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State of U. P. v/s Chandrika

    G.A. No. 2427 of 1981

    Decided On, 20 February 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE RAKESH TIWARI & THE HONOURABLE MR. JUSTICE KALIMULLAH KHAN

    For the Appellant: V.C. Katiyar, Advocate. For the Respondent: D.K. Singh, A.P. Tiwari, A.P. Tripathi, H.S.M. Tripathi, K.P. Tiwari, P. Tripathi, P.S. Tripathi, S.S. Tripathi, Surendra Tiwari, G.S. Chaturvedi, Shishir Tandon, Advocates.



Judgment Text

Rakesh Tiwari, J.

1. Heard Sri Ram Yash Pandey, learned A.G.A. for the appellant-State of U. P., Sri G.S. Chaturvedi, learned senior counsel assisted by Sri Shishir Tandon, advocate appearing for the respondents-accused and perused the record.

2. Challenge in this Government appeal is to the impugned judgment and order dated 25.5.1981 passed by the Sessions Judge, Basti in S.T. No. 354 of 1978, State v. Chandrika and others, whereby the learned trial Judge has acquitted respondent-accused persons, namely, Chandrika, Vindhyachal, Jagdamba Prasad Mishra, Ayodhya, Ram Baran, Ram Karan, Ishaq, Mohd. Ibrahim, Mohd. Ali, Kishore, Banshi Dhar and Nagai from the charges under Sections 147, 148, 302, 302/149, 307 and 307/149, I.P.C.

3. The facts, in brief, culled out from record are that first informant Surendra Lal son of Shiv Kumar Lal resident of village Nadaya P.S. Chhaoni District Basti submitted a written report at police station Chhaoni on 3.7.1978n after scribing the check report F.I.R. of the incident was lodged at about 8.30 a.m. in the police station, inter alia, that during the last Holi festival Chandrika and others were seeing 'Jogira' dance (a local dance form exhibiting vulgarness) in front of the house of their ploughman Hiyatoo. He after mid night asked them to stop the dance as young girls and women were in the house whereupon Chandrika, Vindhyachal and others slapped him. On hearing this, the first informant, Surendra Lal. his father Shiv Kumar Lal. Vidya Prasad, Ram Tirath, Ram J iyawan, Ram Deen and others reached there and supported Hiyatoo, the ploughman. Upon intervention by the villagers, Chandrika and others stopped the dance and went to their houses; that during the last rainy season Chandrika also caused injuries to the wife of his ploughman Nagai. He also got a false report written u/s 107/116, Cr. P.C. against the father of first informant, Indrasen, Vidya Prasad and Ganga Prasad. Pursuant to the report u/s 107/116, Cr. P.C. proceedings were instituted against both the parties which were pending at the relevant time.

4. It was also averred in the F.I.R. that on 3.7.1978 at about 7.00 a.m. three ploughmen, namely, Khadaru. Ram Laut and Triveni were ploughing 'Chhotka Dihwa' field on the west side of the village abadi of village Nadya. The respondents-accused who were in search of an opportunity to murder the first informant Surendra Lal and others went at the field aforesaid. They pressurized the ploughmen to unyoke the bullocks. When objected to this high handedness, the respondents-accused abused and chased them giving a beating. On this the ploughmen raising a hue and cry ran towards the village. Hearing the alarm, first informant Surendra Lal as well as Ram Tirath, Vidya Prasad, Ganga Prasad Lal, Shital Mishra, Shiv Kumar. Ram Deen, Agnu, Shiv Bholey, Ram Suresh, Har Narain, Baikuntha Bihari, Indra Sen Lal and others of the village came on the road to the village they saw the three ploughmen running towards the village from the west side. When the aforesaid witnesses reached near the 'imli' tree on the west side of the village, respondent-accused Vindhyachal exhorted his companions whereupon respondent-accused Chandrika fired shots from the gun in his hands, as a result of which Triveni Mallah, Ganga Prasad, Vidya Prasad Shitala, Ram Tirath, Anganu and Ram Laut received injuries and fell down. Wife of Ram Tirath, his daughter. Smt. Jasna and Shiv Kumar Lal also received pellets injuries. As a result of the injuries received by them, Vidya Prasad, Ganga Prasad, Shital Mishra and Triveni Chai died at the spot and Ram Tirath received grievous injuries.

5. On the basis of written report, check report was scribed by Head constable, Sri Ram Pal Dubey. After entry in the G.D. F.I.R. of the incident was registered on 3.7.1998 at 8.30 p.m. at Case Crime No. 198/1978 under Sections 147, 148. 149, 307 and 302, I.P.C., against accused persons Chandrika Mishra son of Bhagauti, Vindhyachal and Jagdamba both sons of Devi Prasad, Ayodhya son of Gajadhar, Ram Badan son of Ram Achaibar. Ram Karan alias Dhannu son of Sita Ram, Ishaq son of Mohd. Hanif. Ibrahim son of Mohd. Hanif, Mohd. Ali son of Tofani, Kishore son of Ayodhya, Nagai son of Jaggu residents of village Nadaya and Banshi Dhar son of Deodutt Mishra resident of village Duhwa, P.S. Chhaoni District Basti.

6. The Investigating Officer S.I. Ashok Kumar Rai, who was entrusted with investigation of the case, proceeded towards the place of occurrence on 3.7.1978 itself. He collected the blood stained and plain earth from the spot in separate tin boxes, where deceased Triveni Chai, Ganga Prasad Lal, Vidya Prasad and Shital Mishra had fallen respectively as indicated in the site plan. He also collected the blood stained and plain earth in a separate tin box from place 'F' shown in the site plan where injured Ram Tirath had received injuries and had bleed. Its recovery memo (Ex. Ka-9) and recovery memo of empty cartridges (Ex. Ka-10) was also prepared. Site plan of the place of occurrence (Ex. Ka-11) was prepared.

7. The Investigating Officer got injured Shiv Kumar son of Daya Shankar medically examined by Dr. O.P. Mishra, (P.W. 1) M.O. State Dispensary, Vishesharganj District Basti. Km. Urmila daughter of Ram Tirath, Smt. Gugingia, Anganu. Ram Laut and Ram Tirath were medically examined by Dr. S.G. Tekriwal (C.W. 1). M.O. District Hospital, Basti.

8. Dr. O.P. Mishra (P.W. 1) medically examined the injured complainant Shiva Kumar Lal on 3.7.1978 at 7.30 p.m. and found following injuries on his person:

1. Linear abrasion 1.8 cm. x 0.3 cm. on the left side of face 1 cm. above left angle of mandible.

2. Abrasion 0.3 cm. x 0.3 cm. on the left side face 4 cm. anterior injury No. 1.

9. Injury report prepared by Dr. S.G. Tekriwal after medically examining the injured Ram Tirath and other injured persons, namely, Km. Urmila daughter Ram Tirath, Ram Laut, Aanganu and Smt. Gungiya from 1.20 p.m. to about 7.00 p.m. shows the following injuries on their bodies.

Ram Tirath was medically examined by Dr. S.G. Tekriwal on 3.7.1978 at 1.20 p.m. and he found following injuries on his person:

1. Incised wound 2 cm. x 0.3 cm. x bone deep, right side forehead 4 cm. above eyebrow, oblique, 4 cm. from mid line.

2. Punctured wound 3 cm. x 0.5 cm. x cavity deep abdomen mid line, oblique 12 cm. above umblicus directed downwards.

3. Gun shot wounds (multiple) 30 cm. in an area of 17 cm. x 15 cm. on right upper arm and elbow from back size smallest 0.2 cm. x 0.2 cm. x superficial and largest 1.5 cm. x 0.3 cm. x muscle deep (probing not done).

4. Gun shot wound 0.5 cm. x 0.6 cm. x probing not done, chest lateral wall right side 25 cm. below nipple.

5. Gun shot wound (multiple) 60 in an area of 20 cm. x 15 cm. back and lateral part of right buttock, iliac region, up to iliac crest, size smallest 0.2 cm. x 0.2 cm. x superficial, largest 0.5 cm. x 0.3 cm. x probing not possible.

6. Incised wound 4 cm. x 0.5 cm. x muscle deep right hand. Km. Urmila was medically examined by Dr. S.G. Tekriwal on 3-7.1978 at 2.00 p.m. and he found following injury were found on her person:

Gun shot wound on the back of right little ring and middle finger (5) in an area of 6 cm. x 6 cm. x size 0.3 cm. x 0-3 cm. x probing not done. Blackening, tattooing present.

