Paras Singh & Others vs State Of U.P.
2018 Latest Caselaw 2377 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on 4.7.2018
 
Judgment delivered on 7.9.2018
 
A.F.R.
 
Court No. - 34
 

 
Case :- CRIMINAL APPEAL No. - 2234 of 1996
 

 
Appellant :- Paras Singh & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- H.P.Shukla,Ali Hasan,Birendra Singh,R.C. Srivastava,Rajiv Misra,S.P. Singh Parmar,Vinay Saran
 
Counsel for Respondent :- Govt. Advocate,A. Hasan,P.K. Rao,Ravi Chandra Srivastava,S.P. Singh Parmar,Sandeep Kumar Rai,Shailendra Singh,Shyam Narain Rai
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered by Hon'ble Mrs. Vijay Lakshmi,J.)

1. This appeal is directed against the judgment and order dated 12.12.1996 passed by the Sessions Judge, Mirzapur, in S.T. No. 100 of 1992 arising out of Case Crime No. 116 of 1991, u/s 147, 148, 149, 307, 302 I.P.C. Police Station Cheelh, District Mirzapur, whereby all the appellants have been convicted under sections 302 and 307 read with section 149 I.P.C. and have been sentenced with life imprisonment and with rigorous imprisonment for five years, respectively. In addition to it, the appellants Paras Singh, Ghanghare Singh, Ashok Singh, Kinkar Singh and Sanjay Singh have also been convicted and sentenced with two years rigorous imprisonment u/s 148 I.P.C. and appellant Kalloo Singh has been convicted and sentenced to one year rigorous imprisonment for his conviction u/s 147 I.P.C. All the sentences are directed to run concurrently.

2. The factual matrix of the case as per written report and the evidence available on the record may be narrated as follows.

3. On 14.8.1991 it was the festival of 'Nagpanchami'. The complainant Ram Pyare Singh was sitting in front of his door along with his family members including his uncle and cousin brothers namely Ram Sewak Singh, Shiv Sewak Singh, Ram Lakshan Singh, Hanuman Singh and Rajesh Singh. At about 1-1.30 P.M. accused-appellants Paras Singh, Ghanghare Singh, Kinkar Singh and Ashok Singh armed with 'Barchhas' (spears), Sanjay Singh armed with 'Gandasa' and Kallu Singh armed with 'danda' reached there. Accused Kallu Singh exhorted with the words "vkt ekSdk vPNk gS lkyksa dks tku ls ekj Mkykss". Thereafter all the six accused persons attacked on complainant party by 'Barchha' (spear), 'Gandasa' and 'lathi'. Ram Sewak Singh and Shiv Sewak Singh requested the accused persons with folded hands that they should not quarrel on such an auspicious day but the accused did not listen to them. Ganghare Singh and Kinkar Singh gave spear blows to Ram Sewak Singh, who fell down on the floor after sustaining the injuries and died instantaneously. The remaining accused caused injuries to Shiv Sewak Singh, Hanuman Singh, Rajesh Singh and Ram Lakshan Singh. Hearing the hue and cry the witnesses Mangla Singh and Munna Singh reached at the spot and witnessed the whole occurrence. The condition of injured persons being critical, the complainant rushed to District Hospital, Mirzapur, with them and after getting them admitted in the Hospital went to Police Station Cheelh, district Mirzapur, to lodge the report. In the first information report it was also mentioned that the accused being mafias, gundas and bully type persons ("Sarhang and Dabang") no one is ready to give evidence against them.

4. On the basis of the written report, which was lodged by Ram Pyare on the same day at 4.20 P.M., a criminal case was registered at Crime No. 116 of 1991 against all the six accused persons and the matter was investigated. The Investigating Officer interrogated the witnesses u/s 161 Cr.P.C., prepared the site plan, inquest report, sent the dead body of Ram Sewak Singh for postmortem, collected blood stained and plain soil from the spot and prepared its memo. The injured Hanuman Singh and Shiv Sewak Singh were medically examined on 14.8.1991 between 3.10 P.M. to 3.45 P.M. and their injury reports were prepared.

