Allahabad High Court
Dhruv Raj Rai vs State Of U.P. on 12 September, 2019
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on 24.04.2019
Delivered on 12.09.2019
Criminal Appeal No. 2833 of 2000
1. Dhruv Raj Rai
2. Rajeshwar Rai
3. Ramesh Rai
4. Radhey Shyam
5. Ghan Shyam alias Dhannu
6. Man Shyam alias Mannu
7. Singhasan
8. Jagdish
9. Mahendra ------- Accused-Appellants
Vs.
State of U.P. ---------------- Respondent
For Appellants : Sri, Rajendra Rai, Advocate
For Complainant : Sri Sharad Kumar Srivastava, Advocate
For Respondent/State : Sri Nagendra Kumar Srivastava, A.G.A.
Hon'ble Raj Beer Singh, J.
1. This appeal arises out of impugned judgment and order dated 02.11.2000 passed by learned Additional District & Sessions Judge, Court No. 7, Azamgarh in Session Trial No. 203 of 1988 (State vs. Sankatha and Others), whereby accused-appellant Dhruv Raj Rai has been convicted under Section 304 Indian Penal Code (hereinafter referred to as 'IPC') and sentenced to seven years rigorous imprisonment along with fine of Rs. 1,000/- and accused-appellants, namely Ramesh Rai, Radhey Shyam, Ghan Shyam alias Dhannu, Man Shyam alias Munnu, Rajeshwar Rai, Singhasan, Jagdish and Mahendra have been convicted under Section 304/149 IPC and sentenced to seven years rigorous imprisonment and fine of Rs. 1,000/- each. All the appellants-accused were further convicted under Section 326/149 IPC and sentenced to five years rigorous imprisonment with fine of Rs. 500/- each. Accused-appellants Ramesh Rai and Radhey Shyam were further convicted under Section 147 IPC and sentenced to one year rigorous imprisonment. Accused-appellants, namely, Ghan Shyam alias Dhannu, Man Shyam alias Mannu, Rajeshwar Rai, Singhasan, Jagdish, Mahendra and Dhruv Raj Rai were further convicted under Section 148 Cr.P.C. and sentenced to two years rigorous imprisonment. In default of payment of fine under Sections 304 and 326 IPC, accused-appellants have to undergo six and three months additional imprisonment. The substantial sentences awarded to each of the accused persons were directed to run concurrently.
2. At the very outset it may be mentioned that co-accused Sankatha, Ghan Shyam and Surya Bali have died during trial, while accused-appellant no. 2 Rajeshwar Rai and accused-appellant no. 5 Ghan Shyam alias Dhannu have expired during pendency of this appeal and thus, appeal in respect of appellant no. 2 Rajeshwar Rai and accused-appellant no. 5 Ghan Shyam alias Dhannu stand abated.
3. The prosecution version is that before the incident of the present case, on 09.01.1987 Ghan Shyam Rai and others have given beatings to complainant Rajender Rai (PW 1) and others and in that regard a case was lodged. The incident of the present case took place on 06.03.1989. It was alleged that on 06.03.1987 at around 11:30 AM when Bajrangi Rai was going to irrigate his field, the accused-appellants came there and hurling abuses, they asked him to stop irrigation. Hearing noise, one Phool Chand, Gorakh Rai, Harikesh Rai and some other persons also reached there but the accused-appellant no. 1 Dhruv Raj Rai gave a spear (ballam) blow at Bajrangi while remaining accused persons started beating with lathis. When PW-2 Phool Chand, Rajendra Rai and Harikesh tried to intervene, they were also beaten by the accused persons.
4. The complainant reported matter to police by submitting a written tehrir Ex. Ka-1 and on that basis, case was registered against all the accused persons under Sections 147, 148, 149, 326, 323, 504 IPC on 06.03.1989 at about 12:45 PM vide FIR Ex. Ka-10.
5. Injured Phool Chand was medically examined by PW-4 Dr. Abdul Moin vide MLC Ex. Ka-2 and following injuries were found on his person:
(i) 3.5 cm x 1 cm x muscle deep lacerated wound on the right side of forehead 1 cm above the right eyebrow. Clotted blood present.
(ii) 2.5 cm x 0.5 cm x muscle deep vertical lacerated wound on the forehead including inner part of right eyebrow. Clotted blood present.
(iii) 10 cm x 1 cm x scalp deep lacerated wound on the middle part of head 15 cm above the left ear. Clotted blood present.
(iv) 4.5 cm x 1.0 cm x through and through incised wound on the letf ear. Blood clotted present. Margins clear cut.
(v) 13.5 cm x 0.5 cm x muscle deep oblique incised wound on the left side of neck including the pinna of left ear. Margins clear cut blood present.
(vi) 2 cm x 0.5 x muscle deep incised wound on the left side of face 3 cm below the outer contusion of left eye. Blood present.
(vii) 4 cm linear abrasion on the inner part of right thigh 25 cm above the knee joint.
(viii) 19 cm linear abrasion on the back of left thigh 21 cm above the knee joint.
(ix) 22 cm x 14 cm contusion on the left forearm including elbow joint deformity just Adv. x-ray.
(x) 2 cm x 1.5 cm abrasion on the back of left elbow just. Clotted blood present.
(xi) 3.5 cm x 0.5 cm x muscle deep irain severe incised wound on the outer and back of left upper arm 7 cm above the left elbow joint.
(xii) 10 cm linear abrasion on the left side of abdomen including lower part of chest.
(xiii) 15 cm x 2.5 cm contusion on the left side of outer part of chest 9 cm outer and below the left nipple. Colour reddish.
