{"id":255835,"date":"2004-08-20T00:00:00","date_gmt":"2004-08-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-kishan-chand-ors-on-20-august-2004"},"modified":"2016-07-08T05:38:01","modified_gmt":"2016-07-08T00:08:01","slug":"state-of-u-p-vs-kishan-chand-ors-on-20-august-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-kishan-chand-ors-on-20-august-2004","title":{"rendered":"State Of U.P vs Kishan Chand & Ors on 20 August, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of U.P vs Kishan Chand & Ors on 20 August, 2004<\/div>\n
Author: Sema<\/div>\n
Bench: B.N. Agrawal, H.K.Sema<\/div>\n
           CASE NO.:\nAppeal (crl.)  29 of 1999\n\nPETITIONER:\nState of U.P.\n\nRESPONDENT:\nKishan Chand & Ors.\n\nDATE OF JUDGMENT: 20\/08\/2004\n\nBENCH:\nB.N. AGRAWAL & H.K. SEMA \n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
SEMA,J.\n<\/p>\n
\tNine accused were put on trial before the Addl. Sessions
\nJudge.  During the pendency of the trial, one accused died, therefore,
\neight accused have faced the trial.  At the end of the trial, the trial
\ncourt acquitted accused nos. 6, 7, and 8 of all the charges. No appeal
\nwas preferred by the State against their acquittal.    The five accused
\n(respondents herein) namely Kishan Chand, Rama Shankar, Ram
\nChandra, Gauri Shankar and Chhotey Lal were convicted under
\nvarious Sections of Law as follows:-\n<\/p>\n
Accused Kishan Chand was sentenced to undergo life
\nimprisonment under Sections 302<\/a>\/34<\/a> and 302<\/a>\/149<\/a> I.P.C. Six months
\nR.I. under Section 323<\/a> I.P.C. One years R.I. under Section 148<\/a> I.P.C.
\nand 5 years R.I. under Section 307<\/a> read with Section 149<\/a> I.P.C. and
\n5 years R.I.\n<\/p>\n
Accused Rama Shankar was sentenced to undergo life
\nimprisonment under Section 302<\/a> I.P.C. One year R.I. under Section
\n148<\/a>  I.P.C.  5 years R.I. under Section 307<\/a>\/149<\/a> I.P.C. and 6 months
\nR.I. under Section 323<\/a> read with 34 I.P.C<\/a>.\n<\/p>\n
Accused Ram Chandra son of Bala Sukh and Gauri Shanker
\nwere sentenced to undergo life imprisonment under Section 302<\/a> read
\nwith Section 34<\/a> I.P.C. and Section 302<\/a> read with Section 149<\/a> I.P.C.
\nSix months R.I. under Section 323<\/a>\/34<\/a> I.P.C.  One year R.I. under
\nSection 149<\/a> and 5<\/a> years R.I. under Section 307<\/a> read with Section
\n149<\/a> I.P.C.\n<\/p>\n
 \tAccused Chhotey Lal was sentenced to undergo one year R.I.
\nunder Section 148<\/a> I.P.C.  Life imprisonment under Section 302<\/a>\/149<\/a>
\nI.P.C. and five years R.I. under Section 307<\/a>\/149<\/a> I.P.C. The
\nsentences, however, were directed to run concurrently.\n<\/p>\n
On appeal, being preferred by the accused persons, the High
\nCourt by the impugned order acquitted them of all the charges
\nlevelled against them.  Hence, this appeal by special leave, has been
\npreferred by the State of U.P.\n<\/p>\n
\t\tBriefly stated the facts are as follows:-\n<\/p>\n
\tThe accused and the complainants are all residents of Harish
\nPurwa, P.S. Sachendi District Kanpur.  On 3.8.1974 at about 5.30
\np.m. the accused formed an unlawful assembly in the dharmashala of
\nShridhar in village Hariram ka Purwa and in furtherance of common
\nobject murdered Sheo Ram and Mool Chand and caused injuries to
\nPW1- Shridhar and PW8 – Mizazi Lal.  The first information report
\nlodged by PW3-Ram Swarup disclosed that on the fateful day at
\nabout 5.30 p.m. Chhotey Lal (PW2) son of Tulsi was singing on the
\neve of Raksha Bandhan in the dharmashala of Shridhar.  Ashok
\nChand,  Mizazi Lal, Soney Lal Gupta, Ram Mohan, Mool Chand his
\nson Ramoo and others were also there.  In the meantime, accused
\nKishan Chand son of Hem Raj, Rama Shankar son of Chhotey Lal,
\nRam Chandra son of Sada Sukh,  Gauri Shankar son of Hem Raj and
\nChhotey Lal armed with gun, country made pistols and hockey-sticks
\nreached there.  Immediately thereafter, accused Kishan Chand gave
\na hockey blow to Shridhar.  Thereupon, the deceased Mool Chand
\nasked him not to quarrel on the festival day.  Accused Rama Shankar
\nfired at him. Thereafter, accused Kishan Chand fired at Shridhar who
\nfell down after sustaining injuries.  Accused Ram Chandra was at the
\nroof and instigated the accused to kill the informant and others. At his
