Reserved on 20.08.2018 Delivered on 29.08.2018
Court No. 47
Case :- CRIMINAL APPEAL No. - 3113 of 2009 Appellant :- Munindra Shukla & Two Others Respondent :- State Of U.P.
Counsel for Appellant :- Jai Singh Parihar, A.K. Yadav, Ajay Vikram Yadav, Akhilesh Singh, Ashfaq Husain, Avinash Mishra, Brijesh Sahai, P.S. Parihar, R.L. Shukla, Tahir Husain Farooqui, V.K. Dwivedi, Ambrish Kumar Counsel for Respondent :- Government Advocate, P.V. Mishra Connected with Case :- CRIMINAL APPEAL No . - 5762 of 2005 Appellant :- Km. Rubi Shukla & Another Respondent :- State Of U.P.
Counsel for Appellant :-Tahir Husain Farooqui, Jai Singh Parihar, B.S. Rathore, Pushpendra Singh Parihar, Ashfaq Husain, Rajesh Tiwari Counsel for Respondent :- Government Advocate, A.K. Dubey
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Umesh Chandra Tripathi,J.
[ Delivered by Ram Surat Ram (Maurya), J.]
1. Heard Sri Ambrish Kumar and Sri Tahir Husain Farooqui, for the appellants and Sri Anil Kumar Kushwaha, A.G.A., for State of U.P.
2. Munindra Shukla, Anjani Kumar, Pintoo Shukla, Km. Rubi Shukla and Smt. Madhuri (the appellants) have filed the aforesaid appeals, from their conviction and sentence passed by Additional Session's Judge, Court No. 6, Kanpur Nagar, dated 14.12.2005/16.12.2005, in S.T. No. 9 of 2004, State vs. Munindra Shukla and others, (arising out of Case Crime No. 366 of 2003, under Section 147, 148, 149, 302, 504/34 IPC, P.S. Kotwali, district Kanpur Nagar), S.T. No. 10 of 2004, State vs. Anjani Kumar, (arising out of Case Crime No. 372 of 2003, under Section 25 Arms Act, 1959, P.S. Kotwali, Kanpur Nagar) and S.T. No. 11 of 2004, State vs. Pintoo Shukla, (arising out of Case Crime No. 371 of 2003, under Section 25 Arms Act, 1959, P.S. Kotwali, Kanpur Nagar), convicting all the appellants under Section 147, 148, 302/149, 504 IPC and appellants Anjani Kumar and Pintoo Shukla under Section 25 Arms Act, 1959 also and awarding to all the appellants (i) one year rigorous imprisonment with fine of Rs. 1000/- each under Section 147 IPC, (ii) one year rigorous imprisonment with fine of Rs. 1000/- each under Section 148 IPC, (iii) imprisonment for life with fine of Rs. 20,000/- each under Section 302/149 IPC (iv) six months simple imprisonment under Section 504 IPC and (v) one year rigorous imprisonment with fine of Rs. 2000/- to Pintoo Shukla and Anjani Kumar both, under Section 25 Arms Act, 1959, along with default stipulation. All the sentences were directed to run concurrently.
3. On the complaint (Ex-Ka-11) of Smt. Vineeta Pandey (PW-6), FIR (Ex-Ka-2) of Case Crime No. 366 of 2003, under Section 147, 148, 149, 302, 504/34 IPC, was registered at P.S. Kotwali, Kanpur Nagar, on 16.10.2003 at 21:55 hours, against Munindra Shukla, Anjani Kumar, Pintoo Shukla, Km. Rubi Shukla and Smt. Madhuri, by Head Moharrir Mukesh Babu (PW-2). It has been stated in the complaint that the informant along with her family, namely her mother-in-law Smt. Kirta Pandey, husband Pankaj Pandey, devar Pawan Pandey and nanad Km. Pooja Pandey were residing at Jail Colony, Kanpur Nagar. Munindra Shukla, who was posted as a Constable at District Jail Kanpur Nagar, was residing in her neighbourhood along with his family. Due to creating dirt by the dog and goats of Munindra Shukla in front of her door, some altercation with Munindra Shukla and her family members had taken place, about 20 days ago. Due to that reason, they kept enmity with her family. On 16.10.2003 at about 9:15 PM, she, her mother-in-law Smt. Kirta Pandey, who was also Constable in Jail, her husband Pankaj Pandey, devar Pawan Pandey and nanad Km. Pooja Pandey were present at her house. Neighbourer Munindra Shukla along with his sons Pintoo and Anjani Kumar began to challenge and abuse her family members, taking their names, standing in front of her house, then her mother-in- law Smt. Kirta Pandey, her husband Pankaj Pandey, devar Pawan Pandey and nanad Km. Pooja Pandey came out from her house and forbade them from abusing and tried to pacify the matter; then at that time Madhuri wife of Pintoo and his sister Rubi also came there. Then Munindra Shukla and his sons Pintoo and Anjani Kumar opened fire from their country-made pistols, which caused injury to her husband and devar. Her mother-in-law fled away from that place then Madhuri wife of Pintoo and Rubi his sister caught hold her mother-in-law Kirta Pandey and began to assault and said that where you were running. They exhorted to shoot her and dragged her. Then they fired upon Smt. Kirta Pandey also, which caused injury to her mother-in-law. Due to gun shot injuries, her husband Pankaj Pandey, devar Pawan Pandey sons of Uma Shankar Pandey and her mother-in-law Smt. Kirta Pandey died on the spot. The incident was seen by herself, her nanad Pooja Pandey and several other persons of mohalla, who were present there. After causing incident, the accused ran away, waving their weapons, shouting and warning that if any one would say any thing against them, then he would suffer same consequences. Due to their terror, the people began to run from the spot. Neighbourers closed their door and switched off their light due to terror. Public law and order has been disturbed and terror has been created all around the locality. Dead bodies of all the aforesaid three persons were lying on the spot. She had come there any how saving her and under terror.
