Ram Kumar & Others vs State Of U.P.
2016 Latest Caselaw 7251 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

						A.F.R.
 

 
Court No. - 18
 
Case :- CRIMINAL APPEAL No. - 706 of 1991
 
Appellant :- Ram Kumar & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- G.K.Mehrotra,Arun Kumar Shukla,Atul Kumar Dixit,Kapil Misra,N.S.Chauhan,P.K. Tripathi,S.C. Tewari,S.K.Awasthi,S.Z.Khan,Satendra Singh Rana,Shiv Kr. Gupta,Vineet Kr. Misra
 
Counsel for Respondent :- Govt.Advocate,K.K. Singh,R.S.Kushwaha,Rajiv Dubey,Sushil Kumar Singh,Vikas Chauhan
 

 
Hon'ble Anil Kumar,J.

Hon'ble Anil Kumar Srivastava-II,J.

(Delivered by Hon'ble Anil Kumar,J.)

1. Heard Shri Jyotindra Misra assisted by Shri Kapil Misra on behalf of the accused, Shri Satendra Singh Rana, learned counsel appearing on behalf of the appellant no.2, Shri Vikas Chauhan, learned counsel appearing on behalf of complainant and Ms. Nand Prabha Shukla, learned AGA for the State.

2. By means of the present appeal, accused-appellants have challenged the judgment and order dated 13th/16th December, 1991 passed by learned IIIrd Additional Sessions Judge, Lakhimpur Kheri in Sessions Trial No.195 of 1990 (State vs. Ram Kumar and others), whereby the Trial Court had convicted all the accused-appellants under Section 302 read with Section 149 I.P.C. and sentenced for life imprisonment. Further, accused-appellant nos.1 to 5 were convicted under Section 148 I.P.C. and sentenced for three years rigorous imprisonment while accused-appellant nos.6 and 7 were convicted under Section 147 I.P.C. and sentenced for one year rigorous imprisonment.

3. According to the prosecution, on 25.02.1988 Shivram Bajpai s/o Bramhadin Bajpai r/o village-Kotekherwa lodged a complaint that at about 10:00 a.m. his grandson/Rajjn went to his field to cut the crop (lahi). After sometime, Mahendra s/o Shiv Narayan came to his house and told that Rajjan is calling my son/Suresh (deceased) and both went together in the field. At that time he was taking breakfast and after finishing it, when he reached nearby Shatrudhan's field, he heard the sound of crying of his grandson/Rajjn and saw that Ram Kumar s/o Ram Vilash and Lalta Prasad s/o Ram Autar Verma were standing with their licensee gun. Mahendra s/o Shiv Narayan and Shreepal s/o Ramasharey were holding his son/Suresh and gagging him and further, Ram Kumar and Lalta Prasad instigated that Suresh be killed. Thereafter, Ramdhan snatched the weapon (Hasia) from the hand of the grandson of Shivram Bajpai and stabbed it in the stomach of Suresh as a result of which he fell down. Thereafter, Gulzari and Mansha Ram attacked on him with Gadasa and Banka and finally, he died on the spot. The above said incidence took place at about 11:00 a.m.

4. On the basis of the complainant, an F.I.R. was lodged on 25.02.1988 at about 3:45 p.m. at Police Station-Phardhan, District-Kheri against all the accused-appellants, namely, (1) Ramkumar s/o Ramvilash (2) Lalta s/o Ramautar Verma (3) Mahendra s/o Shiv Narayan (4) Shreepal s/o Ramasharey (5) Ramdhan s/o Ramashrey (6) Gulzari s/o Deendayal (7) Mansharam s/o Deendayal and a case was registered at Case Crime No.25/88 under Sections 147/148/149/302 I.P.C.

5. Shri Shyam Raj Yadav, who was appointed as Investigating Officer went to spot, prepared the inquest report, send the body to the post-mortem and took a sample of mud from the spot as well as collected the mud on which blood of the deceased had fallen and sealed the said materials it in the boxes dealing with the cloths of the deceased. The said material was then send to Forensic Science Laboratory, Lko, U.P.

6. On 26.02.1988, Post-mortem of the body of the deceased was conducted by Dr. A. A. Khan, M. O., District Hospital, Kheri. Ante mortem injuries which were found on the body of the deceased are as follows :-

"1. Incised wound 25 cm x 2 cm x Brain deep on the fore head 3 cm Below the hair line, equal on both side (paper torn).

2. Incised wound 18 cm x 2 ½ cm. crossing over the nasal bridge, calling both orbits and snores of the nose and (paper torn) reaching brain deep, equal on both sides, valved.

3. Multiple incised wounds extending from one ear to the other ear and from nasal bridge up to (paper torn) (sic) and oblique, the biggest is 1.5 cm x 2 cm x Bone cut and smallest is 2 ½ cm x ½ cm x muscle deep front of face.

Note - All the bones of face, nasal, upper and lower Jaw, Zygomale bones, Frontal, Perital, Temporal bones are in multiple pieces cut and broken, the face is completely desnafied.

4. Incised wound 10 cm x 4cm x Jaw cut in pieces (paper torn) below the chin, the upper part of pharynx is also cut along with all vessels, minimum 4 stock front ventrical.

5. Multiple Incised would in an area of 20 cm x 6 cm in front of middle of neck, (sic) 2 cm x ½ cm x akin deep and biggest is 7 cm x 1 ½ cm, x (paper torn) deep on Rt. Side, (sic) of neck of Rt. Side (paper torn).

