Allahabad High Court
State Of U.P. vs Phool Singh And Others on 15 March, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 10.02.2022 Judgment delivered on 15.03.2022 Case - GOVERNMENT APPEAL No. - 2300 of 1984 Appellant - State of U.P. Respondent - Phool Singh and others Counsel for Appellant - A.G.A. Counsel for Respondent :- Satya Prakash, Apoorv Tiwari, Lalji Sahai Srivastava, Raj Kumar Yadav, Ram Lal Yadav Hon'ble Vivek Kumar Birla J.
Hon'ble Subhash Vidyarthi J.
(Delivered by Hon'ble Subhash Vidyarthi, J.)
1. Heard Ms. Nand Prabha Shukla, learned A.G.A. for the State and Sri Apoorv Tiwari and Sri Raj Kumar Yadav, Advocates, the learned Counsel for the accused-respondent Nos. 2, 3 and 5.
2. By means of the instant appeal filed under Section 378 of Cr.P.C., the State has challenged the judgment and order dated 30th April 1984 passed by the Special Judge (Additional Sessions Judge), Agra in Sessions Trial No. 51 of 1982 under Sections 148, 307/149, 302/149 IPC, Police Station Fatehpur Sikri, District Agra whereby the accused-respondent Nos. 1 to 6 have been acquitted from all the charges.
Prosecution Case
3. The prosecution case is that the accused persons are residents of Village Baseri Chahar and the house of the accused Phool Singh son of Patiram (the respondent No. 1) is situated opposite the house of Sukh Singh, the informant of the case. Giriraj Singh is the brother-in-law of Fauran Singh - who is the elder brother of Phool Singh and Giriraj Singh lives with Phool Singh. The respondent Nos. 2 and 3 are nephews of the respondent No. 1, the respondent No. 4 is a relative of the respondent No. 1 and the respondent Nos. 5 and 6 are friends of the respondent No. 1. Giriraj Singh and Phool Singh used to indulge in indecent talks, looking at the ladies of the informant's house. On 20.06.1981 the informant had objected to it. Upon this Giriraj Singh and Phool Singh abused the informant. Member Singh s/o Devi Ram who is related to the informant like a brother, also objected to the activities of Giriraj Singh and Phool Singh. Upon this, the aforesaid persons left the place and Giriraj Singh said that at that time he was short of man power and he will settle the score with the informant. On the next day i.e. on 21.06.1981, when the informant was lying down in front of his house, Phuli, Giriraj and Fateh Singh armed with single barrel guns and Virendra, Sher Singh, Malkhan and Brijendra armed with country made pistols gathered in front of Phuli's house. They charged towards the informant's house. Upon hearing the commotion, Ramshri wife of Nirpat-cousin of the informant and Balbiri wife of Shivram, another cousin of the informant, came there. The accused-persons started firing. The informant took shelter of a wall and the pellets of gun-shots hit Balbiri and Ramshri and also the wall behind which the informant was taking shelter. Upon hearing the noise, some other persons came there and asked the accused-persons not to do so, as it will result in loss of lives of the people. The accused-persons started firing on those people also, due to which pellets hit Phool Singh s/o Jorawar Singh, Sobaran s/o Dilip Singh, Chhiddi s/o Devjeet, Panna s/o Manphool and Lakhan s/o Jogdar. After this, seven accused persons ran away towards south of Phuli's house. After sometime, the police guard posted in the village came there.
4. Sukh Singh arranged a Tractor with Trolley to take the injured to the hospital and Sukh Singh, Mohan, Subedar Kharag Singh and other persons accompanied them. Maharam met on the way, who told them that Brijendra Singh s/o Hari Ram (respondent No. 6) had been arrested and Brijendra Singh was also made to sit in the Tractor Trolley.
5. Thereafter at the tube-well of Subedar Kharag Singh, Sukh Singh dictated the script of the F.I.R. to Subedar Kharag Singh who wrote the same in his hand writing and the injured persons were taken by Sukh Singh to the Police Station. A report of the incident was lodged in Police Station Fatehpur Sikri on 21.06.1981 at 5:20 p.m. and the police recorded the statement of injured Phool Singh s/o Jorawar Singh who was lying down in a serious condition in the Tractor Trolley alongwith the other injured persons. While groaning with pain, Phool Singh stated that as soon as he reached in front of the house of Sukh Singh upon hearing the commotion, Fateh Singh (the respondent No. 2) fired at him and the bullet hit him below his left shoulder. Giriraj Singh shot the second fire and the bullet from it hit his left thigh and he fell down. Even after it, gun-shots kept on being fired, from which Sobaran, Chhiddi, Panna and Lakhan were injured. Ramshri and Balbiri were lying down and groaning in pain since before his arrival. He said that his condition was very bad and he could not speak anything more. He had been shot by Fateh Singh and Giriraj and he should be sent to a hospital soon. This statement was recorded by the Sub Inspector and immediately afterwards he sent the injured Phool Singh in a Tractor Trolley to Primary Health Centre, Fatehpur Sikri for his medical examination and treatment, from where he was referred to a Hospital at Agra. Phool Singh s/o Jorawar Singh died before he could reach the hospital.
6. Giriraj Singh absconded and the accused respondent Nos. 1 to 6 were charged and tried for committing offences punishable under Sections 148, 307/149, 302/149 IPC.
Prosecution Evidence
7. The prosecution examined 5 witnesses, out of which PW-1 (Sukh Singh), PW-2 (Lakhan) and PW-3 (Sobaran Singh) were the eye-witnesses of the incident. The injury reports of Chhiddi, Panna, Lakhan Singh, Balbiri, Ramshri, Sobaran Singh and post-mortem report of the dead body of Phool Singh were placed on record. Injury reports of Chhiddi, Panna, Lakhan Singh and Balbiri mention gun-shot injuries whereas injury reports of Lakhan Singh and Ramshri mention lacerated wounds. The post mortem report of the dead body of Phool Singh mentions two gun-shot wounds.
8. PW-1 Sukh Singh has stated that his house is situated opposite the house of the accused-Phool Singh. Giriraj Singh and Phool Singh used to indulge in indecent talks and for this reason relations with those persons became strained. One day before the day of occurrence, his wife Lalmani alongwith other ladies, namely Ramshri wife of Nirpat and Basanti wife of Meet Singh were returning after easing themselves. Phool Singh and Giriraj started cracking indecent jokes with the ladies. Sukh Singh was coming behind the ladies and he forbade those persons from talking in such manner in presence of the ladies. Member Singh also reached there at the same time and he also forbade Giriraj Singh and Phool Singh from doing such talks. Giriraj said that at that time he was short of man power, else he would have taught a lesson. The following day at about 2:00-3:00 p.m. Sukh Singh was lying down in his house. He saw Sher Singh, Phool Singh, Fateh Singh, Giriraj, Virendra, Malkhan and Brijendra had gathered in front of the house of Phool Singh. Phool Singh and Giriraj Singh had single barrel guns and other four persons had country made pistols. These persons charged towards the house of PW-1 shouting to catch hold of him. PW-1 ran away and took shelter of a wall. Upon hearing the commotion, his sister-in-law Ramshri and younger brother's wife Balbiri came out of their house and some persons from the aforesaid seven fired two gun-shots. Some pellets hit Ramshri and Balbiri and some hit wall where PW-1 was hiding. Thereafter, Phool Singh, Sobaran, Lakhan, Panna and Chhiddi came there. The aforesaid seven accused persons shot on these persons also and Lakhan, Sobaran, Chhiddi, Phool Singh s/o Jorawar and Panna got injured. Upon hearing the noise of gun-shots, police guard came there and seeing the police, the accused-persons ran away towards south. PW-1 took Tractor of Chhiddi and arranged for transporting the injured persons to the hospital. PW-1, Mohan, Subedar Kharag Singh and some other persons went in the Tractor with the injured persons. Maharam met on the way and he told that the accused Brijendra Singh had been caught. Then Brijendra Singh was also made to sit in the Tractor Trolley. A report was got scribed by Subedar Kharag Singh which was proved by the PW-1 as Exhibit-1. Thereafter, PW-1 went to the police station alongwith the injured persons and he gave the report there. Thereafter, the injured were sent to a hospital. At the hospital, they were told that the injured were in a serious condition and they were referred to Agra. Accordingly, the injured were taken to Agra, where the doctor examined Phool Singh and told that he was dead.
