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AFR

Court No. 48

Reserved on: 27.09.2019

Delivered on: 14.11.2019

CRIMINAL APPEAL No. 3574 of 2015

1. Binnu Srivastava @ Pawan Srivastava

2. Pawan Srivastava @ Prakash --Appellants

Vs

State of Uttar Pradesh --Respondent

WITH

CRIMINAL APPEAL No. 4045 of 2015

Santosh Kumar Yadav @ Kariya ----Appellant

Vs

State of Uttar Pradesh ----Respondent

WITH

CRIMINAL APPEAL No. 4046 of 2015

Santosh Kumar Yadav @ Kariya ----Appellant

Vs

State of Uttar Pradesh ----Respondent

WITH

CRIMINAL APPEAL No. 3657 of 2015

1. Raj Nath Yadav.

2. Atul Kumar Yadav.

3. Prashant Yadav.

4. Rahul Rawat.

5. Sandeep Rawat @ Rinku. ----Appellants

Vs

State of Uttar Pradesh ----Respondent

_________________________________________________

For Appellants : Sri V.P. Srivastava, Senior Advocate,

assisted by Sri Lav Srivastava,Advocate

For Respondent/State : Sri J.K. Upadhaya, learned AGA.

________________________________________________________

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Hon'ble Pritinker Diwaker, J.

Hon'ble Raj Beer Singh, J. Per:

Per: Raj Beer Singh,J

1. All these appeals arise out of a common judgment and order dated

18.08.2015 passed by the learned Additional Sessions Judge/Fast

Track, Bhadoi-Gyanpur in Session Trial No.106 of 2008 (State Vs.

Binnu Srivastava @ Pawan Srivastava and 7 others), under Sections

147, 302, 149 of I.P.C., and S.T. No. 07/09, under Section 25 Arms Act,

both P.S. Gyanpur, District Bhadohi, whereby accused-appellants

Binnu Srivastava @ Pawan Srivastava, Pawan Srivastava @ prakash,

Raj Nath Yadav, Atul Kumar Yadav @ Bhunwar, Santosh Kumar Yadav

@ Kariya, Sandeep Rawat @ Rinku, Rahul Rawat and Prashant Yadav

have been convicted under Section 147 and 302/149 of I.P.C. and were

sentenced to imprisonment for life along with fine of Rs. 25,000/- each

under Section 302/149 of I.P.C. and two years rigorous imprisonment

along with fine of Rs. 2000/- under Section 147 of I.P.C. Accused-

appellant Santosh Kumar Yadav @ Kariya was further convicted under

Section 25 of Arms Act and was sentenced to 5 years rigorous

imprisonment along with fine of Rs. 5000/-. In default of payment of

fine, accused-appellants were sentenced to different period of

imprisonment.

2.Prosecution version is that on 20.06.2008 at around 12.00 noon,

deceased Raj Kumar, who was brother of complainant Manoj Kumar

Yadav, has left his home for going to Gyanpur by motorcycle and when

he reached near veterinary hospital, accused-appellants Binnu

Srivastava @ Pawan Srivastava, Pawan Srivastava @ Prakash, Raj

Nath Yadav, Atul Kumar Yadav @ Bhunwar, Santosh Kumar Yadav @

Kariya and Sandeep Rawat @ Rinku, riding on two motorcycles,

stopped deceased Raj Kumar. Accused-appellants Rahul Rawat and

Prashant Yadav were already present there. All these accused persons

made exhortation to kill Raj Kumar and consequently accused-

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appellant Santosh Kumar Yadav @ Kariya shot a bullet at the head of

deceased Raj Kumar from country made pistol. Resultantly, Raj Kumar

died on spot. This incident was witnessed by complainant (PW-1)

Manoj Kumar Yadav, (PW-2) Bhola and by several other persons.

3.(PW-1) Manoj Kumar Yadav reported the matter to police by

submitting a written complaint Ex.Ka-1 and on that basis, case was

registered against all the 8 accused-appellants on 20.06.2008 at 12.30

P.M. under Sections 147, 149, 302 of I.PC. vide Ex.Ka-4.

4.The inquest proceedings were conducted by S.I. Biri Singh under

the supervision of Inspector Umesh Pratap Singh. The dead body of

deceased was sent for postmortem, which was conducted on

20.06.2008 by (PW-4) Dr. Rajeev Kumar. Following injuries were

found on the body of the deceased:

(i) Wound of entry 1.5 cm. x 0.5 cm. in

longitudinal place. 15 cm. above vertically from

lat. end and left eyebrow and 7 cm. up and med

form. Tragus over lat. half and (L) frontal area.

bleeding and shout particle implemented over

skin around wound in 5 cm. X 6 cm. diameter

upper (L) eye and blackening C earbon particle

(L) eye brow. Lat. 2/3 hair show seizing 3 cm. x 3

cm. area around wound show scarching blood

present. margins and wound inverted.

(ii)Exit wound 2 cm. x 1 cm over Rt.

Temporal area just above the superior attachment

of Rt Pinna to scalp and 6 cm Horizontally back

from lat eye of Rt. eye brow, margin ever feet,

bleeding occur.

Cause of death of deceased is shock and

hemorrhage, as a result of ante-mortem injury

caused by firearm.

