Heera Lal & Anr. vs State Of U.P.
2011 Latest Caselaw 4213 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

In the High Court of Judicature at Allahabad
 
Lucknow Bench, Lucknow
 
									A.F.R.
 
Court No. 24
 

 
Reserved
 

 
1.	Case :- CRIMINAL APPEAL No. - 1870 of 2003
 

 
	Petitioner :- Heera Lal & Anr.
 
	Respondent :- State Of U.P.
 
	Petitioner Counsel :- Mustafa Khan
 
	Respondent Counsel :- Govt. Advocate
 

 
And
 

 
2.	Case :- CRIMINAL APPEAL No. - 1912 of 2003
 

 
	Petitioner :- Girdhari And (2) Ors.
 
	Respondent :- State Of U.P.
 
	Petitioner Counsel :- Mustafa Khan,Begum Sabiha  	Kamal,Kaushlendra Tewari
 
	Respondent Counsel :- Govt.Advocate
 

 

 
Hon'ble Rajiv Sharma,J.

Hon'ble S.C. Chaurasia,J.

(Delivered by Hon'ble S.C. Chaurasia, J.)

1. These appeals have been preferred against the impugned judgment and order dated 17.11.2003, passed by the learned Additional Sessions Judge/ Fast Track Court No. 32, Barabanki, in Sessions Trial No. 301 of 2001, State Versus Heera Lal and others, whereby, he convicted the accused Heera Lal, Jannu, Girdhari, Banwari and Harinam, under Sections 147, 148 and 302 read with Section 149 I.P.C., and sentenced to undergo rigorous imprisonment for one year under Section 147 I.P.C., rigorous imprisonment for two years under Section 148 I.P.C. and to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- under Section 302 read with Section 149 I.P.C., and in default of payment of fine, further undergo three months additional imprisonment. All the sentences were directed to run concurrently. It was further directed that half of the total amount of fine deposited by the accused shall be paid to the legal representatives of the deceased as compensation.

2. Since both these appeals have arisen out from the common judgment, they are being disposed of together.

3. The prosecution case, in brief, is that the informant, Sri Ram Bharat, lodged the F.I.R. on 11.3.2001, at 6.30 A.M., at Police Station- Mohammadpur Khala, District-Barabanki, with the allegations that he is resident of village Chiraiya. There was dispute between Dinesh Lodh, son of Badkau and Heera Lal Godia, son of Mahabeer, resident of his village, with regard to sale price of land. His brother Raj Kumar alias Pappu sometimes used to help Dinesh Lodh. On 10.3.2001, in the noon, the sons of Heera Lal had assaulted Dinesh Lodh. At about 8.00 P.M., his brother Raj Kumar alias Pappu reached near their house in order to make complaint about the said incident. He told to Heera Lal that his sons had assaulted Dinesh Lodh without any sufficient ground. On it, Heera Lal armed with LATHI, his sons, Junnu armed with Country made Pistol, Girdhari armed with Axe, Banwari armed with GADASA, Harinam armed with BANKA and Dhani Ram armed with Hand-grenade, came at the spot and caught hold of his brother and told that he should be murdered today. He himself, his cousin brother Yugul Kishore and Ram Autar of his village moved forward to save him, but, Junnu opened fire by Country made Pistol. They were frightened. Heera Lal and his sons carried his brother forcibly to their house. On account of fear, they remained standing at some distance. After about one hour, Heera Lal and his sons came out side their house and after firing, they fled away towards north of the village. They did not enter into the house of Heera Lal for a considerable time on account of fear. When other persons of the village came at the spot, they entered into the house of Heera Lal and saw that the dead body of his brother was lying in the room. His neck was lacerated completely and his head was lying separately. He had no enmity with Heera Lal and his family members. Due to fear and late hours of night, the F.I.R. could not be lodged immediately. On the basis of F.I.R., the case was registered against all the six accused under Sections 147, 148, 302 read with Section 149 I.P.C. The Investigation was conducted by the then S.O., Sri Onkar Singh.

4. After registration of the case, Sri Onkar Singh, Investigating Officer, recorded the statement of the informant at the Police Station and thereafter, proceeded to the place of occurrence along with other police personnel and reached there at about 10.15 A.M. He prepared the inquest report of the dead body of the deceased Raj Kumar alias Pappu and other relevant papers and after completing legal formalities, he sealed the dead body of the deceased and sent the same for conducting post-mortem.

5. The Investigating Officer recovered the simple and blood stained soil from the place of occurrence and prepared recovery memo in the presence of witnesses. He also recovered a pair of Chappal of the deceased from the place of occurrence and prepared recovery memo in the presence of witnesses. The recovered articles were sealed at the spot separately. He recorded the statements of the eye-witnesses, namely, Yugul Kishore, Ram Autar, Chandra Shekhar, Ram Sagar and Ram Jiyawan at the spot. He inspected the place of occurrence at the instance of the informant and prepared the site plan.

