Allahabad High Court
Shyam Lal And Others vs State Of U.P. on 13 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2245
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on: 01.11.2019 Delivered on:13.12.2019 Case :- CRIMINAL APPEAL No. - 5738 of 2011 Appellant :- Shyam Lal And Others Respondent :- State of U.P. Counsel for Appellant :- D.N. Joshi,Deepak Srivastava Counsel for Respondent :- Govt. Advocate,Shashi Kant Singh Hon'ble Ram Krishna Gautam,J.
1. This appeal under Section 374(2) of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') has been filed by Shyam Lal, Bijai alias Ram Sajivan, Kallu alias Ram Ujagir, Udal alias Udairaj, Awadhraj, Girdhari and Sudama Prasad against judgment of conviction and sentence made therein in Sessions Trial No. 108 of 2004, State Versus Shyam Lal and others, arising out of Case Crime No. 162 of 2004, under Sections 147, 304/149, 323/149 I.P.C., Police Station Durgaganj, District Sant Ravidas Nagar, Bhadohi, passed by court of Additional Sessions Judge, Court No. 3, Bhadohi- Gyanpur, wherein convicts-appellants have been sentenced with one year's simple imprisonment and fine of Rs.1,000/- and in case of default one month's additional simple imprisonment for offense punishable under Section 147 I.P.C., ten years' rigorous imprisonment with fine of Rs.5,000/- each and in default three months' additional simple imprisonment under Section 304/149 I.P.C., six months simple imprisonment and fine of Rs.500/- and in case of default one month's additional simple imprisonment for offence punishable under Section 323/149 I.P.C. with a direction for concurrent running of sentences.
2. Memo of appeal is with this ground that trial court failed to appreciate facts and evidence placed on record. First information report, lodged by complainant, was based on wrong facts. PW-1 Jitendra Kumar was not present on spot at the time of alleged occurrence, because he was neither injured nor his presence is beyond doubt. There was no public witness of alleged occurrence. Statement of prosecution witnesses were full of contradictions. Medical evidence was not in support of prosecution case. Hence, this appeal is with a prayer for setting aside impugned judgment of conviction and sentence dated 17.09.2011 with a further prayer for grant of acquittal against charges levelled against appellants.
3. From the very perusal of trial court record, it is apparent that Jitendra Kumar, S/o Ram Shiromani, R/o Village Gangarampur, P.S. Durgaganj, District Sant Ravidas Nagar, filed a written report (Ext.Ka-1) at Police Station Durgaganj on 12.07.2004 with this contention that on above date at about 9.30 A.M., there occurred quarrel in between Shyamlal, Kallu @ Ram Ujagir, Udal @ Udairaj, Bachai @ Ram Sajivan, Awadhraj, all sons of Bansi and Sudama Prasad and Girdhari, S/o Ramnath and informant's side regarding construction of chak road from the land of informant. Those named accused persons, being armed with lathi-danda, did assault by lathi-danda and brick pelting, resulting injuries to ladies of informant's house as well as Madan Lal, Dharamraj, Shyam Bihari, Sri Nath and Ravindra Kumar. They were taken to Government Hospital, Gyanpur, from where they were taken to Kabir Chaura Hospital, Varanasi. Informant's aunt Photo Devi was also accompanying them, who came back and apprised that others were under treatment, whereas Ravindra Kumar died, while reaching Kabir Chaura Hospital. This occurrence was witnessed by many persons, hence request for taking legal recourse was made. On the basis of this written report (Ext.Ka-1), Chik F.I.R. (Ext.Ka-19) was got registered at 00.10 P.M. on 13.07.2004 as Case Crime No. 162 of 2004, under Sections 147, 149, 336, 323, 304 I.P.C., at Police Station Durgaganj. This registration of case crime number was entered in General Diary Entry at Report No. 20 of the day. The matter was investigated, wherein Spot Map (Ext.Ka-4) was got prepared, brick parts, lying thereat, on the place of occurrence, was taken in custody by way of preparing recovery memo (Ext.Ka-2), injured Smt. Kamla Devi, Smt. Shivrati Devi, Sumitra Devi, Shrinath and Chhabbi Devi were got medically examined at Primary Health Centre, Suriyawan and their Medico Legal Reports are Ext.Ka-11, Ext.Ka-6, Ext.Ka-8, Ext.Ka-9, Ext.Ka-12. Medico Legal Report of Photo Devi is Ext.Ka-10, of Balraji Devi is Ext.Ka-7 and of Madan Lal is Ext.Ka-5. Deceased Ravindra Kumar died and his inquest proceeding was got conducted, wherein Inquest Report (Ext.Ka-13), Letter R.I. (Ext.Ka-14), Letter C.M.O. (Ext.Ka-15), Photo Dead Body (Ext.Ka-16), Police Form-13 (Ext.Ka-17) was got prepared. Thereafter, dead body along with those documents was sent for its autopsy examination under sealed intact position. It was got examined under autopsy examination and report of autopsy examination (Ext.Ka-3) was on record. Statement of witnesses were recorded under Section 161 Cr.P.C., whereupon Charge Sheet (Ext.Ka-18), under handwriting and signature of Investigating Officer, for offences punishable under Sections 147, 323/149, 325/149, 304/149 I.P.C., was got filed, whereupon Magistrate took cognizance.