6. Multiple incised wound in an area of 17 cm x 4 cm on the upper part of front of chest 1 cm below sternal notch small is 1 ½ cm x ¼ cm akin deep and (paper torn) 4 cm x ½ cm x akin deep, vertical.

7. Incised wound multiple in an area of 11 cm x 4 cm on the top of left shoulder all are skin deep smallest is 1 ½ c, x ¼ cm and largest is 4 cm x ½ c, x skin (paper torn).

8. Abrasion 8 cm x ¼ cm in front of middle of chest in mid line parallel, 6 c, above zyphaid (sic).

9. Incised wound 15cm x 3cm x Abd deep (Intestin out) in front of abd, vertical equal on both side 2cm above unblicus, in mid line.

10. Four Puncture wound with sharp edges and sharp angles, in area of 9 cm, 4cm x cavity deep (sic) 2cm x 1cm and biggest is 3 ½ cm x 1 cm, 3cm below the amblicus, directed downwards and towards Rt. Side.

11. Three Incised wound on an area of 10cm, 4cm x muscle deep on Rt. Side of Abd. Just adjoining to the Rt. Border of injury no.9."

7. In the post-mortem report, internal examination report reads as under :-

"1. Walls

2. Peritoneum : NAD Punctured at

3. Cavity : (sic)

4. Buccal cavity, teeth, tongue and Pharyax : 4/4 Renewed teeth cut and Fracture

5. Oasophagus : NAD

6. Stomach and its contents : 4oz Brownish fluid present mucus membrane NAD.

7. Small intestine and its contents : Full at places.

8. Large intestine and its contents : Upper empty Rectum full"

8. Investigating Officer, after making investigation, submitted the charge sheet and S.T. Case No. 195 of 1990 was registered in the Court of IIIrd Additional Sessions Judge, Lakhimpur Kheri.

9. Prosecution, in order to prove its case, produced six prosecution witnesses, namely, (1) Shiv Ram (2) Rajjan Lal (3) Awdesh Kumar (4) Surendra Nath Tewari (5) Dr. A. A. Khan (6) S.I.-Shyam Raj Yadav, Investigating Officer.

10. Accused-appellants had denied the charges. Statements under Section 313 Cr.P.C. have been recorded.

11. Learned trial Court/IIIrd Additional Sessions Judge, Lakhimpur Kheri, on the basis of the ocular and medical evidence on record had given a finding that charges against the accused-appellants have been fully established and passed the judgment and order dated 16.12.1991 thereby convicting them and awarding the sentence as stated herein above.

12. Aggrieved by the aforesaid judgment passed by the trial court, the present appeal has been filed by the accused-appellants before this Court.

13. During the pendency of the appeal, all accused-appellants were on bail. Accused-appellant no.4/Mansha Ram has died during the pendency of the appeal, so on the basis of the report submitted by Chief Judicial Magistrate, by order dated 05.07.2016, this Court has abated the appeal against the accused-appellant no.4.

14. Shri Jyotindra Misra, learned Senior Advocate assisted by Shri Kapil Mishra, learned counsel appearing on behalf of the accused and Shri S. S. Rana, learned counsel for the accused-appellant no.2 while assailing the impugned judgment submits that there was enmity between appellant no.1/Ram Kumar and Suresh (deceased) and the trial under Section 307 I.P.C. is under consideration before the competent Court. In the said matter, appellant no.2/Lalta Prasad is a witness.

15. He further argued that time of incidence as mentioned in the F.I.R. is not correct, rather the time mentioned is an anti one because from the perusal of the postmortem report, it is clearly established that stomach of the deceased is full, so the incidence could not have taken place at 11:00 a.m., as such, accused-appellants have been falsely implicated in this case. Even, blood of the deceased found on the earth nearby place of occurrence does not match with the mud sample which was taken by the Investigating Officer, so the incident did not took place there and the entire story of prosecution is concocted one.

16. Learned counsel for the appellants further submits that P.Ws.1 and 2 were not present at the spot, rather wrong facts were stated by them in their statements. Because from the statement given by P.W.1, it is established that his grandson/Rajjan was studying in Primary School, Village- Putkarwa and his school timing in winter was from 10:00 a.m. to 4 :00 p.m. So in view of the said facts, he was in school at the time of incident, as such, he has wrongly stated in his statement that he was present on the spot at the time of incident coupled with the statement given by P.W.1 that when he heard the voice/crying of Rajjan, he reached on the spot and saw the incidence. The entire story of the prosecution is false and concocted one and P.Ws.1 and 2 were not eye-witness, rather they were interested witness being the family member of the deceased.

17. It is further argued that from the statement given by P.W.1, at the place where incidence took place, crop of Lahi was destroyed but P.W.6/Investigating Officer did not give any such statement in respect of damages of the crop which itself goes to show that incident took place at the place where crop was standing.

18. It is further argued that Statement of P.W.2/Rajjan under Section 161 Cr.P.C. was recorded after five to six days, so the same cannot be relied upon. It is clearly established that P.W.2/Rajjan was not present on the spot and had gone to school. P.W.3/Awadhesh Kumar, who is family member of the deceased is an interested witness and was also not present on the spot and gave evidence against the accused with oblique motive and purpose at the behest of P.W.1/Ram Kumar, as such, the action on the part of trial court thereby placing reliance on his statement and passing the impugned judgment is contrary to law.

