Namo Narayan Upadhyaya & Others vs State Of U.P.

Hon'ble Jayashree Tiwari, J.

(Delivered by Hon'ble Imtiyaz Murtaza, J.) Both the above appeals have been preferred against the judgement and order dated 3.7.2003 passed by Special Judge/Addl. Sessions Judge Court No. 7 Ballia in S.T. No. 269 of 2001 whereby the appellants have been convicted under sections 147, 148, 323 I.P.C. read with 147, 324 read with 149 I.P.C. and sentenced to undergo imprisonment for one year each and under section 325 I.P.C. read with 149 I.P.C. and sentenced to suffer imprisonment for two years attended with fine of Rs. 200/- with default stipulation ie to suffer further simple imprisonment for one year each. The appellants have been further convicted under section 302/149 I.P.C and sentenced to undergo imprisonment for life attended with fine of Rs. 500/- and in default of payment of fine, to suffer simple imprisonment for one year. All the sentences were ordered to run concurrently.

The author of the FIR is one Dadan Ji Tiwari. The deceased is one Kalka Tiwari, father of the complainant. The occurrence took place in the disputed field situated in village Bighi PS Bansdeeh Road District Ballia over which, it is stated, both the parties were horn-locked in litigation. According to the prosecution case, on the day of occurrence i.e. 6.5.2001 at about 11 a.m, the appellant Namonarayan Upadhyaya alongwith others came at the the disputed field atop a tractor and started uprooting onion crop sown on side of the field with the avowed intention of ploughing the field and when the acts of the appellants were resisted by the complainant and the persons present with him, the appellants initially used filthy language and thereafter mounted assault using Lathi and Ballam on the complainant. In the meantime, appellant Namo Narayan came forward and exhorted Santosh to run the tractor over the complainant and others and upon being exhorted, the aforesaid Santosh started the tractor which was painted red and ran the same over the deceased, father of the complainant who died instantaneously. The occurrence it is further alleged, was witnessed by many people of the village including Rajnath Tiwari, and Vijai Narayan Tiwari. After committing occurrence, it is further alleged, the accused persons ran off on tractor towards their village Kripalpur.

The report was lodged at police station on 6.5.2001 at 12.45 p.m. After the registration of the F.I.R. S.I. Mohd. Saeed, S.H.O. Police Station Bansdeeh Road commenced investigation. To begin with, he recorded the statement of first informant Daddan Ji Tiwari and his brother Madan Ji Tiwari and also visited the place of occurrence alongwith S.I. Jagdish Yadav, constable subhash, constable Ram Awadh Prajapati, Constable Dinesh Kumar. On his direction, inquest was prepared by S.I. Jagdish Ydava, which is Ext. Ka-2. The dead body was sealed and handed over to constable Lallan Sonkar and constable Awadhesh Behari Rai for autopsy. He also referred injured persons to District Hospital for medical treatment. He collected blood stained and plain earth from the place of occurrence and prepared its recovery memo which is Ext. Ka 14. In the presence of the first informant and his brother Madan Ji Tiwari site plan, (Ext. Ka-15) was prepared. He recovered the Mahindra Tractor which was parked inside the house of Surya Deo Tiwari of which front right wheel was missing and the recovery memo was prepared (Ext. Ka-3). He also prepared the site plan of the place where from Tractor was recovered (Ext. Ka-16). On 7.5.2001 Shiv Nand Yadav was arrested. One of the accused namely Anand who was deaf and dumb, was apprehended by the people and handed over to the police vide report no. 21 at 7.05 p.m. (Ext. Ka-17). He arrested accused vide memo Ext. Ka-18 and sent him for medical examination. The statement of injured Dharmendra Tiwari was recorded in District Hospital Ballia. On 8.3.2001, statement of witnesses Ram Nath Tiwari and Vijay Narayan Tiwari was recorded. After receipt of X-ray examination report of Daddan Ji Tiwari and Dharmendra Tiwari on 10.5.2001, section 325 I.P.C. was added. The relevant papers for the post mortem examination, letter to R.I., sample seal, photo lash and letter to C.M.O. were prepared, which are Ext. Ka 19 to 22. After concluding the investigation, the police submitted the charge sheet which is Ext. Ka-23. After submission of charge sheet, the case was committed to the court of Sessions. The Sessions Judge had framed charges under section 147, 148, 323/147, 325/147, 324/149, 307/149, 504, 506 and 302/149 I.P.C.

The prosecution in order to prove its case, had examined in all ten witnesses. P.W. 1 Daddan Ji Tiwari, P.W. 2 Dharmendra Tiwari, P.W. 3 Vijay Narayan Tiwari, eye witnesses of the occurrence, P.W. 4 Dr. D. Rai, who conducted the post mortem on the dead body of Kalika Tiwari, P.W. 5 Dr. K.C. Rai who had conducted the X-ray Examination of injured, P.W. 6 S.I. Jagdish Yadav, conducted inquest proceedings, P.W. 7 Constable Lallan Prasad Sonkar, escorted the dead body for post mortem examination, P.W. 8 Dr. C. I. Raza, examined the injured, P.W. 9 Miraj Ahmad Khan proved chik F.I.R. and P.W. 10 S.I. Mohammad Saeed, investigating officer of the case.

The case of defence was one of denial and false implication. The defence did not examine any witness in support of its case.

The Sessions Judge after considering the evidence adduced by the prosecution convicted the appellants, hence this appeal.

We have heard Shri Satish Trivedi, Senior Counsel assisted by Shri M.P. Yadav and Dr. Abida Syeed, learned counsel for the appellants, and Smt. Usha Kiran, learned A.G.A. for the State.

Learned counsel for the appellants has criticised the findings of the trial court inter-alia on the grounds that the prosecution failed to prove its case beyond reasonable doubt and the Sessions judge has wrongly placed reliance on the testimonies of the witnesses whose presence was highly doubtful attended with submission that the Sessions Judge has wrongly convicted all the appellants under section 302/149 I.P.C. The counsel appearing for the appellant Santosh Upadhyaya argued that the land in dispute belonged to them and Kalika Tiwari had lost from all courts. Ultimately, he submitted that it was a case of sudden provocation and the appellant had exercised their right of private defence of property. Per contra, learned A.G.A. canvassed for the correctness of the view taken by the trial judge.

In order to appreciate rival contentions of learned counsel for the parties it is necessary to examine the evidence brought on record by the prosecution.