4. As offence, punishable under Section 304 I.P.C., was exclusively triable by court of Sessions, hence learned Chief Judicial Magistrate, Bhadohi-Gyanpur, vide order dated 25.10.2004, committed this file to Court of Sessions Judge, Bhadohi at Gyanpur, where it was registered as Sessions Trial No. 108 of 2004. After receipt of this file in the court of Sessions Judge, Bhadohi at Gyanpur, after framing of charges, this case was made over to the court of Additional Sessions Judge, Court No.3, Bhadohi at Gyanpur for its trial. In the court of Sessions Judge, Bhadohi, Public Prosecutor / learned D.G.C. (Criminal), opened its case and after hearing learned counsel for accused charges against Shyamlal, Bachai alias Ram Sajivan, Kallu alias Ram Ram Ujagir, Udal alias Udairaj, Awadhraj, Girdhari and Sudama Prasad were framed on 08.12.2004 by the then Sessions Judge, Bhadohi at Gyanpur. Charges levelled against those accused persons in vernacular language is being translated in English by Court itself and is being reproduced as below:-
1. On 12.07.2004 at 9.30 A.M. in Village Gangarampur, within area of Police Station Durgaganj, District Sant Ravidas Nagar, Bhadohi, you with intention to kill Ravindra Kumar, made an unlawful assembly and thereby you committed offence punishable under Section 147 I.P.C. within cognizance of this Court.
2. On above date, time and place, you in furtherance of common intention, assaulted Ravindra Kumar by lathi-danda and brick-stone pelting, which was a culpable homicide not amounting to murder, punishable under Section 304/149 I.P.C. within cognizance of this Court.
3. On above date, time and place, you in furtherance of common intention, you did grievous hurt by giving assault by lathi-danda and brick pelting to Smt. Balraji, thereby committed offence under Section 325/149 I.P.C. within cognizance of this Court.
4. You on above date, time and place by lathi-danda and pelting brick and stone did voluntarily assault and hurt over Madan Lal, Smt. Shivpatti, Smt. Baliraji, Smt. Sunita Devi, Shrinath, Smt. Photo, Smt. Kamla Devi and Smt. Chhabbi Devi, thereby committed offence under Section 323/149 I.P.C. within cognizance of this Court.
5. The charges were read over to accused persons, who pleaded not guilty and claimed for trial. Prosecution examined PW-1 Jitendra Kumar, PW-2 Smt. Sumitra Devi, PW-3 Madan Lal, PW-4 Dr. A.K. Singh, PW-5 Shyam Lal, PW-6 Nagendra Prasad Mishra Pharmacist, PW-7 Islamul Haq Khan, PW-8 S.I. Radhey Shyam Pushkar, PW-9 C.P. 156 Shankar.
