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CASE NO.:

Appeal (crl.) 29 of 1999

PETITIONER:

State of U.P.

RESPONDENT:

Kishan Chand & Ors.

DATE OF JUDGMENT: 20/08/2004

BENCH:

B.N. AGRAWAL & H.K. SEMA

JUDGMENT:

J U D G M E N T

SEMA,J.

Nine accused were put on trial before the Addl. Sessions

Judge. During the pendency of the trial, one accused died, therefore,

eight accused have faced the trial. At the end of the trial, the trial

court acquitted accused nos. 6, 7, and 8 of all the charges. No appeal

was preferred by the State against their acquittal. The five accused

(respondents herein) namely Kishan Chand, Rama Shankar, Ram

Chandra, Gauri Shankar and Chhotey Lal were convicted under

various Sections of Law as follows:-

Accused Kishan Chand was sentenced to undergo life

imprisonment under Sections 302/34 and 302/149 I.P.C. Six months

R.I. under Section 323 I.P.C. One years R.I. under Section 148 I.P.C.

and 5 years R.I. under Section 307 read with Section 149 I.P.C. and

5 years R.I.

Accused Rama Shankar was sentenced to undergo life

imprisonment under Section 302 I.P.C. One year R.I. under Section

148 I.P.C. 5 years R.I. under Section 307/149 I.P.C. and 6 months

R.I. under Section 323 read with 34 I.P.C.

Accused Ram Chandra son of Bala Sukh and Gauri Shanker

were sentenced to undergo life imprisonment under Section 302 read

with Section 34 I.P.C. and Section 302 read with Section 149 I.P.C.

Six months R.I. under Section 323/34 I.P.C. One year R.I. under

Section 149 and 5 years R.I. under Section 307 read with Section

149 I.P.C.

Accused Chhotey Lal was sentenced to undergo one year R.I.

under Section 148 I.P.C. Life imprisonment under Section 302/149

I.P.C. and five years R.I. under Section 307/149 I.P.C. The

sentences, however, were directed to run concurrently.

On appeal, being preferred by the accused persons, the High

Court by the impugned order acquitted them of all the charges

levelled against them. Hence, this appeal by special leave, has been

preferred by the State of U.P.

Briefly stated the facts are as follows:-

The accused and the complainants are all residents of Harish

Purwa, P.S. Sachendi District Kanpur. On 3.8.1974 at about 5.30

p.m. the accused formed an unlawful assembly in the dharmashala of

Shridhar in village Hariram ka Purwa and in furtherance of common

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object murdered Sheo Ram and Mool Chand and caused injuries to

PW1- Shridhar and PW8 - Mizazi Lal. The first information report

lodged by PW3-Ram Swarup disclosed that on the fateful day at

about 5.30 p.m. Chhotey Lal (PW2) son of Tulsi was singing on the

eve of Raksha Bandhan in the dharmashala of Shridhar. Ashok

Chand, Mizazi Lal, Soney Lal Gupta, Ram Mohan, Mool Chand his

son Ramoo and others were also there. In the meantime, accused

Kishan Chand son of Hem Raj, Rama Shankar son of Chhotey Lal,

Ram Chandra son of Sada Sukh, Gauri Shankar son of Hem Raj and

Chhotey Lal armed with gun, country made pistols and hockey-sticks

reached there. Immediately thereafter, accused Kishan Chand gave

a hockey blow to Shridhar. Thereupon, the deceased Mool Chand

asked him not to quarrel on the festival day. Accused Rama Shankar

fired at him. Thereafter, accused Kishan Chand fired at Shridhar who

fell down after sustaining injuries. Accused Ram Chandra was at the

roof and instigated the accused to kill the informant and others. At his

instigation accused Chottey Lal, Kishan Chand, Rama Shankar,

Gauri Shankar and Ram Chandra became more furious and started

firing indiscriminately from their gun and country made pistols. In the

process, Shridhar (PW-1) and Mizazi Lal (PW-8) had also received

injuries. In the said incident, Sheo Ram and Mool Chand died on the

spot.

In course of the trial, the prosecution relied upon the testimony

of eyewitnesses PW1-Shridhar, PW2-Chottey Lal, PW3-Ram Swarup

and PW8-Mizazi Lal. Counsel for the State, contended that the Trial

Court, was justified in placing reliance on the eye witnesses account

of PWs 1, 2, 3 and 8 and the High Court was clearly in error in

disbelieving the eyewitnesses account of prosecution witnesses

resulting in acquittal of accused on the basis of perverse finding.

Per contra counsel for the accused-respondents would contend

that the so-called eyewitnesses are interested witnesses. PW2-

Chottey Lal, PW3-Ram Swarup, being the brothers of the deceased,

their testimony is not reliable and the High Court was justified in

disbelieving their testimony. He would further contend that there was

an enmity between the parties and the witnesses deposed falsely

against the accused because of animosity. Counsels on both the

sides have taken pain in taking us through the entire judgment of the

High Court. To say the least, the High Court did not assign any

reason much less ostensible reason for discarding the testimony of

the eyewitnesses account.

