Allahabad High Court
Bahadur & Another vs State Of U.P. on 29 April, 2019
Equivalent citations: AIRONLINE 2019 ALL 924
Author: Ritu Raj Awasthi
Bench: Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on 15.04.2019 Delivered on 29.04.2019 Court No. - 16 Case :- CRIMINAL APPEAL No. - 946 of 2001 Appellant :- Bahadur & Another Respondent :- State Of U.P. Counsel for Appellant :- Vivek Shrotria,Manish Bajpai Counsel for Respondent :- Govt.Advocate Hon'ble Ritu Raj Awasthi,J.
Hon'ble Virendra Kumar-II,J.
(Delivered by Virendra Kumar-II, J.)
1. Heard Mr. Manish Bajpai, learned counsel for appellants (Amicus Curiae), Mr. Hari Shankar Bajpai, learned A.G.A. for the State and perused the lower court record.
2. This appeal has been preferred assailing impugned judgment and order dated 28.8.2001 delivered by the court of learned Additional Sessions Judge, Court No. 4, Sitapur in Sessions Trial No. 80 of 1985 (State Vs. Bahadur and others) arising out of Case Crime No. 6 A of 1985 under Section 302 read with Section 34 IPC of Police Station Sidhauli, District Sitapur. The appellants have been convicted by the trial court. The appellant Bahadur has been convicted for offence punishable under Section 302 IPC and appellant Ram Pal has been convicted for offence punishable under Section 302 read with Section 34 IPC and sentenced them to undergo imprisonment for life and amount of Rs. 5,000/- on each appellant has been imposed with default stipulation to serve out additional simple imprisonment for one year by each of the appellant.
3. The co-accused Mahaveer and Puttu had expired during the course of trial, therefore, the proceedings against them were dropped due to their death.
4. The complainant Ram Lal son of Sheetal Yadav submitted written report (Ex. C-1) on 2.1.1985 at Police Station Sidhauli, District Sitapur. On the basis of written report, crime no. 6 A of 1985 under Section 302/34 IPC was registered at Police Station Sidhauli, District Sitapur, and other documents i.e. check FIR (Ex. C-2), photolash (Ex. Ka-6), Police form 13 (Ex. Ka-7), sample of seal (Ex. Ka-8), copy of G.D. No. 15 dated 2.1.1985 (Ex.C-3) were prepared.
5. As per prosecution version, the complainant Ram Lal narrated in his written report that his cousin brother Shiv Lal and Chandrika son of Raggha were having animosity on the basis of cutting of trees. Bhagwan Deen (son) and Barati Lal (son in law of Chandrika) were murderd one and quarter year ago. Bhagauti alias Bhabhuti son of Chandrika lodged FIR against Shiv Lal, his family members and friends. Total ten persons were named by him. It is also mentioned in this FIR that on the date of occurrence i.e. 2.1.1985 at 9:45 a.m., there was rumour that Bhagauti alias Bhabhuti has been murdered and his dead body was lying in the agricultural field in which crop of Arhar (pulse) was standing. Chandrika wielded with lathi, his son Bahadur wielded with gun, Ram Pal and Mahaveer sons of Mohan wielded with gun, Kallu wielded with Kanta, Jagannath son of Gopal and Bodhe son of Dayal, wielded with lathi, Prasad and Mahesh sons of Pooran wielded with spear, son of Raggha wielded with lathi and Chhatrapal son of Chandrika came at door of house of Shiv Lal abused them, threatened to eliminate them and fire shots. Dwarika, his wife Chhedana, grand daughter Fulwasa, Laxmi Narain son of the complainant, Shiv Deen son of Jagannath and Shiv Lal son of Neelkanth, ladies and children were present. They rushed towards their houses. The accused persons fired shot on Dwarika, his wife and grand daughter and they fell down on the ground. The complainant entered in his house, accused Chandrika exhorted that set ablaze houses of the complainant side, then the accused persons set ablaze their houses. The accused persons fled away from the place of occurrence. The complainant found Dwarika, his wife and grand daughter Fulwasa dead. Sushree Fulwasa was burnt also, because burnt Chappar fell down on her. The villagers also escaped. Male and female members were stuck in burnt houses.
6. The complainant Ram Lal son of Sheetal Yadav has also mentioned in this FIR that in the course of above incident, Chhanga son of Lalla resident of Laxmanpur met him, who apprised him that the appellants Bahadur and Ram Pal, along with Mahaveer and Puttu co-accused persons reached in his village and searched Sardar, who was his acquaintance. These accused persons when did not find Sardar, they chased Raju son of Sardar. Chhanga also apprised him that his father Lalla was present in front of door of house and he was grazing their cattle. His father Lalla asked the accused persons do not chase Raju then accused Bahadur shot fire on his father Lalla an exhortation made by coo-accused persons. This incident was witnessed by Mohan Lal son of Ram Gopal, Mahaveer son of Teeka Yadav and other villagers.
7. The Investigating Officer recorded the statements of witnesses, inspected the place of occurrence and prepared site plan (Ex. Ka-11). The Investigating Officer has also prepared inquest report (Ex. Ka- 4 & 5) of dead body of deceased Lalla and (Ex. 2 to 8) papers for autopsy of dead body of deceased were also prepared.
8. The postmortem report (Ex. Ka-1) of dead body of the deceased was prepared by the concerned doctor. The Investigating Officer submitted charge sheet (Ex. Ka-12) against Bahadur, Ram Pal, and co-accused persons Mahaveer and Puttu before the competent court.
9. The Court of learned Judicial Magistrate-I Sitapur vide order dated 30.1.1985 committed this case to the court of Sessions.
10. The trial court of learned Additional Sessions Judge VII, Sitapur framed charges against appellant Bahadur for offence punishable under Section 302 IPC and co-accused Ram Pal/appellant Mahaveer and Puttu (Both accused since dead) for offence punishable under Section 302/34 IPC on 13.3.1985. All the appellants pleaded not guilty and claimed to be tried.
11. The trial court has recorded statement of PW-1 Dr. A.A. Khan, PW-2 Chhanga, PW-3 Mahaveer son of Teeka Yadav, PW-4 Raju, PW-5 Shri Rizwan Haider, retired Dy. S.P., the Investigating Officer. He was again re-examined as CW-1 on 10.9.1999.
12. These witnesses have proved the aforesaid documents relied upon by the prosecution.
13. The trial court has recorded statement of accused persons under Section 313 Cr.P.C. on 7.8.1995. The appellant Bahadur has stated that case of murder of Bhagwan Deen and Barati was pending against Shiv Lal, Ram Swaroop, who was son of Shiv Lal and other accused persons. This was not pending against Lalla. The police personnel got registered FIR on behalf of Ram Lal. The witnesses have adduced their evidence to support accused persons of murder of Bhagwan Deen and Barati with help of police personnel. He has stated that statement of Bhagauti was recorded during the course of trial, but accused persons sought time to cross-examine him and prior to the date of his cross examination, he went Sidhauli, but did not return. He was informed by Ram Prasad and Mahaveer that Bhagauti has been murdered by accused persons and his dead body was lying at the place of occurrence. Chandrika went to lodge FIR and they were present at the place, where the dead body was lying. The case of aforesaid murders of Bhagwandeen and Barati was pending against Shiv Lal, Ram Swaroop son of Shivlal and other accused persons. He has stated that he was falsely implicated by accused persons in this crime.
14. The appellant Ram Pal has stated that the Investigating Officer conducted investigation of this crime falsely. The witnesses were adducing their evidence due to enmity under the influence of police personnel.
15. The appellants/accused persons had not adduced any evidence in defence.
16. The death report of Puttu was received in the trial court on 8.3.1999 and proceedings were abated against him. The proceedings of trial were also abated on 28.8.1992 due to death of co-accused Mahaveer.
17. The trial court after appreciating and analysing the evidence of witnesses has convicted the appellants Bahadur and Ram Pal and awarded the aforesaid punishment.
18. We have perused record of S.T. No. 80 of 1985: State Vs. Bahadur and another of police station Sidhauli, District Sitapur.
19. Learned Amicus Curiae has argued that the comlainant Chhanga son of Lalla, the deceased has not lodged any F.I.R. of this crime and the police personnel wrongly connected the incident of murder of Lalla with incident reported by Sri Ram Lal son of Shital Yadav, resident of Village Mohhadinpur within limits of police station Sidhauli Sitapur. The alleged incident of murder of Lalla is separate one and investigation of this crime could not be clubbed with incident dated 02.01.1985 occurred in village Mohhadinpur, because the complainant Chhanga is resident of village Lakshmanpur within limits of police station Sidhauli, District Sitapur. The Investigating Officer has wrongly investigated this crime jointly with incident of murder of Dwarika his wife, Smt Chhidana and Fulwasa, which was the separate incident. The Investigating Officer got mentioned incident in F.I.R. of Crime No. 6A of 1985 of Police Station Sidhauli, on behalf of the complainant Chhanga to improve seriousness and gravity of the aforesaid crime.
20. Learned amicus curiae has also argued that PW-2 Chhanga was employed at shop of Dinesh Halwai at Lucknow. He was not present in village Lakshamanpur at his house on 2.1.1985 at 10.00 a.m., when his father was murdered. He was called afterwards from Lucknow. He is not panch witness of the inquest proceedings, therefore, his presence at the date and time of incident is doubtful. Moreover, there is contradiction in his statement and witness PW-3 Mahaveer that he met Chhotkau Chaukidar at place of occurrence or not or at which time PW-5 Investigating Officer visited place of occurrence on 2.1.1985 at 8.00 p.m. or 9.30 p.m. for conducting inquest proceedings of dead body of the deceased.
21. We have perused photocopy of written report (Ext C-1) submitted by Ram Lal son of Sheetal Yadav and photocopy of G.D. No. 15 of registration of crime No. 6A of 1985 (Ext Ka C-3) and photocopy of Check F.I.R. (Ex.C-2). These documents have been proved by CW-1, Rizwan Haider, retired Deputy Superintendent of Police. He has stated that on 02.01.1985 he was Station House Officer of Police Station Sidhauli. The complainant Ram Lal son of Sheetal Yadav came at the police station and submitted written report. The original written report was available on record of S.T. of 79 of 1985 and CW-1 has proved photocopy of this written report on basis of original written report.
