Allahabad High Court
Ram Charan And Others vs State Of U.P. on 23 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 874
Bench: Pankaj Mithal, Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED In Chamber Case :- CRIMINAL APPEAL No. - 1164 of 2000 Appellant :- Ram Charan And Others Respondent :- State of U.P. Counsel for Appellant :- Ramesh Sinha, Akhilesh Singh, Shishir Tandon, Shivam Yadav Counsel for Respondent :- Govt. Advocate With Case:- CRIMINAL APPEAL NO. 1503 of 2000 Appellant :- Achchhey Lal And Other Respondent :- State of U.P. Counsel for Appellant :- Ramesh Sinha,Akhilesh Singh,Shishir Tandon,Shivam Yadav Counsel for Respondent :- Govt. Advocate Hon'ble Pankaj Mithal, J.
Hon'ble Pradeep Kumar Srivastava, J.
(Delivered by Hon'ble Pradeep Kumar Srivastava, J.)
1. Heard Shri Dileep Kumar, learned Senior Advocate for the accused-appellant, Sri Ajit Ray, learned AGA for the State and Shri G.S. Chauhan, learned counsel for the complainant.
2. These two criminal appeals have been filed by the appellants namely Ram Charan, Ram Singh, Amar Singh, Siyaram, Achchhey Lal and Mahendra against the impugned judgment and order dated 17.5.2000 passed by Sessions Judge, Jhansi in Sessions Trial No.287 of 1996, under Sections 147, 148, 149, 302, 323, 504 IPC, Police Station Todi Fatehpur, District Jhansi, by which the accused appellants have been convicted and sentenced for life imprisonment for the offence under Section 302/149 IPC, for two years RI for the offence under Section 148 IPC to accused-appellants namely Ram Charan, Achchhey Lal, Mahendra and Siyaram, for one year imprisonment to accused-appellants namely Ram Singh and Amar Singh for the offence under Section 147 IPC and six months RI under Section 323/149 IPC to all the accused-appellants. The learned trial court has directed that all the sentences shall run concurrently.
3. Brief facts of this case is that on 31.3.1996, at about 11:00 AM, a criminal incident took place in village Semri, Police Station Todi Fatehpur about which the first information report was lodged on same day at 13:05 PM by Vijay Singh by giving written report to the police. Accordingly, at the time of incident, the informant Vijay Singh, his father Bhairav Yadav, his wife Smt. Sudama Devi, his brother Sripat Smt. Sumitra (wife of Sripat) and Badam Singh of the village had gone to load the log of wheat on their field. His mother was grazing the buffaloes on the mend (divider) of wheat field of the informant. On the adjoining field of accused Achhey Lal of his village, accused Achchhey Lal, Ram Charan, Ram Singh, Amar Singh, Siyaram, Sahab Singh and accused Mahendra Singh were cutting crops. Seeing the mother of the informant grazing the buffaloes, the accused persons with lathi (bamboo stick), farsa (spade) and axe in their hands came together on the mend of the field and started abusing saying that how dare she had left the animals to graze in their field, whereupon the parents of the informant said that half of the mend belonged to them and, therefore, their buffaloes would continue grazing. Because of this, all the accused cried out to kill them and not to let them alive and thereupon accused Achchhey Lal hit his father by his axe on his head who cried and fell down. The brother of the informant namely Sripat reached near the mend and he tried to stop them, whereupon accused Ramcharan and Mahendra Singh hit him by their farsa on his head and he also fell down and died. The accused Sahab Singh assaulted his wife by lathi and she sustained injuries on her back. The complainant side challenged them and persons present in adjoining filed including Bhagwan Das, who was also grazing his animals, came and saw the incident. The father of the informant was seriously injured and when he was being taken to police station on a bullock-cart, on the bank of Patrai river, he also died. The bullock-cart and dead body of the father was left there with Badam Singh. The dead body of his brother was lying in the field. On this written report the offence was registered against the accused persons under Sections 147, 148, 149, 302, 323, 504 IPC and chik FIR was prepared.
4. The incident was seen by the witnesses Badam Singh and Bhagwan Das. Injured Smt. Sudama Devi was sent for medical examination. The case was investigated by police, statements of the witnesses were recorded, inquest report of both the dead bodies was prepared and, along with relevant papers, the dead body was sent for post-mortem. From the place of occurrence, blood stained earth and plain earth was picked up and memo was prepared from the place where deceased Bhairo was assaulted and also from the place where deceased Sripat was assaulted. A search was conducted of the house of the accused persons in order to recover the weapon used in the commission of the offence. Subsequently, accused Achchey Lal, Mahendra and Ram Charan surrendered and they were taken on police remand and in their statements they confessed their guilt and also stated that the axe and farsa by which the crime was committed, they have concealed in the hedges of Simari forest. On the pointing of the accused persons, the axe and farsa were recovered and three recovery memo were prepared separately for each farsa and axe. The axe and farsa were stained by blood and all the recovered items including the clothes of the deceased persons were sent for forensic examination.
5. The Investigating Officer prepared the site map of the place of occurrence and also prepared site map of the place from where the weapon of assault, axe and farsa, were recovered, After completing the investigation, charge sheet was submitted by the Investigating Officer against seven accused persons. The case of accused Saheb Singh was separated, who was sent to Juvenile Justice Board as he was found to be juvenile.
6. The accused persons pleaded not guilty to the charges framed against them under section 147,148,302/149 and 323/149 IPC by the Court and claimed trial.
7. Six witnesses were examined in support of the prosecution case. PW-1 Dr. J.K. Gupta has proved the post-mortem reports as Ext. Ka-1 and Ext. Ka-2. PW-2 Head Constable Sobaran Singh has proved chik FIR Ext. Ka-3, GD report no.14 Ext. Ka-4, GD no.15, Ext. Ka-5, injury letter of Smt. Sudama Devi Ext. Ka-6, GD Report no.26 Ext. Ka-7, GD No.10 Ext. Ka-8, GD report Ext. K-9 and G.D. No. 9 Ext. Ka-10. PW-3 Vijay Singh (eye-witness and informant) has proved written report Ext. Ka-11 and the cloths of both the deceased persons as Material Ext.-1 to Ext.-6. PW-4 Badam Singh is eye-witness and has also proved inquest Ext. Ka-12. PW-5 Sudama Devi is eye-witness. PW-6 Premlal, SO has investigated the case and has proved injury letter of Sudama Devi Ext. Ka-13, Ext. Ka-14 inquest report Ext. Ka-12, Form No.13, photo of dead body, letter to CMO was also prepared by him Ext. Ka-15 to Ext. Ka-17, inquest report of Sripat Ext. Ka-18 and Form No.13, photo dead body, letter to CMO Ext. Ka-19 to Ext. Ka-21, site map of place of occurrence Ext. Ka-22, memo of blood stained and plain earth Ext. Ka-23 and Ext. Ka-24 blood stained earth and plain earth Material Ext.-7 to Ext.-10, search memo Ext. Ka-25, memo of blood stained axe Ext. Ka-26, recovered axe Material Ext. 11, memo of blood stained farsa Ext. Ka-27, recovered farsa Material Ext.-12, memo of another blood stained farsa Ext. Ka-28, recovered farsa Material Ex.-13, site plan from where the weapons were recovered Ext. Ka-29 to Ext. Ka-3i, GD report Ext. Ka-9 and charge sheet Ext. Ka-32. The statements of the accused persons were recorded under Section 313 Cr.P.C. who did not give any evidence in defence. After hearing the prosecution and defence, learned trial court has passed impugned judgement and has sentenced the accused persons.
8. Aggrieved by the impugned judgement, these two appeals have been filed challenging the same to be illegal on the ground that the conviction and sentence is against the weight of evidence on record, is contrary to law and the sentence awarded is too severe.
9. The learned Senior Advocate Shri Dilip Kumar for the accused-appellant has submitted that the accused persons were falsely implicated. The two deceased persons have been found to have sustained one injury each and seven accused persons have been implicated and all the six persons tried by the learned trial court have been convicted for the offence of murder. Prosecution has examined only related and highly interested witnesses on whom no reliance should have been placed. Not only that the presence of eyewitnesses is doubtful, there is contradiction, improvement and discrepancy in their statement.
10. On the other hand, the learned AGA and the learned counsel of the complainant have submitted that on the basis of evidence on record and finding that the offence of murder was committed by the unlawful assembly constituted by the accused persons, the learned trial court has rightly convicted and sentenced the accused persons.
11. PW-1 Dr. J.K. Gupta conducted post-mortem of both the dead bodies. He has stated that on 1.4.1996 he was posted in CHC, Mau Ranipur as medical officer. The dead body of deceased Bhairo, aged about 65 years, was brought by constable Mahadev Prasad and home-guard Ram Prasad of Police Station Todi Fatehpur in sealed condition along with relevant papers at 11:45 AM and he conducted post-mortem at about 12:00 PM. The deceased was of average height. Rigor mortis was present in the body, eyes were closed and it was greenish on the right side of stomach. Following anti-mortem injuries were found-
(i) Incised wound 10 x 1-1/2 x brain deep over right parietal region of scalp situated antro posteriorly, 8 cm above from right eye brow and 10 cm above from right ear pinna. Margin clean cut. underlying bones found cut. Brain was coming out from head.
Internal Examination Right parietal bone was found broken from front and back. Frontal and occipital bones were fractured. The brain membrane below the wound was torn. The brain was torn on the right side. The heart was vacant and 100 ml semi digested food was found in the stomach. In the large and small intestine, faecal matters found. The liver, spleen and kidney were found congested. According to the doctor, the deceased must have died due to coma because of anti-mortem head injuries and must have died one day before. The injury was possible by axe and it was possible that injury must have been caused on 31.3.1996 at about 11:00 AM. The injury was sufficient to caused death.
12. PW-1 has stated that on the same day, at about 1:30 PM, the dead body of deceased Sripat was also brought by constable Ganga Prasad Shukla in sealed condition and post-mortem was conducted by him. In the external examination, it was found that the deceased was of average height, mouth closed, right eye opened whereas left eye was closed. The rigor-mortis was present in the whole body. In the lower side of stomach, it was greenish; semen was coming out. Following ante-mortem injury was found-
(I) One incised wound 18cm x 2cm x brain deep on the left side of scalp starting from the left side of nose root from front to back and 1 cm outside from the middle line, 13 cm above from left ear, brain was coming out from the head, clotted blood around the injury present; the left eye had gone black.
Internal Examination The parietal left bone and left side of frontal bone cut.; the brain membrane cut; left brain membrane was torn; in both large and small intestine, faecal matters found; the heart was empty; stomach was empty. Doctor has stated that the deceased must have died due to shock because of ante-mortem injury and he must have died one day before. He has also stated that the injury was possible to have been caused on 31.3.1996 at about 11:00 AM. The instant death after sustaining injury was possible.
13. PW-2 Head Constable Sobaran Singh has stated that on 31.3.1996 he was posted as head Muharir in Police Station Todi Fatehpur. The informant Vijay Singh came in the afternoon at 1:05 PM with his injured wife and gave the written report about the incident on the basis of which the offence was registered and chik FIR was prepared, an entry thereof was made in GD of the same day, a carbon copy thereof is on record. He has further stated that injured Smt. Sudama Devi was sent for medical with injury letter written by constable Ravindra Singh before him. A special report was sent at 2:15 PM and entry was made in GD. The witness has stated that on 1.4.1996, constable Ganga Prasad, constable Mahadev and home guard Ram Prasad and Sultan Singh returned with two bundles of clothes with papers and two envelops containing post-mortem report of Bhairo and Sripat and entry in GD to that effect was made on the same day. The witness has also stated that SO Ram Lal, on 2.4.1996, when returned to police station, gave four containers of blood stained and plain earth relating to this offence about which an entry in the GD was made. On 12.4.1996, at 12:20 PM, SO Premlal came to the police station along with three accused persons Achchey Lal, Ram Charan and Mahendra Singh with one axe and two farsa which were sealed and entry thereof was made in GD on the same day. The witness has stated that the recovered articles and clothes of deceased persons were sent to forensic laboratory on 25.4.1996 for chemical examination and entry to that effect was made in GD.
14. PW-3 Vijay Singh (informant) has stated that his ancestral was Natthu and had two sons namely Paragi and Vrishbhan. Paragi had three sons, Bhairo, Pyarelal and Gulab. Deceased Sripat was his real brother. Accused Achchey Lal, Ram Charan and Ram Singh are sons of Vrishbhan. Accused Mahendra is son of Ram Singh and accused Amar Singh, Sahab Singh and Siya Ram are sons of Ram Charan. The witness has stated that it was two years eight months before when he had gone to his field situated in Semri Ahiran for loading the wheat with his wife Smt. Sudama Devi, his brother Sripat, his Bhabhi Saumitra Devi, his mother Hirabai and his father Bhairo. His father was already there. Badam Singh of the village also went with them. They were collecting and loading the wheat on bullock-cart. His mother Hirabai was grazing buffaloes. The accused persons Acchey Lal, Ram Charan, Ram Singh, Mahendra Singh, Amar Singh, Siyaram and Sahab Singh were cutting their wheat crops in their field in their adjoining field. The field of informant and accused was divided by a mend where his mother was grazing buffaloes. The accused Achchey Lal used abusive language against his mother and said why she has left the buffaloes at their mend, his father and mother said that half of the mend belonged to them and, therefore, buffaloes would graze there. It was 11:00 AM at that time and accused Achchey Lal, Ram Singh, Siyaram came with axe and accused Ram Charan and Mahendra came with farsa and accused Amar Singh and Sahab Singh came with lathi and said kill them and not let them alive, whereupon accused Achchey Lal hit on the head of his father by axe who fell on the ground and when his brother Sripat ran towards his father, accused Ram Charan hit him by farsa, which missed. Accused Mahendra, thereafter, hit by farsa on the head of Sripat who fell on the ground and died. The witness has stated that he sent his wife Sudama to save them. She was hit by accused Sahab Singh by lathi. Badam Singh was present there and Bhagwan Das of the village was also present who was grazing his animals. They ran towards them whereupon the accused persons fled away towards forest. The witness has further stated that the blood of Sripat fell on the ground and on his clothes, Similarly blood also poured on the clothes of his father. The clothes of both the deceased persons have been proved by the witness as material Ext.-1 to Ext.-6. He, his wife and Badam Singh when going to police station on bullock-cart carrying his injured father, his father died on the way on the bank of Pathrai river. He got a written report scribed by Badam Singh and after being read over to him, he put his thumb impression on the report and he and his wife leaving the dead body of father there, went to police station and gave the written report to the police. On being asked by the Police Inspector, he told him that the dead body of his father was lying on the bank of Pathrai river. The Police Inspector went with him there.
