JUDGMENT M.C. Jain, J.
1. Seven accused respondents were tried in Sessions Trial No. 354 of 1980 before the VII Additional Sessions Judge, Azamagarh. They were (I) Bharthu, (2) Bhuwal, (3) Bechoo, (4) Chandradhari, (5) Chander, (6) Sheobaran and (7) Chulli. All of them faced charges under Section 302 read with Section 149 I.P.C, and 323 I.P.C. Three of them, namely, Bharthu, Bhual and Sheobaran were charged for the offence of rioting under Section 148 I.P.C. as they were allegedly armed with spears and rest under Section 147 I.P.C. being armed with lathis. Bharthu and Bhuwal are real brothers being sons of Bhusi and Chandradhari is the son of Bharthu. All of them were acquitted where against the State has preferred this appeal.
2. One Ram Karan died in the incident. He was the nephew of Raja Ram, informant PW 1, who also happened to be an injured of the felony. Antu PW 2 and Munesar PW 3 also received injuries in the incident which occurred on 5.7.1980 at about 11 A.M. in village Chandpur Khalsa, P.S. Nijamabad, District Azamgarh. The report was lodged by Raja Ram PW I (nephew of the deceased) the same day at 2.05 P.M. The distance of the police station from the place of occurrence/about 5 miles.
3. The case in its broad essentials, as revealed from the F.I.R. and the evidence adduced in the court was thus: On the fateful day and lime, the informant Raja Ram PW 1 was at his house. His uncle Ram Karan was taking the bullocks to his grove for tying them after doing work in his paddy field. On account of earlier litigation and enmity, Bharthu and Bhuwal accused appeared there armed with spears and stopped his uncle Ram Karan from going towards the grove along with bullocks , saying that it was not the Rasta from abadi land. There was heated exchange of words between Ram Karan on the one hand and Bharthu and Bhuwal on the other. Raja Ram also reached on the spot. Meanwhile, the remaining accused respondents also reached there out of whom Sheobaran was armed with spear and rest had lathis. Ram Karan shouted for help and his uncles Antu and Munesar rushed up for his help. The accused persons started launching assault on Ram Karan with lathis and spears. When Raja Ram tried to come to his rescue, he, too, was assaulted by lathis as also Antu and Munesar. Ram Karan injured fell down. Baldhari, Sukhai, Dilram PW 3 etc. reached there and intervened. The accused persons then went away. The condition of Ram Karan was serious. He was removed on a cot, but succumbed to his injuries on the way to police station. Therefore, with the dead body, Raja Ram went to police station and lodged the F.I.R. On the basis of it check report was prepared and the case registered.
4. Dr C.P. Singh PW 6 medically examined Raja Ram, Munesar and Antu in the evening of 5.7.1980 from 6.30 P.M. to 7.10 P.M. The details of their injuries are given below:
Raja Ram:
1. Contusion measuring 6 cm x 1.5 cm on the right shoulder 10 cm lateral to base of the neck with red colour and local tenderness.
2. Contusion measuring 11 cm x 1.5 cm on the outer aspect of the right shoulder joint with red colour and local tenderness.
3. Contusion measuring 21 cm x 2 cm on the left side of the hack continuing on the right side also, 5.5 cm parallel to medial border of the scapula extending from left flank obliquely upwards, medially with red colour and local tenderness.
4. Contusion measuring 10 cm x 1 cm on the left shoulder along the upper border of the left scapula with red colour and local tenderness.
5. Abrasion 1 cm x 1 cm on the left side of the chest 2 cm below mid of the left clavicle bone.
6. Contusion measuring 4 cm x 1 cm on the dorsum of the left palm bone base of the ring, middle and index finger with red colour and local tenderness.
5. All the injuries were simple in nature. Injuries no. 1, 2, 3, 4 and 6 were caused by blunt object and injury No. 5 was caused by friction. They were fresh.
Munesar:
1. Contusion 6 cm x 1.5 cm on the outer aspect of right upper arm 12 cm below outer prominence of the left shoulder joint with red colour and local tenderness.
2. Contusion measuring 5 cm x I cm on the outer border of the left elbow joint with red colour and local tenderness.
3. Contusion measuring 7 cm x 1.5 cm on the front of the right forearm, 11 cm below mid of the right elbow joint with red colour and local tenderness.
4. Abrasion on the Ist phalangial joint of the middle and ring finger with dried serum on the surface.
6. All the injuries were simple in nature. Injuries no. 1, 2 and 3 were caused by blunt object and injury no. 4 by friction. They were fresh.
