Allahabad High Court
Santosh & Another vs State Of U.P. on 18 December, 2012
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
A.F.R.
CRIMINAL APPEAL NO. 4774 of 2005
1. Santosh son of Daya Ram,
2. Lokendra Singh son of Raghu Raj Singh
Both resident of village Parasa, P.S. Tehrauli, District Jhansi.
....Appellants
versus
State of Uttar Pradesh
...Respondent
connected with:
CRIMINAL APPEAL NO. 4649 of 2005
1. Harish Chand son of Mahendra Singh
2. Laxmi Chand son of Mahendra Singh
3. Jai Hind son of Har Narain
4. Manvendra Singh son of Har Narain
All resident of village Parasa, P.S. Tehrauli, District Jhansi
...Appellants
versus
State of Uttar Pradesh
...Respondent
AND
CRIMINAL APPEAL NO. 4191 of 2005
1.Mahendra Singh son of Jagdish Chandra Yadav
2.Rajendra Sigh son of Jagdish Chandra Yadav
Both resident of village Parasa, P.S. Tehrauli, District Jhansi
.Appellants
versus
State of Uttar Pradesh
...Respondent
Counsel for the appellants :- Sri V.P. Srivastava, Senior Advocate
assisted by Sri A.S. Chaturvedi and
Sri Anil Srivastava,
& Sri G.S.Chauhan
Counsel for the complainant/ respondent:- Sri N.K. Sharma &
Mrs. Usha Kiran,AGA
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
( Delivered by Hon'ble Rakesh Tiwari, J.)
1. Heard Sri V.P. Srivastava, Senior Advocate assisted by Sri A.S. Chaturvedi, Sri Anil Srivastava and Sri G.S. Chauhan, learned counsel for the appellants, Sri N.K. Sharma, learned counsel for the complainant, Ms. Usha Kiran, learned AGA and perused the record.
2. Challenge in these criminal appeals arising out of S.T. No. 194 of 1998, State versus Mahendra Singh and others is to the judgment and order dated 21.9.2005 passed by the Sessions Judge, Jhansi convicting and sentencing appellants Mahendra Singh, Rajendra Singh, Harish Chand, Laxmi Chand, Jain Hind Singh, Manvendra Singh, Santosh Singh and Lokendra Singh under Section 302 IPC read with Section 149 IPC for imprisonment of life and fine of Rs. 5,000/-. The judgment and order impugned further provides that in default of payment of fine the appellants have to further undergo RI for six months. They have also been sentenced to undergo RI for one year under Section 147 IPC and also sentenced to undergo RI for one year each for the offence punishable under Section 323 IPC read with Section 149 IPC. Appellants Mahendra Singh and Rajendra Singh have also been convicted and sentenced to undergo RI for two years for the offence under Section 148 IPC. All the sentences were ordered to run concurrently.
3. The case of the prosecution in the trial Court was that complainant Brijendra Singh resident of village Parsa, P.S. Tehrauli, District Jhansi made a written report to the S.O. Tehrauli on 11.12.1997 alleging that he along with his cousin brother Ravindra Singh ( deceased) son of Om Prakash, Komal Singh son of Bhan Singh, Shambhu Dayal son of Radha Prasad, Laxman Singh son of Santosh Singh and Ayodhya Prasad son of Dwarika Prasad were returning from village Berbai, after attending 'Terahvi' (a feast given on thirteen days of death). When they reached in front of the house of accused Mahendra Singhat about 5.30 P.M Mahendra Singh and Rajendra Singh both sons of Jagdish Chand, armed with guns along with Harish Chand, Laxmi Chand, both sons of Mahendra Singh, Jai Hind and Manvendra Singh both sons of Har Narain, Santosh Singh son of Daya Ram and Lokendra Singh son of Raghuraj Singh all armed with lathis came out of the house of Mahendra Singh. On exhortation given by Mahendra Singh and Rajendra Singh that none should be spared. the complainant and Rajendra Singh (since deceased) were beaten up by the accused persons with lathis. On hearing their cries and shouts the persons accompanying them challenged the assailants. The accused Mahendra Singh and Rajendra having guns fired with clear intention to kill them but missed. After firing with their country made pistols all the accused persons ran away towards mountain. Motive was also disclosed in the written report saying that this incident was result of the fact that in March, 1997 Lokendra Singh and others had kidnapped the sister of Ravindra Singh, Smt. Bhuri and the accused persons were harbouring grudge against complainant Brijendra Singh as he had tried to help in the criminal case against the accused persons.
