Allahabad High Court
Ishtiyak vs State Of U.P. on 29 August, 2023
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Neutral Citation No. - 2023:AHC:173688-DB Court No. - 44 1. Case :- CRIMINAL APPEAL No. - 4700 of 2019 Appellant :- Ishtiyak Respondent :- State of U.P. Counsel for Appellant :- Sufiya Bano,Anil Kumar,Apul Misra,Ashok Kumar Singh,Aushim Luthra,Mohd Akhtar Counsel for Respondent :- G.A. Alongwith 2. Case :- CRIMINAL APPEAL No. - 2916 of 2018 Appellant :- Gufran and Saddik Respondent :- State of U.P. Counsel for Appellant :- Apul Misra,Hemant Kumar Singh,Mohd Akhtar,Rajrshi Gupta,Sufiya Bano Counsel for Respondent :- G.A.,Avadhesh Singh,Ramesh Chandra Gupta-II Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Umesh Chandra Sharma,J.
(Per : Umesh Chandra Sharma,J.)
1. Heard Sri Apul Misra, learned counsel for all the accused-appellants, Sri Vikas Goswami, learned AGA for the State and perused the record.
2. Criminal Appeal No.2916 of 2018 has been preferred against the judgment and order dated 04.04.2018 passed in ST No.642 of 1996 (State of UP Vs. Allau and others) arising out of Case Crime No.121 of 1996, by Sri Santosh Kumar Tiwari, Additional Sessions Judge-II, Azamgarh by which the trial court convicted the accused persons namely Allau under Section 148 IPC for fine of Rs.3,000/-, under Section 302 IPC for life imprisonment and fine of Rs.25,000/-, under Section 307/149 IPC for five years rigorous imprisonment and fine of Rs.5,000/-; accused Saddik under Section 148 IPC for fine of Rs.3,000/-, under Section 302/149 IPC for life imprisonment and fine of Rs.25,000/-, under Section 307 IPC for five years rigorous imprisonment and fine of Rs.5,000/-; accused Gufran under Section 148 IPC for fine of Rs.3,000/-, under Section 302/149 IPC for life imprisonment and fine of Rs.25,000/-, under Section 307/149 IPC for five years rigorous imprisonment and fine of Rs.5,000/- with default stipulation. It was also directed that all the sentences shall run concurrently.
3. Out of the above three convicts Allau has died and accused Gufran and Saddik are alive and are on bail.
4. Since accused Allau has died, hence Criminal Appeal No.2010 of 2018 had been abated vide order dated 11.01.2019.
5. Accused Ishtiyak has preferred Criminal Appeal No.4700 of 2019 against the judgment and order of conviction and sentencing dated 27.06.2019 passed in ST No.642-A of 1996 (State of UP Vs. Ishtiyak) arising out of Case Crime No.121 of 1996, by Sri Gaurav Kumar Srivastava, Special Judge (SC/ST Act), Azamgarh by which the accused Ishtiyak was convicted under Section 148 IPC for Rs.3,000/- as fine, under Section 302/149 IPC for life imprisonment and Rs.25,000/- as fine, under Section 307/149 IPC for five years rigorous imprisonment and Rs.5,000/- fine with default stipulation and an amount of compensation is also to be paid to the widow Urmila Devi wife of the deceased Faujdar.
6. In brief, facts of the case are that informant Jagdish son of Ram Singar Harijan moved a written complaint dated 21.04.1996 at Police Station Kotwali Deogaon, District Azamgarh that in the night of 21.06.1996 at about 12:45 a.m. Allau, Ismidar, Gufran, Ishtiyak, Jahid and Saddik who have enmity with Kalpnath of his village on account of a litigation in which scuffle had taken place last year and he had testified himself, reached at his door with country-made pistol and revolver and exhorted to kill him. In the meantime, Allau fired at his brother Faujdar which hit him. Hearing the hue and cry villagers Nandlal, Vikrama and other villagers reached there. By then Saddik with an intention to kill him fired upon him from which he narrowly escaped. The incident was seen by several persons present on the spot. Abusing them the accused persons had returned. Keeping the injured Faujdar on the cot when he was coming to the police station, Faujdar fell unconscious on the way (Faujdar later on succumbed). Hence, FIR be lodged and necessary action be taken.
7. On the basis of above written complaint an FIR at Crime No.121 of 1996, under Sections 147, 148, 149, 302, 307, 504, 506 IPC and Sections 3(1)(x), 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (in short 'the SC/ST Act') had been lodged at 01:50 a.m. on 21.06.1996. The investigation officer (IO) recorded the statement, prepared site plan and other papers and after recording the statement of the witnesses submitted the charge sheet against the accused Allau, Ismidar, Gufran, Ishtiyak, Jahid and Saddik under the aforesaid sections. Learned CJM, Azamgarh took cognizance, provided the copies of the prosecution papers to the accused persons and committed the case to the court of sessions. After hearing on the framing of charge except accused Allau rest of the accused persons were charged under the aforesaid sections. Allau was charged under Sections 147, 307/149, 302 IPC and Sections 3(1)(x), 3(2)(v) SC/ST Act. Accused persons denied the charges and sought trial.
8. During the course of trial accused Jahid and Ismidar died and accused Ishtiyak had absconded, therefore, the case with regard to accused Jahid and Ismidar was abated and the case with regard to accused Ishtiyak had been separated but later on when he was arrested, his trial had been conducted as ST No.642-A of 1996 (State of UP Vs. Ishtiyak).
