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CASE NO.:

Appeal (crl.) 1072 of 2003

PETITIONER:

Jai Shree Yadav

RESPONDENT:

State of U.P.

DATE OF JUDGMENT: 12/08/2004

BENCH:

N. Santosh Hegde, S.B. Sinha & A.K. Mathur

JUDGMENT:

J U D G M E N T

(With Crl. Appeal Nos. 1073 and 1074-1075 of 2003 )

SANTOSH HEGDE, J.

All these appeals arise out of a common judgment of the

High Court of Judicature at Allahabad whereby the High Court

while allowing the appeal of two of the accused persons,

dismissed the appeal of 3 other accused persons all of whom

were convicted by the III Additional Sessions Judge, Deoria

(UP) of offences punishable under Sections 143, 148, 149, 504,

506, 307 and 302 IPC. Three of the accused whose appeals

were dismissed by the High Court, have preferred Criminal

Appeal Nos.1072-73 of 2003 and the State has preferred

Criminal Appeal Nos.1074-75 of 2003 against the acquittal of

two of the accused persons who were convicted by the trial

court for the above mentioned offences.

We will first take up Criminal Appeal Nos.1072-73 of

2003 for consideration which, as stated above, are the appeals

filed by the convicted accused.

The facts necessary for the disposal of these appeals,

briefly stated, are as follows :

It is the prosecution case that there was enmity between

one of the deceased Abid Ali and A-3 Jaishree Yadav, A-5

Daddan Yadav in regard to the auction and recovery of

Tehbazari of the area between village Tatil Tola and Nawalpur

crossing. A-6 Ram Pratap Yadav bore an enmity against the

deceased Abid Ali on account of a pending litigation relating to

a land in village Tatil Tola. A-1 Hafiz Khairul Bashr was on

inimical terms with the said deceased in relation to the fixation

of an electric pole on the chowk road. It is also the prosecution

case that on account of these enmities, these accused persons

were waiting for an opportunity to eliminate said deceased Abid

Ali. It is the further case of the prosecution that on 23.9.1993 at

about 5.50 p.m. deceased Abid Ali had come from Deoria, his

place of residence, in his private jeep and was sitting on a

Takhat in front of Pervez Book Stores, north of Nawalpur

crossing. At that moment, Raju @ Noor Alam (PW-6) who had

a shop selling sand and clay, came to deceased Abid Ali and

complained that A-3 Jaishree Yadav was raising a dispute with

him (PW-6) in regard to Tehbazari money. It is also the

prosecution case that PW-1 who was working as a teacher in a

School at Salempur of which the deceased Abid Ali was the

Manager, was then passing through the said place where the

said deceased was sitting and seeing him PW-1 came to talk to

the said deceased. This was at about 4.15 p.m. Prosecution also

states that PW-3 Arif Ali, son of deceased Abid Ali, who was a

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resident of that village, was also present there at that time. It is

the further case of the prosecution that at that time 8 persons

including A-1 Hafiz Khairul Bashr, A-2 Jaheed, A-3 Jaishree

Yadav, A-4 Manish Yadav, A-5 Daddan Yadav, A-6 Ram

Pratap yadav and two other unidentified persons came armed to

that place. Amongst them, A-1 and A-2 and the unidentified

persons were having country-made pistols (katta), A-3 and A-4

were carrying bombs and bags in their hands; A-5 and A-6 were

carrying a knife and an iron 'Dav' respectively. Prosecution

further alleges that A-3 Jaishree Yadav questioned PW-6 as to

the propriety of his complaint to deceased Abid Ali. Other

accused questioned the authority of deceased Abid Ali to

meddle in a dispute between them and PW-6. It is stated the

deceased Abid Ali warned them by asking them to have control

over their language. At this stage the prosecution alleges A-1

exhorted the other accused to kill Abid Ali. Pursuant to the

same, A-3 and A-4 hurled bombs at Abid Ali because of which

Abid Ali received injuries and started running northwards to

save himself. Prosecution then alleges that all the accused

persons chased the deceased Abid Ali, hurling bombs and firing

pistol shots at him and in this process when Abid Ali reached

'Palani', of one Idris, one Mahmood Shah (deceased No.2), a

resident of the same village, tried to intervene, hence, the

accused hurled bombs and fired pistol shots at Abid Ali and

Mahmood Shah in front of the shop of one Ram Nakshatra

consequent to which both Abid Ali and Mahmood Shah

succumbed to their injuries on the spot. During the first attack

on Abid Ali when he was sitting on the Takhat, PW-1 who was

nearby also suffered an injury on his shoulder. Prosecution also

alleges that there was a young boy who was also sitting on the

Takhat with deceased Abid Ali who also suffered some injuries.

