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Judgment reserved on 07.01.2022

Judgment delivered on 30.05.2022

Case :- CRIMINAL APPEAL No.1155 of 1992

Appellant :- Munna Singh and ors

Respondent :- State

Counsel for Appellant :- Manvendra Singh

Counsel for Respondent :- A.G.A.

Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Rajendra Kumar-IV,J.

1.Heard Sri Manvendra Singh, learned counsel for appellants

and Shri G.P. Singh, learned A.G.A. for State.

2.The present Criminal Appeal has been preferred assailing the

correctness of the judgment and order dated 30.6.1992 passed by

IIIrd Additional Sessions Judge, Fatehpur in Sessions Trial

No.490/1989 (State vs. Munna Singh and ors), arising out of Case

Crime No.889 of 1989 under Sections 147, 148, 323 and 302 IPC,

Police Station Kishunpur, District Fatehpur, whereby appellant

no.1, Munna Singh has been convicted and sentenced under Section

148 IPC to undergo imprisonment of one year's rigorous

imprisonment and under Section 302 IPC to undergo life

imprisonment. Accused persons/appellant nos.2 to 5 Ram Prasad,

Ram Raj, Guljar and Mannu have also been convicted and

sentenced under Section 147 IPC to undergo R.I. for six months

each and they have further been convicted under Section 302 read

with Section 149 IPC for life imprisonment. The appellant nos.2 to

5 have further been convicted and sentenced under Section 323 IPC

read with Section 149 IPC to undergo six months R.I. each.

3.The prosecution case, in brief, is that the accused persons put

an obstruction (bandha) on pathway, wherefrom, rainy water flew

towards south in front of their house. On the date of occurrence i.e.

27.6.1989 at about 7 p.m., brother of informant Niranjan Singh,

apprehending danger to his house, went to accused persons to

complain on the said obstruction. It is alleged that accused Munna

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Singh armed with a tamancha (country made pistol) and other

accused persons namely Ram Prasad, Ram Raj Singh, Mannu Singh

& Guljar Singh armed with lathis (sticks) met Niranjan Singh over

the road, where the obstruction was created. The appellant no.1

Munna Singh fired at Niranjan Singh and also challenged his

associates to assault him. Consequently, Niranjan Singh sustained

serious injuries and fell down on the ground. Other accused

assaulted him with lathis. After hearing altercation and noise of the

firearm, Smt. Deo Ratiya (mother of informant), Smt. Premvati

(wife of Niranjan Singh), Ram Niranjan (informant), Sanware

Singh and several other persons of the village, reached on the spot.

Smt. Deo Ratia and Smt. Premvati lied down over the fallen

Niranjan Singh to save him from further assault but the accused had

also assaulted them by the lathies. No medical aid could be given to

Niranjan Singh and he died on the spot. Ram Niranjan Singh came

to the police station on 28.6.1989 at 08.05 a.m. and lodged written

report, whereupon a Case under Sections 147, 148, 149, 323, and

302 IPC was registered against the accused. The body of the

deceased was sent for post-mortem examination conducted by Dr.

Rakesh Kumar Mishra (PW-3) on 30.6.1989 and he noticed

following injuries:-

“1. Firearm wound of entry on left iliac fossa, 4 cm above interior,

superior, ilica spine, size 1.5 cm x 1.5 cm going towards right side

downward. No blackening & tattooing was seen.

2.Firearm wound of exit 1 cm right gronic fold laterally, size 6 cm

x 6 cm. Margins extroverted, skin and muscles badly lacerated.

3.Lacerated wound on skull 2 cm above left eye brow, size 2 cm x

1 cm transverse.

4.Lacerated wound on left elbow joint posteriorly size 2 cm x 1

cm.”

4.Contents of the first information report were taken in

concerned chick F.I.R. (Ext.Ka-3) as Case Crime No.58 of 1989

under Sections 147, 148, 323 and 302 IPC at Police Station

Kishunpur, District Fatehpur. After completing investigation, the

investigation officer submitted chargesheet against the accused

under Sections 147, 148, 149, 302 and 323 IPC. The Chief Judicial

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Magistrate, Fatehpur took cognizance and thereafter committed the

case to the Court of Sessions Judge, registered as Sessions Trial

No.490 of 1989. Finally, charges were framed by the Sessions

Judge on 08.2.1990. The charges were read over and explained to

the accused, who abjured charges and opted for trial.

5.In order to establish the guilt of the accused, the prosecution

has examined five witnesses. P.W.1 Smt. Premvati is an injured

witness; P.W.2 Ram Niranjan Singh is complainant, P.W.3 Dr.

Rakesh Kumar Misra conducted post-mortem of the deceased;

P.W.4 Sri Deen Dayal Singh is a formal witness and recorded the

F.I.R. and GD Entry vide exhibits Ka-3 and Ka-4. P.W.5 Dr. S.N.

Tripathi medically examined Smt. Deo Ratia. Statement of the

accused were also recorded under Section 313 Cr.P.C. in which they

have denied the charges levelled against them and pleaded their

innocence and false implication in the case.

