Badalu And Others vs State Of U.P.
2017 Latest Caselaw 2631 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved.
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 3480 of 2004
 
Appellant :- Badlau And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Mohd. Khalid,Akhilesh Kumar,C.K. Singh,Hare Krishna Mishra,I.M. Khan,Kameshwar Singh,N.D.Rai Amicus Curie,P.S.Yadav,Ramesh Chandra Gupta Iind,Upendra Kumar Singh
 
Counsel for Respondent :- Govt. Advocate,R.C. Yadav
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble S. K. Agrawal, J.

(Delivered by Hon. Bharat Bhushan, J)

1. In this triple murder case, appellants Badlau and Rahmat were convicted under Section 302 of the Indian Penal Code, 1860 (in short IPC) and appellants Sardar and Raj Bali were convicted under Section 302 read with Section 34 IPC. All the four appellants were sentenced to life imprisonment and fine of Rs. 5000/- with default stipulation by the impugned judgment dated 7.7.2004 passed by the Addl. Sessions Judge, Fast Track Court No. 2 (FTC) in Sessions Trial No 133 of 1990 arising out of Case Crime No. 182 of 1989, Police Station (PS) Ghazipur, District Fatehpur.

2. Prosecution has alleged that informant Lala (P.W.-1) and his deceased father Jairam were lying on a bed in front of Varandah of their house while deceased Chunna and Bulla were sleeping in inside room of the same house. His mother Smt Lachui (P.W.-4) was also sleeping in Varandah of the courtyard. At about 10 p.m. in the night of 21.11.1989, the appellants Badlau and Rahmat armed with country made pistols and appellants Sardar and Rajbali armed with Lathis arrived suddenly. Appellant Badlau shot Jairam, his father on the exhortation of co-appellant Rahmat. Deceased Chunnu came out of the room. Appellant Rahmat shot him dead. Thereafter, all the appellants entered the interior of the house and also shot Bulla who also sustained grievous injuries. Commotion attracted several persons. Witnesses Prakash (P.W.-2), Dulare @ Dulla (D.W.-3) and Chota (not examined), came armed with lathi and flashlight. On their challenge, accused persons fled away from the spot. It is claimed that burning lamp at the spot was giving sufficient light wherein appellants were identified. Allegations is that there was some land dispute between the rival parties and appellants had infact abused and humiliated them even prior to this incident. They had threatened to destroy the whole family of deceased persons. No report of such threat was lodged because of intervention of wise men of the village.

3. Informant lodged the First Information Report (FIR) Ex-Ka-1 at 23.45 p.m. at P.S. Ghazipur located 5 kms away from the place of occurrence i.e. within 75 minutes of the incident. A chick report Ex-Ka-16 was carved out. It is pertinent to point out that initially this report was lodged under Sections 302, 307 IPC as only Chunna had died at that point of time. It is alleged that initially Jairam and Bulla were taken on Bullock-Cart to P.S. Ghazipur. FIR Ex Ka-1 was lodged and thereafter both the injured were sent to District Hospital Fatehpur on the police Jeep. Injured Bulla died in the same night. Subsequently Jairam also died in few days i.e. on 2.12.1989.

4. Investigation was taken over by Station House Officer (SHO) Ghanshyam Ahirwar (P.W.-6). After sending both injured to the District Hospital in police jeep, he reached village Sukaiti, the place of occurrence in the same night but could not conduct any proceeding on account of insufficiency of light. Body of Chunna was lying in the village so inquest proceedings were initiated somewhere around 6.30 a.m. in the morning. Inquest report of Chunna (Ex-ka-8) is available on record. Further documentation was done and cadaver of Chunna was sent for postmortem.

5. Investigating Officer (IO) also recorded the statements of informant Lala (P.W.-1), Prakash (P. W.-2), Smt Lachui etc and prepared site plan (Ex-Ka-11). Sample of blood stained earth and simple earth were lifted and Fard Ex-Ka-12 prepared. One empty cartridge of 12 bore was also recovered from the place of occurrence (Fard Ex-Ka-13). A burning lamp and torch of witnesses were also taken into possession and thereafter given in the custody of same persons with requisite instructions (Ex-Ka-14). Bulla died in the hospital in the same night. His inquest proceedings were initiated in the hospital. His inquest report Ex-Ka-18 is available on record.