9. In his cross-examination, PW-1 stated that there is a distance of about 45-50 steps between his house and the house of the accused Phool Singh. The accused persons had fired 7-8 shots. Two fires were directed towards him. After the accused persons had left, he had seen the pellets in and around the wall and had shown it to the Sub-Inspector. Some pieces of plaster of the wall had fallen down. He did not know as to whether the Sub-Inspector collected the pellets and the pieces of plaster or not. The tube-well where the FIR was scribed, is about 2-3 Furlongs away from the village. The report had not been written till Maharam stopped them. 3-4 minutes after running away of the accused, they had gone to the Baithak of Bhima Numbardar. It took 15-20 minutes to arrange the tractor. From the Baithak of Bhima Numbardar, they reached his tube-well in 5-6 minutes. About ½ hour was spent at the tube-well in writing the FIR. He does not know how to write and, therefore, he dictated the FIR to Subedar Kharag Singh. No draft of the FIR was prepared. No one had a prior experience of writing such an FIR. It is wrong that the FIR-Exhibit-1 was signed on the next day or that it was got written by some other person. The police station is about 8 Miles away from the tube-well. As there were injured persons in the tractor, it was driven slowly and it took about 1 ¼ - 1 ½ hours to reach the police station from the tube-well. He denied the defence story that they had rioted at the temple and that Subedar Kharag Singh had fired indiscriminately in the Panchayat due to which the persons got injured.
10. PW-2 Lakhan s/o Jogdar is also one of the injured persons. He stated that he knows all the accused persons, who are residents of his village. On the date of occurrence at about 3:00 p.m., he was at his home. He heard gun-shots from the side of house of the accused Phool Singh. Upon hearing the gun-shots, he went there and Saurabh and Panna followed him. They reached the chowk in front of the House of the accused Phool Singh. The house of Sukh Singh is opposite the house of Phool Singh. Giriraj Singh and Phool Singh had single barrel guns and other accused persons had country made pistols. He saw Balbiri, Ramshri and Phool Singh s/o Jorawar had fallen down there. Giriraj fired at PW-2 Lakhan and the pellets hit his hand. Giriraj fired the second shot which hit Sobaran. Shera shot a fire which hit Panna. Upon seeing Subedar Kharag Singh and the Police Guard, the accused and Giriraj ran away. They took the injured to the Baithak (sitting area) of Bhima Numbardar. There the injured were put in a tractor and taken to Fatehpur Sikri. On the way, Maharam stopped the Tractor and told that Brijendra Singh had been caught with the help of police. The Police personnel made Brijendra Singh to sit in the Tractor. Subedar Kharag Singh scribed the report at the tube-well and PW-2 and other persons went to the Police Station. The medical examination of PW-2 and other persons was done in Agra hospital. Phool Singh s/o Jorawar Singh had died on the way.
11. In his cross-examination PW-2 stated that there are two houses and an open plot between his house and the house of Phool Singh. He had heard two gun-shots at his home and 2-3 while on the way. There was a distance of 1-1 - 2-2 steps between the persons who were firing. They were at a distance of about 15-20 steps from the house of Sukh Singh. The accused Brijendra had been caught before they could reach the tube-well. He too denied the defence story that any Panchayat was held at the temple and a quarrel took place in the Panchayat and he also denied and that Subedar Kharag Singh had fired indiscriminately in the Panchayat due to which the persons got injured.
12. PW-3 Sobaran is also an injured witness and he stated that he was present at his house on the day of occurrence at about 3:00 p.m. He heard gun-shots. Upon hearing the gun-shots, he reached the chowk in front of the house of Phool Singh and Phool Singh s/o Jorawar, Ramshri and Balbiri were lying down injured there. Phool Singh, Fateh Singh and Giriraj were carrying guns and Sher Singh, Malkhan, Brijendra and Virendra were carrying country made pistols. Lakhan had reached there before PW-3 and Sobaran and Panna reached after him. Giriraj shot at Lakhan and thereafter he shot at PW-2 Sobaran Singh. Sher Singh fired at Panna with a country made pistol. All three were hit by pellets and upon being injured, they sat near larawani. Upon seeing Subedar Kharag Singh, the Police personnel and some other persons of the village, the accused-persons ran away. Thereafter Phool Singh was lifted and taken to the Baithak of Bhima Numbardar. The injured ladies were sent to the house of Sukh Singh. Thereafter, they went to the police station in a Tractor Trolley. Police Guard and Subedar Kharag Singh etc. had caught Brijendra. They stopped the tractor at the tube-well and Brijendra was made to sit on the Tractor Trolley. Thereafter Subedar Kharag Singh scribed the Report there. They went with the report to the Police Station. Subedar Kharag Singh and Police personnel returned to the village. His injuries were examined by the doctor at Agra. Phool Singh had died on the way.
13. In his cross-examination, PW-3 stated that he had told the Sub-Inspector that he saw Phooli, Fatte and Giriraj Singh carrying guns and Shera, Malkhan and Virendra carrying country made pistols. He categorically denied that he had told the Sub-Inspector that the fact that the accused Phool Singh, Giriraj, Fateh Singh Virendra, Shera, Malkhan and Brijendra had ran away, had been told to him by Sukh Singh. Brijendra had been caught before they reached the tube-well of Sukh Singh. He had not told the Sub-Inspector that Brijendra was caught beyond the tube-well of Sukh Singh. The ladies were also made to sit in the tractor at the Baithak of Bhima Numbardar. The report was scribed at the tube well of Sukh Singh. He categorically denied the story of a quarrel at the temple and he denied that the persons were injured due to the indiscriminate firing done by Subedar Kharag Singh.
14. PW-4 Subedar Kharag Singh said that he had heard 2-3 gun-shots and then he heard 4-5 gun-shots. Carrying his gun, he went to Sukh Singh's house. Balbiri, Ramshri, Chhiddi and Phool Singh were lying injured there. He saw the accused and other persons running away, who were being chased by the police and Maharam etc. He met Sukh Singh there, who told the entire incident to PW-4. Both the injured ladies were taken into the home and Phool Singh and Chhiddi were taken to Baithak of Bhima Numbardar. Lakhan, Panna and Sobaran also reached there. They had suffered gun-shot injuries. Sukh Singh arranged a Tractor. He started towards the police station alongwith the injured persons and PW-4. When they reached near Sukh Singh's tube-well, Maharam bawled and informed that the accused Brijendra had been caught by him and the police. Then Brijendra was also made to sit in the tractor. Sukh Singh asked PW-4 to write his report and he wrote whatever the former told him. It was signed by Sukh Singh. PW-4 proved the report as Exhibit A-1.
15. In his cross-examination, PW-4 stated that he was in a hurry to take the injured persons and he did not see empty cartridge shells or pellet marks in the Wall of Sukh Singh's verandah. When the Sub-Inspector inspected the spot, he had called PW-4. There were pellet marks in the wall, but no pellets were there. Pieces of plaster were not lying there. Near the places of holes of pellet marks, sand from the plaster was lying there. He had denied having told the Investigating Officer that he had went with the tractor trolley up to Jaingara and he could not tell as to how the Investigating Officer mentioned it. He denied that any Panchayat was held at the temple on the date of incident and that Sukh Singh and others had created an uproar in it. He denied having fired at the crowd due to which the persons suffered injuries.
16. PW-5 Vidya Sagar Tiwari was posted as Constable Clerk on the date of the incident. He proved the Report lodged in the police station, which was written and signed by him. He stated that initially the case was registered under Sections 147/148/307 I.P.C. and after receiving the information of death of Phool Singh it was converted into Section 302. He had registered this fact in the General Diary on 22-06-1981 at Report No. 30. The original G.D. is in his handwriting and its copy is on record and is marked as Exhibit A-11. The investigation of the case was conducted by Sub Inspector Bharat Ram who died on 13.03.1984, i.e., about a year before recording of the statement of PW-5. The statement of the deceased Phool Singh is recorded in the Case Diary in the hand writing of S.I. Bharat Ram, which was proved by PW-5 and was marked as Exhibit A-15.