9. In ST No.642 of 1996 following witnesses were examined by the prosecution:-
1PW-1 Jagdish, informant 2 PW-2 Smt. Urmila w/o deceased faujdar 3 PW-3 Swaminath 4 PW-4 Anant Dev 5 PW-5 Arvind Kumar 6 PW-6 Ganesh
10. In ST No.642 of 1996 following documentary evidences were produced by the prosecution:-
1Ex.Ka-1 Written complaint 2 Ex.Ka-2 Charge sheet 3 Ex.Ka-3 Site plan 4 Ex.Ka-4 Postmortem report 5 Ex.Ka-5 Chik FIR 6 Ex.Ka-6 Carbon copy kaymi case GD 7 Ex.Ka-7 Photonash 8 Ex.Ka-8 Inquest report 9 Ex.Ka-9 Recovery memo with regard to blood stained piece of kathari and residue of rope of explosive substance 10 Ex.Ka-10 Search memo of house of Nanhey 11 Ex.Ka-11 Search memo of house of Kamruddin 12 Ex.Ka-12 Search memo of house of accused Saddik 13 Ex.Ka-13 Search memo of house of accused Allau 14 Ex.Ka-14 Search memo of house of Saghir Ahmad
11. After closure of the evidence, statements of the accused Allau, Saddik and Gufran were recorded under Section 313 CrPC in which they denied the prosecution case and alleged that there was false deposition by the prosecution witnesses. They further stated that their farm was near the harijan basti which was often damaged by them, because of which there was regular altercation. They were trapped due to village party-bandi. Accused persons did not examine witnesses in defence but had produced charge sheet No.344-B/2 from list 343-B. (I) Brief discussion on the statements of prosecution witnesses-
12. PW-1, informant, Jagdish has deposed that his brother Faujdar had been killed on 21.06.1996 at about 12:30 a.m. He and his brother were laying nearby on separate cots. He was laying on the cot and after urinating he had not slept. There was an enlightened electric bulb of 200 watt and there was light in the nearby area. He saw that accused Allau, Ismidar, Saddik, Jahid, Ishtiyak and Gufran came there from the east side. Allau, Jahid, Saddik, Ishtiyak and Gufran had country-made pistol in their hands. Ismidar had revolver in his hand. The witnesses recognized the accused Allau, Ismidar and Saddik in the court and said that these people had also come there and said that "kill the rascal". Allau first fired at his brother Faujdar with a pistol when they made-a-noise his mother and sister-in-law, Nandlal and Vikram of his village reached there. Saddik had also fired at him with pistol but the bullet could not hit him. The women of his house also witnessed the incident. The accused ran away abusing and throwing bombs to spread panic. They took their injured brother to Deogaon Police Station with the help of some people. Due to injury his brother had fainted on the way. On his written complaint Ex.Ka-1, the FIR had been lodged. His brother Faujdar was sent from the police station to the PHC, Lalganj in a government jeep. After leaving his brother at the hospital he returned to the village. Shiv Pujan of his village came home and informed that his brother had died. The accused have enmity with his neighbour Kalpnath whose house was to the south of his house.
13. The accused had severely beaten Kalpnath with sticks, lathi etc. He had given statement in support of Kalpnath, therefore, accused were infuriated with them. To the south of his cot there was cot of Faujdar. Women of his family had slept on the west side. There was blood on his brother's cot. The IO had recorded his statement.
14. PW-2, Smt. Urmila has deposed that five years ago her husband had been killed in the night at about 12:30 a.m. At the time of incident her husband, brother-in-law, Jagdish and mother-in-law Dilraji were sleeping side by side with the children at the same place. By then Allau, Gufran, Ismidar, Saddik and Ishtiyak came from east side. Allau had country-made pistol in his hand, Ismidar was carrying a revolver. Rest of the accused had arms in their hands. Accused Allau killed her husband Faujdar with country-made pistol. The bullet hit him. Rest of the accused were shouting and saying that kill the bastard. Witnesses Nandlal, Vikram etc. had reached there. Accused Saddik shot at her brother-in-law, Jagdish with a country-made pistol but he survived as the bullet could not hit him. Her husband Faujdar was taken to Deogaon Hospital on a cot. Due to bullet injury her husband died on the way. The IO had recorded her statement. She knows Kalpnath of her village. Before this incident there was a criminal case between Kalpnath of her village, the accused Allau and others. In that case, his brother-in-law Jagdish had testified against the accused, that is why they harboured enmity.
15. PW-3, Swaminath CO, IO Circle Lalganj has deposed that prior to him the case was investigated by his predecessor Anant Dev Tiwari. He recorded the statement of accused Allau in paper no.3. In paper no.4 he observed the earlier statement, copied the inquest and recorded the statement of witnesses Nand Lal, Vikram, Kalpnath, Manilal, Janardan Gautam, Smt. Urmila and Smt. Dilraji. On 29.06.1996 and on 02.07.1996 he had recorded the statement of SI Suresh Rai, Constable Govind Pandey and Harishankar Prasad. On 05.07.1996 he had recorded the statement of Dr. Sanjiv Kumar Gupta SI Mohd. Saeed and accused Gufran, Ishtiyak and Jahid. He had also recorded the statement of Head Constable Ram Sudh and after finding charges proved against the accused persons, he had submitted the charge-sheet against the accused Allau, Ismidar, Gufran, Ishtiyak, Jahid and Saddik under Sections 147, 148, 149, 307, 302, 504, 506 IPC and Sections 3(1)(x), 3(2)(v) of the SC/ST Act witnesses proved the charge sheet Ex.Ka-2.
16. PW-4, Anant Dev, IO has deposed that on the day of occurrence he was posted as CO Lalganj when the aforesaid case was lodged in Kotwali Deogaon. He had initiated the investigation. He prepared paper no.1 and copied chik FIR and amendment under Section 302 IPC and after endorsing injury letter, he reached on CHC, Lalganj and directed SI Mohd. Saeed to conduct inquest. After reaching on the spot, he recorded statement of the informant Jagdish and on his pointing inspected the place of occurrence and prepared site plan Ex.Ka-3. He also recorded the statement of Shiv Pujan, Ramjeet and Harish Chandra in paper no.1A. People had jammed the road for the incident. After convincing them, he raided the accused persons on 22.06.1996 and accused Ismidar and Saddik were arrested and their statements were recorded thereafter he was transferred.
17. PW-5, Arvind Kumar has deposed that he had come with postmortem report registered in his register dated 21.06.1996. PM No.381/1996 is being noted in the hand writing and signature of Dr. Sanjiv Kumar its original inquest is on the file. The register was compared and found correct on which Ex.A-4 was inserted.