6. Dr. C.P. Tiwari conducted post-mortem of the dead body of the deceased, Raj Kumar alias Pappu on 11.3.2001 at 4.00 P.M. and prepared the post mortem report, Exhibit Ka-1. He opined that the death of the deceased was caused due to shock and haemorrhage as a result of ante-mortem injuries.

7. The Investigating Officer recorded the statements of the accused Heera Lal and others on 19.3.2001 in the district jail, after obtaining permission from the court. The accused Girdhari was taken into police custody in the light of the order of the court on 28.3.2001. At about 5.40 P.M. an Axe was recovered from the bushes lying towards north of the field of Ram Autar at the instance of accused Girdhari, in the presence of witnesses and recovery memo was prepared. The recovered Axe was sealed at the spot. The place of recovery was inspected by the Investigating Officer and the site plan was prepared.

8. The recovered Axe allegedly used in the commission of offence and other articles were sent to the Vidhi Vigyan Prayogshala, U.P., Lucknow for examination and the Vidhi Vigyan Prayogshala, U.P., Lucknow has submitted its report dated 13.11.2003.

9. After completing investigation, Sri Onkar Singh, Investigating Officer, filed charge sheet under Sections 147, 148 and 302/149 I.P.C. against the accused, Heera Lal, Jannu, Girdhari, Banwari, Harinam and Dhani Ram.

10. After taking cognizance of the offences, learned Magistrate committed the case relating to the accused to the court of sessions for trial.

11. The file relating to accused Dhani Ram, son of Heera Lal was separated and sent to Juvenile Justice Board, vide order dated 29.6.2002.

12. The accused Heera Lal, Jannu, Girdhari, Banwari and Harinam were charged under Sections 147, 148 and 302/149 I.P.C. They pleaded not guilty to the charges levelled against them and claimed to be tried.

13. The prosecution examined Dr. C.P. Tiwari, P.W.-1, Sri Ram Bharat, P.W.-2, Sri Ram Sagar, P.W.-3, Sri Avsar Ahmad, Constable, P.W.-4, Sri Prem Chandra Shukla, P.W.-5, Sri Mohd. Rashid Khan, Constable/Moharrir, P.W.-6 and Sri Onkar Singh, Investigating Officer, P.W.-7, in support of its case.

14. Dr. C. P.Tiwari, P.W.-1, has proved the post-mortem report, Exhibit Ka-1. The informant, Sri Ram Bharat, P.W.-2, has proved the written report, Exhibit Ka-2. Sri Prem Chandra Shukla, P.W.-5, has proved the recovery memo of simple and blood stained soil, Exhibit Ka-3 and recovery memo of a pair of Chappal of deceased, Exhibit Ka-4. Sri Mohd. Rashid Khan, Constable/Moharrir, P.W.-6, has proved Chik F.I.R., Exhibit Ka-5 and copy of G.D. Report No.6 at 6.30 A.M. dated 11.3.2001, Exhibit Ka-6. Sri Onkar Singh, Investigating Officer, P.W.-7, has proved the recovery memos, Exhibits Ka-3 and Ka-4, Panchayatnama of dead body of the deceased Raj Kumar alias Pappu, Exhibit Ka-7, diagram of the dead body of the deceased, Exhibit Ka-8, Challan lash, Exhibit Ka-9, letters to Chief Medical Officer and R.I., Barabanki for getting the post-mortem conducted, Exhibits Ka-10 and Ka-11, Specimen of seal, Exhibit Ka-12, site plan of the place of occurrence, Exhibit Ka-13, recovery memo of Axe, Exhibit Ka-14, site plan of the place of recovery, Exhibit Ka-15 and charge-sheet, Exhibit Ka-16. He has identified the material Exhibits 1 to 10. The prosecution has also filed the report of Vidhi Vigyan Prayogshala, U.P., Lucknow, Exhibit Ka-17.

15. In their statements, the accused have denied the charges levelled against them. Their version is that they have been falsely implicated in the instant case on account of enmity.

16. The accused examined Sri Ramesh, D.W.-1 and Sri Gaffar Ali, D.W.-2, in their defence. The Ration Card of the accused Girdhari, Exhibit Kha-1, has also been filed, in defence.

17. After appraisal of evidence on record and hearing the learned counsel for both the parties, the then learned Additional Sessions Judge/F.T.C. No. 32, Barabanki, convicted and sentenced the accused Heera Lal, Jannu, Girdhari, Banwari and Harinam, under Sections 147, 148 and 302 read with Section 149 I.P.C., vide impugned judgment and order dated 17.11.2003, as referred to above. Feeling aggrieved by the said judgment and order, the accused Heera Lal and Jannu have preferred the Criminal Appeal No. 1870 of 2003 and co-accused Girdhari, Banwari and Harinam have preferred the Criminal Appeal No. 1912 of 2003.

