JUDGMENT M.C. Jain, J.
1. Six accused-appellants, namely, Raj Narain, Dev Narain, Shiv Singh, Vijai Singh, Raj Bahadur Singh and Anirudh Singh preferred this appeal against judgement and order dated 27.7.1981 passed by Sri J.P. Sharma, the then V Additional Sessions Judge, Kanpur in S.T. No. 337 of 1980. All of them were convicted under Section 302 I.P.C. read with Section 149 I.P.C. and sentenced to life imprisonment for the double murder of Ram Swarup and Ram Pratap Singh. All of them, excepting Dev Narain, were also convicted under Section 148 I.P.C. with sentence of two years' rigorous imprisonment. Dev Narain was convicted under Section 147 I.P.C. with a sentence of one year's rigorous imprisonment. The sentences of each of them were directed to run concurrently.
2. For the present, the Court is concerned only with the accused-appellants Dev Narain son of Dularey and Shiv Singh son of Raj Narain. Raj Narain was the brother of Dev Narain. Thus, the said two accused-appellants are uncle and nephew. The remaining four accused-appellants died during the pendency of appeal and as such the appeal in respect of them abated.
3. The genesis of the prosecution case was the F.I.R. lodged on 4.6.1980 at 8.50 A.M. by an eye-witness Jai Singh P.W. 7 (brother of the deceased Ram Pratap Singh). The incident took place on that day at about 8.00 A.M. near a brick kiln within the territory of village Harbaspur, Police Station Bidhnu, District Kanpur. The distance of the place of occurrence from the Police Station was about 2 kms. Jai Singh P.W 7, Raj Kumar Pandey P.W. 8 are said to be the eye-witnesses of the incident. Raj Bali was also one of the eye-witnesses, but he was examined as CW 1. The prosecution story, omitting unnecessary details, may be set forth for appreciation of the discussion that has to follow.
4. On the day of the incident at about 7 A.M., Ram Pratap Singh was assaulted by one Shiv Ram Yadav near village Hridaypur. Ram Pratap Singh sustained simple injury of danda in his leg. Ram Pratap Singh returned home and he with Ram Swarup, Raj Bali and informant Jai Singh P.W. 7 started from the village on two cycles to lodge the report of this marpeet at Police Station Bidhnu. Jai Singh P.W. 7 and Raj Bali were on one cycle. Raj Bali was on the carrier. On the other cycle were Ram Swarup and Ram Pratap Singh. That cycle was being plied by Ram Swarup and Ram Pratap Singh was on pillion seat. Raj Bali and Ram Swarup were having their licensed guns. At about 8.00 A.M., a little ahead of Harbaspur near the brick kiln, the six accused-appellants emerged from their hiding all of a sudden. Raj Narain and Vijai Singh were armed with guns; Raj Bahadur was armed with a pistol whereas Dev Narain, Shiv Singh and Anirudh Singh were armed with lathis. Vijai Singh and Raj Bahadur opened fire on Ram Pratap Singh as a result of which he fell down from the cycle. Then Raj Narain fired on Ram Swarup resulting in the dropping of the gun from the hand of Ram Swarup and he, too, fell down. He, however, ran for his life. In the meantime, when Raj Bahadur was about to open fire from his pistol on Ram Pratap Singh, Raj Bali fired from his licensed gun, hitting Raj Bahadur. Anirudh Singh and Shiv Singh snatched the gun of Raj Bali and Anirudh Singh picked up the gun of Ram Swarup. Ram Swarup ran for his life upto tube well, being chased by all the accused-excepting Raj Bahadur. Near the tubewell, Shiv Singh and Anirudh Singh fired on Ram Swarup who fell down there. Dev Narain also assaulted with lathi and the other accused-appellants Raj Narain, Shiv Singh, Anirudh Singh and Vijai Singh assaulted with butts of guns also. In the meantime, from Khethurva side a tractor came on which Ram Kumar P.W. 8 and Gopal Tiwari were sitting. Raj Narain, Dev Narain and Shiv Singh took to their heels and Vijai Singh, Anirudh Singh and Raj Bahadur Singh came to the Gumti where there was a motorcycle, which due to some defect did not start. Ram Pratap Singh was still alive and was taken to Bidhnu Hospital on tractor, but he died on the way. Ram Swarup had died on the way. Scribing the report, Jai Singh P.W. 7 lodged the same at the Police Station as stated earlier. A case was registered and investigation started as usual. S.I. Shiv Sewak Singh P.W. 3 prepared the inquest reports. Main investigation was conducted by R.D. Misra, S.O., P.W. 9.
