Deo Singh & Others vs State Of U.P.
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										Reserved
 
										AFR
 
Case :- CRIMINAL APPEAL No. - 2654 of 1986
 
Appellants :- 1.Deo Singh 
 
                      2.Bahadur
 
                      3.Bindu @ Brindawan
 
                      4. Manohar
 
                      5.Har Charan
 
Vs.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- B.S. Singh,V.S. Singh,Virendra Singh
 
Counsel for Respondent :- A.G.A.
 
Hon'ble Naheed Ara Moonis,J.

Hon'ble Krishna Singh,J.

(Delivered by Hon'ble Naheed Ara Moonis,J.

The instant appeal has been preferred on behalf of appellants, namely, Deo Singh, Bahadur, Bindu @ Brindawan, Manohar and Har Charan against the judgment and order dated 22.9.1986 passed by the learned Sessions Judge, Lalitpur in Sessions Trial No.56 of 1986, arising out of case crime no.95 of 1986 whereby convicting and sentencing the appellants for the offence under Section 302/149 IPC for life imprisonment, further convicting and sentencing the appellants, namely, Bahadur and Bindu @ Brindawan for the offence under Section 148 IPC for one year rigorous imprisonment and convicting and sentencing the appellants, namely, Deo Singh, Manohar and Har Charan for six months rigorous imprisonment under Section 147 IPC. All the sentences were directed to run concurrently.

During the pendency of appeal, the appellant Manohar had expired hence the appeal on his behalf has stood abated by order dated 9.8.2017.

The prosecution case in a short conspectus is that an FIR was lodged by the first informant Amar Singh (P.W-1) on 13.5.1986 at chowki in-charge police Pali, police station Jakhlaun, District Lalitpur stating therein that the complainant Amar Singh S/o Gorey Lal Lodhi is the resident of village Thagari chowki Pali, police station Jakhlaun, District Lalitpur. On 13.5.1986 at about 8 am his brother Khoob Chand came to Pali for the repair of his cycle Bahadur and Deo Singh S/o Shibu Lodhi, Manohar and Har Charan S/o Barey Lal Lodhi had started broken the roof of his brother Khoob Chand's house with ghan (sledge hammer), sariya (iron rod) and sabbal (crow bar). He and his sister-in-law Genda Rani (P.W-2) refrained them from doing so and stated to settle the dispute after arrival of Khoob Chand from Pali, but they did not pay any heed and broken down the roof (chhatti). Thereafter they had stated that they will not spare Khoob Chand alive. They proceeded towards Pali after breaking the roof. The complainant thought that they may not kill his brother, so he along with his sister-in-law Genda Rani and one, Sukh Singh of his village started for Pali to save his brother. The complainant had seen his brother on road who was coming from Pali towards Thagari on his cycle and accused persons, namely, Bahadur and Bindu were equipped with axe, Deo Singh, Manohar and Har Charan were having lathis who had surrounded his brother on the road near a Mahuwa (butter) tree and started assaulting him with intent to kill. The complainant, his sister-in-law and Sukh Singh shouted, at this they escaped from the spot leaving his brother as if he is dead. This incident had taken place at 10 am. The incident was witnessed by various persons who were in their adjoining fields. The complainant left his sister-in-law and Sukh Singh near his brother who was lying in an injured condition to lodge the FIR. On this report at outpost Pali Head Constable, Munna Khan (P.W-6) registered the FIR against all the named accused persons at about 10.40 A.M. on 13.5.1986. On the basis of the chik FIR the case was registered under Sections 147,148,149 & 307 IPC as case crime no.195 of 1986 and the same was entered in the general diary.

The injured was taken to Virda Hospital where he was declared brought dead by the Doctor. The information was received at police station and hence the case was converted under Section 302 IPC.

The investigation was entrusted to P.W-5 Asha Ram, Station Officer who arrived at Virda Hospital on the same day and taken in custody the dead body of Khoob Chand started inquest at 3 P.M. which was concluded at about 4 P.M. on 13.5.1986 and had prepared the inquest report and other relevant papers. Thereafter the dead body was sealed and was sent for postmortem to Lalitpur Hospital through Constable Lakhan Yadav and Constable Mohammad Islam Ahmad.

The autopsy of deceased Khoob Chand was conducted by Dr. R.K. Agarwal, P.W-4 on 14.5.1986 at 3 P.M.

The Doctor has found following ante-mortem injuries on the body of the deceased:

1.Lacerated wound 3 cm x 1.5 cm over right frontal eminence bone deep 5 cm above right eye brow;

2.Contusion 5 cm x 3 cm over and above the outer 2/3rd of right eye brow;

3.Contusion 2 cm x 1.5 cm over left cheek bone;

4.Contusion 19 cm x 12 cm over the left shoulder and upper arm half of left arm at extero lateral and post aspect;

5.Contusion 6 cm x whole circumference left forearm 8 cm above the wrist with fracture both bone forearm;

6.Contusion 6 cm x 4cm over dorsum of left CA Root hand with fracture of head of 2nd, 3rd & 4th meta corpal bones;

7.Contusion 20 cm x 8 cm outer antero lateral aspect upper half of right upper arm;

8.Lacerated wound 2 cm x 1cm over post lateral aspect of right elbow 2 cm above the lateral epicardial of right humerus with underlying contusion 6 cm x 4 cm;

9.Contusion 3 cm x whole circumference over laceration of right forearm with fracture of both bone of right forearm 4 cm above the wrist;

10.Contusion 6 cm x 4 cm over post aspect of right hand with fracture of 4th meta carpal bone;

11.Contusion 3 cm x 2 cm over right front of chest at 2 'O' clock position 3 cm from right nipple;

12.Contusion 4 cm x 3cm over left front of chest at 2 'O' clock position 3.5 cm from left nipple;

13.Contusion 7 cm x 5cm over left side of epigastrium;

14.Contusion 8 cm x 3 cm over anterior lateral aspect over upper 1/3 of right thigh;

15.Abraided contusion 3 cm x 3 cm over front of left knee with bloody knee joint;

16.Contusion 12 cm x whole circumference over upper half of left leg;

17.Contusion 5 cm x whole circumference on lower end of left leg with fracture of both bones;

18.Contusion around ankle 4 cm x whole circumference;

19.Contusion 20 cm x 8 cm over lower half of anterior lateral aspect of left thigh;

20.Contusion 12 cm x whole circumference over upper half of right leg with a lacerated wound 3cm x 15 cm over post lateral aspect of leg 6cm below the knee;

21.Contusion 6cm x whole circumference over lower end of leg with fracture both bone right leg 5cm above ankle:

The post surface of chest and ribs having marked postmortem lividity;

The investigating officer after sending the dead body for postmortem had recorded the statement of the complainant and other witnesses. He reached at the place of occurrence and prepared the site plan with the assistance of the complainant. From the place of occurrence collected blood stained earth and plain earth which were kept in separate containers and were sealed. Shoes of the deceased with blood were sealed separately. Cycle of the deceased was found beside him which was not sealed, of which the memo was prepared. The investigating officer reached at village Thagari where the accused persons were searched out, but they were not found in their houses. Nothing incriminating articles were recovered from there. Thereafter the investigating officer had recorded the statement of other witnesses and after collecting clinching material submitted the charge sheet (Ext. Ka-14) on 22.5.1986 against all the named accused persons.