15. PW-4 Badam Singh is the eye witness and scriber of the written report. He has stated that he was on the field of Bhairo and Sripat three years before when the incident took place. At that time, the crop was being loaded on the bullock-cart. He was taken to the field by Sripat. It was 10-11 AM Vijay Singh, Smt. Sudama, Smt. Sumitra, mother of Sripat, Sripat and his father Bhairo were loading the wheat and mother of Sripat was grazing the buffaloes on the mend of the field of Bhairo and accused Achchey Lal. He knew accused Achchey Lal, Ram Charan, Ram Singh, Mahendra Singh and Amar Singh (present in Court). The witness has stated that at the time of incident, the accused persons were cutting wheat crops. Using abusive language, they came to the mother of Vijay Singh and said to take away the buffaloes. Accused Achchey Lal and Siyaram were carrying axe whereas accused Mahendra and Ram Charan were carrying farsa and accused Sahab Singh and Amar were carrying lathi in their hand. When this was going on, Bhairo also reached on the mend. Accused Achchey Lal hit Bhairo by his axe on his head who got injured and Ram Charan hit Sripat by pharsa, which missed. Thereafter, accused Mahendra Singh hit Sripat by his farsa on the head of Sripat who died on spot. Accused Sahab Singh hit Sudama by his lathi. Thereafter, accused persons ran away from there. Bhairo was alive and when he was being taken by Vijay Singh and Sudama on bullock-cart to police station Todi Fatehpur, on the bank of Pathrai river, he also died. The witness has stated that Vijay Singh dictated the written report to him and when the report was written he put his thumb impression on it. He stayed there and Vijay Singh and his wife Sudama went to police station and Vijay Singh and Police Inspector came there and the police inspector prepared inquest report on which he also signed, which is Ext. K-12.
16. PW-5 Sudama Devi has stated that the incident took place about three years and three months before at about 11:00 AM when she was collecting the wheat in her field and the same was being loaded on bullock-cart by her, Sripat, Vijay Singh, Sumitra, Bhairo and Badam Singh. Her mother-in-law Hirabai was grazing buffaloes. Accused persons Achchey Lal, Ram Charan, Ram Singh, Sahab Singh, Mahendra Singh and Amar Singh were cutting the crops in their adjoining field. Accused Achchey Lal and Ram Singh came with axe and accused Ram Charan and Mahendra came with pharsa whereas accused Sahab Singh and Amar Singh came with lathi and accused Achchey Lal said to her mother-in-law why she was grazing buffaloes on their mend and why she had left their animals in their field. Her mother-in-law, father-in-law and her husband said that half of the mend belonged to them and her buffaloes would graze there. All the accused persons cried to kill them and not to spare them alive. Accused Achchey Lal hit her father-in-law Bhairao by his axe on the head and he fell on the ground and his elder brother-in-law Sripat when checked him, accused Ram Charan hit by farsa on him but Sripat escaped. Thereafter, accused Mahendra Singh hit by his farsa and caused injury on his head who fell down and died on spot. She has stated that when she reached there, accused Sahab Singh also hit her by lathi and she sustained injury on her back for which she was medically examined.
17. PW-6 SO Premlal has stated that on 31.3.1996 he was posted at police station Todi Fatehpur and in his presence Crime No. 45 of 1996 was registered. He obtained a copy of Chik FIR and GD and copied the same in case diary. He took the statement of head constable Sobaran Singh and informant Vijay Singh. Smt. Sudama Devi was sent with a constable for medical treatment to hospital with injury letter. He went to the bank of Pathrai river with force where the dead body of Bhairo was lying. The inquest witnesses were appointed and inquest report was prepared. The other papers such as Form No.13, photo of dead body, letter to CMO were also prepared by him. The dead body was sealed on spot and was delivered to constable Mahadev and home guard Ram Prasad for post-mortem. Thereafter, he came to village Semri on the field of informant where the dead body of Sripat was lying on the ground. The inquest report and other papers were prepared. The witness has further stated that he inspected the place of occurrence on the identification of the informant and witnesses and prepared site map. He picked up the blood stained and plain earth from the place of occurrence and prepared the memo thereof in the presence of the witnesses. He has also stated that in respect of deceased Bhairo, the blood stained and plain earth was separately sealed in presence of witnesses and memo was prepared. He recorded the statement of the witnesses of inquest report, the witness of memo and eye witness Badam Singh and Bhagwan Das and indulged in search of accused persons in their house. Subsequently, with the permission of the Court, on 6.4.1996, he recorded the statement of the accused persons. Accused Achchey Lal, Ram Charan and Mahendra confessed and stated that they could get recovered the weapons used for murder. Therefore, they were taken on police custody remand and before the witnesses on 12.4.1996 at 8:00 AM in the morning, on their pointing, from the hedges of Semri forest, the blood stained axe was recovered and was sealed and memo was prepared. On the same day, at 9:00 AM, on the pointing of accused Ram Charan, in the presence of witnesses, the blood stained farsa used for causing death was recovered and memo was prepared. On the same day at 11:00 AM, on the pointing of accused Mahendra, before the witnesses, another blood stained farsa was recovered from the hedges about which the memo was prepared. He has further stated that he prepared the site map from where the weapons were recovered. Thereafter, on 19.6.1999, he recorded the statement of Smt. Sudama. He deposited the weapons used in murder and the accused persons in the police station and entry in the GD was made. The weapons were duly sealed. He has further stated that the recovered articles were sent to Forensic Science Laboratory for medical examination on 26.4.1996. He filed charge sheet on 20.4.1996.
18. The learned Senior Advocate for the accused-appellant has submitted that the FIR has been ante time and it was lodged after legal advice and consultation with the police as in the facts and circumstances of the case, it was not possible to lodge FIR at the time it has been shown to be lodged. In fact, the deceased persons were sleeping on their field in the night and were killed by some unknown persons about which the informant side could know only on the next day. The discharge of semen by Sripat at the time of post-mortem also indicates this fact. In order to falsely implicate the accused persons, a false story was created and FIR was lodged.
19. We find that the incident took place on 31.3.1996 at about 11 AM and FIR has been lodged on the same day at about 13.05 PM. The distance of police station from the place of occurrence is about 7 km. In his cross-examination, the informant has stated that at about 12 in the noon, he, his wife and witness Badam Singh with injured Bhairo started for police station and by the time, they reached to Pathrai river, Bhairo died. Then, PW-4 Badam Singh wrote the written report on the dictation of informant on a plain paper which was brought by the informant from a nearby shop situated at the bus stand and thereafter, he brought pad and put thumb impression. Leaving Badam Singh there with the dead body, the informant and his wife Sudama went to the police to lodge FIR, which was just 1 km ahead from that place. As such, it cannot be said that it was not possible to reach the Police Station and lodge the report. It has been submitted that after chick FIR being prepared, it was necessary for the police to get the thumb impression of the informant which was not taken. Since the FIR has been registered on the basis of written report and the same has been copied by the chick writer, this omission is insignificant and meaningless. PW-2 HCP Sobaran Singh has stated that the informant with his wife had come to lodge FIR on 31.3.1996 at 1.05 PM and gave a written report on the basis of which he registered offence and prepared chick in his handwriting and signature and made an entry thereof in the GD. He has also stated that a special report was sent on the same day at about 2.15 PM through CP Manfool Singh and the entry thereof was made in the GD. As such, we do not find any delay in lodging FIR nor there is any reason to accept the argument of defence that the FIR was ante time.
20. It has been pointed out that certain facts which have been stated by informant in his statement such as, the assault of accused got missed; deceased Bhairo met on the way etc are not mentioned in the FIR. we do not find it at all necessary that all the facts are required to be mentioned in the FIR. The purpose of FIR is to give information about commission of offence and it is not necessary to give every minute detail. In Jarnail Singh v State of Punjab, 2009 (6) Supreme 526, Bhagwan Jagannath Markad v State of Maharashtra, (2016) 10 SCC 537 and Ramji Singh v State of UP, 2019 (4) Crimes 585 (SC), it has been held that the FIR is not the encyclopedia of all the facts relating to crime. The only requirement is that at the time of lodging FIR, the informant should state all those facts which normally strike to mind and help in assessing the gravity of the crime or identity of the culprit briefly. In our view, a detail description and sequence of incident constituting the offence is not at all required to be mentioned in the FIR. Since the chick FIR was scribed soon after the receipt of the written statement, therefore, neither the time mentioned nor the nature of improvement indicated above is a substantive improvement with deliberation in order to add falsity. Moreover, the alleged improvement does not cause any adverse impact on the defence and as such, in view of the law laid down in Golla Pullanna Vs. State of AP, AIR 1996 SC 2727, it cannot be given any importance.
21. The inquest report of the dead body of Bhairo was prepared on 31.3.1996 by SO Prem Lal who reached to Patharai river at 2.15 PM and completed inquest at 3.45 PM by appointing five witnesses as panch namely, Badama Singh, Raghuveer Singh, Lalloo, Shobha Ram and Veer Singh. The dead body was lying on bullock-cart and Badam Singh, some people of the village of deceased and of around were present there. The dead body was inspected. The deceased was of average hight, slim and aged about 65 years. On the right side of head, blood clotted incised wound was found. In the opinion of witnesses and SO, the death must have occurred because of head injury. The officer prepared other papers necessary for sending the dead body for post-mortem, sealed the dead body and sent for post-mortem.
22. On the same day, at 4.15 PM, SO Prem Lal reached to the field where the incident took place and conducted inquest of dead body of Sripat which was completed at 5.45 and for which witnesses as panch were appointed namely, Ramswaroop, Lala Ram, Raghuveer Singh, Naipal Singh and Vijay Singh (informant & eyewitness). The dead body was lying on the place of occurrence. Family members and people of locality were present. The deceased was of average hight and strong built and of about 35 years in age. On inspection, a contusion on the left eye and blood clotted incised wound from the root of nose to the mid of scalp was found and the SO and the witnesses were of the view that death was resulted because of the head injury. The dead body was sealed, necessary papers were prepared and dead body was sent for post-mortem.
23. The submission of the learned counsel for the accused-appellants is that on the inquest report of Bhairo, there is over writing on the first page on '15.45 PM' and it can be easily read that earlier it was 14.45 PM and similarly 30.3.1996 has been over written as 31.3.1996. It shows that at the time of inquest, FIR was not in existence as it was not possible for police to reach at the place within 30 minutes from the time of FIR as SO Premlal has himself stated that it took 10 to 15 minutes in copying FIR and making entry in GD and that much of time was also consumed in taking statement of informant and head constable. It has been also pointed out that in none of the inquest report, weapon used in the commission of the offence has been mentioned for the reason that it was not known at that time what weapon was used. It also shows that FIR was not in existence till then.
24. On both the points PW-6 SO Prem Lal has been put question during cross-examination and he has given convincing reply. He has stated that it was a writing error and the same was corrected by him. He, however, could not reply to the question why he did not put initial after correction. But, from the perusal of the inquest report of Bhairo, and considering that the completion of inquest on the first page has been written to be 15.45 PM and there is no over writing on it, we find that the said over writing is simply a correction and on that basis, it is too imaginary to say that the FIR was not in existence. So far as the next limb of argument is concerned, it is settled law that the purpose of inquest is not to incorporate the minute details about the weapons used or other details. The purpose of preparing an inquest report is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating in what manner, or by what weapon or instrument, if any, such wounds appear to have been inflicted. In other words, for the purpose of holding the inquest it is neither necessary nor obligatory on the part of the Investigating Officer to investigate into or ascertain who were the persons responsible for the death.
25. In George v State of Kerala, AIR 1998 SC 1376 2007, referring the judgement in Podda Narayana v State of AP, AIR 1975 SC 1252, the Supreme Court held that the object of inquest proceedings is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. The question regarding the details how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings. Such omissions in the inquest report are not sufficient to put the prosecution out of Court.
26. Similarly, in Radha Mohan Singh alias Lal Saheb v State of UP, 2006 (54) ACC 862 (SC), it has been held that the investigation for the purpose of inquest is limited in scope and is confined to ascertainment of apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by animal, and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. Details of overt acts need not be recorded in inquest report. Question regarding details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who were the witnesses of the assault is foreign to the ambit and scope of proceedings u/s 174 CrPC. There is no requirement in law to mention details of FIR, names of accused or the names of eye-witnesses or the gist of their statements in inquest report, nor is the said report required to be signed by any eye witness.
27. Further, in Brahma Swaroop v State of UP, AIR 2011 SC 280, the Court has reiterated that inquest report is not substantive evidence. But it may be utilized for contradicting witnesses of inquest. Any omission to mention crime number, names of accused penal provisions under which offences have been committed are not fatal to prosecution case. Such omissions do not lead to inference that FIR is ante-timed and evidence of eyewitnesses cannot be discarded if their names do not figure in inquest report. The whole purpose of preparing an inquest report is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the diseased and stating as in what manner or by what weapon or instrument such wounds appear to have been inflicted. For the purpose of holding the inquest it is neither necessary nor obligatory on the part of the IO to investigate into or ascertain who were the persons responsible for the death. The object is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and if so what its apparent cause was. The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the inquest report. Omissions in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding inquest is to report regarding the apparent cause of death whether it is suicidal, homicidal or accidental. It is therefore not necessary to enter all the details of the overt acts in the inquest report. Evidence of eyewitnesses cannot be discarded if their names do not figure in the inquest report. In the case in hand, in both the inquest reports, we find that the inquest proceeding has been drawn before 5 witnesses and injuries found on the dead bodies have been precisely mentioned and it has been also mentioned that death of deceased persons is homicidal due to ante-mortem injury. It has been also mentioned where the dead bodies were found. The corpus was sealed separately, handed over to the police personnels along with necessary letters and papers for post-mortem. We find that non-mentioning of weapon used for the commission of offence is no such omission on the basis of which the inquest report may become tainted and can be discarded and it can be concluded that the FIR was not in existence.