(xiv) 10 cm x 4 cm contusion on the dorsum of left hand. Adv. x-ray. Kept U.O. On the same day, injured Harikesh Rai was also medically examined by PW-4 Dr. Abdul Moin vide MLC Ex. Ka-3 and following injuries were found on his person:
(i) 2 cm x 1.5 cm scalp deep triangular lacerated wound on the front of head 8 cm above the base of nose.
(ii) 8 cm x 1 cm abrasion on the right side of head 11 cm above the right ear. Blood present.
(iii) 17 cm x 2.5 cm oblique contusion on the right upper back 8 cm below the shoulder joint colour reddish.
(iv) 9 cm linear irain severe abrasion with 2 cm x 0.5 cm muscle deep incised wound on the midline of back 23 cm below the 7th cervical spin. Blood present.
(v) 8 cm x 2 cm oblique contusion on the right upper back 15 cm below the right shoulder joint. Colour reddish.
(vi) 23 cm x 2.5 cm oblique contusion on the left side of chest and abdomen adjacent to left nipple. Colour reddish.
(vii) 2 cm x 0.5 cm x muscle deep incised wound on the left side of chest 7 cm inner and below the left nipple. Blood present.
(viii) 2 cm x 0.5 cm x muscle deep incised irain severe wound on the abdomen 3 cm below the umbilicus. Blood present.
(ix) 4 cm x 2.5 cm abrasion on the outer and back of left upper arm 6 cm above the elbow joint. Blood present.
(x) 15 cm x 2 cm contusion on the outer and back of left forearm including elbow joint colour reddish.
(xi) 13 cm x 11 cm contusion on the dorsum of left hand including wrist joint. Adv. x-ray.
(xii) 2 cm x 0.3 cm abrasion on the dorsum of right hand 4 cm below the wrist joint blood present.
Injured Rajendra Rai was medically examined by PW-4 Dr. Abdul Moin vide MLC Ex.Ka-4 and following injuries were found on his person:
(i) 3 cm x 0.5 cm x scalp deep irain severe incised wound on the front of head 7 cm above the base of nose. Blood present. Margins clean cut.
(ii) 4 cm x 0.5 cm x scalp deep vertical lacerated wound on the left side of head 10cm above the left ear. Blood present.
(iii) 5 cm x 0.5 cm x upto bone deep lacerated wound on the middle part of head 2 cm above the injury no. II.
(iv) 3 cm x 0.5 cm x scalp deep lacerated wound on the right side of head 11 cm above the right ear.
(v) 2 cm x 2.5 cm x scalp deep lacerated circular wound on the right side of head 2 cm below the injury no. IV.
(vi) 8 cm x 2.5 cm x 2 cm deep incised wound on the right shoulder region. Clotted blood present. Adv. x-ray kept U.O.
(vii) 7 cm x 2.5 cm abraded contusion on the outer part of right upper arm 14 cm below the injury no. VI. Blood present colour reddish.
(viii) 7 cm x 0.5 cm abrasion on the outer and lower part of right upper arm 4 cm above the elbow joint. Blood present.
(ix) 8 cm x 2 cm abraded contusion on the outer and back of right forearm 11 cm below the elbow joint. Blood present scalp not formed colour reddish.
(x) 8 cm x 5 cm contusion with 0.5 cm x 0.2 cm x muscle deep lacerated wound on the dorsum of right hand 6 cm distal to wrist joint colour reddish. Blood present.
(xi) 5 cm x 1 cm x muscle deep incised wound on the ventral aspect of right palm including wrist joint margin clear cut blood present.
(xii) 3 cm x 0.5 cm x muscle deep incised wound on the right palm including base of ring finger margins clear cut. Blood present.
(xiii) 2.5 cm x 0.5 cm x muscle deep incised wound on the ventral aspect of right middle finger 1 cm x proximal to its tip.
(xiv) 4 cm x 0.5 cm x muscle deep incised wound on the ventral aspect of right ring finger 1.5 cm proximal to its tip.
(xv) 2 cm x 0.5 cm x muscle deep incised wound on the ventral aspect of right little finger 1 cm proximal to its tip.
(xvi) 0.5 cm x 0.3 cm x muscle deep lacerated wound on the outer part of right leg 18 cm below the knee joint. Blood present (xvii) 5 cm x 0.5 cm x muscle deep incised wound on the front of right leg. 1.5 cm below the injury no. XVI.
(xviii) 2 multiple abrasion in the areas of 29 cm x 13 cm on the front and outer part of right leg 10 cm below the knee joint.
(xix) 12 cm x 2.5 cm contusion on the inner and front of left upper arm 26 cm below the left shoulder joint.
(xx) 7 cm x 1 cm x muscle deep incised wound irain severe on the ventral aspect of left palm adjacent to writ joint.
(xxi) 12 cm x 2 cm x upto bone deep incised wound on the outer part of left palm adjacent to injury no. XX. Adv. x-ray kept U.O. (xxii) 6 cm x 1 cm x muscle deep incised wound on the ventral aspect of left thump upto its base.
(xxiii) 11 cm x 1 cm x skin deep incised wound on the left upper back 14 cm below the left shoulder joint blood present.
(xxiv) 14 cm x 2.5 cm oblique contusion on the left middle back 13 cm below the injury no. XXIII. Colour reddish.
6. During treatment, injured Bajrangi Rai succumbed to injuries and thus, sec 304 IPC was added. Inquest proceedings on the dead body of Bajrangi Rai were conducted by S.I. Ambika Pandey and thereafter his dead body was sent for postmortem.
7. PW-5 Dr. N.K. Jaiswal conducted post-mortem on the dead body of deceased vide post-mortem report Ex. Ka-8 and following injuries were found on his person:
(i) penetrating wound 2.25 cm x 1 cm x abdominal cavity deep left side abdomen oblique in direction 6 cm below and out from umbilicus 4 o'clock position.
(ii) 16 cm stitched wound (surgical) paramedian vescial rt side abdomen lower part 1 cm away from umbilicus one drainage tube present left side abdomen lower part.
