Hon'ble Shashi Kant,J.
(Delivered by Hon'ble Naheed Ara Moonis,J.) The instant appeal has been filed on behalf of the appellants, namely, Janmed, Abhai Ram, Ram Singh, Mahesh, Satish and Ram Gopal against the judgment and order dated 5.2.1983 passed by the learned VI Additional Sessions Judge, Mainpuri in Sessions Trial No.75 1983 arising out of Case Crime No.60 of 1982 whereby appellants, namely, Janmed, Abhai Ram and Ram Gopal were convicted and sentenced to life imprisonment for the offence under Section 302/149 IPC, one year rigorous imprisonment under Section 148 IPC and one year rigorous imprisonment under Section 452 IPC, accused appellants, namely, Satish, Ram Gopal and Mahesh were convicted for life imprisonment for the offence under Section 302/149 IPC, one year rigorous imprisonment under Section 452 IPC and six months rigorous imprisonment for the offence under Section 147 IPC. All the sentences were directed to run concurrently.
The appellant no.1 had expired during the pendency of appeal, hence the appeal in respect of him abated vide order dated 21.4.2018.
The offence with which the accused appellants were charged related to an occurrence at about 11 P.M. on 19/20.8.1982 in respect of murder of Ram Das and Km. Phool Pyari, the brother and daughter of the complainant Kishan Lal who were residing in village Tulsipur, P.S. Barnahal, District Mainpuri. The FIR in respect of the said incident was lodged at 6.30 A.M. on 20.8.1982 stating that in the night between 19/20.8.1982, the complainant and his wife and children were sleeping on his chabootra (plinth) while the complainant's brother Ram Das and his wife were sleeping on their chabootra (plinth). A lantern was burning at the door of his brother Ram Das. At about 11 P.M. Janmed (now deceased) resident of Habilia armed with gun, Abhai Ram and Ram Singh having countrymade pistol and Mahesh, Satish and Ram Gopal who were armed with lathis arrived at the house of the complainant. The accused Janmed hurled abusive language at Ram Das and shouted that he had earlier escaped several times, but today he will not be spared. On hearing this shout, his brother Ram Das stood up from the cot, but the accused persons started assaulting him with lathi, gun and countrymade pistol who fell on the ground and died instantaneously at the spot. The complainant and his wife on seeing this incident ran and climbed over the roof raising alarm. The daughter Km. Phool Pyari aged about 9 years was left while sleeping at the chabootra (plinth). The accused persons took Km. Phool Pyari and entered into the house of the complainant in search of him and came out with Phool Pyari at the door and Accused Janmed had made a fire upon Phool Pyari with his gun, as she had recognized all of them. Phool Pyari also breathed her last shortly thereafter.
On the shriek and shrill of the complainant and family members, namely, Ram Gopal, Mahendra Singh, Abhilakh Singh (P.W-2), Dabbal (P.W-3), Jagannath Singh, besides many other persons of his village arrived there who were having torches and lathis and recognized the accused persons in the light of torches. It was further divulged in the FIR that the accused persons were bearing enmity with the complainant and his brother Ram Das on account of litigation and election of Gram Pradhan. Hence they had committed the murder of his brother Ram Das and his daughter Phool Pyari. After committing murder, the accused persons escaped towards their village. On account of fear and terror the complainant could not muster courage to inform the police in the night. The report was written by one, Jagannath Singh and on the basis whereof, the FIR was lodged at police station Barnahal on 20.8.1982 at 6.30 A.M. which was registered as Case Crime No.60 of 1982, under Sections 147,148,149,452,302 IPC. The chik report was prepared as Ext. Ka-22.
After lodging the FIR, the investigation was entrusted to SI Prahlad Sigh (P.W-6) who swing into action. He had recorded the statement of the Clerk who had prepared the chik report and had recorded the statement of the complainant Kishan Lal. Thereafter he alongwith other police personnel proceeded to the place of occurrence.
Sub Inspector G.L. Saraswat had prepared the inquest report of the two dead bodies in the supervision of IO Prahlad Singh (P.W-6) which were marked as Ext. Ka-4 & 5. Challan lash, photo lash, reports to CMO, letters to RI and Sample seals were also prepared by Sub Inspector G.L. Saraswat which were marked as Ext. Ka-6 to Ext. Ka-15.
Both the dead bodies were sealed and sent through Constable Jamaluddin and Charan Singh for autopsy. The investigating officer had collected the blood stained and simple earth from the place of occurrence where the dead body of Ram Das was found and the recovery memo was prepared as Ext. Ka-16. The blood stained and plain earth were marked as Ext Ka-1 & 2. The blood was found beside the dead body of Phool Pyari blood stained and plain earth were marked as Ext. Ka-3 & 4 and the same was sealed and the recovery memo of which was prepared as Ext. Ka-17. Thereafter the investigating officer examined the place of occurrence and took the used cartridges which were left by the accused persons marked as Ext. Ka-5. The recovery memo was marked as Ext. Ka-18. Memo of lantern was prepared and entrusted to Munshilal after preparing supurdaginama which was marked as Ext. Ka-19.
The investigating officer recorded the statement of the witnesses, namely, Ram Gopal, Mahendra Singh and Abhilakh Singh (P.W-2) on the same day at the spot. The site plan was prepared by him and the same was marked as Ext. Ka-20. The investigating officer again reached at the spot on the next day i.e. on 21.8.1982 and recorded the statement of deceased's wife Smt. Dhoopshree who was examined as P.W-4. The statements of Jagannath, the eye witness and various other persons were recorded on 23.8.1982. Thereafter he had made hectic efforts to search all the accused persons.
