Allahabad High Court
Jagdamba & Others vs State Of U.P. on 13 May, 2021
Equivalent citations: AIRONLINE 2021 ALL 750
Bench: Ramesh Sinha, Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH (Per: Rajeev Singh,J.)
1. Heard Shri Arun Sinha, learned counsel for the appellants and Ms. Nand Prabha Shukla, learned A.G.A. for the State and perused the lower court record.
2. The present appeal has been filed by the appellants namely Jagdamba, Amerika Prasad, Chinta @ Chinta Ram @ Chinta Prasad @ Sheo Shankar and Bachhraj, under Section 374 (2) Cr.P.C., against the judgment and order dated 16/17.01.1985 passed by learned Additional Sessions Judge-I, Gonda in Sessions Trial No.174 of 1983 (State Vs. Bhagwati and Others) arising out of Case Crime No.135 of 1982, under Sections 147, 148, 149, 324, 323, 302 I.P.C., Police Station Intiathoke, District Gonda, whereby acquitting the co-accused persons namely Bhagwati, Kalp Nath, Bharose @ Ram Bharose, Suggu @ Sukhdeo, Ram Kewal, Vishram and Girwar, and convicting the appellants namely Jagdamba, Amerika Prasad, Chinta and Bachhraj, under Sections 302/34 and 324/34 I.P.C. and sentenced them for life imprisonment with a further sentence of two years of Rigorous Imprisonment with a fine of Rs.500/-, in default of payment of fine, additional six months of rigorous imprisonment.
3. During pendency of the present appeal, the appellant No.1 namely Jagdamba had died, as a result, the appeal in relation to him was abated on 02.04.2019.
4. The prosecution case is that on 19.12.1982 at about 01:30 a.m., when Ram Dularey (complainant) was sleeping along with his wife Smt. Patiraji, son Chandrika Prasad, daughters Kamla Devi & Madhuri Devi, relative Ram Gulam and son-in-law Kamla Prasad in the thatcher (Chhappar) lying west to his house, while his elder son Shanti Prasad was sleeping in the Charni (place used for keeping fodder) lying in front of the house and his other son namely Nanhey Prasad was sleeping in another Marha lying to the east of the house, the accused persons namely Jagdamba armed with Pharsa, Girwar & Amerika armed with Spears, Chinta & Bachha Raj armed with Gandasa and rest of the accused persons armed with lathi, arrived at the door of the complainant and on the barking of dogs, the complainant woke up and noticed the presence of accused persons in the light of torch and the lantern that was hanging onto the branch of Jack Fruit (Kathal) tree in front of the house; by that time, the accused persons entered in the Charni where Shanti Prasad was sleeping, and the accused persons namely Chinta Ram, Jagdamba and Bhulan @ Bachha Raj started inflicting blows with their respective weapons on Shanti Prasad while rest of the accused persons were holding him. The complainant raised alarm and he along with his, wife Smt. Patiraji, son Chandrika Prasad and relations rushed to save Shanti Prasad. In the meantime, Nanhey Prasad also woke up in his Marha and was sitting on cot. After committing the murder of Shanti Prasad, the accused persons had rushed to Marha of Nanhey Prasad and after entering therein, the accused persons namely Chinta Ram, Jagdamba and Bachhraj started inflicting blows with their respective weapons on Nanhey Prasad while other co-accused persons were holding him. As the complainant and his wife tried to save their son Nanhey Prasad, the complainant was assaulted by accused Jagdamba and Amerika, and his wife Patiraji was assaulted by Amerika. On the alarm raised by the complainant and his relations, the inhabitants of nearby village reached on the spot, and the accused persons ran away toward east. The deceased persons namely Shanti Prasad and Nanhey Prasad died on the spot and in the F.I.R., motive behind the incident was attributed to long standing enmity between the complainant and the accused persons.
5. The aforesaid written complaint was furnished at Police Station Intiyathoke, District Gonda by Ram Dularey (complainant) on 19.12.1982 at 08:45 a.m. and a case was registered against all the accused persons as Case Crime No.135 of 1982, under Sections 147, 148, 149, 324, 323, 302 I.P.C., the chick F.I.R. was prepared and the entry of lodging the F.I.R. was made in the G.D. Inquest of the bodies of the deceased namely Shanti Prasad and Nanhe Prasad was conducted on 19.12.1982 at 01:00 p.m. and 03:00 p.m. respectively. The injured persons namely Ram Dularey and Smt. Patiraji were also sent for medical examination and were medically examined in the emergency wing of District Hospital Gonda on 20.10.1982 between 01:40 p.m. to 03:00 p.m. The Investigating Officer also took in his possession the blood-stained clothes like Kurta, Angochha and piece of blanket from the charni where dead body of Shanti Prasad was found and he also took in his possession the blood-stained clothes of Nanhe Prasad like woolen sweater and dhoti from the thatcher (Chappar), where he was lying dead, and also took in his possession the blood-stained and simple earth from the charni and thatcher. From the place of incident, the Investigating Officer had also took in his possession two torches of witnesses namely Ram Gulam and Kamla Prasad, torch of the complainant and the lantern, and prepared memos but these articles were given in the Supurdagi of concerned persons. The dead bodies of Shanti Prasad and Nanhey Prasad were sent for postmortem along with the necessary papers and the postmortem of the body of Shanti Prasad was conducted at mortuary on 20.12.1982 at 02:00 p.m., and the postmortem of body of Nanhey Prasad was conducted on 20.12.1982 at 03:00 p.m. The Investigating Officer had also prepared the site plan and sent the collected blood-stained clothes and earth for chemical examination and serologist's report.
6. The Investigating Officer had also recorded the statement of injured and other witnesses and on the basis of the statements of Ram Dularey (complainant/injured), Smt. Patiraji (injured) and other witnesses recorded under Section 161 Cr.P.C., documentary evidence including the postmortem report of the deceased which shows the antemortem injury and the injury report of the injured persons, the Investigating Officer came to the conclusion that the deceased persons namely Shanti Prasad and Nanhey Prasad were killed by the accused persons and the complainant as well as his wife Smt. Patiraji were also assaulted by them, therefore, the charge sheet under Sections 147, 148, 149, 324, 323, 302 I.P.C. was filed against the accused persons and the case was committed to the court of Sessions. The case was registered as Sessions Trial No.174 of 1983 and the combined charge under Sections 302/149 I.P.C. was framed against all the accused persons, separate charges under Sections 148, 324/149 I.P.C. were framed against accused Jagdamba, Chinta, Girwar, Amerika and Bachhraj while another separate charge under Sections 147 and 323/149 I.P.C. were framed against accused Ram Kewal, Vishram, Suggu, Kalpnath, Bharosey and Bhagwati, but the accused persons denied the respective charges and requested for trial to prove their case.