P.W. 1 Daddan Ji Tiwari, first informant, deposed that his agricultural property admeasuring one acre and 24 Bighas lay at a distance of one and half km on west southern side of the village bearing revenue arazi no 888. He further deposed that at the time of the occurrence, there was some revenue case pending between Nathurni Tiwari and Suraj Deo Tiwari and Shyam Sunder Upadhyay. After the death of his grand father, Kalika Tiwari was prosecuting the case and on account of that litigation, Shyam Sunder Upadhyay, Namo Narayan Upadhyay and his family members were at loggerhead. It is further deposed that in the above mentioned field, Namo Naryan and others wanted forcible possession of 62 decimal of land which was subject matter of litigation pending before the Commissioner, Varanasi. Santosh Upadhyay, it is further deposed, had sown onion and wheat crops in the said land measuring 62 decimal. In the land which was in their possession, onion and wheat crop had been sown. It is further deposed that on the day of occurrence at about 11 am, he, his father Kalika Tiwari, brother Madan Ji Tiwari and Dharmendra Tiwari had gone to dig out onion from their plot. On reaching the field, they saw Namo Narayan Upadhayay, Shyam Sunder Upadhyay, Radheyshyam Upadhyay and Santosh Upadhyay and one boy who was dumb whose name he did not know and one Sanjay Upadhya and Shivanand Yadav of their group armed with Lathi and spear who were engaged in digging out onion using tractor upon which he and his father, brother Madan and Dharmendra asked to desist from digging onion. Instead of heeding to them, appellant Namo Narayan, exhorted Shivanand Yadav who was armed with Bhala, Shyam Sunder who was armed with Danda and Radhey Shyam and Goonga (Deaf and dumb fellow) and Sanjay who were armed with Danda and Santosh Upadhyay who was drivier's seat in the Tractor, charged on them assaulting him, his father, brother Madan and Dharmendra. His father sustained Bhala injuries and fell down. Thereafter, Namo Narayan exhorted Santosh to crush his father under the Tractor. Santosh who was driving Tractor having plough ran the same over his father by Tractor who died on the spot. Apart from his father, his brother Madan Tiwari also sustained injuries inflicted by Bhala while he and his brother sustained Lathi injuries. The incident, it is deposed. was witnessed by Vijay Tiwari, Rajnath Tiwari. One front wheel of the Tractor was broken. The accused persons escaped to their village Kripalpur alongwith the vehicle. After the incident he alongwith his brother Madan Tiwari came back to his house and dictated the report which was scribed by Mukteshwar Tiwari and after reading the same he affixed his signatures, which is Ext. Ka-1. He lodged the report at police station Bansdeeh Road. After recording his statement, inquest on the dead body of his father was prepared and the dead body was dispatched for post mortem examination. He alongwith his brother Madan Tiwari and Dharmendra were referred to District Hospital Ballia and they were admitted and medically examined there.

In the cross examination, explaining his presence in village, he deposed that on 4.5.2001, he came to his village on leave. The field in which incident occurred lay at a distance of one and half km. from his village and the field bears revenue No 888. He admitted that he had mentioned the same number in his report also and further explained that at that time he was not aware of the number, and therefore, it was not mentioned. After the incident, he stated, his statement was recorded at the police station same day. He could not recollect whether he had mentioned the number of the field as 888. Then again, he corrected himself saying that he had told the number of field explaining further that if it was not mentioned in his statement, he could not tell the reason. In connection with the field in dispute, it has been stated that a litigation was being slugged out between his family and accused persons. He also stated that it was not within his knowledge whether in the field in dispute, the accused Santosh had taken 62 decimal through Benami or not. It is further stated that the revenue case was filed by Santosh regarding plot no. 888 and that his father was doing pairvi of the case. He expressed his ignorance about the nature of the litigation and also about the fact whether in respect of piece of land admeasuring 62 decimal land in plot no. 888, name of Santosh has been entered in the revenue record. He further stated that he had mentioned the fact in the report that after the death of his grand father, his father Kalika Tiwari was doing pairvi of the said case explaining further that If this fact was not mentioned in the report, he could not tell the reason attended with further statement that he had also told this fact to the police. He expressed his ignorance whether in the revenue case Namo Narayan was a party or not but he clarified that he was also one of his family members. He further expressed his ignorance whether in the revenue case, Radhey Shyam was also a party or not. He did not know whether Shyam Sunder Upadhyay was suffering from paralysis and was disabled. However, he minced no words to say that he was quite able to move about. He emphatically denied the suggestion that Radhey Shyam was unable to walk about. He again expressed his ignorance whether accused Anand was deaf and dumb and was also mentally retarded person. He also expressed his ignorance about the fact whether at that time, Sanjay was in service or not but he asserted that he was present at the place of occurrence. He could not tell the reason as to why the charge sheet was not been submitted against him. He conceded the fact that he did not mention in the report that in the said field Namo Narayan and others were taking forcible possession of his 62 decimal land but at the same time, explained that he was not fully aware of the facts in respect of the said field. The total area of plot no. 888, it is stated, admeasured one acre and 24 decimal. In the said field out of an area of 62 decimal on the east and northern side, in an area of 6 decimal onion was grown while in an area of 56 decimal, wheat had been sown by Santosh. He clarified that it was this piece of land belonging to him which was in dispute and the case was still pending in the court of Commissioner. At the time of sowing of onion, he stated, he was not present but stated that at the time of digging of onion, he had gone to the field and had reached there around 11 a.m. When they reached the field, they saw accused persons digging onion in their fields and that by that time they were able to dig the onion in a small area of the field. He conceded that this fact was not told to the Investigating officer. He also conceded that this fact was also not mentioned in the report. He also stated that the Investigating officer had arrived at the scene of occurrence alongwith him and that he had shown him the place from where the onion was being dug out. He further stated that the revenue case was being slugged out between Nathuni Tiwari, Suraj Deo Tiwari and Santosh accused. Shyam Sunder, Namo Naryan and Radhey Shyam were all members of one family. He expressed his ignorance whether there was a family partition or not. He stated that on the day of occurrence, the Investigating officer had arrived at the place of occurrence around 1-2 p.m. and he prepared some note but explained that his signatures were not obtained on the said note. He also stated that the accused persons had dug out onion by ploughing tractor. The quantity of onion dug out was stated to be about two bundles. He also stated that at the time when he and his family members were busy digging out onion from their field, the accused persons had also arrived there in that field and that before their arrival, he and his family members had already dug out some quantity of the onion. He also stated that he had told this fact to the Investigating officer and upon being told, the investigating officer had made some note but he did not obtained his signatures on the said note. He also stated that the accused persons were seven in number and one of the accused was Shivanand Yadav a native of Katahi while the remaining accused person belong to Kripalpur and that two of the accused persons were carrying Bhala and that the Tractor was driven by Santosh while the remaining accused were carrying Lathi. He also stated that before embarking upon ploughing of the field by Tractor, the accused mounted assault on his father at the same time, hurling abuses. He stated that he could not count the lathi injuries inflicted on his father. He however stated that his father had sustained 2 - 3 Bhala injury on his right waist.

In the cross examination continued on 20.8.2002, the witness stated that for the first when his attention fell on tractor, it was at a distance of about 10 meters from his field and at that time, accused Santosh was ploughing his own field situated on east south side. When he had seen for the first time, he initially stated that Santosh was not ploughing his field but soon, he corrected himself saying that he did not know whose field was being ploughed. He explained that the occurrence did not take place in the onion field of Santosh but it took place in his onion field. He denied the suggestion whether apart from 62 decimal field in which Santosh had sown onion, there was no other field having onion crop but the said crop was in his field admeasuring 6 decimal. He also stated that his father had fallen after receiving Ballam and Lathi injuries in the field bearing revenue no 888 in the west north corner in which there was crop of onion and the investigating officer had collected blood stained earth from the said field. He also stated that it was in this field that the wheel of tractor fallen apart which the accused had taken away. He conceded that the fact of broken wheel was not mentioned in the report explaining that he was too distraught at that time. He also stated that this fact was mentioned to the investigating officer but he could not tell whether this fact was noted by the investigating officer or not and if not he could not tell why. He denied the suggestion that on being advised by the lawyer, he mentioned the fact of breaking apart of the front wheel of the Tractor. He denied the suggestion that at the time of occurrence, the Tractor was not in working condition. He conceded the fact that he did not specify which of the accused was carrying Danda and which of them was carrying Lathi. He explained that he had mentioned in his statement recorded by the investigating officer that Shivanand Yadav and Namo Narayan were carrying Bhala further stating that if this fact is not mentioned he could not tell the reason. He denied the suggestion that by that time, he could not sure which of the accused was carrying Bhala. He conceded that in his report he did not specify the roles as to who inflicted Bhala injury. His statement was recorded by the investigating officer at the police station. He stated that he did mention the names of the persons who had sustained Bhala injury at the time of recording of statement by the investigating and that if this fact was not mentioned he could not tell the reason. He stated that he had reached his house within 10 to 15 minutes having started from the place of occurrence at about 11 am and thereafter he left for police station from his house at about 11.30 a. reaching the police station at about 12.45 p.m. He also stated that he had gone to police station alongwith his his brother and Mukteshwar Tiwari, who was also the scribe of the report. He however stated that he and his brother Madanji Tiwari were not sent for medical examination from the police station but after completion of formalities at the police station, the investigating officer left for police station alongwith him and his brother and reached the place of occurrence at about 1.30 pm and at that time, the dug out onion and ploughed field was found and there was also rutted tyre signs of the tractor. He had also shown the field with onion dug out by ploughing of tractor and the run over dead body of his father. He expressed his ignorance whether the investigating officer had noted down the aforesaid facts. From the place of occurrence, he alongwith investigating officer and others had left for police station. He could not tell whether dead body was taken away or not. He denied the suggestion that the occurrence did not take place in the matter as set out in the report. He also denied the suggestion that he and others had sustained injuries elsewhere and in other circumstances. He also denied the suggestion that the accused persons had been falsely roped in in league with the police. The suggestion was also denied that police exaggerated his injury and injuries of his brother Madan Ji.