5. After conclusion of the investigation charge sheet was submitted against all the accused persons.

6. The case being exclusively triable by the court of Sessions, it was committed to the Sessions Court where charges u/s 148, 302/149 and 307/149 I.P.C. were framed against all the accused-appellants namely Paras Singh, Ghanghare Singh, Kinkar Singh, Ashok Singh, Sanjay Singh and Kallu Singh @ Mata Prasad. In addition to it and charge u/s 147 I.P.C. was also framed against accused Kallu Singh @ Mata Prasad. All the accused denied from the charges and claimed to be tried.

7. The prosecution in order to prove its case examined six witnesses in all, out of which three witnesses are of fact and three are of formal character. A brief description of the witnesses is as follows.

8. PW1 is Munna Singh, who is an eyewitness, however, he is not an injured witness. PW2 is Shiv Sewak Singh. He is real brother of the deceased Ram Sewak Singh and is an injured witness. He has supported the prosecution case in his examination in chief, however, he has turned hostile during his cross-examination. PW4 is Ram Pyare Singh, who is the first informant. He is not an injured witness. PW3 is Dr. J. N. Singh, who has conducted postmortem on the dead body of the deceased Ram Sewak Singh, PW5 is Dr. R. N. Shaha, who has medically examined the injured Shiv Sewak Singh and Hanuman Singh and PW6 is Omkar Singh, who is Investigating Officer of the case.

9. After conclusion of the prosecution evidence, statements of all the accused under section 313 Cr.P.C. were recorded in which all of them denied from the allegations and stated that they have been falsely implicated in this case due to enmity. No evidence was produced by any of the accused in their defence.

10. The learned trial court after a detailed discussion and appreciation of the evidence found the appellants guilty and punished all of them as already mentioned in the earlier part of this judgment.

11. Aggrieved by their conviction and sentence, all the accused have filed the present appeal before this court.

12. The appellant Paras Singh died during pendency of the appeal, therefore, the appeal against him stood abated vide order dated 29.8.2017.

13. Now the appeal is surviving against the remaining five accused-appellants.

14. Heard Sri Vinay Saran assisted by Sri Pradeep Kumar Mishra, learned counsel for the appellants, Sri Ratan Singh, learned AGA representing the State and Sri V. P. Srivastava, Senior Advocate, assisted by Sri Rajiv Lochan Shukla and Sri P. K. Rao for the complainant. Perused the record.

15. The legality and correctness of the impugned judgment has been challenged by learned counsel for the appellants in this appeal inter-alia on the following grounds:

I. The learned trial court has convicted the appellants without a proper appreciation of evidence and has wrongly held all of them jointly liable u/s 302 read with section 149 I.P.C. for the murder of Ram Sewak Singh without considering the fact that the deceased had suffered only a single injury. It has been contended that it is the specific case of prosecution that the appellants nos. 1, 2, 3 and 4 were armed with spears (Barchha or Ballam) and the appellants 2 and 3 had inflicted injuries with spears (Barchha) on the body of the deceased. However, a perusal of the description of the ante-mortem injuries mentioned in the postmortem report shows that only one punctured wound was seen on the body of the deceased. It cannot be said that out of the six accused persons, who was the author of the single fatal injury, therefore, conviction of all the appellants u/s 302/149 I.P.C. is illegal and against the evidence on record and they cannot be held jointly liable.

II. The description of injuries in the medical examination report of the injured shows that the injuries suffered by both the injured are simple in nature and are on non-vital parts of their bodies, therefore, no case u/s 307 I.P.C. was made out and the offence, if any, does not travel beyond section 323 or 324 I.P.C.

III. There is material contradiction between the ocular evidence and medical evidence. It is contended that the appellant Sanjay Singh is said to be armed with 'Gandasa' but no incised wound has been found either on the body of the deceased or on the person of the injured. It has been alleged that the appellant Sanjay Singh inflicted 'Gandasa' blow on Hanuman Singh but the injury report of Hanuman Singh shows that he has not sustained even a single incised wound and both the injuries sustained by him have been caused by blunt object and are simple in nature as per his injury report.

IV. Out of the two injured persons, the injured Shiv Sewak Singh has turned hostile and injured Hanuman Singh has not been examined, which makes the prosecution story wholly doubtful.

V. Complainant Ram Pyare Singh (PW-4) and eyewitness Munna Singh (PW-1) have not sustained any injury despite the fact that both were present on the spot, which makes the prosecution story doubtful. They have not tried to save the deceased and the injured, which also appears unnatural conduct on their part.