4. On the basis of the written report chick report was prepared at 6.30 P.M. in police station Tehrauli, which was about at a distance of 6 kms. towards west from the place of occurrence. G.D. entry at sl. No. 22 was made and case crime no.115 of 1997, under Sections 147, 148,149,307,323 and 504 IPC was registered against the accused persons.
5. The case was investigated by Sri Sikandar, S.O. of P.S. Tehrauli. After recording the statements of Ravindra Singh and Brijendra Singh at the police station, injured Ravindra Singh was sent to Medical College at Jhansi whereas Brijendra Singh was sent for medical examination/treatment to Primary Health Centre, Gursarain. The I.O. collected sample of blood stained and plain earth from the place of occurrence and prepared recovery memo. The I.O. also prepared the site plan of the place of occurrence and recorded the statement of Head Constable Balwant, scribe of the chick FIR and G.D.
6. Dr. Narendra Kumar, (P.W.7) who was posted as a casualty Medical Officer in Laxmi Bai Medical College, Jhansi had examined injured Ravindra Singh on 11.12.97 at about 7.40 P.M. and reported the following injuries.
1.Lacerated wound on scalp left parietal region approximately, 9 cm.x 1 cm. x 1 cm., fresh blood present, fresh in duration, caused by hard and blunt object. Advised x-ray.
7. An application dated 13.12.1997 was moved by Om Prakash that his son Ravindra Singh had died on 12.12.1997 at Medical College, Gwailor where he had been referred to by the Doctor of Medical College, Jhansi. He also informed that the inquest and post mortem on the body of deceased Ravindra Singh had been conducted there and the body of the deceased has been brought to Jhansi for his last rites.
8. On the basis of information received from the father of deceased Ravindra Singh the case was converted into Section 302 IPC vide G.D. No. 12 dated 13.12.1997 at 12.30 P.M. Perusal of external examination of the body of deceased showed that he was of average built body. His right eye was black, a hole was present on the neck, which was made for his treatment. Hypo-stasis was in the process of fixation. Rigor mortis was developing on the upper extremities. On internal examination the Doctor found following injuries on the person of the deceased.
1.Scalp:-
Ecchymosed allover, more on fronto-parietal and left temporo- parietal region.
2.Skull:-
(a) sutural separation of coronal suture 12 cm. right lateral to middle and 3 cms. left lateral to mid line (15 cms.)
(b) oblique fissured # of left parietal bone for 2 cms. from left lateral end of # (a);
(c) Fissured # of left parietal bone for 8-1/2 cms. anteroposterior from a part of coronal suture 5 cms. left lateral to mid line.
(d) Fissured # of left tempoparietal bone for 6 cms. anteroposteriorly oblique.
(e) Sutural separation of coronal suture on left side with fissured # of left side with fissured # of left frontal bone 6 cms. long.
(f) Fissured # of middle cranial fossa on both sides.
Brain:- Subdural haematoma on vertex and occipital region, subarachnoid haemorrhage on left frontoparietal and right temporo occipital region.
9. In the opinion of the Doctor, all the ante mortem injuries both external and internal were caused by blunt object and were inflicted within 36 hours of the death of the deceased. The fracture( shown by mark #) of skull bone and the injuries found in the brain were sufficient to cause the death of normal person. The external injuries nos. 1,3,7,8 and 9 were caused by another person. The Doctor has also opined that injuries nos. 1,3,7, 8 and 9 were possible with lathi and injuries nos. 2,4,5 and 6 were possible by falling down and that the injuries could be caused on 11.12.1997 at about 5.30 P.M. Perusal of the post mortem report showed that deceased Ravindra Singh son of Om Prakash was aged about 25 years and had died at Gwailor on 12.12.1997 due to cardiorespiratory failure as a result of fracture in skull bones and the brain injuries.
10. The ante-mortem injuries found on the person of the deceased referred to by the Doctor in his post mortem report are:-
1.SSW on left fronto-parietal region 12 cms. long situated anterio-posteriorly.
2.Abrasion 2 cm. below the posterior end of hurt no.1, 3-1/2 cms. x 2 cms.
3.Rail pattern bruise on postero-lateral aspect of left forearm 9 cms. below elbow with healthy area in between 8-1/2 cms. x 2-1/2 cms. R.P.
4.M.A. on postero-lateral aspect of right forearm 2-1/2 cms. below elbow in an area of 7 cms. x 6-1/2 cms. the size ranges from pin head diameter to 1-1/2 cm. x 1-1/2 cm.
5.Abrasion on posteromedial aspect of middle 1/3 of right fore arm 5 cms. x 1/2 cm.