22. CW-1 has further stated that Constable Teekam Singh prepared Check F.I.R. (Ext C-2) in his handwriting and signature. The original Check F.I.R. (Ex Ka-108) was also available on record of S.T. No. 79 of 1985 and G.D.No. 15 dated 02.01.1985 was prepared by Constable Teekam Singh, which has been proved by CW-1 as Ext C-3. He has stated that original G.D. No. 15 of registration of crime has been wedded out. He has mentioned that Constable Teekam Singh on 02.01.1987 during course of trial S.T. No. 79 of 1985 proved this G.D. on basis of original G.D. by preparing hand written copy of G.D., which was available on record of S.T. No. 79 of 1985 (Ext ka-109).
23. CW-1 during his cross-examination has stated that written report of the complainant Ram Lal was registered as Crime No. 6 A. Chandrika lodged F.I.R. of murder of Bhabhuti and submitted written report at the police station. On the basis of his written report Crime No. 6 of 1985 under Section 147, 148, 149 and 302 I.P.C. was registered. He has refuted this suggestion that Crime No. 6A was registered ante time and with due deliberation and consultation. Its time of registration was mentioned afterwards and G.D. of police station Sidhaauli was stopped.
24. On perusal of written report submitted by Ram Lal son of Shhetal Prasad, it reveal that Chandrika, Bahadur (appellant), Chhatrapal, Ram Pal (appellants), Jagganath, Dayal, Prasad, Mahesh and Ragha opened indiscriminating firing near house of Shiv Lal, who is cousin brother of the complainant Ram Lal. Dwarika, his wife Smt. Chhidana and Sushree Fulwasa sustained firearm injuries and died on the spot. These accused persons also set ablaze houses of various persons including Shivdeen son of Jagganath, Shiv Lal son of Neelkanth and Dwarika etc. The burnt Chhapar fell down on Fulwara and her body was also burnt. In the meanwhile, the complainant Lalla apprised the complainant Ram Lal that appellants Bahadur and Ram Pal along with co-accused Mahaveer and Puttu (both since dead), were searching Sardar, who was acquaintance of complainant Ram Lal and neighbour of the deceased Lalla. When the accused persons including appellants could not found Sardar, then they chased Raju son of Sardar. They returned and the deceased asked them, why they were chasing Raju, then Bahadur sought fire on the deceased Lalla on exhortation made by the co-accused persons.
25. On perusal of the facts narrated in this written report, it is apparent that murder of Lalla was part of the same transaction, in which, the deceased Dwarika, Smt. Chhidana and Fulwasa were murdered in Village Mohhadinpur by the accused persons and their associates. The accused persons Chandrika, Mahaveer, Puttu, Bahadur (appellant), Ram Pal (appellant), Chhatrapal, Dayal, Jagganath, Kallu, Ram Prasad and Mahesh were tried by the Court of Additional Sessions Judge, Sitapur in Session Trial No. 79 of 1985. The accused persons Chandrika, Mahaveer and Puttu expired during pendency of the trial. The eight accused persons were convicted by the trial Court regarding incident of murder of Dwarika, Smt. Chhidana and Fulwasa.
26. The appellant Bahadur and Ram Pal preferred Criminal Appeal No. 830 of 2001 and the remaining 06 accused persons preferred Criminal Appeal No. 943 of 2001. These both appeals were decided by a common judgment of this Court on 25.07.2002. The appellant Bahadur and Ram Pal were convicted with capital punishment/death sentence.
27. Learned trial Court made reference to this Court, which was heard as capital sentence reference as No. 04 of 2001. This Court vide judgment dated 25.07.2002 has rejected confirmation of death sentence of Bahadur and confirmed death sentence of Ram Pal. Criminal Appeal No. 830 of 2001 was partly allowed. Criminal Appeal No. 943 of 2001 was also partly allowed. The operative portion of the aforesaid judgment reads as under:
" 54. In the result:-
(A) Capital Sentence Reference No. 4 of 2001:-
Reference made by the learned Trial Judge for confirmation of the death sentence of Bahadur is rejected and that made for confirmation of death sentence of Ram Pal is accepted.
(B) Criminal Appeal No. 830 of 2001:-
Appeal is party allowed.
The convictions and sentences of the appellant Bahadur on counts, excepting Section 302 I.P.C., are confirmed. He is acquitted for the offence punishable under Section 302 I.P.C. and his sentence of death thereunder is set aside. Instead he is found guilty for the offence punishable under Section 302 read with 149 I.P.C. and is sentenced to undergo imprisonment for life for the same. His sentence of imprisonment for life thereunder, shall run concurrently with the substantive sentences imposed on him by the Trial Court on other counts.
The convictions and sentences of appellant Ram Pal on all the counts are confirmed. His substantive sentences shall run concurrently.
Appellants Bahadur and Ram Pal are in Jail and shall serve out their sentences.
(c) Criminal Appeal No. 943 of 2001:-
Appeal is partly allowed. Appellant Kallu is given the benefit of doubt on all the counts and is acquitted thereunder. In case, he has paid the fine, it shall stand refunded to him.
Appellant Kallu is in jail and shall be released forthwith unless wanted in some other case.
The convictions and sentences of appellants Chhatrapal, Dayal, Jagannath, Ram Prasad and Mahesh are confirmed on all the counts. Their substantive sentences thereunder shall run concurrently. In case they have not paid the fine, they shall pay the same. They are in jail and shall serve out their sentences.
28. The appellant Ram Pal preferred Criminal Appeal No. 178 of 2003: Ram Pal Vs. State of U.P. assailing judgment dated 25.07.2002 delivered by Division Bench of this Court. Hon'ble Supreme Court has commuted capital punishment awarded against the appellant to undergo imprisonment for life vide judgment dated 06.08.2003.
29. The complainant Chhanga PW-2 is son of the deceased Lalla. He is resident of Village Laxmanpur. He has stated that his village is at a distance of half mile from village Mohhadinpur. He has proved topography of his house and clarified that house of Mahaveer son of Teeka is adjacent to his house on Eastern Side and house of Mohan is adjacent on Southern side. The vacant land is also situated in Northern side of his house and campus, in which, cattles, cow, buffaloes and oxes are being tied at 02-03 places. "Nad" and "Channi" have been constructed in this vacant land. His grove is situated on Southern and Eastern side of "Chhanni". Trees of Goolar and Neem are standing in vacant land. Some vacant land is also situated in North of his grove and after it there is a "chakroad". On North side of "chakroad" agricultural land of Mohan Lal is situated, in which crop of Arhar (Pulse) was standing on the date of incident.
30. PW-2 Chhanga has stated that three years ago (prior to the date of recording of his statement) at 9.30-10.00 a.m. his father Lalla was grazing cattles in "Chhanni". He was present outside his house. He saw that appellant Bahadur and Ram Pal along with co-accused Puttu and Mahaveer were chasing Raju son of Sardar and they were coming from the Eastern side towards his house. Raju entered in the crop of Arhar (Pulse) standing in agricultural land of Mohan Lal. The appellant Bahadur and Ram Pal and co-accused Mahaveer were wielding guns and Puttu was wielding lathi. The appellant and co-accused persons returned near his "Chhanni" and asked his father that he had hidden Sardar in his house. The deceased enquire from them why they were chasing Raju and apprised them that Sardar had not hidden in his house. All the accused persons exhorted to eliminate his father Lalla. The appellant Bahadur shot fire from his gun on the deceased in his presence. PW-1 raised alarm, then witnesses Mohal Lal and Mahaveer reached at the place of occurrence and saw the accused persons. His father after sustaining firearm injury fell down on the ground, then all the accused persons including appellants fled away enroute Arhar (pulse) field.
31. The complainant PW-2 has also stated in his examination-in-chief that due to fear of the accused persons he had not gone to the police station straightway. He went in village Mohhadinpur, where he saw that houses of the entire village were set ablaze/on fire. The complainant Ram Lal, resident of Mohhadinpur met him on the Eastern side of house of the deceased Dwarika. The dead body of the Dwarika, his wife and Fulwasa were seen by him. He apprised the complainant Ram Pal about murder of his father and requested him to report the matter at the police station, because the accused persons had laid the way/ambushed on the way. The complainant Ram Lal assured him that he will report both the incident at the police station.
32. He has specifically stated that he returned back at the place, where dead body of his father was lying. The police personnel of Police Station Sidhauli/Sub Inspector visited the place of occurrence at 9.30 p.m.The Sub Inspector prepared inquest report of dead body of his father. The dead body was brought by Bullock-cart at police station Sidhauli. On the next day the Investigating Officer called them. He, witnesses Mohan and Mahaveer went at Village Mohhadinpur, where their statements were recorded and the Investigating Officer visited the place of occurrence. PW-1 Chhanga has also stated in his examination-in-chief that Bhagwandeen son of Chandrirka and Barati, who was son-in-law of Chandrika, were murdered one year prior to the date of incident of this crime. The trial of this double murder was pending, in which, Sardar, who is father of the witness, Raju was also accused along with total nine accused persons.
33. PW-2 in his cross-examination has disclosed height of walls raised in his house. He has stated that Northern and Eastern wall of North side was one-one and half 'hath' and height of wall of Southern side was three-four 'hath'. There was no door fixed in Easter wall. There is no door on the Northern side in his house. Likewise, he has disclosed construction available in house and location of grove of Mohan Lal. He has specifically stated that his "Chhanni" is situated on Southern side of way, which is situated in North of his house. He has also stated that agricultural field of Mohan Lal, in which, crop of Arhar (pulse) was standing was admeasuring 6- 7 bighas. His grove and grove of Mohan Lal are adjacent.
34. The witness PW-2 has also reiterated in his cross-examination that house of Mohal Lal is situated, in between, his house and house of Sardar. He did not saw sardar in the village one day prior to the date of incident. He was not the pairokar of Sardar and Sardar was Village Head of Village Laxmanpur. Sardar was accused of murder of Bhagwandeen and Barati. He apprised the Investigating Officer that the complainant Ram Lal helped him, because he lodged F.I.R. on his behalf also, otherwise the complainant Ram Lal never helped him in any other matter. He has clarified that agricultural land of Ram Lal is adjacent to his agricultural land, therefore he knows Ram Lal from 5-10 years ago. They did not take help of each other in any kind of agricultural work. He has no visiting terms with Shiv Lal also, although he knows that Shiv Lal is resident of village Mohhandinpur. He has stated that witness Mahaveer is (cousin's son) nephew of the deceased Lalla and Mohan Lal is not cousin brother of Sardar. He has refuted this suggestion that he is concealing father's name of Ram Gopal and Gajodhar regarding their relationship.
