1

A.F.R.

Reserved on 08.08.2019

Delivered on 11.09.2019

Court No. - 42

Case :- CRIMINAL APPEAL No. - 826 of 1991

Appellant :- Rajveer Singh And Others

Respondent :- State

Counsel for Appellant :- Ravindra Singh,Dinesh Kumar Bhaskar,

Pawan Singh

Counsel for Respondent :- A.G.A.

Hon'ble Manoj Misra,J.

Hon'ble Virendra Kumar Srivastava,J.

(Delivered by Hon’ble Virendra Kumar Srivastava,J.)

1.The instant appeal has been filed under Section 374 of Code

of Criminal Procedure, 1973 (hereinafter referred to as “Code”)

against the judgment and order dated 23.4.1991 passed by Special

Judge, Moradabad in Session Trial No. 586 of 1988 (State vs.

Rajveer Singh and others), P.S. Naugawa Sadat, District

Moradabad, U.P., whereby, appellants Rajveer Singh and Jagat

Veer Singh have been convicted and sentenced to imprisonment

for life, whereas, appellants Suresh, Viresh and Teeka Ram have

been convicted and sentenced to undergo 7 years rigorous

imprisonment for offence under Section 307 read with Section

149 and all the appellants have further been convicted for offence

under Section 148 IPC and sentenced to undergo rigorous

imprisonment for a term of 2 years. All the sentences have been

directed to run concurrently.

2.The brief facts of the prosecution case are that appellants

Rajveer Singh, Jagat Veer Singh, Suresh, Viresh and Teeka Ram;

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PW-1, Hari Raj Singh; PW-4, Dinesh Kumar and PW-5, Dushyant

are residents of Village Jamuna Khas, P.S. Naugawa Sadat,

District Moradabad. Appellants, namely, Rajveer Singh and Jagat

Veer Singh, are real brothers. Appellants Suresh and Viresh are

also real brothers. PW-2, Shoorveer Singh is brother-in-law of

PW-1, Hari Raj Singh.

3.It is the prosecution case that while, on 29.1.1984, PW-1,

Hari Raj Singh was irrigating his field by a diesel pump set of

PW-4, Dinesh Kumar, at about 10:00 p.m., PW-2, Shoorveer

Singh came there and told that appellants Rajveer, Jagat Veer,

Suresh and Viresh armed with guns, whereas, appellant Teeka

Ram armed with sword, were coming from the Haveli of appellant

Suresh towards him ( Hari Raj Singh). PW-1, Hari Raj Singh told

him not to worry as appellants Viresh and Suresh were also with

them. As a result, both of them sat under the bullock cart with

lantern, emmitting light, hanging at its back. At about 11:00 p.m.,

all the appellants reached the place of occurrence, where PW-1,

Hari Raj Singh, PW-2, Shoorveer Singh and PW-4, Dinesh were

sitting. Seeing them, PW-1, Hari Raj Singh came out from under

the bullock cart. Whereafter, appellant Jagat Veer fired at PW-2,

Shoorveer Singh which hit his hands; PW-1, Hari Raj Singh

caught appellant Jagat Veer Singh by his arms and bit his

shoulder. Upon which, appellant Rajveer Singh exhorted appellant

Teeka Ram to attack him with sword. As appellant Teeka Ram

was about to attack Hari Raj Singh (PW-1), he released appellant

Jagat Veer Singh and as soon as PW-1, Hari Raj released him,

appellant Rajveer fired at PW-1, Hari Raj Singh which hit his left

hand, whereby, he fell down. After the firing, appellants came

near PW-2, Shoorveer, to verify whether PW-2, Shoorveer was

alive or not. Upon information from Suresh that he was about to

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die, upon sensing that on alarm raised by PW-1, Hari Raj Singh

and PW-2, Shoorveer Singh, persons present at a crusher nearby

were coming, the appellants ran away. In the night, PW-1, Hari

Raj Singh sent PW-5, Dushyant along with one Subhash and

Ravindra to P.S. Naugawa Sadat to lodge First Information

Report (hereinafter referred to as “F.I.R.”), but the same was not

lodged as Station Officer of P.S. Naugawa Shadat advised them to

arrange for treatment of injured first instead of bothering to lodge

an F.I.R. Next day, in the morning, PW-1, Hari Raj and PW-2,

Shoorveer Singh were taken to Combined Health Centre (CHC),

Amroha by tractor of PW-5, Dushyant.

4.PW-3, Dr. A.K. Mehrotra, Medical Officer, Combined

Health Centre, Amroha, examined the injuries of PW-1, Hari Raj

Singh and PW-2, Shoorveer Singh on 30.1.1984. The injuries

noticed were as follows:

(a) Injuries on PW-1, Hari Raj Singh.

(i) fire arm wound of entry, size 3.2 cm x 3.2 cm

through and through on inner side of left upper

arm, 4 cm above from the left elbow joint,

margins everted, bleeding present after cleaning of

wound.

(ii) fire arm exit wound, size 15.0 cm x 13.0 cm

through and through on the injury no. 1; interior

portion of left upper arm, left elbow joint and

upper portion of left forearm, margins everted,

bleeding present after cleaning the wound.

(iii) lacerated wound size 3 cm x 3 cm x muscle

deep on the inner portion of left upper arm 2 cm

below the injury no. 1, bleeding present, after

cleaning of wound.

