Patna High Court
Kapil Singh And Ors. vs State Of Bihar on 27 July, 1989
Equivalent citations: 1990CRILJ1248
JUDGMENT S. Haider Shaukat Abidi, J.
1. Appellants-Mukesh Singh and Munni Paswan have been convicted under Section 302 of the Indian Penal Code (for short I.P.C.) and sentenced to undergo rigorous imprisonment for life. Appellants Kapil Singh, Makshudan Paswan and Parmeshwar Paswan have been convicted under Section 302/149, I.P.C. and sentenced to undergo rigorous imprisonment for life. Appellant-Mukesh Singh has further been convicted under Section 379, I.P.C. and sentenced to undergo rigorous imprisonment for three years. However, the sentence of appellant Mukesh Singh has been ordered to run concurrently.
2. The case of the prosecution was that on 3rd of August, 1984 at about 4.30 p.m. Uma Shanker Singh-informant (PW 2) while cutting grass in his field in Tikapiri Khandha of village Barara, police station Noonsarai, district Nalanda, heard alarm of Tahro Tahro (wait wait). Then the informant noticed his brother Hirdaya Prasad (the deceased in this case) and Brijendra Prasad alias Babu Ram (PW 5) coming on cycle. The informant also saw some persons coming from canal side and going towards road. He suspected that they might do some mischief against his brother so he rushed towards his brother. He identified those persons, who are the present appellants. They surrounded his brother. Kapil Singh ordered his son Mukesh Singh to take out cash from the pocket of Hardaya Prasad and fire at him as Hirdaya Prasad used to bring to them bad names. Thereupon Mukesh Singh fired from his pistol in the abdomen of Hirdaya Prasad. Munni Paswan fired from his pistol upon the order of Kapil Singh resulting into injury to Hirdaya Prasad, who fell down. Mukesh Singh took away the cash from his pocket. When the informant raised alarm for help, then accused Parmeshwar Paswan assaulted him and so also Brijendra Singh with lathis. On the alarm of the informant Rama Kant Singh alias Ghanti Singh (PW 3), Balmiki Singh (PW 4), Tarkeshwar Singh (PW 6) and others arrived on the spot who saved them from further assault. The accused thereafter ran away towards south. The motive for the offence is said to be the bad character of accused Mukesh Singh who used to commit dacoity and his father Kapil Singh used to welcome it, but the same was decried by the deceased Hirdaya Prasad. The injured Hirdaya Prasad was taken to the Sadar Hospital, Biharsharif, where he was attended by a Doctor. R. K. Choudhary, Sub-Inspector of Police, Bihar police station came at the Sadar Hospital and informant-Uma Shanker Singh (PW 2) gave to him his fard-beyan (Ext. 2) at about 8.30 p.m. The victim Hirdaya Prasad died in the hospital after an hour on reaching there. As the place of occurrence was within the jurisdiction of Noorsarai Police Station, the fard-beyan (Ext. 2) was sent to the said police station where the first information report (Ext. 5) was registered at 12 noon under Section 323, 324, 302 and 379 of the Indian Penal Code and under Section 27, Arms Act.
3. The Sub-Inspector of Police (Arbind Kumar Sinha) (PW 8), who was officer-in-charge of police station Noorsarai, investigated the case. He went to the spot where he found cow-dung, blood stained earth and also empty cartridges of 0.215 bore. He prepared the seizure memo (Ext. 1) of the articles in presence of the witnesses, namely, Bisheshwar Pd. Singh (PW 1) and one Bijoy Singh. During the course of investigation the investigating officer had come to know that the victim had died and so the case was converted into one under Section 302, I.P.C. During the investigation Arbind Kumar Sinha wrote a letter (Ext. 6) to the Headmaster of State Basic School, Gokulpur who also gave a reply. The postmortem examination was done by Dr. Ram Pratap Singh (PW 7) on 4-8-1984 at 10.20 a.m. and he submitted postmortem report (Ext. 3). After completion of the investigation chargesheet was submitted by PW 8.
4. The accused, in defence, denied the prosecution case and alleged that they have been falsely implicated. Although no witness in defence has been examined, but in the cross-examination the appellants made suggestions to the witnesses that Hirdaya Prasad had been killed by Naxalites and the appellants have been implicated at the instance of one Ramswarup Singh a friend of the informant.
5. The prosecution in support of its case produced nine witnesses. PW 1 Bisheshwar Pd. Singh has deposed about seizure list (Ext. 1). PW 2 Uma Shanker Singh is an injured and has deposed as an eye witness. His medical examination has been done by Dr. C. P. Sinha (not examined), who had submitted his report (Ext. 4) which was proved by Dr. Ram Pratap Singh who had conducted the post-mortem examination. PW 3 Ramakant Prasad alias Ganti Singh and PW 4 Balmiki Singh had reached the spot on alarm. PW 5 Bijendra Kumar is an injured (person?). Being a co-villager of the informant he says that he was also injured in the said occurrence but his injury was simple. PW 6 Tarkeshwar Singh an alarm witness had been tendered by the prosecution. PW 7 Dr. Ram Pratap Singh had conducted the post-mortem examination. He has also proved the writing of Dr. C. P. Singh who had medically examined PW 2. PW 8 Arbind Kumar Sinha is the investigating officer who has submitted chargesheet. PW 9 Ram Nandan Singh is a lawyer's clerk, who has proved the letter (Ext. 7) sent by the Headmaster of State Basic Middle School, Gokulpur in reply to the letter (Ext. 6) by the investigating officer.
6. Learned trial court after considering the entire material on the record has convicted and sentenced the appellants as said above. The death of Hirdaya Prasad has been well proved by the prosecution of the evidence of PWs 2, 3, 4 and 5 being witnesses of the occurrence as well as by PW 7 Doctor, who had conducted the post-mortem examination and this fact has not been denied or disputed by the appellants also.