Ram Laut was medically examined by Dr. S.G. Tekriwal on 3.7.1978 at 2.20 p.m. and he found following injuries on his person.

1. Abrasion 2 cm, x 0.3 cm. scalp left side, oblique 13 cm. from left ear.

2. Gun shot wound three in number left upper arm on the front, medial part and back in an area of 10 cm. x 10 cm. size 0.3 cm. x 0.3 cm. x probing not done.

In the mean time, Anganu was medically examined by Dr. S.G. Tekriwal on 3.7.1978 and following injury was found on his person:

Gun shot wound 0.4 cm. x 0.3 cm. x muscle deep, right thigh front and medial part 11 cm. above knee joint.

Smt. Gungiya was also medically examined by Dr. S.G. Tekriwal on 3.7.1978 who found following injuries on her person:

1. Gun shot wound. 2 cm. x 0.2 cm. x depth not ascertained left hand dorsal part 4 cm. below wrist joint.

2. Gun shot wound 2-size 0.2 cm. x 0.2 cm. x depth not ascertained, left thigh front lower 6 cm. above 12 cm. above knee joint.

3. Traumatic swelling left eye with sub-conjunctival haemorrhage in left eye. No internal examination could be done due to swelling.

10. The Investigating Officer prepared t

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he inquest reports of the dead bodies of the deceased Ganga Prasad Lal, Vidya Prasad, Triveni and Shitala Mishra. He also prepared photo nash, challan nash and letters etc. to the doctor and thereafter on 4.7.1978 sent the inquest reports with papers of the deceased persons, namely, Ganga Prasad, Shital Mishra, Triveni Chai and Vidya Prasad Lal alongwith their respective dead bodies in sealed condition through constables C.P. No. 380 Sri Girja Shankar Pandey and C.P. No. 458 Sri L.N. Tiwari to the mortuary for their post-mortem at District Hospital, Basti.

11. Dr. R.C. Verma, (P.W. 2), who was posted as Radiologist at District Hospital, Basti, conducted the autopsy of deceased Ganga Prasad, Vidya Prasad, Shital Mishra and Triveni on 4.7.1978 from 2.00 p.m. to 4.45 p.m.

12. The post-mortem of the body of deceased Ganga Prasad Lal started at 2.00 p.m. On external examination he found that the deceased was a young man of average built body aged about 40 years and had met his death about one and a quarter day prior to the autopsy. The eyes of deceased Ganga Prasad Lal were closed and blood was coming out from both ears. Abdomen was distended. Greenish discoloration was noticed over right side of lower abdomen. Rigor mortis was absent in the upper extremities and was passing off from the lower limbs. On internal examination ecchymosis of blood over an area of 24 cm. x 16 cm. was found under injury No. 1 as well as under depressed fracture of temporal and parietal bone, over an area of 3 cm. x 3 cm. with fracture of left side frontal, parietal and occipital bone. Brain and brain membrane were badly lacerated. Rest of the organs were normal. Stomach was empty. Small intestine contained pasty material and gases and large intestine contained scanty faecal matter.

Following ante-mortem injuries were found on the person of deceased Ganga Prasad Lal:

1. Gun shot wound 3 cm. x 3 cm. x brain cavity deep present on left side scalp 3 cm. above left ear surrounded by 12 gun shot wounds over an area of 19 x 11 cm. from middle of forehead left side scalp occipital region and 2 cm. below to top of scalp. All are entrance wounds. No tattooing or scorching. Margins lacerated. Smallest. 3 cm. x 2 cm. x skull bone deep and largest. 3 cm. x. 3 cm. x bone deep.

2. Black eye on both upper eye-lids.

13. The Doctor opined that death of Ganga Prasad had occurred due to coma as a result of ante-mortem gun shot injuries.

14. The post-mortem examination on the body of deceased Vidya Prasad was started at 2.30 p.m. On external examination the deceased was found to be an old man of average built body aged about 55 years and he had met his death one and a quarter days prior to the autopsy. Eyes were closed. Mouth was open. Abdomen was distended. Greenish discoloration was noticed over right iliac. Rigor mortis was absent in upper limbs and was passing off from lower limbs. On internal examination the dead body of Vidya Prasad revealed ecchymosis with blood over an area of 25 cm. x 15 cm. under injury No. 1 in the thoracic walls. Pleura was punctured at three places on left side under injury No. 2. Left lung was punctured at three places in anterior except under injury No. 2 over an area of 10 cm. x 8 cm. Three (3) shots were recovered alongwith 2-1/2 pounds of blood from the chest cavity and stomach of the deceased was found empty.

15. Following ante-mortem injuries were reported on the person of the deceased:

1. Gun shot wound on left side upper lip. 5 cm. x. 5 cm. x through and through (entry). Margins lacerated. No tattooing or blackening.

2. Eight Gun shot wounds on left side front of chest over an area of 20 cm. x 12 cm., 1 cm. below clavicle (entrance). Oval and lacerated margins, smallest. 4 cm. x 4 x muscle deep to 5 cm. x. 5 cm. x chest cavity deep. No tattooing or blackening.

3. Gun shot wounds on right side front of chest 3 cm. below middle of right clavicle (entrance), lacerated, oval, no tattooing or blackening, size. 5 cm. x 5 cm. x muscle deep.

4. Four gun shot wounds over an area of 13 cm. x 6 cm. on

dorsal aspect of right fore-arm and hand. (Entry). No tattooing or blackening, oval, smallest. 4 cm. x 4 cm. x skin deep, largest 5 cm. x 5 cm. x muscle deep.

5. Ten gun shot wounds over an area of 40 cm. x 10 cm. involving dorsal aspect of whole of left upper limb (entrance) oval. lacerated, smallest; 4 cm. x 4 cm. x skin deep, largest 5 cm. x 5 cm. x muscle deep.

6. Five gun shot wounds over an area of 12 cm. x 6 cm. on right leg in middle an outer aspect, smallest. 4 cm. x 4 cm. x skin deep and largest. 5 x 5 cm. x muscle deep (entrance).

7. Thirteen gun shot wounds on right buttock and upper part of thigh (entrance) over an area of 38 x 20 cm., smallest. 4 x.4 cm. x skin deep and largest. 5 x 5 x muscle deep.

16. In the opinion of the Doctor his death had occurred due to shock and haemorrhage as a result of ante-mortem gun shot injuries.

17. Post-mortem examination on the body of deceased Shital Mishra was then started at 4.00 p.m. On external examination the doctor found that deceased was a young man of average built body aged about 35 years who had met his death about one and a quarter day prior to the autopsy. His eyes and mouth were closed. Abdomen was distended. Greenish discoloration was noticed over lower abdomen. Rigor mortis was absent in upper limbs and was passing off from lower limbs. On internal examination the body of the deceased revealed ecchymosis with blood over an area of 40 x 35 cm. under the injury with fracture of 6th, 7th, 8th and 9th ribs. Pleura was badly lacerated with multiple puncture on right side under the injury. Multiple punctured wounds were noticed over an area of 10 cm. x 6 cm. on outer aspect of injury. Twelve (12) pellets were recovered from the right lung. Both chambers of heart were noticed to be empty. His right thoracic cavity contained one pound of blood and abdominal cavity contained 1-1/2 pounds of blood. The small intestine contained pasty material and gases where as the large intestine contained gases and scanty faecal matter. Gall bladder was badly lacerated over an area of 8 x 8 cm. on lateral aspect under injury No. 1. Twelve (12) pellets were recovered from the gall bladder and four punctured wounds on lateral aspect of the kidneys were found under injury No. 1 on the right side. Four pellets were also recovered from this part of the body.

18. Following ante-mortem injuries were seen on the person of the deceased.

1. Multiple gun shot wounds over an area of 30 x 25 cm. on right lateral side of chest and abdomen 5 cm. below axilla (No. 34). No tattooing, no blackening. Oval. Margins lacerated. All wounds of entry, smallest.3 x.3 cm. x skin deep and largest.4 cm..4 cm. x chest cavity and abdominal cavity deep.

19. In the opinion of the Doctor the death of Shital Mishra had occurred due to shock and haemorrhage as a result of ante-mortem gun shot injuries.