The case was committed to the court of sessions.

The learned Sessions Judge framed the charges against the appellants u/s 302/149 IPC while separate charges have been framed u/s 148 IPC against the appellants, namely, Bahadur and Bindu and u/s 147 IPC against the appellants, namely, Deo Singh, Manohar and Har Charan. The charges were read over in front of the accused persons and on their denial and claim for trial, the trial proceeded.

In order to substantiate the charges against the accused persons, the prosecution has examined Amar Singh (P.W-1), the complainant, Genda Rani (P.W-2), wife of the deceased and sister-in-law of the complainant, Sukh Singh (P.W-3), the an independent witness, Dr. R.K. Agarwal (P.W-4), who conducted the postmortem of the deceased, Asha Ram (P.W-5), Station Officer, the investigating officer, Munna Khan (P.W-6), Head Constable who prepared the chik FIR, Mohammad Islam Ahmad (P.W-7), Mukut Singh (P.W-8) who had filed affidavit with regard to carrying dead body for postmortem, Badey Lal Mishra (P.W-9) who had deposited the sealed bundle at Mal Khana at Sadar, Raj Kumar Jain (P.W-10), Junior Typist, District Hospital who had sent the sealed bundle to Medico Legal Examiner, Agra, Uttar Pradesh, Ram Khelawan (P.W-11), who had filed affidavit with respect to proving the case registered by the Constable Babu Lal which was entered in the general diary.

Amar Singh, the complainant of the case who was examined as P.W-1 deposing the interrelationship of the appellants had stated that Dashrath had three sons, namely, Shibu, Barey Lal and Gorey Lal. Shibu had three sons, namely, Bindu @ Brindawan, Deo Singh and Bahadur, who are the accused in the present case. Barey Lal had two sons, namely, Manohar and Har Charan who are also the accused in the present case while he and Khoob Chand, the deceased were the sons of Gorey Lal. All of them were residing separately. He has further stated that his brother Khoob Chand was murdered on 13.5.1986. The incident is of 13.5.1986 at 8 A.M. when he was in his house, his brother, Khoob Chand had gone to Pali for repair of his cycle. The wife of the deceased Genda Rani and the complainant was alone in the house. All the accused persons arrived there. Bahadur, Deo Singh and Bindu @ Brindawan were having with Ghan (hammer), Sabbal (crow bar) and Sariya (iron rod) while Manohar and Har Charan were bare handed. They had started breaking the roof of the house of his brother Khoob Chand. When the complainant and the wife of Khoob Chand, Genda Rani refrained them from doing so, the accused persons did not pay any heed and they had started breaking the roof of the house. They had thrown woods and kandi (cow dung) which were lying at the chhatti. They were constantly uttering that they will not spare Khoob Chand alive. It was further stated that Khoob Chand was doing service in Irrigation Department and posted at Jamuli Canal. After damaging the house of Khoob Chand all the accused persons proceeded towards Pali. The complainant and Genda Rani became suspicious that the accused persons may quarrel with Khoob Chand while returning from Pali, hence he along with Genda Rani and Sukh Singh proceeded towards Pali. Sukh Singh had already seen the damage caused to chhatti of Khoob Chand by the accused persons. Pali was at a distance of 5 km from his village. They went up to 4 km and they were 1 km away from Pali. When they reached near Bangariya Pali road which is going east-west and his village lying towards south of the road, as they reached near the tree of Mahua (Butter) they saw that Khoob Chand was coming towards village from Pali on his cycle. It was about 10 A.M. when the accused persons, namely, Bahadur and Bindu @ Brindawan who were having axe while Deo Singh, Har Charan and Manohar were armed with lathi, were seen at 40 paces. When his brother Khoob Chand with cycle came near to the accused persons they had encircled him and started assaulting with axe on its reverse side. All the accused persons were assaulting Khoob Chand. The complainant and others who had cried, at this, the accused persons had threatened that in case they would come near they shall also met with the same fate. The complainant and others had went 2-4 paces ahead, but all the accused persons after assaulting Khoob Chand ran away towards southern field. Khoob Chand fell down and when they reached near to him he was in unconscious state and blood was oozing. His cycle was lying beside him and the blood was found on the cycle and on the ground. Khoob Chand was not able to speak, but he was gasping. The complainant has further stated that leaving Genda Rani and Sukh Singh at the spot he went towards Pali Chowki where he had written the report which was proved by him and was marked as Ext. Ka-1. It was also stated by him that after giving the Ext. Ka-1, the copy of the chik was given to him by the Clerk.

Two constables had proceeded along with the complainant towards place of occurrence with one chowkidar, till then Khoob Chand was gasping. The police personnel had stopped the truck, Khoob Chand was laid in the truck and in that truck the two constables, he along with Genda Rani and Sukh Singh accompanied leaving behind chowkidar at the spot. When they reached at Virda Hospital, the Doctor had declared Khoob Chand as dead. The complainant and others were crying. The police arrived at Virda Hospital and taken into custody of the dead body of Khoob Chand. Genda Rani remained with the complainant beside the dead body while Sukh Singh left to his home. Thereafter the complainant's brother Kalyan had also arrived there. The place of occurrence had seen by the police with the assistance of the complainant and Genda Rani. The statement of the complainant was recorded at Virda Hospital. As Genda Rani was crying she was not inquired by the police. The police had reached the village of the complainant and seen the house of the deceased. The police inquired from various persons. The police had also inquired from Genda Rani and recorded the statement of Sukh Singh. After receiving the dead body the last rite was performed.

It was further stated by the complainant that in the life time of Dashrath the land belonged to him which was at village Dogra Kala, police station Narhar and his village is 6-7 Km away from Dogra Kala. His father was residing at Thagari. The father of the accused persons was also residing at Dogra Kala. The complainant's father came at Thagari prior to the birth of the complainant. Ten years before this incident, Shibu had also came from Dogra Kala to Thagari, but Barey Lal and his sons, namely, Har Charan and Manohar who are the accused in the present case, had remained at Dogra Kala and still the accused Manohar and Har Charan are residing at Dogra Kala. At Thagari the complainant's father had established his own land and in that land Shibu and his sons, namely, Deo Singh, Bindu @ Brindawan and Bahadur, the present appellants, were demanding share which was objected by the complainant, on account of which, there was dispute, but no marpeet took place and no case was filed.

Khoob Chand, the deceased had lodged a report at Pali Chowki in respect of assault committed by the accused persons, namely, Bahadur, Bindu @ Brindawan and Deo Singh. Since life time of Dashrath the complainant's share in the land was usurped by Manohar and Har Charan. When the complainant-party were demanding their share they were not agreed, but in this regard there was no litigation going on between Manohar, Har Charan and Barey Lal. In respect of the incident of marpeet, Khoob Chand had lodged a complaint against Bahadur, Bindu @ Brindawan and Deo Singh on 12.3.1986 while no case was filed in respect of land against Manohar and Har Charan by Khoob Chand or by the complainant.