6.Abrasion on later aspect of right thigh 12-1/2 cms. below right axis, 1-1/2 cm.x 1-1/2 cm.
7.Contusion on postero-lateral aspect of left thigh, 7 cms. x 3-1/2 cms. R.P.
8.Another contusion on lateral aspect 3-1/3 cms. away from the hurt no.7, 6-1/2 cms. x 3 cms.R.P.
9.Contusion on lower half of left thigh. On antero lateral aspect, 9-1/2 cm. x 2-1/2 cms. R.P.
11. After post mortem the clothes taken from the body of the deceased were handed over to the concerned police personnel in a sealed packed. The doctor in his statement has proved the post mortem report as Ex.Ka-15.
12. On receipt of information vide letter dated 13.12.97 regarding the death of injured Ravindra Singh the I.O. recorded the statement of Komal Singh and others along with him and the witnesses of Panchyatnama. He also added Section 120-B IPC in the case and arrested accused Jagdish on 26.12.97 where his statement was recorded in District Jail, Jhansi on 28.12.97. Accused Hari Narain was arrested on 3.1.98 whereas accused Santosh surrendered in Court on 19.1.1998. The Investigating Officer on conclusion of the investigation submitted charge sheet against the accused persons on 28.1.1998, who were committed to the Court of Sessions on 13.8.1998 by the IInd Addl. Chief Judicial Magistrate, Jhansi. They were charged under Sections 147,148, 323 IPC read with Section 149 and 302 IPC read with Section 149 IPC. The accused persons denied the charges and claimed to be tried.
13. The prosecution examined 13 witnesses namely, Brijendra Singh, complainant, P.W.1, Komal Singh, P.W.2, Dr. G.S. Awasthi, P.W.3, Balram, P.W.4, Head Constable Balwant, P.W.5, S.O. Sri Sikandar Singh, P.W.6, Dr. Narendra Kumar, P.W.7, Head Constable Rameshwar Sharma, P.W.8, Om Prakash, P.W.9, Dr. Madhup Kumar, P.W.10, Head Constable Ram Sewak, P.W.11, Constable Jaswant Singh, P.W.12, Constable Ram Shankar, P.W.13 and Sri Mumtaz Khan, P.W.14 in support of its case.
14. Accused-appellants were examined under Section 313 Cr.P.C. who stated that they have been falsely implicated in this case and the prosecution witnesses have given false statements against them.
15. Brijendra Singh, P.W.1, the complainant reiterated the version of his written report which was proved by him. Komal Singh, P.W.2, an eye witness of the incident narrated the whole of the incident of beating of Ravindra Singh and Brijendra Singh by the accused persons and that Ravindra Singh died in the Hospital at Gwalior due to injuries received on his head.
16. Dr. G.S. Awasthi, P.W.3 in his statement testified the injuries of Brijendra Singh thus:-
1.Contused swelling on left side of shoulder joint, 6 cm. x 2 cm. red in colour, 3 cm. away from left shoulder joint.
2.Contusion on left fore arm 7 cm. x 2 cm. red in colour, 5 cm. above from left wrist joint. Complain of pain left forearm. No mark of external injury. No opinion.
3.Abrasion on left back of lumber region, 3.5 cm. x 2 cm. red in colour, 3 cm. above from left iliac crest of bone. Complain of pain right side of skull. No mark of external injury. No opinion.
He also proved the injury report (Ex.Ka-2). He opined that the injuries were fresh, simple in nature at the time of examination and that injuries nos. 1 and 2 could be of lathi and injury no.3 by friction.
17. Balram, P.W.4 stated that he was grazing his cows near his village Berbai where Jagdish and Har Narain were sitting when they saw Brijendra Singh, Ravindra singh and Komal Singh coming. He was told by them to go away from the place . On this he went away and after some time he heard firearm shot and thereafter saw Mahendra Singh and Rajendra Singh armed with guns, Manvendra Singh, Jai Hind, Lokendra Singh, Santosh Singh, Harish Chand and Laxmi Chand armed with lathis going towards the mountain.
18. Head Constable, Balwant (P.W.5) is the scribe of the FIR who proved the G.D. entry and the chick report stating that he had been informed on 13.12.97 by Om Prakash, the father of the deceased that his son Ravindra Singh had died on 12.12.97 at Gwalior and that on this information Section 302 IPC was added to the case. S.O. Sri Sikandar Singh (P.W.6) described the measures taken by him in the investigation. Whereas Constable Rameshwar Sharma (P.W.8) stated that he was posted as Head Constable at P.S. Kampoo, in District Gwalior and had received information regarding the death of Ravindra Singh son of Om Prakash at the police station from Neurosurgical Department of G.R. Medical College, Gwalior. He also proved information as Ex.Ka-11, prepared inquest report of the corpse of Ravindra Singh which was handed over to constable Hari Singh carrier of the body for its post mortem examination.
