Allahabad High Court
Ram Kishan And Others vs State on 22 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 2259
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 10 Reserved Case :- CRIMINAL APPEAL No. - 584 of 1982 Appellant :- Ram Kishan And Others Respondent :- State Counsel for Appellant :- L.R.Acharya,R.R.Acharya,Wasim Ahmad Counsel for Respondent :- A.G.A. Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
(Delivered by Hon'ble Mr. Justice Mohd. Faiz Alam Khan) Heard learned counsel for the appellants, Wasim Ahmad as well as learned AGA for the State and perused the record.
This criminal appeal has been preferred by appellants- Ram Kishan, Jagannath, Janki, Sri Ram, Babu, Ramadhar and Hardev, under Section 374(2) of the Cr.P.C. against the judgment and order dated 20.7.1982, passed by III- Additional District and Sessions Judge, Sitapur, in Sessions Trial No. 103 of 1980, ''State Vs. Ram Kishan and others', arising out of Case Crime No. 154 of 1979, under Sections 147, 148, 149, 302 IPC, relating to Police Station Tal Gaon, District Sitapur, convicting the appellant Hardev under Sections 148, 302 and 149 read with Section 323 IPC and appellants- Ram Kishan, Jagannath, Janki, Sri Ram, Babu and Ramadhar for the charges under Sections 147, 149 read with Section 302 and 149 read with Section 323 IPC whereby Hardev was sentenced for imprisonment for life with fine stipulation for one year imprisonment, for the offence under Section 148 IPC, for imprisonment of one and half year and under Section 149 IPC rigorous imprisonment for six months and for the offence under Section 323 IPC six months rigorous imprisonment. The trial court further sentenced appellants- Ram Kishan, Jagannath, Janki, Shri Ram, Ramadhar and Babu for life imprisonment and fine stipulation for the offence under Section 149 IPC read with Section 302 IPC and six months rigorous imprisonment for offence under Section 149 read with Section 323 IPC and one year rigorous imprisonment for the offence under Section 147 IPC.
The prosecution story as unfolded from the record of the subordinate court is that on 14.8.1979 at 9.10 A.M a written report was submitted to the S.H.O., Police Station Talgaon, Sitapur by informant Ram Raj son of Suraj Deen R/o Mauza Jaraili, Police Station Talgaon, District Sitapur alleging that in the rainy season a heavy water logging occurred in village Jaraili, Jaraili Purwa and Makhpur. In order to drain this water a drain was being dug from a pond situated in the west side of the village under the orders of the Block Development Authorities of Block Persendi. The drain was dug from village Jaraili till north of village Kailashpur. A part of this drain was passing in front of the field of accused Hardev. Today (14.8.1979) the labourers, namely, Shatrohan Lal Bahelia and Mahavir Chamar etc. were working in the drain. The informant was digging out weed from his paddy field. At that time Ram Kishan, Jagannath, Janki, Shri Ram, Babu and Ramadhar, armed with ''Lathis' and Hardev armed with a ''Kudal' arrived at the drain. Hardev scolded the labourers that as they have cut the roots of his trees and have also dug the ''mend', he will see them. Accused persons started cutting the roots of their trees and also started pouring mud in the drain in order to fill it. The labourers stopped the works of drain and went to the village Jaraili. After some time at about 8 A.M. Ambika Prasad along with Shatrohan and Mahaveer came at the drain and started explaining and pacifying the accused persons. There happened an exchange of hot words and this got the attention of Ram Raj, Chhotakau, Sant Ram and Satguru Prasad who reached the spot. Ram Kishan and others who were armed with Lathis chased Ambika Prasad up to the paddy filed of Kallu by giving blows of Lathis to him. Ambika Prasad fell down in the field of kallu and thereafter all accused persons declared that they will finish him so that he may taste the consequences of getting the drain dug . On this Hardev gave four blows on the neck of Ambika Prasad with his Kudal and all accused persons fled away. Informant along with Shatrohan, Chhotkau, Sant Ram and Satguru went to see Ambika Prasad and found him lying dead in the Nali drenched with blood.
On the basis of the aforesaid written information, a case was registered against all above mentioned accused persons at Case Crime No. 154 of 1979 under Sections 147, 148, 149, 302 IPC and the investigation of the case was entrusted to S.H.O. Shri Shiv Shankar Singh.
The Investigating officer proceeded to the scene of the crime and prepared inquest report Ex. Ka-9 and necessary papers for the purpose of postmortem of the dead body of Ambika Prasad and handed over the dead body in a sealed condition to constable Satish Kumar Pandey and village Chaukidar Ram Pal. He also, after recording the statement of informant and injured witnesses as well as the eye witnesses Chhotaku and Shatrohan forwarded injured Chhotkau and Shatrohan to hospital for the purpose of medical examination of the injuries sustained by them. He also collected simple and blood stained soil from the paddy field of Kallu and prepared a memo Ex. Ka-15.
The postmortem on the dead body of the deceased Ambika Prasad was performed by Dr. Azeez Ahmad Khan, Medical Officer, District Hospital Lakhimpur Kheri on 15.8.1979 at about 4.30 P.M. The doctor found the age of the deceased about 35 years and probable time of death is about 1½ day before the time of postmortem. The deceased was a young man of good health. Rigor mortis passed from upper limbs and was passing from the lower limbs. He found blisters at some places. He also found following ante-mortem injuries on the body of the deceased:-
(I) Incised wound with sharp edge cutting 9cm x 4 cm bone deep on right side of upper part of neck, 5 cm. Below the right ear, more towards back and extending up to occipital region.
(II) Multiple incised wounds, 4 in number in an area of 21 cm x 5 cm vertebra deep on right side of the neck extending up to the mid line in front and in the back, 5 cm. Below the angle of mandible, every wound was bone deep, all the articles and veins, trachea and thyroid cartilage were cut off, the margins were sharp cut, the injury was 1 ½ cm. below injury no.1.
(III) Incised wound 6 cm. X 1 ½ cm. X muscle deep, 2 cm. Below injury no.2, in the middle, just above the collar bone.
(IV) Incised wound 9 cm. X 3 cm. X bone deep, over collar bone, 2 1/2cm. Below injury no.3.
(V) Incised wound with sharp cutting edges 3.5 cm. X bone deep on right parietal region, 8 cm. Above the right of ear. Fracture of occipital, parietal and frontal bones were present.
(VI) Multiple contused area 21 cm. X 11 cm. On outer aspect of right arm, 11 cm. Below the acrominal prominence.
(VII) Seven contusions in area of 41 cm. X 15 cm. on the right side of chest and abdomen extending, 3 cm. Below the axilla up to the iliac cryst.
(VIII) Abrasion 2 cm. X 1 ½ cm., 22 cm. Above the right of knee.
(IX) Abrasion 2 cm. X 1 cm. In front of the right Shin, 16 cm. Below the right knee.
(X) Contused area 23 cm. X 4 cm. On outer aspect of left forearm just below the elbow.
(XI) Abrasion 4 cm. X 1 cm. In front of the left leg, 12 cm. Below the knee.
(XII) Multiple contused area 30 cm. X 30 cm. On the whole of the back, right and left both sides, extending from the root of the neck.
On internal examination half lb semi digested food was found in Stomach, the small intestine was partially full and large intestine was full in its upper side while the rectum was empty. Gallbladder was half full and cause of death was due to shock and hemorrhage as a result of ante-mortem injuries.
Injured witness Shatrohan Lal was medically examined on 14.8.1979 at 6 P.M. at P.H.C. Persendi, District Sitapur who was brought by the Constable Jasbeer Singh and following injuries were found on his person :-
(I) Contusion 4 cm. X 1.5 cm. In the back left thigh, middle.
(II) Contusion 7 cm. X 1.5 cm. In the calf of left leg (back).
(III) Contusion 5 cm. X 1.5 cm. In the back and inner side of right leg (middle).
All injuries were simple and caused by blunt weapon. The duration was about half day old.