The accused persons, namely, Janmed, Satish, Mahesh and Ram Singh surrendered on 10.9.1982 and accused Abhai Ram and Ram Gopal surrendered on 21.10.1982.
The postmortem examination of the dead body of Ram Das was conducted on 21.8.1982 at 3 P.M. by Dr. Surendra Singh, P.W-5. The following ante-mortem injuries were found on the body of the deceased:
1. Contusion 10 cm x 3 cm on front of right side abdomen at 10 O' clock position from umbilicus 6 cm lateral and away from umbilicus;
2. Lacerated wound 1 cm x ½ cm x muscle deep on left side of temporal region on back of left ear about 3 cm away from left ear. Margin lacerated and irregular;
3. Firearm wound of entrance 1 ½ cm x 1 cm x cavity deep on right side of abdomen 5 cm above the pubic bone 6 cm lateral to mid line of abdomen margins are inverted irregular no blackening scorching and tattooing present. A big bullet recovered from cavity;
4. Firearm wound of entrance 1 ½ cm x 1 cm cavity deep on right side of chest at 9 O' Clock position 7 cm medial to left nipple. No blacking scorching or tattooing present. Margins inverted irregular;
5. Firearm wound of exit 2 ½ cm x 2 cm through and through to injury no.4 on right side back 12 cm above the right hip bone 11 cm away from mid line. Margin irregular inverted
6. Firearm wound of entrance 3.5 cm x 2 cm x muscle deep in left side hip on lower inner part of hip. No blacking scorching tattooing present. Margin inverted irregular.
A sealed bundle of clothes (1) one dhoti underwear with blood stains and a sealed envelop containing (1), 35 small pellets (2)on card board (3) one Tikli piece (4) One big bullet were sent to S.S.P. Mainpuri.
The Doctor had found pleura lacerated, right and left lungs lacerated, pericardium lacerated, heart lacerated empty thoracic cavity containing about (3) oz. Clotted blood stomach containing semi digested food. Small intestines lacerated half, big intestine empty lacerated, gall bladder lacerated and kidney lacerated.
The Doctor reported that the death took place due to shock and haemorrhage due to ante-mortem injuries.
Dr. Surendra Singh, P.W-6 conducted the postmortem examination on the dead body of the deceased Phool Pyari on 21.8.1982 at 4 P.M. and found the following ante-mortem injuries:
"1-Multiple firearm wounds of entrance in area of 10 cm x 2 cm x bone deep on right inguinal ligament, one of the entrance is big 2 cm x 1 ½ cm x bone deep and others are 3cm x 3 cm x bone deep in average. Margins are inverted irregular. Blackening is present under the wound. Femoral blood vessels are lacerated and right femur bone is fractured. In the wound 15 small pellets 2 tikli card board recovered.
A sealed bundle of clothes (1) frock, (2) underwear blood stained. (3) A sealed envelop containing 15 small metallic pellet. (4) One card board. (5) One tikli sent to S.S.P. Mainpuri. The Doctor had found heart empty. The Doctor reported that the death took place due to shock and haemorrhage due to ante-mortem injuries.
The investigating officer, P.W-6 after completion of the investigation submitted the charge sheet against all the accused persons on 5.12.1982 marked as Ext. Ka-21.
On submission of charge sheet, concerned Magistrate had taken cognizance of offence against all the accused persons and committed the case to the court of sessions.
The learned Sessions Judge framed the charges against all the accused persons on 2.4.1983. The charges were read over and explained in Hindi to all the accused which they pleaded not guilty and claimed to be tried.
In order to substantiate the charges against the appellants, the prosecution has examined witnesses of facts, namely, Kishan Lal, the complainant as P.W-1, who is the brother of the deceased, Abhilakh Singh who is the neighbour of the complainant as P.W-2, Dabbal who is also the neighbour of the complainant as P.W-3 and Smt. Dhoopshree, the wife of the deceased as P.W-4.
The prosecution has examined formal witnesses, Dr. Surendra Singh who had conducted the postmortem of both the deceased as P.W-5, Prahlad Singh, SI who was posted as SO and conducted the investigation was examined as P.W-6.
P.W-1 Kishan Lal, who is the first informant of the case while reiterating the version as alleged in the FIR has elaborated in his deposition that Ram Das was his brother and Km. Phool Pyari was his daughter. They have been murdered one and half year ago. It was about 11 P.M. his brother Ram Das was lying on his plinth and his wife was also sleeping there. At the door of Ram Das lantern was also burning at the plinth. The complainant was also sleeping at his door on the plinth which is in front of the chabootra (plinth) of Ram Das. His wife and daughter Km. Phool Pyari were sleeping there. He woke up and heard noise. He had seen that Janmed having 12 bore gun, Ram Singh and Abhai Ram having countrymade pistol and Mahesh, Satish and Ram Gopal having lathis came and asked Ram Das that he was earlier escaped, but today he will not be spared. Hearing this, his brother Ram Das stood up from his cot. The accused started assaulting him with lathi and fired from their respective gun and countrymade pistol, due to which, Ram Das received injury and died instantaneously. The complainant after running climbed over his roof. His daughter Km. Phool Pyari who was sleeping at the door was caught hold by the accused persons was taken inside and asked from her about her father as he was not found by the with the miscreants and his daughter had recognized all the accused persons she was taken out and fired at her. She died on the spot. On hearing hue and cry, Jagannath, Abhilakh Singh, Mahendra Singh, Ram Gopal, Dabbal Khan, Ram Suresh beside 15-16 other villagers came over there who were having torches and lathis. The complainant had also recognized the accused persons in the light of torch and lantern.