Defence Evidence
17. In their statements recorded under Section 313, Cr.P.C., all the accused persons denied the charges and stated that they had been falsely implicated due to party-bandi in the village.
18. The accused-Respondent No. 4 Sher Singh stated that there was no vision in his right eye and for the past 4-5 years, the vision of left eye was also poor.
19. The accused-Respondent No. 5 Malkhan Singh stated that prior to the indecent, on 15th June he and two persons had found a handkerchief on the road. One of them picked it up and handed it over to the wife of Badan Singh Nai. The lady demanded Rs.300/- which, she said, were kept in the handkerchief. Since none of them had any money, they went away. On 21st June, a Panchayat was held at Thakur Devalay to discuss the matter. He had also gone to the Panchayat. The Panchs asked him about the money. He and his companions denied. Sukh Singh etc. were also present and Subedar Kharag Singh had his licensed gun. A quarrel tool place there. Sukh Singh etc. pelted stones. He also ran. Subedar Kharag Singh resorted to indiscriminate firing. Respondent No. 5 ran away and he did not see as to who suffered injuries.
20. Accused-Respondent No. 6 Brijendra Singh (now dead) said that he is a medical practitioner having his clinic in village Jaingara, which is about 2 Km. away from his village. At the time of the quarrel he was at his clinic. When these persons were bringing the injured in tractor-trolley, they saw him, caught him and dragged him to the trolley.
21. It is significant to mention that upon being asked as to whether they will give an explanation, except for the accused-respondent no. 5 Malkhan Singh, all other accused persons answered in the negative. Although he had stated that he will not give any explanation, the Accused-Respondent No. 1 Phool Singh appeared as DW-1 and although accused-respondent no. 5 Malkhan Singh had stated that he would give an explanation, he did not appear as a witness.
22. The accused-respondent No. 1 Phool Singh (DW-1) stated that the Accused-Respondent No. 5 Malkhan Singh is also called as Bhagat Ji. A dispute had occurred between Bhagat Ji and the wife of Madan Nai regarding a handkerchief and some money. He asked me to settle the dispute. I asked these people to gather ten persons of the village and hold a Panchayat at the temple and settle the dispute. On this suggestion of DW-1, a Panchayat was held at the temple of Thakur Ji. DW-1, Sukh Singh, Padam Singh, Pooran Pradhan and Kedar were nominated as Panch. Panchayat started at about 02:00 p.m. Shera had come to attend the Panchayat alongwith Malkhan. 40-50 persons of the village had gathered in the Panchayat. A short while after start of the Panchayat, a quarrel occurred and brick batting started. Subedar Singh fired a shot from his gun and a stampede started. Villagers suffered pellet injuries due to the gun-shot fired by Subedar Kharag Singh.
23. In his cross-examination, DW-1 stated that the handkerchief was lost and found by Malkhan about 2-1 days before the Panchayat. No one got injured in brick batting.
Findings of the Trial Court
24. After discussion of the entire evidence, the learned trial court gave the judgment and order dated 30-04-1984 acquitting all the accused persons of all the charges on the following grounds: -
(I) The prosecution has produced PW-1, PW-2 and PW-3 as eye-witnesses but PW-3 was confronted with his statement recorded under Section 161 Cr.P.C., in which he had stated that Sukh Singh had told him about running of Phool Singh; this indicates that PW-3 did not see the incident.
(II) All the witnesses had enmity with the accused persons since prior to the incident and it was also established that only those witnesses of fact were produced who are closely related to each other.
(III) The Investigating Officer did not recover any pellets either from the wall where Sukh Singh had taken shelter or from any place near the wall and no empty shells of cartridges were recovered from the spot. No blood was found from any place in the chowk although several injured persons fell on the ground after receiving injuries in the chowk, which makes the place of incident doubtful. Therefore, the statements of the eye-witnesses have not been corroborated regarding the place of incident by material circumstances.
(IV) The fact that the arrest of the accused Brijendra has been mentioned in the FIR indicates that it was prepared subsequently.
(V) The statement of the deceased Phool Singh made to the Investigating Officer has been relied upon as his dying declaration but the Investigating Officer did not take the precaution of recording his statement in the presence of two respectable witnesses as required in the Police Regulations and, therefore, much evidentiary value cannot be placed upon this dying declaration.
(VI) The deceased Phool Singh mentioned that only Fateh Singh and Girraj fired at him. He also stated that Sobaran, Chhiddi, Panna, Lakhan, Ramshri and Balbiri also suffered injuries in the firing but he did not name any other person who resorted to firing and, therefore, if this dying declaration is accepted as true, then only two persons resorted to firing. Therefore, the prosecution story is belied by the dying declaration and makes the prosecution case of firing by the seven accused extremely doubtful.
(VII) Although the defence theory regarding Panchayat and firing is highly improbable and unnatural, it makes no difference and it is a cardinal principle of law that the prosecution must prove its case beyond doubt and cannot take advantage of the weakness of defence.
25. The State has filed the present appeal under Section 378 Cr.P.C., which has been admitted by means of an order dated 07-01-1987.
26. During the pendency of the appeal, the respondent Nos. 1, 4 and 6 have died and the appeal stands abated as against them. The respondent Nos. 2, 3 and 5 are represented by Sri Apoorv Tiwari and Sri Raj Kumar Yadav, Advocates, who have advanced their submissions in opposition of the appeal.
Submissions of the Appellant-State
27. Ms. Nand Prabha Shukla, learned A.G.A. has taken us through the statements of witnesses in order to establish that the findings of the learned Court below are perverse and the judgment under challenge is unsustainable. She has submitted that the Investigating Officer has recorded the statement of injured Phool Singh under Section 161 Cr.P.C., who died thereafter while being taken to the hospital. Therefore, his statement has to be treated as his dying declaration and the provisions of Police Regulations would not apply to it and non-compliance with the aforesaid provisions would not vitiate its evidentiary value.
28. In Jalil Khan and others versus State of U.P. (2016) 93 ACC 882 = 2016 SCC OnLine All 84, a coordinate Bench of this Court has dealt with the effect of non-compliance with the provisions of Regulation 115 of the Police Regulations in a Statement which was recorded under Section 161 Cr.P.C. and the relevant portions of the aforesaid judgment are being reproduced below: -, "38. Next ground of challenge, that dying declaration has been wrongly believed by the learned trial Judge has two points that it has been recorded in contravention of para 115 of the U. P. Police Regulations and presence of independent persons was not procured by the investigating officers before recording the dying declaration.
39. On behalf of the State-respondent, these arguments have been replied that when statement of the deceased Abdul Samad was recorded by the investigating officer, it was recorded under Section 161 Cr.P.C. in absence of contemplation of the death of the injured. The learned trial Judge has believed the dying declaration. The dying declaration was recorded by first investigating officer Sri. R.P. Chaudhary though he has not been examined by the prosecution and the second investigating officer Ramesh Chandra Dubey, P.W.-8 has proved the dying declaration Exhibit Ka-12. Non-examination of Sri. R.P. Chaudhary has been explained by this witness, according to him, R.P. Chaudhary has died. Death of R.P. Chaudhary has not been disputed by the defence before the learned trial Judge.
40. On behalf of the defence, this witness has been cross examined regarding the dying declaration on the point that why he did not record the statement of the doctor about the fitness of mental condition of Abdul Samad at the time of recording of his statement on 29.2.1986.
41. We are of the opinion though while making declaration, injured apprehended his death but there is nothing on record that the investigating officer was informed by the doctor or any other person about impending death of the injured. According to the prosecution witnesses the deceased was conscious and he became unconscious only half an hour before he reached the District Hospital, Sultanpur. During cross examination, Musa Qasim, P.W.-1 was asked whether he had informed the investigating officer that his father was in serious condition to which he replied that he was not asked by the investigating officer in this regard. He only informed the investigating officer, he had seen the occurrence and identified the miscreants.