7. Learned counsel for the appellants has urged that the order of conviction of the appellants is bad in law for various reasons. The witnesses have contradicted themselves further the witnesses could not be present on the spot; the injury report of PW 2 has been fabricated and that is why the doctor has not come and the injury report has also cutting marks; the investigating officer has not taken the grass from the field; the letter (Ext. 6) and the reply (Ext. 7) being the letter to the Headmaster by A.I.O. and then its reply are not admissible; that the witnesses have made improvements, specially PW 2 Uma Shanker Singh who has developed that Maksudan Ram had assaulted his brother by garasa, in court, but this has not been said so in the first information report or in the statement under Section 161, Cr.P.C. and lastly except PW 1 none of the three eye-witnesses have said about the theft from the pocket of the deceased.
8. In order to appreciate the contentions raised by the learned counsel for the appellants, the evidence is to be scrutinised to find out whether it inspires confidence, PW 2 Uma Shanker Singh is the informant. He has said that he was cutting grass in his field and that on hearing the sound "Tahro Tahro", he saw his brother Hirdaya Prasad and Brijendra Singh alias Babu Ram coming on cycle from south to north. The accused surrounded the victims. He ran towards his brother. Kapil Singh said that Hridaya Singh regularly used to defame them and so Kapil Singh ordered to assault him. Then all of the accused started assaulting the deceased. Accused Mukesh Singh fired from his pistol at his brother Hridaya Singh which hit him in his abdomen. Then accused Munni Paswan also fired from his pistol which hit the victim in his left shoulder whereupon the victim fell down. The informant raised alarm. After the victim fell down, accused Maksudan Paswan assaulted the victim by garasa. When the informant and Brijendra Singh ran to save him, then Parmeshwar Paswan assaulted both of them by lathi. Accused Mukesh Singh took out the money from the pocket of the victim. Then the accused ran away, towards south. Rama Kant Singh, Tarkeshwar Singh, Balmiki Singh and others came to the spot who have seen the occurrence. After the accused ran away, the victim was taken to the Biharsharif Sadar Hospital on a cot but he died in the hospital after an hour of reaching there. The victim was also treated for his injuries. The police came to the hospital after the death of Hirdaya Prasad and Shri R. K. Choudhary recorded the fard-beyan of the informant. This witness has been subjected to lengthy and severe cross-examination. Looking to that it appears that he has said that accused Mukesh Singh gave garasa blow to the victim which is not in the first information report. So, according to the learned counsel for the appellants it is an improvement. The other witness Bijendra Kumar (PW 5) has said that after the victim had fallen down, Maksudan Paswan had given a garasa blow which hit the elbow of the victim. Dr. Ram Pratap Singh (PW 7) has said in his post-mortem report that the victim had received one incised wound on the back of right elbow joint, which was 4" x 2" bone deep, and according to him this injury could be caused by sharp cutting weapon. This improvement is by the PW 2. But so far as PW 5 is concerned, he has said so in his evidence and PW 5 is not hit by the first information report. It is only PW 2 the informant whose statement is hit by the F.I.R. The statement of PW 5 coupled with the postmortem report showing the injury gives out that Maksudan had given garasa blow to the victim. The name of Maksudan has been mentioned in the first information report also by the said two witnesses. An improvement, no doubt as contended by the learned counsel for the appellants was discrepancy, but the same cannot be ignored on the ground that when the informant (PW 2) had given his fard-beyan, he was under a very great mental strain and shock. According to the informant he himself had received injury and that his brother's condition was critical, as it is apparent from the evidence that after an hour of reaching the hospital he died. In this situation in the first information report if a fact has been omitted but the same has been proved by other cogent reliable evidence of the eyewitnesses and also the medical evidence, then that short of omission to mention cannot be said to be discrepancy or any improvement going to the root of the case. Though it may be argued that these witnesses are saying so after seeing the post-mortem report so as to bring the post-mortem report in line they are deposing in court, but if the name of Maksudan Prasad had not been mentioned there from the beginning, then this improvement or discrepancy in the statement of PW 2 would have been very relevant and fatal for the prosecution. But in these circumstances enumerated above, it was but natural, if he missed to mention it in the first imformation report. First information report is not a substantive evidence. It is only evidence in court which is to be considered and if it is supported and corroborated by other cogent evidence, then it has to be relied on. In the case of Sohrab v. State of Madhya Pradesh, (AIR 1972 SC 2020 at page 2024): (1972 Cri LJ 1302) in para 7 their Lordships of the Supreme Court have observed:
"The position of the eye-witnesses in relation to the occurrence may have been such that all the details could not have been noticed, but that the salient features of the prosecution story was true is established by the evidence of the eye-witnesses. It appears to us that merely because there have been discrepancies and contradictions in the evidence of some or all of the witnesses does not mean that the entire evidence of the prosecution has to be discarded. It is only after exercising caution and care and sifting the evidence to separate the truth from untruth, exaggeration, embelishments and improvement, the Court comes to the conclusion that what can be accepted implicates the appellants it will convict them."