19. Om Prakash, father of the deceased was examined as P.W.9 by the prosecution, who explained the relationship between accused Mahendra Singh, Rajendra Singh, Lokendra Singh, Laxmi Chand and Harish Chand saying that Mahendra Singh and Rajendra Singh are real brothers and accused is their nephew whereas the other two i.e. Laxmi Chand and Harish Chand are the sons of Mahendra Singh. Regarding Jai Hind Singh, Manvendra Singh and Santosh Singh he stated them to be the friends and Har Narain as the father of Manvendra Singh. He also gave motive saying that his daughter Smt. Bhuri had been kidnapped by accused Lokendra Singh and Santosh about 9 months back regarding which a case had been instituted in which Brijendra Singh was doing pairvi, therefore, the accused persons were having enmity. This witness also stated that on hearing the retort of firearm he reached near the house of accused Mahendra Singh and saw him along with Shambhu Dayal, Laxman, Ayodhya Prasad etc. He found his son Ravindra Singh lying in a pool of blood. He further stated in his statement that he had seen accused Mahendra Singh and Rajendra Singh armed with guns and other accused persons with lathis, when challenged by them, the assailants ran way towards the mountain side. He then narrated taking of his son to Medical College,Jhansi where his condition became critical and as such his son was referred for medical treatment at Gwailor where he died on 12.12.97 at about 2.00 P.M. He lastly stated that inquest and the post mortem on the cadaver of his deceased son was conducted at Gwailor and that he had informed the police of P.S. at Tehrauli for doing needful and performed the last rites of his son at Jhansi.
20. P.W.7, Dr. Narendra Kumar and P.W.10, Dr. Madhup Kumar respectively were also examined by the prosecution. P.W.7, Dr. Narendra Kumar stated that he was posted in casualty department as Medical Officer in Maharani Laxmi Bai Medical College, Jhansi and had examined the injuries of Ravindra Singh son of Om Prakash who had been brought by constable Ram Shanker. This injured was referred to Gwailor as his condition was stabilizing. He also proved the injury report dated 11.12.97. Dr. Madhup Kumar, who had performed the autopsy on the body of deceased Ravindra Singh at Gwailor was examined as P.W.-10, who proved the post mortem report and had handed over the articles recovered from the body of the deceased Ravindra Singh during post mortem in sealed packed to police for being sent to the Forensic Science Laboratory for investigation.
21. Head Constable Ram Sewak, ( P.W.11) who was posted as Head Moharrir in Sadar Malkhana, Jhansi, at the relevant time proved receipt of the articles recovered by the I.O. as well as from the Doctor after post mortem report which he had deposited in the Malkhana in a sealed condition whereas Constable Jashwant Singh P.W.12, proved paper no.121-B relating to reminder from the office of C.O. Tehrauli which he had taken to Forensic Science Laboratory, Agra but the property after scientific investigation had not been handed over to him. He stated that he had been handed over letter ( Ex.ka-18) informing that the property had been sent to C.J.M. Jhansi on 13.7.98. Constable Ram Shanker( P.W.13) stated that he was posted as a Constable at P.S. Tehrauli, District Jhansi and had gone to Forensic Science Laboratory, Agra with the case property which he had deposited there in fact in sealed condition.
22. The last witness produced by the prosecution is Mumtaz Khan ( P.W.14) who was posted as Clerk in the Court of C.J.M., Jhansi. He had received the case property which he had entered in the Register at sl. no. 172 and proved its entry but stated that inspite of best search the case property was not available in the court.
23. After hearing learned counsel for the parties and on appreciation of evidence on record the trial Court found that the prosecution had been able to prove its case beyond all reasonable doubts against accused persons Mahendra Singh, Rajendra Singh, Harish Chand, Laxmi Chand, Jai Hind Singh, Manvendra Singh, Santosh Singh and Lokendra Singh described as Ist set in the jugment impugned.