(b) Injuries on PW-2, Shoorveer Singh.

(i) fire arm wound of entry, size 3 cm x 3 cm

through and through on the back of right elbow

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joint, inner side and margin everted, bleeding was

present after cleaning. Blackening is present.

(ii) fire arm wound exit size 4.5 cm x 4.0 cm

through and through to the injury no. 1 right in the

arm, inner side. Margin everted 8 cm below the

right elbow joint. Bleeding after cleaning the

wound was present. Injuries was surrounded by

swelling size 20.0 cm x 15.0 cm on the right upper

arm and right forearm.

5.After medical examination, on the dictation of PW-1,Hari

Raj Singh,written report Ex ka1 was prepared by Satyaveer Singh.

After putting his thumb impression on it, PW-1, Hari Raj Singh ,

sent Satyaveer Singh to P.S. Naugawa Sadat to lodge the same.

Whereafter, FIR (Ex.ka.4) was lodged at 12:30 on 30.1.1984.

6.Investigation was taken over by Hukum Singh Yadav,

Inspector, P.S. Naugawa, (hereinafter referred to as ‘I.O.’) who

inspected the place of occurrence and took sample of blood

stained and plain earth, blood stained bed sheet, empty cartridges

from the place of occurrence and prepared recovery memo

(Ex.Ka.14 and Ex.Ka.16); he also inspected the lantern, took it

into his custody and prepared its recovery memo (Ex.Ka.17).

During investigation, two persons, namely, Ram Singh and Om

Pal Singh, were arrested and, it appears, from their possession,

country made pistols were recovered which were sent for forensic

science laboratory, Lucknow, along with empty cartridges found at

the place of occurrence. On the application of Hari Raj Singh

(PW-1), as he was not satisfied with investigation, investigation

was transferred to CBCID, Lucknow and entrusted to PW-8, Sri

Krishna Srivastava, Inspector in CBCID, Lucknow who inspected

the place of occurrence, prepared site plan (Ex.Ka.9) and recorded

the statement of witnesses. Meanwhile, PW-8, Sri Krishna

Srivastava was transferred and investigation was handed over to

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another investigating officer. Thereafter, charge-sheet Ex.Ka.10

and Ex.Ka.11 u/s 147,148, 149 and 307 IPC, was filed against the

appellants upon which cognizance was taken by the concerned

Magistrate and since the offences were exclusively triable by a

Court of Session, after providing copies of necessary documents,

as required u/s 207 of the Code, to the appellants, committed the

case for trial to Court of Session, Moradabad.

7.Charges u/s 307 and 148 IPC were framed against

appellants Jagatveer Singh and Rajveer Singh whereas u/s 148 and

307 read with 149 IPC were framed against appellants Suresh,

Viresh and Teeka Ram, which were read over to the appellants.

The appellants denied the charges and claimed for trial.

8.The prosecution examined eight witnesses, out of whom

PW-1, Hari Raj Singh, PW-2, Shoorveer Singh and PW-4, Dinesh

Kumar are witnesses of fact and rest are formal witnesses. PW-3,

Dr. A.K. Mehrotra had examined the injuries of PW-1 Hari Raj

Singh and PW-2, Shoorveer Singh; PW-5, Dushyant is a formal

witness, who was sent after the occurrence to inform the police

and on whose tractor the injured were sent next day to the

hospital.

9.PW-6, Const. Ibrahim Khan is a witness who has registered

the chick F.I.R. and made entry of the occurrence in General

Diary. PW-7, Hareram Singh is recordkeeper Safadarjang

Hospital, New Delhi and PW-8, Sri Krishna Srivastava is

investigating officer of the case.

10.After closure of prosecution evidence, appellants were

examined under Section 313 of the Code. They denied the

prosecution version and stated that they are innocent and have

falsely been implicated. They had further stated that during

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investigation, Ram Singh and Om Pal Singh were arrested by the

Investigating Officer who had confessed their guilt.

11.Appellants were afforded opportunity to lead evidence in

their defence. DW-1 Basdev Prasad Sharma, Head Const. Sadar

Malkhana, Moradabad was produced by the appellants in their

defence.

12.After hearing counsel for the parties, Trial Court found

accused-appellants guilty of the charge under Sections 307 read

with Section 149 and Section 148 I.P.C. and, accordingly,

convicted and sentenced them as above. Aggrieved by the

impugned judgment and order, appellants have preferred this

appeal.

13.At the very outset, it is pertinent to note that during the

pendency of this appeal, appellants nos. 1, 2, 3 and 5 namely

Rajveer Singh, Jagat Veer Singh, Suresh and Teeka Ram had died

and appeal in regard to them had been abated vide order dated

1.7.2019. Therfore, the appeal of only Viresh survives.

14.We have heard Sri Pawan Singh Pundir, learned counsel for

the appellant (Viresh) and learned A.G.A. for the State.

15.Learned counsel for the appellant Viresh has submitted that

he is innocent and has been falsely implicated. He was not a

member of any unlawful assembly; from the evidence on record, it

has not been proved as to whether he had a common object or had

knowledge regarding any such object; no evidence has been

produced by the prosecution in this regard. Learned counsel has

further submitted that F.I.R. was lodged after a delay of more than

13 hours of the occurrence without any satisfactory and plausible

explanation. Medical evidence is also not corroborated with ocular

evidence. All the prosecution witnesses are interested witness.