9. Though PW 2 the informant has not said in the first information report under the circumstances enumerated above about the assault of garasa by Maksudan Paswan and he had said so before the investigating officer as well as the Court, yet it is definitely an improvement for which there is the decision of their Lordships of the Supreme Court in the case of State of U.P. v. Lalla Singh, AIR 1978 SC 368, : (1978 Cri LJ 359) where it has been observed at page 372 (of AIR): (at p. 362 of Cri LJ) para 9 "But one defect in the evidence of PW 1 is that while in the First Information Report he did not state that he was an eye-witness to the occurrence of the murder of his mother Smt. Jhabbo in the evidence he claimed to have seen his mother being murdered at a distance of 20 or 25 paces. This part of the testimony is an improvement on the story given by PW 1 in the First Information Report and was rightly rejected by the trial Judge. The High Court was justified in not accepting this part of the story but that would not mean that the entire deposition of PW 1 should be rejected." In a later decision of Maqsoodan v. State of U. P., AIR 1983 SC 126 : (1986 Cri LJ 218) the Supreme Court has also observed at page 128 (of AIR): (at p. 220 of Cri LJ) (para 6) "The infirmities referred to by the High Court consisted in, according to the High Court, improvements made by the witnesses and variations in their earlier and later statements. In our opinion, on that ground alone, the testimony of PWs 1, 2, 3 and CW 1 cannot be held to be infirm. It is the duty of the Court to remove the grain from the chaff. These four witnesses are the injured witnesses who received the injuries during the course of the incident. Their presence at the time and place of the occurrence cannot be doubted; in fact it has not been challenged by the defence. As both the parties were inimical for a long time, it will be prudent to convict only those persons whose presence and participation in the occurrence have been proved by the prosecution beyond reasonable doubt. We agree with the finding of the High Court that the presence and participation of the appellants Maqusoodan Madan Mohan, Prayagnath and Nando, who are appellants in Criminal Appeal No. 175 of 1974 has been proved beyond reasonable doubt, despite the improvements and variations in their evidence."
10. Following the observations of their Lordships of the Supreme Court the testimony of PW 2 in respect of assault by Maqsoodan Paswan by gandasa is an improvement and is liable to be ignored. But other witnesses are consistent in their evidence about garasa blow being given by Maksudan to the victim. Their evidence cannot be tested on the basis of the first information report, rather it will have to be considered on its own. The first information report can only be used to discredit the testimony of the maker of the first information report but it cannot be used to contradict or discredit the other eye-witnesses if their testimonies are found to be worthy of reliance and so in these circumstances their evidence will have to be scrutinised. It will be relevant to refer to the observations made by their Lordships of the Supreme Court in the case of Dharma Ram Bhagare v. State of Maharashtra, AIR 1973 SC 476 at page 481 : (1973 Cri LJ 680 at p. 685) para 7:
"The F.I.R. can only discredit the testimony of Shamsuddin whose evidence has not been relied upon for supporting the appellant's conviction. The F.I.R. can by no means be utilised for contradicting or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate the appellant. The evidence of the eye-witnesses believed by the two courts appears to us to be free from any serious infirmity justifying its rejection. The case is obviously not one in which any reasonable doubt can be cast on the testimony of the eye-witnesses on the mere ground that Shamsuddin who apparently in his attempt to save himself from the fierce indiscriminate assault by the assailants was not able carefully to see and remember as to in what manner and by what weapon his parents and eldest brother had been killed. That they were actually killed during the occurrence in question is undisputed. Equally undisputed is the nature of injuries found on their bodies. We are, therefore, unable to agree with Shri Dholakia that the prosecution case should be thrown out on the mere ground that in the first information report an altogether different version was given by Shamsuddin."
Later in the case of State of U.P. v. Brahma Das, AIR 1986 SC 1769 at page 1771 : (1986 Cri LJ 1732 at pp. 1733-34) the Supreme Court observed in paragraph 5 :
"The High Court exercising appellate jurisdiction instead of scrutinizing the evidence of these four eye-witnesses individually, discarded their evidence wholesale, substantially on the ground that the prosecution version as narrated in the F.I.R. at the instance of one of them was in some respects discrepant from the prosecution version as unfolded by these witnesses in the Court. This approach was totally unwarranted and impermissible. The report made in the hand of one Yadunath Prasad which he had written as per the dictation of PW 1. PW 1, Aditya Ram was treated as F.I.R. At best the evidence of PW 1 could have been tested with reference to the version contained in the F.I.R. and appropriate inference could have been drawn vis-a-vis PW 1 on the basis of the alleged discrepancy. The evidence of the other eyewitnesses who had nothing to do with the narration of the F.I.R. could not have been collectively condemned, wholesale, on the basis of the alleged discrepancies in the context of the previous statement of PW 1 contained in the F.I.R. on the one hand, and their evidence at the trial, on the other hand."
11. Thus following the above observations also the evidence of PW 5 Bijendra Kumar who had been accompanying the victim on the cycle and who claims to have received injuries and also that of the alarm witnesses PWs 3 and 4 are to be scrutinised. PW 5 is categorical in saying that the garasa blow was given by the Maksudan to the victim. So also is the statement of the alarm witness PW 3. So also says PW 4 about Maksudan giving garasa blow on the right hand of the victim. The medical report also mentions about the injury. Thus even if the statement of PW 2 cannot be considered on account of improvement about the part of Maksudan, but yet there are other statements of witnesses about Maqsoodan's role which are supported by the medical evidence and so participation of Maksudan by giving garasa blow to the victim is well established.
