JUDGMENT
Imtiyaz Murtaza, J.
1. This appeal is directed against the judgment and order dated 18.4.2001 passed by Sessions Judge, Kannauj in S.T. No. 286 of 1999 convicting the appellants under Section 148 I.P.C. and sentenced to imprisonment for 3 years, under Section 302/149 I.P.C. and sentenced to imprisonment for life and under Section 323/149 I.P.C. and sentenced to imprisonment for one year.
2. Briefly stated, the prosecution case, as alleged in the first information report lodged by Hasruddin, is that about 20 days prior lo the occurrence a Marpeet took place between Musheer and Bhura and Isthkhar. A Panchayat was held which was attended by his brother Shamsuddin Pehalwan who told Bhura and Isthkhar that they have wrongly beaten Musheer. Bhura and Isthkhar had threatened him. On 9.6.1999 the informant, his brother Shamsuddin, Mainuddin, father Nasiruddin were sitting in their grove outside the village. At about 6.30 p.m. Zarif alias Bhura, Shamshad, Iqbal, Ehtasham, Isthkhar and Aiaz Hussain reached there carrying guns and country made pistols and started abusing them and told them that they are doing Netagir and they will not left them alive and started abusing. They stopped them and told not to abuse. Thereafter, Zarif and Shamshad fired from country made, pistols which hit, Shamsuddin on his chest and leg. Shamsuddin died on the spot. He, his brother Mainuddin, father Nasiruddin were also assaulted by butts of a country made pistols and they sustained various injuries. On their alarm being raised Sattar Ali and Ishtiyaq Ali and several other persons reached there and witnessed the occurrence and saved them. The accused persons abusing and threatening went towards the village and terror was created in the village. The dead body of Shamsuddin was lying on the, spot. He brought his brother Mainuddin arid father Nasiruddin to the police station and lodged the report. The report was registered on. 9.6.1999 at 8.45 p.m. The distance of the police station from the place of occurrence was 4 km.
3. After registration of the case S.I. Asharam Tripathi commenced investigation. He recorded the statement of Head Moharrir Ashok Kumar, informant Hasruddin, injured Mainuddin and Nasiruddin. The injured were referred to the Hospital for medical examination and he reached at the place of occurrence, village Ahmadpur Rauni. Oh 10.6.1999 the inquest on the dead body of the deceased was prepared by Bhau Singh on his dictation. Photo lash, challan lash, letter to C.M.O. were prepared by S.I. Bhau Singh which is Ext. Ka-9 to 12. He prepared the site plan, which is Ext. Ka-13. He also collected blood smeared and plain earth and two empty cartridges of 12 bore from the place of occurrence and recovery memo was prepared, which is Ext. Ka-14 and 15 and are in the handwriting of S.I. Bhau Singh. On 15.6.1999 he recorded the statements of Sattar Ali and Ishtiyaq Ali and witnesses of recoveries, namely, Kamruddin, Nurul, Zahid Khan, Kalim Khan and Raja Miya. The investigation was concluded by Nalneet Mishra and he submitted charge sheet against’ the accused persons.
4. The post mortem on the dead body of the deceased Shamsuddin was conducted by Dr. Ram Kumar on 10.6.1999 at 4.20 p.m. and he noted following ante mortem injuries on the person of the deceased:
1. Fire arm wound of entry 4.5 cm. x 4 cm. x chest cavity deep portion front of chest middle part mid sternum region, heart covering out from the wound, margin lacerated, minted, ecchymosed. On dissection pericardium, heard, left pleura and lung lacerated. Wading one ticklee 18 small pellets recovered in the chest cavity and organs. Direction front to back towards left side.
2. Fire arm gutter shaped wound 3 cm. x 0.4 cm. x scalp deep from top right side head 11 cm. above right ear.
3. Multiple abrasions on back both side in the area of 28 cm. x 23 cm. measuring 12 cm. x 0.5 cm. to 3 cm. x 0.2 cm
5. In the opinion of the doctor cause of death of the deceased was due to shock and haemorrhage as a result of ante mortem injuries.
6. Dr. Amit Kumar Kanauja had medically examined Mainuddin on 9.6.199 at 11 p.m. and noted the following injuries:
1. Lacerated wound 0.5 cm. x 0.5 cm. x superficial to scalp 10 cm. above to upper lobe of left ear present on left parietal region.