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Conduct of injured witnesses is neither natural nor trustworthy.

Appellant has no motive either to commit any offence or to be a

member of any unlawful assembly. The impugned judgment and

order passed by the Trial Court is against the settled principle of

law and liable to be set aside. Appellant is entitled for acquittal.

He has placed reliance on Nagesar Vs. State of Chhatisgarh

(2014) CrLJ 2948.

16.Per-contra, learned A.G.A. , vehemently opposing the

submission advanced by the learned counsel for the appellant, has

submitted that alleged offence has been caused in the prosecution

of a common object of member of unlawful assembly. Presence of

appellant Viresh at the place of occurrence with deadly weapon

has been proved by the prosecution beyond reasonable doubt.

Learned A.G.A. further submitted that though the remaining

appellants, who played active role in causing grievous injuries as

also attempt to take the life of injured witnesses, have died, but

appellant (Viresh) cannot be given any benefit on that score as he

was part of the unlawful assembly. He has further submitted that

the statement of injured witnesses supported with medical

evidence cannot be disbelieved only on the ground of delay in

F.I.R. because delay has been explained and is not fatal to the

prosecution case.

17.We have considered rival submission of the learned counsel

for the parties and have gone through the entire record.

18.PW-1, Hari Raj Singh has stated that accused-appellants,

Rajveer Singh, Jagat Veer Singh, Suresh, Viresh and Teeka Ram

are residents of his village and he knew them very well; appellants

Raj Veer Singh and Jagat Veer Singh are real brothers; Suresh and

Viresh are also real brothers who were his real nephews. He stated

that at the time of occurrence, he had hired an engine of Dinesh

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(PW-4) to irrigate his field and when he was irrigating his field,

Dinesh (PW-4) and his servant Khem Singh was present at his

field. He stated that on the fateful day, irrigation started at 2:00

p.m. At about 8:00 p.m., his brother-in-law Shoorveer Singh (PW-

2) and Balbeer Singh, (father of PW-4) brought their dinner at the

tube well. After dinner, Balbeer Singh and Shoorveer Singh (PW-

2) returned back. He stated that at about 10:00 p.m., Shoorveer

Singh (PW-2) came and told him that appellants Rajveer Singh,

Jagatveer Singh, Suresh, Viresh armed with gun and Teekaram

armed with sword had emerged from the house of appellant

Suresh and were coming towards him. On hearing that he told

Shoorveer Singh (PW-2) that as his nephews were there with

appellant Rajveer Singh, he does not apprehend any danger and

therefore he sat under the bullock cart with Shoorveer Singh (PW-

2) and Dinesh (PW-4). At that point in time a lantern was hanging

from the rear side of bullock cart and was emmitting light. At

about 11:00 p.m., all the five appellants appeared there. Seeing

them, he (PW-1) came out from under the bullock cart.

Whereafter, appellant Jagat Veer Singh fired from his gun at PW-

2, Shoorveer Singh thereby causing injury to him (PW-2). PW-1

stated that he caught hold appellant Jagatveer Singh and bit his

shoulder. Consequently, appellant Jagat Veer Singh cried. Seeing

that appellant Rajveer Singh asked appellant Teeka Ram to attack

PW-1 with sword. As appellant Teeka Ram raised his sword

towards him, he (PW-1) released appellant Jagat Veer Singh and

let him move away. Thereafter, appellant Rajveer Singh fired at

him (PW-1) from his gun which hit PW-1 on his left arm. As a

result, he fell down. Thereafter, appellants went to PW-2,

Shoorveer Singh. Appellant Jagat Veer Singh asked appellant

Suresh to verify whether Shoorveer Singh was alive. Whereupon ,

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he replied that although PW-2 was still breathing but was almost

dead. Whereafter, appellants ran away from the place of

occurrence towards west.

He further stated that, hearing the sound of fire, persons

present at the crusher in village Dakhawada raised alarm but

nobody came there. As a result, he called Dinesh (PW-4) to take

him out of the water. Some how, he got up and sent Dinesh to the

crusher with instruction to call persons present there to carry him

from there. He narrated in detail as to how he and PW-2,

Shoorveer Singh reached their house and from there he sent

Ravindra @ Munne, Subhash and PW-5, Dushyant to lodge F.I.R.

but at the police station, Station Officer Hari Raj Singh Tyagi told

them that they should take injured for treatment and refused to

lodge F.I.R. He further stated that they (PW-5, Dushyant and

others) returned and told him about refusal to register the F.I.R.

Thereafter, he and Shoorveer (PW-2) went to Amroha Hospital by

tractor of Dushyant (PW-5) where they were medically examined.

He dictated the F.I.R. (Ex.Ka.1) to Satyaveer Singh, who read it

over to him and after putting his thumb impression on it; he sent

Satyaveer, with medical report, to police station to lodge the

F.I.R.. According to him, they were referred to District Hospital,

Moradabad for treatment and thereafter to Safadarjung Hospital,

New Delhi. During treatment, his left hand and right hand of PW-

2, Shoorveer Singh were amputated. It was further stated by PW-1

that there is a pond in the village for Sigharha of which there was

dispute between appellant Rajveer Singh and one Vikram Singh.

