JUDGMENT M.C. Jain, J.
1. Five accused-appellants, namely, Tribhuwan, Sita Ram, Ram' Suresh, Rajendra and Ram Vijai together with one Jogendra were tried in S.T. No. 132 of 1981 before the IV Additional Sessions Judge, Azamgarh for rioting, murder and assault. Jogendra (non-appellant) came to be acquitted. Ram Vijai has been convicted under Section 302 I.P.C. for murdering one Ram Lagan and sentenced to life imprisonment. All of them have been convicted under Section 325 read with Section 149 I.P.C. and sentenced to four years' rigorous imprisonment for causing grievous hurt to Baijnath. Tribhuwan, Sita Ram, Ram Suresh and Rajendra have also been convicted under Section 324 read with Section 149 I.P.C. with two years' rigorous imprisonment each. Tribhuwan and Ram Vijai have been convicted for rioting under Section 148 I.P.C. and sentenced to undergo a sentence of two years' rigorous imprisonment. Sita Ram, Ram Suresh and Rajendra have been convicted under Section 147 I.P.C. for rioting with one year's rigorous imprisonment. All the sentences have been ordered to run concurrently.
2. The incident occurred on 14.6.1980 at 8.00 P.M. in village Seerpatti within Police Station Ahraula, District Azamgarh and written F.I.R. was lodged on 15.6.1980 at 6.20 A.M. by an eye-witness Shobh Nath PW 1 (son of the deceased Ram Lagan). The informant and the accused-appellants are collaterals. The house of Ram Lagan and accused Ram Suresh were separated by an open space and a wall connected their eastern walls with an opening without shutters. The house of the accused-appellant Sita Ram and his son accused-appellant Tribhuwan was situated towards west of the house of the accused Ram Suresh whose son the accused Ram Vijai is. The house of the accused Rajendra was situated in the same cluster. The frontage of the house of the deceased Ram Lagan was towards east where the incident took place.
3. The accused Tribhuwan was going from his house and when he came out of the opening of the wall joining the houses of the deceased Ram Lagan and Ram Suresh, a pet dog of the deceased started barking on him whereupon he got infuriated and started hurling filthy abuses on Shobh Nath informant and his family members including the deceased Ram Lagan who were sitting at the door of the deceased. The informant and his father Ram Lagan retorted whereupon Tribhuwan went back to his house issuing threats to reappear instantaneously with his father and accused Sita Ram, Ram Suresh, Ram Vijai, Rajendra and Jogendra. Tribhuwan was armed with a pistol; Ram Vijai was carrying a spear; accused Jogendra was having a pharsa whereas the remaining accused were armed with lathis. They started assaulting the deceased. The injured Baij Nath tried to save his uncle but the assailants assaulted him too. The accused Tribhuwan fired on the informant Shobh Nath but fortunately the shot missed the target. Ram Vijai gave piercing blow on the abdomen of the deceased, thereby causing him a serious deep injury. The alarm raised at the spot attracted several persons including Ram Ji and Ram Pratap. On their intervention the assailants ran away. Owing to fear, the victims or their well-wishers could not leave their houses. At about 2 A.M. the informant along with others went to the P.H.C. Ahraula situated opposite the building accommodating Police Station Ahraula. Leaving his injured father in the Hospital, Shobh Nath went to the Police Station and lodged a report. Head Constable Ram Adhar PW 8 prepared the chick F.I.R. and made entry in the G.D. registering the case. Ram Lagan was alive till the report was lodged.