20. Post-mortem examination on the body of deceased Triveni was also conducted at 4.45 p.m. On external examination he found that the deceased was an old man of average built body aged about 70 years whose estimated time of death was one and a quarter days prior to the autopsy. Eyes of the deceased were closed and his mouth was half open with slightly swollen face. His abdomen was distended. Greenish discoloration was also noticed over his abdomen. The rigor mortis was found absent from the upper limbs and was passing off from lower limbs. Internal examination of the body of deceased revealed fracture of left side of lower jaw under injury No. 1 from which one shot was recovered. Ecchymosis of blood over thoracic walls under injuries No. 2 and 3 and fracture of 8th rib on right side under injury No. 3 with puncture under injuries No. 1 and 3 was also noticed by the doctor who found that both the lungs of the deceased were punctured. His right chest cavity contained 2 pounds of blood whereas the left cavity contained half pound of blood. One pellet was recovered from the right lung. The small intestine contained pasty material with gases whereas the large intestine contained scanty faecal matter and gases.

21. Following ante-mortem injuries were found on the person of deceased:

1. Gun shot wound of size.8 x 7 x 5 cm. deep on left side neck 6 cm. above clavicle (entry wound). No tattooing and no blackening, directed medially and upwards with fracture of lower jaw on left side.

2. Gun shot wound.7 x.7 cm. x through and through present on left side upper part back just above scapula (entrance). Margins inverted with exit wound of size 1 x 1 cm. x through and through on front of upper part of left side chest just below left clavicle. Lacerated margins, directed forwards.

3. Gun shot wound.7 x.7 cm. x chest cavity deep present on right side upper part of back just below upper angle of scapula, directed medially and inwards. No tattooing, Oval, inverted.

22. In the opinion of the Doctor conducting the post-mortem, the death had occurred due to shock and haemorrhage as a result of ante-mortem gun shot injuries.

23. After investigation, the Investigating Officer submitted charge-sheet (Ex. Ka-52) under Sections 147. 148. 149, 307 and 302, I.P.C. against all the respondents-accused persons in the court of Chief Judicial Magistrate, Basti. Since, the alleged offence being exclusively triable by the court of learned Sessions Judge, Chief Judicial Magistrate, Basti vide his order dated 17.11.1978 committed the case for trial to the Court of Session where it was registered as S.T. No. 354 of 1978. The learned trial Judge framed Charges under Sections 148, 302/149 and 307/149, I.P.C. against respondents-accused Chandrika Prasad, Vindhyachal, Ayodhya, Ram Varan, Ram Karan, Ishaq, Ibrahim, Mohd. Ali, Kishore and Banshi. Charges simplicitor under Sections 302 and 307, I.P.C. were framed against respondent-accused Chandrika Prasad. Charge simplicitor u/s 307, I.P.C. was framed against respondent-accused Ram Karan. Charges under Sections 147, 302 and 307 read with Section 149, I.P.C. was framed against respondent-accused Nagai. The respondents-accused persons having pleaded not guilty claimed their trial.

24. In order to prove its case, the prosecution examined eight witnesses namely, Dr. O.P. Mishra (P.W. 1), Dr. R.C. Verma (P.W. 2), Surendra Lal (P.W. 3), Ram Tirath (P.W. 4), Ram Laut (P.W. 5), Km. Urmila Devi (P.W. 6), Ram Din (P.W. 7) and Guru Prasad (P.W. 8). At the request of defence, Dr. S.G. Tekriwal was examined as C.W. 1. to prove his certificate on alleged dying declaration of injured Tirath (P.W. 4), who survived.

25. The learned trial court then vide its order dated 20.5.1981 called upon the respondents-accused persons to enter their defence but they did not examine any witness in support of their case. However, in their statements u/s 313, Cr. P.C. the respondent-accused persons denied the charges and stated that they have been falsely implicated in this case due to enmity.

26. The learned trial court after hearing the parties' counsel and on appreciation of facts and evidence vide order and judgment dated 25.5.1981 held that prosecution had not been able to prove its case beyond all reasonable doubts and accordingly acquitted the respondents-accused persons Chandrika. Vindhyachal, Jagdamba Prasad Mishra, Ayodhya, Ram Baran, Ishaq, Mohd. Ibrahim, Mohd. Ali, Kishore, Banshi Dhar and Nagai of the offences punishable under Sections 147, 148. 302 and 307 read with Section 149. I.P.C. by giving them benefit of doubts.

27. Aggrieved the present Government appeal has been preferred by the State of U.P. challenging the validity and correctness of the aforesaid impugned judgment and order dated 25.5.1981.

28. It appears from report of Chief Judicial Magistrate, Basti dated 24.3.2004 as well as from the order sheet dated 27.7,2004 that respondents-accused Ayodhya son of Gajadhar, Ram Baran son of Ram Akshaibar and Mohd. Ali son of Bafati died during the pendency of this appeal, hence the appeal against them has been abated vide order dated 27.7.2004.

29. Learned A.G.A. has emphatically submitted that lodging of the F.I.R. is prompt; that testimonies of injured witnesses present at the spot cannot be doubted as it is a case of direct evidence and there is ample corroboration of their statements with the eye-witnesses as well as with the medical evidence on record; that there is no contradiction in the alleged dying declaration of Ram Tirath recorded by the Magistrate, who later on survived and hence the impugned judgment of acquittal dated 25.5.1981 of the learned trial Judge is bad in law which has resulted into the miscarriage of justice as such is liable to be set aside.

30. Sri G.S. Chaturvedi, learned senior counsel appearing for the respondents-accused persons submits that there are glaring contradictions in the prosecution story, i.e., ten persons have been assigned the role of spear in their hands but only one punctured wound was found on injured Ram Tirath (P.W. 4), said to have been caused by respondent-accused Ram Karan which could have been caused by spear as has been mentioned in the F.I.R. that respondent-accused Ram Karan caused injury to injured Ram Tirath by spear whereas re-Ram Tirath (P.W. 4) has mentioned in his said dying declaration that the spear blow was given by respondent-accused Ayodhya. He further states that the prosecution has made no attempt to explain why there is no spear injury to the injured persons where about 10-15 persons are alleged to have chased by three ploughmen to the village, i.e., at the place of occurrence.

31. The learned counsel has next pointed out the contradictions that Ram Tirath (P.W. 4) denied his alleged dying declaration as he deposed that he was injured and in pain at the time his statement was being recorded by the Executive Magistrate, hence, he might not have given correct statement at that time. He thus, has changed his entire version before the trial court. It is also pointed out that Km. Urmila (P.W. 6) in her statement deposed that she was standing with Ram Tirath her father which gets falsified as Ram Tirath standing besides her did not receive any blackening and tattooing mark on his body. Statement of Surendra Lal (P.W. 3) has been placed before the court to establish that respondent-accused Chandrika Prasad had fired from a distance of about 10 to 15 steps as mentioned in the site plan which shows that 'A' is the place from where Chandrika fired and 'F' is the place where Ram Tirath (P.W. 4) received injuries and '9' is the place where Km. Urmila (P.W. 6) received injuries.

32. He has also drawn our attention to the statement of Km. Urmila (P.W. 6) where she stated that there was a pit of 30'x 40' x2-l/2 ft. at the place of occurrence which was filled by one 'beeta' water (distance between up small finger and thumb of open palm) due to rain. This statement of Km. Urmila falsifies the statement of Surendra Lal (P.W. 3) who in his statement deposed that the pit was dry from where he has seen the incident lying down on his stomach. Ram Din (P.W. 7) is not an injured witness, who deposed that he has no previous enmity with the respondents-accused which have been shown to be false by the defence.

33. In support of his aforesaid submissions, learned counsel for the respondents-accused has relied upon the following rulings:

1 Shingara Singh v. State of Haryana and another, connected with Criminal Appeal Nos. 1345-47 of 2003, Shingara Singh Vs. State of Haryana and Another,

2. Musakhan and Others Vs. State of Maharashtra,

3. Gangadhar Behera and Others Vs. State of Orissa, and

4. Maranadu and another v. State by Inspector of Police, T.N., Criminal Appeal No. 494 of 2001 (SC).

34. He also submits that in the F.I.R. the role of firing was assigned to respondent-accused Chandrika only whereas in the said dying declaration of Ram Tirath (P.W. 4) he has mentioned that both Chandrika and Vindhyachal had fired on him: that the F.I.R. is ante-timed as it was lodged under Sections 147. 148. 149, 307 and 302, I.P.C. but in the inquest report apart from, there is an addition of Section 323, I.P.C. which establishes that F.I.R. was not in existence at the time of preparation of the inquest report and that there is a conflict between the eye-witnesses account of the incident and the medical evidence. It is pointed out that Dr. O.P. Mishra (P.W. 1) in his statement stated that he had examined the injuries of Shiv Kumar Lal which could be caused to him by finger nails. Therefore, it is doubtful as to whether the injuries on Shiv Kumar Lal were caused by pellet or finger nails.

