Allahabad High Court
Vimlesh And Others vs State Of U.P. on 27 November, 2012
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
A.F.R.
Criminal Appeal No. 391 of 2005
1.Vimlesh s/o Channu Lal
2.Ashok s/o Raja Ram
3.Ram Lakhan s/o Raja Ram
4.Rajendra s/o Chhedi Lal,
5.Akhlesh Kumar s/o Channu Lal
6.Ajay Kumar s/o Rajendra
7.Smt. Savitri ... ... ... ... ... Appellants
Versus
State of U.P. ... ... ... ... ... ... Respondent
Counsel for the appellant no. 1, 4 to 6: Sri Apul Misra Advocate Counsel for appellants no. 2, 4, & 7 : Sri Anjani Kumar Dubey
Counsel for the respondent : Sri S. A. Murtaza, A.G.A.
Hon. Rakesh Tiwari, J.
Hon. Anil Kumar Sharma, J.
( By Hon. Anil Kumar Sharma, J.) The appellants have challenged the judgement and order dated 20.1.2005 passed by Addl. Sessions Judge (FTC-1), Kannauj in S.T. no. 20/2004 (Crime no. 485/2003 P.S. Tirva) whereby appellants no. 1 to 6 have been found guilty for the offence punishable u/s 147, 302/149, 307/149, 323/149 IPC and appellant no. 7 u/s 323 IPC. The appellants have been sentenced as under:
Name of appellant Section Imprisonment Fine in Rs.
Default imprisonment Vimlesh Ram Lakhan Rajendra Akhalesh Ajay 147 IPC One year RI
-
-
302/149 IPC Life imprisonment 5000 Six months 307/149 IPC 10-Years' R.I. 3000/-
Four months 323/149 IPC Six months' RI
-
-
Smt. Savitri 323 IPC Six months' RI
-
-
All the sentences of each appellant were to run concurrently.
2. The prosecution story in brief, is that on 7.11.2003 at about 7.30 A.M. complainant Ram Bux s/o Pitam r/o Village Behrin P.S. Tirva submitted a written report at P.S. Tirva wherein he stated that on 5.11.2003 his 12-years' old daughter Km. Meena plucked few phaliya from Darhari field of co-villager Raja Ram s/o Chhedi Lal, on which his son Ram Lakhan hurling filthy abuses had beaten her with belt. When the complainant enquired about this incident from Ram Lakhan he threatened to kill all the family members. Today when his sons Shiv Nath, Chhabi Ram, brother Ram Nath and Raghunath while going to attend natural call in the fields across the road, reached on the chak road in between the fields of Shiv Balak and Ram Asrey Misra at about 6 A. M., Vimlesh s/o Chhannu Lal, Ashok and Ram Lakhan sons of Raja Ram, Rajendra s/o Chhedi Lal having knives in their hands, Akhalesh s/o Chhannu Lal and Ajay s/o Rajendra armed with dandas came out from the Arhar field of Mahendra and ran towards them. Their alarm attracted the complainant, his son Vishram, nephew Shiv Shanker s/o Radhey Lal and other villagers reached there and saw that Ashok wielded knife on the chest of Shiv Nath, he fell down and died. Vimlesh, Ram Lakhan and Rajendra assaulted his brothers Ram Nath, Raghunath and son Chhavi Ram respectively with knives and they were badly injured. Accused Akhalesh and Ajay assaulted his son Vishram with lathi-danda. Savitri w/o Raja Ram and her daughter Km. Rita rushed at the spot and hurling abuses had beaten the injured with chappals. The report further stated that when the complainant after arranging conveyance was coming to Tirva for treatment along with the injured, his brother Ram Nath succumbed to the injuries and leaving his dead body at the hospital he had come to police station along with injured Raghu Nath and Chhavi Ram. On the basis of this report case at crime no. 485/03 u/s 147, 302, 307, 323, 324, 352 IPC was registered at the police station, investigation whereof was undertaken by SHO Vishwa Nath Singh. He interrogated the complainant and injured Chhavi Ram and Raghu Nath at the police station and reached at the spot. He preformed inquest upon the cadaver of the deceased at 9.30 A. M. and sent the dead body in sealed cover along with usual papers. He inspected the scene of occurrence and obtained samples of plain and blood stained earth through memo in presence of witnesses Raj Kumar Rathore and Surendra Singh and also prepared site plan. Thereafter he came to PHC Tirva and dictated the inquest report to SSI Satish Chand Dubey. His dead body was also sent for autopsy in sealed condition along with usual papers. He again returned to the spot and interrogated injured Vishram. Injured Raghu Nath and Vishram were examined at PHC, Tirva by Dr. N.H.S. Gupta on 7.11.2003 from 9.20 a.m. onwards. He, however, referred injured Chhavi Ram to District Hospital, Farrukhabad due to his serious condition.