42. In view of above, there appears substance in the argument advanced on behalf of the State-respondent that the investigating officer merely recorded statement of injured Abdul Samad under Section 161 Cr.P.C. and it was not made in contemplation of the death of the injured. Keeping in view this fact, we do not think the two points submitted before us in reference to admissibility of dying declaration Exhibit Ka-12, survive no more."
29. In the present case also, the statement of Phool Singh was recorded by the Investigating Officer under Section 161 Cr.P.C. and it was not signed by him. At the time of making the statement Phool Singh had suffered two gun-shot injuries, he was lying in a Tractor Trolley for being taken to the hospital for his treatment. His condition was serious and he was groaning in pain while making the statement and he even said that he could not speak anything more. Soon thereafter, he died before he could reach the hospital. However, there is nothing on record which establishes that while recording the statement of Phool Singh, the Investigating Officer was acting with an understanding that the former was about to die and that the later was recording his dying declaration. The provisions of Regulation 115 of the Police Regulations would not apply to a statement recorded under Section 161 Cr.P.C. However, as the person died soon after recording of his statement under Section 161 Cr.P.C., the statement can be relied upon as his dying declaration even without compliance of the requirements of Regulation 115.
30. The learned A.G.A. has placed reliance on a decisions of the Hon'ble Supreme Court in the case of Sri Bhagwan Vs. State of U.P., 2013 (12) SCC 137. The relevant portion of the said judgment is extracted herein below:-
"21. As far as the implication of 162 (2) of Cr.P.C. is concerned, as a proposition of law, unlike the excepted circumstances under which 161 statement could be relied upon, as rightly contended by learned senior counsel for the respondent, once the said statement though recorded under Section 161 Cr.P.C. assumes the character of dying declaration falling within the four corners of Section 32(1) of Evidence Act, then whatever credence that would apply to a declaration governed by Section 32 (1) should automatically deemed to apply in all force to such a statement though was once recorded under Section 161 Cr.P.C. The above statement of law would result in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such."
31. The requirements of a valid dying declaration have been formulated by the Hon'ble Supreme Court in Paniben (Smt) v. State of Gujarat, (1992) 2 SCC 474 in the following words: -
"18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P.)
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav; Ramawati Devi v. State of Bihar).
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.)
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.)
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu)
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar)
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P.)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan)".
32. Examining the dying declaration of Phool Singh alongwith the other evidence available on record, we find that the declaration was recorded by the Investigating Officer S.I. Bharat Ram soon after the incident, when Phool Singh was lying in the Tractor-trolley alongwith the other injured persons for being taken to a hospital. Initially it was recorded in the form of a statement under Section 161 Cr.P.C. but due to death of Phool Singh soon thereafter, it assumed the character of his dying declaration. S.I. Bharat Ram, who had recorded the statement, expired before he could be examined as a witness in the trial and the aforesaid statement of Phool Singh was proved by PW-5 Head Constable Vidya Sagar Tiwari, who was posted as a Constable Clerk in Police Station Fatehpur Sikri on the date of incident, i.e. 21-06-1981. Phool Singh has unequivocally stated that upon hearing the commotion, as soon as he reached in front of the house of Sukh Singh, Fateh Singh (the respondent No. 2) fired at him and the bullet hit him below his left shoulder. Giriraj Singh shot the second fire and the bullet from it hit his left thigh and he fell down. Even after it, gun-shots kept on being fired, from which Sobaran, Chhiddi, Panna and Lakhan were injured. Ramshri and Balbiri were lying down and groaning in pain since before his arrival. The dying declaration of Phool Singh has been adequately corroborated by the statements of PW-1, PW-2 and PW-3, amongst whom PW-1 is the eye witness and PW-2 and PW-3 are the injured witnesses. There is no material contradictions between the dying declaration of Phool Singh and the statements of injured witnesses PW-2 and PW-3 and the eye witness PW-1 and the same is fully corroborated by the post mortem report of the deceased Phool Singh and the injury reports of the other injured persons. Keeping in view the principle laid down in Jalil Khan, Sri Bhagwan and Paniben (Supra), it is clear that when we examine the statement of the deceased Sukh Singh, we have no hesitation in holding that his statement has to be relied upon as an acceptable dying declaration.
Submissions on behalf of Accused - Respondents
33. Shri Apoorv Tiwari, the learned counsel appearing for the accused-respondents No. 2, 3 and 5 has made several submissions while opposing the Appeal and we will deal with the same one by one. The first submissions of the learned Counsel for the accused respondents is that PW-1 stated that his relations with the accused-persons were strained and, therefore, he is not an independent witness and his evidence should be discarded. His second submission is that all the witnesses are closely related and evidence of such related witnesses needs to be examined cautiously and corroboration of statements of such witnesses is required.
34. The reason for relations of the accused-persons being strained with the PW-1 and other persons was that Giriraj and Phool Singh used to indulge in indecent talks in presence of the ladies of the family of PW-1 who has stated that when he forbade Phool Singh and Giriraj from indulging in indecent talks in presence of the ladies, they said that they will continue to do it and Giriraj had said that at that time he was short of man power and he will settle the score. Therefore, the allegations of strained relations weighs heavily against the accused-persons as it gives rise to the motive for committing the crime and the testimony of the PW-1 and injured witnesses PW-2 and 3 as well as dying declaration of Phool Singh cannot be discarded on the ground of strained relations.
35. So far as the submission of the witnesses being closely related is concerned, there is no law that the testimony of a related witness cannot form the basis of conviction of the accused. The only caution is that the testimony of related witnesses should be examined more carefully.
36. In Ramji Singh v. State of U.P., (2020) 2 SCC 425, the Hon'ble Supreme Court was dealing with a similar situation where the witnesses were closely related to the deceased and there was enmity between both the sides. The Hon'ble Supreme Court has dealt with the situation in the following manner: -
"19. It has been urged that the statements of the two witnesses PWs 1 and 2 should not be relied upon since they are closely related to the deceased and there was enmity between both the sides. It has been urged that PW 2 had a dispute with Krishna Autar (A-3) and his brother had litigation with Lakhan Singh (A-1). We assume these facts to be true. There is no manner of doubt as stated in the complaint itself that the relationship between the two sides was strained. They belonged to different groups and obviously there was enmity between them. As is often said enmity is a double-edged sword. It can be both the motive for a crime and it can also be a motive to falsely implicate some other people. However, each case has to be decided on its own evidence. In this case we have come to the conclusion that the written complaint was recorded immediately after the occurrence. There was no time to concoct a false case implicating those who were not involved. The fact that Sarman Singh was murdered is not disputed. The only question is whether it was the accused persons who murdered him or somebody else. Once we believe that PWs 1 and 2 are eyewitnesses, then there is no reason to hold that the appellants were falsely implicated. They are all named in the written complaint as well as in the FIR which was recorded at the earliest. Their version is corroborated by the version of PW 4, who though not an eyewitness reached the spot at about 12.45 p.m. and then scribed the complaint. In our view this complaint depicts what actually happened.
20. True it is that there are some minor variations and contradictions in the statement of the two witnesses, especially PW 2. PW 2 may have improved his version slightly while appearing in court but the core of his evidence remains intact....
21. We must remember that the prosecution story is that six persons who were heavily armed, two of them with guns, killed the deceased in broad daylight. This itself shows that these accused persons were not scared of the villagers. While leaving the place of occurrence they threatened all gathered there by saying that anybody who tried to interfere would meet the same fate. In such a situation no other villager who may have been present would turn up to give evidence. This Court cannot lose sight of the harsh reality that witnesses are scared to depose in court. In this case two of the witnesses have spoken up and their evidence has been corroborated on all counts. It may be true that their relations with the accused may not have been cordial but the evidence does not show that the enmity or dispute between these two witnesses and the accused was of such a nature that these two witnesses would make false statements only to settle scores with the appellants thereby leaving the real culprits to go scot-free. In our opinion merely because these witnesses are interested witnesses their testimony cannot be discarded."