P.W-1 had further stated that the accused persons were bearing enmity with his brother Ram Das as his brother had won the election of Pradhan. A case was also filed in 1960. He had disclosed about the acquaintance with the accused Janmed and other accused persons. Further he had stated that on account of fear and terror, he could not go to lodge the FIR in the night. Hence at about 6.30 A.M. in the morning he went to lodge the report. The report was written by his nephew Jagannath Singh. The complainant proved the report which was marked as Ext. Ka-1. He had lodged the report at the police station Barnahal where the chik FIR was registered. He had further stated that the accused Janmed had fired at his daughter Km. Phool Pyari on the spot. He had also identified all the accused persons who had killed his brother Ram Das and his daughter Km. Phool Pyari who were present before the court.
P.W-1 had specifically stated that the distance of his house from the house of deceased Ram Das was about 5-6 paces away. The lantern was hanging at the door of the deceased Ram Das. He had recognized the accused persons in the light of lantern and also when they had taken his daughter Km. Phool Pyari out of the house. After the accused persons went away he had asked his nephew that he will lodge the report in the morning. He had not made any consultation with the villagers. He remained there at his door till the morning. The distance from his village to the road of police station was about 4 miles. He had met with Deewan (police) and handed over the written report. He returned to his house from the police station at about 7-8 A.M. He had denied the suggestion that he has falsely implicated the accused persons due to old enmity.
Abhilakh Singh, who is the neighbour of the complainant and the deceased Ram Das was examined as P.W-2. He had deposed that he knew the deceased Ram Das and Km. Phool Pyari, who are the brother and the daughter of the complainant. They have been murdered 13 months ago. It was at 11 P.M. in the night he was sleeping in his house. On hearing the noise of firing he woke up and went at the door of Ram Das where Ram Gopal, Mahendra Singh and Jagannath were also present there. He had seen that Janmed, Ram Singh, Mahesh Chandra, Satish Chandra, Abhai Ram and Ram Gopal were assaulting Ram Das. The lantern was burning and he had also a torch in his hand. He had seen all the accused persons in the light of torch and lantern. He had stated that Janmed was having gun, Abhai Ram and Ram Singh were having countrymade pistol while Satish, Ram Gopal and Mahesh Chandra were having lathis. They had assaulted Ram Das, on account of which, he succumbed to the injuries. Thereafter the accused persons entered into the house of Kishan Lal (P.W-1). They had caught Km. Phool Pyari, daughter of P.W-1 and fired by Janmed. Thereafter all the accused persons went towards south. He had recognized all the six persons present before the court. He had further stated that he knew them since before. He had stated that the daughter of Pahalwan resident of Gopiyapur was married with Janmed. Pahalwan and Hakim Singh were cousin. In his lengthy cross-examination he had disclosed about the manner of incident which could not elicit to shake the prosecution case.
Dabbal Khan who is also the neighbour of the complainant was examined as P.W-3. His statement is fully corroborated by the statement of P.W-2 Abhilakh Singh who had specifically stated that he reached at the spot after hearing the noise of fire and he had recognized all the accused persons. He had witnessed the incident in the light of lantern and torch.
Later on P.W-3 Dabbal Khan was declared hostile as he deviated from his previous statement in which he had stated that he had identified the accused persons. In his cross-examination P.W-3 Dabbal Khan had stated that he had deposed before the police that six months ago there was some altercation between Hakim Singh, Ram Singh, Mahesh, Janmed with the deceased Ram Das. All the aforesaid persons had stated to Ram Das that he will be killed at this Ram Das had also stated "tum mar paoge to tum mar dena warna hami tumko mar denge."
He had denied that he had seen the accused persons killing Ram Das and Km. Phool Pyari and never told to the investigating officer.
Smt. Dhoopshree, the wife of the deceased Ram Das was examined as P.W-4. She had stated that Ram Das was her husband while Km. Phool Pyari was her husband's niece. Both have been murdered 14 months ago in the night at about 11 P.M. She was in her house and her husband was lying on plinth. The lantern was burning on the plinth. She heard about noise of quarrel then she came at the door. She had seen that six persons were assaulting her husband Ram Das. They were Janmed, Ram Singh, Abhai Ram, Ram Gopal, Satish and Mahesh, who were present in court. She had further stated that Janmed was having gun, Abhai Ram and Ram Singh were having countrymade pistol and rest of the accused persons were having lathis. Firstly all the accused persons having lathi had assaulted her husband and thereafter fired with gun and countrymade pistol. Her husband died on the spot. Janmed had bawled that he had escaped earlier several times, he shall not be escaped now. After killing her husband, the accused persons went towards the house of her brother-in-law Kishan Lal, P.W-1 and entered in his house. They had caught hold Km. Phool Pyari, the daughter of Kishan Lal and were enquiring about her father and thereafter she was taken out and was killed. On hue and cry, the villagers, namely, Ram Gopal, Mahendra Singh, Jagannath and Dabbal arrived there beside several other persons. Thereafter all the accused persons ran towards east. She knew all the accused persons since before. She had deposed about the enmity between her husband with all the accused persons. In cross-examination she had also deposed that two years ago settlement had taken place between her husband with the accused persons. Later on they again became inimical.