\ninstigation accused Chottey Lal, Kishan Chand, Rama Shankar,
\nGauri Shankar and Ram Chandra became more furious and started
\nfiring indiscriminately from their gun and country made pistols.  In the
\nprocess, Shridhar (PW-1) and Mizazi Lal (PW-8) had also received
\ninjuries.  In the said incident, Sheo Ram and Mool Chand died on the
\nspot.\n<\/p>\n
In course of the trial, the prosecution relied upon the testimony
\nof eyewitnesses PW1-Shridhar, PW2-Chottey Lal, PW3-Ram Swarup
\nand PW8-Mizazi Lal.   Counsel for the State, contended that the Trial
\nCourt, was justified in placing reliance on the eye witnesses account
\nof PWs 1, 2, 3 and 8 and the High Court was clearly in error in
\ndisbelieving the eyewitnesses account of prosecution witnesses
\nresulting in acquittal of accused on the basis of perverse finding.\n<\/p>\n
\tPer contra counsel for the accused-respondents would contend
\nthat the so-called eyewitnesses are interested witnesses.  PW2-
\nChottey Lal, PW3-Ram Swarup, being the brothers of the deceased,
\ntheir testimony is not reliable and the High Court was justified in
\ndisbelieving their testimony.   He would further contend that there was
\nan enmity between the parties and the witnesses deposed falsely
\nagainst the accused because of animosity.  Counsels on both the
\nsides have taken pain in taking us through the entire judgment of the
\nHigh Court.  To say the least, the High Court did not assign any
\nreason much less ostensible reason for discarding the testimony of
\nthe eyewitnesses account.\n<\/p>\n
The submission of the counsel for the accused that the
\ntestimony of PWs cannot be acted upon, as they are the interested
\nwitnesses is to be noted only to be rejected.  By now, it is well-settled
\nprinciple of law that animosity is a double-edged sword.  It cuts both
\nsides. It could be a ground for false implication and it could also be a
\nground for assault.  Just because the witnesses are related to the
\ndeceased would be no ground to discard their testimony, if otherwise
\ntheir testimony inspires confidence. In the given facts of the present
\ncase they are but natural witnesses.  We have no reason to
\ndisbelieve their testimony.   Similarly, being the relatives, it would be
\ntheir endeavour to see that the real culprits are punished and
\nnormally they would not implicate wrong persons to the crime, so as
\nto allow the real culprits to escape unpunished.\n<\/p>\n
That apart PW1-Shridhar and PW-8 Mizazi Lal are both
\nindependent and injured witnesses.  The testimony of an injured
\nwitness has its own relevance and efficacy.   The fact that the
\nwitnesses sustained injuries at the time and place of occurrence
\nlends support to their testimony that the witnesses were present
\nduring the occurrence.  The injured witnesses were subjected to
\nlengthy cross-examination but nothing could be elicited to discredit
\ntheir testimony.\n<\/p>\n
\tCounsel for the accused contended that the prosecution fails to
\nestablish which of the accused caused fatal injuries.  This submission
\nis misconceived.   The convictions were recorded under Sections 302<\/a>
\nwith the aid of Section 34<\/a> and under Section 302<\/a> with the aid of
\nSection 149<\/a>.  It is a well established principle of law that when the
\nconviction is recorded with the aid of Section 149<\/a>, relevant question
\nto be examined by the court is whether the accused was a member of
\nunlawful assembly and not whether he actually took active part in the
\ncrime or not.  The Constitutional Bench of this Court in Masalti   Vs.
\nState of U.P., 1964 (8) S.C.R. 133 at page 148 SCR held:-\n<\/p>\n
\t   “What has to be proved against a person who is
\nalleged to be a member of an unlawful assembly is that
\nhe was one of the persons constituting the assembly and
\nhe entertained along with the other members of the
\nassembly the common object as defined by s.141, I.P.C<\/a>.
\nSection 142<\/a> provides that whoever, being aware of facts
\nwhich render any assembly an unlawful assembly,
\nintentionally joins that assembly, or continues in it, is said
\nto be a member of an unlawful assembly.  In other words,
\nan assembly of five or more persons actuated by, and
\nentertaining one or more of the common objects specified
\nby the five clauses of s. 141<\/a>, is an unlawful assembly.