7. To prove its case, the prosecution in all examined 11 witnesses namely PW-1 Ram Dularey (complainant and father of the deceased as well as the injured/eye witness), PW-2 Chandrika Prasad (son of the complainant/eye witness), PW-3 Smt. Patiraji (wife of the complainant/eye witness), PW-4 Kamla Prasad (son-in-law of the complainant/eye witness), PW-5 Asharfi Lal & PW-6 Ram Sanehi (both witness of inquest report and memos), PW-7 Head Constable Keshav Prasad Tewari, PW-8 Constable Virendra Pratap, PW-9 Dr. R.V. Pandey (conducted postmortems), PW-10 Dr. Harish Chandra Srivastava (examined injured persons) and PW-11 R.P. Singh (Investigating Officer).
8. The prosecution has also relied on 35 documentary evidences i.e. Ext. Ka-1: Written complaint of complainant; Ext. Ka-2: Recovery memo and Supurdagi of two torches; Ext. Ka-3: Inquest report of the body of Shanti Prasad; Ext. Ka-4: Inquest report of the body of Nanhey Prasad; Ext. Ka-5: Recovery memo for taking into possession of blood-stained clothes of Shanti Prasad; Ext. Ka-6: Recovery memo for taking into possession of blood-stained clothes of Nanhey Prasad; Ext. Ka-7: Recovery memo for taking into possession of blood-stained and simple earth from Charni where Shanti Prasad was lying dead; Ext. Ka-8: Recovery memo for taking into possession of blood-stained and simple earth from Marha where Nanhey Prasad was lying dead; Ext. Ka-9: Recovery memo for taking into possession of Supurdagi of one Lantern; Ext. Ka-10: Recovery memo for taking into possession of Supurdagi of one torch; Ext. Ka-11: Chick F.I.R. of Case Crime in question; Ext. Ka-12: G.D of lodging the F.I.R.; Exts. Ka-14 & Ka-15: Postmortem reports of the deceased persons namely Shanti Prasad and Nanhey Prasad respectively; Exts. Ka-16 & Ka-17: Medical reports of the injured persons namely Smt. Patiraji and Ram Dularey respectively; Exts. Ka-18 to Ka-27: relevant papers sent along with the body of deceased namely Shanti Prasad and Nanhey Prasad; Ext. Ka-28: Site plan; Exts. Ka-29 to Ka-31: Memo of search of the houses of accused persons; Ext. Ka-32: Charge sheet filed by the Investigating Officer against Bhagwati, Kalp Nath, Bharose @ Ram Bharose, Suggu @ Sukhdeo; Ext. Ka-33: Charge sheet filed by the Investigating Officer against Jagdamba Prasad, Amerika Prasad, Chinta Prasad @ Shiv Shankar, Bachhraj and Girwar; Exts. Ka-34 & Ka-35: Report of chemical analysis and serologist.
9. After completion of the statement of prosecution witnesses, the statement of accused persons under Section 313 Cr.P.C. was recorded and they denied all the allegations. According to them, they have been falsely implicated on account of enmity. The accused Bachhraj, Chinta and Vishram stated that they are brothers of Ram Kewal, who had instituted some complaint case against Ram Dularey (complainant). The accused Suggu stated that he is father of Ram Kewal, who had instituted some complaint case against the complainant, which was going on at the time of occurrence and the complainant had further been prosecuted in a theft case at his instance. The accused Jagdamba stated that his uncle namely Girwar Prasad had given some land to his brother-in-law namely Amerika, therefore, Ram Dularey had felt ill about the same as he wanted to take the land himself. The accused Bhagwati stated that he is Sarpanch of Nyaya Panchayat Dariapur and had decided a criminal case against Ram Dularey, which had been instituted by Girwar and Kalpnath and had also been a witness in a theft case against the complainant. The accused Amerika stated that he had taken some land from Girwar, as a result, complainant was annoyed with Girwar. The accused Girwar stated that he had given some land to Amerika that is why, the complainant was annoyed with him. The accused Ram Bharose stated that as Girwar had given some land to Amerika, the complainant was annoyed. The accused Kalpnath stated that he had prosecuted the complainant for theft, in which the complainant had been fined.
