Ranvir Singh And Anr. vs State Of U.P.
2019 Latest Caselaw 2886 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgement reserved on 13.03.2019
 
Judgement delivered on 12.4.2019 
 

 

 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 2494 of 1983
 

 
Appellant :- Ranvir Singh And Anr.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ravindra Singh,Sangam Lal Kesharwani,Shivam Yadav
 
Counsel for Respondent :- D.G.A.,A.G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)

1. Heard Sri Akhilesh Singh, Sri Sangam Lal Kesharwani, learned counsel for the appellants, Mrs. Archana Singh, learned A.G.A. and perused the record.

2. This Criminal Appeal has been preferred by accused appellants Ranveer Singh and Mahavir against the judgment and order dated 13.10.1983 passed by Special Judge, Mainpuri in S.T. No. 149 of 1982 (State vs. Ranveer Singh and another) whereby the accused Ranveer Singh and Mahavir have been convicted and sentenced under section 396 IPC with imprisonment for life.

3. The accused-appellant Ranveer Singh had already died during the pendency of the appeal and hence his appeal has been abated by Court's order dated 2.2.2016.

4. In brief, the prosecution case is that the informant Raja Chandra (PW1) son of Nirottam Singh, who is son-in-law of the deceased gave a Tehrir at P.S. Karhal, District Mainpuri on 21.5.1982 at 6.30 A.M. stating therein that on 20.5.1982 in the evening at about 7.00 P.M., his father-in-law Hoti Lal, mother-in-law Savitri Devi (PW2) and his wife Kutma Devi along with children were having food and he himself who had come from his village for Bidai of his wife, was sitting in front of his Kothi, in the meantime, Ranveer Singh son of Shimbhu Dayal (A-1) r/o Nagla Gadhiya and Mahavir Singh son of Satyaram (A-2) r/o Agrapur, both wielding rifle in their hands came along with 3-4 other unknown persons and entered the house of Hoti Lal (deceased) from the front door, seeing which, he also went in side the house and saw that his father-in-law was wounded and out of these miscreants, two ascended the roof of the house through stair case and Ranvir Singh and Mahavir Singh shot fire upon Hoti Lal by which he fell down and died on the spot. He and other inmates of the house raised alarm hearing which Tukman son of Jaswant Singh (PW3) and various persons reached there. All these miscreants fled with SBBL 12 bore gun no. 11534 of his father-in-law along with cartridges towards north. Accused Mahavir Singh had enmity with his father-in-law in respect of election of Pradhan because both of them had contested the same and Hoti Lal (deceased) was elected.

5. On the above Tehrir (Exhibit Ka-1) being given at the police station, case crime no.77 of 1982 was registered under section 396 IPC at P.S. Karhal against both the accused-appellants named above and entry of this case was made in G.D. at report no. 8 time 6.30 A.M. on 21.5.1982. The investigation was assigned to S.I. Ram Vilash Tiwari (PW4).

6. On 21.5.1982, when the case was registered and the investigation was assigned to Sri Ram Vilas Tiwari (PW4), he proceeded for the place of incident, where he found the dead body lying on the ground and prepared panchayatnama which is Ext. Ka-2, challan nash, photo nash, chitthi C.M.O., chitthi R.I. in his hand writing which are Ext. Ka-3, Ka-4, Ka-5 and Ka-6 respectively. He after sealing the dead body handed it over to Constable Sobran Singh and Home-guard Kanoji Lal for taking the same for post-mortem and also prepared the fard of the clothes which the deceased was wearing which is Ext. Ka-7. He also took ordinary soil and blood stained soil in his possession and prepared their fard which is Ext. Ka-8. He also found three empty cartridges out of which one empty cartridge was of 303 bore and two cartridges were of sami rifle and also prepared its fard which was not in the file but he copied the same from case diary and filed it on record which is Ext. Ka-9. He inspected the scene of occurrence and prepared its site plan which is Ext. Ka-10, recorded statements of witnesses of Fard and panchayatnama and made search of the accused who could not be found. On 22.5.1982, he again made search for the accused and some witnesses who could not be found, whereafter he went to Sirsaganj and the remaining force went back to the P.S. On 23.5.1982, he made search for witness Mulayam Singh, who could not be found, had a talk with Mukhbirs (police informers). On 25.5.1982, he received post-mortem report of the deceased and thereafter investigation of this case was taken over by S.O. Sri S.K. Awasthi (PW-6) from him. He has also stated that chik F.I.R. was lodged in this case by Head-constable Ram Prakash and entry of this case was also made in G.D. by him, whose writing and signature he was conversant with and proved chik F.I.R. as Ext. Ka-11 and G.D. is Ext. Ka-12.

7. The other Investigating Officer Sri S.K. Awasthi (PW-6) had taken over the investigation of this case on 25.8.1982, whereafter on 5.6.1982, he made raid to arrest the accused who could not be found and on the same day, he proceeded to obtain warrants under Section 82 and 83 Cr.P.C. On 8.6.1982, he obtained arrest warrant and on 9.6.1982, he obtained warrant for attachment of property of the accused. The fard of attachment is prepared by A.S.I. Japal Singh with whose writing and signature he was conversant. The arrest warrants are Ext. Ka-14 and Ka-15, while attachment warrants are Ext. Ka-16 and 17, proclamation is Ext. Ka-18 and Ka-19 and fard attachment is Ext. Ka-20 and Ka-21. Thereafter, he submitted charge sheet Ext. Ka-22 on 22.6.1982 against the accused persons.

8. On the basis of evidence gathered by the prosecution, charge was framed against the accused-appellant on 2 September, 1982 under Sectin 396 IPC to which he pleaded not guilty and claimed to be tried.

9. In order to establish the prosecution's case, the Raja Chandra (informant), son-in-law of the deceased as PW-1, Savitri Devi (wife of the deceased) as PW-2, Tukman (brother-in-law of the deceased) as PW-3, S.I. Ram Vilas Tiwari, who partly investigated the case and also proved inquest report as PW-4. Dr. D.P. Mishra, who conducted the post-mortem of the deceased as PW-5 and S.I. S.K. Awasthi, who was the second I.O. as PW-6.