19. Lastly, it is submitted that P.W.6/Shri Shyam Raj Yadav, Sub-Inspector, who conducted the investigation and gave the evidence does not state/narrate that crops of lahi where alleged incidence took place were destroyed and even, Hasia which is said to be used by Ramdhani in killing the deceased was not recovered. In this regard, statement given by P.W.6/Shyam Raj Yadav that "मृतक सुरेश की हंसिया की तलाश करवायी थी परंतु नहीं मिला था ।".

20. It is further contended that injury no.10 which was mentioned in the postmortem report of the body of the deceased is a "Puncture wound". it cannot be said that the said injury can be caused by Hasia, so the statement given by P.Ws.1 and 2 that Ramdhan had snatched Hasia from the hand of Rajjn, stabbed it in the stomach of Suresh (deceased) which is one of the factor for causing the death is contrary to the medical evidence, record and the entry. Story of prosecution is false which is based on incorrect fact. So the accused have been falsely implicated in this case, as such, judgment and order dated 16.12.1991 passed by trial court is liable to be set aside.

21. Learned AGA and learned counsel for the complainant/respondent while rebutting the argument raised on behalf of the accused-appellants submits that argument as made on behalf of the accused that time mentioned in the F.I.R. in respect of incident is not correct one while on the basis of the postmortem report, time of incident is same as alleged by the prosecution.

22. In order to elaborate his argument, they further submit that from the material on record, it is established that before the occurrence, father and other family members of the deceased were having breakfast, so keeping in view the said facts as well as facts as mentioned by Modi in its Book "Modi's Medical Jurisprudence & Toxicology" at page no.369 as the statement of P.W.5 who had done the postmortem from the said argument, accused-appellants cannot derive any benefit.

23. Learned AGA further submits that from the statement given by P.Ws.1 and 2 who are an eye-witnesses, it is clearly established that they were present on the spot, and have seen the incident and there is no contradiction in their statement that accused have not killed the deceased.

24. Learned AGA further argued that the argument advanced on behalf of the accused-appellants that the Suresh (deceased) was killed by Ramdhan by using Hasia as the same does not establish from the medical evidence is incorrect

25. Learned AGA also submits that so far as argument advanced on behalf of the accused-appellants that the mud which was found on the body of the deceased is not correct as per report of Vidhi Vigyan Laboratory, Lucknow, U.P., because in the said report, it is stated to the effect that "रक्त रंजीत व उसकी आरंजित मिटटी देखने में समान प्रतीत होता है परंतु यह निश्चित न हो सका कि इनका मूल स्थान एक है या नहीं |", and on the basis of the same accused cannot derive any benefit that the place of occurrence is incorrect. Accordingly, the present appeal lacks merit and is liable to be dismissed.

26. We have heard learned counsel for the parties and gone through the records.

27. 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, howsoever, honest and truthful they may be. These 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.

28. Before entering into the factual matrix of the case, we found it appropriate to first deal with the medico legal aspects of the case.

29. According to the prosecution version, injuries of sickle, Gadasa and Banka were inflicted upon the deceased by Ramdhan, Gulzari and Mansa Ram respectively. According to Dr. A. A. Khan, who has conducted the postmortem of the dead body of the deceased, eleven injuries were found on the body of the deceased which were all incised wounds except injury no.10, which was Four Puncture wound.

30. Learned counsel for the appellants has submitted that injuries which were found on the body of the deceased could not have been caused by sickle as all injuries were incised wound and one punctured wound.

31. Per contra, learned AGA submits that injury no.10 could have been caused by sickle. At page 369 of Modi's Medical Jurisprudence & Texicology at 22nd Edition, it was observed as under :

""An incised or slash wound is always broader than the edge of the weapon causing it owing to the retraction of the divided tissues. It is somewhat spindle shaped and gaping, its length being greater than its width and depth. This gaping is greater in deep wounds when the muscle fibres have been cut transversely or obliquely. Its edges may be inverted, if a thin layer of muscular fibres is closely united to the skin, as in the scrotum. They may be irregular in cases where the skin is loose as in axilla and abdominal wall or the cutting edge of the weapon is blunt, as the skin will be puckered in front of the weapon before it is divided. The length of the incised wound has no relation to the length of the cutting edge of the weapon, but it may give some idea of the depth of penetration.

The edges of a wound made by a heavy cutting weapon, such as an axe, hatchet or shovel, may not be as smooth as those of a wound caused by a light cutting weapon, such as a knife, razor etc, and may show signs of contusion. Such a wound is, as a rule, associated with extensive injuries to deep underlying structure or organs. A sharp weapon edge, if struck obliquely, will cause bevelling of one edge of the wound and also indicate the direction of the blow, while if the sharp edge is struck almost horizontally it produces a wound with a flap.

A curved weapon, such as a scythe or sickle, first produces a stab or puncture and then an incised wound ; sometimes the intervening skin may be left intact."

32. Hon'ble the Apex Court in the case of Sadhu Saran Singh vs. State of Uttar Pradesh and others (2016) 4 SCC 357 after relying upon the case of Darbara Singh vs. State of Punjab 2012 (10) SCC 476 held that "...... so far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-a-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved."

33. P.W.5/Dr. A. A. Khan has also stated that according to Modi's Jurisprudence, a curved weapon such as sickle, first produces a stab or puncture and then an incised wound ; sometimes the intervening skin may be left intact.