37. In Ilangovan v. State of T.N., (2020) 10 SCC 533 the Hon'ble Supreme Court held that: -
"it is settled law that the testimony of a related or an interested witness can be taken into consideration, with the additional burden on the Court in such cases to carefully scrutinise such evidence (see Sudhakar v. State)."
38. Therefore, the submission of the counsel for the appellant, that the testimonies of the witnesses in the case should be disregarded because they were related, without bringing to the attention of the Court any reason to disbelieve the same, cannot be countenanced keeping in view the fact that PW-2 and PW-3 are the injured witnesses and their presence on the spot of occurrence cannot be doubted and there is no discrepancy in the statements of PW-2 and PW-3, as also in the dying declaration of Phool Singh regarding the narration of the incident.
39. The third submission of the learned Counsel for the Accused-respondents is that the statement of eye-witnesses have not been supported by any independent witnesses.
40. In Guru Dutt Pathak v. State of U.P., (2021) 6 SCC 116, the Hon'ble Supreme Court has been pleased to summarize the law in this regard in the following words: -
"24. One another ground given by the learned trial court while acquitting the accused was that no independent witness has been examined. The High Court has rightly observed that where there is clinching evidence of eyewitnesses, mere non-examination of some of the witnesses / independent witnesses and / or in absence of examination of any independent witnesses would not be fatal to the case of the prosecution.
24.1. In Manjit Singh v. State of Punjab, it is observed and held by this Court that reliable evidence of injured eyewitnesses cannot be discarded merely for reason that no independent witness was examined.
24.2. In the recent decision in Surinder Kumar v. State of Punjab, it is observed and held by this Court that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated.
24.3. In Rizwan Khan v. State of Chhattisgarh, after referring to the decision of this Court in State of H.P. v. Pardeep Kumar, it is observed and held by this Court that the examination of the independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case."
41. There is no rule that in every criminal case, the testimony of the related witnesses needs corroboration and where there is clinching evidence, non-examination of independent witnesses will not be fatal to the prosecution case.
42. The aforesaid three submissions of the learned Counsel for the Accused-respondents are directed to attack the testimonies of prosecution witnesses. The substance of the testimonies of all the witnesses examined in the case has been reproduced in earlier part of this judgment. PW 1 Sukh Singh and injured witnesses PW 2 Lakhan and PW 3 Sobaran Singh are the most natural witnesses of the incident and their testimonies cannot be disbelieved merely on the ground that they are closely related. They would be the least disposed to falsely implicate the accused persons or substitute them in place of the real culprits. In the present case, seven accused persons carrying guns and country-made pistols had fired gun-shots and injured several persons and killed one person at the chowk in front of the deceased's house in broad day light. From their conduct it appears that they had no respect or fear for the law. It is a matter of common understanding that in such matters, the independent persons, generally, do not dare to give evidence against the accused on account of fear. The mis-carriage of justice is inevitable, if in such a case the testimonies of the witnesses, who are closely related with the deceased, are required to be corroborated by the independent evidence.
43. In State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, the Hon'ble Supreme Court has held that: -
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer....."
44. In State of U.P. v. Krishna Master, (2010) 12 SCC 324 the Hon'ble Supreme Court explained the manner in which the Court should examine the statement of witnesses in the following words:-
"15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
16. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.
17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case."
45. In Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 the Hon'ble Supreme Court formulated the principles to be kept in mind by the appellate Court while dealing with appeals against acquittal:-
"27. The following principles have to be kept in mind by the appellate court while dealing with appeals, particularly against an order of acquittal:
(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded.
(ii) The appellate court in an appeal against acquittal can review the entire evidence and come to its own conclusions.
(iii) The appellate court can also review the trial court's conclusion with respect to both facts and law.
(iv) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.
(v) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.
(vi) While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.
(vii) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed."
46. In Achhar Singh v. State of H.P., (2021) 5 SCC 543, the Hon'ble Supreme Court explained the scope of powers of the High Court in appeals against acquittal in the following manner: -
"16. It is thus a well-crystalized principle that if two views are possible, the High Court ought not to interfere with the trial court's judgment. However, such a precautionary principle cannot be overstretched to portray that the "contours of appeal" against acquittal under Section 378 Cr.P.C. are limited to seeing whether or not the trial court's view was impossible. It is equally well settled that there is no bar on the High Court's power to re-appreciate evidence in an appeal against acquittal. This Court has held in a catena of decisions (including Chandrappa v. State of Karnataka, State of A.P. v. M. Madhusudhan Rao and Raveen Kumar v. State of H.P.) that the Cr.P.C. does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal and that the appellate court is free to consider on both fact and law, despite the self-restraint that has been ingrained into practice while dealing with orders of acquittal where there is a double presumption of innocence of the accused."
The Hon'ble Supreme Court further held that "homicidal deaths cannot be left to judicium dei. The court in its quest to reach the truth ought to make earnest efforts to extract gold out of the heap of black sand. The solemn duty is to dig out the authenticity. It is only when the court, despite its best efforts, fails to reach a firm conclusion that the benefit of doubt is extended."
47. The principles which emerge from the aforesaid decisions, are that the "contours of appeal" against acquittal under Section 378 CrPC are not limited to seeing whether or not the trial court's view was impossible. There is no bar on the High Court's power to reappreciate evidence in an appeal against acquittal. Cr.P.C. does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal. The appellate court is free to consider on both fact and law, despite the self-restraint that has been ingrained into practice while dealing with orders of acquittal where there is a double presumption of innocence of the accused.
48. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be, but that is a shortcoming from which no criminal case is free. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities occurring in the evidence. In the latter, however, no such benefit may be available to it. In the light of these principles, this Court will have to determine whether the evidence of the eyewitnesses examined in this case proves the prosecution case. When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like the dying declaration, the appellate court is competent to reverse the decision of the trial court depending on the materials placed.
49. The dying declaration of Sukh Singh son of Joravar Singh (Exhibit A-15) states that a gun-shot fired by Fateh Singh hit below his left shoulder and the other gun-shot fired by Giriraj hit him in his left thigh and he fell down in the chowk; gun-shots kept on being fired and the injured Sobaran, Chhiddi, Panna, Lakhan and Ramshri and Balbiri were lying down and groaning since before he reached there. PW-1 Sukh Singh has stated that he saw that Sher Singh, Phool Singh, Fateh Singh, Giriraj, Virendra, Malkhan and Brijendra had gathered in front of the house of Phool Singh. Phool Singh and Giriraj Singh had single barrel guns and the other four persons had country made pistols. Some persons from the aforesaid seven fired two gun-shots. Some pellets hit Ramshri and Balbiri and some hit the wall where PW-1 was hiding. Thereafter, Phool Singh, Sobaran, Lakhan, Panna, Chhiddi came there. The aforesaid seven accused persons shot at these persons also and Lakhan, Sobaran, Chhiddi, Phool Singh s/o Jorawar and Panna got injured. PW-2 Lakhan, an injured witness, has stated that upon hearing the gun-shots being fired, he went to the chowk in front of the House of the accused Phool Singh and saw that Giriraj Singh and Phool Singh had single barrel guns and the other accused persons had country made pistols. He saw Balbiri, Ramshri and Phool Singh s/o Jorawar had fallen down there. Giriraj fired at PW-2 Lakhan and the pellets hit his hand. Giriraj fired the second shot which hit Sobaran. Shera shot a fire which hit Panna. The injured were put in a tractor and taken to Fatehpur Sikri. The medical examination of PW-2 and the other persons was done in Agra hospital. Phool Singh s/o Jorawar Singh had died on the way. In his cross-examination PW-2 denied the defence story that any Panchayat was held at the temple and that a quarrel had taken place in the Panchayat and he also denied and that Subedar Kharag Singh had fired indiscriminately in the Panchayat due to which the persons got injured. PW-3 Sobaran is also an injured witness and he stated that upon hearing the gun-shots, he reached the chowk in front of the house of the accused Phool Singh and Phool Singh s/o Jorawar, Ramshri and Balbiri were lying down injured there. Phool Singh, Fateh Singh and Giriraj were carrying guns and Sher Singh, Malkhan, Brijendra and Virendra were carrying country made pistols. Lakhan had reached there before PW-3 and Sobaran and Panna reached after him. Giriraj shot at Lakhan and thereafter he shot at PW-2 Sobaran Singh. Sher Singh fired at Panna with a country made pistol. All three of them were hit by pellets. His injuries were examined by the doctor at Agra. Phool Singh had died on the way. PW-4 Subedar Kharag Singh said that he heard 2-3 gun-shots and then he heard 4-5 gun-shots. Carrying his gun, he went to Sukh Singh's house Balbiri, Ramshri, Chhiddi and Phool Singh were lying injured there.