VI. The site plan does not corroborate the ocular evidence.

VII. The motive behind the occurrence has not been proved by the prosecution as the witnesses have not been able to point out that what was the dispute between the parties.

VIII. Though, the long drawn enmity between the parties has been stated to be the motive behind the occurrence, however, neither any complaint nor any report of the previous incidents have been produced. There is no witness of the long drawn enmity and there is no immediate motive behind the occurrence.

IX. Only three witnesses of fact have been produced by the prosecution and all of them are close relatives and are highly interested witnesses.

X. The essential ingredients of section 149 I.P.C. (common object) are missing in this case. There was no common object to kill any one. Only a single injury has been sustained by the deceased, that too on his shoulder which is a non vital part of the body. There was no repetition of any blow, hence it cannot be said that the appellants had the common object to kill the deceased.

16. Per contra, learned AGA and learned counsel for the complainant have argued that the prosecution has been successful in proving its case beyond all shadows of reasonable doubt. The FIR version finds full corroboration with the statements of PW1 and PW4. The place, time, date, manner of occurrence and the weapons used, everything is admitted even to PW2 Shiv Sewak Singh, who later on, has turned hostile. Moreso, PW2 has fully corroborated the prosecution case in his examination in chief. It is contended by learned AGA that the reason for his turning hostile is also obvious. The attention of this court has been drawn towards the copy of the statement of PW2 Shiv Sewak Singh to show that his examination in chief was recorded on 16.6.1993, however, his cross-examination was deferred on the said date on the request of learned defence counsel. Thereafter his cross-examination was conducted on 15.12.1995 i.e. after expiry of more than two years and during this time gap, he was either won over by money or was threatened turned hostile. It has been contended that the reason for PW2 turning hostile is clear from the FIR itself in which it has been mentioned that the accused persons are mafias, bullies and anti-social persons, therefore, no one dares to give evidence against them. Learned AGA and learned counsel for the complainant have further contended that the place of occurrence is fully established by the prosecution by the site plan and recovery of blood stained and plain earth from the spot by the I.O. It is further contended that the spear blow has penetrated the chest cavity of the deceased which is the most vital part of the body causing his instantaneous death. It has further been contended that the doctor, who has been examined as PW3, has clearly stated that there were two punctured wounds, one was on the chest and the other was on the arm. Therefore, it is wrong to say that it was a case of single injury on the body of the deceased. Learned counsel for the complainant has contended that all the accused appellants had reached at the spot in a pre-planned manner having common object of committing murderous assault on the deceased. They all were armed with deadly weapons and attacked on the unarmed deceased and his family members. There was admittedly long standing enmity between them, therefore, only on the ground that the immediate motive has not been shown by the prosecution, the whole prosecution case can not be discarded in view of the settled legal position that in case of direct evidence the motive pales into insignificance.

17. On the aforesaid grounds learned AGA and learned counsel for the complainant have prayed that the appeal being devoid of merit be dismissed.

18. We have considered the rival submissions advanced by learned counsel for the parties and have carefully perused the evidence available on the record.

19. In order to find out the veracity and truthfulness of the prosecution story, it is necessary to discuss and analyse the statements of the witnesses examined during trial.

20. PW1 Munna Singh, who is an eyewitness, has stated that on 14.8.1991 at about 1.30 P.M. he was sitting in the verandah of his house. Mangla Singh was also sitting with him. Ram Pyare Singh, Ram Sewak Singh, Shiv Sewak Singh, Hanuman Singh, Ram Lakshan Singh and Rajesh Singh were sitting in the verandah of the house of Ram Pyare Singh. Both the verandah are situated only at a distance of ten steps from each other. The accused Paras Singh, Ghanghare Singh, Kinkar Singh, Ashok Singh armed with 'Barchha' or 'Bhala', Sanjay Singh armed with 'Gandasa' and Kallu Singh armed with 'lathi' reached there. Ram Pyare Singh (the complainant) and others entreated the accused not to quarrel as it was the auspicious day of 'Nagpanchmi' but the accused did not listen to them and started assaulting Ram Sewak Singh, Shiv Sewak Singh and others. PW1 has further stated that Ghanghare Singh and Kinkar Singh inflicted injuries to Ram Sewak Singh with the arm (spear) they were carrying, due to which Ram Sewak Singh fell down near the door and died. During his cross-examination PW1 has stated that he has no enmity with the family members of accused Paras Singh. He denied to have any knowledge about the reason for enmity between the families of the accused and the deceased Ram Sewak Singh and stated that he had seen inimical relations between the aforesaid two families from the time he attained the age of discretion. PW-1 has further stated that prior to this occurrence, the accused had beaten Ram Pyare Singh, Shiv Sewak Singh and others. He has admitted that on the occasion of 'Nagpanchami' a 'Dangal' is organized in his village but he has denied that the deceased Ram Sewak Singh had gone to participate in the 'Dangal' where he sustained injury in stampede. He has stated that all the accused had caused injuries with their respective weapons to the deceased and the injured but he could not tell exactly as to how many blows each accused had inflicted to the victims.