PW-3 who was nearby ran after his father but he was not

attacked by the assailants. The assailants after causing fatal

injuries to Abid Ali and Mahmood Shah ran away from the

place of incident shouting at and threatening the witnesses. PW-

3 who is an eye-witness to the incident, then went to Salempur

Police Station which is stated to be about 3-4 kms. away from

the place of incident with a written complaint scribed by his

brother-in-law and gave the same to PW-8 Ram Shiromani

Pandey who was the officer-in-charge of the Police Station who

registered a case at about 5.30 p.m. on 23.9.1993 and proceeded

to the place of incident with his staff. There he recorded the

statements of some witnesses and conducted the spot

Panchnama, inquest Panchnama of the dead body and recovered

certain empty cartridges, splinters of the bomb and one live

bomb found at the place. It is relevant to note herein that before

leaving for the place of the incident, PW-8 had sent a special

report to the Jurisdictional Magistrate through a Constable in

his Police Station to Deoria which is about 25-27 kms. from

Salempur. During the course of his visit to the spot and

preparation of the Panchnamas it is stated that senior officers on

coming to know of the double murder case through radio

transmitters, reached the spot. PW-8 after completing the

inquest sent the dead bodies to Deoria along with Police

Constable Durga Prasad PW-7 in a jeep around mid-night of

23/24.9.1993. It is stated that in view of the fact that on the way

the said jeep developed mechanical problems and the same

could be repaired only in the early hours of 24.9.1993, he

handed over the bodies at about 10 a.m. to PW-4 Dr. V.D.

Srivastava who conducted the post mortem on the dead bodies

of Abid Ali and Mahmood Shah on 24.9.1993 at 10.30 a.m. and

12.15 p.m. respectively. He noticed 11 injuries on different

parts of Abid Ali's body with corresponding internal injuries. In

the opinion of PW-4 death of Abid Ali was due to shock and

haemorrhage as a result of ante-mortem injuries.

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On the body of Mahmood Shah, PW-4 noticed 3 external

injuries which were multiple circular wounds and multiple

circular lacerated wounds. On internal examination, he found

corresponding injuries on various parts of the body. He also

recovered a large number of pellets, totalling 89 from the body

of Mahmood Shah and he opined that the death of Mahmood

Shah was also due to shock and haemorrhage as a result of ante-

mortem injuries.

Prosecution alleges that in spite of its best efforts, the

accused persons could not be traced until they surrendered

before the court. It is the case of PW-8 that PW-1 though

named in the FIR as an eye-witness was not available for

recording his statement and it is only after about 9-10 days

when he came back to the village and his statement could be

recorded; whereas PW-6's statement was recorded on

24.9.1993 at about 6 a.m. It is also the case of the prosecution

that two of the unidentified persons were never traced, hence,

they could not be sent up for trial while the six named accused

persons were committed for trial by A.C.J.M., Deoria for

offences under sections 147, 148, 149, 504, 506, 507, 302 and

sections 4 and 5 of the Explosive Substances Act. But the trial

court framed charges only for offences under sections 143, 148,

302 read with section 149, section 307 read with 149, 504 and

506 IPC.

In view of the fact that A-1 Hafiz Khairul Bashr was not

in a medically fit condition to face trial, his trial was separated

and the other 5 accused persons were tried by the III Additional

Sessions Judge, Deoria, for offences as stated above, in

Sessions Trial No.36 of 1994. The trial court after considering

the material produced by the prosecution, came to the

conclusion that accused 2 to 6 were guilty of the offences

charged against them hence convicted them under section 143

IPC to RI for 6 months, under section 148 IPC RI for 1 year and

for an offence punishable under section 302 read with section

149 life imprisonment and for an offence under section 307

read with section 149, 7 years' RI and for an offence under

section 504 IPC 6 months' RI and finally for an offence under

section 506 IPC, 6 months' RI was awarded. The court also

directed all the sentences to run concurrently.