3. The injuries noted by the doctors in medical examination of the injured are as under:
Injured Raghu Nath - 7.11.2003- 9.20 A.M. at PHC, Tirva
1.Incised wound size 2.00 x 0.5 cm x muscle deep on left palm about 3.0 cm above left wrist joint.
2.Incised wound 2.5 x 0.5 cm x 1.0 cm margins are clear on the right side of abdomen about 11.0 cm away from umbilicus at 8 O'clock position In the opinion of the doctor both the injuries were caused by sharp edged object. Injury no. 2 was advised for operation by the surgeon from District Hospital, Farrukhabad. Injury no. 1 was simple and both injuries were fresh.
Chhavi Ram -7.11.2003 -12.30 PM at Distt. Hospital, Farrukhabad
1.Incised wound 2.5 cm x 1.0 cm x bone deep over back of abdomen at mid-line lumber region, obliquely placed. Tailing downwards. Blood clot present. Advised X-ray.
2.Incised wound 1.0 cm x 0.5 cm x muscle deep over left side lower part of chest 8.00 cm below from nipple. Tailing downwards. Blood clot present.
3.Abrasion linear 5.0 cm long over left side front of middle of neck obliquely placed.
4.Abraded contusion 1.00 x 1.00 cm over right side top of head. Advised X-ray Injuries no. 1 and 4 were kept under observation and X-ray was advised. Rest were simple. Injuries no. 1 and 2 were caused by sharp edged weapon, while no. 3 and 4 by hard and blunt object due to friction. Duration was fresh.
Vishram - 7.11.2003 - 2.30 P.M. at PHC, Tirva
1.Abrasion size 4.0 x 0.5 cm on the left side of nose about 10 cm from root of neck.
2.Abraded contusion size 5.0 x 2.5 cm on right side of nech near right shoulder.
3.Complain of pain on thigh left side. No external injury is seen.
The doctor has noted that all injuries were caused by hard and blunt object, were simple and fresh in duration.
4. Dr. Anal Shukla PW-2 conducted autopsy on the corpse of both the deceased and in his post-mortem notes he has noted as under in Hindi:
Shiv Nath - age 20-years - 8.11.2003 at 2.30 P.M. e`rd dh lkekU; dn&dkBh] vkW[ks [kqyh] eqWg cUn] txg txg lw[kk [kwuA vdM+u mijh Hkqtkvksa ls fudy jgh gS gYdh ekStwn gSA fupyh Hkqtkvksa esa ekStwn gSA e`R;q iwoZ pksaVs& 1- dVk gqvk ?kko 2-5 ls-eh- x 1 ls-eh- Nkrh dh xqgk rd xgjkA Nkrh dh nkfguh vksj fufiy ls 6 ls-eh- vUnj o uhps dh vksj Nkrh dks [kksyus ij nkfguk QsQM+k dVk gS vkSj nka;h vksj Nkrh esa jDr Hkjk gSA dkVhZyst dVs gSa 5oha ilyh ijA Ram Nath - age about 50 years - 8.11.2003 at 2.45 P.M. e`rd dh lkekU; dn&dkBh] vkW[ks [kqyh] eqWg cUn] txg txg lw[kk [kwuA vdM+u mijh Hkqtk esa gYdh ekStwn gSA fupyh Hkqtkvksa esa ekStwn gSA e`R;q iwoZ pksaVs& 1- dVk gqvk ?kko 3-5 ls-eh- x 1-5 ls-eh- isV ds ihNs dh vksj mnj xqgk rd xgjkA isV dks [kksy dj ns[kus ij nkfguk xqnkZ dVk gS] dksyu dVh gSA mnj xqgk ey o [kwu ls Hkjh gSA 2- dVk ?kko 4 ls-eh- x 1 ls-eh- ekal rd xgjk nkfgus fgi ij ckgjh vksjA 3- dVk ?kko 3 ls-eh- x 1 ls-eh- ekal rd xgjk pksV ua0 2 ls 3 ls-eh- vanj dh vksjA 4- [kqjlV 3 ls-eh x 1 ls-eh- isV ij nkfguh vksj 5- [kqjlV 2 ls-eh-1@2 lsa-eh- ukd ij lkeus chpks chpA 6- [kqjlV 3-5 ls-eh x 1-5 ls-eh- nkfguh vksj psgjs ij nkfguh vkW[k ls 1 ls-eh- uhpsA fpfdRld dh jk; esa nksauks e`rdks dh e`R;q ,d ls Ms< fnu iwoZ] e`R;q iwoZ vk;ha pksV ls vR;kf/kd jDrJko o lnek ls gqbZ FkhA