Chhotakan was also medically examined on 14.8.1979 at 6.30 at P.H.C. Persendi who was brought by constable Jasbeer Singh of Police Station Talgaon, District Sitapur and following injuries were noticed on his person:-
(I) Contusion 7 cm. X 1.5 cm. In the back of left thigh.
(II) Complaint of pain in right hand middle finger but no external of injury is present.
(III) Injuries are simple and caused by blunt weapon duration about half day.
The Investigating Officer after completing the necessary formalities including sending blood stained soil collected from the place of occurrence along with Baniyan and underwear of the deceased to chemical examiner and the report so collected which Confirmed human blood on these articles and after completing investigation submitted charge sheet against all accused persons on 26.9.1979.
The case being exclusively triable by the court of sessions was committed to the sessions court.
The charges under Sections 148 and 302, and 323 read with Section 149 IPC were framed against the accused Hardev while the charges under Sections 147, 302 read with Section 149 IPC and under Section 323 read with Section 149 IPC were framed against the accused- appellant- Ram Kishan, Jagannath, Janki, Shri Ram, Ramadhar and Babu.
The prosecution in order to prove its case before the trial court produced following documentary evidence:-
(I) Postmortem report Ex. Ka-1 (II) Chemical examiner reports Ex. Ka-2 and Ka-3 (III) Injury report of Shatrohan Lal Ex. Ka-4. (IV) Injury report of Chhotakau Ex. Ka-5 (V) Chick F.I.R. Ex. Ka-6 (VI) G.D. Entry of the FIR Ex. Ka-7 (VII) Special reprot sent to higher authorities Ex. Ka-8 (VIII) Inquest report Ex. Ka-9 (IX) Challan Lash Ex. Ka-10 (X) Seal sample Ex. Ka-11 (XI) Scratch of dead body Ex. Ka-12 (XII) Letter to C.M.O. Ex. Ka-13 (XIII) Copy of FIR Ex. Ka-14 (XIV) Memo of seizure of blood stained earth Ex. Ka-15 (XV) Site plan Ex. Ka-16 (XVI) Charge sheet Ex. Ka-17.
The prosecution also produced following witnesses in support of its case:-
(I) P.W.1- Ram Raj (Informant) (II) P.W.2- Shatrohan Lal (Injured)/ eye witness) (III) P.W.3- Constable Satish Kumar Pandey, (who took the body to the postmortem house.) (IV) P.W.4- Sant Ram (eye witness) (V) P.W.5- Dr. Azeez Ahmad Khan, (who conducted the postmortem).
(VI) P.W.6- Constable Mohan Lal Rastogi, (who sent the blood stained earth to the chemical examiner) (VII) P.W. 7-Dr. S. R. Verma (who inspected two injured persons) (VIII) P.W.8- S.I. Ram Autar Singh (who kept the material in Sadar Malkhana) (IX) P.W.9- S.O. Shiv Shankar Singh ( Investigating Officer) (X) P.W.10- Shri V.K. Tandon (who sent the material to chemical examination from the office of C.M.O.) After completion of the evidence of the prosecution the statement of the accused persons was recorded under Section 313 of the Cr.P.C., wherein they denied the occurrence and stated that the evidence has been given on the basis of enmity. Accused Ram Kishan in his statement has further stated that the incident of cleaning of the drain had happened 10-12 days before the instant incident. Some quarrel happened with Mahaveer and Shatrohan who cut the roots of his trees. He moved an application against them and only on the basis of that enmity they have been falsely roped in . They did not allow Shatrohan to catch birds from their trees, so he was also having enmity on this score.
The accused persons in their defence produced D.W.1- Rajendra Prasad, who is the Lekhpal of the village concerned.
The trial court after analyzing and appreciating the evidence on record found the case of the prosecution proved beyond reasonable doubt and convicted and sentenced all the accused persons in the manner described in the second paragraph of this judgment.
Aggrieved by the impugned judgment and order of conviction and sentence the appellants have preferred instant appeal, however during the course of pendency of this appeal, appellant no.1 Ram Kishan, appellant no.2 Jagannath, appellant no.4- Shri Ram and appellant no.7- Hardev died and the appeal with regard to them was abated vide order dated 9.8.2019. Hence we are now left to decide the appeal pertaining to appellant no.3- Janki, appellant no.5- Babu and appellant no. 6- Ramadhar.
Learned counsel for the appellants while pressing the appeal submits that the court below without appreciating the evidence available on record in right perspective has convicted the appellants for the offence which they have not done. There are material contradictions in the testimony of all the eye witnesses and prosecution story is highly improbable.
He further submits that the prosecution witnesses no.1- Raja Ram, PW-2 Shatrohan Lal and PW-4 Sant Ram are related witnesses as they are related to the deceased Ambika Prasad and their testimony could not have been believed by the court below.
He further submits that the First Information Report was after thought and prepared in consultation with Police Authorities of Police Station Talgaon.
He further submits that injuries allegedly sustained by witnesses Chhotakan and Shatrohan were self inflicted to carve out a false case against the appellants.
He further submits that from the evidence on record it is evident that Ambika Prasad has been done to death in the dead hours of night and therefore the prosecution case is not believable.
Learned counsel for the appellants overwhelmingly submits that the trial court has committed a manifest error in convicting the surviving appellants for the offence under Under Section 302 IPC read with Section 149 of the I.P.C. as there was no evidence that any unlawful assembly was formed by the appellants, object of which was to murder the deceased. Even if the story of prosecution is believed the ingredients of formation of unlawful assembly and sharing of its unlawful object are missing and it is evident from the facts and circumstances as well as the evidence on record that there was no unlawful assembly the object of which was to murder the deceased, therefore the finding of the trial court with regard to it is perverse. Learned counsel for the appellants in order to substantiate his argument has relied on following case laws:-
(I) Shashi Kant Vs. State of U.P., (2008)1 ALJ (Noc) 167 Allahabad.
(II) Sikandar Singh and others Vs. State of Bihar (2010)7 SCC page 477.
(III) Mariadasan and others Vs. State of Tamilnadu (1980)3 SCC page 68.
Per contra learned AGA appearing for the State submits that the prosecution has proved its case beyond all reasonable doubts and there is nothing illegal or wrong in the judgment of the trial court. Learned AGA further submits that it was established from the evidence produced by the prosecution that the drain was being dug in pursuance of the decision taken by the Block Development Authority and some time prior to the incident the labourers allegedly cut the roots of the trees standing on the land of the accused Hardev. All accused persons are related to Hardev and on the fateful day after hearing that the drain is being cleaned they reached the spot and scolded the labourers working there. He further submits that all accused persons were carrying lathis with them and accused Hardev was carrying a Kudal and keeping in view the arms carried by the accused persons it is established and evident that the object of this unlawful assembly was to commit murder of anyone, who so ever will come in their way.
He further submits that at the fateful time deceased Ambika only came to persuade the accused persons for not to make any hindrance in a beneficial work being carried out by the labourers under the Authority of Block Development Parsenda. However, all the accused persons, in pursuance of common object of unlawful assembly, assaulted Ambika Prasad as well as Shatrohan and Chhotakau with lathis and when Ambika Prasad fell in the paddy field of Kallu, accused Hardev in furtherance of common object of the unlawful assembly assaulted him with Kudal, therefore all the accused persons have participated in the occurrence and hence have rightly been convicted for the murder of Ambika with the help of Section 149 IPC .
Before proceeding further we would like to have a brief survey of the evidence of the witnesses, so that submissions of the learned counsel for the rival parties could be appreciated in a better way.