10. Thereafter, the prosecution evidence was closed and the statement of accused was recorded under Section 313 Cr.P.C. in which he stated it to be wrong that there was enmity between the deceased and accused Mahavir because both of them had contested election of Pradhan in which Hoti Lal had defeated Mahavir; that Raja Chandra was married to the daughter of the deceased namely Kushma Devi and that on the date of occurrence, he had come to the house of the deceased to take his wife back to the matrimonial home and was sitting outside his house at about 6:00 pm; that in the evening of 20.5.1982, at about 7:00 pm, he along with co-accused had come armed along with three other unknown miscreants with an intention to commit dacoity in the house of Hoti Lal (deceased) and behind them Raja Chandra also entered the house of deceased and at that time, the deceased, his family and children were having food and the deceased after having taken meals was standing in court yard after washing his hands; that out of the uknown dacoits two ascended roof of the house of the deceased and he along with co-accused had gheraod the deceased and thereafter Mahavir along with co-accused Ranvir Singh made three fires upon the deceased with an intention to kill by which he became injured and fell down on the ground; that after seeing the Hoti Lal having got injured Raja Chandra fled out of the house and started raising alarm and the wife and children of the deceased also started screaming, in the meantime uknown miscreants who had ascended the roof, out of them, one who had with him, licensed gun of deceased Hoti Lal along with belt of cartridge made fire upon Hoti Lal which hit and Hoti Lal died on the spot; that he along with co-accused persons thereafter fled from the main door of the house of the deceased towards north along with gun and cartridges of the deceased and at that very time, Tukman Singh, who had come from Nagla Gathiya one day ago in a marriage and was going to meet his brother-in-law, as soon as, he reached near house of Radhey Shyam, he heard sounds of fire coming out of the house of Hoti Lal and thereafter he also heard the scream of Raja Chandra and the inmates (ladies and children) of the said house, whereon Tukman Singh (PW-3) saw him and other co-accused coming out of the house of the deceased along with fire arm weapons and cartridges and, thereafter, when Raja Chandra and some other villagers went inside the house of the deceased where he was found dead; Raja Chandra had lodged a written report concerning this incident.

11. The counsel also stated it to be false that the Investigating Officer prepared panchayatnama of the dead body of the deceased and after having sealed the same sent it for post mortem and also had taken into possession blood stained clothes of the deceased, fard of which was also prepared; the doctor after conducting post-mortem gave information that the injuries which were caused to the deceased, had been caused by fire arm weapon; the investigating officer after finding him guilty had submitted charge sheet against him. He lastly stated that he has been implicated due to enmity and also stated that the witnesses of this case are relatives of Hoti Lal.

12. In defence, this accused has examined Tilak Singh S/o Tale Singh as DW-1 and Kebaran Singh S/o Lajja Ram as PW-2.

13. After having considered the entire evidence on record, the trial court has held accused appellant guilty under the aforementioned sections.

14. Therefore, we have to see in the light of arguments made in appeal as to whether the findings rendered by the trial court deserve to be upheld or need to be set aside for which re-appraisal of the entire evidence is required to be made.

15. PW-1, Raja Chandra has stated in examination-in-chief that he was married to the daughter of the deceased Hoti Lal and about six and half months ago, he had gone to his sasural Agrapur for Bidai of his wife and was sitting on Chabutra outside his house at about 7:00 pm. It is then that he saw accused-appellants Ranvir and Mahavir having rifles in their hand along with 3-4 persons, who entered the house of the deceased and he also followed them. Inside the house, his mother-in-law, father-in-law, his wife and children were there. Out of the miscreants two unknown climbed upon the roof of the house where in a room, gun of his father-in-law along with belt of cartridges was kept. Meanwhile, Ranvir Singh and Mahavir Singh had made three fires from their rifles upon his father-in-law by which he fell down and soon after he (PW-1) fled out of the house and screamed out loudly. Thereafter, he heard another sound of fire. The accused, who were unknown, out of them one had licensed gun no. 1534 belonging to his (PW's) father-in-law along with belt of cartridges and all of them came out of the house and fled towards north. After the miscreants had fled from there, he along with Tukman (PW-3) of Nanhemau, who is his 'Mamiya Sasur' and other villagers went inside the house and saw that Hoti Lal was lying dead who, was having injury on his wrist, chest and abdomen. Further he has stated that his father-in-law had contested election of Pradhan which he had won and the accused Mahavir had lost and since thereafter he was having enmity towards him. He had lodged a report at the P.S., Tahrir of which is Ext. Ka-1. He also recognized both the accused Ranvir and Mahavir, who were present in court.

16. Citing the above statement of this witness, learned counsel for the appellant has argued that the presence of PW-1 on the spot is doubtful because he came subsequenlty when the deceased had already been killed and that it could not be believed that he would remain there a silent spctator and would not make any hue and cry, his conduct is highly suspicious and also non-receipt of any injury in this occurrence by him would also suggest that he was not there.

17. In cross-examination, this witness has stated that his wife had come one and half months prior to the occurrence to her parents house. She had not come to attend any 'Terahavi' and 'Bhagvat' or any other function. He had come there on 20.5.1982 at about 12:00-1:00 pm. There were two children in the house of Hoti Lal, one aged about 8 to 9 years and other 5 to 6 years old and besides them, there were Hoti Lal and his wife also in the house. In the house of Hoti Lal, there is stair case to go on the roof which is towards the house of Mulayam Singh, where one room is constructed and some portion is open roof. In the lower portion there were two rooms and a 'Dahleej'. In front of the eastern room, there is verandah and kitchen is towards south and the court yard approximately would be 20-25 feet, both in length and breadth.

18. Further he has stated that he had not come during the election of Pradhan in the said village, although at the time his wife was in her matternal house and 2-3 days after the election, she had returned. After the election, accused Mahavir had filed a petition against Hoti Lal but he does not know whether the said petition was surviving before S.D.O. Sahab when this occurrence happened. His mother-in-law was elected pradhan un-opposed after assassination of his father-in-law and in earlier election also there were only 2-3 candidates which included Hoti Lal and Mahavir Singh. He does not know Sarpanch of Agrapur namely Sanehi Lal nor does he know whether there lives any person by that name in Agrapur. He also does not know that in election of members, one party was that of his father-in-law and the other of accused Mahavir Singh and whether accused Ranvir Singh was member of party of Mahavir Singh or not. He does not know about any litigation between his father-in-law and Mahavir prior to the election, but he knows that Mahavir Singh had lodged a case against his father-in-law Hoti Lal and Ram Sanehi in respect of snatching a bicycle and committing marpeet. He also does not know whether Mahavir Singh had lodged any report against his father and Ram Sanehi Lal regarding theft of an engine.