The complainant was cross-examined at a great length by the defence which only indicates that there was some enmity on account of landed property and due to that reason, the accused appellants had eliminated Khoob Chand.

The complainant has denied the suggestion that he and other prosecution witnesses have not seen the incident. He had also denied the suggestion that the complainant party had received information about death while they were in their home and when they arrived there, the dead body of the deceased was lying on the road. The complainant had also denied the suggestion that a false case has been registered against the accused persons.

The statement of P.W-2 Genda Rani and the statement of Sukh Singh, P.W-3 are consistent with the statement of the complainant Amar Singh, P.W-1.

Smt. Genda Rani, the wife of the deceased's statement was recorded in a very natural and articulate manner. She had withstood the cross-examination and nothing could be elicited to doubt about her presence at the time of incident.

P.W-3 Sukh Singh who was also residing in the same vicinity had stated that on being informed by the complainant and Genda Rani that all the accused persons had dismantled the Chhatti of Genda Rani's house and had also thrown away woods and Kandi (cow dung), he reached there and found that the roof of Khoob Chand, the deceased was broken and wall was also damaged. At this, he also went along with Amar Singh and Genda Rani from Pali. He had seen the accused persons came out from the bushes having axe and lathi-danda They had surrounded Khoob Chand who was coming towards Pali. Deo Singh had given blow over his head, on account of which, he fell down from the cycle and thereafter accused persons who were having axe had started assaulting him from the reverse side and others were beating him with lathi. All the appellants who were wielded with lathi had assaulted 4-5 times. Genda Rani and Amar Singh had shouted and tried to come forward 4-5 paces, at this, the accused persons had threatened them that they will also met the same fate and after assaulting Khoob Chand they escaped from the spot. When he along with Genda Rani and Amar Singh reached near Khoob Chand, he was in unconscious state, but he could not speak on account of injuries. He was profusely bleeding. Thereafter Amar Singh, P.W-1 went to Pali Chowki while he (Sukh Singh) and Genda Rani remained beside Khoob Chand. After an hour Amar Singh came along with two constables and one chowkidar. Amar Singh had disclosed that he has reported about the incident and had shown a copy of the report. The cycle and shoes of the deceased were remained their in the custody of chowkidar. Thereafter truck was stopped and Khoob Chand was taken on the truck. When Khoob Chand taken down from the truck, the Doctor declared him dead. After this incident he (P.W-3) went to his house. He had disclosed about the incident to the brother of Khoob Chand, Kalyan and other villagers. P.W-3 has also been cross-examined at length but nothing could be elicited to disbelieve the testimony with regard to the death of brother of the complainant.

All the suggestions put forth by the defence to create a dent in the prosecution story has been denied by all the witnesses (P.W-1, P.W-2 & P.W-3).

The Doctor R.K. Agarwal (P.W-4), who had conducted the autopsy of the deceased the reference of which was given in the preceding paragraph had confirmed that all the injuries were caused by blunt object like lathi-danda. All the injuries were ante-mortem which were sufficient in the ordinary course of nature to cause death. On account of the injuries sustained over the head and other injuries on the body the death has occurred due to shock. On account of excessive injuries a person could not be able to speak. Injury no.1 and 8 were the result of assault with the blunt side of axe as there was no oppressed fractured therein, at the same time, it was stated if the handle of the axe is used as lathi, the injury would be the same as caused by lathi.

On the external examination, the Doctor had found blisters all over the body, decomposing had started. Bad odour was coming out from the body, eyes were closed, mouth was opened. Bloodily fluid coming out of both the nostrils and mouth. Right frontal and parietal bones were found fractured which were beneath injury nos.1 & 2, membrances were congested, clotted blood was found inside and outside of intradural membrances. 3rd & 4th ribs were fractured in the thorax. Pleura was congested. Blood stained fluid was found in larynx, trachea and bronchi. Right lung was congested. Heart chamber was empty. Blood vassols were empty. Stomach was empty and was swollen due to presence of gases. Small and big intestines were empty and swollen due to gases.

In the opinion of the Doctor the death could have occurred by assaulting lathi-danda and on account of head injuries which were sufficient in the ordinary course of nature to cause death.

Munna Khan, Head Constable who was examined as P.W-6 had proved the report lodged by Amar Singh (P.W-1) and written by Constable Clerk Lal Yadav. The information was sent to police Jakhlaun. It was stated by him that he along with Genda Rani (P.W-2), Sukh Singh (P.W-3), two police personnel and one Chowkidar had gone to the place of occurrence where they found Khoob Chand in an injured condition. The cycle and shoes of Khoob Chand were lying adjacent to Khoob Chand. The blood was oozing profusely from the body of Khoob Chand which was found on the ground. He further stated that he stopped the truck and carried Khoob Chand along with Amar Singh (P.W-1), Genda Rani (P.W-2) and Sukh Singh (P.W-3) as well as two Constables while Chowkidar was left at the place of occurrence and after half an hour he reached at Virda Hospital where they had submitted the letter Ext. Ka17 and on its reverse side the Doctor had written that Khoob Chand has died. The report of the Doctor is Ext. Ka-18. Thereafter constable Munna Khan (P.W-6) returned to file chik which is Ext. as Ka-19 left two Constables along with the dead body at Virda Hospital. The detail of which has been written in the GD. The case which was initially registered as u/S 307 IPC was converted u/s 302 IPC. On the same day at 1.45 P.M. the investigating officer Asha Ram (P.W-5) came at the Pali Chowki and gathered all the information which was entered in the GD Ext Ka-20. Thereafter Asha Ram (P.W-5) left to Virda Hospital.

It has also stated by P.W-6 Munna Khan that at about 7 P.M.Halku Chowkidar came alongwith three bundles and a cycle from the place of occurrence which was deposited at Chowki, of which GD was prepared as Ext. Ka-21.

On 14.5.1986 Constable Mohd. Islam Ahmad and Ashok Kumar had brought the sealed clothes and other papers and deposited at the police station which was entered in the GD (Ext. Ka-22). Thereafter sealed bundles were sent to Sadar Mal Khana on 5.8.1986 which was entered in the GD (Ext Ka-23).

The investigating officer, Asha Ram who was examined as P.W-5 had deposed that he had received papers relating to the offence at about 1.10 P.M. and he started the investigation at the same time. He arrived at Virda Hospital at 2.30 P.M. He recorded the statement of the complainant Amar Singh (P.W-1) u/S 161 Cr.P.C. Smt. Genda Rani (P.W-2) was lamenting, hence it was not possible to record her statement. After taking the custody of the dead body of Khoob Chand inquest and other papers were prepared by him which were exhibited as Ka-3 to Ka-8. At 4.25 P.M. the dead body was handed over to Constables Ashok Kumar and Mohammad Islam Ahmad for being taken to conduct postmortem.Thereafter he along with Genda Rani (P.W-2) and Sukh Singh (P.W-3) arrived at the place of incident and inspected the place of occurrence and prepared the site plan and marked as Ext Ka-9. On the spot he collected blood stained and plain earth kept into separate containers, of which the memo was prepared as Ext Ka-10. One pair shoes of Khoob Chand, the deceased was sealed.The cycle was also taken into custody. At 8 P.M. in the night he arrived at village Thagari and recorded the statement of Genda Rani (P.W-2). In the absence of proper light arrangement, the house of the deceased could not be inspected. However, search of accused persons was continued. On 14.5.1986 he again went at the house of the deceased where he found that house of Khoob Chand, the deceased was dismantled and chhatti was also broken.The wall was dislocated and woods and kandi (cow dung) were also scattered there, of which an inspection note was prepared which was exhibited as Ka-12. Other witnesses were also examined.Thereafter he had made hectic efforts to search the accused persons and in the afternoon he arrived at Pali Chowki. All the accused persons had surrendered on 20.5.1986 and thereafter their statement was recorded on 5.5.1986.After collecting clinching material relating to the complicity of the accused persons the investigating officer submitted the charge sheet (Ext. Ka-14) on 22.5.1986 against all the named accused persons.