6. The Court below, after considering the various circumstances

relied upon by the prosecution, proceeded to consider each of the

submissions urged on behalf of the accused in the light of oral,

documentary and circumstantial evidence on record as well as the

law applicable to determine the innocence/guilt of accused. The

court below dealt with each of the above noted submissions urged

on behalf of accused-appellants to dislodge the prosecution case

and vice-versa in proof of his innocence. Upon evaluation of said

submissions in the light of propositions required to be addressed to

in a case relating to evidence, none of the submissions urged on

behalf of accused-appellants were found cogent enough by court

below to dislodge the prosecution case or to believe another

hypothesis much-less a reasonable hypothesis than the one pleaded

by the prosecution against appellants. The court-below by means of

impugned judgment and order dated 30.6.1992 had convicted the

accused appellant no.1 under Section 148 IPC and sentenced him to

undergo imprisonment of one year's R.I. He has been further

convicted under Section 302 IPC and sentenced him to undergo

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imprisonment for life. Accused-appellant nos.2 to 5 have also been

convicted under Section 147 IPC and sentenced to undergo R.I for

six months' each. They have been further convicted under Section

302 read with Section 149 IPC and sentenced to life imprisonment.

The appellant nos.2 to 5 have been further convicted under Section

323 IPC read with Section 149 IPC and they have been sentenced

to undergo six months R.I. each. Thus, feeling aggrieved by

aforesaid judgment and order, accused-appellants had approached

this Court by means of present appeal.

7.Initially, the matter was taken up on 07.07.1992 and this

Court had proceeded to admit the appeal and enlarge the appellant

nos.2 to 5 on bail. Thereafter, the case was taken up on 07.8.1992

and on the said date, the appellant no.1 was also released on bail.

Again it was listed on 11.7.2017 and on the said date, no one had

appeared on behalf of the appellants and consequently, a coordinate

Bench of this Court had issued bailable warrants to the appellants

returnable within six weeks. In pursuance of the aforesaid order, the

Chief Judicial Magistrate, Fatehpur submitted a report on 09.8.2019

stating therein that the bailable warrants had been executed against

the appellant no.2, Ram Prasad and the appellant no.4, Munnu

Singh, who have been released on bail on furnishing bail bond and

undertaking that they would appear before the Court. So far as the

appellant no.1 (Munna Singh), the appellant no.3 (Ram Raj Singh)

and the appellant no.5 (Guljar Singh) are concerned, they have all

died and consequently, the Division Bench has dismissed the

appeal, insofar as it relates to the appellant nos.1, 3 and 5, on

06.9.2019 as abated. At present, the present criminal appeal

survives only against appellant no.2, Ram Prasad and the appellant

no.4, Munnu Singh.

8.Shri Manvendra Singh, learned counsel for the appellants

attempted to dislodge the findings recorded by the court-below.

Referring to the postmortem report of deceased, learned counsel for

appellants contended that the doctor, who conducted autopsy on the

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body of deceased, opined that deceased died on account of ante-

mortem injuries sustained by him. On the aforesaid premise, it was

thus urged that from the perusal of ante-mortem injuries sustained

by deceased, the deceased died due to firearm injury. The other

injuries, which were assigned to the appellant nos.2 and 5, were

simple in nature and not fatal. As such, as per prosecution, the

injuries, which were inflicted upon the deceased, are neither

grievous nor fatal. Consequently, present case is not a case of

murder punishable under Section 302 IPC. Therefore, conviction

and sentence of present appellant nos.2 and 4 under Section 302

I.P.C. is manifestly illegal. Even for the sake of argument, if the

injuries sustained to the deceased and role assigned to the appellant

nos.2 and 4 are accepted then even in such eventuality the present

appellant nos.2 and 4 ought to have been convicted under Section

323 IPC.

9.Learned counsel for the appellants submitted that a very

improbable story has been put-forth by the prosecution. The

appellants were implicated in the present matter due to village

enmity in between the deceased and the family of the accused. The

deceased was murdered outside the village by some unknown

persons. As per prosecution case, the main role was assigned to the

appellant no.1, Munna Singh, who had allegedly fired the shot at

the deceased. The deceased sustained two lacerated wounds, which

were simple in nature. These two wounds were assigned to four

accused/appellant nos.2 to 5. There is no specific allegation from

the side of prosecution as to which accused is responsible for these

two lacerated wounds. Moreover, as per report of the Chief Judicial

Magistrate dated 09.8.2019, the appellant nos.1, 3 and 5, Munna

Singh, Ram Raj Singh and Guljar Singh have already died and

consequently, the appeal on their behalf has been dismissed on

06.9.2019 as abated. Smt. Premvati (PW-1) and Ram Niranjan

Singh (PW-2) are relatives of the deceased and thus, only interested

witnesses have been examined. No other independent witness has

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been examined. Even though, it is claimed that occurrence was on

the pathway and after hearing quarrel, Smt. Deo Ratiya and Smt.