P.W. 2 Dharmendra Tiwari deposed that on the day of occurrence while he, his father Kalika Tiwari, brother Madan Ji Tiwariand Daddan were engaged in digging out the onion sown in their field, they saw that Namo Narayan Upadhyay, Shyam Sundar Upadhyay, Radhey Shyam Upadhyay, Santosh Upadhyay, Gunga, Sanjay Upadhyay of village Kripalpur and Shivanand Yadav of village Katahi arrived at the scene armed with Lathi and Danda and started forcibly digging out onion from the field. When they resisted them, one of the accused namely, Namo Narayan exhorted accused Shyam Sundar, Radheyshyam, Sanjay Upadhyaya, Gunga, Sanjay Upadhya and Shivnand Yadav mounted assault on his father, brother Madan Ji Tiwari and Daddan Tiwari with Lathi and Bhala. His father and brother Madan Ji Tiwari sustained Bhala injury which was wielded by Namo Narayan and Shivanand. After sustaining the Bhala injury, his father had fallen in the field and at that time Namo Narayan exhorted Santosh who was driving the Tractor to run over the Tractor on his father and acting on the exhortation Santosh Upadhyay drove the Tractor which was attached with a plough at a high speed and ran the same over his father who died instantaneously. He further deposed that in the incident he and his brother were assaulted by the accused pershons and they received injuries. The incident was also witnessed by Vijay Narayan Tiwari and Rajnath Tiwari. He alongwith Vijay Narayan and Rajnath Tiwari stayed back with the dead body of his father while Madan Tiwari and Daddan Tiwari left for police station to lodge the report. He and his brother Madan and Daddan were medically examined in District Hospital Ballia. On the next day of the occurrence, his statement was recorded by the police at the District Hospital.

In the cross examination, he deposed that he was engaged working with a society in District Bastar (Chhatisgarh) where he also carried on his study. Before his arrival at the village, he had appeared in Class XII examination from Rashtriya Vidyala, Jagdalpur. He stated that he had been living in Chhatisgarh since his childhood and that he came to the village about one day prior to the occurrence. He further stated that he was serving in a private society and that he need not take any leave formally. He was medically examined on the day of occurrence at 6.5 p.m. in Government Hospital. As regards his injury, he stated that the middle finger of his left leg was broken and that he had also sustained injury on his back and there was blackening. He explained that the written report submitted at the police station was not scribed in his presence. He expressed ignorance whether his brother had prepared the report at his house. He could not tell why his brother had not mentioned his name in the report or about the injuries sustained by him. On next day of the occurrence, X-ray examination was done in District Hospital Ballia. He also stated about the location of the field in dispute and about its measurements and also details about the field adjacent to the field in dispute. He also gave details about the crop sown in the disputed field. He also stated that the police had reached the place of occurrence on the day of occurrence itself. He also stated that when the police arrived at the scene, the wheat crop already been harvested and there was onion crop in the field. He also stated that there dispute erupted at the time of harvesting of the wheat crop. He conceded that Santosh also owned his field in plot no. 888 but which side it is situated he could not tell. He did not know the area of the field of Santosh. He denied knowledge whether Santosh and Namonarayan lived together or in separate houses explaining further that since they belonged to different village and he had not seen the house of the accused. He also stated that the accused persons were not known to him from prior to the occurrence. On the date of occurrence he stated, he alongwith others were engaged in digging out the onion from 10.30 a.m. or 10.45 a.m and they were four in number. The digging was done for about 10 minutes and whatever onion had been dug out it was collected at a place in the field. They had dug the onion for about 10 minutes and thereafter they collected at one place in the field. The onion was dug out from a portion of the field situated on the northern side by the side of chak road. while it was kept at a corner situated on the northern side and it was also the place of occurrence. He stated that he had mentioned this fact to the investigating officer and if this fact was not noted down by the investigating officer, he could not tell any reason for the same. On that day, he further stated, he alongwith his father Kalika Tiwari, brother Madan Tiwari and Daddan Ji were collecting the onion which was taken out from their field. He did not know the reason as to why Investigating officer did not mention it in his statement. He did not know that Shyam Sunder Upadhya was a paralytic patient or not but he was present at the time of occurrence. He denied the suggestion that Shyam Sunder Upadhyay being a paralytic patient was unable even to stand on his leg and he stated that he was standing there carrying lathi. He did not see whether he was standing with the support of lathi or not. The height of Shyam Sunder Tiwari is about 5 fit and his colour complexion is wheatish. Sanjay was also present there followed by the statement that he did not know whether he was serving in military. He did not know whether Sanjay Upadhyay was charge sheeted or not. The accused Gunga was a dumb but he was not deaf. He however stated that he had no occasion of having talk with Gunga. He stated that all the accused persons were digging out onion from their field and they called upon the accused persons to desist. Initially, he stated that the accused were taking out onion from the southern side of their field but then he corrected himself saying that they were taking out from the north west side and then again he stated that they were taking out the onion from the Tractor plough and that only one person was taking out the onion and other accused were not taking out onion. He further stated that he told only those facts which were asked by the Investigating officer. He had told Investigating officer in his statement that Radhey Shyam, Santosh Upadhyay and Gunga whose name he did not know and Sanjay Upadhyay and Shivnand Yadav of their group came togather carrying Lathi Bhala and forcibly started taking out the onion from their field and that if this fact was not mentioned in his statement he could not tell the reason. Sanjay Upadhyay was carrying a Lathi in his hand but he could not tell the number of blows inflicted by him. His father sustained two or three injuries. When his father sustained first lathi injury at that time he was north east side of chak road. After sustaining first lathi blow his father did not fell on the ground but he fell down after sustaining Bhala injury. He had fallen near the chak road. He had told Investigating officer that his father fell on the ground after sustaining injury caused by Namo Narayan and Shivanand Yadav by Bhala. If this fact is not mentioned in his statement he could not tell the reason. Investigating officer did not ask him the names of the persons who were carrying Lathi and who were carrying Bhala, therefore he did not specify. He did not tell Investigating officer that Sanjay assaulted his father with Lathi explaining that he was not asked about it by the investigating officer. He could not tell the number of Lathi blows inflicted by Sanjay Upadhyay. At the time of occurrence Tractor was at a distance of 10 meters from the place of occurrence on the north west side. Only his father sustained injury by Tractor and no one else explaining further that the accused also tried to run them over by tractor but at about the same time, right wheel of the tractor fell apart and taking the fallen wheel, the accused persons escaped with tractor. On being queried he stated that this fact was not specifically asked. After the occurrence, the accused ran off towards their village. On being asked, he stated that he did pay heed to the fact whether the tractor had left its tyre marks of three wheels or four wheels in the field or not. When Investigating officer reached the place of occurrence he was shown the marks of the wheels of Tractors, explaining further that his brother and other villagers had drawn attention of the Investigating officer to the marks of the wheels of the Tractor. He denied the suggestion that this occurrence did not take place in the manner as set out. He also denied the suggestion that he had given a concocted version after consulting legal opinion. He further denied the suggestion that the accused persons have been falsely implicated on account of running feud and also to crank up pressure on the accused persons to bludgeon them into their submission. He also denied the suggestion that the injuries were sustained elsewhere and in different manner and the accused persons have been falsely nominated.