18. Autopsy of the dead body of the deceased Faujdar was conducted on 21.06.1996 at 03:15 p.m. in which the external injury was 1cm x 1cm with margin inverted in left gluteal region deep x cavity. No blackening or tattooing was found. The doctor had received a bullet from the bottom. In the opinion of the doctor cause of death was due to ante mortem injury on the body and also shock and haemorrhage. Thus, this witness has given secondary evidence with regard to the postmortem report.
19. PW-6, Ganesh Yadav has given secondary evidence regarding chik FIR and kaymi case GD which was written by Constable Moharrir Ram Sudh. He deposed that he has seen him reading and writing and he recognizes his writing and signature very well. The chik FIR and kaymi case GD Ex.Ka-5 and Ex.Ka-6 respectively is in his hand writing and signature. This witness has also given secondary evidence with regard to the inquest prepared by SI Suresh Ram and has deposed that he has seen him reading and writing. He recognized and proved the inquest and other papers Ex.Ka-9 to Ex.Ka-14.
20. So far as the trial of the absconding accused Ishtiyak is concerned, after recording the evidence of PW-1 to PW-5 accused Ishtiyak had absconded and after his surrender further trial with regard to accused Ishtiyak had been concluded. The accused Ishtiyak had also denied the prosecution story, charges and the evidence produced by the prosecution and has said the prosecution story to be false and that the witnesses have falsely deposed against him. The criminal case has been initiated on account of enmity and refused to adduce any evidence in defence. He further stated himself to be innocent and to have been falsely implicated on account of enmity.
21. Both the trial courts concluded that all the accused persons were the residents of same village and witnesses of fact were well aware with them and they had also been recognized committing the alleged crime in the light of the enlightened bulb.
22. In Criminal Appeal No.2916 of 2018 accused Gufran and Saddik have taken ground that the order of conviction and sentencing passed against the appellants is against the weight of evidence on record and against the law. The accused have not caused any injury either to the deceased or to the informant. The sentence awarded to the appellants is too severe. Hence, the appeal be allowed and the impugned judgment and order be set aside.
23. In Criminal Appeal No.4700 of 2019, the accused Ishtiyak has taken ground that conviction and sentencing passed against the appellant is against the weight of evidence on record and against the law. The accused has not caused any injury either to the deceased or to the informant. The sentence awarded to the appellant is too severe. The appellant has falsely been implicated due to bad and malicious motive. He is neither previous convict nor wanted in any criminal case nor he has any criminal history except present what appears to be false and fabricated case. The judgment and order of the trial court is not sustainable in the eyes of law. Hence, the appeal be allowed and order of conviction and sentence recorded by the trial court be set aside.
(II) Discussion on the merit on the following issues-
(i) FIR
24. In this case, FIR against the named accused persons has been lodged just after the incident and thus there is no delay or defect in lodging the FIR.
(ii) Motive
25. In this case, no motive has been assigned in the FIR but during the statement under Section 161 CrPC and also in the statement before the court all the witnesses have given motive behind the commission of crime that prior to this incident, there was enmity between the accused persons and neighbour Kalpnath who belongs to his community. Earlier, accused persons had badly beaten Kalpnath by stick and hockey etc. regarding which PW-1 had deposed against the accused persons, therefore, they were annoyed. Prior enmity has also been accepted by the accused persons in their statement under Section 313 CrPC. Thus, it is proved that there was enmity between the parties. Enmity is double edged weapon, it may be a cause to commit the offence and also to falsely implicate the accused persons, it has to be seen later on that this incident had occurred on account of prior enmity or accused persons had been falsely implicated. In this regard the legal proposition has been stated in Nagraj Vs. State, (2015) 4 SCC 739; Wakkar and others Vs. State of UP, (2011) 3 SCC 306 and Nathuni Yadav and others Vs. State of Bihar and another, (1998) 9 SCC 238.
(iii) Mens rea
26. The prosecution case is that on account of prior enmity accused persons had formed an unlawful assembly and reached on the spot with deadly weapons to commit murder of the informant but they targeted the deceased easily. Crime is a wrong to the society involving breach of law which has criminal consequences attached to it, i.e. prosecution by the State in the criminal court and the possibility of punishment being imposed on the wrong doer. The concept of crime is dynamic in nature and it keeps on changing with changes in social norms, values and perceptions about wrongful human conduct in a society. Such as in case of live-in-relationship.
27. There are following elements of crime:
(i) there should be an overt act (actus) or omission;
(ii) it should have been done with criminal intent (mens rea);
(iii) the act or omission, as the case may be, should be a prohibited conduct under the existing law of crimes; and
(iv) it should carry some kind of sanction by way of punishment.
28. So far the overt act or omission is concerned, mere intention or mens rea shall not by itself constitute a crime unless it is accompanied by external overt act. The criminal law not only holds the person who has committed a crime liable to be punished, an attempt to commit a crime is also an offence punishable under Sections 511 and 307 IPC.
29. So far the second ingredients is concerned, mens rea or guilty mind is an essential ingredient of a crime which may be direct, indirect or implied. The implied mens rea is also turned as constructive mens rea which imposes absolute liability on the offender. Irrespective of the fact whether he knew that what was doing was a crime or not. For instance, a person selling adulterated food or edible item shall be held guilty and cannot be escaped saying that the actual adulterator was his master.
30. In the context of mens rea, a distinction has to be drawn between intention and motive. Mens rea means guilty mind. What is relevant in deciding the guilt of the offender is intention of doing with particular act i.e. crime and not the motive behind doing that act. An act to be treated as crime, should be prohibited or forbidden under the existing penal law.
31. As a general rule, the burden of proof in a criminal case lies on the prosecution because of the principle that an accused is presumed to be innocent until he is proved guilty. In case of any doubt regarding participation or involvement of the accused in the crime, he is entitled to the benefit of doubt and may be discharged or acquitted. Where two similar possibility of guilty of offence do not arise, the benefit shall go to the accused and he shall be acquitted.
32. The normal rule is that a person should be held liable for an act and no one can be penalized for the act of the other but there are exceptions that on the basis of collective responsibility another person participating slightly in the offence may be punished.