21. PW2 Shiv Sewak Singh is an injured witness. In his examination in chief he has stated that on 14.8.1991 at about 1.30 P.M. he along with Ram Sewak Singh (deceased), Ram Pyare Singh, Ram Lakshan Singh, Hanuman Singh and Rajesh Singh was sitting in the verandah of the house of Ram Pyare Singh. In the meantime accused Paras Singh, Ghanghare Singh, Kinkar Singh, Ashok Singh each armed with Barchhas (spears), Sanjay Singh armed with 'Gandasa' and Kallu Singh armed with 'lathi' reached there and started hurling abuses on them. They requested the accused not to indulge in fighting on the an auspicious festival of 'Nagpanchami' but the accused did not paid any heed to their request and launched attack on them. The accused Ghanghare Singh and Kinkar Singh inflicted Bhala (spear) blows to Ram Sewak Singh, who after sustaining injuries fell down at his door and died on the spot. Accused Paras Singh inflicted Bhala (spear) injury to him. Other accused assaulted Hanuman Singh, Ram Lakshan Singh and Rajesh Singh. After the death of Ram Sewak Singh, accused ran away from the spot. Ram Sewak was taken to District Hospital, Mirzapur, where he was medically treated. From District Hospital, Mirzapur, he was referred to Sir Sunder Lal Hospital, B.H.U., Varanasi.

22. Cross-examination of PW2 was deferred on the request of learned defence counsel and it could be resumed after two years on 15.12.1995. This time, PW2 took a 'U' turn and turned hostile. He stated that program of 'Kabaddi' is held every year in his village on the occasion of Nagpanchami. On the day of occurrence too 'Kabaddi' game was going on, a dispute arose during the game of 'Kabaddi' between the spectators and players causing stampede, during which he fell down and sustained injuries and became unconscious. He gained consciousness after two days in Hospital at Varanasi. Ram Pyare Singh had taken him to Hospital and got him medically treated. Ram Pyare Singh had told him that a case was registered against Paras Singh and others and they have been arraigned as accused in that case. PW2 has further stated that he could not see as to what arm was wielded by which of the accused. He could not see as to who inflicted injuries on whom. He denied from his earlier statement recorded by the investigating officer u/s 161 Cr.P.C.

23. The prosecution with the permission of the court declared PW2 as a hostile witness and cross-examined him.

24. In his cross-examination by the prosecution, PW2 again stated the same facts as stated by him in his examination in chief about the place, time and manner of the occurrence. He stated that on the day of occurrence he along with others was sitting in the verandah of Ram Pyare Singh. The accused had raided there and attacked with the arms they were carrying. He sustained injury from Barchha (spear) at that place but he could not know as to who inflicted Barchha (spear) injury on him. He has also stated that his brother Ram Sewak Singh (deceased) also sustained injuries on the same place. According to him "ekjihV esjs njokts ij gqbZ Fkh".