P.W. 3 Vijay Narayan Tiwari deposed that on the day of occurrence, he was going alongwith Raj Narain Tiwari of his village on chak road and when he reached near the field of Kalika Tiwari, they saw that onion crop sown in the field of Kalika Tiwari was being uprooted by Namo Narain, Radhey Shyam, Shyam Sunder, Sanjay Upadhyay, Santosh Upadhyay and Shivanand Yadav and one person who was dumb. Namo Narain and Shivanand, he deposed, was carrying Bhala while the other accused persons, apart from Santosh, were carrying Lathi. Santosh was driving the Tractor. In the meantime, Kalika Tiwari Daddan, Madan and Dharmendra resisted the accused persons upon which the accused persons mounted assault on them. He further deposed that as a result of assault, Kalika Tiwari, Madan, Daddan and Dharmendra sustained injuries. He pinpointed that Kalika Tiwari and Madan sustained Bhala injury while Daddan and Madan sustained Lathi injury. After sustaining Bhala injury, Kalika Tiwari fell on the ground. In the meantime, Namo Narain exhorted Santosh to crush him under the Tractor and he ran the Tractor over Kalika Tiwari who died on the spot. Thereafter, accused persons ran away towards their house alongwith Tractor. Apart from him, he further deposed, the occurrence was witnessed by Rajnath Tiwari. After the incident Madan and Daddan went to lodge the report to the police station while he, Rajnath and Dharmendra stayed back there looking after the dead body of Kalika Tiwari. Several persons including Mukteshwar Tiwari, Ramji Tiwari, Surendra Tiwari and Raju Singh and others gathered at the scene He also deposed that the Police of police station Bansdeeh Road arrived at the place of occurrence between 1.45 to 2 pm. The Investigating officer prepared the inquest on the dead body of Kalika Tiwari and he alongwith Surendra Tiwari, Mukteshwar Tiwari, Raju Singh and Ramji Tiwari affixed his signatures on the inquest report. He attested to the inquest report which is marked as Ext. Ka-2. Thereafter, the Investigating officer left in search of tractor accompanied by him and Raju which was parked on the Parti land of Muwali Upadhya. The Investigating officer seized the Tractor under a recovery memo which was signed by him, ( Ext. Ka-3). The Investigating officer had also interrogated him about the incident.

In the cross examination, he stated that his house lay at a distance of 100 yards from the house of Kalika Tiwari. He further stated that Kalika Tiwari had six sons. The witness further stated that he was married in village Janarhi in the house of Gopal Pandey. He further stated that none of the sons of Kalka Tiwari was married either in the family of Gopal Pandey or anywhere in village Janarhi. He explained that he was an agriculturist by profession. Explaining his presence on the scene of occurrence, he stated that on the day of occurrence, he was going on a motorcycle to deliver food to his brother namely Raj Narain Tiwari who was at that time was ploughing the field of Girja Singh by a hired tractor at a distance of 20 bighas from the place where the incident took place and that Girja Singh was present in his field but he was held up at the scene of occurrence and could not deliver food and thereafter returned to his house alongwith food. He further stated that he stayed at the place of occurrence for about 3- 4 hours. He further stated that the field of Girja Singh was visible from the place of occurrence. He further stated that neither his brother nor Girja Singh came at the place of occurrence. He also stated that no other Tractor was seen around the place of occurrence. He also stated that he had seen Tractor of Santosh which bore no registration number on his Tractor. He also stated that for the first time, he had seen the Tractor of Santoh parked on the northern side where onion was sown. At that time he was standing on the western side of chak road. He had parked his motor cycle there. On the day of occurrence, he stated, the Investigating officer had arrived around 2 O'clock and when he reached there, he prepared the site plan. He further stated that he had shown to him the place where his motor cycle was standing. On being queried, he stated that if Investigating officer did not show that place, he could not tell the reason. He also stated that he had also shown the place where the Tractor of Santosh was parked. On the day of occurrence Kalika Tiwari was present on the western side of onion field. At the relevant time, there was distance of 2- 3 steps between the Tractor and Kalika Tiwari. Kalika Tiwari was not hoeing the onion crop but it was Namo Narain who was getting the onion hoed on the eastern side. By the time the incident occurred, the onion had not been collected but was lying scattered and it kept lying scattered till arrival of the police and the onion was seen by the police in that very condition. He also stated that Santosh had brought Tractor from northern side of the chak road and and when it was brought upto the place where Kalka Tiwari was standing, it had made deep marks by 2" by its wheel in the field. After committing crime, the tractor was taken from eastern side. The tractor had crushed onion crop under its wheels. It is further stated that the investigating officer had seen the marks of tyres of the tractor. However, he clarified that he had not shown the marks of tyres to the investigating officer. He clarified that if the investigating officer had not shown the tyre marks or the crops which had been crushed by the tractor, he could not tell any reason for the same. He further explained that he had told the investigating officer that he had arrived at the scene by the motor cycle and if he had not mentioned this in his statement, he could not explain why? The tractor was attached with blade and while entering the disputed field, accused Santosh ran the tractor around the field about 4 or 5 times and as a result which of the crop had been destroyed. He explained that he did not tell this fact to Investigating officer. However, he explained that much of the crop had been uprooted and the investigating officer had himself seen the condition of the crop. He stated that his vilalge lay at a distanceof 3 kms from the village where the occurrence took place and the accused persons were known to him from before. He explained that when Namonarain exhorted to run the tractor over Kalka Tiwari, he ran off to some distance and thereafter he fell down but the other persons came running to Chak road. However, he stated that other persons who had come running to chak road had not been assaulted. He stated that towards western side from the tractor, Kalka Tiwari, Daddan Madan and Dharmendra Tiwari were standing. He denied the suggestion that he had not witnessed the commission of offence and that he was deposing falsely on account of his kinship with the son of Kalka Tiwari being his Sadu (wife's sister's husband). He also denied the suggestion that he had not gone to deliver food to his brother and further that his brother was not engaged in ploughing the field of Girja Singh on that day.

P.W. 4 is Dr. D. Rai who conducted the post mortem on the person of the deceased Kalika Tiwari on 7.5.2001 at about 11 a.m. and noted following ante mortem injuries:

1. Incised wound 4 cm. x 3 cm. x vessel deep over right iliac fossa just above right iliac chest margins are short and red in colour.

