Allahabad High Court
Sri Kant And Another. vs State Of U.P. on 30 May, 2022
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ` A.F.R. RESERVED ON 8.3.2022 DELIVERED ON- 30.5.2022. IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW BENCH, LUCKNOW. Case :- CRIMINAL APPEAL No. - 1314 of 2005 Appellants : 1. Sri Kant 2. Ram Lakhan (Died during pendency of the appeal) Versus. Respondent : State of U.P. Counsel for Appellants :- Shri Anurag Shukla Counsel for Respondent :- Shri Umesh Chandra Verma, Additional Govt. Advocate connected with Case :- CRIMINAL APPEAL No. - 1529 of 2005 Appellants : 1. Kamla Kant 2. Sunil Kant Versus. Respondent : State of U.P. Counsel for Appellants :- Shri R.K.Dwivedi, Amicus Curaie Counsel for Respondent :- Shri Umesh Chandra Verma, Additional Govt. Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Saroj Yadav,J.
( per Mrs. Saroj Yadav,J for the Bench )
1. The Criminal Appeal No.1314 of 2005 has been filed by the appellants/ convicts Sri Kant and Ram Lakhan and the Criminal Appeal No.1529 of 2005 by appellants/ convicts Kamla Kant and Sunil Kant, being aggrieved of the judgement and order dated 30.9.2005 passed by the Additional Sessions Judge/ F.T.C. No.1, Hardoi in Sessions Trial No.257 of 2002 and 252 of 2003 jointly, whereby the appellants/ convicts have been awarded a sentence for life imprisonment under Section 302/34 of the Indian Penal Code (in short 'I.P.C.') and imprisonment of six months under Section 323/34 I.P.C.
2. Since appellant Ram Lakhan died during pendency of the appeal, appeal filed by him stood abated vide order dated 22.7.2019 passed by this court.
3. The facts necessary for disposal of these appeals, shorn of unnecessary details are as under :-
4. A First Information Report ( in short 'F.I.R.') was registered at Case Crime No.128 of 2001 under Section 302/323/504 I.P.C. against the appellants/ convicts at Police Station Harpalpur, District Hardoi on the basis of a written report submitted by the complainant Ram Babu Shukla. It was stated in the written report that Anoop Kumar son of Natthu belonging to the family of complainant, put some thorny bushes at the boundary of own paddy-field. Due to this, a way was created through the field of Hari Babu so his cousin Hari Babu during day time at about 1.00 P.M. went to the field to remove thorny bushes on the boundary of the field. As soon as he started removing the thorny bushes, Sri Kant, Kamla Kant and Sunil Kant son of Ram Chandra and Ram Lakhan son of Devi Sahai reached there and started abusing and beating Hari Babu with sticks (lathis). Hearing the noise, he, Natthu Singh and Ram Avtaar resident of same village, reached the spot. As soon as he reached on the spot Ram Lakhan and Sri kant started beating him also, with sticks and Sunil Kant and Kamla Kant fired on Hari Babu with country made pistols. Hari Babu sustained injuries on his stomach and on left side of the head. As soon as fire hit Hari Babu, he ran to save himself towards the grove of Babu Singh, he fell down and died there. Thereafter all the above four miscreants went away towards their own house and the dead body was lying in the grove.
5. After investigation, chargesheet no.96/2001 was submitted in the court against Kamla Kant, Sunil Kant and Sri Kant under Section 302, 323/34 I.P.C.; and chargesheet No.96-A/2001 against Ram Lakhan.
6. After taking cognizance, concerned Magistrate committed both the cases to Sessions court for trial where the case against Sri Kant, Kamla and Sunil Kant was registered as Sessions Trial No.257 of 2002 and against Ram Lakhan, Sessions Trial No.292/2002. Both the sessions trials were consolidated and tried together. Charges were framed against appellants/ convicts. They denied the charges and claimed to be tried.