34. Dr. Khan further specifically stated that injury no.10 could have been caused by sickle. As Injury no.10 is a puncture wound with sharp edges and sharp angles, which was directed downwards and towards right side and his opinion is fully supported by Modi's Jurisprudence. Sickle is a semi circular weapon with one side of it with sharp edges and other portion is pointed which could cause the puncture wound along with other sharp edges and angles. Evidence of Dr. Khan is fully reliable and is in consonance with the ocular testimony of the witnesses wherein prosecution has come up with the case that injuries were caused by sickle, Gadasa and Banka. Injuries of the body of the deceased are incised wound coupled with the injury no.10 which is puncture wound. We are of the considered view that medico legal evidence of Dr. Khan is fully reliable.

35. Now it is to be seen as to whether the prosecution has been able to successfully prove the charges against the accused ?

36. Incident occurred on 25.02.1988 at about 11:00 a.m. and the First Information Report was lodged at 3:45 p.m. on the same day wherein distance of police station is shown as 17 kms. Oral information was given by the complainant/P.W.1/Shiv Ram, which was recorded at the police station by H.C. 19/Giriza Nand Singh and is duly proved by P.W.6/Shyam Raj Yadav, Sub-Inspector.

37. P.W.1-Shiv Ram has stated that after the incident, he went to his village and thereafter, he searched for a bycycle or any other means through which he could reach the police station but could not find any of them and went to police station on foot. Thereafter, he lodged the First Information Report at the police station, which was recorded on his dictation and after hearing the report, he signed it.

38. Learned counsel for the appellants has drawn our attention towards inquest report wherein distance of the police station from the place of occurrence is shown as 17 miles. It is further pointed out that P.W.1/Shiv Ram has given a statement under Section 161 Cr.P.C. to the Investigating Officer that he came to the police station by by-cycle, hence, the statement of P.W.1-Shiv Ram could not be relied upon. We are not inclined to accept the argument of learned counsel for the defence.

39. As far as distances of police station from the place of occurrence is concerned, we have to see as to whether the First Information Report has been lodged promptly or not. It was held by Hon'ble the Apex Court in the case of Baby @ Sebastian & Anr. vs. Circle Inspector of Police, Adimaly 2016 SCC Online SC 742 decided on 26.07.2016 that prompt lodging of F.I.R. precludes the possibility of deliberation to falsely implicate any person. A prompt F.I.R. in a criminal case and particularly in a murder case is a vital and valuable piece of evidence.

40. Incident occurred on 25.02.1988 at about 11:00 a.m. and the First Information Report was lodged at 3:45 p.m. We don't find any undue delay in lodging the F.I.R.

41. At this stage, learned counsel for the appellants argued that the F.I.R. is anti time and anti date. In support of his argument, he has drawn our attention towards the evidence of P.W.5/Dr. A.A. Khan wherein it has been stated that fecal mater was found in the large intestine and the deceased had not gone to ease himself before the time of occurrence. When allegedly occurrence took place at 11:00 a.m. then it is very unnatural by that time deceased would not have gone to ease himself.

42. Per contra, learned AGA submits that it is not necessary for every human being to ease himself at a particular time, there may be reasons that even till 10: 00 a.m. he may not have gone to ease himself.

43. In regard to position of stomach as mentioned by Modi in its Book known as Modi's Medical Jurisprudence & Toxicology at 22nd Edition that the rate of emptying of stomach varies in healthy persons. The emptying of stomach depends on the :

consistency of food;

motility of the stomach;

osmotic pressure of the stomach contents;

quantity of food in the duodenum;

surroundings in which food is taken;

emotional factors; and

residual variations.

It varies in man from 2.5-6 hours. A meal containing carbohydrates generally leaves the stomach early and the one containing protein, later. The fatty food delays the emptying time, while liquids leave the stomach immediately after ingestion. Sometimes, the emptying of the stomach remains in abeyance for a long time in states of profound shock and coma. Undigested food has been seen in the stomach of persons who received severe head injuries, soon after their meal and died within twelve to twenty-four hours afterwards. In one case, the food consisting chiefly of rice and dal (pulse) remained in the stomach for about forty hours, without undergoing digestion. It must also be remembered that the process of digestion in normal, healthy persons may continue for a long time after death. The presence of tablets or parts of capsules may be significant."

44. In the case of State of Haryana v. Bhagirath (1999) 5 SCC 96, Hon'ble the Apex Court held that where the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities can not be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Vide Thaman Kumar v. State of Union Territory of Chandigarh, (2003) 6 SCC 380; and Krishnan v. State, (2003) 7 SCC 56).

45. In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484, Hon'ble the Apex Court held as under :

"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."

46. A similar view has been taken in Mani Ram & Ors. v. State of U.P., 1994 Supp (2) SCC 289; Khambam Raja Reddy & Anr. v. Public Prosecutor, High Court of A.P., (2006) 11 SCC 239; and State of U.P. v. Dinesh, (2009) 11 SCC 566.

47. In State of U.P. v. Hari Chand, (2009) 13 SCC 542, Hon'ble the Apex Court reiterated the aforementioned position of law and stated that, "In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."

48. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-Ã-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

49. P.W.1 has stated that he left the house after taking breakfast. It was nowhere brought on record as to when the deceased has taken his breakfast or at which time he took his dinner on the preceding night. It has also not come in evidence that whether deceased went to ease himself in the morning or not. Hence, even if fecal matter was found in the large intestine, it could not be said that occurrence had not been taken place at 11:00 a.m. Postmortem was conducted on 26.02.1988 while occurrence took place on 25.02.1988 at 11:00 a.m.