6. As stated earlier, injured Jairam succumbed to his injuries on 2.12.1989. His inquest report Ex-Ka-19 is also available on record. The autopsy of deceased Jairam was conducted by P.W.-3 Dr Mohd. Aleem Khan who prepared postmortem report (Ex-Ka-2). Doctor found the following injuries on the person of deceased Jairam and the same is being typed in hindi as is incorporated in the impugned judgment on account of injuries not being legible in the postmortem examination report available on record:-

pksV ua0 1%&Vakdk yxk gqvk ?kko isV ij nkfguh rjQ 22 lseh0 X [email protected] lseh0 X isV rd xgjkA pksV [kM+h gqbZ vksj rksanh ls 2 lseh0 ckgj FkhA

pksV ua0 2%& vkijs'ku fd;k gqvk ?kko isV ij nkfgus rjQ gkbZiksDyksfu;e {ks= esaA ilyh ls FkksM+k uhps ftlesa eokn fudyus ds fy, jcM+ yxh gqbZ FkhA MzsUk gsrq jcM+ dh uyh yxh FkhA ?kko 15 lseh0 X 8 lseh0 X isV rd xgjh pksV frjNh Fkh] blesa FkksM+k ls ihyk inkFkZ fudy jgk FkkA

pksV Uak0 3%&[kjk'k Hkjh gqbZ psgjs ij ck;sa rjQ lqik o ukHkh ds mij 1&[email protected] lseh0 X [email protected] lseh0A

pksV Uka0 4%&Hkjk gqvk [kjk'k psgjs ij ck;h rjQ 1&[email protected] lseh0 X [email protected] lseh0 psgjs ij nkfguh vak[k ds uhpsA

pksV ua0 5%&Hkjk gqvk [kjk'k ckbZ gkFk dh dksguh ij vUnj dh vksj 3 lseh0 X [email protected] lseh0A

pksV ua0 6%&iqjkuk dqpyk gqvk /kko nkfgus iSj ij 2 lseh0 X [email protected] lseh0 X gM~Mh rd xgjk vUnj dh rjQ 3 lseh0 V[kus dh tksM+ ls mij FkkA

pksV Uka0 7%&[kjk'k ihB ds ihNs yhoj lkbM 7 lseh0 X 4 lseh0 FkhA

7. The autopsy of deceased Chunna and Bulla were conducted by Late Dr Mahesh Narain Raizada on 23.11.1989. As Dr Raizada expired his autopsy report was formally proved by P.W.-3 Dr Mohd Aleem Khan and P.W.-5 Dr Vijay Laxmi Raizada, an employee of the same hospital and also wife of Late Dr Mahesh Narain Raizada. The postmortem reports of deceased Chunna and Bulla are available on record as Ex-Ka-3 and Ex-Ka-4 respectively.

8. The medical examination of injured Bulla and Jairam was initially done by P.W.-8 Dr Harischandra who found following injuries on the person of Bulla:-

1. Firearm wound of entry 2.5 cm in diameter with blackening and tattooing around in area of 8 cm X 8 cm deep 6 cm above outer most and upper most part of left iliac crest, bleeding present, piece omenture coming out from wound, cavity deep.

2. Abrasion 10 cm X 0.3 cm on left side of chest and abdomen being 6 cm injury no. 1.

3. Lacerated wound 1 cm X 0.5 cm outer part of left eyebrow, bleeding present, muscle deep.

4. Contusion 3 cm X 1.5 cm on left cheek being 4.5 cm in-front left ear

9. He also found following injuries on the person of injured Jairam:-

Multiple firearm wounds of entry on front of abdomen over an area of 24 cm X 17 cm on right side of abdomen extending from 12 cm above umbilicus downward size variable from 0.3 cm X 0.3 cm X Cavity Deep to 1 cm X 0.6 cm X cavity deep directing obliquely downward and outward with multiple abrasions on right side front of abdomen size 0.3 cm in width X 0.8 cm to 2 cm in length. No B/T/S seen in area, bleeding present from wounds, margins inverted in wounds.