12. As regards the contention about contradictions in the statement of these witnesses, learned counsel for the appellants has not been able to point out any contradiction. PW 5 has said that he was coming on cycle along with the victim. He is also a teacher and so possibility of their coming together cannot be ruled out. This witness says that he himself sustained minor injuries and he did not get the same examined by any doctor. So far PWs 3 and 4 are concerned, they are clear in saying that they went on alarm. PW 3 says that at the relevant time he was watching his maize field in the Tikha Barahi Khandha. Nothing has come out in the evidence to show that he has got no maize field, so possibility of his presence at the relevant time at the place of occurrence cannot be ruled out. Similarly, PW 4 has said that he was going to see his field in the south of the village which was at the Alang of Tikha Barahi Khandha. In his statement also there is nothing to show that he has got no field in that area. So far PWs 4 and 5 are concerned they have well established their presence on the spot. From their evidence on scrutiny there does not appear any infirmity or contradiction so as to discard their version about their presence. No enmity has been pointed out between these witnesses and the appellants, which would have promoted them to falsely implicate the appellants in the various offences, for which they have been convicted. So these testimonies are worthy of reliance against the appellants. But the learned counsel for the appellants has urged that these two witnesses PWs 3 and 4 are the chance witnesses and so also PW 5 and for that reason their testimony is to be looked with suspicion and also their presence at the scene of the occurrence is doubtful. As seen above, the two witnesses PWs 3 and 4 have given out about their presence, on account of their field which they were looking. PW 5 has also given out his reasons for being present at the spot. PWs 3, 4 and 5 are independent witnesses. Therefore, their presence at the spot does not appear to be improbable or doubtful. The Supreme Court in the case of Rana Partap v. State of Haryana, AIR 1983 SC 680 at page 682: (1983 Cri LJ 1272 at p. 1274) para 3 has observed:
"The learned Sessions Judge and the learned counsel described both the independent witnesses as 'change witnesses' implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression 'chance witnesses'. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passers by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere 'chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses', even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence."
Thus the evidence of PWs 3, 4 and 5 inspires confidence even if they are chance witnesses and so they are believed.
13-14. As regards PW 2 the informant, his statement also short of the improvement made by him about the role of Maksudan giving garasa blow to the victim, does not suffer from any infirmity or discrepancy on account of which the whole statement could be ignored or disbelieved. He has withstood the test of cross-examination and his testimony has not been shattered in any way. The observations of the Supreme Court in the case of Appabhai v. State of Gujarat, AIR 1988 SC 696-: (1988 Cri LJ 848), though in the context of a victim witness, who had survived the assault and had made some discrepancies may equally apply in respect of PW 2 also who was an eye-witness, who was brother of the deceased victim, who was himself injured and had been attending the victim also without any loss of time and who himself had lodged the report in a disturbed condition of mind. It was said in paragraph 13 at page 700 (of AIR) : (at pp. 851-852 of Cri LJ) :--
"It is true that there are many contradictions in the evidence of Devji. He has not attributed overt acts to individual accused in his statement before the police whereas he has attributed such overt acts in his evidence before the Court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately he has survived. He must, therefore, be considered as the best eye-witness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
Against this very witness PW 2 it was argued that he had tried to manipulate medical evidence about his injury, as PW 2 said to have been examined by Dr. C. P. Sinha whose injury report is Ext. 4. Dr. C. P. Sinha has not been examined and further the injury report bears cutting marks which have not been explained by any one. As to this contention Ext. 4 is the injury report in respect of PW 2. It has been said that PW 2 as well as PW 5 had been assaulted by appellant Parmeshwar Paswan by lathi. PW 5 has said that he received minor injury and so he was not examined by any doctor. But PW 2 said that he received injury and he was medically examined by Dr. C.P. Sinha who has given injury report (Ext. 4). Dr. C.P. Sinha has not been examined by the prosecution though he was posted at Kathihar, but for the reasons best known to him he did not come to give his evidence in spite of the fact that information was given to him in this regard. This fact has been mentioned by the learned Sessions Judge also in his judgment in para 9. The learned Sessions Judge looking to the cuttings in the injury report and non-examination of the Doctor found the charge of assault against Parmeshwar Paswan doubtful and gave benefit of doubt to him. On this score learned counsel for the appellants says that on account of non-examination of the Doctor and cutting marks an adverse inference may be drawn that this Ext. 4 had been fabricated by the prosecution, and as a result of which the merit of the case is affected and made doubtful. This contention of the learned counsel that on that score the entire prosecution has to be thrown away is not tenable. It could have been, at best, for giving benefit of doubt to Parmeshwar Paswan and it has rightly been given by the trial Court. On account of non-examination of the Doctor the injury report could not have been relied on. If the doctor would have been examined then he would have been the best person to say that as to whether cuttings had been made by him and in what circumstances he had done so. Moreover, this lathi injury to P.W. 5 or P.W. 2 by Parmeshwar Paswan would have only made participation of Parmeshwar Paswan possible or would have shown P.Ws. 2 and 5 as injured witnesses. On account of injuries, if proved, the presence of the injured witnesses on the spot is guaranteed, but it does not mean that as to whatever he is saying is wholly correct. His evidence has to be scrutinised and looked with care and caution and if found worthy of reliance then it can be taken help of, otherwise the result follows. For this reason it cannot be said that the prosecution case as a whole on account of non-examination of the doctor as well as non-examination of cutting marks should be treated as doubtful, or that it affects the merits of the case. It has got otherwise merits. So this argument also failed.
15. It was also argued that there is two days delay in sending the F.I.R. in court. The occurrence is dated 3-8-1984 at 4.30 p.m. The fard-beyan was recorded on 3-8-1984 at 8.30 p.m. and the fard-beyan was sent to the police-station Noorsarai the next day reaching there at about noon and it was on 6-8-1984 that the report was sent to the court. For this reason the learned counsel for the appellants says that the first information report had been withheld to suit the convenience of the prosecution and so the case of the prosecution has to be looked with suspicious eyes. From the dates it appears that, no doubt, first information report reached the court on 6-8-1984 but every delay in sending the first information report is not fatal. Though in some cases their Lordships of the Supreme Court have observed that on account of delay in despatch of the first information report prosecution case story gets doubtful, they being AIR 1975 SC 1962: (1975 Cri LJ 1734), Balaka Singh v. State of Punjab, AIR 1976 SC 2423 : (1976 Cri LJ 1883) Ishwar Singh v. State of U.P., but in the case of Pala Singh v. State of Punjab, AIR 1972 SC 2679 : (1973 Cri LJ 59) it has been observed that the first information report was actually recorded without delay and investigation started on the basis of the first information report and no infirmity was brought out which was improper and objectionable, then the delayed receipt of the report by the Magistrate concerned could not justify the conclusion that the investigation was tainted and prosecution insupportable. Similarly, it was observed in Sarwan Singh v. State of Punjab, AIR 1976 SC 2304 : (1976 Cri LJ 1757) that it is settled that mere delay in despatch of first information is not a circumstance which can throw out the prosecution case in its entirety. In the case of Pattipati Venkaiah v. State of Andhra Pradesh, AIR 1985 SC 1715 at page 1716 : (1985 Cri LJ 2012 at P 2013) it has been observed:--
"Furthermore, the mere fact that there was some delay in despatching a copy of the FIR to the Magistrate is not to sufficient to put the case of the prosecution out of court. On the other hand, we find that the FIR reached the Magistrate at about 5.15 p.m. i.e., only about 4-5 hours after it was lodged. It is also well known that a Magistrate is a very busy person and the mere fact that there is some delay before necessary entries are made would not be fatal to the prosecution case."