The submission of the counsel for the accused that the

testimony of PWs cannot be acted upon, as they are the interested

witnesses is to be noted only to be rejected. By now, it is well-settled

principle of law that animosity is a double-edged sword. It cuts both

sides. It could be a ground for false implication and it could also be a

ground for assault. Just because the witnesses are related to the

deceased would be no ground to discard their testimony, if otherwise

their testimony inspires confidence. In the given facts of the present

case they are but natural witnesses. We have no reason to

disbelieve their testimony. Similarly, being the relatives, it would be

their endeavour to see that the real culprits are punished and

normally they would not implicate wrong persons to the crime, so as

to allow the real culprits to escape unpunished.

That apart PW1-Shridhar and PW-8 Mizazi Lal are both

independent and injured witnesses. The testimony of an injured

witness has its own relevance and efficacy. The fact that the

witnesses sustained injuries at the time and place of occurrence

lends support to their testimony that the witnesses were present

during the occurrence. The injured witnesses were subjected to

lengthy cross-examination but nothing could be elicited to discredit

their testimony.

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Counsel for the accused contended that the prosecution fails to

establish which of the accused caused fatal injuries. This submission

is misconceived. The convictions were recorded under Sections 302

with the aid of Section 34 and under Section 302 with the aid of

Section 149. It is a well established principle of law that when the

conviction is recorded with the aid of Section 149, relevant question

to be examined by the court is whether the accused was a member of

unlawful assembly and not whether he actually took active part in the

crime or not. The Constitutional Bench of this Court in Masalti Vs.

State of U.P., 1964 (8) S.C.R. 133 at page 148 SCR held:-

"What has to be proved against a person who is

alleged to be a member of an unlawful assembly is that

he was one of the persons constituting the assembly and

he entertained along with the other members of the

assembly the common object as defined by s.141, I.P.C.

Section 142 provides that whoever, being aware of facts

which render any assembly an unlawful assembly,

intentionally joins that assembly, or continues in it, is said

to be a member of an unlawful assembly. In other words,

an assembly of five or more persons actuated by, and

entertaining one or more of the common objects specified

by the five clauses of s. 141, is an unlawful assembly.

The crucial question to determine in such a case is

whether the assembly consisted of five or more persons

and whether the said persons entertained one or more of

the common objects as specified by s.141."

Further at page 149 SCR it is said:-

"In fact, s.149 makes it clear 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; and that emphatically brings out the principle that

the punishment prescribed by s.149 is in a sense

vicarious and does not always proceed on the basis that

the offence has been actually committed by every

member of the unlawful assembly."

Counsel for the respondents, strenuously urged that from the

evidence of the prosecution witnesses accused Ram Chandra was at

the roof and instigated the accused to finish the prosecution party and

as such it cannot be said that the accused formed an unlawful

assembly to perpetrate the crime. We are unable to countenance

with this submission of the counsel. Firstly, an assembly, which was

not unlawful assembly when it assembled, may subsequently become

an unlawful assembly. Secondly, common object of the unlawful

assembly can be gathered from the nature of the assembly, arms

used by them and the behaviour of the assembly at or before scene

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

circumstances of each case. In the instant case, the prosecution

evidence disclosed that it was a Raksha Bandan day when the

singing was going on, the accused appeared at the scene with gun

and country made pistols and hockey-sticks, attacked the prosecution

party and started firing indiscriminately resulting in the death of Sheo

Ram and Mool Chand. Deduced from the surrounding facts and

circumstances of this case, it is clear that the accused did form an

unlawful assembly and in furtherance of that common object of the

unlawful assembly, crime has been perpetrated.

The next contention of the counsel for the respondents that the

non-explanation of the injuries sustained by the accused caused

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prejudice to the accused, also deserves to be rejected. The

prosecution has explained that at the time of arrest the accused tried

to flee and in that process sustained some injuries being beaten by

the arresting party. The injuries sustained by the accused were

simple in nature. This apart, it is well-settled principle of law that non-

explanation of injuries sustained by the accused by the prosecution

would not vitiate the trial, if the prosecution evidence against the

accused is so strong on the basis of which alone the conviction can

be recorded. As already noted, in the present case, out of four

eyewitnesses two are independent and stamped witnesses.

There is yet another contention of the counsel for the

respondents, which deserves outright rejection. Counsel would

contend that after the reconstruction of the case record the

statements made by the accused-respondents under Section 313

Cr.P.C. have not been properly considered by the Trial Court and

prejudice thereby has been caused to the accused-respondents. We

have gone through the judgment of the Trial Court which would show

that the statements made by the accused under Section 313 have

been quoted in verbatim and the same have been considered by the

Trial Court in great detail. Before the High Court, it was not the case

of the accused that the reconstruction of the record has not been

done properly. Conversely, the High Court in the order dated

7.10.1994 has recorded the total satisfaction that the reconstructed

record is proper.

In the premises aforesaid, we are clearly of the view, that the

High Court fell in error in acquitting the accused resulting in grave

miscarriage of justice. The impugned order of the High Court is,

accordingly, set-aside. The conviction recorded by the Trial Court is

hereby restored. The accused-respondents Kishan Chand, Rama

Shankar, Ram Chandra, Gauri Shankar, and Chhotey Lal are

directed to be taken into custody forthwith. Compliance report within

three weeks. The appeal is, accordingly, allowed.