Allahabad High Court
Awadhesh And Others vs State Of U.P. on 20 May, 2020
Bench: Ritu Raj Awasthi, Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH High Court of Judicature at Allahabad Lucknow ************* Reserved Case :- CRIMINAL APPEAL No. - 14 of 1985 Appellant :- Awadhesh And Others Respondent :- State of U.P. Counsel for Appellant :- Ram Naresh Singh,Abhishek Audichya,Amit Kumar Awasthi,Nagendra Mohan,Vinod Misra Counsel for Respondent :- G.A., Dheeraj Srivastava, Girijesh Sharan Srivastav, Munni Lal Yadav, Rajesh Kumar Gupta, Shivendra Pratap Singh Hon'ble Ritu Raj Awasthi,J.
Hon'ble Vikas Kunvar Srivastav,J.
(Per: Hon'ble Ritu Raj Awasthi, J.)
1. Heard Mr. Nagendra Mohan, learned counsel for appellant as well as Mr. Pankaj Kumar Tiwari, learned Additional Government Advocate on behalf of State and perused the record including lower Court records.
2. This Criminal Appeal has been filed under Section 374 (2) Code of Criminal Procedure against the judgment and order dated 09.01.1985 passed by the Ist Additional Sessions Judge, Sitapur in Sessions Trial No. 117 of 1982 arising out of case Crime No. 152 of 1981, under Sections 147, 148, 149, 302, 201 Indian Penal Code, Police Station Laharpur, District Sitapur, whereby the accused-appellants, Avadhesh Kumar, Patrakhan, Sheo Poojan, Uma Shanker alias Dalla and Kalloo have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302/149 Indian Penal Code. They have been further convicted and sentenced to undergo rigorous imprisonment for one year under Section 147 Indian Penal Code. The accused-appellants, Avadhesh Kumar, Patrakhan, Sheo Poojan have been convicted and sentenced to undergo rigorous imprisonment for two years under Section 148 Indian Penal Code. The accused-appellants, Avadhesh Kumar and Sheo Poojan have been further convicted and sentenced to undergo rigorous imprisonment for two years under Section 201 Indian Penal Code. All the sentenced are directed to run concurrently. Accused, Purushottam and Pankaj Kumar have been acquitted giving them benefit of doubt.
3. The prosecution case, in brief, is that Mahadeo who was grandfather of the informant, Jagdish (PW-1) had two sons, namely Ram Dayal and Ram Asrey. Ram Dayal had one son, namely, Sri Sarjoo Prasad whereas Ram Asrey had three sons, namely, Roop Narain, Jagdish and Chhail Behari. Sarjoo Prasad was murdered and Roop Narain had lodged the report in that connection in which Gokaran and Ram Mitra were also named as accused along with others. The said case ended in acquittal. Muneshwar was the grandfather of Gokaran. Muneshwar had two sons Misri Lal and Mewa Lal. Gokaran and Patrakhan were the sons of Mishri Lal and he had also one daughter Maya. Maya was married to Chukki alias Pankaj who is an accused in this case. Shyam Murari and Avadhesh were the sons of Gokaran who had also one daughter Rajpati. Rajpati is the wife of accused Sheo Poojan. Avadhesh is also accused. The daughter of Mewa Lal, namely, Bishuna was married to Ram Mitra who was also an accused in the murder of Sarjoo Prasad. Kalloo, Mahesh Prasad and Uma Shanker alias Dalla are also accused in the present case. All the accused persons were on friendly terms with each other. It is alleged that the whereabouts of Gokaran were unknown and a report about his disappearance was lodged by Mishri Lal and in that report Jagdish (PW-1) and Chhail Behari were named as accused. No prosecution was launched on the basis of the said report, therefore, the accused persons were displeased. The wife of Gokaran used to say that she would not take off her bangles for 12 years. The accused Avadhesh and Patrakhan (sons of Gokaran) used to say that they would wreck vengeance. It is alleged that on 15.7.1981 at about 6PM the informant PW-1 (Jagdish) had gone to shahpur market. Deceased, Roop Narain (brother of Jagdish), had also gone to the said market for purchasing goods and selling food-grains. Roop Narain had sold some of his food-grains while he was yet to dispose of his remaining food-grains, Purushottam alias Khattoo fired at him, at that time the deceased Roop Narain was seated and he was hit by the shot. Thereafter Patrakhan fired from half-gun as a result of which Roop Narain fell down. Thereafter the accused persons, Kalloo, Sheo Poojan, Dalla, Avadhesh and Pankaj assaulted the deceased Roop Narain. Kalloo and Dalla were armed with lathi, Sheo Poojan and Avadhesh were armed with Banka while Pankaj was armed with a Chhuri. Patrakhan took out the spent cartridge and kept the same in his pocket and thereafter he fired second shot. The accused Patrakhan also said that he was avenging the murder of his brother and if anyone would advance then he would also be killed. The accused persons lifted Roop Narain and after covering a distance of ten steps the accused Sheo Poojan and Avadhesh severed his head and went away towards the west.
3. The report of the occurrence Ext.Ka-1 was written by Indra Prakash on the dictates of PW-1 (Jagdish Prasad). Gokaran, Indra Prakash, Chhabi Nath and others had also witnessed the said occurrence. The case was registered against accused persons at G.D. No. 27, Ext.Ka-3 on the same day at 8.45PM and the special report was also sent on 15.7.1981 vide GD report No. 23 at 10.05PM.
4. PW-5, Jagdish Prasad Sharma took up the investigation of the case. He recorded the statements of the witnesses and started for the place of occurrence. On account of night, he stayed and on next day he prepared the inquest report of the body of the deceased Roop Narain Ext.Ka-7 along with photo of dead-body, challan dead-body, specimen seal etc. Exts.Ka-8 to Ka-12. He also prepared the site plan Ext.Ka-5 of the place of occurrence. Sri Jagdish Prasad Sharma (PW-5) also took possession of plain earth and blood stained earth in separate containers from the spot which were sealed and memo Ext.Ka-6 was prepared in that connection. The dead body of Roop Narain was sent for postmortem examination in a sealed condition. After completion of investigation, the accused were charge-sheeted. The accused persons did not plead guilty to the charges framed against them and prayed for trial.
5. The prosecution examined PW-1 Jagdish the informant, PW-2 Indra Prakash, PW-3 Gokaran, PW-4 Constable Sri Sipte Hasan, PW-5 Sri Jagdish Prasad Sharma, Investigating Officer and PW-6 Dr. P.C. Pandey to prove the prosecution case.
