law laid down in Masalti, Lal Ji Vs. State of U.P.9; State of U.P. Vs. Dan Singh & others10. The observations made therein have been noted in paragraph Nos.'15' & '16' in the following manner:-
"15.To similar effect is the observation in Lalji v. State of U.P. (1989 (1) SCC 437). 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 behaviour 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. In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC 747) it was observed that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. Reference was made to Lalji's case (supra) where it was observed that' "while overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149".
We may also profitably note the distinction between 'common object' and 'common intention' drawn by the Apex Court in Chikkarange Gowda & others Vs. State of Mysore11 in paragraphs Nos.9 & 10 as under:-
"9.It is quite clear to us that on the finding of the High Court with regard to the common object of the unlawful assembly, the conviction of the appellants for an offence under Section 302 read with Section 149, Penal Code cannot be sustained. The first essential element of Section 149 is the commission of an offence by any member of an unlawful assembly ; the second essential part is that the offence must be committed in prosecution of the common object of the unlawful assembly, or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object.
In the case before us, the learned Judges of the High Court held that the common object of the unlawful assembly was merely to administer a chastisement to Putte Gowda. The learned Judges of the High Court did not hold that though the common object was to chastise Putte Gowda, the members of the unlawful assembly knew that Putte Gowda was likely to be killed in prosecution of that common object. That being the position, the conviction under Section 302 read with Section 149, Penal Code was not justified in law.
10. So far back as 1873, in Queen v. Sabed Ali 20 Suth W R (Cr) 5 (A), it was pointed out that Section 149 did not ascribe every offence which might be committed by one member of an unlawful assembly while the assembly was existing, to every other member. The section describes the offence which is to be so attributed under two alternative forms: (1) it must be either an offence committed by a member of the unlawful assembly in prosecution of the common object of that assembly ; or (2) an offence such as the members of that assembly knew to be likely to be committed in prosecution of that object.
In Barendra Kumar Ghosh v. Emperor the distinction between Sections 149 and 34, Penal Code was pointed out. It was observed that Section 149 postulated an assembly of five or more per ons having a common object, namely, one of those objects named in Section 141, and then the doing of acts by members of the assembly in prosecution of that object or such as the members knew were likely to be committed in prosecution of that object. It was pointed out that there was a difference between common object and common intention ; though the object might be common, the intention of the several members might differ. The leading feature of Section 34 is the element of participation in action, whereas membership of the assembly at the time of the committing of the offence is the important element in Section 149. The two sections have a certain resemblance and may to a certain extent overlap, but it cannot be said that both have the same meaning.
The distinction between the two sections was again explained in a recent decision of this Court. Nanak Chand v. State of Punjab, Cr App No. 132 of 1954, D/- 25-1-1955 ."
From the above exposition of law, it is clear that:-
(i) Though express agreement after mutual consultation to infer "common object" of the assembly of five or more persons is by no means necessary but it is incumbent on the prosecution to prove that the offence was committed in prosecution of the "common object" which should be common to all the members of the assembly and that the said offence was committed with a view to accomplish that common object.
(ii) There may be a situation where unlawful assembly may be formed at any stage by all or few members of the assembly and it need not continue to be the same. Some others members may have just joined or adopted it. It may be modified or altered or abundant at any stage.
(iii) It is possible that members of an unlawful assembly may have community of object upto a certain point beyond which they may differ in their object 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 of this, the effect of Section 149 may be different on different members of the same assembly.
(iv) An assembly which was not unlawful when it assembled may later become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one, comes into existence at the outset. The time of forming an unlawful intent is not material.
We may further note that the object and motive is entertained in human minds and it being merely a mental attitude, no direct evidence can be available and, like intention, object of the assembly has to be gathered from the act which the person commits and the result therefrom. There cannot be any hard and fast rule to lay down the circumstance 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 part of Section 149 implies something more than a possibility and it cannot be made to assume or presume that "it 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. The converse preposition, however, is not true. There may be cases which would come within the second part and not within the first part. The distinction between 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 member of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part.
Keeping this in mind, the Apex Court in Chikkarange Gowda11 has made a distinction between first and second part of Section 149 and held that the High Court was not justified in law in conviction under Section 302 read with Section 149 IPC when it reached at the conclusion that the common object of the unlawful assembly was merely to administer a chastisement to deceased.
In light of the above legal position for invocation of Section 149 IPC, the crucial question before us to find out in the instant case as to whether the offence of murder was committed by accused Bhudhar in prosecution of common object of the unlawful assembly which was to kill deceased Bhikari Lal or that the act of firing was his individual act only.
Answer to this question is necessary to fix vicarious liability on accused-appellant Chander and convict him for the murder committed by accused Bhudhar.
Having analyzed the oral testimony, the whole basis of prosecution case in the surrounding circumstances noted above, we find that only this much is proved by the prosecution that accused persons came to the spot with the common object of assaulting deceased Bhikari Lal in order to teach him a lesson so that he may not enter in the witness box against them and in prosecution of their common object, they started assaulting Bhikari lal by Lathi. The deceased somehow managed to save himself and got only one blow of Lathi in his head, but his death was caused by the firing made by Bhudhar who opened the fire seeing the villagers/witnesses coming towards them. The act of Bhudhar in opening fire, in our considered opinion, seems to be his own individual act and not an act in prosecution of 'common object' of the unlawful assembly. We say so because to our minds had the accused persons formed the unlawful assembly with the common object to kill deceased Bhikari Lal, Bhudhar (who was carrying a gun) could have opened fire as soon as the accused party caught the victim party and fled the spot. It is evident that firing was opended by Bhudhar apprehending that they might be caught or attacked by the villagers who were approaching them. The act of Bhudhar appears to be spontaneous and not in furtherance of common object of the assembly.