Constable Clerk Ram Khelawan (P.W-11) had proved the GD and the chik FIR of Pali Chowki received at police station Jakhlaun on 13.5.1986 at 12.05 P.M. On the basis of which, GD was prepared as Ext Ka-24.

Constable Mohammad Islam Ahmad was examined as (P.W-7) who was entrusted with the dead body in a sealed condition from PHC Virda to carry for postmortem to Lalitpur. Other documents were also received by him which was handed over to the Dr. Agarwal (P.W-4) which was received by him in a sealed condition and after conducting the postmortem, the Doctor had given the sealed bundles on 14.5.1986 which was carried by him and deposited at police Chowki Pali.

Constable Mukut Singh who was examined as P.W-8 had taken the sealed bundles on 26.7.1986 to Sadar Mal Khana, Lalitpur and on 5.8.1986 from Mal Khana to Sadar Lalitpur. On 6.8.1986 he had carried the sealed bundles to Forensic Science Laboratory, Agra for obtaining necessary reports.

Head Constable Badey Lal Mishra who was the clerk of Mal Khana, Lalitpur examined as P.W-9 had stated that he received the sealed bundles from Constable Mukut Singh (P.W-8) at Sadar Mal Khana and thereafter in the sealed condition it was sent to office of the Chief Medical Officer on 4.8.1986.

Raj Kumar Jain, the Clerk of District Hospital who was examined as P.W-10 had stated that he had sent all the sealed bundles with medico legal sealed for chemical examination at Agra on 5.8.1986.

P.Ws-7,8,9 & 10, namely, Mohammad Islam Ahmad, Mukut Singh, Barey Lal and Raj Kumar Jain who have filed their affidavits have not been cross-examined as the defence had refused to cross-examined them. There is no cross-examination of the above prosecution witnesses and as such their statements were admitted in evidence.

The statement of the accused persons was recorded u/s 313 Cr.P.C. who have denied that they have committed murder of Khoob Chand.

Accused Bindu in his statement recorded u/S 313 Cr.P.C. had stated that his brother Bahadur, Sukh Singh and his brother Man Singh were doing business of purchasing and selling bullocks and Sukh Singh has usurped money and hence he has given false deposition against them. On account of this enmity he has been falsely implicated.

Accused Bahadur in his statement recorded u/S 313 Cr.P.C. had also stated that Man Singh had usurped Rs.5000/- and hence he has falsely been implicated.

Accused Deo Singh in his statement recorded u/S 313 Cr.P.C. had stated that his mother was kept by Maharaj Singh at the instance of P.W-3 Sukh Singh. Thereafter she was kept by one, Juthra, brother of Maharaj Singh, on account of this, Sukh Singh has given false deposition. Besides this, money of partnership of selling bullocks usurped by Sukh Singh and Man Singh, hence he has falsely been implicated.

Accused Manohar in his statement recorded u/S 313 Cr.P.C. had stated that Maharaj Singh and his brother Jhuthra have kept his mother in which Sukh Singh was also involved and hence Sukh Singh was bearing enmity. Sukh Singh was separated from the community who belongs to his community and hence he has given false statement. The ancestral property of Amar Singh and Genda Rani was separated 40 years ago. Amar Singh was trying to usurp the land, hence bearing enmity, he has falsely been implicated

Accused Har Charan in his statement recorded u/S 313 Cr.P.C. had stated that in conspiracy with Sukh Singh, the mother of Deo Singh was enticed away and Amar Singh and Genda Rani wanted to usurp the land and hence they have registered a false case against him.

All the accused persons had not produced any witness in defence.

On the basis of the appraisal of the entire evidence on record meticulously, the learned trial court convicted and sentenced the appellants for the offences as stated in the opening paragraph of the judgment.

Being aggrieved with the verdict of the conviction and sentence imposed upon the appellants, they have preferred the instant appeal.

We have heard learned counsel Shri Virendra Singh appearing on behalf of the appellants, learned A.G.A. Shri Syed Ali Murtaza and Shri Satish Pandey brief holder on behalf of the State and have gone through the impugned judgment as well as material placed on record.

Learned counsel for the appellants has submitted that there are various infirmity in the prosecution case which completely belies the involvement of the appellants in any manner. The appellants and the witnesses are of the same family. On account of the dispute of the landed property, the appellants have falsely been implicated in the present case. The appellants Har Charan and Manohar who live in village Dogra Kala which is situated at about 6-7 Km. away from where the appellants and P.W-1 and P.W-2 live and as such their presence at the time of incident creates doubt about the manner of incident. The first incident is said to have taken place in the house of the deceased Khoob Chand where the appellants had allegedly broken the roof, of which the site plan was not prepared by the investigating officer and hence the genesis of the occurrence with respect to breaking the roof of the house of the deceased is absolutely absurd.

The prosecution case that the deceased was beaten by all the accused persons while he was returning from Pali, as such there was no occasion for the witnesses to see the manner of assault, specifically assigning the weapons to each of the appellants. It has been specifically mentioned that Bahadur and Bindu were equipped with axe while Deo Singh, Har Charan and Manohar were armed with lathi, with which they were brutally assaulting the deceased. According to the postmortem report, the deceased has not sustained even a single incised wound to corroborate the prosecution case. All injuries were either lacerated or contusions and hence it does not support the eye witnesses account with respect to the manner of assault by two persons with axe. It appears that the deceased was done to death in some other manner by unknown persons and the appellants have been roped in the present case due to previous enmity. No other independent witness of the place of occurrence were examined when it has been stated that various persons were watching the incident from their own field. Thus non examination of any independent witness from the place of occurrence creates serious doubt about the manner of incident and the involvement of all the appellants. No reliance can be placed on the testimony of P.W-1 Amar Singh and P.W-2 Genda Rani who are related and highly partisan witnesses.

It is further submitted that there is serious doubt in lodging of the FIR at the relevant time as no case crime number was mentioned in the chik FIR or when the case was converted u/s 302 IPC, thus the FIR is ante-timed. The crime number has been mentioned after the death of Khoob Chand. It is alleged that all the appellants emerged out from the bushes and beaten the deceased but in the site plan the bushes have not been mentioned and as such the presence of the witnesses to depose about the manner of incident becomes highly improbable. The investigation is highly tainted and defective. There is no axe injury over the body of the deceased when two persons were having axe. The prosecution has twisted the story during the course of examination that the blunt side of the axe was used causing injury to the victim. If that is accepted for the sake of argument, then it is not ascertainable as to who had caused the head injury and other persons who were armed with lathi cannot be said that all have shared common intention to cause death. Thus the medical evidence does not corroborate the ocular testimony which creates doubt about the presence of eye witnesses to witness the incident.