P.W.1- Ram Raj is the informant of the FIR who in his statement has stated that under orders of Persendi block a drain was being dug, a part of which was situated adjacent to the land of accused Hardev. On the day of occurrence labourers were cleaning and digging this drain. He further stated that at the time of incident he was in his agriculture field. At about 8 A.M. in the morning accused persons arrived at the site of the drain. All accused persons except Hardev were carrying lathis, while accused Hardev was carrying a ''Kudal'. After arriving at the drain accused persons asked the labourers to see them as they have cut the roots of their trees. The labourers departed from the site, however after a short time Ambika accompanied by Shatrohan and Mahaveer came at the site of the drain and started pacifying the accused persons. There were some verbal altercations and thereafter accused persons started assaulting Ambika with lathis, whereby Ambika Prasad fell in the paddy field of Kallu and thereafter accused persons Ram Kishan and Jagannath dragged Ambika Prasad from his legs and put him in a Nali situated on the other side of the drain towards the land of Hardev. Thereafter all accused persons asked to murder him and accused Hardev inflicted 3-4 Kudal blows on the neck of Ambika Prassad. He further stated that when Ambika Prasad was being dragged, Shatrohan Lal and Chhutkan attempted to save him but they were assaulted by Shri Ram, Janki, Babu and Ramadhar by lathis and they also sustained injuries. He stated to have informed the police by giving a written application. In his cross examination this witness stated that when the work started at the drain, Ambika Prasad was not there and only labourers were working. He (Ram Raj) came to his field at 6 A.M. and when Hardev and others were talking to the labourers he did not go there. However, he heard the conversation while staying in his field. He again stated in his cross examination that when at 8 A.M. Ambika Prasad came at the site along with Shatrohan Lal and Mahaveer they were not carrying any arm with them. He could not hear the conversation clearly but was able to hear that Ambika Prasad was saying that why they are making hindrance in the cleaning of the drain. At that point of time some accused persons were filling the drain with mud. This witness admitted that deceased Ambika Prasad was related to him as he was the son of his maternal aunt. He further stated that at the time of assault on Ambika Prasad he was near the mend of the field of Kallu. He was standing about 10-15 paces from the place where Ambika Prasad fell . He was dragged by Ram Kishan and Jagannath across the drain. He could not say as to who assaulted which part of Ambika's body. He witnessed the murder of Ambika Prasad from the field of Kallu and at that point of time Shatrohan Lal and Mahaveer were in the drain and Sant Ram , Satguru and Chhutkan were standing towards the north of the drain. There were no verbal exchanges in between Ambika Prasad and accused persons in his presence. He further stated that before the incident there was no enmity in between Ambika Prasad and accused persons, rather they were having cordial relations.
P.W.2- Shatrohan Lal is the person who was a labourer engaged in digging of the disputed drain and was there since morning. He corroborated the statement of P.W.1- Ram Raj pertaining to the incident which happened in the morning when all accused persons armed with Lathis and Hardev armed with Kudal, arrived at the site of drain and scolded them that they have cut the roots of their trees and they will see them. He stated to have returned to the village and contacted Ambika Prasad, who was a social worker and he along with Ambika Prasad and Mahaveer returned to the drain at about 8 A.M.. He further stated that Ambika and accused persons had some hot verbal exchanges where after the accused persons assaulted Ambika Prasad with lathis, who fell down in the field of Kallu and was dragged by Ram Kishan and Jagannath. When Chhutkan and he tried to intervene, they were also assaulted by Ramadhar, Shri Ram Babu and Janki. He further stated that when Ambika Prasad was lying in the Nali Hardev gave 3-4 blows of Kudal on his neck whereby he died in the Nali. In cross examination he stated that Janki, Babu, Shri Ram and Ramadhar assaulted him and Chhutkan with lathis. According to him when he went to Ambika Prasad, he told him that he will talk to the accused persons and thereafter they returned to the site of drain within 10-15 minutes. He stated that when Ambika Prasad was being assaulted by accused persons, they did not assault either him or Mahaveer. Ambika Prasad fell in the field of Kallu about 20-25 paces away from the drain and when Ambika Prasad fell down, they dragged him (Ambika) and when he (satrohan) objected to it he was assaulted with lathis and Chhutkan was also present near him. Ram Raj at that point of time was in the field of Paragi, about 5-7 paces away from him. He witnessed the murder from about 4-5 paces away from the site. He categorically stated that Hardev was giving blows on the neck of the deceased while other accused persons were standing towards the west and he was crying and making an alarm. According to him the whole incident ended within 10 to 12 minutes and he sustained three injuries.
P.W.4- Sant Ram has stated to be present in his agriculture field along with his brother Satguru, at the time of the incident. He claimed to have seen the accused persons holding lathis and Kudal on the northern mend of Hardev's land and Ambika Prasad, Mahaveer and Shatrohan were standing towards the north of drain. He heard hot exchanges in between Ambika Prasad and Hardev and other accused persons and thereafter he saw that Ambika Prasad is being assaulted by accused persons with lathis and thereafter Ambika Prasad fell in the paddy field of Kallu and was dragged from his legs by Ram Kishan and Jagannath, at this moment Shatrohan and Chhutkan objected to it on which Ramadhar, Shri Ram, Janki and Babu assaulted him and Chutkan by giving lathi blows and when Ambika Prasad was placed in a Nali situated towards the west of Hardev's land, Hardev gave 3-4 blows of Kudal on the neck of Ambika Prasad. In cross examination this witness admitted to be a relative of deceased Ambika Prasad and also that agricultural land where he was doing work, is in the name of his sons Prem Kumar and Kuldeep Kumar. He stated that he could not hear the conversation of accused persons and Ambika Prasad clearly as he was standing about 2 ½ - 3 meters away from the place where Ambika Prasad and accused persons were talking. He specifically stated that he did not hear the call of accused persons to murder Ambika Prasad before start of assault and also that ''Marpeet' (assault) occurred in the filed of Kallu where Ambika Prasad fell down. He claimed that when Ambika Prasad was being assaulted, Hardev was also there but he was not assaulting with the ''Kudal'. When Ambika Prasad fell in the field of Kallu he was standing 10-15 paces away from him and Chhutkan and Shatrohan were standing at about 10 paces away from Ambika Prasad towards the west. Ambika Prasad was dragged for about 28-30 paces from the place where he fell down.
P.W.3- Constable Satish Kumar Pandey is the witness who took the dead body of deceased Ambika for post mortem.
P.W.5- Dr. A.A. Khan has stated to have conducted postmortem on the dead body of the deceased and to have prepared the postmortem report in his hand writing and signature and proved the same as Ex. Ka-1. He also stated about injuries sustained by deceased and other particulars noted by him at the time of postmortem. He, in cross examination has stated that the death of the deceased might have happened at about 1.00 A.M. in the intervening night of 13/14.8.1979. However, in the next breath he stated that probable time of death of the deceased was about 8 A.M. on 14.8.1979. If the deceased had taken breakfast at about 5 or 5.30 A.M. semi-digested food will be found in the stomach. According to him the injuries no. 6, 7, 10 and 12 on the person of deceased were caused by some blunt object like lathis, and injury nos. 8 and 11 could have been caused by friction. Injuries no.1, to 5 sustained by deceased were caused by some sharp edged weapon like ''Kudal' and the injuries no. 1, 2 and 5 were sufficient in the ordinary course of nature to cause death. Fracture in the head occurred due to injury no.5 and 3rd , 4th and 5th survical vertebra was cut against the injury no.2. All injuries according to him were 1 ½ day old.
P.W.6- Constable Mohan Lal Rastogi is a formal witness who testified to have seen material recovered from the spot and sent the same for forensic investigation.
P.W.7- Dr. S.R. Verma is the doctor, who examined injured persons, Shatrohan Lal and Chhutkan on 14.8.1979 about 6 and 6.30 pm. at Primary Health Centre Persendi. He proved the medical reports of the injuries of the two injured persons as Ex. Ka-4 and Ka-5. He claimed that the injuries found on the person of shatrohan and Chutkan were about one and half day old and were caused by some hard and blunt object.
P.W.8- Sub Inspector, Ram Autar Singh is also a formal witness who was Incharge of Sadar Mal Khana wherein the material pertaining to the case was kept and wherefrom sent to the Chemical Analyst.