In the cross examination, he deposed that injury no. 1, 2 and 3 cannot be caused by knife or Gandasa because they were not very deep. He opined that Knife and Gandasa causes injuries not more than 2 - 3 cm. deep. He further stated that he could not show any authority for this statement and he is deposing only on the basis of his personal experience. The depth of the injury caused by Gandasa depends upon the force and the part of the body can be severed by Gandasa. Injury no. 4 can be caused by rubbing with pressure by any heavy object. Injury nos. 5 and 6 can be caused by the rubbing of some hard object. Injury no. 4 can be caused by some heavy object like stone and there could be duration of 3 - 4 hours in the time of death. Rigour mortis passes early during summer.

P.W. 5 Dr. K. C. Rai, Radiologist District Hospital, Ballia deposed that he examined injured Madan Tiwari and noted the following injuries:

1.Incised wound 6 cm. x 0.5 cm. x scalp deep on the right side of the head about 13 cm. above the right ear spindle shaped margins clean cut with freshly clotted blood. X-ray skull.

2. Incised wound 3.5 cm. x 0.5 cm. x muscle deep on the left temporal region about 1 cm. above the left ear with fushly oozing blood. Margins clean cut and wound is spindle shaped.

3. Multiple abrasion seen on the top of the left shoulder area 7 cm. x 6 cm.

4. Contusion red 13 cm. x 1.5 cm. on the X-ray of Bones at left shoulder posterior side of chest on the left side.

In the cross examination, he denied the suggestion that he has wrongly prepared the X-ray report because of the pressure of the police.

P.W. 6 is S.I. Jagdish Yadav. He deposed that on 6.5.2001 he was posted as S.I. Police Station Bansdeeh Road, Ballia. On that day in connection with case crime no. 98 of 2001 under section 147, 148, 149, 307, 323, 302, 504, 506 I.P.C., he conducted inquest proceedings of on the dead body of Kalika Tiwari, Ext. Ka-2. He had prepared the inquest on the direction of Mohd. Saeed, Station House Officer. He also stated that he had prepared the relevant paper relating to the inquest proceedings. It attested to the fact that Form 13 was in his hand writing which is marked as Ext. Ka-9.

In the cross examination he deposed that he left police station at 12.45 p.m. The dead body was despatched for post mortem on 6.5.2001. He denied that there was any over writing in Ext. Ka-2 in the timing 12.45. He could not tell the time when the dead body was brought at the police station Bansdeeh. He also denied the suggestion that Ext. Ka-2 was not prepared on the spot.

P.W. 7 Constable is Lallan Prasad Sonkar who deposed that on 6.5.2001, he was posted as constable at police station Bansdeeh road. He was handed over the dead body of Kalika Tiwari in a sealed condition by the S.H.O. Mohd. Saeed. He alongwith constable Awadhesh Behari Rai was entrusted the dead body for post mortem examination. He brought the dead body to police line and thereafter, the same was handed over to the doctor alongwith all the relevant papers. During this period he did not allow any one to touch the dead body. After the post mortem examination clothes of the deceased and relevant papers were brought to the police station and the dead body was handed over to the family members.

In the cross examination, he deposed that he had received the dead body at 2. 15 p.m. at the police station and arrived at the police line at about 6.15 p.m. and after the post mortem examination he received the papers around 4 and 5 p. m. which he brought to the police station between 7 - 8 p.m. P.W. 8 C.I. Raza, Emergency Medical Officer, District Hospital, Ballia conducted the medical examination of Dharmendra Tiwari and he noted following injuries:

1. Abraded contused swelling 15 cm. x 6 c. of the left forearm left wrist and left hand (red colour) X-ray left forearm with wrist with left hand

2. Abraded contused swelling 9 cm. x 11 cm. on the left foot.

3. Icuoparalled lenior contusion 29 cm. x 0.75 cm. x 0.75 cm. apart on the posterior side of chest bilaterally on the upper part colour red.

He also medically examined Daddan Ji Tiwari on the same day and noted following injuries:

1. Lacerated wound 7 cm. x 0.75 cm. x scalp deep on the right side of the head about 13 cm. above the right ear with fresh clotted blood X-ray Skull.

2. Abraded contused swelling 17 cm. x 8 cm. on the right hand with right lower fore arm X-ray right hand with right lower forearm.

3 Abraded contusion 7 cm. x 2 cm. on the left lumber region posteriorly

4. Multiple abrasion are 7 cm. x 7 cm. on the right side chest posteriorly.

In the cross examination, he deposed that he had advised X-ray examination of the injured but he did not receive any supplementary report. Injury no. 1 and 2 can be caused due to fall on the brick or stone. Injury no. 3 can be caused by thin stick like Datoon or rope. He stated that Dharmendra came on his own for his medical examination and he was not brought by any constable. There is no seal on Ext. Ka-9 and crime number is also mentioned. He opined that injuries no. 1 and 2 of Madan can be caused by knife. He stated that X-ray report of injury no. 1 was not before him. Injury no. 3 of Madan, it is opined, was possible by some stone and the X-ray report is not before him. Injury no. 4 is of 13 cm. and can be caused by a Danda. Injury no. 3, 4 and 2 of Daddan can be caused by rubbing against stones. Injury no. 2 can be caused by Danda. Injury no. 1 can be caused by stone. The duration of injuries could be about 8 hours old. He denied the suggestion that false medical report of the injured persons had been prepared.

P.W. 9 constable Miraj deposed that on 6.5.2001 he was posted as Head Constable at police station Bansdeeh. He also deposed that on the basis of written report Daddan Ji, he prepared the F.I.R. of case crime no. 98 of 2001 under sections 147, 148, 149, 323, 307, 504, 506, 302 I.P.C. which is Ext. Ka-12 and he proved the same. The G.D. No. 19 dated 6.5.2001 at 12.45 p.m. was in his writing, copy of the same is marked as Ext. Ka-13.

In the cross examination he deposed that Madan Tiwari was accompanied by complainant and no other person came there with the complainant. The special report was sent on the same day at 1.35 p.m. Investigating officer had arrived at the police station vide report no. 14 at 12.45 p.m. He denied the suggestion that report has been ante timed.

P.W. 10 S.I. Mohammad Saeed was the investigating officer of the case and deposed that at the relevant time, he was posted as S.H.O. police station Bansdeeh Road and a written report was presented by Daddanji Tiwari at the police station upon which Case Crime No. 98 of 2001 under section 147, 148,, 149, 323, 307, 302, 504, 506 I.P.C. was registered.

He commenced investigation and to begin with, he recorded the statement of first informant Daddan Ji Tiwari and his brother Madan Ji Tiwari and thereafter, he set out for the place of occurrence alongwith S.I. Jagdish Yadav, constable Subhash, constable Ram Awadh Prajapati, Constable Dinesh Kumar. On his direction, inquest was prepared by S.I. Jagdish Yadav, which is Ext. Ka-2. The dead body was sealed and handed over to constable Lallan Sonkar and constable Awadhesh Behari Rai. He also referred the injured persons to the District Hospital. He collected blood stained and plain earth from the place of occurrence and prepared its recovery memo which is marked as Ext. Ka 14. In the presence of the first informant and his brother Madan Ji Tiwari site plan was prepared, which is Ext. Ka-15. He recovered the Mahendra Tractor which was parked inside the house of Surya Deo Tiwari of which front right wheel was missing and the recovery memo was prepared which is marked as Ext. Ka-3. He also prepared the site plan of the place where from Tractor was recovered which is marked as Ext. Ka-16. On 7.5.2001 Shiv Nand Yadav was arrested. He further deposed that the accused Anand who was dumb, was apprehended by the public and was handed over to the police station and this fact was duly entered in the report no. 21 at 7.05 p.m. Copy of the report is marked as Ext. Ka-17. The aforesaid accused Anand was duly arrested and memo of arrest is marked as Ext. Ka-18. The accused dubbed as dumb was sent for medical examination. The statement of injured Dharmendra Tiwari was recorded in District Hospital Ballia. On 8.3.2001, statement of witnesses Ram Nath Tiwari and Vijay Narayan Tiwari was recorded. After receipt of X-ray examination report of Daddan Ji Tiwari and Dharmendra Tiwari on 10.5.2001, section 325 I.P.C. was added. The relevant papers for the post mortem examination, letter to R.I., sample seal, photo lash and letter to C.M.O. were prepared, which are marked as Ext. Ka 19 to 22. After completing the investigation, he submitted charge sheet which is marked as Ext. Ka-23.