Premvati reached on the spot and they lied down over Niranjan

Singh to save him. The first information report had been lodged in

the morning after considerable long time and thus, the false

implication of the appellants cannot be ruled out.

10.Learned counsel for the appellants placed reliance on the

third proviso to Section 141 of IPC, which provides that an

assembly of five or more persons is designated an “unlawful

assembly”, if the common object of the persons composing that

assembly is to commit any mischief or criminal trespass, or other

offence. As such, it was submitted that Section 149 IPC would not

be attracted in the matter. In support of his submission, he has also

placed his reliance on examination-in-chief and cross-examination

of PW-1 and PW-2. It was submitted that at no point of time all the

accused persons joined as unlawful assembly with premeditated

mind for committing the murder of the deceased. He submitted 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. As per prosecution version/statements of PW-

1 and PW-2, when Niranjan Singh (deceased) had approached

Munna Singh, at the said stage all other accused were not present

but after altercation and noise, the rest of the accused persons

joined. Even after hearing the altercation and noise the alleged eye-

witnesse had also joined to Niranjan Singh (deceased). In such

situation the inference cannot be drawn that there was in fact an

unlawful assembly in prosecution of the common object of that

assembly. The entire prosecution was silent on the said point and

even the trial court had also erred in law to appreciate that there

was, in fact, no unlawful assembly at the initial stage.

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11.On the other hand, Shri G.P. Singh, learned A.G.A. supported

the judgment impugned and submitted that the appellants are

named in the first information report. The informant was an eye-

witness of the occurrence. He stated in his statement that the

accused persons obstructed the road wherefrom rainy water flew

towards the south. On 27.6.1989 at about 7 p.m. once the deceased

went to the accused persons to complain regarding the said Bandha

then the appellant no.1 Munna Singh fired shot at the deceased,

who sustained serious injuries and died on the spot. On hearing

sound of the gunfire, his mother and Bhabhi rushed at the place of

occurrence and lied down over the deceased but the accused

persons had also assaulted them. The informant (PW-2) reached on

the spot and witnessed the incident. It is fully proved from the

evidence of PW1 and PW2 that the deceased had been shot dead by

the accused Munna Singh/appellant no.1, who fired shot with the

tamancha at the deceased and other accused persons also beaten

him. The prosecution witnesses are reliable and the guilt of the

appellants was brought home successfully by confidence inspiring

evidences. The defence had failed to point out any acceptable

reason for their false implication and, therefore, impugned

conviction and sentence does not require any alteration or scoring

out. Accused had failed to elicit any favourable evidences from

prosecution witnesses. The recorded conviction of the appellants is

based upon cogent and reliable evidence and the sentence of

imprisonment for life awarded to the accused-appellants is

supported by relevant considerations. Lastly, it was submitted that

there is no evidence available on record as to why eye witness

would falsely implicate the accused. The conviction of the

accused/appellants is strictly in accordance with law and there is no

infirmity in the same. The appeals lack merit and is liable to be

dismissed.

12. We have heard rival submissions and scrutinized the

documentary evidence and also evaluated the oral evidence on

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record to determine the guilt/innocence of appellant nos.2 and 4.

Upon thread bare evaluation of the testimony of prosecution

witness, we find that the court-below has held that the prosecution

witnesses of fact are credible and reliable and hence, their

testimonies are worthy of credit. The testimonies of the prosecution

witnesses of fact are substantially similar and remained consistent

throughout. However, we further find that in view of injuries

sustained by the deceased, it cannot be said that there was a

premeditated mind to commit the murder of deceased. As per ante

mortem injuries the deceased had not sustained any grievous or

fatal injury on account of role assigned to the appellant nos.2 and 4.

The role of firearm injury was assigned to the appellant no.1,

Munna Singh (since deceased). There is no injury on head or on

any vital part of the body. There is nothing on record to show that

there was any mens-rea on the part of accused-appellant nos.2 and

4 to commit the murder of the deceased nor there is any such

circumstances to establish the existence of a calculated mens-rea in

the mind of appellant nos.2 and 4 to take revenge of any act

committed by the deceased prior to the occurrence. In such

circumstance, the question, which arises for determination in this

appeal, is whether the case in hand is one relating to culpable

homicide amounting to murder under Section 302 IPC or under

Section 323, which provides punishment for voluntarily causing

hurt with imprisonment of either description for a term which may

extend to one year, or with fine which may extend to one thousand

rupees, or with both.

13. The appellants have been convicted for having committed the

murder of Niranjan Singh at about 7 p.m on 27.6.1989. The FIR of

the incident was lodged by Ram Niranjan Singh (PW-2) on 28

th

June, 1989 at 8.05 a.m. at P.S. Kishunpur, District Fatehpur. All the

accused persons are named in the FIR and their respective roles

have been clearly defined. The role of causing fatal firearm injury

to the deceased has been attributed to accused Munna

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Singh/appellant no.1 and the other appellant nos.2 to 5 have been

assigned the role of beating by lathies.