33. Here, it is the case of the prosecution that on account of prior enmity accused persons had formed an unlawful assembly and reached on the spot to commit murder of the informant but they targeted the deceased easily.
(iv) Inquest
34. In this case inquest Ex.Ka-8 has been conducted within the reasonable time just after the incident. The witnesses of the inquest have also stated that the alleged offence had been caused by the accused persons by fire arm. At the time of inquest, copy of the FIR and the chik FIR and after conversion of the case into Section 302 IPC amended parcha were also annexed by the IO with the inquest report. After the inquest, the dead body was sent for postmortem where postmortem had been conducted by Dr. Sanjiv Kumar Gupta. The postmortem report Ex.Ka-4 has been proved by PW-5, Arvind Kumar, Pharmacist.
35. As per postmortem report, the cause of death was shock and haemorrhage as a result of firearm injury. A bullet was also recovered from the dead body.
36. After inspecting the place of occurrence, the IO had prepared the site plan Ex.Ka-3 in which all the relevant facts have been shown and mentioned. According to site plan, accused persons had fired from place-A, seven steps away from the cot where the deceased had slept. The accused persons had come from the north-east side and after committing the offence they dispersed towards south-east from the place of occurrence. No argument has been advanced by learned counsel for the appellant regarding any discrepancy in the site plan.
(v) Witnesses
37. Relation witnesses & interested witnesses: 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. In such a case, court has to adopt a careful approach in analysing the evidence of such witness and if the testimony of the related witness is otherwise found credible, accused can be convicted on the basis of testimony of such related witness. (see Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537; Dhari and others Vs. State of UP, AIR 2013 SC 308).
38. Inimical witnesses: Enmity of the witnesses with the accused is not a ground to reject their testimony and if on proper scrutiny, the testimony of such witnesses is found reliable, the accused can be convicted. However, the possibility of falsely involving some persons in the crime or exaggerating the role of some of the accused by such witnesses should be kept in mind and ascertained on the facts of each case. (see Dilawar Singh Vs. State of Haryana, (2015) 1 SCC 737; Ramesh Harijan Vs. State of UP, (2012) 5 SCC 777).
39. Independent witnesses & effect of their non-examination: 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 though there may be other witnesses available who could have been examined but were not examined. Non-examination of material 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 non-examination of eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. Court can convict an accused on statement of a 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. (see: Mukesh and another Vs. State (NCT of Delhi) and others, AIR 2017 SC 2161 (Three-Judge Bench); Sadhu Saran Singh Vs. State of UP and others, (2016) 4 SCC 357 and Avtar Singh Vs. State of Haryana, (2012) 9 SCC 432.
40. When independent witness won over by the accused: Non- examination of independent eye witnesses is inconsequential if the witness was won over or terrorised by the accused. (see Dharnidhar Vs. State of UP and others, (2010) 7 SCC 759; Dalbir Kaur and others Vs. State of Punjab, (1976) 4 SCC 158).
41. Public prosecutor not bound to examine all witnesses: Explaining the provisions of Sections 231, 311 CrPC and Sections 114, 134 of the Evidence Act, the Supreme Court had ruled that prosecution need not examine its all witnesses. Discretion lies with the prosecution whether to tender or not witness to prove its case. Adverse inference against prosecution can be drawn only if withholding of witness was with oblique motive. (see Bhagwan Jagannath Markad (supra); Nand Kumar Vs. State of Chhatisgarh, (2015) 1 SCC 776; Rohtas Kumar Vs. State of Haryana, 2013 CrLJ 3183 SC). Thus, non-examination of other witnesses is not fatal for the prosecution.
42. Witnesses when partly reliable & partly unreliable: Maxim "falsus in uno, falsus in omnibus" is not applicable in India. Principle of "false in one, false in all" cannot be applied in relation to the depositions of a witness who has been found lying on a particular fact and whose remaining part of testimony is otherwise truthful. Even if major portion of evidence of a witness is found deficient but residue is sufficient to prove the guilt of the accused, notwithstanding the acquittal of number of co-accused-conviction can be recorded. (see Mani Vs. State, 2009 (67) ACC 526 (SC); Kalegura Padma Rao and another Vs. State of AP, AIR 2007 SC 1299; Kulvinder Singh Vs. State of Punjab, AIR 2007 SC 2868).
43. Mode of Assessing reliability of a witness: In Lallu Manjhi and another Vs. State of Jharkhand, AIR 2003 SC 854, the Supreme Court has laid down certain factors to be kept in mind while assessing the testimony of a witness: "The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable, nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness".
44. Eye witnesses and how to judge their credibility: If the testimony of an eye witness is otherwise found trustworthy and reliable, the same cannot be disbelieved and rejected merely because certain insignificant, normal or natural contradictions have appeared into his testimony. If the inconsistencies, contradictions, exaggerations, embellishments and discrepancies in the testimony are only normal and not material in nature, then the testimony of an eye-witness has to be accepted and acted upon. Distinctions between normal discrepancies and material discrepancies are that while normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. (see Ashok Kumar Chaudhary Vs. State of Bihar, 2008 (61) ACC 972 (SC); Dimple Gupta (minor) Vs. Rajiv Gupta, AIR 2008 SC 239).
45. It is a night occurrence which had been occurred at the house of the informant, therefore, PWs-1 and 2 are the real, truthful and natural witnesses and their testimony cannot be discarded.
(vi) Source of light
46. According to the accused-appellants, the Lalganj Electric Feeder was not working since ten days before the incident. In this regard, no document regarding non-activation of Lalganj Electric Feeder has been produced from the defence side. Though a suggestion in this regard has been given to the informant PW-1 but neither any cross-examination in this regard has been made from PW-2 nor any suggestion has been given that the Lalganj Electric Feeder was not working at that time. Hence, it is concluded that this plea has been taken only for the sake of argument and it has no substance.
47. Identification of accused by witnesses in poor light, no light or darkness: In criminal trials, argument by defence is often advanced that because of poor light, no light or darkness or night, the PWs could not have identified the accused. But in the cases noted below, the Supreme Court has clarified that a witness, who is accustomed to live in darkness, poor light or no light, can identify the accused even in such conditions.