50. P.W.4/Constable/Surendra Nath Tewari took the dead body of the deceased for post-mortem in a sealed condition. According to him, he received a dead body at about 6:30 p.m. then he proceeded to Lakhimpur Kheri and reached there at about 11:30 p.m. Since office of the police line was closed, so entry could not be made in the G.D. According to the inquest report, inquest proceedings began on 25.02.1988 at 3: 45 p.m. and concluded at 6:30 p.m. Thereafter dead body was handed over to P.W.4/Constable/Surendra Nath Tewari, who took the same and went to Lakhimpur Kheri, reached there in the night at 11:30 p.m. On the next day, post-mortem was conducted by P.W.5/Dr. A. A. Khan on 26.02.1988 at 3:00 p.m. We don't find any reason to disbelieve the statement of P.W.4/constable/Surendra Nath Tewari. Police papers which were sent along with dead body also shows that dead body was handed over on 25.02.1988 at 6:30 p.m. and entry of receipt of dead body was made vide G.D. No.12 at 10:00 a.m. dated 26.02.1988 at police line-Kheri. There is no inordinate delay in conducting the post-mortem of the dead body of the deceased. We are not inclined to accept the argument of learned counsel for defence that the First Information Report is anti time and anti dated.

51. Learned counsel for the accused has submitted that P.Ws.1 and 2 are the father and son of the deceased and they are interested witnesses whose evidence could not be held as trustworthy and reliable.

52. According to the prosecution version, deceased left his house when he was called by Mahendra, who told him that P.W.2/Rajjan, son of the deceased is calling his father, then deceased left the house with co-accused-Mahendra and reached his field where incident took place. By that time, P.W.1 had also reached at the spot after taking breakfast. Both P.Ws.1 and 2 are eye-witnesses.

53. It is settled legal proposition of law that evidence of related witnesses could not be thrown away rather it should have been appreciated very cautiously. It is also settled that close relatives of the deceased would not spare the real culprits in order to implicate their enmity. It has been held by Hon'ble the Apex Court in the case of Jodhan vs. State of Madhya Pradesh (2015) 11 SCC 52 that : evidence of an interested witness can be relied upon if it is found to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be rejected. That apart, when a witness has a motive or makes false implication, the court before relying upon his testimony should seek corroboration in regard to material particulars. In the instant case, the witnesses who have deposed against the accused persons are close relatives and had suffered injuries in the occurrence. Their presence at the scene of occurrence cannot be doubted, their version is consistent and nothing has been elicited in the cross-examination to shake their testimony. There are some minor or trivial discrepancies, but they really do not create a dent in their evidence warranting to treat the same as improbable or untrustworthy."

Hon'ble the Apex Court in the case of State of U.P. vs. Krishanpal and others (2008) 16 SCC 73 held as under :-

"The plea "interested witness""related witness" has been succinctly explained by this Court in State of Rajasthan vs. Smt. Kalki & Anr., (1981) 2 SCC 752. The following conclusion in paragraph 7 is relevant:

"7. As mentioned above the High Court has declined to rely on the evidence of PW 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased", and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot be called an "interested" witness. She is related to the deceased. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested.

From the above it is clear that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she has derived some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. A witness, who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be ''interested'."

54. Now we have to firstly examine the evidence of the witnesses as to whether their evidence is wholly reliable or not ? At this stage, we have also to see as to whether there was any motive for commission of the crime ? According to the P.W.1, a trial under Section 307 I.P.C. was pending.

55. The main enmity between the parties is regarding the case under Section 307 I.P.C. which was pending. It has also come in the evidence of P.W.1/Shiv Ram that all accused belongs to one party. Enmity itself is double edged weapon which can be used either way by any of the party. It can be used to attack the deceased or it can also be used for false implication but at the time of assessing the evidence, Court has to look into this aspect along with other attending circumstances and evidence on record. It has been held by Hon'ble the Apex Court in the case of Sunil Kundu vs. State of Jharkhand (2013) 4 SCC 422 that enmity is a double edged weapon.

56. At this stage we also observe that it is a case where there is direct eye-witness account of incident. Three witnesses were produced by the prosecution. So far as motive is concerned, although motive plays an important role in a criminal case but if there is direct ocular evidence of the commission of crime then motive takes a back seat it and loses its importance as has been held by Hon'ble the Apex Court in the case of Darbara Singh vs. State of Punjab 2012 (10) SCC 476 in paragraph nos.15 and 16 as under :

"So far as the issue of motive is concerned, it is a settled legal proposition that motive has great significance in a case involving circumstantial evidence, but where direct evidence is available, which is worth relying upon, motive loses its significance. In the instant case, firstly, there is nothing on record to reveal the identity of the person who was convicted for rape, there is also nothing to reveal the status of his relationship with the Appellant and further, there is nothing on record to determine the identity of this girl or her relationship to the co-accused Kashmir Singh. More so, the conviction took place 20 years prior to the incident. No independent witness has been examined to prove the factum that the Appellant was not on talking terms with Kashmir Singh. In a case where there is direct evidence of witnesses which can be relied upon, the absence of motive cannot be a ground to reject the case. Under no circumstances, can motive take the place of the direct evidence available as proof, and in a case like this, proof of motive is not relevant at all.

Motive in criminal cases based solely on the positive, clear, cogent and reliable ocular testimony of witnesses is not at all relevant. In such a fact-situation, the mere absence of a strong motive to commit the crime, cannot be of any assistance to the accused. ........................." "

57. Now in the backdrop of above said legal proposition of law, we have to scrutinize the evidence of the witnesses.

58. P.W.1/Shiv Ram is father of the deceased and before dealing with the evidence of P.W.1/Shiv Ram, it will be useful to first examine the evidence of P.W.2/Rajjan, who is son of the deceased as well as was present in the field.

