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Bishan Singh v. State Of U.P - CRIMINAL APPEAL No. 239 of 1982  RD-AH 10705 (22 June 2007)
Criminal Appeal No. 239 1982
Bishan Singh & others. .................. Appellants-accused.
State of U.P. ............................. Respondent.
Hon'ble S.S. Kulshreshta, J.
Hon'ble Vijay Kumar Verma, J.
(Delivered by Hon'ble Vijay Kumar Verma, J.)
This appeal has been preferred against the judgement and order dated 22.01.1982 passed by 3rd Additional Sessions Judge Etah, in S.T. No. 400 of 1981, whereby the accused- appellants (1) Jangi Singh (2) Gajju Singh @ Gajraj Singh, (3) Bhupendra Singh (4) Omvir Singh (5) Udai Pratap Singh (7) Dhoom Singh (8) Munendra Singh @ Ram Singh (9) Rambir Singh (10) Man Singh (11) Bhudev (12) Mahandra Pal (13) Ram Nath (14) Shibbu (15) Hardev (16) Ram Singh and (17) Lalau @ Lala Ram have been convicted and sentenced to undergo rigorous imprisonment for one year under section 147 IPC, imprisonment for life under section 302 read with section 149 IPC and five years rigorous imprisonment under section 307 read with section 149 IPC. The appellants-accused (1) Bishan Singh (2) Natthu Singh (3) Yatendra Singh and (4) Kundan Singh have been convicted and sentenced to undergo rigorous imprisonment for two years under section 148 IPC, imprisonment for life under section 302 read with section 149 IPC and five years rigorous imprisonment under section 307 read with section 149 IPC.
2. During pendency of this appeal, the appellants-accused Jangi Singh, Gajju @ Gajraj Singh, Natthu Singh, Suraj Pal Singh, Munendra Singh @ Ram Singh, Ram Nath, Shibbu, Hardev, Lalau @ Lalaram and Kundan Singh have died. Hence their appeal has been abated.
3. The incident resulting in the death of Jugendra Pal Singh and causing injuries to his sister Smt. Ramwati and mother Smt. Ketuki occurred on 13.04.1981 at about 7.00 a.m. In the Khalihan near village Hasanpur under Soron Police Station of District Etah. The case of the prosecution as appearing from the first information report and statement of the complainant Suresh Pal Singh (P.W.1) S/o Suraj Singh r/o village Hasanpur P.S. Soron (Etah), in brief, is that a case under section 366/376 IPC regarding abduction and rape of Km. Asha and Munni, both nieces (sister's daughters) of complainant, was got registered against the accused Yatendra Singh etc. on 10.04.1981 at P.S. Soron. On 13.04.1981 at about 7.00 a.m., the complainant Suresh Pal Singh, his brothers Jugendra Pal Singh and Narendra Pal Singh and his nephew (sister's son) Mahesh Pal Singh, who was residing with him, were going to see their Khilihan. When they reached near the Khalihan, the accused Bishan Singh, Jangi Singh, Gajju @ Gajraj Singh, Yatendra Singh sons of Pyare Singh, Natthu Singh S/o Sahib Singh, Bhupendra Singh S/o Natthu Singh, Ombvir Singh @ Munna S/o Udaivir Singh, Udai Pratap S/o Gajju Singh, Suraj Pal Sijngh S/o Amir Singh, Dhoom Singh, Munendra Singh @ Ram Singh, Ramvir Singh Sons of Mukut Singh Thakur, Bhoodev, Man Singh sons of Jhamman, Mahendra Pal S/o Bhoodev, Ram Nath S/o Liladhar, Shibbu S/o Chattar, Hardev S/o Heeru, Ram Singh S/o Hardev and Lalau S/o Shivani Mallah all residents of village Hasanpur P.S. Soron District Etah and Kundan Singh Thakur r/o village kachhla, District Budaun, who was Samdhi of Natthu Singh, came out from the side of Khalihan having lathies, tamancha and Farsa. The accused Natthu Singh, who was armed with his licenced gun, exhorted saying "Jugendra pal Singh ko pakad lo tatha jan se mar do, Kyunki hamare khilaf jhutha mukadama darj karaya hai". On this exhortation, the accused persons with intention to cause the death of Jugendra Pal Singh began to assault him by lathies etc. Somehow the complainant Suresh Pal Singh, his