35. He has mentioned that on the date of incident Raju was aged 17-18 years and his father Lalla was aged 50-60 years. He resided with his father Lalla in his house. His brother are Babu Lal (Babu Ram), Hanuman Prasad and Ayodhya Prasad (Jhabbu). They were also residing with him. Hanuman Prasad was aged 18-20 years.
36. PW-2 has further stated in his cross-examination that on the date of incident 15-16 cattle were tied on "Khunta" on the Western and Northern side of "Channi". These cattle were not tied in "Channi". His father was filling graze in their cattle's "Nad" only. He has also stated that he does not remember, when the Investigating Officer called him at village Mohhadinpur, but he has clarified that it was noon, when he went Mohhadinpur on the next day. The Investigating Officer enquired from him for one and half or half hour. He does not remember also that on the next day, whether any police personnel visited his village or not, but he has stated that police personnel often visited his house daily.
37. PW-2 has further stated that the Sub Inspector prepared Inquest Report of dead body of the deceased in his village in light of torch, lantern and "dibri". He also does not remember that the Sub Inspector, who prepared Inquest report had contacted him again or not.
38. The PW-2 in his cross-examination dated 14.01.1988 has specifically stated that he and his father and brother Hanuman, Ayodhya (Jabbu) and Babu Ram (Babu Lal) were present at door of their house and the accused persons including appellants came towards their house from eastern side, while they were chasing Raju. He saw the accused person from a distance of 8-9 paces. Raju managed to escape towards North side in agricultural field of Mohan Lal, which was situated at 10-15 paces. He has mentioned that his father or brothers or he did not chase the accused persons. The appellant and co-accused had not asked them, whether Sardar was hidden himself in their house or not. The accused persons did not fire on Raju until he entered in Arhar (pulse) crop of Mohan Lal. They returned and were standing in front of Northern door their house.
39. PW-2 has also stated that they were not standing below "chhaper" and no such statement was given by him to the Investigating Officer. The Investigating Officer prepared Site Plan of the place of occurrence in his presence. He has also mentioned that Raju was running in front of his "channi" towards North side. The accused persons chased Raju up to the "Merh" of the Arhar (pulse) field of Mohan Lal. He and his brothers were standing on their door of their house and his father went to drop graze in "channi". When his father sustained firearm injury, he had dropped graze in "channi"/ "Nad", therefore, "Dalia"/basket also fell down, which was empty.
40. PW-2 further mentioned that when appellant and co-accused returned back at the place of occurrence, they were at a distance of 15-20 paces from him. He did not apprise the Investigating Officer that Raju was running towards Northern side of the agricultural field of Mohan Lal. He has further stated that his father had a conversation with the accused persons from a distance of 1-2 paces. The appellant Bahadur fired shot on his father at this place.
41. PW-2 in his statement/cross-examination has stated that he saw the houses, which were burnt in village Mohhadinpur prior to the incident, when accused persons chased Raju. His village is at a distance of half mile from village Mohhadinpur and agricultural fields are situated in between both the villages. He saw Dwarika, his wife Smt. Chhedana and Sushree Fulwasa dead on Eastern side of their house. He does not remember that he apprised the Investigating Officer about the fact that all the villagers escaped after murder of Dwarika, his wife and Fulwasa from the village. He apprised the Investigating Officer that when he reached near Mohhadinpur at a distance of 04-06 agricultural fields. He saw that houses were set on fire.
42. PW-2 has further mentioned that he was going to lodge report of the incident of murder of his father. The accused persons were resident of village Mohhadinpur. He apprised the Investigating Officer that he had not gone to the police station straightway, but was going enroute village Mohhadinpur. He did not see the accused persons, while he was going to village Mohhadinpur. He has specifically stated that he stayed with Ram Lal during period only, in which, he apprised him about murder of his father. He met Ram Lal only in village Mohhadinpur. He also apprised the Investigating Officer that the complainant Ram Lal was apprised by him about the incident of murder of his father and he requested him to report the matter at the police station and he will not go to the police station, because the accused persons had laid the way and ambushed.
43. PW-2 Changa has further stated that when accused persons fled away after committing murder of his father, 50-60 villagers gathered at the place of occurrence.
44. PW-2 has further stated that Chhautkau Chaukidar is resident of village Shahwajpur and he lived at police station. The Chaukidar was seen by him one day before, when he was going to the police station. He has mentioned that the complainant Ram Lal assured him that he will report the matter by lodging F.I.R. along with his report. This fact was apprised by him to the Investigating Officer. He has specifically stated that he did not meet Raju or his father Sardar, when he returned back from Mohhadinpur at the place of occurrence. He stayed until police personal visited the place of occurrence and sent the dead body of his father. Chaukidar Chhotkau also did not visit the place of occurrence.
45. PW-2 has again reiterated that he went in the village Mohhadinpur along with Mohan Lal and Mahaveer witnesses, when the Investigating Officer called them on the next day and stayed for half an hour. He has refuted this suggestion that his father Lalla was called by Dwarika one day prior to the date of incident at his house in Mohhadinpur and Lalla stayed there at night. He has also refuted this suggestion that he lodged the F.I.R. on behest of Ram Lal, complainant and Sardar.
46. Therefore, on perusal of statement of PW-2 Chhanga, it reveal that when the appellants and co-accused committed murder of his father and fled away from place of occurrence, he was going for lodging F.I.R. at the police station enroute village Mohhadinpur. He was afraid from the accused persons also. He met with the complainant Ram Lal in village Mohhadinpur, where he saw dead body of Dwarika, Smt Chhedana and Fulwasa. He apprised the complainant Ram Lal about murder of his father and requested him to lodge F.I.R. on his behalf also. He himself could not muster courage to lodge F.I.R. at the police station directly himself due to fear of the accused persons.
47. It is quite possible, because the associates of accused persons including appellants set on fire house of villagers of Mohhadinpur and witness PW-2 saw these houses, which were burnt by the accused persons and their associates and three aforesaid persons were murdered. The appellant and co-accused also had murdered his father, therefore his mental state might have adversely affected also and he thought not to go at the police station to lodge the F.I.R. The police personnel of police station Sidhauli took action on the basis of F.I.R. lodged by the complainant Ram Lal and visited the place of occurrence, as stated by PW-2 at 9.30 p.m. on 02.01.1985 itself. Therefore, the criminal law was set in motion on the basis of written report lodged by the complainant Ram Lal son of Sheetla Prasad and the police personnel prepared inquest report of dead body of the deceased Lalla and sent his dead body for autopsy.
48. CW-1, the Investigating Officer has proved this fact that on the basis of written report submitted by Ram Lal, he being the Investigating Officer/Station House Officer of the police station Sidhauli took up investigation of both incident committed in village Mohhadinpur and Village Lakshmanpur by the accused persons including appellants. Therefore, there is no substance in argument of learned Amicus Curiae that the separate report was not lodged by the witness PW-2 Chhanga regarding murder of his father. Apparently, the both incident committed by appellants and their associates including co-accused Puttu and Mahaveer were part of the same transaction of incidents.
49. Learned Amicus Curiae has further argued that there was no occasion for the appellants and co-accused persons to chase Raju son of Sardar, while Sardar was the accused of murder case of Bhagwandeen and Barati. The appellants and co-accused persons were searching Sardar, then it is not believable that the accused persons committed murder of the deceased Lalla. The deceased Lalla was not a witness or accused of the aforesaid double murder case. As per suggestion given to PW-2 Chhanga regarding the fact that his father Lalla visited house of Dwarika, one day prior to the incident and stayed there, therefore, the deceased Lalla was murdered either at house of Dwarika or elsewhere by the unknown persons and his dead body was placed on the vacant land of the witness PW-2 in front of his house.
50. Learned A.G.A. has submitted that since Sardar was accused of murder of Bhagwandeen and Barati and on the date of incident i.e. 02.01.1985 another son Bhagauti of accused Chandrika was also murdered by some body. Therefore, a premeditated crime was committed by the appellant and their associates, firstly in village Mohhadinpur, where the aforesaid three persons Dwarika and his family members were murdered and their houses including houses of Shiv Deen, Shiv Lal and Laxmi Narayan etc. and the complainant Ram Lal were set ablaze. Then they searched Sardar in village Laxmanpur, because he was also an accused of murder of Bhagwati and Barati. It may be possible that the appellant and other associates had suspected that Bhagauti was murdered by Sardar. Therefore, they were searching Sardar to take revenge of murder of Bhagauti. Shiv Lal, cousin brother of the complainant Ram Lal and his family members and their acquaintance, total 10 accused persons were named by Bhagauti @ Bhabhuti son of Chandrika Yadav in this double murder. Therefore, murder of Lalla was also part of the same transaction, in which, the appellants and co-accused persons committed murder of Lalla on 02.01.1985 at 9.30-10.00 a.m.
51. We have also perused statements of PW-3 Mahaveer son of Teeka Ram and PW-4 Raju son of Sardar.
52. PW-4 Raju has stated that his father Sardar and other accused persons resident of Mohhadinpur were accused of murder of Bhagwandeen and Barati. On the date of incident of murder of Lalla, the trial of double murder was pending. One day prior to the date of murder of Lalla, Bhagwati, who was brother of Bhagwandeen was murdered and dead body of Bhagauti was found in agricultural field of Mahaveer. He has further stated in his examination-in-chief that he was present on door of his house ten year and three months ago (prior to the date of his recording statement i.e. 24.03.1995) the appellant Bahadur and Ram Pal and Mahaveer were wielding guns and co-accused Puttu wielded "lathi" came at his house, they were searching for his father Sardar. PW-4 Raju ran away towards Northern side from his house enroute house of Lalla and he entered in Arhar agricultural field. He heard noise of fire after sometime when he came outside the agricultural field. He saw dead body of Lalla, which was lying in front of his house and near "channi".