10. The accused persons in defence, examined DW-1 Shri Mathura Prasad Pandey, Petition Clerk of the office of District Magistrate, Gonda and got proved, a portion of statement under Section 161 Cr.P.C. of Ram Dularey (PW-1), a portion of statement under Section 161 Cr.P.C. of Chandrika Prasad (PW-2), a portion of statement under Section 161 Cr.P.C. of Smt. Patiraji (PW-3) and a portion of statement under Section 161 Cr.P.C. of Kamla Prasad (PW-4) as Ext. Kha-1, Ext. Kha-2, Ext. Kha-3 and Ext. Kha-4 respectively; and also got proved copy of chick F.I.R. of Case Crime No.135 of 1982, under Sections 147, 148, 149, 324, 323, 302 I.P.C. (Ext. Kha-5); signature of the District Magistrate over it (Ext. Kha-6); filed copy of injunction application of Suit No.159 of 1982 (Ram Dularey vs. Chunnu & Others) in the court of Munsif, Gonda (Ext. Kha-7); copy of the report of Process Server in Suit No.159 of 1982 (Ext. Kha-8); order of the court dated 27.03.1982 in the said case (Ext. Kha-9); copy of the chick F.I.R. of Case Crime No.228, under Sections 379/411 I.P.C., P.S. Mankapur (State vs. Deo Narain) along with the copy of recovery of case property (Ext. Kha-10); copy of the questionnaire in criminal case under Section 107/116 Cr.P.C. (Ext. Kha-11); copy of the revision petition in re: Panchayat Revision No.6 of 1982 (Ram Dularey vs. Girwar), Ext. Kha-12; copy of the revision petition in Misc. Case No.14 of 1982 (Ram Dulare vs. Ram Kewal), Ext. Kha-13; copy of the revision petition in Misc. Case No.15 of 1982 (Ram Dularey & Others vs. Kalpnath), Ext. Kha-14; copy of the Kutumb register of village Dariapur Mafi concerning House No.109 (Ext. Kha-15); copy of the F.I.R. in Case Crime No.42 of 1977, under Sections 147, 148, 149, 366, 511, 395, 397 I.P.C. lodged against Ram Sabad & Others (Ext. Kha-16); copy of charge sheet in Case Crime No.42 of 1977 (Ext. Kha-17); copy of the order dated 08.05.1981 of the Judicial Magistrate, Gonda in Case No.293 of 1980, under Sections 379/411, 225 I.P.C. (State vs. Keshav Ram & Others), Ext. Kha-18; copy of the statement of Nanhey in S.T. No.155 of 1980, under Sections 302, 323/34 I.P.C. in the court of Additional Sessions Judge-I, Gonda dated 04.12.1980 (Ext. Kha-19); copy of the charge sheet in Case Crime No.66 of 1982, under Section 379 I.P.C. (Ext. Kha-20); photocopy of the marksheet of B.A. Part I in the name of Shiv Shanker Dayal Tewari (Ext. Kha-21); photocopy of marksheet of B.A. Part II (Ext. Kha-22); and copy of the judgment dated 13.06.1964 passed by Shri K.B. Srivastava in S.T. No.60 of 1964 (State vs. Deep Narain & 3 others, Ext. Kha-23.
11. After hearing the counsel for the prosecution, counsels for the accused persons and going through the material available on record, the judgment in question was passed by the court below which is under challenge in the present appeal.
12. Learned counsel for the appellants has submitted that the appellants except Amerika Prasad, belong to the same family tree to which informant belongs, and the appellant Amerika Prasad is the brother-in-law of the appellant Jagdamba in whose favour a sale deed was executed by Girwar, therefore, the informant was annoyed. He further submitted that no such incident was taken place, in the manner, as alleged by the informant, his family members and his relatives, but the correct facts are that some incident of dacoity was taken place, in which the sons of Ram Dularey (informant/PW-1) received injuries, as a result, they had died and in the said incident, informant and his wife namely Smt. Patiraji had also received injuries, but only on account of enmity, the appellants and other family members were falsely implicated. He further submitted that Ram Dularey (complainant and the father of the deceased persons/PW-1) has deposed before the trial court that his son Shanti Prasad was sleeping in the Charni and Nanhe Prasad was sleeping in Marha while he along with his son Chandrika Prasad, wife Patiraji and relatives Kamla Prasad and Ram Gulam was sleeping in another Marha in front of his house with torches and lantern hanging onto branch of Jack Fruit tree in front of the door. The accused persons arrived there in the fateful night at about 01:30 a.m. and the complainant woke up at the barking of the dogs. In the meantime, accused persons among whom, Jagdamba armed with pharsa, Chinta Prasad & Bachhraj armed with Gandasa, Amerika & Girwar armed with spears and rest armed with lathis, entered in the Charni, and Chinta Prasad, Jagdamba and Bhulan @ Bachhraj started inflicting injuries with their respective weapons on Shanti Prasad while rest were holding him. He further submitted that the aforesaid incident is not possible and it is highly probable that he saw the said incident in the torch, and thereafter, the informant and others raised alarm, then Nanhey Prasad, who was sleeping in other Marha, had woke up and sat on cot. At the same time, the accused persons rushed to the Marha of Nanhey Prasad, and after entering into Marha, Chinta Prasad, Jagdamba and Bachhraj started inflicting injuries on him while rest were holding him. When the informant and his wife tried to intervene to save life of his son Nanhey Prasad, then Jagdamba and Amerika caused spear injuries to informant and America also caused injuries to the wife of informant.
13. Learned counsel for the appellants has submitted that Smt. Pati Raji (PW-3) has also reiterated the same version as given by Ram Dularey (PW-1) and stated that Amerika caused injuries to her when she tried to save her son Nanhey Prasad. He further submitted that PW-1 & PW-3 are father and mother of the deceased persons respectively and they are relative and injured witnesses. He further submitted that the learned court below has committed error in considering the evidence of PW-1 and PW-3 and again submitted that due to enmity, the false implication have been made by the informant and his family members. He further submitted that as per prosecution, Ram Dularey (PW-1), who was having inimical relation with accused persons, has raised alarm, but in place of causing any such injury to him, the accused persons caused injuries, first to Shanti Prasad and then to Nanhey Prasad, and the accused persons did not cause any such injury at the beginning to Ram Dulare (PW-1), Chinta Prasad (PW-2) and Smt. Patiraji (PW-3). The prosecution story that the PW-1 & PW-3 received injuries when they tried to save his son Nanhey Prasad, which is highly improbable.
14. Learned counsel for the appellants has submitted that as per the prosecution case, the nearby villagers also reached on the place of incident, but no such independent witnesses were produced by the prosecution. He further submitted that as per the prosecution case, the F.I.R. was lodged on the written complaint of Ram Dularey (PW-1) on 19.12.1982 at about 08:45 a.m. and chick report was prepared against the accused persons. Thereafter, the injured persons namely Ram Dularey (PW-1) and Smt. Patiraji (PW-2) were sent for medico-legal examination and their medico-legal report reveals that they were medically examined in the emergency wing of District Hospital Gonda on 20.12.1982 between 01:40 p.m. to 03:00 p.m., which is highly improbable as the injured persons were medically examined after a long period and it is obligatory on the part of the prosecution to explain the delay for medical examination but he fails to do so, therefore, the prosecution story is doubtful. He further submitted that as per the prosecution case, the accused persons armed with lathi had not assaulted anyone, which is also highly improbable.