In respect of which, PW-1 stood as surety for Vikram Singh and

that once appellant Rajveer Singh had prevented him from

irrigating from the canal. Stating that Hari Raj Singh Tyagi (I.O.)

was favouring the appellants as he was married in the family

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where sister of appellant Rajveer Singh was married, he had given

an application for transfer of investigation, whereupon,

investigation was transferred to CID, he has stated that at the time

of incident, lantern (Material Ex.Ka.1) emitting light at the place

of occurrence was taken by the I.O. and returned to him.

19.In cross-examination, he stated that he had moved from his

house for Amroha at 8:00 a.m. and had reached there at 11:00

a.m., whereafter he was medically examined there. He specifically

stated in cross-examination that after medical examination, he got

the report written and sent to Police Station . He also stated that in

the night of occurrence, he had sent Ravindra @ Munne, Subhash

and Dushyant (PW-5) to police station with direction to inform the

police that he and Shoorveer had received fire arm injuries. He

stated that he could not assign any reason as to why he did not

send any written report to police station then.

20.PW-2, Shoorveer Singh, stating that he knows all the

appellants Rajveer Singh, Jagat Veer Singh, Suresh, Viresh and

Teeka Ram; and that PW-1, Hari Raj Singh is his brother-in-law

and appellants Suresh and Viresh are cousin of PW-1, Hari Raj

Singh, narrated the same story, as stated by PW-1, Hari Raj Singh.

In cross-examination, he has stated that after the occurrence,

Ravindra, Dushyant (PW-5) and Subhash were sent by motorcycle

to P.S. Naugawa Sadat. He stated that report which was prepared

at Amroha was prepared in his presence and he was aware that no

report had been lodged at P.S. Naugawa Sadat in the night. He has

specifically stated that he had said to his brother-in-law (PW-1),

Hari Raj Singh to mention the fact in report that three persons

were sent to Naugawa Sadat for lodging the report, but it was not

lodged.

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21.PW-3, Dr. A.K. Mehrotra is a medical officer who has

inspected the injuries of PW-1, Hari Raj Singh and PW-2,

Shoorveer Singh and prepared injury report (Ex.Ka.2 and

Ex.Ka.3) (details of injuries of these witnesses have already been

mentioned in preceding paras of this judgment). He has stated that

the injuries of both the witnesses may be caused on 29.1.1984 at

about 11:00 p.m. According to him, injury no. 1 and 2 of P.W.1,

Hari Raj Singh and all the injuries of PW-2, Shoorveer Singh were

caused by fire arm, whereas, injury no. 3 of PW-1 could have been

caused by a blunt object.

22.PW-4, Dinesh Kumar has stated that he was present with

PW-1, Hari Raj Singh and PW-2, Shoorveer Singh at the time of

occurrence. Stating that at the time of occurrence he was sitting

under the bullock cart and saw the whole occurrence from that

place he narrated the whole incident as narrated by PW-1, Hari

Raj Singh. He further stated that during investigation, police of

P.S. Naugawa Sadat had forcibly taken his signature on plain

paper and thereafter appellants kidnapped him and took his

photographs forcibly and got his affidavit in their favour.

According to him, a report had been lodged by his brother in this

regard. In cross-examination he stated that he could not tell as to

after how many days his affidavit was prepared and photographs

taken. During cross-examination, he admitted his photo and

signature on affidavit (Ex.Kha.1) and (Ex.Kha.2) but stated that

the paper pertaining to affidavit was a plain paper on which he had

put his signatures.

23.PW-5, Dushyant has stated that, in 1982, Mohd. Ali,

Baburam Jatav and 2-3 other persons of his village had contested

election of Village Pradhan. He supported Baburam, whereas,

appellants supported Mohd. Ali. Mohd. Ali won the election. In

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1983, Village Pradhan Mohd. Ali had auctioned a village pond in

favour of the appellants against which he had filed a suit before

court. According to him, due to above mentioned incident,

appellants were inimical towards him and a proceeding under

Section 107/117 of the Code was initiated against him, wherein,

Hari Raj Singh had submitted a surety bond for him; due to which,

appellants Rajveer and others were also inimical to PW-1, Hari

Raj Singh and had obstructed him from irrigating his field from

that canal. On how he got information of occurrance, he stated

that the said occurrence was narrated to him by PW-1, Hari Raj

Singh and on his request, he, Ravindra and Subhash had gone to

P.S. Naugawa Sadat at 3:30 a.m. where Station Officer Hari Raj

Singh Tyagi and Head Constable (Diwan) had advised him to

carry the injured to Hospital for treatment and report could be

lodged at any time. According to him, he returned thereafter to his

village and told PW-1, Hari Raj Singh that report could not be

lodged. He has stated that Satyaveer had written the report at

Hospital on the dictation of PW-1, Hari Raj Singh who put his

thumb impression on it. In cross-examination, he admitted that he

had not requested police to lodge F.I.R. According to him, at

Naugawa Sadat, there was a post office and also facility of

telephone but he had made no attempt to inform any police officer

telephonically or through radiogram.

24.PW-6, Const. 587 Ibrahim Khan has stated that on

30.1.1984, he was posted at P.S. Naugawa Sadat as Head Moharrir

and had lodged the Chick F.I.R. (Ex.Ka.4) on the basis of written

report and entered the same in General Diary (Ex.Ka.5).

25.PW-7, Hareram Singh, Medical Record Technician at

Safdarganj Hospital, New Delhi, has proved the bed head ticket

Crl. Appeal No. 826 of 1991

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and other medical treatment documents (Ex.Ka.6 and Ex.Ka.7) of

PW-2, Shoorveer Singh and PW-1, Hari Ram Singh.