25. PW4 Ram Pyare Singh, who is the complainant, has stated almost the same facts in his examination in chief as stated by PW1 and PW2 and there is no need to repeat the same. He has stated that he took the injured in a Jeep to District Hospital, Mirzapur, as the condition of injured Shiv Sewak Singh was critical. He got him admitted in the Hospital and then came to Chietganj Chowki where he orally informed about the incident, which was scribed by Rakesh Kumar Tiwari and was read over to him. After hearing the contents of the report, he put his signature on it. He has proved the written report as Ext. Ka3. He has further stated that after lodging report, he again went to the District Hospital, Mirzapur, where the doctor informed that the condition of Shiv Sewak singh being serious, he has referred him to B.H.U. PW-4 has further stated that Shiv Sewak Singh got operated at B.H.U. and he stayed in B.H.U. with Shiv Sewak Singh for 6-7 days. Thereafter he returned home and his statement was recorded by the investigating officer when he returned home from B.H.U. During his cross-examination he has admitted the fact that there was long drawn enmity between the families of the accused and the deceased Ram Sewak Singh. He admitted that he had not sustained any injury during the occurrence. He has stated that Hanuman Singh, Ram Lakshan Singh and Rajesh Singh had received injuries but he could not tell from which weapon they had sustained injuries.

26. The remaining witnesses i.e. PW3, Dr. J. N. Singh, PW5 Dr. R. N. Shaha and PW6 Omkar Singh are the formal witnesses.

27. PW3, Dr. J. N. Singh, who has conducted postmortem of the deceased Ram Sewak Singh, has stated that on 15.8.1991 he was posted as Senior Medical Officer at District Hospital, Mirzapur, and on that day at 3.45 P.M. he had conducted postmortem examination of the deceased Ram Sewak Singh. He was aged about 50 years having a stout body. About one day had elapsed since his death. Rigor mortis was present on both the extremities. The doctor (PW-3) found the following ante mortem injuries on the body of the deceased:

1. Punctured wound 3 cm x 2 cm x chest cavity deep on the front of left upper arm 12 cm below the left top of shoulder joint. It had passed through and subcutaneous tissues of left arm through and through causing an incised wound of the size of 2.5 cm x 1 cm on the medial aspect of left arm. The margins were everted. Direction of the wound was backward and downward. Thereafter producing a punctured wound of the size 2 cm x .5 cm x cavity deep on the anterior axillary line of the corresponding part of the left side of the chest, 8 cm above and lateral to the left nipple. The edges were clean cut.

2. Abraded contusion in an area of 7 cm x 4 cm on the fop of the left shoulder joint.

3. Contusion 2 cm x 1 cm on the back of the left elbow joint.

4. Linear abraded contusion 1.5 cm on the back of the middle of out aspect of right thigh.

On internal examination, the doctor found blood clot in the left side of chest between ribs and pleura. Pleura was cut. Left lung was having an incised wound in between upper and middle lobe. Pericardium was incised and was full of altered blood. Left ventricle had a longitudinally cut on the left border 3 cm above the apex. The cut is 1 cm long and through and through the heart muscle into the left ventricle. Chest cavity contained about 2.5 Litres of altered blood. Stomach contained 150 grams of semi digested and semi solid food. Small intestines contained gases and faecal matter. Large intestines contained faecal matter only. Liver spleen and kidney were found to be pale. In the opinion of the doctor death of the deceased had occurred due to shock and haemorrhage as a result of ante mortem injuries.

28. PW5 Dr. R. M. Shaha, who has medically examined injured Hanuman Singh and injured Shiv Sewak Singh on the day of occurrence on 14.8.1991. He has proved the medical examination reports of Hanuman Singh as Ext. Ka4 and of Shiv Sewak Singh as Ext. Ka5.

29. According to PW5 Dr. R. M. Shaha, he had found the following injuries on the body of Shiv Sewak Singh:

1. Lacerated wound 7 cm x 0.5 cm on middle of head, 7 cm away from right pinna.

2. Punctured wound 2 cm x 0.25 cm cavity deep on middle of abdomen, 3 cm above umbilicus. Edges were sharp. The injury was kept under observation and was referred to Surgeon.

30. The following injuries were found on the body of injured Hanuman Singh:

1. Lacerated wound 4 cm x 0.5 cm x skin deep over left temporal region of head, 10 cm above left pinna.

2. Lacerated wound 5 cm x 0.25 cm x muscle deep over abdomen 12 cm from umbilicus. Bleeding was present. Duration of the injury was fresh.

In the opinion of the doctor, the injuries were caused by some blunt object and were simple in nature.