P.W.9- S.O. Shiv Shankar Singh, is the Investigating Officer of the crime and he proved preparation of inquest and all necessary papers for the postmortem in his hand writing and also to have recorded the statement of the witnesses and after completion of investigation to have submitted the charge sheet against all accused persons under relevant sections of the Indian Penal Code. He has been cross examined by the accused persons at length but nothing significant has been derived. He also proved to have seen, Head Muharrir, Mohd. Hashim working and has proved Chick FIR and G.D. in his hand writing and signature as Ex. Ka-1 and Ex. Ka-7 respectively.
P.W.10- Shri V.K. Tandon, who is a clerk in the office of the C.M.O. and testified to have sent material for forensic examination.
D.W.1- Rajendra Prasad is the lekhpal of Village Jareli Majra and has stated that Gata No. 1204 and 1203 (grove land) belongs to accused Hardev while Gata No. 1122 is the field of Kallu. No Nali is shown in the revenue map towards the west of the grove of Hardev. Adjacent to the grove land of Hardev, towards west Gata No. 2000 is situated which belongs to Jagannath, Hardev and Janki. There is no khata belongs to Ram Raj. However, in his cross examination he admitted that towards the west of the field of Kallu the field of Gokul bearing Gata No. 562 is situated and after the death of Gokul this land has come in the name of Suraj Deen who is the father of Ram Raj. He further stated that the name of Suraj Deen has now been mutated on Gata No. 562 on 23.12.1980 and this land i.e. Gata No. 562 is about 2-2 ½ furlong away from the grove (Orchard) of Hardev.
Now we deal the submissions of Ld. Counsel for the appellants. The first submission of Ld. Counsel for the appellants is that P.W.1- Ram Raj and P.W.4- Sant Ram are related to the deceased and P.W.-2 Shatrohan is an interested witness, therefore their testimony could not be believed because of their relation with the deceased and these witnesses are highly interested witnesses.
In Appabhai and Ors. vs. State of Gujarat, MANU/SC/0028/1988 Hon'ble Supreme Court held as under :-
"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties.
The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused."
In Sucha Singh and Ors. vs. State of Punjab, MANU/SC/0527/2003 Hon'ble Supreme Court has observed as follows :-
"15. In Dalip Singh and Ors. v. The State of Punjab MANU/SC/0031/1953 : [1954]1SCR145 it has been laid down as under:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely, Ordinarily a close relation 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. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
16. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan MANU/SC/0107/1973 : 1974CriLJ331 in which Vadivelu Thevar v. State of Madras MANU/SC/0039/1957 : 1957CriLJ1000 was also relied upon.
17. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness. should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. It the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan MANU/SC/0036/1951 : 1952CriLJ547 . we find, however, that it unfortunately still persists, it not in the judgements of the Courts, at any rate in the arguments of counsel."
18. Again in Masalti and Ors. v. State of U.P. MANU/SC/0074/1964 : [1964]8SCR133 this Court observed: (p, 209-210 para 14):
"but it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses .......
The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
20. As observed by this Court in State of Rajasthan v. Teja Ram and Ors. MANU/SC/0189/1999 : 1999CriLJ2588 the over-insistence on witnesses having no relating with the victims often results in criminal justice going away. When any incident happens in a dwelling house or nearby the most natural witnesses would be the inmates of that house. It would be unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non-examination of such person as prosecution witness. Otherwise, merely on surmises the Court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."
In Bhagaloo Lodh and Ors. vs. State of U.P. reported in MANU/SC/0700/2011 it was held as under :-
"14. Evidence of a close relation can be relied upon provided it is trustworthy. Such evidence is required to be carefully scrutinised and appreciated before resting of conclusion to convict the accused in a given case. But where the Sessions Court properly appreciated evidence and meticulously analysed the same and the High Court re-appreciated the said evidence properly to reach the same conclusion, it is difficult for the superior court to take a view contrary to the same, unless there are reasons to disbelieve such witnesses. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are inter-related to each other or to the deceased. (Vide: M.C. Ali and Anr. v. State of Kerala MANU/SC/0247/2010 : AIR 2010 SC 1639; Myladimmal Surendran and Ors. v. State of Kerala MANU/SC/0670/2010 : AIR 2010 SC 3281; Shyam v. State of Madhya Pradesh MANU/SC/7112/2007 : (2009) 16 SCC 531; Prithi v. State of Haryana MANU/SC/0532/2010 : (2010) 8 SCC 536; Surendra Pal and Ors. v. State of U.P. and Anr. MANU/SC/0713/2010 : (2010) 9 SCC 399; and Himanshu @ Chintu v. State (NCT of Delhi) MANU/SC/0006/2011 : (2011) 2 SCC 36).
In view of the law laid hereinabove, no fault can be found with the evidence recorded by the courts below accepting the evidence of closely related witnesses."
It is therefore settled that merely because witnesses are closed relatives of victim, their testimonies cannot be discarded. Relationship with the deceased is not a factor that affects credibility of a witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. However, in such a case Court has to adopt a careful approach and analyse the evidence to find out, whether it is cogent and credible evidence.
Coming to the facts of the instant case it is evident that P.W.1- Ram Raj in his cross examination has admitted that Ambika Prasad is the son of his maternal aunt and P.W.4- Sant Ram has also admitted in his cross examination that he is related to deceased Ambika Prasad and at the time of incident he was in his filed situated near drain. Keeping in view the whole testimony of these prosecution witnesses it is proved that the field of Ram Raj is also situated near the drain. An attempt has been made by the defence to create a doubt by producing D.W.1- Rajendra Prsad Lekhpal to the effect that Ram Raj is not having any agricultural land near the drain but in cross examination D.W.1- Rajendra Prasad had admitted that towards the west of Kallu's field, land of Gokul bearing Gata No. 562 is situated and after the death of Gokul this has come in the name of Suraj Deen who is the father of Ram Raj (informant) therefore P.W.1- Ram Raj and P.W.4- Sant Ram appears to be natural witnesses of the crime as they were working in their fields. P.W.2-Shatrohan was a labourer, who was digging the drain, who after being threatened by accused persons departed towards the village and after a short interval returned with Ambika and Mahaveer. Therefore, he is a natural witness as he was engaged as a labourer to dig the drain. So even if P.W.1- Ram Raj and P.W.4- Sant Ram are related to deceased, their testimony could not be discarded only on the basis of their relation with the deceased and in view of the above settled legal position the testimony of these witnesses has to be appreciated with care and caution. However, one glaring highlight of testimony of these witnesses, namely, P.W.1- Ram Raj and P.W.4- Sant Ram is that during the course of their evidence, they did not conceal their relation with the deceased Ambika and in absence of any motive and prior enmity of accused persons with Ambika Prasad it is not clear as to why they will falsely implicate any innocent person and will shield those who are actual wrong doers. Therefore in the facts and circumantances of the case these witnesses i.e. PW-1 Raja Ram, P.W.2- Shatrohan and P.W.4- Sant Ram are natural witnesses and their presence at the place of occurrence is also natural.
Highlighting an hypothetical answer given by PW-5 Dr. A.A. Khan in his cross examination that the deceased might have died at 1 A.M. in the intervening night of 13/14.8.1979, it has been submitted that the deceased had died at 1.00 am in the intervening night of 13/14.8.1979 in some other incident at some other place by some unknown person(s) and appellants have been falsely implicated in this case.
The submission of learned cousnel for the appellants does not carry much weight. It is to be understood that the evidence of any medical witness is only an evidence of an expert admissible under Section 45 of the Indian Evidence Act, therefore, it is not conclusive.