6. The autopsy of the deceased Roop Narain was performed by Dr.P.C.Pandey on 16.07.1981 at 5PM and he had found the following ante-mortem injuries on the body of the deceased vide postmortem examination report Ext.Ka-12:
i. Multiple gunshot wound on the anterior lateral end of the right thigh, lower portion in an area of 8 cm x 7 cm each measuring 0.3 cm x 0.3 cm x muscle deep. Six gunshot recovered.
ii. Multiple gunshot would o the other part of the axilla in an area of 8 cm x 9 cm each measuring 0.3 cm x 0.3 cm x muscle deep. Seven gunshot recovered.
iii. Incised wound 12 cm x 12 cm x through and through 3 cm in circumference at the level of the 5th cervical vertebra. A portion of the 5th cervical vertebra is also cut away. Jags of chin present and the wound (at the margin) of the wound.
iv. Incised wound 4 cm x ½ cm x muscle deep, about the mid portion of left clavicle.
v. Two incised wound both placed transversally, 5 cm x 1½ cm cavity deep, 12 cm right to the muscle end, second would is 3 cm behind the first wound size 3 cm x ½ cm x muscle deep.
vi. Incised wound 8 cm x 1 cm x muscle deep, on the right axillery line, 12 cm below the right axilla.
vii. Incised wound 6 cm x 2 cm x muscle deep on the posterior side of the right upper arm mid-portion.
viii. Incised wound 1½ cm x ½ cm x muscle deep on the front side of the right upper arm mid-portion.
ix. Incised wound 2 cm x 1 cm x muscle deep on the back of the right forearm, mid-portion.
x. Incised wound 1 cm x ½ cm x muscle deep on the back of right wrist.
xi. Incised wound on the left side back lower portion, 3 cm x 1 cm x muscle deep.
xii. Abrasion on the middle of back 3 cm x 3 cm in eye.
7. Dr. P.C. Pandey, PW-6, who had performed the postmortem of the deceased opined that the antemortem injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death, that the injuries no. 1 and 2 were gun-shot injuries while injuries no. 3 to 11 were caused by sharp edged weapon while injury no. 12 was possibly caused by friction against some hard blunt objection such as banka. The injuries could have possibly been inflicted on 15.7.1981 at 6PM.
8. The Trial Court of learned Additional Sessions Judge, Sitapur framed charges against the appellants for offences punishable under Sections 147, 148, 149, 302, 201 IPC. The accused-appellants pleaded not guilty and claimed trial. The Trial Court recorded the statement of prosecution witnesses as well as statements of appellants under Section 313 Cr.P.C.
9. The accused-Avadhesh alleged that he has been implicated on account of his uncle. The accused-Patrakhan alleged his implication on account of his enmity with Jagdish. The accused Sheo Poojan alleged that he had enmity with Putti Lal and Ram Dhani, there was enmity between them and his grandfather, Jagdish is his Samadhi so he has been implicated.
10. The accused-Uma Shanker alleged that his brother-in-law Pahari used to live in village Gursariya, that Indra Prakash had opened an outlet for the flow of water from his nala as a result of which a quarrel took place between them, he with the help of 5 to 10 persons had closed the said outlet so he has been falsely implicated.
11. The acused-Purushotam alleged that the village Pradhan Ram Pal had murdered his real brother Sri Ram, the Village Pradhan was in the party of the informant so he has been falsely implicated. The accused-Kalloo alleged that his sister was married with Pahari in Gursariya village, he had helped his brother-in-law Indra Prakash in connection with a nala so he has been implicated.
12. The accused-Pankaj alleged that he had gone to village Umariya, Jhabboo had agreed to purchase his bullock and the deal was struck at Rs. 1000/-, he had also paid Rs. 100/- as advance. Jhabboo did not purchase his bullock so he demanded Rs. 100/- back from him as a result of which an altercation had taken place so he has been implicated.
13. PW-1, Jagdish had explained the relationship between his family and that of accused persons. According to which there was old enmity between them. There is no evidence to contradict the same. PW-1, Jagdish stated that Sarjoo Prasad son of Ram Dayal was murdered nearly 25-26 years back regarding which a complaint was lodged by his deceased brother, Roop Narain. When Gokaran son of Mishir Lal disappeared about 12-13 years back and his whereabouts were not known, Mishri Lal had lodged a report with the police in which he and his brother Chhail Behari were named as accused persons, however, no prosecution was launched due to lack of evidence, as such, the accused-persons were annoyed and the wife of Gokaran used to say that she would not remove her bangles for 12 years and she would avenge for the disappearance of Gokaran. In fact, the accused persons used to say that they would take revenge for the same. He further stated that nearly two and half years back at about 6PM he had gone to Shahpur market, deceased Roop Narain had also gone there for selling food-grains, that he had disposed of some of his food-grains but some quantity remained. He had also gone to purchase certain goods after selling food-grains. Purushottam alias Khattoo fired at Roop Narain and at that time Roop Narain was seated. The time was 6 PM. On being hit by shot Roop Narain moved one or two steps and at that time Patrakhan fired from his half gun and Roop Narain fell down, that thereafter the accused-persons, Kalloo, Sheo Poojan alias Dalld, Avadhesh Kumar and Pankaj started assaulting the deceased. Kalloo and Dalla were armed with Lathi, Sheo Poojan and Avadhesh Kumar were armed with banka and Pankaj was armed with knife. The accused Patrakhan took out the spent cartridge from the gun and kept in his pocket and he again fired second shot and also said that if anyone would come forward; then, he would also be killed. It was also said that he was avenging for his brother. Thereafter, the accused persons lifted Roop Narain and after covering a distance of 10 steps, Sheo Poojan and Avadhesh Kumar severed the head of Roop Narain. He also stated that the report of the occurrence was written by Indra Prakash on his dictates. PW-1 Jagdish proved the FIR (Ext. Ka-1).
14. PW-1 Jagdish also stated that on account of fear he did not wish to go to the police station so he handed over the written report to the village Chowkidar. He also stated that he had mentioned in the report that Patrakhan had fired in the air. He, however, could not assign any reason as to why the said fact was not noted in the FIR. He also stated that he did not visit village Chandasuwa and according to his memory he had not visited the said village. He had known the name of 2-4 persons resident of village Chandasuwa. He had known the village Pradhan Jagdish and his brother Bishal, Shyam Pandey, Rampal, Pooran Kumhar and the accused persons. He also stated that the villagers had told him the name of Khattoo as Purushottam. That after murder of Roop Narain he had enquired about the name of Khattoo and someone from the persons in the village had told the name of Khattoo as Purushottam.
15. From the statement of PW-1 Jagdish it appears that he had not known the accused person Purushottam who was resident of Chandasuwa. Some persons present in the market had disclosed the name of Purushottam.