4. After registration of FIR, In-charge Inspector Babu Ram Verma (PW-8) started investigation on 16.10.2003. He copied the check FIR and recorded statement of the informant. He came on the spot, where dead bodies of Smt. Kirta, Pankaj and Pawan were lying and found that the family members were weeping. They said to send the injured to hospital, for satisfaction as they appeared to be alive. Then he boarded the bodies of three injured on his jeep and sent to hospital along with SSI D.K. Sharma (PW-9) and the Constables. He remained on the spot and made spot inspection on the pointing out of Vineeta Pandey and prepared site-plan (Ex-Ka-29). In the meantime SSI D.K. Sharma informed him about death of all the three injred. On which, he directed SI R.K. Pandey (PW-7) to conduct Inquest of the dead bodies. He interrogated Pooja Pandey. He took into possession blood stained earth and plain earth from the spot, where dead bodies were lying and prepared its recovery memo (Ex-Ka-12). He found four empty cartridges of 315 bore from the spot and prepared its recovery memo (Ex-Ka-13). He recorded statement of HC Mukesh Babu and Bhajan Singh. He arrested accused Munindra Shukla, Rubi and Smt. Madhuri from Parakh Pathology and recorded their statements. On the head of Rubi, injury was noticed, which she admitted to receive in the same incident as such she was sent for medical examination. In the meantime, he obtained Inquest reports and copied it in case diary. Pintoo and Anjani Kumar surrendered in Court and sent to jail. He recorded statements of Pintoo and Anjani Kumar in district jail, where they confessed their guilt and assured to recover the pistols used in the incident. He took both the accused on police remand. On the pointing out of Pintoo Shukla, he recovered country-made pistol of 315 bore, from bushes of Nana Rao Park 26.10.2003 at 14:00 hours and prepared its recovery memo (Ex-Ka-30). On the pointing out of Anjani Kumar, he recovered country-made pistol of 315 bore, from the grass of Nana Rao Park 26.10.2003 at 16:50 hours and prepared its recovery memo (Ex-Ka-31). He recorded statements of witnesses of recovery. After completing investigation, he submitted charge sheet (Ex-Ka-33), against the appellants, under Section 147, 148, 149, 302, 504 IPC.
5. On the basis of recovery memo (Ex-Ka-30), FIR (Ex-Ka-9) of Case Crime No. 371 of 2003, under Section 25 Arms Act, 1959 was registered at P.S. Kotwali, Kanpur Nagar on 26.10.2003 at 15:15 hours, against Pintoo Shukla. SI Ravindra Kishore Pandey (PW-7) conducted investigation in this case. He prepared site-plan (Ex-Ka-26) of the place of recovery of weapon and recorded statements of witnesses of recovery and the accused. He submitted charge sheet (Ex-Ka-27) on 13.11.2003. On the basis of recovery memo (Ex-Ka-31), FIR (Ex-Ka-5) of Case Crime No. 372 of 2003, under Section 25 Arms Act, 1959 was registered at P.S. Kotwali, Kanpur Nagar on 26.10.2003 at 18:20 hours, against Anjani Kumar. SI Lalloo Ram Tyagi (PW-10) conducted investigation in this case. He prepared site-plan (Ex-Ka-32) of the place of recovery of weapons and recorded statements of witnesses of recovery and the accused. He submitted charge sheet on 13.11.2003. On these charge sheets, cognizance were taken.