19. He has further stated that Hoti Lal had two sons one was studying in class seven and the other in class four. He had not heard that Ahibaran, Membar, Raghuvir and Sri Chand were murdered by the miscreants nor does he know that Nahar singh and Idal were killed in police encounter because he visits Agrapur sparingly. He has further stated that there is open land lying in front of house of Hoti Lal and there is no chabutra. The open land which is lying in front of his house, the same was referred by him as chabutra. After having taken meals, he had come out of the house and was sitting there only for 10 to 15 minutes alone while his father-in-law, mother-in-law, his wife and brother-in-law were inside the house, children were having food. When he came at the door, at that time, Hoti Lal was having food. It was summer season and after having taken food he had already come out without any reason. Tukram (PW-3) and Mulayam Singh were not sitting by his side. The residents of the houses of that vicinity would have been in their homes, which were not seen by him. He did not feel scared when miscreants came there, rather he pursued them inside the house. The miscreants did not tell him anything nor did he say anything to them. When the miscreants entered Hoti Lal 's house, he did not have belief that they were miscreants but he came to know about this fact that they were miscreants only after they had made fires. When the miscreants entered the house, he had not screamed. Among the miscreants, Ranvir Singh and Mahavir Singh were armed with Lathis, while rest of the miscreants had also 'Lathi' and 'Ballam'. When first fire was made by the assailants he was near the door of the house and the miscreants were in the court-yard and had not surrounded the deceased Hoti Lal from all sides. The accused had made fire in the court yard from western side towards east and when the first fire took place, at that time, the wife and children of Hoti Lal were in the court yard towards north and his wife was towards south near the corner. Hoti Lal was towards south-eastern corner in court yard, fire was made upon him from a distance of five to six feet. Three fires were made by the accused which did not hit the wall as no mark of fire arm were found on the walls. Both the accused had made fire together and the Hoti Lal had fallen down as soon as it hit him, the third fire was also made upon Hoti Lal when he was in standing position. No other inmate of the house (children and other person) had got hurt. Accused Ranvir while making fire upon Hoti Lal was in front of him and Mahavir was also in front of Hoti Lal towards north at a small distance. No fire was made by the accused at his back. As soon as Hoti Lal received fire arm injury and fell down, he (PW-1) fled out of house and started screaming, hearing which Mulayam Singh came on the spot, besides them none else had come there from the houses which were in the vicinity. No fire was made from the roof. The accused-miscreants would have stayed inside the house hardly for 8 to 10 minutes. Two miscreants who had climbed upon the roof, they were armed with 'Lathi' and when the accused and miscreants came out of the house, none came out of the houses which were there in the vicinity, only Mulayam Singh had reached there. He had not seen Tukman (PW-3) outside when he had come inside the house after seeing the miscreants, till then he had not seen Tukman outside. He has further stated that when the miscreants fled from there, many villagers had assembled there from the nearby houses, although when after coming out of the house he had screamed, no villager had come there except Mulayam Singh. Further he stated that he has written in F.I.R. that when they made hue and cry, Tukman Singh S/o Jaswant Singh R/o Nadhau, P.S. Ghiror, District Mainpuri, and other people of the village had reached there but stated that by that he meant that only Mulayam Singh had reached there whom he knew before. He does not recollect whether he had written name of Mulayam Singh in his report or not. He stated it to be wrong that apart from Mulalayam Singh, other persons of the village had also come at the door of the deceased. This witness was read out his statement u/s 161 Cr.P.C. in which it was mentioned that Mulayam Singh of the village and others had come. He further stated that this statement was correct which was given by him to the police because till that time, no one else other than Mulayam Singh had come but how the word "Aadi" (etc) had been written by the Investigating Officer, he could not tell. He has further stated that due to it being night hours, he did not go to lodge report in the night as within one hour of the incident, it had become dark. Chaukidar of the village had not come there nor was called. No one of the villagers had asked about the chaukidar nor any one of the villagers had told that there was still one hour left and that he should have gone to lodge F.I.R. at P.S. Karhal. He did not got to the 'Sarpanch' of the village as he did not know him nor did he know where he resided. Till the police reached there Sarpanch had come there or not he could not tell because he did not recognize him.

20. He had gone to the P.S. by bicycle at 5:00 am alone, although prior to that he had never gone to the P.S. Karhal. He did not feel any apprehension in the morning when he went to P.S. because it was not dark at that time and had reached the P.S. by 6:30 am. He had taken a written report from his home to be given at P.S. which he had written about 4:45 to 5:00 pm. Because of the people crying at home, he could not prepare the report forthwith i.e. why he had written the same before going to the P.S. He has further stated that the police had arrived in the village at about 10:30 am, which comprises five to six constables and the S.I., which remained there till 2:00 to 3:00 pm. The panchayatnama was not written in his presence because at that time, he was sitting away from there, although there were 10 to 20 persons when the same was being written by the Inspector in court yard. After the panchayatnama, the dead body was sent for post-mortem at about 12:00 noon. He has denied that he was not present at the time and place of incident and that he was called from his village to only write report and he also denied that he had not gone to the P.S. for lodging report and the same was recorded ante-timed after police had arrived at the place of incident and also denied that because of election rivalry in consultation with Sarpanch, this report was lodged against the accused persons and that some unknown persons about 10;00 to 11:00 pm in the night had caused this incident in the darkness, which was not seen by anyone.

21. From the statement of this witness, it is apparent that he is son-in-law of the deceased, who had come to take back his wife from her matrimonial home where she had come one and half month prior to the occurrence which could not be disbelieved because it is usual that the wives visit house of their parents and it could be possible that to bring back his wife PW-1 might have gone to the village of deceased. It was argued that he is a chance witness but despite this fact that he did not belong to the village Agrapur but because of being married there, it could not be dis-believed that his presence could be genuinely there because of above mentioned reason.

22. He has distincly stated that after having food, he was sitting outside the house of deceased, it is then that he saw the accused appellant along with others entering the house of deceased armed with weapons and two of them climbed upon roof of the house of the deceased, while the present accused-appellant along with co-accused, who has died, had made fire upon the deceased which hit him and as a result of which he fell down and, thereafter, he fled out of the said house and screamed out loudly hearing which the other witness PW-3 (Tukman) had come there and later on other persons had also come there after the accused had fled after having committed the occurrence. In the site plan, this witness has been shown to be present at the place shown by 'F' which is the entrance door of the house of the deceased from where he watched the entire proceedings happening inside the house in courtyard.