31. Omkar Singh, Investigating Officer of the case has been examined as PW6. He has stated about the usual tasks performed by him during investigation and has proved the site plan, recovery memos of blood stained and plain earth, inquest report etc. After concluding the investigation, he has submitted charge sheet Ext. Ka20 u/s 147, 148, 307/149 and 302/149 I.P.C. against all the accused persons.

32. On a careful scrutiny of the statements of all the prosecution witnesses we find that the witnesses have fully supported the prosecution case. PW1 and PW4, who are eyewitness, have been cross-examined at length by the defence counsel but they are throughout cogent and consistent on their stand and nothing has been elicited to cast a shadow of doubt on their trustworthiness. Even PW2, who has turned hostile, has admitted the time, date and place of occurrence. However, he has stated that he became unconscious after receiving the injury and he could not see as to who was inflicting injuries on whom.

33. Though, PW2 has turned hostile and has changed his statement during his cross-examination but in our view it has no adverse affect on the prosecution case for the reason that the cross-examination of PW2 was deferred on the date when his examination in chief was recorded and after expiry of more than two years it was conducted. In the meantime either PW2 was won over by money or by threatening him of dire consequences by the accused. Whatever may be the reason, even after turning hostile, he has supported some part of prosecution case by stating that the occurrence had taken place in the verandah of Ram Pyare Singh and he had suffered Barchha (spear) injury at the same very place. He has also admitted that the deceased Ram Sewak sustained fatal injury at the same place.

34. The law regarding the value to be attached to the evidence of a hostile witness has been well settled in a catena of judgments of the hon'ble Apex Court, according to which the evidence of a hostile witness is not to be rejected in toto. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. Any part of it, if found reliable and consistent with the prosecution case, may be accepted. (Bhagwan Singh Vs. State of Haryana (1976)1 SCC 389 again repeated in Vinod Kumar Vs. State of Punjab (2015) 3 SCC 220.)

35. So far as the arguments advanced by learned counsel for the appellants that the witnesses are close relatives and are highly interested witnesses, is concerned, We find no force in it.

36. The law in this regard is well settled that a close relative will be the last person to screen the real culprit and falsely implicate an innocent person.

37. In Rameshwar Vs. The State of Rajasthan, AIR 1952 SC 54 at page 59 the Apex Court held as under:-

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person."

38. In Masalti Vs. State of U.P., AIR 1965 SC 202 the Apex Court said:

"Normally close relatives of the deceased would not be considered to be interested witnesses."

39. In Kartik Malhar Vs. State of Bihar, (1996) 1 SCC 614 the Apex Court has opined as under:-

"A close relative who is a natural witness cannot be regarded as an interested witness, for the term ''interested' postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason."

40. In Pulicherla Nagaraju alias Nagraja Reddy Vs. State of Andhra Pradesh, AIR 2006 SC 3010, the Apex Court has observed as follows:

"It is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or close relative to the deceased, if it is otherwise found to be trustworthy and credible. The said evidence only requires scrutiny with more care and caution, so that neither the guilty escapes nor the innocent is wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, then it can be acted upon."

41. In Hari Obula Reddi and others v. The State of Andhra Pradesh, AIR 1981 SC 82 a three-Judge Bench of Apex Court has held as under:-

"Evidence of interested witnesses is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. It cannot be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."

42. In Harivadan Babubhai Patel vs. State of Gujarat (2013) 7 SCC 45, the Apex Court observed as under:-

"In view of our aforesaid analysis, we are unable to accept the submission of the learned counsel for the appellant that the evidence of the eye witnesses should be rejected solely on the ground that they are close relatives and interested witnesses."

43. In Thoti Manohar Vs. State of Andhra Pradesh, (2012) 7 SCC 723 the Apex Court has held as under:-

"The learned counsel for the appellant has endeavoured hard to highlight certain discrepancies pertaining to time, situation of the land, number of persons, etc., but in our considered opinion, they are absolutely minor in nature. The minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hyper-technical approach. The Court, while appreciating the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored."

44. Much stress has been laid by learned counsel for the appellants on the issue that the appellants have been wrongly held guilty on the basis of joint liability. Learned counsel for the appellants has vehemently contended that the participation of appellants Ashok Singh and Sanjay Singh in the occurrence has not been proved beyond reasonable doubt because no eyewitness has stated about the roles of the appellants Ashok Singh and Sanjay Singh. Although PW1 Munna Singh has stated that Gandasa injury was inflicted by Sanjay Singh to Hanuman Singh but no Gandasa injury was found on his person. This clearly shows that the appellants Ashok Singh and Sanjay Singh did not participate in the commission of the occurrence and they were falsely implicated.