According to autopsy surgeon, the cause of death of the deceased is due to shock and haemorrhage as a result of ante-mortem injury.
8. After completion of investigation, all the accused-appellants were charge sheeted. Learned trial court framed charge against accused Dhruv Raj Rai under Section 304 IPC, 148, 304/149, 326/149 IPC, while accused-appellants Ramesh Rai and Radhey Shyam were charged under section 147, 326/149 and 304/149 IPC and accused-appellants Ghan Shyam alias Dhannu, Man Shyam alias Mannu, Rajeshwar Rai, Singhasan, Jagdish and Mahendra were charged under Section 148, 326/149 and 304/149 IPC. The accused persons pleaded not guilty and claimed trial.
9. So as to hold the accused persons guilty, prosecution has examined seven witnesses. After prosecution evidence, accused persons were examined under Section 313 Cr.P.C, wherein they have denied the evidence and claimed false implication. However, no oral evidence was adduced in defence. In documentary evidence, accused persons have filed copies of certain documents viz Ex. Kha-1 to kha-5 in their defence.
10. After hearing and analyzing the evidence on record, learned Trial court convicted the accused-appellants under the aforesaid sections vide impugned judgment and order dated 02.11.2000 and sentenced them as mentioned in paragraph no. 1 of this judgment.
11. Being aggrieved by the impugned judgment and order of trial court, the accused-appellants have preferred present criminal appeal.
12. Heard Sri Rajendra Rai, learned counsel for the accused-appellants, Sri Sharad Kumar Srivastava, learned counsel for the complainant and Sri Nagendra Kumar Srivastava, learned A.G.A. for the State-respondent.
13. Learned counsel for the accused-appellants has argued:
(i) that there is undue delay in lodging the FIR. As per prosecution version, the alleged incident took place on 06.03.1987 at 11:30 AM but the FIR was lodged on 06.03.1987 at 12:45 hours, which shows that FIR was lodged after making consultation and the same makes prosecution case doubtful.
(ii) that PW-1 Rajender Rai, PW-2 Phoolchand, PW-3 Surendra Kumar Rai are interested witnesses and thus, their testimony cannot be believed. Further, in his cross-examination, PW 1 has not supported prosecution version regarding involvement of accused-appellants, which makes prosecution version doubtful.
(iii) that the appellants have been falsely implicated in this case on account of enmity. In that regard certain documents of previous litigation were also referred. It was argued that accused-appellants have been falsely implicated on account of land dispute.
(iv) that medical evidence is not consistent with the ocular testimony of the witnesses and thus, the evidence of PW-1, PW-2 and PW-3 cannot be relied upon.
(v) that for the sake of argument, even if the prosecution version is taken as such, no offence under Section 304/149, 326/149 IPC is made out. It was pointed out that the alleged incident has taken place in the year 1987 and thus, the period of about 32 years has already elapsed.
(vi) that there are serious contradictions and inconsistencies in the statements of the witnesses, which rendered their evidence unreliable.
14. On the other hand, supporting the impugned judgement, it has been argued by State counsel that the conviction of the appellants is in accordance with law and there is no infirmity in the same. In the alleged incident several persons have sustained serious injuries and thus, the delay in lodging the FIR is quite natural as the first priority of injured persons would be to get medical treatment and not to rush to the police station for lodging FIR. In the alleged incident PW-2 Phoolchand and two more persons have sustained severe injuries and thus, their presence at the spot can not be doubted at the spot. The injured witness has made clear and cogent statement against the accused-appellants and no major contradiction or inconsistency could be pointed out. It was further submitted that testimony of a witness can not be disbelieved on the ground that he is related to deceased or is an interested witness. An injured witness would be the last person to spare the actual assailants and to falsely implicate any innocent person. It was further submitted that evidence of PW-1, PW-2 and PW-3 has been amply corroborated by medical evidence and the nature of injuries sustained by injured persons as well as by deceased and the manner of assault and the weapon used, clearly brings out a case against the accused-appellants under Section 304 and 326 of IPC besides Section 147/148 of IPC, under which they have been held guilty by the learned trial court. It was argued that conviction of all the accused-appellants is based on evidence and there is no error or illegality in the impugned judgment and order.
15. I have considered the rival contentions of learned counsel for both the parties and perused record.
16. In evidence, PW-1 Rajender Rai stated that before the incident, on 09.01.1987 Dhruv Raj Rai, Mahender, Ramesh, Ghanshyam alias Dhannu and Singhasan have assaulted him and regarding that incident a case was registered at police station Phoolpur, district Azamgarh. The incident of present case took place on 06.03.1987 at 11:30 AM. When Bajrangi Rai was going to irrigate his land by pumping set, accused Dhannu, Munnu, Rajeshwar having gandasa, accused Radhey Shyam, Sankatha, Ramesh having lathi, accused Singhashan, Ghan Shyam having sword, accused Dhruv Raj and Mahender having ballam and accused Jagdish having country made pistol, came there and making exhortation, accused Dhruv Raj assaulted Bajrangi by ballam and thereafter all the accused persons assaulted the injured as well as the deceased.