7. In order to prove the charges levelled against the appellants/ convicts, the prosecution examined seven witnesses in toto. These seven witnesses are :-
(i). P.W.-1 Natthu Lal, alleged eye witness.
(ii). P.W.-2 Ram Babu Shukla, the complainant and the injured eye witness.
(iii). P.W.-3 Dr. V.V. Tripathi, Autopsy Surgeon who conducted postmortem on the cadaver of the deceased.
(iv). P.W.-4 Raja Ram Singh, the third investigating officer who investigated the case partially.
(v). P.W.-5 Har Narain Singh, second investigating officer who investigated the case partially.
(vi). P.W.-6 Suresh Pal, first investigating officer who did investigation, initially.
(vii). P.W.-7 Dr. C.P.Rawat who medically examined the injured.
8. Apart from the above oral evidences, relevant documents were also proved and exhibited as under :-
(i). Exhibit Ka-1- Written report.
(ii). Exhibit Ka-2 - Post Mortem Report.
(iii). Exhibit Ka-3- Chargesheet No.96 of 2001 submitted against Kamla Kant, Sunil Kant and Sri Kant.
(iv). Exhibit Ka-4- Chargesheet No.96A/2001 against appellant/convict. Ram Lakhan.
(v). Exhibit Ka-5 - F.I.R.
(vi). Exhibit Ka-6 - Copy of the relevant G.D. of registration of F.I.R. (vii). Exhibit Ka-7 - Inquest report. (viii). Exhibit Ka-8- 'Photo Nash'. (ix). Exhibit Ka-9 letter to R.I. (x). Exhibit Ka-10 - Letter to C.M.O. for conducting autopsy.
(xi). Exhibit Ka-11- Police form No.13 containing the information regarding the case, while sending the dead-body for post mortem.
(xii). Exhibit Ka -12 - Challan 'Laash'.
(xiii). Exhibit Ka-13 - Site-plan of the spot.
(xiv). Exhibit Ka-14-recovery-memo of collection of blood soaked soil and plain soil from the spot.
(xv). Exhibit Ka-15 - Injury report of Ram Babu Shukla, the complainant.
(xvi). Exhibit Ka-16 report of forensic science lab of examination of blood soaked soil and plain soil collected from the spot.
9. After completion of the prosecution evidence, the statements of appellants/ convicts were recorded under Section 313 of the Code of Criminal Procedure, 1973 ( in short 'Cr.P.C.') wherein they denied the crime and submitted that witnesses have deposed falsely.
10. Appellant/convict Sri Kant submitted that the case was registered due to enmity and refused to give any evidence in defence. Appellant Sunil Kant and Kamla Kant also stated that the case was lodged due to enmity. Appellant Kamla Kant also refused to give any evidence in defence but Sunil Kant stated that he wants to produce evidence in defence. Appellant/ convict Ram Lakhan also stated that the case was lodged due to enmity and he was not at the spot. He was in the temple at the relevant time and he has been implicated falsely. He also wished to produce evidence in defence.
11. No witness was produced in defence by either of the appellants/ convicts, though opportunity was given. The learned trial court after hearing the arguments of both the sides on the basis of the evidence available on record came to the conclusion that the evidence of P.W.-1 Ram Babu Shukla who is an injured witness and also the complainant is trustworthy. He did not name the other two brothers of the appellants/ convicts Sri Kant, Kamla Kant and Sunil Kant. Only those were named who caused the incident. No motive of false implication could be established by the appellants/ convicts. The challan under Section 107/116 of the Cr.P.C. which has been filed by the appellants/ convicts was subsequent to the present F.I.R. hence have no importance. The witnesses should not be counted but the evidence should be weighed. If the sole witness gives a truthful account of the incident, he should be believed. Hence the trial court held the appellants/ convicts guilty under Section 302 and 323 readwith Section 34 I.P.C. and punished them accordingly.