24. The Court below took up the case of second set of accused persons i.e. Hari Narain and Jagdish against whom charge under Section 120-B IPC was added and who were said to have been sitting near Balram, P.W.4 and are alleged to have told Har Narain to go away on seeing Brijendra Singh, Komal Singh and Ravindra Singh coming on the road from village Berbai. The Court below was of the opinion that even this statement of P.W.4 is assumed to be correct and believable, it does not prove any criminal conspiracy as the prosecution has failed to show any nexus of these accused of 2nd set with the unlawful act of the accused of this first set and that since charge of conspiracy could not be brought home within the ambit of Section 120-B IPC, therefore, in absence of any conspiracy between the two sets for committing any offence acquitted the accused Jagdish and Hari Narain of second set from charge under Section 120-B IPC read with Section 302 IPC.
25. The aforesaid findings have been challenged by the learned counsel for the appellants on the ground that the judgment and order impugned dated 21.9.2005 passed by the trial Court is based on conjectures and surmises and is against the evidence on record; that no case is made out against the appellants as the prosecution witnesses could not prove the case and in any view of the matter, the appellants have been falsely implicated in the case as the presence of witnesses at the time of alleged occurrence is doubtful for though they are alleged to have been shown in the incident but had not gone to the police station for lodging of the FIR. It is lastly submitted that the sentence awarded to them is too severe.
26. The arguments of learned counsel for the appellants in this criminal appeal and in the connected criminal appeals are:-
1.That the FIR was lodged after inquest which is ancillary and afterthought establishing that the FIR is ante-timed;
2.The post mortem report does not support the prosecution story.
3.Injuries of P.W.1 Brijendra Singh appear to be manufactured as they are all said to be simple injuries;
4.All the witnesses of fact for the prosecution are partisan witnesses and have given false statement to falsely implicate them and that none of the witnesses were present at the time of occurrence and had they been present, they would have been eliminated; hence their evidence is not reliable and liable to be disbelieved ;
5.In so far as burden is concerned, Section 149 IPC would not apply and the case of accused Lokendra would fall under Section 304 IPC and of other accused persons under Section 323 IPC, if the story of common object of alleged unlawful assembly of deceased or the injured goes from the prosecution story.
27. It is submitted by the learned counsel for the appellants Sri V.P. Srivastava that medico legal examination conducted on 11.12.97 at 7.40 P.M. shows that Brijendra had sustained 3 injuries, simple in nature i.e. 2 contusions and one abrasion. The counsel points out from the FIR that the version of the complainant therein is that all the accused persons came out of the house of Mahendra Singh carrying lathis and firearms, Rejendra Singh exhorted on which they started beating the complainant and Ravindra Singh with lathis; when they cried for help, persons accompanying them and some villagers challenged the assailants at that time, those carrying firearms opened fire with guns with intention to kill and ran away in the direction of the mountain. He states that this version clearly shows false motive and implication of the appellants for the reason that complainant state blows from lathi whereas no firearm injury is caused to the deceased or any other person though no charge against accused Mahendra Singh, Rajendra Singh who have allegedly fired with guns with intention to kill was framed under Section 307 IPC, also because the deceased died due to alleged fatal blow of lathi by Lokendra after the alleged firing. He argues that if the appellants wanted to do away with the complainant Brijendra Singh or Ravindra Singh then they would naturally have opened fire upon them on the first opportunity rather than assaulting them with lathis and since no one else accompanying them was injured, the presence of the witnesses of fact is doubtful which makes the story of the prosecution doubtful, unbelievable and strengthen the case of the accused-appellants regarding false implication.
28. Touching on the motive, the learned counsel for the appellant argues that the complainant and the accused belong to same village. The motive attributed in the FIR for the incident is that in the year 1997 Lokendra Singh and others had abducted Bhoori the sister of Ravindra Singh and since then they were harbouring enmity against the complainant as he was actively supporting Ravindra Singh and doing pairvi in that case. According to him, there is no motive at all for the reason that if the prosecution case is accepted on its face value then Ravindra Singh who was brother of Bhoori, who had been abducted by Lokendra Singh and others, could have had a case of malice against the accused and not vice-versa; that in fact the deceased Ravindra had been killed by some unknown persons and the appellants for the reason of enmity also had been falsely implicated in this case by the complainant in order to take out their vengeance in this manner.
29. Sri A.S. Chauhan, Advocate has adopted the arguments of Sri V.P. Srivastava, learned Senior counsel for the appellants. He submits that from the evidence of Brijendra Singh (P.W.1) son of Govind Singh it is clear that the complainant as well as Ravindra Singh claimed to have been beaten by lathis by the accused persons and on being challenged by the villagers and other persons,Mahvendra Singh and Sri Rajendra Singh fired from their guns to make their escape good. He further points out that there is no gun shot injury either on the complainant or on the body of the deceased and that after the alleged shot fired from the firearm that Lokendra had given the fatal blow on the head of Ravindra Singh, which caused him to fall down and that it was this blow which proved fatal to Ravindra Singh. However, in addition he submitted that accused Mahendra and Rajendra who are said to be armed with country made pistol, therefore, can not be held guilty of the offence under Section 302,147,148 and 149 IPC and at the most their case may fall within the ambit of Section 323 IPC except that of Lokendra.