35. We have carefully perused the findings of acquittal recorded by the learned trial court and its reasoning. We also tallied the records with the findings recorded by the learned trial court.

36. Before discussing the contradictions in the statements of the witnesses and the alleged dying declaration as well as the medical evidence we think it appropriate to discuss the case laws relied upon by the learned counsel for the respondents-accused.

37. In Shingra Singh (supra), cited by the learned counsel for the respondents-accused it was held by the Apex Court that where two views are reasonably possible on the basis of evidence on record, the one that favours the accused must be accepted. In any event, in case of acquittal if the view of the trial court is a possible reasonable view of the evidence on record, interference by the High Court may not be justified. High Court can interfere only in such cases where the findings recorded by the trial court are unreasonable or perverse or where the court has committed a serious error of law, or the trial court had recorded its findings in ignorance of relevant material on record or by taking into consideration evidence which is not admissible. The change in prosecution version i.e., contradictions, omissions, inconsistencies, exaggerations or embellishments may effect version as to the manner of occurrence as deposed by P.Ws. at variance with what was stated in F.I.R. and in statements u/s 161, Cr. P.C. P.Ws. when confronted with their earlier statements could not give a satisfactory explanation. In the circumstances, the Court held that the change in prosecution version was significant. It was deliberately made to bring the prosecution case in accord with medical evidence. It also held that deflection of pellet is not possible if it penetrates the skull since brain matter is soft.

38. In paragraph 5 of the judgment in Musakhan (surpa), cited by the learned counsel for the respondents-accused it was held--

@@"5. The appellants pleaded innocence and averred that they had been falsely implicated due to enmity and had not participated in the riot. Both the courts below have accepted the main facts leading to the occurrence as also participation of the appellants in the rioting. The Additional Sessions Judge as also the High Court, however, do not appear to have made a correct approach in examining the individual case of the accused, particularly with reference to their actual presence or participation in the incident in question. It is true that having regard to the background against which the events took place all the incidents starting from the National Hotel and ending with the chawi of Jogendra Singh were parts of the same transaction. nevertheless they were separate incidents in which different members of the mob had participated. in these circumstances, therefore, without there being any direct evidence about the actual participation of the appellants in all the incidents it could not be inferred as a matter of law that once the appellants were members of the mob at the National Hotel they must be deemed to have participated in all the other incidents at the Engineering College Hostel. Bharat Lodge and the chawl of Jogendra Singh. It is well-settled that a mere innocent presence in an assembly of persons, as for example a bystander, does not make the accused a member of an unlawful assembly, unless it is shown by direct or circumstantial evidence that the accused shared the common object of the assembly. Thus, a court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all these stages. Such an evidence is wholly lacking in this case where the evidence merely shows that some of the accused were members of the unlawful assembly at one particular stage but not at another. In these circumstances, therefore, the accused, who were not present or who did not share the common object of the unlawful assembly at other stages cannot be convicted for the activities of the assembly at those stages. In view of this error committed by the High Court it has become necessary for us to examine the 'evidence on the limited question as to which of the accused had actually participated in the incident at the Engineering College, Bharat Lodge and the chawl of Jogendra Singh where acts of incendiarism had taken place. It is also common ground that the occurrence had taken place at night and the evidence of the witnesses identifying the accused had to be examined with great caution."$$

39. The facts in the case of Musakhan (supra), were different in which the Apex Court has delivered its judgment. The background of that aforesaid case was that the appellants were convicted u/s 395, I.P.C. to rigorous imprisonment for two years and a fine of Rs. 100 each, u/s 323/149 to three months rigorous imprisonment, u/s 427/149 to one year's rigorous imprisonment, u/s 435/149, I.P.C. to two years rigorous imprisonment and a fine of Rs. 100 each u/s 457/149, I.P.C. to two years rigorous imprisonment and u/s 147, I.P.C. to one year's rigorous imprisonment. All the sentences to run concurrently.

40. Musa Khan, appellant No. 1 in that case was the brother of Mohd. Iqbal, Abdul Hamid, Mohd. Fashiuddin, who were aged about 20 years in 1968 at the time the occurrence is said to have taken place whereas Sardar Khan was about 15 years on the said date. The other accused in that case were 25 years of age. The argument before the Apex Court in reference to age was that the accused persons Musa Khan, Sardar Khan and Fashiuddin, who were below 20 years of age ought to have been proceeded under Sections 4 and 6 of the Probation of Offenders Act, 1958.

The Court in paragraph 4 encamps the facts in brief that--

@@" This is an unfortunate story of a band of ruffians who appear to have entered upon a rabid misadventure and a mischievous expedition by committing acts of vandalism and damage to the properties of rivals and enemies in order to wreak vengeance for boycotting of the National Hotel by the students. The background against which the present dramatic occurrence appears to have shot up is that there is a National Hotel at Aurangabad which belongs to some of the appellants and which was patronized by the students of the local Engineering College. Some differences arose between the management of the hotel and the students as a result of which the students completely boycotted the National Hotel and transferred their patronage to Bharat Lodge run by P.Ws. 1 and 16. As a result of this change in the attitude of the students the owners of the National Hotel nursed a serious grouse not only against the Bharat Lodge which was being patronized by them as a result of which the main business of the National Hotel almost came to a standstill. The immediate provocation for the massive raid conducted by the appellants and other was an incident which happened on August 21, 1968 ' when some of the students of the Engineering College indulged in a small rioting and caused damage to the National Hotel, Paradise Hotel, cycle shop, a tailoring shop owned by A-16 and A-17 and a dispensary of Dr. Sayeed. The damage caused by the students was in the neighbourhood of Rs. 3,000 to Rs. 4,000. About two months later i.e., on October 20, 1968 an employee of the National Hotel sustained some injuries and was removed to the hospital in a rikshaw belonging to P.W. 6 Tukaram which was driven by P.W. 5 Mehboob. There was some dispute between Masood the employee of the National Hotel and the rikshaw puller regarding payment of dues. In the mean time some students of the Engineering College arrived at the scene and they brought pressure on A-11 Mohd. Eqbal the owner of the National Hotel to pay a reasonable fare as a result of which A-11 had to part with Rs. 10 in order to settle the dispute with the owner of the rickshaw. Encouraged by this short-lived success, the students of the Engineering College jeered at A-11 and passed ironical remarks on him. Thereafter, the students went to Shivaji Hotel. Thereafter, 20 to 25 persons assembled near the National Hotel and after constituting an unlawful mob these persons moved towards the Shivaji Hotel and A-8 rushed towards P.W. 10 Anand Muley but the other students who were sitting in the Shivaji Hotel fearing trouble at the hands of the mob ran towards their hostel but were hotly chased by the mob which entered the hostel premises and caught hold of one of the students, and the mob further armed with stones, iron bars, brickbats etc., caused damage to the hostel building, by pelting stones and also caused injuries to P.W. 11 Mangilal who was the watchman of the Hostel. Not satisfied with this the mob consisting of several persons proceeded to Bharat Lodge which was owned by P.W. 1 Prakash and his father P. W 16 Vishwanath. Having reached the Bharat Lodge the mob became violent and damaged the furniture the glass panes and some of the members of the mob went to the extent of stealing away the cash box which was kept in the Lodge Meanwhile P.S.I. Kakrambe P.W. 12 who had seen the mob moving towards the Engineering College and the Bharat Lodge rang up the D.S.P. and got the police to the spot. After looting the Bharat Lodge the mob went to a chawl belonging to P.W. "24 Jogendra Singh and set fire to some of its doors and other property including a scooter, In the meantime P.W. 1 Prakash and his father P.W. 16 Vishwanath went to the police station and reported the incident. F.I.R. Ext. 8 was prepared on the basis of the statement given by P.W. 1 Prakash before the Police. In the rampage that has ensued, the mob succeeded in arresting one student Deshmukh of the Engineering College while the students succeeded in arresting A-l and A-2. All these persons were, however, released when the police came to the spot. The police after usual investigation submitted a charge-sheet as a result of which the accused were put up for trial before the learned Additionar Sessions Judge and convicted and sentenced as indicated above."