4. Dying declaration of the deceased, before his death, was also recorded by Sub-Divisional Magistrate, Sadar G.B. Sinha PW 10 on 16.6.1980 in District Hospital, Azamgarh. The investigation was started by Udai Narain Rai PW 6 who immediately interrogated the first informant Shobh Nath PW 1 at the Police Station and thereafter went to the P.H.C. where he recorded the statement of the injured. He sent the two injured to District Hospital Azamgarh as no doctor was available at the P.H.C. Ahraula. Ram Lagan and Baij Nath were carried to District Hospital, Azamgrh where they were medically examined by Dr. S.D.P. Gupta at 9.35 A.M. and 10.40 A.M. respectively on 15.6.1980. The Doctor found stab wound 1.5 cm x 1 cm x bone cavity deep right in the epigastric region, 13 cm below right nipple on the person of Ram Lagan. The injury was kept under observation and X-ray was advised of abdomen and chest. He also referred the injured to surgeon for expert opinion as he found that general condition of the patient was low.
5. The same Doctor found six blunt weapon injuries on the person of the injured Baij Nath in the form of contused swelling, contusions and traumatic swelling. All the injuries had been caused by blunt object and were simple except three of them for which X-ray was advised. X-ray of right shoulder revealed fracture of right collar bone and thus one of his injuries came to be grievous.
6. Surgeon of the District Hospital performed surgical operation on Ram Lagan but he succumbed to his injuries on 4.7.1980 at 10.35 A.M. in the District Hospital Azamgarh and information to this effect was sent to the police. It was S.I. Bhupendra Singh PW 5 who conducted inquest proceedings on his dead-body. The dead body, after being sealed, was sent for the post mortem. The autopsy was performed by Dr. B. Das PW 3 on 4.7.1980 at 4.00 P.M. The deceased was aged about 60 years. The ante mortem injury was a stab wound on the abdomen as referred to earlier. The death had been caused due to peritonitis with septicaemia.
7. The defence was of denial and false implication due to enmity.
8. The prosecution examined informant Shobh Nath PW 1 and injured Baij Nath PW 2 as eye-witnesses. The rest of the evidence inclusive of doctors and that relating to investigation of the case was more or less of formal nature.
9. It came in evidence that Jogendra allegedly armed with pharsa had not caused any injury. He was alleged to have exhorted his companions. He was given benefit of doubt. Stabbing the deceased was found to be individual act of Ram Vijai accused. In conclusion, the trial judge recorded the findings as made mention of in the beginning.
10. We have heard Sri G.S. Chaturvedi, learned senior advocate assisted by Sri S.B. Kochar for the accused-appellants and learned A.G.A. Sri S.S. Yadav from the side of the State. We have also perused the record carefully.
11. The argument from the side of the accused-appellants may be summarized thus: Trihhuwan was allegedly armed with pistol but neither the deceased nor the injured sustained any firearm injury; the incident occurred all of a sudden on the barking of the dog of the complainant with exchange of hot words by both the sides, no independent witness came to support the prosecution case, injuries sustained by Baij Nath were incompatible with his having been assaulted by as many as three persons allegedly wielding lathis, namely, Sita Ram, Ram Suresh and Rajendra and lastly it has been submitted that dying declaration of the deceased also created doubt as to the involvement of the accused other than Ram Vijai. For these reasons, the counsel argued, the judgment recorded by the trial court is not sustainable and is liable to be set aside. On the other hand, the A.G.A. supported the findings of conviction recorded by the trial court.
12. So far as the non-examination of other witnesses is concerned, we note that Shobh Nath PW 1 stated before the court that because of party factions, they (other witnesses) had crossed over to the other side. True, in the F.I.R. Ram Ji son of Gokul and Ram Pratap son of Kewal were named as persons who had witnessed the incident and intervened. It should be taken note of that generally people avoid appearing as witnesses in criminal cases unless it is inevitable. The reason is that they do not want to invite trouble for themselves in future. In the case at hand, the informant himself explained that because of party factions other witnesses did not come up to support the prosecution. The non-examination of other witnesses by the prosecution to buttress its case could not be taken adversely against it and the argument of the learned Counsel for the accused-appellants in this behalf does not impress us. The corroboration as a condition for judicial reliance on the testimony of a witness is not a matter of law. Rather it is guidance of prudence under given circumstances.