16. PW-2 Indra Prakash was the scribe of FIR lodged by the PW-1. He had stated that three years back his father-in-law (deceased) was murdered in his village but thereafter he added that he was murdered in village Umariya. Village Umariya was at a distance of one kilometer from his village Gursariya. He had stated that Roop Narain (deceased) was his father-in-law. Shahpur market was at a distance of 2 kilometer from village Muriya towards the south. In the evening of 15.7.1981 at about 6PM his father-in-law Roop Narain was murdered in Shahpur market, his father-in-law had gone there to sell Masoori (Pulse) and rice for meeting out his household expenses. He further stated that he had reached Shahpur market at about 5PM and thereafter he added that he reached there at about 4.30PM. He had gone there to take medicine for his ailing mother. When he reached Shahpur market he had talks with his father-in-law Roop Narain who was selling food-grains. Raghunath and Putwa Mishra were also selling food-grains there and Jagdish was selling food-grains towards east, that when after talking with his father-in-law he had started walking and gone 2-3 steps Khattoo fired at his father-in-law by his country-made pistol. Khattoo was also known by the name Purushottam. His father-in-law (deceased) ran towards north for 2 to 3 steps, that Patrakhan had also fired from his half gun. Purushottam alias Khattoo was the resident of village Chandasuwa. His father-in-law after being hit by shots fell down, that Patrakhan took out the spent cartridge from his barrel and again filled his gun with another cartridge. That Kalloo alias Daya Shanker, Dalla alias Uma Shanker, Sheo Poojan, Avadhesh, Pankaj Kumar alias Chukki started assaulting Roop Narain. Kalloo and Dalla were armed with lathi, Avadhesh and Shop Poojan were armed with banka and Chukki alias Pankaj Kumar was armed with a knife. That thereafter all the accused person lifted Roop Narain and took him upto a distance of 5-6 steps where Sheo Poojan and Avadhesh severed the head of Roop Narain and kept the same in their bag. Patrakhan was also saying that if anyone would advance; then, he would also be killed. He had also fired in the air. He also stated that he had scribed the FIR on the dictates of Jagdish (PW-1).
17. Another eye-witness of the occurrence in question is PW-3 Gokaran, who stated that nearly 3 years back Roop Narain was murdered in Shahpur market at about 6PM. That on that day he had gone from his village to purchase vegetables, etc. from the said market. After purchasing some goods he went towards the place where food-grains were kept for sale. That Khattoo had fired at Roop Narain. When Roop Narain wanted to run then Patrakhan also fired at Roop Narain with his half gun. He had also fired second time, this time Roop Narain fell down and then other accused persons Chukki, Avadhesh, Kalloo, Dalla ad Sheo Poojan assaulted him. The accused Chukki had a knife, Sheo Poojan and Avadhesh had banka while accused Kalloo and Dalla had lathi in their hands. The accused persons also lifted Roop Narain and after going 10 steps Sheo Poojan and Avadhesh severed the head of Roop Narain and went away with their bag. He stated that Shahpur market was at a distance of three miles from his village. He also stated that he had started from his village at 4PM and reached market about 5PM. He further stated that 8-10 more shopkeepers were also seated at the place where Roop Narain was seated. He further stated that none of his relations lived in village Chandasuwa which is at a distance of 2 kilometer from his village. He had no talks with the residents of village Chandasuwa. He had also not enquired about the names of the accused persons from the residents of village Chandasuwa. He further stated that he had merely known Khattoo. He also stated that he had said before the Investigating Officer that the accused had severed the head of the deceased and kept that in a bag. However, PW-5, Jagdish Prasad Sharma who was Investigating Officer in the case in his cross-examination stated the PW-3 Gokaran had not given any such statement before him. PW-3 Gokaran also did not assign any reason as to why Investigating Officer had not recorded the aforesaid statement.
18. PW-5, Jagdish Prasad Sharma (Investigating Officer), in his statement has stated that he had FIR in his possession when the inquest report was prepared. He also stated that Police Sub Inspector, S.K. Singh had prepared the inquest report on his dictation. In column no. 3 of the inquest report (Ext.Ka-7) the date and time are mentioned as 15.7.1981 and 7.30AM or 7.30PM, however, there is some typographical error as the FIR was lodged on 15.7.1981 at 8.45PM, therefore, the time 7.30AM or 7.30PM mentioned in column no. 3 of the inquest report was not correct and that could be due to human error and sheer inadvertence and oversight. In the end of the signature of the SI the numeral 15 of the date 15.7.1981 has been corrected. Below the signature of the IO the date 16.7.1981 is mentioned. Similarly, time 7.30AM is clearly mentioned below the signature of the Sub-Inspector so discrepancy in column no. 3 of the inquest report (Ext.Ka-7) has totally become insignificant.
19. The prosecution had also produced PW-4, Constable Sibte Hasan who had recorded the FIR (Ext.Ka-2) on the basis of written report (Ka-1). He had confirmed the report no. 27 in the GD and the FIR (Ka-2). He has denied that the said report was lodged on the information given by the Chowkidar. The prosecution had also produced Dr. P.C. Pandey, who had conducted the postmortem of the body of deceased Roop Narain and has confirmed the same. The prosecution in order to prove its case had produced certain documentary evidence such as written report (Ka-1), FIR (Ka-2), copy of GD report no. 27 (Ka-3), Site plan (Ka-5) Recovery memo (Ka-6), Inquest report (Ka-7) and Postmortem report (Ka-12) in addition to the witnesses as noted above.
20. Learned counsel for appellants has vehemently argued that there were strong contradictions in the statement of PW-1 as well as PW-2 and they are not trustworthy. In this regard, it has been argued that PW-1 Jagdish in his statement had stated that due to fear he did not wish to go to the police station to lodge the FIR. He also stated that he had handed over the written report to the Chowkidar.
21. It is submitted that the FIR in this case was not registered on the basis of the compliant submitted by PW-1 as PW-1 has himself submitted that he did not wish to go to police station to lodge the FIR and handed over the written complaint to Chowkidar to take it to the police station. This contradiction in the statement of PW-1 is a material contradiction which creates doubt about the veracity of the FIR itself, as such, the entire prosecution case appears to be on falsehood. It is also contended that PW-2 in his statement has stated that the deceased Roop Narain was murdered in his village but thereafter has added that he was murdered in village Umariya, however, subsequently at a later stage, he has stated that Roop Narain was murdered in Shahpur market. The statement of PW-2, as such, was not reliable and the prosecution has failed to prove its case beyond reasonable doubt.