5.Investigation was taken up by (PW-6) Inspector Umesh Pratap

Singh. Samples of blood stained and simple Gitti and Kankar were

collected from the spot vide memo Ex.Ka-7. It was alleged that after

the incident, stampede has taken at the spot and six pairs of sleeper

were seized from the spot. During investigation, on 21.10.2008, while

being on police custody remand, accused-appellant Santosh Kumar

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Yadav @ Kariya got recovered country made pistol of 315 Bore, which

was used in the incident, and it was taken into possession vide recovery

memo Ex.Ka-15. After completion of the investigation, charge sheet

was filed against all the accused-appellants.

6.Learned trial court framed charge under Section 147, 302/149 of

I.P.C. against all the accused-appellants and accused-appellant Santosh

Kumar Yadav @ Kariya was further charged under Section 25 of the

Arms Act. They pleaded not guilty and claimed trial.

7.In order to bring home guilt of accused-appellants, prosecution

has examined 10 witnesses. Accused persons were examined under

Section 313 of Cr.P.C., wherein they have denied the prosecution

evidence and claimed false implication. In defence, one Rakesh Maurya

was examined as (DW-1).

8.After hearing and analyzing the evidence on record, all the

accused persons were convicted under Sections 147, 302/149 of I.P.C.

and accused-appellant Santosh Kumar Yadav @ Kariya was further

convicted under Section 25 of Arms Act vide impugned judgment and

order dated 18.08.2015 and they were sentenced, as stated in paragraph

no.1 of this judgment.

9. Being aggrieved by the impugned judgment and order of the trial

court, appellants Binnu Srivastava @ Pawan Srivastava and Pawan

Srivastava @ Prakash have preferred Criminal Appeal No. 3574 of

2015, accused-appellant Santosh Kumar Yadav @ Kariya has preferred

Criminal Appeal Nos. 4045 of 2015 and 4046 of 2015, and appellants

Raj Nath Yadav, Atul Kumar Yadav, Prashant Yadav, Rahul Rawat and

Sandeep Rawat @ Rinku have preferred Criminal Appeal No. 3657 of

2015. As all these appeals have been preferred against common

judgment and order thus, these appeals are being decided by this

common order.

10.Heard Sri V.P. Srivastava, Learned senior Advocate, assisted by

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Sri Lav Srivastava, Advocate, learned counsel for the appellants and

Sri J.K. Upadhaya, learned A.G.A. for the State and perused the record.

11.Learned Senior counsel for the appellants submits:

(i) that presence of (PW-1) Manoj Kumar Yadav, (PW-2)

Bhola and (PW-3) Amit Kumar Rawat at the alleged spot is

doubtful. In the FIR there is no such version that how (PW-1)

Manoj Kumar Yadav and (PW-2) Bhola have reached at the

spot and it was not clarified that where were they going.

Further the name of (PW-3) Amit Kumar Rawat does not find

place in the FIR.

(ii)that all the alleged eye witnesses (PW-1) Manoj Kumar

Yadav, (PW-2) Bhola and (PW-3) Amit Kumar Rawat are

interested and inimical witnesses. (PW-1) Manoj Kumar Yadav

is brother of deceased Raj Kumar while (PW-2) Bhola is uncle

of deceased and that all these three witnesses were accused in

an earlier incident of murder of the father of accused-appellant

Santosh Kumar Yadav. It is also stated that statement of (PW-2)

Bhola and (PW-3) Amit Kumar Rawat under Section 161

CrPC, were recorded with undue delay, which has not been

explained.

(iii)that spot of the alleged incident could not be established.

As per FIR, the incident took place near veterinary Hospital,

while in site plan, the alleged hospital has not been shown and

the spot of the incident has been shown in front of the shop of

Anoop Electrical. It was stated that (PW-1) Manoj Kumar

Yadav has categorically stated that alleged incident took place

near veterinary hospital, while as per the Investigating Officer,

the veterinary Hospital is situated at quite long distance from

the spot of the incident as shown in the site plan. It is further

pointed out that in his cross examination (PW-2) Bhola had

stated that deceased was stopped and fired near Home Guard

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Commandant Office.

(v)that there are contradictions and inconsistencies in the

statements of witnesses. As per prosecution version, deceased

was going on motorcycle, but his motorcycle was not found on

the spot. As per prosecution version, deceased has died on the

spot but when the police reached at the spot, his body was lying

in Hospital.

(vi)that there is no evidence that all the accused-appellants

were having common intention to commit murder of deceased.

It was submitted that there is absolutely nothing to indicate that

accused-appellants were aware that deceased would pass from

the way, where allegedly incident took place. Further, even as

per prosecution version, accused-appellants Rahul Rawat and

Prashant Yadav were already present at the spot, but there is

nothing even to remotely indicate that these accused persons

were aware that deceased would pass from there. It is submitted

that there is absolutely no evidence that all the accused persons

have any pre-arranged plan to commit murder of the deceased.

Version of the prosecution that all the accused persons have

made exhortation is quite vague. Even, it has not been clarified

that what specific exhortation was made by each of the

accused persons. It was submitted that in view of all these facts,

it is clear that it is not a case, where all the accused-appellants

have common intention to commit murder of deceased.