In the cross examination, he deposed that the number of field where occurrence took place was 888, which is situated in Mauja Bigahi Sewan. He could not tell that accused Santosh had share in plot no. 888. He also could not tell the area in which onion was sown. He recorded the statement of Daddan Tiwari at the police station and he did not mention the number of the field. He further stated that Daddan Tiwari also did not mention that after the death of his grand father, his father Kalika Tiwari doing the pairvi of the case. During investigation, he had seen Shyam Sunder but he could not tell his age. Shyam Sunder he further stated, was a patient of paralysis but he was able to walk. He denied that Shyam Sunder could not walk without support. He recorded the statement of dumb accused on the basis of sign language he made. He stated that accused Sanjay Upadhyay was serving in the military. He explained that he was not charge sheeted because of suspicion about his presence on the basis of the documentary evidence. When he arrived at the place of occurrence, onion was not found collected in one place. He also explained that he has marked the place where the onion was kept in the site plan stuffed in bag which was towards eastern side. He also stated that he had not marked the place where the onion was kept at the time of occurrence followed by the explanation that he had not mentioned the fact of Tractor being run the field in the site plan. He also stated that he had mentioned the fact that marks of tyres were present which showed that the tractor had a free run in the field but at the same time he stated that he had mentioned the fact of having noticed the marks of tyres in the field. He also stated that he did not prepare recovery memo of the ploughed onion. He denied that he recorded any statement in which it was mentioned that two of the accused persons were armed with Bhala (spear). He also stated that in the site plan, place where the broken wheel of tractor had fallen, had not been marked. He denied that Daddan had made any statement to the effect that the broken wheel of the Tractor had been taken away by the accused persons or that any of the accused was armed with Bhala (spear) or that any of the persons on his side had received any Bhala (spear) injury. He reached at the place of occurrence at about 2 O'clock. He conceded the fact that time of his departure from police sation was not mentioned in the case diary. He however stated that Daddan and Madan were sent to the Sadar Hospital after the report was lodged alongwith constable Ramdas Yadav but he could not tell the time when they had left. He denied that Dharmendra had made a statement to the effect that at about 11 a.m. he alongwith his father Kalika Tiwari, brother Madan Tiwari and Daddan Ji were digging out onion in their field. He also refuted that any statement was made before him that Radhey Shyam Upadhyay, Santosh and one Goonga of his family, whose name he does not know, Shivanand Yadav village Katahi had joined hands and they armed with Lathi and Bhala came at the field and started digging onion forcibly. He also refuted that Dharmendra had made any statement to the effect that after receiving the injuries inflicted by by Namonarayan and Shivanand by Bhala, his father Kalika Tiwari had fallen on the ground. He also stated that when he arrived at at the place of occurrence, witness Vijay Narain Tiwari was present explaining that he was making this statement on the basis that his name was mentioned in the inquest report as a witness of inquest. He denied the suggestion that he had not gone to the place of occurrence. The fact has not been mentioned in the inquest or in the site plan that motor cycle of Vijai Narayan was there. He denied the suggestion that he had not gone to the place of occurrence and the entire proceeding was completed at the police station.

The Sessions Judge on appraisal of evidence on record recorded verdict of acquittal in so far as accused Anand alias Goonga is concerned while in respect of other accused namely Namo Narayan Upadhyay, Radhey Shyam Upadhyay, Santosh Upadhyay and Shivanand Yadav he recorded verdict of conviction convicting each of them under sections 147, 148, 323, 325, 324 and 302 read with 149 I.P.C. The accused persons were however acquitted under sections 307, 504, 506 I.P.C. by the Sessions Judge.

The first and foremost submission advanced across the bar by the learned counsel for the appellant is that the plot in which occurrence is alleged to have taken place, belonged to the appellants' side and prosecution side provoked the occurrence by forcibly uprooting the onion. It is further submitted that the appellants acted in exercise of right of their private defence of property.

In connection with the above submission of learned counsel for the appellants, we have scrutinised the evidence on record. The case of the prosecution as would transpire from a perusal of the F.I.R. is that occurrence took place in plot no. 888 of which 62 decimal land was in possession of Santosh and in which wheat and onion crop had been sown. It is manifested from the statement of P.W. 1 that in regard to this plot, a litigation was being slugged out between his family and accused persons. He however gave the explanation that the occurrence took place when the accused persons were uprooting onion crop which they resisted and that the accused persons who were variously armed, mounted assault resulting in the death of the deceased and injuries to injured witnesses. P.W. 2 Dharmendra Tiwari also lent support to the testimony of P.W. 1. His deposition quintessentially was that accused persons arrived variously armed in the plot where onion crop was sown and started uprooting onion and when they have protested, on the exhortation of Namo Narain Upadhyay, Shyam Sunder Upadhyay, Radhey Shyam Upadhyay, Santosh Upadhyay, Goonga, Sanjay Upadhyay and Shivanand Yadav started assaulting his father, brother, mother and Daddan with lathi and Bhala. His father and brother Madan fell on the ground sustaining Bhala injuries which was inflicted by Namo Narain and Shivanand Yadav and on the exhortation of Namo Narain, Santosh Upadhyai ran the Tractor over his father Kalika Tiwari and in the occurrence, he also sustained injuries on account of assault by the accused persons. P.W. 3 Vijay Narain Tiwari also countenanced the prosecution case in all material aspects and put weight to the testimony of P.W. 1 and P.W. 2.

Having considered the testimonies in all its pros and cons, we converge to the opinion that the submission of the counsel for the appellants is not loaded with any substance that deceased were assaulted by the appellants in exercise of their right of private defence of property. All the three witnesses were extensively cross examined but nothing was elicited suggestive of the fact that accused persons had exercised their right of private defence. It was suggested to the witnesses in cross examination that they had sustained injuries at the place other than the ones as claimed by the prosecution. Even if it be presumed that the complainant party was in possession, without any title over the plot in dispute, it was not proper for the accused persons to have taken law unto themselves by forcibly dispossessing them. There was option available to them to have invoked proper legal recourse. Section 99 of I.P.C envisages that "there is no right of private defence in the cases in which there is time to have recourse to the protection of the public authorities".

Next submission of the Counsel for the appellants advanced across the bar pertains to if at all, Dharmendra Tiwari P.W.2 could be said to be present at the time of occurrence on the ground firstly that his name was not mentioned in the first information report and secondly that he does not reside in the village. The next kindred question raised is that it was also not mentioned in the F.I.R. that Dharmendra Tiwari, P.W. 2 sustained injuries followed by the submission that in fact he was set up by the prosecution to give prop to the prosecution case.