The learned trial court has misappreciated the evidence on record and has drawn wrong conclusion convicting all the appellants under Section 302/149 IPC. The prosecution has failed to prove the common object of the unlawful assembly to cause the death of the deceased Khoob Chand that accused persons have acted in furtherance of the common object. It is further submitted that the appellants could not have been convicted for committing murder of Khoob Chand u/S 302 IPC with the aid of Section 149 IPC.

Learned counsel has further emphasized that the prosecution has failed to prove the existence of common object of unlawful assembly and that whether the appellants knew that the death of Khoob Chand was likely to be caused by the unlawful assembly and, therefore, the impugned judgment convicting the appellants cannot be sustained.

Per contra learned A.G.A. has contended that the case is of direct evidence which was adduced by the prosecution coupled with the attending circumstance of the case and the nature of injuries could naturally be presumed the intention of causing such bodily injury which in natural course was sufficient to cause the death of Khoob Chand. The prosecution has proved the existence of common object of the unlawful assembly, hence the learned trial court has rightly convicted the accused appellants u/s 302/149 IPC.

Learned A.G.A. has relied upon the decision of Yunis @ Kariya vs State Of Madhya Pradesh AIR 2003 SC 539 scope of Section 149 IPC dealt with in ex-tenso and it has been concluded that mere presence of the accused persons is sufficient, even though no role has been played. If the case crime number is not mentioned at the time of lodging the FIR or the site plan was not prepared by the investigating officer in respect of the first incident when the accused appellants had dismantled the house of the deceased, it will not go to the root of the case to demolish the entire prosecution case when the ocular testimony is consistent and reliable.

It has also been argued by the learned A.G.A. that Amar Singh (P.W-1) and Genda Rani (P.W-2) are related with the deceased. Hence they are the natural witnesses. It is further argued that the law is well settled that where the parties are related it would not conceal the actual culprit and make allegations against an innocent person. The testimony of related witnesses cannot be discarded rather the Court has to adopt careful approach to analyse of the evidence to find out the credibility of the witnesses. The deceased was done to death in a ghastly manner by causing injuries with lathi, danda and axe. The deceased had sustained as many as 21 injuries all over his body who succumbed to the injuries at about 1 am on the same day whereas the incident had taken place at 10 am. It is futile to say that the deceased died due to injury caused by unknown persons in some other manner. It is the cumulative effect of all the injuries caused by the appellants and the axe was used from its reverse side and lathi-danda which has resulted into death of the deceased within few hours of the incident. The act of the accused appellants is squarely covered under the definition of murder as provided under Section 300 IPC. Any irregularity or omission on the part of the investigating officer cannot be made the basis to acquit all the accused appellants. From the evidence adduced by the prosecution and the attending circumstances of the case, prosecution has clearly proved the existence of common object and hence the learned trial court has rightly convicted the accused appellants under Section 302/149 IPC. Therefore, the finding recorded by the trial court is liable to be maintained.

We have considered the rival contentions of the learned counsel for the parties and perused the impugned judgment and material placed on record.

In the instant case homicidal nature of death is not disputed. In order to appreciate the evidence, the Court is required to bear in mind the set up and environment in which the crime is committed. The level of understanding of the witnesses, if there was over jealousness of some of near relations to ensure that, everyone even remotely connected with the crime be also convicted and different way of narration of same facts by the witnesses. Bearing in mind these broad principles, the evidence is required to be appreciated to separate the grain from the chaff.

The accused appellants have not disputed with regard to the murder of Khoob Chand who is the brother of the complainant Amar Singh (P.W-1). The suggestion was put to the complainant Amar Singh (P.W-1) that he and two other witnesses, namely, Sukh Singh (P.W-3) and Genda Rani (P.W-2)were not present at the time of incident and they had not seen the manner of incident. They had received the information about the dead body of Khoob Chand lying on the road and the false case has been registered against the appellants.

All the prosecution witnesses have denied the above suggestions. Thus when the suggestion has been put to the prosecution witnesses, it is amply clear that the appellants are not disputing the time and date of incident when Khoob Chand had died in an unnatural manner. Rather accused appellants only denied in their statement recorded u/s 313 Cr.P.C. that they had not committed murder of Khoob Chand.

The postmortem of the deceased was conducted by Dr. R.K. Agarwal (P.W-5) who had found 21 ante-mortem injuries on the body of the deceased, which has already been mentioned in the preceding paragraphs of the judgment. The Doctor has categorically stated that the head injury along with other injuries suffered by the victim were sufficient in ordinary course to cause death. The cumulative effect of all the injuries has resulted into death of Khoob Chand. It has also been admitted that the deceased had died on account of injuries suffered between 10 A.M. to 12 A.M. on 13.5.1986 and on account of those injuries, a person cannot remain in a position to speak. He was not certain that if proper treatment would have given to the deceased he could have survived. Thus Doctor's testimony to the great extent supports the prosecution case with respect to the manner of incident, on account of which the death of Khoob Chand had occurred.

The FIR of the incident which had occurred at 10 A.M. on 13.5.1986, was lodged at 10.40 A.M. at Chowki Pali. The distance is hardly 1 Km. Hence lodging of the FIR promptly is fully corroborated by the evidence of P.W-6, Head Constable Munna Khan, who had proved the chik FIR (Ext Ka15) and the G.D. entry (Ext. Ka-16). The information about the incident from Chowki Pali was registered at 12.05 P.M. on 13.5.1986 at police station Jakhlaun.

According to the statement of Constable Ram Khelawan who was examined as P.W-11 on this point there is no cross-examination by the defence, hence it is amply proved that the FIR was registered at Chowki Pali at 10.40 A.M. and thereafter the case was registered at police station Jakhlaun at 12.05 P.M. which is at a distance of 14 Km.

The investigating officer, Asha Ram who was examined as P.W-5 has also stated that he was assigned the investigation at about 1.10 P.M. and had proceeded to the place of occurrence from Virda Hospital after Khoob Chand was declared dead at Primary Health Centre at Virda at 12.05 P.M. which is proved by Ext Ka-17 and Ext Ka-18.

The Head Constable, Munna Khan, P.W-6 in his affidavit has stated about that as soon as he received the information he along with two constables and one, chowkidar reached at the place of incident where Khoob Chand was lying in a pool of blood. His shoes and cycle were found nearby. P.W-2 Genda Rani and P.W-3 Sukh Singh were already present there. P.W-6 Munna Khan, Head Constable left the Chowkidar at the place of incident and took the injured Khoob Chand to Virda hospital where the Doctor declared him as dead. Thereafter the case was converted under Section 302 IPC. Munna Khan, Head Constable, P.W-6 was put to lengthy cross-examination but nothing has been elicited that the incident had not taken place at the place of occurrence.