5. Near the dead body of Ram Swarup one DBBL gun, one SBBL gun-broken in pieces, three empty cartridges, wrist watch etc. were found which were also taken in possession. Post mortem over the dead body of the deceased Ram Swarup was conducted by Dr. S.N. Srivastava P.W. 1 on 5.6.1980 at 2.30 P.M. He was aged about 35 years and about 24-36 hours had passed since he died. The following ante-mortem injuries were found on the person of deceased Ram Swarup:
i. Lacerated wound on scalp, placed vertically across the scalp in centre measuring 6 cm x 11/2 cm x muscle deep about 10 cm away from the right ear.
ii. Lacerated wound on scalp left side in frontal region, 8 cm x 2 cm x bone deep about 12 cm above left ear.
iii. Abrasion on scalp left side, frontal region, measuring 5 cm x 2 cm.
iv. Gun shot wound 1 cm x 1/2 cm x cavity deep on forehead in centre about 6 cm above nose bridge with margins lacerated and inverted.
v. Gun shot wound above right eye-brow, about 1 cm above right eye-brow with lacerated margins and blackening, 1 cm x 1 cm.
vi. Gun shot wound just lateral to right eye near temple with inverted margins and blackening 1 cm x 1 cm.
vii. Gun shot wound on right cheek about 4 cm away from right ear, 1 cm x 1 cm with blackening of skin and inverted margins.
viii. Gun shot wound below right nose on upper lip 2 cm x 11/2 cm with blackening and inverted margins, upper lip torn.
ix. Gun shot wound on face right side of chin about 4 cm below right lower lip, 1 cm x 1 cm.
x. Six gun shot wounds in front of chest left side in an area of 7 cm x 7 cm extending over sternum left side chest with blackening and inverted margins; wounds shape is circumscribed, each measuring 1 cm x 1 cm cavity deep.
xi. Abrasion 4 cm x 3 cm on dorsum of right hand.
xii. Gun shot wound right thigh in upper 1/3rd anteriorily 11/2 cm x 1 1/2 cm, margins everted, wound of exit.
xiii. Gun shot wound right thigh medially in upper 1/3rd 1 cm x 1 cm circumscribed 1 cm x 1 cm with in verted margins.
xiv. Gun shot wound 1 cm x 1 cm in upper 1/3rd right thigh, 22 cm from right knee. Inverted margins.
xv. Gun shot wound 11/2 cm x 11/2 upper 1/3rd laterally right thigh with inverted margins, 11 cm away from injury No. 14.
6. On internal examination, the Doctor found the scalp fractured; membranes lacerated, brain lacerated and liquified; 4th rib right side fractured; clotted blood about 8 ounces present; pleura lacerated; both right and left lungs lacerated through and through, pericardium lacerated; heart lacerated through and through; cavity lacerated through and through right upper side; four ounces digested meal present in the stomach.
7. The death had occurred due to shock and haemorrhage as a result of ante-mortem gun shot injuries.
8. The autopsy on the dead body of Ram Pratap Singh was conducted by Dr. A. Rahman P.W. 5 on 5.6.1980 at 2.10 P.M. He was aged about 40 years and about 1-11/2 day had passed since he died. The following ante-mortem injuries were found on the person of deceased Ram Pratap Singh:
1. Gun shot wound of entry 2 cm x 11/2 cm x muscle deep (below right angle of mandible) oval, margins inverted. No singing or scorching, tattooing present slightly on margins. A piece of pellet recovered under tissues, wound directed medially upward and backward.
2. Gun shot wound of entry 1 cm x 1 cm x muscle deep through and through above right elbow.
3. Gun shot wound of exit, 2 cm x 2 cm communicating with injury No. 2, 19 cm above right elbow.
4. Gunshot wound of entry 1 cm x 1 cm x thorasic cavity deep on right parietal region, 3 cm below to the middle of right clavicle, margins inverted.