15. Learned counsel for the appellants has submitted that the appellant Amerika has neither assaulted Shanti Prasad nor Nanhey Prasad (deceased persons) and learned court below has wrongly convicted him under Section 302/34 I.P.C., and he can only be convicted under Section 324 I.P.C. for causing injuries to the injured persons, and the accused persons, those were armed with lathis, were acquitted by the trial court. He further submitted that accused Chinta Prasad was 18 years old at the time of incident and though he was armed with spear, he did not assault either of the persons, who died or had been injured, therefore, his conviction is also wrong.
16. Learned counsel for the appellants has submitted that it appears from the prosecution case that the F.I.R. is ante timed as the injured persons, on whose complaint the impugned F.I.R. was lodged, were medically examined on 20.12.1982 from 02:00 p.m. to 03:00 p.m., and as per DW-1 Shri Mathura Prasad Pandey, Petition Clerk of the office of District Magistrate, Gonda, special report in relation to the said incident reached to the Bungalow of District Magistrate on 19.12.1982 at 08:15 p.m. He further submitted that as the incident was of 19.12.1982 at about 01:30 a.m., therefore, the learned trial court has committed error in considering all these facts and convicted the appellants.
17. Learned A.G.A. has opposed the arguments of learned counsel for the appellants and submitted that the incident was taken place on 19.12.1982 at about 01:30 a.m. and the F.I.R. in question was lodged on the same very day at about 08:45 a.m., on the written complaint of the injured Ram Dularey (PW-1), who proved the written complaint (Ext. Ka-1) and on his complaint, chick F.I.R. was prepared (Ext. Ka-11) and it was duly proved by PW-7 Head Constable Keshav Prasad Tewari along with the G.D. Entry of the incident, and the inquest of the body of the deceased persons were conducted by PW-11 R.P. Singh (Investigating Officer) and body was sent for postmortem and the postmortem was conducted by PW-9 Dr. R.V. Pandey, who supported the prosecution version and categorically stated that all the injuries, found on the body of the deceased persons, are to be caused by sharp edged weapon like Gandasa and Pharsa and the doctor has opined that the death of Shanti Prasad and Nanhey Prasad has been caused due to shock and hemorrhage and coma as a result of ante-mortem head injuries.
The ante-mortem injuries of deceased Shanti Prasad are as under:-
1. Incised wound 12 cm x 2 cm x bone deep (bone out) left side head across left ear middle (left ear pinna out).
2. Incised wound 18 cm x 2 cm x brain cavity deep left side head, 1.5 cm above injury No.1.
3. Incised wound 20 cm x 2.2. cm x brain cavity deep left side head- 2 cm above injury No.2.
4. Incised wound 10 cm x 1 cm x brain cavity deep- left side head, 2 cm above injury No.3.
5. Incised wound 8 cm x 1 cm x bone deep (bone partially cut) 6 cm above left eye brow.
6. Incised wound 5 cm x 0.5 cm x muscle deep, top of right shoulder.
7. Incised wound 3 cm x 0.1 cm x skin deep, dorsum and root of right index finger.
The ante-mortem injuries of deceased Nanhey Prasad are as under:-
1. Incised wound 6 cm x 1.5 cm x 2 cm- left side neck underneath skin, soft tissues, muscles, vessels cut.
2. Incised wound 0.9 cm x 1 cm x bone deep- left side head below left ear- left ear pinna partially cut.
3. Incised wound 10 cm x 1 cm x brain cavity deep, back of left side head 0.5 cm behind left ear.
4. Incised wound 9.5 cm x 1 cm x brain cavity deep back of left side head 9 cm behind left ear.
5. Incised wound 18 cm x 2 cm x brain cavity deep- left side head crossing injury No.4, 2 cm above left ear.
6. Incised wound 10 cm x 4 cm x muscle deep on outer part left shoulder.
18. Learned A.G.A. has also submitted that Dr. Harish Chandra Srivastava (PW-10) was produced before the court below, who conducted the medical examination of the injured persons namely Ram Dularey (complainant/PW-1) and Smt. Patiraji (PW-3), and he deposed before the court below that the injuries of Ram Dularey can be caused by sharp cutting object and were of serious nature, and the injuries of Smt. Patiraji can be caused by sharp cutting object.
The injuries of Ram Dularey (PW-1) are as under:-
1. Incised wound 3 cm x 1/2 cm x skin deep, margin clean cut transverse over back of left ear.
2. Incised wound 6 cm x 1 cm x bone deep over lateral aspect of left wrist joint.
3. Incised wound 2 cm x 1/5 cm x skin deep over tip or right index finger.
4. Incised wound 2 cm x 3/2 cm x bone deep over middle finger.
5. Incised wound 3 cm x 1/2 cm x bone deep over fourth finger right hand dorsal aspect.
The injuries of Smt. Patiraji (PW-3) are as under:-
1. Contusion 7 cm x 3 cm over front of right upper arm, 6 cm above elbow joint.
2. Punctured wound 2 cm x 1 cm x bone deep (5/2 cm) over left upper arm, 14 cm below.
19. Learned A.G.A. has also submitted that it is undisputed that the accused persons and the deceased as well as injured persons belong to the same family tree, and are closely associated to each other and are inimical to each other, therefore, motive cannot be denied. She also submitted that testimony of the injured witnesses, even if they are related witnesses, cannot be discredited merely on the ground that they are related witnesses. She also submitted that the manner of assault as deposed by the injured witnesses namely Ram Dularey (PW-1) and Smt. Patiraji (PW-3), and other eye witnesses namely Chandrika Prasad (PW-2) and Kamla Prasad (PW-4), are corroborating with the injuries found on the body of the deceased persons as well as the injured persons. She also relied on the judgment of Hon'ble Supreme Court in the case of Baleshwar Mahto and Another Vs. State of Bihar and Another reported in (2017) 3 SCC 152. She also submitted that the F.I.R. cannot be said ante timed as PW-1 Ram Dularey (complainant) as well as PW-11 R.P. Singh (Investigating Officer) were cross-examined by the defence counsels in the trial, but they failed to ask any question to support the accused version, and the inquest of the body of the deceased persons namely Shanti Prasad and Nanhey Prasad were conducted on 19.12.1982 at 01:05 p.m. and 01:20 p.m. respectively in which description of the crime scene is mentioned.