12. Being aggrieved of this judgement and order, these criminal appeals have been filed. The appellants/ convicts have challenged the impugned judgement in the memo of appeals mainly on the ground that the learned lower court has passed the entire judgement on the sole testimony of P.W.-1 Ram Babu Shukla whereas considering in totality this evidence, in the light of factual scenario of the case, it is manifest that he (P.W.-1) was not present at the place of the occurrence and he was not an eye-witness of the case. P.W.-1 Natthu Lal, the independent witness did not support the happening of the alleged occurrence. The alleged eye witness Ram Avtar was not produced in the court. In the post-mortem-report, a single firearm injury was found on the dead body of the deceased Hari Babu and no injury of 'lathi' or 'danda' was found. P.W.-2 Ram Babu Shukla himself made superficial injury on his person, as his medical-examination was conducted after four days of the alleged incident. The appellants/ convicts were implicated due to the enmity and the judgement and order is based on conjectures and surmises, and should be set aside.
13. Heard Shri R.K.Dwivedi, learned Amicus Curiae on behalf of the appellant no.1/Kamla Kant and appellant no.2 /Sunil Kant in Criminal Appeal No.1529 of 2005, Shri Anurag Shukla, learned counsel for the appellant no.1/Sri Kant in Criminal appeal no.1314 of 2005 and Shri Umesh Chandra Verma, learned Additional Government Advocate for the respondent/ State.
14. The learned Amicus Curiae on behalf of the appellant Kamla Kant and Sunil Kant submitted that the F.I.R. was lodged after an inordinate delay and the same was ante-time. The F.I.R. was not forwarded to the concerned Magistrate forthwith. Pramod, Kumar Bajpai, scribe of the written report was not produced in the witness-box by the prosecution. The process of inquest was made with inordinate delay. Constable clerk Shakti Deen, scribe of the chik F.I.R. was not produced in the witness box by the prosecution. The witnesses of the recovery of the blood stain soil and plain soil have not been produced in the witness-box by the prosecution. The medical evidence belies the ocular testimony. According to the post- mortem-report, Exhibit Ka-2 as well as the testimony of P.W.-3 Autopsy Surgeon, no injuries of 'lathi'-danda' were found on the person of the deceased while the complainant has stated that the appellants/convicts beat the deceased with lathis and dandas also. In the injury report of injured Ram Babu Shukla, the doctor P.W.-7 has only indicated colour of the injury no.1 and 4 and he has not indicated colour of other injuries which creates a serious doubt about the existence of said injuries on the person of the injured. There are major contradictions in the testimonies of P.W.-2, P.W.-3, P.W.-6 and P.W.-7. There are major contradictions in the testimony of P.W.-2 itself. No independent witness has supported the prosecution case. P.W.-2 Ram Babu Shukla, is a related and interested witness. His presence on the spot is doubtful. No blood stain on 'Makka', 'Chari' or 'paddy' crops were found. No paddy crop was found by the investigating-officer P.W.-6 in any of the fields near the spot as alleged by P.W.-2. No weapon of assault was recovered by the investigating-officer either from the possession of the appellants/ convicts or on their pointing out. No blood was found on the spot over which the dead body of the deceased was lying. In the site-plan, Exhibit Ka-13 no tree has been shown by the investigating-officer in the grove of Babu Singh where the deceased allegedly fell down and died. It indicates that the site-plan was not prepared by the investigating-officer on the spot at the pointing out of the complainant P.W.-2 and a concocted story has been hatched after the recovery of the dead-body of the deceased who was murdered at some lonely place in the night by some unknown miscreants in the dark hours and the assailants fled away from the spot and the appellants/ convicts were implicated falsely on account of village party-bandi and enmity.
15. Shri Rajesh Kumar Dwivedi, learned Amicus Curiae relied upon the following case laws :-
i). Marudanal Augusti Vs. State of Kerala : 1980 SCC (Cri) 985.
ii). Lakshmi Singh and others etc. Vs. State of Bihar : AIR 1976 SC 2263.
iii). Nawazish Ali and others Vs. The State : 2000(41) ACC 181 (Alld. H.C. D.B.)