6. With a view to have explanation of accused persons over incriminating materials furnished by prosecution and the version of defence, accused persons were examined under Section 313 Cr.P.C., wherein each of accused answered accusation and testimony of PW-1 Jitendra Kumar, PW-2 Smt. Sumitra Devi, PW-3 Madan Lal, PW-4 Dr. A.K. Singh, PW-5 Shyam Lal, PW-6 Nagendra Prasad Mishra Pharmacist, PW-7 Islamul Haq Khan, PW-8 S.I. Radhey Shyam Pushkar, PW-9 C.P. 156 Shankar to be false, fictitious and fabricated, given under animosity. Evidence in defence was said to be given. Shyam Lal narrated in reply to question no. 13 "मुझे वादी पक्ष के लोगो ने मारा था इसका मुक़दमा मेरे भाई राम सजीवन ने किया है क्रॉस केस से बचने के लिए झूठा मुक़दमा किया गया" (Prosecution side had assaulted us, for which case was got lodged by my brother Ram Sajivan and with a view to save themselves from criminal liability, this false accusation was got lodged) [English translation by Court itself]. The same is reply of almost each of accused persons except assertions given by Ram Sajivan that on 12.07.2004 at about 9.30 A.M. chak road was being constructed for use by accused persons from the field of accused Sudama under his consent, which was damaged by Shyam Bihari, Ram Shiromani, Dharamraj and Madan. This was protested. Shyam Bihari, Dharamraj, Ram Shiromani and Madan give assault by lathi-danda, wherein Shyam Lal, Udairaj, Ram Ujagir, Balraji and Pintu were badly injured, for which case was got registered by this accused at Police Station Durgaganj and with a view to save themselves from criminal liability, this false case has been got lodged as counter blast of same. Convict-appellant Ram Ujagir has also said like so. The same is the version of convict-appellant Udairaj. Convict-appellant Awadhraj has pleaded his alibi that he was taken by police of Durgaganj at 8.00 A.M. on 12.07.2004 and he was restrained and confined under Section 51 read with 107/116 Cr.P.C. but falsely implicated in this occurrences. Convict-appellant Sudama Prasad, too, had taken plea of alibi that he was not present on spot on above date, time and place. Rather, he was busy in making construction of house of Pratap Dhobi, since 8 A.M. to 5 P.M., on the above date of occurrence. Girdhari also took plea of alibi that he was at Village Dhanaura regarding construction of house as labourer.
7. In defence, Jadawati Devi as DW-1 has said that Sudama was raising construction of her house on 12.07.2004 since 7 A.M. and was present thereat. DW-2 Mohd. Jumrati as DW-2, for proving presence of Girdhari Lal at his house for raising construction has been examined. Learned trial Court made trial of Sessions Trial No. 108 of 2004 along with its cross case Sessions Trial No. 98 of 2005; State of U.P. Vs. Shyam Bihari & others, arising out of N.C.R. No. 14 of 2004, under Sections 323/34, 504 I.P.C and passed impugned judgment of conviction in Sessions Trial No. 108 of 2004, wherein Shyam Lal, Bijai alias Ram Sajivan, Kallu alias Ram Ujagir, Udal alias Udairaj, Awadhraj, Girdhari and Sudama Prasad were held guilty for offence of rioting punishable under Section 147 I.P.C., culpable homicide not amounting to murder punishable under Section 304/149 I.P.C., voluntarily causing simple hurt, punishable under Section 323/149 I.P.C. They were acquitted for charges levelled for causing grievous hurt punishable under Section 325/149 I.P.C. After hearing over quantum of sentence, impugned judgment sentencing the convicts-appellants, as above, was passed, for which this appeal.
8. No appeal by State regarding acquittal under Section 325/149 I.P.C. is there.
9. In Sessions Trial No. 98 of 2005, which was a cross case version, judgment of conviction and sentence made therein for offence punishable under Sections 323/34, 504 I.P.C. was passed against Shyam Bihari, Ram Shiroman, Dharm Nath and Madan and after hearing over quantum of sentence, they have been sentenced with six months simple imprisonment and fine of Rs.500/- and in default one month additional simple imprisonment under Section 323/34 I.P.C with further imprisonment of one year simple imprisonment and fine of Rs.1000/- and in default one month additional simple imprisonment under Section 504 I.P.C. with a direction for concurrent running of sentences. The judgment of conviction and sentence made therein has been challenged by convicts-appellants Shyam Bihari, Ram Shiroman, Dharm Nath and Madan in Criminal Appeal No. 5969 of 2011, Shyam Bihari Vs. State of U.P., arising out of N.C.R. No. 14 of 2004, Police Station Durgaganj, District Sant Ravidas Nagar, Bhadohi. Above appeal has been heard and is being decided by separate judgment in it, together with this appeal.
10. Learned counsel for appellants argued that trial court failed to appreciate facts and law placed on record. Appellants were not aggressor. There was no unlawful assembly to commit murder or culpable homicide nor any such injury caused by lathi-danda was found over persons of deceased Ravindra in its inquest or autopsy examination report, because injuries found in external examination were abrasions. It was said by PW-2 wife of deceased that three persons, namely, Kallu, Bachai and Shyam Lal did assault over Ravindra, they ride over his chest and exerted pressure over his neck, resulting injuries, which caused his death owing to Asphyxia and internal injury to trachea and laceration of lungs. It was not the object of unlawful assembly because all those appellants were said to have rushed on spot, where chak road was being constructed, and it was being damaged, resulting a quarrel, wherein this occurrence took place, but trial court failed to appreciate it and sentenced each of appellants for offence of culpable homicide punishable under Section 304 I.P.C. which was not under common object of unlawful assembly. Hence, this appeal with above prayer.