48. It was a trial under Section 302/34 IPC. Accused were known to PWs. Occurrence had taken place at about 11:00 p.m, two days prior to the new moon day. Parties were used to live in the midst of nature and accustomed to live without light. Further, they were close relatives and living in the neighbouring huts. In view of these facts, the defence contention that the ocular witnesses could not have witnessed the occurrence was rejected by the apex court and conviction upheld. (see Shivraj Bapuray Jadhav and others Vs. State of Karnataka, (2003) 6 SCC 392).
49. It was a murder trial. The victim had himself signed the FIR, made statements under Section 161 CrPC and died on way from police station to hospital. Occurrence had taken place at about 08:00 to 09:00 p.m. in the night. Victim and the witnesses had recognized the accused even in the night. Accused had challenged the deceased with insulting utterances before firing at him. The victim and the eye witnesses who were present at about 8 to 10 steps away from the place of occurrence, had, therefore, full opportunity to identify the accused. Conviction was upheld. (see Gulab Singh Vs. State of UP, 2003 (4) ACC 161 All (DB).
50. It was a criminal trial under Section 302/149, 201 IPC. Place of occurrence was verandah of the deceased. Lanterns (two) were said to be kept and lighting on the verandah near the place of occurrence. Mother, sister and neighbour of the deceased, being eye witnesses, had deposed during trial to have identified the accused persons in such poor light. Accused were convicted by the trial court. Argument of the accused/appellants before Supreme Court was that the two lanterns said to be kept on the verandah (place of occurrence) were neither seized nor produced before the court and even if it is supposed that the lanterns were there on the floor of the verandah, the lanterns could cast their light near the floor and, therefore, it was not possible for the eye witnesses to have identified the accused persons in such poor light even if the place of occurrence was verandah or courtyard. The Supreme Court rejected the argument and held "as the incident took place in village and the visibility of villagers are conditioned to such lights and it would be quite possible for the eye witnesses to identify men and matters in such light". (see Ram Gulam Chowdhary Vs. State of Bihar, 2001 (2) JIC 986 SC).
51. In this case, the deceased was murdered by the accused in the night while issuing copies of voter list and caste certificates and the hurricane lamp said to be lighting near the place of occurrence was not seized and produced by the investigating officer. The defence argument was that the eye witnesses could not have identified the accused as the hurricane lamp said to be the only source of light was not produced by the prosecution in the court. The Supreme Court, upholding the conviction by rejecting the argument, held that it could legitimately be inferred that there would be some source of light to enable the deceased to perform his job. (see B. Subba Rao Vs. Public Prosecutor, High Court of AP, 1998 (1) JIC 63 SC).
52. "The visible capacity of urban people who are acclimatized to fluorescent light is not the standard to be applied to villagers whose optical potency is attuned to country made lamps. Visibility of villagers is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such lights". (see Kalika Tewari Vs. State of Bihar, JT 1997 (4) SC 405).
53. Where the murder had taken place at night and the source of light was not indicated in the FIR and the accused and the eye witnesses were closely related, it has been held by the Supreme Court that the evidence of eye witnesses cannot be discarded. (see State of UP Vs. Sheo Lal, AIR 2009 SC 1912).
54. Where the witness had stated that he had seen the attack in the light of scooter head light, it has been held that mere absence of indication about source of light in FIR for identifying assailants does not in any way affect the prosecution version. (see S. Sudershan Reddy Vs. State of AP, AIR 2006 SC 2716).
55. Moonless night & when torch not taken into possession by IO: Where the murder had taken place in a moonless night and the eye witnesses had stated that they had identified the accused in torch light but the torch had not been taken into possession by the IO and both the parties belonged to he same village and were well known to each other, it has been held that merely because non taking of torch into possession by the ASI would not mean that witnesses were not credible and conviction under Sec 302 IPC was held proper. (see Durbal Vs. State of UP, 2011 CrLJ 1106 SC).
56. On the basis of above, it is concluded that there was light and as the accused persons were well acquainted with the witnesses, thus, they were rightly recognized on the place of occurrence and their presence cannot be doubted.
57. In this regard, it is material that a plea has been taken that on the date and time of occurrence accused Saddik and Jahid were not present at their house and were out of village but in this regard neither statement nor evidence has been given by these accused persons in their examination under Section 313 CrPC or in defence. Neither such cross-examination has been made from PW-2 nor any suggestion in this regard has been given to PW-2. Hence, this Court is of the conclusion that the argument that on the date and time accused Saddik and Jahid were not present has been made only for the sake of argument and there is no truth in it.
58. From the side of the appellants only one argument has been made in the appeals that except Allau none of the convicts had attacked upon the deceased, informant PWs-1 and 2 or any other family members of the deceased. Hence, their role is separable from that of the accused Allau.
59. In this case accused Allau, Jahid and Ismidar have died. Accused Gufran and Saddik had faced trial in ST No.642 of 1996 but accused Ishtiyak had escaped and he appeared only after a long gap in the year 2018 and he was separately tried in ST No.642-A of 1996.
60. In this case as the accused Allau had died it has been argued that the deceased, Faujdar was attacked by him from katta, rest of the accused persons would not be liable under Sections 147, 148, 302/149 IPC.
61. As per prosecution case and evidence accused Allau had killed Faujdar from katta, accused Ismidar had revolver in his hand and accused Ishtiyak, Gufran and Saddik had also katta in their hands. It was a night occurrence which had occurred at about 12:30 a.m. when most of the villagers are in deep sleep. From the prosecution evidence and circumstances, it appears that the accused persons had chosen odd hours so that no or least resistance could be faced from the side of the informant. At that time target remains passive. During the course of commission of crime, bomb was also exploded and residue of bomb in the form of rope has also been found on the place of occurrence but no charges under the Explosive Substances Act, 1908 and Section 7 Criminal Law (Amendment) Act were framed, is a matter of concern.