Antu:
1. Contusion 4.5 cm x 2 cm on the outer aspect of the mid of the left upper arm with red colour and local tenderness.
2. Contusion 3 cm x 1.5 cm on the dorsum of the base of the left palm just near the base of the index and middle finger with red colour and local tenderness.
3. Contusion measuring 17 cm x 2 cm on the mid of the back lying transversely with red colour and local tenderness.
7. All the injuries were simple in nature and caused by blunt object. They were fresh.
8. The investigation was taken up by S.I. Narendra Prasad Tripathi PW 7. He inspected the dead body and prepared the inquest report including other necessary papers. After being sealed the dead body was sent for post-mortem. The spot was inspected by him on 6.7.1980. The investigation was conducted as usual and there is nothing particular to say about it.
9. The post-mortem over the dead body of the deceased was conducted on 6.7.1980 at 3 P.M. by Dr K.C. Chakrabarti PW 5. The deceased was aged about 65 years and about one day had passed since he died. The following ante-mortem injuries, were found:
1. Lacerated wound 2 cm x 1 cm x skull deep on the front of head, 15 cm above bridge of nose.
2. Traumatic swelling 38 cm x JO cm involving left cheek, left temporal, whole scalp (head), right temporal, right side of head and back side.
3. Abrasion 3 cm x 2 cm in from of right ear associated with traumatic swelling of right temporal.
4. Abrasion 2 cm x 2 cm on the top of right shoulder joint.
10. On internal examination, clotted blood was found in the skull. Frontal, both temporal and parietal as also occipital bones were fractured. Membranes were ruptured and brain contained clotted blood.
11. The defence was of denial. Bharthu claimed possession over the disputed land. The witnesses were said to belong to one party and on account of enmity, they had allegedly joined hands against them (accused).
12. At the trial, the prosecution examined eight witnesses out of whom Raja Ram PW 1, Antu PW 2, Dilram PW 3 and Munesar PW 4 were witnesses of fact. Three of them, namely, Raja Ram PW 1, Antu PW 2 and Munesar PW 4 were themselves injured. Rest were Doctors, Investigating Officer etc.
13. The trial judge, in the main, held that the witnesses, being connected with each other, were not independent. He found them to be untrustworthy and their testimony inconsistent with medical evidence. According to him, the investigation was also faulty. He held that the case could not be deemed to be proved.
14. We have heard Sri R.S. Sengar, learned A.G.A. from the side of the State and Sri P.N. Misra, learned Senior Advocate for the accused respondents,
15. Learned A.G.A. has argued that the trial judge committed error in doubting the eyewitness account rendered by the four eyewitnesses out of whom three were themselves injured. He, according to him, also wrongly held that the statements of the eyewitnesses were not consistent with the medical evidence and that the investigation of the case was not fair. It has been urged that the participation of seven accused respondents in the commission of this crime in murdering Ram Karan and causing injuries to three others, namely, Raja Ram, Antu and Munesar was proved to the hilt. The offences, he urged, were committed in the prosecution of the common object of an unlawful assembly having been formed by them. On the other hand, the learned counsel for the accused respondents has tried to support the acquittal. It has been submitted by him that three accused respondents had allegedly wielded spears, but no spear injuries were sustained either by the deceased or the injured persons. So, the manner of assault as spoken by the eyewitness was surrounded in dubious circumstances. He also urged that the accused respondent Chandradhari was less than 16 years of age at the time of the alleged incident and, in any case, he was entitled to the benefit of Children Act.
16. The record of the case is before us and we have carefully examined it to cross check the findings of the trial judge and to weigh the worth of the arguments advanced from the two sides.