20. Learned A.G.A. has also submitted that the injured persons were medically examined. She also submitted that Special report in relation to the incident was sent on the same day to the office of District Magistrate, Gonda, it was received in the office of District Magistrate, Gonda in the evening at 08:15 p.m., even then the prosecution story cannot be discredited as the prosecution story is corroborating with the ocular injured witnesses, other witness and with the antemortem injuries of Shanti Prasad and Nanhey Prasad as well as with the injury reports of the injured persons namely Ram Dularey (PW-1) and Smt. Patiraji (PW-3), and the learned trial court has rightly considered the evidence of the prosecution and convicted the appellants. She also submitted that on the basis of facts, seven persons out of eleven accused persons were acquitted by the trial court, which do not help the present appellants, therefore, the present appeal is liable to be rejected. She also relied on the judgments of Hon'ble Supreme Court in the case of Mahendran Vs. State of Tamil Nadu reported in (2019) 5 SCC 67 and Jafel Biswas and Others Vs. State of West Bengal reported in (2019) 12 SCC 560.
21. Learned A.G.A. has also submitted that though the appellant Amerika Prasad has neither assaulted Shanti Prasad nor Nanhey Prasad and only caused injuries to the injured persons, the learned trial court has rightly convicted him under Section 302/34 I.P.C. and the learned trial trial court acquitted the other accused persons after considering facts and circumstances of the case. She also submitted that though the accused Chinta had not assaulted either of the deceased persons, his common intention to commit offence cannot be denied with and the learned trial court has rightly convicted him. She also relied on the judgment of Hon'ble Supreme Court in the case of Abdul Sayeed vs. State of M.P. reported in (2010) 10 Supreme Court Cases 259.
22. Considering the arguments of the learned counsel for the appellants and the learned A.G.A. and going through the trial court record, we deal the arguments of learned counsel for the appellants as under:-
(i) The prosecution had produced four witnesses of the fact before the trial court i.e. PW-1 Ram Dularey (eye witness/injured/complainant), PW-2 Chandrika Prasad (eye witness), PW-3 namely Smt. Patiraji (injured/eye witness) and PW-4 Kamla Prasad and it is undisputed that the aforesaid witnesses are relatives of the deceased.
(ii) As the learned counsel for the appellants has submitted that on account of enmity, the appellants and other accused persons were implicated and the incident was not taken place in the manner as claimed by the prosecution, and the aforesaid witnesses are entrusted and relative witnesses, therefore, there testimonies are not reliable, it is evident that Ram Dularey (PW-1) in his testimony has stated the fact that how his sons namely Shanti Prasad and Nanhey Prasad were sleeping in Charni and Marha respectively while he along with his son Chandrika Prasad, wife Smt. Patiraji and relatives Kamla Prasad & Ram Gulam were sleeping in another Marha in front of his house, and the lantern was hanging with a branch of Jack Fruit (Katahal) tree in front of the door and they were having torches, and how the accused persons i.e. appellants along with other accused persons arrived there in the night of 19.12.1982 at about 01:30 a.m., whereafter on the barking of the dogs, the complainant woke up, in the meantime, accused persons among whom, Jagdamba armed with Pharsa, Chinta Prasad & Bachhraj armed with Gandasa, Amerika & Girwar armed with spears and rest of the persons armed with lathis, entered into the Charni where Shanti Prasad was sleeping and Chinta Prasad, Jagdamba, Bhullan @ Bachhraj started inflicting injuries with their respective weapons on Shanti Prasad while rest were holding him, and on at this moment, the complainant raised alarm on which, he along with his son Chandrika Prasad, wife Smt. Patiraji and his relatives Kamla Prasad and Ram Gulam rushed to the seen, and after murdering Shanti Prasad, the accused persons rushed to the other Marha in which Nanhey Prasad was sleeping, who had woke up and sat on the cot on the alarm raised by these witnesses, entered into Marha and the accused persons namely Chinta Prasad, Jagdamba and Bachhraj again started inflicting injuries on him while rest were holding him; as Ram Dulare (complainant) and his wife Patiraji tried to intervene to save their son Nanhey Prasad, Jagdamba and Amerika caused spear injuries to the complainant and Amerika Prasad also caused injuries to his wife Patiraji; both the sons of complainant died on the spot and the accused persons disappeared when the inhabitants of nearby villages started reaching on the place of incident on hearing the alarm; and PW-2 Smt. Patiraji has also narrated the same version of the prosecution story as deposed by PW-1 Ram Dularey which does not need to be narrated again, and she also stated particularly that the accused Amerika had caused injuries to her when she tried to intervene to save her son Nanhey Prasad.
(iii) Ram Dularey (PW-1) and Smt. Patiraji (PW-3) are father and mother of the deceased persons respectively and in all probabilities, they must be there on the door and themselves have reached the scene when their own sons were being murdered and they are also the injured witnesses, and their presence on the spot cannot be doubted at all as the injury report of PW-1 Ram Dularey (Ext. Ka-17) corroborated the manner as deposed in his statement and similarly the injury report of PW-3 Smt. Patiraji (Ext. Ka-16) also corroborated with her statement, and the injury report of the aforesaid witnesses were duly proved by Dr. Harish Chandra Srivastava (PW-10), therefore, the statement of the learned counsel for the appellants that the testimonies of PW-1 and PW-3 are not reliable is not acceptable.
(iv) PW-2 Chandrika Prasad has supported the prosecution story as stated by PW-1 and PW-3, and PW-2 & PW-4 have also supported the prosecution case as stated by PW-1 & PW-3 and stated that they were sleeping in the Marha along with the PW-1, PW-3 and others, and they had woke up at the barking of the dog and had seen the occurrence; PW-2 Chandrika Prasad had also stated that his relations namely Kamla Prasad and Ram Gulam had come in the preceding evening from the date of incident at about 05:00 p.m. as on the next date mundan ceremony of son of Shanti Prasad was to take place; PW-4 Kamla Prasad also gave the same version and narrated the prosecution story with the fact that his relative namely Ram Gulam had also come there in the preceding evening on the invitation and had seen the occurrence; presence of Chandrika Prasad (PW-2) on the spot cannot be doubted because he must have remained there at his door and must have reached the scene when his two brothers were being murdered.