22. It has further been argued that PW-1 Jagdish in his statement has said that he had gone to his house in the night, after lodging of the FIR and reached the place where the dead body of Roop Narain was lying for preparation of inquest report next day, that in normal circumstance one whose brother has been murdered would not have slept and it was an unnatural conduct of PW-1 Jagdish which creates doubt about his presence at the time of occurrence.
23. It has further been argued by the learned counsel for the appellants that as per PW-1, Patrakhan had fired twice and he had also fired in the air, however, the police had not recovered any empty cartridge from the place of occurrence.
24. It has also been argued by learned counsel for appellants that the alleged offence said to have been committed in the market area where several persons were present, however, the prosecution has not produced any independent witness to support its case. PW-1 and PW-2 are relatives of deceased whereas PW-3 was known to the deceased, as such, an interested witnesse. In fact, no one had witnessed the crime.
25. Learned AGA appearing for the State, on the other hand while rebutting the arguments of appellants' counsel has submitted that the incident had happened in the course of the day when there was sufficient day light, at 6 in the evening on 15.7.1981. In the month of July, there is sufficient sunlight at 6PM, as such, there was no difficulty for the witnesses to identify the accused persons. The witnesses could have faced no difficulty in properly seeing the incidence taking place and identifying the accused persons. They did so with all certainty. The accused were named in the FIR as they were well known to the witnesses of facts. He further submitted that the First Information Report was lodged promptly by the police on receiving written complaint from the informant, Jagdish (PW-1). In this regard, he read over the relevant paragraph-extract of the statement recorded by the Trial Court of PW-1 and other witnesses like Investigating Officer and Head Moharrir as well as another witnesses of facts who were present at the place of occurrence to explain the gap of time between the time of occurrence and lodging of FIR in the police station. There was no delay in lodging of FIR.
26. Learned AGA vehemently denied the arguments of appellants with regard to lodging of FIR by the informant, PW-1. It was submitted that the FIR was lodged on the basis of written complaint submitted by PW-1 himself. The written complaint and the FIR have been verified by the PW-1 and PW-4. He further submitted that after lodging of FIR, the police party moved to the spot where the dead body of the deceased, Roop Narain was lying in Shahpur market. Since it became dark due to night, as such, the Investigating Officer waited for the next day morning for getting the inquest of the deceased done and prepare the inquest report. The inquest proceedings before the witnesses of inquest were performed and inquest report was prepared. It is submitted that the overwriting in the column No. 3 of the inquest report was a human error and it was corrected by the Investigating Officer while signing the inquest report. After signature of the IO in the inquest report, the date and time have been mentioned which clarify the position. It is submitted that after completion of inquest proceedings, the dead body was sent for postmortem. The inquest report contained the case crime no. and relevant sections. It is very much clear that the inquest was done after lodging of FIR. It is also submitted that even memo along with dead body prepared for sending it for the postmortem bears the said case crime number. All these documents have been duly proved, therefore, the statement with regard to registration of FIR, its time and date stand proved and sufficiently corroborated by documents.
27. It has been argued by the learned AGA that in the FIR the informant had given the names of the accused persons and there was no room for any consultation or dictation on the part of the Investigating Officer.
28. Learned AGA has argued that specific role has been assigned to respective accused-persons, weapons used by them, time of occurrence and the presence of ocular witnesses all are proved by the witnesses of facts without any contradiction, inconsistency and doubt. Further, the narration of factual aspect of the incidence stated by the witnesses find support with the independent corroborative evidence like postmortem report, site plan and other formal witnesses.
29. It has been argued by the learned AGA that every minutest detail is not required to be mentioned in the FIR and in case any relevant facts which have come in light in the statement of the prosecution witnesses which were not mentioned in the FIR, the same cannot be rejected simply for the reason that they were not mentioned in the FIR. FIR is simple an information to the police regarding commission of any crime and all the relevant material facts come to the light either during course of investigation by the police or in the statement of prosecution witnesses. The opportunity of cross-examination is provided to the accused-persons and the Court has to decide about the veracity of said facts on the basis of evidence on record. It has also been argued that the accused-persons have been charged under Section 302 read with Section 149 IPC. The presence of accused persons at the place of occurrence was duly proved by the prosecution, as such, they have been rightly convicted under the aforesaid Sections.
30. Learned AGA countering the arguments of learned counsel for appellants submitted that the murder of deceased, no doubt, took place in the market area of Shahpur where several persons may have witnessed the crime, however, looking to the nature of crime when the head of the deceased was severed in broad day light by the accused persons and the head of the deceased was taken away in a bag by them, no person could have come forward to give any evidence against the accused persons. It is also submitted that it is the discretion of the prosecution to produce its witnesses and the defence cannot take advantage in case only three witnesses of facts have been produced by the prosecution.
31. Learned AGA further argued that the worthiness of the testimony of prosecution witnesses cannot be rejected simply because PW-1 and PW-2 are the real brother and son-in-law, respectively of the deceased and PW-3 was known to the deceased. The prosecution witnesses have given the details of the manner in which the crime was committed by the accused persons, also giving the specific role and the specific weapons used by them in the commission of murder of the deceased including the place, date and time of occurrence which clearly goes to establish their presence at the place of occurrence and, as such, the evidence of ocular witnesses was fully trustworthy of credence.
32. Learned AGA submitted that the prosecution has successfully proved its case on the basis of witnesses, material produced and proved before the Court beyond all reasonable doubts. There was sufficient evidence and corroborative material before the learned Trial Court for recording conviction of appellants. The learned Trial Court has rightly convicted the accused-appellants under Section 302/149 IPC. Accordingly, the sentence of life imprisonment imposed by the learned Trial Court is just and proper and there is no error in law or fact and same deserves to be confirmed.
33. After conclusion of arguments, learned AGA in support of his contentions cited certain cases laws. He gave reference of judgment of the Apex Court in the case of Gurmail Singh vs. State of Punjab and another1, where the scope of constructive liability under Section 149 IPC has been explained. It was held in that case that murder of deceased was the common object of the unlawful assembly. It was also clear from nature and number of injuries stated in postmortem report. Injuries on deceased were severe enough to lead to a reasonable conclusion that common object of unlawful assembly was murder of deceased. Hence, totality of facts and circumstances led to compelling inference that attack on deceased was with object of killing him. The accused were liable to convicted under Section 302/149 IPC.
34. Learned AGA also relied on the judgment of the Apex Court in the case of Chanakya Dhibar (dead) vs. State of West Bengal and others2, where the Apex Court set aside the acquittal of the accused persons by the High Court and confirmed the conviction of the accused awarded by the Trial Court under Section 304 Part I/149 and 148 IPC. It was held that even if only one of the accused persons used the weapon and definite role of all the accused persons were not assigned, it cannot be accepted that Section 149 would not be applicable.