In respect of burning of lantern she had stated that the lantern was hanging at the door which was burning. Firstly, her husband was assaulted with lathi and thereafter he was fired. She had faced long and searching cross-examination, but nothing could be elicited to create doubt that she was not present at the time of incident and had not seen the accused persons. She had denied the suggestion that she had not recognized the accused persons and at the behest of Kishan Lal, P.W-1 she is deposing against them.
Dr. Surendra Singh was examined as P.W-5. He had deposed that the postmortem was conducted on the same day of which two reports were prepared and further deposed that the murder of the deceased Ram Das and Km. Phool Pyari could have taken place in the same night with the respective weapon of assault. Both the seal bundles containing empty cartridges, card board and clothes were opened before the court which were marked as Ext. Ka-1 to Ka-7.
Though the opportunity was given to the defence but the Doctor was not cross-examined.
SI Prahlad Singh was examined as P.W-6 who was station officer, Barnahal, Mainpuri. After lodging of the FIR, the investigation was entrusted to him. He had recorded the statement of the scribe of the FIR and Kishan Lal, P.W-1, the complainant at the place of incident. Thereafter he proceeded to the place of incident along with SI G.L. Saraswat, Constable Ramveer Singh and other police personnel. The inquest of the deceased Ram Das and Km. Phool Pyari was conducted under his supervision by SI G.L. Saraswat. The detail of the investigation conducted by the P.W-3 and submission of charge sheet has already been narrated in the opening paragraphs.
He was put to lengthy cross-examination with regard to the lantern and site plan as prepared by him, but nothing could be elicited to disbelieve his testimony. He had stated that the deceased Ram Das was history-sheeter, but he became a good culture person and was the Pradhan of the village. He had denied the suggestion that he had submitted the charge sheet against the accused persons in association with the complainant.
In his statement recorded under Section 313 Cr.P.C. the accused Ram Gopal had stated that his father Munshi Lal, uncle Kamal Singh and brother Hira Lal were the prosecution witnesses in a murder case against Ram Das, therefore, he has been falsely implicated in the case.
In his statement recorded under Section 313 Cr.P.C. accused Janmed (now deceased) had stated that in a theft case his father-in-law had deposed against the deceased Ram Das and his brother, therefore, he has been falsely implicated in the case.
In his statement recorded under Section 313 Cr.P.C. accused Abhai Ram had stated that his cousin Hira Lal, uncle Munshi Lal and Kamal Singh were the prosecution witnesses in a murder case against the victim Ram Das, who was convicted for 20 years hence bearing enmity. He was history-sheeter and convicted in several other cases. therefore, he has falsely been implicated in the present case.
In his statement recorded under Section 313 Cr.P.C. accused Mahesh had stated that the victim Ram Das and the complainant Kishan Lal had stolen she buffalo of his uncle and in the said theft his father was a witness, therefore, he has falsely been implicated in the case.
Accused Satish in his statement recorded under Section 313 Cr.P.C. had stated that due to the said theft case registered against the victim Ram Das, he has falsely been implicated in the case.
Accused Ram Singh In his statement recorded under Section 313 Cr.P.C. had stated that in the said theft his father had deposed against the victim Ram Das and the complainant, therefore, he has falsely been implicated in the case.
On a careful analysis and consideration of the materials on record, it is held by the learned trial court that the prosecution has proved its case beyond reasonable doubt that accused persons, namely, Janmed, Abhai Ram, Ram Singh, Mahesh, Satish and Ram Gopal have committed the offence charged, hence they were convicted as stated in the preceding paragraph.
All the accused persons being aggrieved by their conviction, jointly filed the present appeal. During the pendency of the appeal, appellant Janmed died hence the appeal in respect of him stood abated.
We have heard Shri P.K. Srivastava on behalf of the appellants and Shri Ashwani Prakash Tripathi, learned A.G.A. on behalf of the State and have taken through the record.
The learned counsel of both the side invited our attention to the material on record and relevant portions of the judgment of the court below to substantiate their respective stand. It was strenuously contended by the learned counsel for the appellants that the prosecution has not been able to prove the common object or the fact that the accused persons constituted an unlawful assembly. No common object of killing or committing any murder could be attributed to all those who were allegedly present and consequently the conviction of all the accused persons cannot be justified either on facts or in law.
It is further submitted that there was old enmity which was continuing between the parties and hence false implication cannot be ruled out. Ram Das, the deceased was Pradhan of the village at the time of the alleged incident and he might have several enemies who would be bearing grudge and enmity on account of election rivalry, hence they would have eliminated him and the appellants have been made escape-goat. There are inherent improbabilities with respect to manner of investigation with the statement of the prosecution witnesses, which creates doubt about the alleged incident.
In order to elaborate his argument learned counsel for the appellants has pointed out that it is alleged that a lantern was hanging on the chabootra (plinth). When the alleged incident took place at 11 P.M. on 19/20.8.1982 it was a rainy season, it could not be possible that the lantern was burning at the door of Ram Das on the chabootra (plinth). Thus there was no occasion for the prosecution witnesses to recognize all accused appellants.
It is further submitted that there is great inconsistency in the statement of the prosecution witnesses with regard to the manner of incident as one of the witness in the FIR who was examined as P.W-3 Dabbal has turned hostile during the course of trial. The P.W-2 Abhilakh Singh appears to be a tutored witness who had reached at the place of incident after hearing the noise whereas the incident had allegedly occurred in a spur of moment. It is highly improbable that the assailants would remain present there till all the witnesses reached at the place of occurrence. P.W-1 & P.W-4 are related to the deceased, hence they are highly interested and partisan witnesses.