59. According to the prosecution version, accused-Mahendra had gone to house of the deceased to call him on the ground that P.W.2/Rajjan is calling him. According to P.W.2/Rajjan when deceased reached there, Shreepal caught his father and Mahendra caught hair of his father. Lalta Prasad came there and exhorted to kill the deceased, then Ramdhan came out from the field of Shanti and snatched the sickle from the hand of P.W.2/Rajjan. Manshram and Gulzari armed with Gadasa and Banka also came out from the field of Shanti which is on the eastern side of the deceased and all the accused attacked father of P.W.2.

60. P.W.2/Rajjan is admittedly son of the deceased, who is student of Class-Vth and on the fateful day, he had not gone to school, rather went to field to cut the crop as on the preceding evening his father/Suresh asked him to go to the field to cut the crop. Presence of P.W.2 is challenged on the ground that he is a student and his school timing in winter was from 10:00 a.m. to 4:00 p.m. then at the time of incident, he was in school and not at the field. While P.W.2 has specifically stated that on the date of occurrence, he had not gone to school rather he went to field to cut the crop.

61. P.W.2/Rajjan was aged about 13 years at the time of recording of statement on 18.07.1993 while incident is of 1988 meaning thereby at the time of incident, he was aged about 10 years but he was given a natural statement wherein he narrated the prosecution story. It is further submitted by him that after arrival of his father at the field, Lalta Prasad and Ram Kumar came out from the eastern field and assaulted the deceased. Thereafter, Ram dhan snatched the sickle from his hand and presence of sickle at the spot is very natural. P.W.2 had gone to filed to cut the crop and carried a sickle with himself which was snatched by Ramdhan. Injury no.10 which was found on the body of the deceased could have been caused by sickle and other co-accused/MashaRam and Gulzari attacked the deceased with sharp edges weapon (Gadasa and Banka) which was verified from the post-mortem report wherein large number of incised wounds were found on the body of the deceased, although it is also proved that no injury of any fire arm was found on the body of the deceased.

62. P.W.2/Rajjan has stated that accused-Ramdhan, Gulzari and ManshaRam came out from the sugarcane field of Shanti. After the arrival of Suresh, Shreepal and Lalta Prasad came out and there were no talks between Shreepal and Mahendra with the deceased. Thereafter, Gulzari, ManshaRam came and attacked the deceased. There is discrepancy in the statement of the witnesses, although this aspect was not mentioned by witness to the Investigating Officer. There are other minor discrepancies in the statement of P.W.2 regarding cutting of crop or pressurizing to cut the crop on the spot which discrepancies are bound to occur. It was held by Hon'ble the Apex Court in the case of State of Karnataka vs. M. V. Manjunathegowda & Another (2003) 2 SCC 188 that One should not fail to take note that the witnesses are rustic villagers. It is difficult to expect them to remember the events with mathematical precision after a lapse of more than two years. It is a common knowledge that ordinarily human memories are apt to blur with the passage of time. More so in the present case, when witnesses are rustic villagers. In such a situation, there are bound to occur certain discrepancies, which are in the form of omission and they cannot be considered as fatal to their evidentiary value, otherwise trustworthy. At the same time, they are unexposed to the technicalities of urban life and they speak plainly what they saw and did. They are trustworthy. Their testimony cannot be thrown out on the ground that it lacks spontaneity."

63. Hon'ble the Apex Court in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat (1983) 3 SCC 217 held as under :-

"By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.

In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person."

64. Minor contradictions and discrepancies are natural and bound to occur from rustic witnesses who belongs to rural background. Minor discrepancies in the statement of P.W.2/Rajjan could not be of any help to the accused. Presence of P.W.2 at the place of occurrence is fully established.

65. P.W.1/Shiv Ram is father of the deceased who also reached at the spot and saw the occurrence. He has given a specific version about the incident. He saw the accused-Lalta Prasad and Ram Kumar, who were standing armed with a gun while accused-Mahendra and Shreepal have caught his son/deceased. Ramdhan attacked the deceased by sickle while Gulzari and Mansharam attacked with Gadasa and Banka respectively.

66. Deceased/Suresh left the house with accused-Mahendra in the presence of P.W.1/Shiv Ram, who has stated that he did not object to it because Mahendra told Suresh that P.W.2/Rajjan/son of the deceased is calling him, hence, it was quite natural that deceased/Suresh left the house for his field along with accused-Mahendra. P.W.1/Shiv Ram left his house after taking the breakfast and reached the field. It is stated by him that accused-Ramdhan, Mansharam and Gulzari came from the field of Shanti. Ramdhan was empty hand but he snatched sickle from the hand of P.W.2/Rajjan. First Ramdhan attacked Suresh/deceased and deceased fell down then Gulzari and Mansharam attacked him by Gadasa and Banka. Accused ran away from the place of occurrence.

67. P.W.1/Shiv Ram is also complainant of the case who went to police station on foot and F.I.R. was lodged on his dictation. According to P.W.1/Shiv Ram, both Mahendra and Shreepal have caught Suresh while Mahendra caught hair of the deceased. A categorical statement is given by witnesses wherein it is stated that P.W.2/Rajjan had gone to cut the crop which was grown in one Biswa. Investigating Officer had also seen the crop which was given to his Supurdgi but no supurdgi memo was prepared. Evidence of P.W.1/Shiv Ram is fully reliable and we do not find any reason to disbelieve his presence at the spot or discard his evidence.