5. On 9.11.2003 accused Vimlesh, Rajendra, Akhalesh and Ajay were arrested and interrogated by the investigating officer. They allegedly confessed their guilt and accused Vimlesh and Rajendra stated that they had hidden the weapons of crime in tube-well of Ram Sanehi Neta and they can get them recovered. Thereafter he along with all the four accused persons came to village Behrin, procured witnesses Rajesh Kumar and Dileep Kumar and after searching each other, accused Vimlesh and Rajendra took them at the tube-well of Ram Sanehi and told him that after washing the knives they have kept them in the tanki of tube-well. Both the accused took out one knife each from the tanki and thereafter the recovery memo was prepared, copy whereof was furnished to accused and the knives were sealed.
6. Accused Ashok and Ram Lakhan surrendered in Court on 15.11.2003 and they were interrogated by the investigating officer in jail on 18.11.2003. Both the accused allegedly confessing their guilt offered to get the weapon of offence recovered. The application for their police remand was allowed on 22.11.2003 and on 23.11.2003 their custody was obtained from jail at 12.30 P.M. They took the investigating officer to village Behrin, public witnesses Ved Ram and Maheshwari were procured and after their search the accused took them on their arhar field. Accused Ram Lakhan took out a chhuri embedded in the earth from the north-eastern mend of the field at about 3.00 P.M. Thereafter Ashok accused took them at the tube-well field of Ram Sanehi Neta and from eastern mend he took out a knife and handed over to police at 3.35 P.M. The recovery memo was prepared at the spot and its copy was furnished to the accused persons. After completing the investigation charge-sheet against the accused persons was submitted u/s 147, 302, 307, 323, 324, 352 IPC.
7. After committal of the case to the Court of Session charges for the offences punishable u/s 147, 302/149, 307/149, 324/149, 323/149 and 352/149 IPC were framed against the accused persons, who abjured their guilt and claimed trial. However, case against Km. Rita was referred to Juvenile Justice Board on account of her being juvenile.
8. In support of aforesaid charges, the prosecution had examined 11-witnesses, namely Dr. N. H. S. Gupta PW-1, Dr. Anal Kumar Shukla PW-2, Chhavi Nath PW-3 (Chhavi Nath and Chhavi Ram are names of same person), complainant Ram Baksh PW-4, Santosh Kumar PW-5, Constable-clerk Onkar Singh PW-6, injured Raghu Nath PW-7, SI Rajesh Kumar PW-8, SI Raghubir Singh PW-9, injured Vishram PW-10 and Inspector Vishwa Nath Singh Nagar as PW-11.
9. In their separate statements u/s 313 Cr.P.C. all the accused persons have again denied the prosecution story. However, they have not adduced any evidence in their defence.