In the case of State of U.P. v. Anil Singh, AIR 1988 SC 1988 at page 2002: (1989 Cri LJ 88 at p 92) in paragraph 17 the Supreme Court observed:--
"........... According to counsel, the report must have been prepared after the inquest and non-mentioning of the time of despatch of F.I.R. to the Court would lend support to this submission. We carefully examined the material on record. We are unable to accept the submission of learned counsel. In the first place P.W. 1 was not specifically cross-examined on this matter. The court cannot, therefore, presume something adverse to the witness unless his attention is specifically drawn. Secondly, the records, contain unimpeachable evidence to the contrary. Apart from the records of the Police Station, the Panchanama (Ex. Ka 7) to which Ramesh Chandra Dube (D. W. 1) has admittedly appended his signature shows that the reporting time of crime was 9.15 p.m."
16. Thus in this case there is no dispute that fard-beyan had not been given on 3-8-1984 at 8.30 p.m. and the fard-beyan reached the police station Noorsarai next day 12 noon and the F.I.R. was sent on 6-8-1984 to the court. Further no cross-examination has been led to the investigating officer on this score. Besides that from the very look of the case it appears that the prosecution will gain nothing by this delayed reaching of the first information report to the court. As such no adverse presumption can be drawn against the prosecution on this score, though it is expected of the prosecution to try to despatch the first information report and also to see that it reaches the court as early as possible and it is also expected of the investigating officer to say in the statement as to when first information report was sent and when it reached to the court, to avoid any speculative and conjecturous arguments and presumptions.
17. It was also contended that on account of the acquittal of the appellants for the offence under Section 27 Arms Act, the plea of estoppel will apply and so the evidence concerning fire arm coming within the clutches of Section 25 Arms Act cannot be looked into for the other offences. For that it was said that the trial court's order of acquittal has become final and has not been challenged, so on account of that this evidence cannot be looked into under the plea of estoppel. As to this contention, it is made out from the evidence of P.Ws. 2 to 5 that accused Mukesh and Munni Yadav were armed with pistols by which they fired causing death of Hirday Pd. after sometime. These witnesses have not been cross-examined on this point and so the prosecution evidence will have to be accepted. The trial court relied upon the evidence and so the prosecution evidence will have to be accepted. The trial court relied upon the observations of a learned Judge in the case of Kapildeo Baitha v. State of Bihar 1986 BBCJ (HC) 73 at page 74 in paragraph 5 it does not appear that sanction was accorded for the prosecution of the appellant under Section 27 of the Arms which is an essential requirement before prosecution of a culprit under Section 27 of the Arms Act, since the allegation is that the appellant had no licence for possessing a pistol. Therefore, his conviction under Section 27 of the Arms cannot be sustained and has to be set aside." and acquitted the appellant of the offence under Section 27 of Arms Act.
18-19. Section 39 of the Arms Act provides that "no prosecution shall be instituted against any person in respect of any offence under Section 3 without the previous sanction of the District Magistrate. "Section 3(1) of the Arms Act says that "no person shall acquire, have in his possession, or carry any fire-arm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder." Section 27 of the Arms Act says that "who ever has in his possession any arms or ammunition with intent to use the same for any unlawful purpose or to enable any person to use the same for any unlawful purpose, shall, whether such unlawful purpose has been carried into effect or not, be punishable with imprisonment for a term which may extend to seven years and with fine." So only for the offence which comes under the provisions of Section 3, sanction is needed. But those who come under the clutches of Section 27, by possessing the fire-arm for any unlawful purpose, sanction, as required under Section 39 of the Act, is not needed. In the case of Barendra Kumar and Ors. v. State of Assam (1978 Cri LJ NOC 90) a Division Bench of Gauhati High Court has said that "Section 39 provides that no prosecution shall be instituted against any person under Section 3 without the prior sanction of the District Magistrate. The gravamen of the offence under Section 27 consists of possession of arms and ammunition with intent to use the same for unlawful purpose, whether such unlawful purpose is carried into effect or not, want of licence as contemplated in Section 3, is not an ingredient of the offence under this section. Even a person possessing arm or ammunition with valid licence may be prosecuted under Section 27 if it can be shown that he possessed such arm and ammunition for any unlawful purpose. In the instant case if the accused possessed the bombs without any licence they could be prosecuted under Section 25 as well, and if so prosecuted, sanction would have been necessary. As they were prosecuted only under Section 27, no sanction was necessary under Section 39. So far this reason sanction was not needed for the prosecution of the appellants.