53. PW-4 Raju in his cross-examination had not clarified name of other co-accused persons, who were involved in double murder of Bhagwandeen and Barati along with his father Sardar. When dead body of Bhagwati was found in agricultural field of Mahaveer, he had not gone to see it. He has further stated that he does not know villagers of Mohhadinpur. He has disclosed topography of houses of witness Changa and Mohan Lal. He has specifically stated that he ran away in Northern side for 150 yards and then turned towards Northern side and entered in Arhar field of Ram Lal. The Arhar field of Mohan Lal was situated in Northern and Eastern side of his house. This Arhar field of Ram Pal was situated in Western side of grove of Mohan Lal, in which he had hidden him for 15-20 minutes.
54. During his cross-examination, PW-4 has mentioned that when he came out from agricultural field and saw dead body of Lalla, then he went in village Tendua and reached there at the point of time of sun set. He stayed in village Tendua for 15 days. The Sub Inspector of police station Sidhauli did not contact him during this period. He has refuted this suggestion that the appellants and co-accused persons never came in his village and he was adducing his evidence due to enmity. He has also refuted this suggestion that Lalla was not murdered in his village.
55. PW-3 witness Mahaveer has stated in his examination-in-chief that 10 years ago (from the date of his statement i.e. 24.03.1995) at 10.00 a.m., he was present at his house. The appellant Bahadur and Ram Pal along with co-accused Puttu and Mahaveer were chasing Raju. Ram Pal, Mahaveer and Bahadur had wielded guns and Puttu had wielded "lahti". Raju son of Sardar was running towards Arhar field on Western side and entered in it. All the four accused persons crossed his house. They told Lalla, the deceased that Sardar had hidden him in his house. Lalla denied this fact. The witness PW-3 has stated that Chhanga was present at his house when he reached along with witness Mohan Lal at his house. The appellant Ram Pal, co-accused Mahaveer and Puttu exhorted that Lalla is associate of Sardar, therefore, eliminate him and appellant Bahadur shot fire on him. Lalla fell down after sustaining firearm injury and expired immediately.
56. PW-3 has further stated that they did not chase the appellant and co-accused persons they fled away from the place of occurrence towards Northern side.
57. PW-3 witness has stated in his cross-examination topography of houses of Sardar and witness Mohan Lal. His house is next to the house of Sardar and in between their houses, house of Mohan Lal is situated and main door of house of Mohan Lal is in North. Main door of house of Sardar is situated towards East. He has specifically stated that there is total 10-12 houses in his village. PW-3 has reiterated in his cross-examination that he was standing on Eastern door of his house, while accused persons were chasing Raju. The dilapidated house of Rameshwar is adjacent to his house and he was present on Western side of this dilapidated house of Rameshwar. He has clarified that Arhar field, in which Raju entered was adjacent to grove of Mohan Lal and this agricultural field was situated at a distance of 50 paces.
58. PW-3 in his cross-examination has further stated that the Investigating Officer visited his village at 8.00 p.m.. He did not apprise the Investigating Officer about the place, where he was sitting and he saw the accused persons, while they were chasing Raju. He met the Investigating Officer at house of Chhanga. He remained at his house in the night. The Sub Inspector called him at house of Chhanga and after this visit he did not met the same Sub Inspector. In his cross-examination, PW-3 has accepted that he is (cousin's son) nephew of the deceased Lalla and the accused persons had not fired on Raju, while they were chasig him. The accused persons did not enter in the Arhar field, in which Raju had hidden him. The accused persons were at a distance of 10-15 paces from Raju.
59. PW-3 has specifically stated that when the accused persons fired at the deceased Lalla, they were at a distance of 30-35 paces in Western side of his house. He and Chhanga remained at the place of occurrence up to 8.00 p.m., when Sub Inspector visited the place of occurrence. The Chaukidar Chhotkau also accompanied the Sub Inspector. The Chaukidar is resident of village Shahwajpur, which is situated at one and half mile from his village. The Chaukidar Chhotkau came at place of occurrence at 12.00 p.m. when accused persons fled away and he stayed with them for a while.
60. It is relevant to mention here that PW-2 Chhanga has specifically stated that he had gone to village Mohddinpur, when the appellants and co-accused persons fled away from place of occurrence after committing murder of his father. He met the complainant Ram Lal in village Mohdddinpur and apprised him about murder of his father Lalla. Therefore, at 12.00 noon he might have present with Ram Lal in village Mohiddinpur when Chotkau Chaukiar came at the place of occurrence, as stated by PW-3. Hence, there is no material contradiction in this regard in statements of PW-2 and PW-3.
61. PW-3 has refuted this suggestion that Chhanga was present at shop of Dinesh Halwai at Lucknow on the date and time of this incident and he was called from Lucknow, after murder of his father Lalla. He has also refuted this suggestion that Lalla was not murdered in his village and Lalla went Mohhadinpur in evening of previous day.
62. No suggestion was given to PW-2 Chhanga by learned defence counsel that he was at shop of Dinesh at Lucknow on 2.1.1985 and he was called in village after murder of his father. On the other hand he has specifically stated that he never worked at shop of Dinesh at Lucknow. PW-3 and PW-5 (Investigating Officers) has denied this fact also. The witnesses PW-2, PW-3 and PW-4 have proved that PW-2 was present in village Lakshmanpur at the date and time of murder of his brother. The presence of PW-2 on the place of occurrence is not doubtful. The contradiction is not material as suggested by learned Amicus Curiae regarding time of visit of Sub Inspector and presence of Chotkau Chawkidar because these minor contradictions may appear in statements of PW-2 and PW-3 on basis of loss of memory and disturbed mental state of PW-2 due to murder of his father. Moreover, no suggestion was given to PW-5 (Investigating Officer) that he along with Chotkau Chawkidar visited place of occurrence on 02.01.1985 at 8.00 p.m or 9.30 p.m. as stated by PW-2. PW-5 has specifically stated that he conduced inquest proceedings during period from 7.00 p.m. to 8.00 p.m. on 2.1.1985. Therefore, there is no substance in argument of learned amicus curiae in this regard.
63. Learned Amicus Curiae has argued that as per prosecution version accused persons were annoyed by the murder of Bhagauti, who was witness of double murder of his brother Bhagwandeen and brother-in-law Barati and in furor, they were taking revenge on 02.01.1985. They searched Sardar and found his son Raju. They chased him. The appellant Bahadur and Ram Pal and co-accused Mahaveer were wielded guns, even then they did not fire on Raju. This story of prosecution is not acceptable and believable.
64. On perusal of statement of witnesses PW-1 Chhanga and witnesses Mahaveer PW-3 and Raju PW-4, it is apparent that accused persons including appellants were searching for Sardar suspecting that he murdered Bhagauti, because dead body of Bhagauti was found on 02.01.1985 in agricultural field of Mahaveer. The appellants along co-accused persons visited village Laxmanppur in search of Sardar, who was accused in double murder of Bhagwandeen and Bhagauti. They saw Raju son of Sardar and chased him to know whereabouts of Sardar, but he could not be catched by them, because Raju entered in Arhar field owned by Ram Pal. Since Arhar field of Ram Pal and Mohan Lal were adjacent to each other and in both field Arhar crop was standing on the date of incident, therefore, contradiction pointed out by learned Amicus Curiae is not material that PW-2 Chhanga has stated in his cross-examination that Raju had hidden him in agricultural field of Mohan Lal, in which crop of Arhar was standing.
65. PW-3 Mahaveer has stated that Raju had hidden himself in Arhar field, which was adjacent to crop of Mohan Lal, which was situated adjacent to grove of Mohan Lal. PW-4 Raju has specifically stated that this Arhar field was not owned by Mohan Lal, but it was of Ram Lal. PW-2 Chhanga has also specifically stated that he saw Raju, when he entered in Arhar field from his house and he did not chase the accused persons. Therefore, since Raju PW-4 has specifically stated that he had hidden himself in Arhar field of Ram Lal, therefore, contradiction pointed out by learned Amicus Curiae, which appeared in cross-examination of PW-2 Chhanga that the witness Raju had hidden himself in Arhar field of Mohan Lal, is of no avail and does not extent any benefit to the appellants.
66. It is pertinent to mention here that appellant and co-accused persons were searching Sardar and they wanted to know his whereabouts from his son Raju. Therefore, there was no occasion for them to fire on Raju, while they were chasing him. In running position also it might have not be possible for them to use their guns. It is also relevant to mention her that during the course of incident the appellants and co-accused also told the deceased Lalla that he was an associate of Sardar and they suspected that Sardar was hidden in his house. Therefore, on exhortation made by the appellant Ram Pal and co-accused persons, Bahadur shot fire from his gun on the deceased Lalla.
67. As far as learned Amicus Curiae has pointed out that witness Raju, PW-4 has accepted this fact that at the point of time of incident, his father was cutting grass inside the house. Therefore, the statement of PW-2 Chhanga became suspicious that he did not see Sardar since the evening of previous day and he concealed this fact that Sardar was present in his house as stated by PW-4 Raju. PW-4 Raju has also stated in his cross-examination that he does not know, whether the appellant and co-accused persons saw his father Sardar, while he was cutting graze/grass inside house or not. On the other hand, it may be possible that the place in side the house of Sardar, where he was cutting grass was not visible from the way, on which the accused persons were chasing Raju in front of houses of PW-2 Chhanga, PW-3 Mahaveer and PW-4 Raju.
68. There is no substance in the arguments of learned Amicus Curiae that there is material contradiction in statements of these witnesses regarding facts and circumstances and manner of committing incident of murder of deceased Lalla or they were not having any motive to commit murder of the deceased Lalla.
69. We have perused the statement of Dr. A. A. Khan, P.W.1. He has conducted autopsy of the dead body of the deceased, Lalla, on 04.01.1985 at 1:30 p.m. He found that rigour mortis had passed from all parts of the body of the deceased. He also found the following ante mortem injuries on the dead body of the deceased:
Fire arm wound of entry of size 6.0 c.m. x 6.0 c.m. x cavity deep on right side of super claviculer fossa, 12 c.m. above the nipple and medially touching the mid line and causing damage to all the vessels of right side of neck and upper lobe of lung. Shots removed from lower side of neck, upper lobe of lung and back muscle of right side. Blackening- only margins were black. Total 16 pallets were extracted from lower part of neck, upper part of lung and muscles of upper back. Three pieces of wads were recovered from cavity of chest and three pounds blood was found in right cavity of chest. Four ounce semi digested food was found in stomach. Upper part of large intestine was filled with faecal matter. He sealed 16 pallets and three pieces of wads and handed it over to the concerned Constable.