5. Gun shot wound of entry 2 cm x 2 cm x thorasic cavity deep, right side of chest wall, 6 cm below axilla, margins inverted.
6. Abrasion 2 cm x 11/2 cm in the middle of front of right leg.
7. Abrasion 2 cm x 2 cm on middle of back of right leg.
8. Abrasion 2 cm x 2 cm on outer side of left knee.
9. Abrasion 2 cm x 1 cm outer side of left thigh, 3 cm above injury No. 8.
10. Four abrasions in an area of 1 cm x 1 cm on left thigh.
9. On internal examination, the Doctor found membranes slightly congested; base of skull fractured under injury No. 1, pleura lacerated at places as also right and left lungs. In the stomach there was watery fluid about 4 ounces and large intestine were empty.
10. The death had occurred due to shock and haemorrhage as a result of ante-mortem injuries.
11. The accused-appellant Raj Bahadur Singh was also examined by Dr. R.L. Shah on 5.6.1980 at 6.05 P.M. The following injuries were found on his person:
1. Lacerated wound 7 cm x 1 cm, circular margins, inverted on the right leg inner side. Depth kept under observation.
2. Contusion left eye- brow 3 cm x 2 cm.
12. He was X-rayed also and as per the report of the radiologist, multiple radio opaque shadows of metallic density were found in the region of lower 1/3rd and middle of right leg with fracture.
13. The defence, however, set up a parallel version, though there was no cross case. The defence, in short, was that three persons were going on a motor-cycle to fetch diesel. They were Vijai Singh-accused, Kartar Singh and Asesar. Near the Gumti, they were waylaid and Raj Bali, CW 1, opened fire, hitting Raj Bahadur Singh. Alongwith Raj Bali, Ram Pratap and Ram Swarup who were armed with guns also advanced towards them and in the exercise of right of private defence, Asesar fired which resulted in the death of Ram Pratap Singh and Ram Swarup. The presence of Jai Singh P.W. 7 was admitted to the defence. Asesar came to be examined by the defence as DW 2 to support its defence version.
14. We have heard Sri V.C. Tewary, Advocate for the accused-appellants and Sri Sudhir Kumar Agrawal, learned A.G.A. from the side of the State in opposition of the appeal. The record has also been summoned before us which we have carefully perused.
15. The submission of the learned Counsel for the appellants is that as per the F.I.R. the surviving appellants Dev Narain and Shiv Singh were armed with lathis. But the F.I.R. is silent as to the use of the same by them. According to him, the accused-appellants Dev Narain and Shiv Singh had been falsely implicated and as per the own evidence of the prosecution their participation in the alleged crime was doubtful. This part of the prosecution case has been assailed to be improbable that despite both sides being armed with guns, Shiv Singh and Anirudh Singh could snatch the gun from Raj Bali. According to his argument, it was equally improbable that the assault could be made with the butts of the guns.
16. It is also urged by the learned Counsel for the appellants that there were no corresponding injuries of lathis on the two deceased. Alternatively, it has been argued that prosecution side was the aggressor and the assault was made from the side of the accused-appellants in self-defence. We propose to deal with these submissions in the succeeding discussion in the light of the evidence on record and the attending circumstances.
17. To begin with, it is not at all material that the use of lathi has not specifically been stated in the F.I.R. As is well known, the F.I.R. is not an encyclopaedia of every minute detail. Moreover, it has to be kept in mind that F.I.R. was lodged by an eye-witness Jai Singh P.W. 7 (brother of the one of the deceased Ram Pratap Singh) immediately after the incident. He had seen the ghastly double murder with his own eyes and it is of no consequence that in a tension ridden frame of mind, he could not specifically mention about the use of lathis by the surviving accused-appellants Dev Narain and Shiv Singh. He was not a legal expert conversant with the art of litigation. The broad features of the sequence of happening were given by him in the F.I.R. naming all the accused-appellants including the present two surviving accused-appellants Dev Narain and Shiv Singh with their weapons and the role played by each of them.