It is against the said conviction and sentence of the trial

court, the convicted accused preferred 4 appeals before the

High Court of Judicature at Allahabad and the High Court by

the impugned judgment, confirmed the conviction and sentence

imposed on A-2 Jaheed, A-3 Jaishree Yadav, A-4 Manish

Yadav, while it allowed the appeals of A-5 Daddan Yadav and

A-6 Ram Pratap Yadav.

Out of the 3 convicted accused, A-2 Jaheed has not

preferred any appeal hence his conviction and sentence has

become final, while A-3 Jaishree Yadav and A-4 Manish Yadav

have preferred the abovenoted criminal appeals. The State of

U.P. being aggrieved by the acquittal of A-5 Daddan Yadav and

A-6 Ram Pratap Yadav has preferred the connected criminal

appeal noted hereinabove.

Shri Sushil Kumar, learned senior counsel appearing for the

appellants contended that the prosecution case ought not to have

been accepted by the courts below because of the serious infirmity

found in the investigation as also possible doubt as to the presence

of the eye-witnesses produced by the prosecution at the trial. He

submitted that though the prosecution has alleged that the

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complaint of the incident in question was lodged at Salempur

Police Station at 5.30 p.m., the same cannot be believed for more

than one reason and according to him the FIR is a product of

deliberation and is anti-timed. Elaborating this contention, he

submitted that the special report in regard to the incident in

question reached the Jurisdictional Magistrate at Deoria only on

24.9.1993 and the actual time of receipt of this special report has

not been noted by the Jurisdictional Magistrate. It is his contention

that if really the FIR had come into existence as stated by the

prosecution and the complete details of the case and the facts as

found in the complaint and in the inquest report would have been

sent to the doctor who was to conduct post mortem but what in fact

was sent along with the dead body and the requisition for post

mortem was not really the true copy of the inquest report and the

complaint. He further submitted the fact that the dead body was

delivered to the doctor of Deoria at about 10 O'clock in the

morning on 24.9.1993 which also indicates the fact that the

incident in question must have come to the knowledge of the

police very late in the evening of 23.9.1993, hence, a detailed FIR

implicating the accused was prepared in deliberation with PW-3,

the son of the deceased Abid Ali much later than 5.30 P.M.. He

also pointed out that it has come on record that when radio

transmission messages were sent to the superior officers, names of

all accused were not mentioned obviously because same was not

known to the Investigating Officer at that time. From the material

on record, he pointed out that there were good reasons for PW-3 to

implicate the appellants, hence, deceased being a prominent person

the accused who were admittedly inimical towards him were

falsely implicated.

Further, he contended that the evidence of PW-1 ought not

to have been believed because he was closely connected with the

deceased Abid Ali in his illegal activities in managing the school.

It is also contended that it is highly improbable that a person who

witnessed the murder of the Manager of his school and with whom

he was closely connected would have disappeared from the place

of incident and appeared only after 10 days to make his statement

before the police. The further contention of the learned counsel in

this regard was that the so called injury suffered by PW-1 is a

make believe one and if at all such injury was there the same must

have been a self-inflicted one to create evidence. In regard to PW-

3, the son of the deceased who is the complainant and also an eye-

witness to the incident, learned counsel submitted that the

contradictions, omissions and improvements proved by the defence

in the cross-examination of this witness clearly established that this

witness is one who cannot be believed. At any rate this witness is

not a witness who could be termed as an absolutely reliable

witness on whose sole evidence a conviction could be based

without acceptable corroboration.

In regard to PW-6, the other eye-witness, learned counsel

submitted that this witness was not present at the time when the

police went to the spot of the incident nor was he present at the

time of inquest proceedings. His statement was recorded only on

the next day, hence, his evidence also could not have been

believed.

Learned counsel also pointed out that the medical evidence

is contradictory to the oral evidence led by the prosecution, hence,

the appellants are entitled to acquittal.

He supported the findings of the High Court that from the

prosecution case itself, it is clear that the accused Daddan Yadav

and Ram Pratap Yadav have not taken part in the incident in

question and they were implicated solely because there was some

enmity between them and the deceased Abid Ali, hence, the High

Court was justified in allowing their appeal.