41. It is in the aforesaid circumstances that the observation has been made in paragraph 5 quoted in the body of the judgment. It appears from the evidence of witnesses in that case that from the mob, the only persons who had actually participated in removing the cash box and committed dacoity were Mohd. Iqbal, Sardar Khan, Sabar Ali and Mohd. Azam. They had admitted this fact as a witness which completely excluded the possibility of any other appellant having taken part in this separate incident of dacoity. However, in the instant case, there has been no existence of any admission or the offence having been committed as part of the same transaction. To our mind, the observations made in the facts and circumstances of that case and the judgment rendered in the case of Musakhan (supra), were therefore, altogether in a different context.

42. In the case of Gangadhar Behera (supra), learned counsel for the respondents-accused has placed reliance upon following extract of the judgment.

"Another plea which was emphasized relates to the question whether Section 149. I.P.C. has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, l.P.C. may be different on different members of the same assembly.

'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instant.

The Apex Court further held that--

@@'There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149. I.P.C. may be different on different members of the same assembly."$$

43. Learned counsel for the respondents-accused has also placed reliance upon paragraphs 16 and 17 of the judgment rendered in Maranadu (supra), which also deals with Section 149, I.P.C. Paragraphs 16 and 17 of the judgment read thus:

"16. A plea which was emphasized by the appellants relates to the question whether Section 149, I.P.C. has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section......149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. it cannot be laid down as a............

general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to "in order to attain the common object'. It must be immediately connected with the common object by virtue of..............the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, I.P.C. may be different on different members of the same assembly.

17. 'Common object' is different from 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is

five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a............

consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined. keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the Intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly.......

which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instant."

44. In the facts and circumstances of this case it can safely be said that those member of unlawful assembly who had come with accused Chandrika to the field of Surendra Kumar had no intention to commit murder or injure the ploughmen otherwise they would not have allowed them to leave the field when they protested but they were made to untie the yoke, the oxen and to leave field. The common object in the instant case, appears to have developed amongst Chandrika. Vindhyachal and Ram Karan at spot nar unit tree where the persons inimical to them were assembled and an exhortation was given by accused Vindhyachal to kill them.

45. Applying the principles laid down in the two cases by the Apex Court, i.e., Gangadhar Behera and Marandu (supra), we hold that in the instant case, the other persons who were said to be chasing the ploughmen and carrying spears, cannot be said to share the common object and to do away with the injured Ram Tirath and the deceased with common intention who were not at the field at the relevant time when the altercation between the ploughmen and the members of alleged unlawful assembly is said to have taken place. Therefore, we are of the view that the members of unlawful assembly had come with the common object not to allow the ploughmen to plough the field of Surendra Kumar but they had no intention to injure or commit murder of any person in the village which was about 1-1/2 furlong from the fields "Chhotka Dihwa' where the altercation between the ploughmen and the members of unlawful assembly had taken place. Their common object having been achieved was not in existence when exhortation was given by respondent-accused Vindhyachal on which respondents-accused Chandrika, Vindhyachal and Ram Karan had acted upon, hence, only they are liable to be convicted.

46. From perusal of the impugned judgment as well as the record it is apparent that the learned trial court has based its order of acquittal on consideration of two questions. i.e., (i) whether deceased Ganga Prasad, Vidya Prasad, Shital Mishra and Triveni were murdered and Gungiya, Ram Laut, Ram Tirath, Km. Urmila, Shiv Kumar Lal and Anganu were injured on the date, time and place, in the manner as alleged by the prosecution? (ii) whether the prosecution evidence establishes beyond reasonable doubt the participation of the respondents-accused, if so the offence or offences made out against the respondents-accused who is or are held to have participated in the commission of this crime ?

47. With regard to the first question, the learned trial court has considered the testimonies of P.Ws. 3 to 7. Since, the defence seriously contended that the prosecution witnesses were not truthfully deposing the fact and had no opportunity to see the incident in the manner stated by the prosecution, therefore, the respondents-accused cannot be held guilty as its case is falsified by the own witnesses of the prosecution. In the aforesaid context of question No. 1, the learned trial court while deciding the second question considered the veracity of the statements of the prosecution witnesses on the touch-stone of the truthfulness, reasonableness and testing them viz-a-viz the records. After considering the evidence In the case it came to a considered conclusion that though the defence does not deny the factum of incident yet has claimed false implication of the respondents-accused persons on ground of long drawn enmity with the prosecution witnesses. The learned Sessions Judge in regard to the incident in which Ram Tirath, Km. Urmila and Ram Laut said to have received injuries, has disbelieved their testimonies and observed that prosecution witnesses have falsely deposed about the facts in order to implicate the respondents-accused persons. The learned trial court has elaborately dealt with the contradictions and the falsity of the evidence given by the prosecution witnesses in paragraphs 31 to 51 in its judgment summarizing its findings in paragraph 51 of the judgment thus:

@@"51. To sum up there was bitter enmity between the informant and other prosecution witnesses on the one hand and the accused on the other. There is unexplained delay in preparation of the F.I.R. and in sending the papers which have to accompany the dead body to the mortuary. There is conflict in the prosecution evidence in comparison with the medical evidence. The probability that at least six innocent persons who were not named in the dying declaration of Ram Tirath were named for the first time on account of ulterior motive in the F.I.R. and the weapons were differently stated in the F.I.R. and that the prosecution case that Triveni had had a big hydrocele ran from the field of Surendra Lal to imli tree and was chased by the accused but Triveni did not receive any injury in the way when taken into consideration with the fact that the names of important eye-witnesses were not mentioned in the F.I.R. makes it difficult to believe the prosecution evidence. In this connection the learned counsel for the defence rightly relied on the ruling in Yamanappa Goolappa Shirgumpi and Others Vs. State of Karnataka, and contended that all the accused deserve benefit of doubt hence, acquittal."$$

48. We may now test the reasoning of the trial court and its approach in dealing with the contradictions in the statement of witnesses. the alleged dying declaration of Ram Tirath and the medical evidence. Surendra Lal (P.W. 3] stated in paras 14 and 15 of his cross-examination thus:

On the contrary in the alleged dying declaration (Ex. C-2) recorded by the Executive Magistrate on 3.7.1978 at 5.24 a.m. in which Ram Tirath stated thus:

49. From the above it is apparent that the alleged dying declaration of Ram Tirath (P.W. 4) gives out an entirely different case than in the F.I.R. proved by the prosecution witnesses. In the first place, the alleged dying declaration does not make any mention that the accused chased the ploughmen or any other victim up to any distance while the F.I.R. mentions that the ploughmen were chased up to the village Nadaya at a distance of about 1-1/2 furlong from the field at Chhotka Dihwa. Secondly, while in the alleged dying declaration Ram Tirath claimed that his field was being ploughed, Surendra Lal in the F.I.R. had stated that his field in 'Chhotka Dihwa' was being ploughed. The area and the boundaries of the two plots, one mentioned in the F.I.R. and the other in the said dying declaration also differ as Surendra Lal (P.W. 3) gave the following boundaries of his field in para 35 of his cross-examination.

50. A perusal of the site plan (Ex. Ka-11) shows that the field of Surendra Lal (P.W. 3] in 'Chhotka Dihwa' was bounded on the north side by the field of Ram Lochan, on the west by the field of Deviki Nandan and on the east by the field of Ram Karan. On the east side of this field there was a "kachcha" road and on the east of it, was grove of Mahboob. These boundaries of the field in question as shown in the site plan do not at all mach with the description of his field deposed by Surendra Lal (P.W. 3), particularly with regard to the western, southern and eastern boundaries. Apart from this Surendra Lai (P.W. 3) stated in para 30 of his cross-examination thus:

51. It appears from the inspection note submitted by the defence counsel in the trial court that the area of the field which was being ploughed at the time of the incident was 5 bishwa pokhta only which does not tally with the area given out by P.W. 3, Surendra Lal because 15 biswa kachcha land is equal to 7-1/2 biswa pokhta, as such there can be no doubt that while in the alleged dying declaration Ram Tirath mentioned his plot which was being ploughed, in the F.I.R. Surendra Lal (P.W. 3) mentioned his own plot which was being ploughed and both these plots are quite different from one another. This difference is material as no blood was found in the field of 'Chhotka Dihwa, If there was no chasing of the ploughmen by the accused, as is the case set up in the dying declaration then the incident did not take place in Chhotka Dihwa field but from where the Investigating Officer has found blood.