10. We have heard the learned counsel for the parties at length and perused the original record of the case carefully.
11. Learned counsel for the appellants assailing the impugned judgment of the learned trial Court has argued :
I.That there was no motive for the accused to kill the two deceased or to assault the injured;
II.That the prosecution story is highly improbable;
III.That only related, partisan and interested witnesses have been examined and no independent witness has been produced by the prosecution;
IV.That there are material contradictions and inconsistencies in the statement of prosecution witnesses V.That no case u/s 307/149 is made out against any of the accused-appellant, VI.That the investigation is not fair in as much as false recovery of knives had been shown against Vimlesh, Rajendra, Ashok and Ram Lakhan and no report of Forensic Science Laboratory had been filed. and VII.That a bare perusal of the FIR shows that role of each accused has been defined, so there was no unlawful assembly and they have not acted in prosecution of common object of such assembly;
12. In oppugnation the learned AGA has contended that prompt report of the crime was made to the police and motive finds place therein; that the prosecution has examined all the injured witnesses in support of its case whose presence at the spot cannot be doubted and there testimony cannot be rejected merely because they are closely related with each other or with the deceased; that there are no material contradictions or inconsistencies in the statements of witnesses of fact; that injuries sustained by the injured are on vital parts caused by dangerous weapon i.e. knife so case is squarely covered u/s 307/149 IPC; that the ocular account of incident is fully corroborated by medical evidence and if there was any lapse in investigation, it would not affect the otherwise cogent, clear and reliable prosecution story.
13. The undisputed pedigree of the parties would make it convenient for us to evaluate the evidence on record, which is as under :-
Pedigree of the complainant and his family-
|
| |
Pitam Dularey
|
Radhey Lal
| | | | | | Ram Baksh Sri Ram Raghubir Ram Nath Raghu Nath Shiv Shanker
(PW-4) | (Deceased) (Injured-PW-7)
Mahesh
| | | |
Rajesh Chhavi Shiv Nath Vishram
Ram (Deceased) (Injured- PW-10)
(Injured- PW-1)
Pedigree of the accused-appellants -
Chhedi Lal
|
| | |
Chhannu Lal Raja Ram Rajendra (A-4)
(Wife-Savitri -A-7) |
| Ajay (A-6)
| | | |
Vimlesh Akhalesh Ashok Ram Lakhan
(A-1) (A-5) (A-2) (A-3)
The above pedigree of the parties clearly show that the deceased, injured and witnesses belong to one family while the accused persons are closely related to each other.
14. As per prosecution story, the instant incident took place at about 6 A.M. on 7.11.2003 i. e. after sun-rise and its report was lodged by the complainant at 7.30 A.M. The distance between the police station and the village of incident is about 6 Kilometers. It has come in evidence that deceased Shiv Nath instantaneously died on the spot after sustaining fatal knife injury at the hands of accused Ashok and four other were injured. The complainant proceeded for the police station along with the injured, but Ram Nath too succumbed to the injuries on way to hospital and leaving his dead body there, he reached police station and submitted his written report. Constable-clerk Omkar Singh PW-6 has deposed about preparation of check report Ex. Ka-8 and copy of GD regarding registration of case as Ex. Ka-9. He has been cross-examined at length. No doubt the check report was sent by the C.O. To court concerned on 12.11.2003 and it reached the Court of Magistrate on 14.11.2003, but considering the prompt FIR, medico legal examination of the injured and preparation of inquest reports of the deceased, it would not affect the prosecution story or dislodge the registration of the FIR. Referring to the statement of complainant given in cross-examination that the police had arrived in the hospital and for the first time he narrated the incident to police there; thereafter he was taken by the police at the spot and he pointed out the place where blood was found and the injured were lying; shoe and chappal of Shiv Nath and Ram Nath were also there which were taken by the police and then they returned to hospital at about 12-1 O'clock in the noon and then darogji dictated report to Santosh Kumar and his thumb impression was obtained, learned counsel for appellant concluded that the FIR is ante-timed and is the brain child of the police. Learned trial Court has dealt with this point on page-8 of its judgment and has rightly held that only on this statement it cannot be inferred that the report was dictated to scribe Santosh Kumar by the police. It is pertinent to note here that Santosh Kumar PW-5 has categorically stated in his deposition that he wrote it down on the dictation of Ram Baksh. He had been cross-examined at length by the defence counsel, which is reproduced as under in verbatim:
"-----fjiksVZ vLirky esa ugha fy[kh x;h cfYd Fkkus ij fy[kh FkhA vLirky igWqpus ds djhc vk/kk ?kaVk ckn ge yksx Fkkus x;s FksA Fkkus vkSj vLirky esa 100 ehVj dk Qklyk gSA ;g dguk xyr gS fd fcYdqy yxk gqvk gSA Fkkus esa jiV pcwrjs ij cSB dj fy[kh FkhA njksxk th ds ikl ugha fy[kh FkhA jiV fy[kus esa 15 feuV dk le; yxk FkkA dkxt jkec['k dk lk s ugha ekywe fd Fkkus esa dkyh L;kgh bLrseky gksrh gSA eq>s ;g Hkh /;ku ugha fd vLirky okys iSM ls fu'kkuh vxWwBk cuk;k Fkk ;k ughaA----"
The above statement of scribe make the things clear that the written report was dictated by Ram Baksh PW-4 to Santosh Kumar PW-5 and not by sub-inspector of police. In the facts and circumstances of this case, we have no hesitation in concluding that the report of the crime had been promptly made to the police. The earliest version of the crime is always considered important during criminal trial as it rules out the possibilities of fabricating the written report after concoction and deliberations.