18. We have heard Mrs. Begum Sabiha Kamal, learned counsel for the appellants, Sri Umesh Verma, learned A.G.A. and perused the entire record.

19. Learned counsel for the appellants has submitted that both the alleged ocular witnesses of the incident, are closely related with the deceased and they are interested witnesses and there are discrepancies in their statements and their testimonies have not been corroborated by independent witnesses and hence, their testimonies should not have been relied upon by the learned trial court; that the prosecution has not examined the eye-witnesses, namely, Ram Autar and Yugul Kishore and has also not examined Sri Dinesh; that Sri Ram Sagar, P.W.-3, the alleged eye-witness of the incident, is not named in the F.I.R.; that no independent witness of recovery of Axe has been produced by the prosecution; that there was a considerable delay in lodging the F.I.R.; that the appellants had no motive to commit the offence; that there are discrepancies in the investigation; that the prosecution has failed to establish the charges levelled against the appellants beyond reasonable doubt and consequently, they deserve acquittal. In support of her contentions, she has placed reliance on the following decisions of the Hon'ble Supreme Court and High Court:-

1. [1988 JIC 538 (LB)], Chandra Pal Versus State.

2. AIR 1996 Supreme Court 2741, Ranjha and another Vs. State of Punjab.

3. AIR 1998 Supreme Court 1752, State of Rajasthan Vs. Mahaveer and others.

4. (1999) 7 Supreme Court Cases 69, Dandu Lakshmi Reddy Versus State of A.P.

5. 2000 Cri.L.J. 3887, Kanhaiya Pandey and others V. State of U.P.

6. 2002 (3) A.Cr.R. 2461 (SC), Laxman Versus State of Haryana.

7. 2005 Supreme Court Cases (Cri) 166, Orsu Venkat Rao Vs. State of A.P.

8. 2005 Supreme Court Cases (Cri) 830, State of M.P. Versus Kriparam.

9. 2005 Supreme Court Cases (Cri) 861, Badam Singh Vs. State of M.P.

10. (2008) 1 Supreme Court Cases (Cri) 126, Surinder Singh alias Chhinda and another Versus State of Punjab.

20. Learned Additional Government Advocate has submitted that both the ocular witnesses have supported the prosecution version and their testimonies have been corroborated by the medical evidence and there are no discrepancies in oral and medical evidence. He has further submitted that the findings recorded by the learned trial court are based on the evidence available on record and there is no perversity in the findings recorded by the learned trial court. His contention is that the testimonies of the ocular witnesses cannot be rejected merely on the ground that they are closely related with the deceased. His contention is that the prosecution has established the charges levelled against the appellants beyond reasonable doubt and they have been rightly convicted and sentenced by the learned trial court and no interference is called for in the impugned judgment and order dated 17.11.2003. In support of his contentions, he has placed reliance on the following decisions of the Hon'ble Supreme Court:-

1. 1985 Supreme Court Cases (Cri) 105, State of U.P. Versus M.K. Anthony.

In para-10 of the judgment, the Hon'ble Apex Court has held as under:-

"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible."

2. [(2010) 2 JIC (SC)], Chunni Lal Versus State of U.P.

3. [2010(3) JIC 799 (SC)], State of U.P. Versus Krishna Master & Ors.

In para-8 of the judgment, the Hon'ble Apex Court has held as under:-

"8. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless the reasons are weighty and formidable, it would not be proper for the appellate Court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the Court. Small/trivial omissions would not justify a finding by Court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a short-coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. In the deposition of witnesses, there are always normal discrepancies, however, honest and truthful they may be. There discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eye-witnesses examined in this case proves the prosecution case."

4. [2011(10) JIC 646 (SC)], Saygo Bai Versus Chueeru Bajrangi.

It has been held by the Hon'ble Apex Court that the Court must read whole evidence. One stray admission cannot be read in isolation with the other evidence.