10. Information about the death of Bulla was sent to P.S. Ghazipur by ward-boy P.W.-7 Indra Kumar Tiwari. This information is available on record as Ex-Ka-20.

11. On completion of the investigation, I. O. P.W.-6 Ghanshyam Ahirwar submitted charge sheet (Ex-Ka-15) against four accused persons namely Rahmat, Badlau, Sardar and Raj Bali under Sections 302, 307 IPC. The then 5th Addl. Sessions Judge, Fatehpur framed charges against accused persons. Appellant Rahmat was charged under Section 302 IPC and Section 302 read with Section 34 IPC. Appellant Badlau was also charged under Section 302 IPC and Section 302 read with Section 34 IPC. The appellant Sardar and Raj Bali were separately charged under Sections 302 read with Section 34 IPC on the same day. Accused persons denied the allegations and claimed trial.

12. Prosecution adduced eight witnesses in support of their allegations namely P.W.-1 Lala (informant/eye witness), P.W-2 Prakash (eye witness), P.W.-3 Dr Mohd Aleem Khan, P.W.-4 Smt Lachui (widow of deceased Jairam and mother of deceased Chunna and Bulla/eye witness), P.W-5 Dr Vijay Laxmi Raizada, P.W-6 Ghanshyam Ahirwar (conducted Investigation), P.W-7 Indra Kumar Tiwari (communicated information of death of Bulla to the police) and P.W.-8 Dr Harischandra (initially examined injured Jairam and Bulla).

13. On conclusion of the prosecution evidence, statements of appellants were recorded under Section 313 Cr.P.C. wherein they denied all allegations and claimed false implication on account of previous enmity.

14. Three witnesses were also produced on behalf of appellants namely D.W.-1 Ram Lal, D.W.-2 Prem Chandra and D.W.-3 Dulare @ Dulla.

15. We have heard Sri N. D. Rai, Advocate Amicus Curiae on behalf of appellant Badlau and Rahmat while appellant Sardar and Rajbali have been represented by Sri Upendra Kumar Singh, Advocate. Also heard learned AGA on behalf of the State.

16. Learned counsel for the appellants have argued that conduct of P.W.-1 Lala was not natural. It is surprising that in the incident of three murder, informant Lala escaped easily despite the fact that he was sleeping near deceased Jairam; Motive is very weak; Names of P.W-7 Indra Kumar Tiwari and P.W.-8 Dr Harischandra have not been mentioned in the list of witnesses annexed with the charge sheet; The FIR is ante-timed; Submission further is that evidence of eye witnesses is full of discrepancies.

17. Per contra, learned AGA has disputed the arguments of learned Amicus curiae and learned counsel for the appellants. He has pointed out that the FIR was prompt. He has disputed the claim of dacoity in the village saying that dacoity of this magnitude cannot be hidden. Claim of dacoity has not been proved. Initial injury report of deceased Bulla and Jairam belie the allegations of ante-timing.

18. We have carefully examined the testimonies of three eye witnesses P.W-1 Lala Ram, P.W-2 Prakash and P.W-4 Smt Lachui. Their presence on the spot is quite natural. Incident occurred at their residence, therefore, their presence on the spot cannot be doubted unless contrary is proved by trustworthy evidence. Even the defence witnesses have not disputed the presence of these witnesses. Incident involves murder of three persons. Father Jairam and his two sons namely Chunna and Bulla were brutally murdered inside their own house in the night at about 10.30 p.m. Obviously the most natural witnesses would be of their own family.