17. We find that Raja Ram PW 1, Antu PW 2, Dilram PW 3 and Munesar PW 4 rendered eyewitness account of the incident. Raja Ram PW 1 is the informant. He and the eyewitnesses Antu PW 2 and Munesar PW 4 are injured also. Raja Ram PW 1 is the nephew of the deceased Ram Karan and Antu PW 2 and Munesar PW 4 are the real brothers of the deceased. Dilram PW 3 is an independent witness resident of the same village whose name finds place in the F.I.R. too. Raja Ram PW 1 narrated the prosecution case as set out earlier that on the fateful day at about 11 A.M. his uncle Ram Karan was taking the bullocks to his grove for tying them. On account of enmity and the dispute over the land, the accused respondents Bhartu and Rhuwal (brothers) appeared armed with spears and stopped his uncle from going towards the grove along with bullocks, saying that it was not Rasta. There was exchange of hot words between Ram Karan on the one hand and Bharthu and Bhuwal on the other, He also reached there. His uncles Antu and Munesar also reached there. Meanwhile Sheobaran, Bechu, Chandradhari, Chandar and Chulli also came there. Out of them, Sheobaran was armed spear and rest had lathis. All of them started attacking his uncle Ram Karan with their weapons. He tried to save, but was assaulted by lathis. Ram Karan was injured and fell down. Antu and Munesar were also assaulted by the accused with lathis. Then Baldhari, Sukhai, Dilram etc. reached there and intervened. He gave topography too that the grove of his family was in the north eastern side of the abadi land through which Ram Karan was taking the bullocks to the grove. He and his uncle were residing, in the same house separately, the door of which was in the west. Towards north was the abadi land. In between, there were two houses. Through the abadi land, there was passage and cattle used to pass through it from before the occurrence. His Madai was in the north and that of Bharthu accused was towards west and both of them had possession over this land from before the occurrence. There was a civil case also regarding this land. Bharthu used to ask him to remove the Madai but he was not inclined to oblige him and the relations between the two sides were strained.
18. As we said, Raja Ram PW 1, Antu PW 2 and Munesar PW 4 are also injured having been assaulted by the accused respondents by lathis. We have set out the details of the injuries in the earlier part of the judgment. As would appear, all of them received blunt weapon injuries which were simple. Dilram PW 3 had his house about 60 paces away in west southern side of abadi land, having exit and Sehan in northern side. He clarified that the disputed land was visible from his house and the same was in the use of the villagers in general. He further stated that Madais of Ram Karan and Bharthu were there on this land. Hearing shouts, he had reached the spot and witnessed the incident. He was seemingly an independent witness. It could not be shown by the accused respondents that either he was thick with the prosecution side or inimical to them. His presence was probablised by the fact that his house was quite nearby. The eyewitnesses Raja Ram PW 1, Antu PW 2 and Munesar PW 4, being themselves injured, their presence at the spot could not be doubted at all. It is of no consequence that they were closely related inter se and also qua the deceased Ram Karan. Rather, their testimony inspires judicial confidence that they rushed up to the rescue of Ram Karan when the exchange of hot words took place between him on the one hand and the accused respondents Bharthu and Bhuwal on the other over issue of taking of bullocks by Ram Karan deceased through abadi land.
19. However, it is noted from the testimony of all the eyewitnesses that the deceased did not sustain any spear injury. The deceased Ram Karan as also the three injured witnesses Raja Ram PW 1, Antu PW 2 and Munesar PW 4 sustained only lathi injuries. It would be recalled that as per the prosecution, Bharthu, Bhuwal and Sheobaran were armed with spears.
20. So far as Bharthu is concerned, he was the root cause of the incident. His presence at the spot as participant of the incident is beyond question. We note that he had even lodged an F.I.R. on that very day against Raja Ram PW 1, Antu PW 2, Siya Ram and Ram Karan deceased under Sections 323, 504/506 I.P.C. (Ext. Ka-16) and if was proved on record by Constable Rajbali Mishra PW 8. This report was lodged on 5.7.1980 at 12.15 P.M. showing the time of incident as about 8 A.M. To come out of the difficult situation, the defence even denied to have lodged any such F.I.R. as per the suggestion made to Rajbali Mishra PW 8. We have not the slightest doubt that after committing this crime with others as claimed by the prosecution, he (Bharthu) hurriedly lodged the F.I.R. Ext Ka-16 against Antu, Siya Ram, Raja Ram and Ram Karan showing the incident of 8 A.M. He did so to create false defence. Later on, however, he retreated on legal advice. The lodging of this F.I.R. was disowned. So, to come to the point, the presence and participation of Bharthu in this incident is not to be doubted at all. May be that the spear held by him could not be used from the right side to strike Ram Karan or the other three injured of the felony. But, it is doubtless that he was one of the members of the unlawful assembly committing the offences in the prosecution of common object of such assembly. However, the other two allegedly spears wielding accused respondents Bhuwal and Sheobaran deserve to be afforded the benefit of doubt because of the absence of any spear injury. It was likely that when five persons participated in the assault, four (Bechu, Chandradhari, Chandar and Chulli) were armed with lathis and one (Bharthu) was armed with spear (though no spear injury was sustained by the deceased or three injured). But it would be too strange coincidence to believe that three out of seven assailants wielded spears but no spear injury was sustained either by the deceased or by the remaining three injured persons. It should be observed at the risk of repetition that the presence of Bharthu in the incident is beyond pale of doubt.