50. Thus from the prosecution evidence consisting of the dying declaration of Phool Singh son of Jorawar Singh and the statements of the prosecution witnesses, it comes out that all the accused persons had gathered with fire-arms in front of the house of the accused- respondent No. 1 Phool Singh son of Patiram and they charged towards the house of the informant Sukh Singh. All of them fired due to which Sukh Singh died and Balbiri, Ramshri, Phool Singh s/o Jorawar Singh, Sobaran s/o Dilip Singh, Chhiddi s/o Devjeet and Panna s/o Manphool and Lakhan s/o Jogdar got injured and Phool Singh son of Jorawar Singh died while being taken to a Hospital at Agra. There is no dicrepancy in the statements of any of the witnesses regarding any material circumstance relating to the incident.
51. There is another circumstance which has been ignored by the learned trial Court. In their statements recorded under Section 313 Cr.P.C., in response to a question as to whether they would give any explanation, except for the accused-respondent no. 5 Malkhan Singh, all other accused persons answered in the negative. Although he had stated that he will not give any explanation, the Accused-Respondent No. 1 Phool Singh appeared as DW-1 and although the accused-respondent no. 5 Malkhan Singh had stated that he would give an explanation, he did not appear as a witness. The conduct of the accused persons in refraining from appearing as a witness so as to avoid offering themselves for being cross-examines raised a presumption against them that had they appeared as a witness and had they been cross-examined, the truth would have been elicited from them, which would obviously be against them.
52. In Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1, the Hon'ble Supreme Court held that: -
"269.... While answer given by the accused to question put under Section 313 of the Code are not per se evidence because, firstly, it is not on oath and, secondly, the other party i.e. the prosecution does not get an opportunity to cross-examine the accused, it is nevertheless subject to consideration by the court to the limited extent of drawing an adverse inference against such accused for any false answers voluntarily offered by him and to provide an additional/missing link in the chain of circumstances.....
274. This Court has time and again held that where an accused furnishes false answers as regards proved facts, the Court ought to draw an adverse inference qua him and such an inference shall become an additional circumstance to prove the guilt of the accused. In this regard, the prosecution seeks to place reliance on the judgments of this Court in Pershadi v. State of U.P. [AIR 1957 SC 211 : 1957 Cri LJ 328] , State of M.P. v. Ratan Lal [AIR 1994 SC 458 : 1994 Cri LJ 131] and Anthony D'Souza v. State of Karnataka [(2003) 1 SCC 259 : 2003 SCC (Cri) 292] where this Court has drawn an adverse inference for wrong answers given by the appellant under Section 313 CrPC. In the present case, the appellant Manu Sharma has, inter alia, taken false pleas in reply to Questions 50, 54, 55, 56, 57, 64, 65, 67, 72, 75 and 210 put to him under Section 313 of the Code."
53. In State of Karnataka v. Suvarnamma, (2015) 1 SCC 323, the Hon'ble Supreme Court held that: -
"Once the prosecution probabilises the involvement of the accused but the accused takes a false plea, such false plea can be taken as an additional circumstance against the accused. Though Article 20(3) of the Constitution incorporates the rule against self-incrimination, the scope and the content of the said rule does not require the court to ignore the conduct of the accused in not correctly disclosing the facts within his knowledge. When the accused takes a false plea about the facts exclusively known to him, such circumstance is a vital additional circumstance against the accused."
54. Thus it is settled law that although an accused person cannot be convicted merely on the ground that he had set up a false defence, but the fact that the accused set up a false defence is a circumstances which weighs against him while examining the entire material on record. DW-1 Malkhan Singh had set up a story of a Panchayat having been called in the temple and a quarrel having taken place in it and Subedar Kharag Singh having fired indiscreminately-which story has been found to be false by the learned Court below. Therefore, this conduct of the accused in setting up a false story in defence would be an additional circumstance against the accused/respondents while weighing the material on record.
55. The fourth submission of Sri Apoorv Tiwari is that the place of incident is doubtful. He has highlighted that PW-1 Sukh Singh has stated that when the accused fired at Ramshri and Baliri, some pellets hit the wall behind which he had taken shelter and some pieces of plaster had fallen from the places where the pellets had hit it. He stated in his cross-examination that he had seen the pellets embedded in the wall and lying near it. However, the Investigating Officer has not recovered any pellets or pieces of plaster. Moreover, no empty shells have been recovered. Several injured persons fell in the chowk but there is no mention of blood stains found there. Although some blackening has been shown in the site plan, it could not be caused from the firing because the shots were fired form a considerable distance. These circumstances make the place of incident doubtful. The learned trial Court has also highlighted the facts that PW 1 Sukh Singh had stated that some pellets had hit the wall behind him he had taken shelter but the Investigating Officer did not recover any pellets either from the wall or from any place near it; the witness had further stated that the plaster of the wall had also fallen at places where the pellets hit it, but no plaster was recovered by the Investigating Officer; no empty shells of the cartridges were recovered from the spot; no blood was found from the place of occurrence. The learned Court below came to a conclusion that these circumstances make it doubtful that the incident took place in the chowk between the houses of the accused Phool Singh and PW 1 Sukh Singh. Regarding blackening shown at a place in the site plan, the Court below held that no blackening could be caused by the gun-shots because the same were shot from a considerable distance. On these reasons, the learned Court below held that the statements of the eye-witnesses have not been corroborated regarding the place of incident by material circumstances.
56. The law relating to the effect of a defect in investigation has been discussed and summarized by the Hon'ble Supreme Court in Gajoo v. State of Uttarakhand, (2012) 9 SCC 532, in the following words: -
"20. In regard to defective investigation, this Court in Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263 while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under: (SCC pp. 280-83, paras 27-36) "27. Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P. (1972) 3 SCC 613 this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, (2004) 3 SCC 654, held: (SCC p. 657, para 5) ''5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.'
28. Dealing with the cases of omission and commission, the Court in Paras Yadav v. State of Bihar (1999) 2 SCC 126, enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
29. In Zahira Habibullah Sheikh (5) v. State of Gujarat (2006) 3 SCC 374, the Court noticed the importance of the role of witnesses in a criminal trial. The importance and primacy of the quality of trial process can be observed from the words of Bentham, who states that witnesses are the eyes and ears of justice. The court issued a caution that in such situations, there is a greater responsibility of the court on the one hand and on the other the courts must seriously deal with persons who are involved in creating designed investigation. The Court held that: (SCC p. 398, para 42) ''42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure a fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance, if not more, as the interest of the individual accused. In this courts have a vital role to play.' (emphasis in original)
30. With the passage of time, the law also developed and the dictum of the court emphasised that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.
31. Reiterating the above principle, this Court in NHRC v. State of Gujarat (2009) 6 SCC 767, held as under: (SCC pp. 777-78, para 6) ''6. ... "35. ... The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice--often referred to as the duty to vindicate and uphold the ''majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the Judges as impartial and independent adjudicators." (Zahira Habibullah case, SCC p. 395, para 35)'
32. In State of Karnataka v. K. Yarappa Reddy (1999) 8 SCC 715, this Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the investigating officer could be put against the prosecution case. This Court, in para 19, held as follows: (SCC p. 720) ''19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by the investigating officers. The criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case.'