23. Savitri Devi who is wife of deceased has been examined as P.W.2 and has stated in examination-in-chief that her husband died eight months ago. At about 7:00 p.m. in the evening, she was sitting in court-yard of her house along with her husband and children including Kusuma, wife of P.W.1. Kusuma was married to Raja Chandra (P.W.1) and she had come to her matrimonial home 1 ½ month prior to the occurrence. On the date of incident, her son-in-law, Raja Chandra had come to take away his wife, Kusuma Devi at about 12:00 noon. Her son-in-law had gone out of her house after having meals and her husband was having food and she was administrating food to her children also. In the meantime, accused Mahavir Singh and Ranvir Singh entered into her house along with four other persons and at that time, her husband after having finished his meal, was washing his hands. Accused, Ranvir Singh and Mahavir Singh were having rifles while rest of their companions were armed with 'lathi' and spear. Soon after entering the house, two companions of Ranvir and Mahavir ascended the roof of her house while Ranvir and Mahavir had surrounded her husband in the court-yard. When these accused entered into her house, they were followed by her son-in-law, Raja Chandra who was standing at 'dehliz'. First of all, Ranvir fired upon her husband and, thereafter, Mahavir also made fire by his rifle upon her husband and, thereafter Ranvir again fired upon her husband, after getting hit by the said shots, her husband fell down on the ground. Soon after that her son-in-law, Raj Chandra went out of the house and started screaming. The two miscreants who had ascended the roof came down and out of them, one was having gun and belt of cartridges belonging to her husband who made fire upon her husband by said gun and, thereafter, the accused fled away from the house. Soon after departure of the accused, his brother Tukman Singh, P.W.3 and her son-in-law, Raja Chandra, P.W.1 and Mulayam Singh of the village came inside the house and by that time her husband had died. She told them that her husband had been killed by Ranvir Singh and Mahavir and one of their companions had taken away the gun and cartridges of her husband. She has further stated that accused Ranvir and Mahavir did not have any earlier enmity with her husband except due to election of pradhan, later on enmity had developed between them because her husband had been elected pradhan and accused Ranvir lost the election. Further she stated that she did not allow her son-in-law, Raja Chandra to go in the night to lodge F.I.R. because of fear of accused and, therefore, he lodged the report next day in the morning at about 5:00 a.m. Pursuant to the registration of the case, the next day police came on the spot at about 10:30 a.m. She has also stated that witness, Mulayam Singh is uncle of accused Mahavir Singh because of which, he had colluded with him and does not want to give evidence.

24. In cross-examination, this witness has stated that after the murder of her husband, she was elected Pradhan of the village unopposed. Prior to this occurrence, accused Mahaveer had lodged a report against her husband and Ram Sanehi in respect of snatching of bicycle and doing marpeet in which final report was submitted by police and her husband was acquitted, thereafter, another report was lodged by accused Mahavir against her husband and Ranvir Singh with respect of theft of motor engine in which nothing happened against her husband. She does not know whether her husband was a witness in a case of theft which was registered against father of accused Ranvir i.e. Shabhudyal and Shrichandra and others. She had heard in the village that the miscreants had assassinated Ahbaran, Ranveer and Shrichand who was brother-in-law (bhanja) of Jaivi decoit who belonged to Moora Gang. She also does not know whether Shera of Rudalpur was killed in encounter who was nephew of Nasra. She does not know Shera nor does she know that Shera belonged to Jaivi Gang and was its member or not.

25. There is no dispute pertaining to land between deceased, Hotilal, her husband and accused Mahaveer nor any land was purchased in partnership although she stated that there was a litigation going on with respect to land in Kerahal but could not tell the court whether the same was being contested. She further stated that she was doing pairvi in that case after the death of her husband; she further stated that Ram Sanehi Lal keeps going in court and accused Mahavir is the only son of his father; she denied that witness Mulayam Singh was his collateral or near relative of her and clarified that he was collateral and near relative of Mahavir. She could not tell the name of ancestors of accused Mahavir. Mulayam Singh was a distant uncle of accused Mahavir Singh but denied to have knowledge that Mahavir's grandfathers were 3 brothers. She has further stated that the door of kitchen was towards north and the hand-pipe in her house was installed in court-yard in south-eastern corner. At the time of incident, food used to be cooked in court-yard in south-western corner which was being prepared by her daughter, Kusuma. The accused Ranvir and Mahavir came into court-yard and two miscreants had climbed upon roof of their house and two miscreants had stationed themselves near the stair-case leading up to the upper floor. She does not know whether the I.O. has been shown the place where stair-case is located and where the two miscreants were stationed. At the time when the accused had come inside the house, there were utensils in the court-yard in which food was cooked and also other utensils in which food was served. Those miscreants who had climbed upon the roof did not make any fire from there and it was wrong to say that when the accused entered her house, they had closed herself, her daughter and her children in one room. When the accused came there in the court-yard, none of them talked to her or her husband and none of them was having his face covered. The accused had stood up there in front of her husband and had not surrounded him nor had made upon her husband. At that time, she was sitting in court-yard towards north and at that time, her husband was at a small distance (two to three paces) towards south from her but the miscreants did not come towards her or her children. As soon as the accused entered her house, they stood there 4 to 5 paces away from her in front of her husband. There was nobody between her husband, Hoti Lal and the accused. She stated it to be wrong that the accused had fired upon the chest of her husband by rifle from a close range and at that time her husband was just two to three paces away from the accused. At that time accused Ranvir and Mahavir were towards west in the court-yard and both the accused had made three fires continuously. The utensils which were lying in the court-yard also received blood-stains of her husband but she could not tell whether the blood had spilled over the cot which was lying there or not. When the accused Ranvir and Mahavir entered into her court-yard, she thought that they had come just casually because they used to come often. The four other companion who had accompanied the accused were not known to her but later on she insisted that they were miscreants. Accused Ranvir and Mahavir used to visit her husband even prior to election some-times with rifle and some-times with empty handed. As soon as Ranvir and Mahavir made fires upon her husband and fled out of her house, in the mean-time, two miscreants who had climbed upon the roof also got down and out of them, one, who was wielding the gun, made fire upon her husband and, thereafter he also fled out of her house. She has further stated that she might have told the I.O. that two miscreants had climbed upon the roof and out of them, one after having descended from there, had made one fire upon her husband and then went away from there. When she was read out her statement under Section 161 Cr.P.C., she admitted that the same was not found written which she stated but she could not tell its reason. The last fire was made by one miscreant after getting down from roof upon her husband, at that time her husband would have been four to five paces away from home but no mark of firing was found on the walls of the court-yard and whether any mark of fire was being made on the wall, she does not recollect nor could she tell whether any empty cartridge was found by the I.O. when she visited scene of occurrence in the court-yard. When fire was being made upon her husband, she was screaming while at that time, her son-in-law who was in 'dehleez', went out of the house and also started screaming, hearing which Mulayam Singh and besides him, other villagers also came, names of them, she does not recollect. She knew accused, Ranvir and his father, Shambhu Dayal. When the accused were fleeing from the house, by that time, sun-set had not taken place so it was not dark by then.

26. Further this witness has stated that she does not recollect as to who were the persons among the villagers when panchayatnama was prepared nor could she tell whether Mahavir Singh was present at that time or not. The dead body of the deceased remained in the same condition till arrival of the I.O. as it was when her husband had received bullet injuries. The Chaukidar used to live in other nagla (hamlet) but she does not know the name of that Nagla. Whether Chaukidar came till morning of the next day or not, she does not know. She also does not remember as to till when, police personnel remained in this village. The dead body of the deceased was taken away from the village about 12:00-01:00 p.m.