The investigating officer, P.W-6 had collected the empty cartridges from the place of incident, but the same were never sent to the Forensic Science Laboratory to connect with the firearm weapon allegedly used by the accused persons. The incident is said to have occurred at 11 P.M. on 19/20.9.2018, but the FIR was lodged after inordinate delay i.e. at 6.30 A.M. on 20.9.2018. The presence of the eyewitnesses as mentioned in the FIR is highly doubtful. It is a case of hit and run. It is highly improbable that after committing murder of Ram Das, all the accused persons would have been infuriated and provoked as they could not find the complainant in his house and would have committed murder of his 9 year old daughter. It is also highly improbable that the wife of the deceased was spared who was present when the murder of her husband was committed and was not assaulted by any of the accused persons nor she had reacted to come forward to save her husband. The postmortem reports of the two deceased do not support the prosecution case, as such the prosecution has not proved its case against the appellants beyond all reasonable doubt. The learned trial court has committed manifest error in recording the finding of conviction, thus the conviction of the appellants is liable to be set aside.
Per contra learned A.G.A. has contented that this is a case of direct evidence. There was enmity between the parties which has disclosed in detail in the statement of P.W-1. Even if the deceased was a criminal, it would not give licence to the accused appellants to commit his murder. There is recovery of lantern which was burning at the house of the deceased, the complainant had recognized them in its light. The complainant whose house was 15 paces away could have easily seen when all the accused appellants were having with respective weapons were shouting at the deceased that he should not be spared today. It has specifically been mentioned by the complainant in his statement about the manner of incident and about burning of lantern at the door of the deceased in paras 3 and 37 to 39 which are being reproduced hereinbelow:
3- eSa vius njokts ds pcwrjs ij lks jgk Fkk tks fd jkenkl ds pcwrjs ds lkeus gSA esjh iRuh vkSj yM+dh QwyI;kjh Hkh gekjs okys pcwrjs ij lks jgh FkhA eSa tx jgk FkkA eSaus 'kksj lqukA tuesn flag 12 cksj dh cUnwd fy, gq,] jkeflag reapk fy,] vHk; jke reapk fy,] lrh'k ykBh fy,] egs'k vkSj jke xksiky Hkh ykBh fy, vk, vkSj jkenkl ls dgk fd igys rks cp x;k vc ugha cpsxkA ;g lqudj esjk HkkbZ jkenkl pkjikbZ ls [kM+k gks x;kA eqyfteku ykBh ls ekjus yxs vkSj cUnwd reaps ls Qk;j fd, ftlls pksV [kkdj jkenkl ogha ej x;kA eSa Hkkxdj viuh Nr ij p<+ x;kA esjh yM+dh QwyI;kjh tks njokts ij jg xbZ Fkh mldks ;s yksx idM+dj esjs ?kj esa ys x, vkSj mlls iwNk fd rsjs firk dgka gSA 37- jkenkl ds edku essa ,d NksVh dksBjh Hkh gS ftlesa fdokM+ ugha gSA dksBjh ds vkxs ckgj dh vksj NIij iM+k gSA mlesa ykyVsu Vaxh gqbZ FkhA 38- njksxk th us tc ekSdk eqvkbuk fd;k rc yk'ksa Hkh iM+h gqbZ Fkh vkSj ykyVsu Hkh Fkh rks eSa D;k vyx ls njksxk th dks crkrk fd ;g ykyVsu gSA 39- ykyVsu ,d rkj ds gqd esa yVdh gqbZ Fkh og rkj NIij esa yVdk Fkk ftlesa nqljk dks.k eqM+k gqvk Fkk uhps okyk gqd dh rjgA NIij vkxs cfYy;ksa ij j[kk gSA nhokj ij ugh j[kkA nks ydM+h dh [kafHk;ksa ij vkxs ls NIij fVdk FkkA os [kafHk;kW 5 gkFk yEch FkhA NIij dk vkxs okyk fgLlk esjs flj ls gkFk Hkj ÅWpk FkkA jke izlkn dk edku mlh rjQ gS tks jkenkl ds edku ls feyk gS exj NIij ls ugh feyk gqvkA njksxk th us uD'kk utjh esa ykyVsu Vaxk gksuk D;ksa ugha fn[kk;k eSa ugh dg ldrkA The said statement of P.W-1 also confirms that the lantern was burning at the time of incident and the complainant's house was few paces away, hence he had seen the accused persons in the light of lantern who were standing encircling the deceased.
It is further contended by the learned A.G.A. that the prosecution case cannot be doubted if the wife of the deceased had not gone to rescue her husband. The deceased was Pradhan of the village and on account of election rivalry there was enmity between the parties. The accused persons are related to each other and as such they have prior meeting of mind who formed an unlawful assembly with common object to eliminate Ram Das. The presence of wife of the deceased at the time of incident was natural who had occasion to see all the assailants hence there is no reason for her to falsely implicate the innocent persons leaving behind the actual culprits. She had recognized all the assailants as prior to the incident two years ago some compromise arrived at between them, but later on the old enmity revived. She has also admitted about that her husband was involved in criminal cases and was also convicted, but the same would not give licence to all the accused persons to eliminate him. She has specifically stated that after eliminating her husband all the accused persons went towards the house of the complainant. They entered in his house and caught hold his daughter Phool Pyari who was sleeping at Chabutra (plinth). Accused Janmed while holding her asked about her father and thereafter she was also killed by him.