28. It has been also submitted that the fact of scribing the FIR by Badam Singh on the dictation of Vijay Singh informant was neither necessary nor probable in the circumstance that Badam Singh himself was the eye witness of the incident who could scribe the report by himself. There was no need to scribe the FIR on the dictation of Vijay Singh informant. It has been further pointed out that the written report on the basis of which the FIR was registered, has no sign of the script paper being folded and it goes to show that the FIR was an ante time document. The thumb impression of the informant is in different ink and according to his statement, he went to the bus stand and got the ink pad and put his thumb impression on the script, which was later on handed over to the police. This further rules out his presence at the Police Station to lodge FIR and he is not wholly reliable witnesses. All these reasons advanced by the learned counsel are just speculations. The informant is admittedly an illiterate person and with the help of Badam Singh he got the written report prepared and because he had to lodge FIR as his father and brother died in the incident, he ensured that the same should be scribed by Badam Singh who happened to be semi-literate. It is most common that FIR is lodged by those who are worst effected by crime. The informant was fully acquainted with all the accused persons and he was present there watching the whole sequence of crime and there is nothing unusual if the written report was scribed by Badam Singh on his dictation. Regarding no sign of fold on the paper on which written report was scribed, the witness has explained that the paper was not tightly folded. That the ink of report and signature was not same has been also convincingly explained by the witness. Moreover, these things are not serious enough to create any doubt or lead to any inference of ante timing of FIR. The informant has stated that he started from place of occurrence at about 12 in the noon. It took about half an hour in reaching to Patarai river which is 4 km away and from there police station is about 1 km where he reached at 1 pm. Meanwhile, written report was prepared at Patarai river in 5 to 10 minutes for which paper was brought from a shop situated on bus stand. The submission of the learned counsel is that all these things could not be possible within such small period and as such the FIR was ante timed. Though, it does not appear to be impossible to lodge the FIR on stipulated time, even then, it may be pertinently mentioned that in matter of timing, a very technical approach is not required to be adopted, particularly when the witness is illiterate and he has stated about time on the basis of his own assessment and it has not been shown or asked by the defence that he was wearing a watch and has stated about time after having verified in watch. It is why during his cross-examination, PW-4 Badam Singh has stated that they moved from the place of occurrence to Police Station with injured Bhairo on bullock-cart between 11-12 am. It was his assessment of time and such marginal difference in the statement is required to be appreciated keeping in view that such error in making assessment of timing is always possible, particularly when the witnesses are illiterate villagers. Even if for the sake of argument, it is assumed that the FIR was ante-time, there is nothing on record to show that it is false or in any way caused prejudice or resulted in injustice to the accused persons.
29. The time of occurrence has been also tried to be discredited on the basis of medical evidence. A suggestion has been given from the side of defence that both the deceased persons were sleeping in their field for the security of their crops and some unknown persons killed them in the night. Learned counsel for the appellants further pointed out towards the discrepancy in the post-mortem report and eye witness account and has submitted that in both the post-mortem reports, small and large intestine of both the deceased have been found containing faecal matters and 100 grams of semi digested food in the stomach of deceased Bhairon, whereas, the eye witness account is to the affect that they had not taken their food in the morning while going to the field on the fateful day. Further submission is that PW-3 Vijay Singh has clearly stated that all the persons leaving the house for the field did not take food and they had taken their food in the preceding night only. He has further clarified this by saying that they left the house after easing and washing of their hand and face etc. He has also stated that his father had also taken food in the preceding night and as he has stated that he got his father on the way, the inference is that he had also not taken food on the date of incident. This fact, however gets falsified by the medical evidence as the stomach and intestine of both the deceased contained semi digested food. The said fact of not taking any meals/breakfast in the morning has come in response to the question put to the witness in cross-examination. The deceased and others set out to field in the early morning at about 6 AM and it was but natural that they did not eat any thing in the morning. The incident took place at about 11 AM. No question has been put to the witness by defence that they did not eat anything during these 5 hours. It is not expected in village life that people working in the field, would continue working till noon with empty stomach and they often take a break to have something by way of lunch/breakfast. This possibility further finds support from the post-mortem report. The opportunity was there with the defence to clarify about this fact, but, the defence has failed to utilize this opportunity.
30. So far as the timing of death is concerned, it has been further pointed out that in the post-mortem report of Sripat, the doctor found him discharging semen and this fact has also come in the statement of doctor as PW-1. The submission of learned counsel for the appellants is that this fact creates doubt to draw otherwise inference regarding the time of death of Sripat. The defence has suggested the fact witness that deceased Sripat had illicit relation with his uncle's wife and a panchayat was also called in respect of it. We find that no question has been put by defence to the doctor to clarify this fact why it was so. There may be several biological reasons or even some sex related ailment for it and the defence should have clarified it from the doctor. In absence of any such cross-examination on this point, no importance can be attached to this argument. The doctor who conducted post-mortem has clearly stated that the death of the two deceased persons was possible a day before from the time of post-mortem and their injury was possible at 11 AM. During his cross-examination, he has stated that a difference of 6 hours in either side is possible in the time of death and the injury to both the deceased was possible to have been caused at the same time. He has stated that it was not possible that the injuries were caused as early as 4 AM and the possibility is minimum that the injury was caused 8 hours before from the alleged time of occurrence. Meaning thereby, the doctor has ruled out any possibility of the death being caused in midnight or between 2 to 4 in the night. Moreover, all the three eye-witnesses examined by the prosecution have stated that the incident took place at about 11 AM in the morning. Nothing has come in their statement which can create any doubt about it. Thus, the time of occurrence has been proved by the eye-witnesses and the same appears to be correct in view of medical evidence.
31. Defence has not specifically disputed the place of occurrence, except denying the incident. Some omission has been pointed out in the site map prepared by IO submitting that it has not been shown where the deceased persons were standing and from where the witnesses saw the incident and whether the incident took place on the adjoining mend or in the field of the accused persons. In our view, it is not significant as the field of both the sides are adjoining divided by mend. The supreme court in Jagdish vs State of UP, 1996 (33) ACC 495, has laid down that the IO is expected to show in the map what he has observed on spot. Other details based on saying of some persons are not needed to be mentioned as per legal requirement. This view has been further affirmed by this court in State of UP vs Lakhan Singh, 2014 (86) ACC 82 (All) (DB). During investigation, PW-6 IO prepared site-map in the presence of informant and other witnesses. The incident took place allegedly on the mend of fields of both sides. It has been pointed out that there is anomaly with regards to the width of the mend in the evidence of fact witnesses. It has been also pointed out that the dead body of Sripat was found in the field of the accused side. Admittedly, the fields of both the sides are adjacent divided by mend and the dead body of Sripat was found in the field of accused side close to mend and therefore, it cannot create doubt as to place of occurrence. On the other hand, where the dead body was found and blood stained earth was lifted is close to mend, may be in the field of accused side. All the fact witnesses have stated that the incident took place on the mend. In the written report Ext. Ka-1, it has been stated that the incident took place on the mend of the field. PW-3 Vijay Singh has more specifically stated that the murder was committed on the mend of the adjoining fields of both sides. The IO has also marked the place of occurrence in the site-map at the same place. Other witnesses PW-4 Badam Singh and PW-5 Sudama Devi have also proved the place of occurrence in their statements. That apart, the officer who has prepared inquest report has found the dead body of Sripat at the same place. Blood-stained earth was lifted from the same place and sealed and recovery memos were prepared which have been produced in evidence and proved by the prosecution witnesses. Hence, the place of occurrence has been established by prosecution.
32. PW-3 has been cross-examined by the defence and the main attack of the defence has been on the post-mortem report, nature of injuries, timing of death and the discrepancies between the medical evidence and ocular testimony. It has also been submitted during arguments that initially, it was stated by PW-3 that when they set out from their house to their field in the morning, his father was with them. Subsequently, during cross-examination, PW-3 tried to improve by stating that his father met him on the way in the lane. He has admitted that he has stated this fact for the first time before the court. Even if it is so, it hardly makes any difference. The fact remains the same that all of them reached to their field together and at the time of incident, they all were present on spot. The plea that this fact was not mentioned in the FIR nor in the statement given to IO, is also not important as it is not necessary to mention every detail in report. In the statement under section 161, the witness states about the incident and responds to any additional question asked by the IO. If no question was asked by IO on the point, there was no occasion for the witness to state this fact. Even IO is not supposed to clarify everything and take statement on all those points the defence is likely to put to the witness. In Rahul Mishra v State of Uttarakhand, AIR 2015 SC 3043 and V.K. Mishra v State of Uttarakhand, (2015) 9 SCC 588, it has been laid down that the investigating officer is not obliged to anticipate all possible defences and investigate from that angle. In any case, any omission on the part of the investigating officer cannot go against the prosecution. Interest of justice demands that such acts or omission of the investigating officer should not be taken in favour of the accused.
33. The learned Senior Advocate has also argued that the recovery of alleged weapons used in commission of the offence by SO in presence of witnesses Jagat Ram and Jaihind; one axe on the pointing of accused Achchhey Lal; one spade on the pointing of accused Ram Charan and one spade on the pointing of accused Mahendra is false and fabricated. Both the public witnesses of recovery were not examined and the spade recovered on the pointing of accused Ram Charan has been shown to be blood stained, whereas, admitted case of prosecution in view of the statements of three eye-witnesses is that no injury was sustained by deceased Sripat by his assault. Only police witnesses have been examined to prove recovery. There is no disclosure statement recorded and proved by prosecution. On the point of recovery of three weapons used for commission of crime, it has been submitted that an affidavit was filed by accused Achchhey Lal, Ram Charan and Mahendra opposing the police custody remand, stating that they never confessed or disclosed their intention to get weapon recovered. Moreover, the confessional statements of these accused persons have not been reduced in writing nor proved, which was necessary in view of the judgement in Jaskaran Vs. State of Punjab, AIR 1995 SC 2345. We now proceed to consider the arguments one by one on these points.
34. PW-6 IO has proved the recovery and has stated that the three accused persons confessed the offence and on their pointing the weapons used for the commission of the offence were recovered. The recovery was made before two public witnesses, but they have not been examined. Therefore, the first question is that in all cases, whether the public witnesses are required to be examined. The law with regards to admissibility and evidentiary value of discovery of material fact and incriminatory articles under section 27 of the Evidence Act has been variously explained and reiterated by the Supreme Court. In Suresh Chandra Bahri Vs. State of Bihar, AIR 1994 SC 2420, where the accused had made confessional disclosure statement under section 27 of the Evidence Act to the police officer during investigation and on the basis thereof, incriminatory articles were found and seized and the evidence showed that the articles belonged to the deceased, it has been held by the Supreme Court that the disclosure statement can be said to be true and also worthy of credence. Non recording of disclosure statement and non-examination of public witness as regards to the said recovery would be of no consequence.
35. It has been held in Bodh Raj v State of J & K, AIR 2002 SC 3164 that section 27 of the Indian Evidence Act is like an exception to Sections 25 to 26 of the Evidence Act and a confessional statement made in police custody leading to discovery of fact has been made admissible in evidence against the accused. The prohibition on admissibility of confessional statement reflects the fear of the Legislature that a person under police influence might be induced to confess because of undue pressure. The statement which is admissible under Section 27 is the one which is the information leading to discovery. The information might be confessional in nature but if it results in discovery of a fact, it becomes a reliable information. But the information permitted to be admitted in evidence is confined to that portion of the information which 'distinctly relates to the fact thereby discovered.
36. In Geejaganda Somaiah, T.N. v State of Karnataka, AIR 2007 SC 1355, it has been laid down that what is important is the information provided by the accused, which leads to the discovery of the fact, which is connected with the particular crime, provided that the accused is in custody. It is of no consequence that the information amounts to a confession which will not be allowed to be proved by the prosecution. But if a relevant fact is discovered in consequence of such information it furnishes assurance regarding the truth of such information. It is such information as relates to the fact thereby discovered is declared to be relevant and is allowed to be proved by the prosecution.
37. In Sandeep v State of UP, (2012) 6 SCC 107 and Mukesh v State for NCT of Delhi & Others, AIR 2017 SC 2161, it was further laid down that if anything or weapons etc. are recovered at the instance of the accused only in the presence of police party and there is no public witness to such recovery or recovery memo, the testimony of the police personnel proving the recovery and the recovery memo cannot be disbelieved merely because there was no witness to the recovery proceedings or recovery memo from the public particularly when no witness from public could be found by the police party despite their efforts at the time of recovery. Seizure memo need not be attested by any independent witness and the evidence of police officer regarding recovery at the instance of the accused should ordinarily be believed. The ground realities cannot be lost sight of that even in normal circumstances, members of public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises.
38. In Navneethakrishnan v State, AIR 2018 SC 2027, the SC observed-
"The exception postulated under section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by exception postulated by section 27 aforesaid, is limited "..... as relates distinctly to the fact thereby discovered.... ." The rationale behind section 27 of the Evidence Act is, that the facts in question should have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, section 27 aforesaid has been incorporated as an exception to the mandate contained in sections 25 and 26 of the Evidence Act."