15. The motive for the crime has been mentioned in the promptly lodged written report of the complainant. The incident of beating Km. Meena with belt by accused Ram Lakhan took place on 5.11.2003 and the same day complainant protested with the accused, but he was threatened and two days thereafter the instant incident took place. Thus it cannot be said that the incident took place due to sudden provocation without premeditation. Motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. Nowadays murders are being committed on very trivial matters. Motive is not an ingredient of the penal offence. There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Moreover, in the instant case the prosecution had examined three injured witnesses apart from an eye-witness of the incident. Thus, whatever motive, the prosecution has alleged for the accused stands duly proved by the prosecution.
16. We have already seen from the complainant's pedigree that all the witnesses of fact examined in the case including the injured witnesses are closely related with each other and with the deceased. The presence of injured witnesses cannot be doubted at all. It is also true that whatever they state in their deposition cannot be accepted as gospel truth. It has come in evidence of PW-1 that his house is situated at a distance of only 100 meters from the place of incident, so if on commotion he along with his son Vishram and nephew Shiv Shanker reached at the place of incident, it is not unnatural. Further section 134 of Evidence Act does not require particular number of witnesses to prove a fact or circumstance. Their testimony requires close evaluation with caution and care.
17. Injured Chhavi Nath PW-3, complainant Ram Baksh PW-4, injured Raghu Nath PW-7 and Vishram PW-10 have deposed about the manner of incident and injuries sustained by the deceased and the injured at the hands of accused persons. They have unequivocally stated about the weapons used by the accused in the incident as also the place of occurrence. There are no material discrepancies in their depositions. It has come in the statements of Chhavi Nath PW-3 that on the preceding night potatoes of Ram Baksh were being planted by the family, so they had taken food late in the night, while Ram Baksh PW-4 has stated that they have taken meals together at about 6 p.m. It would not make any difference as Ram Baksh is an elderly person and he had not gone to plant potatoes.
18. Learned counsel for the appellants had raised question about delayed medical examination of Vishram PW-10. He was examined by Dr. N. H. S. Gupta PW-1 at about 2.30 P.M. while he had prepared medical report of Raghu Nath PW-2 and had referred Chhavi Nath PW-3 at about 9.20 P.M. onwards the same day. Perusal of the record further shows that chitthi majroobi of Raghu Nath and others was handed over to Constable Gajodhar Prasad, while that of Vishram PW-10 to Constable Lokesh Kumar. Although the witnesses have stated that Vishram too had accompanied them to the hospital after the incident, but it does not appear to be correct. Constable Omkar Singh PW-6 who had registered the case at police station had stated in his cross-examination that he had noted in the GD that Vishram is at home and would come later. It is quite possible, because dead body of Shiv Nath was lying on the spot. Moreover, Vishram had not suffered any serious injury of sharp edged weapon. So this discrepancy is inconsequential.
19. Learned counsel for the appellants has vehemently argued that injury report of Chhavi Nath PW-3 had not been proved by examining the medical officer who had examined him at District Hospital, Farrukhabad, so it should be presumed that he has not received any injury. The argument is fallacious. Chhavi Nath was earlier examined by Dr. H. N. S. Gupta PW-1 in PHC, Tirva, but he did not note down his injuries and only after giving first-aid he was referred to District Hospital, Fatehgarh on account of his serious condition. Dr. Gupta has made a note to this effect on the chitthi majroobi of Chhavi Nath. His note reads:
"Medico-legal examination is deferred due to seriousness of patient. First-aid is given. Referred to R.M.L. Hospital, Fatehgarh."