Learned A.G.A. has further contended that the medical evidence is fully corroborated by the oral testimony of the victim's wife. The wife of the deceased had not reacted in a particular way her presence cannot be doubted. In this regard, learned A.G.A. has placed reliance upon the decision of Motiram Padu Joshi and Others Vs. State of Maharashtra, Criminal Appeal No.1749 of 2015 decided on 10.7.2018 by the Hon'ble Apex Court.
The Hon'ble Apex Court in the aforesaid case has placed reliance of the decision of Rana Pratap V. State of Haryana, (1983) 3 SCC 327 which is being reproduced here as under:
"6. Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."
It has been observed that the evidence of the prosecution witnesses cannot be doubted on the ground that the witnesses did not intervene in the attack nor made an attempt to save the deceased. On witnessing a crime, each person reacts in his own way and their evidence cannot be doubted on the ground that the witness has not acted in a particular manner.
It is further pointed out that in the case of Motiram Padu Joshi (Supra) it has been held that while appreciating the evidence of witness, approach must be whether the evidence of witness read as a whole appears to have a ring of truth and consistent with the prosecution case or to find out whether it is against the general tenor of the case. The evidence cannot be doubted merely because they belong to opposite faction. All that is required is that their evidence is to be scrutinized with care and caution.
It is further contended that in the present case the prosecution witnesses have consistently spoken about the incident and the appellants were having armed with deadly weapons and the overt acts of the appellants which is corroborated by the medical evidence cannot be doubted by reason of being relationship of the P.W-1 with P.W-4.
It is well settled that relationship is not a ground affecting the credibility of a witness. It is unreasonable to contend that evidence given by a related witness should be discarded only on the ground of such witness is related. In the case of Mohabbat & Ors vs State Of M.P (2009) 13 SCC 630 the Hon'ble Apex Court has held as under:
"12. Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version.
13. ''5. ... Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
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To the same effect are the decisions in State of Punjab v. Jagir Singh [(1974) 3 SCC 277 : 1973 SCC (Cri) 886] , Lehna v. State of Haryana [(2002) 3 SCC 76 : 2002 SCC (Cri) 526] (SCC pp. 81-82, paras 5-9) and Gangadhar Behera v.State of Orissa [(2002) 8 SCC 381 : 2003 SCC (Cri) 32] ."
The above position was also highlighted in Babulal Bhagwan Khandare v. State of Maharashtra [(2005) 10 SCC 404 : 2005 SCC (Cri) 1553] , Salim Sahab v. State of M.P. [(2007) 1 SCC 699 : (2007) 1 SCC (Cri) 425] and Sonelal v. State of M.P.[(2008) 14 SCC 692 : (2009) 3 SCC (Cri) 417] (SCC pp. 695-97, paras 12-13).
Learned A.G.A. has further pointed out that merely because the FIR was lodged at 6.30 A.M. on the next day, it would not indicative of fact of fabrication and false implication. On account of fear and terror of the appellants, the complainant could not go to lodge the FIR at the same time when the incident had occurred where his brother and his 9 year old daughter were eliminated by the accused appellants. All the accused appellants have been named in the FIR, hence delay in lodging of FIR can hardly be fatal to the prosecution case.
The presence of the witnesses on the spot is natural as the spot map prepared by the Investigating Officer during investigation as proved on record goes to show that the place of occurrence tallies with the evidence of the oral testimony of the witnesses. The motive is sufficiently proved by the prosecution but even if the prosecution fails to prove the motive it looses significance when there is direct evidence. The variations, if any, in the statement of the witnesses will not topple the entire prosecution case.
Learned A.G.A. has placed reliance upon the case of Rameshwar Dayal & others Vs. State of Madhya Pradesh and another; 2002(3) SCC 45 passed in Criminal Appeal 897 of 2000 decided on January 29, 2002 by the Hon'ble the Apex Court wherein it has been held that the provisions of Section 149 IPC, will be attracted whenever any offence is found committed by any member of an unlawful assembly in prosecution of the common object of that assembly or when the members of that assembly knew to be likely to be committed in prosecution of that object, so that every person, who at the time of committing of that offence is a member, will be also vicariously held liable and guilty of that offence. Previous enmity coupled with the joining in a group constituting an unlawful assembly, going to the scene of occurrence armed with lethal weapons and participating in the attack by mercilessly beating the deceased after surrounding him, will sufficiently establish that the common object was nothing but to kill the deceased.
Lastly it is submitted by the learned A.G.A. that the trial court has sifted the probability and verity of the prosecution case on the touch stone of the case of oral and documentary evidence, hence rightly arrived at the conclusion that all the accused persons were involved in the ghastly offence. Phool Pyari is the daughter of the complainant was eliminated in relentless manner by the accused Janmed, who is now not surviving. But under the circumstances, surviving accused appellants who were present right from beginning have equally participated in the commission of offence had constituted an unlawful assembly, do not deserve any leniency, hence the appeal is liable to be dismissed.
We have given anxious consideration to the submissions advanced by the learned counsel for the appellants and the learned A.G.A.
At the outset it needs to be mentioned that it is not disputed that the deceased Ram Das and Km. Phool Pyari who are the brother and daughter of the complainant were met a homicidal death on account of injuries sustained by them on the date of occurrence. It is also not in dispute that the deceased had succumbed to the firearm injuries on the spot, which has been fully confirmed by the Doctor who had conducted the autopsy of both the deceased and has stated that the death had occurred in the same night and in the same course.