27. She has stated it to be wrong that at the time of this occurrence, her son-in-law, Raja Chandra was not in the village and that accused were falsely named in the F.I.R.; that none from the village was ready to be a witness; the accused were falsely implicated and that is the reason why, she made all the relatives to be witnesses of this case. She further stated that Tukman was is real brother but it is wrong to say that Kusuma Devi, her daughter was not in the house on the date of incident. She does not recollect whether the statement of her son was recorded by the I.O. or not. Her elder son was 8-9 years old while her younger son was 5-6 years old and they are studying in class VII and II respectively. She denied the suggestion that unknown miscreants had killed her husband in the night when it was complete dark and the accused were falsely implicated in the murder of her husband due to enmity.

28. This witness is the wife of the deceased who was at the time of occurrence present in the court-yard when food was being cooked by her daughter, Kusuma Devi and after the consumption of the meals, husband of Kusuma Devi had gone out of the house and was sitting there in chabutra while the deceased after having consumed food was washing and drying his hands when this incident happened.

29. The time of this occurrence is stated by this witness to be 7:00 p.m. It is very usual in the village for them to consume food around 7:30 p.m., therefore, the presence of this witness in the court-yard seems to be very natural. It was not very dark also, therefore, the accused could very easily have been identified by her who belonged to the same village. This witness has also proved that there was enmity between deceased and accused side as election of pradhan was conducted in which her husband had won the election against Mahavir and since thereafter, accused Mahavir started having enmity towards her husband and after the murder of her husband, she was elected unopposed pradhan of the village. She has clearly stated that accused Mahavir and Ranvir Singh had made fires upon her husband and another fire was made by one of the companions who had climbed upon the roof of their house with the gun which belonged to the deceased himself as the same was taken away by the said accused from the room which was constructed in the first floor. This witness has also proved that P.W.1 was also present there in 'dehleez' and screamed aloud hearing which other witnesses also reached there which included P.W.3, Tukman Singh also. In site-plan, by 'C' is shown the place where P.W.2 was present in the court-yard and at the place shown by 'D' is the place where deceased Hoti Lal was shot dead which is hardly four paces. By 'B' is shown the place where Kusuma Devi, daughter of the deceased was cooking food; by 'E' is shown the place where accused had come and gheraoed the deceased and fire was made upon the deceased by them. By 'G' is shown the place where one empty cartridge of 303 bore rifle was found. By 'I' is shown the place from where Ranvir Singh had made fire upon the deceased. By 'J' is shown the place from where accused Mahavir Singh had fired upon deceased. By 'M' is shown the place from where witness Mulayam Singh has identified the assailants and witnessed the occurrence and recognized them and by 'F' is shown the place from where P.W.1 (informant) had witnessed the occurrence. The distance between 'B' and 'E' is shown four paces; 'C' to 'E' is shown four paces; 'E' to 'F' is shown six paces; 'F' to 'I' is shown four paces and 'F' to 'J' is shown four paces. The evidence of this witness when evaluated in the light of the site-plan, Exhibit-10, shows that both the accused had made fire upon the deceased from the close range and the place from where the witnesses are shown to have seen the occurrence were also so near that their testimony could not be disbelieved with respect to their having seen the occurrence. This witness has also proved that her daughter had come to her house 1 ½ month prior to this incident and, thereafter to take her back, her son-in-law had come there, therefore presence of P.W.1 is also proved by this witness at the place of occurrence which is found to be believable by us.

30. P.W. 3, Tukman Singh who is brother-in-law of the deceased (behnoi of the deceased) has stated in examination-in-chief that his sister was married to deceased, Hoti Lal who has been murdered about 8 ½ months ago during incident of this decoity. One day prior to this occurrence, he had come in marriage ceremony of the daughter of Tilak Singh in village, Gadhiya and on the date of incident, he was going there to meet his sister in village, Agrapur and as soon as he reached near the house of Radhe Shyam, he heard sound of fires at about 7:00 p.m. There were four fires made, three out of which were made in quick succession and one was made little thereafter and after hearing these sounds, he saw that the son-in-law of his 'behnoi' i.e. Raja Chandra was coming out of his house screaming, thereafter, he heard the fourth fire. After the exit of Raja Chandra from the said house, this miscreant came out of the door of the house of his 'behnoi' and went towards north. Out of them, he recognized Ranvir Singh and Mahavir Singh who were present in court-yard and four were unknown. One of them was having a gun while rest were armed with 'lathi' and spear. Ranvir Singh and Mahavir Singh were having rifles whom he knew from before. All the accused had fled towards North, thereafter he along with Raja Chandra and Mulayam Singh went inside the house of deceased Hoti Lal and saw that his dead body was lying in the court-yard. His sister Savitri Devi (P.W.2) and her daughter Kusuma who were married to Raja Chandra and other children were present and when they reached there, they were wailing and were telling that Ranvir Singh and Mahavir Singh and their companions had killed the deceased and thereafter, many other villagers also reached there. He has further stated that except the enmity of election, there was no other enmity between deceased Hoti Lal and Mahavir Singh because Hoti Lal had won the election against Mahavir Singh. He has further stated that he has stayed with his 'behnoi' in Agrapur for about 10-15 years and had stated that he also knew Ranvir Singh and Mahavir Singh because they used to come there often and Ranvir Singh had relation in his village also. Ranvir Singh used to cultivate land of his 'behnoi' in partnership also; father of Mahavir Singh was Satya Ram; Mulayam Singh is collateral uncle of accused Mahavir Singh and about this genealogy, the villagers and Hoti Lal had told him. He has further stated that Kusuma Devi, who is his niece (bhanji) was running ill and was not in a position to come to court to depose.