The investigating officer (P.W-5) had also inspected the place of incident, who had prepared the site plan which was proved by him as Ext Ka-9. He collected blood stained and plain earth as well as shoes and cycle of the deceased, of which memo was prepared as Ext Ka-10 which lends to support the prosecution case. The place of occurrence is proved beyond reasonable doubt by overwhelming evidence on record.

It is relevant to mention here that the genesis of the occurrence is on account of the dispute of landed property. Both the parties belong to the common predecessor, namely, Dashrath. He had three sons, namely, Shibu, Barey Lal and Gorey Lal. Shibu had three sons, namely, Bindu @ Brindawan, Deo Singh and Bahadur who are the accused persons in the present case. Barey Lal had two sons, namely, Manohar and Har Charan, who are also the accused persons in the present case. Gorey Lal had six sons, namely, Khoob Chand, the deceased, Amar Singh, the complainant, Ameer, Puran, Kalyan and Govind. Gorey Lal, the father of the complainant started living in village Thagari while Shibu and Barey Lal were residing at Dogra Kala which is at a distance of 6-7 Km. from village Thagari. Since ten years ago Shibu, who is the father of the accused appellants, namely, Bindu @ Brindawan, Deo Singh and Bahadur came at Thagari but the sons of Barey Lal, namely, Manohar and Har Charan remained at Dogra Kala. At Thagari the father of the complainant had purchased the land out of his own income, but Shibu and his sons were demanding their share, on account of this, the sons of the complainant had objected but they never quarrel about it prior to this incident. As the appellants were bearing grudge they had some altercation on 8.3.1986 and they came at the house of the complainant and started assaulting him with fisticuffs and extended threat to life. Thus the dispute was relating to demanding share in the property which belongs to the father of the complainant which was solely established by him. The accused appellants, namely, Manohar and Har Charan had also usurped the land at Dogra Kala which belong to their common ancestor Dashrath, on account of this enmity both the families had bitter relations which is evident from the lengthy cross-examination-in-chief and cross-examination of P.W-1 and P.W-2, namely, Amar Singh and Genda Rani.

It is suffice to say that the claim of share in the landed property is purely a civil dispute which was to be decided by filing a case before the competent civil court. But from the evidence it cannot be denied that on account of the claim of share in the property the incident had occurred. It is amply proved from the statement of the complainant Amar Singh that all the accused appellants had common object to cause wrongful loss to the family of Gorey Lal and for the execution of the motive and in furtherance thereof all the accused persons shared common intention. Firstly they had dismantled the house of the complainant's brother and extended him threat. Genda Rani, the wife of the deceased Khoob Chand, who was examined as P.W-2, has also specifically stated that the accused persons were demanding their share from the sons of Gorey Lal and on account of this, accused persons were bearing grudge and enmity from the sons of Gorey Lal, hence the incident had occurred. Nothing could be elicited from her cross-examination to disapprove that all the accused persons were not inimical with the sons of Gorey Lal. It is also apparent that Bahadur, Bindu @ Brindawan and Deo Singh had some altercation with P.W-2 Genda Rani on 8.3.1986 and thereafter she was also assaulted by them on 9.3.1986 and on account of which Khoob Chand, the deceased had no other option, but to lodge a complaint on 12.3.1986 against them before the court of Chief Judicial Magistrate which has been placed on record as Ext Ka-25. The accused appellants were annoyed on account of filing of complaint against them by Khoob Chand, the deceased, and as such it cannot be said that the accused appellants have been implicated falsely or they were not bearing enmity with the deceased.

The testimony of prosecution witnesses (P.W-1 & P.W-2) cannot be rejected merely they are related. There is no strong motive or ill-will on their part to exonerate the real person and to implicate the accused appellants. P.W-3 is an independent witness whose presence at the time of actual occurrence is corroborated by the testimony of P.W-1 Amar Singh and P.W-2 Genda Rani.

In the case of Suresh Chandra Bahri vs State Of Bihar reported in 1994 Criminal Law Journal 3271, Hon'ble Apex Court has held as under:

"Sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the court that the accused was guilty of the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of crime."

From the statement of P.W-1 and P.W-2, namely, Amar Singh and Genda Rani the appellants had extended threat to life of Khoob Chand which has specifically been mentioned in the FIR itself. The motive has sufficiently been explained not only in the FIR but also in the detail examination of both the prosecution witnesses. On the date of occurrence they had extensively damaged the house of the deceased as they had knowingly well that Khoob Chand has gone to Pali, they had started breaking the roof of the house. As Amar Singh (P.W-1) and Genda Rani (P.W-2) were present there, the appellants had extended threat to them and had asked that they will not leave Khoob Chand alive. When Amar Singh (P.W-1) and Genda Rani (P.W-2) came to know about the intention of the accused appellants that there is possibility that they will make an attempt to kill Khoob Chand, they along with Sukh Singh (P.W-3) proceeded to caution Khoob Chand that the accused persons have extended threat to him. P.W-3 Sukh Singh had also seen the dismantle roof of the house of Khoob Chand. It was natural for the wife of the deceased to accompany with Amar Singh and Sukh Singh to apprise her husband about the evil design of the accused appellants and as such the presence of all the three prosecution witnesses together was quite natural and probable. They had remotely thought that the accused appellants will eliminate him on the day of incident itself, who had proceeded towards Pali. After going about 4 Km. and at a distance of 50 paces the complainant found that all the accused appellants were assaulting Khoob Chand, the deceased. The accused appellants were equipped with lathi, danda and axe. P.W-1 had tried to go forward 2-4 paces in an attempt to stop the accused appellants, but they had threatened him of dire consequences, though the said fact is not mentioned in the FIR or in the statement recorded u/s 161 Cr.P.C. but it cannot be said to be an improvement in the statement of the complainant or in the statement of Genda Rani and Sukh Singh. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. The behavior varies from person to person. Different people behave and react differently in different situations.

In the case of State Of Uttar Pradesh vs Devendra Singh reported in 2004(10) SCC 616 Hon'ble Apex Court has observed that the human behaviour depends upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot .............. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.

The manner in which the incident had taken place, the complainant had rightly proceeded to inform the police at Chowki Pali and as soon as the information was given P.W-6 Munna Khan, Head Constable along with two Constables and Chowkidar reached at the place of incident where they found Khoob Chand in an injured condition. They have stopped the truck in which the injured was taken to the Virda Hospital where the Doctor had declared him as dead. Nothing has been cross-examined in this regard as to why the injured was not taken at Pali Chowki. From the statement of the investigating officer it is evident that when he arrived at Virda Hospital on the way he found Chowkidar at the place of incident and at Virda Hospital he found the dead body of the deceased, which itself shows that Constable Munna Khan, P.W-6 had gone leaving behind Chowkidar at the place of incident.

Learned counsel for the appellants has raised serious objection with regard to the site plan made by the investigating officer and has submitted that it was stated by the witnesses that there were bushes of besharam (Ipomoea carnea) , but it was not shown in the site plan. In the cross-examination of the witnesses it has been mentioned about the bushes of besharam (Ipomoea carnea) from where the accused appellants had emerged out. If the investigating officer has not mentioned about the bushes of besharam (Ipomoea carnea) in the site plan, it will not go to the root of the case to demolish the veracity of prosecution case with respect to the incident witnessed by eye witnesses when the accused appellants were assaulting to the deceased with an axe, lathi and danda.