35. Learned AGA has also placed reliance on the judgment of the Apex Court in the case of Jivan Lal and others vs. State of M.P.3, where the conviction was upheld on a solitary evidence. It was held that it is a settled law that conviction can be based on the sole testimony of an eyewitness provided that the said testimony is found to be wholly reliable. Prudence requires that corroboration of the testimony of that witness should be sought for from independent sources to base the conviction.
36. Learned AGA also relies on the judgment of the Apex Court in the case of Yakub Ismailbhai Patel vs. State of Gujrat4, where the Apex Court held that the conviction can be based on the testimony of a solitary witness in case the said testimony inspires confidence. The Court should be cautious while examining such evidence. Corroboration of other evidence can be sought.
37. We have considered the arguments advanced by learned counsel for appellants as well as learned AGA.
38. It is to be noted that PW-1 Jagdish had stated that he had gone to police station along with Chowkidar. It has also come in the statement of PW-1 that on account of fear he did not desire to go to police station and he had given the FIR to village Chowkidar. However, from the statement of PW-1 Jagdish it cannot, at all, be concluded that he did not go to the police station to lodge the FIR. He may have apprehended danger so did not wish to go to police station in the night, however, from the statement of other prosecution witnesses such as PW-2, PW-3 and PW-4, it clearly goes to establish that the written report regarding the occurrence was submitted by PW-1 at the police station on the basis of which FIR regarding crime was registered.
39. It is to be noted that PW-1 Jagdish stated that after lodging FIR he had gone home and stayed at home. It is also stated that on 16.7.1981 he went to Shahpur market at 11AM, he had stayed at his house because several persons including relatives had started reaching his house after hearing about the occurrence. The deceased Roop Narain was murdered in Shahpur market and the informant Jagdish after submitting written report at the police station regarding the occurrence of the crime could have gone to his house and had again returned to the place of occurrence next day on 16.7.1981 at 11AM where the body of Roop Narain was lying. It cannot be said that there was any unnatural conduct of PW-1 Jagdish in this regard.
40. In the case of Main Pal v. State of Haryana5 the Apex Court in paragraphs 10 and 11 has held as under:
10. On a bare perusal of the trial court's judgment one thing is patently noticeable. The trial court has merely referred to the arguments advanced and has then come to abrupt conclusions without even indicating any plausible or relevant reasons therefor. Merely coming to a conclusion without any objective analysis relating to acceptability or otherwise of the rival stands does not serve any useful purpose in adjudicating a case. The trial court was required to analyse the evidence, consider the submissions and then come to an independent decision after analysing the evidence, the submissions and the materials on record. Since the trial court had not pragmatically analysed the evidence, and had given abrupt conclusions, that itself made the judgment vulnerable. Further, several aspects which the trial court found to be of significance were really arrived at hypothetically and on surmises. Merely because the evidence of PW 2 shows that he acted in an unnatural manner, that per se would not be a determinative factor to throw out the otherwise cogent prosecution evidence. The High Court on the other hand has considered in great detail the evidence of the witnesses. It has come to a positive finding that PW 1 was in a position to identify the accused persons. Some of the pleas now advanced were also not taken up before the courts below, for example, non-examination of the pellets/wads by the Forensic Science Laboratory. On considering the evidence on record, pragmatically one thing is clear that the High Court after analysing the evidence in great detail, was justified in treating the trial court's judgment to be practically unreasoned.
11. Though PWs 1 and 2 were related to the deceased, that does not in any manner affect the credibility of their evidence. When a person is shown to be the relative of an accused, it is open to the courts to critically analyse his evidence with caution and then come to a conclusion whether the same is credible and cogent. Though the conduct of PW 2 may appear to some to be somewhat unusual, as rightly noted by the High Court, every person cannot act or react in a particular or very same way and it would depend upon the mental set-up of the person concerned and the extent and nature of fear generated and consequently on the spot his reaction in a particular way has to be viewed on the totality of all such circumstances. The hypothetical discrepancy regarding the height from which the gun was shot is one aspect which needs to be noted, only to be rejected. If the eyewitnesses' version, even though of the relatives, is found to be truthful and credible after deep scrutiny the opinionative evidence of the doctor cannot wipe out the effect of eyewitnesses' evidence. The opinion of the doctor cannot have any binding force and cannot be said to be the last word on what he deposes or meant for implicit acceptance. On the other hand, his evidence is liable to be sifted, analysed and tested, in the same manner as that of any other witness, keeping in view only the fact that he has some experience and training in the nature of the functions discharged by him.
41. So far as non-recovery of any empty cartridge from the place of occurrence is concerned, Ext. Ka-6 indicates that the police had taken the blood stained earth and plain wet earth in two separate samples from the place of occurrence. It is to be noted that as per statement of PW-1, Patrakhan had removed the empty cartridge from the barrel of his half gun and kept it in his pocket and thereafter had again filled the gun and fired in the air, as such, the police during investigation may not have got any empty cartridge from the place of occurrence.
42. Learned counsel for appellants tried to emphasize that in the statement given before the Court PW-1 has stated that Patrakhan had fired in the air, however, the same fact has not been mentioned in the FIR.
43. It is needless to observe that every minute detail is not required to be mentioned in the FIR as the FIR is only an information given to the police regarding occurrence of a crime and the person giving the said information may not be in his best frame of mind to give all details of the occurrence while submitting the report to the police.
44. In the case of Animireddy Venkatramana Vs. Public Prosecutor High Court A.P.6, the Apex Court has held that discrepancies in FIR merely because case against some accused named in it could not be established or some inquiries were made to ascertain truth of incident prosecution case cannot be discarded. FIR need not be encyclopedic, each and every detail need not to be stated in it. Court has to ascertain about possibility of false implication of accused. It is also observed that probable, physical and mental condition of informant is relevant.
45. In the case of Betal Singh Vs. State of M.P.7, Babu Singh Vs. State of Punjab8, Baldev Singh Vs. State of Punjab9 and Bijay Singh Vs. State of Bihar10, the Apex Court in these cases has held that mention of few facts or vague facts or if detailed particulars of occurrence are not mentioned in the FIR, then minute details of occurrence is not required as FIR is not encyclopedia of occurrence. In case of Bijay Singh (supra), it is also held that FIR is not substantive piece of evidence of occurrence.