Dr. Gupta has proved this note in his examination before the Court as PW-1. He has reiterated these facts in his cross-examination. The injuries of Chhavi Nath have also been noted by Constable Omkar Singh PW-6 in GD report regarding registration of the case. The medical report of Chhavi Nath PW-3 ought to have been proved by the prosecution by examining the doctor, who has conducted his medical examination, but his non-examination, in the facts and circumstances, of the case would not compel us to hold that he had not received any injury or that his condition was not serious.
20. In an incident where about half dozen assailants assault about similar number of victims with various weapons and on account of injuries sustained, one suffers death instantaneously and the other on way to hospital, even if minor contradictions appeared in the evidence of witnesses, it is liable to be ignored for the reason that it is natural that exact version of the incident revealing any minute detail like a video graphic film from the eye-witnesses cannot be expected. Thus, we find that the testimonies of PW-3, PW-4, PW-6 and PW-10 do not suffer from any infirmity. Their deposition is cogent, clear and reliable
21. Learned counsel for the appellants has next argued that no case u/s 307/149 is made out against any of the accused-appellant, because injured Raghu Nath, Chhavi Ram and Vishram have not sustained any fatal or grievous injury. Perusal of the injury reports of the injured show that injured Chhavi Ram has sustained one incised wound on his abdomen and one on left side lower part of chest. Another injured Raghu Nath had received two incised wounds, one of them was on right side of abdomen. Thus, the seat of incised wounds found on the body of deceased and injured speak volumes about the common object of the unlawful assembly. Four out of six members of this assembly were armed with knives (chhuris). The unfortunate incident had taken lives of two persons at the hands of accused persons, as such the intention of all the accused persons is like a writing on the wall. In this situation, the argument of learned counsel for the appellants has no legs to stand.
22. Counsel for the appellant has further submitted that the prosecution is not fair in as much as false recovery of knives had been shown against Vimlesh, Rajendra, Ashok and Ram Lakhan and no report of Forensic Science Laboratory had been filed. We have carefully examined the findings of the learned trial Court on these issues, which were also raised there. The alleged recovery of knives at the instance of Vimlesh and Rajendra is dated 9.11.2003 and the other by accused Ram Lakhan and Ashok during police custody remand on 23.11.2003. Both these recoveries have been witnessed by public witnesses. Rajesh Kumar PW-8 is witness of recovery dated 9.11.2003 while Ved Ram PW-9 has witnessed the recovery at the instance of accused Ram Lakhan and Ashok on 23.11.2003. On the basis of statement of Rajesh Kumar PW-8, the learned trial Court has attributed the recovery of two knives on 9.11.2003 on accused Vimlesh only, because he took out both the knives from water tanki of the tube-well. We do not find any illegality or perversity in the findings recorded by the learned trial Judge.
23. The learned counsel for the appellants has also raised doubt about preparation of inquest reports of both the deceased. He contended that as per prosecution story, leaving the dead body of Ram Nath at the hospital in Tirva, the complainant had gone to police station, but the investigation officer did not chose to perform inquest on the cadaver of Ram Nath, which was quite adjacent to the police station and in fact he had completed inquest proceedings of this deceased and thereafter had proceeded to spot for holding panchyatnama of deceased Shiv Nath. His contention is that otherwise statement of the investigating officer is untrue and does not inspire confidence. This argument too has not force. During the course of arguments, we have demonstrated by showing the serial nos. of inquest reports that the contention of investigating officer is corroborated with the record of the case. The serial no. of inquest report of Shiv Nath are 325577-325578 while that of Ram Nath which was prepared in PHC, Tirva later on are 3225579 and 325580. These serial nos. of Govt. Printing Press printed on original inquest reports substantiate the contention of the investigating about the order of preparation of inquest reports of the deceased. This appears to be the brain child of learned counsel for the appellants who with all enthusiasm has argued the appeal before us. We say so, because no question on these lines have been put to the investigating officer V.S. Nagar PW-11 in cross-examination, when he was in the hands of the learned counsel for the defence. However, we may answer the query of counsel for the appellant. It may be because the dead body of Ram Nath was in the Govt. Hospital of Tirwa, while that of Shiv Nath was lying at the spot and almost all his family members have left the village to the hospital, therefore, it was the duty of the investigating officer to first visit the spot after interrogating the complainant and the injured who have come along with him to lodge the FIR for variety of reasons and we do not propose to list them.