6. All the three injured were taken to Ursala Hospital Kanpur Nagar, in night, where they were declared dead. SI Ravindra Kishore Pandey (PW-7) conducted Inquest of Smt. Kirta Pandey (Ex-Ka-11) on 17.10.2003 during 7:30 AM to 9:00 AM. He prepared photo lash and letters etc. to the authorities for conducting postmortem (Ex-Ka-12 to Ka-15). He conducted Inquest of Pankaj Pandey (Ex-Ka-16) on 17.10.2003 during 9:00 AM to 10:30 AM. He prepared photo lash and letters etc. to the authorities for conducting postmortem (Ex-Ka-17 to Ka-20). He conducted Inquest of Pawan Pandey (Ex-Ka-21) on 17.10.2003 during 10:30 AM to 12:00 AM. He prepared photo lash and letters etc. to the authorities for conducting postmortem (Ex-Ka-22 to Ka-25).The dead bodies were handed over to the Constables Vishwanath Singh and Lakshmi Narain for postmortem.
7. Dr. Ashok Kumar (PW-1) conducted autopsy of the dead body of Pawan Pandey on 17.10.2003 at 02:05 PM hours and prepared postmortem report (Ex-Ka-1), in which following ante-mortem injuries were noted:-
(i) Lacerated wound 2 cm x 01 cm x bone deep right side of head, 06 cm above left ear.
(ii) Fire arm wound of entry 02 cm x 02 cm back of head brain cavity deep , 02 cm above to 2nd cervical vertibra.
In internal examination, occipital bone was fractured; membrane were lacerated; brain was lacerated and 04 ounce blood was present in brain cavity and one metallic bullet was also recovered from brain cavity. Pleura was congested; both lungs were congested; right chamber of heart was full and left chamber of heart was empty; stomach contained two ounce watery fluid; small intestine was half fill from gases; large intestine was full from faecal matter and gases; liver was congested and gall bladder was half fill. Spleen was congested; both kidneys were congested. According to Doctor period of death was within one day and cause of death was comma as a result of fire arm injury.
8. Dr. Sunil Katyal (PW-3) conducted autopsy of the dead body of Smt. Kirta Pandey on 17.10.2003 at 2:20 PM and prepared postmortem report (Ex-Ka-7), in which following ante-mortem injuries were noted:-
(i) Fire arm wound of entry 1cm x 1cm x bone deep left side of neck and 2 cm below left ear. Margins inverted, scorching present around fire arm wound.
(ii) Fire arm wound of exit 2 cm x 2cm x bone deep right side of neck and 1cm below to right ear. Margins everted.
(iii) Fire arm wound of entry 1 cm x 1 cm x bone deep, back of left forearm and is just above left wrist joint underlying bone fractured. One metallic bullet recovered from left forearm.
In internal examination, membrance as well as brain were pale; both lungs were pale; Pleura was pale; both chambers of heart were empty; stomach contained four ounce watery fluid; small intestine was half fill from gases; large intestine was full from faecal matter and gases; liver was pale and gall bladder was half fill. Spleen was pale; both kidneys were pale. According to Doctor period of death was within one day and cause of death was shock due to ante-mortem fire arm injury.
9. Dr. Sunil Katyal (PW-3) conducted autopsy of the dead body of Pankaj Pandey on 17.10.2003 at 02:35 PM and prepared postmortem report (Ex-Ka-8), in which following ante-mortem injuries were noted:-
(i) Fire arm wound of entry 1 cm x 1 cm x chest cavity deep on left side of chest and 11 cm above left nipple. Margins inverted, blackening, tattooing and charring present around the wound. One bullet recovered from the right side of chest (lateral side) 9 cm below axilla.
In internal examination, membrance as well as brain were pale; Pleura was lacerated both sides; both lungs were lacerated and 1-1/2 liter blood present on both sides of chest counts; both chambers of heart were empty; stomach contained four ounce watery fluid mucous; small intestine was half fill from gases; large intestine was full from faecal matter and gases; liver was pale and gall bladder was half fill. Spleen was pale; both kidneys were pale. According to Doctor period of death was within one day and cause of death was hemorrhage and shock due to fire arm injury.