20. As regards the plea of estoppel raised by the learned counsel for the appellants in this case, reference may be made to a decision of the Supreme Court in the case of Mohammad Safi v. Slate of West Bengal, AIR 1966 SC 69 : (1966 Cri LJ 75). In that case accused was prosecuted under Section 409, I.P.C. Twenty one witnesses were examined and charges were framed against the appellant. The prosecution witnesses were cross-examined and even the accused was examined under Section 342, Cr.P.C. At the time of argument the Public Prosecutor placed before the trial court an unreported judgment of the Calcutta High Court saying that Special Court could not, in view of the amendment under Section 5(1) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 by Act 27 of 1956 take cognizance upon a charge-sheet because it was neither entitled to follow the procedure for trial under Section 251-A nor could it take congnizance under Section 190(1)(c) unless in the latter case the provisions of Section 191 of the Code were complied with and further relied upon a decision in the case of A.P. Misra v. The State, AIR 1958 Cal 612 : (1958 Cri LJ 1386) wherein it was held that where a Magistrate could not legally take cognizance of an offence on the basis of a charge-sheet the entire proceedings before him were without jurisdiction. Then a formal complaint was filed by the Public Prosecutor before the learned Special Court who took cognizance of the offence and fresh proceedings started against the accused persons including the appellant and ultimately his conviction was recorded by the trial court which was maintained by the High Court. Their Lordships of the Supreme Court after referring to the provision of Section 403, Cr.P.C. (old code observed at page 71 (of AIR): (at pp. 77-78 of Cri LJ):
".......... These provisions are based upon the general principle of autrefois acquit recognised by the English Courts. The principle on which the right to plead autrefois acquit depends is that a man may not be put twice in jeopardy for the same offence. This principle has now been incorporated in Article 20 of the Constitution. The defence of autrefois acquit, however, has no application where the accused person was not liable lawfully to be convicted at the first trial because the court lacked jurisdiction. This is what has been pointed out by the court of Criminal Appeal in Thomas Ewart v. R. (1957) 40 Cr. App. R 182 at p 193. From the language used in Section 403 (i) of the Code it is clear that what can be successfully pleaded as a bar to a subsequent trial for the same offence or for an offence based on the same fact is that the accused had been (a) tried by a Court (b) of competent jurisdiction, and (c) acquitted of the offence alleged to have been committed by him or an offence with which he might have been charged under Section 236 or for which he might have been convicted under Section 237 of the Code." ..........
....... The competence of a court, however, depends not merely on the circumstance that under some law it is entitled to try a case falling in the particular category in which the offence alleged against the accused falls. In addition to this taking cognizance of the offence is also material in this regard . Under the Code of Criminal Procedure a Court can take cognizance of an offence only if the conditions requisite for initiation of proceedings before it as set out in part B of Chapter XV are fulfilled. If they are not fulfilled the court does not obtain jurisdiction to try the offence. In the case before us Mr. Gangually took the view, though erroneously, that as one of the conditions requisite for taking cognizance of the offence was not satisfied he had no jurisdiction over the matter......
..... The Privy Council accepted the view of the Federal Court in Basdeo Agarwalla v. King Emperor, 1945 FCR 93 : AIR 1945 FC 16 : (1945-46 Cri LJ 510), that the prosecution launched without valid sanction is invalid and held that under the common law a plea of autrefois acquit or convict can only be raised where the first trial was before a Court competent to pass a valid order of acquittal or conviction. Unless the earlier trial was lawful one which might have resulted in a conviction, the accused was never in jeopardy. The principle upon which the decision of the Privy Council is based must apply equally to a case like the present in which the Court which made the order of acquittal was itself of the opinion that it had no jurisdiction to proceed with the case and, therefore, the accused was not in jeopardy."
In the case of Baij Nath Prasad Tripathi v. State of Bhopal, AIR 1957 SC 494: (1957 Cri LJ 597) it was contended on behalf of the appellant that by reason of Clause (2) of Article 20 of the Constitution and Section 403, Cr.P.C. the petitioner could not be tried for the offence in question. Their Lordships of the Supreme Court observed in paragraph 5 as follows:--
"Now, it is necessary states that the point taken by learned counsel for the petitioners is really concluded by three decisions (a) one of the Privy Council, (b) another of the Federal Court and (c) the third of this court itself. The Privy Council decision is in Yysofalli Mulla v. The King, AIR 1949 PC 264: (1949-50 Cri LJ 889 (A) the Federal Court decision in Basdeo Agarwalla v. King Emperor, 1945 FCR 93 : AIR 1945 FC 16 : (1945-46 Cri LJ 510) (B) and the decision of this court (not yet reported) was given in Budha Mal v. State of Delhi, Criminal Appeal No. 17 of 1952, D/- 8-1-1952 (C). The Privy Council decision is directly in point, and it was there held that the whole basis of Section 403 (1) was that the first trial should have been before a court competent to hear and determine the case and to record a verdict of conviction or acquittal; if the court was not so competent, as for example where the required sanction for the prosecution was not obtained, it was irrelevant that it was competent to try other cases of the same class or indeed the case against the particular accused in different circumstances, for example if a sanction had been obtained. So is the decision of this court where the following observations were made with regard to the point in question: "Section 403, Criminal Procedure Code, applies to cases where the acquittal order has been made by a Court of competent jurisdiction but it does not bar a retrial of the accused in cases where such an order has been made by a Court, which had no jurisdiction to take cognizance of the case. It is quite apparent on this record that in the absence of a valid sanction the trial of the appellant in the first instance was by a Magistrate who had no jurisdiction to try him."