13. We find that the testimony of Shobh Nath PW 1 and Baij Nath PW 2 clinchingly established the five accused-appellants to be participants of this crime. No doubt, Shobh Nath PW 1 was the son of deceased whereas Baij Nath PW 2 who received injuries in the same incident was the nephew of the deceased. Normally, a close relative of the deceased would be most reluctant to spare real culprits and falsely substitute others. It has been held by the Supreme Court in the case of Agnoo v. State of Uttar Pradesh AIR 1971 SC 296, that if a witness is brother of the deceased, his relation would add to the value of his evidence because he would be interested in getting the real culprits, rather than the innocent, punished. In another case reported in AIR 1982 SC 1076, State of Uttar Pradesh v. Suresh alias Chhawan and Ors., the Apex Court has ruled that the statement of the family members of the deceased cannot be rejected on the ground that he is related to the victim. What is required is that the statement is to be scrutinized with care. In the present case, Shobh Nath PW 1 and Baij Nath PW 2 were subjected to gruelling cross-examination which they withstood firmly. Their testimony was consistent and in conformity with natural probabilities of the situation. The incident took place at the door of the deceased. One of them, namely, Baij Nath PW 2 was an injured also who received injuries in the same incident. The incident took place at about 8.00 P.M. when the presence of both the witnesses at the place of incident was natural. Admittedly, there was no previous enmity between the family of the deceased/witnesses on the one hand and the accused on the other. Rather their relations were cordial and they were collaterals.
14. The gist of the testimony of Shobh Nath PW 1 was that he, his father Ram Lagan and other family members were present at their door. Their pet dog barked at the accused Tribhuwan who was passing by that side. Tribhuwan started abusing him and his family members resulting in the exchange of hot words, Tribhuwan retreated his steps and after a short while came with other accused. Ram Vijai gave piercing blow from his spear to his father Ram Lagan and the accused Tribhuwan opened a shot on him but he luckily escaped unhurt. The other accused Sita Ram, Rajendra and Ram Suresh assaulted his cousin Baij Nath PW 2, The other witness Baij Nath PW 2 corroborated his testimony in all material particulars. He explained that he was lying at his door and rushed to the spot on the exchange of abuses where he was assaulted by Sita Ram, Ram Suresh and Rajendra, He, too, stated that Ram Vijai struck spear in the abdomen of Ram Lagan and that Tribhuwan opened shot on Shobh Nath but he escaped unhurt. The testimony delivered by these eyewitnesses was in conformity with medical evidence inasmuch as the deceased Ram Lagan sustained stab wound in his abdomen capable of being caused by spear wielded by Ram Vijai accused, Baij Nath PW 2 sustained blunt weapon injuries of lathis wielded by Sita Ram, Ram Suresh and Rajendra. It matters not that the shot opened by Tribhuwan did not cause any injury to anyone. The point of the matter is that he was member of the unlawful assembly in prosecution of common object of which he opened shot. The argument of the learned Counsel for the accused- appellants that no one was hit by the shot allegedly fired by Tribhuwan cannot score any point in their favour.
15. Baij Nath sustained six visible blunt weapon injuries including two multiple contusions indicating the plurality of the assailants. He sustained fracture also (fracture of right collar bone). The argument cannot be accepted that injuries sustained by him were disproportionate to his having been assaulted by lathis by three persons, namely, Sita Ram, Ram Suresh and Rajendra. As a matter of fact, the ocular evidence considered in the light of medical evidence unerringly established that the accused Sita Ram, Ram Suresh and Rajendra being members of the unlawful assembly caused injuries to him including a fracture by raining lathi blows.