In Ramkant Rai v. Madan Rai and Ors. as reported inMANU/SC/0780/2003 : 2004CriLJ36 , the Apex Court has observed in ParaNo. 22 as under:
"22. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence Including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance In the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
Hon'ble Supreme Court in Ram Praksh and others vs. The State of Uttar Pradesh reported in Manu/SC/0062/1968, while dealing with a similar argument held in pargraph 5 of the report as under:-
"5. On the second point, it is urged, that according to the medical evidence the death might have been caused on the night intervening 18th and 19th July, 1966, Dr. S. P. Gulati P.W. 4, who had performed the postmortem examination stated that faecal matter and gas were present in the small and large intestines of Ganeshi Lal; owing to this reason he thought it probable that the deceased had not eased himself till the time of receiving the injuries. Mr. Anthony says that it is well-known that a person with normal habits particularly in villages empties his bowels early in the morning. The presence of the faecal matter in the small and large intestines showed that Ganeshi Lal must have died within some hours of his taking food on the previous night namely by the midnight of 18th and 19th July, 1966. This, according to Mr. Anthony, established that the prosecution case about the time of death cannot be accepted. Reliance has been placed on the statement in Modi's Medical Jurisprudence and Toxicology, 10th Ed., p. 151, that one can give an opinion that the death occurred some time after the deceased go up in the morning if the large intestines was found empty of faecal matter. It is submitted that conversely it can well be said that if the large intestine is found full of faecal matter it should be inferred that death did not take place in the morning. The learned trial judge discussed this matter in his judgment and disposed it of by saying that there was no proof that before the occurrence Ganeshi Lal had eased himself and that even if he had gone for that purpose there was no presumption that his bowels had moved. According to him, the question of time had to be decided on the basis of direct and other evidence on the record. We concur in that view and find it difficult to accept that the question of time should be decided only by taking into consideration the fact that faecal matter was found in the intestines of the deceased. This may be a factor which might have to be considered along with the other evidence but this fact alone cannot be decisive."
Perusal of statement of Dr. A.A. Khan would reveal that he has stated that the death of the deceased is possible on 14.8.1979 at about 8 A.M. He further stated to have found semi-digested food in the stomach of deceased, the upper part of large intestine was full of faecal matter but the rectum was found empty. The postmortem report also contains that small intestine of the deceased was partially full. Considering the above factual matrix, the submission of learned counsel for appellants that the deceased would have died in the night in between 13/14.8.1979 does not appear to be of any substance and probable as the rectum of the deceased has been found empty and the small intestine was found partially full. It is a matter of common knowledge that in the villages people generally awake early in the morning and at first go to ease them out. Therefore the postmortem report suggests that early in the morning the deceased might have eased himself and thereafter had taken some food, as stated by P.W.5- Dr. A.A. Khan probably at 5.00 - 5.30 A.M. and it is only on account of this, the rectum has been found empty and small intestine was found partially full. This medical situation do not suggest that deceased may die at 1.00 A.M. in the dead of night, as it is not probable for him to go to ease in the night.
Moreover when a case of prosecution is based on direct evidence of eye witnesses the medical witness should follow such trustworthy and acceptable oral account of the wittinesses unless the trust worthy oral account of the incident is completely eclipsed by the medical evidence. Otherwise no dent can be made in the story of prosecution on the basis of hypothetical answers of any medical witness. In the instant case there is no material contradictions in the ocular and medical evidence available on record and the case of prosecution could not be doubted on the basis of hypothetical answers of Doctor who conducted the post mortem specially when he has supported the case of prosecution on the time of death of deceased.
The investigating officer has collected the blood stained soil from the place of occurrence and all witnesses have identified the place of occurrence with precision and clarity. Therefore there is no confusion pertaining to the place of occurrence.
The FIR in the matter has also been lodged at 9.10 a.m. in the morning, while the occurrence is stated to have happened at about 08.00 a.m. therefore the FIR is also prompt in the facts and circumstances of the case.
The next submission of Learned counsel for the appellants is that the court below without appreciating the evidence available on record in right perspective has convicted the appellants for the offence and there are material contradictions in the testimony of all the eye witnesses and prosecution story is highly improbable and could not be believed.
There can not be any doubt that while appreciating the evidence on record the court is required to exercise due diligence though the standard of such exercise would be of a prudent person. The Court must bear in mind the facts and circumstances where in the crime has been committed, the quality of evidence, nature of the witnesses, their level of understanding and power of perception and reproduction. The quest must be to find out the truth from the evidence on record. At the same time, it must remain in the mind that there cannot be a prosecution case with a cast iron perfection. Nevertheless, obligation lies on the court to analyze, sift and assess the evidence on record, with reference to trustworthiness and truthfulness of the prosecution winesses, by a process of sincere judicial scrutiny adopting the yard stick of settled principles of appreciation of the evidence. What is to be insisted upon is proof beyond reasonable doubt. The contradictions, infirmities which might have been pointed out in prosecution case, must be assessed at the yardstick of probability. Unless, infirmities and contradictions are of such a nature so as to undermine the root of the evidence and which goes to the core of the prosecution case, over-emphasis may not be applied to such minor contradictions and infirmities. To judge the credibility of the evidence of a witness, one has to look into his evidence, and if any discrepancies is found in the ocular account of the witnesses not affecting the root of the case, the witness may not be labeled as not credit worthy. Even honest and truthful witnesses may differ in some details, which may not be related to the core of the prosecution case and their evidence therefore must be appreciated keeping in mind the power of observation, retention and reproduction as well as the human conduct and occurring incidents in ordinary course of nature.
In Krishna Mochi and Ors. vs. State of Bihar, MANU/SC/0327/2002 held as under :-
"As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. MANU/SC/0254/1981 : 1981CriLJ1012 , normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. Accusations have been established against accused-appellants in the case at hand."
In Gangabhavani vs. Rayapati Venkat Reddy and Ors. Reported in MANU/SC/0897/2013 held as under:-
"In State of U.P. v. Naresh MANU/SC/0228/2011 : (2011) 4 SCC 324, this Court after considering a large number of its earlier judgments held: In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
A similar view has been reiterated by this Court in Tehsildar Singh and Anr. v. State of U.P. MANU/SC/0053/1959 : AIR 1959 SC 1012; Pudhu Raja and Anr. v. State, Rep. by Inspector of Police MANU/SC/0761/2012 : JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi) MANU/SC/0333/2013 : (2013) 4 SCC 557).
10. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence."
Honble Apex Court long back in the matter of Bharwada Bhoginbhai Hirjibhai v State of Gujarat as reported in AIR 1983, 753, MANU/SC/0090/1983 has held that "The principles for appreciation of evidence in the said case came to be settled by the Apex Court in trial against the accused in a rape case but the principles apply as well to all trials. In para-5, the Apex Court observed and settled following principles for appreciation of evidence without entering into re-appraisal or re-appreciation of the evidence in the context of minor discrepancies. The principles laid down are as under:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed an the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
we have very carefully gone through the evidence of all three eye witnesses and have found that there is no material contradictions in their testimony pertaining to the occurrence of the incident. All the prosection eye witnesses are consistent on the point of begining of occurrence, assault given by all accused persons with lathis to Ambika, falling of Ambika Prasad in the field of Kallu and dragging of him by Ram Kishan and Jagannath by legs and also on the point of assault given to Shatrohan and Chhutkan by Ramadhar, Shri Ram, Janki and Babu when they tried to intervene and their testimony is also consistent on the point that when the deceased was placed in a Nali situated across the drain and all accused persons were standing towards the west of the field of Hardev, accused Hardev gave 3-4 Kudal blows on the neck of deceased Ambika causing his instant death.