21. Dr. C.P. Tiwari, P.W.-1, has stated that on 11.3.2001, at 4.00 P.M., he had conducted the post-mortem of the dead body of the deceased, Raj Kumar alias Pappu. His age was about 25 years. His death was caused about one day prior to the post-mortem. He was an average built and rigor mortis has set in both upper and both lower limbs. The body of the deceased was in two parts. The head was separated from the rest of the body. He had found the following ante-mortem injuries on his person:-

1- Incised wound 15 cm. x 16 cm. tks xjnu dkssssss lkroh ljokbfdy ojfVczk ds Åij] ds Lrj ls 'ks"k lkjs 'kjhj ls vyx dj jgk Fkk rFkk bl izfdz;k esa jhM+ dh gM~Mh es:naM rFkk lHkh ekal isf'k;ka /keuh] f'kjk;sa ,oa lEiw.kZ vU; vax dV x;s FksA

2- Incised wound psgjs ds cka;h rjQ eqg ds ck;sa dksus ls 3 cm. nwj ls izkjEHk gksdj mijksDr pksV ua0 1 es fey jgh FkhA

3- Incised wound 6 cm. x 7 cm. ekFks ds cka;h rjQ ck;h HkkSa ds Hkhrjh Nksj ls 7 lseh ÅijA bl ?kko ds uhps dh frontal gM~Mh VwVh gq;h FkhA efLr"d ds pkjksa vksj dh f>Yyh congested FkhA

On internal examination, Dr. C.P. Tiwari found that both the chambers of heart were empty. Large blood vessels going from heart to brain were cut completely at the level of injury No.1. There was semi-digested food in the stomach. The small intestine was full of gases and large intestine was full of faecal matter and gases. Gall bladder was empty. He opined that his death was caused due to shock and haemorrhage as a result of ante-mortem injuries. He has further stated that he had prepared the post-mortem report of the deceased, Exhibit Ka-1 and had affixed his signature thereon. The injuries Nos. 1 to 3 could be caused on 10.3.2001 at about 8.00 P.M. by some sharp edged weapon, such as BANKA, Axe, GADASA. In his cross-examination, he has stated that there may be difference of six hours on either side in the timing of death of the deceased. His death could also be caused on 10.3.2001 at about 10.00 P.M.

22. From the statement of Dr. C.P. Tiwari, P.W.-1 coupled with post-mortem report, Exhibit Ka-1, it is crystal clear that the death of the deceased Raj Kumar alias Pappu was caused on 10.3.2001 at about 8.00 P.M. by the sharp edged weapon, such as BANKA, Axe, GADASA. Now, the point for determination is as to who had caused the death of the deceased.

23. Sri Ram Bharat, P.W.-2 has stated that the incident took place on 10.3.2001 (on the day of 'HOLI' ) at about 8.00 P.M. He himself and Yugal Kishore came outside of their house in order to meet the villagers on the occasion of 'HOLI'. When they reached near the house of Heera Lal, they saw that the altercation was going on between his brother Raj Kumar alias Pappu and Heera Lal and his sons. Heera Lal was armed with LATHI and his sons Jannu, Girdhari, Banwari, Harinam and Dhani Ram were armed with Country made Pistol, Axe, GADASA, BANKA and Hand-grenade, respectively. Heera Lal exhorted his sons to kill him. On it, Heera Lal and his sons lifted his brother forcibly and started carrying him into their house. He moved forward to save him, but, Jannu opened fire by Country made Pistol and told that if he will proceed forward, he would kill him. All the said accused carried his brother Raj Kumar alias Pappu into their house forcibly. On hearing his hue and cry, several persons assembled at the spot, but, did not enter into their house on account of fear and remained standing at some distance. After about one hour, all the accused came out side their house and fled away towards north, after firing. After sometime, on arrival of other persons of the village, they entered into the house of Heera Lal and saw that head of his brother Raj Kumar alias Pappu was lying separately from the trunk. There was moon light on the day of incident. At the time of incident, 'ALAO' was burning infront of the door of Heera Lal.

24. Sri Ram Sagar, P.W.-3 has stated that the incident took place about one and half years back on the day of 'HOLI', at about 8.00 P.M. His relatives/Pattidars reside in village Chiraiya and he himself, along with his brother Chandra Shekhar had gone to village Chiraiya in order to meet them, on the occasion of 'HOLI'. On hearing hue and cry, they reached at the spot and saw that the altercation was going on between Raj Kumar alias Pappu and Heera Lal and his sons in connection with payment relating to field of Dinesh Lodh. Heera Lal was armed with LATHI and his sons Girdhari, Banwari, Harinam, Dhani Ram and Jannu were armed with Axe, GADASA, BANKA, Hand-grenade and Country-made Pistol, respectively. They carried Raj Kumar alias Pappu forcibly into their house. Sri Ram Bharat, Sri Yugul Kishore and Sri Ram Autar were present there. They tried to save him, but, they gave threats to kill them and opened fire by the Country-made Pistol and threw Hand-grenade. On hearing hue and cry, the other persons of the village came at the spot. They did not enter into the house on account of fear. Heera Lal and his five sons came out side the house after about half an hour. They gave threats to kill them and fled away towards north after opening fire. Thereafter, they along with several other persons entered into the house and saw that the head of deceased Raj Kumar alias Pappu was separated from the trunk. He was acquainted with Heera Lal and his sons as he used to go to their village frequently. In his cross-examination, he has stated that the deceased was his cousin brother. His village lies at the distance of half kilometer from the village Chiraiya.