12.Per contra, it has been submitted by the learned A.G.A. that all

the eye witnesses have made clear and cogent statements regarding the

incident. The testimony of these witnesses can not be doubted on the

ground that they are related to deceased or that they were earlier

accused in the murder of the father of accused-appellant Santosh

Kumar Yadav @ Kariya. Enmity is double edged weapon and thus,

alleged enmity may be motive to commit murder of deceased. (PW-1)

Manoj Kumar Yadav has lodged prompt first information report

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naming all the accused-appellants and his version finds ample

corroboration from (PW-2) Bhola and (PW-3) Amit Kumar Rawat. It

was submitted that substantially there is no change in the spot of

incident. If a person refers that incident took near some well known

place, it does not mean that he intended to say that incident has taken

place just at that point but his reference would cover entire vicinity of

that place. Regarding common object, it was argued that there is

evidence that all accused-appellants have made exhortation to kill

deceased and as a consequence of the same, accused-appellant Santosh

Kumar Yadav @ Kariya has fired a bullet at deceased and thus murder

of deceased was committed in furtherance of common intention of all

accused-appellants.

13.We have considered the rival contentions of of both the parties

and perused record.

14.In evidence, (PW-1) Manoj Kumar Yadav stated that the incident

took place on 20.06.2008 at 12.00 noon. There was property dispute

between his family and of accused-appellant Santosh Yadav. Earlier in

2005 the family members of Santosh Yadav have given beatings to his

family in which his brother Raj Kumar was injured and in that regard a

case was pending in court. On 20.06.2008 his brother Raj Kumar

(deceased) was going to Gyanpur by motorcycle while (PW-1) Manoj

Kumar Yadav and his brother Rakesh were going to Gyanpur on foot.

Accused-appellants Binnu Srivastava, Pawan Srivastava and Raj Nath

Yadav on one motorcycle and accused-appellant Atul Kumar Yadav,

Santosh Kumar Yadav and Sandeep Rawat @ Rinku on another

motorcycle, were also going towards Gyanpur. Near veterinary

hospital, accused-appellants encircled motorcycle of deceased Raj

Kumar and made exhortation to kill Raj Kumar and consequently

accused-appellant Santosh Kumar Yadav fired a bullet from country

made pistol, which hit at the head of deceased Raj Kumar. Thereafter

an atmosphere of stampede has prevailed. The incident was witnessed

by him (PW-1), his brother Rakesh, one Bholanath Yadav and by many

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others. Raj Kumar has died at spot. (PW-1) Manoj Kumar Yadav

further stated that accused-appellants Rahul Rawat and Prashant Yadav

were already present at spot and they have stopped the deceased and

also exhorted to kill the deceased.

15.(PW-2) Bhola stated that on account of land dispute between

family of deceased and of accused-appellant Santosh Yadav, in 2005 an

scuffle has taken place and in that regard a case was pending in court.

On 20.06.2008 at 12.00 noon when he (PW-2) was going to market,

near home guard office, he saw that deceased Rajkumar was going

towards market on motorcycle. Deceased was stopped by Rahul and

Prasant and at the same time accused Binnu, Raj Nath Yadav and

Pawan came on one motorcycle, while accused Rinku, Atul and

Santosh came on another motorcycle and they all made exhortation to

kill Raj Kumar and consequently accused Santosh Kumar Yadav @

Kariya fired from country made pistol by touching it at the head of

deceased Raj Kumar. Raj Kumar fell down and an stampede took place.

Manoj, Rakesh and others ran to save the deceased but accused

threatened to kill them. After that all accused persons ran away.

16.(PW-3) Amit Kumar Rawat has stated that his alias name is Anil

Kumar and he runs an auto parts shop at Gyanpur – Gopiganj road and

it is situated at a distance of 300-400 yards from veterinary hospital. On

20.06.2008 at around 12.00 noon while he was sitting outside his shop,

he saw Raj Kumar (deceased) was going towards Gyanpur by

motorcycle. On two motorcycles, six accused persons came from

behind. Accused-appellants Pawan, Binnu and Rajnath Yadav were on

one motorcycle and accused-appellants Sandeep, Atul and Santosh

Kumar were on another motorcycle and they all followed Rajkumar.

As Raj Kumar started moving towards Gyanpur, accused Prashant and

Rahul, who were already standing there, stopped Raj Kumar from front

side while remaining six accused-appellants came from behind and

they exhorted to kill Raj Kumar. Accused-appellant Santosh Kumar

Yadav @ Kariya took out a country made pistol and fired a bullet at

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head of Raj Kumar. Some persons ran to save deceased but accused-

appellants threatened to kill them too. Raj Kuar has died of fire arm

injury.

17.(PW-4) Dr Rajiv Kumar has conducted postmortem on dead

body of deceased and has duly proved the postmortem report Ex.ka-3.

18.(PW-5) Constable Radhey Shyam Bharti has recorded first

information report.

19.(PW-6) Inspector Umesh Pratap Singh has conducted initial

investigation while further investigation was conducted by (PW-7)

SHO Ram Manorath Thapa.

20.(PW-8) H.M. Kedar Nath Tiwari has recorded FIR of Arms Act

and deposed regarding recovery of country made pistol from accused-

appellant Santosh Kumar. (PW-9) S.I. Ramchandra Tiwari has

conducted investigation of case under Arms Act against accused-

appellant Santosh Kumar. (PW-10) S.I. Ram Krishna Rastogi has

conducted part investigation of case under Arms Act.