The issue of estoppel and double jeopardy have been considered in the case of Masud Khan v. State of Uttar Pradesh, AIR 1974 SC 28 at page 30 paragraph 4:--
"The question of issue estoppel has been considered by this court in Pritam Singh v. State of Punjab, AIR 1956 SC 415 : (1956 Cri LJ 805), Manipur Administration v. Thokchom, Bira Singh, (1964) 7 SCR 123 : AIR 1965 SC 87 : (1965 (1) Cri LJ 120) and Piara Singh v. State of Punjab, (1969) 1 SCC 379 : AIR 1969 SC 961 : (1969 Cri LJ 1435). Issue estoppel arises only if the earlier as well as the subsequent proceedings were criminal prosecutions. In the present case while the earlier one was a criminal prosecution the present is merely an action taken under the Foreigners (Internment) Order for the purpose of deporting the petitioner out of India. It is not a criminal prosecution. The principle of issue estoppel is simply this: that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and coviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law. Pritam Singh's case, AIR 1956 SC 415 : (1956 Cri LJ 805) (supra) was based on the decision of the Privy Council in Sambasivam v. Public" Prosecutor, Federation of Malaya, 1950 AC 458. In that case Lord Macdermott speaking for the Board said:
"The effect of a verdict of acuqittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated (sic) by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. It should be kept clearly in mind that the proceeding referred to herein is a criminal prosecution. The plea of issue estoppel is not the same as the plea of double jeopardy or autrefois acquit. In The King v. Wilkes (1948) 77 Cri LR 511 Dixon, J. referring to the question of issue estoppel said:
"...... It appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. There must be a proper proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue estoppel should not apply ..... Issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well-known doctrines which control the relitigation of issue which are settled by prior litigation."
The emphasis here again would be seen to be on the determination of criminal liability. In Marz v. The Queen 96 CLR 62 the High Court of Australia said :
"The Crown is as much precluded by an estoppel by judgment in criminal proceedings as is a subject in civil proceeding.... The law which gives effect to issue estoppel is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel, still less with the process of reasoning by which the finding was reached in fact .....It is enough that an issue or issues have been distinctly raised or found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against the other.
Here again it is to be remembered that principle applied to two criminal proceedings and the proceeding with which we are now concerned is not a criminal proceeding. We therefore hold that there is no substance in this contention. In another decision of Bhoor Singh v. State of Punjab, AIR 1974 SC 1256: (1974 Cri LJ 929), it was observed by the Supreme Court at page 1261 (of AIR): (at P. 934 of Cri LJ) in paragraphs 24 and 25 : "Nor is the doctrine of issue estoppel enunciated by this Court in Pritam Singh's case, AIR 1956 SC 415 : 1956 Cri LJ 805 (supra) applicable to the facts of this case. Firstly, the trial in which the appellants were tried for the murders was registered as Sessions' Trial No. 55 of 1971, while the one under Section 27, Arms Act was numbered as Sessions Case No. 56 of 1971, The serial order in which the trials were numbered would indicate that the main case was decided first, and that under the Arms Act subsequently. Secondly, at both the trials, in his examination under Section 342, Cr. P.C. Ajit Singh, appellant had admitted that the gun in question was recovered from his possession at the Rajendra Hospital, Patiala. Indeed, in the case under the Arms Act, the trial Judge did not record any finding that Ajit Singh was not in possession of the gun. He acquitted him, perhaps erroneously, on the sole ground that the intention to use the gun or allow its use for any unlawful purpose had not been proved, which is an essential ingredient of an offence under Section 27, Arms Act.
We would, therefore, negative this legal objections also."
In the case of Ravinder Singh v. State of Haryana AIR 1975 SC 856: (1975 Cri LJ 765) it was observed by the Supreme Court at page 862 (of AIR) : (at p. 771 of Cri LJ) in paragraph 19:--
"In order to invoke the rule of issue-estoppel not only the parties in the two trials must be the same but also the fact-in-issue proved or not in the earlier trial must be identical with what is sought to be reagitated in the subsequent trial."
In the case of Pritam Singh v. The State of Punjab, AIR 1956 SC 415 : (1956 Cri LJ 805) in regard to the recovery of revolver the learned Additional Sessions Judge had not put any reliance on the acquittal of the accused by the learned Additional Sessions Judge, Faridkot, of the offence under the Arms Act, observing that any expression of opinion contained in the judgment was not only not binding on him but was irrelevant under the Indian Evidence Act. The learned Sessions Judge held that the recovery from Pritam Singh Lohara was proved and considered that connecting Pritam Singh Lohara with the incident. The High Court on the other hand held that "having regard, therefore, to the circumstances attendant upon the recovery of the revolver Ex. P. 14 and the acquittal of the accused of the offence under Section 19(f) Arms Act, the High Court was of the opinion that this evidence could not be taken into consideration agaisnt him. "The High Court further held that the evidence against Pritam Singh Lohara consisting of that of the eye-witnesses who stated that they saw him getting into the bus and then committing the murders and running away from the spot, of identification of foot-prints and of absconding, which was quite satisfactory was sufficient to convict him and it accordingly came to the conclusion that he also had been rightly convicted, and so the High Court dismissed the appeal of Pritam Singh. The Supreme Court considered the case of Pritam Singh Lohara and said that the acquittal of Pritam Singh Lohara of that charge was tantamount to a finding that the prosecution had failed to establish the possession of the revolver Ex. P. 56 by him. The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence with which he had been charged. The Supreme Court said ' that the observation of the High Court was right in rejecting the evidence regarding recovery of Ex. P. 56 against Pritam Singh Lohara and the evidence against him would have to be considered regardless of the alleged recovery of Ex. P. 56 at his instance. The Supreme Court after considering the detailed argument contended by the parties observed at page 425 (of AIR): (at p. 815 of Cri LJ) that having devoted our anxious thoughts to all the arguments addressed to us by the learned counsel for the appellants, we have come to the conclusion that the High Court was quite correct in the summary of the evidence against each of them and in holding that the prosecution had succeeded in establishing the guilt of the accused in regard to the offence with which they had been charged."
