CASE NO.: Appeal (crl.) 29 of 1999 PETITIONER: State of U.P. RESPONDENT: Kishan Chand & Ors. DATE OF JUDGMENT: 20/08/2004 BENCH: B.N. AGRAWAL & H.K. SEMA JUDGMENT:
J U D G M E N T
SEMA,J.
Nine accused were put on trial before the Addl. Sessions
Judge. During the pendency of the trial, one accused died, therefore,
eight accused have faced the trial. At the end of the trial, the trial
court acquitted accused nos. 6, 7, and 8 of all the charges. No appeal
was preferred by the State against their acquittal. The five accused
(respondents herein) namely Kishan Chand, Rama Shankar, Ram
Chandra, Gauri Shankar and Chhotey Lal were convicted under
various Sections of Law as follows:-
Accused Kishan Chand was sentenced to undergo life
imprisonment under Sections 302/34 and 302/149 I.P.C. Six months
R.I. under Section 323 I.P.C. One years R.I. under Section 148 I.P.C.
and 5 years R.I. under Section 307 read with Section 149 I.P.C. and
5 years R.I.
Accused Rama Shankar was sentenced to undergo life
imprisonment under Section 302 I.P.C. One year R.I. under Section
148 I.P.C. 5 years R.I. under Section 307/149 I.P.C. and 6 months
R.I. under Section 323 read with 34 I.P.C.
Accused Ram Chandra son of Bala Sukh and Gauri Shanker
were sentenced to undergo life imprisonment under Section 302 read
with Section 34 I.P.C. and Section 302 read with Section 149 I.P.C.
Six months R.I. under Section 323/34 I.P.C. One year R.I. under
Section 149 and 5 years R.I. under Section 307 read with Section
149 I.P.C.
Accused Chhotey Lal was sentenced to undergo one year R.I.
under Section 148 I.P.C. Life imprisonment under Section 302/149
I.P.C. and five years R.I. under Section 307/149 I.P.C. The
sentences, however, were directed to run concurrently.
On appeal, being preferred by the accused persons, the High
Court by the impugned order acquitted them of all the charges
levelled against them. Hence, this appeal by special leave, has been
preferred by the State of U.P.
Briefly stated the facts are as follows:-
The accused and the complainants are all residents of Harish
Purwa, P.S. Sachendi District Kanpur. On 3.8.1974 at about 5.30
p.m. the accused formed an unlawful assembly in the dharmashala of
Shridhar in village Hariram ka Purwa and in furtherance of common
object murdered Sheo Ram and Mool Chand and caused injuries to
PW1- Shridhar and PW8 – Mizazi Lal. The first information report
lodged by PW3-Ram Swarup disclosed that on the fateful day at
about 5.30 p.m. Chhotey Lal (PW2) son of Tulsi was singing on the
eve of Raksha Bandhan in the dharmashala of Shridhar. Ashok
Chand, Mizazi Lal, Soney Lal Gupta, Ram Mohan, Mool Chand his
son Ramoo and others were also there. In the meantime, accused
Kishan Chand son of Hem Raj, Rama Shankar son of Chhotey Lal,
Ram Chandra son of Sada Sukh, Gauri Shankar son of Hem Raj and
Chhotey Lal armed with gun, country made pistols and hockey-sticks
reached there. Immediately thereafter, accused Kishan Chand gave
a hockey blow to Shridhar. Thereupon, the deceased Mool Chand
asked him not to quarrel on the festival day. Accused Rama Shankar
fired at him. Thereafter, accused Kishan Chand fired at Shridhar who
fell down after sustaining injuries. Accused Ram Chandra was at the
roof and instigated the accused to kill the informant and others. At his
instigation accused Chottey Lal, Kishan Chand, Rama Shankar,
Gauri Shankar and Ram Chandra became more furious and started
firing indiscriminately from their gun and country made pistols. In the
process, Shridhar (PW-1) and Mizazi Lal (PW-8) had also received
injuries. In the said incident, Sheo Ram and Mool Chand died on the
spot.
In course of the trial, the prosecution relied upon the testimony
of eyewitnesses PW1-Shridhar, PW2-Chottey Lal, PW3-Ram Swarup
and PW8-Mizazi Lal. Counsel for the State, contended that the Trial
Court, was justified in placing reliance on the eye witnesses account
of PWs 1, 2, 3 and 8 and the High Court was clearly in error in
disbelieving the eyewitnesses account of prosecution witnesses
resulting in acquittal of accused on the basis of perverse finding.
Per contra counsel for the accused-respondents would contend
that the so-called eyewitnesses are interested witnesses. PW2-
Chottey Lal, PW3-Ram Swarup, being the brothers of the deceased,
their testimony is not reliable and the High Court was justified in
disbelieving their testimony. He would further contend that there was
an enmity between the parties and the witnesses deposed falsely
against the accused because of animosity. Counsels on both the
sides have taken pain in taking us through the entire judgment of the
High Court. To say the least, the High Court did not assign any
reason much less ostensible reason for discarding the testimony of
the eyewitnesses account.