68. P.W.3/Awadhesh is also an eye-witness whose name was mentioned by P.W.1/Shiv Ram in the F.I.R. It is stated by P.W.3/Awadhesh that at the time of occurrence, he reached at the spot and saw that Ramdhan attacked Suresh/deceased by sickle while Mahendra by Banka and Gulzari by Gadasa. Mahendra caught hair of deceased and also pressed the mouth of deceased. Ramdhan and Lalta Prasad were standing armed with gun. On his raising alarm, accused ran away and P.Ws.1 and 2 were also present on the spot. It is argued that P.W.3 is a chance witness whose presence at the spot could not be established by the prosecution. We are not inclined to accept the argument of learned counsel for the defence.

69. So far as statement of chance witness is concerned, it has been held by Hon'ble the Apex Court in the case of Vutukuru Lakshmaiah vs. State of Andhra Pradesh (2015) 11 SCC 102 wherein it was held in paragraph nos.17 and 18 :

"The next contention of the learned Standing Counsel for the appellants is that the prosecution witnesses are chance witnesses, for there is no occasion on their part to be at the scene of crime. Dealing with the concept of chance witness, a two-Judge Bench in Rana Pratap v. State of Haryana (1983) 3 SCC 327 has observed that ;

"3........ We do not understand the expression ''chance witnesses'. Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere ''chance witnesses'. The expression ''chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are ''chance witnesses', even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence.

In Jarnail Singh v. State of Punjab (2009) 9 SCC 719, a two-Judge Bench opined that the evidence of a chance witness requires a very cautious and close scrutiny and as such a witness must adequately explain his presence at the place of occurrence and if his presence at the place of incident remains doubtful, then his version should be discarded."

70. P.W.3 was present at the place of occurrence is fully established. He has stated that he went to field of his brother to collect the fodder along with Brijnandan. He heard shrieks of P.W.2/Rajjan from about 100 steps from the field of Shatrudhan. He reached at the spot and saw the incident. P.W.3 is an independent witness who stated that he is relative to P.W.1 but no such relation could be proved. Hence evidence of P.W.3/Awadhesh Kumar is also wholly reliable.

71. P.W.6/Investigating Officer has conducted the investigation. There are certain contradictions in the statement of witnesses as well as statement recorded by the Investigating Officer under Section 161 Cr.P.C. Statement of P.W.2 under Section 161 Cr.P.C. was recorded by the Investigating Officer on 09.03.1988. It is stated by P.W.6-S.I.,Shyam Raj Yadav that he did not make any attempt to call the witness at the police station, although statement of P.W.2 under Section 161 Cr.P.C. was recorded after more than 12 days of incident but this itself could not be sole ground to discard the whole prosecution story.

72. One of the argument advanced from the side of the accused is that statement under Section 161 Cr.P.C. had been recorded after 15 or 16 days, reliance cann't be placed as per settled proposition of law. In this regard, Hon'ble the Apex Court in the case of Sahid Khan vs. State of Rajasthan (2016) 4 SCC 96 held that if an evidence of person is recorded at a belated stage, there is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants.

73. In the instant matter, P.W.2/Rajjan is a child witness and so far as the matter in regard to child witness is concerned, Hon'ble the Apex Court in the case of State of U.P. vs. Krishna Master, AIR 2010 SC 3071 held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate facts in his memory witnessed by him long ago. It would be doing injustice to a child witness possessing sharp memory to say that it is inconceivable for him to recapitulate facts in his memory witnessed by him long ago. A child offender's age is always receptive to abnormal events which take place in its life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in future.

74. Although it is true that the statement of eye-witnesses should be recorded by the Investigating Officer at the earliest so that a clear correct version of the incident is recorded. Although statement of P.W.1/complainant was recorded just after lodging of the F.I.R. Hence, Statement of P.W.2/Rajjan is fully supported by the evidence of P.W.1/Shiv Ram. Hence, we are of the view that no benefit could be extended to defence for delay in recording the statement of Rajjan under Section 161 Cr.P.C.

75. So far as contradictions are concerned, only one contradiction is brought on record on the statement of P.W.1 that Ramdhan ran away with sickle and Mahendra caught the hair of the deceased. No contradiction was put to P.W.6/Sub-Inspector. Statement recorded under Section 161 Cr.P.C. is not a substantial piece of evidence but it can be used for the purposes of corroboration or contradiction under Section 145 Evidence Act.

76. In order to prove the contradictions if there is any omission or addition in the statement of witness, the same should have been put to that particular witnesses. Thereafter the portion of the evidence of the statement should be put to Investigating Officer so that he may have an opportunity to explain as to whether such statement was given by a witness or not or statement was given by the witness but not recorded by the Investigating Officer. In the present case, contradictions which were put to the witnesses were not put to the Investigating Officer to prove them, hence, such contradictions or omissions could not extend any benefit of doubt in favour of defence.

77. Another argument was raised by the learned counsel for defence that place of occurrence is not established. According to the prosecution version, incident occurred in the filed where P.W.2 had gone to cut the crop. Some crop was also cut by him at the time of incident which got crushed but no such crushed crop is shown at the site plan. Further no sign of smashing crop are found by the Investigating Officer at the spot. Even the soil which was recovered by the Investigating Officer from the place of occurrence was not established to be of the same place. When it was sent to the Forensic Science Laboratory, it was reported that the blood stain with soil appears to be same but could not be ascertained as to whether it belongs to the same place or not.