We are convinced that the act of firing by Bhudhar cannot be attributed to the common object of the unlawful assembly and other members of that assembly cannot be held vicariously liable for the spontaneous act of one member of the assembly. But there cannot be a dispute that the appellant Chander was carrying Lathi which is proved from the statement of eye witnesses. The deceased was inflicted grievous injuries on his vital part (head) by the blow of Lathi. Mere fact that only one blow of Lathi was sustained by deceased, it cannot be said that the said injury cannot be attributed to the common object of the unlawful assembly. Being brother of the main assailant Bhudhar, it cannot be said that appellant Chander was not sharing the common object of the unlawful assembly to assault the deceased Bhikari Lal to teach him a lesson so that he may not appear in the witness box to depose against them.
Further, from the above conspectus of the facts and circumstances of the instant case, the common object of unlawful assembly can only be inferred to cause grievous injuries and not to kill the deceased. The assembly formed by five or more persons was unlawful from the beginning and they shared common object to cause grievous injuries to deceased but not to kill him and thereby committed offence punishable for "culpable homicide not amounting to murder". The act of Bhudhar in causing death of Bhikari Lal by opening fire during the course of the scuffle is found to be his own individual act and not in furtherance of common object of the unlawful assembly. The prosecution has not been able to bring any cogent evidence on record to prove that all the accused persons had shared the common object of committing murder or that they had positive knowledge that the offence of murder was likely to be committed in prosecution of that object. As the common object to kill or murder deceased is not proved and the testimony of prosecution witnesses is found doubtful in that respect, the benefit of doubt has to go in favour of the accused appellant Chander.
As far as the second part of Section 149 is concerned, in the totality of the facts and circumstances of the instant case, the appellant accused Chander can only be said to have shared the knowledge of common object of the unlawful assembly to cause grievous hurt to deceased. The knowledge that the act of unlawful assembly was likely to cause death of the deceased cannot be safely attributed to him.
In the instant case, the accused person came together armed with deadly weapons and started assaulting the deceased and another injured witness on the exhortation made by the appellant Chander. Up to that extent, the common object of the unlawful assembly to cause grievous injuries to the deceased with a view to teach him a lesson is proved by the prosecution. Beyond that point, the prosecution has not been able to bring any cogent evidence which would prove that other members of the unlawful assembly shared a common object or knowledge to kill deceased Bhikari Lal and in prosecution of that common object one of the accused Budher had opened fire from the gun carried by him.
We may note at the cost of repetition that deceased had sustained single blow of Lathi which may not be sufficient in ordinary course of nature to cause his death within the meaning of clause (3) of the Section 300 IPC. The appellant could be at best saddled with knowledge that the act of unlawful assembly might result in death of the person they attacked. It could not be assumed that he had knowledge that such a blow would cause death. He is, therefore, held liable for commission of the offence under Section 304 (part-II) of the IPC.
To the above extent, we do not agree with the conclusion drawn by the trial court. The trial court appears to have been swayed away by the motive assigned by the prosecution, to commit the crime. As far as the motive is concerned, it is well settled that motive is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited the accused to commit a particular crime. In a case of direct evidence, motive is not of much importance. But when motive is proved it is evidence of the evil intention and is also relevant to show that the person who had the motive to commit the crime actually committed it. Significance or relevancy of motive would primarily depend upon the facts and circumstances of a given case.
In the instant case, even if we accept the presence of motive assigned by the prosecution to commit the crime, it would not be a factor which can be weighed in favour of the prosecution to hold that the common object of unlawful assembly was to commit murder or kill deceased Bhikari Lal. From a careful analysis of the oral testimony of prosecution witnesses we have concluded that common object of unlawful assembly was not to cause murder of deceased but to cause grievous injuries with a view to teach him a lesson not to appear in the witness box against them. Having held that we can not give much credence or undue importance to the motive assigned to the accused party so as to tilt the balance in favour of the prosecution or against accused appellant Chander so as to hold him liable for committing the offence of murder.
In light of the above discussion, in the totality of facts and circumstances of the instant case, we modify the judgement of the trial court to convict the accused appellant Chander being guilty of an offence under Section 304 (Part-II) IPC. In our considered opinion in the facts and circumstances of this case, the common object of unlawful assembly being one of causing grievous hurt with the deadly weapon by hitting deceased on his vital part (head), would make the appellant vicariously liable for conviction of an offence punishable under Section 304 (Part-II) IPC and a sentence of 7 years rigorous imprisonment with fine of Rs.10,000/- is to be awarded to him for the said offence. The conviction of appellant Chander for the offence under Section 147 IPC is, however, found justified. The sentence of six months rigorous imprisonment for the said offence awarded by the trial court to appellant Chander is hereby upheld. Both the above punishments are to run concurrently.
We are told that the appellant Chander has undergone some part of the sentence awarded to him by the courts below. He was earlier granted bail but is languishing in jail since 05.09.2019 in pursuance to the Non-bailable warrant dated 30.04.2019 issued by this Court in the present appeal. For the period of sentence undergone by appellant Chander, he is entitled to be given remission.
Computing the total period of the sentence undergone by appellant Chander, he be kept in the jail to serve out the remainder of sentence, if any. He shall be entitled to be released from jail only after serving out the sentence of 7 years rigorous imprisonment (maximum punishment awarded to him) and also on deposit of fine of Rs.10,000/-.
In case of non-deposit of fine imposed as above, the appellant Chander would be liable to serve further six months rigorous imprisonment.
With the above, the Appeal No.1768 of 1996 is partly allowed.
Certify this judgement to the court below for compliance.
Compliance report be submitted through the Registrar General, High Court, Allahabad.
(Pradeep Kumar Srivastava,J.) (Sunita Agarwal, J.)
Order date:-28.04.2020
Himanshu