39. It has been submitted by the learned counsel for the accused-appellants that the three public witnesses namely, Jagat Ram, Rahees and Jaihind have not been examined by the prosecution. The learned trial court has relied upon the police witness proving the recovery. The Supreme Court in Nathu Singh v State of MP, 1974 Cri. L J 11, has held that testimony of a police witness cannot be discarded for the reason that he is a police witness as it has not been shown that the police had some enmity with accused. Further judgements such as Pramod Kumar Vs. State (GNCT) of Delhi, AIR 2013 SC 3344 and Govindaraju alias Govinda Vs. State of Shri Ramapuram P.S., AIR 2012 SC 1292 also affirm this view in which it has been held that the testimony of police personnel should be treated in the same manner as testimony of any other witness. There is no principle of law that without corroboration by independent witnesses, the testimony of police personnel cannot be relied upon. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good reasons. As a rule it cannot be stated that Police Officer can or cannot be sole eye witness in criminal case. Statement of Police Officer can be relied upon and even form basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record. Experience shows that local people, in order to avoid enmity and bad relation are often reluctant in giving evidence in criminal cases. In the instant case, we find that except giving suggestion of false and planted recovery of weapons, the defence has not cross-examined the witness on the point of recovery so as to discredit the recovery of weapons.
40. We find that there is no error or perversity in the approach of the learned trial court. This instant case is based on direct evidence and the eyewitnesses saw the accused using spade and axe for causing deadly assault and the recovery has been made on the pointing of accused persons. So far as the affidavit of accused persons is concerned which was given by them opposing the application for police remand during investigation denying such disclosure is insignificant in view of the judgement in Ayaaubkhan v State of Maharashtra, AIR 2013 SC 58, where it has been held that affidavits have got no evidentiary value as the affidavits are not included in the definition of "evidence" in S. 3 of the Evidence Act.
41. Moreover, we are of the view that seizure memo need not be attested in all cases by any independent witness and the evidence of police officer regarding recovery at the instance of the accused should ordinarily be believed. The ground realities cannot be lost sight of that even in normal circumstances, members of public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises. There is no such rule that the police as witness of recovery cannot be believed. We get added strength to take this view on the basis of the judgement of the Supreme Court discussed above.
42. It is pertinent to mention that the recovered weapons stained with blood were sent for chemical examination along with 6 blood stained dresses the deceased were wearing at the time of incident with blood stained and plain earth (total 11 items). The forensic report is on record which is Ext. Ka-33 and on all items, human blood has been found. It links the recovered weapons with the offence and renders additional support to the prosecution version making it most probable that the weapon so recovered on the basis of disclosure statement and pointing of the accused persons were used to commit the offence.
43. So far as the argument with regards to the presence of blood stains on the third weapon is concerned, since all the weapons have been recovered from the same place, this possibility cannot be ruled out that stains might have been possible by coming into contact with each other. Spades and axes are not that kind of weapons which require distinct individual identification. The prosecution version is that all the three weapons were used in commission of the offence and by two which were used by accused Achchhey Lal and Mahendra Singh, the deceased persons sustained injury and died.
44. It has also been submitted that from the very beginning the prosecution came with the story that the accused Achchey Lal gave blow by axe on Bhairon and thereafter, the accused Ram Charan and Mahendra gave blow of spade on the head of Sripat. This fact has also been mentioned in the FIR. PW-3 informant and two other fact witnesses PW-4 and PW-5 also stated to the Investigating Officer in their statements under Section 161 Cr.P.C. that accused Achchey Lal hit Bhairo by his axe and accused Ram Charan and Mahendra gave one blow each by their spade on the head of Sripat. The post-mortem report of the deceased Sripat, which has been duly proved by the doctor, clearly indicates that Sripat sustained single incised wound and this fact has been further corroborated by PW-1 in his testimony.
45. The submission of learned counsel for the appellant is that the testimony of eye witness is falsified by the medical evidence as all the three eye witnesses have made improvement by stating before the trial Court that the blow of accused Ram Charan got missed or Sripat saved himself by that blow and accused Mahendra gave him the fatal blow on his head causing his death on spot. Therefore, the submission is that, keeping in view the anomaly and improvement in the eye witnesses account on this point, their testimony is liable to be discarded and their presence on the spot becomes doubtful at the time of incident. They cannot be treated as wholly reliable witnesses and they cannot be relied to hold the appellants guilty. On close scrutiny of the evidence, we are of the firm view that it does not appear to be a vital improvement, particularly when it is of no gain to prosecution as it only creates doubt with regard to participation and involvement of accused Ram Charan. But on that basis alone, it cannot be said that the whole prosecution case becomes unreliable. The courts have to discharge onerous obligation of justice dispensation by arriving at the truth and in the process the court has to separate grain from chaff and appraise in each case as to what extent the evidence is acceptable.
46. In India, doctrine of falsus in uno, falsus in omnibus does not apply and the approach of the court should be to bring out the correct facts by marshalling the evidence and ignore which is incorrect. In Sucha Singh v State of Punjab, (2003) 7 SCC 643, State of Maharashtra v Tulshiram Bhanudas Kamble, AIR 2007 SC 3042, Janardan Singh v State of Bihar, (2009) 16 SCC 269, Ramesh Harijan v State of UP, (2012) 5 SCC 777, Babu v State of TN, (2013) 8 SCC 60 and State of Karnataka v Suvarnamma, (2015) 1 SCC 323, it has been held:
"Maxim ''falsus in uno, falsus in omnibus' is not applicable in India. It is merely a rule of caution. Thus even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. The court has to separate grain from chaff and appraise in each case as to what extent the evidence is acceptable. If separation cannot be done, the evidence has to be rejected in toto. A witness may be speaking untruth in some respect and it has to be appraised in each case asto what extent the evidence is worthy of acceptance and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. Falsity of particular material witness on a material particular would not ruin it from the beginning to end. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain untruth or at any rate exaggeration, embroideries or embellishment."
47. The learned counsel has questioned the presence of all the three fact witnesses at the place of occurrence at the time of incident. In respect of PW-3 informant Vijay Singh, it has been mentioned that sending his wife instead of going himself for rescue is also unnatural. It looks improbable that when two deceased persons were assaulted, instead of going himself, PW-3 Vijay Singh asked his wife to go to save. Had he been present there, he would have himself rushed to save the deceased persons. This also makes the presence of PW-3 at the time of incident improbable. No blood stains have been found on the clothes of PW-3 although he is said to hold his injured father Bhairo and put him on bullock-cart whose head injury was bleeding. It has come in the evidence of witnesses that the wound was covered tightly by cloth (towel) and therefore, if dress of PW-1 was not found blood stained, there is nothing unnatural in it. Again, his not going to save and sending his wife is also natural. In absence of any cross-examination why he did so as he could state some reason, we find that he must have been guided by the idea that the accused might not assault on a lady, particularly of own family. In Sucha Singh Vs. State of Punjab, (2003) 7 SCC 643, the Supreme Court has explained that where eye witnesses did not come to the rescue of the deceased, it has been held that such reaction, conduct and behavior of the witnesses cannot be a ground to discard his evidence when they are unarmed and the accused are armed with deadly weapons. Two senior members of family were already given deadly assault by accused side and therefore, the conduct of the witness cannot be seen with suspicion.
48. It has been further submitted that PW-4 Badam Singh is not of his family nor he has any field of his own near the field where offence was committed and he can be said to be only a chance witness on whom reliance cannot be placed. As laid down in Kallu Vs. State of Haryana, AIR 2012 SC 3212, Ramesh Vs. State of U.P., 2010 (68) ACC 219 (SC) and Jarnail Singh Vs. State of Punjab, 2009 (67) ACC 668 (SC), it is not the rule of law that chance witness cannot be believed. The reason for a chance witness being present on the spot and his testimony requires close scrutiny and if the same is otherwise found reliable, his testimony cannot be discarded merely on the ground of his being a chance witness. Evidence of chance witness requires very cautious and close scrutiny. It has been stated by PW-4 that at the time of occurrence, he was there to render help on request to informant side in collecting and loading of crops. From his statement, it is clear that he was very much acquainted with the accused persons and the deceased side being related by common ancestor. Therefore, it cannot be said that he was chance witness. It was day time and therefore, his presence at the time of occurrence on spot appears to be natural. He has narrated the whole incident giving full support to the prosecution version. So far as the law in respect of appreciation of evidence of chance witness is concerned, even if it is assumed that he was a chance witness, though he was certainly not, the evidence given by him is required to be scrutinized carefully. The testimony of PW-4 appears to be trustworthy and despite a lengthy cross-examination by the defence, nothing has come out, on the basis of which his testimony can be discredited.
49. Certain discrepancy, improvement and contradiction have been pointed out in the statement of PW-3 to discredit him and his presence. Learned counsel has submitted that the conduct of informant in not taking the dead body of his father Bhairon to the police station and leaving the same at the bank of Pathrai river, appears to be unnecessary and highly improbable. PW-3 has further stated that he accompanied the IO to the bank of Pathrai river where the inquest report was prepared. It appears strange that despite his presence, informant was not made a witness to the inquest report. This shows that he was not present when the inquest report was prepared. It finds support from the fact that the inquest of deceased Sripat was prepared subsequently and to that inquest, the informant has been a witness. This goes to show that the informant reached on spot later on and he was made witness of inquest report of Sripat only. On the contrary, he has stated that he was also a witness to the inquest of Bhairo. He has also stated that whatever was written at Patarai river, he put his thumb impression. This appears to be strange as PW-3 is not a witness of inquest of the dead body of Bhairo. He has been witness to the inquest of the dead body of Sripat. No question has been put in respect of inquest of the dead body of Sripat to which he has been witness. The witness was not called upon to see the inquest report of Bhairo nor he has been contradicted that the same does not bear his thumb impression. Notably, the fact of putting thumb impression has come in his statement prior to his statement that he was witness to inquest. He has not specifically stated that he put thumb impression on inquest report. Since, he was a witness to the inquest of the dead body of Sripat and the inquest proceeding took soon after, this possibility cannot be ruled out that he was misled and stated in the confusion of the inquest report of Sripat. The argument that his not being witness is indicative of the fact that he was not present at Pathrai river. There is no rule that the informant must be a witness of inquest proceeding and a lot depends upon the attending situation. Since, Badam Singh could not reach when inquest of dead body of Sripat was being conducted, the informant was made a witness thereto. There is further contradiction in the version of the witness as he has stated that after the preparation of inquest report of the body of the deceased Bhairon, he went back to police station, whereas, PW-6 SO Prem Pal has clearly stated that after leaving the Police Station along with other constables, he first conducted inquest of dead body of Bhairon at the bank of Pathrai river and, thereafter, he visited the place of occurrence where the dead body of the deceased Sripat was lying and the inquest report was prepared there. He has not stated that from Pathrai river, he came back to the police station after completing the inquest report of the dead body of Bhairon as stated by PW-3. In our considered view, the statement of the informant as attacked by the defence, is not significant and on that basis, the complete testimony of the witness cannot be discarded.
50. Certain contradictions, discrepancies and improvements have been mentioned in the statements of fact witnesses. It has been pointed out that contrary to FIR version, it has been developed during evidence that Bhairo was sleeping on the field in the night and he joined the others for field on the way while returning from there in the morning. Witnesses have given varying statement on width of mend where the incident took place to show that the deceased side was not in the field of accused side. It has been also pointed out that the witnesses developed the theory of the assault by accused Ram Charan got missed in view of single injury to deceased Sripat which was found in the medical evidence and in such situation, it becomes doubtful whose blow hit Sripat. Again no blood on grass kept on bullock-cart to carry injured Bhairo was found, nor any blood stains were found on the clothes of PW-1 who happened to handle injured Bhairo whose injury was on head and bleeding to put him on the bullock-cart. There is also discrepancy in ocular account of PW-1 on the point of going to Pathrai river and returning back to Police Station with IO after preparation of inquest report, as PW-6 IO has stated that from there he straight way went to the place of occurrence.
51. On facts, we find that the contradiction, discrepancy or improvement mentioned above are not in respect of time, place, date and manner of the commission of offence. It needs to be mentioned that where own father and real brother is victim of deadly assault and the eyewitnesses were son and his wife and other witness is also related with both side, in such a situation, the witnesses are not supposed to be perfectionist to give the exact account of the incident and narrate every aspect related thereto in a uniform way. It needs to be mentioned that the contradiction and discrepancy have occurred in the statements of fact witnesses in their cross-examination. The witnesses are more or less illiterate and rustics and there is no surprise if there is little deviation and variation in their evidence. In fact, the same is indicative of their truthfulness. It has been remarked in State of UP v Krishna Master, AIR 2010 SC 3071 that where a rustic witness was subjected to grueling cross examination for many days, inconsistencies are bound to occur in his evidence and they should not be blown out of proportion. In State of UP v Chhoteylal, AIR 2011 SC 697 and Dimple Gupta (minor) v Rajiv Gupta, AIR 2008 SC 239, it has been held that It is impossible for an illiterate villager or rustic lady to state with precision the chain of events as such witnesses do not have sense of accuracy of time etc. Expecting hyper technical calculation regarding dates and time of events from illiterate/rustic/villager witnesses is an insult to justice-oriented judicial system and detached from the realities of life. In the case of rustic lady eye witnesses, court should keep in mind her rural background and the scenario in which the incident had happened and should not appreciate her evidence from rational angle and discredit her otherwise truthful version on technical grounds.
52. Some sort of contradiction, improvement and embellishment is bound to occur in the statement of fact witnesses. As laid down in State of UP v Naresh; 2011 (75) ACC 215) (SC), 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. 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.
53. In Gosu Jayarami Reddy v State of Andhra Pradesh; (2011) 3 SCC(Cri) 630, it was observed that Courts need to be realistic in their expectation from the witnesses and go by what would be reasonable based on ordinary human conduct with ordinary human frailties of memory and power to register events and their details. A witness who is terrorized by the brutality of the attack cannot be disbelieved only because in his description of who hit the deceased and on what part of the body, there is some mix-up or confusion. Further, in Parsu Ram Pandey v State of Bihar AIR 2004 SC 5068, Shivappa v State of Karnataka; AIR 2682, Ramchandaran v State of Kerala AIR 2011 SC 3581, it was held that minor discrepancies or some improvements would not justify rejection of the testimonies of the eye-witnesses, if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in Court. In Mukesh v State for NCT of Delhi, AIR 2017 SC 2161 and Bhagwan Jagannath Markad v State of Maharashtra, (2016) 10 SCC 53, it was reiterated that minor contradictions in the testimonies of the prosecution witness are bound to be there and in fact they go to support the truthfulness of the witnesses. In view of the above, we are of the view that there is nothing in the deposition of the eye-witnesses on the basis of which their evidence can be discarded. We do not find any material contradiction discrepancy or improvement in the statement of the witness and there is consistency so far as narration of the criminal incident.