We have considered this submission and perused the evidence in this connection. It brooks no dispute that in the F.I.R. the fact that he was present at the time incident and he also sustained injury, does not find mention but in our considered view, this ground alone cannot be strong enough so as to negate his presence altogether at the time of incident. It remains a fact that in the first information report names of all the witnesses were not mentioned. Besides, a perusal of the F.I.R. would disclose that informant mentioned only names of two persons and also mentioned that occurrence was witnessed by several persons resident of village Vigahi. P.W. 2 is also a native of village Vigahi. In order to find out whether P.W. 2 was present or not at the time of occurrence, we have taken into reckoning his deposition which in our opinion, remained unshaken and by this reckoning, it inspires full confidence. P.W. 2 in his testimony described the incident in a very truthful manner. The quintessence of his deposition is that accused persons assaulted his father, Madan Ji and Daddan by Lathi and Bhala. He also testified that injury of Bhala was caused to his father, who fell down, and brother was assaulted by Namo Narayan and Shivanand. Thereafter on the exhortation of Namo Narayan his father Kalika Tiwari was run over by the Tractor driven by Santosh Upadhyay. His testimony also finds corroboration from the medical examination report according to which he was medically examined by P.W. 8 Dr. C.I. Raza on 6.5.2001 at 6.45 p. m. and he sustained three injuries. His injuries were also x-rayed and radiologist found fracture of base of proximal phalanx bone of middle toe of left foot. Therefore, the submission of learned counsel for the appellant that presence of Dharmendra Tiwari, P.W. 2 is doubtful, has got no substance.

In connection with the above submission, we would advert to the decision of he Apex Court in State of M.P. Vs. Man Singh reported in 2003 (10) SCC 414 in which it has been observed as under:

"One of the circumstances highlighted by the High Court to discredit the evidence of P.W. 8 is non mention of his name in the F.I.R. As stated by this court in Chuttar Lal Vs. State of Rajasthan 2003) 6 SCC 397- Evidence of the person whose name did not figure in the F.I.R. is a witness does not perforce become suspect. There can be no hard and fast rule that the names of all the witnesses, more particularly eye witnesses, should be indicated in the F.I.R. as was observed by this court in Shree Bhagwan Vs. State of Rajasthan (2001) 6 SCC 296 mere non mention of the name of eye witness does not render the prosecution version fragile."

Regard being had to the observation of the Apex court and also to the fact as observed above that P.W.2 has deposed in a very truthful manner and his testimony inspires full confidence in addition to the fact that he had also sustained serious injuries in the occurrence, we do not find the submission of the learned counsel for the appellant loaded with any substance that the presence of this witness was doubtful. To cap it all, this witness is an injured witness and supported the prosecution case in all material aspects and therefore, we are of the view that the Sessions Judge has rightly placed reliance on his testimony. It is also worthy of notice that this witness was extensively cross-examined but nothing could be elicited to impeach his credit.

The next submission advanced across the bar is that the Sessions Judge has recorded verdict of acquittal against the appellants under section 307 I.P.C and conviction of all the appellants under section 302/149 I.P.C for causing death of Kalika Tiwari is not legally sustainable. It is argued that the death of Kalka Tiwari was not the result of common object of unlawful assembly but it was an individual act of Santosh Upadhyay who ran the Tractor over Kalika Tiwari, therefore conviction of all the appellants under section 302/149 I.P.C. is unsustainable in law. It is further submitted that the role of exhortation has been wrongly attributed to Namo Narayan Upadhyaya. If he had any intention to kill Kalika Tiwari it was very easy for him to have given few more blows by the weapon which he was carrying when Kalika Tiwari had fallen on the ground after sustaining injuries. He did not make any attempt to assault him particularly when the assault was not being resisted by the defence. The appellant Namo Narayan had also assaulted the victims and he was also charged under section 307 I.P.C. but Sessions Judge had acquitted him of the charge under section 307 IPC. Therefore, conviction of all the appellants except Santosh Upadhyay under section 302/149 I.P.C. is not legally sustainable.

We have reckoned with the submissions advanced across the bar and have also scanned the testimonies of the prosecution witnesses.

The appellants have been convicted under section 302 I.P.C. with the aid of section 149 IPC. for committing the murder of Kalika Tiwari.

Section 149 IPC makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section creates a specific and distinct offence. In other words, it creates 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 prosecution 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.

Section 149 IPC consists of two parts. The first part of the section speaks of the commission of an offence in prosecution of the common object of the assembly, whereas the second part takes within its fold knowledge of likelihood of the commission of that offence in prosecution of the common object. The knowledge contemplated by the second part does not mean knowledge of mere possibility of the commission of the offence. It must be reasonably likely. Such knowledge may be collected from the nature of the assembly, its common object, the kind of arms which its members bear and their behaviour at or before the actual conflict. To elaborate further, the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result there-from. Though no cut and dried formulate or rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word "knew" used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of "might have been known". Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first part; but offences committed in prosecution of the common object would be generally, if not always, within the second part, namely, offences which the parties knew to be likely to be committed in the prosecution of the common object. The Apex Court was seized of and considered the scope of section 149 I.P.C. in various decisions. The first case on this point is Surinder Singh v. State of Punjab,(2003) 10 SCC 66, at page 73, in which the Apex Court observed as under :

"That in a criminal act, where several persons are engaged or concerned in the commission of it, they may be guilty of different offences by means of their own acts. No doubt, when such criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 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. The fact that any one of them may at times even stand wrongly acquitted and no appeal was filed by the State against such acquittal does not ipso facto impede the conviction of the other(s) accused. Equally, the conviction of one such does not automatically result in the conviction of everyone said to be involved in the occurrence, even dehors their actual role, the general and basic principle of criminal liability being that only that person, who commits the crime, would be held guilty and punished, except in cases where the concept of vicarious liability is recognized under law -- to that extent and that too subject to the conditions therefor being strictly shown to exist in a given case."

The second case on the point is Charan Singh v. State of U.P.,(2004) 4 SCC 205, the Apex court observed as under:

"Section 149 IPC has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. 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."

The third decision on the point is Sherey v. State of U.P. reported in 1991 Supp (2) SCC 437, in which the Apex Court observed as under:

"4. ... But when there is a general allegation against a large number of persons the court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance. From that point of view it is safe only to convict the above mentioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom overt acts are attributed."

Again in the case of Musa Khan v. State of Maharashtra (1977)1SCC 733 the Apex Court observed as under:

"5. ... Thus a court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all these stages."

In the case of Maranadu v. State (2008)16 SCC 529 the Apex Court for the determination of "common object" of unlawful assembly stated the legal position thus:

"... For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti."

In the light of the above legal principles laid down by the Apex Court, we have carefully scrutinised the evidence in order to test whether the submission of the learned counsel carries any measure of substance. The evidence with regard to actual occurrence as culled out from the record is that accused had assaulted the victims by Lathi and Bhala, and thereafter, no further assault followed. It is also noticeable from the record that when Kalika Tiwari stumbled on the ground, he was not assaulted by any of the accused and at that point of time only Santosh Upadhyay, who was driving the Tractor crushed Kalika Tiwari under the wheels of Tractor. Therefore, we are of the opinion that from the facts which emerged it cannot be presumed that all other accused knew that Kalika Tiwari might be murdered by Santosh Upadhyay. Therefore, only Santosh Upadhyay will be liable for committing the murder of Kalika Tiwari because it was not common object of the unlawful assembly to cause death of any one nor they knew that death was likely to be caused. The Sessions Judge has already acquitted accused under section 307 I.P.C.