The witnesses have specifically stated that the bushes of besharam (Ipomoea carnea) were lying besides the road which was of 10-12 fit height.

The judgment of Prithvi Vs. Mam Raj, (2004) 13 SCC 279, is an authority for the proposition that site plan is not a ground to disbelieve the otherwise credible testimony of eye-witnesses which has been followed in the case of Yogesh Singh vs Mahabeer Singh & Others 2017 (11) Supreme Court 195.

It has also been extensively argued by the learned counsel for the appellants that two persons were equipped with axe, but the Doctor has not found any axe injury, rather he has given an opinion that the axe could be used from the reverse side. The axe is a cutting weapon and, therefore, the injury ought to have been found as an incised wound. From the medical evidence of the Doctor and the postmortem report, the deceased had sustained extensive injuries all over his body, when the accused appellants who were five in number were assaulting the deceased it cannot be counted to how many injuries the victim has sustained on account of axe or lathi blow or whether it could be fatal. When Khoob Chand, the deceased was coming on his cycle he would have stopped by assault with lathi and when he fell down all of them had pounced upon him giving blows mercilessly with their respective weapons. Merely because there was no incised wound on the body of the deceased, it cannot be said that the witnesses who were seeing the incident from 50 paces away they have implicated the appellants falsely showing that they were armed with axe. Mere absence of injuries of axe will not belie the testimony of the P.W-1, P.W-2 and P.W-3 when the parietal bone of skull and ribs were found broken besides multiple fracture in both hands and legs were found by the Doctor who had conducted the postmortem of the deceased.

The Apex Court in the case of Thaman Kumar vs State Of Union Territory of Chandigarh reported in 2003(47) ACC 7 has held as under:

"The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category t may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony."

The law is settled that the medical evidence is only a corroborative piece and not conclusive evidence. Even if there is any conflict between oral evidence and medical evidence, the former is to be preferred unless the medical evidence completely rules out the oral evidence.

In the case of Darshan Singh vs State Of Haryana reported in 1996 SCC (Cri) 1261 the Apex Court has held as under:

"Opinion of Doctor as to how the injury was caused cannot override unimpeachable testimony of eye-witnesses."

The learned trial court has dealt with the medical evidence and has not found any discrepancy and as such there is no reason to interfere with the finding recorded by the learned trial court on this ground.

It has been argued by the learned counsel for the appellants that there is only one injury on the head of the deceased while other injuries were said to have inflicted on various parts of the body. It has been developed that the axe was used from the side of blunt portion which cannot be made liable to all the accused persons for the offence punishable under Section 302 read with Section 149 IPC. In this regard the Hon'ble Apex Court has held in several cases that number of injuries is not decisive, how and in what manner injuries have been caused would be a relevant factor. The difference between a bodily injury likely to cause death and the bodily injury sufficient in the ordinary course of nature to cause death to put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury.

The relevant provision of Sections 299 and 300 IPC are reproduced below:

299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

The word `likely' in Clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.

For cases to fall within Clause (3) of Section 300 IPC, it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature.

Hence in any event all the appellants were carrying common intention as they participated throughout in the entire incident. They were carrying axe and lathi-danda with which Khoob Chand, the deceased, was brutally assaulted. When the prosecution witnesses arrived near the place of incident they found that Khoob Chand was bleeding. His cycle and shoes were lying there. Khoob Chand, the deceased was not in a position to speak though he was gasping. The blood stained earth and plain earth were collected from the spot by the investigating officer. The shoes and cycle were also taken. The memo of cycle was prepared but the memo of shoes was not prepared. The witnesses were not cross-examined as to from where they had seen the incident. There is no reason that the witnesses will rope in the appellants falsely leaving behind the real culprits.

It has also been argued that the appellants have been implicated in the case, so that the P.W-1 Amar Singh will usurp their entire property. The law relating to succession under the U.P. Zamindari Abolition and Land Reforms Act as well as the Hindu Succession Act is amply clear that the property of the accused persons if they are dying intestate will firstly devolve upon the sons, daughter and widow of the accused persons and only in their absence the property will devolve upon the sons of Gorey Lal i.e. complainant and his brothers.

Learned counsel for the appellants has made an attempt that there was some illicit relation of P.W-2, the wife of the deceased with P.W-1 Amar Singh as he was also residing along with the deceased in the same house. None of the accused has made any such attempt with regard to the pointing out of illicit relation of P.W-2 with P.W-1 in their statement recorded u/S 313 Cr.P.C. The suggestions put to P.W-2 Genda Rani by the defence that she had dispute between her husband and her husband made an imputation in relation with P.W-1 Amar Singh was bluntly denied by her. The defence had tried to level wild allegations against the P.W-1 Amar Singh and P.W-2 Genda Rani, but the defence could not succeed, hence there is no reason to create any doubt about the veracity of their statement in this regard.

So far as P.W-3 Sukh Singh is concerned the defence has levelled allegations that Sukh Singh (P.W-3) and Man Singh were doing business of selling and purchasing of bullocks and they had usurped Rs.5000/-, on account of this, he is giving false evidence. P.W-3 Sukh Singh has completely denied with respect to any person in the name of Man Singh in his village. He has also denied that Man Singh is not his brother. He has also denied that Man Singh and Bahadur (accused) were doing business of selling and purchasing of bullocks. No receipt with respect to sale and purchase was filed by the defence and as such no question arises with respect to dispute relating to business with the appellants. Sukh Singh P.W-3 was also charged that Maharaj Singh is his family member which has been completely denied by him. The allegations which have been levelled against P.W-3 Sukh Singh have not been substantiated by any cogent evidence. It has also come in evidence that Sukh Singh P.W-3 has admitted that he belongs to the party of accused persons. P.W-3 Sukh Singh has refuted the allegations with respect to that Maharaj Singh had kept the mother of Deo Singh as his wife. The defence had made a feeble attempt to show that P.W-3 Sukh Singh has deposed to falsely implicate them. Sukh Singh P.W-3 has denied that Juthra was his brother. He has made an attempt that Juthra was the brother of Maharaj Singh who had kept the mother of Deo Singh. The defence has failed to produce Kutumb Register to substantiate the allegations made against P.W-3 Sukh Singh and as such there is no reason that P.W-3 Sukh Singh has deposed against the accused persons out of any enmity. P.W-3 Sukh Singh was the neighbour of Khoob Chand, the deceased and when he came to know about this incident he accompanied with them along with the dead body. Even if the statement of P.W-3 Sukh Singh may not be taken into account the consistent statement of P.W-1 and P.W-2, namely, Amar Singh and Genda Rani is cogent and reliable which do not create any doubt about the incident which had taken place in front of their eyes. The statement of the witnesses cannot be discarded as a whole, if it is corroborated on material aspect by other evidence on record.

In the statement of the prosecution witnesses it was mentioned that several persons had seen the incident from their field when the deceased was brutally assaulted by the appellants, but no one had been produced. It is settled law that the prosecution is not bound to produce all the witnesses who had seen the occurrence as it is the quality of evidence and not the quantity which is weighed.