P.W.1, Doctor has opined that cause of death of the deceased was shock and hemorrhage due to ante mortem firearm injuries sustained by him. He also handed over the vest and Lungi of the deceased to the Constable. He has opined that the death of the deceased was caused on 02.01.1985 at 10:30 a.m. First rib and right clavicle bone were fractured. Upper lob of right lung was lacerated. Contents of food could not be detected. P.W.1, doctor, has proved postmortem report of the deceased as Ex.Ka-1. Police papers, Ex.2 to 9 were received to P.W.1 for autopsy of dead body of the deceased. Fire arm injury sustained by the deceased was sufficient in the ordinary course of nature to cause death.
70. P.W.1 Dr. A. A. Khan has clarified in his cross-examination that dead body of the deceased was sent on 03.01.1985 at 6:00 p.m. and documents were provided to him on 04.01.1985 at 8:00 a.m. at his house. The number, '3' of date 03.01.1985 was having over writing on these documents. He has opined that since semi digested food was found in the stomach of the deceased, therefore, he might have ate something two hours prior to his death. Upper part of large intestine was filled with the feacal matter.
71. Learned Amicus Curiae has argued relying on the statement of P.W.1 given his cross-examination that there was over writing on papers received by him on Number '3' of date 03.01.1985. It is relevant to mention here that P.W.1, doctor has accepted in his cross-examination that dead body of the deceased was sent on 03.01.1985 at 6:00 p.m. Specific question was not put up to P.W.1 by the learned defence counsel why doctor did not inquire from the police personnel regarding over writing on the dated 03.01.1985.
72. P.W.5, Shri Rizwan Haider, the Investigating Officer prepared inquest report of the dead body of the deceased and prepared documents for autopsy, Ex.-2 to 8. He has proved these documents. On perusal of inquest report, Ex.Ka.-4 it reveals that P.W.5 has mentioned time of registration of F.I.R. as 02.01985 at 1:30 a.m. Crime No.6A under Sections 147, 148, 149, 436, 302, 201 I.P.C. has been mentioned on it. P.W.5 started inquest proceedings on 02.01.1985 at 7:00 p.m. and the dead body of deceased was sent on 02.01.1985 at 8:00 p.m. for autopsy. At this point of time investigation was being conducted by the Investigating Officer, P.W.5.
73. P.W.5 has stated in his cross-examination that he visited Village Laxmanpur on 02.01.1985 at 6:45 p.m. He met with the complainant Ramlal in Village Mohaddinpur. He has specifically stated that he called witnesses Chhanga, Mohan and Mahaveer on 03.01985 at 10.00 to 11:00 a.m. in Village Mohaddinpur. He has clarified that on the date of proceedings of inquest, i.e., 02.01.1985 he could not inspect the place of occurrence, because it was night and incident of Village Mohaddinpur, i.e., murder of aforesaid three persons was more important. Therefore, P.W.5 has disclosed the reason why he called witness P.W.2, P.W.3 and P.W.4 on 03.01.1985 in Village Mohaddinpur and this fact is corroborated with the statement of witnesses P.W.2-Chhanga that he along with witnesses Mahaveer and Mohan Lal went in the village Mohaddinpur, where the Investigating Officer inquired from them.
74. P.W.5, Investigating Officer has refuted this suggestion that dead body of Lalla was found by him in the house of deceased Dwarika. Moreover, he has mentioned the place in the vicinity of Laxmanpur, at which place he prepared inquest report, Ex.Ka.-4. He has refuted this suggestion that factually he conducted inquest proceedings on 03.01985 and mentioned dated 02.01.1985 on the inquest report.
75. Learned Amicus Curiae has pointed out that number of F.I.R. is not mentioned in the inquest report along with the crime number, therefore, it may be inferred that F.I.R. was not registered at this point of time. The argument of learned Amicus Curiae is misconceived, because Crime No.6A along with the offences and date of report 02.01.1985 and time 11:30 a.m. has been mentioned by P.W.5. G.D. No. Ex. Ka-4 and 5 reveal that there is no over writing on the date of preparation of this inquest report. No specific cross-examination was conducted that, in which, circumstances over writing was made by whom on police form-13, (Ex. Ka.-7).
76. It is pertinent to mention here that there is no over writing on G.D.-15 which was prepared by the concerned Constable on 02.01.1985 at 11:30 a.m. and other documents, photograph of the dead body, Ex.Ka.-6, sample of seal, report sent for autopsy and report sent to C.M.O., Ex.Ka.-2. On form-13, Ex.Ka.-7, date 02.01985 which was allegedly converted to 03.01.1985, relates to sending of dead body for autopsy at 6:00 p.m. by Reserved Inspector from Police Lines. This form was prepared by P.W.5 on 02.01.1985 itself. It may be fault of official of R.I. that he made over writing as such which was suggested to P.W.5. Therefore, no material contradiction was elicited during the cross-examination of P.W.5 regarding inquest proceedings conducted by him. R.I. Sitapur has prepared report to C.M.O. on 03.01.1985, therefore, dead body of the deceased Lalla could reach for autopsy on 03.01.1985 at 6:00 p.m. There is no substance in the argument of learned Amicus Curiae in this regard.
77. As far as suggestion was given by the learned defence counsel that on case diary dated 02.01.1985 and 03.01.1985 signatures of C.O. were not available, P.W.5 has refuted this suggestion that case diary written by R.S. Yadav was prepared on 14.01.1985 at police station. On the basis of suggestion it is not acceptable that P.W.5 conducted inquest proceedings of dead body of the deceased ante timed.
78. P.W.5, Investigating Officer has proved site plan, Ex.Ka.-11 which was prepared in the handwriting of S.I. Ram Shankar Yadav, P.W.5 got prepared Ex.Ka.-2 to Ex.Ka.-10 from S.I. Ram Shankar Yadav and he has prepared these documents on the direction of P.W.5. P.W.5, Investigating Officer, was aware of hand writing and signatures of Ram Shankar Yadav. P.W.5 also collected blood stained and plain soil from the place of occurrence on 02.01.1985 and got prepared recovery memo, Ex.Ka.-10 from S.I. Ram Shankar Yadav.
79. Learned Amicus Curiae has relied upon statement given by P.W.5 in his cross-examination about the preparation of site plan and his conduct that he did not seize guns used by the appellants and co-accused Mahaveer. He argued that prosecution could not prove use of guns by appellant during alleged incident.
80. P.W.5 has refuted this suggestion that he has prepared false and fabricated site plan and dead body of the deceased was not recovered from the place shown in the site plan. He has clarified that dead body of Lalla was not recovered from the house of Dwarika. PW-5 has also refuted this suggestion that P.W.2-Chhanga was not present in the village and he got report registered through Ram Lal regarding murder of Lalla also under influence of Village Head, Sardar.
81. P.W.2-Chhanga has stated in his cross-examination that due to fear and ambush of the accused persons he could not straightway gone to the police station. He met the complainant Ramlal in Village Mohaddinpur and requested him to lodge the F.I.R. on his behalf also regarding murder of his father Lalla. He has specifically stated that he apprised this fact to the Investigating Officer in this regard and Ramlal assured him to lodge the F.I.R. on his behalf also. He had apprised the Investigating Officer this fact also. P.W.5, Investigating Officer prepared site plan in presence of P.W.2. He does not remember that he disclosed to Investigating Officer the way by which Raju ran away after seeing the appellants and co-accused persons. Therefore, it may be fault of the Investigating Officer, P.W.5, that he has not mentioned in his statement under Section 161 Cr.P.C. the complete facts narrated by P.W.2-Chhanga in case diary and has not mentioned in site plan the facts pointed out by learned Amicus Curiae to PW-5, the Investigating Officer.
82. The following exposition of law of Hon'ble Apex Court are relevant regarding preparation of site plan and faults and omissions committed by the Investigating Officer-PW-5 regarding seizure of guns used by appellants.
Hon'ble Supreme Court in the case of Bhaskaran Vs. State of Kerala, (1998) 9 SCC 12 : 1998 SCC (Cri) 843 in para-6 of the said judgment has observed as under:
6. This being a statutory appeal we have, with the assistance of the learned counsel for the parties, gone through the entire evidence on record, particularly, the evidence of PWs 1 and 2. Having done so we are in complete agreement with the High Court that the evidence of the above two eyewitnesses can be safely relied upon and made the basis for conviction. The High Court rightly pointed out that considering the fact that the distance of the police station from the village in question was 15 kms and the uncontroverted evidence of PW 1 that no buses were available to reach the police station in the night, it could not be said that there was any delay in lodging the first information report at 9 a.m. on the following morning. On the contrary, in our opinion, the report was lodged at the earliest available opportunity. Equally justified was the High Court in observing that since different persons reacted differently in the same circumstances the other two reasons canvassed by the trial court to disbelieve PWs 1 and 2 were patently wrong. As regards the failure of the Investigation Officer to seize the torchlight, the trial court failed to consider that the remiss on his part could not be made a ground to disbelieve PWs 1 and 2, if they were otherwise trustworthy.