14. Smt. Premvati (PW-1) (wife of the deceased/one of the injured

eye-witnesses) vide her on oath statement-in-chief has supported

the version of FIR and stated that all the the five accused persons

belong to her family and Ramraj's father Bhura Singh and her

father-in-law Sarju Singh are real brothers. Her husband Niranjan

Singh was murdered on 27.6.1989 at about 7 p.m., and at that time,

she was with him. Guljar had put the soil in front of his house and

blocked the flow of the rainy water. Due to blocking of flow of the

water, the water started accumulating there, which created a danger

to her house. Her husband asked Guljar to remove the blockage so

that the water might drain off but Guljar started abusing her

husband and refused to remove the blockage. On this hue and cry,

her mother-in-law and brother-in-law came there. Ram Prasad,

Mannu, Ramraj, and Munna also came there. Among these, Munna

was armed with tamancha and rest all the four were armed with

lathies. All these five accused persons started abusing her husband

and meanwhile, Munna fired gunshot on her husband, which caused

injuries to her husband and he fell down on ground. The other

accused persons, who were armed with lathies, started beating

them, which caused injuries to her husband and mother-in-law. The

accused persons fled eastward after beating them. Her brother-in-

law & Sanwarey Singh started taking her husband to hospital and

when they reached near Chandrabhan’s Mahua tree outside the

village, her husband died. She further stated that first of all, Guljar

Singh only fired the shot her husband and when her husband fell

down, the accused persons beat him with lathies. Munna Singh was

standing at a distance of three–four hands length from where Guljar

Singh fired the shot.

15.Ram Niranjan Singh (PW-2) (complainant and eyewitness to

the incident) vide his examination-in-chief has reiterated the

version of FIR and stated that the rainy water of his house used to

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flow through the road in front of the house of the deceased since

long time. The blockage was made three days before the

occurrence. Apprehending danger to the house, the deceased went

to the house of Guljar Singh and asked him to remove the

obstruction. The complainant was present at his door and his

mother and Bhabhi Prema were also present there. Guljar Singh

refused to remove the obstruction and started abusing the deceased.

At the time of the conversation, the other accused persons namely

Ram Raj, Mannu, Ram Prasad and Munna Singh also came there.

Munna was armed with tamancha and rest were armed with lathies.

Guljar was already armed with lathi. The accused Munna Singh

opened fire at the deceased, which hit him on lower abdomen and

he fell down on ground. His mother and Bhabhi rushed and lied

down over the deceased but all the four accused persons assaulted

him with lathies. His brother was alive, hence he managed to take

him to the hospital on a cart but as soon as they reached beneath

Chandraman Singh's Mahua tree, his brother Niranjan Singh died.

The dead body remained beneath the tree itself for the whole night

and it was not brought home. On 28.6.1989 at 08.05 a.m, PW-2

came to the police station and moved the written complaint.

16. Dr. Rakesh Kumar Mishra (PW-3) in his statement-in-chief

stated that he conducted post-mortem examination on dead body of

the deceased on 30.6.1989, wherein he found ante-mortem injuries.

He stated that deceased died about three days before conducting

post-mortem due to trauma and hemorrhage. He found several

lacerated wounds of size 1 cm x 1 cm and 3 cm x 3 cm in large and

small intestines. The left kidney was lacerated at the bottom and

bladder was burst. He admitted the possibility of death of deceased

on 27.6.1989 at 7 p.m. due to ante-mortem injuries. He admitted

that injury nos.3 and 4 were probably caused by blunt object.

During the cross-examination PW-3 stated that there may be

difference of 4-6 hours both sides in the duration of death of

deceased. The deceased died due to the said injuries. Injury nos.3

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and 4 were possibly caused by falling on a hard substance.

17.Sub Inspector Deen Dayal Singh (PW-4) in his statement-in-

chief had proved the chick report/FIR, which was marked as

Ext.Ka-3 and the extract of G.D. prepared by Head Moharrir

Rupendra Kumar Dubey marked as Ext. Ka-4. PW-4 stated that the

case was handed over to him for investigation. On 28.6.1989 he

recorded the statement of the informant Ram Niranjan Singh and

Head Moharrir at the police station. Thereafter, he reached the spot,

examined the dead body of deceased and prepared inquest report in

his handwriting and signature. He prepared documents for

conducting post mortem examination and sent to Medical Officer,

Incharge Government Hospital. On 05.7.1989 the statements of

accused were recorded. He also recorded the statement of witness

Saware Singh on 12.7.1989. After investigation, he submitted the

charge sheet in the matter. In the cross-examination, the witness

stated that he found the dead body under the Mahua tree. The

complainant did not show him blood stained quilt, sheet, cot etc. He

did not find blood stains where the dead body was lying. He did not

find blood and pellets at the scene of occurrence. In FIR the

distance of scene of occurrence from the police station is written as

16 Km, while in the inquest report the distance is mentioned as 18

Km. He went on the spot by bicycle. The spot from where accused

fired has not been shown in the map and the same was missed out

by mistake. He had prepared injury letter of Devrati and Prempati

and seen their injuries. He sent them to hospital from the scene of

occurrence. He had mentioned their injuries in the case diary. Two

injuries were caused to Devrati; one below the left eye and another

on left cheek. Contusion appeared on the body of Prempati.