54. It has been also submitted that PW-3 and PW-4 did not sustain any injury in the incident. PW-5 Sudama Devi has been said to be an injured witness, but, no visible injury has been found on her body in her medical examination. From the evidence on record, it is clear that deceased Sripat intervened during hot conversation and he was done away by the accused side. Before him, deceased Bhairo was given serious blow and he died subsequently. PW-3 sent his wife and she was also assaulted by another accused. In such situation, if PW-3 and PW-4 did not dare to intervene, it is no surprise and appears to be natural. It needs not to be over emphasized why the two witness did not sustain injury.
55. It has been submitted by the learned Senior Advocate for the accused appellants that witness Badam Singh is close relative of Vijay Singh as the grand mother of informant and his grand mother were the real sisters. Their intimacy is also established by the fact that the informant called him to load log of wheat crops lying in his filed. The house of Badam Singh as stated by him is far away from the house of Vijay Singh. Badam Singh himself had his own agricultural land of about 16 and half acres and he has admitted that he went to the field of Vijay Singh for the first time on the date of incident. His statement on several points is contradictory. He cannot be relied and his testimony is liable to be discarded.
56. We find on record that PW-4 Badam Singh has stated that he also comes from the family of deceased and related to both side by a common ancestor. He has denied the suggestion given to him during cross-examination that he was not present there and did not see the incident. The witness has not been challenged from the side of defence on the point of his presence at the time of incident nor on the point of his being called for help in the agricultural work. He is related to both the side and this fact is not disputed between the parties. Therefore, it is no strange if the informant side called him for help. He has narrated the whole sequence of incident. Therefore, we find that the presence of the witness is natural. He has given vivid description of the incident in which the accused persons caused injury to the deceased persons. He has also stated that he scribed the written report on the dictation of Vijay Singh who after hearing the same, put his thumb impression. He has further stated that when Bhairo died at Patharai river, informant left the dead body with him and went to lodge FIR. There is consistency in his statement and he has been rightly relied upon by the learned trial court.
57. It has also been argued that PW-5 Smt. Sudama Devi is not an injured witness. No visible injury has been found in her medical report and the prosecution has not examined the doctor, who conducted her medical to establish that any injury was found on her back. On the contrary, the doctor has written that there was only complaint of pain and no visible injury was found on her back. At the time of lodging of FIR and also when the IO visited the spot, she was present and she described the incident to the IO. As such, in absence of any injury on her body, she does not remain a wholly reliable witness. The learned counsel to the accused-appellant has also submitted that the presence of PW-5 is highly doubtful as she has been alleged to be an eye-witness who also has sustained injury in the incident. It has been pointed out that from the perusal of medical report of Smt. Sudama PW-5, who was examined on 31.3.1996 at 4:00 pm, it appears that no visible injury on her back has been mentioned.
58. The prosecution version has been that accused Sahab Singh gave a lathi blow and she sustained injury on her back. PW-5 has stated that she sustained one blow of lathi. From the perusal of the impugned judgement, it is apparent that the learned trial court has avoided giving any concrete finding as to the injury sustained by Sudama Devi and the involvement of accused Sahab Singh, since he was found to be juvenile and his case was separated to be decided by Juvenile Justice Board. The question before us is whether PW-5 Sudama Devi is an injured witness and her statement should be given weight and appreciated accordingly or she should be considered to be a simple eye-witness?
59. We find on record that Sudama Devi went with informant to Police Station to lodge FIR and from there she was sent with a constable to hospital with injury letter (Ext. Ka-6) for treatment and medical examination. As stated by PW-2 HCP Sobaran Singh, in the injury letter no visible injury has been mentioned and she had herself stated contusion and complaint of pain on the back on the right scapula which has been entered in the GD report. Although, no visible contusion was found by the doctor, yet in the medical report, complaint of pain has been mentioned. It has been suggested to PW-2 that Sudama Devi did not come to Police Station at the time of lodging of FIR and the FIR was ante timed. PW-6 IO has been also put question on this point and he has stated that her injury was not inspected and on the basis of her saying, the same was mentioned. He has also denied the suggestion that a fake injury letter was prepared and she had no injury nor she came to Police Station and the FIR was ante timed. We do not find any force in this suggestion as the GD shows that she reached the Police Station at the time of lodging of FIR which cannot be discarded on mere suggestion of the defence. Moreover, it has been stated by PW-4 Badam Singh that leaving him with the dead body at Pathrai river, she went with informant to Police Station and this fact has been further affirmed by her and informant in their on oath statement. It has been pointed out that during her cross-examination, she has stated that accused Sahab Singh hit her from the front, whereas, her injury has been alleged to be on her back which falsifies the version on this point. For two reasons, we do not find this argument acceptable. The defence should have asked this to the witness who could have explained it in a better way. In Mahavir Singh v State of Haryana, (2014) 6 SCC 716, it has been laid down that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be questioned. Secondly, a criminal assault is not a static act and a lot depends upon the response of the person assaulted who naturally, to escape, turns or moves. Therefore, the impact of assault on the body a lot depends upon the repercussion and body movement at the relevant time. So far as non examination of the doctor is concerned, it would hardly effect as the charge has been framed for the offence under section 323 IPC for causing simple hurt and for constituting that offence, it is not always necessary to require corroboration by medical report. Assuming for the sake of argument that Sudama Devi was not injured, nevertheless, her statement is acceptable like an eye-witness and there is nothing on record to show that she was not present at the scene of occurrence. Her presence with the entire family is probable and natural at the place of occurrence. PW-5 Sudama Devi has also corroborated the prosecution version on the point of date and time of occurrence. She is an injured witness and her presence during the incident is established because of the injury, she sustained. It is settled principle of law that the evidence of the injured witness is put at a very higher footing and without any substantial reason the statement of such injured witnesses cannot be disbelieved. As held in State of Haryana v Krishan, AIR 2017 SC 3125, Mukesh v State for NCT of Delhi, AIR 2017 SC 2161, Bhagwan Jagannath Markad v State of Maharashtra, (2016) 10 SCC 537 and Jarnail Singh v State of Punjab, 2009 (6) Supreme 526, deposition of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies.
60. The learned counsel to the accused-appellant has challenged the credibility of fact witnesses on the basis of their being related witness and lack of any motive for the commission of offence. He has submitted that no independent witness has been examined and all the three fact witnesses are relatives and highly interested witnesses and on their evidence no reliance could be placed by the learned trial court. It is admitted fact that PW-3 informant Vijay Singh is son of deceased Bhairo and brother of deceased Sripat, PW-5 Sudama Devi is his wife and PW-4 Badam Singh is related to both side through common ancestor. The law in respect of the testimony of related witnesses has been time and again reiterated by the Supreme Court that the testimony of related witnesses cannot be discarded merely on the basis of relationship. The only requirement is that the testimony of such witness should be scrutinized cautiously and carefully. In Dalip Singh v State of Punjab (1954) SCR 145, while rejecting the argument that witnesses who are close-relatives of the victim should not be relied upon, the Court held as under:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is 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 generalisation. 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 as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
61. In Masalti v State of UP AIR 1965 SC 202, the Supreme Court observed:
"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."
62. The Supreme Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called interested only when he or she derives some benefit from the result of litigation; a decree in a civil case, or in seeing a person punished in a criminal trial. In Darya Singh v State of Punjab, AIR 1965 SC 328, followed by State of UP v Kishanpal (2008) 16 SCC 73, the Court held as under:
"On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."
63. Again, in Appa v State of Gujarat, AIR 1988 SC 698, the Court has observed:
"Experience reminds us that civilized people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined 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."
64. Similar view has been expressed in State of AP v S. Rayappa (2006) 4 SCC 512, where the court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court stated the principle as follows:
" ....by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons."
65. Further, in Pulicherla Nagaraju @ Nagaraja Reddy v State of AP (2007) 1 SCC (Cri) 500, the Supreme Court has held as under:
"In this case, we find that the trial court had rejected the evidence of PW1 and PW2 merely because they were interested witnesses being the brother and father of the deceased. But it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise, found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted."
66. Similarly, in Satbir Singh v State of UP, (2009) 13 SCC 790, the Court has held as under:-
"It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon........."
67. In M.C. Ali v State of Kerala AIR 2010 SC 1639, Himanshu v State (NCT of Delhis, (2011) 2 SCC 36, and Bhajan Singh v State of Haryana, (2011) 7 SCC 421, it was laid down that evidence of a related witness can be relied upon provided it is trustworthy. Again, in Jayabalan v U.T. of Pondicherry, 2010(68) ACC 308 (SC), the Supreme Court has made following observation:
"We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
68. Dharnidhar v State of UP, (2010) 7 SCC 759 referred the above observation of Jaya Balan (supra) and held that there is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. Similar view has been taken in Ram Bharosey v State of UP AIR 2010 SC 917, where the Court stated that a close relative of the deceased does not become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice.
69. Again, in Balraje @ Trimbak v State of Maharashtra, (2010) 6 SCC 673, it has been held that when the eye-witnesses are stated to be interested and inimically deposed against the accused, it would not be proper to conclude that they would shield the real culprit and rope in innocent person. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimical towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.
70. Subsequently, in Jalpat Rai v State of Haryana AIR 2011 SC 2719 and Waman v State of Maharashtra AIR 2011 SC 3327, it was observed that the over-insistence on witnesses having no relation with the victims often results in criminal justice going away. The testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. This view has been reiterated in Shyam Babu v State of UP, AIR 2012 SC 3311, Dhari & Others v State of UP, AIR 2013 SC 308 and Bhagwan Jagannath Markad (supra). Recently, in Ganapathi v State of Tamilnadu, AIR 2018 SC 1635, the Court found no force in the argument that the conviction based on the evidence of family members in a murder trial is not sustainable. In Rupinder Singh Sandhu v State of Punjab, (2018) 16 SCC 475, it has been reiterated by the Supreme Court that relationship by itself will not render the witness untrustworthy. The Supreme Court laid down as below:
"Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. ...... A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
71. Recently, in Shio Shanker Dubey v State of Bihar AIR 2019 SC 2275, the Supreme Court has reiterated the law as under:
"...... a close relative cannot be characterized as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."
72. Thus, in view of aforementioned decisions of the Supreme Court, it is settled position of law that the statements of the interested witnesses can be safely relied upon by the court in support of the prosecution story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons who are closely related to the deceased and inimical with the accused. When their statements find corroboration by other evidence, expert evidence and the circumstances of the case clearly depict complete chain of evidence demonstrating the guilt of the accused, there is no reason as to why the statement of such interested witnesses cannot be relied upon by the Court. It would be hard to believe that the close relatives shall spare the real culprit and shall implicate innocent persons falsely having no enmity and who are close relatives also. There is no rule to the effect that the evidence of related or partisan witness is not acceptable. Association or relation does not render the evidence false and partisanship is no ground to reject the testimony given on oath. It is more so because PW-4 Badam Singh is related to both sides and it has been nowhere suggested by defence that he had bitter relation with accused side to give false evidence against them. All the three witnesses were present on spot at the time of occurrence and they have proved the prosecution case. On due scrutiny of their testimonies, we find that there is spontaneity in their evidence and they have proved the incident in a trustworthy way.
73. It has been also argued that no independent witness has been examined whereas, in the FIR itself, Bhagwan Das of same village was grazing his animals and he checked the accused persons and tried to save the deceased side. The wife of Bhairo who was grazing buffaloes because of which the whole incident took place, has not been also examined. So far as non-examination of the independent witness and other witness is concerned, the option lies with the prosecution to examine as many witness as is required to be examined to prove the charge. In Bhagwan Jagannath Markad v State of Maharashtra, (2016) 10 SCC 537 and Mukesh v State of NCT of Delhi, AIR 2017 SC 2161, it has been held that if a witness examined in the court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Non-examination of independent witness is not a mathematical formula for discarding the weight of the testimony available on record however natural, trustworthy and convincing it may be. It is settled law that the Court can convict an accused on statement of sole witness even if he is relative of the deceased and non examination of independent witness would not be fatal to the case of prosecution. Moreover, it is not the quantity, rather quality of the evidence which is decisive in arriving at the right conclusion.
74. The next submission is about motive and it has been argued that the accused persons did not have motive or adequate motive sufficient to cause the death of own relatives. There is lack of any previous enmity between two sides or any quarrel in the near past. It is admitted between the parties that both the sides including witness Badam Singh are connected and related by two branches Pragi and Brisbhan who were sons of one Nathu. Accused persons are descendants of Brisbhan whereas, complaint/deceased side are descendants of Pragi through daughter Ramabai. Witness Badam Singh is connected through another daughter of Pragi whose name was Sita and this relationship is clear in view of the testimony of PW-3 and PW-4 and they have also stated that the relationship of both side was normal without any previous enmity. The defence case has been that some unknown person killed the deceased and the accused persons have been falsely implicated. It has been already discussed earlier that the defence theory that the witnesses did not see the criminal incident as they were not present there, is not convincing. It is a case of broad day light murder and the three eye-witnesses were none other but relatives of deceased persons and well acquainted with both sides. All the three witnesses were present in the field for collecting and loading the wheat log on bullock-cart. For the same reason, witness Badam was also present who was called by informant side to help in collecting and loading the wheat log on bullock-cart. Thus, the prosecution case is based on direct evidence and the settled law is that motive goes to the back seat in such cases.