10. On committal, the case arising out of Crime No. 366 of 2003 was registered as S.T. No. 9 of 2004, in which Additional Session's Judge framed charges against the appellants on 12.07.2004. The case arising out of Crime No. 372 of 2003 was registered as S.T. No. 10 of 2004, in which Additional Session's Judge framed charge on 12.07.2004 against Anjani Kumar. The case arising out of Crime No. 371 of 2003 was registered as S.T. No. 11 of 2004, in which Additional Session's Judge framed charge on 12.07.2004 against Pintoo Shukla. The appellants denied the charges and claimed trial. All the three cases were consolidated and tried together. In order to prove the charges, the prosecution examined Dr. Ashok Kumar (PW-1), to prove postmortem report of Pawan Pandey, Head Constable Mukesh Babu (PW-2), to prove check FIR of Crime No. 366 of 2003, Dr. Sumit Katyal (PW-3), to prove postmortem reports of Smt. Kirta Pandey and Pankaj Pandey, Constable Shyam Sunder Dubey (PW-4), to prove check FIR of Crime No. 371 of 2003, Pooja Pandey (PW-5), an eye witness, Smt. Vineeta Pandey (PW- 6), informant and an eye witness, SI Ravindra Kishore Pandey (PW-7), Investigating Officer of Case Crime No. 371 of 2003 and to prove Inquests of all the deceased, Inspector Babu Ram Verma (PW-8), Investigating Officer of Case Crime No. 366 of 2003, SSI D.K. Sharma (PW-9) to prove that the injured were taken by him to Ursala Hospital, where they were declared dead and recoveries of weapons on the pointing out of Pintoo Shukla and Anjani Kumar, SI Lallu Ram Tyagi (PW-10), Investigating Officer of Case Crime No. 371 of 2003 and Surendra Nath Mishra (PW-11) to prove sanction granted by District Magistrate for prosecution under Section 25 of Arms Act, 1959.
11. All the incriminatory materials and facts were put to the accused, under Section 313 CrPC. They denied the materials and facts. They stated that the incident took place somewhere else. The dead bodies were brought to Ursala Hospital by unknown persons, from where information was given to the police in morning. Then their Inquest was done and FIR was lodged ante-timed. They were falsely implicated due to suspicion as Munindra Shukla was posted as Constable in Jail. He was transferred from Farrukhabad to District Jail Kanpur Nagar on 08.07.1995. Smt. Kirta Pandey was also posted as Constable in Jail at Farrukhabad from where she was transferred to Kanpur in the year 2001. Initially, she was not allotted official accommodation. Munindra Shukla permitted her to reside in his official accommodation. However, in the meantime, the marriage of daughter was settled as such he had asked her to vacate his quarter, which was avoided by her as such they forcibly ejected her. Due to that enmity they were falsely implicated in this case. Km. Rubi also took plea of alibi. They examined Senior Station Officer, District Police Control Room, V.K. Verma (DW-1) to prove that log- book of District Police Control Room dated 16.10.2003 and 17.10.2003 have been deleted.
12. Additional Session's Judge, after hearing the parties, by the impugned judgment held that it is incorrect to say that FIR was ante- timed or was lodged after due deliberation. The charges against the appellants were fully proved by eye witnesses Km. Pooja Pandey and Smt. Vineeta Pandey (PWs-5 and 6). There is no contradiction between their statements on material facts. On these findings, he convicted the appellants under Section 147, 148, 302/149, 504 IPC. Pintoo Shukla and Anjani Kumar were also convicted under Section 25 of Arms Act, 1959 and sentenced as mentioned above. Hence, the aforesaid appeals have been filed.
13. The counsels for the appellants submitted that in FIR, which was allegedly lodged on 16.10.2003 at 21:55 hours, it has been mentioned that the dead bodies of Smt. Kirta Pandey, Pankaj Pandey and Pawan Pandey were lying on the spot. This fact is disproved as the Inquest of these dead bodies were conducted in morning on 17.10.2003 at Ursala Hospital. The police in collusion with the informant changed the place of occurrence. Main gate of District jail was at a distance of 20 paces while Reserve Police Line was at a distance of 30 paces, where arm guards are deputed on duty at 24 hours. In District jail compound, not only there was quarters for the constables but quarter of officers were also there, where several persons were residing, but no independent witness was either produced in Court or even interrogated by the police. It appears that it was a night incident and the dead bodies were brought to Ursala Hospital by unknown persons, from where information was given to the police station. Thereafter, the informant was called from other place and FIR was lodged ante-timing it as 16.10.2003 at 21:55 hours. In FIR, the sentence “Public law and order has been disturbed and terror has been created all around the locality” has been used. This was not a language of a common man rather it was language of the police personnel; from which it is proved that FIR was lodged with due deliberation of police. By the time of lodging FIR, the real assailants were unknown. Entire family of the appellants have been falsely implicated in this case due to suspicion as in the year 2001, when Smt. Kirta Pandey was transferred to District Jail Kanpur Nagar, she was accommodated by Munindra Shukla in his official quarter for some period and she was thereafter forcibly ejected as the marriage of his daughter was scheduled in the meantime. It has been specifically denied by the appellants that they had never kept dog and goats at his official quarter nor there was any dispute in respect of dirt created by his dog and goats. No evidence in this respect has been adduced by the prosecution. The incident is allegedly took place inside the compound of residential colony of district Jail, where several quarters existed. Motive of the incident, in which triple murder was caused, is very week. A person in government service will never take such a harsh step in respect of dispute in keeping pets and creating dirt by them as dirt of the pet may be objected by all the residents of official accommodation and not only one person. There were contradictions in the statements of Km. Pooja Pandey and Smt. Vineeta Pandey (PWs-5 and 6), on material particulars and their conducts were unnatural which make their presence on the spot as highly doubtful. These contradictions have been illegally ignored by the Court below. It was specific case of the prosecution that only one shot was made on Pawan Pandey. Km Pooja Pandey has specifically denied use of any other weapon. Pawan Pandey sustained lacerated wound, which is unexplained and makes entire story doubtful. There is no independent witness of the recovery of pistols and cartridges. Recovery was made from a public park situated inside the city. Th recovery is liable to be disbelieved. The conviction of Pintoo Shukla and Anjani Kumar under Section 25 of Arms Act, 1959 is illegal.