18.Dr. S.N. Tripathi (PW-5) has stated in his statement-in-chief

that he had medically examined Smt. Devaratia on 28.6.1989 at

6.30 p.m. In his opinion, both the injuries were ordinary and caused

by some blunt weapon i.e. lathi. As per report, following injuries

were found on her person:-

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“1. Contusion 5 cm x 2 cm. All around the left orbit conjunction is red

on medial side. Contusion is bluish red.

2.Contused swelling 5 cm x 2 cm. On left mandicular region 4 cm.

Below lower lip of the left ear.

19. Dr. S.N. Tripathi (PW-5) had also medically examined the

injuries of Prempati on same day i.e. 28.6.1989 at 06.45 p.m. In his

opinion all the injuries were ordinary and caused by blunt weapon

i.e. lathies. The injuries of both the injured were caused a day

before and were possibly caused on 27.67.1989 at 7 p.m. He

prepared the report of injuries in his handwriting and signatures at

the time of examination. These were marked as Ex. Ka-14 and

Ex.15 respectively. As per report, following injuries were found on

her:-

“1. Contusion 12 cm x 3 cm. On right leg lateral surface at middle

colour blueish red.

2.Contusion 8 cm x 4 cm. On right leg lateral surface 3 cm. Below

the right knee joint.

3.Contusion 11 cm x 3 on left side of back 3 cm. Below the lower

end of scapula.

4.Contusion 6 cm x 3 cm. On left shoulder anterior lateral surface

colour same as injury number 1.”

20.No other testimony was adduced by the prosecution, therefore,

the evidence of the prosecution was closed and the statement of

accused was recorded under Section 313 Cr.P.C., wherein they

claimed themselves to be innocent and submitted that they have

been falsely implicated in the present case on account of enmity.

After hearing both the sides on the merit of the case and after

considering the evidence and facts on record, the trial court

recorded the finding of conviction, as aforesaid, and sentenced

them accordingly.

21. From the evidence on record it is clear that the accused

Munna Singh and Ram Prasad are the sons of the accused Guljar

Singh, whereas accused Ram Raj Singh and Mannu Singh are

brothers of the accused Guljar Singh and sons of one Bhoora Singh.

Bhoora Singh and Sarju Singh were real brothers. The informant

Ram Niranjan Singh and the deceased Niranjan Singh are sons of

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Sarju. The house of the informant and the deceased lies towards

north of the house of the accused. In front of their houses, there is a

public road which runs north-south. The accused persons put the

obstruction on the road, where-from the rainy water flew towards

south. On 27.6.1989 at about 7 p.m., the deceased went to the

accused persons for complaining about the aforesaid obstruction. At

the said place, the accused persons met the deceased over the road,

where the obstruction was put. The appellant no.1, Munna Singh

fired the shot by the tamancha at the deceased, who sustained

serious injuries and became unconscious for some times and

thereafter died on the spot. After hearing the sound of the fire, Smt.

Deo Ratiya, Smt. Premvati, Ram Niranjan, Sanware Singh and

several other persons of the village reached there. Smt. Deo Ratia

and Smt. Premvati lied down over Niranjan Singh to save him from

further assault but the accused persons also assaulted them by the

lathies. The complainant has lodged the first information report

against the accused persons on 28.6.1989 at 08.05 a.m. at P.S.

Kishunpur, District Fatehpur. All the accused have been named in

the FIR and their respective roles have been assigned. The role of

causing fatal firearm injury to the deceased has been attributed to

accused Munna Singh/appellant no.1 and the other appellant nos.2

to 5 have been assigned the role of beating the deceased by lathies.

Finally, the trial court convicted and sentenced the appellants for

having committed the murder of Niranjan Singh on 27.6.1989 to

undergo imprisonment for life.

22.Incident was witnessed by Smt. Premvati (PW-1/injured

witness) and Ram Niranjan Singh (PW-2), who have deposed that

accused/appellant no.1 Munna Singh fired gunshot on the deceased,

which caused injuries to him and he fell down on ground. Rest of

the accused persons, who were armed with lathies, started beating

to PW-1, Niranjan Singh (deceased) and Smt. Deo Ratiya (mother

of the informant) which caused injuries to the deceased and Smt.

Deo Ratia. The main role has been assigned to the appellant no.1,

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Munna Singh, who had allegedly fired gunshot on the deceased.

The other accused/appellant nos.2 to 5 also assaulted him by the

lathies. The deceased also sustained two lacerated wounds and

these two wounds were assigned to four accused (appellant nos.2 to

5). There is no specific allegation from the side of prosecution as to

which accused is responsible for these two lacerated wounds. As

per post-mortem report of the deceased, the cause of death was due

to shock and hemorrhage as a result of ante-mortem injuries. There

is no evidence of any previous enmity between the accused persons

and the deceased.