11. Learned A.G.A. has vehemently opposed the aforesaid argument with this contention that trial court has rightly convicted and sentenced the appellants on the basis of statements recorded before it, wherein each of convicts-appellants, under joint mens rea, in furtherance of their common object of unlawful assembly did assault over Ravindra and other injured witnesses, wherein Ravindra succumbed to above injury and it was culpable homicide not amounting to murder, punishable under Section 304 read with 149 I.P.C., for which there was no illegality or irregularity. Other sentences were also in accordance with facts and law placed on record. This appeal is devoid of merit. Hence, the same is to be dismissed.
12. Section 149 I.P.C. provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence i.e. there must be an unlawful assembly, commission of an offence by any member of an unlawful assembly, such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed. If these three elements are satisfied, then only a conviction under Section 149, I.P.C., may be substantiated, and not otherwise. None of the Sections 147, 148 and 149 applies to a person who is merely present in any unlawful assembly, unless he actively participates in the rioting or does some overt act with the necessary criminal intention or shares common object of the unlawful assembly. Use cannot be made of Section 149 for the purpose of establishing the guilt of the accused constructively except in cases falling under the Penal Code. For applicability of Section 149 there need not be a prior meeting of minds. It is enough that each has the same object in view. The elements of Section 149 are: (i) Commission of an offence by any member of an unlawful assembly; (ii) Commission of the offence in prosecution of the common object of the unlawful assembly; and (iii) the offence must be such as the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object. As has been propounded by Apex Court in Dharam Pal v. State of U.P.; AIR 1994 Supreme Court 1546, that where ingredients of Section 149 are not present, it is difficult to hold the accused liable with the aid of Section 149. Sections 149 and 34 relate to vicarious or collective liability and surfacially involve some amount of resemblance and overlapping. Section 34 is restricted to common intention and does not embrace any knowledge. Under Section 149 it is the knowledge which is necessary to attract the culpability. It has been held by Supreme Court that common object of unlawful assembly is different from common intention as it can develop during course of incident at the spot coinstante. The meaning of prosecution of common object is attainment of common object and 'object' means purpose or design and in order to make it common it must be shared by all and no proof of overt act is necessary. Section 149, I.P.C. makes every member of an unlawful assembly, at the time of committing of the offence, guilty of that offence. The section 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. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section, the fact that he did nothing with his own hands, would be immaterial. He cannot put forward the defence that he did not with his own hands, commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. The basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly with the requisite common object or knowledge. Thus, once the Court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it. In other words it is not open to the Court to acquit members of the unlawful assembly for lack of corroboration as to their participation, as was propounded in Lalji v. State of U.P.; AIR 1989 SC 754. "In prosecution of the common object" this phrase means that the offence committed was immediately connected with the common object of the unlawful assembly, of which the accused were members. The act must be one which must have been done with a view to accomplish the common object attributed to the members of the unlawful assembly. Expression in prosecution of common object in Section 149 is to be strictly construed as equivalent to in order to attain common object. Hence, existence of common object and offence committed in pursuance of common object is to be established by prosecution. Doing some overt act is not necessary to bring home charge under Section 149. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case. To ascertain whether a particular person shared the common object of the unlawful assembly it is not essential to prove that he committed some illegal over act or had been guilty of some illegal omission in pursuance of the common object. Once it is demonstrated from all the facts and circumstances of a given case that he shared the common object of the unlawful assembly in furtherance of which some offence was committed or he knew it was likely to be committed by any other person, he would be guilty of that offence. Undoubtedly, commission of an overt act by such a person would be one of the tests to prove that he shared the common object, but is not the sole test, as has been propounded in State of Andhra Pradesh v. Thakkidiram Reddy and others; AIR 1998 Supreme Court 2702
13. In present case, admittedly, quarrel occurred in between both sides at a place where chak road was being constructed. Accused Shyam Lal, Bijai @ Ram Sajivan, Kallu @ Ram Ujagir, Udal @ Udairaj, Awadhraj, Sudama Prasad and Girdhari were said to be present on above spot and they were armed with lathi-danda. They assaulted injured Ravindra, as a result of which he died. The common object of giving assault to any of the injured was not said by PW-1 Jitendra Kumar in Ext.Ka-1. Rather at about 9.30 AM on 12.07.2004, there occurred quarrel at the place of construction of chak road, wherein assault by lathi-danda and pelting of brick and stone was said, resulting injuries to injured persons. This has been specifically said in cross-examination of this witness that both sides had entered into some written compromise on 16.06.2004 regarding construction of this disputed chak road. It was under mediation by the then Village Pradhan and other members of village assembly and on 11.07.2004 chak road was being constructed as