25. We have scrutinized the statements of the ocular witnesses, namely, Sri Ram Bharat, P.W.-2 and Sri Ram Sagar, P.W.-3, thoroughly and carefully and, are of the view that their testimonies are worthy of reliance. The minor discrepancies in the statements of the ocular witnesses are most natural and their testimonies cannot be discarded merely on the ground of minor discrepancies in their statements. They are the most natural witnesses of the incident and their testimonies cannot be disbelieved merely on the ground that they are closely related with the deceased. They would be the least disposed to falsely implicate the accused or substitute them in place of the real culprit. It is a matter of common experience that the independent persons, generally, do not dare to give evidence against the accused on account of fear. The mis-carriage of justice is inevitable, if in each and every case the testimonies of the witnesses, who are closely related with the deceased, are required to be corroborated by the independent evidence. The testimonies of the ocular witnesses have been relied upon by the learned trial court and we have no valid reason to differ from the findings recorded by the learned trial court in this regard. Our view has been fortified by the propositions of law laid down by the Hon'ble Apex Court in the cases of State of U.P. Versus M.K. Anthony and State of U.P. Versus Krishna Master & Ors. (Supra).

26. It has been contended on behalf of the appellants that the alleged ocular witnesses of the incident, Sri Ram Autar and Sri Yugal Kishore, who are named in the F.I.R., have not been examined by the prosecution without any sufficient ground. In our view, the prosecution is not bound to produce all the ocular witnesses to prove a particular fact. It is the quality and not the quantity of evidence which matters more in criminal cases to prove a particular fact. No adverse inference can be drawn against the prosecution on the ground of non-examination of other ocular witnesses of the incident.

27. The learned counsel for the appellants has contended that Sri Ram Sagar, P.W.-3, is a chance witness and his name has not been mentioned in the F.I.R. and, hence, it not safe to place reliance on his testimony. She has also drawn our attention towards the statement of Sri Ram Sagar, P.W.-3, to the effect that he has given the statement today for the first time. Prior to it, he had not given statement. Sri Ram Sagar, P.W.-3, has stated in his examination-in-chief that the police had arrived at 9-10 A.M. and the police had interrogated him. The Panchayatnama of dead body of the deceased was prepared before him and he had affixed his signature thereon. The Sub-Inspector had prepared the Panchayatnama (paper No. A-17) at the spot. Whatever he had seen, he had stated to the Sub-Inspector. He has not been cross-examined on the said point on behalf of the accused. Sri Onkar Singh, Investigating Officer, P.W.-7, has stated that he had recorded the statement of Sri Ram Sagar, P.W.-3 at the spot. Thus, it is clear that Ram Sagar, P.W.-3 is a witness of Panchayatnama of the dead body of the deceased and his statement was also recorded at the spot by the Investigating Officer. Sri Ram Sagar, P.W.-3 has given his statement in the court for the first time and on account of it, he has given the said statement in his cross-examination. From his said statement, it cannot be inferred that he had not given any statement to the Investigating Officer earlier, particularly, when even the suggestion has not been given on behalf of the defence during his cross examination to the effect that the Investigating Officer has not recorded his statement. Besides it, one or two sentences of the statement of the witness cannot be read in isolation and his statement has to be read as a whole. The incident took place on the day of 'HOLI'. It is a matter of common knowledge that on the occasion of 'HOLI', there is practice of meeting with his relatives and friends etc. and it was not unusual for Sri Ram Sagar, P.W.-3 to come to village Chiraiya to meet his close relatives on the occasion of 'HOLI'. Under these circumstances, it cannot be said that he is a chance witness. It is not essential to mention the names of all the eye-witnesses in the F.I.R. The testimony of Sri Ram Sagar, P.W.-3 cannot be discarded merely on the ground that his name was not mentioned in the F.I.R., particularly, when his statement under Section 161 Cr.P.C. was recorded at the spot just after the registration of the case.

28. Learned counsel for the appellants has drawn our attention towards the statement of Sri Ram Bharat, P.W.-2 to the effect that at about 8.00 P.M., Raj Kumar alias Pappu went to the house of Heera Lal to make complaint and at that time, accused armed with KANTA, LATHI, DANDA and BALLAM came there and, has submitted that there are discrepancies with regard to weapons, with which the accused were armed at the time of incident. It is true that there is no mention in the F.I.R. that the accused were also armed with DANDA, KANTA and BALLAM. There is specific mention in the F.I.R. with regard to weapons with which each accused was armed. Sri Ram Bharat, P.W.-2 and Sri Ram Sagar, P.W.-3 have fully corroborated the facts mentioned in the F.I.R. in this regard. The Hon'ble Apex Court has held in the case of Saygo Bai Versus Chueeru Bajrangi (Supra) that the Court must read whole evidence. One stray admission cannot be read in isolation with the other evidence. Relying upon the said proposition of law, we are of the view that the statement of Sri Ram Bharat, P.W.-2 has to be read as a whole and said sentence of his statement cannot be read in isolation. Consequently, the testimony of Sri Ram Bharat, P.W.-2 cannot be discarded merely on the ground of said discrepancy in his statement.