17. PW-2 Phool Chand Rai stated that on the day of incident at about 11:15-11:30 AM, he was present at his agricultural land. Near his land, deceased Bajrangi was irrigating his wheat crop. Accused Sankatha Rai, Dhruv Raj Rai, Ramesh Rai, Ghan Shyam Rai son of Surya Bali Rai, Jagdish Rai, Mahendra Rai, Rajendra Rai, Ghan Shyam alias Dhannu son of Rajeshwar Rai, Manshyam alias Munnu, Singhasan Rai, Radhey Shyam Rai came there. Accused Sankatha, Ramesh and Radhey Shyam were having lathi, accused Ghan Shyam, Man Shyam and Rajeshwar were having spear (ballam), accused Dhruv Raj and Mahendra were also having spear, accused Ghan Shyam, Man Shyam and Rajeshwar were having gadasi, accused Ghan Shyam son of Suryabali and Singhashan were having sword and Jagdish was having country made pistol. They asked Bajrangi to stop water of irrigation and when Bajrangi refused to do so, they hurled abuses and starting beating Bajrangi. Hearing noise, PW-2 Rajendra, Harikesh and one Rajendra reached there but they were also assaulted by the accused persons. Dhruv Raj has given a spear blow at Bajrangi. PW-2 Phool Chand further stated that in this incident, he as well as one Rajendra and Harikesh also sustained injuries. Bajrangi died of injuries sustained in the alleged incident as he has suffered a spear blow at his stomach. Bajrangi was taken to police station and thereafter to hospital. PW-2 and other injured were also taken to hospital and were medically examined. Rajendra Rai has lodged report at police station and has taken deceased Bajrangi to hospital. PW 2 further stated that about 1-1 ½ months prior to this incident, Ghan Shyam, Rajeshwar and Raju etc. have assaulted Rajendra and regarding that incident, Mahendra, Dhruv Raj, Ramesh, Singhasan and Ghan Shyam alias Dhannu have faced the trial and they were convicted in that case. In the alleged first incident, Bajrangi and his brother Surendra have helped Rajender and due to this reason, accused persons have developed an animosity towards Rajrangi and Surender.
18. PW-3 Surendra Kumar Rai stated that on 08.01.1987 Ghan Shyam alias Dhannu, Singhasan, Mahendra, Dhruv Raj and Ramesh have assaulted Rajender. He (PW-3) has taken Rajendra to Varanasi and provided treatment to him and in that incident, PW-3 was an witness. In that case, above stated accused persons were convicted. Due to this, accused persons have developed animosity towards him. The incident of this case took place on 06.03.1979 at 11:30 AM. He (PW-3) and his brother Bajrangi were irrigating their land by pumping set and while his brother was at his land, hearing noise, PW-3 also reached there and saw that Sankatha Rai, Radhey Shyam and Ramesh were having lathi, Dhruv Raj Rai and Mahendra were having spear, Singhasan Rai and Ghan Shyam son of Suryabali were having sword, Jagdish was having country made pistol, Rajeshwar Rai, Ghan Shyam alias Dhannu, Ghan Shyam alias Munnu were having gadasi and they all were making exhortation to kill Bajrangi. Jagdish has fired a shot with country made pistol. Hearing noise, Harikesh Rai, Phool Chand Rai, Rajendra Rai also reached there. On the exhortation of Jagdish Rai, Dhruv Raj Rai gave a spear blow at Bajrangi, which hit at his stomach while rest of the accused persons assaulted Harikesh Rai, Phool Chand Rai and Rajendra. PW-3 further stated that he was irrigating his land but accused persons wanted to irrigate their land and have asked them to stop water of irrigation. In this incident, Bajrangi, Harikesh Rai, Phool Chand and Rajendra have sustained injuries. Bajrangi has sustained serious injuries. Rajender Rai has lodged the FIR and Bajrangi was taken to the hospital. Harikesh, Phool Chand and Rajendra were also medically examined and were provided treatment. On 06.03.1987, Bajrangi Rai succumbed to injuries in district hospital.
19. PW-4 Dr. Abdul Moin has medically examined injured Phool Chand Rai, Harikesh Rai, Rajendra Rai and has proved their MLC as Ex.Ka-2, Ex. Ka-3 and Ex. Ka-4.
20. PW-5 Dr. N.K. Jaiswal has conducted postmortem on the dead body of the deceased Bajrangi while PW-6 Dr. P.K. Sinha has medically examined deceased Bajrangi on 06.03.1987, while he was in injured condition.
21. PW-7 S.I. Shakuntala Pandey has proved FIR Ex. Ka-10 and GD entry Ex.Ka-11 by way of secondary evidence. She has also proved other relevant documents of inquest Ex.Ka-13 to Ex.Ka-16 including panchayatnama by way of secondary evidence. She has also proved site plan of the spot prepared by S.I. Vijay Singh as Ex.Ka-18 and chargesheet as Ex.Ka-19 by way of secondary evidence.
22. So far as the question of delay in lodging FIR is concerned, it is well settled that if delay in lodging FIR has been explained from evidence on record, no adverse inference can be drawn against prosecution merely on the ground that the FIR was lodged with delay. There is no hard and fast rule that any length of delay in lodging FIR would automatically render the prosecution case doubtful. In "Ravinder Kumar & Anr. Vs. State of Punjab", (2001) 7SCC 690, Hon'ble Apex Court held that:
"The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly FIR is not an unreserved guarantee for the genuineness of the version incorporated therein. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquility of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident."
In Amar Singh Vs. Balwinder Singh & Ors. (2003) 2 SCC 518, the Hon'ble Apex Court held that :
"In our opinion, the period which elapsed in lodging the FIR of the incident has been fully explained from the evidence on record and no adverse inference can be drawn against the prosecution merely on the ground that the FIR was lodged at 9.20 p.m. on the next day. There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR."
In this connection it will also be useful to take note of the following observation made in Tara Singh V. State of Punjab AIR (1991) SC 63.
"The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstance of each case."
In Sahebrao & Anr. Vs. State of Maharashtra (2006) 9 SCC 794, Court has held:
"The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory."..