24. It is true that the knives got recovered by the accused persons, samples of plain and blood stained earth along with apparels of the deceased ought to have been sent for examination to Forensic Science Laboratory, but no report of the Laboratory had been filed, but this fact alone is no ground to discard the otherwise reliable prosecution case. The investigating officer Vishwa Nath Nagar PW-11 at the end of his examination-in-chief had stated that the above articles would be sent to Forensic Science Laboratory, Lucknow. Ere that he had submitted charge sheet against the accused persons. It was the duty of the police to send these articles for analysis to the Laboratory, but this would not affect the prosecution case which is based on direct evidence of injured and eye-witnesses duly corroborated by medical evidence.
25. Now coming to the last limb of argument of appellants' counsel about applicability of Section 149 IPC. It is now well settled law that the provisions this Section will be attracted whenever any offence committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or when the members of that assembly knew that offence is likely to be committed in prosecution of that object, so that every person, who, at the time of committing of that offence is a member, will be also vicariously held liable and guilty of that offence. Section 149 IPC creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. This principle ropes in every member of the assembly to be guilty of an offence where that offence is committed by any member of that assembly in prosecution of common object of that assembly, or such members or assembly knew that offence is likely to be committed in prosecution of that object. [ Vide - Lalji Vs. State of U.P. (1989) 1 SCC 437; Allauddin Mian Vs. State of Bihar (1989) 3 SCC 5; Ranbir Yadav Vs. State of Bihar (1995) 4 SCC 392]. The factum of causing injury or not causing injury would not be relevant, where accused is sought to be roped in with the aid of Section 149 IPC. The relevant question to be examined by the court is whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not. [Vide - State Vs. Krishan Chand (2004) 7 SCC 629; and Deo Narain Vs. State of U. P. (2010) 12 SCC 298]. Thus, we do not find any force in the submission made by learned counsel for the appellant that in the facts and circumstances of the case provisions of Section 149 IPC were not attracted. for the reason, that the court has been very cautious in the catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinize the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it may yet fall under second part of Section 149 IPC, which states that if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as to the number of persons involved in the crime; how many of them were merely passive witnesses; what arms and weapons they were carrying along with them. Number and nature of injuries is also relevant to be considered. 'Common object may also be developed at the time of incident'.
26. In the instant case the consistent evidence of all the witnesses of fact that the accused persons armed with knives and lathi-danda have hidden in the arhar field of Mahendra Rathore came out together, surrounded Shiv Nath, Chhavi Ram, Ram and Raghu Nath and assaulted them. Not only this when the complainant along with his son Vishram and nephew Shiv Shanker came to their rescue, Vishram was also assaulted and injured. If the complainant had given vivid details of the incident in his prompt report as to who has assaulted whom, it would not mean that there was no common intention among the accused persons. In the incident two persons have lost their lives while three other were injured.
27. In the case of Ramachandran & Ors. v. State of Kerala (2011) 9 SCC 257 the Apex Court has observed in para-8 and 9 of the report :
"8. It has been contended that the conviction of the appellants with the aid of Section 149 of the Indian Penal Code is illegal as the appellants cannot be said to be the members of unlawful assembly and committed the offence in prosecution of their common object. They submit that all the appellants have to be held guilty for their individual acts and it cannot be said that when they assembled their common object was to cause the death of deceased Krishan or cause injuries to the injured persons. Mr. D.P. Singh, learned counsel particularly emphasized that there being no overt act alleged against appellant Ramesh of causing injury to the deceased, he cannot be roped with the aid of Section 149 of the Indian Penal Code.