As regard part of exhortation to santosh upadhyai for committing the murder of Kalika Tiwari is concerned, it is argued that exhortation is a weak type of evidence and in the facts and circumstances of the case it cannot be accepted as a gospel truth to fasten the liability of committing the murder of Kalika Tiwari alongwith Santosh Upadhyay. Few cases may be noticed on the above aspect and the first case in the line is Balwantbhai B. Patel v. State of Gujarat, reported in (2009) 10 SCC 684, in which the Apex Court observed as under:

''We are also not unmindful of the fact that allegations of catching hold of an attack victim or of an exhortation are invariably made when the number of injuries on the injured party do not co-relate to the number of accused or in the alternative in an attempt to rope in as many persons as possible from the other side.'' The second case on the point is Bajwa v. State of U.P. reported in (1973) 1 SCC 714, at page 725, the Apex Court has held as under:

''The evidence through which we have been taken by the learned counsel at the bar has been examined by us with care and anxiety because in cases like the present where there are party factions, as often observed in authoritative decisions there is a tendency to include the innocent with the guilty and it is extremely difficult for the court to guard against such a danger. The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on acceptable evidence which in some measure implicates such accused and satisfies the conscience of the court.'' Having given our anxious considerations to the facts and circumstances of the case and also to the decisions mentioned above, we are of the irresistible opinion that the conviction of the appellant Namo Narain cannot be sustained inasmuch it is inferable that it was an individual role of Santosh Upadhyay, who had killed Kalika Tiwari by overrunning the tractor.

Learned counsel for Santosh Upadhyay lastly submitted that according to the facts and circumstances of the case, appellant Santosh Upadhyay's case will, at the most, fall under section 304 I.P.C if it is taken into reckoning that the occurrence took place after some altercation and it was under sudden provocation that the appellant committed the offence. Considering the matter into entirety, we do not find any substance in this submission particular regard being had to the fact that according to the prosecution case, all the accused persons after arriving at the place of occurrence, started uprooting the onions and when this act of the accused was resisted, assault was mounted on the injured and that when Kalika Tiwari fell after sustaining injuries appellant Santosh Upadhyay crushed him under the wheels of Tractor. It is deducible from the record that there was no provocation from the side of Kalika Tiwari. It brooks no dispute that culpable homicide is not murder if it is committed without premeditation, in a sudden fight in the heat of passion, upon a sudden quarrel and without the offenders having taken undue advantage or having acted in a cruel manner or unusual manners. Here in the facts and circumstances of the present case, it leaves no manner of doubt that the appellant's act was definitely a cruel act which involved crushing of the deceased under the wheels of Tractor when he had fallen on the ground after sustaining injuries. The submission of the counsel for the appellant that the appellant's act is covered under section 304 I.P.C does not cut any ice with us.

Lastly, the question that survives for consideration is that whether appellant Santosh Upadhyay can be convicted under section 302 in the absence of any specific charge? Indubitably, the appellant was not charged under section 302 simpliciter. He alongwith other accused was charged under section 302/149 for committing murder. The case of the prosecution from the stage of charge is crystal clear. In the charge it was clearly mentioned that Santosh Upadhyaya killed Kalika Tiwari by running the tractor over him. In connection with the above, we would like to refer to the decision of the Apex Court in State of Andhra Pradesh v. Thakkidiram Reddy & Ors., (1998) 6 SCC 554. In this case the Apex Court wherein the Apex Court observed as under:

"10. Sub-section (1) of Section 464 of the Code of Criminal Procedure 1973 (''the Code', for short) expressly provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. Sub-section (2) of the said section lays down the procedure that the court of appeal, confirmation or revision has to follow in case it is of the opinion that a failure of justice has in fact been occasioned. The other section relevant for our purposes is Section 465 of the Code; and it lays down that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the proceedings, unless in the opinion of that court, a failure of justice has in fact been occasioned. It further provides, inter alia, that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."

The next case on the point is Radha Mohan Singh v. State of U.P.,(2006) 2 SCC 450, the Apex Court observed.

"In view of Section 464 Cr.P.C it is possible for the appellate or revisional court to convict an accused for an offence for which no charge was framed unless the court is of the opinion that failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself."

Again in the case of Balraje v. State of Maharashtra,(2010) 6 SCC 673, at page 678, the Apex Court observed as under :

"27. The learned Senior Counsel for the appellant submitted that having framed charges against all the accused and after acquittal of all the accused except the appellant, the same cannot be sustained. We are unable to accept the said contention. As observed in Radha Mohan Singh v. State of U.P.2, in view of Section 464 CrPC it is possible for the appellate or the Revisional Court to convict an accused for an offence for which no charge was framed unless the court is of the opinion that failure of justice would in fact occasion.

28. In the present case, the witnesses examined on behalf of the prosecution, whose testimony has been relied upon, clearly deposed that the appellant had assaulted the deceased with a knife. In his examination under Section 313 CrPC a specific question was put to the appellant and he was made aware of the basic ingredients of the offence and the main facts sought to be established against him were explained to him. Thus, he can be convicted under Section 302 IPC for having committed the murder.

29. Law is fairly well settled that even if acquittal is recorded in respect of the co-accused on the ground that there were exaggerations and embellishments, yet conviction can be recorded if the evidence is found cogent, credible and truthful in respect of another accused. The mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence."

The Apex Court further held that in judging a question of prejudice, as of guilt, the court must look to the substance of the matter and not to technicalities, and its main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. In the said case, Apex Court ultimately came to the conclusion that despite the defect in the framing of charges, as no prejudice had been caused to the accused, no interference was required.

In the instant case the charge was not framed under section 302 I.P.C. but it was in a very clear terms mentioned that in furtherance of common object of unlawful assembly Santosh Upadhyai ran the Tractor over Kalika Tiwari and caused his death. He was represented by a counsel and full opportunity to cross examine the witnesses was afforded. The witnesses were extensively cross examined regarding his role. In his statement under section 313 Cr.P.C. question No.6 specifically mentioning his role was put to him. Therefore, from a perusal of the record it is clear that no prejudice was caused to him and he was aware of the accusation against him. In this court also, the counsel for the Santosh Upadhyaya could not point out whether he was prejudiced in his defence.

For the reasons stated above, the above appeals are decided as under:

Crl. Appeal No. 3200 of 2003 (Namo Narayan Upadhyaya, Radhey Shyam Upadhyaya, and Shivanand Yadav) is partly allowed with the modification to the extent that they are acquitted of the charge under section 302/149 I.P.C. and their conviction and sentence under section 302/149 is set aside. So far as conviction and sentences under section 147, 148, 323/147,324/149 and 325 read with 149 I.P.C. are concerned, the same are affirmed. All the above appellants are on bail. C.J.M. Ballia is directed to take them into custody forthwith to serve out the sentences under sections 147, 148, 323/147, 324/149 and 325 read with 149 I.P.C. awarded by the trial court and affirmed by us.

Crl. Appeal no. 3268 of 2003 filed by appellant Santosh Upadhyay is dismissed with the modification to the extent that he is sentenced to life imprisonment under section 302 I.P.C. instead of section 302/149 I.P.C. So far as the rest of the sentences under section 147, 148, 323/147, 324/149 and 325 read with 149 I.P.C. are concerned, they are affirmed as awarded by the trial court. Appellant Santosh is in jail. He shall be kept there to serve out the sentences awarded by the trial court.

Office is directed to send a copy of this order to the court concerned within fifteen days from today for compliance.

Dated:

o.k./MH Feb. 4, 2011.