33. In Ram Bali v. State of U.P. (2004) 10 SCC 598, the judgment in Karnel Singh v. State of M.P. (1995) 5 SCC 518 was reiterated and this Court had observed that: (Ram Bali case, SCC p. 604, para 12) ''12. ... In case of defective investigation the court has to be circumspect [while] evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective.'
34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a ''fair trial', the court should leave no stone unturned to do justice and protect the interest of the society as well.
(Emphasis supplied)
57. In State of Karnataka v. Suvarnamma, (2015) 1 SCC 323, the Hon'ble Supreme Court held that "It is also well settled that though the investigating agency is expected to be fair and efficient, any lapse on its part cannot per se be a ground to throw out the prosecution case when there is overwhelming evidence to prove the offence."
58. When we examine the evidence of the present case keeping in view the scope of powers of this Court while deciding an appeal against acquittal as explained in Achhar Singh (Supra) as also in Gajoo and Suvaranamma (Supra), we find that the dying declaration of Phool Singh as well as the statements of the ocular witnesses, namely, PW 1 Sukh Singh, PW 2 Laxman and PW 3 Sobaran Singh, amongst whom PW 2 and PW 3 are the injured witnesses, contain a categorical and unequivocal assertion that the incident occurred in the chowk in front of the house of the accused Phool Singh. As there is no discrepancy regarding the place of incident in the dying declaration as well as in the statement of witnesses, the same do not need any corroboration by any other evidence. There cannot be any doubt that the Investigating Officer ought to have recorded the aforesaid facts during the investigation and he has carried out the investigation in a defective manner, but in the facts and circumstances of the present case, the mere failure of the Investigating Officer in recovering any pellets or empty shells of cartridges or pieces of plaster and his failure to mention blood stains found at the place of occurrence, would not nullify the categorical statement of the prosecution witnesses so as to demolish the prosecution case. The accused/respondents cannot be acquitted for the mere reason of a defect in investigation when the entire evidence of record proves beyond reasonable doubt that the accused / respondents have committed the offence.
59. Shri Apoorv Tiwari has next submitted that there is no proof that the injuries were caused by the accused-respondents. For supporting any order of conviction the dying declaration must be trustworthy and without any contradictions. He has submitted that PW-5 (Vidya Sagar Tiwari) Head Constable has stated that from the case diary it does not appear that Exhibit A-15 (dying declaration) was written where and in what circumstances and the case does not contain signature of any independent witnesses to prove this statement.
60. The circumstance in which the dying declaration (A-15) was recorded are mentioned in that declaration itself in which the Sub Inspector has written in the beginning that the injured Phool Singh was lying down in the Tractor Trolley alongwith the other injured persons and his condition was serious. There is absolutely no contradiction regarding any material circumstances in the dying declaration of the deceased Phool Singh as well as the eye-witness PW-1 and the injured eye-witnesses PW-2 and 3. All the aforesaid persons have categorically stated that the injuries were caused by the gun-shots fired by the accused-persons. Therefore, the contention of learned counsel for the accused-respondents that there is no proof that the injuries were caused by the accused-respondents has no force.
61. Shri Tiwari has submitted that the principle laid down in Manjit Singh versus State of Punjab (2019) 8 SCC 529 will not apply because in the present case the witnesses are closely related and have prior enmity. In Manjit Singh (supra), the Hon'ble Supreme Court reiterated the well settled principle that "There is no rule that in every criminal case, the testimony of an injured eye-witness needs corroboration from the so-called independent witness(es). When the statement of injured eye-witness is found trustworthy and reliable, the conviction on that basis could always be recorded, of course, having regard to all the facts and surrounding factors.", without putting any rider that the principle is not applicable when the witness are related to each other. Therefore, his submission that the principle laid down in Manjit Singh (supra) will not apply to the present case, is misconceived and is rejected.
62. Regarding prompt registration of the first information report, the learned Court below held that the fact that the FIR mentions the fact of arrest of the accused Brijendra, which indicates that the FIR has been prepared subsequently. While coming to this conclusion, the trial Court has ignored the fact that PW 1 Sukh Singh had stated that after the incident, he arranged a tractor of Chhiddi and he transported all the injured persons in the tractor trolley to the police station and thereafter to the hospital. Maharam met on the way and informed that the accused Brijendra had been caught and thereafter he was also made to sit in the tractor trolley and was taken to the police station. While on the way, Sukh Singh dictated the FIR to PW 4 Subedar Kharag Singh at his tube-well, who scribed the same. To the same effect are the statements of PW 2 Lakhan, PW 3 Sobaran Singh and PW 4 Subedar Kharag Singh. PW 1 has further stated that about ½ hour was spent in scribing the FIR. As injured persons were lying in the tractor trolley, it was driven slowly.
63. From a perusal of the statement of the prosecution witnesses, it is evident that the FIR was obviously written after Maharam told the witnesses that the accused Brijendra had been caught and the police personnel made him to sit on the tractor trolley and that is why the FIR makes a mention of this fact. This does not weaken the prosecution case in any manner.
64. There is another very important factor, which proves that the FIR was lodged promptly. PW-5 Vidya Sagar Tiwari, who was posted as Constable Clerk on the date of incident, has stated that initially the case was registered under Sections 147/148/307 I.P.C. and after receiving the information of death of Phool Singh it was converted into Section 302. Thus it is clear that the FIR had been registered before Phool Singh died and it is proved by all the witnesses that Phool Singh had died on the way from the police station to the Hospital at Agra. Thus, the minor discrepancy in the statement of PW-3 Sobaran Singh who stated in his Cross-examination that Brijendra was arrested ahead of the tube-well of Sukh Singh, would not negate the weight of the other overwhelming evidence on record referred to above that the FIR was lodged promptly.
65. The learned Court below has highlighted that there are discrepencies in the statement of witnesses recorded before the Court and those recorded under Section 161 Cr.P.C. PW 1 Sukh Singh and PW 2 Lakhan have stated that Maharam met him on the way when he was taking the injured to the Police Station and he informed that Brijendra had been arrested. However, in his statement recorded under Section 161 Cr.P.C., PW 2 Lakhan had stated that they had arrested Brijendra with the help of police guard. In his statement recorded under Section 161 Cr.P.C., PW 3 Sobaran Singh had stated that Brijendra was arrested ahead of tube-well of Sukh Singh and there is contradiction in the satements of witnesses regarding arrest of Brijendra. The extract of statement of a person recorded by the police under Section 161 immediately after a gruesom incident of firing by seven persons in broad day-light in the chowk in the village would obviously contain some discrepancies but the discrepancy is not as to any material circumstances which creates doubt about the main incident, i.e. firing by the accused persons and resultant injuries to several persons resulting in death of one person.
66. What comes out of the statements of the witnesses is that after the incident when the police guard and other persons arrived, all the accused persons had ran away towards the South of Phuli's house. They were chased and when the Tractor trolley carrying the injured persons was on the way to the Police Station, Maharam met on the way and told that Brijendra had been caught and thereafter Brijendra was also forced to sit in the tractor trolley and was taken to the Police Station. There is no discrepency in the substance of the evidence as to any material fact.