In the case of Chand Khan Vs. State of U.P., (1995) 5 SCC 448:1995 SCC (Cri) 915, Hon'ble Apex Court in para 23 has observed as follows:
23. There is no evidence on record to show that there was profuse bleeding from the injuries sustained by the two ladies and Chand Khan for blood to trickle down to the floor. On the contrary, the find of blood near the threshold of PW 1's house fits in with the evidence of the eyewitnesses and the nature of injuries sustained by Shah Alam. From the evidence of Sm. Naeema Parveen (PW 5) we get that when the accused persons started beating the members of their family inside their premises, she, her mother and aunt (Raees Begum) started shouting and cursing them. Then, when they found Chand Khan was approaching them they went inside. There Ishtiaq Khan gave two chhuri blows on the left side of her face and Sharif Khan gave two danda blows to her aunt Raees Begum. When she found Chand Khan was about to beat her mother, she struck him with a vegetable cutting knife. The above evidence of PW 5 stands substantially corroborated by the other three eyewitnesses referred to earlier. Then again the nature of injuries as found by the doctor upon her, Sm. Raees Begum and Chand Khan fits in with her testimony. In our opinion the best corroborative piece of evidence is furnished by the FIR which was lodged by Keramat Ali (PW 1) on the basis of what he heard from PW 5. In the FIR, which was lodged within two hours of the incident, the substratum of the entire prosecution case finds place including a statement that during the incident Sm. Naeema Parveen had, in defending herself, given a blow to one of the accused with a vegetable cutting knife. In view of the above statement recorded in the FIR, the Investigation Officer (PW 16) ought to have taken steps to seize the knife even if PW 5 had not produced it for, one of the essential requisites of a proper investigation is collection of evidence relating to the commission of the offence and that necessarily includes, in a case of assault, seizure of the weapon of offence, but then failure to collect evidence and failure to produce evidence collected during investigation at the trial carry two different connotations and consequences. While, the former may entitle the court to hold the investigation to be perfunctory or tainted affecting the entire trial, in case of the latter the court may legitimately draw a presumption in accordance with Section 114(g) of the Evidence Act. As the case presented before us comes under the first category of failures we have to find out whether we will be justified in discarding the prosecution case solely for the remissness of the Investigating Officer in seizing the knife. The consistent and reliable evidence of the eyewitnesses coupled with the nature of injuries sustained by some of them and Chand Khan and the fact that in the FIR it has clearly been stated that one of the miscreants had been assaulted by a vegetable cutting knife do not persuade us to answer the question in the affirmative. Mr Thakur lastly submitted that the entire prosecution story was improbable for if really the incident had happened in the manner alleged by it, the persons present in PW 1's house would have sustained more serious injuries. We do not find any substance in this contention for it is evident that Shah Alam was the main target and the assault on others was carried out to thwart any resistance from those present in the courtyard.
In the case of Prithvi (Minor) v. Mam Raj, reported in (2004) 13 SCC 2729 the Hon'ble Apex Court has observed in para 17 and 19 as under:
17. A further reason for disbelieving the evidence of Prithvi is that, while Prithvi stated that he could see the assailants because there was light on the spot coming from a bulb fitted in an electric pole near the chakki of Birbal (which was situated about fifteen steps from the place of occurrence) the investigating officer (PW 36) when cross-examined said that he did not remember anything about it nor did he include any electric pole in his site plan.
Assuming that this was faulty investigation by the investigating officer, it could hardly be a ground for rejection of the testimony of Prithvi which had a ring of truth in it. We may recount here the observation of this Court in Allarakha K. Mansuri v. State of Gujarat [(2002) 3 SCC 57 : 2002 SCC (Cri) 519], SCC at p. 64, para 8, that:
"The defects in the investigation holding it to be shaky and creating doubts also appears to be the result of the imaginative thought of the trial court. Otherwise also, defective investigation by itself cannot be made a ground for acquitting the accused."
19. The evidence of Sona (PW 32) to the effect that, he awoke because of barking of dogs and saw four persons running by and when he flashed the torch, he noticed three of the respondents and a fourth person whom he could not recognise, is also disbelieved by the High Court on the ground that the place where Sona was sleeping was not shown in the site plan. The High Court also attached importance to the fact that the investigating officer had not put the date on which the statement of this witness was taken, although the investigating officer explained that he had forgotten to mention the date. The High Court assumes that on the date of the incident itself, the police knew the names of the assailants; therefrom, it deduces that the fact that they were not arrested till 30-8-1993 makes the statement of the witness unreliable. This, to say the least, is another piece of perverse reasoning.
It is relevant to mention here that site plan prepared by PW-5 Investigating Officer is not a substantive piece of evidence as held by Hon'ble the Supreme Court in the case of Jagdish Narain & Anr vs State Of U.P reported in JT 1996 (3) 89, Hon'ble Apex Court in paragraph no. 9 has held as under:-
9. In responding to the next criticism of the trial court regarding the failure of the Investigating Officer to indicate in the site plan prepared by him the spot wherefrom the shots were allegedly fired by the appellants and its resultant effect upon the investigation itself, the High Court observed that such failure did not detract from the truthfulness of the eyewitnesses and only amounted to an omission on the part of the Investigating Officer. In our opinion neither the criticism of the trial court nor the reason ascribed by the High Court in its rebuttal can be legally sustained. While preparing a site plan an Investigating Police Officer can certainly record what he sees and observes, for that will be direct and substantive evidence being based on his personal knowledge; but as, he was not obviously present when the incident took place, he has to derive knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testifies about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person from whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, 1872 the former's evidence would be admissible to corroborate the latter in accordance with Section 157 CrPC (sic Evidence Act). However such a statement made to a police officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) CrPC appearing in that chapter and can be used only to contradict him (the maker) in accordance with the proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site plan PW 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eyewitnesses it could not have been admitted in evidence being hit by Section 162 CrPC. The law on this subject has been succinctly laid down by a three-Judge Bench of this Court in Tori Singh v.State of U.P. [AIR 1962 SC 399 : (1962) 1 Cri LJ 469 : (1962) 3 SCR 580]. In that case it was contended on behalf of the appellant therein that if one looked at the sketch map, on which the place where the deceased was said to have been hit was marked, and compared it with the statements of the prosecution witnesses and the medical evidence, it would be extremely improbable for the injury which was received by the deceased to have been caused on that part of the body where it had been actually caused if the deceased was at the place marked on the map. In repelling the above contention this Court observed, inter alia:
"... the mark on the sketch-map was put by the Sub-Inspector who was obviously not an eyewitness to the incident. He could only have put it there after taking the statements of the eyewitnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation."
In the case of State Of U.P vs Babu And Ors reported in 2003 (11) SCC 280, Hon'ble Supreme Court in paragraph no. 5 has held as under:-
5. A bare perusal of the High Court's Judgment goes to show that its approach was rather casual and no effort was made to analyse the evidence. It is to be noted that the High Court did not examine the evidence of PWs. 1 and 3 with the required care. Great emphasis was laid by the High Court on the fact that in the site plan place where gaslight was found had not been indicated. The site plan is not substantive evidence. The High Court seems to have proceeded on the basis that omission to indicate the location gaslight in the site plan was fatal. This Court in Shakti Patra and another v. State of West Bengal 1981CriLJ645 held that where prosecution witness testified that he had identified the accused in the light of the torch, held by him, the presence of torch would not be said to be not proved on the ground that there was no mention of the torch in the FIR or in the statement of the witness before the police, when there was testimony of other witnesses that when they reached the spot they found the torch burning. To similar effect is the conclusion in Aher Pitha Vajshi and Ors. v. State of Gujarat 1983 CriLJ 1049. It would be proper to take note of what was stated by this Court in George and Ors. v. State of Kerala and Anr. 1998 CriLJ 2034 regarding statements contained in an inquest report. The statements contained in an inquest report, to the extent they relate to what the Investigation Officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by Section 162 of Code of Criminal Procedure, 1973 (in short 'Cr. P.C.'). The position is no different in case of site plan.
83. P.W.5 has stated in his cross-examination that he did not mention in site plan the house of Rahu, because his house was not relevant to show the place of occurrence. He has mentioned the place from where witnesses saw the incident by marked Number '2'. He has refuted this suggestion that he has wrongly shown the house of Mohanlal in the site plan and there is no house of Mohanlal as shown by him. It may be fault of P.W.5 that he did not mention in site plan, the location of northern door, of house of PW-2, which was stated as such by P.W.-2 Chhanga. P.W.-5 has stated that he has mentioned one door of campus and house of witness Chhanga. He has also specifically stated that he has marked way by 'arrow' on east of Channi which went up to the way Galiyara, by which Raju ran after seeing the accused persons, along with the way on which the accused persons chased Raju. The way of coming of witnesses at the place of occurrence was mentioned by him by mark 'double arrow. Other facts, like distance 'B' to 'A' and place of availability of key and Dalia were not mentioned by P.W.-5 in the site plan these facts are not material and it may be fault of P.W.-5 on the basis of which prosecution version cannot be adversely affected.
84. We have perused site plan Ex.Ka.-11 on the basis of statements of P.W.2-Chhanga, P.W.3-Mahaveer and P.W.4-Raju. This site plan reveal that the place by mark Number '2' from where these witnesses saw the incident. Way by mark 'arrow' has been shown regarding way of coming of witnesses at place no.'2'. The way by mark 'single arrow' by which Raju, witness-P.W.4 ran towards the agricultural field of Mohanlal and then turned towards western side. The accused persons chased him from dilapidated house of Rameshwar, S/o Chunnu. Raju ran on the date of occurrence in front of campus of Mohanlal and houses of witnesses Chhanga and Mahaveer. Place marked 'B' has been shown where Lalla, deceased, was present and accused Bahadur on exhortation of other co-accused Rampal, Puttu and Mahaveer shot fire on the deceased and by mark 'double right' accused persons fled away from the place of occurrence. Place 'A' is the open campus in which Charni and Nanden (Troughs) of deceased Lalla were situated and Gooler tree was standing. Lalla was filling grass for cattles in Nand (Trough). P.W.5 has mentioned in site plan that dead body of Lala was lying on this place marked 'A' and blood was found underneath it. Therefore, no material contradiction was also elicited regarding preparation of site plan of the place of occurrence in the cross-examination of P.W.5. Therefore, argument of learned Amicus Curaie in this regard is of no avail.
85. Learned Amicus Curiae has further argued that P.W.2-Chhanga had developed some facts in his statements which are contradictory to his previous statement recorded under Section 161 Cr.P.C. by P.W.5. Therefore, evidence adduced by P.W.2-Chhanga becomes doubtful about his presence on the place of occurrence on the date and time of incident of this crime.
86. P.W.5 in his statement/cross-examination has clarified that witness Chhanga apprised him that Ramlal was his acquaintance and was helping them. Chhanga also apprised him that Dwarika, his wife Smt. Chhedan and Phulbasa were lying dead and all the people/residents of Village Mohaddinpur fled away. P.W.5, Investigating Officer has clarified that P.W.2-Chhanga did not apprise him that witness Raju entered into Arhar field and then turned towards western side. He also did not apprise him that he requested Ramlal that he should also report the incident of murder of his father and he would not go to police station, because the accused persons had ambushed/ laid his way. P.W.2 also did not apprise him that he went at Village Mohaddinpur and due to fear of accused persons had not gone straightway to police station.