78. So far as place of occurrence is concerned, P.Ws.1,2 and 3 had categorically stated that the occurrence took place at the field, where Suresh/deceased died which is shown by letter A in the site plan prepared by the Investigating Officer. Site plan was prepared on the next date of incident on the pointing out of the complainant. Hence, we are of the considered view that place of occurrence is established.

79. It is argued that no overt act was committed by the accused-Lalta Prasad and Ram Kumar, who were allegedly armed with gun and assaulted to kill the deceased and other accused to commit the crime. The enmity of the deceased with Ram Kumar was there on account of a criminal case which is pending under Section 307 I.P.C.. Lalta and Ram Kumar were armed with gun and exhorted to kill the deceased and then crime was committed and deceased was killed. Mahendra and Shreepal have caught the deceased, although Lalta Prasad and Ram Kumar were armed with gun but they have not done any overt act in furtherance of any object of unlawful assembly. It was held by Hon'ble the Apex Court in State of Maharashtra vs. Ramlal Devappa Rathod and others 2015 SCC Online SC 1166 that "we may at this stage consider the law of vicarious liability as stipulated in Section 149 IPC. The key expressions in Section 149 IPC are:

(a) If an offence is committed by any member of an unlawful assembly;

(b) in prosecution of common object of that assembly;

(c) which the members of that assembly knew to be likely to be committed in prosecution of that object;

(d) every person who is a member of the same assembly is guilty of the offence.

This Section makes both the categories of persons, those who committed the offence as also those who were members of the same assembly liable for the offences under Section 149 IPC, if other requirements of the Section are satisfied. That is to say, if an offence is committed by any person of an unlawful assembly, which the members of that assembly knew to be likely to be committed, every member of that assembly is guilty of the offence. The law is clear that membership of unlawful assembly is sufficient to hold such members vicariously liable."

It would be useful to refer to certain decisions of this Court. In State of U.P. v. Kishan Pal (2008) 16 SCC 73 it was observed:

"It is well settled that once a membership of an unlawful assembly is established it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. In other words, mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed."

Further, in Amerika Rai v. State of Bihar (2011) 4 SCC 676 it was observed as under:

"The law of vicarious liability under Section 149 IPC is crystal clear that even the presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly."

80. It was held by Hon'ble the Apex Court in the case of Susanta Das and others vs. State of Orissa and other connected matter (2016) 4 SCC 371 wherein paragraph no.14 as under :

"When we read Section 149 IPC, since at the very outset it refers to participation of each member of an unlawful assembly, it has to be necessarily shown that there was an assembly of five or more persons, which is designated as unlawful assembly under Section 149 I.P.C. When once, such a participation of five or more persons is shown, who indulge in an offence as a member of such an unlawful assembly, for the purpose of invoking Section 149, it is not necessary that there must be specific overt act played by each of the member of such an unalwful assembly in the commission of an offence. What is required to be shown is the participation as a member in pursuance of a common object of the assembly or being a member of that assembly, such person knew as to what is likely to be committed in prosecution of any such common object. In the event of the proof of showing of either of the above conduct of a member of an unalwful assembly, the offence, as stipulated in Section 149 IPC, will stand proved. In fact, the said prescription contained in Section 149 has been duly understood by the Division Bench by making reference to some of the earlier decisions of this Court. In this context, the Division Bench chose to follow the decisions of this Court in Rajendran v. State of T.N. (2004) 10 SCC 689 and Bishna (2005) 12 SCC 657, wherein the description contained in Section 149 IPC and in what cases, and against whom, the said provision can be applied has been clearly set out. (Emphasized supplied)."

81. In order to convict the accused with the aid of Section 149, it is necessary that unlawful assembly is made by the accused and in furtherance of any object of unlawful assembly, all accused have participated in the commission of crime, although no overt act has been committed by them.

82. Hon'ble the Apex Court in the case of State of Madhya Pradesh vs. Ashok and others (2015) 12 SCC 92 held as under :-

"We see no reason how they could not be said to be members of unalwful assembly. It was a crime which was committed by all of them guided by the same purpose, acting in concert achieving the result that was desired."

83. Having considered the rival contentions of learned counsel for the defence and learned AGA and after appreciating the evidence on record, we have come to the conclusion that prosecution has successfully proved its case against the accused that unlawful assembly was constituted by the accused to commit the murder of deceased/Suresh. In furtherance of the common object of the unlawful assembly, accused have murdered Suresh. All accused being members of unlawful assembly have rightly been held guilty by the learned trial Court and sentenced accordingly.

84. We are of the considered view that learned trial Court has rightly appreciated the evidence on record and convicted and sentenced the accused.

85. Accordingly, appeal is devoid of merit and is liable to be dismissed.

86. In the result, appeal is dismissed and Judgment of the trial Court is confirmed.

87. Accused are on bail and their bail are cancelled and bonds are forfeited. They should surrender before the learned trial court which shall sent them to judicial custody to serve out the sentence as imposed by learned trial Court.

88. Office is directed to notify the judgment to learned trial court forthwith and shall also transmit the lower court record to learned trial court forthwith with a direction to send the compliance report within a period of four weeks.

 
Order Dated : 28.11.2016
 
Mahesh
 

 
                    (Anil Kumar Srivastava-II,J.)     (Anil Kumar,J.)