46. So far as the argument of learned counsel for appellants that no one had seen the occurrence of crime is concerned, this argument is not tenable for the reason that when the occurrence of crime of such magnitude where the head of the deceased was severed by the accused persons after firing at him take place, the people present may have run helter-shelter and they would shudder and avoid to be witness. The appellants have not been able to create any doubt about the presence of PW-1 Jagdish at the time of occurrence and, as such, we are of the considered view that the testimony of PW-1 is trustworthy and cannot be rejected merely on presumptions.
47. It is settled proposition of law that the testimony of a prosecution witness cannot be merely rejected on the ground that he was a relative of the deceased. However, the Court is required to be cautious and careful while examining the evidence of such a witness. Non-production of an independent witness by the prosecution would not weaken the case of the prosecution in case testimony of the prosecution witness produced by the prosecution, may be relative of the deceased, is consistent and trustworthy.
48. In the case of State of U.P. v. Sheo Sanehi11, the Apex Court in paragraph 18 regarding related witness has held as under:
18. So far as PWs 3 and 4 are concerned, PW 3 is nephew of deceased Devi Din whereas PW 4 is widow of the said deceased, as such they are natural witnesses and their presence at the alleged place of occurrence cannot be doubted. The names of these two witnesses were disclosed in the first information report itself and they supported the prosecution case in all material particulars in their statements made before the police as well as in court and no infirmity could be pointed out in their evidence, excepting that they were related to the deceased persons and inimical to the accused. It is well settled that merely because a witness is related to the prosecution party and inimical to the accused persons, his evidence cannot be discarded if the same is otherwise trustworthy. In the case on hand, we do not find any infirmity whatsoever in the evidence of PWs 1, 3 and 4, as such it is not possible to disbelieve them, especially in view of the fact that their evidence is supported by medical evidence as well as objective findings of the investigating officer, but the High Court has committed a serious error in discarding their testimonies on this score.
49. In the case of State of Rajasthan Vs. Hanuman12, the Apex Court has held as under:-
The position is well settled that evidence of eye-witnesses cannot be discarded merely on the ground that they are relatives of the deceased. Normally close relatives of the deceased are not likely to falsely implicate a person in the incident leading to the death of the relative unless there are very strong and cogent reasons to accept such criticism."
50. In the case of Banti @ Guddu vs. State of Madhya Pradesh13, the Apex Court has held as under:-
"...Coming to the plea that the presence of PWs 1 and 2 at the spot of occurrence is doubtful, it is to be noticed that both PWs 1 and 2 were cross-examined at length. Nothing Infirm has been elicited to cast doubt on their veracity. If the lack of motive as pleaded by the accused appellants is a factor, at the same time it cannot be lost sight of that, there is no reason as to why PW-1 would falsely implicate the accused persons. There was no suggestion of any motive for such alleged false implication. Merely because PW-1 is a relation of the deceased, and PW-2 was known to him, that per se cannot be a ground to discard their evidence. Careful scrutiny has been done of their evidence and it has been found acceptable by both the trial Court and the High Court. We find no reason to take a different view."
51. Learned counsel for appellants has argued that PW-2 in his statement has stated that the deceased Roop Narain who was said to be his father-in-law was murdered in his village and then added that he was murdered in Umariya which is one kilometer from his village. He has also stated that he had gone to Shahpur market as his mother was unwell, however, no such statement was given to the Investigating Officer. It is also argued that PW-2 in his statement has stated that he had informed that the accused had kept the severed head of deceased Roop Narain in the bag, however, the Investigating Officer in his statement has denied the same which clearly goes to show that the statement of PW-2 is not reliable.
52. So far as the evidence of PW-2 is concerned, it is to be noted that there is no doubt that PW-2 at one place has stated that the deceased was murdered in his village and then added that he was murdered in village Umariya which is one kilometer from his village while at another place he has stated that the deceased was murdered in Shahpur market while selling food-grains such as Mansoori (pulse) and rice. There are certain contradictions in his statement which have not been properly explained by him. The learned Trial Court has, therefore, held that the evidence of PW-2 is not worthy of credence. We have no reason to disagree with the findings of the learned Trial Court in this regard.
53. Another eye-witness in question is PW-3 Gokaran, who stated that nearly three years back Roop Narain was murdered in Shahpur market on 15.7.1981 at about 6PM. That on that day he had gone from his village to purchase vegetables, etc. from the said market. After purchasing some goods he went towards the place where food-grains were kept for sale. It is stated that Khattoo had fired at Roop Narain and when Roop Narain wanted to run away then Patrakhan also fired at Roop Narain with his half gun. He had also fired second time. Roop Narain fell down and then other accused persons Chukki, Avadhesh, Kalloo, Dalla ad Sheo Poojan assaulted him. The accused Chukki had a knife, Sheo Poojan and Avadhesh had banka while accused Kalloo and Dalla had lathi in their hands. The accused persons also lifted Roop Narain and after going 10 steps Sheo Poojan and Avadhesh severed the head of Roop Narain and went away with their bag. He stated that Shahpur market was at a distance of three miles from his village. He also stated that he had started from his village at 4PM and reached market about 5PM. The description of crime by PW-3 Gokaran appears to be natural and correct.
54. Learned counsel for appellants tried to submit that Roop Narain had stood a surety for PW-3 Gokaran vide document Ext. Kha-1 on record 13.7.1981. The occurrence in question took place on 15.7.1981. PW-3 Gokaran in his statement has stated that he did not know whether the deceased Roop Narain had stood a surety for him or not is unbelievable, he was released on bail 2 to 3 days back before the occurrence, the testimony of PW-3 Gokaran is therefore not trustworthy.
55. In this regard, it is to be noted that after his release from jail PW-3 might have gone away to his house and since the occurrence in question took place within two days since his release from jail i.e., soon after Roop Narain stood surety for him so there is a possibility that he might not have come to know the name of Roop Narain as a surety for him. At the time of presentation of bail bonds, the presence of accused is not necessary and the bail bonds are also not submitted in the presence of the accused person, as such, the argument of learned counsel for appellants in this regard is not very much material.
56. PW-3 had given details of the occurrence, specific role of each accused persons, the weapons used by them and the description of the manner in which crime was committed by the accused persons. The presence of PW-3 at the time of occurrence is as such without any doubt.