31. In cross-examination this witness has stated that he did not have any direct relation with village, Gadhiya rather had only some relations of his collateral in that village. In village Agrapur, the uncle of accused Mahavir lives whose name is Kitab Singh. The daughter of Shyam Singh is married to Umesh, S/o Kitab Singh. He has further stated that he does not know whether in the murder of Ram Kumar, Shyam Singh was made accused or not and whether his 'tau', Hriday Ram was a witness in that case or not. Further he has stated that no partition suit was contested by him against Shyam Singh although there was one case which was contested in consolidation court by him against Shyam Singh. On 19.05.1982, he had gone on an invitation extended in the marriage of daughter of Tilak Singh and had not gone to her sister's place. He has stayed in village Agrapur for 5-6 years but could not give details as to at which school, he had stayed. The people had apprised him that accused Ranvir Singh used to do cultivation work at Batai of deceased, Hoti Lal. He had heard four sounds of fire which he did not state to the I.O. because the same was not asked. He knows Sarpanch, Ram Sanehi Lal. He might have taken 15-20 minutes in reaching the house of Radhe Shyam in village, Agrapur from Godhiya and heard scream of Raja Chandra and also sound of fire which were three in quick succession and, thereafter another fire was made after some-time. At that time Raja Chandra was sitting on chabutra outside the house of Hoti Lal and many villagers had come there after hearing the scream which included Kamta, Mulayam, Radhe Shyam and many others of the said village and when he went inside the house, by that time there was not dark and after about 10 to 15 minutes thereafter, darkness had set in. The dead body was lying in the court-yard about 6 to 7 ft. away towards south-west of the water tap. From the wall of dehleez, the dead body was lying about 5-6 hands away. The same was lying about a hand away from the northern wall of the godown, thereafter stated that from the stair-case, the dead body was lying about 10-12 ft. away. He had seen cartridges lying in the court-yard but does not recollect whether there were any marks of fire-shots on the wall of the court-yard. Further he has stated that he denied to be present near the dead-body till the police arrived there although in the mean-time, he used to come out and go back inside the house. Sarpanch, Ram Sanehi Lal had not come at the house of Hoti Lal in the night of the occurrence rather had come there the next day after sun-rise about 8-9 a.m. This witness has further stated that his sister, Savitri had told him names of the persons who had killed her husband. This occurrence was seen by Raja Chandra, hence, his sister did not find it necessary to tell him the names of them for being written in the written report. As soon as assailants had fled from the house, his sister Savitri had told him that accused Mahavir Singh and Ranvir had shot at her husband and at that time both Raja Chandra and Mahavir Singh were also present in the house. He did not have any talk with his sister in regard to lodging report. The report was written by Raja Chandra in front of him in early morning on the next day of incident and after having written the same, he had held it and kept it in his pocket while leaving. He had proceeded towards police-station at 5 a.m.; in the evening, he had not gone for lodging the report because of fear, as soon after the occurrence, it had become dark. After coming of Ram Sanehi Lal, about one hour, thereafter, the I.O. came on the spot who stayed there for two to three hours recorded his statement at about 10:00 noon. He has denied that he had never gone to Gadhiya and that the murder of Hoti Lal was committed by unknown persons and that the accused were falsely implicated due to enmity and that he was not on the spot on the date and time of the incident.

32. The close scrutiny of above deposition of this witness would indicate that he has stated that he was at the place of occurrence because he had come in a marriage of the daughter of Tilak Singh in village Gadhiya and from there, he was going to meet his sister in village Agarpura and when he reached near the place of occurrence, he heard the scream of P.W.1 (son-in-law) as well as four sounds of fire and, thereafter he also saw the accused persons fleeing from there out of whom, he recognized Ranvir and Mahavir Singh and, thereafter he went inside the house whereon he was told by P.W.2 (his sister) that accused Ranvir and Mahavir Singh had killed her husband. Very deep cross-examination has been made of this witness to prove that he actually was not passing through that way and actually he had given false statement only to show his presence there so as to corroborate the occurrence as has been narrated by the eye-witness, P.W. 1 and P.W.2. He is corroborating the occurrence as soon after this occurrence, when he entered the house, he found the deceased lying in dead condition and had also seen the accused fleeing after coming out of the house of the deceased and, thereafter he has also stated that the entire occurrence was narrated to him by his sister, P.W.2. He has also proved the enmity with respect to election of 'pradhan' between deceased and accused Mahavir Singh. We find the testimony of this witness to be believable to the extent that he was present near the house of the deceased soon after the incident happened as he had seen the accused fleeing from there coming out from the house of deceased, therefore, his testimony to the extent of corroborating the story narrated by P.W.1 and P.W.2 seems to be believable.

33. P.W.5, Dr. D.P. Mishra has stated in examination-in-chief that on 22.05.1982 he was posted at district hospital, Mainpuri and on that day at 1:30 p.m., he had performed post-mortem of the deceased, Hoti Lal of village, Agrapur, P.S. Karhal, district, Mainpuri whose dead body was brought by constable Sabram Singh and home-guard Kanauji Lal in sealed condition and had identified the same. He had found the following ante-mortem injuries upon the persons of the deceased:-

1. Lacerated wound 18 cm x 9 cm x bone deep on the front and sides of right upper arm middle third. The humerus is fractured. The muscles and skin is missing. Margins are inverted on the middle side and everted on lateral side.

2. Gun shot wound of entrance 1 cm. x 1 cm. x muscle deep on the front of right forearm, 13 cm. above right wrist joint. Margins are inverted and lacerated. No blackening or tattooing or scorching around the wound.

3. Guns shot wound of exit 1.5 cm. x 1.5 cm x through and through with injury no.2 situated 3 cm. lateral to injury no.2. Margins everted and lacerated.

4. Gun shot wound of entrance 1 cm. x 1 cm. x cavity deep on left scapula. Margins inverted and lacerated. No blackening, tattooing or scorching present. Scapula fractured.

5. Gun shot wound of exit 3 cm. x 2 cm. x through and through with injury no.4 on the front of right side chest 4 cm. above right nipple. 2nd rib fractured. Margins everted and lacerated.

6. Gun shot wound of entrance 4 cm. x 3 cm. x cavity deep on the front of left side abdomen 9 cm. lateral to umblicus. Margins lacerated and inverted. Loop of intestine coming out of the wound.

Internal Examination:-

Therax- Both the lungs lacerated, pleura lacerated, heart- both the chambers empty about oz. Blood present in chest cavity. Abdomen- Peritoneum lacerated, large and small intestine lacerated. Stomach-about 1 lb. Semi digested food present, gall bladder empty. Abdomen Cavity- About 8 oz. of blood mixed with faecal matter. One piece of cardboard and 24 pellets recovered in cavity.

In the opinion of the doctor the death of the deceased, Hotilal was caused due to shock and hemorrhage as a result of ante-mortem injuries.

This witness has proved his report, Exhibit Ka-13 and has stated that it was possible that the deceased would have died on 20.05.1982 at 7:00 p.m.