26.PW-8, Sri Krishna Srivastava, Inspector in C.I.D., Lucknow

has stated that on 4.6.1985, he was posted as Inspector CID,

Lucknow and has investigated this case; that he recorded the

statement of witnesses; and inspected the place of occurrence and

prepared (Ex.Ka.9) site plan. According to him, investigation was

transferred to another Inspector of CBCID and thereafter to D.S.P,

B.C. Saxena who had filed charge-sheet (Ex.Ka.10 and Ex.Ka.11)

against the appellants.

27.DW-1, Basdev Prasad Sharma, Head Const. 55 (Sadar

Malkhana Muarir), Moradabad has been produced by appellants to

prove that during investigation, a country-made pistol of 12 bore

and 2 cartridges in Case Crime No. 49/1984 under Section 25

Arms Act, (State vs. Ram Singh), recovered by Investigating

Officer, was filed in Sadar Malkhana. According to him, said

country-made pistol was sent for examination to Forensic Science

Laboratory, Lucknow along with empty cartridges; and blood

stained bed sheet pertaining to Case Crime No. 12/1984 under

Section 147/148/307/394 I.P.C. (State vs. Jagveer Singh and

others) was filed.

28.F.I.R. when lodged promptly or with justified delay, may

lend credence to the prosecution case. Neither the Indian Evidence

Act, 1872 nor the Code prescribes any time limit for lodging the

F.I.R. But if it has been lodged after considerable delay without

any justifiable cause, it may damage the prosecution case. In

Thulia Kali vs. State of Tamil Nadu AIR 1973 SC 501, where

delay in lodging F.I.R., was of 20 hours without any proper

justification, Court, setting aside conviction of appellant, held:-

Crl. Appeal No. 826 of 1991

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“12. .........First information report in a criminal case is an

extremely vital and valuable piece of evidence for the

purpose of corroborating the oral evidence adduced at the

trial. The importance of the report can hardly be

overestimated from the standpoint of the accused. The object

of insisting upon prompt lodging of the report to the police

in respect of commission of an offence is to obtain early

information regarding the circumstances in which the crime

was committed, the names of the actual culprits and the part

played by them as well as the names of eye witnesses

present at the scene of occurrence. Delay in lodging the first

information report quite often results in embellishment

which is a creature of afterthought. On account of delay, the

report not only gets bereft of the advantage of spontaneity,

danger creeps in of the introduction of coloured version,

exaggerated account or concocted story as a result of

deliberation and consultation. It is therefore, essential that

the delay in the lodging of the first information report should

be satisfactorily explained.........”

29.Coming to the facts of this case, F.I.R. (Ex.Ka.1) has been

lodged by one Satyaveer Singh, sent by PW-1, Hari Raj Singh.

Satyaveer Singh has not been examined by prosecution.

Prosecution has also not placed any justification as to why injured

witnesses PW-1, Hari Raj Singh or PW-2, Shoorveer Singh has

not gone to police station even on next day when they had visited

the hospital situated at Amroha. According to PW-1, Hari Raj

Singh, the incident occurred on 29.1.1984 at 11:00 p.m. and, after

occurrence, he had sent Subhash, Munnesh and Dushyant (PW-5)

to lodge F.I.R. but the police did not lodge the F.I.R. and

suggested to Dushyant for treatment of the injured. Thereafter,

Dushyant returned and told him (PW-1) about non registration of

the F.I.R. According to him, he along with PW-2, Shoorveer Singh

went on 30.1.1984 by tractor of Dushyant (PW-5) to Amroha

Hospital where they were medically examined and, thereafter,

F.I.R. was prepared on his dictation at hospital and was sent

Crl. Appeal No. 826 of 1991

15

through one Satyaveer Singh to police station. In examination-in-

chief, neither PW-1, Hari Raj Singh nor PW-2, Shoorveer Singh

have stated as to when they proceeded from their village for

Hospital and when they reached the Hospital as also when their

medical was conducted and when they sent Satyaveer Singh to

police station to lodge the F.I.R. The Medico Legal Certificates

(MLC) Ex.Ka.2 and Ex.Ka.3 of Hari Raj Singh (PW-1) and

Shoorveer Singh (PW-2) reveals that they were medically

examined on 30.1.1984 at 11:15 a.m. and 11:30 a.m. From perusal

of Chick F.I.R. (Ex.Ka.4) and G.D. Report (Ex.Ka.5), it transpires

that F.I.R. was lodged on 30.1.1984 at 12:30 O’ clock. Thus,

F.I.R. was lodged with a delay of 13:30 hours, whereas, the

distance between the place of occurrence and police station has

been shown as only nine kilometres in Ex.Ka-4, Chick FIR.

According to prosecution case, grievous fire arm injuries were

caused on the left arm of PW-1, Hari Raj Singh and right arm of

PW-2, Shoorveer Singh. Neither PW-1, Hari Raj Singh nor PW-2,

Shoorveer Singh have stated in their statement as to why they did

not go to the hospital for medical treatment of their injuries till

about noon next day. In same way, PW-1, Hari Raj Singh has also

not stated as to why he had not approached the police station next

day morning of 30.1.1984. In cross-examination, he has stated that

he had proceeded from his house by tractor to Amroha at 8:00

a.m. on 30.1.1984 and reached at Amroha at 11:00 a.m. He further

stated that after medical examination, he got the written report

sent to police station. It means that he had not visited the P.S.