87. These contradictions put forth by the learned defence counsel to P.W.5 have been compared by us with the examination-in-chief and cross-examination of P.W.2-Chhanga. He has elaborately disclosed the facts and circumstances in which the appellants including the co-accused persons chased Raju, S/o Sardar and committed murder of his father Lalla. The appellants and co-accused persons (since dead) committed murder of Lalla suspecting that Sardar was hidden in his house (of the deceased Lalla) and he was his associate. Sardar was accused in double murder of Bhagwandeen and Barati and on the date of incident, Bhagauti, brother of Bhagwandeen and son of Chandrika was found murdered.
88. P.W.2 has also disclosed the topography of house of Raju and houses of witnesses Mahaver and Mohanlal and presence of Raju, while appellants and co-accused persons chased him for search of his father, Sardar. The contradictions pointed out on the basis of statement of witness-Chhanga recorded under Section 161 Cr.P.C. are not material, because P.W.2-Chhanga has witnessed the incident and saw the dead bodies of Dwarika, Smt. Chhedan and Phulwasa in Village Mohaddinpur, where he met the complainant Ramlal, S/o Sheetal Prasad Yadav, who is the complainant of this crime also.
89. P.W.2-Chhanga has clarified this fact that due to fear of the accused persons he could not go straightway to the police station and met Ramlal in Village Mohaddinpur and requested him to lodge the F.I.R. of murder of Lalla also. Therefore, the complainant Ramlal lodged the F.I.R. of this crime at Police Station Sidhauli, District Sitapur along with the incident of tripple murder of Dwarika, his wife Smt. Chhedan and Phulwasa committed by the associates of appellants in Village Mohaddinpur.
90. P.W.5 has refuted this suggestion put forth by the learned defence counsel that Chandrika lodged information of murder of his son Bhabhauti on 01/02.01.1985 at night and he sent a constable for inquiring on the basis of information given by this constable that houses of Village Mohaddinpur were set on fire, then he visited the place of occurrence of Village Mohaddinpur on 03.01.1985 and got written report from Ramlal and registered it at the police station. The argument of learned counsel for appellants in this regard is of no avail.
91. Learned Amicus Curiae has also argued that complainant Ramlal, S/o Sheetal Prasad Yadav has not been produced during the course of trial, therefore, opportunity for cross-examination on the facts and circumstances narrated in the written report, Ex.-C.1 could not be availed by the learned defence counsel that in which circumstances the complainant Ramlal lodged this F.I.R. and this fact could not be verified that P.W.2-Chhanga met him on 02.01.1985 in the Village Mohaddinpur and requested him to lodge the F.I.R. of the incident of murder of his father.
92. It is relevant to mention here that Shri Rizwan Haider as C.W.1 has proved this fact on his re-examination that on 02.01.1985 he was the S.H.O. of police Station Sidhauli and the complainant Ramlal, S/o Sheetal Yadav submitted written report at 11:30 a.m. and this Crime No.6-A was registered in his presence at the police station. Therefore, Shri Rizwan Haider, C.W.1/P.W.5, the Investigating Officer was competent to prove registration of Check F.I.R. and G.D. on the basis of this written report submitted by the complainant Ramlal on the basis of original written report which was available on record of S.T. No. 79 of 1989.
93. Moreover, it may be fault of A.D.G.C., who conducted trial on behalf of prosecution before the trial court that he did not produce Ramlal, S/o Sheetal Yadav during the course of trial to prove his written report, Ex.Ka.-107, available on connected S.T. No. 79 of 1985. The facts and circumstances of murder of his father Lalla has been provd by P.W.2-Chhanga and he has specifically proved this fact that he requested the complainant Ramlal to lodge F.I.R. of this crime also regarding murder of his father.
94. The complainant Ramlal was not the eye witness of the incident committed by the appellants and co-accused persons in the Village Laxmanpur. He was the eye witness of the incident of triple murder of Dwarika, his wife Smt. Chhedana and Phulwasa, residents of Village Mohaddinpur. Therefore, non production of complainant Ramlal during the course of trial by the prosecution does not affect adversely it. The argument put forth by learned Amicus Curiae does not extend any benefit to the appellants in this regard and is of no avail.
Common Intention of Appellants
95. In this regard the provisions of Section 34 I.P.C. are relevant, which are being reproduced as under:
Section 34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Hon'ble Supreme Court in State of U.P. Vs. Ganga Ram and others : 2006 (1) ALJ 298 SC has observed as under:
"16. Learned Counsel for the respondents submitted that in any event the two accused namely Raghubir and Lal Singh, who have been described as actual assailants, have expired and no active part has been attributed to the appellants namely Ganga Ram and Rajendra Singh, they are entitled to be acquitted. In this connection, learned counsel has relied upon the decision of this Court rendered in Mithu Singh Vs. State of Punjab, (2001) 4 SCC 193, where this Court has held that to substantiate a charge under Section 302 with the aid of Section 34 it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of both. An inference as to the intention shall have to be drawn from the acts or conduct of the accused or other relevant circumstances, as available. No quarrel over the proposition of Law.
17. Reliance has also been placed on the decision of this Court rendered in State of Rajasthan vs. Kishan Singh & Ors., (2002) 10 SCC 160, where this Court has held that two of the accused were also tried for substantive offence under Section 302 and the Trial Court acquitted the two accused who were tried for substantive offence under Section 302 and convicted the remaining three under Section 302 with the aid of Section 34. It was held that since the charge on substantive offence under Section 302 has not been established, the conviction of the other accused under Section 302 read with 34 was not maintainable. In our view, the aforesaid decisions cited by the learned counsel are of no help to the accused. This submission, in our view, is totally misconceived. In the present case, the conviction recorded by the Trial Court was under Section 302 with the aid of Section 34. The two accused armed with country made pistols accompanied the other accused armed with SBBL gun and DBBL gun respectively went to the place of occurrence, way laid the deceased and party and attacked the deceased. It cannot be said that they accompanied the other accused as an idle curiosity. The aforesaid circumstances, would clearly infer the intention of the present two accused for committing an offence in furtherance of common intention. Their conviction under Section 302 with the aid of Section 34 cannot be said to be unjustified."
Hon'ble Supreme Court in the case of Harbans Kaur Vs. State of Haryana : 2005 SCC (Crl.) 1213 has observed as under:
"Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
As it originally stood the Section 34 was in the following terms:
"When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone."
In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118).
The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.
The above position was highlighted recently Anil Sharma and Others v. State of Jharkhand [2004 (5) SCC 679].
If the factual scenario as noted above is considered in the background of legal principles set out above, the inevitable conclusion is that Section 34 has been rightly applied."
Hon'ble Supreme Court in the case of Israr Vs. State of UP, : 2005 SCC (Crl.) 1260 has observed as follows:
"Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab, AIR 1977 SC 109, the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
As it originally stood the Section 34 was in the following terms:
"When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone."
In 1870, it was amended by the insertion of the words "in furterance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor, AIR (1945) Privy Council 118.
The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh, AIR (1993) SC 1899, Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. The above position was highlighted recently in Anil Sharma and Ors. v. Stale of Jharkahand, [2004] 5 SCC 679.
in Abrahim Sheikh & Ors. v. State of West Bengal, AIR (1964) SC 1263 this Court stated that no doubt a person is only responsible ordinarily for what he does and Section 38 IPC ensures that. But Section 34 as well and Section 35 provided that if the criminal act is the result of the common intention, then every person who did the criminal act with such intention would be responsible for the total offence irrespective of the share which he had in its perpetration. The logic, highlighted illuminatingty by the Judicial Committee in the illustrious case of Barendra Kumar Ghosh v. Emperor, AIR (1925) PC1, is that in crimes as in other things "they also serve who only stand and wait".
Section 34 has, therefore, been rightly applied.
In view of the legal and factual position noted above, the irresistible conclusion is that the accused appellant ha been rightly held guilty and convicted. There is no merit in this appeal which is accordingly dismissed."
Hon'ble Supreme Court in State of Madhya Pradesh Vs. Deshraj, AIR : 2004 (3) SC 2764 has observed as under:
"Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused."
In case of Ramcharanreddy Chennareddy Vs. State of A.P. :AIR 1999 SC 994, it is held by Hon'ble Supreme Court that if all accused took part in occurrence armed with sickle, battle, excess daggors and sticks and they mercilessly assaulted victim, all accused persons shall be liable for offence committed by them.
In case of Charan Singh Vs. State of Punjab, AIR 1998 SC 323, Hon'ble Supreme Court has held that if all accused persons were waiting for complainant and have taken active part in occurrence all persons shall be liable.
Hon'ble Supreme Court in Amrik Singh Vs. State of Punjab : 1999 Crl.L.J. 463 has observed as under:
"2. However, it was contended by the learned Counsel for the appellant that the three eye witnesses had not specifically stated before the police when their statements were recorded under Section 161 Cr.P.C. that Amrik Singh had given the fatal blow to the deceased. Merely because the witnesses haver not specifically stated which blow was given by which accused their evidence cannot be discarded if it is found to be otherwise reliable. The eye-witnesses had received injuries during this very incident; and therefore, their presence at the time of the incident has to be believed. They have specifically stated that after reaching the spot on hearing cries, they had prevented the accused from giving further blows to Manna Singh. With respect to this part of their evidence, they were not contradicted by their police statements. Therefore, there can be no doubt regarding their having seen the blows given by the appellant merely because they had not specifically referred to them in their police statements. The Courts below have thought it fit to believe the evidence against Amrik Singh and we see no reason to differ from the finding recorded in that behalf.
3. As we find no substance in this appeal, it is dismissed."
Hon'ble Supreme Court in the case of Hari Ram Vs. State of U.P. : (2004) 8 SCC 146 has observed as under:
"10. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
11. As it originally stood the Section 34 was in the following terms:
"34. When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone."
In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118).
The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.
The above position was highlighted recently Anil Sharma and Others v. State of Jharkhand [2004 (5) SCC 679].
Section 34 IPC has clear application to the facts of the case and has been rightly applied.