The argument addressed by the learned counsel before us are

similar to the ones that were addressed by his counter parts in the

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courts below. Both the courts below so far as the convicted

appellant before us are concerned have concurrently come to the

conclusion that these arguments cannot be accepted and have held

that the prosecution has established its case to the hilt to prove the

guilt of the convicted accused. It is in the backdrop of the

concurrent findings of the two courts below that we will now

examine the contentions advanced before us by the learned counsel

appearing for the accused whose guilt have been upheld

concurrently by two courts below.

It is the case of the prosecution that PW-3 Arif Ali who is a

resident of village Nawalpur within the limits of Salempur Police

Station came to the said police station on 23.9.1993 at 5.30 p.m.

and gave a written report Ext.Ka-2 to PW-8 the Officer-in-Charge

of the said police station. According to PW-8, he registered a crime

based on the said complaint of PW-3 at 5.50 p.m. on the same day,

which has been proved by the production of the general diary of

the police station Ex.Ka-8. He also submitted that he sent a special

report to the Jurisdiction Magistrate on 23.9.1993 at about 7 p.m.

through Constable Dheeraj. He further stated that from the entry in

the general diary, it is seen that Constable Dheeraj reported back to

the police station at about 8 a.m. on 24.9.1993 . He has denied that

the special report was not sent on 23.9.1993. A perusal of the entry

made by the Chief Judicial Magistrate, Deoria in the special report

shows that the same was received by him on 24.9.1993 but the

actual time of the report is not noted in the said entry, however it is

clear that the said report was received by him at his residence.

Based on this the learned counsel for the appellants had argued that

it is possible that this report might have reached later in the day on

24.9.1993, but this argument is not supported by any material on

record. On the contrary from the entry made in the general diary of

the police station, it is clear that Constable Dheeraj who was

entrusted with the job of delivering the special report to the

Magistrate had returned back to duty at Salempur Police Station at

8 O'clock on 24.9.1993. Bearing in mind that the distance between

Salempur Police Station and Deoria is about 28 to 29 kms. as seen

from the records it is clear that the special report has reached the

Jurisdiction Magistrate much earlier than 8 O'clock in the morning

of 24.9.1993. Though it would have been more appropriate and

less controversial if only the concerned Magistrate had noted the

actual time of receipt of the special report, still on facts and

circumstances of this case as stated above, we are of the opinion

that the special report must have reached the Jurisdictional

Magistrate much earlier than 8 a.m. Since by then the constable

who carried the report had come back to Salempur on 24.9.1993

which fits in with the prosecution case that the same was sent from

the police station in the evening of 23.9.1993 at about 7 p.m. So on

this count, it cannot be said that the FIR is anti timed.

The next contention in this regard is that the requisition

sent by PW-8 to PW-4, the doctor, to conduct post mortem did not

accompany all the particulars found in the inquest report and the

complaint like the particulars of the case, the weapon used and the

names of the accused persons etc. which according to the learned

counsel for the accused indicates that when the dead body was sent

for post mortem the investigating agency did not know the full

particulars of the case. We do not think that these omissions, if

any, would lead to the conclusion that the FIR is anti-timed. It is a

settled principle in law that though it is necessary to give the gist

of the information collected during the course of inquest

proceedings and from the material available in the FIR to the

doctor conducting the post mortem, it is not necessary to give all

the particulars as contained in either of the above said documents.

This is clear from the judgment of this Court in the case of

Mahendra Rai vs. Mithilesh Rai & Ors. (1997 10 SCC 605).

Learned counsel had next contended that it has come on

record that the incident in question was reported to the higher

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authorities through radio transmission and an application filed by

the defence to produce the records pertaining to this transmission

has been rejected by the trial court and according to the material

available on record the said transmission had not given the names

of all the accused concerned to the senior officers which also

indicated the fact that the FIR in question has come into existence

after the radio transmission was made. We are unable to accept this

argument either. We think the trial court has given good reasons

for not allowing the application for summoning the records

pertaining to radio transmission of police communication, at any

rate the accused having not challenged the said order, the same has

become final. That apart it should be noted that the messages

transmitted to higher authorities of an incident in question is only

an information sent about a crime that has occurred which does not

require all the particulars of the crime to be stated. In the instant

case obviously because one of the deceased was a prominent

person of the area concerned, the higher authorities were informed

through radio transmission that his murder has taken place and in

such communication, in our opinion, it is not necessary that the

names of all the persons or other particulars as stated in complaint

ought to have been mentioned or that non mentioning of such

particulars in such communication gives rise to an inference that at

the time when the transmission was made the investigating agency

was not in the know of the names of all the accused. Both the

courts below have considered these aspects of the defence case as

to anti-timing of the FIR and have rejected the same and we are in

agreement with the findings of the courts below, hence, we reject

this contention of the learned counsel for the appellants in regard

to anti-timing of the FIR.