P.W.1- Ram Raj in his statement has given minute details about the occurrence. He has witnessed the incident from the field of Paragi when Ambika Prasad was being first assaulted in the field of Kallu and P.W.4- Sant Ram was in his field, which is situated on the east of Hardev's grove. While Shatrohan was accompanying Ambika Prasad along with Mahaveer and at the time of assault he was also standing in the field of Kallu. It has also come in the evidence of these prosecution witnesses that there occurred some hot exchanges in between Ambika Prasad and accused persons, which in the facts and circumstances of the case were sufficient to attract P.W.1- Ram Raj and P.W.4- Sant Ram, particularly when an incident has happened in the morning, pertaining to digging of drain. P.W.1- Ram Raj has also admitted that he arrived at the spot after hearing some noise. He further stated that when Ambika Prasad was being dragged towards the Nali, he advanced himself to the field of Kallu from the field of Paragi and at that time Shatrohan and Mahaveer were standing at the drain and Sant ram, Sat Guru and Chhutkan were standing towards the north side of the drain. They were standing about 10-15 paces away from Ambika Prasad. It has been categorically stated by him that the accused persons were not having any enmity with Ambika Prasad and that their relations were cordial. P.W.2- Shatrohan is a natural witness as he was accompanying the deceased Ambika Prasad at the time of incident. The evidence of this witness is consistent on material particulars and fully corroborates the evidence of P.W.1- Ram Raj. He corroborated the manner and method of assault and also as to how he intervened and was assaulted with lathis by accused persons. He admitted that at that point of time Chhutkan was also with him and was also asaulted. He categorically stated that Hardev was cutting the neck of deceased while other accused persons were standing towards the west in the field of Hardev. P.W.4- Sant Ram is also a natural witness who was working in his fields and stated to have seen the accused persons at northern mend of their grove. He has given his evidence describing minute details of the occurrence and keeping in view his testimony as a whole there appears no loopholes or material contradictions in his testimony. He has described the topography of the spot in detail with precision. He admitted that he did not hear any call of accused persons to kill Ambika Prasad before the start of assault. He claimed to have witnessed the whole incident from a distance of 2 ½-3 meters. He provided the full description of the field of Kallu where Ambika Prasad fell and when Ambika Prasad was being assaulted he claimed to be standing on the eastern side of the field of Kallu and was about 10-15 paces away from Ambika Prasad. He also stated that Chhutkan and Shatrohan Lal objected to the dragging of Ambika Prasad by Ram Kishan and Jagannath and they were also assaulted by Ramadhar, Shri Ram, Janki and Babu .
Therefore, apart from some minute and insignificant discrepancies and improvement, which are natural to occur, there is no material contradictions in the testimony of these witnesses, which may go to the root of the matter and in the facts and circumstances of the case, the testimony of P.W.1- Ram Raj, P.W.2- Shatrohan and P.W.4- Sant Ram is reliable, trustful, acceptable and is having a ring of truth around it and there is no harm in accepting such trustworthy testimony. Even After the meticulous analysis of the evidence of three eye witnesses, namely, P.W.1- Ram Raj, P.W.2- Shatrohan and P.W.4- Sant Ram, we are satisfied that the testimony of these witnesses is consistent through out, reliable and inspire the confidence of this Court. It is therefore proved from the evidence of these eye witnesses that on the day of occurrence at early morning some labourers including PW-2 Satrohan and Mahaveer were cleaning and digging this drain situated adjacent to the land of Hardev. At about 8 A.M. in the morning all accused persons arrived at the site of the drain, all of them except Hardev were carrying lathis, while Hardev was carrying a Kudal. After arriving at the drain accused persons asked the labourers to see them as they have cut the roots of their trees. The labourers immediately departed from the site of drain , however after a short time Ambika accompanied by Shatrohan and Mahaveer came at the site of the drain and started pacifying the accused persons, resulting in hot verbal exchanges. All accused persons thereafter started assaulting Ambika with lathis, whereby Ambika Prasad fell in the paddy field of Kallu and thereafter Ram Kishan and Jagannath dragged Ambika Prasad from his legs and when they were challenged by PW-2 Shatrohan and Chutakan, both were assaulted with Lathi by Ramadhar, Shri Ram, Janki and Babu. However Ambika after being dragged for some distance was placed by accused persons Ram Kishan and Jagannath in a Nali situated on the other side of the drain towards the land of Hardev and while other accused persons were standing towards the west of hardev's field, He (Hardev) gave 4-5 blows of Kudal on the neck of Ambika Prasad causing his instant death and thereafter all accused persons fled away .
Learned counsel for the appellants overwhelmingly submits that the trial court has committed a manifest error in convicting the appellants for the offence under Under Section 302 IPC read with Section 149 of the I.P.C. as there was no evidence that any unlawful assembly was formed by the appellants, object of which was to murder the deceased. According to him even if the story of prosecution is believed the ingredients of formation of unlawful assembly and sharing of its unlawful object are missing and it is evident from the facts and circumstances as well as the evidence on record that there was no unlawful assembly formed with an unlawful object to murder the deceased, therefore the finding of the trial court with regard to it is perverse.
Ld. Counsel for the appellant in support of his argument at first relied on Shashi Kant Vs. State of U.P., (2008)1 ALJ (Noc) 167 Allahabad wherein it is held that members of the unlawful assembly can only be convicted for the act of any member if they know that the offence actually committed by such member was either common object of such assembly or likely to be committed in prosecution of common object.
Ld. Counsel for the appellant also relied on Sikandar Singh and others Vs. State of Bihar, MANU/SC/0462/2010 wherein Hon'ble Supreme Court opined that where a large number of persons are alleged to have participated in the crime and they are sought to be brought to book with the aid of Section 149 IPC, only those accused persons, whose presence was clearly established and an overt act by any one of them was proved, should be convicted by taking into consideration particular fact situation.
Ld. Counsel for the appellant also relied on Mariadasan and others Vs. State of Tamilnadu (1980)3 SCC page 68 wherein it is held , in the facts and circumstances of the case, that no unlawful assembly was formed and the appellants are responsible for their individual acts.
Hon'ble Supreme Court Of India in Chanakya Dhibar (Dead) Vs. State of West Bengal and Ors., MANU/SC/1096/2003 while dwelling on the scope of section 149 IPC held in para 11 and 13 as under :-
"11. The emphasis in Section 149 IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it, a common object may be formed by express agreement after mutual constitution, but that is by no means necessary. It may be formed at any stage by all or a few members or the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly.
13. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that he offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behavior at or before or after the scene of incident. The word 'knew' used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. 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 was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object, but would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikarange Gowda and Ors. v. State of Mysore, MANU/SC/0116/1956 : 1956CriLJ1365 ." (Emphasis Ours) Hon'ble Supreme Court in Roy Fernandes vs State of Goa and Ors. Reported in MANU/SC/0072/2012 while eloborating the scope of section 149 of the penal code held as under :-
"19. In Gajanand and Ors. v. State of Uttar Pradesh MANU/SC/0173/1954 : AIR 1954 SC 695, this Court approved the following passage from the decision of the Patna High Court in Ram Charan Rai v. Emperor MANU/BH/0073/1945 : AIR 1946 Pat 242:
"Under Section 149 the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behavior, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise.
20. This Court then reiterated the legal position as under:
The question is whether such knowledge can be attributed to the Appellants who were themselves not armed with sharp edged weapons. The evidence on this point is completely lacking. The Appellants had only lathis which may possibly account for Injuries 2 and 3 on Sukkhu's left arm and left hand but they cannot be held liable for murder by invoking the aid of Section 149 Indian Penal Code. According to the evidence only two persons were armed with deadly weapons. Both of them were acquitted and Sosa, who is alleged to have had a spear, is absconding. We are not prepared therefore to ascribe any knowledge of the existence of deadly weapons to the Appellants, much less that they would be used in order to cause death.
22. In Shambhu Nath Singh and Ors. v. State of Bihar MANU/SC/0214/1959 : AIR 1960 SC 725, this Court held that members of an unlawful assembly may have a community of object upto a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he shares the community of object. As a consequence, the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly. Decisions of this Court Gangadhar Behera and Ors. v. State of Orissa MANU/SC/0875/2002 : 2002 (8) SCC 381 and Bishna Alias Bhiswadeb Mahato and Ors. v. State of West Bengal MANU/SC/1913/2005 : 2005 (12) SCC 657 similarly explain and reiterate the legal position on the subject." (Emphasis Ours) Supreme Court Of India in Kuldip Yadav and Ors. Vs. State of Bihar,MANU/SC/0390/2011 while commenting on the scope of conviction with the aid of section 149 of penal Code held as under :-
"26. The above provision makes it clear that before convicting accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, essential ingredients of Section 141 IPC must be established.