bother Narendra Pal Singh and his sister's son Mahesh Pal Singh escaped and rushed towards village raising alarm. On hearing hue and cry, Smt. Ramwati, sister of the complainant and his mother Smt. Ketuki, his nieces Munni and Asha and other village people came to the place of occurrence and saw the incident. When Smt. Ramwati and Smt. Ketuki tried to save Jugendra Pal Singh, they were also assaulted by the accused persons, due to which they sustained injuries. Thereafter, the accused persons considering the injured Jugendra Pal Singh to have died, fled away towards Ganga Ji. The complainant carried his brother Jugendra Pal Singh, sister and mother by bullock cart to P.S. Soron, where he made over the their written report Ext. Ka 1, on the basis of which Chik FIR Ext. Ka 4 was prepared by P.W. 4 Gurudutt, who registered a case under section 147, 148, 149, 307 IPC at Crime No. 97/81 against above named accused persons on 13.04.1981 at 9.05 a.m., entry of which was made in the G.D. No. 12 (Ext. Ka 5) .
4. The injured Jugendra Pal Singh, Smt. Ramwati and Ketuki were sent to Primary Health Centre (PHC) Kasganj (Etah). In the way near village Hulpur, the Injured Jugendra Pal Singh succumbed to the injuries and his dead body along with both the injured were carried to P.H.C. Kasganj, where Smt. Ramwati was medically examined by P.W. 3 Dr. R.C. Bajpai on 13.04.1981 at 12.30 p.m. According to the injury report Ext. Ka 2, the following injuries were found on her person:-
1. Traumatic swelling 7cm x 3 cm. on outer side of right Forearm upper part.
2. Contusion 5 cm. x 1.5 cm. on outer side and lower portion of Rt. upper arm.
3 L.W. 3 cm. x ½ cm. x bone deep on back and root of Rt. thumb.
4. Abrasion 2 cm. x ½ cm. on top of Rt. thumb.
5. Contusion 2 cm. x 1 cm. on front and upper part of left knee joint.
All the injuries were simple, which were caused by blunt weapon and friction. Duration was about 5-7 hours old.
5. On the same day at 12.45 p.m. Smt. Ketuki was examined by Dr. Bajpai, who found the following injuries on her person vide injury report Ext. Ka 3:-
1. Contusion 3 cm.x 2 cm. on top of right shoulder.
2. Contusion 10 cm. x 6 cm. on left buttock upper part.
3. Traumatic swelling 20 cm. x circumference of left leg. Inj. U.O. Adv. X-ray of left leg.
4. Abrasion 1 cm. x 1 cm. on inner side of left big toe.
5. Traumatic swelling 12 cm. x circumference of left hand and writs. Inj. U.O. Adv. X-ray of left hand.
6. Abrasion 2 cm. x ½ cm. on back of right hand.
All injuries except injury No. 3 and 5 were simple, which were caused by blunt weapon and friction. Duration was about 5-6 hours old. Injuries no. 3 & 5 were kept under observation and X-ray of left leg and left hand with wrist was advised.
6. On getting information regarding the death of Jugendra Pal Singh, S.I. A.S. Khan along with other police personnel came to PHC Kasganj, where he conducted inquest proceedings on the dead body of Jugendra Pal Singh and prepared inquest report Ext. ka 12, two letters Ext. Ka 13 and Ext. Ka 14, chalan nash Ext. ka 15 and photo nash Ext. Ka 16. Thereafter, the dead body was sent in sealed condition for post-mortem examination, which was conducted on 14.04.1981 at 11.00 a.m. by P.W. 6 Dr. O.P. Vaidya. According to post-mortem report Ext. ka 19, the following ante-mortem injuries were found on the person of deceased:-
1. Two lacerated wound each measuring 4 cm. x 1 and 3 cm x 1cm. x bone deep on the top of skull 2 cm. apart.
2. Abraded contusion 3 cm. x 3 cm. just lateral to left outer angle of the eye.
3. Contusion 4 cm x 2 cm on the top of right shoulder.
4. Contusion 3 cm. x 1 ½ cm on the top of left shoulder.
5. Contused swelling all over the right forearm. There is a clinical evidence of fracture both bone of the forearm at lower 1/3rd.