The next contention of the learned counsel for the

appellant is that the evidence of PW-1 Ram Kripal Singh ought

not to have been relied upon by the two courts below. It is

argued that this witness was closely connected with deceased

Abid Ali and was hand in glove with him in the mis-

management of the School and it is because of this nexus that

he has come forward to give evidence inspite of the fact that he

was not present at the time of the incident. It was also submitted

that the so called injury suffered by this witness was so

superficial that it cannot be said to have been caused by the

flying splinter of the bomb that exploded. Learned counsel also

contended that the evidence of PW-5 Dr. A.K. Upadhyay who

treated this witness is highly artificial and cannot be accepted

primarily because of the fact that the injury suffered by the

witness was not recorded in the medico-legal register of the

dispensary. It is the further contention on behalf of the

appellants in regard to PW1 that if really he was an eye witness

to the incident he would not have disappeared for nearly 10

days in spite of his familiarity with deceased Abid Ali. It was

also alleged that the explanation given by this witness as to his

non-availability to the Police for almost 10 days is hard to

believe.

There is no doubt that this witness was closely connected

with the deceased Abid Ali in view of the fact that he was a

teacher in the School of which said deceased was the Manager.

By this it cannot be presumed that this witness has volunteered

to be a false witness to the incident. It is a fact that the injury

suffered by this witness is of minor nature but PW-5 who

treated the said injury has stated that on 23.9.93 evening PW1

had come to him for treatment of an injury suffered by him. He

has also stated that though the injury was simple in nature, he

had treated the same and the said injury could have been caused

by a flying splinter of a bomb. It is a fact that the doctor did not

enter this injury in the medico-legal register but PW-5 the

doctor has given an explanation that since the witness did not

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want to make a Police case out of the same he recorded this

injury in the accident injury register.

It is also true that PW1 was not available to the Police for

nearly 10 days after the incident but the explanation given by

this witness is quite plausible that his family was afraid for his

safety hence he went to his in-laws' place and remained there

and it is only when things settled down he decided to come out

and give a statement to the Police. The possibility of his fear of

retaliation is supported by the evidence of PW-8 I.O. who

stated that there was tension in the village and at the time of

funeral of the deceased he had to make Police bandobust which

indicates the possibility of PW-1's apprehension and his

consequent non-availability to the investigating agency. There

is one other aspect of this case which will have to be borne in

mind while considering the evidence of PW-1. His name has

been mentioned in the FIR as a person who was present at the

time the incident took place. It is also stated in the FIR that in

the said incident PW-1 was injured. We have already noticed

that the prosecution has established that this complaint was

filed in the Salempur Police Station at 5.30 p.m. If really this

witness was not present at the time of incident in question we

do not think PW-3 would have included his name without even

knowing the whereabouts of this witness on that day and by

attributing an imaginary injury to him. In his examination in

chief this witness has clearly narrated the incident involving the

named accused persons as also the overt acts attributed to them.

Of course in the cross examination the defence has brought out

that this person is closely connected with deceased Abid Ali

therefore a suggestion was made that he was deposing falsely.

This suggestion has been denied by the appellant. In the cross

examination defence has brought about certain omissions,

contradictions and improvements in the evidence of this

witness. These shortcomings in the evidence of this witness will

have to be considered in the background of the fact that this

witness was subjected to nearly 217 questions over a period of

14 months i.e. his cross examination starting on 14.8.1994 and

ending on 28.11.1995. Both the courts below have taken

judicial notice of this fact, not only in regard to this witness but

in regard to other witnesses also and have come to the

concurrent conclusion that when a witness is subjected to such

lengthy arduous cross examination over a lengthy period of

time there is always a possibility of the witnesses committing

mistakes which can be termed as omissions, improvements and

contradictions therefore those infirmities will have to be

appreciated in the back ground of ground realities which makes

the witness confused because of the filibustering tactics of the

cross examining Counsel.