No doubt, the prosecution witnesses, namely, Kishan Lal (father of the deceased Km. Phool Pyari) , P.W-1, and Smt. Dhoopshree (wife of the deceased Ram Das), P.W-2 are close relative. Their evidence cannot be disbelieved as held in catena of decision by the Hon'ble Apex Court. In the case of State of Rajasthan vs. Smt. Kalki and another (1981) 2 SCC 752, Hon'ble Apex Court has held as under:-
"Related is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'.
Merely because the eye witnesses are family members their evidence cannot per se be discarded. Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegation against an innocent person. The natural witness cannot always be lebelled as interested witnesses."
In the case of Dalip Singh vs. State of Punjab AIR 1953 SC 364, Hon'ble Apex Court has held as under:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person."
In the case of Kartik Malhar vs. State of Bihar 1996 CRL. L.J. 889, Hon'ble Apex Court has held as under:-
"We may also observe that the ground that the witness being a close relative and consequently, being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case, AIR 1953 SC 364 in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses."
In the case of Gangabhavani vs. Rayapati Venkat Reddy & Ors AIR 2013 SC 3681, Hon'ble Apex Court has held as under:-
"The evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon" .
The motive for committing crime as alleged by the prosecution is established from the testimony of the prosecution witnesses. In the case of Harish Chandra Bahri vs State of Bihar 1994 Criminal Law Journal 3271 Hon'ble Apex Court has held as under: :-
"Sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the court that the accused was guilty of the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime."
In the case of Dharnidhar Vs. State of U.P. and others (2010) 3 Supreme Court Cases (Crl.) 491, Hon'ble Apex Court held as under:
"It is not always necessary for prosecution to establish definite motive for commission of crime to secure conviction of accused. It would always be relatable to facts and circumstances of a give case. Absence of motive does not essentially result in acquittal of accused if he is otherwise found guilty by cogent and reliable evidence. However, in cases which are entirely or mainly based upon circumstantial evidence, motive can have greater relevancy or significance."
There is complete consistency and coherence in the examination-in-chief and cross examination is fully corroborated by the time, date and place of occurrence that the appellants were involved in relentless and grim crime of decimating the life of two victims for ever.
The accused persons, who are six in numbers in furtherance of the common object came together armed with deadly weapons and while committing murder of complainant's brother Ram Das they had spoken that he will not be spared today as he had been earlier escaped several time and within no time he was mercilessly assaulted with lathis and gunned down and thereafter they were in search of the complainant went inside his house. The accused persons had caught the daughter of the complainant Phool Pyari and asked about the complainant. When they could not find any reply satisfactory from Phool Pyari, she was brutally murdered by the appellant Janmed by firing shot. This murderous assault upon two family members due to the old enmity has been proved beyond all reasonable doubt by the prosecution witness. The findings recorded by the court below are supported by overwhelming material on record to call for any interference. It is not a case of sudden quarrel or sudden provocation or in heat of passion between the parties rather it was a pre-planned and premeditated assault of the unlawful assembly on account of previous enmity. Hence the provision of Section 149 IPC is attracted as it is settled principle that whenever any offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or when the parties of that assembly knew to be likely to be committed in prosecution of that object, so that every person who at the time of the committing of that offence, is a party will also be vicariously liable to be guilty of the offence.
In Lalji v. State of U.P., (1989) 1 SCC 437 : 1989 SCC (Cri) 211 the Hon'ble Apex Court has held as follows:
"9. 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 objects 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. He cannot put forward the defence that he did not with his own hand commit the offence committed 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 forming 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."
In Masalti v. State of U.P., (1964) 8 SCR 133 : AIR 1965 SC 202 it was observed that any member of the unlawful assembly can be prosecuted for the criminal act; it need not to be proved that he had committed an overt act:
"17. ..... what has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained long with the other members of the assembly the common object as defined by Section 141 IPC Section 142 provides that however, being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continue in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common object specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin [AIR 1956 SC 181] assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, 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."
In the instant case, the previous enmity coupled with the joining of all the appellants constituting an unlawful assembly going to the house of the deceased Ram Das with deadly weapons participating in the attack by mercilessly beating the deceased has sufficiently established that the common object was nothing but to kill the deceased. They had acted in premeditated and consolidated move to wreak vengeance. The appellant no.1 Janmed who is now no longer surviving, was armed with licensed gun while Abhai Ram was armed with 303 bore and Ram Singh was armed with 312 bore and others were having lathis. They attacked firstly upon the complainant's brother. Accused Janmed hurled abusive language and asked Ram Das that "he had escaped several times previously, but today he will not be spared" which clearly shows the common object nothing but to kill the deceased. Hence their conduct prove the common object beyond reasonable doubt.
Learned counsel has also laid his stress that accused persons who were attributed the role of causing injury with lathi they cannot be made liable to be convicted on the basis of Section 149 IPC.
This argument in our view has no merit as creation of vicarious liability under section 149 IPC is well elucidated in Allauddin Mian. Sharif Mian vs. State of Bihar (1989) 3 SCC 5, the Hon'ble Apex Court has held as under:
"8.............. Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/ are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/ were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly.........."
(underlining added) The same principles were reiterated in paras (26) and (27) in Daya Kishan v. State of Haryana (2010) 5 SCC 81 and also in Kuldip Yadav and others v. State of Bihar (2011) 5 SCC 324:2011(1) S.C.Cr.R. 768."