Hon'ble Supreme Court in Surendra Chauhan Vs. State of Madhya Pradesh : 2000 Cri.L.J. 1789 has observed as follows:
"10. It is contended that Chauhan could not be convicted with the aid of Section 34 IPC. Section 34 IPC is as under: -
"34. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. {Ramaswami Ayhangar & Ors. vs. State of Tamil Nadu [(1976) 3 SCC 779]}. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. {Rajesh Govind Jagesha vs. State of Maharashtra [(1999) 8 SCC 428]}. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (I) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.
12.There is concurrent finding that Sharma with intent to cause the miscarriage of Alpana with child by his act caused her death and the act was done in furtherance of the common intention of Chauhan. He has thus been rightly convicted under Section 314/34 IPC."
96. On the basis of evidence adduced by P.W.2-Chhanga, P.W.3-Mahaveer, P.W.4-Raju and P.W.5-Investigating Officer, it reveal that prosecution has proved charges against the appellants Bahadur and Rampal has committed murder of Lalla, while they were searching Sardar in Village Laxmanpur. The evidence of P.W.2-Chhanga, P.W.3-Mahaveer and P.W.4-Raju are wholly reliable, credible, trustworthy and acceptable. No material contradiction was elicited during the cross-examination of all these witnesses by learned defence counsel. The evidence of all these witnesses have been corroborated by the medical evidence adduced by P.W.1, Dr. A. A. Khan.
97. On the basis of expositions of law propounded by Hon'ble Apex Court, the argument of learned Amicus Curiae that appellant Rampal only exhorted and did not fire on the deceased Lalla is misconceived. The appellants, co-accused persons (since dead) and their associates firstly committed murder of Dwarika, his wife Smt. Chhedana and Phulwasa in the Village Mohaddinpur. They also set on fire their houses. The appellants and co-accused(since dead) committed murder of Lalla during search of Sardar by suspecting it that he was hidden in the house of Lalla and believing the deceased that he is the associate of Sardar. They have committed murder of Lalla in furtherance of their common intention.
98. Learned Amicus Curiae has further argued that there is material contradiction in this regard that P.W.5, Investigating Officer at which time reached on the place of occurrence and conducted inquest proceedings of the dead body of the deceased. There is also material contradiction regarding presence of Chowkidar Chhutkau, who was the resident of Shahbazpur. Therefore, there is material contradiction in the statements of P.W.2-Chhanga and P.W.3-Mahaveer in this regard.
99. P.W.2 in his examination-in-chief has stated that Investigating Officer along with other police personnel visited the place of occurrence at 9:30 p.m. P.W.2 in his cross cross-examination has stated that Chowkidar Chhutkau was the resident of Shahbazpur and he saw him one day prior to the date of incident. He was not called by him after the death of his father. He has specifically stated that he stayed at the place of occurrence until dead body of his father was sent for autopsy. Chowkidar Chhutkau did not come at this point of time. He has also stated that he came to know that police personnel reached in Village Mohaddinpur at 4:00 p.m.
100. During his cross-examination PW-2 has stated that Sub Inspector came in his village when Chirag illuminated were. He has not stated in his cross-examination specific time, when Sub Inspector visited the place of occurrence and sent the dead body of the deceased. P.W.5, Investigating Officer has conducted inquest proceedings of the dead body of the deceased during the period 6:45 up to 8:00 p.m. and he sent dead body of the deceased for autopsy. P.W.5 has mentioned in inquest report, Ex.Ka.-4 the date 02.01.1985 and 8:00 p.m. time of sending the dead body of the deceased.
101. P.W.3 Mahaveer in his cross-examination has corroborated this fact that he and P.W.2-Chhanga stayed at the place of occurrence near the dead body of the deceased until the Investigating Officer visited the place of occurrence on the date of occurrence, i.e., 02.01.1985. He stated that Chowkidar Chhutkau, resident of Shahbazpur came with the Sub Inspector in the village and he also came at 12:00 p.m. on the date of incident when the accused persons fled away after committing the incident.
102. These facts may be stated by P.W.3 on his own observation. The witness P.W.2-Chhanga has specifically stated that Chowkidar Chhutkau met him one day prior to the date of incident. It may be possible that Chowkidar Chhutkau did not visit the place of occurrence as narrated by P.W.3-Mahaveer in presence of Chhanga, P.W.2. Therefore, it may be possible that P.W.2-Chhanga being rustic and uneducated person, he adduced his evidence and stated as such on his on perception and observation and loss of memory.
103. Hence, no material contradiction appeared in statements of P.W.2, P.W.3 and P.W.5, in this regard that Investigating Officer conducted the inquest proceedings of the dead body of the deceased on the date of incident 02.01.1985 itself in between 6:45 p.m. up to 8:00 p.m. in presence of P.W.2 and P.W.3. It may be perception of P.W.5 that he appointed Moolchand, Gokaran, Gayaprasad, Puttilal and Pyarelal Panch witnesses of (Inquest Report) Ex.Ka.-4. The argument of learned Amicus Curiae in this regard is of no avail, extending any benefit to the appellants.
104. Learned A.G.A. has submitted that P.W.2-Chhanga, P.W.3-Mahaveer and P.W.4-Raju are the residents of Village Laxmanpur. P.W.2 and P.W.3 are uneducated and rustic witnesses and P.W.4-Raju was chased by the appellants on the date of incident, therefore, his mental state after the incident might have affected. Therefore, some natural contradictions might have appeared in their statements. On the other hand, incident of this case was occurred on 02.01.1985 and the statement of P.W.2-Chhanga was recorded on 08.12.1987. His cross-examination was recorded on 14.01.1988. The statements of P.W.3 and P.W.4 were recorded on 24.03.1995, therefore, some contradictions might have appeared in their statements on the basis of loss of memory. The prosecution has proved beyond doubt the charges against the appellants on the basis of statements of P.W.2, P.W.3 and P.W.4 witnesses and in their cross-examination no material contradiction was elicited, damaging and affecting the root/genesis of prosecution version.
105. P.W.1 and P.W.2 have appended their thumb impressions on their statements. The appellants along with the co-accused persons (since dead) committed murder of his father, therefore, his mental state might have been affected after the incident. Likewise, statements of P.W.3 and P.W.4 were recorded after a long span of period, i.e., about 10 years, therefore, some loss of memory may be the reason for appearance of minor contradictions in their statements. Moreover, P.W.2-Chhanga, P.W.3-Mahaveer and P.W.4-Raju are rustic witnesses and P.W.2 and P.W.3 are uneducated persons also. The following expositions of law of Hon'ble Supreme Court are relevant for appreciating the evidence of P.W.2, P.W.3 and P.W.4.
106. The following exposition of law the Hon'ble Apex Court is relevant regarding rustic and uneducated witnesses:
RUSTIC WITNESS On the point of rustic witness, we would like to quote the pronouncement of Hon'ble Apex Court's judgment in the case of State of U.P. Versus Krishna Master reported in [(2010) 12 SCC 324]. In paragraph nos.15 and 17 of the said judgment Hon'ble Apex Court has observed as under:-
"15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case."
"23. ........................ A rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross-examined at length for days together. Therefore, the discrepancies noticed in the evidence of a rustic witness who is subjected to grueling cross-examination should not be blown out of proportion. To do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime.
24. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness."
107. This point was also considered by Hon'ble the Apex Court in its earlier judgment in the case of State of Punjab Vs. Hakim Singh reported in [2005 (7) SCC 408], wherein Hon'ble the Apex Court has observed in para 7 as under:-
"We fail to understand the manner in which the testimony of this witness has been appreciated by the High Court. Sometimes while appreciating the testimony of rustic villagers we are liable to commit mistake by loosing sight of their rural background and try to appreciate testimony from our rational angle."
108. The Hon'ble Supreme Court in AIR 1990 SC 538: State of Haryana V. Prem Chand and others has observed in para 11 as under:
11. At this juncture, we would like to point put that the very confirmation of the conviction accepting the sole testimony of the victim Suman Rani rejecting the arguments of the defence counsel is itself a clear indication that this Court was of the view that the character or reputation of the victim has no bearing or relevance either in the matter of adjudging the guilt of the accused or imposing punishment under Section 376 I.P.C. We would like to state with all emphasis that such factors are wholly alien to the very scope and object of Section 376 and can never serve either as mitigating or extenuating circumstances for imposing the sub-minimum sentence with the aid of the proviso to Section 376(2) of the I.P.C. In fact, we have expressed our views in the judgment itself stating "No doubt an offence of this nature has to be viewed very seriously and has to be dealt with condign punishment.
109. Reference on this point may be made to the pronouncement of Hon'ble the Apex Court in the case of Govindaraju Vs. State of Karnataka reported in (2009) 14 SCC 236 wherein Hon'ble the Apex Court in paragraph no. 27 has observed as under:-
"27. The High Court has appreciated the evidence very deeply and in our opinion, the Sessions Judge had gravely erred in not accepting the evidence of this witness without any justifiable reason. It is a basic principle that the evidence of witness has to be appreciated as a whole, when the evidence of an ordinary witness, who is not much educated and comes from a poor strata of society not having the advantage of education. The Court has to keep in mind all these aspects. The witness is not expected to remember every small thing, more particularly when he faces the shock of the untimely death of his near relative."
110. Hon'ble the Apex Court in the case of Sukhwinder Singh Vs. State of Punjab reported in (2014) 12 SCC 490 has observed in paragraph no. 13 as under:-
"13. ....................................... They are rustic witnesses. Their evidence must be read bearing their simple background in mind. PW 2 Labh Singh had lost his daughter. Besides, they were deposing in 1994, almost three years after the incident. Hence, allowance must be made for minor discrepancies, if any, in their evidence."
111. Learned trial court has convicted the appellants in correct perspective. The impugned judgment and order dated 21.08.2001/25.08.2001 cannot be termed as perverse or against the evidence available on record of the trial court. The impugned judgment and order is liable to be upheld and it is hereby affirmed.
112. This appeal lacks merit and is liable to be dismissed.
113. The appeal is dismissed accordingly.
114. The copy of judgment be sent to the trial court and to the concerned Jail Superintendent for compliance.
115. The record of trial court be sent back.
116. Learned Amicus Curiae will receive fee prescribed by the Government of State of U.P. immediately.
Order Date :- 29.4.2019.
Virendra/Arvind/Mustaqeem