The above principles have been reiterated in Bhudeo Mandal and Ors. v. State of Bihar MANU/SC/0125/1981 : (1981) 2 SCC 755.
27. In Ranbir Yadav v. State of Bihar MANU/SC/0245/1995 : (1995) 4 SCC 392, this Court highlighted that where there are party factions, there is a tendency to include the innocent with the guilty and it is extremely difficult for the court to guard against such a danger. It was pointed out that the only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on acceptable evidence which in some measure implicates such accused and satisfies the conscience of the court.
28. In Allauddin Mian and Ors. Sharif Mian and Anr. v. State of Bihar MANU/SC/0648/1988 : (1989) 3 SCC 5, this Court held: ...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. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of any one or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149, IPC....
29. It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC.
30. In Rajendra Shantaram Todankar v. State of Maharashtra and Ors. MANU/SC/0002/2003 : (2003) 2 SCC 257 : 2003 SCC (Crl.) 506, this Court has once again 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 behavior 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...." (Emphasis Ours) Hon'ble Supreme Court Of India in Manjit Singh Vs. The State of Punjab, MANU/SC/1195/2019 held as under :-
"14.4. In the case of Subal Ghoral v state of West Bengal, MANU/SC/0296/2013 (supra), this Court, after a survey of leading cases, summed up the principles as follows:
"53. ..............What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a Rule of caution."
We have perused the evidence of the prosecution specially the evidence of three eye witnesses, namely, P.W.1- Ram Raj, P.W. 2- Shatrohan Lal and P.W.4-Sant Ram in the back ground of the above argument advanced by learned counsel for the appellants and have found that this is an admitted case of the prosecution that there was no previous enmity of deceased Ambika Prasad or injured Shatrohan and Chhotakau with accused persons. Ambika appears to be a person who was interested in the digging of the drain only for the purpose of well being of whole village where he was living as there was a complaint of water logging in and around his village and the digging and cleaning of the drain was beneficial for his village, though he was not directly associated in any manner with work of digging of drain . It is also established by the reliable testimony of three eye witnesses produced by the prosecution namely, P.W.1- Ram Raj, P.W.2- Shatrohan and P.W.4- Sant Ram that the incident on the fateful day has happened in three parts:-
(I) The first part of the incident is related to the fact that the drain was being dug from last 2-3 days before the incident and perhaps the roots of some of the trees of Hardev grove were cut in the digging and cleaning of drain. On the fateful day when labourers including Shatrohan, Mahaveer and others started digging the drain accused persons came to the site of drain. All accused persons except Hardev were carrying Lathis with them, while Hardev was carrying a Kudal in his hand and after arriving at the site of drain they scolded labourers that they have cut roots of their trees and they will see them today. Admittedly there was no altercation between the accused persons and the above named labourers as the labourers immediately left the place and went to the village of Ambika. At this juncture the first part of the incident was over.
(II) So far as second part of the incident is concerned, it is evident from the evidence on record that after departure of labourers, namely, Mahaveer and Shatrohan, accused Hardev started cutting roots of his own trees and all other accused persons started putting mud in the drain. It is also established from the evidence on reocrd that at this time deceased Ambika came there alongwith Shatrohan and Mahaveer and there they had some hot words, accused persons chased them and assaulted Ambika Prasad with lathis. In the process Ambika Prasad fell in the paddy field of Kallu. Thereafter accused-appellant Ram Kishan and Jagannath started dragging Ambika Prasad from his legs. At this moment when Ambika Prasad was being dragged by Ram Kishan and Jagannath, injured witnesses Chhotakau and Shatrohan attempted to save Ambika Prasad, on which Shri Ram, Janki, Babu and Ramadhar assaulted them with lathis. Ram Kishan and Jagannath after dragging Ambika Prasad for some distance left him in a Nali. PW4 Sant Ram has also stated in his cross examination that when Ambika fell in the field of kallu he was dragged and was not assaulted thereafter. Though Hardev was there but he did not use Kudal. At this juncture the 2nd part of the incident was also over.
(III) The third stage of the crime, as it is established from the evidence of the prosecution made available on record, starts when Ram Kishan and Jagannath after dragging Ambika Prasad for some distance put him in a Nali and according to P.W.1- Ram Raj after Ambika was put in Nali only Hardev assaulted him while all accused persons were standing there. PW-2 Shatrohan has also stated in his cross examination that when all accused persons were standing towards west of the field of Hardev, Hardev alone assaulted Ambika from Kudal. In his Chief examination this witness has stated that after commanding other accused persons to kill Ambika, Hardev assaulted deceased by giving 3-4 blows of Kudal, however, at that stage, none of the accused person join him in assaulting Ambika Prasad.
The above established factual position as emerges out from the evidence of three eye witnesses clearly proves that when accused persons at first came at the site of the drain, certainly there assembly was to prevent any one from digging the drain and as they were carrying lathis with them, the object of this assembly was to cause bodily harm to any one, whosoever was to come in their way. Though the accused-appellant- Hardev was carrying a Kudal with him but the simplicitor act of carrying a Kudal in his hand will not suggest that the common object of this unlawful assembly was to kill some one, specially deceased Ambika Prasad, as he was not even in the picture till that stage. We arrive at this conclusion due to following reasons:-
(i) The unlawful assembly, when it was first formed, was not having any object of causing murder of someone, much less Ambika Prasad, as is evident from the fact that after reaching at the site of drain, none amongst the accused persons including Hardev made any attempt to hurt any labourer and only scolded them that as they have cut roots of their trees, they will see them today.
(ii) Secondly, as the drain was being dug and accused persons wanted to prevent it from further digging and wanted to fill the drain with mud, Hardev might have carried Kudal as the the drain could only be filled by digging some soil/mud and an implement like Kudal is the most appropriate implement for this purpose. Therefore the purpose of carrying kudal by Hardev was only for digging mud for the purpose of filling the drain and not for the purpose of killing some one. It is also evident by the evidence of PW-4 Sant Ram when he claimed that initially when Ambika Prasad was being assaulted by all the accused persons, Hardev was also there but he did not assault anyone with ''Kudal'and all prosecution witnesses are consistent on this point that none of the labourer working in the drain was assaulted nor even threatened by Hardev by showing Kudal and that Hardev after arriving at the drain started cutting roots of his trees and other accused persons started filling the drain by mud. Therefore the initial purpose of carrying the kudal was for digging the soil and not to assault anyone, it is other thing that subsequently it was used by Hardev to kill Ambika and therefore, at the time of initial formation of unlawful assembly none of the members of this unlawful assembly could infer that the ''Kudal' may be used for committing murder of someone. Hence, committing murder of someone was not the common object or likely object of this unlawful assembly at the time of its formation.
(iii) Thirdly, when after arrival of accused persons at drain, labourers left the site of drain, this unlawful assembly without attaining its object defuses. However, all the accused persons remained there and Hardev, in the heat of passion started cutting roots of his own trees, while all other accused persons started putting mud in the drain in an attempt to fill it. It is to be recalled at this stage that till now the deceased Ambika Prasad had even not emerged in the picture. So there could not be a common object of the unlawful assembly to kill him and this could not either be common object, which may be termed as the object likely to be achieved. It can not be in the contemplation of any of the member of this unlawful assembly that murder of someone or to say of Ambika may be committed or is likely to be committed.
It is also evident and established from the evidence on record and also an admitted case of the prosecution that the deceased and accused persons were not having any previous enmity of any kind. Therefore what transpires from the evidence on record is that at the stage of arriving of accused persons at the site of drain and till the departure of labourers, the object of this unlawful assembly was only to prevent the labourers from further digging the drain and also to cause them hurt or at the most the offence of causing grievous hurt may likely be committed. In the facts and circumstances of the case, the object of this assembly was never to murder some one, specially Ambika Prasad, who had not even emerged at the scene, till then.