21.So far as the contention, that (PW-1) Manoj Kumar Yadav and

(PW-2) Bhola are interested witnesses or that these witnesses have not

explained that how they reached at spot, is concerned, it is well settled

position that a natural witness may not be labelled as interested witness.

Interested witnesses are those who want to derive some benefit out of

the litigation/case. In case, the circumstances reveal that a witness was

present on the scene of occurrence and had witnessed the crime, his

deposition cannot be discarded merely on the ground of being closely

related to the victim. Generally close relations of the victim are

unlikely to falsely implicate anyone. Relationship is not sufficient to

discredit a witness unless there is motive to give false evidence to spare

the real culprit and falsely implicate an innocent person is alleged and

proved. A witness is interested only if he derives benefit from the result

of the case or as hostility to the accused. In case of State of Punjab Vs

Hardam Singh, 2005, S.C.C. (Cr.) 834, it has been held by the Apex

Court that ordinarily the mere relations of the deceased would not

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depose falsely against innocent persons so as to allow the real culprit to

escape unpunished, rather the witness would always try to secure

conviction of real culprit. In the case of Dilip Singh Vs State of Punjab,

A.I.R. 1953, S.C. 364, it was held by the Supreme Court that normally

a witness is considered independent unless he or she springs from

sources which are likely to be tainted and that usually means unless

witness has cause, such as enmity against accused to which to implicate

falsely. Similar view has been taken by the Supreme Court in

Harbans Kaur V State of Haryana, 2005, S.C.C. (Crl.) 1213; and in

State of U.P. vs. Kishan Chandra and others, 2004 (7), S.C.C. 629. The

contention about branding the witnesses as 'interested witness' and

credibility of close relationship of witnesses has been examined by

Apex Court in number of cases. A close relative, who is a very natural

witness in the circumstances of a case, cannot be regarded as an

'interested witness', as held by the Supreme Court in Dalbir Kaur v.

State of Punjab, AIR 1977 SC 472. The mere fact that the witnesses

were relations or interested would not by itself be sufficient to discard

their evidence straight way unless it is proved that their evidence

suffers from serious infirmities which raises considerable doubt in the

mind of the court. Similar view was taken in case of State of Gujrat v.

Naginbhai Dhulabhai Patel, AIR 1983 SC 839. Similarly in

Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following

observations were made by the Apex Court:

"The requirement of law is that the testimony of inimical

witnesses has to be considered with caution. If otherwise

the witnesses are true and reliable their testimony

cannot be thrown out on the threshold by branding them

as inimical witnesses. By now, it is well-settled principle

of law that enmity is a double- edged sword. It can be a

ground for false implication. It also can be a ground for

assault. Therefore, a duty is cast upon the court to

examine the testimony of inimical witnesses with due

caution and diligence."

Similarly, in Piara Singh and Ors. Vs. State of Punjab [AIR

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1977 SC 2274 = (1977) 4 SCC 452], the Court held:

"It is well settled that the evidence of interested or

inimical witnesses is to be scrutinised with care but

cannot be rejected merely on the ground of being a

partisan evidence. If on a perusal of the evidence the

Court is satisfied that the evidence is creditworthy there is

no bar in the Court relying on the said evidence."

In Hari Obula Reddy and Ors. Vs. The State of Andhra

Pradesh, (1981) 3 SCC 675, a three-judge Bench of Apex Court

observed:

".. it is well settled that interested evidence is not

necessarily unreliable evidence. Even partisanship by itself

is not a valid ground for discrediting or rejecting sworn

testimony. Nor can it be laid down as an invariable rule

that interested evidence can never form the basis of

conviction unless corroborated to a material extent in

material particulars by independent evidence. All that is

necessary is that the evidence of interested witnesses should

be subjected to careful scrutiny and accepted with caution.

If on such scrutiny, the interested testimony is found to be

intrinsically reliable or inherently probable, it may, by

itself, be sufficient, in the circumstances of the particular

case, to base a conviction thereon."

A survey of the judicial pronouncements of Apex Court on this

point leads to the inescapable conclusion that the evidence of a closely

related witnesses is required to be carefully scrutinised and appreciated

before any conclusion is made to rest upon it, regarding the

convict/accused in a given case. Thus, the evidence cannot be

disbelieved merely on the ground that the witnesses are related to each

other or to the deceased. In case the evidence has a ring of truth to it, is

cogent, credible and trustworthy, it can, and certainly should, be relied

upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P.

Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State

of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10

SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu,

(2012) 12 SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy & Ors.,

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(2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52)."

In view of the aforesaid exposition of law, this Court would only

be required to carefully scrutinize and appreciate the evidence of

closely related witnesses before arriving at any conclusion. However,

their evidence cannot be disbelieved only on the ground that these

witnesses are related to each other or to the deceased and when the

evidence has a ring of truth as being cogent, credible and trustworthy,

as has already been discussed herein above.

In the present case, it is correct that (PW-1) Manoj Kumar Yadav

is brother of deceased and (PW-2) Bhola is uncle of deceased, but these

witnesses have consistently deposed about their presence at spot. As per

(PW-1) Manoj Kumar Yadav, at the time of incident, he was going to

Gyanpur on foot. As per (PW-2) Bhola, he was going to market and in

the way he witnessed the incident. It was day time. They have been

subjected to cross-examination, and so far as their presence at spot is

concerned, no such adverse effect could emerge, so as to make the

presence of these witnesses at the scene of offence, doubtful. Version of

(PW-1) Manoj Kumar Yadav has been amply corroborated by (PW-2)

Bhola. One of the important aspect is that (PW-1) Manoj Kumar Yadav

has lodged first information report without any undue delay. In view of

all these facts, it can not be said that (PW-1) Manoj Kumar Yadav and

(PW-2) Bhola have not explained as to how they reached at spot. Thus,

the contention of learned counsel for the accused-appellants has no

force.