per above compromise. Land of Jagannath and Sudama was adjacent to above chak road. A dilapidated house of this witness PW-1 and of accused was under sharing because both sides were residing in this house at any time. This chak road was for beneficial enjoyment of complainant / informant PW-1 Jitendra Kumar, Sudama and accused persons. Soil was led over this chak road. A suggestive question has been put to this witness that on that date at about 7 A.M. Shyam Bihari, Ram Shiromani, Dharamraj and Madan damaged above chak road by spade, which was protested by Ram Sajivan. Matter reached up to police station. S.O., Durgaganj rushed on spot and both Shobhnath and Awadhraj were taken at Police Station, Durgaganj at about 8 A.M. Thereafter, this occurrence took place at about 9.30 A.M. The injuries of accused side was not explained by this witness though question in cross-examination were put. A question regarding cross case was also put, but this witness could not explain about it. Meaning thereby, this PW-1 has said that he was not aware about injury to other side or any cross case to present case, being tried together, but it has specifically been said by this witness at page no. 8 of statement that accused persons were assembling for entering in quarrel. They were Awadhraj, Udairaj, Shyamlal, Kallu, Bachai, Girdhari, Sudama, Madanlal, Shrinath, Shyam Bihari and ladies i.e. both sides were present and there occurred some abuse i.e. affray was caused. Some persons other then those rushed on road and pelting of stones started. It ran for five minutes. Complainant side were also present thereat and due to pelting of stones, injury was caused to Madan Lal, Sursatti Devi, Dharamraj, Photo Devi, Shrinath, Hirawati Devi, Latera Devi and Kamla Devi. Sobhnath was not injured in it. Shrinath was injured at his leg. Madan Lal was injured over his head i.e. injury to either side was admitted by this witness and this unlawful assembly was with object of quarreling over chak road. It was not with any object of giving assault or causing culpable homicide nor there was knowledge of this fact of culpable homicide of deceased Ravindra, for which PW-2, wife of deceased, has categorically said that it was Kallu, Bachai and Shyam Lal, who caused those injuries, resulting his death.
14. PW-1 informant Jitendra Kumar in his examination-in-chief has said on oath that on 12.07.2004 at about 9.30 A.M., there occurred a quarrel regarding construction of chak road, wherein Kallu Ram, Shyam Lal, Udairaj, Bachai Ram, Ram Sajivan, Awadhraj, Sudama Prasad and Girdhari Lal, armed with lathi-danda, brick and stone, did assault, resulting injuries to Madan Lal, Dhramraj, Shyam Bihari, Shrinath and Ravindra Nath. Ladies of informant's house Photo Devi, Sursatti Devi, Chhabbi Devi, Kamla Devi, Latera Devi and Durga Devi, were also beaten by lathi-danda and brick pelting by those accused persons. This occurrence resulted death of Ravindra Nath, S/o Shobh Nath, while he reached at Kabir Chaura Hospital, Varanasi and this was owing to assault made by accused persons. This occurrence was reported by written F.I.R. under handwriting and signature of this witness, which is Ext.Ka-1 on record and brick-stone were taken in possession by I.O. under witness-ship of this witness by way of preparation of recovery memo, having his signature over it and the same recovery memo is on record. It was prepared by Investigating Officer in his presence, which is Ext.Ka-2 on record. In cross-examination this witness has categorically said that he was not present at Kabir Chaura Hospital, when Ravindra died. That is why he is not aware about the time of death of Ravindra. But it was of about 11.30 A.M. As this witness was not present at Kabir Chaura Hospital, hence his testimony is on the basis of information given by Photo Devi, but this witness has categorically said that Photo Devi, Sursatti Devi, Madan Lal, Dharm Raj, Shyam Bihari, Shrinath, Durga Devi and Kamla Devi were at Kabir Chaura Hospital. Inquest of dead body was got conducted and it was examined under autopsy examination. Cross case version has been said by learned counsel for defence and same was being tried together with present Sessions trial. Hence, this occurrence at above time, date and place, wherein persons were injured and under this injury Ravindra died was undisputed fact. This occurrence, owing to construction of chak road, was also undisputed. Inquest report Ext.Ka-13 has been proved by PW-7 Islamul Haq Khan, the then Station Officer of Police Station, Suriyawan, who has said in his examination-in-chief that while being posted as Sub-Inspector of Police Station Suriyawan on 13.07.2004, Case Crime No. 162 of 2004, under Sections 147, 149, 336, 323, 304 I.P.C. of Police Station Durgaganj was investigated for filling inquest proceeding, wherein inquest proceeding of deceased Ravindra Kumar, S/o Sobhnath, R/o Gangarampur, P.S. Durgaganj was got performed and deceased was having injuries written in it. This inquest report was Ext.Ka-13 and for getting autopsy examination conducted, requisite documents Letter R.I. (Ext.Ka-14), Letter C.M.O. (Ext.Ka-15), Photo Dead Body (Ext.Ka-16), Police Form-13 (Ext.Ka-17) were got prepared under handwriting and signature of this witness and the same are on record. This dead body under intact sealed position along with those documents were sent for autopsy examination. Regarding it, there is no material contradictions, exaggeration or embellishment in examination in cross. Although, this has further been corroborated by testimony of Dr. A.K. Singh PW-4 that while being posted as Medical Officer Maharana Balwant Singh Hospital, on 13.07.2004 he was deputed on postmortem examination duty, where dead body of Ravindra Kumar, under wrap of cloth, fully intact, sealed along with specimen seal, was brought and after comparing seal it was got identified by Constable Balendra Yadav and Chhotey Lal of Police Station Durgaganj. Autopsy examination of dead body was got conducted. The deceased Ravindra was of average body built, of 30 years age, having rigor mortise present over limbs, eyes were closed, frost and mucus with blood was oozing from nostrils and he was having following injuries:-