PW-3's evidence was challenged by the defence in the

courts below as well as before this Court on the ground that he

is a partisan and biased witness being the son of the deceased

Abid Ali. This fact of course is not disputed by the witness

because it is the case of the prosecution itself that the deceased

Abid Ali was inimical to accused persons for various reasons

mentioned hereinabove. PW1's presence at the place and time

of the incident was challenged by learned counsel for the

accused before us primarily on the ground that if really he was

present at the time of incident he would have tried to protect his

father and there was no material to show that any such thing

was done by this witness. It was also pointed out from his

evidence that though his father was profusely bleeding the

clothes of this witness were not blood stained which indicated

that he never even touched the body of his father which is an

unnatural conduct on the part of a son present at the time of the

murder of his father. This witness when cross examined in this

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regard, admitted that since his father had died already he did not

carry the body of his father nor did he touch the body of his

father. In our opinion different people react differently to a

given situation and from the fact that this witness did not

choose to fall on the body of his father or carry his dead body

from where it was lying, by itself cannot be a ground to reject

his evidence. We have already accepted the fact that the

complaint in question was lodged by this witness soon after the

incident in question and PW-8 in his evidence has spoken to the

complaint being lodged by this witness and he being present

throughout the investigation proceedings at the spot on that day.

His presence at the place of incident also cannot be treated as a

chance presence inasmuch as he is a resident of that village

though his father stays in Deoria. Learned counsel for the

appellant submitted that it is an admitted fact that this witness

has stated that he is an educated person and according to this

witness the complaint in question was not written down by him

but by his brother-in-law which is also an unnatural conduct

indicating that he might not have been present at the time of

incident. We do not think this could also be a ground to suspect

the presence of this witness at the time and place of incident.

This witness in his evidence has stated that since his brother-in-

law was available who was also a literate he dictated the

complaint to him which was scribed by his brother-in-law and

we do not find anything unnatural in this conduct either. Next

ground of attack in regard to this evidence of this witness is that

he has not stated all the motives stated in his evidence before

the court in the complaint. In other words the complaint did not

contain details of the motives as spoken to by this witness in his

evidence before the court. We do not think that this also could

be a ground to reject the evidence of this witness. In the

complaint this witness has specifically stated A-3 and A-4 had

enmity with his father in regard to the auction of Tehbazari of

Nawalpur chowk. He has further mentioned in the complaint

that so far as accused Ram Pratap Yadav is concerned his father

had a litigation pertaining to a particular land and so far as

Hafiz Khairul Bashr is concerned his father had a dispute

pertaining to the erection of an electric pole. He has also

mentioned in the complaint about an altercation PW-6 had with

A-3 and A-4 in regard to the payment of Tehbazari in regard to

which PW-6 had made a complaint to his father on the fateful

day. In this background we hardly find any force in the

argument of learned counsel for the accused that this witness

has made improvement in his evidence from what he had stated

in his complaint. Of course during the course of his cross

examination he has elaborated the nature of enmity that his

father had with these accused persons but then that could hardly

be a reason to contend that what is stated in the complaint is

either different from what is stated in the evidence in regard to

the motive or the witness has made improvement in regard to

the motive of the accused to commit the crime. Apart from the

above challenge to the evidence of this witness, learned counsel

for the accused pointed out certain contradictions, omissions

and improvements found in his cross examination but then this

again will have to be considered as considered by the courts

below, in the background of the fact that the cross examination

of this witness was also spread over a period nearly 6 months

and he was subjected to nearly 480 questions. In this

background for the reasons already stated above, as held by the

two courts below we do not think these contradictions,

improvements and omissions would affect the credibility of this

witness either.