It is correct that there was enmity between the parties on account

of murder of father of accused Santosh Kumar Yadav, however, it is

well repeated remark in criminal matters that enmity is a double edged

weapon and it cuts both ways. On the one hand, it may be a reason for

false implication while on the other hand, it may also provide a motive

for commission of offence. Thus, the requirement in such matters is

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that evidence must be scrutinized carefully in order to ascertain

whether there is any possibility of false implication on account of

enmity. It would be pertinent to mention here that in ordinary course a

close relative of deceased would not implicate an innocent person,

sparing the actual assailants.

22.In the instant case, scrutiny of evidence shows that so far as

accused-appellant Santosh Kumar Yadav is concerned, specific role of

firing at deceased has been assigned to him. (PW-1) Manoj Kumar

Yadav and (PW-2) Bhola have consistently deposed that it was the

accused-appellant Santosh Kumar Yadav, who has fired at the deceased.

Regarding his role, no major contradiction or inconsistency could be

pointed out in statement of (PW-1) Manoj Kumar Yadav. His statement

is consistent with the medical evidence and corroborated by (PW-2)

Bhola. First information report was lodged by (PW-1) Manoj Kumar

Yadav without any delay, wherein specific role of firing was assigned

to accused-appellant Santosh Kumar Yadav. No doubt there was delay

in recording statement of (PW-2) Bhola and (PW-3) Amit Kumar

Rawat under Section 161 CrPC, but so far as (PW-2) Bhola is

concerned, his name figures in first information report as witness,

which was lodged without any delay. Further the investigating officer

was not asked about reasons of delay in recording his statement. Once

in the first information report, (PW-2) Bhola was shown as witness, it

was duty of investigating officer to record his statement promptly.

There is no such material on record that after the incident this witness

was not available for his statement. In view of these facts, testimony of

(PW-2) Bhola can not be doubted on ground of delay in recording his

statement. Mere delay in recording statement of witness does not

necessarily discredit testimony. The Court may rely on such testimony

if they are cogent and credible and the delay is explained to the

satisfaction of the Court. [See Ganeshlal v. State of Maharashtra (1992)

3 SCC 106; Mohd. Khalid v. State of W.B. (2002) 7 SCC 334; Prithvi

(Minor) v. Mam Raj (2004) 13 SCC 279 and Sidhartha Vashisht @

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Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1]. However, so

far (PW-3) Amit Kumar Rawat is concerned, his statement was

recorded with much delay on 13.07.2008 and he was not shown as

witness in the first information report and thus, it does not appear safe

to rely his testimony. Except the fact that it would not be safe to rely

testimony of (PW-3) Amit Kumar Rawat, we do not find any force in

contentions raised by learned senior counsel.

23.It was next argued that spot of the alleged incident could not be

established. As per FIR, the incident took place near veterinary

Hospital, while in site plan, the alleged hospital has not been shown

and the spot of the incident has been shown in front of the shop of

Anoop Electrical. It was stated that (PW-3) Amit Kumar Rawat has

categorically stated that alleged incident took place near veterinary

hospital, while as per Investigating Officer, the veterinary Hospital is

situated at quite long distance from spot of the incident as shown in the

site plan. It was further pointed out that in his cross examination (PW-

2), Bhola has stated that deceased was stopped and fired near Home

Guard Commandant Office.

24.Regarding these contentions it may be seen that as per version in

first information report, the incident took place near veterinary hospital.

It does not mean that incident took place just in front of that hospital.

Purport of using word 'near' may vary person to person in terms of

distance. As per site plan, spot of incident has been shown opposite to

shop of Anoop Electrical but investigating officer (PW-6) Umesh

Pratap Singh has stated that veterinary hospital is situated in north side

from point 'Á' shown in site plan Exhibit Ka-19. It is correct that

veterinary hospital was not shown in site plan but there is evidence to

show that it is situated nearby. It is correct that (PW-6) Umesh Pratap

Singh has stated that incident took place opposite to Home guard office

but this statement does not match with the site plan prepared by him, as

in the site plan, place of incident has been shown opposite to shop of

Anoop Electrical and home guard office is situated at some steps from

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there, however these are minor contradictions. It is correct that (PW-2)

Bhola stated that deceased was stopped near home guard office and this

fact is also supported by investigating officer while as per (PW-3) Amit

Kumar Rawat, incident took place near veterinary hospital but it is also

a minor inconsistency. Fact remains that all alleged points like

veterinary hospital, home guard office and Annop Electrical are

situated in same vicinity. In normal parlance, a witness may state that

incident to be happened near veterinary hospital while another witness

may say that it took place near Anoop Electrical or near any other

shop/office situated nearby. Such inconsistencies are quite common.

Situation may have been different, had some witnesses would have

spoken altogether some distant place as spot of incident, but it is not so

in this case. Considering all facts and evidence, it can not be said that

alleged inconsistencies are of such nature so as to create any doubt

about position of spot or about presence of (PW-1) Manoj Kumar

Yadav and (PW-2) Bhola or to affect their testimony adversely. We find

no substance in the argument of learned senior counsel.