23.It is alleged that the appellant no.1 fired the gunshot on the

deceased which resulted in his death. The beating by the appellants

no.2 to 5 had also caused injuries to the deceased. The doctor, who

conducted post-mortem examination, had also opined that the cause

of death of deceased was due to shock and hemorrhage as a result

of ante-mortem injuries. As per report of the Chief Judicial

Magistrate, Fatehpur dated 09.8.2019, the appellant no.1, Munna

Singh, appellant no.3 Ram Raj Singh and the appellant no.5 Guljar

Singh have already died and consequently, the present appeal,

insofar as it relates to the appellant nos.1, 3 and 5, has already been

dismissed on 06.9.2019 as abated. At present, the present criminal

appeal survives only against appellant no.2, Ram Prasad and the

appellant no.4, Munnu Singh.

24.As per the evidence on record, the incident took place on

27.6.1989 on account of putting of blockage on the road by Guljar

Singh and other accused persons. Record also shows that Niranjan

Singh (deceased) reached there and asked Guljar Singh to remove

the obstruction. Then the appellant no.1 Munna Singh also reached

there and fired from tamancha on the deceased, who sustained

serious injuries. The appellant nos.2 and 4 also assaulted Niranjan

Singh (deceased) by lathies and they did not use any other kind of

weapon while assaulting the deceased. In such a situation, by no

stretch of imagination, it can be inferred that the accused persons

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had any intention of causing death of deceased or had any intention

of causing such bodily injury which was likely to cause his death in

the ordinary course of nature or had any knowledge that the injuries

caused by them would result in death.

25.Perhaps an equally important question would be whether the

appellant and his companions at all constituted an unlawful

assembly and if they did, whether murder of the deceased Niranjan

Singh by appellant no.1, Munna Singh, who was one of the

members of the unlawful assembly would, in the facts and

circumstances of the case, attract the provisions of Section 149 IPC

so as to make the appellant nos.2 and 4 also responsible for the act.

26. Coming to the facts of the present case, the first and foremost

of the notable circumstances is that as per prosecution case the

appellant nos.2 and 4 were armed with lathi (stick) and according to

the prosecution witnesses, they had also assaulted the deceased. In

these circumstances, the question is whether the sudden action of

one of the members (namely appellant no.1 Munna Singh) of the

unlawful assembly constitutes an act in prosecution of the common

object of the unlawful assembly, namely, preventing of bandha

(obstruction) in question and whether the members of the unlawful

assembly knew that such an offence was likely to be committed by

any member of the assembly? Our answer is in the negative.

27.Hon'ble Apex Court has in a long line of decisions examined

the scope of Section 149 of the Indian Penal Code, wherein the

appellant could not, in the facts and circumstances of the case at

hand, be convicted under Section 302 read with Section 149 IPC.

In Chikkarange Gowda v. State of Mysore

1

the Apex Court was

dealing with a case where the common object of the unlawful

assembly simply was to chastise the deceased. The deceased was,

however, killed by a fatal injury caused by certain member of the

unlawful assembly. The court below convicted the other member of

the unlawful assembly under Section 302 read with Section 149

1. AIR 1956 SC 731

16

IPC. Reversing the conviction the Apex Court held:-

"9. It is quite clear to us that on the finding of the High Court with regard

to the common object of the unlawful assembly, the conviction of the

appellants for an offence under Section 302 read with Section 149 Indian

Penal Code cannot be sustained. The first essential element of Section

149 is the commission of an offence by any member of an unlawful

assembly; the second essential part is that the offence must be committed

in prosecution of the common object of the unlawful assembly, or must

be such as the members of that assembly knew to be likely to be

committed in prosecution of the common object.

In the case before us, the learned Judges of the High Court held that the

common object of the unlawful assembly was merely to administer a

chastisement to Putte Gowda. The learned Judges of the High Court did

not hold that though the common object was to chastise Putte Gowda, the

members of the unlawful assembly knew that Putte Gowda was likely to

be killed in prosecution of that common object. That being the position,

the conviction under Section 302 read with Section 149 Indian Penal

Code was not justified in law."

28. In Gajanand & Ors. Vs. State of Uttar Pradesh

2

, the Apex

Court approved the following passage from the decision of the

Patna High Court in Ram Charan Rai Vs. Emperor

3

:

"Under Section 149 the liability of the other members for the offence

committed during the continuance of the occurrence rests upon the

fact whether the other members knew before hand that the offence

actually committed was likely to be committed in prosecution of the

common object. Such knowledge may reasonably be collected from

the nature of the assembly, arms or behavior, at or before the scene

of action. If such knowledge may not reasonably be attributed to the

other members of the assembly then their liability for the offence

committed during the occurrence does not arise".

(emphasis supplied)

29. Thereafter, in Gajanand case (supra) the Apex Court reiterated

the legal position as under:

"The question is whether such knowledge can be attributed to the

appellants who were themselves not armed with sharp edged weapons.