Perusal of the evidence on record would further reveal that when Ambika Prasad arrived at the site of drain along with Mahaveer and Shatrohan and there were some hot exchanges, the initial unlawful object of the assembly, which was temporarily suspended for some time, revived and in order to achieve this object of causing hurt of any kind, all accused persons who were members of this unlawful assembly, assaulted Ambika Prasad with Lathis and also chased him. Ambika Prasad in the process of being assaulted, fell down in the paddy field of Kallu. It is further established and proved on record that the accused Ram Kishan and Jagannath dragged Ambika Prasad from his legs and at this time injured Shatrohan and Chhotakau tried to stop them but they were also assaulted by Ramadhar, Shri Ram, Janki and Babu with Lathis. Thereafter Ambika Prasad was placed in a Nali, across the drain. It was at this time when all accused persons were standing silently towards the west side of the field of Hardev and incident was over, accused Hardev, after commanding others to murder Ambika, gave 3-4 blows of Kudal on his head, neck and chest, whereby Ambika Prasad instantly died. It is other thing that none of the accused persons, in response to the command given by Hardev, joined him in assaulting Ambika. This clearly shows that other accused persons conspicuously disassociated themselves from the individual and isolated intention of Hardev to kill Ambika. This instant and isolated act of accused-appellant Hardev of assaulting Ambika Prasad with Kudal, when the occurrence was over, was certainly not the common or likely object of the unlawful assembly, as it is also apparent that accused-appellant, Hardev intentionally chose those parts of the body of the deceased Ambika Prasad for assault, which suggests only one inference that he assaulted the deceased with the intention of causing his death.
The initial common or likely object of the unlawful assembly was evidently not to cause the death of any person is also evident from the proved facts as narrated by the three eye witnesses, P.W.1- Ram Raj, P.W.2- Shatrohan and P.W.4- Sant Ram that all other accused persons except Hardev who participated in the assault and were carrying lathis with them, did not target any vital part of the body of the deceased or of the body of the injured witnesses, namely, Shatrohan and Chhotakan. Injuries sustained by Chhotakau and Shatrohan are simple 2-3 injuries on the non vital parts of the body. So far as the injuries found on the person of the deceased is concerned, injuries no. 6,7,10 and 12, which are contusions, are stated to have been caused by Lathi(stick). These injuries have been found on Right Arm, right side of chest and abdomen, on left fore arm and on back, respectively. None of these injuries has been found to be fatal and only injuries sustained from Kudal were found to be the reason of his death. So far as the accused Ram Kishan and Jagannath are concerned they only dragged the deceased - Ambika Prasad from his legs and thereafter put him in a Nali. The role of surviving appellants no. 3,5 and 6 namely Janaki, Babu and Ram Adhar is of initially assaulting the deceased with lathi and also to two injured persons i.e. shatrohan and Chuttakan. It is also established, and all three eye witnesses are consistent on this point, that when deceased was put in a Nali, thereafter accused Hardev said that he will not leave Ambika Prasad and commanded others to kill him but thereafter no other accused, though present there, assaulted Ambika and it was only and only Hardev, who assaulted Ambika Prasad with a Kudal which he was carrying in his hands. Therefore, it is clear from the established facts and circumstances of the case that accused-appellant Hardev certainly exceeded the common object of the unlawful assembly which was only to cause hurt or likely to cause grievous hurt, in order to restrain any one from digging the drain. Hence keeping in view the proved facts and circumstances of the case, other accused persons could not infer or contemplate that any offence of the like of murder may be committed by the accused- appellant- Hardev. Therefore other accused persons could not be held liable vicariously for the independent and isolated act of appellant Hardev, which was neither committed in furtherance of original common object of the unlawful assembly nor it was a possible or likely object which may come in the contemplation of any of the members of unlawful assembly, either at the time of initial formation of the unlawful assembly or even during the course of the incident.
Hon'ble Supreme Court in Bhimrao and Ors. vs. State of Maharashtra, MANU/SC/0081/2003 while dealing with a similar matter of exceeding common object of the assembly by some members held as under :-
"The High Court after considering the material on record came to specific conclusion that the common object of unlawful assembly when it proceeded towards the house of Prabhakar was only to assault the said Prabhakar. It also gave a finding that those accused who entered the house of Prabhakar had developed a different common object after entering the house of Prabhakar and with that intention the members of the said group had assaulted Prabhakar, while the members of the original unlawful assembly who did not enter the house and who are now appellants before us did not share the subsequent common object of the group which attacked Prabhakar. It is in this context of the finding of the High Court, the learned counsel for the appellants had contended that if the original common object of the unlawful assembly was only to assault Prabhakar there was no material before the High Court to have attributed the common object of causing grievous hurt to Prabhakar to these appellants. We find substantial force in the contention of the learned counsel appearing for the appellants. Having perused the material on record, we are inclined to hold that the High Court having rightly given a specific finding that the original common object of the assembly was only to assault deceased Prabhakar and also having given a finding that the said common object got changed only in regard to those members of the unlawful assembly who entered the house, we are unable to accept the later finding of the High Court that the appellants herein though they did not share the later common object of those accused who entered the house, will still be liable for conviction under Section 326 read with 149 IPC. In the absence of any material to the contrary, it should be presumed that those members of the original unlawful assembly who only shared the common object of assaulting deceased Prabhakar cannot be attributed with the subsequent change in the common object of some of the members of the assembly who entered the house of Prabhakar and caused grievous injuries to him. So far as the present appellants are concerned, who stood outside the house of the deceased and who could not have known what actually transpired inside the house, the act of those members of the original unlawful assembly who entered the house, cannot be attributed, hence, as contended by the learned counsel for the appellants at the most these appellants will be liable to be punished for sharing the original common object which is only to assault the deceased, therefore, they can be held guilty of an offence punishable under Section 352 read with Section 149 only."
(Emphasis Ours) Therefore in the peculiar facts and circumstances of the case, we are of the considered opinion that the appellants before us deserve to be convicted with regard to the common object of the unlawful assembly of causing grievous hurt to which they concurred i.e. under Section 326 read with Section 149 of the I.P.C. instead of Section 302 read with Section 149 of the IPC, as such the appeal of the appellants is partly allowed.
We accordingly convict appellant no.3- Janki, appellant no.5- Babu and appellant no. 6- Ramadhar for committing the offence under section 326 read with 149 of the IPC instead of offence under section 302 read with 149 of the IPC. In the facts and circumstances of the case rigorous imprisonment for five years would meet the ends of justice. Therefore we sentence appellant no.3- Janki, appellant no.5- Babu and appellant no. 6- Ramadhar for committing the offence under section 326 read with 149 of the IPC for rigorous imprisonment of five years and with fine of Rs. 20000/- each, in default of which they will have to further undergo rigorous imprisonment for three months. Eighty percent of the fine so deposited shall be paid to the legal heirs of the deceased Ambika. The judgment of the trial Court is affirmed so far as conviction and sentencing of above appellants in other penal sections is concerned. The impugned judgment and order of the trial Court is modified accordingly.
The appellants No. 3- Janki, No.5- Babu and No.6- Ramadhar are reported to be in jail, they will serve out the sentence as modified by this Court.
So far as appeal pertaining to appellant no.1 Ram Kishan, appellant no.2 Jagannath, appellant no.4- Shri Ram and appellant no.7- Hardev is concerned the same has already been abated, vide order dated 9.8.2019 of this Court, on account of their death during pendency of this appeal.
The record of the subordinate Court be transmitted to the Trial Court along with a copy of this judgment for compliance, at the earliest.
(Mohd. Faiz Alam Khan,J.) (Devendra Kumar Upadhyaya,J.)
Order Date :- 22/10/2019
Muk