9. We do not find any substance in the submission of the learned counsel. In our opinion the common object of an unlawful assembly has to be gathered from the nature of the assembly, arms possessed by them and the behaviour of the assembly at or before the occurrence. It is an inference which has to be deduced from the facts and circumstances of each case. To attract the mischief of Section 149 of the Indian Penal Code, it is not necessary that each of the accused must commit some illegal overt act. When the assembly is found to be unlawful and if offence is committed by any member of the unlawful assembly in prosecution of the common object, every member of the unlawful assembly shall be guilty of the offence committed by another member of the assembly. It has to be borne in mind that an assembly which is not unlawful when assembled may subsequently become an unlawful assembly. In the present case there is overwhelming material to show that the appellants variously armed, including the fire arms assembled at one place and thereafter came to the place of occurrence and started assault together and when protested by the deceased, one of the members of the unlawful assembly shot him dead and some of them caused injury by fire arm, gandasa, lathi, etc. to others. All of them have come and left the place of occurrence together. From what has been found above, there is no escape from the conclusion that appellants were the members of the unlawful assembly and offences have been committed in pursuance of the common object and hence, each of them shall be liable for the offence committed by any other member of the assembly. In our opinion, the trial court correctly held them guilty with the aid of Section 149 of the Indian Penal Code, which has rightly been affirmed in appeal by the High Court."
28. In the instant case we have already seen that deceased Shiv Nath had sustained one fatal blow of knife rupturing his right lung and cutting of cartilage on 5th rib. The heart was empty and blood had collected in right side of chest. Another deceased Ram Nath had sustained three incised wounds. One of them was on lateral side of abdomen and it was deep enough to cut his right kidney. Injured Chhavi Ram has sustained one incised wound on his abdomen and another on left side lower part of chest. Another injured Raghu Nath had received two incised wounds, one of them was on right side of abdomen. Thus, the seat of incised wounds found on the body of deceased and injured speak volumes about the common object of the unlawful assembly. Four out of six members of this assembly were armed with knives (chhuris). No doubt accused-appellants Akhalesh and Ajay have assaulted deceased Ram Nath and the injured with danda, but they have participated in the crime being member of unlawful assembly the common object of which was to eliminate as much members of complainant's family as they can, therefore, they cannot escape from the rigour of Section 149 I.P.C.
29. In view of the above legal position as also the facts of the instant case, the irresistible conclusion is that each and every accused-appellants no. 1 to 6 as a member of unlawful assembly is responsible for the murder of both the deceased as also for causing injuries to other three injured in order to kill them.
30. Now as regards the role of Smt. Savitri, accused-appellant no. 7, it had been stated in the FIR that she along with her daughter Km. Rita have assaulted the injured with chappals. Chhavi Nath PW-3 has simply stated at the end of his examination-in-chief that Savitri had chappal while Rita had shoe and they had also beaten. Ram Baksh PW-4 had not spoken any word about presence or role of Savitri in the entire incident. According to Raghu Nath PW-8, Savitri had wielded chappal to Shiv Nath and Ram Nath and were accosting to kill every one. Vishram PW-10 had stated that apart for six accused (male), Rita and Savitri had also arrived at the spot and they had exhorted the accused to kill all of them. Thus, we find that the witnesses are not consistent about the presence, role and participation of accused Savitri in the incident. She was not with accused persons from before and had allegedly reached at the place of occurrence later. Considering the entire facts and circumstances of the case, we think that Smt. Savitri deserves benefit of doubt.
31. No other point has been argued before us.
32. The net result of our reassessment of the whole evidence available on record and reasonings is that we do not find any illegality, factual or legal in the findings recorded by the trial Court in respect of accused-appellants Vimlesh, Ashok, Ram Lakhan, Rajendra, Akhalesh Kumar and Ajay Kumar. They have been rightly found guilty for the offence punishable u/s 147, 302/149, 307/149, 323/149 IPC and appropriate sentences have also been awarded to each of them. The appeal is dismissed in respect of accused-appellants Vimlesh, Ashok, Ram Lakhan, Rajendra, Akhalesh Kumar and Ajay Kumar. However, Smt. Savitri is acquitted for the offence punishable u/s 323 IPC. She is on bail. She need not surrender. Her bail bonds are cancelled and sureties are discharged.
34. Accused Vimlesh and Ashok are in jail and would serve out the remaining part of sentences. Accused Ram Lakhan, Rajendra, Akhalesh and Ajay Kumar are on bail. Their bail is cancelled. Steps should be taken immediately to arrest them and sent to jail to serve out the sentence.
35. Let a copy of judgment be sent to Court concerned and Chief Judicial Magistrate, Kannauj for compliance which should be reported to this Court within 6-weeks.
...................Rakesh Tiwari, J .............Anil Kumar Sharma, J November 27 , 2012 Imroz/-