The evidence on this point is completely lacking. The appellants had only

lathis which may possibly account for Injuries 2 and 3 on Sukkhu's left

arm and left hand but they cannot be held liable for murder by invoking

the aid of Section 149 IPC. According to the evidence only two persons

were armed with deadly weapons. Both of them were acquitted and Sosa,

who is alleged to have had a spear, is absconding. We are not prepared

therefore to ascribe any knowledge of the existence of deadly weapons to

the appellants, much less that they would be used in order to cause

death."

30. In Mizaji and Anr. Vs. State of U.P.

4

the Supreme Court was

2. AIR 1954 SC 695

3. AIR 1946 Patna 242

4. AIR 1959 SC 572

17

dealing with a case where five persons armed with lethal weapons

had gone with the common object of getting forcible possession of

the land which was in the cultivating possession of the deceased.

Facing resistance from the person in possession, one of the

members of the assembly at the exhortation of the other fired and

killed the deceased. The Apex Court held that the conduct of the

members of the unlawful assembly was such as showed that they

were determined to take forcible possession at any cost. Section

149 of IPC was, therefore, attracted and the conviction of the

members of the assembly for murder legally justified. The Apex

Court analysed Section 149 in the following words:

"6. This section has been the subject matter of interpretation in the

various High Court of India, but every case has to be decided on its own

facts. The first part of the section means that the offence committed in

prosecution of the common object must be one which is committed with

a view to accomplish the common object. It is not necessary that there

should be a preconcert in the sense of a meeting of the members of the

unlawful assembly as to the common object; it is enough if it is adopted

by all the members and is shared by all of them. In order that the case

may fall under the first part the offence committed must be connected

immediately with the common object of the unlawful assembly of which

the accused were members. Even if the offence committed is not in direct

prosecution of the common object of the assembly, it may yet fall under

section 149 if it can be held that the offence was such as the members

knew was likely to be committed. The expression 'know' does not mean a

mere possibility, such as might or might not happen. For instance, it is a

matter of common knowledge that when in a village a body of heavily

armed men set out to take a woman by force, someone is likely to be

killed and all the members of the unlawful assembly must be aware of

that likelihood and would be guilty under the second part of section 149.

Similarly, if a body of persons go armed to take forcible possession of

the land, it would be equally right to say that they have the knowledge

that murder is likely to be committed if the circumstances as to the

weapons carried and other conduct of the members of the unlawful

assembly clearly point to such knowledge on the part of them

all."

31. In Shambhu Nath Singh and Ors. Vs. State of Bihar

5

, the

Apex Court held that members of an unlawful assembly may have a

community of object upto a certain point beyond which they may

differ in their objects and the knowledge possessed by each member

of what is likely to be committed in prosecution of their common

object may vary not only according to the information at his

5. AIR 1960 SC 725

18

command but also according to the extent to which he shares the

community of object. As a consequence, the effect of Section 149

of the Indian Penal Code may be different on different members of

the same unlawful assembly. Decisions of the Apex Court in

Gangadhar - Behera and Others Vs. State of Orissa

6

and Bishna

Alias Bhiswadeb Mahato and Others Vs. State of West Bengal

7

similarly explain and reiterate the legal position on the subject.

32. In the examination-in-chief of Smt. Premvati (PW-1) she

herself had accepted that due to blocking of flow of water, the water

started accumulating there, which created danger to her house. Her

husband asked Guljar to remove the blockage so that the water

might drain off but Guljar started abusing her husband and refused

to remove the blockage. On this hue and cry, her mother-in-law and

brother-in-law came there. It is also categorically stated that

subsequent to hue and cry, Ram Prasad, Mannu, Ramraj, and

Munna also came there. Munna was armed with tamancha and rest

all the four were armed with lathies. All accused persons started

abusing her husband and meanwhile, Munna fired gunshot on her

husband. But in her cross-examination she had also assigned the

role of firing to Guljar and stated that firstly, he opened the fire and

when her husband fell down, Munna Singh opened the fire. In

cross-examination she has changed the entire prosecution case, FIR

and medical evidence. Even in her own examination-in-chief she

only assigned the role of firing to Munna Singh, as such her

testimony is also doubtful. In such situation, it cannot be presumed

that when Niranjan Singh (deceased) approached Guljar for

removal of obstruction on the road, prior to it there was an unlawful

assembly with premeditated mind with common object that

whenever Niranjan Singh (deceased) approaches, they will assault

and kill him. In such situation, it cannot be accepted that there was

any unlawful assembly. The similar view is also reiterated by Ram

6. 2002 (8) SCC 381

7. 2005 (12) SCC 657

19

Niranjan Singh (PW-2/complainant and eye witness of the incident)

vide his examination-in-chief. He has also reiterated the version of

the FIR with categorical term that apprehending danger to the

house, Niranjan Singh (deceased) went to the house of Guljar Singh

and asked him to remove the obstruction. Nowhere in the

examination-in-chief either PW-1 and PW-2 had accepted that

when Niranjan Singh went to the house of Guljar Singh for removal

of the obstruction then all the accused persons were already present

with premeditated mind to commit crime. In fact there was

altercation between Ram Niranjan (deceased) and Guljar Singh and

Guljar Singh abused to the deceased and there was scuffle between

them. At the time of conversation/altercation all the other accused

persons also joined him.