6. Contused swelling all over the left forearm including back of the left hand.
7. Double line contusion 15 cm. x 4 cm on the R. side back of chest. 6 cm below the inferior angle of scapula.
8. Contusion 6 cm x 3 cm in right hypochondrial region.
9. Double line contusion 9 cm. x 2 ½ cm on the back left side in the middle & outer part.
10.Multiple abraded contusion all over the thigh, leg & foot right side ranging from 3 cm x 2 cm to 2cm x 2 cm. on the anterior aspect only.
11.Multiple abraded contusion on the front of left thigh and leg all over ranging from 5 cm x 2 ½ cm to 2 cm x 1 ½ cm on the anterior aspect only.
In internal examination, the membrances and peritoneum were found congested. Haematoma was present in the layer below the injury No. 8 & 9. The cavity contained about 20 ounces of free & clotted blood. In the stomach few ounces of watery fluid was found present. Large intestine contained very little amount of faecal matter. Right lobe was lacerated and Gall Bladder was half full.
According to Dr. Vaidya, the death was caused due to coma, shock and haemorrhage as a result of ante-mortem injuries.
7. The investigation was entrusted to S.I Munshi Lal (P.W.5) who recorded the statement of witnesses, prepared site plan Ext. Ka. 10. After making other necessary formalities regarding investigation, charge sheet Ext. Ka. 11 was against all accused-appellants.
8. On the case being committed to the court of session for trial, charges under section 147, 148, 302 and 307 read with section 149 of Indian Penal Code were framed against the appellants-caused, to which they pleaded not guilty and claimed to be tried.
9. The prosecution in order to prove its case examined six witnesses in all in this case. P.W. 1 Suresh Pal is the complainant, who had lodged the FIR at P.S. Soron. He has proved his written report Ext. Ka 1, which was scribed by him. P.W. 2 Ramwati is the injured. P.W. 3 Dr. R.C. Bajpai has proved injury reports Ext. Ka 2 and Ka 3 of the injured Smt. Ramwati and Smt. Ketuki respectively. P.W. 4 constable Gurudatt is the scribe of chik FIR Ext. Ka. 4, which has been proved by him along with the copy of G.D. (Ext. Ka 5) regarding registration of case. When the injured Jugendra Pal Singh succumbed to the injuries, the case was converted under section 302 IPC, entry of which was made by this witness in G.D. No. 18 on 14.04.1981. The copy of that G.D. (Ext. Ka 6) has been proved by him. S.I. Munshi Lal (P.W. 5) is the Investigating Officer. He has proved the site plan Ext. Ka 10 and charge- sheet Ext. Ka 11. Inquest report Ext. Ka 12 and connected papers Ext. Ka 13 to Ext. Ka 16 have also been proved by this witness by recognizing the hand writing and signature of S.I. A.S. Khan, who had conducted inquest proceeding on the dead body. G.D. No. 16 time 9.30 a.m. dated 10.04.1981 (Ext. Ka 17) has also been proved by S.I. Munshi Lal by recognizing the hand-writing and signature of constable/ clerk Gurudatt. This G.D. pertains to the registration of case under section 366/376 IPC against the accused Bishan Singh etc, FIR of which was lodged at P.S. Soron by Narendra Pal Singh brother of the deceased. P.W. 6 Dr. O.P. Vaidya has proved post-mortem report Ext. Ka 19.