34. In cross-examination, this witness has stated that if soon after consumption of food, death takes place, the food will remain undigested and the same would be found in the stomach. In this case, it was possible that the deceased might have died about 1:00 to 1:30 hours after the consuming the food because food takes time about 4 to 5 hours is being digested and in the stomach, undigested food was found. Injury no.1 was possible to have been caused by high blasting projectile and that projectile cold be blunt also. Injury no.4 could not have been caused by fire-arm from the rear side. Thereafter he stated on his own that if the deceased was standing in front at the time of being fired upon and the assailants would have been behind him, the said kind of injury was possible to be caused and it was also possible that the assailants might have been standing diagonally from the deceased. With respect to injury no. 6, he stated that he could not tell as to whether the same could have been caused by 12 bore gun or not which could be told only by a ballistic expert although he had found pallets in the said injury. He ruled out that injury no.6 could be caused by rifle because the pallets were found.

35. Further he has stated that after the death, rigor mortis takes one day to be complete and while in the following next one day, the same passes off. The duration of the death has been stated by him to be 1- ¾ day, in that, there could be difference on either side of few hours.

36. From the statement of this witness, it is apparent that, he has clearly stated that the deceased had died due to fire arm injuries on 20.05.1982 at about 7:00 p.m. In cross-examination the defence side tried to elicit that the injury no. 6 was not caused by the 12 bore gun to which this witness has clearly denied to give any clear opinion because he was not a ballistic expert because the said opinion could be given only by a ballistic expert. Nothing such has come on record in cross-examination which could make us dis-believe that the deceased had died due to fire arm injuries which was caused to him on 20.05.1982 at 7:00 p.m. and this opinion of the doctor stands corroborated by the eye-witnesses account of P.W.2 as well as P.W.1.

37. As regards formal witnesses P.W.6, S.I. S.K. Awasthi who had conducted investigation in this case has stated in cross-examination that he had seen the place of occurrence in the presence of wife of deceased although he had not seen the marks of fire arms on the place of occurrence. He had met the informant but he does not recollect as to on which date, he had met him. Witness Mahavir Singh had also met him whose statement was also recorded by him. By that time, he had written last parcha on 22.06.1982, till then he could not find Mulayam Singh. On 5.06.1982 when he had gone to the place of occurrence, then he had made search of the said witness but even then he could not be found. He had not recorded statement of any witness of village, Agrapur.

38. From the statement of this witness in cross-examination, nothing has come out which would make us believe that he did not conduct the investigation in proper manner impartially.

39. P.W.4 Ram Bilas Tiwari who has conducted the investigation in this case has stated in cross-examination that F.I.R. was written in his presence. He had not recorded statement of informant at the police-station rather the same was recorded at the place of occurrence at about 1-1:30 p.m. because it was necessary to go to the place of incident where the dead body was lying. He had recorded the statement of Smt. Kusuma Devi, Smt. Savitri Devi and Tukman Singh also on the same day, thereafter had made inspection at the place of incident. When he had proceeded for the place of occurrence from the police-station, he had instructed the officers to send special report in this case forthwith but when the same was sent, its mention has not been made in the case diary by him and the same may be mentioned in GD. which was not with him at that time when he was deposing before court. He had proceeded for the place of incident from the police-station at 6:30 a.m. when the case was registered at the police-station and had reached there at about 10:30 a.m. because from the police-station up to village Utthan, there was metal road and thereafter up to Mauja, Agrapur, there was no road and he had to go through the fields and when he proceeded further from village Utthan, on way, his vehicle got struck and after getting it extracted, he went to the place of incident and in this, he consumed 2:30-3:00 hours. Regarding his vehicle getting struck, he did not make any mention in C.D. because there was no fault in the vehicle nor did he make any mention about vehicle getting struck when he was returning from the place of incident. He has further stated that when he reached the house of deceased, there was huge crowd in the court-yard and there, he has recorded the statement of Fateh Singh and Sarnam Singh of the said village who were not eye-witnesses. Further this witness has stated that Raja Chandra had stated to him that at that time Tukman Singh and Nadau and Mulayam Singh etc. of the village had reached where incident happened. Till the investigation remained with him, he could not meet Mulayam Singh because on the first day itself he had gone with the dead body. His statement could not be recorded because of that reason and only this much was mentioned in the Case Diary that he had gone with the dead body and his statement would be recorded on his return. On 22.05.1982 also, it is written in Case Diary that the witness Mulayam Singh had not returned. On 21.05.1982, though Mulayam Singh had met him, his statement was not recorded because he was not corroborating the prosecution version.

40. He had also talked to other persons of the village in respect of the incident but none of them gave eye-witness' account, hence their statement were not recorded. He has not mentioned this fact nor has he mentioned the name of those persons whom he had tried to contact to take statement. Further he has stated that he did not see any cot in the court-yard because there was lot of crowd nor did he find any chapati, vegetables and any utensils because the dead body was lying in court-yard and there was lot of crowd. He has shown in the site-plan as to where accused Ranvir and Mahavir Singh were present at the time of occurrence but where other miscreants were present, has not been shown therein. On the roof, there were two miscreants and from the place where they have picked up the gun, the said place is shown in the site-plan by 'K' but he does not remember that any witness had stated that apart from accused, Mahavir Singh whether other accused were present. Raja Chandra has stated in his statement that apart from accused Ranvir and Mahavir Singh, three to four other miscreants had come in the court-yard and out of them, two had climbed upon the roof and thereafter picking up gun and belt of cartridges came to the court-yard but the place of three to four miscreants has not been shown in the site-plan as to where they were present in the court-yard. Further he has stated that two miscreants had ascended the roof out of whom one had made fire upon the deceased, about this, Savitri Devi had stated to him in her statement but the same was forgotten from being mentioned in her statement under Section 161 Cr.P.C. Her statement that after getting down from the roof, one miscreant had made fire was inadvertently omitted from being written in the statement of Savitri Devi. He did not record statement of sons of deceased namely Gudda and Babloo because at the time of occurrence, they were small children aged about 6 to 8 years. Further he has stated that he had not sent for chemical examination the blood-stained soil and subsequently the same would have been sent by the other I.O. He also does not know Sarpanch, Ram Sanehi nor he recorded his statement. There is chabutra in front of house of Hoti Lal. He denied that Raja Chandra had not come to the police-station and that it was also wrong to say that Raja Chandra was called from his village with this objective. He has stated that he had reached the place of incident about 2-2:30 hours delay and that F.I.R. was ante-timed. Further he has stated that signatures of C.O. were beneath the parcha of case-diary and he denied that all the parchas of the case-diary were written on the same date by him and site-plan was also made incorrect.