18. The submission docs not boar the test of scrutiny that there were no corresponding lathi injuries on the persons of the two deceased. The post mortem report of Ram Swarup reveals two lacerated wounds and two abrasions besides 11 gun shot wounds. Testimony of the eye-witnesses is that lathi injuries were caused to Ram Swarup who was assaulted with butts and guns also. The prosecution case and evidence was that at the start of the incident, Raj Bahadur and Vijai Singh fired on Ram Swarup and Ram Pratap Singh. Ram Pratap was hit by the shot and fell down. Then Raj Narain opened fire on Ram Swarup. Ram Swarup's gun dropped down from his hand and he also fell down from the cycle. He got up and took to his heels. Raj Bahadur aimed his country-made pistol at Ram Pratap Singh and then Raj Bali opened fire on Raj Bahadur, injuring him. Ram Swarup's gun was picked up by Anirudh Singh. Raj Bali's gun was snatched by Anirudh Singh and Shiv Singh. Ram Swarup ran towards tube well and was hit by the accused-appellants excepting Raj Bahadur (who had been injured by the shot fired by Raj Bali). Near the tube well, Shiv Singh and Anirudh Singh opened fire on Ram Swarup. He fell down and then he was assaulted by the accused-appellants including the surviving accused-appellants Dev Narain and Shiv Singh with lathis and butts of guns. He was the target of orgy of assault by firearms, lathis and butts of firearms. Injuries found on the person of Ram Swarup are in good check with medical evidence.
19. Ram Pratap was initially shot and he fell down after running a few steps on receiving the shot. He had been assaulted in the morning too by one Shiv Ram Yadav (of which incident he was going to lodge the F.I.R. with Ram Swarup, Jai Singh and Raj Bali). His abrasions could be attributable to that incident or to the fall in this incident.
20. So, to come to the point, the assault with lathis was made on Ram Swarup and it is clear from his post mortem report that he did sustain lathi injuries. Therefore, the surviving accused-appellants Dev Narain and Shiv Singh cannot be heard saying that the deceased did not sustain corresponding lathi injuries (weapons assigned to them). Moreover, they being the members of the unlawful assembly formed by all the accused-appellants, they are vicariously liable for the offences committed by any member of the unlawful assembly in prosecution of the common object of the same.
21. We have scrutinized the testimony of Jai Singh informant P.W. 7 and Ram Kumar P.W. 8 and we are in agreement with the learned trial judge that their testimonial assertions have the ring of truth that aggressors were the accused-appellants including the surviving accused-appellants Dev Narain and Shiv Singh and the incident occurred in the manner testified by them. It is significant to note that the presence of Jai Singh is admitted to the defence, because the suggestion made to him in his cross-examination was that he, Ram Kumar and Gopal Tiwari were armed with lathis whereas Ram Pratap deceased, Ram Swarup deceased and Raj Bali had guns. As a matter of fact, the presence of Ram Kumar P.W. 8 is also admitted to the defence side. Jai Singh P.W. 7 is the real brother of the deceased Ram Pratap and gave full account of the incident that they were going on two cycles (Ram Swarup and Ram Pratap on one cycle and he himself and Raj Bali on the another cycle). The purpose was to lodge the F.I.R. regarding the incident which occurred in Hridaypur, Ram Pratap having been assaulted and injured by one Shiv Ram Yadav that very day in the morning, They wanted to move the official machinery with regard to that incident and they had every right to do so. There could hardly be any necessity on the part of the prosecution to manufacture this story if it was not a fact. The statement of the witness goes further that when they reached the Gumti of Satya Narain a little ahead of Harbaspur, the accused-appellants came out from their hiding. Raj Narain fired on Ram Swarup. Vijai Singh and Raj Bahadur fired on Ram Pratap. Ram Swarup fell down along with his gun which was picked up by Anirudh. Ram Swarup fled. When Raj Bahadur took aim from his country-made pistol on Ram Pratap, Raj Bali fired on him and he was injured. Shiv Singh and Anirudh snatched the gun of Raj Bali. All, excepting Raj Bahadur, chased Ram Swarup towards the side of tubewell. He was fired at by Shiv Singh and Anirudh Singh. When Ram Swarup fell down, then he was assaulted by lathis and butt of guns. He remained consistent in his cross-examination on these points and the central core of his testimony could not be shaken.