19. Testimony of P.W.-1 Lala says that he was dozing in the outside varandah of his house. His deceased father Jairam was also sleeping nearby. Deceased Chunna and Bulla were resting inside their house. His mother, P.W-4 Smt Lachui was lying in another Varandah of courtyard. Lamp was burning. Suddenly at about 10.30 p.m. appellants Sardar, Badlau, Rahmat and Raj Bali arrived there. Badlau and Rahmat were armed with country made pistol while appellants Sardar and Rajbali were holding lathis. Rahmat exhorted Badlau to finish enemy whereupon Badlau shot deceased Jairam. Meanwhile his brother Chunna came out of the house who was immediately shot dead by co appellant Rahmat, then these four accused persons entered the house and also shot Bulla. Arrival of some other witnesses with lathis etc made them flee from the spot. This witness has referred previous land dispute between the rival parties. Existence of previous enmity is admitted even to the accused persons. They themselves have admitted the existence of previous enmity with the informant etc in their statements under Section 313 Cr.P.C. It is pertinent to point out that P.W.-1 Lala has claimed that incident occurred for barely 4-5 minutes and during this period three persons were shot. Chunna died instantaneously while Jairam and Bulla died subsequently in the hospital.

20. We have carefully analyzed the testimony of P.W.-1 Lala. We believe that his testimony is natural, in accordance with the normal human conduct, credible and trustworthy. There is no reason for him to spare real murderers of three persons of his family and falsely implicate the appellants. This witness remain unfazed during intense cross-examination.

21. Similarly, P.W.-2 Prakash and P.W.-4 Smt Lachui have also re-enforced the prosecution story as well as the testimony of P.W.-1 Lala Ram. They have delineated the roles of all the appellants minutely. Both of them have faced intense searching cross examination yet nothing favourable could be extracted by counsel for the defence.

22. Learned counsel for the appellants have argued that incident indicates that assailants were in murderous mood and yet P.W-1 Lala, who was sleeping nearby deceased Jairam, escaped completely. Answer to this argument has been provided by P.W-1 Lala himself. He has testified that his cot (pkjikbZ) was lying nearby his father. As soon as the accused persons came, they first targeted his father, meanwhile informant Lala quitely left his cot (pkjikbZ) and hid himself behind a pole ([kaHkk). Meanwhile, Chunna came out of his room and attention of appellants turned towards him. It is possible that informant Lala somehow escaped their attention otherwise he might have also been killed. The fact that informant Lala somehow saved himself does not diminish the value of his testimony. Fact of the matter is that the testimony of this witness was recorded after almost 8 years of the incident and yet he has delineated the prosecution story in credible and trustworthy manner.

23. P.W-2 Prakash was at his residence. Noise generated by first shot and the commotion brought him to the place of occurrence. He took Lathi, torch etc and went to the spot. He has testified that appellants were present and holding various weapons. Injured Jairam had already been shot but Chunna was shot in his presence. Subsequently appellants entered the house and killed Bulla as well.

24. Argument of learned counsel for the appellants, that this witness did not see the actual murder of deceased Jairam and Bulla is misconceived. This witness has specifically asserted that he saw all the appellants on the spot; that they were using violence at the spot is apparent. Evidence further says that Chunna was shot in his presence while Jairam had already been shot. It is true that he did not see the attack on Jairam and Bulla as Bulla was killed inside the house but this fact would not diminish the value of his testimony. The fact that this witness is not trying to say extra things indicates his truthfulness. It also clearly indicates that this witness has not been tutored otherwise it would have been much more easier for him to say that he had witnessed the attack on Jairam and Bulla as well. Testimony of P.W.-2 Prakash has also established the ancillary circumstances which in turn have also established the involvement of appellants in the murder of appellant Jairam and Bulla as well.

25. Similarly, the testimony of an illiterate 65 years old woman P.W.-4 Smt Lachui is remarkable for its lucidity. In the instant episode, she lost not only her husband but two of her grown up sons. Her presence on the spot cannot be doubted at all. She has also disclosed the source of light in her testimony. She has not tried to improve her evidence by saying that she saw the attack on her husband Jairam. She was sleeping inside the varandah of the house near courtyard. She witnessed killing of Chunna and Bulla. She has clearly stated that when she came out of the house she found her husband in injured condition. We are impressed by the testimony of this illiterate woman. Fact that witnesses of fact have testified after almost eight years of the incident would account for minor discrepancies. No serious and significant discrepancies have been pointed out by the learned counsel for the appellants.