Even if no overt act is made to a particular person when the charge is under Section 149 IPC, the presence of the accused as a member of unlawful assembly is sufficient for conviction. Accused persons, namely, Mahesh, Satish and Ram Gopal armed with lathis were member of the unlawful assembly right from beginning, therefore, sufficient to hold them guilty as their presence has not been disputed.
The postmortem report of Ram Das finds multiple wound of injury all over besides lacerated wounds and contusions were found on the body of the deceased. Similarly, multiple and firearm wounds were found on the body of the deceased Phool Pyari. The prosecution case has sufficiently been corroborated by the medical evidence and the ocular testimony of the eyewitnesses showing common object of the unlawful assembly. The circumstance of the case clearly shows that both the murder were committed simultaneously at the same time which have been proved by their postmortem reports indicating duration of death 1¾ days old.
In the case of Darshan Singh Vs. State of Haryana 1996 SCC (Cr.) 1261 the Hon'ble Apex Court has held as under:-
"Opinion of Doctor as to how the injury was caused cannot override unimpenable testimony of eye witnesses."
In the case of Anil Rai and others Vs. State of Bihar 2001 (43) ACC 614, Hon'ble Apex Court has held as under;
"Opinion of expert would loose its significance in view of reliable consistent and ocular testimony of prosecution witnesses moreover, if direct evidence is satisfactory and reliable, it cannot be rejected on hypothetical medical evidence."
On account of threat to the witnesses by the accused persons, one Dabbal could not support the prosecution case during the course of trial, but in material particular he has supported the prosecution case. As such it would not effect the veracity of the prosecution witnesses who have witnessed the occurrence.
Merely because P.W-4 Smt. Dhoopshree, who is the wife of the deceased due to fear could not have reacted in a particular way to save her husband cannot be doubted that she had not seen the incident or that she was not present at the time of incident (Ram Pratap Supra).
Minor discrepancy in the statement of the prosecution witnesses would not show that they were tutored witnesses. After committing the murder of Ram Das, accused persons entered into the house of the complainant in search of him to commit his murder, but he was not found. Thereafter the accused persons came out holding Km Phool Pyari who was sleeping on plinth as they were recognized by her, hence she was eliminated by Janmed mercilessly. Minor discrepancies are not fatal rather presence and participation of all accused is fully established by the ocular testimony.
All the prosecution witnesses were put to lengthy and searching cross-examination by the defence, but nothing could be elicited to doubt their testimony rather the accused persons who were examined under Section 313 Cr.P.C. had denied all the incriminating circumstances put to them which leads only to the conclusion that they have actually shared the common object in perpetrating the offence and have rightly been found guilty of committing murder of the complainant's brother and his 9 years old daughter.
Learned counsel for the appellants has argued that the manner of investigation by the investigating officer with respect to place of incident with the site plan creates doubt about the veracity of prosecution case.
In this regard Prithvi Vs. Mam Raj, 2005 SCC (Cri) 198], is an authority for the proposition that site plan is not a ground to disbelieve the otherwise credible testimony of eye-witnesses. The minor improvements, embellishments or lapses, if any, on the point of the investigating officer are insignificant since the evidence of the eyewitnesses otherwise overwhelmingly corroborate each other in material particulars. In examination of the accused persons under Section 313 Cr.P.C. attention was drawn towards all the inculpatory pieces of evidence to offer an explanation but they had denied all the suggestions.
The manner in which two victims were done to death has portrayed very inhuman and gruesome state of mind of the accused-appellants. The barbaric and infernal occurrence has fully supported by the testimony of eye-witnesses and the medical evidence which cannot be overclouded by any stretch of imagination or suspicion. The defence side has tried to evolve the story of false implication during the course of cross examination to overshadow the testimony of the eye-witnesses but it cannot be doubted that the eye-witnesses had not seen the accused-appellants who perpetuated crime in a very relentless and devilish manner. There is no scope for mistaken identity as the accused persons were well known to the complainant. The evidence has been judged and weighed cautiously and warily with great circumspection. No adverse inference has been elicited in the cross examination by the defence so as to discredit or overshadow the prosecution version.
In our view, death of accused Janmed is of no significance so far as other appellants are concerned. The reason being that this was a case of unlawful assembly, the other persons were member who actively participated in the crime till last along with accused Janmed, who died. Hence the sentence awarded by the court below does not appear to be excessive or unwarranted under the facts and circumstances of the case.
On the basis of verbose and prolix discussions made above and after considering the material evidence available on record, we are of the considered opinion that findings of conviction recorded by the learned trial court are well substantiated by the evidence available on record. As the trial court has appreciated the evidence in the right perspective, we do not find any tangible reason to interfere with the final conclusion recorded for the offence punishable under Section 302 read with Section 149 of the Indian Panel Code. Therefore, the conviction recorded by the trial Court against the accused/ appellants Abhai Ram, Ram Singh, Mahesh, Satish and Ram Gopal under Section 302/149,147,148,452 I.P.C. is hereby maintained and affirmed.
The appeal is devoid of merit and is accordingly dismissed.
The appellants Abhai Ram, Ram Singh, Mahesh, Satish and Ram Gopal are on bail. Their personal and surety bonds are hereby cancelled and they are directed to surrender before the Chief Judicial Magistrate concerned immediately to serve out the sentence imposed upon them by the trial court and affirmed by us. In case they fail to surrender, as directed above, the Chief Judicial Magistrate concerned is directed to take coercive action against them in this regard.
Let a copy of this judgment and order alongwith original record be transmitted to the learned trial court for information and compliance.
Judgment certified and be placed on record.