14. We have considered the arguments of counsel for the parties and examined the record. Incident is alleged to have taken place on 16.10.2003 at 9:15 PM and FIR was lodged at 21:55 hours on the same day. Distance of police station from the place of occurrence is one KM. After lodging FIR, the police visited the spot on official jeep, which would hardly take 5 to 10 minutes. All the three deceased sustained single gun shot injury on their vital part. Inspector Babu Ram Verma (PW-8), who visited the spot within one hour of the incident, stated that when he reached the spot, the mob present there asked him to send the injured to hospital. On which all the three injured were boarded in official jeep and sent to Ursala Hospital, which was nearest hospital of the locality. His statement has been corroborated by the statement of SSI D.K. Sharma (PW-9). Only for the reason that the dead bodies were shifted to Ursala Hospital, it cannot be said that the place of occurrence is not proved inasmuch as from statements of Km. Pooja Pandey (PW-5) and Smt. Vineeta Pandey (PW-6) and Inspector Babu Ram Verma (PW- 8), who had also recovered four empty cartridges (Ex-Ka-13) and blood stained earth (Ex-Ka-12), from place of occurrence is fully proved.
15. Incident is alleged to be have taken place on 16.10.2003 at 9:15 PM and FIR was lodged at 21:55 hours on the same day by Smt. Vineeta Pandey (PW-6), who is wife of Pankaj Pandey (the deceased). On the date of incident, Pankaj Pandey was residing in official quarter of District Jail Kanpur Nagar, which was allotted to his mother Smt. Kirta Pandey along with her, where incident had taken place. In normal situation presence of Smt. Vineeta Pandey (PW-6) on 16.10.2003 at 9:15 PM was natural and probable at that place. If the appellants denied her presence on the spot at the time of incident, then burden of proof was upon them to prove this fact. The appellants have not adduced any evidence to prove that she was somewhere else at that time. Smt. Vineeta Pandey (PW-6) has stated that she had passed Intermediate Examination. She was residing in city. Being an educated lady, she might be reading newspapers also. Using the sentence “Public law and order has been disturbed and terror has been created all around the locality” or “she came there under terror any how saving herself” in the FIR by her does not create any doubt nor on its basis it can be said that FIR was lodged with deliberation of police. FIR was prompt. The arguments that FIR was ante-timed or lodged with deliberation and consultation of police are not liable to be accepted.
16. So far as non-production of public witness, is concerned, triple murder has been caused in this incident openly. Very high degree of terror might have been created in general public. In such circumstance, it is not expected from a service class citizen in India to become witness. Only for the reason that no public witness has come forward to support the prosecution case, the interested witnesses are not liable to be disbelieved. Supreme Court in Sadhu Saran Singh v. State of U.P., (2016) 4 SCC 357, held that in these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.
17. So far as motive of the incident is concerned, in FIR it has been stated that due to creating dirt by the dog and goats of Munindra Shukla in front of the door of the deceased, some altercation with Munindra Shukla and the Smt. Kirta Pandey and her family members had taken place, about 20 days ago. Due to that reason, they kept enmity with her family. Km. Pooja Pandey (PW-5) has stated that on 16.10.2003 at 9:00 PM, her brother Pankaj had gone to market to purchase tea. Ram Awadh son of Ramesh Agnihotri was going. Pintoo asked him as to where he was going. He replied that he was going to market. Seeing Pankaj, Pintoo told to Ram Awadh to bring a shoe from market so that he would beat Pawan and Pankaj from shoe then their mind would work rightly. On which Pankaj came to his house and told these incidents to his mother that Pintoo was abusing and taunting them out side the house. At that time the accused Munindra, Pintoo and Anjani were abusing to them. Smt. Vineeta Pandey (PW-6) also in her cross-examination has stated that when they came out of their quarter, the accused Munindra, Pintoo and Anjani were abusing them. This was root cause of the incident. On the other hand, suggestion as given for false implication was very week. Km. Pooja Pandey and Smt. Vineeta Pandey (PWs-5 and 6) have admitted that when Smt. Kirta Pandey came on transfer to Kanpur, she had resided in the quarter of Munindra Shukla for a period of 2-1/2 months. Thereafter, she was allotted separate accommodation in which she had shifted. After two years of the shifting, it would be unreasonable to implicate the appellants in triple murder case, escaping the real assailants. The motive for the incident is proved.