21. We do not see that there was any inconsistency between the ocular testimony and medical evidence. The post-mortem report of Ram Karan shows that he received a forceful lathi blow on his head. The impact was so tremendous that underneath frontal, temporal, parietal and occipital bones were fractured. The ante-mortem injury No. 2 was swelling 38 cm x 30 cm on left cheek and temporal region which could be owing to the impact of lathi injury. Injuries No. 3 and 4 were abrasions. To be short, the fatal injury was the single forceful lathi blow that landed on the head of the deceased. As pointed out earlier, the remaining three injured Raja Ram PW 1, Antu PW 2 and Munesar PW 4 received blunt weapon injuries capable of being caused by lathis. So, the question of any inconsistency between ocular version and medical evidence does not are at all. The finding of the trial judge to the contrary has no basis.
22. The finding of the trial judge as to the alleged faulty investigation also did not produce any adverse effect on the veracity of the witnesses and the prosecution case. The trial judge has recorded in his judgement that the Investigating Officer did not take in possession the blood stained clothes of the injured; on check report, there was no signature and date of the CO.; the letter for medical examination showed that the crime number was mentioned in different ink and there appeared to be interpolations, he did not take search of the houses of the accused persons; the case diary did not show as to where he halted in the night of 5/6.7.1980. We are sure that these and other like insignificant aspects did not make a dent in the prosecution case justifying the throwing away the testimony of the eyewitnesses overboard and to discard the prosecution case in toto. The Supreme Court has repeatedly emphasized that faulty investigation should not be a ground of acquittal. In the case at hand, the lapses in investigation recorded by the trial judge do not even go to the root of the matter. There were three eyewitnesses themselves injured of the felony and the fourth one was an independent witness residing nearby the place of incident whose name found place in the F.I.R. also.
23. It is the duty of the court to separate the grain from the chaff of exaggerations by carefully scrutinizing the evidence brought on record. Letting the guilty escape is not doing justice according to law. Justice cannot be rendered sterile by exaggerated devotion to the concept of benefit of doubt. By process of intelligent reasoning, the court is required to act upon acceptable part of the evidence and to impart justice accordingly.
24. On careful and cautious scrutiny of the evidence on record, the conclusion is inescapable that the five accused respondents Bharthu, Bechu, Chandradhari, Chandar and Chulli formed an unlawful assembly in the prosecution of common object of which complained offences were committed by them. It follows from the above discussion that the participation of the two accused respondents Bhuwai and Sheobaran being doubtful, they are entitled to be given the benefit of doubt. Our of the remaining five named above (Bharthu, Bhechu, Chandradhari, Chandar and Chulli), Bharthu was armed with spear and thus committed the offence of rioting under Section 148 I.P.C. It matters not that no injury of spear was inflicted either on the deceased or three injured. Nonetheless, he was one of the members of an unlawful assembly in prosecution of the common object of which the offences in question were committed. The remaining four, namely, Bechu, Chandradhari, Chandar and Chulli committed the offence of rioting punishable under Section 147 I.P.C. as they were armed with lathis, the injuries of which were inflicted on the deceased and three injured.
25. We now intend to consider as to what offences, other than of rioting, have been committed by the accused respondents Bharthu, Bechu, Chandradhari, Chandar and Chulli. It is obvious that the deceased Ram Karan received a fatal blunt weapon injury on his head which resulted in his death. It is not known as to who amongst the accused was the author of that injury. But Section 149 I.P.C. relates to vicarious liability. To say in other words, all the members of the unlawful assembly are liable to punishment for any or every offence committed by any or more members of that unlawful assembly. The requirement is that the commission of the offence must have been in contemplation of the unlawful assembly either directly or impliedly. In the present case, excluding 'two accused Bhuwal and Sheobaran whose participation in the incident is found to be doubtful, five accused formed an unlawful assembly and participated in this incident. Bharthu had a spear and remaining four, namely, Bechu, Chandradhari, Chandar and Chulli were armed with lathis. Blunt weapon injuries were inflicted on the deceased and three injured witnesses. It is to be noted that lathi blow was not repeated on the head of the deceased, though simple injuries were caused to the three injured witnesses who had come to the rescue of Ram Karan. So, considering all these facts, it should justifiably be inferred that common object of the unlawful assembly was not murder, but only to cause grievous injuries (to Ram Karan). However, a single forceful blow of lathi landed on the head of Ram Karan and he happened to die.