26. Learned Amicus curiae and learned counsel for the appellants have argued that stated motive is very weak. No body would murder three persons for the minor land dispute concerning the place of tethering the animals. They have claimed that the attack was committed in the village at the residence of Jairam by unknown dacoits and all the three persons died in that attack. Subsequently, appellants have been implicated on account of previous enmity.

27. We are not at all impressed by this argument. We will discuss the argument of dacoity subsequently but so far as the question of weak motive is concerned, we do not believe that itself is sufficient to discard the testimony of three lucid and trustworthy witnesses. Motive for doing a criminal act is a complicated question. One can not normally read the mind of others. As to which emotion would impel a person to commit a particular crime is again very complex question. Many crimes including the murder have been committed without any known and prominent motive. Some times crimes are committed with a particular motive. But it is not always possible to conclude that no criminal act would be committed unless strong motive is proved. We believe that question of motive is a psychological phenomenon and it is always not possible for prosecution to establish mental disposition of the accused. People go and commit murders even on flimsy matter. We believe that motive is not an essential ingredients of the offence. Proof of motive may be helpful when there is no direct evidence but where there is direct evidence for proving the involvement of accused in the offence, absence of proof of motive is immaterial. Therefore, we believe that motive is not a decisive test for analyzing the criminal act of any person. Motive can only support the case but absence of it cannot undo the direct testimony.

28. In this case, sufficient evidence is available to demonstrate the involvement of appellants in the murder of three persons. The witnesses of fact believe that these murders were committed on account of land dispute. It is not unknown to see the grave acts of crimes when question of land is involved. We believe that motive is not weak. Sufficient proof of perceived motive has been given by the prosecution. In any case, trustworthy, vivid and lucid evidence is available for establishing the involvement of appellants in the stated crime, therefore in our opinion, question of motive becomes less important.

29. Learned counsel for the appellants have argued that the FIR was ante-timed. They have also argued that inquest report of Bulla and Jairam does not reflect the crime number. They have also argued that testimony of P.W-1 Lala indicates that he took considerable time to reach the police station, therefore it was well nigh impossible to lodge FIR at 11.45 p.m.

30. We are not satisfied with this argument at all for the simple reason that there are several tell-tale signs which demonstrate that the FIR was not manipulated. P.W.-1 Lala himself has stated that after the incident, he took injured Jairam and Bulla on Bullock-cart to police station and the police officials sent them to the district hospital on police jeep, where Bulla died in the same night. The fact that the FIR had already been lodged by that time is established by the inquest report of Chunna. Chunna had infact died instantaneously on the spot. His inquest report Ex-Ka-8 reflects the crime number not only on the top of inquest report but also inside the contents of that report.

31. One can say that this inquest report was prepared subsequently in the early morning of 22.11.1989 and that it cannot negate the argument that the FIR had been manipulated but there are other indication as well to establish the timing of the FIR. Only one person namely Chunna had died on the spot. Bulla died subsequently in the intervening night of 21.11.1989 and 22.11.1989. The inquest report Ex-Ka-18 of Bulla re-enforced this fact. Report of his death was communicated by P.W.-8 Dr Harischandra through P.W.-7 Ward-boy Indra Kumar Tiwari of the hospital to the police station. This report Ex-Ka-20 indicates that Bulla died in the intervening night of 21.11.1989 and 22.11.1989. But the fact of his death has not been mentioned in the FIR. If the FIR had been ante-timed, the possibility of inclusion of report of his death in the contents of the FIR would have been very natural.

32. It is pertinent to point out that both Bulla and Jairam were initially examined in the hospital by P.W.-8 Dr Harischandra. Testimony of this witness indicates that Bulla was medically examined at 12.40 a.m. in the night while injured Jairam was medically examined at 1.10 a.m. in the night. These documents indicate that the FIR had already been recorded by that time otherwise the FIR would have reflected the fact of death of deceased Bulla atleast.