52. Learned trial court has observed that while the F.I.R. mentions the names of three ploughmen, the alleged dying declaration does not give out either the names or number of the ploughmen. Fourthly while the F.I.R. states that only Chandrika had a gun in his hands, Nagai had a lathi and the remaining ten accused were armed with spears, the alleged dying declaration mentions that Vindhyachal and Chandrika were both armed with a gun each and there is no mention in the dying declaration that any accused had a lathi. Fifthly, while the F.I.R. names as many as 12 accused who were also on trial, the alleged dying declaration does not mention a good number of accused persons. The counsel for the defence in the trial court pointed out that the alleged dying declaration does not name as many as said accused on trial, namely, Ram Baran, Ram Karan, Banshidhar. Nagai, Ibrahim and Kishore. Further, while the dying declaration states that Ayodhya and his two sons were among the assailants. Ayodhya and one his son, namely, Kishore were on trial. Ram Tirath (P.W. 4) was cross-examined in this respect and he stated in para 20 of his cross-examination that accused Ayodhya has three sons namely. Ram Murat, Ram Surat and Kishore. Out of them only Kishore was an accused. The remaining two sons of Ayodhya were not amongst the accused in this case. In this state of evidence, the possibility that some of the accused have been falsely named in the F.I.R. on account of enmity is probable.

53. From the F.I.R. it appears that respondent-accused Chandrika alone had a gun and he alone fired shots on the victims while the alleged dying declaration shows that Vindhyachal and Chandrika had guns and both of them are alleged to have fired shots on the victims. As regards the use of spear, the F.I.R. and the oral testimony of the prosecution witnesses show that when Ram Tirath fell down, Ram Karan dealt a spear blow to him whereas the alleged dying declaration shows that accused Ayodhya dealt spear blow.

54. Thus, there is a conflict between the eye-witnesses account of the incident and the medical evidence. According to the F.I.R., Shiv Kumar, father of first informant Surendra Lal (P.W. 3) also received pellet injuries. Dr. O.P. Mishra (P.W. 1), who had examined the injuries of Shiv Kumar deposed in para 5 of his examination-in-chief that two abrasions were found on the person of Shiv Kumar, which could not be caused by pellets. He stated thus:

Having not supported the case of the prosecution, he was declared hostile by the prosecution. Thereafter, he was cross-examined and in para 11 of his cross-examination he stated

55. Therefore, the prosecution evidence that Shiv Kumar Lal received gun shot injuries is obviously false and this appears to be the reason why neither Shiv Kumar Lal has been examined nor any evidence has been led to show any acceptable ground for the failure of the prosecution from examining him.

56. The injury report (Ex. Ka-15) of Km. Urmila Devi shows that doctor found one gun shot wound on the right little ring and middle fingers five in number in an area of 6 cm. x 6 cm. with blackening and tattooing all round the wounds, Km. Urmila Devi (P.W. 6) in her statement stated thus:

57. From the injury report (Ex. Ka-18) of Ram Tirath (P.W. 4) it is apparent that no blackening or tattooing marks against any gun shot wound was found on his body, hence, the testimony of Km. Urmila Devi (P.W. 6) that she and her father Ram Tirath were injured at the same place cannot be believed. The learned trial court held that if it is believed that blackening and tattooing was found around some gun shot injury of Ram Tirath appears to be incorrect finding and this does not remove the conflict in the eye-witness account with the medical evidence as P.W. 3 Surendra Lal stated that--

58. Surendra Lal (P.W. 3) further stated in his statement that besides him Baikuntha Bihari, Shital, Shiv Bholey, Ram Tirath, Km. Urmila, Ram Tirath's wife, Vidya Prasad, Anganu. Shiv Kumar Lal. Indra Sen, Har Narain Mishra, Ram Deen, Smt. Jasna and Ganga Prasad were at the scene of occurrence. This has also come in the evidence of Ram Deen (P.W. 7) that--

The prosecution has not been able to examine any eye-witness who could stand cross-examination either with regard to his impartiality or with regard to the incident actually seen by him. In para 12 of cross-examination of Surendra Lal (P.W. 3) say:

This part of the statement of Surendra Lal (P.W. 3) is in contradiction with the statement on oath by Km. Urmila Devi (P.W. 6), who in para 9 of her statement deposed thus:

59. If Surendra Lal was on his stomach in the pit in front of the accused which was filled with one or a half cubits deep water at places and remained there till the marpit was over as stated by Km. Urmila aforesaid he could not have seen the incident happening at all. It has also come on record that P.W. 3 could not be at the place of occurrence as he was practising a lawyer in Consolidation Courts at Harriya as admitted by him in paras 23, 24 and 25 of his statement thus:

60. Therefore, the presence of Surendra Lal at the place of occurrence being doubtful cannot be believed and the possibility of antedating of the F.I.R. subsequently on his return from Harraiya cannot be ruled out in the facts and circumstances of the case as it appears that the F.I.R. (Ex. Ka-7) purports to have been prepared on 3.7.1978 at 8.30 a.m. at P.S. Chhaoni. The signatures of the Circle Officer on it is dated 4.3.1978. This date ts obviously wrong because if the incident took place on 3.7.1978 the Circle Officer could not have signed the F.I.R. on 4.7.1978. No attempt was made by the prosecution to prove the correct date on which this F.I.R. (Ex. Ka-7) was produced before the CO. Learned A.G.A. has pointed out that the date of receipt of this F.I.R. in the office of CO., Sadar is given as 4.7.1978 and time appears to be 12.45 p.m. If this version is taken to be correct, there is an obvious delay in sending the F.I.R. because P.S. Chhaoni is at a distance of 25 kms. from Basti Head quarter connected by the National Highway. As such, if the F.I.R. was recorded on 3.7.1978 at 8.30 a.m. the original F.I.R. could easily be received in the office of CO., Sadar at any time before or after mid day of 3.7.1978. The prosecution has not been able to lead any evidence to explain this delay in sending the original F.I.R.

61. In this regard the learned trial Judge relied upon the case law in Ishwar Singh Vs. State of U.P., . in which it was held that in a case of unexplained extra-ordinary delay in sending the F.I.R. to the Magistrate and the CO., there is sufficient time for the prosecution to introduce improvements and embellishment. It is possible in such a circumstance to set up a distorted version of the occurrence and evidence of eyewitnesses cannot be accepted at their face value in such cases.

62. It also appears that the F.I.R. was recorded under Sections 147, 148, 149, 307 and 302, I.P.C. whereas the inquest report (Ex. Ka-22) in respect of dead body of deceased Vidya Prasad shows that the offences committed were disclosed in it as under Sections 147. 148, 149, 302, 307 and 323. I.P.C." Similar is the position in the inquest reports of Shital Prasad, Triveni Chai and Vidya Prasad (Ex. Ka-26, 34 and 40). All these go to show that the F.I.R. had not been prepared by the time of the preparation of the inquest reports and that was the reason why there is difference in the sections under which the office was said to have been committed. We are therefore, of the view that the F.I.R. and other police papers were not prepared at the time shown in them as the challan nash (Ex. Ka-25) in respect of the dead body of deceased Shital Mishra shows that the dead body reached the mortuary on 3.7.1978 and papers were received at the mortuary by the doctor on 4.7.1978 at 10 a.m. Similar is the endorsement of Dr. R.C. Verma on the challan nash (Ex. Ka-32, 39 and 20) in respect of the dead bodies of Triveni Chai, Vidya Prasad and Ganga Prasad. No evidence has been led by the prosecution to explain this obvious delay in sending the inquest reports and other papers to the mortuary and the defence contention that the papers were subsequently prepared and then sent to the mortuary cannot be ruled out. For all these reasons, the trial court appears to have disbelieved the testimony of Surendra Lal (P.W. 3). To our mind, this appears to be an inadvertent slip of the Investigating Officer.

63. Ram Tirath (P.W. 4) is an injured witness. He stated in para 21 of his cross-examination thus:

64. The wife of Ram Tirath, who caught the spear to save him and was injured on her back side near her right thigh, is not mentioned as an injured witness or even an eyewitness in the F.I.R. or in the alleged dying declaration of Ram Tirath. However, some attempts had been made by her to say that she was also present at the spot but she was not examined as a witness to prove that she received injuries in the same incident. In the circumstances, the contention of the respondents-accused that the incident most probably took place during the darkness of the night and even the injured persons could not recognize the assailants and see the persons who caused injuries to them cannot be lightly brushed aside, Hence, the learned trial court has also disbelieved the testimony of P.W. 4, Ram Tirath.