26. Now, we wish to deal with the case of the accused Chandradhari. The learned counsel has argued that he was a child as per U.P. Children Act, being under age of 16 years at the time of incident and as such he cannot be sent to jail even on conviction. We find sufficient force in this argument. It would be noted that the incident took place on 5.7.1980. The statement of the accused respondent Chandradhari was recorded in the trial court on 26.6,1981 in which he gave his age as 16 years. In point of fact, the specific question no. 1 was also put to him under Section 313 Cr.P.C. as to what was his age i.e., 'Aap Ki Umra Kya Hai?' His reply was to this effect: 'Lagbhag 16 Varsh Hai.' There is no observation/remark of the trial judge with regard to his age.
27. U.P. Children Act, 1951 would be applicable for an incident taking place in 1980. Section 2(4) of the Uttar Pradesh Children Act, 1951 (U.P. Act, 1 of 1952) defines a child to mean a person under the age of 16 years. Section 27 of the aforesaid Act says that notwithstanding anything to the contrary in any law, no court shall sentence a child to imprisonment for life or to any terra of imprisonment. Section 29 provides, insofar as it is material, that if a child is found to have committed an offence punishable with imprisonment, the court may order him to be sent to an approved school for such period of stay as will not exceed the attainment by the child of the age of 18 years. The Apex court has held in the case of Bhola Bhagat v. State of Bihar (1997) SCC page 720 that the benefit of Children Act should not be refused on technical grounds. In the instant case also, the benefit of Children Act should be afforded to the appellant Chandradhari. Though the accused respondent Chandradhari was under 16 years of age at the time of incident, but must be about 41 years of age presently. Therefore, there can be no question of sending him to an approved school now. So, we would convict the accused respondent Chandradhari under Sections 147 I.P.C, 325 I.P.C. read with Section 149 I.P.C. and 323 I.P.C. read with Section 149 I.P.C. but no sentence would be passed against him as he is entitled to the benefit of Children Act.
28. In the above circumspectus, we are in judgment that apart from that of rioting as held a little above, the other accused Bharthu, Bechu, Chandar and Chulli also committed the offence under Section 325 I.P.C. read with Section 149 I.P.C., so far as the deceased Ram Karan was concerned and offence under Section 323 I.P.C. read with Section 149 I.P.C. for the injuries caused to Raja Ram, Antu and Munesar.
29. In view of the foregoing discussion, we partly allow this Government Appeal with the following order of conviction and sentences, quashing the acquittal recorded by the trial judge:
(1) The acquittal of the accused respondents Bhuwal and Sheobaran is affirmed.
(2) The accused respondent Bharthu is convicted for the offence of noting under Section 148 I.P.C.
(3) The accused respondents Bechu, Chandradhari, Chandar and Chulli are convicted for the offence of rioting under Section 147 I.P.C.
(4) All these five accused respondents are convicted under Sections 325 I.P.C. read with Section 149 I.P.C. and 323 I.P.C. read with Section 149 I.P.C.
(5) As accused respondent Chandradhari was a. child as per U.P. Children Act, 1951 at the time of incident, no sentence is passed against him and he is afforded the benefit of Children Act which was then in force.
(6) The accused respondent Bharthu is sentenced to undergo rigorous imprisonment for one year under Section 148 I.P.C. Accused respondents Bechu, Chandar and Chulli are sentenced to undergo six months' rigorous imprisonment under Section 147 I.P.C. Each of these four accused respondents are sentenced to undergo three years' rigorous imprisonment under Section 325 I.P.C. read with Section 149 I.P.C. and to pay a fine of Rs. 10,000/- each. In default of payment of fine, each of them shall undergo further rigorous imprisonment for one year. All these four are also sentenced to undergo six" months rigorous imprisonment under Section 323 I.P.C. read over Section 149 I.P.C If the fine is realized, half of it i.e. Rs. 20,000/- shall be paid as compensation to the wife of the deceased Ram Karan. In case she is rot alive, such compensation shall be paid to the other nearest relative of Ram Karan ceased as per Hindu Succession Act, 1956. The remaining amount of fine Rs. 20,000/- shall go to the State exchequer.
(7) Substantive sentences of imprisonment shall run concurrently, but that imposed in default of payment of fine has to be undergone separately.
(8) The accused respondents, namely, Bharthu, Bechu, Chandar and Chulli are on bail. The Chief Judicial Magistrate' Azamgarh shall cause them to be arrested and lodged in jail to serve out the sentences passed against them. He shall report compliance within two months from the date of receipt of this orders.
30. Judgment be certified to the lower court immediately.