(v) With regard to the presence of Kamla Prasad (PW-4) on the place of incident, it has been submitted by the learned counsel for the appellants that his statement under Section 161 Cr.P.C. was recorded by the Investigating Officer on 18.01.1983 after about a month of the incident, therefore, his testimony should not to be accepted, but he failed to contradict his deposition stated before the trial court, therefore, this court is unable to accept the submissions of the learned counsel for the appellants as the learned trial court considering his testimony has observed that reasonable explanation has been offered by the Investigating Officer giving out the details as to how he was busy in the investigation;
(vi) The arguments of learned counsel for the appellants that the credibility of entrusted and relative witnesses i.e. Ram Dularey (PW-1), Chandrika Prasad (PW-2), Smt. Patiraji (PW-3) and Kamla Prasad (PW-4) are doubtful is not acceptable to this Court and the learned trial court has rightly considered the deposition of the injured witnesses namely Ram Dularey and Smt. Patiraji as well as other witnesses of fact namely Chandrika Prasad and Kamla Prasad.
(vii) The arguments advanced by the learned counsel for the appellants that no any independent witness was produced when the prosecution case is that at the time of incident, villagers of the nearby village reached on the spot, but as the witnesses disclosed that the accused persons fled away from the spot when the persons of nearby villages reached on the spot, therefore, the arguments of the learned counsel for the appellants has no force and this point was rightly considered by the trial court for the reason that the witnesses are illiterate, living in the village and their testimony cannot be read in isolation, and the village in which the occurrence took place is a hamlet of few house only i.e. of a complainant and some other persons, therefore, no independent testimony was possible from that hamlet; the residents of the near by villages, even if they reached on the spot on hearing the alarm, must took some time to reach there, therefore, it cannot be expected that the residents of other villages must or could have seen the occurrence.
(viii) As in the present case, the appellant No.1 namely Jagdamba (died) was said to be armed with Pharsa, Chinta and Bachhraj were said to be armed with Gandasa, Girwar and Amerika were said to be armed with spears and rest were said to be armed with lathis; and in the testimony on oath in the trial court of PW-1 to PW-4, Chinta, Jagdamba and Bhullan @ Bachhraj were said to have inflicted injuries on both the deceased and rest were said to be holding the deceased; the postmortem reports of both the deceased (Exts. Ka-14 and Ka-15) reveals that they had sustained only incised wound, which in the opinion of Dr. R.U. Pandey (PW-9) could have been inflicted by Pharsa and Gandasa, the shape and cut size of the wounds which were up to 20 cms long also go to establish that the wounds were caused by Pharsa and Gandasa both, therefore, the oral testimony is corroborated with the medical evidence and as far as the participation of three accused namely Jagdamba, Chinta and Bachhraj in the crime in question is concerned, is fully established. The appellants-accused persons namely Jagdamba and Amerika Prasad have said to have inflicted injuries on PW-1 and PW-3 when they tried to intervene to save theirs sons, among whom Amerika was armed with spear; according to the injury report of PW-3 & PW-1 (Exts. Ka-16 & Ka-17), the injuries were opined to have been caused by sharp cutting object and Dr. H.C. Srivastava (PW-10) in his testimony in trial court has stated that injuies of Smt. Pati Raji (PW-3) must have been caused by sharp cutting object, and the injuries to Ram Dularey (PW-1) were caused by Pharsa though injury No.1 could have been caused by corner of the spear. In cross-examination, PW-10 has also mentioned that injury No.1 of Ram Dularey could have been caused by the blade size of spear and also stated that the spear usually cause punctured wound of which depth is larger than its length, therefore, the oral testimony is corroborated by the medical evidence; and so far as participation of appellants namely Jagdamba, Amerika Prasad, Chnita @ Chinta Ram @ Chinta Prasad @ Sheo Shankar and Bachcha Raj in the crime and part played by them is concerned, that is fully established in this case.
(ix) We have also gone through the decision of Hon'ble Apex Court in the case of Baleshwar Mahto and Another Vs. State of Bihar and Another reported in (2017) 3 SCC 152. Observation of Hon'ble Supreme Court at Para 12 reads as under:-
"12. Here, PW-7 is also an injured witness. When the eye-witness is also an injured person, due credence to his version needs to be accorded. On this aspect, we may refer to the following observations in Abdul Sayeed vs. State of Madhya Pradesh (SCC pp. 271-72, paras 28-30) "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone."
"Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC 881:1973 SCC (Cri) 563:AIR 1972 SC 2593], Malkhan Singh v. State of U.P. [(1975) 3 SCC 311 : 1974 SCC (Cri) 919 : AIR 1975 SC 12], Machhi Singh v. State of Punjab [(1983) 3 SCC 470 : 1983 SCC (Cri) 681], Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559 : AIR 1988 SC 696], Bonkya v. State of Maharashtra [(1995) 6 SCC 447 : 1995 SCC (Cri) 1113], Bhag Singh [(1997) 7 SCC 712 : 1997 SCC (Cri) 1163], Mohar v. State of U.P. [(2002) 7 SCC 606 : 2003 SCC (Cri) 121] (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472], Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302], Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630] and Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107], where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29).
"28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tube-well. In Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2021] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214]). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."
(x) The next argument advanced by the learned counsel for the appellants that due to long standing enmity, the appellants and other accused persons were implicated and stated that accused Girwar Prasad had given some land to Amerika Prasad, who was the brother-in-law of Jagdamba, and the complainant was keen to take the land himself, therefore, he was annoyed with Girwar; Chinta and Bachha Raj said that they are brother of Ram Kewal who had instituted complaint case against the complainant (PW-1) and his son Shanti Prasad (deceased) who had been prosecuted, and the accused persons have been implicated on account of that enmity; accused Chinta has also stated that at the time of occurrence, he was doing the course of B.A. at Gonda. As learned trial court considered the point of enmity established in between the parties and rightly dealt that the enmity is a double edged weapon which cuts both the sides, and in the present case, the ocular evidence as well as the medical evidence relied by the prosecution are corroborating with each other, therefore, there was established motive for the crime in question.