The next witness cited by the prosecution as an eye-

witness to the incident is PW-6 Raju alias Noor Alam. He is

also a resident of Nawalpur who in his evidence stated that on

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23.9.1993 he had an argument with A-5 Daddan Yadav and A-3

Jaishree Yadav in relation to the payment of Tehbazari for

having sold some sand to them. He stated that he made a

complaint to the deceased Abid Ali who had come to that

village on that day and at that time the accused persons came

armed with bombs, kattas and other sharp-edged weapons and

attacked the deceased with the same and the deceased having

suffered injuries, started running towards North and at a place

near 'Palani' the accused persons shot at him as also at

Mahmood Shah who came to the aid of the deceased Abid Ali

consequent to which these victims died. The challenge to the

evidence of this witness by the appellant is primarily based on

the fact that he is a partisan witness and in his witness too a

large number of contradictions, improvements and omissions

were established during the cross-examination. We must notice

that the name of this witness is also mentioned in the complaint

and even the fact that there was an altercation between A-3

Jaishree Yadav and A-4 in payment of Tehbazari is also

mentioned in the complaint which indicates that this witness

was present at the time of the incident. In his examination in

chief he has clearly stated the attack on the deceased by the

accused persons and we are not prepared to reject this evidence

on the ground that there have been some contradictions,

omissions and improvements in his evidence. Even this witness

was subjected to lengthy cross-examination over a long period

of time and as held by the two courts below, in such type of

cross-examination some improvements, contradictions and

omissions are bound to occur which if not found fatal to the

evidence given in the examination in chief would not in any

manner affect the evidentiary value of the witness given in the

examination in chief.

Another argument addressed on behalf of the appellants

to be noticed is that there was considerable delay in sending the

dead bodies for post mortem. According to the learned counsel,

though a complaint in regard to the incident in question was

lodged at about 5.30 p.m., the dead bodies reached the hospital

at Deoria only at about 9.30 a.m. on 24.9.1993, therefore, this

also indicates that the complaint in question had not been

lodged, as alleged by the prosecution. It is true that the dead

bodies reached the hospital at Deoria only at about 9.30 a.m.

the next day but from the evidence of PW-8, the Investigating

Officer, it is clear that he despatched the dead bodies to the

hospital between 11 and 12 in the night of the incident through

PW-7, Constable Durga Prasad, who took the dead bodies in

jeeps but because of the fact that one of the jeeps broke down

on the way at a distance of about 13-14 kms. from Salempur,

hence, they were not able to proceed further that night until the

jeeps were repaired in the morning. In this situation, the bodies

reached the hospital only at about 9.30 a.m. In our opinion, the

explanation given by PW-7 in regard to the delay in delivery of

the dead bodies for post mortem cannot be rejected. Therefore,

the contention that the delay in delivering the dead bodies

indicates that the First Information Report was anti-timed,

cannot be accepted.

It was also sought to be argued that there is contradiction

between medical evidence and oral evidence. We having

perused the same, find from the evidence of the post mortem

report and the evidence of PW-4 Dr. V.D. Srivastava that the

prosecution has established that both the deceased had died of

shock and haemorrhage due to the injuries caused to them and

those injuries are such injuries as could be caused by the

explosion of a bomb, by the use of Kattas and sharp-edged

weapons. We really do not find any reason whatsoever why this

doctor should give false evidence to support the prosecution

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case. This witness was also subjected to nearly 170 questions

over a period of a year i.e. between 18.5.1995 and 2.6.1996. In

such circumstances we are in agreement with the findings of the

two courts below that the prosecution has established its case

beyond all reasonable doubt as against the accused persons held

guilty by the trial court and the High Court.

This leaves us to consider the merit of Crl. Appeal

Nos.1074-75 of 2003 preferred by the State against the acquittal

of A-5 Daddan Yadav and A-6 Ram Pratap Yadav. In regard to

these two accused persons the High Court has concurred with

the finding of the trial court that they were present and were

members of the party of the accused persons when the crime in

question was committed. The trial court accepted the evidence

that Ram Pratap Yadav abused deceased Abid Ali while others

attacked the deceased. Similarly, the trial court also accepted

the evidence that A-5 had carried a 'Dav' and attacked the

deceased due to which a corresponding incised wound was

found in the body of the deceased. The trial court also found as

a matter of fact that all the accused persons before it including

A-5 Daddan Yadav and A-6 Ram Pratap Yadav were members

of an unlawful assembly with a common object of causing the

death of deceased. Therefore, they were also convicted along

with other accused persons for an offence punishable under

section 302 read with section 149 among other offences. The

High Court did not give a finding that these accused persons

were not the members of an unlawful assembly and accepts the

fact that they were present at the time of the incident but rather

surprisingly proceeds to give a finding in the following terms :

"\005 A perusal of the FIR shows that no role

has been assigned to appellants Daddan and

Ram Pratap. There is no allegation in it that

they had used knife and 'Dav' in the

incident. From the post mortem report Ext.