18. In order to prove the charges against the appellants, the prosecution examined Km. Pooja Pandey and Smt. Vineeta Pandey (PWs-5 and 6) as the eye witnesses. Km. Pooja Pandey (PW-5) is daughter of the deceased Smt. Kirta Pandey. At the time of incident, she was unmarried and aged about 19 years. Her presence in night at 9:15 PM at her house is most probable. She stated that Smt. Kirta Pandey, her mother was posted as 'bandi-rakshak' at District Jail Kanpur Nagar. The deceased Pankaj Pandey and Pawan Pandey were her brothers. Smt. Vineeta was her sister-in-law. At the time of occurrence, her mother Smt. Kirta Pandey, brothers Pankaj and Pawan and her sister-in-law Vineeta were residing in official accommodation at Jail Colony, Kanpur Nagar, which was allotted to her mother. She fully recognized Munindra Shukla, Pintoo Shukla and Anjani Shukla, present in the court and Km. Rubi and Smt. Madhuri not present in the court. Munindra Shukla was posted as 'bandi-rakshak' at District Jail Kanpur Nagar, was also residing in same compound. Their quarters were facing each other. The accused used to keep enmity due to creating dirt by the dog and goats of Munindra Shukla in front of her door. About 20 days ago, when she was sweeping at her door, she found dirt created by the dog and goats of Munindra Shukla. She made a complaint to the wife of Munindra Shukla in this respect on which Km. Rubi and her mother Smt. Sarvesh came out and began to abuse her. Hearing noise, his mother and sister-in-law also came out and some altercation started between them. In the meantime, Munindra Shukla also came and began to abuse. Her brother Pankaj came and involved in abusing. The peoples present there pacified the matter and asked Munindra Shukla to keep tied his dog and goats. Due to that reason, Munindra Shukla began to keep enmity with her family. Her mother also gave an application to the higher authorities for changing her quarter or transfer either of them. On 16.10.2003 at about 9:00 PM, her brother Pankaj had gone to market to purchase tea. Ram Awadh son of Ramesh Agnihotri was going. Pintoo asked him as to where he was going. He replied that he was going to market. Seeing Pankaj, Pintoo told to Ram Awadh to bring a shoe from market so that he would beat Pawan and Pankaj from shoe then their mind would work rightly. On which Pankaj came to his house and told these incidents to his mother that Pintoo was abusing and taunting them out side the house. At that time the accused Munindra, Pintoo and Anjani were abusing to them. Her mother and both brothers Pankaj and Pawan and her sister-in- law Vineeta came out of her house. Her mother asked them, why they were abusing; she had given application. Either she would be transferred or her quarter would be changed. When altercation was going on, it was at about 9:15 PM, at that time Km. Rubi and Madhuri also came out. Then the accused Munindra Shukla, his elder son Pintoo and younger son Anjani brought out the pistols and said to kill. Munindra and his sons opened fire on her brothers Pankaj and Pawan, which caused injuries to them and they fell down. Her mother fled away from that place then Rubi daughter of Munindra dragged her. When her mother dragged Rubi then she fell down. When her mother fled away then Munindra Shukla and Pintoo Shukla fired upon her, which caused injury to her mother and she fell down. She did not notice as to whether she had died or alive. The accused ran away from the spot, giving warning that if any one would give evidence, then would face same consequence. Then she found that her mother and brothers had died. After the incident, her sister-in-law scribe the FIR.
In cross-examination, she stated that Pawan was not assualted from any other weapon. She did not touch her mother and brother after felling down. The accused brought out their pistol from the fat of their pants. She has given details of source of light on the spot.