57. In the case of Yogesh Singh v. Mahabeer Singh14, the Apex Court has observed as under:
24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh v.State of Punjab [Dalip Singh v. State of Punjab, AIR 1953 SC 364 : 1954 SCR 145 : 1953 Cri LJ 1465] is one of the earliest cases on the point. In that case, it was held as follows: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
25. Similarly, in Piara Singh v. State of Punjab [Piara Singh v. State of Punjab, (1977) 4 SCC 452 : 1977 SCC (Cri) 614] , this Court held: (SCC p. 455, para 4) "4. ... It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
26. In Hari Obula Reddy v. State of A.P. [Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] , a three-Judge Bench of this Court observed: (SCC pp. 683-84, para 13) "13. ... it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
27. Again, in Ramashish Rai v. Jagdish Singh [Ramashish Rai v. Jagdish Singh, (2005) 10 SCC 498 : 2005 SCC (Cri) 1611] , the following observations were made by this Court: (SCC p. 501, para 7) "7. ... The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai v. State of Bihar[Anil Rai v. State of Bihar, (2001) 7 SCC 318 : 2001 SCC (Cri) 1009] , State of U.P. v.Jagdeo [State of U.P. v. Jagdeo, (2003) 1 SCC 456 : 2003 SCC (Cri) 351] , Bhagaloo Lodh v. State of U.P.[Bhagaloo Lodh v. State of U.P., (2011) 13 SCC 206 : (2012) 1 SCC (Cri) 813] , Dahari v. State of U.P. [Dahari v. State of U.P., (2012) 10 SCC 256 : (2013) 1 SCC (Cri) 22] , Raju v. State of T.N. [Raju v. State of T.N., (2012) 12 SCC 701 : (2012) 4 SCC (Cri) 184] , Gangabhavani v. Rayapati Venkat Reddy[Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182] and Jodhan v. State of M.P. [Jodhan v. State of M.P., (2015) 11 SCC 52 : (2015) 4 SCC (Cri) 275] )
58. The Supreme Court in the case of Vijendra Singh v. State of U.P.15, has observed as follows:
30. It is next contended by Mr Giri, learned counsel for the appellants that all the eyewitnesses are related to the deceased Badan Pal and they being interested witnesses, their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with the said parameters, it does not withstand the said test for which the case set forth by the prosecution gets corroded and the principle of beyond reasonable doubt gets shattered. The aforesaid submission, as we perceive, has no legs to stand upon, for PWs 1 to 3 have deposed in detail about the previous enmity between the parties, their presence at the spot, the weapons the accused persons carried, their proximity to the shed and establishment of the identity of all the four accused. They have also testified as regards the deceased lying in a pool of blood. There is no reason why they would implicate the appellants for the murder of their relation leaving behind the real culprit. That apart, nothing has been elicited in the cross-examination for which their testimony can be discredited.
31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P.[Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13) "[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v.State of Bihar [Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : 1996 SCC (Cri) 188] has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.
59. Thus, from the statement of PW-1, Jagdish and PW-3, Gokaran who are said to be eye-witnesses to the crime, it is very much established that they are not involved or indulged in falsehood or telling lie, their testimony is trustworthy.
60. It is also established that the written report Ext. Ka-1 was lodged at the police station by PW-1 Jagdish. The scribe of FIR is PW-2 Indra Prakash. Merely because the FIR was lodged by Indra Prakash at the dictates of PW-1 it does not become suspicious document. The FIR was lodged at 8.45PM on 15.7.1981. The distance of place of occurrence and police station is 7 miles. PW-2 Indra Prakash is resident of village Gursariya which is at a distance of two and half kilometer from Shahpur market. It may be that PW-2 Indra Prakash may have reached there after the occurrence. FIR, thus, does not become suspicious document.
61. Learned counsel for appellants has argued that the head of the deceased was not recovered by the police and, as such, there was doubt about the identity of the headless body found at the place of occurrence which was said to be of deceased, Roop Narain. In this regard, it is to be noted that since we have found the statements of PW-1 and PW-3 to be trustworthy and they are said to be eye-witnesses to the crime and, as such, even if the head of the deceased was not recovered by the police, it does not in any manner creates any doubt about identity of the deceased who was said to have been put to death by the accused persons.
62. Now, we have to examine the conviction of appellants Avadhesh Kumar, ,Patrakhan, Sheo Poojan, Uma Shanker alias Dalla and Kalloo under Section 302 with the aid of Section 149 IPC. Section 149 IPC, for convenience, is reproduced below:
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--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."
63. It has been argued by the learned counsel for appellants that as per the prosecution case Purushottam @ Khattoo had fired at the deceased. The fire had hit the deceased, Roop Narain when he was seated. Roop Narain tried to run and when he moved for 2 or 3 steps. Patrakhan had fired from his half gun as a result of which Roop Narain fell down. Thereafter. The accused appellants, Avadhesh Kumar, Kalloo, Sheo Poojan, Dalla and Pankaj assaulted the deceased Roop Narain with their weapons. Avadhesh and Sheo Poojan were armed with banka, Kalloo and Dalla were armed with lathi while Pankaj was armed with knife (chhuri). It has been argued that from the postmortem examination report it is evident that the body of the deceased was having gun shot injuries and incised wounds. Injury no. 12 was an abrasion injury. There was no lacerated wound, as such, it cannot be said that the deceased was hit by lathi. The incised wounds could have been caused by sharp edged weapon but no such injury could be attributed to knife (chhuri). The contention is that no such occurrence took place in the manner as alleged by the prosecution.
64. In this connection, it may be pointed out that the headless body of the deceased was recovered. The deceased was assaulted by seven persons out of whom Kalloo and Uma Shanker @ Dalla assaulted the deceased with lathi. There is possibility that the deceased may have sustained lathi blow on his head which was severed and, therefore, in the postmortem examination report the presence of injuries caused by lathi were no mentioned. Moreover, in view of large number of persons assaulting the deceased, it cannot be said that the persons wielding lathis continued to assault the deceased. There is, thus, no contradiction between the ocular evidence and the medical evidence in the present case.
65. In case an offence is committed by any member of an unlawful assembly in prosecution of the common object and such members of that assembly knew the purpose with which they had assembly; then, every person present at the time of committing of that offence is a member of that assembly and is guilty of that offence.
66. In the present case, the presence of the accused-appellants at the place of occurrence and their participation in the crime has been established by the prosecution. The ocular witnesses have clearly stated the specific role and the weapon used by the accused-appellants in murdering the deceased, Roop Narain, severing his head and keeping it in a bag to cause disappearance of evidence of offence. The common object of unlawful assembly to cause death of the deceased was well established. There was nexus between common object and the offence committed and, as such, every accused-appellants were liable for the same.