From the above discussed exposition of law, it is manifest that prosecution version can not be rejected solely on the ground of delay in lodging FIR. Court has to examine the explanation furnished by prosecution for explaining delay. There may be various circumstances particularly number of victims, atmosphere prevailing at the scene of incidence, the complainant may be scared and fearing the action against him in pursuance of the incident that has taken place. If prosecution explains the delay, Court should not reject prosecution story solely on this ground. Therefore, the entire incident as narrated by witnesses has to be construed and examined to decide whether there was an unreasonable and unexplained delay which goes to the root of the case of the prosecution and even if there is some unexplained delay, court has to take into consideration whether it can be termed as abnormal. Recently in Palani V State of Tamilnadu, Criminal Appeal No. 1100 of 2009, decided on 27.11.2018, it was observed by the Hon'ble Supreme Court that in some cases delay in registration of FIR is inevitable. Even a long delay can be condoned if witness has no motive for falsely implicating the accused. In the instant case, the alleged incident took place on on 06.03.1987 at 11.30 AM and the FIR was registered on the same day at 12.45 hours. In this case evidence shows that one person namely Bajrangi has sustained serious injuries and after the incident he was taken to hospital by the complainant. Three other injured have also sustained multiple injuries. The distance of police station from the spot was shown four miles. The FIR was registered within one hour 15 minutes of the incident. In view of all these facts, it can not be said that there is undue delay in lodging the FIR and thus, the contention of learned counsel for the appellant has no force.
23. So far as the contention, that PW-1, PW-2 and PW-3 are interested witnesses, is concerned, it is well settled position that a natural witness may not be labelled as interested witness. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim. Generally close relations of the victim are unlikely to falsely implicate anyone. Relationship is not sufficient to discredit a witness unless there is motive to give false evidence to spare the real culprit and falsely implicate an innocent person is alleged and proved. A witness is interested only if he derives benefit from the result of the case or as hostility to the accused. In case of State of Punjab Vs Hardam Singh, 2005, S.C.C. (Cr.) 834, it has been held by the Apex Court that ordinarily the mere relations of the deceased would not depose falsely against innocent persons so as to allow the real culprit to escape unpunished, rather the witness would always try to secure conviction of real culprit. In the case of Dilip Singh Vs State of Punjab, A.I.R. 1983, S.C. 364, it was held by the Supreme Court that the grounds that the witnesses being the close relatives and consequently being the partition witness would not be relied upon has no substance. Similar view has been taken by the Supreme Court in Harbans Kaur V State of Haryana, 2005, S.C.C. (Crl.) 1213; and in State of U.P. vs. Kishan Chandra and others, 2004 (7), S.C.C. 629. The contention about branding the witnesses as 'interested witness' and credibility of close relationship of witnesses has been examined by Apex Court in number of cases. A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness', as held by the Supreme Court in Dalbir Kaur v. State of Punjab, AIR 1977 SC 472. The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straight way unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. Similar view was taken in case of State of Gujrat v. Naginbhai Dhulabhai Patel, AIR 1983 SC 839.
In the present case, it is correct that PW 3 Surender Kumar Rai is brother of deceased Bajrangi but it can not be a sole ground to doubt his testimony. PW 3 has been subjected to cross-examination, but no such adverse effect could emerge, so as to make his presence at the scene of offence doubtful. Regarding PW-2 Phoolchand it was submitted that there was litigation between him and some of the accused persons and thus, he is an enmical witness. In support of this contention some documents were also filed in defence. It may be seen that PW 2 has made a clear and cogent statement regarding the alleged incident. His presence at the spot is established by the fact that he himself has sustained injuries in the incident. Medical examination report of PW 2 Phoolchand shows that he has sustained as many as 14 injuries, thus, his presence at the spot is established. He has been subjected to lengthy cross-examination, but no such adverse effect could emerge, so as to affect his credibility. Version of PW-1 has been amply corroborated by PW-2 and PW-3. Thus, the contention of learned counsel for the accused-appellants has no force.
24. So far as this contention is concerned that there was enmity between the parties on account of the land dispute and that the appellants have been falsely implicated on account of that enmity, it is well repeated legal saying that enmity is a double edged weapon and it cuts both ways. On the one hand, it may be a reason for false implication while on the other hand, it may also provide a motive for commission of offence. In the instant case, one person (Bajrangi) has died and three persons sustained injuries in the alleged incident. PW-2 Phool Chand has sustained 14 injuries, Harikesh Rai has sustained 12 injuries and Rajendra Rai has sustained 24 injuries. In view of the injuries, it is apparent that deceased and injured persons were assaulted in a serious manner by using various types of weapons. The accused-appellants have not come up with any such case that if they were not involved in the incident, how deceased Bajrangi and injured persons have sustained alleged injuries. FIR of the alleged incident was lodged without any undue delay naming all the accused persons. In view of all attending facts and circumstances of the case and particularly keeping in view the nature of injuries sustained by deceased and injured persons, it cannot be imagined that the injured persons would falsely implicate the accused persons leaving their actual assailants. It is well settled that if a case is based on direct testimony of eye witnesses, proof of motive is not required. However, in the instant case it may also be seen that as per prosecution version before the incident in question, on 08.01.1987 accused Ghan Shyam alias Dhannu, Singhasan, Mahendra, Dhruv Raj Rai and Ramesh have assaulted complainant of the present case namely Rajendra Rai and regarding that incident a case was registered against them, in which the above stated accused persons were convicted. PW-3 Surendra Kumar Rai was a prosecution witness in that case. Though the present case is based on direct testimony of eye witnesses but in view of the above-stated evidence, prosecution has been able to prove motive to commit the alleged incident. In view of the aforesaid, contention of learned counsel for the accused-appellants has no force.