62. In this case, motive to commit the alleged crime and previous enmity has also been proved. On account of motive forming mens rea to give a lesson and to commit the offence has also been proved. All the accused persons were armed with deadly weapon and they had come on the spot in a group in the form of unlawful assembly and with knowledge that in case of emergency these deadly weapons would be used. In this regard it would be proper to reproduce Section 141 IPC which is as under:-
"141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is--
Firstly.--To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Secondly.--To resist the execution of any law, or of any legal process; or Thirdly.--To commit any mischief or criminal trespass, or other offence; or Fourthly.--By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifthly.--By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."
63. According to Section 141 IPC to constitute an unlawful assembly following ingredients are necessary which are; (i) an assembly of five or more persons; (ii) they must have a common object; and (iii) the common object must be one of the five specified in the section.
64. The person forming unlawful assembly should have common object. It is immaterial whether they had such common object right from the beginning when they assembled together or they developed it at a later stage which may be even at the time when the offence is being committed.
65. In Masalti Vs. State of UP, AIR 1965 SC 202 it has been held that mere presence of a person in an assembly does not make him member of an unlawful assembly unless it is shown that he had committed or omitted to do something which would make him a member of unlawful assembly or his case falls under Section 142 IPC.
66. In Bishambhar Vs. State of UP, AIR 1971 SC 2381 it was held that common object is something which pertains to faculty of mind. Therefore, no direct evidence can be available to prove common object. It is a question of fact to be determined on the basis of circumstances of the case. It must be stated that mere presence of a person in the unlawful assembly does not make it a member of that assembly unless it is shown that while being present there, he did some act or omission which would be sufficient to make him a member of that assembly. For instance, where a person having knowledge that some persons have assembled to commit an unlawful act, remains present in the assembly, it will make him a member of that unlawful assembly and he shall be criminally liable like any other member of that unlawful assembly.
67. The Supreme Court in Lalji Vs. State of UP, AIR 1989 SC 754 held that though no hard and fast rule can be laid down to determine common object of the unlawful assembly, but it may be reasonably gathered from the nature of the assembly, the kind of arms carried and used, behaviour of the members of assembly prior to or at the time of and after the incident and the acts, gestures and language used by members while making use of the arms or weapons.
68. Section 142 IPC reads as under:-
"142. Being member of unlawful assembly.--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."
69. In Banwari Ram Vs. State of UP, AIR 1998 SC 674 it has been held that it is for this reason that passive spectators or curious on-lookers are not considered as members of unlawful assembly despite their presence in such assembly because they do not share the common object of the members of that assembly.
70. According to this Court, this pronouncement cannot be applied in favour of the convicts. In the case at hand as they were not the passive spectators or curious on-lookers because they had come with deadly weapons in their hands alongwith accused Allau, in the fateful night in odd hours. After completing their job and on being satisfied, they returned attempting to kill the informant PW-1, throwing bomb and also abusing the family members of the informant.
71. In order to punish a person as a member of unlawful assembly it is not necessary that the member of such assembly must have committed some overt act, the only requirement is that he must have the knowledge about the common object of such assembly. If he did have, he will be punishable for being a member of unlawful assembly. (see Yunis @ Kariya Vs. State of MP, (2003) 1 SCC 425).
72. Sections 143, 144 and 146 IPC read as under:-
"143. Punishment.--Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six month, or with fine, or with both.
144. Joining unlawful assembly deadly weapon.--Whoever, being armed with any deadly weapon, or with anything which, used as a weapon of offence, is likely to cause death, is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
x x x x x
146. Rioting.--Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting."
73. The offence of rioting is punishable under Section 147 IPC.
74. The essential ingredients of Section 146 are:-
"(1) there must be five or more persons forming an unlawful assembly;
(2) they should have been animated by a common unlawful object;
(3) there must be use of force or violence by the unlawful assembly or any member of such assembly; and (4) that force and violence used should be in furtherance of their common unlawful object."
75. Section 147 IPC reads as under:-
"147. Punishment for rioting.--Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
76. In Kirtan Bhuyyan Vs. State of Orissa, AIR 1992 SC 1579 it was held that the accused who was a member of an unlawful assembly struck a knife-blow on the neck of the deceased which cut one of the vital blood-veins resulting in his death. He was convicted under Section 302 read with Section 149 IPC while other members were convicted under Section 147 IPC. On appeal, the Supreme Court upheld the judgment of the High Court and held that the accused who caused murder was rightly separated from other accused persons who were members of unlawful assembly.
77. Section 148 IPC reads as under:-
"148. Rioting, armed with deadly weapon.--Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
78. The offence under Section 148 is an aggravated form of rioting mentioned in Section 146 IPC. It, therefore, provides for enhanced punishment for a person who is armed with a deadly weapon while committing rioting. The distinction between Sections 146 and 148 lies in the fact that in order to constitute offence under Section 146, members of "unlawful assembly" need not carry weapon while person charged under Section 148 IPC must be armed with deadly weapons.
79. Section 146 defines the offence of rioting, Section 147 prescribes punishment for rioting and Section 148 prescribed punishment for offence of rioting armed with deadly weapons.
80. Where in an unlawful assembly that used force, if along with others, there was only one member armed with a deadly weapon, he alone, and not the other unarmed members of the assembly, will be liable to punishment under Section 1481 and the rest of the members will be liable under Section 147.
81. In State of Andhra Pradesh Vs. Thakkiyaram Reddy, 1990 CrLJ 2668 (SC) it was observed that there was bitter enmity between two groups. The miscreants arrived with deadly weapons trespassed into the house of deceased by breaking open the door with the object of killing him. They dragged the deceased from his bed room to the court-yard of the house and beat him to death. Held that the accused in this case were liable under Section 302 read with Section 148 as all of them had formed an unlawful assembly with the common object of causing death of the deceased.
82. Section 149 IPC reads as under:-
"149. Every member of unlawful guilty of offence committed in a 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 or 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."
83. The ingredients of the offence under Section 149 IPC are:-
"(1) commission of an offence by any member of an unlawful assembly;
(2) such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed."