22. The name of other eye-witness Ram Kumar P.W. 8 finds place in the promptly lodged F.I.R. He well explained his presence at the spot that at the time of the occurrence, he was going to see his father's sister at Kanpur who was ill and the information regarding the same had been received by him last evening. It could not be shown that he had any previous association with the prosecution side. He could not, therefore, be dubbed to be a partisan witness. As we indicated earlier, his presence at the spot is admitted to the defence also through its defence version and the suggestion made to him in his cross-examination that he was one of the assailants with others from the prosecution side injuring Raj Bahadur (accused).
23. We shall examine the worth of the defence version a little later, but it can be pronounced with certainty that this witness was present at the spot. His statement falls in line of the version of Jai Singh P.W. 7 as regards the names and numbers of the assailants, their weapons and the manner in which the incident occurred. There is no inconsistency whatsoever on the essential features of the incident and the part played by the accused-appellants including the surviving accused-appellants Dev Narain and Shiv Singh as related earlier. He had no animus either against accused-appellants. So, the prosecution version is supported by two eye-witnesses and their testimonial assertions are in good check with medical evidence.
24. We should say a word about the testimony of Raj Bali who was an eye-witness from the side of the prosecution and according to it played a role by opening shot from his gun at Raj Bahadur (deceased accused) injuring him in his leg when he was aiming his pistol on Ram Pratap. Though this witness was examined as a Court witness, but at the behest of the defence. On analysis, we are of the clear opinion that in course of time after the lodging of the F.I.R., this witness thought it fit to give a jerk to the prosecution case and chose it to be safer to save his own skin. But a close scrutiny of his testimony makes it abundantly clear and, in fact, his testimony supports the prosecution case in a great deal. He corroborates the prosecution story that Ram Swarup and Ram Pratap on one cycle and this witness and Jai Singh on another cycle were going to Police Station Bidhnu to lodge an F.I.R. Thus, the purpose of the journey through cycles with Ram Swarup, Ram Pratap and Jai Singh at that juncture is in tune with the prosecution case. He also admits that he had his licensed gun with him and Ram Swarup, too, had his gun. This is also in consonance with the prosecution story. However, he insisted that Ram Pratap was also having a gun. It does not stand to reason at all. Ram Pratap had not died at the spot and was taken on tractor by Jai Singh informant P.W. 7 to Bidhnu hospital where he died. In case he also had a gun, the same would have been taken along by Jai Singh. The first Investigating Officer S.I. Shiv Sewak Singh P.W. 3, on visiting the spot, had found two guns lying there, out of which one was broken and the other one was in working condition. The gun in working condition was of double barrel and broken one was a single barrel. It has also come down in the testimony of second Investigating Officer R.D. Misra P.W. 9 that it had been verified by him during investigation that one of them was licensed gun of Ram Swarup and the other one was licensed gun of this witness Raj Bali. This witness (Raj Bali) tried to disturb the prosecution case by denying that any shot had been fired by him. Instead, according to him, the first shot had been fired by Ram Swarup deceased which hit Raj Bahadur. He could not say as to how and wherefrom Raj Bahadur (accused-appellant) appeared on the scene. In his later version, he stated that Vijai Singh, Asesar and Kartar Singh came on motorcycle from village Samua and they were unarmed. Then he added that Asesar was armed and Vijai Singh was unarmed. His version is that all of a sudden, he heard the sound of firing at the time when he was going on foot ahead of Ram Pratap and Ram Swarup and then he said that Ram Swarup had fired with his gun which had hit Raj Bahadur (accused). Truly speaking, this witness is a self-condemned person saying one thing and then disowning it.
25. When admittedly he had his gun with him, he would not have left it at the spot on his own accord. His gun having been found by the Investigating Officer at the spot is a clear indicator that it had been snatched by the accused-persons as is the case of the prosecution. He also stated that when he was taking Ram Pratap from the spot, a constable had met him in the way who had taken his gun. It sounds to be preposterous. He neither inquired from that constable as to why his gun was being taken nor he insisted for a receipt from him. He never made any application to any higher authority also in this behalf making request for the return of his gun. His version that Ram Swarup opened fire injuring Raj Bahadur is not even the case of the defence. We note that the suggestion made to Jai Singh P.W. 7 in his cross-examination was that Raj Bali (this witness) had first fired on Raj Bahadur.