16. Shri Anurag Shukla, learned counsel for the appellant/ convict submitted that the appellant/ convict has not been assigned the role of firing upon the deceased. He has been assigned the role of beating with lathi and danda. According to the post-mortem report, the deceased died of firearm injury and no injury of lathi or danda was found on the cadaver of deceased. The injuries found on the body of the complainant Ram Babu Shukla are simple in nature hence the appellant Sri Kant cannot be held guilty and punished for the offence punishable under Section 302 I.P.C. with the help of Section 34 I.P.C. So he should be acquitted of the offence punishable under Section 302 readwith Section 34 of I.P.C. He relied upon the following case laws :-
i). Mohar Singh Vs. State of M.P. : 2007 (4) MPLJ 39.
ii). Sardar Singh Rawat Vs. State of M.P. : 2006 Supreme MP 579.
iii). Kalu Ram Vs. State of Rajasthan : 2000 AIR SC 3630.
iv). Kanwarlal & another Vs. State of M.P. : 2002 (7) SCC 152.
v). Jasdeep Singh @ Jassu Vs. State of Punjab : 2022 SCC ONLINE SC 20.
vi). Ramesh @ Dapinder Singh Vs. State of Himanchal Pradesh : 2021 SCC Online SC 243 vii). Bishu Sarkar and others Vs. State of West Bengal : 2017 (11) SCC 105 ; 2017 (2) JIC 163 SC. viii). Bhikhari Vs. State of U.P. : 1965 (3) SCR 194. ix). Dayanand Vs. State of Haryana : 2008 (15) SCC 717. x). Ramesh Krishna Madhusudan Nayar Vs. State of Maharasthra. : 2008 (14) SCC 491. xi). Sukhlal Sarkar Vs. Union of India and others : 2012( 5) SCC 703. xii). State of H.P. Vs. Trilok Chand and another : 2018 (2) SCC 342. 17. Contrary to it, learned A.G.A. Shri Umesh
Chandra Verma countered the above submissions by submitting that testimony of injured witness P.W.-2 Ram Babu Shukla cannot be doubted because his injuries have been proved by the doctor P.W.-7 who examined his injuries and prepared the medico-legal- report. The P.W.-7 has clearly stated that the injuries found on the body of the injured Ram Babu Shukla cannot be created. There is no dent in the evidence of Ram Babu Shukla and his testimony is trustworthy and reliable so learned trial court has rightly relied upon his sole-testimony and held guilty the appellants/ convicts and punished them. He further submitted that the G.D. has been proved as Exhibit Ka-6, F.I.R. was lodged promptly and there is no delay in lodging of the F.I.R. and F.I.R. cannot be even termed as ante-timed. 'Panchnama' was also filled within reasonable time. All the accused persons went on the spot armed with lathis, dandas and fire-arms. There was prior concert in minds of the appellants/ convicts. So the appellants Sri Kant cannot be absolved of his liability for the offence punishable under Section 302 I.P.C. and he has rightly been held guilty and punished under Section 302 and 323 read with Section 34 of the I.P.C. Hence both the appeals should be dismissed.
18. Considered the rival submissions and perused the record of the present appeal as well as of the learned trial court and gone through the case laws cited above.