1. Bloody frost oozing from nostrils and mouth opening.
2. Multiple abrasions 5cmx1.5cm over left side of neck towards lower side just at right clavicle bone.
3. Abrasion 2cmx1cm right side of neck towards lower side chest above right clavicle.
4. Abrasion 1cmx1cm over left mastoid region.
5. Abrasion 1cmx1cm on right upper limb towards outer aspect.
6. Abrasion 1cmx1cm right side over back, 5cm below right scapula.
Under internal examination, brain and its membrane was congested. Left lung and its membrane was congested and lacerated. Trachea was lacerated and there was blood in the upper muscles of neck. Left lung was congested and lacerated. Blood was present in the cavity. Right chamber of heart was with blood. Left was empty. Teeth were 16/16. Stomach was empty. Digestive material with gases were in small intestine. Faecal matter with gases was in the large intestine. Urinary bladder was empty. Death was one day old and due to Asphyxia and shock, owing to throttling. Autopsy examination report (Ext.Ka-3) was prepared under handwriting and signature of this witness. Regarding, this autopsy examination, internal and external situation of deceased body and cause of death, as above, there is no contradiction, exaggeration or embellishment.
15. PW-6 Nagendra Prasad Mishra, Chief Pharmacist, is the secondary evidence, examined for proving medico legal report of injured Madan Lal, Shivrati, Smt. Balraji, Smt. Sumitra Devi, Shrinath, Smt. Photo Devi, Kamla Devi and Smt. Chhabbi Devi, who were examined at Government Hospital. These medico legal examination reports were entered in Medico Legal Register from page no. 8 to 15, wherein original medico legal reports are there and those, filed on record, were copy of same medico legal reports, which were compared and proved to be copy of same. This was exhibited as Ext.Ka-5 to Ext.Ka-12.
16. PW-9 Constable Shankar is the secondary evidence for proving registration of this Case Crime No. 162 of 2004 under handwriting and signature of Constable Ram Gopal with whom this witness was posted at Police Station Gyanpur. Chik FIR and G.D. Entry of same is under handwriting and signature of Constable Ram Gopal, for which as secondary evidence, proved the same, on the basis of which Ext.Ka-19 and Ext.Ka-20 has been exhibited. Hence, this registration of case crime number has been formally proved by PW-1 Jitendra Kumar, which is reiterated and corroborated by testimony of this prosecution witness no. 9 Shankar, for which there is no contradiction, exaggeration or embellishment.
17. The statements of accused recorded under Section 313 of Cr.P.C. and stand of defence during trial was that on 12.07.2004 at 9.30 A.M. there occurred a quarrel in between both sides, wherein cross cases were got registered and there was use of lathi-danda with pelting of brick-stone, resulting injury to both sides. Sessions Trial No. 98 of 2005; State vs. Shyam Bihari & Ors. is also under trial before this Court with this sessions trial. Informant Ram Sajivan has lodged case for this occurrence against Shyam Bihari, Ram Shiroman, Dharm Nath and Madan at Police Station Durgaganj, District Sant Ravidas Nagar, Bhadohi. Meaning thereby, this occurrence was not a disputed one and injury on both sides were undisputed. The medico legal reports of injured, who have been examined in this trial is on record.