45. We do not find any substance in the aforesaid argument.

46. The facts of the present case, as discussed in detailed above, clearly reflect that all the accused- appellants had reached the place of occurrence armed with some or the other weapon. Thus, it is clear that they had formed an unlawful assembly in prosecution of a common object i.e. to commit murderous attack on the members of the complainant side. In so far as the specific roles of present appellants are concerned, it is be kept in mind that section 149 I.P.C. does not require that every person, who is a member of an unlawful assembly, should be attributed an overt act.

47. Hon'ble Supreme Court in the case of Parashuram Pandey Vs. State of Bihar, 2015 SCC (Cri) 113 while interpreting section 149 I.P.C. has laid down the law as under:-

"The Section creates constructive or vicarious liability of the members of the unlawful assembly for unlawful acts committed pursuant to the common object by any other member of that assembly. The basis of constructive guilt under Section 149 is mere membership of an unlawful assembly. In a case under Section 149 the accused if is a member of the unlawful assembly, the common object of which is to commit a certain crime and if that crime is committed by one or more members of that assembly every person who happened to be a member of that assembly would be liable for that criminal act by virtue of his being a member of it, irrespective of the fact whether he actually committed the act or not."

48. In another landmark case of Vishnu Vs. State of Rajasthan (2010)1 SCC (Cri) 302 the Supreme Court while elaborating the ambit and scope of section 149 I.P.C. has reiterated the law as under:-

"Section 149 of the Penal Code provides for vicarious liability. If an offence is committed by any member of an unlawful assembly in prosecution of a common object thereof or such as the members of that assembly knew that the offence to be likely to be committed in prosecution of that object, every person who at the time of committing that offence was member would be guilty of the offence committed. The common object my be commission of one offence while there may be likelihood of commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. Whether a member of such unlawful assembly was aware as regards likelihood of commission of another offence or not would depend upon the facts and circumstances of each case. 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 behavior of the members soon before, at or after the actual commission of the crime would be relevant factors for drawing an inference in that behalf."

49. In view of the above, it does not make any difference as to whether accused Sanjay Singh and Ashok Singh had inflicted any injury to any one or not and they are equally liable u/s 149 I.P.C. for the offence committed by the other members of the unlawful assembly.

50. It is also noteworthy that none of the accused has given any satisfactory answer to the questions put to them u/s 313 Cr.P.C. and all of them have given evasive answers by stating "Galat Hai", "Ranjishan" and "Pata Nahin" in reply to every question put to them.

51. Hon'ble Apex Court in Munna Kumar Upadhyay Vs. State of Andhra Pradesh, (2012) 6 SCC, 174 has held as under:

"If the accused gives incorrect or false answers during the course of his statement under Section 313 Cr.P.C., the Court can draw an adverse inference against him and as the conduct of accused would tilt the case in favour of prosecution."

52. In the case of Ram Naresh Vs. State of Chattisgarh (2012) 4 SCC 257, the Hon'ble Apex Court has observed as under:

"The object of recording of a statement under Section 313 Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires, but once he does not avail the opportunity, the consequences in law must follow".

53. From the above discussion, we are of the firm view that the prosecution has successfully proved its case against accused-appellants beyond reasonable doubt. Learned trial court has rightly held them guilty and has punished them accordingly. There does not appear any illegality or irregularity in the findings recorded by the learned trial court and there is no need to interfere in the same.

54. Accordingly, we confirm the impugned judgment and order dated 12.12.1996. The appeal is liable to be dismissed and it is accordingly dismissed.

55. The appellants are on bail. In view of the dismissal of their appeal, their bail bonds are cancelled and the sureties are discharged. The Chief Judicial Magistrate, Mirzapur, is directed to take the appellants into custody immediately and lodge them to jail to serve out the sentence of life imprisonment.

56. A copy of this judgment be sent to the C.J.M., Mirzapur, by FAX for immediate compliance.

57. The lower court's record along with a copy of the judgment be sent back to the court concerned.

Order Date :-07.9.2018

Pcl