19. According to the F.I.R., all the four accused persons abused and assaulted the deceased with lathis/dandas and when the complainant P.W.-2 reached there after hearing the noise alongwith others, accused Sri Kant and Ram Lakhan ( now dead) assaulted him with lathis/dandas. As Sri Kant and Ram Lakhan assaulted the complainant, so the complainant could not help the deceased, meanwhile Kamla Kant and Sunil Kant fired upon the deceased of which he died. The complainant Ram Babu Shukla, who is an injured witness has proved what he has written in the first information report while being examined in the court as P.W.-2. In cross-examination also, this witness has stood the test of veracity except some minor contradictions. The injuries of this witness have been proved by P.W.-7 Dr. C.P.Rawat, who examined the injured and prepared the medico-legal report exhibit Ka-15. This witness P.W.-7 has denied the suggestion put forward by the defense counsel that these injuries found on the person of the injured Ram Babu Shukla could be self-created. Eight injuries were found on the person of the complainant P.W.-2 and all were simple in nature caused by hard and blunt object. Duration was found about 4 days' old. It is noteworthy that the incident occurred on 3.8.2001 and the injured was examined on 6.8.2001. The time coincides with the time when the incident occurred and the injured received the injuries. The testimony of an injured witness carries a special weight. The presence of this witness at the time of occurrence is also natural because as per the evidence available on record, he resides near to the place of occurrence and he reached at the spot after hearing the noise which was ensuing due to the assault made by accused persons on the deceased Hari Babu. Though P.W.-1 who was mentioned in the F.I.R. as an eye witness has turned hostile and did not support the prosecution case, another eye witness Ram Avtar mentioned in the F.I.R. was not produced by the prosecution, yet the evidence of P.W.-2 is sufficient enough with a ring of truth to prove the incident and also what has been written in the F.I.R. by him. No major contradiction could be brought by the defence in the cross examination of this witness. No reason of false implication could be brought forward by the appellants by this witness i.e. complainant, though they tried to put forward that due to some challan under Section 107/116 of Cr.P.C., the complainant was annoyed, so he implicated them falsely but this is not believable because the challan is subsequent to the incident of this case and this defence was rightly disbelieved by the trial court. Much emphasis has been given by the counsel of appellants that the conviction has been based on the testimony of a single witness which is not proper. This argument of the counsel for the appellants is of no importance because it is a settled law that a conviction can be based on a sole testimony of a witness if the court finds the testimony of that witness creditworthy.
20. In Kartik Malhar Vs. State of Bihar : (1996) 1 SCC 614, the Hon'ble Apex Court has held as under ( relevant paragraphs 2, 3, 4, 6 and 7 ) :-
"2. The well-known maxim that "Evidence has to be weighed and not counted" has been given statutory placement in section 134 of the Evidence Act which provides us under :
"134. No particular number of witness shall in any case be required for the proof of any fact."
3. This section marks a departure from the English law where a number of statutes still prohibit convictions for certain categories of offences on the testimony of a single witness. This-difference was noticed by the Privy Council in Mahamed Sugal Esa Mamasah Rer Alalah v. The King, A.I.R. (1946) P.C, 3 .............
4. The Privy Council decision was considered by this Court in Vadivelu Thevar v. The State of Madras, A.I.R. (1957) S.C. 614 in which it was observed as under : -
"On a consideration of the relevant authorities and the provisions of the Evidence Act. the following propositions may be safely stated as firmly established :
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outways the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon for example, in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogus character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that 'no particular number of witnesses shall, in any case, be required for the proof of any fact'. The Legislature determined, as long ago as 1872 presumably after due consideration of the pros and cons. that, it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses."
This Court further observed as under :
"It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished............................
5. xxxxx.
6. Some other cases of this Court in which the question of sole witness constituting the basis of conviction or otherwise has been considered are State of Haryana v. Manoj Kumar, [1994] 1 SCC 495;Brij Basi Lal v. State of M.P., [1991] Suppl. 1 SCC 200; Jai Prakash v. State(Delhi Administration), [1991] 2 SCC 379; Peodireddi Subbareddi v. State of Andhra Pradesh, AIR (1991) SC 1356; Java Ram Shiva Tagore v. State of Maharashtra, [1991] Suppl. 2 SCC 677 AIR (1991) SC 1735; Anil Pukhan v. State of Assam, AIR (1993) SC 1462 and Ram Kumar v. State of U.P., AIR (1992) SC 1602.
7. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelyu Thevar's case (supra) and, therefore, conviction can be recorded on the basis of the statement of single eye witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the Court, at the same time, is convinced that he is a truthful witness. The Court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye witness being present. Indeed, the Courts insist on the quality, and, not on the quantity of evidence."
21. In Kunju @ Bala Chandran Vs. State of Tamilnadu : 2008 (2) SCC 151, the Hon'ble Apex court has also held that the conviction can be based on the sole testimony of a witness who is found reliable. It is not the number of witness but the quality of evidence which is important.
22. In Jayanti Lal Verma Vs. State of M.P. (Now Chattisgarh) 2020 SCC Online SC 944, the Hon'ble Apex Court has laid down the similar view.
23. In the present matter, though another eye witness mentioned in the F.I.R., Natthu Lal has turned hostile but the evidence of P.W.-2 who is also an injured witness, has in a very natural manner step by step, narrated the story before the court and what has been written by him in his written report on the basis of which the F.I.R. was registered. No reason could be evinced to disbelieve the testimony of this witness.
24. The counsel for the appellants also stated that this witness is a relative witness as the deceased was the cousin of this witness, so his testimony should not be believed. This argument also of the appellants carries no force because testimony of a witness cannot be discredited only for the reason of his being a relative of the deceased if the court otherwise finds his testimony creditworthy and reliable.
25. In Kartik Malhar's case (supra), the Hon'ble Apex Court has held as under (para 18 ) :-
"18. We may also observe that the ground that the witness being a close relative and consequently, being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dilip Singh's case (supra) in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., the Court observed :
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. The State of Rajasthan, [1952] SCR 377 = AIR 1952 SC 54. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
In this case, this Court further observed as under :
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
26. In the present case, the incident is of day light and there is no reason on the record to disbelieve the testimony of P.W.-2, the complainant and also an injured. The learned counsel for appellants Kamla Kant and Sunil Kant also emphasised much on the arguments that the site of the crime has not been proved by prosecution, as no witness of the recovery of blood soaked soil and plain soil from the spot, has been examined and it could not be established that the incident occurred at the place mentioned in the F.I.R. Though no witness of recovery of blood soaked soil and plain soil from the spot has been examined but that has very well been proved by the concerned investigating officer and Exhibit Ka-16 a report of forensic Science Laboratory, Lucknow which depicts that both the soils i.e. blood soaked soil and plain soil were similar. Hence, there remains no reason to doubt the place of occurrence, furthermore the place of occurrence has very well been proved by the P.W.-2 and also by the Investigating Officer P.W.-6. The post mortem report of the deceased Exhibit Ka-2 shows that the deceased sustained multiple firearm wounds of entries present on left side front of chest and left arm, average measuring 0.3 cm X 0.3 muscle to chest cavity deep."
27. 11 Pellets were also recovered from the left arm chest cavity and left lung of the deceased, as has been noted in the post-mortem-report by the autopsy surgeon. The cause of death has been shown as shock and hemorrhage as a result of ante-mortem injuries. This medical evidence is in support of evidence of eye witness P.W.-2 the complainant. However, the learned counsel for the appellants have argued that P.W.-2 has stated that the deceased was beaten by the appellants by 'lathis/dandas' also but no injury of 'lathi-danda' was found, so the evidence of P.W.-2 is not in consonance with the medical evidence. This argument also on behalf of the appellants has no force because mere absence of injuries of 'lathi'-'danda' cannot convince us to drop the conclusion that the deceased was not fired upon by the appellants Kamla Kant and Sunil Kant as has been stated by P.W.-2 in his statement and also written in the F.I.R. The injuries noted in the Post-mortem-report supports the version of P.W.-2 as far as firearm injuries are concerned. So only for the fact that no injury of 'lathi-danda' was found, the statement of P.W.-2 cannot be disbelieved.