18. PW-2 Sumitra Devi has said that occurrence took place on 12.07.2004 at about 9.30 A.M. when Bachai, Shyam Lal, Awadhraj, Udal, Kallu, Girdhari and Sudama, armed with lathi-danda, came at the door of this witness. This quarrel was regarding chak road. This was protested by Shrinath and he was beaten by them. This witness along with her husband Ravindra Kumar (deceased), her father-in-law Shobhnath tried to intervene and save Shrinath. Then, Kallu, Bachai, Shyam Lal with others did assault over these three wherein Ravindra was badly beaten by Kallu, Bachai and Shyam Lal. Upon exhortation made by Shyam Lal, Kallu, Bachai and Shyamlal gave lathi blow to Ravindra Nath and thereupon they pressed his chest and neck. Thereafter, this witness, her father-in-law Shobhnath and her sister-in-law tried to save Ravindra, wherein Bachai assaulted this witness and Udal, Girdhari and Sudama assaulted her sister-in-law. Ravindra Nath, Shobhnath, this witness, her sister-in-law, Latera Devi, Chhabbi Devi, Photo Devi and Ram Shiromani were also injured. Madan Lal and Dharm Raj too were injured. All injured were examined at Government Hospital, Suriyawan. Her husband was taken at Gyanpur, from where he was referred to Government Hospital, Kabir Chaura, Varanasi, but he died just after reaching at above Hospital and this death was owing to above injuries. Meaning thereby, injuries to accused persons Madan Lal and Dharm Raj too are undisputed fact and this injury was not free fight assault. Rather a quarrel occurred when abuse was made. This was protested by Shrinath. He was assaulted, wherein interception was made by Ravindra, his wife Sumitra Devi and his father Shobhnath. Then they were assaulted. Specific role of giving assault over Ravindra was assigned against Kallu, Bachai and Shyamlal, who gave assault over Ravindra upon exhortation of Shyam Lal by riding over his chest and pressing his neck. Thereafter, Shobhnath and this witness tried to save Ravindra. Then they were assaulted. Hence, this culpable homicide was not under furtherance of common object of unlawful assembly, but this was subsequent development in which upon exhortation made by Shyam Lal, Kallu, Bachai and Shyam Lal did above assault over chest and neck of Ravindra, resulting injuries, which resulted his death. Deceased Ravindra was given assault by lathi-danda, but no fracture of any bone was there. Rather laceration of lung resulting presence of blood in cavity and fracture of trachea resulting blood in respiratory tract was there. It was owing to pressing over chest by riding over it. The accused persons were armed with lathi-danda stone and brick, but they had not given any bony fracture injury over deceased Ravindra, rather above injury, which resulted his death, was owing to laceration of lungs etc. for which specific allegation of this eyewitness is against Kallu, Bachai and Shyam Lal, who were members of unlawful assembly. But, the object of committing death or causing multiple abrasions on Ravindra could not be gathered from above sequence of occurrence, rather it was informed as overt act of above Kallu, Bachai and Shyam Lal, resulting death of deceased Ravindra. Hence, trial court failed to appreciate these facts and evidence placed on record and convicted each of convict-appellant for offence punishable under Sections 304/149 I.P.C. Rather, it was a proved case for offence punishable under Section 304 I.P.C. against Kallu, Bachai and Shyam Lal only. For rest, this finding is not proved against beyond doubt.
19. This witness has said that accused persons did pelting of brick and stones. Ladies of family of accused also did stone pelting. Prior to this quarrel, this stoning was made. It was 2-4 pelting and it was at the house of this witness, but who did this pelting could not be said by this witness nor she could recognize those ladies, who did this pelting. Meaning thereby, both sides did quarrel. Pelting of stones was made, which resulted injury to complainant side, hence offence punishable under Section 323/149 and 147 I.P.C. was proved, but it was not the common object of unlawful assembly that culpable homicide of Ravindra was to be committed nor unlawful assembly did this offence in pursuance of that common object nor they were aware of this fact. Neither it was intended nor any fracture by lathi-danda was caused nor death was owing to above injury made by lathi-danda, rather it was injury caused by sequence written, as above. Hence, this offence punishable under Section 304/149 I.P.C. was not object of above unlawful assembly and accused other then Kallu, Bachai and Shyam Lal may not be held constructively liable for those offence. Rather, it was an act of Kallu Bachai and Shyam Lal only.