2. Lacerated wound 2 cm. x 0.5 cm. x superficial to scalp present on left parietal region 3 cm. forward to injury No. 1.
3. Lacerated wound 2 cm. x 0.2 cm. x superficial to scalp on top of skull.
4. Lacerated wound 3.5 cm. x 0.5 cm. x skin deep present on left side forehead just above to lateral side of left,. eye.
5. Lacerated wound 2.5 cm. x 0.5 cm. x muscle deep present on left side cheek.
6. Abrasion 3 cm. x 0.5 cm present on back of neck.
7. Contusion 5 cm. x 0.5 cm. present on post surface of left forearm 3 cm. above to wrist joint.
8. Contusion 4 cm. x 2 cm. present on post surface of right forearm in middle point.
7. In the opinion of the doctor all the injuries were simple and caused by hard and blunt object.
8. Dr. Amit Kumar Kanaujia had medically examined Hasruddin on 9.6.199 at 1 1.25 p.m. and noted following injuring:
1. Lacerated wound 4 cm. x 0.5 cm. x scalp deep present on left parietal region 8 cm. above to left ear.
2. Lacerated wound 2.5 cm. x 0.3 cm. x scalp deep present on left parietal region 0.5 cms parallel to injury No. 1.
3. Abrasion 2 cm. x 0.5 cm. present ort left side chest 4 cm. medial to left nipple.
4. Abrasion 4.5 cm. x 3 cm. present on later aspect of right arm 6 cm. above to elbow.
5. Abrasion 1.5 x 1 cm. present on right side back 8cm below to inferior angle of right scapula.
9. In the opinion of the doctor all the injuries were simple and caused by hard and blunt object.
10. Dr. Amit Kumar Kanaujia had medically examined Nasiruddin on 9.0.199 at 11.15 p.m. and noted following injuries:
1. Abraded contusion 1.5 cm. x 1 cm. present on top of skull.
2. Lacerated wound 2 x 0.5 cm. x scalp deep present on right parietal region 7 cm. above to right ear.
3. Lacerated wound 2.5 cm. x 0.3 cm. x scalp deep present on 2 cm. behind injury No. 2.
4. Abraded contusion 1.5 cm. x 1 cm. present occipital region 1 cm. above to occipital notch.
5. Contusion 10 cm. x 4 cm. present on lateral surface of left shoulder.
6. Abrasion 1.5 cm. x 1 cm. present on right side: chest 7 cm. lateral to right nipple.
7. Lacerated wound 0.5 cm. x 0.5 cm x superficial present on post surface of upper forearm right near elbow.
11. In the opinion of the doctor all the injuries were simple and caused by Lard and blunt object.
12. After submission of the charge sheet case was committed to the court of Session and the Session Judge framed charge under Section 14K, 302/149 and 307/149 I.P.C. The case of the defence was of denial and false implication and they did not examine any witness in their defence. It was suggested that it was a case of dacoity and appellants have been falsely implicated in this case on account of previous enmity.
13. We have heard learned Counsel for the appellant Shri N. 1. Jafri and Begum Sabeeha Kamal and the learned A.G.A. for the State.
14. Learned Counsel for the appellants has challenged the findings of the trial court on various grounds. It was sumbmitted that the appellants have falsely been implicated in this case on account of previous enmity. It was a case of dacoity in the dark hours and the place of occurrence Had been shifted from the house of the complainant to a grove outside abadi. The prosecution did not examine independent witnesses Sattar Ali, Ishtiyaq Ali and Musheer who were present at the time of occurrence. Learned Counsel further submitted that the presence of the witnesses examined by the prosecution is highly doubtful. There is conflict in medical and direct evidence. The injuries of the injured were also disputed as they had sustained only simple injuries, which could easily be manufactured. It was also submitted that there was no immediate motive for participation of the accused persons in this occurrence. Lastly, it was submitted that all the appellants cannot be convicted under Section 302/149 I.P.C., as the role of firing assigned to only two persons and the allegations against the rest of the accused was of assaulting with the butts of country made pistols which resulted only in simple injuries and they should had been convicted under Section 323 I.P.C. only.
15. On the contrary, learned A.G.A. submits that the occurrence took place in the month of June at 6.30 p.m. and there was sufficient light. There was no doubt about the identity of the accused as all the accused were previously known to the witnesses. The report was also promptly lodged. The occurrence took place at 6.30 p.m. on 9.6.1999 and the report had been lodged at 8.45 p.m. The distance of the police station was only 4 km. from the place of occurrence. The presence of witnesses cannot be doubted because the injured were examined after registration of the first information report.
16. In order to appreciate the rival contentions of the learned Counsels it is necessary to examine the evidence on record.