16. We now come to the dying declaration of the deceased. We do not think that the dying declaration of the deceased Ram Lagan recorded by Sri J.B. Sinha, S.D.M., Sadar PW 10 on 16.6.1980 creates any doubt as to the participation of the accused Sita Ram, Ram Suresh and Rajendra in the present incident as members of unlawful assembly with Ram Vijai who stabbed Ram Lagan in his abdomen. Needless to say, dying declaration is a statement of dying person as to the circumstances of the transaction resulting in his death admissible under Clause (1) of Section 32 of Indian Evidence Act. He did emphatically and unambiguously speak about it that he had been given a spear blow by Ram Vijai. He also stated about the relevant circumstances that the incident occurred over the barking of his dog and the exchange of hot words between two sides over this issue. He also stated that Tribhuwan had opened a shot. It was there in his dying declaration that after receiving spear blow, he fell down and his consciousness blurred. It was natural because he had received serious spear injury in his abdomen. It is of no consequence that he did not say in his dying declaration about Baij Nath also having been assaulted by lathis by the other three accused, Baij Nath had been assaulted by lathis by Sita Ram, Ram Suresh and Rajendra just after he (Ram Lagan) had fallen down on receiving spear blow in his abdomen. The dying declaration is intact as to the cause of the death of the deceased and the circumstances of the incident. Non-mention of assault of Baij Nath by Sita Ram, Ram Suresh and Rajendra in the dying declaration of the deceased is not at all material. Rather it indicated that he spoke in his dying declaration only about what he saw with his own eyes before being overcome by unconscious on receiving fatal spear blow. The criticism of the dying declaration made by the learned Counsel for the accused-appellants is rejected.
17. The trial court rightly gave benefit of doubt to the sixth accused Jogendra who allegedly was armed with pharsa and to whom only role of exhortation was assigned. But the participation of the present five accused-appellants, namely, Tribhuwan, Sita Ram, Ram Suresh, Rajendra and Ram Vijai was clinchingly established that as members of the unlawful assembly they were involved in this incident,
18. The question naturally arises as to what offences did they commit within the ambit of law. Of course, all of them were members of the unlawful assembly but it is important to note that there was no previous enmity between the parties. There was no premeditation. The incident originated all of a sudden over a trivial issue of the barking of pet dog of the family of the deceased when Tribhuwan accused was passing that way at about 8.00 P.M. All of them lived in the same cluster. It was foolish on the part of Tribhuwan to have rebuked or abused the deceased and his family members simply because their dog barked when he was passing. Nobody could understand the psychology of a dog. The complainant and his father (deceased) behaved no better in retorting and trading hot words with the accused, as if supporting the barking of the dog. The incident occurred all in one go in continuation of the exchange of hot words between the two sides over the barking of dog. To be short, in a sudden quarrel and the heat of passion the incident occurred. The common object of unlawful assembly seemingly was to chastise the deceased and Ors. on his side over the barking of the dog of the latter. It was, indeed, individual act of Ram Vijai that he fatally stabbed Ram Lagan in his abdomen with spear. Other members of the unlawful assembly could and should not be held vicariously liable for his this individual act, because the stabbing was not done by him in prosecution of the common object of the unlawful assembly which, as we said, was only chastisement. The fact is, however, there that Ram Vijai also did not repeat the spear blow despite persons on the prosecution side being unarmed. His this individual act is covered by Exception-4 of Section 300 I.P.C. It was culpable homicide not amounting to murder punishable under Section 304 I.P.C. Part I. The reason is that the act by which death was caused (stabbing the deceased by spear in his abdomen) shall be deemed to have been done by him with intention of causing such fete injury as was likely to cause the death of the victim. Therefore, he, instead of an offence under Section 302 I.P.C., committed an offence punishable under Part I of Section 304 I.P.C. for fatally stabbing Ram Lagan in his abdomen resulting in his death.
19. He (Ram Vijai) as well as the accused Tribhuwan being armed with deadly weapons i.e. spear and firearm respectively committed an offence of rioting punishable under Section 148 I.P.C.
20. Others, namely, Sita Ram, Ram Suresh and Rajendra being armed with lathis committed an offence of rioting punishable under Section 147 I.P.C.