67. The learned Trial Court has held that the deceased Phool Singh had stated that only Fateh Singh and Giriraj had fired upon him and he did not name any other person who resorted to fire. The dying declaration of Phool Singh (Exhibit A-15) mentions the names of Fateh Singh and Giriraj Singh as the persons who had shot at Phool Singh, and not at any other persons. However, the learned Court below lost sight of the fact that apart from Phool Singh, Ramshri, Balbiri, Lakhan, Sobaran, Chhiddi and Panna had also got injured due to gun-shots. PW-1 categorically stated that Phool Singh, Giriraj and Fateh Singh were carrying guns and Sher Singh, Virendra, Malkhan and Brijendra were carrying country made pistols. Some person from amongst these persons fired at Ramshri and Balbiri. All these seven persons fired at Phool Singh son of Joravar, Sobaran, Lakhan, Panna and Chhiddi. PW-2 also stated that Phool Singh, Giriraj and Fateh Singh were carrying guns and the rest four were carrying country made pistols. Giriraj fired a shot which hit PW 2 and another shot fired by Giriraj hit Sobaran Singh. Shera fired a shot which hit Panna. These statements have been totally ignored by the learned Court below, which make the finding in this regard perverse. Even otherwise, when in furtherance of an altercation which had taken place in the previous night, seven accused persons had gathered in the chowk in front of the house of the accused Phool Singh, carrying guns and country-made pistols, as an unlawful assembly with the common object to settle the score of the previous day's altercation and the members of the unlawful assembly fired gun-shots at the persons of their target group in prosecution of the common object of the assembly, it is not necessary that each of the persons of the unlawful assembly must be shown to have fired gun-shots and each member of the assembly will be liable for all the acts of the members of the unlawful assembly.
68. In Manjit Singh v. State of Punjab, (2019) 8 SCC 529, the Hon'ble Supreme Court was pleased to explain the law regarding the conditions requisite for prosecution of persons forming part of an unlawful assembly who have a common object to commit a wrong, and the relevant passage of the aforesaid judgment is being reproduced below: -
"14.1. The relevant part of Section 141 IPC could be usefully extracted 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--
* * * Third.--To commit any mischief or criminal trespass, or other offence; or * * * Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."
14.2. Section 149, rendering every member of unlawful assembly guilty of offence committed in prosecution of common object reads as under:
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
14.3. We may also take note of the principles enunciated and explained by this Court as regards the ingredients of an unlawful assembly and the vicarious/constructive liability of every member of such an assembly. In Sikandar Singh, this Court observed as under: (SCC pp. 483-85, paras 15 & 17-18) "15. The provision has essentially two ingredients viz. (i) the commission of an offence by any member of an unlawful assembly, and (ii) such offence must be committed in prosecution of the common object of the assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability for the offence committed by a member of such unlawful assembly under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object.
* * *
17. A "common object" does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful.
18. In Masalti v. State of U.P. a Constitution Bench of this Court had observed that: (AIR p. 211, para 17) ''17. ... Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by 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 the unlawful assembly.'"
14.4. In Subal Ghorai, this Court, after a survey of leading cases, summed up the principles as follows: (SCC pp. 632-33, paras 52-53) "52. The above judgments outline the scope of Section 149 IPC. We need to sum up the principles so as to examine the present case in their light. Section 141 IPC defines "unlawful assembly" to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 IPC postulates that whoever being aware of facts which render any assembly an unlawful one intentionally joins the same would be a member thereof. Section 143 IPC provides for punishment for being a member of unlawful assembly. Section 149 IPC provides for constructive liability of every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object. The most important ingredient of unlawful assembly is common object. Common object of the persons composing that assembly is to do any act or acts stated in clauses "First", "Second", "Third", "Fourth" and "Fifth" of that section. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of the person falls within the ingredients of Section 149 IPC, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of Section 149 IPC if they shared common object of the unlawful assembly.
53. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution."
14.5. We need not expand on the other cited decisions because the basic principles remain that the important ingredients of an unlawful assembly are the number of persons forming it i.e. five; and their common object. Common object of the persons composing that assembly could be formed on the spur of the moment and does not require prior deliberations. The course of conduct adopted by the members of such assembly; their behaviour before, during, and after the incident; and the arms carried by them are a few basic and relevant factors to determine the common object."
69. In the present case, the prosecution has established beyond any reasonable doubt that in furtherance of an altercation which had taken place in the previous night, seven accused persons had gathered in the chowk in front of the house of the accused Phool Singh on 21-06-1981 at about 03:00 p.m., carrying guns and country-made pistols, as an unlawful assembly with the common object to settle the score of the previous day's altercation. The members of the unlawful assembly used violence by firing gun-shots in prosecution of the common object of the assembly and thus they committed the offence of rioting, being armed with deadly weapons. They fired gun-shots directed towards persons with intention to kill them, which act of the accused persons caused injuries to several persons and resulted in killing one of them and thus they committed the offences of murder and attempt to murder. Once it is established that the unlawful assembly had a common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability for the offence committed by any member(s) of such unlawful assembly under the provision contained in Section 149, I.P.C., the liability of the other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. By the conduct of the accused persons in gathering in front of the house of the accused Phool Singh, carrying guns and country-made pistols and being a part of the unlawful assembly which resorted to firing, we have no doubt that each member of the assembly had a common object to help the accused Phool Singh and Giriraj Singh in settling the score by resorting to rioting, being armed with deadly weapons, and attempting to murder by firing at Sukh Singh and his associates and committing murder of Sukh Singh. Therefore, all the members of the unlawful assembly are equally liable for the aforesaid offences committed by the members of the aforesaid assembly.
Order
69. In view of the aforesaid discussion, the instant appeal stands allowed. The judgment and order dated 30-04-1984 passed by the learned Special Judge (Additional Sessions Judge), Agra in Sessions Trial No. 51 of 1982 under Sections 148, 307/149, 302/149 IPC, Police Station Fatehpur Sikri, District Agra, acquiting the accused-respondents is set aside and reversed. The accused-respondent no. 1, 4 and 6 are dead and the appeal has abated as against them. The remaining accused-respondent no. 2 Fateh Singh son of Fauran Singh, no. 3 Virendra Singh son of Bhogi Ram and no. 5 Malkhan Singh son of Sukh Ram are held guilty of committing offences punishable under Sections 148, 307/149, 302/149 IPC, Police Station Fatehpur Sikri, District Agra.
70. Keeping in view the fact that the incident occurred on 21-06-1981 and a period of more than 40 years has elapsed since the incident, as also the fact that presently the accused respondent no. 2 Fateh Singh is aged about 68 years, the accused respondent no. 3 Virendra Singh is aged about 64 years and the accused respondent no. 5 is aged about 85 years, they are awarded the following sentences: -
(i) For the offence under Section 148 I.P.C., the accused-respondent no. 2 Fateh Singh son of Fauran Singh, no. 3 Virendra Singh son of Bhogi Ram and no. 5 Malkhan Singh son of Sukh Ram are sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rupees FIve Thousand Only (Rs. 5,000/-) each and if they fail to pay the amount of fine, they shall have to undergo imprisonment for a period of one month in lieu thereof.
(ii) For the offence under Section 307/149 I.P.C., the accused-respondent no. 2 Fateh Singh son of Fauran Singh, no. 3 Virendra Singh son of Bhogi Ram and no. 5 Malkhan Singh son of Sukh Ram are sentenced to undergo simple imprisonment for a period of ten years and to pay a fine of Rupees Ten Thousand Only (Rs. 10,000/-) each and if they fail to pay the amount of fine, they shall have to undergo imprisonment for a period of six months in lieu thereof.
(iii) For the offence under Section 302/149 I.P.C., the accused-respondent no. 2 Fateh Singh son of Fauran Singh, no. 3 Virendra Singh son of Bhogi Ram and no. 5 Malkhan Singh son of Sukh Ram are sentenced to undergo simple imprisonment for life and to pay a fine of Rupees Twenty Thousand Only (Rs. 20,000/-) each and if they fail to pay the amount of fine, they shall have to undergo imprisonment for a period of six months in lieu thereof.
(iv) All the aforesaid sentences will run concurrently.
71. The accused-respondent no. 2-Fateh Singh son of Fauran Singh, accused-respondent no. 3-Virendra Singh son of Bhogi Ram and accused-respondent no. 5-Malkhan Singh son of Sukh Ram are directed to surrender before the learned Chief Judicial Magistrate, Agra within a period of 15 days from the date of this order to serve out the sentences awarded to them. In case they do not surrender within the stipulated time, learned Chief Judicial Magistrate, Agra shall commit them to custody as per law.
72. Let a certified copy of this judgment and order be sent to the Court concerned immediately for ensuring its compliance.
Order Date:- 15-03-2022
Jaswant
(Subhash Vidyarthi, J.) (Vivek Kumar Birla, J.)