28. The learned counsel for the appellants Kamla Kant and Sunil Kant also argued that the F.I.R. is a delayed one and also ante-timed because the same was not sent to the concerned Magistrate at the earliest. This argument also carries no weight in the light of recent pronouncements of Hon'ble Apex Court.
29. The Hon'ble Supreme Court in Bimla Devi Vs. Rajesh Singh and another : (2016) 15 SCC 448 has held that "although it is true that delay in sending the F.I.R. to the concerned Magistrate can vitiate the investigation, but it is settled position that a cogent reasoning can override this procedural lacuna. It is an accepted fact that there was a delay of one day in sending the F.I.R., however, no motive in manipulating with the F.I.R. was proved. The prosecution case is strongly backed by testimonies of the six eye witnesses who have testified the incident in almost similar terms. A procedural lapse in not sending the F.I.R. promptly did not prejudice the present case."
30. The Hon'ble Apex Court in Narsingh Pal Vs. State of U.P. : (2020) 14 SCC 281 has held that "the F.I.R. was lodged promptly at 00.30 A.M. on 24.6.2005 by P.W.-1 naming the appellant, promptly accusation was not the result of any consultation but the immediate confirmation of the appellant being the assailant. The fact that there may have been some delay in sending it to the Magistrate, is therefore, inconsequential and has caused no prejudice to the appellant."
31. Recently in Ombir Singh Vs. State of Uttar Pradesh : (2020) 6 SCC 378, the Hon'ble Apex Court has held that the delay in compliance with section 157 of the Cr.P.C. cannot in itself be a ground for acquittal of the accused. The Apex Court has also held that in cases where the date and time of the lodging the F.I.R. is questioned, the report becomes more relevant. But mere delay in sending the report itself cannot lead to a conclusion that the trial is vitiated or the accused is entitled to be acquitted on this ground.
32. In the matter in hand, the incident allegedly occurred at 1.00 P.M. and the F.I.R. was lodged on the same day at 5.25 P.M. The distance of the place of occurrence was 14 kilometers from the concerned police station. The person who went to lodge the F.I.R. was also got injured in the incident. In such circumstances, the F.I.R. cannot be deemed to be a delayed F.I.R. or ante-timed F.I.R. and had rightly been so concluded by the trial court. Thus, the delay in sending the F.I.R. to the concerned Magistrate is of no importance. Hence, there appears no reason to interfere with the conclusions arrived at by the trial court in holding guilty the appellants Kamla Kant and Sunil Kant for the offence punishable under Section 302 read with Section 34 I.P.C. for causing the murder of the deceased Hari Babu.
33. Now comes the case of another appellant Sri Kant who has filed Criminal Appeal No.1314 of 2005. The counsel for the appellant Sri Kant argued that he has been assigned the role of assaulting the injured witness Ram Babu Shukla and he did not cause any injury to the deceased with 'lathi-danda' as there was no injury on the person of the deceased of 'lathi-danda'. He played no role in causing the death of the deceased, hence he can, at the most be held liable for the offence punishable under Section 323 readwith Section 34 I.P.C.
34. Learned A.G.A. opposed the above arguments of the counsel for Sri Kant and submitted that this appellant also played an active role in the murder of the deceased as he also came alongwith other accused persons at the spot with the intention to commit the murder of the deceased. So he is also liable for the offence punishable under Section 302 readwith Section 34 I.P.C.
35. Learned A.G.A. relied upon paragraph 12 of the case Ramaswami Ayyanger and others Vs. State of Tamilnadu : 1976 SCC (Cri.) 518 wherein Hon'ble Apex Court has held as under :-
"12. ................Section 34 is to be read along with the preceding Section 33 which makes it clear that the "act" spoken of in Section 34 includes a series of acts as a single act. It follows that the words "when a criminal act is done by several persons" in Section 34, may be construed to mean "when criminal acts are done by several persons". The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim, or may otherwise facilitate the execution of the common design. Such a person also commits an "act" as much as his co-participants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of Section 34 that the person who instigates or aids the commission of the crime 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...................................."