\nThe crucial question to determine in such a case is
\nwhether the assembly consisted of five or more persons
\nand whether the said persons entertained one or more of
\nthe common objects as specified by s.141.”\n<\/p>\n
Further at page 149 SCR it is said:-\n<\/p>\n
“In fact, s.149 makes it clear that if an offence is
\ncommitted by any member of an unlawful assembly in
\nprosecution of the common object of that assembly, or
\nsuch as the members of that assembly knew to be likely
\nto be committed in prosecution of that object, every
\nperson who, at the time of the committing of that offence,
\nis a member of the same assembly, is guilty of that
\noffence; and that emphatically brings out the principle that
\nthe punishment prescribed by s.149 is in a sense
\nvicarious and does not always proceed on the basis that
\nthe offence has been actually committed by every
\nmember of the unlawful assembly.”\n<\/p>\n
Counsel for the respondents, strenuously urged that from the
\nevidence of the prosecution witnesses accused Ram Chandra was at
\nthe roof and instigated the accused to finish the prosecution party and
\nas such it cannot be said that the accused formed an unlawful
\nassembly to perpetrate the crime.  We are unable to countenance
\nwith this submission of the counsel. Firstly, an assembly, which was
\nnot unlawful assembly when it assembled, may subsequently become
\nan unlawful assembly.  Secondly, common object of the unlawful
\nassembly can be gathered from the nature of the assembly, arms
\nused by them and the behaviour of the assembly at or before scene
\nof occurrence.  It is an inference to be deduced from the facts and
\ncircumstances of each case.     In the instant case, the prosecution
\nevidence disclosed that it was a Raksha Bandan day when the
\nsinging was going on, the accused appeared at the scene with gun
\nand country made pistols and hockey-sticks, attacked the prosecution
\nparty and started firing indiscriminately resulting in the death of Sheo
\nRam and Mool Chand.   Deduced from the surrounding facts and
\ncircumstances of this case, it is clear that the accused did form an
\nunlawful assembly and in furtherance of that common object of the
\nunlawful assembly, crime has been perpetrated.\n<\/p>\n
The next contention of the counsel for the respondents that the
\nnon-explanation of the injuries sustained by the accused caused
\nprejudice to the accused, also deserves to be rejected. The
\nprosecution has explained that at the time of arrest the accused tried
\nto flee and in that process sustained some injuries being beaten by
\nthe arresting party. The injuries sustained by the accused were
\nsimple in nature.  This apart, it is well-settled principle of law that non-
\nexplanation of injuries sustained by the accused by the prosecution
\nwould not vitiate the trial, if the prosecution evidence against the
\naccused is so strong on the basis of which alone the conviction can
\nbe recorded.   As already noted, in the present case, out of four
\neyewitnesses two are independent and stamped witnesses.\n<\/p>\n
There is yet another contention of the counsel for the
\nrespondents, which deserves outright rejection.  Counsel would
\ncontend that after the reconstruction of the case record the
\nstatements made by the accused-respondents under Section 313<\/a>
\nCr.P.C. have not been properly considered by the Trial Court and
\nprejudice thereby has been caused to the accused-respondents.  We
\nhave gone through the judgment of the Trial Court which would show
\nthat the statements made by the accused under Section 313<\/a> have
\nbeen quoted in verbatim and the same have been considered by the
\nTrial Court in great detail.  Before the High Court, it was not the case
\nof the accused that the reconstruction of the record has not been
\ndone properly.  Conversely, the High Court in the order dated
\n7.10.1994 has recorded the total satisfaction that the reconstructed
\nrecord is proper.\n<\/p>\n
In the premises aforesaid, we are clearly of the view, that the
\nHigh Court fell in error in acquitting the accused resulting in grave
\nmiscarriage of justice.  The impugned order of the High Court is,
\naccordingly, set-aside.  The conviction recorded by the Trial Court is
\nhereby restored.  The accused-respondents Kishan Chand, Rama
\nShankar, Ram Chandra,  Gauri Shankar, and Chhotey Lal  are
\ndirected to be taken into custody forthwith. Compliance report within
\nthree weeks. The appeal is, accordingly, allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of U.P vs Kishan Chand & Ors on 20 August, 2004 Author: Sema Bench: B.N. Agrawal, H.K.Sema 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-255835","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of U.P vs Kishan Chand & Ors on 20 August, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-kishan-chand-ors-on-20-august-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of U.P vs Kishan Chand & Ors on 20 August, 2004 - 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