30. Sri N.K.Sharma, counsel for the complainant submits that Section 149 IPC is applicable in the facts and circumstance of this case; that P.W.1 Brijendra Singh and Komal Singh are reliable eye-witness as one of them the complainant Brijendra Singh has also received injuries in the incident; that statement of Ravindra Singh ( since deceased) was also recorded at the police station which in the facts and circumstances is a dying declaration and that there was no enmity of the accused with P.W.2 to falsely implicate them.
31. Learned AGA submitted that there are ocular witness to the incident in which Ravindra Singh died due to fatal injury inflicted on his head by Lokendra Singh who was an active participant in the unlawful assembly along with the other accused persons who were beating him and the complainant with lathis, therefore, Section 149 IPC was attracted even in the case of Mahendra Singh and Rajendra Singh, the two accused persons with the country made pistol had fired upon the villagers and the persons accompanying the complainant and Ravindra Singh (since deceased) to make their escape good. This firing by them was part of the same transaction and might not have injured any body yet they cannot segregate themselves from those accused who were using lathis as all of them being member of the unlawful assembly was guilty in prosecution of common object. According to the AGA, the prosecution witnesses P.W.1 and P.W.2 have stood the cross-examination and nothing adverse could be elicited by the appellants in their favour and that the FIR in this case is prompt as well as the prosecution has been able to prove its case to the hilt to bring home the guilt of the accused in commission of the crime.
32. In rebuttal learned counsel for the appellants submitted that evidence of the deceased under Section 161 Cr.P.C. taken by the police at the police station has been disbelieved by the Court below. He placed the discussion on this point in the impugned order, which reads thus:-
" Now I will discuss the second type of evidence i.e. regarding the so-called dying declaration. It is evident from the record that dying declaration was recorded by the Investigating Officer when deceased Ravindra Singh was taken to the Police Station in badly injured condition. From the post mortem report of deceased Ravindra Singh it appears that his skull bones had fractured. The brain had received serious injuries. In view of these facts it does not appear believable that he would be in a position to speak anything. Though it has come in the evidence that Ravindra Singh was in a position to speak, but seeing the nature of the injuries, I feel that it is not safe to believe such type of evidence."
He then argues that since the dying declaration has been disbelieved by the trial Court, the court can only see as to whether the conviction of the accused persons was correct on the basis of the evidence on record or not.
33. Now, we propose to consider the arguments advanced by the learned counsel for the parties. The argument that none of the witnesses were present at the time of occurrence and had they been present, they would have been eliminated does not appear to be correct. The accused-appellants had attacked the complainant Brijendra and the deceased Ravindra Singh and had beaten them with lathis. They had not assaulted any other person accompanying them or the villagers who challenged them and on whose intervention the accused persons had to run away having already fired from the country made pistol to keep them at bay, therefore, once their country made pistol was empty the assailants (appellants) had no option but to run away. It is proved from the record that the accused had killed only Ravindra Singh whose sister they had abducted and had beaten the complainant who is also an injured witness but others accompanying him were not touched. Therefore, this argument is not sustainable.
34. As regards ante-timing of the FIR is concerned, a perusal of the same does not appear to be ante-timed. The incident is of 11.12.97 at 5.30 P.M. The various checks provide to ensure as to whether the FIR was ante-timed or not show that the written report was promptly submitted in the police station which is entered in the G.D at sl. no.22 registering the incident as case crime no. 115 of 1997 under Sections 147,148,149,307, 323 and 504 IPC against the accused persons at about 6.30 P.M. on 11.12.97 within an hour of the incident. The distance of the police station is about 6 kms. west of the place of occurrence and it must have taken some time for the complainant to arrange for sending of complainant and injured Ravindra Singh (who later on died) to the police station. Thus, writing of the police FIR within a period of one hour from the occurrence cannot be said to be either ante-timed or delayed.