41. From the above statement of this witness, we find that he is the main I.O. of this case who has clearly stated that he started from the police-station at about 6:30 a.m. after lodging of the F.I.R. by P.W.1 and reached the place of incident at about 10:30 a.m. with considerable delay because there was no road available from village Utthan, Mauja Agrapur and he had negotiated the passage through the fields and in the process, his jeep got struck which took about 2.30 hours to be extracted, therefore, he has given full justification in reaching the place of occurrence with delay. He has also denied the suggestion made by the defence side that he was falsely explaining the said delay only with a view to explaining away the delay in lodging the F.I.R. by P.W. 1 who actually was not present in the village Agrapur as P.W.1 belonged to different village being son-in-law of the deceased from where he was called only to lodge the F.I.R., thereafter the F.I.R. was got written by P.W.1 ante-timed. We do not find any force in the argument of learned counsel for the appellant in respect to ante-timing of the F.I.R. because explanation given by P.W.4 is found to be justified and we have already held proved the presence of P.W.1 at the place of incident as he had come for bidai of his wife. As regards discrepancy that wife of deceased, Savitri Devi had also stated that one of the two miscreants who had ascended the roof of her house, out of them one had made a fire upon her husband, this witness has admitted that by inadvertence, the said fact was omitted from being written in his statement.

42. In view of the above explanations, we find that minor contradictions which appear in the statement of this witnesses viz-a-viz in statement of other eye-witnesses, P.W.1 and P.W.2 do not go to the root of the matter and are found ignorable.

43. We find that according to the prosecution on 20.05.1981 at about 7:00 a.m., P.W.1 was sitting outside the house of the deceased after having taken meal and in the meantime the accused appellant, Mahavir Singh along with co-accused, Ranvir Singh (deceased) came with four other miscreants entered the house of the deceased out of whom, two miscreants ascended the roof of the house while the accused appellants made fire shots upon the deceased which has been seen by P.W.1 as he had followed the accused when they were entering the house of the deceased and this occurrence was seen from the dehleez by him and when the fire shots were made upon the deceased, he came out of the house and screamed out loudly whereon P.W. 3 and others had assembled there and P.W.3 had also witnessed the accused appellants and his companions running away with gun and cartridges of the deceased and after the accused had fled from there, P.W.1 and P.W.3 entered the house of the deceased and were told by the P.W.2 that both the appellants had killed the deceased by making fires upon him and also one of their companions who had ascended the roof had also made fire from the gun which he had picked up from the room lying on the upper-story of the said house belonging to the deceased. P.W.2 who is the main eye-witness has corroborated the statements of P.W.1 and has given graphic discription as to how the entire incident had happened. P.W.3 has also corroborated that having seen the accused persons coming out of the house of deceased with guns in their hands and fleeing from there and soon after, he had also gone inside the house and was told about this occurrence by P.W.2. The doctor has clearly proved the injuries which were found during the post-mortem which were found to be ante-mortem injuries and could have been caused by fire arm weapons, therefore, the version stated by P.W.1 and P.W.2 is fully supported by injuries which have been proved by the doctor, P.W.5. The statement of P.W.1 and P.W.3 are also found to be in consonance with the site-plan which has been prepared by the I.O., therefore, we find that the prosecution has been able to prove its version that it was accused appellants along with co-accused who committed this offence of killing the deceased on 20.08.1982 at about 7:00 p.m. in the village Agrapur.

44. Now the question arises as to under what section, the offence was committed by the appellant although the trial court has convicted him under Section 396 I.P.C. to which following ingredients were to be satisfied to be proved:-

" (i) The decoity must be the joint act of the persons concorned;

(ii) Murder must have been committed in the course of the commission of the decoity."

45. We find that though the trial court has found both the above ingredients to have been satisfied by the evidence led by prosecution but we are of the opinion that as regards satisfying the first ingredient, the trial court's finding that decoity had been committed jointly by the accused appellant along with co-accused appellant and their companions does not appear to be satisfied. Had there been any intention of committing decoity by them, certainly they would have looted valuables and other properties belonging to deceased or his other family members and in the process, some resistance would also have been offered from the side of inmates of the house which included wife of the deceased, his two children as well as daughter of the deceased who was married to P.W.1 and also the son-in-law of deceased who had come for the bidai of his wife but there appears to be no such resistance having been offered which shows that the accused had simply come there with a view to killing the deceased because there was enmity of election of pradhan and thereafter they fled from the place of incident, although it is said that one gun belonging to the deceased was also taken away by them but its recovery has not been made so far, therefore, we hold it simply a case of committing murder in prosecution of common object, hence, accused appellant, instead of being guilty of offence under Section 396 I.P.C., is found to be guilty of offence under Section 302/149 I.P.C. but the question arises whether in this case wherein charge under Section 302 read with Section 149 I.P.C. has not been framed, whether it was possible for us to hold the accused appellant guilty of having committed offence under the above-mentioned sections. In this regard we would like to place reliance on the law laid down by the Hon'ble Supreme Court in Rafiq Ahmed @ Rafi Vs. State of Uttar Pradesh (2011) 8 SCC 300 wherein it has been laid down that a person charged with grave offence can be punished for less than grave offence of cognate nature whose essentials are satisfied with evidence on record. Usually an offence of grave nature includes in itself the essentials of lesser but cognate offence. Apart from it in para 72 of judgement following has been held:-

"Once the appellant has not suffered any prejudice, much less a serious prejudice, then the conviction of the appellant under Section 302 IPC cannot be set aside merely for want of framing of a specific/alternate charge for an offence punishable under Section 302 IPC. It is more so because the dimensions and facets of an offence under Section 302 are incorporated by the specific language and are inbuilt in the offence punishable under Section 396 IPC. Thus, on the application of principle of "cognate offences", there is no prejudice caused to the rights of the appellant."

46. In view of the above position of law if we scrutinize the present case, we find that in statement under Section 313 Cr.P.C. recorded of the accused appellant, he has been clearly put evidence which has come on record pertaining to his role of committing murder of the deceased and in view of the above, we find that he had full knowledge that there was evidence against him with respect to him having committed the offence of murder along with co-appellant as well as other companions who had entered the house of the deceased armed with weapons in prosecution of their common object to give effect to the occurrence of murdering the deceased. Therefore, we find that even if no charge was framed by the trial court under Section 302 I.P.C. read with Section 149 I.P.C. either subsequently or in alternative, no prejudice appears to be caused to surviving accused appellant and, therefore, we are of the view that the judgement of the trial court regarding convicting him under Section 396 I.P.C. needs to be modified as a conviction under Section 302 I.P.C. read with Section 149 I.P.C. and the punishment which has been awarded for life-imprisonment must remain the same to meet the ends of justice.

47. This appeal is accordingly rejected and since the accused appellant no. 2, Mahavir Singh is on bail, his bail bonds are discharged and the accused shall be taken into custody to serve out the sentence.

48. Let a copy of this judgement be transmitted to the trial court along with original record for immediate compliance and to ensure that the accused serves out the remaining sentence.

(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)

Dated:. 12.4.2019

A.U./A.P. Pandey/A. Mandhani