25. It was next argued that oral evidence is not consistent with medical evidence. It is trite law that oral evidence has to get primacy as medical evidence is basically opinionative. It is only when the medical evidence especially rules out the injury as claimed to have been inflicted as per the oral testimony, then only in a given case, the Court has to draw the adverse inference. It is well settled by a series of decisions of the Apex Court that while appreciating variance between medical evidence and ocular evidence, oral evidence of eyewitnesses has to get primacy as medical evidence is basically opinionative. But when the court finds inconsistency in the evidence given by the eyewitnesses which is totally inconsistent to that given by the medical experts, then evidence is appreciated in a different perspective by the courts. In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484, the Hon'ble Supreme Court observed as under:
"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
A similar view has been taken in Mani Ram & Ors. v. State of U.P., 1994 Supp (2) SCC 289; Khambam Raja Reddy & Anr. v. Public Prosecutor, High Court of A.P., (2006) 11 SCC 239; and State of U.P. v. Dinesh, (2009) 11 SCC 566. In State of U.P. v. Hari Chand, (2009) 13 SCC 542, the Hon'ble Apex Court re-iterated the aforementioned position of law and stated that in any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy over the medical evidence.
From the above stated authorities, it is clear that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, but when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. Where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. In the present case as per the prosecution version, deceased Bajrangi was attacked by accused Dhruraj with spear and the injury sustained by Bajragi were penetrating wound 2.25 cm x 1 cm x abdominal cavity deep on left side of abdomen and a 16 cm stitched wound at right side of abdomen. Similarly injured were attacked with clubs, sticks, 'gadasi, spear and sword. Considering the nature of injuries sustained by the deceased as well as by the injured persons, it is apparent that these injuries were possible by the alleged weapons. In view of these facts, it can not be said that oral evidence is not consistent with medical evidence. At any rate, it can not be said that the oral evidence is totally irreconcilable with the medical evidence. Further oral evidence has primacy over the medical evidence. The medical evidence does not make the ocular testimony improbable nor the alleged inconsistency is of such nature that it completely rules out all possibility of the ocular evidence being true. Thus, the contention of learned counsel for the accused-appellants has no force.
26. Learned counsel for the accused-appellants has pointed out certain contradiction and stated that in his cross-examination, PW-1 has stated that after hearing noise when he was coming out from ''abadi'' area, Bajrangi has met him in injured condition and PW-1 took him to the police station and that neither Surendra nor any other persons was with him. PW-1 has also stated that in the earlier incident of 08.01.1987 Surendra Rai was a witness but he has not deposed from the side of complainant. It was further pointed out that in his cross-examination PW-1 stated that the FIR was lodged on the version of injured Bajrangi Rai. From the cross-examination of PW-1, it appears that in later part of his cross-examination, he has back tracked from his earlier version and on certain important points he did not support the prosecution case. However, the alleged contradictions and inconsistencies emerged in his cross-examination, are not supported by his statement recorded under Section 161 Cr.P.C. In his examination in-chief, PW 1 has made clear categorical statement against all the accused persons but in later part of his cross-examination, he made a volta facie on some substantial points. Considering the entire facts, it appears that in his cross-examination, PW-1 has deliberately not supported the prosecution case and turned hostile and after some cross-examination, PW-1 was declared as hostile by the prosecution. However as his examination-in-chief is fully consistent with his earlier version and FIR and also corroborated by PW-2 and PW-3 and thus, the hostility of PW-1 in his cross-examination would not affect the testimony of PW-2 and PW-3. Even the relevant part of examination of PW-1, which appears truthful and support prosecution may be taken in to consideration against the appellants-accused. Thus, the argument of learned counsel for the accused-appellants has no force.
For the sake of arguments even if it is assumed that PW 1 Rajender Rai has not witnessed the incident, as claimed by him in later part of his cross-examination, the testimony of injured witness PW 2 Phool Chand Rai is quite clear and cogent. In his statement, PW 2 has stated vivid description of the incident. No major contradiction or inconsistency could be pointed out in his statement. His statement is consistent with medical evidence. Though in the FIR, no specific weapon was attributed to the accused persons except that of accused-appellant Dhruv Raj Rai but it is well settled that FIR is not a encyclopaedia of case. Further, FIR was not lodged by PW-2 Phool Chand Rai and as stated earlier, FIR was lodged by PW-1, who has admitted in his cross-examination that he has not witnessed the incident. It was pointed out that PW-2 has admitted in his cross-examination that there was enmity between him and accused persons, however, as discussed above, it can not be a factor to doubt his testimony, which otherwise is cogent and inspires confidence. The testimony of PW-2 has been corroborated by PW-3 Surendra Kumar Rai. The testimony of PW-3 was mainly assailed on the ground that PW-2 has not spoken about his presence, however, it cannot be a reason to doubt the presence of PW-3 at the spot. The statement of PW-3 is clear and cogent and no important contradiction or infirmity could be shown in his statement. PW-2 and PW-3 have been subjected to cross-examination but no such important fact could emerge, which may create any dent on the prosecution version. As stated earlier, PW-2 is an injured witness. In Jarnail Singh Vs. State of Punjab (2009) 9SCC 719, the Supreme Court reiterated the special evidentiary status accorded to the testimony of an injured accused. It was held that the fact that witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case, the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon. Similar view was expressed in the case of Krishan v State of Haryana, (2006) 12 SCC 459. With respect to the evidence of victim, the Supreme Court in Criminal Appeal Nos. 513-514 of 2014 decided on 09.01.2017 in case of Baleshwar Mahto & Anr. v. State of Bihar & Anr., has reiterated the law laid down in case of Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259, which reads as under :
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.
"Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC 881:1973 SCC (Cri) 563:AIR 1972 SC 2593], Malkhan Singh v. State of U.P. [(1975) 3 SCC 311 : 1974 SCC (Cri) 919 : AIR 1975 SC 12], Machhi Singh v. State of Punjab [(1983) 3 SCC 470 : 1983 SCC (Cri) 681], Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559 : AIR 1988 SC 696], Bonkya v. State of Maharashtra [(1995) 6 SCC 447 : 1995 SCC (Cri) 1113], Bhag Singh [(1997) 7 SCC 712 : 1997 SCC (Cri) 1163], Mohar v. State of U.P. [(2002) 7 SCC 606 : 2003 SCC (Cri) 121] (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472], Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302], Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630] and Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] 29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] , where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. ......In Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2021] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214] ). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
27. When the aforesaid principles are applied in the facts of this case, it would show that the injured witness PW-2 Phool Chand has named all the accused-appellants. As stated earlier, the testimony of the injured witness is accorded a special status in law and the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. In the instant case, injured witness PW 2 Phoolchand has made clear and cogent statement. He has been subjected to lengthy cross-examination, but nothing adverse could come out. His version is consistent with medical evidence. No such reasons could be shown as to why he would depose falsely against appellants-accused sparing his actual assailants. The prosecution has also proved motive of the alleged incident. Considering entire evidence on record, the involvement of all the accused appellants in the alleged incident is established.
28. However, examining the entire evidence carefully, it appears that all the accused appellants are not liable for conviction under all the charges as held by learned trial court. So far death of deceased Bajrangi is concerned, appellant-accused Dhruraj has been convicted under section 304 IPC while rest of the appellants-accused have been convicted under section 304 IPC with the aid of section 149 IPC. The evidence shows that deceased Bajrangi Rai has sustained merely two injuries, which have been attributed to appellant-accused Dhruraj. Provisions of Section 149 of IPC provide 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. The first part of Section 149 IPC states about the commission of an offence in prosecution of the common object of the assembly whereas the second part takes within its fold knowledge of likelihood of the commission of that offence in prosecution of the common object. Scope of two parts of Section 149 IPC has been explained in Rajendra Shantaram Todankar v. State of Maharashtra and Ors. [JT 2003 (2) SC 95], the Apex Court has explained Section 149 and held as under:
"14. Section 149 of the Indian Penal Code 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. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 -- either clause -- is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act......"
The same principles have been reiterated in State of Punjab v. Sanjiv Kumar alias Sanju and Ors. [JT 2007 (9) SC 274].11. Creation of vicarious liability under Section 149 IPC is well elucidated in Allauddin Mian and Others, Sharif Mian and Anr. v. State of Bihar [JT 1989 (2) SC 171], this Court held:
"8. ........Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly......" [underlining added].
The same principles were reiterated in paras (26) and (27) in Daya Kishan v. State of Haryana [JT 2010 (4) SC 325] and also in Kuldip Yadav and Ors. v. State of Bihar [JT 2011 (4) SC 436]. Whether the members of the unlawful assembly really had the common object to cause the murder of the deceased has to be decided in the facts and circumstances of each case, nature of weapons used by such members, the manner and sequence of attack made by those members on the deceased and the circumstances under which the occurrence took place. It is an inference to be deduced from the facts and circumstances of each case (vide Lalji and Ors. v. State of U.P. [JT 1989 (1) SC 109]; Ranbir Yadav v. State of Bihar [JT 1995 (3) SC 228]; Rachamreddy Chenna Reddy and Ors. v. State of A.P. [JT 1999 (1) SC 412]).
In prosecution of ''common object' means ''in order to attain the common object'. Effect of section 149 may be different on different members of the same assembly. Common object is determined keeping in view nature of the assembly, arms carried by members and behaviour of members at or near the scene of incident. It is not necessary in all cases that the same must be translated into action or be successful. It is well settled that the expression ''in prosecution of common object'' has to be strictly construed as equivalent to ''in order to attain the common object.' The word ''knew' used in the second part of section 149 IPC implies something more than possibility and it cannot bear the sense of might have known'. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object. Members of an unlawful assembly may have community of object upto a certain point. The ''common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances.
29. Coming to the facts of present case, it may be seen that as per injury report Ex. Ka-9, deceased Bajrangi Rai has sustained one lacerated wound of 2 cm x 1.5 cm x 0.5 cm at left side of his stomach and another injury was swelling in the area of 4 cm x 3 cm at left arm. As per post-mortem report of deceased Bajrangi Rai, he has sustained one penetrating wound 2.25 cm x 1 cm x abdominal cavity deep left side of abdomen and one stitched wound of 16 cm size at right side of stomach. According to prosecution, accused appellant Dhruv Raj Rai has attacked Bajrangi with spear and other accused persons have attacked with gandasi and sticks, however, in view of post-mortem report of the deceased, it is apparent that deceased has sustained merely two injuries and the fatal injury i.e. penetrated wound, is quite probable by spear. The post-mortem report of deceased does not indicate that he was assaulted by all the accused persons, who were eleven in numbers. PW-2 and PW-3 have also not attributed any specific role to the accused persons except that of Dhruv Raj Rai, in causing injuries to deceased Bajrangi. These witnesses have stated deceased was given spear blow by Dhruv Raj Rai and thereafter rest of the accused persons assaulted injured persons. All these facts indicate that unlawful assembly of accused persons might not have common object to cause death or culpable homicide of deceased. It was the individual act of accused appellant Dhruv Raj Rai, which is responsible for causing fatal injury to the deceased. Here it would be pertinent to mention that even learned trial court has charged accused-appellant Dhruv Raj Rai under Section 304 IPC simpliciter while rest of the accused persons were charged under Section 304/149 IPC. In the facts and circumstances of the case, this court is of the view that so far the death of deceased Bajrangi is concerned, the prosecution has not proved the existence of the common object of causing death of deceased amongst the accused persons and that all of them acted in furtherance of the common object to invoke the first part of Section 149 IPC and thus, it would not be safe to convict the accused persons under Section 304 IPC with the aid of Section 149 IPC. Thus, conviction of accused appellants Ramesh Rai, Radhey Shyam, Man Shyam alias Mannu, Singhasan, Jagdish and Mahendra under Section 304/149 IPC is not sustainable. However, so far as accused appellant Dhruv Raj Rai is concerned, his conviction under Section 304 IPC is based on evidence and thus, liable to be upheld. So far as the conviction of all the accused-appellants under Section 326/149 IPC is concerned, it may be seen that learned trial court has found that accused-appellant Radhey Shyam, Sankatha and Ramesh were having lathi, while rest of the accused persons were armed with gandasi, spear, sword and country made pistol. Perusal of medical evidence shows that injured Phool Chand Rai has sustained 14 injuries, which included lacerated, incised, abrasion and contusion wounds and as per x-ray report Ex.Ka-6, he has suffered fracture in radius ulna bone and parietal bone. Injured Harikesh Rai has sustained 12 injuries and as per ex-ray report Ex.Ka-5, he has suffered fracture in radius bone. Out of the injuries sustained by injured Harikesh Rai, there were three incised wounds and other were contusions. Injured Rajendra Rai has sustained as many as 24 injuries, which included incised, lacerated and contusion wounds etc. As per x-ray report Ex.Ka-7, injured Rajendra Rai has sustained fracture in spine and scapula. In view of the evidence on record conviction of all the appellants-accused 326/149 IPC is based on evidence. The conviction of appellant-accused Ramesh Rai and Radheysyam u/s 147 IPC and of appellant-accused Manshyam @ Mannu, Singhasan, Jagdish, Mahender and Dhruraj u/s 148 IPC is also based on evidence.