The submission of the counsel for the accused that the
testimony of PWs cannot be acted upon, as they are the interested
witnesses is to be noted only to be rejected. By now, it is well-settled
principle of law that animosity is a double-edged sword. It cuts both
sides. It could be a ground for false implication and it could also be a
ground for assault. Just because the witnesses are related to the
deceased would be no ground to discard their testimony, if otherwise
their testimony inspires confidence. In the given facts of the present
case they are but natural witnesses. We have no reason to
disbelieve their testimony. Similarly, being the relatives, it would be
their endeavour to see that the real culprits are punished and
normally they would not implicate wrong persons to the crime, so as
to allow the real culprits to escape unpunished.
That apart PW1-Shridhar and PW-8 Mizazi Lal are both
independent and injured witnesses. The testimony of an injured
witness has its own relevance and efficacy. The fact that the
witnesses sustained injuries at the time and place of occurrence
lends support to their testimony that the witnesses were present
during the occurrence. The injured witnesses were subjected to
lengthy cross-examination but nothing could be elicited to discredit
their testimony.
Counsel for the accused contended that the prosecution fails to
establish which of the accused caused fatal injuries. This submission
is misconceived. The convictions were recorded under Sections 302
with the aid of Section 34 and under Section 302 with the aid of
Section 149. It is a well established principle of law that when the
conviction is recorded with the aid of Section 149, relevant question
to be examined by the court is whether the accused was a member of
unlawful assembly and not whether he actually took active part in the
crime or not. The Constitutional Bench of this Court in Masalti Vs.
State of U.P., 1964 (8) S.C.R. 133 at page 148 SCR held:-
“What has to be proved against a person who is
alleged to be a member of an unlawful assembly is that
he was one of the persons constituting the assembly and
he entertained along with the other members of the
assembly the common object as defined by s.141, I.P.C.
Section 142 provides that whoever, being aware of facts
which render any assembly an unlawful assembly,
intentionally joins that assembly, or continues in it, is said
to be a member of an unlawful assembly. In other words,
an assembly of five or more persons actuated by, and
entertaining one or more of the common objects specified
by the five clauses of s. 141, is an unlawful assembly.
The crucial question to determine in such a case is
whether the assembly consisted of five or more persons
and whether the said persons entertained one or more of
the common objects as specified by s.141.”
Further at page 149 SCR it is said:-
“In fact, s.149 makes it clear that if an offence is
committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or
such as the members of that assembly knew to be likely
to be committed in prosecution of that object, every
person who, at the time of the committing of that offence,
is a member of the same assembly, is guilty of that
offence; and that emphatically brings out the principle that
the punishment prescribed by s.149 is in a sense
vicarious and does not always proceed on the basis that
the offence has been actually committed by every
member of the unlawful assembly.”
Counsel for the respondents, strenuously urged that from the
evidence of the prosecution witnesses accused Ram Chandra was at
the roof and instigated the accused to finish the prosecution party and
as such it cannot be said that the accused formed an unlawful
assembly to perpetrate the crime. We are unable to countenance
with this submission of the counsel. Firstly, an assembly, which was
not unlawful assembly when it assembled, may subsequently become
an unlawful assembly. Secondly, common object of the unlawful
assembly can be gathered from the nature of the assembly, arms
used by them and the behaviour of the assembly at or before scene
of occurrence. It is an inference to be deduced from the facts and
circumstances of each case. In the instant case, the prosecution
evidence disclosed that it was a Raksha Bandan day when the
singing was going on, the accused appeared at the scene with gun
and country made pistols and hockey-sticks, attacked the prosecution
party and started firing indiscriminately resulting in the death of Sheo
Ram and Mool Chand. Deduced from the surrounding facts and
circumstances of this case, it is clear that the accused did form an
unlawful assembly and in furtherance of that common object of the
unlawful assembly, crime has been perpetrated.
The next contention of the counsel for the respondents that the
non-explanation of the injuries sustained by the accused caused
prejudice to the accused, also deserves to be rejected. The
prosecution has explained that at the time of arrest the accused tried
to flee and in that process sustained some injuries being beaten by
the arresting party. The injuries sustained by the accused were
simple in nature. This apart, it is well-settled principle of law that non-
explanation of injuries sustained by the accused by the prosecution
would not vitiate the trial, if the prosecution evidence against the
accused is so strong on the basis of which alone the conviction can
be recorded. As already noted, in the present case, out of four
eyewitnesses two are independent and stamped witnesses.
There is yet another contention of the counsel for the
respondents, which deserves outright rejection. Counsel would
contend that after the reconstruction of the case record the
statements made by the accused-respondents under Section 313
Cr.P.C. have not been properly considered by the Trial Court and
prejudice thereby has been caused to the accused-respondents. We
have gone through the judgment of the Trial Court which would show
that the statements made by the accused under Section 313 have
been quoted in verbatim and the same have been considered by the
Trial Court in great detail. Before the High Court, it was not the case
of the accused that the reconstruction of the record has not been
done properly. Conversely, the High Court in the order dated
7.10.1994 has recorded the total satisfaction that the reconstructed
record is proper.
In the premises aforesaid, we are clearly of the view, that the
High Court fell in error in acquitting the accused resulting in grave
miscarriage of justice. The impugned order of the High Court is,
accordingly, set-aside. The conviction recorded by the Trial Court is
hereby restored. The accused-respondents Kishan Chand, Rama
Shankar, Ram Chandra, Gauri Shankar, and Chhotey Lal are
directed to be taken into custody forthwith. Compliance report within
three weeks. The appeal is, accordingly, allowed.