10. In their statements recorded under section 313 Cr.P.C, the appellants-accused denied their participation in the alleged incident and they have stated that due to connivance of the police and Bhagirath, they have been falsely implicated in this case. It is also stated by some accused that earlier also, they were falsely implicated in the case under section 376 and 332 IPC. The accused Kundan Singh has stated that he is the father-in-law of accused Bhupendra Singh and for this reason, he has been falsely implicated in this case.
11. The accused-appellants did not examine any witness in their defence. However, they got the Chalani report Ext. Kha 1 proved by S.I. Munshi Lal and also filed documentary evidence Ext. Kha 2 to Ext. Kha 7.
12. The learned Trial Court after hearing parties counsel and perusing the evidence on record, convicted the appellants-accused and sentenced them as mentioned in para 1 above vide impugned judgment, which has been challenged in this appeal.
13. We have heard Sri Somesh Khare learned counsel appearing for the appellants-accused and learned AGA for the State-respondent and also perused the impugned judgment and entire evidence on record carefully.
14. Regarding the incident that occurred on 13.04.1981 at about 7.00 a.m. in the Khalihan, the prosecution has examined Suresh Pal and Smt. Ramwati. Supporting FIR version, P.W. 1 Suresh Pal after narrating some facts leading to the enmity, has stated in his statement that when on 13.04.1981 at about 7.00 a.m. he and his brothers Jugendra Pal Singh and Narendra Pal Singh and his nephew Mahesh Pal Singh had gone to see their Khalihan, all the 21 accused persons present in court came out from the side of Khalihan and on exhortation of Natthu Singh began to assault Jugendra Pal Singh by lalthies. It is further stated by this witness that somehow he, his brother Narendra Pal and nephew Mahesh Pal escaped and raised noise, on which his mother Ketuki Devi, sister Ramwati and nieces Asha and Munni came there and, when his mother and sister tried to save Jugendra Pal Singh by laying upon him, they were also assaulted by the accused persons, due to which they sustained injuries. The witness (P.W.1) has named and recognized all the appellants-accused who were present in court at the time of his deposition. It is further stated by this witness that the accused Natthu Singh was armed with licenced gun, his samdhi Kundan Singh was having tamancha, Bishan Singh and Yatendra Singh were armed with Farsa and Ballam respectively and other accused were having lathies. He has further stated that after the incident he carried the injured persons to P.S. Soron, where he lodged the FIR and when he was carrying the injured persons for medical examination to Kasganj, Jugendra Pal Singh succumbed to the injuries near village Hulpur after which his dead body and both injured were carried to Kasganj hospital, where the injured were medically examined and after inquest proceeding, the dead body of Jugendra Pal Singh was sent to Etah for post-mortem examination.
15. Regarding the motive to commit this crime the witness Suresh Pal has stated that on 10.04.1981, the accused Bishan Singh etc. had abducted his nieces (sister's daughters) Asha and Munni, with whom rape was also committed by them, report of which was lodged by his brother Narendra Pal Singh. It is also stated by this witness that incident of police encounter had taken place on 10.11.1980 with accused Bishan Singh etc. and during investigation of that case, his brother Jugendra Pal Singh had told the real incident to police against the accused persons, due to which they began to have enmity and they had declared that they will kill all of them and oust them from village due to which Jugendra Pal Singh had given application to S.S.P. Etah and C.O. Kasganj for his security.
16. Lengthy cross-examination made from P.W.1 Suresh Pal by the learned counsel for the appellants-accused, but nothing material could be elicited from him. He has fully supported the case of prosecution and his testimony is worth relying. There is no serious infirmity in his testimony and the learned Trial Judge has rightly placed reliance on the testimony of this witness.