29. Learned counsel for the appellants has drawn our attention towards the statement of Sri Ram Bharat, P.W-.2 to the effect that Heera Lal is not residing in his village for the last about one and half years and on the basis of said statement, she has submitted that Heera Lal was not present at the spot at the time of alleged incident. The incident took place on 10.3.2001. The said statement has been recorded on 1.11.2002. It indicates that Heera Lal was not residing in the village after the said incident. On the basis of said statement, it cannot be inferred that Heera Lal was not present at the spot at the time of incident, particularly, when not even suggestion has been given by the defence to the prosecution witnesses, during their cross-examination, that Heera Lal was not present at the time of incident.

30. Sri Ram Bharat, P.W.-2, has stated that after 17 days of the incident, the Axe used in the commission of the offence was recovered at the instance of accused Girdhari. The accused Girdhari took out the Axe from the bushes lying near the field of Ram Autar. The Sub-Inspector had prepared the recovery memo at the spot and had sealed the Axe stained with blood in a piece of cloth. The witnesses and accused Girdhari had affixed their signatures on the recovery memo. In his cross-examination, he has stated that on that day, he had gone to 'Purwa'. The Sub-Inspector was carrying Girdhari towards west of the village and met him. Then, he told that he had disclosed that he would get the Axe recovered and asked to accompany him. In fact, he has not been cross-examined on the point of recovery and his said statement remains un-rebutted. Sri Onkar Singh, P.W.-7, has stated that on 28.3.2001, after obtaining the custody of accused Girdhari from district jail, the Axe used in the commission of the offence was recovered at the instance of the accused Girdhari, in the presence of witnesses and he had prepared the recovery memo, Exhibit Ka-14 and, after reading over the same, signatures of the witnesses were obtained thereon. He had also sealed the recovered Axe in a piece of cloth. He has identified the Axe, Exhibit-7, recovered at the instance of the accused Girdhari. In his cross-examination, he has stated that the Axe was recovered from the bushes lying by the side of field. Every person could not reach easily on the place of recovery. The said field was lying vacant at that time and there is public way. The witnesses of recovery belong to the family of the informant. They met him all of a sudden and he had not called them. He had not searched out any other witness. The statement of Sri Onkar Singh, P.W.-7, has been corroborated by the statement of Sri Ram Bharat, P.W.-2 in this regard and his testimony cannot be discarded merely on the ground that he is a police personnel, particularly, when the statement of Sri Ram Bharat, P.W.-2, on the point of recovery remains un-rebutted. The site plan of the place of recovery, Exhibit Ka-15, indicates that there is a public way towards west of the field of Ram Autar and the said field was lying vacant, but, the Axe used in the commission of the offence, was taken out by the accused Girdhari from the bushes lying towards east of the said field and the said place of recovery was not easily visible by other persons and, hence, no doubt can be entertained with regard to the prosecution version that the said Axe was recovered at the instance of accused Girdhari. The said recovery of Axe at the instance of accused Girdhari has further corroborated the prosecution version.

31. The Axe, Exhibit-7, along with other articles, was sent for chemical examination and the report of Vidhi Vigyan Prayogshala, U.P., Lucknow, Exhibit Ka-17, indicates that human blood was found thereon, although, the human blood found on the Axe was not found fit for classification of blood. Thus, it is clear that human blood was also found on the Axe, Exhibit-7, recovered at the instance of accused Girdhari.

32. The alleged incident took place on 10.3.2001, at about 8.00 P.M. The F.I.R. was lodged on 11.3.2001, at about 6.30 A.M. The place of occurrence lies at the distance of 7-1/2 kilometers from the Police Station. It has been mentioned in the F.I.R. itself that on account of fear and late night, information about the incident could not be given immediately at the Police Station. The informant, Sri Ram Bharat, P.W.2, has stated in his cross-examination that on account of fear, he had not given the information about the incident to the police immediately. He went to the Police Station in the morning. Thus, the delay has been reasonably explained in the F.I.R. itself as well as in the statement of the informant. It was but natural for the family members of the deceased to get frightened by said incident on the day of 'HOLI' and under the circumstances, some delay in the F.I.R. was inevitable. The delay in lodging the F.I.R. by itself, cannot be sufficient ground to discard the prosecution version, particularly, when it has been reasonably explained.