67. The Apex Court in the case of Gurmail Singh (supra), which has been relied by learned AGA, has explained the constructive liability under Section 149. Relevant paragraph 29 is reproduced below:
29. However, with regard to the constitution of an unlawful assembly, the High Court disagreed with the trial court. It was held that the presence of eight persons armed with guns and gandasas with a motive to wreak vengeance on Gurdail Singh and his family clearly pointed to the existence of an unlawful assembly having a common object. That Gurdial Singh was the target is clear from the number and nature of injuries received by him, which subsequently resulted in his death. Alternatively, it was held that the members of the unlawful assembly knew that an offence against Gurdail Singh was likely to be committed. As such, the ingredients of Section 149 IPC were made out.
68. In the case of Chanakya Dhibar (dead) (supra), which has been relied by the learned AGA, it has been held by the Apex Court that even if one of the accused persons used the weapon and definite role of all the accused persons were not assigned, it cannot be accepted that Section 149 IPC would not be applicable. Relevant paragraph 19 is reproduced below:
"19. All the accused persons were armed. Their conduct before, during and after the occurrence clearly brings about the object. The assembly was patently unlawful. It is inconceivable that persons armed would surround the persons without any criminal object in mind. Mere fact that only one of them used the weapon does not really rule out application of Section 149 IPC. Learned counsel for the accused persons submitted that contrary to the evidence of PWs 3 and 5 there was only one injury found by the doctor. PWs 3 and 5 have stated about assaults and if five persons were really assaulting the result would not have been only one injury. The definition of "assault" as given in Section 351 IPC makes the plea unacceptable. The trial Court had rightly and in proper legal perspective convicted the accused-respondents under Section 148 and 304 Part I read with Section 149 IPC. The High Court's judgment suffers from serious infirmities making it indefensible and is therefore, set aside. The judgment of the trial Court recording conviction and imposing sentences is restored. The appeal is allowed."
69. In a recent judgment in the case of Dev Karan vs. State of Haryana16, the Apex Court has considered the applicability of Section 149 IPC in such cases and has held that where an unlawful assembly as a result of which an offence was committed by the common object is established specific attribution of injuries caused by each individual was not required to be considered. As long as the necessary ingredients of an unlawful assembly are set out and proved, as enunciated in Section 141 IPC, it would suffice the invocation of Section 149 IPC. Relevant paragraph 19, 20 and 21 are reproduced below:
19. Thereafter, it has been opined that if charges framed against the appellant contain all the necessary ingredients to bring home to each of the member of the unlawful assembly, the offence, with aid of Section 149 of the IPC, and the prosecution proves the existence of an unlawful assembly with a common object, which is the offence, as also the 8(1966) 1 SCR 18 membership of each appellant, nothing more is necessary. The effect of these observations is that Section 141 of the IPC only defines what is an unlawful assembly and in what manner the unlawful assembly conducts itself, and in what cases the common object would make the assembly unlawful is specified in the Sections thereafter, inviting the consequences of the appropriate punishment in the context of Section 149 of the IPC.
20. In KuldipYadav v. State of Bihar; (2011) 5 SCC 324, it has been opined in para 36 that a clear finding regarding the nature of the common object of the assembly must be given and the evidence discussed must show not only the common object, but also that the object was unlawful, before recording a conviction under Section 149 of the IPC. What is required is that the essential ingredients of Section 141 of the IPC must be established.
21. On examination of the aforesaid aspect, we are unable to come to a conclusion that there was any fatal flaw in the non-inclusion of Section 141 of the IPC while framing charges, as would render the complete trial illegal, or that it can result in a finding that there would be no occasion to invoke Section 149 of the IPC. Learned counsel appears not to have appreciated the judicial pronouncements in the correct perspective, as what is necessary for invoking Section 149 of the IPC has been set out in these judgments. It has nowhere been said that Section 141 of the IPC should be specifically invoked or else the consequences would be fatal. As long as the necessary ingredients of an unlawful assembly are set out and proved, as enunciated in Section 141 of the IPC, it would suffice. The actions of an unlawful assembly and the punishment thereafter are set out in the subsequent provisions, after Section 141 of the IPC, and as long as those ingredients are met, Section 149 of the IPC can be invoked.
70. In the case of Shambhu Nath Singh and others vs. State of Bihar17, it was held by the Apex Court that there is vicarious liability of every member of an unlawful assembly who were assembled with a common object to commit the offence. The conviction of an offence may be recorded against the members of unlawful assembly even if it be established that the offence of murder was committed by a member of that assembly. Relevant paragraph 7 is reproduced below:
7. Therefore a conviction for an offence under Section 326 read with Section 149 of the Indian Penal Code may be recorded against the members of an unlawful assembly, even if it be established that an offence of murder was committed by a member of that assembly. The offence under Section 326 of the Indian Penal Code is in its relation to the offence of murder a minor offence and the language used in Section 149 of the Indian Penal Code does not prevent the court from convicting for that minor offence merely because an aggravated offence is committed. Counsel for the accused however sought to place reliance upon certain authorities in support of his contention. We may briefly deal with those authorities.
71. In view of above, we are of the considered view that the prosecution has been able to prove its case beyond any reasonable doubt. The act of accused appellants collectively amounts to culpable homicide amounting to murder and punishable under Section 302 IPC bringing all of them under joint liability of the offence. The conviction and sentence of appellants under Section 302/149 is confirmed. The conviction and sentence of appellants under Section 147 is also confirmed. The conviction and sentence of appellants, Avadhesh Kumar, Patrakhan, Sheo Poojan under Section 148 is also confirmed. The conviction and sentence of appellants, Avadhesh Kumar and Sheo Poojan under Section 201 IPC is also confirmed. .
72. We do not find any error in the impugned judgment. It is evincible from the evidence on record that all the accused were in prior consultation and pre-planned to kill Roop Narain and to further this common object they came to the place of occurrence and committed the crime.
73. Thus, we do not find any merit in the criminal appeal, therefore, the same is liable to be dismissed it is accordingly dismissed.
Order
(i) The criminal appeal no. 14 of 1985 preferred by accused-appellants, Avadhesh Kumar, Patrakhan, Sheo Poojan, Uma Shanker alias Dalla and Kalloo arising out of judgment and order of sentence passed in Sessions Trial No. 117 of 1982, Crime No. 152 of 1981, Police Station Laharpur, District Sitapur under Sections 147, 148, 149, 302, 201 IPC is dismissed. The judgment and order of sentence of life imprisonment is confirmed.
(ii) Copy of the judgment be sent to Sessions Judge, Sitapur to ensure compliance under intimation to this Court.
(iii) The Office is directed to provide the copy of the judgment separately to all the five appellants promptly.
(iv) The office is further directed to enter the judgment in compliance register maintained for the purpose on the Court.
[Vikas Kunvar Srivastav, J.] [Ritu Raj Awasthi, J.] Order Date: 20/05/2020 Santosh/-