19. Smt. Vineeta Pandey (PW-6) was aged 29 years and wife of Pankaj Paney (the deceased). She stated that at the time of incident, she was present at the official quarter of her her-in-law as entire family was residing there. She stated that the accused Munindra Shukla, Pintoo, Anjani, Km Rubi and Smt. Madhuri were residing in front of her house in neighbourhood. Before 20 days of the incident, due to creating dirt by the dog and goats, some altercation with Munindra Shukla and her family members had taken place, due to that reason, the enmity was developed between them. On 16.10.2003 at about 9:15 PM, Munindra Shukla, Pintoo Shukla and Anjani Kumar were abusing her family members, taking their names. At that time, her mother-in-law Smt. Kirta Pandey, her husband Pankaj Pandey, devar Pawan Pandey and nanad Km. Pooja Pandey were present at their house. On the abuses, they came out from her house and tried to pacify them. In the meantime Madhuri wife of Pintoo and his sister Rubi also came. As soon as they came, Munindra Shukla and Anjani Kumar opened fire from their country- made pistols, which caused injury to her husband Pankaj Pandey and devar Pawan Pandey. Her mother-in-law fled away from that place then Madhuri wife of Pintoo and Rubi his sister began to push her mother-in- law and exhorted to shoot her. On which, they fired upon her, which caused injury to her and she died on the spot. On the spot, electric bulb were lightening and in the light of it she had recognized the accused. After causing incident, the accused stayed on the spot and threatening that if any one would say any thing against them, then he would suffer same consequences.
In cross-examination, she stated that Munindra had kept one dog and 2-3 goats and used to set free them for wandering. They they used to create dirt. Information of the incident of quarrel took place 20 days earlier was given to Superintendent of Jail. She denied that her mother- in-law had assaulted any detenue of jail of which any complaint was made by the family members of the detenue to Human Right Commission.
20. Km. Pooja Pandey (PW-5) stated that Munindra Shukla, his elder son Pintoo and younger son Anjani brought out the pistols and said to kill. Munindra and his sons opened fire on her brothers Pankaj and Pawan, which caused injuries to them and they fell down. While Smt. Vineeta Pandey (PW-6) stated that Munindra Shukla and Anjani Kumar opened fire from their country-made pistols, which caused injury to her husband Pankaj Pandey and devar Pawan Pandey. Her mother-in-law fled away from that place then Madhuri wife of Pintoo and Rubi his sister began to push her mother-in-law and exhorted to shoot her. On which, they fired upon her, which caused injury to her and she died on the spot. Role of firing has not been assigned to Pintoo Shukla by Smt. Vineeta Pandey, but his involvement in the dispute was proved.
21. So far as involvement of Smt. Madhuri and Km. Rubi is concerned, Km. Pooja Pandey (PW-5) stated that when altercation was going on, it was at about 9:15 PM, at that time Km. Rubi and Madhuri also came out. When her mother fled away from that spot, then Rubi daughter of Munindra dragged her. When her mother dragged Rubi, she fell down. When her mother fled away then Munindra Shukla and Pintoo Shukla fired upon her, which caused injury to her mother and she fell down. Smt. Vineeta Pandey (PW-6) stated that when the altercation was going on Madhuri wife of Pintoo and his sister Rubi also came there. Her mother-in-law fled away from that place then Madhuri wife of Pintoo and Rubi his sister began to push her mother-in-law and exhorted to shoot her. On which, they fired upon her, which caused injury to her and she died on the spot. The prosecution did not prove that any injury was sustained by Km Rubi in this incident as such allegation of Km. Pooja Pandey (PW-5) that Rubi fell down and received injury is not proved. Statement of Smt. Vineeta Pandey (PW-6) that Madhuri wife of Pintoo and Rubi his sister began to push her mother-in-law and exhorted to shoot her; on which, they fired upon her, which caused injury to her and she died on the spot, is concerned dead body of Smt. Kirta Pandey was found in eastern side of the dead bodies of her sons Pankaj and Pawan. The quarter of Munindra Shukla was towards west of that place. When firing was going on then it does not appear probable for Smt. Madhuri and Km. Rubi to enter the area where firing was going on and push/drag Smt. Kirta Pandey. Statements of Km. Pooja Pandey (PW-5) and Smt. Vineeta Pandey (PW-6) are not consisted in respect of involvement of Smt. Madhuri and Km Rubi. Their involvement in the incident is not proved beyond reasonable doubts.
22. In order to attract the provision of Section 147, 148 and 149 IPC, five or more persons must have formed unlawful assembly. Relevant provision is quoted below:-
Section 141. Unlawful assembly. —An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is— First.—To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second.—To resist the execution of any law, or of any legal process; or Third.—To commit any mischief or criminal trespass, or other offence; or Fourth.—By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.—By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.—An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
23. Supreme Court in Chanda v. State of U.P., (2004) 5 SCC 141, has held that the crucial question to determine 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 in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word “object” means the purpose or design and, in order to make it “common”, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression “in prosecution of common object” as appearing in Section 149 has to be strictly construed as equivalent to “in order to attain the common object”. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly.