84. Explaining the nature, scope and object of Section 149, the Supreme Court in Vinubhai Ranchodbhai Patel Vs. Rajivbhai Dudabhai Patel and others, (2018) 7 SCC 743 (744) observed that the Section conceives in larger public interest to maintain tranquillity of society and preventing offenders from claiming impunity on ground that their activity as member of unlawful assembly was limited. It propounds vicarious liability in two contingencies by declaring that if member of unlawful assembly commits offence in prosecution of common object of unlawful assembly, every member will be guilty of offence committed by other members of unlawful assembly and even in cases where some members do not share common object to commit particular offence, but if they had knowledge of fact that some other members of assembly are likely to commit that particular offence in furtherance of common object, they would be liable. It may be noted that Section 149 does not create a separate offence but only declares vicarious liability of members of unlawful assembly in certain circumstances.
85. The Supreme Court in Gangadhar Behra Vs. State of Orissa, 2003 CrLJ 41 (SC) held that the expression "in prosecution of the common object" used in the section has to be strictly construed to mean "in order to attain the common object". The word "knew" used in the second part of Section 149 is something more than a mere possibility and it is also different from the expression "might have known".
86. In Masalti (supra) the Supreme Court also held that in fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of a common object of that assembly, or such as the members of that assembly knew to be likely to be committed in furtherance of that object, every person who, at the time of committing of that offence, is a member of the same assembly is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed under Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of unlawful assembly.
87. In Asharfilal Vs. State of UP, AIR 1987 SC 721 it was held that two innocent small girls were killed by the accused persons in a gruesome manner just to teach a lesson to their mother with whom the accused had some property dispute. Every member of the killing team was held to be equally guilty and sentenced to death, this being a rarest of rare case.
88. In State of Maharashtra Vs. Kashirao, 2003 CrLJ 4464 SC the Supreme Court reiterated that commission of an overt act in prosecution of common object is not at all the necessary condition for conviction of the member of an unlawful assembly under Section 149. The only requirement is that he should have knowledge that the assembly was unlawful and was likely to commit an act which fell within the ambit of Section 141 in prosecution of a common object.
89. The Supreme Court in Allauddin Mian Vs. State of Bihar, (2007) 9 SCC 791 has laid down the principle when vicarious liability is created under Section 149. In order to fasten vicarious liability on any member of unlawful assembly, the prosecution, must prove that the act constituting the offence was done in prosecution of common object of that assembly or the act done is such as the member of that assembly knew to be likely to be committed in prosecution of common object of that assembly. Then, every member of unlawful assembly will render himself liable under Section 149 for the criminal act/acts of any other member(s) of that assembly provided same is done in prosecution of common object or such that every member knew to be likely committed.
90. In Bhagwan Singh Vs. State of MP, AIR 2002 SC 1621 the Supreme Court made it clear that for the 'common object' under Section 149 prior concert or agreement/consent for committing assault is not at all necessary. It is generally felt that when deadly assault is committed by a group of armed persons, it is difficult to assess the role of individual member. Therefore, in order to hold them guilty under Section 149 it is sufficient to prove that all the members of such unlawful assembly had a common object and each of them had the knowledge of such assault likely being committed, though all of them may not necessarily be armed with weapons.
91. In Unus Vs. State of MP, 2003 CrLJ 817 (SC) the Supreme Court ruled that where it has been proved that accused was a member of unlawful assembly and was present at the scene of incident, he may be convicted under Section 149 although he might not have committed any overt act in prosecution of the common object. Similar view was expressed by the Apex Court in Ramvilas Singh Vs. State of Bihar, AIR 1969 SC 1593 wherein it was held that the offence committed by one or more members of the unlawful assembly will be construed to have been done by all the members provided their knowledge about the common object is proved by the prosecution.
92. Contrary to that learned counsel for the appellants relied on Sunil Balkrishna Bhoir Vs. State of Maharashtra, (2009) 2 SCC (Cri) 226 in which all the accused persons allegedly came on the spot at about 07:30 p.m. The accused no.1 asked for a gold pendent from the deceased Ramdas which was the subject matter of the dispute between the parties and in relation whereto quarrel had taken place as the earlier occasion. The deceased, in response thereto is said to have stated that he had returned the said gold pendent to some persons hailing from Panchpakhadi area. At that time the accused no.2 allegedly caught hold of shirt of the deceased, a scuffle ensued between the accused no.2 and the deceased. PW-1 with the wife of the accused no.1 intervened and separated them. No report of the incident was accepted by the police and the police directed them to pacify both the parties and sent them back. Thereafter PW-1 came to the house of the deceased and at about 09:00 p.m. both of them came back to the house of the deceased. Ramdas expressed his desire to have his dinner and requested PW-1 at his place to wait whereafter he promised to go to the complainant's house. At that time PW-1 saw 6-7 persons coming towards his house. Accused no.2 was having a knife in his hand, and accused nos.3 to 6 were having swords in their hands. PW-1 was asked to call the deceased to which he replied that he was taking his dinner, and they could talk to him after he finished his meal. He was then allegedly assaulted by accused no.3 by a sword by its blunt side on the shoulder, whereafter the accused entered into the house of the deceased. Baburao, PW-5 father of the deceased tried to resist them and in the process, caught hold of the sword which was in the hand of the accused no.6 resulting in sustaining of bleeding injuries. The accused allegedly entered into the room. The deceased was assaulted with kicks and fist blows. Accused no.2, Anil Mhatre stabbed the deceased Ramdas with a knife.
93. Learned counsel for the appellants referred paragraph-24 of the said judgment in which the Apex Court held as under:-
"24. Applying the tests laid down by this Court in the aforementioned decisions, we are of the opinion that no case had been made out as against the appellants to arrive at a conclusion that they are guilty of commission of an offence under Section 302/149. We would assume that they were guilty under Section 452 of the Indian Penal Code but they have remained in custody for sufficiently long time. We, therefore, are of the opinion that having regard to the facts and circumstances of this case, these appeals should be accepted. Appellants herein are in custody. They are directed to be set at liberty in connection with certain other offences. The appeals are allowed and the impugned judgment is set aside."