35. We may now also refer the injuries suffered by the deceased which have been proved by Dr. Narendra Kumar, P.W.7. These injuries have been given earlier in this judgment which show that Ravindra Singh ( since deceased) had suffered injuries not only on his body but had also suffered the fatal injury on his head causing sutural separation of coronal suture 12 cm. right lateral to middle and 3 cms. left lateral to mid line (15 cms). He had also been inflicted blows by lathi on fronto-parietal and left temporo-parietal region which show that there was common intention of the unlawful assembly to kill Ravindra Singh. The injury on his skull was grave causing damage to the brain.Brijendra Singh ( P.W.1) and Komal Singh (P.W.2) produced by the prosecution are eye-witnesses of the incident. The complainant is injured eye-witness himself. His statement is also supported by the medical evidence and therefore, it cannot be said that the injuries of P.W.1, Brijendra Singh are manufactured and none of the witnesses of the incident were not present at the time of incident. P.W.3, Dr. G.S. Awasthi has proved the three injuries suffered by the complainant. In fact Dr. G.S. Awasthi in an unequivocal terms has proved the injury report opining that the injuries of the complainant were fresh and simple in nature at the time of medical examination and that injuries were inflicted by lathi. Therefore, it cannot also be said that the medical reports of injuries do not support the prosecution story.
36. The arguments of the learned counsel for the appellants that the witnesses were partisan witnesses as such have given false statement to implicate the appellants has been given serious consideration by us. In the instant case, the witnesses are relatives of the deceased but their ocular evidence cannot be discarded straight way on this ground. The Apex Court time and again has laid down the law that the statement of partisan witnesses should be examined carefully. It may be that other members of the public have not come forward. It is not denied that Ravindra Singh (since deceased) along with others was coming from village Berbai after attending Terahvi and had been seen by Hari Narain and Jagdish,who asked Bal Ram, P.W.4 to go away. They appear to have then informed other accused persons namely, Mahendra Singh, Rajendra Singh, Harish Chand, Laxmi Chand, Jai Hind Singh, Manvendra Singh, Santosh Singh and Lokendra Singh, who had assembled in the house of accused Mahendra Singh situated about 100 yards from the place of occurrence came out and assaulted the complainant and Ravindra Singh (since deceased) with lathis and also fired by country made pistol in order to make their escape good. However, before leaving Lokendra gave the fatal blow on the head of Ravindra Singh injuring him seriously who later on succumbed to this injury. Merely because the injured complainant who is an eye witness and had suffered simple injuries has been discredited as being partisan witness, his injuries have not been found by the doctor as self-inflicted or manufactured. In the backdrop what we have stated above, the argument of the learned counsel for the appellants is fallacious.
37. According to the appellants, the motive alleged in the FIR was abduction of the sister of Ravindra Singh (since deceased) which was the root cause of the grudge due to which the marriage was hampered as sufficient time had not elapsed for cooling down between the parties. In this regard it may be noticed that if the case of the appellants is accepted on its face value then certainly Ravindra Singh would have had the cause of assaulting the appellants who had abducted his sister. There was no quarrel between the parties for the last 9 months since the abduction of Bhoori, sister of Ravindra Singh by accused Lokendra Singh and others. Moreover, Ravindra Singh and the complainant along with others were coming from village Berbai after attending Terahavi, they were not armed and were the victims. Therefore, the argument of the appellants that Section 149 IPC in the facts and circumstance would not apply, is not acceptable.
38. The argument of the learned counsel for the appellant that the case of all the other accused of Ist set except Lokendra would at the most fall under Section 323 IPC as only role of beating Ravindra Singh and the complainant by others is alleged and that their case is to be separated from Lokendra Singh, who had given the fatal blow after the discharge of the fire-arm by the accused persons, which had not hit any body and had been fired only to keep the challengers at bay for making their escape good does not bring them out of purview of Section 149 IPC seems to be forceful for the reason that an offence was committed by an isolated member of the said unlawful assembly.
39. As regards common object of the unlawful assembly, it is trite law that it does not require a prior concert and a common meeting of the minds of the assailants. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The common object of such assembly for determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant factors. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined from the facts of each case keeping in view the nature of the assembly, the arms carried and used by its members and the behaviour of the members at or near the scene of the incident.
40. In the instant case, complainant P.W.1, who is an injured witness, has categorically stated in his examination-in-chief itself that when they were intercepted by the accused persons, accused Rajendra Singh exhorted to beat them and not let them run away, whereupon the assailants armed with lathis started assaulting him and Ravindra Singh. On their hue and cry, the co-villagers arrived at the scene of occurrence and when they challenged the persons carrying guns in order to kill opened fire on them but none could be injured and thereafter Ravindra Singh caused a lathi blow on head of Lokendra Singh. This witness has reiterated these facts in his cross-examination as well. From these facts it is clear discernible that the common object of the assembly was not to kill any one from the complainant's side because had it been so, Rajendra Singh and Mahendra Singh would have opened fire at the first opportunity available to them, instead of firing themselves they exhorted the co-accused who were armed with lathis to beat them and in this process P.W.1 sustained only three simple injuries.