25.Learned Senior counsel has pointed out certain contradictions

and inconsistencies in the statements of witnesses. It was stated that as

per prosecution version, deceased was going on motorcycle, but his

motorcycle was not found on the spot and that as per prosecution

version, deceased has died on the spot but when the police reached at

the spot, his body was lying in Hospital. In this regard, it may be

observed that such contradictions and inconsistencies do not affect pith

and substance of testimony of (PW-1) Manoj Kumar and (PW-2)

Bhola. It is correct that there is nothing to indicate that after incident,

who has taken away motorcycle of deceased but it is not such a factor

so as to affect prosecution version. So far as dead body of deceased is

concerned, there is evidence of (PW-1) Manoj Kumar Yadav and (PW-

2) Bhola that after incident, deceased was taken to hospital. Though

deceased has died at spot, but it is not uncommon to take him to

hospital in hope that he may be surviving. It is well settled in law that

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the minor discrepancies are not to be given undue emphasis and the

evidence is to be considered from the point of view of trustworthiness.

The test is whether the same inspires confidence in the mind of the

Court. If the evidence is incredible and cannot be accepted by the test

of prudence, then it may create a dent in the prosecution version. If an

omission or discrepancy goes to the root of the matter and ushers in

incongruities, the defence can take advantage of such inconsistencies. It

needs no special emphasis to state that every omission cannot take

place of a material omission and, therefore, minor contradictions,

inconsistencies or insignificant embellishments do not affect the core of

the prosecution case and should not be taken to be a ground to reject

the prosecution evidence. The omission should create a serious doubt

about the truthfulness or creditworthiness of a witness. It is only the

serious contradictions and omissions which materially affect the case of

the prosecution but not every contradiction or omission. (See Rammi @

Rameshwar Vs. State of M.P., (1999) 8 SCC 649; Leela Ram (dead)

through Duli Chand Vs. State of Haryana and Another, (1999) 9 SCC

525; Bihari Nath Goswami Vs. Shiv Kumar Singh & Ors., (2004) 9

SCC 186; Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC

191; Sampath Kumar Vs. Inspector of Police, Krishnagiri, (2012) 4

SCC 124; Shyamal Ghosh Vs. State of West Bengal, (2012) 7 SCC 646

and Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr., (2013) 12

SCC 796).

26.Having considered entire evidence carefully, so far the

involvement of accused-appellant Santosh Kumar Yadav is concerned,

there is clear and cogent evidence against him. In this regard, no major

contradiction or infirmity could be pointed out in testimony of (PW-1)

Manoj Kumar Yadav. Version of (PW-1) Manoj Kumar Yadav is quite

consistent that it was the accused-appellant Santosh Kumar Yadav, who

fired shot at the deceased. His version is consistent with first

information report and is supported by medical evidence. Statement of

(PW-1) Manoj Kumar is corroborated by (PW-2) Bhola in material

17

particulars. Both these witnesses have subjected to cross-examination,

but they remained stick to their version and no such fact could be

elicited, which may cause any dent against their credibility. Regarding

involvement of accused-appellant Santosh Kumar Yadav we find

testimony of (PW-1) Manoj Kumar Yadav and (PW-2) Bhola coupled

with other evidence on record quite impeccable and reliable.

27.However, examining the entire evidence carefully, it appears that

evidence regarding common object of unlawful assembly comprising

all the accused-appellants to commit murder of deceased, is quite

vague. In fact, there is no categorical and cogent evidence that all the

accused-appellants were present at the spot and thus, the very existence

of unlawful assembly appears doubtful. Provisions of Section 149 of

IPC provide 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. The first part of Section 149 IPC

states about the commission of an offence in prosecution of the

common object of the assembly whereas the second part takes within

its fold knowledge of likelihood of the commission of that offence in

prosecution of the common object. Scope of two parts of Section 149

IPC has been explained in Rajendra Shantaram Todankar v. State of

Maharashtra and Ors. [JT 2003 (2) SC 95], the Apex Court has

explained Section 149 and held as under:

"14. Section 149 of the Indian Penal Code provides 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. The two clauses of Section 149 vary in

degree of certainty. The first clause contemplates the

commission of an offence by any member of an unlawful

18

assembly which can be held to have been committed in

prosecution of the common object of the assembly. The

second clause embraces within its fold the commission of

an act which may not necessarily be the common object

of the assembly, nevertheless, the members of the

assembly had knowledge of likelihood of the commission

of that offence in prosecution of the common object. The

common object may be commission of one offence while

there may be likelihood of the commission of yet another

offence, the knowledge whereof is capable of being

safely attributable to the members of the unlawful

assembly. In either case, every member of the assembly

would be vicariously liable for the offence actually

committed by any other member of the assembly. A mere

possibility of the commission of the offence would not

necessarily enable the court to draw an inference that

the likelihood of commission of such offence was within

the knowledge of every member of the unlawful

assembly. It is difficult indeed, though not impossible, to

collect direct evidence of such knowledge. An inference

may be drawn from circumstances such as the

background of the incident, the motive, the nature of the

assembly, the nature of the arms carried by the members

of the assembly, their common object and the behaviour

of the members soon before, at or after the actual

commission of the crime. Unless the applicability of

Section 149 — either clause — is attracted and the court

is convinced, on facts and in law, both, of liability

capable of being fastened vicariously by reference to

either clause of Section 149 IPC, merely because a

criminal act was committed by a member of the assembly

every other member thereof would not necessarily

become liable for such criminal act. The inference as to

likelihood of the commission of the given criminal act

must be capable of being held to be within the knowledge

of another member of the assembly who is sought to be

held vicariously liable for the said criminal act...... "

The same principles have been reiterated in State of Punjab v.