33. It is pertinent to point out that initial medical examination report of Bulla (Ex-Ka-28) and Jairam (Ex-Ka-29) have established another point as well. Both of these persons were taken on the Bullock Cart to the Hospital. This fact has been stated by witnesses of fact as well as formal witnesses including P.W-6 Ghanshyam Ahirwar, the I.O. Fact that these injured persons had already been examined at 12.40 a.m. and 1.10 a.m. clearly belie the allegation of ante-timing because these injury reports also reflect that these injured persons were brought to the hospital by police constable Maya Ram. The number of police jeep UPHG 256 is also mentioned in the medical reports. We cannot believe that all these facts have been subsequently manipulated. There is absolutely no doubt in our mind that the FIR was infact lodged at indicated time of 11.45 p.m. otherwise it would have been very difficult to initiate medical treatment of those injured from 12.40 a.m. in the same night.

34. Learned counsel for the appellants have argued that two witnesses namely P.W-7 Indra Kumar Tiwari and PW-8 Dr Harischandra have not been named in the list of witnesses annexed with the charge sheet therefore their evidence should be discarded. This argument is also not sustainable. Section 311 Cr.P.C. empowers the trial court to summon any person as witnesses at any stage of trial who are present in the court or not present in the court. These witnesses are formal in nature. P.W-7 Indra Kumar Tiwari merely communicated the information of death of deceased Bulla to the police station. His report Ex-Ka-20 reflects that information indeed was given to the police. Subsequent inquest report could have also proved this fact but mere non inclusion of name of P.W.-7 Indra Kumar Tiwari in the list of prosecution witnesses does not vitiate the prosecution case. Infact testimony of P.W-7 and P.W-8 help us in reaching right conclusion. P.W-8 Dr Harischandra had initially examined both Bulla and Jairam. Their injury reports have been proved by this doctor.

35. Learned counsel for the appellants have also argued that P.W.-1 Lala Ram was not in a position to see the death of Bulla. We have already discussed this point. Prosecution itself has not attributed specific role to any appellants as far as murder of Bulla is concerned. The FIR and prosecution evidence indicate that Badlau shot Jairam and Chunna was done to death by Rahmat. Subsequently all appellants entered inside the house and shot Bulla as well. It is quite clear that only two accused namely Rahmat and Badlau were armed with firearm. Obviously they committed murder of Bulla. But prosecution witnesses have not tried to improve the case. This fact shows and establishes their truthfulness. Allegations of improvement and embellishments against prosecution witnesses, therefore, stand rejected.

36. Learned counsel for the appellants have also claimed that murder of these three persons was committed by some unknown dacoits and subsequently appellants were implicated on account of antagonistic relationship. In support of this claim, argument was advanced by the appellants during statement under Section 313 Cr.P.C. and three witnesses were also produced by defence.

37. Testimony of D.W-3 Dulare @ Dulla is not helpful to any party. He has stated that he was not present in the village on the date of occurrence and therefore was not aware of any incident. He says that he came back to his village after the incident then heard about dacoity. His evidence is about his absence. He has neither denied the prosecution story nor established the innocence of appellants.

38. However, D.W-1 Ram Lal and D.W-2 Prem Chandra have stated that they were present in the night and they heard the noise of firearms. They also heard the commotion that dacoity is being committed at the residence of Jairam. They claimed that Prem Chandra actually opened three fires from distance whereupon dacoits ran away from the spot. Both of them have stated that these unknown dacoits killed the three persons.

39. We have carefully examined the testimonies of these witnesses. These witnesses were produced after 11 years of the incident. These witnesses did not go to the Investigating Officer or any senior police officials for 11 years. The quality of their testimonies is also not satisfactory. They have claimed that police had arrived within half hour and taken the injured on the police jeep to the district hospital, while P.W.-6 Ghanshyam Ahirwar, the IO has clearly denied this suggestion. He has specifically asserted that injured were brought on Bullock-cart to the police station and then injured persons were sent to the hospital. There are far too many documents available on record to rely upon the testimony of these two witnesses.