21. For assaulting and causing injuries including fracture to Baij Nath PW 2, all the accused-appellants also committed an offence punishable under Section 325 read with Section 149 I.P.C., the injuries to Baij Nath (including fracture) having been caused to him in prosecution of the common object of the unlawful assembly (though it is not established as to who out of lathi wielding accused caused fracture). Having regard to Section 71 I.P.C., they need not separately be punished under Section 323 read with Section 149 I.P.C.
22. On holistic consideration of the entire set of facts and circumstances including the injuries of Baij Nath, we think it proper to award the sentence of fine only for the offences of rioting and under Section 325 read with Section 149 I.P.C. That would meet the ends of justice keeping in view the facts of this individual case.
23. In view of the above discussion, we finally partly allow this appeal, modifying the conviction and sentences of the accused-appellants in the following way: -
24. The accused-appellants Tribhuwan and Ram Vijai are convicted under Section 148 I.P.C. The accused Ram Vijai is convicted under Part I of Section 304 I.P.C. The accused-appellants Sita Ram, Ram Suresh and Rajendra are convicted under Section 147 I.P.C. All the five appellants, namely, Tribhuwan, Rani Vijai, Sita Ram, Ram Suresh and Rajendra are also convicted under Section 325 read with Section 149 I.P.C.
25. The accused Ram Vijai shall undergo rigorous imprisonment for 10 years under Part I of Section 304 I.P.C. Under Section 148 I.P.C., he is sentenced to pay a fine of Rs. 3,000/- and under Section 325 I.P.C. read with Section 149 I.P.C. to pay a fine of Rs. 10,000/-. In default of payment a fine, he shall undergo a sentence of three months rigorous imprisonment under Section 148 I.P.C. and one year's rigorous imprisonment under Section 325 I.P.C. read with Section 149 I.P.C. It is made clear that in case Ram Vijai to whom 10 years' rigorous imprisonment has been awarded under Part I of Section 304 I.P.C. does not pay the amount of fine imposed upon him as substantial punishment under Section 148 I.P.C. and under Section 325 read with Section 149 I.P.C. he shall suffer three months' further rigorous imprisonment- and one year's further rigorous imprisonment for the offences punishable under Section 325 read with Section 149 I.P.C. respectively separate to that of ten years' rigorous imprisonment passed under Part I of Section 304 I.P.C.
26. The accused-appellant Tribhuwan is sentenced to pay a fine of Rs,3,000/- for the offence punishable under Section 148 I.P.C. and to pay a fine of Rs. 10,000/- for the offence punishable under Section 325 read with Section 149 I.P.C. In default of payment of fine of Rs. 3,000/-, he shall suffer rigorous imprisonment for three months and one year's further rigorous imprisonment in default of payment of fine of Rs. 10,000/-.
27. Each of the accused-appellants Sita Ram, Ram Suresh and Rajendra is sentenced to pay a fine of Rs. 1,000/- for the offence punishable under Section 147 I.P.C. and each of them shall pay a fine of Rs. 10,000/- for the offence punishable under Section 325 read with Section 149 I.P.C. In default of payment of fine of Rs. 1,000/- each of them shall suffer a rigorous imprisonment for one month and for one year's rigorous imprisonment in default of payment of fine of Rs. 10.000/-.
28. The amount of fine imposed as substantial punishment shall be paid within two months from the date of this order. Failing that, imprisonments awarded in default of payment of the same would be undergone by the accused-appellants.
29. The accused Ram Vijai to whom substantial sentence of ten years' rigorous imprisonment has been awarded under Part I of Section 304 I.P.C. shall be caused to be arrested by the Chief Judicial Magistrate, Azamgarh and lodged in jail to serve out the sentence passed against him. He shall also oversee that the payment of amounts of fine by the other accused-appellants is made within the stipulated time and if it is not done by them, they shall also be caused to be arrested and lodged in jail to undergo the sentences of imprisonment in default of payment of fine.
30. The compliance be reported to this Court by him within three months from the date of receipt of a copy of this order which shall be sent by the Office within ten days positively.