Ka-3, also the use of Dav is excluded. Thus,

the complicity of appellant Ram Pratap in

the incident is ruled out. He had wrongly

been convicted under Sections 143, 148,

302/149, 307, 504, 506 IPC. So far as

appellant Daddan is concerned, he is said to

have been armed with a knife. Neither in the

FIR, nor in the ocular evidence, there is any

mention that he used his knife on any of the

deceased or to injure Ram Kripal. In these

circumstances, his participation in the

incident is also ruled out and his conviction

cannot be justified."

We are unable to agree with the above finding of the

High Court on facts and circumstances of the case. It is the

prosecution case right from the stage of the complaint that these

two accused persons had enmity with the deceased Abid Ali.

They along with four other named accused and two other

unnamed accused came together armed and remained members

of the unlawful assembly till the attack on the deceased was

over. This part of the prosecution case is accepted even by the

High Court. If that be so, assuming for argument's sake that

there is no material to show that these two accused persons took

any part in the attack, that by itself would not take away the

liability of these persons from being members of an unlawful

assembly unless the High Court had given a specific finding

either that they were not the members of the unlawful assembly

at all or at any particular point of time they ceased to be the

members of the said unlawful assembly. The High Court did

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not give any such finding. On the contrary, it proceeds as if the

members of an unlawful assembly who do not commit any

overt act are exonerated of the liability of being a member of an

unlawful assembly. The trial court has held that the common

object of the unlawful assembly was to attack and kill Abid Ali

but in the process they also killed Mahmood Shah and

convicted the accused on that basis. The High Court, as stated

above, has nowhere held that these two accused persons, who

are respondents in the State appeal before us, were not the

members of the unlawful assembly or that they did not share the

common object of that assembly. In our opinion on the facts of

this case such a finding could not have been arrived at because

evidence in this case shows these accused also had the motive,

they were present throughout and escaped together. Once

these facts are accepted it is difficult to exclude these accused

from the liability under section 149 I.P.C.

The trial court even found that these two accused persons

also carried deadly weapons and some of the injuries found on

the dead body could be attributed to the weapons carried by

them. Of course, the High Court differs with the trial court in

this regard that there was no corresponding injury which could

be attributed to the weapon carried by these appellants but that

by itself, in our opinion, is not sufficient to extricate these two

accused persons from the charge of being members of an

unlawful assembly which attacked and killed Abid Ali and

Mahmood Shah. It is trite law that a person who is a member of

an unlawful assembly even if he does not commit any overt act

but shares the common object of such an unlawful assembly,

will be liable for the consequences of the same. We do not think

that this principle in law requires any precedent to be relied

upon but if need be, the same could be found in the judgment of

this Court in the case of Yunis alias Kariya v. State of M.P.

(2003 1 SCC 425) wherein this Court has held that "Even if no

overt act is imputed to a particular person, when the charge is

under Section 149 IPC, the presence of the accused as part of an

unlawful assembly is sufficient for conviction. The fact that the

accused was a member of the unlawful assembly is sufficient to

hold him guilty."

In view of the above principle in law, since the trial court

has found these respondent-accused guilty of being members of

an unlawful assembly with the common object of causing the

murder of the deceased, and the High Court having not differed

from the said finding, it erred in acquitting these respondent-

accused solely on the ground that there is no evidence to show

that they had taken part in the actual assault. In our opinion,

assuming that the High Court was correct in coming to the

conclusion that these respondent-accused have not taken part in

the attack even then they having come together with the other

accused armed, and having been members of the unlawful

assembly and having shared the common object, they will be

guilty of an offence punishable under section 302 read with

section 149 IPC.

For the reasons stated above, we are not in agreement

with the finding of the appellate court in regard to the reasons

given by it as to the acquittal of Daddan Yadav, Ram Pratap

Yadav, hence, the State appeal has to succeed.

For all these reasons, we dismiss Crl. Appeal Nos. 1072-

1073/2003 and allow Crl. Appeal Nos.1074-75/2003 of the

State, set aside the judgment of the High Court and restore that

of the trial court. The respondents in the said appeal, if on bail,

shall surrender to their bail bonds and serve out the sentence

awarded to them by the trial court.

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