Sanjiv Kumar alias Sanju and Ors. [JT 2007 (9) SC 274]. Creation of

vicarious liability under Section 149 IPC is well elucidated in

Allauddin Mian and Others, Sharif Mian and Anr. v. State of Bihar

[JT 1989 (2) SC 171], the Apex Court held:

19

"8. ........Therefore, in order to fasten vicarious

responsibility on any member of an unlawful assembly

the prosecution must prove that the act constituting an

offence was done in prosecution of the common object of

that assembly or the act done is such as the members of

that assembly knew to be likely to be committed in

prosecution of the common object of that assembly.

Under this section, therefore, every member of an

unlawful assembly renders himself liable for the criminal

act or acts of any other member or members of that

assembly provided the same is/are done in prosecution of

the common object or is/are such as every member of that

assembly knew to be likely to be committed. This section

creates a specific offence and makes every member of the

unlawful assembly liable for the offence or offences

committed in the course of the occurrence provided the

same was/were committed in prosecution of the common

object or was/were such as the members of that assembly

knew to be likely to be committed. Since this section

imposes a constructive penal liability, it must be strictly

construed as it seeks to punish members of an unlawful

assembly for the offence or offences committed by their

associate or associates in carrying out the common

object of the assembly......"

The same principles were reiterated in paras (26) and (27) in

Daya Kishan v. State of Haryana [JT 2010 (4) SC 325] and also in

Kuldip Yadav and Ors. v. State of Bihar [JT 2011 (4) SC 436]. Whether

the members of the unlawful assembly really had the common object to

cause the murder of the deceased has to be decided in the facts and

circumstances of each case, nature of weapons used by such members,

the manner and sequence of attack made by those members on the

deceased and the circumstances under which the occurrence took place.

It is an inference to be deduced from the facts and circumstances of

each case. (vide Lalji and Ors. v. State of U.P. [JT 1989 (1) SC 109];

Ranbir Yadav v. State of Bihar [JT 1995 (3) SC 228]; Rachamreddy

Chenna Reddy and Ors. v. State of A.P. [JT 1999 (1) SC 412]).

In prosecution of ‘common object’ means ‘in order to attain the

common object’. Effect of section 149 may be different on different

20

members of the same assembly. Common object is determined keeping

in view nature of the assembly, arms carried by members and behaviour

of members at or near the scene of incident. It is not necessary in all

cases that the same must be translated into action or be successful. It is

well settled that the expression ''in prosecution of common object'' has

to be strictly construed as equivalent to ‘in order to attain the common

object.’ The word ‘knew’ used in the second part of section 149 IPC

implies something more than possibility and it cannot bear the sense of

might have known’. When an offence is committed in prosecution of

the common object, it would generally be an offence which the

members of the unlawful assembly knew to be likely to be committed

in prosecution of the common object. Members of an unlawful

assembly may have community of object upto a certain point. 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.

28.Coming to the facts of present case perusal of evidence shows

that the accused-appellant Santosh Kumar Yadav has caused single fire

arm injury to deceased. It is not the case of prosecution that any of the

other accused has also caused any injury to deceased. The post-mortem

report of deceased also does not indicate that he was assaulted by all

the accused persons, who were eight in number. (PW-1) Manoj Kumar

Yadav and (PW-2) Bhola have also not attributed any specific role to

the other accused persons except that of Santosh Kumar Yadav, in

causing injuries to deceased. The role assigned to the accused-

appellants, except that of Santosh Kumar Yadav, is that they made

exhortation to kill the deceased. It has not been specified that what

words were used by these accused persons while making alleged

exhortation rather only general allegation has been made that all the

accused-appellants made exhortation to kill the deceased and

consequently accused-appellant Santosh Kumar Yadav fired a single

21

shot at the deceased. As per prosecution version, six accused persons

have reached at spot on two motorcycles while two accused namely,

Rahul and Prashant Kumar were already present there. There is nothing

to indicate that how all these accused were aware that deceased would

pass from that point and at that particular time. It is not the case of

prosecution that deceased used to pass that way every day. All these

facts not only create doubt about common object of alleged unlawful

assembly but also about the existence of any such unlawful assembly.

There is doubt whether all the accused persons were present at the spot.

The role assigned to the accused-appellants, except that of Santosh

Kumar Yadav, is that they made exhortation to kill the deceased. It is

not specified that what words were used by these accused persons

while making alleged exhortation rather only general allegation has

been made that all the accused-appellants made exhortation to kill the

deceased and consequently accused-appellant Santosh Kumar Yadav

fired a single shot at the deceased. All these facts not only create doubt

about common object of alleged unlawful assembly but also about the

very existence of any such unlawful assembly. It appears that it was the

individual act of accused appellant Santosh Kumar Yadav, which is

responsible for causing sole fatal injury to the deceased. Evidence on

record is not cogent and categorical regarding common object of

alleged unlawful assembly. As stated earlier, it could not be established

beyond doubt that there was any such unlawful assembly. In view of all

these facts, conviction of accused-appellants Binnu Srivastava @

Pawan Srivastava, Pawan Srivastava @ Prakash, Raj Nath Yadav, Atul

Kumar Yadav @ Bhunwar, Sandeep Rawat @ Rinku, Rahul Rawat and

Prashant Yadav with aid of Section 149 of IPC is not in accordance

with law and thus they deserve acquittal.