24. In State of Rajasthan v. Shiv Charan, (2013) 12 SCC 76, has held that the pivotal question of applicability of Section 149 IPC has its foundation on constructive liability which is the sine qua non for its application. It contains essentially only two ingredients, namely, (I) offence committed by any member of any unlawful assembly consisting five or more members and; (II) such offence must be committed in prosecution of the common object (Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. It is not necessary that for common object there should be a prior concert as the common object may be formed on the spur of the moment. Common object would mean the purpose or design shared by all members of such assembly and it may be formed at any stage. Even if the offence committed is not in direct prosecution of the common object of the unlawful assembly, it may yet fall under the second part of Section 149 IPC if it is established that the offence was such, as the members knew, was likely to be committed. For instance, if a body of persons go armed to take forcible possession of the land, it may be presumed that someone is likely to be killed, and all the members of the unlawful assembly must be aware of that likelihood and, thus, each of them can be held guilty of the offence punishable under Section 149 IPC. The court must keep in mind the distinction between the two parts of Section 149 IPC, and, once it is established that the unlawful assembly had a common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act, rather they can be convicted for vicarious liability. However, it may be relevant to determine whether the assembly consists of some persons which were merely passive witnesses and had joined the assembly as a matter of ideal curiosity without intending to entertain the common object of the assembly. However, it is only the rule of caution and not the rule of law. Thus, a mere presence or association with other members alone does not per se be sufficient to hold every one of them criminally liable for the offence committed by the others unless there is sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act, being a member of unlawful assembly as provided for under Section 142 IPC. It may also not be a case of group rivalry or sudden or free fight or an act of the member of unlawful assembly beyond the common object.
25. From the aforesaid discussion, offence under Section 147, 148 and 149 IPC are not made out.
26. Investigating Officer did not record, confessional/disclosure statements of Pintoo Shukla and Anjani Kumar separately nor it was produced in the Court or got it exhibited. Thus recovery of country-made pistol and cartridges on the pointing out of Pintoo Shukla and Anjani Kumar was not proved in accordance with law. Their conviction under Section 25 of Arms Act, 1959 is also illegal and liable to be set aside.
27. In view of the aforesaid discussions, Criminal Appeal No. 3113 of 2009 (Munindra Shukla and others Vs. State) is partly allowed and Criminal Appeal No. 5762 of 2005 ( Km. Rubi Shukla & Another Vs. State) is allowed. Conviction and sentence of Munindra Shukla, Pintoo Shukla and Anjani Kumar under Section 147 and 148 IPC and conviction and sentence of Smt. Madhuri Shukla and Km. Rubi Shukla under Section 147, 148, 302/149, 504 IPC, passed by Additional Session's Judge, Court No. 6, Kanpur Nagar, dated 14.12.2005/16.12.2005, in S.T. No. 9 of 2004, State vs. Munindra Shukla and others, (arising out of Case Crime No. 366 of 2003, under Section 147, 148, 149, 302, 504/34 IPC, P.S. Kotwali, district Kanpur Nagar) are set aside. Conviction and sentence of Pintoo Shukla and Anjani Kumar under Section 25 of Arms Act, 1959 passed by Additional Session's Judge, Court No. 6, Kanpur Nagar, dated 14.12.2005/16.12.2005, in S.T. No. 10 of 2004, State vs. Anjani Kumar, (arising out of Case Crime No. 372 of 2003, under Section 25 Arms Act, 1959, P.S. Kotwali, Kanpur Nagar) and S.T. No. 11 of 2004, State vs. Pintoo Shukla, (arising out of Case Crime No. 371 of 2003, under Section 25 Arms Act, 1959, P.S. Kotwali, Kanpur Nagar), are also set aside. Conviction and sentence of appellants Munindra Suhkla, Pintoo Shukla and Anjani Kumar under Section 504 IPC passed by Additional Session's Judge, Court No. 6, Kanpur Nagar, dated 14.12.2005/16.12.2005, in S.T. No. 9 of 2004, State vs. Munindra Shukla and others, (arising out of Case Crime No. 366 of 2003, under Section 147, 148, 149, 302, 504/34 IPC, P.S. Kotwali, district Kanpur Nagar) is upheld. Their conviction under Section 302/149 IPC is modified to Section 302/34 IPC. Sentence passed under Section 302/149 IPC shall be treated under Section 302/34 IPC. All the sentences were directed to run concurrently. The appellants in Criminal Appeal No. 5762 of 2005 ( Km. Rubi Shukla & Another Vs. State) namely Smt. Madhuri Shukla and Km. Rubi Shukla be set at their liberty forthwith.
Order Date :- 29.8.2018 Rahul/-
[Umesh Chandra Tripathi, J.] [Ram Surat Ram (Maurya),J.]