Naugawa Sadat for lodging the F.I.R. It is normal human

behaviour to either approach the police station to lodge the F.I.R.

or to go to the hospital for medical treatment, particularly, when

injury is grievous. In addition to above, PW-1, Hari Raj Singh has

Crl. Appeal No. 826 of 1991

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also stated in cross examination that he had not sent any written

information in the night with PW-5, Dusyant, Subhas and Munne

rather had told them only to inform the police that fire arm

injuries had been caused to them (PW-1, Hari Raj Singh and PW-

2, Shoorbir Singh). Thus, non sending of written information and

sending person with oral direction to inform the police regarding

receipt of fire arm injuries without disclosing further details of the

incident and lodging FIR next day after a delay of more than 13

hours, and approaching for medical treatment after 13 hours,

creates a serious doubt about the prosecution case.

30.F.I.R. (Ex.Ka.1) states that at the time of occurrence, PW-1,

Hari Raj Singh was irrigating his field where PW-2, Shoorveer

Singh was also present along with Dinesh (PW-4) and all of them

were sitting nearby a diesel engine pump set. At about 11:00 p.m.,

appellants Jagat Veer Singh and Rajveer Singh S/o Ghanshyam

Singh, Suresh and Viresh S/o Om Prakash armed with their gun

and appellant Teeka Ram S/o Babu Ram armed with sword

appeared there, Jagat Veer Singh fired at PW-2, Shoorveer. Hari

Raj Singh caught Jagat Veer Singh by his arms. Thereafter,

appellant Rajveer Singh fired at Hari Raj Singh (PW-1). In the

F.I.R., no active role of appellants Teeka Ram, Suresh and Viresh

is mentioned. It has also not been mentioned that after the

occurrence, on the direction of appellant, Jagat Veer Singh,

appellant Suresh verified whether Shoorveer Singh (PW-2) is

alive but in their statements they have added that Suresh verified

whether Shoorveer Singh was alive. It appears that in order to

justify the injury caused to Hari Raj Singh (PW-1) on his left arm,

story of raising sword by appellant Teeka Ram, releasing of

appellant Jagat Veer Singh by PW-1, Hari Raj Singh, moving of

Jagatveer Singh away from Hari Raj Singh and then firing of shot

Crl. Appeal No. 826 of 1991

17

by appellant Rajveer Singh on the hand of Hari Raj Singh (PW-1)

was developed. Because as per F.I.R., appellant Rajveer Singh

fired at Hari Raj Singh (PW-1) when he had caught hold appellant

Jagat Veer Singh, which appeared improbable as appellant Jagat

Veer Singh could also have sustained gun shot injury. Hence, the

improvement in prosecution story appears to have been made to

make the story appear more probable but this deliberate effort on

the part of the prosecution casts a serious doubt on the prosecution

story.

31. All the appellants have been convicted under Section 307

read with Section 149 and 148 I.P.C. Section 148 I.P.C. deals with

the offence of rioting by any person armed with deadly weapons,

whereas, Section 149 I.P.C. declares every member of unlawful

assembly guilty of an offence committed by any member of an

unlawful assembly in prosecution of common object. Section 141

and Section 146 of I.P.C. defines the unlawful assembly and

offence of rioting respectively. Sections 141, 146, 148 and 149 are

as under:-

Section 141.Unlawful assembly.—An assembly of five or

more persons is designated an “unlawful assembly”, if the

common object of the persons composing that assembly is—

(First) — To overawe by criminal force, or show of criminal

force, the Central or any State Government or Parliament or

the Legislature of any State, or any public servant in the

exercise of the lawful power of such public servant; or

(Second) — To resist the execution of any law, or of any

legal process; or

(Third) — To commit any mischief or criminal trespass, or

other offence; or

Crl. Appeal No. 826 of 1991

18

(Fourth) — By means of criminal force, or show of criminal

force, to any person, to take or obtain possession of any

property, or to deprive any person of the enjoyment of a right

of way, or of the use of water or other incorporeal right of

which he is in possession or enjoyment, or to enforce any

right or supposed right; or

(Fifth) — By means of criminal force, or show of criminal

force, to compel any person to do what he is not legally

bound to do, or to omit to do what he is legally entitled to do.

Explanation.—An assembly which was not unlawful when it

assembled, may subsequently become an unlawful assembly.

Section 146. Rioting.—Whenever force or violence is used

by an unlawful assembly, or by any member thereof, in

prosecution of the common object of such assembly, every

member of such assembly is guilty of the offence of rioting.

Section 148. Rioting, armed with deadly weapons. –

Whoever is guilty of rioting, being armed with a deadly

weapon or with anything which, used as a weapon of

offence, is likely to cause death, shall be punished with

imprisonment of either description for a term which may

extend to three years, or with fine, or with both.

Section149. Every member of unlawful assembly guilty of

offence committed in prosecution of common object.—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.

32.To attract the applicability of Section 149 IPC there must be

an unlawful assembly, accused must be a member of that

assembly having knowledge of the common object of that

assembly and that the offence has been committed by any member

of that unlawful assembly in prosecution of the common object.