75. In a number of decisions, like Abu Thakir v State AIR 2010 SC 2119, State of UP v Nawab Singh AIR 2010 SC 3638, Bipin Kumar Mondal v State of West Bengal 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav v State of Karnataka (2003) 6 SCC 392, Thaman Kumar v State of Union Territory of Chandigarh (2003) 6 SCC 380 and State of HP v Jeet Singh, (1999) 4 SCC 370, it has been repeatedly held by the Supreme Court that motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role so as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubt raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused.
76. We find that the Supreme Court has reiterated the aforesaid view in various decisions, such as Gopi Ram v St. Of UP, 2006 (55) ACC 673 SC, R.R. Reddy v State of AP, AIR 2006 SC 1656, Sucha Singh v State of Punjab; AIR 2003 SC 1471, State of Rajasthan v Arjun Singh AIR 2011 SC 3380 and Varun Chaudhry v State of Rajasthan AIR 2011 SC 72. Recently, in Saddik v State of Gujarat, (2016) 10 SCC 663, it has been held that the prosecution case could not be denied on the ground of alleged absence or insufficiency of motive. Motive is insignificant in cases of direct evidence of eyewitnesses. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable, truthful and acceptable evidence is available on record sufficient to establish the guilty of accused persons.
77. We are of the view that when there is sufficient direct evidence regarding the commission of offence, the question of motive is insignificant. Motive is a double edged weapon and the key question for consideration in cases based on direct evidence remains whether the prosecution has convincingly and satisfactorily established the guilt of all or any of the accused beyond reasonable doubt by adducing reliable and cogent evidence. As such, the proof of the existence of a motive is not necessary for a conviction for any offence. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance.
78. It has been pointed out in the course of argument that the statement of PW-5 Sudama was not recorded by IO on the date of incident or soon after, the disclosure statement of accused persons was not reduced in writing, the injury letter of Sudama Devi was prepared without inspecting the injury, there is no mention in CD by what means the dead bodies were sent for post-mortem and the statement of Badam Singh was not recorded at Patharai river even though he was present there. In our view, the aforesaid omission is neither material nor substantial nor they anyway caused prejudice to the accused persons. Maximum, they relate to lapse in investigation and that too is not significant nor they render any advantage to the defence. In Khem Ram v State of Himachal Pradesh, (2018) 1 SCC 202, State of Karnataka v Suvarnamma, (2015) 1 SCC 323 Hema v State, 2013 (81) ACC 1 (SC) and Leela Ram v State of Haryana, (1999) 9 SCC 52510, it has been laid down that any irregularity or deficiency in investigation by IO need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The only requirement is use of extra caution in evaluation of evidence. A defective investigation cannot be fatal to prosecution where ocular testimony is found credible and cogent. It can also be pointed out that defect in investigation, if any, cannot give any advantage to the defence unless such defect goes to the very root of the prosecution version. In Rupinder Singh Sandhu vs State of Punjab, (2018) 16 SCC 475, it has been remarked by the supreme court that even if there is lapse in investigation, the same cannot be used to give advantage to accused person in cases where prosecution has led credible evidence, as it is difficult to determine that the investigative defect occurred due to general inefficiency of system or deliberated to shield the accused. In our considered view, the defect pointed out on behalf of the defence appears to be very minor and insignificant in nature and no force can be attached to that part of the argument.
79. It has also been argued that if the prosecution case is believed, in that case also it is established that there was a sudden quarrel between both sides as Heera Bai and Bhairon were insisting to continue their cattle grazing in the filed of accused. Only a single blow was given by accused Achchhey Lal to Bhairon and to Sripat by accused Mahendra. There is no repetition of blow. The blow of accused Ram Charan missed and his involvement is doubtful as the testimony of witnesses is contradictory to the FIR version and is a result of improvement made by them during trial. The other accused persons namely Amar Singh, Siyaram and Ram Singh did not participate in the incident of assault by making any overt act. The allegation of exhortation has been attributed to all the seven accused persons in a form of chorus (maar do salo ko bachne na paye) is highly improbable in the ordinary course. It is not possible for all the seven accused persons to utter the same words simultaneously and, therefore, the role of exhortation attributed to all the accused-appellants cannot be believed. The formation of unlawful assembly is not proved and fact of common object is highly doubtful as the presence of four accused persons were shown on the spot without any overt act and, therefore, their conviction is not sustainable under law.
80. It is clear from the statement of the fact witnesses and medical evidence that two persons have died in the criminal incident by sustaining one injury each. Bhairo was killed by the injury caused by accused Achchhey Lal by his axe, whereas, deceased Sripat was killed by injury caused by accused Mahendra by his spade. It has also come in evidence that accused Ram Charan also assaulted Sripat by his spade but the same got missed. At this stage, we find it necessary to briefly discuss the law with regards to vicarious criminal liability provided under section 149 IPC.
81. Section 149 IPC reads as follows:
"Section 149 IPC:- Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
82. The essential ingredients of Section 149 IPC is required to be identified keeping in view section 141 IPC. The ingredients are (I) there must be an unlawful assembly of five or more persons, (II) the assembly must have common object to commit crime as provided under section 141 IPC, (III) the offence must have been committed by all or any of the member of such unlawful assembly, (IV) such offence must have been committed in prosecution of the common object of that assembly, or (V) the offence must be such as the member of that assembly knew it to be likely to be committed. The prosecution is required to prove all the ingredients for applicability of Section 149.
83. It is noteworthy that section 34 IPC also deals with vicarious liability and two or more persons committing offence with common intention to commit same can be held liable with the help of section 34. Explaining the difference between common object with common intention, the Supreme Court, in Chittarmal v State of Rajasthan, AIR 2003 SC 796, expressed the following view:
"It is well settled that Section 34 as well as Section 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both the sections deal with combinations of persons who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction between common intention and common object is that common intention denotes action in concert and necessarily postulates the existence of a prearranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or pre concert. Though there is a substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the fact of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both Section 34 and Section 149 may apply. If the common object does not involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does not involve a common intention, then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non-applicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all."
84. Before holding a person guilty of an offence with the help of section 149 IPC, a definite conclusion is required to be arrived at on the basis of evidence on record that the offence was committed by an unlawful assembly to which the accused-appellants were members and the offence was committed for the prosecution of common object of such unlawful assembly. In Masalti v State of UP, AIR 1965 SC 202, it was observed as follows:
"what has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 I.P.C. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case 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 by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly."
85. In Tarlok Singh v State of Punjab, AIR 1974 SC 1797, the Supreme Court on appreciation of evidence on record held that the prosecution could not establish that except one accused namely Tarlok Singh, other accused have at any time entertain an intention to commit murder and they cannot, therefore, be held liable under Sections 307/149 IPC. It was found that statement of prosecution witness was an omnibus statement. The firing appears to have been sudden and the other accused could not have acted in concert in furtherance of that design, or could not have known that accused would fire.
86. In Musa Khan vs. State of Maharashtra 1977 (1) SCC 733, this Court observed:
"........Thus a court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all these stages."
87. In Lalji v State of UP, 1989 (1) SCC 437, the Sopreme Court held:
"Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deducted from the facts and circumstances of each case."
88. In Allauddin Mian vs. State of Bihar, 1989 (3) SCC 5, the Court remarked as under:-
"........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."
89. The Supreme Court made it clear that 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. The Court said:
"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."
90. It was further laid down:
"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."
91. In Sherey v State of UP,1991 Supp (2) SCC 437, the Court held:
"But when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance. From that point of view it is safe only to convict the above mentioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom overt acts are attributed."
92. The Supreme Court in Ranbir Yadav v State of Bihar, 1995 (4) SCC 392 highlighted that where there is party or group rivalry, 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.
93. In State of UP v Dan Singh, 1997 (3) SCC 747, it was laid down that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. The court said:
"While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicarious criminal liability under section149. "
94. The above position of law was further elaborated and affirmed in subsequent decisions such as Gangadhar Behara v State of Orissa, 2002 (8) SCC 381 and State of Maharashtra v Kashirao, AIR 2003 SC 3901. In later, it was observed:
"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."
It was observed:
"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 consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of 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."
95. Explaining the difference between section 34 and 149 IPC, the Court pointed out that 'common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The Court observed:
"The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident."
96. The Court also remarked that it is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. The Court, therefore, opined:
"It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti."
It was further remarked:
"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 the 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."
97. Laying down that 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. Referring Chikkarange Gowda v State of Mysore, AIR 1956 SC 731, the Supreme Court said:
"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 called out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour 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 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."
98. It was further held that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act? While overt act and active participation may indicate common intention of the person perpetrating the crime under Section 34 IPC, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It was held that no hard and fast rule of universal application can be invoked. In the facts of a case, the essential ingredients of Section 149, however, have to be amply established.
99. Similar view was expressed in Rajendra Shantaram Todankar vs. State of Maharashtra (2003) 2 SCC 257, and the Court once again explained Section 149 and held as under:
"A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 -- either clause -- is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act."
100. In Bhagwan Singh v State of MP, AIR 2002 SC 1836 and Dani Singh v State of Bihar 2005 SCC (Cri.) 127, it has been laid down that a person can be convicted for his vicariously if he is found to be a member of the unlawful assembly sharing the common object in spite of the fact whether he had actually participated in the commission of the offence or not. In Bharosi v State of MP, AIR 2002 SC 3299, it was said that only one accused caused fatal blow the other accused could not be intended to kill the deceased and Section 149 cannot be invoked. In Nagarjit Ahir vs. State of Bihar 2005 (10 SCC 369, this Court applied rule of caution and in the facts and circumstances of the case held that it may be safe to convict only those persons against whom overt act is alleged with the aid of Section 149, IPC lest some innocent spectators may get involved. In Maranadu vs. State 2008 (16) SCC 529), the Court for determination of `common object' of unlawful assembly stated the legal position thus:
".....For determination of the common object of the unlawful assembly , the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti."
101. It was then held:
"It is well-known that for determination of common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly before and at the time of attack is of relevant consideration. At a particular stage of the incident, what is object of the unlawful assembly is a question of fact and that has to be determined keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene of incident."
102. Considering the above, it was found in the facts of that case that nineteen persons were accused of coming to the scene of occurrence armed with deadly weapons sharing the common object of causing grievous hurt to the victim party. On a closer scrutiny of evidence, while applying the rule of caution, it was held by the Apex Court that only those accused persons would be convicted under Section 302 readwith Section 149 IPC whose presence as members of the party of assailants is consistently mentioned and their overt acts in chasing and assaulting deceased was clearly proved. Giving benefit of doubt to the remaining, they were acquitted of the offence under Section 302 read with Section 149 IPC, since evidence against them in chasing and assaulting the deceased was not consistent.
103. In Pandurang Chandrakant Mhatre v State of Maharashtra, 2009 (10) SCC 773, the Supreme Court held that the legal position laid down in Masalti (supra) admits of no doubt and has been followed time and again. However, 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, the Court has to apply rule of caution taking into consideration particular facts situation to convict only those accused whose presence was clearly established and overt acts were proved. In Raj Nath v State of UP, 2009 (1) Supreme 370, the SC observed as follows:
"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 which is committed with a view to accomplish the common object. In order that the 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 tge 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."
104. In Bhupendra Singh v State of UP, AIR 2009 SC 3265, it was said that the word 'knew' used in second part of section 149 IPC implies something more than a mere possibility and it also does not mean 'might have been known.' Positive knowledge of the common object is necessary. The emphasis is on 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.
105. In Mohammed Ankoos v Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, 2010 (1) SCC 94, seventy seven accused persons were charged to the effect that they were members of the unlawful assembly and in prosecution of the common object of such assembly, to commit the murder of five persons, committed the offence of rioting by pouring kerosene and thereby committed an offence punishable under Section 148 IPC. All the accused were charged of committing murder by intentionally causing death and thereby committed an offence punishable under Section 302 IPC. In this case, the trial court found that neither the offence under Section 148 IPC nor under Section 302 IPC was established against the accused beyond reasonable doubt. The High Court though affirmed the findings of the trial court about the acquittal of the appellants under Section 148 IPC but convicted them for the offence punishable under Section 302 read with Section 149 IPC. The Supreme Court took the view that Section 149 IPC creates constructive liability and a person who is a member of the unlawful assembly is made guilty of the offence committed by another, although he may have had no intention to commit that offence and had done no overt act, except his presence in the assembly and sharing the common object of that assembly. But, if it is found the accused has been acquitted under Section 148 IPC, the recourse to Section 149 IPC cannot be taken and it is difficult to sustain conviction with the help of Section 149 IPC.
106. In Kuldip Yadav v State of Bihar, AIR 2011 SC 1736, it was held that Section 149 makes it clear that before convicting the accused with the aid of this provision, the court must give clear finding regarding nature of common object and that the object was unlawful. In 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". The Court must give clear finding regarding nature of common object and that the object was unlawful. Merely because the accused persons were armed in absence of any overt act would not be sufficient to prove common object. It is noteworthy that it was held in Raj Nath v State of UP, AIR 2009 SC 1422 also that in absence overt act, mere presence will not be sufficient to hold anyone guilty by applying section 149.
107. In a subsequent decision in Shaji v State of Kerala, 2011 (5) SCC 423, considering the above rulings, it was held that in order to attract Section 149 IPC, 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. This view was further affirmed in Ramachandran and others vs. State of Kerala, 2011 (9) SCC 257.
108. In State of Maharashtra v Ramlal Devappa Rathod, (2015) 15 SCC 77, the Court reiterated that section 149 makes both the categories of persons, those who committed the offence as also those who were members of the same assembly liable for the offence under section 149 IPC, if other requirements of the section are satisfied. Therefore, 'if an offence is committed by any person of unlawful assembly, which the members of that assembly knew to be likely to be committed, every member of that assembly is guilty of the offence.' Thus, the law is clear that membership of unlawful assembly is sufficient to hold such members vicariously liable.