21. In the latest decision in the case of State of Bihar v. Murad Ali Khan, AIR 1989 SC 1 : (1989 Cri LJ 1005) the Supreme Court considered this matter in greater detail in para 8 at pages 7-9 (of AIR): (at pp. 1012-1013 of Cri LJ) which will be relevant to quote in extenso:--
"In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. In Leo Roy Frey v. The Superintendent, District Jail Amritsar, 1958 SCR 822 : (AIR 1958 SC 119 : (1958 Cri LJ 260) the question arose whether a crime and the offence of conspiracy to commit it are different offences. This Court said (at p. 121 of AIR): (at p. 262 of Cri LJ): "The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences."
In State of Madhya Pradesh v. Veereshwar Rao Agnihotry, 1957 SCR 868 : AIR 1957 SC 592 : (1957 Cri LJ 892) the accused was tried by the special Judge for offences under Section 409, I.P.C. and Section 5(2) of the Prevention of Corruption Act, 1947. While convicting him under Section 409, I.P.C. held that the accused could not be tried under Section 5(2) of the Special Judge the Prevention of Corruption Act, 1947, as there was a breach of the requirement of law that the investigation be by a police officer not below a particular rank. In appeal, the High Court set aside even the conviction under Section 409, I.P.C. applying the doctrine of autrefois acquit holding that the Special Judge's finding on the charge under Section 5(2) amounted to an acquittal and that punishment on a charge under Section 409, would be impermissible. This Court following the pronouncement in Oprakash Gupta v. State of U.P. 1957 SCR 423 : (AIR 1957 SC 458 : (1957 Cri LJ 575) held that the two offences were distinct and separate offences.
In the State of Bombay v. S.L. Apte (1961) 3 SCR 107 : AIR 1961 SC 578 : (1961 (1) Cri LJ 725), the question that felt for consideration was that in view of earlier conviction and sentence under Section 409, I.P.C. a subsequent prosecution for an offence under Section 105 of Indurance Act, 1935, was barred by Section 26 of the General Clauses Act and Article 20 (2) of the Constitution. This Court observed (at pp. 581 and 583 of AIR): (at pp. 728 and 730 of Cri LJ):
"To operate as a bar the second prosecution and the consequential punishment thereunder must be for the same offence. The crucial requirement therefore for attracting the Article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out......."
..... Though Section 26 in its opening words refer to the act or omission constituting an offence under two or more enactments', the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to 'shall not be liable to be punished twice for the same offence. If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked....."
The same set of facts in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the I.P.C. and at the same time constitute an offence under any other law. The observations of this Court made in the context of Section 2(3) of Contempt of Courts Act might usefully be recalled. In Bathina Ramkrishna Reddy v. State of Madras, 1952 SCR 425 : AIR 1952 SC 149 : (1952 Cri LJ 832) this Court examined the contention that the publication of an article attributing corruption to a judicial officer was not cognizable in contempt jurisdiction by virtue of Section 2(3) of the Contempts of Courts Act, 1953, which provided that (at p. 151 of AIR): (at p. 833 of Cri LJ):
"... No High Court shall take congnizance of a contempt alleged to have been committed in respect of a Court Subordinate to it where such contempt is an offence punishable under the Indian Penal Code."
The contention before this Court was that the allegations made in the article constituted an offence under Section 499 of I.P.C. and, that therefore, cognizance of such an offence under the Contempts of Court Act was barred. Repelling the contention, Mukharji, J. said (at p. 151 of AIR): (at p. 833 of Cri LJ):
"In our opinion, the sub-section referred to above excludes the jurisdiction of High Court only in cases where the acts alleged to constitute contempt of a subordinate court are punishable as contempt under specific provisions of the Indian Penal Code, but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code. This would be clear from the language of the sub-section which uses the words "where such contempt is an offence" and does not say where the act alleged to constitute such contempt is an offence ..."
"It is, however, unnecessary to explore the possibilities of this contention as indeed there has been admittedly no prior conviction and sentence for an offence under Section 429, I.P.C. even assuming that the two offences are substantially" the same offence. "Suffice it to notice, prima facie, that the ingredients of an offence under Section 9(1) read with Section 50(1) of the Act require for its establishment certain ingredients which are not part of the offence under Section 429 and vice versa."
So no question of double jeopardy arises. So neither the principle of res judicata nor issue estoppel is applicable nor is there the question of double jeopardy where on the ground of want of sanction the order of acquittal has been passed. In the same proceeding the other cogent and reliable evidence about the participation of the accused cannot be brushed aside. It will have to be considered for the other offences charged.
22. The offence under Arms Act is different from that under the different sections of the Indian Penal Code, though the same set of facts may be common for the different provisions of law, but the ingredients for one offence are or may be different from the ingredients for establishing the offence under the different provision of law. But the acquittal under one provision of law will not form the proceeding under the same series of prosecution under the different provision of law.
23. In this case Mukesh Singh and Munni Paswan have been convicted under Section 302 for firing pistol shots upon the deceased, while Kapil Singh, Maksudan Paswan and Parmeshwar Paswan have been convicted under Section 302/149, I.P.C. In a recent decision in the case of Lalji v. State of U.P., AIR 1989 SC 754: (1989 Cri LJ 850), their Lordships of the Supreme Court have dealt with the provisions contained under Section 141 and 149, It will be relevant to quote in extenso the observations of their Lordships made in paragraphs Nos. 9 and 10 at pages 756 and 757 (of AIR) : (at p. 852 of Cri LJ):
"Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct: offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. Be cannot put forward the defence that he did not. with his own hands commit the offence commit led in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must, be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons performing an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.
Thus once the court hold that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it."
Thus following the aforesaid observations it will have to be held that all the appellants were members of the unlawful assembly and so appellants Nos. 1, 4 and 5 are liable to be convicted under Section 302/149, I.P.C. and appellants Mukesh Singh and Munni Paswan are liable under Section 302 whose main role of firing is there.
24. In the result, the order of conviction/ sentence passed by the trial court is upheld and the appeal is dismissed.
S. Shamsul Hasan, J.
25. I agree.