40. We do not believe that dacoity of this magnitude can be hidden. There is no record to demonstrate that the police had reached the place of occurrence within half an hour. The police witnesses have not accepted this contention. Fact, that nothing was looted from the residence of Jairam or of any other person of the village also belie the claim of dacoity. We believe that testimonies of D.W.-1 Ram Lal and D.W-2 Prem Chandra are not reliable. On the contrary, testimonies of prosecution witnesses are very lucid and completely trustworthy. There is no reason for them to spare the real culprits and to falsely implicate others in the matter of murder of three persons of their family.

41. This is also pertinent to point out that P.W.6- I.O. Ghanshyam Ahirwar has testified that he took statement of deceased Jairam prior to his death in the night of 21.11.1989 in the district Hospital Fatehpur wherein deceased described the culpability of Badlau, Rahmat, Sardar and Rajbali. He has specifically stated that he was indeed shot by appellant Badlau at the exhortation of co accused Rahmat. He had clearly recognized the appellants.

42. It is true that this statement was recorded by the I.O. Ordinarily, practice of I.O. himself recording dying declaration is not encouraged but fact remains that the I.O. went to the District Hospital to meet the injured and the injured disclosed the identities of appellants. Subsequently, he died, therefore, we do not believe that this statement can be discarded altogether. The corroborative value of this dying declaration is intact. We have very carefully scrutinized the evidence and we believe that available evidence is sufficient to establish the guilt of the appellants.

43. Lastly, learned counsel for the appellants Sardar and Raj Bali has argued that they were armed with only Lathi and that there is no indication or use of lathi in this case. They claim that they have been convicted with aid of Section 34 IPC. It is not possible in absence of any specific evidence to demonstrate that they shared common intention of Rahmat and Badlau. This argument is not sustainable.

44. It is pertinent to point out that three murders were committed. Appellants Raj Bali and Sardar accompanied main assailants namely Rahmat and Badlau to the place of occurrence. They were aware that Rahmat and Badlau were armed with firearm weapons. The fact that Badlau immediately shot Jairam indicate an attempt to finish the rival party. Appellants Sardar and Raj Bali could have disassociated themselves from the group of assailants even at this stage. Both appellants were holding Lathi and neither stopped assailants to kill Chunna and Bulla nor disassociated themselves from this murderous group. This has clearly established that both appellants Sardar and Raj Bali also shared common intention of Rahmat and Badlau to kill rival party.

45. It is not mere the nature of weapons which allows use of Section 34 IPC. Section 34 IPC entails consensus of mind of person in criminal action to bring about the particular result. Whole prosecution story and evidence indicate that all person had consensus of mind to bring about the death of deceased persons. We do not think there is any material on record to diminish their liability in this criminal act. They were physically present. They were aware that Rahmat and Badlau were armed with deadly weapons. They entered the residence of rival party in the dead of night and they did not disassociate themselves from the group even after the first firearm attack on Jairam and subsequently the death of deceased Chunnu. All of them continued with their criminal activities by entering inside the house and attacking third person namely deceased Bulla. Thus, entire series of incident and evidence clearly show that both the appellants Sardar and Raj Bali can be held guilty of offence of murder with the aid of Section 34 IPC.

46. Considering all facts and circumstances of the case, it is evident that prosecution has been able to bring home the guilt of accused-appellant by trustworthy and unimpeachable evidence. Sufficient evidence has been placed to establish the guilt of the appellant.

47. In view of the aforementioned discussion, we are of the view that the appeal lacks merit and deserves to be dismissed. It is accordingly dismissed and impugned judgment and order dated 7.7.2004 of the trial court is affirmed.

48. Office will certify this order to the court concerned within 10 days. Trial court shall thereafter communicate compliance of this judgment within a month thereafter.

(Justice S. K. Agrawal)     (Justice Bharat Bhushan)
 
Order Date :-  24.7.2017
 
RavindraKSingh