17. P.W. 1 Hasruddin is the informant of the case and he is brother of the deceased. He deposed that occurrence is of 9.6.1999 at 6.30 p.m. He was present at his field along with his brother Shamsuddin, Mainuddin and father Nasiruddin. They were sitting. On the cot Shamshad, Bhura, Isthkhar, Ehtasham, Iqbal, and Aiaz reached there. Bhura and Shamshad were armed with Guns and rest of the accused were carrying country made pistols. They started abusing and told them that they are doing Netagiri and they will not be left alive. Shamsuddin, Pehalwan stopped them from abusing. Shamshad fired a shot at Shamsuddin. The other shot was fired by Bhura. Both the shots hit the deceased and he died on account of these injuries. Ehtasham, Isthkhar, lqbal and Aiaz assaulted him, Mainuddin and Nasiruddin with the butts of their country made pistols and all the three persons sustained injuries. They raised alarm. Ishtiyaq Ali and Sattar Ali also reached there. He lodged the report at the police station, which is Ext. Ka-1. The investigating officer had recorded his statement at the police station. He, his brother and father were sent to Hospital for medical examination. In the morning inquest on the dead body was prepared and dispatched for the post mortem examination. About 20 days prior to this occurrence Isthkhar and Bhuray assaulted Musheer and a Panchayat was held regarding this Marpeet and his brother Shamsuddin also attended this Panchayat. He told Bhura and isthkhar that they had wrongly beaten Musheer. At that time they had threatened him. The place of occurrence is about a furlong from the village.
18. PW. 2 Mainuddin deposed that occurrence had taken place at 6.30 p.m. He was present in his field near the grove. He, his brother Shamsuddin, father Nasiruddin and Hasraddin were sitting on the cot. Bhura alias Zarif, Shamshad, Ehtasham, Isthkhar, Iqbal and Aiaz reached there. Bhura and Shahshad were carrying Guns and rest of the accused were armed with country made pistols. They started abusing and Shamsuddin stopped them and told them not to abuse. They told that he does Netagiri and he will hot be left, alive. Shamshad had fired at Shamsuddin which hit him on his chest and the shot tired by Bhura hit Shamsuddin on his head. Shamsuddin fell in the Held and died. Isthkhar, Iqbal, Ehtasham and Aiaz assaulted them with the butt of country made pistols and they also sustained injuries, Ishtiyaq Ali and Sattar Ali also reached there and accused persons ran away. He was also medically examined in the Hospital.
19. P.W. 3 Dr. Ram Kumar conducted the post mortem of the deceased and he deposed that the injuries were sufficient in ordinary course of nature to cause death.
20. P.W. 4 constable Ashok Kumar deposed that he was posted as a Mead Moharrir and on 9.6.1999 at 8.45 p.m. a report was lodged by Hasruddin. He prepared the chik F.I.R. which is Ext. Ka-3 and G.I). entry is Ext. Ka-4.
21. P.W. 5 Dr. Amir Kumar Kanaujia had medically examined the injured and prepared the injury reports which are Ext. Ka-5,6 and 7 He deposed that the injuries of the injured could be caused on 9.6.1999 at 6.30 p.m.
22. P.W. 6 Nulnit Misra had concluded the investigation and submitted the charge sheet.
23. P.W. 7 Asha RamTripathi investigated the case.
24. We find no force in the first submission of learned Counsel for the appellant that it was a case of Dacoity in the darkness and the place of occurrence has been shifted as there was nothing on the record to show that it was a case of Dacoity. There was no suggestion that any article was looted from the house. It was only suggested to the investigating officer that the deceased and injured had sustained injuries during the course of Dacoity. It is also important to mention that the report has been lodged very promptly in this case. The eyewitness account is supported by the injured witnesses. Their injuries are proof of their presence at the time of occurrence. The place of occurrence is also proved by the testimonies of the witnesses and recovery of blood stained earth from the place of occurrence.
25. The next submission of the learned Counsel for the appellant is that prosecution did not examine Ishtiyaq Ali, Sattar Ali and Musheer who are alleged to be present at the time of occurrence. We do not find any substance in this submission also because there was no purpose in multiplying the witnesses of fact, when the eyewitness account was given by the injured witnesses. It is settled by a catena of cases by the Apex Court that the evidence of eyewitnesses cannot be rejected merely because they are related. In the case of Appabhai v. State of Gujrat reported in 1988 (Supp.) SCC 241 the Apex Court has observed as under:
Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with, which the investigating agency has to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror-stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner.