(xi) As the next arguments advanced by the learned counsel for the appellants that the injured persons namely Ram Dularey (PW-1) and Smt. Patiraji (PW-3) were medically examined on the next day of incident i.e. on 20.10.1982 between 01:40 p.m. to 03:00 p.m. has created doubt as PW-1, PW-3, PW-11 R.P. Singh (Investigating Officer) and PW-10 Harish Chandra Srivastava were examined before the trial court and the opportunity to cross-examine them was also given to the accused persons, but neither the medical of the injured persons nor their injuries was challenged, but the ocular evidence of the aforesaid witnesses were corroborating with the medical evidences and the medical report was duly proved by Dr. Harish Chandra Srivastava (PW-10) and he opined that the injuries of Ram Dularey (PW-1) and Smt. Patiraji (PW-3) were one & a half days old, caused by sharp cutting object, therefore, this argument has no force and the learned trial court has rightly dealt the evidence of prosecution as well as the defence.
(xii) The next point argued by the learned counsel for the appellants that seven accused persons namely Bhagwati, Kalp Nath, Bharose @ Ram Bharose, Suggu @ Sukhdeo, Ram Kewal, Vishram and Girwar were acquitted by the court below, who were armed with lathi, on considering the evidence of the prosecution, therefore, the trial court has wrongly convicted the appellants on the basis of same evidence. As it is well settled that the maxim "falsus in uno, falsus in omnibus" has no application in India for the reason that some part of the statement of witness has not been accepted in India, and even if, the major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained, and it is the duty of the court to separate the grain from the the chaff. In the present case, learned trial court rightly appreciated the evidence of the injured witnesses as well as other witnesses in convicting the appellants, therefore, there is no illegality in the order.
(xiii) We have also gone through the decision of Hon'ble Apex Court in the case of Mahendran Vs. State of Tamil Nadu reported in (2019) 5 SCC 67. Observation of Hon'ble Supreme Court from Para Nos. 38-42 reads as under:-
"38. It is argued that the prosecution has put on trial twenty-four accused, but presence of A-11 and A-16 to A-24 was doubted by the learned trial court and they were acquitted on benefit of doubt. Five accused, A-10, A-12, A-13, A-14 and A-15 have been granted benefit of doubt in appeal as well. The argument that the entire case set up is based on falsehood and thus is not reliable for conviction of the appellants, is not tenable. It is well settled that the maxim "falsus in uno, falsus in omnibus" has no application in India only for the reason that some part of the statement of the witness has not been accepted by the trial court or by the High Court. Such is the view taken by this Court in Gangadhar Behera case [Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381 : 2003 SCC (Cri) 32] , wherein the Court held as under: (SCC pp. 392- 93, para 15) "15. To the same effect is the decision in State of Punjab v. Jagir Singh [State of Punjab v. Jagir Singh, (1974) 3 SCC 277 : 1973 SCC (Cri) 886] and Lehna v. State of Haryana [Lehna v. State of Haryana, (2002) 3 SCC 76 : 2002 SCC (Cri) 526]. Stress was laid by the appellant-accused on the non- acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of "falsus in uno, falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno, falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno, falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P. [Nisar Ali v. State of U.P., AIR 1957 SC 366 : 1957 Cri LJ 550] ) Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab [Gurcharan Singh v. State of Punjab, AIR 1956 SC 460 : 1956 Cri LJ 827] .) The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to 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. The evidence has to be sifted with care. 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 of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. [Sohrab v. State of M.P., (1972) 3 SCC 751 : 1972 SCC (Cri) 819] and Ugar Ahir v. State of Bihar [Ugar Ahir v. State of Bihar, AIR 1965 SC 277 : (1965) 1 Cri LJ 256] .) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. [Zwinglee Ariel v. State of M.P., AIR 1954 SC 15 : 1954 Cri LJ 230] and Balaka Singh v. State of Punjab [Balaka Singh v. State of Punjab, (1975) 4 SCC 511 : 1975 SCC (Cri) 601] .) As observed by this Court in State of Rajasthan v. Kalki [State of Rajasthan v. Kalki, (1981) 2 SCC 752 : 1981 SCC (Cri) 593] normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar [Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 : 2002 SCC (Cri) 1220]. Accusations have been clearly established against the appellant-accused in the case at hand. The courts below have categorically indicated the distinguishing features in evidence so far as the acquitted and the convicted accused are concerned." (emphasis in original)
39. Therefore, the entire testimony of the witnesses cannot be discarded only because, in certain aspects, part of the statement has not been believed.
40. The judgment referred to by the learned counsel for the appellants in Ram Laxman case [Ram Laxman v. State of Rajasthan, (2016) 12 SCC 389 : (2017) 3 SCC (Cri) 793] is not applicable to the facts of the present case, as in that case, the Court found the testimony of the witnesses as undependable and unreliable so as to grant benefit to some accused while maintaining the conviction of the others. The Court noticed that the maxim "falsus in uno, falsus in omnibus" is not applicable. Therefore, if the witness is reliable and dependable then the entire statement cannot be discarded.
41. Similarly, in Noushad [Noushad v. State of Karnataka, (2015) 2 SCC 513 : (2015) 2 SCC (Cri) 134] the Court found that the statement of PW 11 that he has witnessed the incident with much of exactitude as to which accused assaulted his brother with what weapon cannot be said to have been really witnessed by him. Again, in Suraj Mal case [Suraj Mal v. State (UT of Delhi), (1979) 4 SCC 725 : 1980 SCC (Cri) 159], the Court was examining the legality of conviction under the provisions of the Prevention of Corruption Act, 1947. It was found that the evidence of witnesses against the two accused was inseparable and indivisible, when on such evidence one of the accused was acquitted and not the other accused.
42. All these judgments are in respect of appreciation of evidence of witnesses in the facts being examined by the Court. The general principle of appreciation of evidence is that even if some part of the evidence of witness is found to be false, the entire testimony of the witness cannot be discarded."