65. Ram Laut (P.W. 5) is another injured witness. He stated that he had gone to plough the field of Surendra Lal (P.W. 3) as his brother Paltu. who was the ploughman of Surendra Lal, was ill. He also stated in para 7 of his cross-examination that besides others, the wife of Ram Tirath was also injured but this part of his statement cannot be believed for the reasons already stated above. He also stated in para 9 of his cross-examination thus:

66. He also stated in para 21 of his statement that about a year before the incident of this murder he was prosecuted for theft in Gorakhpur on the initiation of accused Chandrika. In the circumstances. Ram Laut has falsely implicated the accused persons or at least some of them out of enmity is a possibility.

67. Km. Urmila Devi (P.W. 6) is the daughter of Ram Tirath (P.W. 4). In view of the discrepancies in her medical and oral evidence as stated above it is established that she is deposing falsely against the respondents-accused as such no reliance can be placed on her testimony.

68. Ram Deen (P.W. 7) stated that at the time of incident he was present at his Khalanga. He saw Lautu, Triveni and Khaderu running towards the village raising alarm. They were chased by the accused persons and on reaching the place of occurrence saw the incident. However, in para 8 of his cross-examination he admitted that in front of his house there was the house, ghari, and land of Hari Ram but he denied the defence suggestion that this land was purchased by Bhagauti, father of accused Chandrika by offering more price the land than was being offered by this witness Ram Deen.

It appears from record that the respondents-accused filed original sale-deed executed by Hari Ram in favour of Bhagauti, father of accused Chandrika, for a sum of Rs. 500 dated 1.8.1967, copy of charge-sheet pertaining to S.T. No. 298 of 1976, State v. Vidya, under Sections 307, 329 and 109, I.P.C., copy of the order passed by the learned Magistrate u/s 110, Cr. P.C. on 18.3.1975 and the report of S.O. Chhaoni dated 27.12.1977 alongwith carbon copy of the documents of the case under Sections 186 and 353, State v. Vidya and others, and the copy of the judgment dated 19.9.1956 of another case State v. Sita Ram and others, under Sections 147 and 323 and 384, I.P.C. had also been filed by the respondents-accused in their defence. In these circumstances, the contention of respondents-accused that Ram Deen (P.W. 7) was deposing falsely against them cannot be ruled out.

Moreover, Ram Deen has admitted in para 11 of his cross-examination thus:

69. In the circumstances, thus the contention that Triveni ran from 'Chhotka Dihwa' field to near the imli tree in the village which is about 1-1/2 furlongs from where the incident took place. He aged about 70-80 years was so fat that he was hardly able to walk what to say of capable of running for about 1-1/2 furlongs, yet the accused did not cause any injury to him in the way when the members of heavily armed unlawful assembly are alleged to have chased him, cannot be believed. The aforesaid statements show that all the prosecution witnesses have deposed falsely to some extent and the story of chasing, which does not find mention in the alleged dying declaration, is not only an after thought but is an absurdity which negatived the chance of the prosecution case being true. We find force in the contention of learned counsel for the respondents-accused that no prosecution witness examined in this case can be believed for recording conviction against some of the accused.

70. In the case of Chandrappa and Others Vs. State of Karnataka, Hon'ble Supreme Court held that:

The following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

"1. An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

3. Various expressions, such, as "substantial and compelling reasons" "good and sufficient grounds" "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principles of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law, Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

5. If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court.

Keeping in view the aforesaid proposition of law, we have made appraisal of evidence on record."

71. Keeping in view the aforesaid proposition of law, we have made appraisal of evidence on record, we are of the view that the said dying declaration of Ram Tirath (P.W. 4) in this case cannot be read in evidence as it did not remain a dying declaration in view of ingredient of Section 115 of the Uttar Pradesh Police Regulations and also in view of the fact that maker of the said dying declaration is still alive. At the most it can be said to be a previous statement of witness Ram Tirath which would be used only for the purpose of contradiction and not for corroboration provided the Magistrate who had recorded the dying declaration comes in the witness box and proves such statement. In the instant case, he has not been examined either by the defence or by the prosecution. Therefore, the statement of Ram Tirath as dying declaration cannot be read in evidence and no contradiction can be sought from the contents of such a dying declaration. In view of the above, the dying declaration of Ram Tirath looses its significance and is of no use to either of the parties.

72. Ram Tirath was subjected to cross-examination by the defence wherein he had expressed his inability to recollect and say that what statement was given by him before the Magistrate, if any because he was badly injured and was suffering from acute pain. He stated that after receiving injuries of 'ballam' and gun shot he became unconscious and regained senses after 8 days in the hospital. It appears that he honestly stated that he does not remember what statement was given by him in subconscious state. Since, he does not give a clear picture of previous statement, if any given to Magistrate, therefore, his any such statement is not subject to contradiction. The probabilities are there that if at all he made any statement in conscious state of mind before the Executive Magistrate, he would not have assigned the role of inflicting gun shot injuries by two different accused-respondents, i.e., Chandrika and Vindhyachal. In view of the fact that the Investigating Officer had interrogated him u/s 161, Cr. P.C. wherein he has fully supported the prosecution case and stated that he was in hospital Basti on 31.8.1978 wherein he had given his statement to him which fully supports the prosecution version as embedded in the F.I.R. This statement has been recorded in the case diary which cannot be said to be acted upon by the Court as substantive evidence but for a limited purpose it can be looked into by the Court to make the picture of the matter clear.

73. From perusal of the statement given to the Investigating Officer by Ram Tirath we find that the said statement is almost verbatim supporting the prosecution case as in the F.I.R. The wife of Ram Tirath was examined by the Investigating Officer who also supports the version of her husband. We find that even the Investigating Officer who had written the case diary, was not examined. In these circumstances, any contradictions between the alleged statement given by Ram Tirath recorded before the court u/s 164, Cr. P.C. cannot be used for the purpose of contradiction.

74. Since, the dying declaration does not conform to the ingredient of Section 115 of Uttar Pradesh Police Regulations as such the same could not have been used by the learned trial court for the purpose of contradictions in the statement of witnesses, therefore, the learned trial Judge has committed an error apparent on the face of record in relying upon it heavily particularly when Ram Tirath survived thereafter, his statement could at best be considered as a statement u/s 161. Cr. P.C. which in the circumstances could not be relied upon and could only be a previous statement for the purpose of contradiction.

75. Apart from the aforesaid minor contradictions we do find from the record and the statements of the witnesses that an incident did take place on 3.7.1978 at about 7.00 a.m. It is a fact that four persons, i.e., Triveni Chai, Vidya Prasad, Ganga Prasad and Shital Mishra were murdered. It is also an admitted fact that a large number of persons had come out of their houses at the time of incident and had witnessed the shooting and assault by the accused persons. There can be a small variation in the statements of the witnesses as each witness may be observing the incident from the place where he was standing. The contradictions pointed out by the learned trial court are minors and unreliable.

76. Admittedly, there was a pit of 30x40' at the place of occurrence in which Surendra Lal (P.W. 3) had hidden himself which is said by Km. Urmila to be filled by half and one cubits water. Even it was filled by half or one cubits water, still a person having enmity with the accused persons and hidding himself in the trench would lend to cautiously look from it to see as to whether he has been seen by any of the assailants or he is coming towards him or not. The statement of Surendra, therefore. assumes importance when he says that there was no water at the place he was in the pit as Km. Urmila could not have seen Surendra Lal. Km. Urmila Devi (P.W. 6), who was injured and standing with his father about 20 paces away from the place where respondent-accused Chandrika had fired from his gun could not have seen either water in the pit or even Surendra Lal watching the incident.

77. The map or site plan is not an admissible document as it is prepared on hearsay. Only that part of it is admissible which has been seen by the Investigating Officer personally and has prepared it.

78. In our considered opinion, the learned trial court has committed an error in law and on face of record in relying upon the alleged dying declaration for the purpose of contradiction in the statements of prosecution witnesses which without aid of such dying declaration (which we have held not to be a dying declaration) is consistent. Four persons of the village, namely, Triveni Chai, Vidya Prasad, Ganga Prasad and Shital Mishra died and seven persons. namely, Shiv Kumar, Smt. Gungiya, Km. Urmila, Anganu, Ram Laut, Ram Tirath and Smt. Jasa were injured. It is apparent from the evidence that when all the ploughmen came running towards the village and the villagers came out from their houses, the assailants finding that his opponents have also come out and were standing at one place saw a chance to wipe them all at that time on exhortation by accused Vindhyachal to kill them saying

accused Chandrika with his gun.