26. It is further submitted that there is conflict in the testimonies of the witnesses regarding place of occurrence. It was pointed out that in the first information report it was mentioned that the deceased and the witnesses were assaulted when they were sitting in their grove, P.W. 1 Hasruddin stated that at the time of occurrence he was present in his field. In 161 Cr.P.C. statement he stated that he informed the Inspector that they were sitting in their field outside the gi we. lie could not tell the reason as to why the investigating officer mentioned in his statement that they were sitting in the grove. P.W. 2 Mainuddin deposed that lie was present in his field near the grove. In our opinion there is no such contradiction to doubt the place of occurrence because the witnesses deposed that their field is of 4 Bighas and there is a grove also in that field, In the site plan the investigating officer mentioned that the grove and field are part of the same plot and there is not much difference in the description of the place of occurrence in the first information report if it was mentioned that they were present in the grove. The place of occurrence is also proved by the recovery of blood smeared earth and recovery of two empty cartridges of 12 bore from the place of occurrence.
27. It is further submitted that there was no immediate motive for the accused persons for committing the offence. We do not find any substance in thus submission because the case of the prosecution from the beginning is that about 2 months prior to the occurrence one Musheer was assaulted by Bhura and Isthkhar and thereafter a Panchayat was held in which the deceased had told Bhura and Isthkhar that they had wrongly beaten Musheer and this was the alleged motive of the crime. If the incident in question as projected by the prosecution is to be accepted then the presence or absence of a motive or strength of the said motive by itself also will not make the prosecution case weak.
28. It is fun her submitted by the learned Counsel for the appellants that the presence of the witnesses at the time of occurrence is doubtful. In the first information report n was specifically mentioned that the deceased had sustained injuries on his chest and leg but in the post mortem report no injury was found on the leg of the deceased and the witnesses have changed their version and stated that the shot fired by Bhura hit deceased on his head. We do not find any force in this submission because P.W. 1 in his deposition had stated that he hail mentioned that the deceased had received injuries on his leg because blood was found on his leg. We find that this explanation is truthful because in the inquest report also the investigating officer mentioned blood on the leg of the deceased. Moreover, the present of the informant cannot be doubted because he also sustained injuries in the occurrence.
29. Lastly, it was submitted that the Sessions Judge wrongly convicted all the appellants under Section 302 I.P.C. with the aid of Section 149 I.P.C. According to the prosecution role of firing was assigned to Zaril and Shamshad and it was submitted that Iqbal, Ehtesham andlstikhar and Ayaz did not assault the deceased and they could not have been convicted under Section 302 I.P.C. We do not find any substance in this submission. The appellants are convicted under Section 302. I.P.C with the aid of Section 149 I.P.C. Section 149 of they Penal Code provides for vicarious liability. If an offence is committed by any member of an unlawful assembly in prosecution of a common object thereof or such as the members of that assembly knew that the offence is likely to be committed in prosecution of that object, every person who at the time of committing that of fence was member would be guilty of the offence committed.
30. In the case of Rabindra Mahto v. State of Jharkhand the Apex Court has held that the basis of constructive guilt under Section 149 I.P.C. is mere membership of an unlawful assembly under Section 149 I.P.C., if the accused is a member of an unlawful assembly, the common object of which is to commit a certain crime and such a crime is committed by one or ore of the members of that assembly, every person who happens to be a member of that assembly would be liable for the commission of the crime being a member of it irrespective of the fact whether he has actually committed the criminal act or not.
31. We have carefully examined the testimonies of PW. 1 Hasrutddin, P.W. 2 Moinuddin who have fully supported the prosecution case and their testimony inspires full confidence. The presence of both the witnesses cannot be doubted because P.W. 1 Hasrutddin had sustained 5 injuries and P.W. 2 Mainuddin has sustained 8 injuries. They have described the prosecution version in a most natural manner. The eyewitness account is also corroborated by the medical and post mortem examination. Both were subjected to extensive cross-examination but nothing could be elicited to discredit their testimony. There was previous enmity about an incident occurred about 20 days prior to the occurrence. All the: accused persons formed an unlawful assembly armed with Gun. Country made Pistols and came to the grove of the deceased and Zarif and Shamshad fired from their weapons and the witnesses were also assaulted. The occurrence took place at 6.30 p.m. in the mouth of June when there was sufficient light and there could be no doubt about the identity of the assailants who were enmical and previously known to the witnesses. The Sessions Judge had rightly recorded the findings of conviction against the appellants and we also concur with the same.
32. For the reasons stated above, the appeal is dismissed. The conviction and sentences of the appellants awarded by the trial court is affirmed. The appellants Zarif Alias Bhura, Shamshad arc in jail. They shall be kept there to serve out the sentences awarded by the trial court and affirmed by us. The appellants Iqbal, Ehtasham, Isihkhar, and Aiaz Husain are on bail. The C.J.M., Kannauj is directed to take the appellants into custody forthwith on receipt of a copy of this judgment and send them to jail to serve out the sentences awarded by the trial court and affirmed by us.
33. Office is directed to communicate this order to the concerned court within fifteen days for compliance.