(xiv) The next argument advanced by the learned counsel for the appellants that the Special report in relation to the said incident reached to the Bungalow of District Magistrate on 19.12.1982 at 08:15 p.m., whereas the incident was of 19.12.1982 at about 01:30 a.m., therefore, the learned trial court has committed error in considering this fact, but it is well settled that trial shall not be affected due to delay in sending Special Report of crime. In regard we have gone through the decision of Hon'ble Apex Court in the case of Jafel Biswas and Others Vs. State of West Bengal reported in (2019) 12 SCC 560. Observation of Hon'ble Supreme Court at Para 19 reads as under:-
"19.The obligation is on the IO to communicate the report to the Magistrate. The obligation cast on the IO is an obligation of a public duty. But it has been held by this Court that in the event the report is submitted with delay or due to any lapse, the trial shall not be affected. The delay in submitting the report is always taken as a ground to challenge the veracity of the FIR and the day and time of the lodging of the FIR."
(xv) The next argument advanced by the learned counsel for the appellants that the appellant Amerika Prasad has neither assaulted Shanti Prasad nor Nanhey Prasad and only caused injuries to the injured persons, therefore, the learned trial court has wrongly convicted him under Section 302/34 I.P.C., and that the accused Chinta has not assaulted either of the deceased persons, therefore, his conviction is also wrong, but it is well settled that a person can also be held vicariously responsible for the act of others if he has the "common intention" to commit the offence. In regard we have gone through the judgment of Hon'ble Supreme Court in the case of Abdul Sayeed vs. State of M.P. reported in (2010) 10 Supreme Court Cases 259. Observation of Hon'ble Supreme Court made in Para Nos.49-57 reads as under:-
"49. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the "common intention" to commit the offence. The phrase "common intention" implies a prearranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances existing thereto. The common intention under Section 34 IPC is to be understood in a different sense from the "same intention" or "similar intention" or "common object". The persons having similar intention which is not the result of the prearranged plan cannot be held guilty of the criminal act with the aid of Section 34 IPC. (See Mohan Singh v. State of Punjab [AIR 1963 SC 174 : (1963) 1 Cri LJ 100] .)
50. The establishment of an overt act is not a requirement of law to allow Section 34 to operate inasmuch this section gets attracted when a criminal act is done by several persons in furtherance of the common intention of all. What has, therefore, to be established by the prosecution is that all the persons concerned had shared a common intention. (Vide Krishnan v. State of Kerala [(1996) 10 SCC 508 : 1996 SCC (Cri) 1375] and Harbans Kaur v. State of Haryana [(2005) 9 SCC 195 : 2005 SCC (Cri) 1213] .)
51. Undoubtedly, the ingredients of Section 34 i.e. that the accused had acted in furtherance of their common intention is required to be proved specifically or by inference, in the facts and circumstances of the case. (Vide Hamlet v. State of Kerala [(2003) 10 SCC 108 : (2006) 2 SCC (Cri) 518], Pichai v. State of T.N. [(2005) 10 SCC 505 : 2005 SCC (Cri) 1617] and Bishna v. State of W.B. [(2005) 12 SCC 657 : (2006) 1 SCC (Cri) 696] )
52. In Gopi Nath v. State of U.P. [(2001) 6 SCC 620] this Court observed as under: (SCC p. 625, para 8) "8. ... Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action--be it that it was not overt or was only a covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a preconcerted or prearranged plan or one manifested or developed on the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case."
53. In Krishnan v. State [(2003) 7 SCC 56 : 2003 SCC (Cri) 1577] this Court observed that applicability of Section 34 is dependent on the facts and circumstances of each case. No hard-and-fast rule can be made out regarding applicability or non-applicability of Section 34.
54. In Girija Shankar v. State of U.P. [(2004) 3 SCC 793 : 2004 SCC (Cri) 863] it is observed that Section 34 has been enacted to elucidate the principle of joint liability of a criminal act: (SCC p. 797, para 9) "9. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances."
55. In Virendra Singh v. State of M.P. [(2010) 8 SCC 407 : (2010) 3 SCC (Cri) 893 : JT (2010) 8 SC 319] this Court observed that: (SCC p. 421, para 42) "42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34."
56. Section 34 can be invoked even in those cases where some of the co-accused may be acquitted, provided it can be proved either by direct evidence or inference that the accused and the others have committed an offence in pursuance of the common intention of the group. (Vide Prabhu Babaji Navle v. State of Bombay [AIR 1956 SC 51 : 1956 Cri LJ 147] .)
57. Section 34 intends to meet a case in which it is not possible to distinguish between the criminal acts of the individual members of a party, who act in furtherance of the common intention of all the members of the party or it is not possible to prove exactly what part was played by each of them. In the absence of common intention, the criminal liability of a member of the group might differ according to the mode of the individual's participation in the act. Common intention means that each member of the group is aware of the act to be committed."
23. In such circumstance, the learned trial court has rightly considered the deposition of injured witnesses coupled with medical evidence and other evidences.
24. The law on the point can be summarized to the effect that:-
(i) The testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and an injured witness will not let his actual assailant go unpunished merely with a view falsely implicate a third party.
(ii) Even if a portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained.
(iii) Trial will not be affected due to delay in sending Special report in relation to crime to the Magistrate.
(iv) Section 34 of I.P.C. stipulates that the act must have been done in furtherance of common intention. It is not necessary that the prosecution must prove that the action done by a particular or a specified person. It can be invoked where some of the co-accused may be acquitted Thus, the deposition of the injured witness PW-1 and PW-3 as well as other evidences has been rightly relied by learned trial court because there is no ground for rejection of prosecution evidences.
25. Thus, we find no reason to interfere with the aforesaid findings of the learned trial court. Hence, the judgment of conviction and order of sentence dated 16/17.01.1985 passed by learned Additional Sessions Judge-I, Gonda in Sessions Trial No.174 of 1983 (State Vs. Bhagwati and Others) arising out of Case Crime No.135 of 1982, under Sections 147, 148, 149, 324, 323, 302 I.P.C., Police Station Intiathoke, District Gonda against the appellants namely Amerika Prasad, Chinta @ Chinta Ram @ Chinta Prasad @ Sheo Shankar and Bachhraj is hereby affirmed.
26. In the result, this appeal fails and is accordingly dismissed.
27. From perusal of the record, it appears that the appellants are in jail and they shall remain in jail and serve out the sentence as awarded by the trial court.
28. Let the lower court record along with the present order be transmitted to the trial court concerned for necessary information and compliance forthwith.
29. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by it along with a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned/Authority/Official.
30. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
(Rajeev Singh,J.) (Ramesh Sinha,J.)