41. It further appears that the common object of the assembly was because it was challenged by the complainant's side and other co-villagers who compelled accused Mahendra Singh and Rajendra Singh to fire two shots without injuring any one. It is relevant to note here that no charge under Section 307 read with Section 149 IPC had been framed against these two accused persons for allegedly making life attempt on any one of the complainant's side. Accused Lokendra Singh who has the real motive for the crime as he had abducted the real sister of deceased Ravindra Singh caused a single lathi blow on his head and thereafter the accused persons made their escape good towards mountain. Therefore, the facts of the assailants in so far as accused Lokendra Singh is totally discernible from other members of unlawful assembly.
42. In the facts and circumstances of the case, the statement of the eye-witnesses much-less an injured witness cannot be disbelieved. The case of the appellants, therefore, squarely falls within the scope of Section 149 IPC which applies with full force to the facts of this case and the action of accused Lokendra is to be seen separately from those who had given simple injuries to P.W.1 and the two namely, Rajendra Singh and Mahendra Singh who had fired shots only to keep the challengers at bay.
43. We have already observed that at the first instance only accused Mahendra Singh and Rajendra Singh exhorted the other co-accused to kill the deceased but they did not make any fire which could have easily accomplished their aim. Six accused persons were armed with lathis and they have caused three simple injuries to Ravindra Singh and when complainant's party challenged them accused Mahendra Singh and Rajendra Singh shot fire from their respective guns without causing any injury to any one of them. No charge under Section 307 read with Section 149 IPC for making life attempt was framed against these accused persons presumably because the fires were made only to scare away the challengers and not to kill any one. In the end accused Lokendra Singh hit single lathi blow on the head of the deceased causing him fatal injury, so the common object of the assembly was not to kill any one but to make the assault which has caused simple injuries to P.W.1. The act of accused Lokendra was in isolation and it cannot be attributed to be the common object of the unlawful assembly Thus, causing of single lathi blow on the deceased would not impute intention to kill accused Lokendra Singh that the single blow would cause his death, therefore, the act of accused Lokendra Singh squarely falls within the purview of Section 304 Part I IPC. It is clear cut case of culpable homicide not amounting to murder. We are fortified in our view with the observations of the Apex Court in the cases of Indrasan versus State of U.P. , 2009 (66) ACC-687 and Ramchandra Dhondibha Kaware versus State of Maharasthra, AIR 2009, Supreme Court-1835.
44. In view of the foregoing discussions, in our view, the learned trial Court has erred in convicting the accused-appellants under Section 302 read with Section 149 IPC. Accused Santosh, Lokendra Singh, Harish Chand, Laxmi Chand, Jai Hind Singh and Manvendra Singh were rightly held guilty for the offence punishable under Sections 147 and 323 read with Section 149 IPC. Similarly, the conviction of accused Mahendra Singh and Rajendra Singh under Section 148 IPC and 323 read with Section 149 IPC is justified. Accused Lokendra Singh ought to have been convicted under Section 304 Part I IPC instead of under Section 302 read with Section 149 IPC apart from under Sections 147 and 323 read with Section 149 IPC.
45. Criminal Appeal No. 4774 of 2005, Santosh and another versus State of U.P. is partly allowed. The conviction of the appellants under Section 302 read with Section 149 IPC is set aside, instead accused Lokendra Singh is convicted under Section 304 Part I IPC and is sentenced to undergo 10 years' RI. The conviction and sentence of the appellants under Sections 147 and 323 read with Section 149 IPC is confirmed.
46. Criminal Appeal No. 4649 of 2005, Harish Chand and others versus State of U.P. is partly allowed. The conviction of appellants Harish Chand, Laxmi Chand, Jai Hind and Manvendra Singh under Section 302 read with Section 149 IPC is set aside. However, their conviction and sentence under Sections 147 and 323 read with Section 149 IPC is up-held.
47. Criminal Appeal No. 4191 of 2005, Mahendra Singh and another versus State of U.P. is partly allowed. The conviction of appellants Mahendra and Rajendra under Section 302 read with Section 149 IPC is set aside. Their conviction and sentence under Sections 148 and 323 read with Section 149 IPC is maintained.
48. Let a certified copy of this judgment be sent to the court concerned for its immediate compliance which should be reported to this Court within two months.
Dated 18.12.2012
CPP/-