20. PW-5 Shyam Lal, who is formal witness, was erstwhile Investigating Officer of Case Crime No. 162 of 2004, under Sections 147, 149, 336, 323, 304 I.P.C. and he visited spot and prepared spot map upon pointing of informant Jitendra Kumar, which is in handwriting and signature of this witness, proved and exhibited as Ext.Ka-4 on record. He took brick and stones in his possession by way of preparation of recovery memo Ext.Ka-2 under his handwriting and signature. In cross-examination, this witness has said that till his visit on spot he was not aware about cross case version nor about injuries sustained by accused side and in the course of investigation he could not be aware as to whether dilapidated house shown in the site map was of accused side or of complainant side or of both. He has formally proved investigation made by him, for which there is no material contradiction.
21. PW-9 is Sub Inspector Radhey Shyam Pushkar, Investigating Officer, who has said that in his investigation of Case Crime No. 162 of 2004, under Sections 147, 149, 336, 323, 304 I.P.C., P.S. Durgaganj, he got the statement of injured witnesses recorded under Section 161 Cr.P.C. Their medico legal report entered in case diary. The inquest proceeding were copied in case diary. Medical Officer statement was recorded in case diary. Remand for accused persons were taken. Then, witnesses were examined. Thereafter, charge sheet under his handwriting and signature Ext.Ka-18 was submitted before Court, which is on record. In cross examination he has said this case crime number was registered in his absence and investigation was deputed to this witness on 16.07.2004. Prior to it, he is not aware of facts. Formal investigation has been proved by this Court witness.
22. Hence, on the basis of overall appreciation of above evidence, it is proved that accused persons Shyam Lal, Bijai alias Ram Sajivan, Kallu alias Ram Ujagir, Udal alias Udairaj, Awadhraj, Girdhari and Sudama Prasad rushed at the place of occurrence, which was being constructed, where they entered in a quarrel with complainant side, followed by assault under furtherance of common object of above unlawful assembly.
23. Plea of alibi, proved by DW-1 Jadawati Devi and DW-2 Mohd. Jumrati were regarding engagement of accused in job of raising construction, but both the places were in close vicinity and it cannot be ruled out that their presence on above spot at that time may not be possible. Even, there is inconsistency in the statement of these witnesses from their examination-in-chief in cross.
24. Hence, offence punishable under Sections 147 and 323/149 I.P.C. were proved against them, for which learned Sessions Judge has sentenced after hearing over quantum of sentence and sentence is commensurate to offence committed by them. For this part, this appeal merits its dismissal.
25. Regarding conviction and sentence for offence punishable under Section 304/149 I.P.C., the conviction and sentence for appellants Shyam Lal, Bijai @ Ram Sajivan and Kallu @ Ram Ujagir was based on facts and evidence on record. Hence for them, this appeal merits its dismissal. For rest of convicts-appellants Udal @ Udairaj, Awadhraj, Girdhari and Sudama Prasad, constructive liability for offence punishable under Section 304/149 I.P.C is not proved beyond reasonable doubt. Hence, there appeal for this piece of offence is liable to be allowed. Accordingly, conviction and sentence for this section against convict appellants Udal @ Udairaj, Awadhraj, Girdhari and Sudama Prasad is to be set aside.
26. Accordingly, this appeal is partly allowed. Impugned judgment of conviction dated 17.09.2011, for offence punishable under Sections 147, 323/149 I.P.C. against each of convicts-appellants is confirmed and appeal for it is being dismissed.
27. Appeal of Shyam Lal, Bijai @ Ram Sajivan and Kallu @ Ram Ujagir is being dismissed in toto. The conviction and sentence awarded against them is being confirmed.
28. The appeal of convicts-appellants Udal @ Udairaj, Awadhraj, Girdhari and Sudama Prasad for conviction and sentence for offence punishable under Sections 304/149 is being allowed on the basis of benefit if doubt. Their conviction is being set aside and they are acquitted for this offences.
29. Keeping in view the provisions of section 437-A Cr.P.C. convicts-appellants Udal @ Udairaj, Awadhraj, Girdhari and Sudama Prasad are directed to forthwith furnish a personal bond and two reliable sureties each in the like amount to the satisfaction of trial Court before it, which shall be effective for a period of six months or till order of appeal in appellate court, if any, regarding acquittal for offence punishable under Section 304/149 I.P.C..
30. Let a copy of this judgment along with lower court's record be sent back to the court concerned for amendment of warrant of conviction and sentence as per above conviction and sentence and for immediate compliance.
31. The convicts-appellants Shyam Lal, Bijai alias Ram Sajivan, Kallu alias Ram Ujagir, Udal alias Udairaj, Awadhraj, Girdhari and Sudama Prasad are on bail. Their sureties are discharged. They shall surrender before the trial court within fifteen days from the date of judgment, where they shall be sent for jail for suffering sentences awarded to them.
Order Date :- 13.12.2019 NS