94. In this case the accused was convicted only under Section 452 IPC.
95. Learned counsel for the appellants has also relied on the judgment in Bishu Sarkar and others Vs. State of West Bengal, (2017) 11 SCC 105 which was a case under Section 302/34 IPC in which appellants were convicted and sentenced under Section 302/34 IPC. In this case it has been established that none of the appellants dealt any blow by weapon. Though they participated in the scuffle, therefore, given benefit of doubt they were acquitted from the charge under Section 302/34 IPC. It was held that on the basis of evidence accused no.1 was author of the fatal injury and the appeal at his instance has been dismissed. The Apex Court concluded that none of the appellants has dealt with any blow by any weapon and all they did was to participate in the scuffle. According to PWs-2 and 5 the present appellants had caught hold of Raju Bose. But it is not clear from the record whether such act was so intended to enable accused no.1 to deal the fatal blow. PW-3 was completely silent on this aspect. Hence, given benefit of doubt the appeal was allowed and the appellants were acquitted.
96. According to this Court, it was not a case under Section 149 IPC committed by any member of the unlawful assembly in furtherance of achieving the object of such assembly. There is distinction between the common intention and common object which has been defined by the Apex Court in Chittarmal, Moti Vs. State of Rajasthan, AIR 2003 SC 796 which reads as under:-
"It is well settled by a catena of decisions 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. These 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 there is clear distinction between the two.
Common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or pre-concert. Despite thiis substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts 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 sections 34 and section 149 may apply... However, the non applicability of section 149 is not a 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."
97. On the basis of these observations made by the Supreme Court, the distinction between common intention (Section 34) and common object (Section 149) may briefly be stated as follows:-
1. Though both sections deal with joint constructive liability the provisions of Section 34 are more extensive than those of Section 149.
2. Section 149 to be applicable, requires an assembly of at least five persons, whereas in case of Section 34 this number is minimum two.
3. Section 34 does not specify any particular intention, i.e. it may be any intention, but Section 149 applies only to cases where 'common object' is one of those as specified in Section 141 IPC.
4. Section 34 does not insist on commission of a criminal act (i.e., offence) in actual furtherance of common intention but the offence for the applicability of Section 149 has to be one which the member of the unlawful assembly knew to be likely to be committed in prosecution of the common object.
5. Section 34 is a mere rule of evidence but creates no distinct offence, whereas Section 149 creates a specific offence. Commenting on this point, Justice Beg of the Allahabad High court (who later became the Chief Justice of India), observed that Section embodies merely a declarator provision relating to joint criminal liability whereas Section 149 envisges a distinct specific offence.
6. Last but not the least, the applicability of Section 34 requires the consideration of both, the physical as well as the mental aspect of ingredient of this section. As against this, Section 149 does not insist only on the mental element and therefore, it is not necessary that a member of an unlawful assembly must have actually participated in commission of the offence.
7. The conviction of a person charged under Section 149 may be altered to one of Section 34 IPC in a case where the existence of unlawful assembly (as specified under Section 141) is not proved, but not vice versa."
98. Contrary to that learned AGA relied on the judgment in Iqbal and another Vs. State of UP, (2017) 11 SCC 93 in which referring to the judgment in Lalji (supra) the Supreme Court observed which reads thus:-
"11. In the instant case after having held that the appellants formed an unlawful assembly carrying dangerous weapons with the common object to resorting to violence (as described in the charge) it was not open to the High Court to acquit some of the members on the ground that they themselves did not perform any violent act, or that there was no corroboration of their participation. In other words, having held that they formed an unlawful assembly and committed an offence punishable with the aid of Section 149 IPC, the High Court erred in examining which of the members only did actively participate and in acquitting those who, according to the court, did not so participate. Doing so would amount to forgetting the very nature and essence of the offence created by Section 149 IPC. The court in undeserving cases cannot afford to be charitable in the administration of criminal justice which is so vital for peace and order in the society."
99. Whether the judicial pronouncements cited by the learned counsel for the appellants would apply or the aforesaid judicial precedents relied on by the learned AGA would apply on the case at hand has to be seen in the light of the facts and circumstances of this case.
100. In this case it has been proved that there was prior enmity between the convict appellants and the informant, his family members and his neighbour Kalpnath. Kalpnath was earlier assaulted by the accused persons, in which the informant was one of the witnesses. As it is a case of direct evidence, therefore, motive has no much significance.
101. In this case, it has been proved that the convict appellants had chosen the odd hour (night time) when the informant and his family would certainly be sleeping and the common object of the unlawful assembly could be easily achieved. In this case, all the accused persons were armed with katta, revolver and bomb. They were knowing that accused Allau whose shot hit and killed the deceased was having a deadly weapon which he would use to achieve the common object of the unlawful assembly. Further more, they even exhorted each other to kill the family member(s) of the informant side. It has been proved from the evidence of PW-1 that after hitting the deceased accused Saddik had fired upon him but he escaped. It has also been proved that all the accused persons were abusing the whole family members of the deceased by calling them "chamaria". It has also been proved that one of the accused Jahid had exploded bomb on the spot and the residue in the shape of rope had been recovered from the spot even then no application of the Explosive Substances Act had been made. From the evidence on record, it has been proved that in the aforesaid circumstances, the informant and his family members were not in position to defend themselves.
102. On the basis of above, this Court is of the view that the alleged offence was committed by the convict appellants being a member of unlawful assembly to achieve the common object and they left the place of occurrence only when other persons of the vicinity reached and intervened and they thought that any counter could also be happened against them. Even after the incident they did not run away from the spot but they left the spot abusing the informant and his family members.
103. On the basis of above, this Court is of the view that the trial court has rightly convicted all the accused persons under Sections 148, 307 read with Section 149, 302 read with Section 149 IPC, therefore, no interference is warranted in the appeals. The appeals are devoid of merits and are liable to be dismissed.
104. Accordingly, these criminal appeals are hereby dismissed.
105. The accused appellants, Gufran and Saddik be taken into custody. They shall be sent to jail to serve the sentence and also to deposit the fine imposed upon him.
106. Let lower court record be sent back to the Court of Additional Sessions Judge, Court No.2, Azamgarh alongwith a copy of this judgment for compliance and consignment.
Order Date :- 29.08.2023
Shahroz
(U.C. Sharma,J.) (Dr. K.J. Thaker,J.)