30. In view of aforesaid, conviction of accused appellant Dhruv Raj Rai under Section 148, 304, 326/149 IPC is upheld. Similarly conviction of accused appellants Man Shyam alias Mannu, Singhasan, Jagdish, Mahendra, Ramesh Rai and Radhey Shyam under Section 326/149 IPC is upheld, however, their conviction and sentence under Section 304/149 IPC is set aside. Conviction of appellant Ramesh Rai and Radhey Shyam under Section 147 IPC and of appellants-accused Man Shyam alias Mannu, Singhasan, Jagdish and Mahendra under Section 148 IPC is also based on evidence and has to be upheld.
31. So far as the question of sentence is concerned, it may be observed that alleged incident took place on 06.03.1987 and since then the period of 32 years has elapsed. Accused Sankatha, Ghan Shyam and Surya Bali have died during trial, while accused-appellant no. 2 Rajeshwar Rai and accused-appellant no. 5 Ghan Shyam alias Dhannu have expired during pendency of this appeal. No doubt, a period of more than three decades has passed since the incident, however, it can not be ignored that in the alleged incident one person has lost his life and he was attacked with spear at his stomach and that three injured persons have sustained multiple injuries. Out of injured persons, injured Rajendra Rai has sustained as many as 24 injuries. So far as accused appellant Dhruv Raj Rai is concerned, considering the evidence and his specific act of attacking deceased with spear, his sentence of seven years along with fine of Rs. 1,000/- under Section 304 IPC is justified and the same is upheld accordingly.
So far as other appellants are concerned, they have not caused any injury to the deceased Bajrangi. Among the injured persons, injured Phoolchand has sustained fracture in lower V3 and in V3 shaft radius and injured Rajender Rai sustained in spine of scapula at lateral end of right scapula. Except these, all other injuries sustained by injured persons were simple in nature. Five co-accused persons have already died. At the time of recording statements under section 313 CrPC in the year 2000, accused-appellant Jagdish Rai was aged 55 years and Radheyshyam was aged 46 years. Other accused were in late thirties or early forties. It was submitted that appellants Ghanshyam Rai and Manshyam have remained in jail for about three months, while rest of the appellants remained in jail for about one month. Considering all relevant facts at this stage it would not be appropriate to send them to jail. This court is of the view that ends of justice would met if appellants-accused Ramesh Rai, Radhey Shyam, Man Shyam alias Mannu, Singhasan, Jagdish and Mahendra are sentenced to the period alraedy undergone by them along with some substantial amount of fine.
32. Resultantly conviction of appellants-accused Ramesh Rai, Radhey Shyam, Man Shyam alias Mannu, Singhasan, Jagdish and Mahendra u/s 326/149 IPC is upheld but the sentence awarded by the trial court is set aside and they are sentenced to the period alraedy undergone by them along with fine of Rs 25,000/ each under section 326/149 IPC. In default of payment of fine, they shall undergo one year imprisonment. Conviction of Appellant-accused Ramesh Rai and Radhey Shyam u/s 147 IPC is affirmed but sentence is modified and they are sentenced to the period already undergone with fine of Rs 2000/ each under Section 147 IPC. In default of payment of fine, they shall undergo two months imprisonment. Conviction of Appellants-accused Man Shyam alias Mannu, Singhasan, Jagdish and Mahendra u/s 148 IPC is affirmed but sentence is modified and they are sentenced to the period already undergone along with fine of 3000/ each under Section 148 IPC. In default of payment of fine, they shall undergo three months imprisonment. Conviction and sentence of appellants Man Shyam alias Mannu, Singhasan, Jagdish, Mahendra, Ramesh Rai and Radhey Shyam u/s 304/149 IPC is set aside. Appellants are on bail. Appellant Dhruv Raj Rai be taken into custody to serve out the sentence in accordance with law. Remaining appellants Ramesh Rai, Radhey Shyam, Man Shyam alias Mannu, Singhasan, Jagdish and Mahendra are granted three months time to deposit the fine. In case the fine is not deposited within the prescribed period, the trial court shall proceed in accordance with law.
33. It is directed that out of the total fine realized, Rs 50,000/ shall be paid to the legal heirs of deceased Bajrangi and Rs 20,000/ each shall be paid to each of the three injured of the incident.
34. The appeal is partly allowed in above terms.
Dated: 12.09.2019 Anand (Raj Beer Singh, J)