109. In Vijay Pandurang Thakre v State of Maharashtra, AIR 2017 SC 897, the Supreme Court laying emphasis that it is on the prosecution to prove constitution of unlawful assembly by the accused persons, made following observation:
"The expression 'in prosecution of the common object' occurring in this Section postulates that the act must be one which have been done with a view to accomplish the common object attributed to the members of the unlawful assembly. This expression is to be strictly construed as equivalent to in order to attain common object. It must be immediately connected with common object by virtue of nature object. In the instant case, even the evidence is not laid on this aspect. As pointed out above, the courts below were influenced by the fact that one of the injuries on the person of Ashok was on his head which became the cause of death and from this, common object is inferred."
110. In Vinubhai Ranchhodbhai Patel v Rajivbhai Dudabhai Patel, AIR 2018 SC 2472, the Supreme Court has discussed in detail the law of vicarious liability under section 149 IPC. The Court said:
" For mulcting liability on the members of unlawful assembly under section 149, it is not necessary that every member of the unlawful assembly should commit the offence in prosecution of the common object of the assembly. Mere knowledge of the likelihood of commission of such an offence by the members of the assembly is sufficient. For example, if five or more members carrying AK 47 rifles collectively attack a victim and cause his death by gunshot injuries, the fact that one or two of the members of the assembly did not in fact fire their weapons does not mean that they did not have the knowledge of the fact that the offence of murder is likely to be committed."
The supreme court further said:
"The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual members of the assembly, in our opinion is impermissible."
111. In State of MP v Killu @ Kailash, 2020 (1) Crimes 47 (SC), five accused persons entered into the house of complainant side in the night, each separately armed with deadly weapon, two with sharp cutting weapon, one having ballam and two having lathi. The death of deceased was caused due to two injuries of sharp cutting weapon. There was no injury caused by lathi and ballam. The Supreme Court said that this would not absolve the other accused from the criminal liability who did not cause any injury. The Court remarked:
"For the application of the principles of vicarious liability under section 149 IPC what is material to establish is that the persons concerned were members of an unlawful assembly, the common object of which was to commit a particular crime. The fact that five persons were separately armed and had entered the house of the deceased during night time is clearly indicative that each one of them was a member of that unlawful assembly, the object of which was to commit the crime.... ."
112. Further, in State of UP v Ravindra @ Babloo, 2020 (1) Crimes 57 (SC), on similar facts based on mob attack, the Supreme Court laid down as follows:
"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 "common object" of an assembly is to be ascertained from the acts and language of the members comprising it, and from consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by members of the assembly. What the common object of the unlawful assembly is at a particular stage of incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident."
113. On the basis of above discussion, we find that, in order to fasten criminal liability with the help of section 149 IPC, the courts are required to take into consideration the facts and circumstances of each individual case. Where there is no doubt with regards to constitution of unlawful assembly and an offence is committed by it in prosecution of common object of the assembly, every member is liable for the offence irrespective of any role played or not. For instance, five or more persons came prepared forming unlawful assembly, armed or unarmed, entered into the premises of victim and committed offence. Another case may be of mob attack where it is not possible to even determine or identify the role of individual accused. Then, there may be a situation where the assembly may not be unlawful at the very inception and it becomes instantly and subsequently unlawful. In such situation, evidence as to knowledge of unlawful object and some overt act towards accomplishment, in addition to proof of unlawful assembly, is decisive for determination of guilt with the help of section 149. Proof of common object is required for conviction with the help of Section 149 IPC. The word 'knew' used in the section means that there should be positive knowledge about the common object. Mere presence in an unlawful assembly cannot render a person liable for an offence committed by that assembly unless there was a common object. The common object has to be definitely found and cannot be a matter of conjuncture or inference. Mere presence in assembly is not sufficient unless coupled with some overt act signifying sharing the common object. The meaning of prosecution of common object is attainment of common object; and 'object' means purpose or design and in order to make it common, it must be shared by all. Joining together with common object to commit the crime and knowledge that others are going to commit the crime is to be proved and established by the prosecution.
114. In view of the aforesaid discussion in respect of vicarious criminal liability, it has to be seen what evidence is on record on the basis of which it can be determined whether the accused appellants constituted an unlawful assembly to commit crime in prosecution of common object of the unlawful assembly and committed murder of the two deceased persons and inflicted simple hurt on the person of Smt. Sudama Devi. From the perusal of FIR and statements of the fact witnesses, it is apparent that both the sides were engaged in cutting and loading crops in their adjoining fields. There was no dispute or quarrel taking place earlier or before the incident and their relationship was normal. Both the sides are related to each other by common ancestor. It is also apparent that the accused side had not come prepared with deadly weapons in the field and they had axe, spade and sickles which are agricultural tools unless used as weapon. Carrying lathi (bamboo stick) is part of village life while involved in agricultural activities. Therefore, the presence of the accused-appellants on the field cannot be termed as unlawful assembly. The mother of the informant was grazing buffaloes on the mend of the fields of both sides and this gave rise to verbal quarrel as the accused persons objected on grazing the animal in their side. Accused persons were in seven in number and similar was the strength of the informant side. All the accused persons have been assigned the role of exhortation to kill. Needless to point out that exhortation is considered to be a very week evidence, unless coupled with some overt act, to show involvement in commission of crime.
115. Out of seven accused persons, accused Ram Singh and Amar Singh have been assigned lathi, accused Siyaram with axe and their role is only of exhortation. There is no injury of lathi to the deceased or anybody else except Sudama Devi and the evidence is that she was given a lathi blow on her back by accused Sahab Singh. Accused Siyaram also did nothing. Thus, nothing was done by accused Ram Singh, Amar Singh and Siyaram which can establish that they all constituted an unlawful assembly and shared the common object to commit crime. They did not chaise or checked anyone, nor they assisted the other accused towards commission of crime. It was an open place and they were there for cutting crops. There was no premeditated and pre-designed act. They belonged to the same family and their being together will not necessarily lead to a conclusion that they formed unlawful assembly together to commit crime. This finds further support from the fact that the deceased persons have sustained one injury each and none of these three have caused that injury. This also leads to definite conclusion that they could not know or realize that any such assault was likely to be caused to deceased persons by other accused. Hence, it is not proved that they constituted unlawful assembly and when the offence was committed, any such unlawful assembly was in existence.
116. We find added support to take the above view on the basis of judgement in Nagarjit Ahir v State of Bihar, (2005) 10 SCC 369, where it was held that it may be safe to convict only those persons against whom overt act is alleged, lest some innocent spectator may get involved. In Bunnilal v State of Bihar, AIR 2006 SC 2531 where only one single blow by one accused which resulted in the death of victim and intention of other accused to cause death was not proved nor any blow was found of the weapons other accused persons were having and there was no proof of knowledge that murder is likely to be committed, it was held that such accused persons cannot be held vicariously guilty for the offence of murder. In Siyaram v State of MP, (2009) 2 Crimes 166, it has been held that mere presence in an unlawful assembly cannot render a person liable unless the common object of the assembly is proved and conviction with the help of section 149 IPC would not be sustainable without such proof. In Vishnu v State of Rajasthan (2009) 10 SCC 773, the Supreme Court cautioned the courts to ascertain whether every member of an unlawful assembly knew the offence likely to be committed in prosecution of the common object in order to convict by applying section 149 IPC. The court should guard against danger of convicting innocent persons and for that purpose scrutinize record carefully and if doubt arises, should give benefit thereof to the accused. In Pandurang Chandrkant Mahatre v State of Maharashtra, (2009) 10 SCC 773, the Supreme Court held that where a large number of persons are alleged to have participated in commission of the crime and are sought to be convicted under section 149 IPC, the court needs to consider all the fact situation and convict only those accused whose presence was clearly established and overt act was proved. In Debashish v State of WB (2010) 9 SCC 111, it was reiterated that mere presence of the persons at the scene of offence, itself would not be enough for conviction unless it is established that each one of them was part of the unlawful assembly and committed the offence in prosecution of the common object of that assembly. It has been held in Vijay Pandurang Thakre (supra) that mere presence will not imply that the accused shared common object and formed unlawful assembly. Even if unlawful assembly is presumed, it is necessary to prove that the alleged crime was the common object. The learned trial court has failed to appreciate these facts and the approach adopted by him in holding these three accused persons guilty with the help of section 149 was not correct and reasonable. As such, the impugned conviction and sentence of accused Ram Singh, Amar Singh and Siyaram for the aforesaid offences is patently perverse and not sustainable under law.
117. The discussion aforesaid goes to establish that the prosecution version of constitution of unlawful assembly by accused persons does not stand and therefore, the criminal liability of remaining accused persons has to be determined keeping in view their individual role in the commission of offence. As per prosecution evidence, deceased Bhairo was assaulted by accused Achhey Lal by his axe who died of that injury while taking to Police Station within an hour. The FIR shows that it was alleged that accused Ram Charan and Mahendra hit Sripat by spade who sustained injury and died on spot. The medical evidence shows that deceased Sripat sustained one injury ranging from face to head. In the evidence, the prosecution witnesses have stated that the assault of accused Ram Charan got missed whereupon, accused Mahendra gave the fatal blow by his spade. The learned Senior Advocate has submitted it to be a huge improvement by the eye-witnesses finding one injury in the post-mortem report to the deceased Sripat. We find that positive evidence has been adduced that deceased Sripat sustained the injury caused by accused Mahendra Singh. A close scrutiny of the statement of PW-3 informant shows that he has not stated this fact to the IO even, nor any of the fact witnesses have stated as such. On the contrary, they have stated to IO that Ram Charan and Mahendra Singh, both hit Sripat by their spade. This improvement has been made only during trial that assault of accused Ram Charan got missed. In Alamgir v State of NCT, Delhi, (2003) 1 SCC 21, it has been laid down that if a relevant fact is not mentioned in the statement of the witness recorded u/s 161 CrPC but the same has been stated by the witness before the court as prosecution witness, then that would not be a ground for rejecting the evidence if his evidence is otherwise credit worthy and acceptable. Omission on the part of the police officer would not take away nature and character of the evidence. There is no doubt about the legal principle that the statement given to IO under section 161 CrPC can be used to contradict the testimony, but ultimately, what is stated before the court on oath during trial prevails. Now the question is what would be impact of this improvement? Certainly, this is a material contradiction, discrepancy and improvement with regards to the role of accused Ram Charan and it creates doubt about his involvement in the crime. Virtually, the fact witnesses have themselves absolved accused Ram Charan from any criminal liability in the incident. As such, accused Ram Charan should have been given benefit of doubt by the learned trial court and to that extent, the impugned judgement is not sustainable under law.
118. Now coming to the case of accused-appellant Achchhey lal who gave the fatal blow to deceased Bhairo and accused Mahendra Singh who caused injury to Sripat who instantly died out of that injury. Three eye-witnesses have stated that they caused injury and the same is supported by medical evidence. There is consistency in the statements of the witnesses and nothing has come out so as to disbelieve or discard their testimony. Their presence is natural at the time of incident and they are trustworthy. The axe and spade used for the commission of offence have been recovered on their pointing and in forensic examination, human blood has been found on them. Both the accused persons gave fatal blow which resulted in death of the two deceased persons. So far as contradiction, discrepancies and improvement in the statement of witnesses is concerned, they need not be over-emphasized in view of settled law that normal contradictions appearing in the testimony of a witness do not destroy or weaken the credibility of a case but material contradictions do so. In Sucha Singh v State of Punjab, (2003) 7 SCC 643 there are minor inconsistencies in the statements of witnesses and FIR in regard to number of blows inflicted and failure to state who injured whom, would by itself not make the testimony of the witnesses unreliable. This, on the contrary, shows that the witnesses were not tutored and they gave no parrot like stereotyped evidence. In Maqsoodan v State of UP, (1983) 1 SCC 218 where the witnesses give consistent version of the incident, it has been held by the Supreme Court that the consistent testimony of the witnesses should be held credible.
119. It is also clear that the FIR was lodged without any delay. The injuries found on the body of the deceased persons namely Bhairo and Sripat find support from the medical evidence and from the post-mortem report by which the date and time of causing the injuries is very much corroborated. Medical evidence clearly indicates that because of head injury both must have died immediately. The impact of the injury was such that brain was coming out from the head and it shows that the blow was such that it could in all probability cause instant death of the deceased persons. The place of occurrence has been fully established. There is no substantial contradiction or discrepancies in the evidence of the prosecution and some of the minor contradiction and discrepancies which have been discussed above does not effect the reliability of the witnesses and that also shows that they are not tutored. Thus, the witnesses examined by prosecution are natural, credible and trustworthy, so as to prove guilt beyond shadow of doubt against accused Achchhey Lal and Mahendra Singh.
120. The learned Senior Advocate for the accused-appellants has submitted that the case is covered by section 304 IPC simpliciter as per definition of culpable homicide and also, the facts of the case attract Explanation IV of section 300 IPC. As such, the conviction and sentence of accused persons for the offence under section 302 is illegal and the offence, if any is covered maximum under section 304 Part I IPC. Supporting his argument, the learned Senior Counsel has pointed out that only single injury has been caused in causing death and none of the appellants repeated the blow. There was no enmity nor any premeditation between two sides and they are related by common ancestor. Moreover, there was verbal altercation on account of buffaloes grazing in the field and upon the heat of sudden quarrel, the incident took place.
121. It has also been submitted that even against assailant Achchey Lal and Mahendra, an offence under Section 302 IPC is not made out as it is case of single blow in a sudden quarrel after being provoked by Heera Bai who was being backed in the quarrel by Bhairon and Sripat at the time of incident. The place of occurrence is situated in the field, which belonged to accused-appellants where the cattle of complainant side were grazing and it was objected from the side of accused persons. On which they insisted and claimed right to graze their cattle there. If considered the over all facts and circumstances, the offence under Section 304 part 2 IPC can only be attracted and in no case an offence under Section 302 IPC could be made out.