33. Sri Ram Bharat, P.W.-2, has stated that prior to the incident, Dinesh Lodh of his village had sold his land to Heera Lal and had executed the registered sale deed in favour of the wife of Heera Lal. He had paid a sum of Rs. 50,000/- and a sum of Rs. 50,000/- remained due. Dinesh Lodh used to demand the said amount. When the said amount was not paid, Dinesh Lodh got stopped the mutation in favour of transferee. His brother sometimes used to do pairvi of Dinesh Lodh. On the day of incident, in the noon, the sons of Heera Lal had assaulted Dinesh Lodh and his brother had gone to make complaint about it, to Heera Lal. In his cross-examination, he has stated that Dinesh Lodh was alone and, hence, Raj Kumar alias Pappu used to do his pairvi. A sum of Rs. 30,000/- was due relating to sale deed, which was executed in favour of the wife of Heera Lal. He has denied the suggestion given on behalf of the accused that on 18.9.2000, a sum of Rs. 30,000/- was paid by Heera Lal. It, prima-facie, shows that there was some dispute with regard to payment of sale price of land between Dinesh Lodh and Heera Lal and the deceased Raj Kumar alias Pappu sometimes used to do the pairvi of Dinesh and on account of it, the accused committed his murder. In each and every case, it is not possible for the prosecution to establish the exact motive of commission of offence, because, it is specially within the knowledge of the culprit. Besides it, the motive of commission of offence loses its importance when the case is based on direct evidence. In the instant case, there is direct evidence against the accused and hence, motive to commit offence has lost its importance. The prosecution case cannot be disbelieved merely on the ground that the exact motive of commission of offence has not been fully established by reliable evidence.

34. The soil recovered from the place of occurrence was sent for chemical examination. The report of Vidhi Vigyan Prayogshala, U.P., Lucknow, Exhibit Ka-17, indicates that human blood was found in the soil recovered from the place of occurrence. The place of occurrence has also been fully established from the statements of ocular witnesses. No suggestion has been given on behalf of the defence during the cross-examination of said ocular witnesses that the murder of deceased was committed somewhere else in the night and, later on, his dead body was kept in the house of Heera Lal. Under these circumstances, no doubt can be entertained with regard to the place of occurrence. The place of occurrence has been fully established by the evidence available on record.

35. Sri Onkar Singh, P.W.-7, has stated in his cross-examination that he had not recorded the statement of Sri Dinesh Lodh from whom Heera Lal had purchased the land. No reason can be assigned for not taking his statement. In the ordinary course, the Investigating Officer ought to have recorded his statement, but, even if he had not recorded his statement, the prosecution case has not been affected adversely, because, he is not an ocular witness of the present incident.

36. Learned counsel for the appellants has submitted that the accused Jannu is alleged to have opened fire, but, no pellets etc. were recovered from the spot by the Investigating Officer. The accused Jannu is alleged to have opened fire in the air, but, no fire-arm injury was caused to the deceased or any other person. During the cross-examination of Sri Onkar Singh, Investigating Officer, P.W.-7, no question was asked on behalf of the accused in this regard and he was not provided any opportunity to explain about the non-recovery of pellets etc. from the place of occurrence. It appears that this point has been raised for the first time during the arguments. In any case, the merits of the prosecution case would not affect adversely merely on the ground that some irregularities have been committed during the investigation, particularly, when the prosecution version has been fully established by the evidence available on record.

37. Sri Ramesh, D.W.-1, has stated that he is acquainted with Heera Lal and his sons, Jannu, Girdhari, Banwari and Harinam. They used to go to graze their cattle along with him. Heera Lal used to reside separately from his sons for the last 3-4 years. On the day of incident, in the noon, 'KIRTAN' had started in his village and it continued whole night. The accused were also present there. The village Chiraiya lies at the distance of one and half kilometers from his village. The dead body of Raj Kumar alias Pappu was found near 'Sauranga' at the distance of 50 steps towards west of the temple, in the forest. On hearing about it, he reached at the spot. Several persons had assembled there. In his cross-examination, he has stated that he got acquainted with the accused, on account of grazing cattle with them. Since then, he became their well-wisher and helper. Sri Gaffar Ali, D.W.-2, has stated that he is present Pradhan of village Chiraiya. Accused Heera Lal and his sons, Jannu, Girdhari, Banwari and Harinam used to reside separately. They have also their Ration Cards separately. No suggestion was given on behalf of the accused during cross examination of Sri Ram Bharat, P.W.-2 and Sri Ram Sagar, P.W.-3 that the accused were not present at the spot at the time of incident and at that time, they were present in the 'KIRTAN" in another village, as stated by Sri Ramesh, D.W.-1. In case, there had been any truth in the defence version, ordinarily suggestion in this regard must have been given to the said prosecution witnesses during their cross-examination. Sri Ramesh, D.W.-1, has admitted that he is a well-wisher and helper of the accused. From the Ration Card of Girdhari, Exhibit Kha-1, no inference can be drawn that Heera Lal used to reside separately from his sons. The defence version seems to be after thought and is not worthy of reliance. In the absence of reliable evidence, it is not possible to accept that the accused have been falsely implicated in the instant case on account of enmity.