26. Further, Asesar was examined as DW 2 in support of defence version and he stated that Ram Swarup, Ram Pratap and Raj Ball were armed with guns and along with Jai Singh, Ram Kumar and Gopal Tiwari were also there. These three persons were armed with lathis. At the fateful time, he, Vijai Singh and Kartar Singh were going on motorcycle to purchase diesel from a petrol pump. When they reached near brick kiln of Harbaspur, Ram Swarup, Ram Pratap and Raj Bali armed with guns along with Jai Singh, Ram Kumar and Gopal Tiwari armed with lathis were there. These persons challenged them and when they advanced towards the motorcycle, they got down from the motorcycle. The above persons abused them. Anirudh, Raj Bahadur and Gaj Ram also came. All of them asked Ram Swarup and Ors. not to abuse. Thereupon, Raj Bali fired with the gun which hit Raj Bahadur. Ram Swarup and Ram Pratap fired from guns towards their side and advanced towards them. They retreated and then he fired with his gun which hit Ram Swarup and Ram Pratap. The police came there and took his gun him. He also stated that due to fear, he did not lodge the F.I.R. and ran to the village. The statement of this witness is absolutely unnatural and suffers from inherent improbabilities. Had he been there at the scene and taking the leading role of opening shots on Ram Swarup and Ram Pratap Singh, he would have definitely been named as an accused from the side of the prosecution. It wholly spills beyond comprehension that an accused playing leading role in the incident would be omitted to be named as such by the prosecution side. Further, yawning gap between his statement and that of Raj Bali CW 1 is also noticeable. According to this witness, the first shot had been fired by Raj Bali injuring Raj Bahadur, whereas Raj Bali, saving his own skin, attributed shooting by Ram Swarup injuring Raj Bahadur.
27. The theory of self-defence does not carry conviction at all. The person who had caused injury to Ram Pratap at about 7.00 A.M. in village Hridaypur was some Shiv Ram Yadav and Ram Pratap with others was going to lodge the F.I.R. of that incident. There could hardly be any question of any of them opening shot on Raj Bahadur. The fact was that six accused-appellants variously armed had formed an assembly with the unlawful object. Raj Bahadur was one of the members of the unlawful assembly. In the course of incident, he aimed his pistol. He and Vijai Singh had opened fire on Ram Pratap and he (Raj Bahadur) was fired at by Raj Bali who was on the prosecution side. Though Raj Bahadur sustained injury in this way, but the defence wants to make capital of the injury sustained by him to turn the table and to assume the posture of having acted in self-defence in subjecting Ram Swarup and Ram Pratap to the orgy of murderous assault. There is no warrant for the conjectural inference that Ram Swarup had fired on the accused party.
28. On holistic consideration, we do not find any merit in the arguments advanced from the side of the accused-appellants by their learned Counsel. Only the version given by the prosecution of the events could be possible having regard to the related circumstances surfacing on record. The direct evidence of Jai Singh P.W. 7 and Ram Kumar P.W. 8 whose presence was even admitted to the defence, was trustworthy. Their statements were backed by the prompt F.I.R., medical evidence, recovery of two guns (one of Ram Swarup and the other of Raj Bali) and artridges. The defence version was quite unnatural. Three persons, namely, Raj Narain, Vijai Singh and Raj Bahadur were armed with guns and were lying in wait with three others, namely, Dev Narain, Shiv Singh and Anirudh Singh armed with lathis. They committed this double murder in prosecution of the common object of the unlawful assembly that they had formed as proved by the prosecution
29. In conclusion, we hold that the surviving accused-appellants Dev Narain and Shiv Singh were members of unlawful assembly in prosecution of common object of which this double murder was committed. They played potent role too. Dev Narain used his lathi in assaulting Ram Swarup and Shiv Singh wielded his lathi as well as gun (after snatching the same from Raj Bali) in causing injuries to Ram Swarup. Therefore, the conviction of Dev Narain under Section 147 I.P.C. and Shiv Singh under Section 148 I.P.C. and both of them under Section 302 I.P.C. read with Section 149 I.P.C. is perfectly justified. The sentences passed against them are well justified.
30. We see no merit in the appeal. The appeal is dismissed. The surviving accused-appellants Dev Narain and Shiv Singh are on bail. The C.M.M., Kanpur Nagar shall cause them to be arrested and lodged in jail to serve out the sentences passed against them.
31. Judgment be certified to the lower Court immediately for reporting compliance to this Court within two months from the date of receipt.