79. The other accused persons of unlawful assembly said to be armed with spear alongwith Chandrika and Vindhyachal who are said to have come with common object to commit murder had in fact not acted upon the exhortation except Ram Karan with his spear. Had it been so, there would have been a number of spear injuries caused OR had they any intention of killing they would have committed the murder in the field itself where it is said that they had forced the ploughmen to untie yoke and bullocks and when they objected to this highhandedness. The respondents-accused are-said to have abused them and chased them for beating (but not killing" them) whereupon all the ploughmen ran towards the village raising a hue and cry. It is only his enemies whom Chandrika saw assembled at one place that he on exhortation of Vindhyachal alongwith him and Ram Karan developed the motive, intention and object to kill them. It is with this view that Chandrika had fired with gun killing Triveni Chai, Vidya Prasad, Ganga Prasad and Shital Mishra and injured seven persons Shiv Kumar, Smt. Gungiya, Km. Urmila, Anganu. Ram Laut. Ram Tirath and Smt. Jasa. 'ballam' injury is said to have been caused by accused Ram Karan which is not part of the marpit at the field and other person behind Chandrika and Vindhyachal in the chase cannot be said to have common object of killing or injuring any one, hence their case appears to be totally different.

80. In this regard we may refer a judgment dated 18.12.2012 passed by the Division Bench in Criminal Appeal No. 4774 of 2005, Santosh and another v. State of Uttar Pradesh. alongwith connected Criminal Appeal Nos. 4649 of 2005 and 4191 of 2005, Harish Chand and others v. State of Uttar Pradesh and Mahendra and another v. State of Uttar Pradesh, in which it was held that--

@@"39. As regards common object of the unlawful assembly, it is trite law that it does not require a prior concert and a common meeting of the minds of the assailants. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The common object of such assembly for determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant factors. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined from the facts of each case keeping in view the nature of the assembly, the arms carried and used by its members and the behaviour of the members at or near the scene of the incident."$$

81. Ram Tirath, Km. Urmila and Ram Laut have received injuries in the same incident, hence, there is no good reason to disbelieve their testimony particularly when the copy of the bail application (Ex. Ka-53) moved on behalf of accused Chandrika and Ram Karan shows that these respondents-accused pleaded its' para 7 that a murderous attack was made on them by the deceased and then the elder brother of the applicant, namely, Ram Sahit fired shot in defence. Contrary to it, accused have suggested Ram Tirath (P.W. 4). Ram Laut (P.W. 5) and Km. Urmila (P.W. 6) in their cross-examination that the deceased were done to death by dacoits at Pachhlahra (i.e., in between 2.00 a.m. to 4.00 a.m.).

82. In Shingara Singh (supra), the Apex Court has laid down the principle that where two views are possible. Normally, the view which favours the accused must be accepted. However, an exception has been carved out that " High Court can interfere only in such cases where the findings recorded by the trial court are unreasonable or perverse or where the Court has committed a serious error of law, or the trial court had recorded its findings in ignorance of relevant material on record or by taking into consideration evidence which is not admissible".

83. As regards the cases of Gangadhar Behera and Marandu. (supra), are concerned, they relate to the question where u/s 149, I.P.C. has any application for fastening the constructive liability which is the sine qua non for its operation. In the instant case also, the crucial question was determined to assembly consisted of five or more persons who had come to the field of Surendra Lal with any common object as specified u/s 141, I.P.C. We have already found that as a matter of fact from the evidence on record that the said assembly came to the field of Surendra Kumar but did not commit an offence u/s 302, I.P.C. They may have a common object of stopping the ploughmen from ploughing the field of Surendra Kumar. It can also not be said that all those who had formed an unlawful assembly had chased the ploughmen up to the village to commit the murder. Admittedly, ploughmen, namely, Khadaru, Ram Laut and Triveni Chai were coming shouting towards the village which was 1-2 furlongs but they were not killed by them. It is only after their reaching the village and seeing the members of the family of all those who were inimical with them, had come together at the spot; that the respondent-accused Vindhyachal exhorted upon which respondent-accused Chandrika fired shots killing four persons, namely, Triveni Chai, Ganga Prasad Lal, Vidya Prasad and Shital Mishra.

84. From the discussions and appraisal of evidence on record, it is amply clear that the prosecution had fully proved its case beyond all reasonable doubts against all the aforesaid three respondents-accused. Therefore, the contrary view taken by the learned trial court to this extent is perverse and cannot be upheld as the finding of acquittal of all accused persons recorded by learned trial court is not based on correct appreciation of evidence and is based basically on the alleged statement of Ram Tirath recorded by the Executive Magistrate treating it to be dying declaration, although its maker is alive and the said statement is inadmissible in evidence. The finding of acquittal has been recorded by the learned trial court ignoring the materials on record oral as well as documentary which is fully supported by the medical evidence.

85. For the reasons stated above, we differ from the conclusion arrived at by the learned trial court and reverse the impugned judgment and order of acquittal of the three respondents-accused persons namely. Chandrika, Vindhyachal and Ram Karan.

86. Accused-respondent Chandrika is found guilty of the offence punishable under Sections 148, 302 and 307/34, I.P.C. Accused-respondents Vindhyachal and Ram Karan are found guilty under Sections 148 and 302/34, I.P.C. Accused-respondent Ram Karan is found guilty u/s 307, I.P.C. while accused Vindhyachal is further found guilty u/s 307/34, I.P.C. Rest of the accused Jagdamma Prasad Mishra. Ishak, Mohd. Ibrahim, Kishor, Bansidhar and Nagai are found guilty for the offence punishable u/s 148, I.P.C. All the accused are convicted accordingly.

87. As regards, the quantum of sentence to be awarded to the accused-respondents found guilty we have kept in our mind and considered the fact that vide impugned judgment and order dated 25.5.1981 which pertains to the incident dated 3.7.1978 all the accused have secured their order of acquittal in their favour. Thirty five years have elapsed since the date of incident. As per the age recorded in their statements u/s 313, Cr. P.C. accused Chandrika is aged about 75 years, Vindhyachal is aged about 61 years, Ram Karan aged about 65 years at present and rest of convicted accused are in between the age of 63-75 years at present.

88. Considering the facts and circumstances accused Chandrika is sentenced u/s 148, I.P.C. to undergo rigorous imprisonment for 3 years, u/s 302 he is sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000. In default of payment of fine he is to further undergo a sentence of 6 months. u/s 307/34, I.P.C. he is sentenced to undergo imprisonment for 10 years and to pay a fine of Rs. 10,000 and-in default of payment of fine, he is to further undergo a sentence of 6 months.

89. Accused Vindhyachal is sentenced u/s 148, I.P.C. to undergo rigorous imprisonment for 3 years, u/s 302/34, I.P.C. he is to undergo imprisonment for life and to pay a fine of Rs. 10,000. In case of default of payment of fine, he is to undergo a further sentence of 6 months. u/s 307/34 he is sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000. In case of default of payment of fine, he is to undergo a further sentence of 6 months.

90. Accused Ram Karan is sentenced u/s 148, I.P.C. to undergo rigorous imprisonment for 3 years. u/s 302/34, I.P.C. he is to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000. In case or default of payment of fine, he is to further undergo a sentence of 6 months. u/s 307, I.P.C. he is sentenced to undergo rigorous imprisonment for 10 years and to pay a find of Rs. 10.000 and in case of default of payment of fine, he is to undergo further sentence of 6 months. However, we further provide that all the sentences awarded to the aforesaid accused shall run concurrently.

91. Accused-respondent Jagdamma Prasad Mishra, Ishak, Mohd. Ibrahim, Kishor, Banshidhar and Nagai, who have been convicted u/s 148, I.P.C. are sentenced to a period already undergone. They need not surrender. Their bail bonds are cancelled and sureties stand discharged.

92. Government appeal is allowed accordingly.

93. Accused-respondent Chandrika, Vindhyachal and Ram Karan are directed to surrender before the Court of learned C.J.M., Basti within a month to serve out the sentence awarded to them. In case, they do not surrender before him within the stipulated period, learned C.J.M., Basti shall commit them to custody in accordance with law and would submit the compliance report to the Registry of this Court within next two months.

94. Registry is directed to transmit the copy of this judgment to learned C.J.M., Basti forthwith for compliance of the order.
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