33.So far as ante martem injury nos.3 and 4 of the deceased are

concerned, they were probably by blunt object. Even during the

cross-examination Dr. Rakesh Kumar Mishra (PW-3) had also

stated that both the injuries were possibly caused by falling on a

hard substance. As per prosecution case the present appellant nos.2

and 4 have been assigned the role of assaulting the deceased by

lathies and as such, it cannot be accepted that these injuries were

caused only due to assault by the present appellant nos.2 and 4. We

may also like to add that Sub Inspector Deen Dayal Singh (PW-4)

in his statement-in-chief had proved the chick report/FIR (Ext. Ka-

3) and the extract of G.D. prepared by the Head Moharrir Rupendra

Kumar Dubey (Ext. Ka-4). He had also recorded the statement of

informant Ram Niranjan Singh and Head Moharrir at the Police

Station and after investigation he submitted the chargesheet. In the

cross-examination the witness stated that he found the dead body

under the Mahua tree and the complainant did not show him blood

stained quilt, sheet, cot etc. Even he did not find blood stains where

the dead body was lying. He also accepted that he did not find

blood and pellets at the scene of occurrence. Even the spot from

where accused fired has not been shown in the map. An excuse was

20

given that the same had happened out of mistake. It also transpires

from the record that he prepared injury letter of Devratia and

Prempati and sent them to the hospital. The injuries were also

mentioned in the case diary and two injuries were caused to

Devrati, one below the left eye and another on left cheek and

contusion appeared on the body of Prempati. Dr. S.N. Tripathi

(PW-5) had also stated in his statement-in-chief that he medically

examined Smt. Devratia and opined that both the injuries were

ordinary and caused by some blunt weapon. He had also examined

Smt. Prempati.

34.We have also examined the examination-in-chief of PW-1 and

PW-2 and their cross-examinations and nowhere it can be accepted

that there was an unlawful assembly as per Section 141 IPC. As per

prosecution case, Munna Singh was armed with tamancha and rest

of the accused namely Ram Raj, Mannu, Ram Prasad were armed

with lathies. Munna Singh opened fire at the deceased. The first

essential element of Section 149 is the commission of an offence by

any member of an unlawful assembly; the second essential part is

that the offence must be committed in prosecution of the common

object of the unlawful assembly, or must be such as the members of

that assembly knew to be likely to be committed in prosecution of

the common object. Under Section 149 IPC, the liability of the

other members for the offence committed during the continuance of

the occurrence rests upon the fact whether the other members knew

that the offence actually committed was likely to be committed in

prosecution of the common object. Such knowledge may

reasonably be collected from the nature of the assembly, arms or

behavior, at or before the scene of action. If such knowledge may

not reasonably be attributed to the other members of the assembly

then their liability for the offence committed during the occurrence

does not arise. In such situation it may also be essential to examine

whether such knowledge can be attributed to the appellants, who

are themselves not armed with lethal weapon/sharpened weapon.

21

The evidence on this part is completely lacking/missing. The

present appellants had only lathies which may possibly account for

injury nos.3 and 4.

35.In the case at hand, there is, in our opinion, no evidence to

show that the appellants knew that in prosecution of the common

object of preventing the deceased from removal of the bandha

(obstruction) on the passage the members of the assembly or any

one of them was likely to commit the murder of the deceased.

There is indeed no evidence to even show that the appellants knew

that Munna Singh (appellant no.1) was carrying a gun with him,

which he could use. The conduct of the members of the assembly

especially the appellants also does not suggest that they intended to

go beyond preventing the fence (bandha).

36.Coming to the case at hand we need to keep in mind that the

incident in question had taken place as early as in the year 1989.

The appellants have faced a prolonged trial and suffered the trauma

of uncertainty arising out of their conviction by the Trial Court.

Besides the appellants have had no criminal antecedents or

involvement in any case, before or after the incident in question.

We have, therefore, no hesitation in holding that the Court below

fell in error in convicting the present appellant nos.2 and 4 for

murder under Section 302 read with Section 147 and 149 of the

IPC. However, looking to the evidence on record suggestive of

hurling of filthy abuses coupled with threat of life followed by

assault to the deceased and PW-1 by the present accused-appellants

by lathies, conviction and sentence imposed on the present

accused/appellants no.2 and 4 under Section 323 IPC requires no

interference as to that extent no illegality or infirmity is seen in the

judgment impugned.

37.In the result, we allow this appeal in part, set aside the

conviction and sentence awarded to the present appellant nos.2 and

4 under Sections 302 read with Sections 147 and 149 IPC and

22

acquit the appellant nos.2 and 4 of that charge. The conviction and

sentence imposed on the present accused/appellants under Section

323 IPC is hereby maintained and the period of sentence already

undergone by them deserves to be treated as sufficient sentence.

Order Date :-30.05.2022

RKP