In the case of Harbans Kaur And Anr vs State Of Haryana reported in 2005(9) SCC 195 the Apex Court has observed that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused. No evidence has been led in this regard.

The eye witnesses have withstood the test of cross-examination and have been rightly relied upon by the learned trial court. The testimony of the P.W-1 & P.W-2 being the relative should be treated as untruthful witness cannot be accepted.

The learned trial court has found certain lapses on the part of the investigating officer which was also attacked by the learned counsel for the appellants.

It is now well settled in catena of decisions by the Apex Court that any irregularity during investigation ought not to be treated as a ground to reject the prosecution case.

In our view, defective investigation or lapses on the part of the investigating officer cannot be a ground for acquittal of the accused persons. The investigation is not a solitary area for examining the probability. Much has been argued about the omission of mentioning case crime number at the time of lodging FIR as well as when the case was converted u/S 302 IPC from 307 IPC after the death of the deceased.

In our opinion, the clinching evidence adduced by the eyewitnesses with respect to ghastly offence perpetrated by the accused appellants, minor discrepancy, omission or contradiction would not fatal to the prosecution case. If the omissions which do not in any way corrode the credibility of a witness cannot be levelled as omissions or contradictions. Therefore, undue importance should not be attached to non-mentioning of the case crime number in the chik FIR which do not go to the root of the matter to create doubt about the incident.

It has also been argued by the learned counsel for the appellants that the learned trial court has committed manifest error in convicting all the appellants with the aid of Section 149 IPC for causing murder of Khoob Chand as the prosecution has failed to prove the common object of the unlawful assembly to cause the death of the deceased; that the accused had acted in furtherance of the object. Hence the conviction of the appellants u/S 302 IPC with the aid of Section 149 IPC cannot be sustained.

In order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly.

What is important in each case is to find out if the offence was committed to accomplish the common object of the unlawful assembly. It would not be open to the court to see as to who actually did the offensive act nor it is open to the court to require the prosecution to prove which of the members did which of the acts. Every person who at the time of committing that offence was a member of the assembly would be held guilty of the offence. Whether the members of the unlawful assembly really had the common object to cause the murder of the deceased has to be decided in the facts and circumstances of each case, nature of weapons used by such members, the manner and sequence of attack made by those members on the deceased and the circumstances under which the occurrence took place. In short it is an inference to be deduced from the facts and circumstances of each case.

From the evidence on record, it is clearly discernible that the appellants who were having lethal weapons initially started dismantling the roof of the deceased and when they were refrained by the deceased's wife and his brother they had stated that Khoob Chand will not be spared alive. As the wife of the deceased had disclosed that her husband has gone to Pali to repair his cycle and let him come to settle the dispute, they proceeded towards Pali. While proceeding towards Pali they had taken axe and lathi-danda which was seen by the P.W-2 and P.W-3, namely, Genda Rani and Sukh Singh. When they also proceeded towards Pali to caution Khoob Chand about the evil design of all the accused persons and when they came on the road which was coming towards Pali only from about 50 paces they saw that all the accused appellants were assaulting Khoob Chand, the deceased. They had openly declared their intention to kill Khoob Chand after dismantling his house. This itself shows that all the appellants had formed an unlawful assembly with an object to commit the offence hence their individual acts cannot be separated as they had shared common intention to kill the deceased. The successive blows of lathi itself shows the common object of the assembly to commit the murder of the deceased who was unarmed and all the accused persons had knowledge that the death will ensue on account of assault upon an unarmed person. After assaulting, the appellants had left the victim as if he was dead. The victim could not survive who succumbed to death within few hours. This itself goes to show that all the accused appellants have common object to eliminate the victim. Hence each of the accused who was the member of unlawful assembly and was vicariously liable for the offence actually committed by any other member of the assembly. It is impossible to collect direct evidence of knowledge in such type of brutal attack, hence an inference can be drawn from the circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime.

It is apt to refer the scope of Section 149 IPC creating vicarious liability elucidated in Allauddin Mian and Others. Sharif Mian and Anr. v. State of Bihar (1989) 3 SCC 5, the Apex Court has held as under:

"8. ........Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly......"

We have examined the statement of Amar Singh (P.W-1) and Genda Rani (P.W-2) who are the related to the deceased and found nothing to create doubt about their testimony with regard to the manner of incident.

From the thread bare analysis of the witnesses of the fact, it clearly emerges out that all the accused persons had formed an unlawful assembly for which they have been found it is not even expected of the prosecution to assign particular or independent roles played by each accused once they are members of unlawful assembly and have assaulted the deceased which resulted in his death. In Masalti vs State of U. P. 1965 AIR 202, the Apex Court has exposited as follows:

"17...What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common object specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly."

xxx xxx xxx xxx

71. Having carefully examined the testimony of eye-witnesses, we find that prosecution has been able to establish that party of assailants comprised of more than five persons and that they formed unlawful assembly. It is also seen from the evidence that at least five persons chased the deceased and then attacked him. These members of the unlawful assembly who chased and attacked the deceased definitely shared common object of causing murder of Suresh Atmaram Gharat. A-1 had died during pendency of the appeal before the High Court and, therefore, nothing further needs to be said about his role."

The aforesaid decision has laid down dictum of law that the prosecution has to prove against a person, who is alleged to be a member of an unlawful assembly, that the person constitutes the assembly and has entertained along with the other members of the assembly, the common object, as defined by Section 141 of the IPC. The crucial question to be determined in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects. For determination of the common object of the unlawful assembly, the conduct of each of the members of the said assembly before the attack, at the time of attack and thereafter, as well as the motive for the crime are some of the relevant considerations. The time of forming an unlawful intent is not material because it is possible that in a given case an assembly, which is lawful to begin with, subsequently becomes unlawful. In other words, unlawful intent can develop during the course of the incident at the spot co instanti.

If we see facts of the present case, it is obvious that initially three persons, namely, Bahadur, Deo Singh and Bindu @ Brindawan came and dismantled the house of Khoob Chand, the deceased. The other two persons who were standing having lathi joined them and proceeded towards the place of incident where the deceased was done to death in a highly brutal manner by using axe and lathi-danda. Thus every one of them had participated in the crime. Hence we are unable to find out any illegality or infirmity in the impugned judgment.

In view of the above prolix discussion, the finding recorded by the trial court in the impugned judgment does not call for any interference. We are unable to persuade ourselves to reverse the judgment of conviction. Conviction and sentence of the appellants are hereby affirmed.

The appeal lacks merit and is accordingly dismissed.

The appellant Manohar has died during the pendency of appeal. The appellants, namely, Deo Singh, Bahadur, Bindu @ Brindawan and Har Charan are on bail. Their bail bonds are hereby cancelled. The CJM Lalitpur shall cause the abovementioned appellants to be arrested forthwith and be lodged in jail to serve out the sentence.

Judgment be certified and placed on record.

Office is directed to certify this order to the court concerned forthwith alongwith the lower court record for necessary compliance.

 
Order Date :- 4.05.2018
 
M. Tariq
 

 

 
(Krishna Singh, J)                (N.A. Moonis, J)