38. We have gone through the decisions of the Hon'ble Apex Court and this Court (Supra), relied upon on behalf of the appellants and, are of the view that they are distinguishable on facts and, are of no help to the appellants.

39. The Section 149 of the Indian Penal Code provides as under:-

149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- 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 committing of that offence, is a member of the same assembly, is guilty of that offence.

40. From the perusal of Section 149 of the Indian Penal Code, it is clear that when an offence is committed in prosecution of the common object of an unlawful assembly, it is not necessary for the prosecution to prove the actual role played by each and every member of unlawful assembly in the commission of the offence. Every member of unlawful assembly is guilty of the offence committed in prosecution of common object irrespective of the role played by him in the commission of offence.

41. We have gone through the entire evidence on record and we find no valid reason to differ from the conclusions drawn by the learned trial court that the death of Raj Kumar alias Pappu was caused due to ante-mortem injuries inflicted on him by the accused in prosecution of common object of unlawful assembly.

42. Learned trial court has convicted all the accused-appellants under Sections 147 and 148 of the Indian Penal Code also. The provisions of Sections 146, 147 and 148 of the Indian Penal Code may be quoted as under for ready reference:-

146. Rioting.-- Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.

147. Punishment for rioting.- Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

148.- Rioting, armed with deadly weapon.- Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both."

43. In the instant case, all the accused-appellants are guilty of the offence of rioting and at the time of commission of offence, accused Heera Lal was armed with LATHI and accused Jannu, Girdhari, Banwari and Harinam were armed with Country-made Pistol, Axe, GADASA and BANKA, respectively. From the perusal of the aforesaid provisions, it is clear that if any member of unlawful assembly is not armed with a deadly weapon at the time of commission of offence, he is liable to be punished under Section 147 I.P.C. and, if he is armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, he is liable to be punished under Section 148 I.P.C. Meaning thereby, a member of unlawful assembly cannot be convicted and sentenced under Section 147 as well as under Section 148 I.P.C. simultaneously. He may be convicted and sentenced either under Section 147 I.P.C. or under Section 148 I.P.C., as the case may be. The accused Heera Lal was armed with LATHI, which is ordinarily neither a deadly weapon nor used as a weapon of offence, is likely to cause death. The other four accused were armed with deadly weapons. The learned trial court has committed illegality in convicting and sentencing all the accused under Sections 147 and 148 I.P.C. In fact, the accused Heera Lal ought to have been convicted and sentenced under Section 147 I.P.C. and the accused Jannu, Girdhari, Banwari and Harinam ought to have been convicted and sentenced under Section 148 I.P.C. Under these circumstances, the conviction and sentence of the appellant Heera Lal under Section 148 I.P.C. and of the appellants Jannu, Girdhari, Banwari and Harinam under Section 147 I.P.C., as recorded by the learned trial court, cannot be sustained and deserve to be quashed.

44. After perusal of the evidence available on record thoroughly, we are of the view that the learned trial court has rightly convicted and sentenced the appellant Heera Lal, under Sections 147 and 302 read with Section 149 I.P.C. and the appellants Jannu, Girdhari, Banwari and Harinam, under Sections 148 and 302 read with Section 149 I.P.C. and no interference is warranted.

45. In view of foregoing discussions, both the criminal appeals are allowed partly and the impugned judgment and order dated 17.11.2003 are modified accordingly to the extent that the conviction and sentence of the appellant Heera Lal, under Sections 147 and 302 read with Section 149 I.P.C. and of the appellants Jannu, Girdhari, Banwari and Harinam, under Sections 148 and 302 read with Section 149 I.P.C., as awarded by the learned trial court, are affirmed, but, the conviction and sentence of the appellant Heera Lal, under Section 148 I.P.C. and of the appellants, Jannu, Girdhari, Banwari and Harinam, under Section 147 I.P.C. are hereby quashed.

46. The appellants, Girdhari, Banwari and Harinam are in jail. They shall serve out the remaining sentence awarded to them.

47. The appellants Heera Lal and Jannu are on bail. Their bail bonds are cancelled and the sureties are discharged. They shall surrender in the concerned court immediately in order to serve out the remaining sentence awarded to them.

48. The original record along with certified copy of the judgment be sent back to the court concerned forthwith for necessary compliance.

Dated:- August 30, 2011.

Sanjay/	                         [S.C.Chaurasia,J.][Rajiv Sharma,J.]