36. Learned A.G.A. has also relied upon paragraph 12 of the case Ramesh Singh @ Photti Vs. State Andhra Pradesh : 2004 SCC (Cri) Supp. 70, which runs as under (relevant para 12) :-
"12. To appreciate the arguments advanced on behalf of the appellants it is necessary to understand the object of incorporating Section 34 in the Indian Penal Code. As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the penal code the Legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principle of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made, and from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. (See Noor Mohammad Yusuf Momin Vs. State of Maharashtra AIR 1971 SC 855)."
37. In Jasdeep Singh @ Jassu Vs. State of Punjab : 2022 SCC Online SC 20 (supra) cited by learned counsel for the appellant Sri Kant, the Hon'ble Apex Court has held as under (para 21 to 28) :-
21.Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence.
22. What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34 IPC does not get attracted.
23.It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid- fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.
24.The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act "in furtherance of the said intention". One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense.
25.Normally, in an offense committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/ exhortation. However, there are exceptions, in particular, when an offence consists of diverse acts done at different times and places. Therefore, it has to be seen on a case to case basis.
26.The word "furtherance" indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion.
27.There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.
28.The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court."
38. In the present matter, it is discernible from the evidence available on record that when P.W.-2 the complainant hearing the noise reached the spot where the accused persons were allegedly beating Hari Babu, the deceased, this appellant/convict (Sri Kant) alongwith Ram Lakhan (now dead) started beating the complainant with lathi-danda. Meanwhile, the other two accused appellants/ convicts Kamla Kant and Sunil Kant fired upon the deceased of which he died.
39. Here, on the record, there is no evidence to establish that appellant/ convict Srikant had intention to kill the deceased and had reached at the spot alongwith co-convicts to kill Hari Babu with prior meeting of minds with co-convicts as the complainant has written in his written report that when the deceased started to remove the thorny bushes from the boundary of the field, the appellants/ convicts reached there at the spot and started abusing and beating the deceased with 'lathis-dandas' and when he reached the spot after hearing the noise, Sri Kant and Ram Lakhan started beating him and meanwhile appellants/ convicts Sri Kamla Kant and Sunil Kant fired upon the deceased. These circumstances show that there is possibility that the appellant Sri Kant may not be aware of the fact that the co-appellants/co-convicts will cause the death of the deceased Hari Babu by firing upon him. Hence this appellant/ convict deserves the benefit of doubt to be given to him and he may be held liable only for the offence under Section 323 I.P.C. for causing simple injuries to the complainant Ram Babu Shukla.
40. To sum up, the appellants/ convicts Kamla Kant and Sunil Kant have rightly been found guilty and punished for the offence punishable under Sections 302 readwith Section 34 I.P.C. and the sentence awarded to them by the trial court is hereby affirmed.
However, the conviction and sentence awarded to them Under Section 323/34 is hereby set aside.
41. As far as the appellant/convict Sri Kant is concerned, his conviction under Section 302 readwith Section 34 I.P.C. is set aside and his conviction under Section 323 I.P.C. is hereby affirmed.
42. The appellants/ convicts Kamla Kant and Sunil Kant are already in jail. They shall serve out the sentence awarded to them under Section 302 read with Section 34 I.P.C.
43. The appellant/ convict Sri Kant is on bail. He shall surrender before the concerned trial court to serve out the sentence awarded to him under Section 323 I.P.C. awarded by the trial court, if not served already.
44. These appeals are partly allowed.
45. Let a copy of this order alongwith original record be transmitted to the trial court concerned forthwith for information and necessary action.
46. Shri R.K. Dwivedi, Amicus Curaie shall be paid remuneration as per Rules.
(Mrs. Saroj Yadav,J) (Ramesh Sinha,J) Order date : 30.5.2022./Shukla.