Mere presence of any person at the place of occurrence like a

mute spectator or as witness would not create any liability upon

Crl. Appeal No. 826 of 1991

19

him with aid of section 149 IPC unless it is proved or could be

logically inferred from the facts of the case that he was part of that

unlawful assembly and had knowledge that such an act would be

committed or is likely to be committed in prosecution of the

common object of the unlawful assembly.

33.At this very juncture, the law propounded by Hon’ble

Supreme Court in land mark judgment of Baladin and others vs.

State of Uttar Pradesh AIR 1956 SC 181 may be noticed wherein

Hon’ble Apex Court, while dismissing the appeal of the appellant

who had played active role in the occurrence and allowing the

appeal of appellant who had not played any active role, held as

under:-

“28. ........It remains to consider the cases of Thakur Das,

Ishwari Prasad, Mulloo and Jagdish. These four appellants

had not been assigned any particular part in the occurrence

nor any overt act has been attributed to them. Of these,

Thakur Das is a resident of another village in another police

station, though he has cultivation in village Goran. They

might possibly have been spectators who got mixed up in the

crowd. They will, therefore, be given the benefit of the doubt

and acquitted..........”

34. In Rajendra Shantaram Todankar v. State of Maharashtra

and Others 2003 SCC (Cri) 506 Hon’ble Supreme Court while

discussing the true scope and meaning of Section 149 observed

that 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. The

relevant protion of the judgment is extracted below:-

"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

Crl. Appeal No. 826 of 1991

20

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 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...." (Emphasis supplied)

35.Hon’ble Supreme Court in Dani Singh vs. State of Bihar

(2004) 13 SCC 203 while discussing the meaning of word

common object in paras 11, 12 and 13 has held as under:-

“11.............The word 'object' means the purpose or design

and, in order to make it 'common', it must be shared by all.

In other words, the object should be common to the persons,

Crl. Appeal No. 826 of 1991

21

who compose the assembly, that is to say, they should all be

aware of it and concur in it. A common object may be

formed by express agreement after mutual consultation, but

that is by no means necessary. It may be formed at any stage

by all or a few members of the assembly and the other

members may just join and adopt it. Once formed, it need

not continue to be the same. It may be modified or altered or

abandoned at any stage. The expression 'in prosecution of

common object' as appearing in Section 149 have to be

strictly construed as equivalent to 'in order to attain the

common object'. It must be immediately connected with the

common object by virtue of the nature of the object. There

must be community of object and the object may exist only

up to a particular stage, and not thereafter. Members of an

unlawful assembly may have community of object up to

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

command, but also according to the extent to which he

shares the community of object, and as a consequence of this

the effect of Section 149, IPC may be different on different

members of the same assembly.

12.'Common object' is different from a 'common

intention' as it does not require a prior concert and a

common meeting of minds before the attack. It is enough if

each has the same object in view and their number is five or

more and that they act as an assembly to achieve that object.

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. It may be gathered from the course of

conduct adopted by the members of the assembly. What the

common object of the unlawful assembly is at a particular

stage of the incident is essentially a question of fact to be

determined, keeping in view the nature of the assembly, the

arms carried by the members, and the behaviour of the

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

necessary under law that in all cases of unlawful assembly,

with an unlawful common object, the same must be

translated into action or be successful. Under the

Explanation to Section 141, an assembly which was not

Crl. Appeal No. 826 of 1991

22

unlawful when it was assembled, may subsequently become

unlawful. It is not necessary that the intention or the purpose,

which is necessary to render an assembly an unlawful one

comes into existence at the outset. The time of forming an

unlawful intent is not material. An assembly which, at its

commencement or even for some time thereafter, is lawful,

may subsequently become unlawful. In other words it can

develop during the course of incident at the spot eo instanti.

13.Section 149, IPC consists of two parts. The first part

of the section means that the offence to be committed in

prosecution of the common object must be one which is

committed with a view to accomplish the common object. In

order that the offence may fall within the first part, the

offence must be connected immediately with the common

object of the unlawful assembly of which the accused was

member. Even if the offence committed is not in direct

prosecution of the common object of the assembly, it may

yet fall under Section 141, if it can be held that the offence

was such as the members knew was likely to be committed

and this is what is required in the second part of the section.

The purpose for which the members of the assembly set out

or desired to achieve is the object. If the object desired by all

the members is the same, the knowledge that is the object

which is being pursued is shared by all the members and

they are in general agreement as to how it is to be achieved

and that is now the common object of the assembly. An

object is entertained in the human mind, and it being merely

a mental attitude, no direct evidence can be available and,

like intention, has generally to be gathered from the act

which the person commits and the result therefrom. Though

no hard and fast rule can be laid down under the

circumstances from which the common object can be culled

out, it may reasonably be collected from the nature of the

assembly, arms it carries and behaviour at or before or after

the scene of incident..........”

36.Hon’ble Supreme Court in Kuldip Yadav vs. State of Bihar

(2011) 5 SCC 324, while discussing the principle of constructive

liability as laid down by Section 149 I.P.C. has held as under:-

“............It is not the intention of the legislature in enacting

Section 149 to render every member of unlawful assembly

Crl. Appeal No. 826 of 1991

23

liable to punishment for every offence committed by one or

more of its members. In order to attract Section 149, it must

be shown that the incriminating act was done to accomplish

the common object of unlawful assembly and it must be

within the knowledge of other members as one likely to be

committed in prosecution of the common object. If the

members of the assembly knew or were aware of the

likelihood of a particular offence being committed in

prosecution of the common object, they would be liable for

the same under Section 149 IPC............”