29.Now question arises whether an accused charged under section

302/149 IPC could be convicted under section 302 simplicitor in the

absence any substantial charge under section 302 IPC. In Nallabothu

Venkaiah vs. State of A.P reported as (2002) 7 SCC 117, the Supreme

22

Court was faced with two questions of law. Firstly, whether the

appellant could be convicted under Section 302 IPC without the aid of

Section 149 IPC, in the absence of any substantive charge under

Section 302 IPC. Secondly, whether the appellant could be convicted

under Sections 302/149 IPC on selfsame evidence on the basis of

which other accused were acquitted. After analyzing a catena of earlier

decisions on the above aspect, the law was distilled in the following

words:-

"24. On an analytical reading of a catena of decisions of

this Court, the following broad proposition of law

clearly emerges: (a) the conviction under Section 302

simpliciter without aid of Section 149 is permissible if

overt act is attributed to the accused resulting in the

fatal injury which is independently sufficient in the

ordinary course of nature to cause the death of the

deceased and is supported by medical evidence; (b)

wrongful acquittal recorded by the High Court, even if it

stood, that circumstances would not impede the

conviction of the appellant under Section 302 read with

Section 149 IPC; (c) charge under Section 302 with the

aid of Section 149 could be converted into one under

Section 302 read with Section 34 if the criminal act done

by several persons less than five in number in

furtherance of common intention is proved."

Thus, it is explicit that the conviction under Section 302

simpliciter without aid of Section 149 is permissible if overt act is

attributed to the accused resulting in the fatal injury which is

independently sufficient in the ordinary course of nature to cause the

death of the deceased and is supported by medical evidence.

In the instant case, as discussed above, evidence shows that the

accused-appellant Santosh Kumar Yadav @ Kariya has fired a single

bullet at deceased, which resulted to the death of deceased. Any of the

other accused has not caused any injury what so ever to deceased. Both

eye witnesses (PW-3) Amit Kumar Rawat and (PW-2) Bhola have also

not attributed any specific role to the accused persons except that of

Santosh Kumar Yadav @ Kariya, in causing injuries to deceased.

23

Alleged exhortation attributed to these accused persons is quite vague.

There is no cogent and categorical evidence to prove alleged

exhortation. Only general allegation has been made that all the

accused-appellants made exhortation to kill the deceased and

consequently accused-appellant Santosh Kumar Yadav @ Kariya fired

a single shot at the deceased. It is quite apparent from evidence that the

act of firing at deceased, attributed to the accused-appellant Santosh

Kumar Yadav @ Kariya, resulting in the fatal injury, is independently

sufficient in the ordinary course of nature to cause death of the

deceased. Medical evidence shows that the bullet fired by accused-

appellant Santosh Kumar Yadav @ Kariya was sufficient to cause

death of deceased. Considering entire evidence, accused-appellant

Santosh Kumar Yadav @ Kariya could be convicted under Section 302

IPC. Thus, so far as accused appellant Santosh Kumar Yadav @ Kariya

is concerned, he is liable to be convicted under section 302 IPC.

Similarly conviction of accused-appellant Santosh Kumar Yadav @

Kariya under Section 25 Arms Act is based on evidence and calls for

no interference.

30.In view of aforesaid, conviction of accused-appellant Santosh

Kumar Yadav @ Kariya under Section 302/149 IPC is altered to under

Section 302 IPC and sentence of life imprisonment along with fine is

maintained. Conviction and sentence of accused-appellant Santosh

Kumar Yadav @ Kariya under Section 25 Arms Act is also affirmed but

sentence of five years rigorous imprisonment is reduced to three years.

However his conviction and sentence under Section 147 IPC is set

aside. Conviction and sentence of accused-appellants Binnu Srivastava

@ Pawan Srivastava, Pawan Srivastava @ Prakash, Raj Nath Yadav,

Atul Kumar Yadav @ Bhunwar, Sandeep Rawat @ Rinku, Rahul

Rawat and Prashant Yadav under Section 302/149 and 147 of IPC is set

aside. These accused-appellants are stated on bail and thus, no further

order is required in their respect. Accused-appellant Santosh Kumar

Yadav @ Kariya is stated in judicial custody, he shall serve out

24

remaining sentence.

31.Appeals of accused-appellants Binnu Srivastava @ Pawan

Srivastava, Pawan Srivastava @ Prakash, Raj Nath Yadav, Atul Kumar

Yadav @ Bhunwar, Sandeep Rawat @ Rinku, Rahul Rawat and

Prashant Yadav are allowed. Appeal of accused-appellant Santosh

Kumar Yadav @ Kariya is partly allowed in above terms.

32.A copy of this order be sent to trial court for compliance.

(Raj Beer Singh,J) (Pritinker Diwaker,J)

Order Date:- 14.11.2019

T.S.