122. The learned Senior Advocate has referred the judgement in Criminal Appeal No. 5887 of 2010 (Haider Ali and others v State of UP), decided on 6.5.2019 where a Division Bench of this Court citing a numbers of judgement of the Supreme Court, converted the conviction under Section 302 IPC into Section 304 part 2 IPC giving advantage of Exception 4 of Section 300 IPC. The submission of the learned counsel to the accused-appellants is that in such situation where no role and act has been assigned, conviction of other accused persons is arbitrary and illegal. It has also been argued that the admitted fact is that the field of both sides is adjoining and both the sides were involved in agricultural activities in their respective fields. Only mother of the informant was grazing buffaloes on the mend upon which the incident allegedly took place. There was no previous enmity and the accused persons cannot be said to have come prepared to commit offence. The incident took place suddenly and there was no occasion for the accused persons to constitute unlawful assembly with the common object to commit the offence.
123. Section 299 IPC defines culpable homicide and section 300 of the Indian Penal Code defines murder and culpable homicide not amounting to murder as below:
"299. Culpable homicide - Whoever causes death by doing an act with intention of causing death, or with the intention of causing such bodily injury as islikely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
4thly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:--
First. - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly. - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly. - That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
124. Several times, the courts in India have outlined the distinction between the two offences and the thrust of the distinction has been based on the the degree of probability of the consequence of the criminal act. Where death is the most probable result and is caused with intention to cause death, the offence is murder, and where it is probable result, it is culpable homicide. The murder may become culpable homicide not amounting to murder if circumstances exist to bring the murder within any of the five exceptions to section 300 IPC. Academically, the distinction appears to be easy, but, when comes to factual matrix and is required to be determined on the basis of objective assessment of fact and evidence, the task is hard and a lot depends upon the sixth sense of the presiding judge who has been asked to give a decision.
125. In State of AP vs Rayavarapu Punnayya, AIR 1977 SC 45, the Supreme Court made following observation:
" .... whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of section 300, Penal Code is reached. This is the stage at which the court should determine whether the facts proved by the prosecution brings the case within the ambit of any of the four clauses of the definition of "murder"contained in section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder" punishable under the first or the second part of section 304, depending, respectively,on whether the second or the third clause of section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in section 300, the offence would still be "culpable homicide not amounting to murder," punishable under the first part of section 304, Penal Code."
It was further observed:
"In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree."
126. The above observation has been referred in subsequent decisions and the same holds the field as a guideline in order to appreciate and understand the distinguishing features of the offence of 'murder,' 'culpable homicide' and 'culpable homicide not amounting to murder.' In every murder there is culpable homicide and on existence of certain facts as mentioned in five exceptions to section 300 IPC, a murder may become culpable homicide not amounting to murder, and the difference between the two is the degree of probability and certainty. Where death is the likely result, it is culpable homicide and where it is most obvious result, the offence is murder and if such murder is covered by any of the exceptions to section 300, the same is punishable under section 304 and not under section 302 of the Indian Penal Code.
127. In Pappu vs State of MP, (2006) 7 SCC 391, the Supreme Court exhaustively dealt with the parameters of Exception 4 to section 300 and held that the same can be invoked if death is caused 1. without premeditation; 2. in a sudden fight; 3. without the offender having taken undue advantage or acting in a cruel or unusual manner; and 4. the fight must have been with the person killed. It was remarked, "It cannot be laid down as a rule of universal application that whenever one blow is given, section 302 ipc is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body on which it was given and several such relevant factors."
128. In Jagriti Devi vs State of HP, (2009) 14 SCC 771, it was held that the expression 'intention' and 'knowledge' postulate the existence of a positive mental attitude. It was further held that when and if there is intent and knowledge, then the same would be a case under first part of section 304 and if it is only a case of knowledge and not intention to cause death by bodily injury, then the same would be a case of second part of section 304.
129. In Chenda alias Chanda Ram vs State of Chhatisgarh, (2013) 12 SCC 10, pointing out that 'culpability depends on the knowledge, motive and the manner of the act of the accused,' the Supreme Court referring to Rayavarapu Punnayya (supra), converted the conviction of accused from section 302 IPC to section 304 IPC taking into consideration the following circumstances:
"There is no evidence or previous enmity. The incident has taken place on the spur of the moment. There is no evidence regarding the intention behind the fatal consequence of the blow. There was only one blow. The accused is young. There was no premeditation. The evolution of the incident would show that it was in the midst of a sudden fight. There is no criminal background or adverse history of the appellant. It was a trivial quarrel among the villagers on account of a simple issue. The fatal blow was in the course of a scuffle between two persons. There has been no other act of cruelty or unusual conduct on the part of the appellant. The deceased was involved in the scuffle in the presence of his wife and he had been actually been called upon by her to the spot.... ."
130. In Lavghanbha Devjibhai Vasava vs State of Gujarat, (2018) 4 SCC 329, the Supreme Court summarized the parameters to be taken into consideration while deciding the question as to whether a case falls under section 302 or section 304 IPC as follows:
"(a) the circumstance in which the incident took place; (b) the nature of weapon used; (c) whether the weapon was carried or taken from spot; (d) whether the assault was aimed on vital part of body; (e) the amount of the force used; (f) whether the deceased participated in the sudden fight; (g) whether there was any previous enmity; (h) whether there was any sudden provocation; (I) whether the attack was in the heat of passion; and (whether the person inflicting injury took any undue advantage or acted in the cruel or unusual manner.)"
131. On the basis of above discussion, to put it in simple terms, as outlined in Rayavarapu Punnayya (supra), it is clear that the Indian Penal Code recognizes three degrees of culpable homicide namely, (1) culpable homicide of the first degree, a gravest form of culpable homicide which is defined under section 300 as murder, (2) culpable homicide of the second degree, a lower or lessor form of homicide not amounting to murder as defined in section 299, punishable under the first part of section 304 and (3) culpable homicide of the third degree, a lowest type of culpable homicide, punishable under the second part of section 304.
132. The above classification is based on factors such as the degree of intention, surrounding circumstances in which death was caused, weapon used, influence of apprehension from severe beating from which the accused wanted to escape, causing injury exceeding the right of private defence, presence of premeditation and the like. A person has a right to defend himself and his own person and for that purpose he can use and cause injury as much as it is necessary. But if he exceeds his right and causes more injury than necessary and if death of such person results, the same is culpable homicide not amounting to murder.
133. Exception 4 to Section 300 of the IPC applies in the absence of any premeditation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. The question which arises for consideration of this Court is as to whether the act of accused-appellants would fall within the definition of 'murder' or it would be 'culpable homicide not amounting to murder'. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. Where there is no previous deliberation or determination to fight and a fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".
134. It has been also argued by the learned Senior Advocate that there appears to be no premeditation on the part of accused. Death has not been caused in unusual or cruel manner. There appears to be no enmity nor any criminal back ground of the accused. In our view, the following observation of the judgement in Kirpal Singh vs State, AIR 1951 Punjab & Haryana 137 is significant:
"To constitute a premeditated killing, it is necessary that the accused should have reflected with a view to determine whether he would kill or not; and that he should have determined to kill as the result of that reflection; that is to say, the killing should be a premeditated killing upon consideration and not a sudden killing under the sudden excitement and under impulse of passion upon provocation given at the time or so recently before as not to allow time for reflection. Such premeditation may be established by direct or circumstantial evidence, such as previous threats, expression of ill feelings, acts of preparation to kill; such as procuring a deadly weapon or selecting a dangerous weapon in preference to one less dangerous, and by the manner in which the killing was committed. For example, repeated shots, blows or other acts of violence are sufficient evidence of premeditation. Premeditation is not proved from the mere fact of a killing by the use of a deadly weapon but must be shown by the manner of the killing and the circumstances, under which it was done or from the other facts in evidence."
135. We find that the above proposition of law holds authority to determine the criminal liability for the offence of murder, culpable homicide and culpable homicide not amounting to murder. Several factors are to be taken into consideration keeping in view the facts and surrounding circumstances of each individual case. Thus, in Mahesh v State of MP, (1996) 6 SCC 668, where on account of cattle grazing in the field of accused by the victim side and accused objecting to it resulting in a sudden fight in terms of verbal altercation and may be exchange of abuse and hot words between both the sides, the accused gave one blow of spade causing death of the deceased, the Supreme Court modified the conviction from section 302 IPC to section 304 IPC. The Court made following observation:
".... we find that when appellant arrived along with the cattle at the field there was no premeditation for the assault. At the spot, there was altercation between the parties and in the sudden fight, after the deceased objected to the grazing of the cattle, when possibly hot words or even abuses were exchanged between the parties, the appellant gave a single blow with the pharsa on the head of the deceased. ..... thus, placed as the appellant and the deceased were at the time of occurrence, it appears to us that the appellant assaulted the deceased in that sudden fight and after giving him one blow took to his heals. He did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. Admittedly, he did not assault PW-2 or PW-6 who were also present along with the deceased...... . this fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. In this fact situation, we are of the opinion that Exception-4 to section 300 IPC is clearly attracted... ."
136. In Surain Singh v State of Punjab (2017) 5 SCC 796, there was dispute between both the sides on the point of irrigation. On the fateful day, the criminal incident took place resulting in death of two persons by giving several blows by a small kripan. The Supreme Court converted the conviction from section 302 IPC to section 304 IPC giving benefit of Exception-4 to section 300 IPC.
137. Now coming to the facts of this case, we find that accused Achchhey Lal gave one blow to deceased Bhairo and Mahendra Singh gave one blow to Sripat by his pharsa which resulted in death of both the deceased. Admittedly, the quarrel struck because the mother of the informant was grazing buffaloes at the time of incident on the mend of the fields of both the sides. From the side of accused persons it was objected saying why she left cattle towards their field. In the statement, PW-3 informant has stated that his mother was grazing four animals. The informant has stated that the mend between the fields of both sides was four feet wide which is apparently incorrect as the mend is normally about one to two feet maximum and this fact stands supported by the statement of PW-4 Badam Singh who has stated the mend to be one or one and half feet wide. This possibility cannot be ruled out that some of the animals might have entered in the field of accused side as the animal are not supposed to be that disciplined to restrict themselves on the mend nor it was possible for the mother of informant to alone keep the four animals on the mend. This gave rise to verbal quarrel as the accused side was objecting and the complainant side was insisting to let the cattle graze. Naturally, there was verbal altercation, exchange of hot words and possibly exchange of abuses between both sides. The accused persons were working in their fields. There is no evidence of any earlier dispute or enmity between both the sides nor there is any evidence that the accused persons came prepared in the field with any planning of committing offence. On the contrary, both sides are close relatives with normal relation and with no previous dispute. The offence has been committed by axe and spade which are normal agricultural tools. Therefore, it can also not be said that they took any unfair advantage during the incident. Both the accused gave only one blow and did not repeat the assault further, nor they chased any other person of complainant side nor caused injury to them. They did not even stay there after giving blow and ran away to forest, although, there was not much resistance or challenge from the side of complainant. Of course, death resulted of two persons by single blow given by both the accused almost instantly and the blow was so powerful that brain came out from the head, but, as discussed earlier, the nature of injury is not decisive of culpability and requisite intention and knowledge to cause death is significant and the same has to be determined keeping in view the preparation made, weapon used, nature of relationship between both sides whether normal or inimical and surrounding circumstances. In Surain Singh (supra) several blows were given by kripan causing death of two persons and there was enmity and litigation on the point of irrigation and in Mahesh (supra) death was caused in sudden verbal quarrel between both sides, and the Supreme Court converted the conviction from section 302 to section 304 IPC. In Govind singh vs State of Chhattisgarh, AIR 2019 SC 2120 and Rambir vs State of NCT, Delhi, AIR 2019 SC 2264, where the appellant was convicted for the offence under section 302 IPC, the Supreme Court, finding that there was no premeditation on the part of the accused and the incident took place in sudden quarrel, modified the offence into that of section 304 IPC and reduced the sentence accordingly. We find on facts and on the basis of above discussion and analysis of the judgement of the Supreme Court on the point, that the case of accused Achchhey Lal and Mahendra Singh is on much better footing to conclude that their act attracts the offence of culpable homicide not amounting to murder punishable under section 304 Part I instead of the offence of murder punishable under section 302 IPC.
138. On the basis of above discussion, we are of the view that the conviction and sentence of accused-appellants Ram Singh, Amar Singh and Siyaram is illegal and not sustainable and they are entitled to be acquitted, whereas, accused-appellant Ram Charan is entitled to be acquitted according him benefit of doubt. The charges against accused-appellants Achchhey Lal and Mahendra Singh for the offence under section 148, 323/149 IPC have not been proved beyond shadow of doubt and they deserve to be acquitted for the said charge. The conviction of accused-appellants Achchhey Lal and Mahendra Singh is liable to be converted from section 302 IPC to section 304 Part I IPC and consequently, their sentence of life imprisonment is liable to be modified to 12 years rigorous imprisonment and fifty thousand rupees fine each and in default, two years additional imprisonment. Out of the amount of fine so deposited, 80% is directed to be paid to the informant/ heir of deceased persons.
139. Criminal Appeal no. 1164 of 2000 is allowed. The conviction and sentence of accused-appellants Siyaram, Ram Singh, and Amar Singh for the offence under section 302/149, 147, 323/149 IPC and accused-appellant Ram Charan for the offence under section 302/149, 148, 323/149 IPC is set aside and they are acquitted.
140. Criminal Appeal no. 1503 of 2000 is partly allowed. The conviction and sentence of accused-appellants Achchhey Lal and Mahendra Singh for the offence under section 148, 323/149 is set aside and they are acquitted for the said charge. The conviction of Accused-appellants Achchhey Lal and Mahendra Singh for the offence under section 302/149 IPC is converted into that of section 304 Part I IPC and consequently, their sentence of life imprisonment is reduced to 12 years rigorous imprisonment and fifty thousand rupees fine each and in default, two years additional imprisonment. Out of the amount of fine so deposited, 80% is directed to be paid to the informant/ heir of deceased persons.
141. Accused-appellants Achchhey Lal and Mahendra Singh are directed to surrender before the learned trial court forthwith where from they will be sent to jail to undergo the sentence.
142. Lower court record be transmitted back to the court below with a copy of this judgement to the court below for information and compliance.
Order Date :- 23.04.2020
Mini
(Justice Pradeep Kumar Srivastava) (Justice Pankaj Mithal)