37.In Nagesar vs. State of Chhatisgarh (2014) Cr.LJ. 2948

Hon’ble Supreme Court while discussing the scope of Section 149

IPC has held as under:-

“ It is settled law that mere presence or association with

other members alone does not per se be sufficient to hold

everyone of them criminally liable for the offences

committed by the others unless there was sufficient evidence

on record to show that one such also intended to or knew the

likelihood of commission of such an offending act. ( K.M

Ravi and others Vs. State of Karnataka (2009) 16 SCC 337).

As already seen in this case there is no legally acceptable

material to prove that the appellants acted as members of

unlawful assembly to connect them with the murder of the

deceased Korma Rao. At any rate in the absence of reliable

evidence to prove that the appellants were either present on

the spot or that they had committed any overt act that could

show that they share the common object of the unlawful

assembly it is not possible to support their conviction and

benefit of doubt has to be given to them.”

38.Coming to the facts of this case, no active role of surviving

appellant (Viresh) in the occurrence has been alleged by any of the

witnesses produced by the prosecution. From perusal of statement

of PW-1, Hari Raj Singh, PW-2, Shoorveer Singh and PW-4,

Dinesh Kumar, only allegation made against him (Viresh) is that

he came with other accused persons at the place of occurrence.

Appellant Viresh is nephew of injured Hari Raj Singh. On

information given by PW-2, Shoorveer Singh, to PW-1, Hari Raj

Crl. Appeal No. 826 of 1991

24

Singh, that appellants Rajveer Singh, Jagat Veer Singh, Suresh,

Viresh and Teeka Ram were coming towards him (PW-1), PW-1

responded by saying that there is nothing to worry as his own

nephews (appellants- Suresh and Viresh) are with them. This

shows that appellant Viresh was neither inimical to PW-1, Hari

Raj Singh nor had any object / motive or intention to cause any

injury to his own uncle (PW-1, Hari Raj Singh). It appears that

due to that reason, he did not act as a culprit at the place of

occurrence, inasmuch as he neither came near the injured person

nor exhibited any conduct on the basis of which it could be

inferred that he had shared the common object of the other

appellants. In such a situation, it could be possible that he might

have come at the place of occurrence only as spectator without

being aware of common object of any of the accused-appellants.

39.From perusal of injury reports Ex.Ka.2 and Ex.Ka.3 of both

the injured persons PW-1, Hari Raj Singh and PW-2, Shoorveer

Singh it transpires that injury has not been caused on vital part of

these witnesses. Though caused by fire arms the injuries are on

inner portion of arms of both injured persons. PW-3, Dr. A.K.

Mehrotra, in cross-examination has stated that injury no. 1 of PW-

1, Hari Raj Singh was present on inner side of his upper arm and

was not possible if, at the time of fire, he had caught hold any

other person in his arms. PW-1, Hari Raj Singh, has, in

examination-in-chief, stated that when appellant Jagatveer Singh

fired at PW-2, Shoorveer Singh, from his gun, he had caught hold

appellant Jagatveer Singh and had bit him on his shoulder;

whereupon he raised alarm. As a result, appellant Jagatveer Singh

asked appellant Teeka Ram to attack him (PW-1) with sword and

as appellant Teeka Ram raised his sword towards him (PW-1), he

released appellant Jagatveer Singh and when he (Jagatveer Singh)

Crl. Appeal No. 826 of 1991

25

moved away, appellant Rajveer Singh fired at PW-1. PW-2,

Shoorveer Singh has also narrated in same way. Both these

witnesses in cross-examination have stated that they had told the

said fact in their statement to the Investigating Officer and if the

said fact has not been noted in their statement by any Investigating

Officer, they could assign no reason for that. PW-8, Sri Krishna

Srivastava (Investigating Officer) has stated that neither PW-1,

Hariraj Singh nor PW-2, Shoorveer or PW-4, Dinesh in their

statement have disclosed to any of the Investigating Officer about

the above mentioned fact. Thus, there is a serious contradiction

between the evidence of Investigating Officer and both the injured

witnesses (PW-1, Hari Raj Singh and PW-2, Shoorveer Singh) on

the point that when injury to PW-1, Hari Raj Singh was caused, he

had caught hold Jagatveer Singh.

40.Thus in view of the above discussion, we are of the

considered opinion that the inordinate delay in lodging the F.I.R.

as well as delay in medical examination; material contradiction

between the statement of injured eye witnesses made during

investigation and statement made during trial; reasonable doubt

regarding sharing of common object by appellant Viresh as a

member of unlawful assembly or having knowledge of any such

common object, have created serious doubts in the prosecution

case as against the sole surviving appellant which entitles the

surviving appellant (Viresh) the benefit of doubt. He is therefore

entitled to be acquitted of all the charges levelled against him. The

judgment and order passed by the Special Judge, Moradabad in

Session Trial No. 586 of 1988 is hereby set aside. Consequently,

the appeal is allowed. The appellant, if on bail need not surrender.

Crl. Appeal No. 826 of 1991

26

41.Let a copy of this judgment be sent to Trial court for

information and immediate compliance. Compliance report

whereof be submitted within one month.

42.Lower court’s record be also sent back along with a copy of

this judgment.

Order Date:- 11.09.2019

Saurabh

Crl. Appeal No. 826 of 1991