17. Next witness is Smt. Ramwati (P.W. 2) who is injured also. In her statement recorded on 17.12.1981 in trial court, P.W. 2 Ramwati has stated that about 9 months ago at about 7.00 a.m. Jugendra Pal Singh along with his brothers Suresh Pal Singh and Narendra Pal Singh and nephew Mahesh Pal Singh had gone to see his Khalihan and when on hearing hue and cry, she and her mother Ketuki and girls Asha and Munni reached on the place of occurrence near Khalihan they saw that 21 accused present in court were assaulting her brother Jugendra Pal Singh. She has further stated that she and her mother were also assaulted by the accused persons due to which they both sustained injuries. It is further stated by Smt. Ramwati that considering her brother to have died, the accused persons fled away towards Ganga Ji. It is also stated by this witness that being widow she has been residing in the house of her brother and she knows all the accused prior to the incident. She has also named some accused in her examination-in-chief and recognized all the 21 accused present in the court. In cross-examination, it is stated by Smt. Ramwati Devi that Jugendra Pal Singh was surrounded by the accused persons and 17 accused having lathies were assaulting him by lathies. It is also stated by this witness that Natthu Singh and Kundan Singh were armed with gun and tamancha respectively, Bishan Singh was having Pharsa and Yatendra Singh was armed with ballam and rest accused where having lathies.
18. Smt. Ramwati also has been cross examined at length by the learned counsel for the accused-appellants, but none material has been elicited from this witness also. Being injured, the presence of Smt. Ramwati at the time of occurrence is not doubtful. Her testimony also is wholly reliable and there is no reason to disbelieve her testimony. The learned Trial Judge has not committed any illegality in placing reliance on the testimony of this witness.
19. Ocular evidence of the witnesses Suresh Pal Singh and Ramwati finds corroboration from medical evidence. We have already extracted the injuries found on the person of deceased Jugendra Pal Singh and injured Smt. Ramwati and Smt. Ketuki. All the injuries of deceased and both the injured are possible to be caused by lathies. As such, on the basis of the testimony of Suresh Pal Singh and Smt. Ramwati, it is fully proved beyond reasonable doubt that Jugendra Pal Singh, Ramwati and Ketuki were assaulted by appellants-accused on 13.04.1981 at about 7.00 a.m. near the Khalihan, which was kept at a distance of about 100 paces from the house of complainant.
20. There was motive for the accused persons to commit this crime. Admittedly, an FIR regarding abduction and rape of Km. Munni and Km. Asha, (both unmarried niece of the deceased) was lodged on 10.04.1981 against some accused by Narendra Pal Singh, brother of the deceased. In a case of police encounter with some accused, the deceased had told the real facts against them to the Investigating Officer. On the basis of the application moved by the deceased for his security against the accused persons, action under section 107/116 Cr.P.C. was also taken against some accused prior to this incident. There was long standing enmity between the parties and due to that enmity, the accused persons after forming an unlawful assembly on 13.04.1981 at about 7.00 a.m. made a plan to eliminate the deceased Jugendra Pal Singh and in prosecution of that common object, they all having deadly weapons and lathies assembled behind the Khalihan and assaulted the deceased when he came to see his Khalihan along with his brothers Suresh Pal Singh and Narendra Pal Singh and his nephew Mahesh Pal Singh and when Smt. Ramwati and Ketuki tried to save the deceased by laying upon him, they also were assaulted.
21. The main submission made by Sri Somesh Khare, learned counsel for the accused-appellants was that the appellants-accused Natthu Singh, Kundan Singh, Bishan Singh and Yatendra Singh did not use their weapons and hence their conviction with the aid of section 149 IPC is bad in law. In this regard, it was contended by the learned counsel for the accused-appellants that if the common object of the unlawful assembly had been to commit the murder of deceased Jugendra Pal Singh, then the accused Natthu Singh, Kundan Singh, Bishan Singh and Yatendra Singh also would have used their weapons and since these accused did not use their weapons in the alleged incident, hence it would be presumed that these four accused did not share the common object of the unlawful assembly and hence they could not be convicted with the aid of section 149 IPC. In support of this argument, Mr. Khare has placed reliance on the following rulings:-
1. Haramant Laxmappa Kukkadi and others vs. State of Karnataka (1994 (31) ACC).
2. Hori Lal & Anr. vs. State of U.P. (JT 2007 (1) SC 290).
3. Jaswant Singh vs. State of Haryana [2001(43) ACC 458].
4. Satbir vs. Surat Singh & others. (JT 1997 (2) SC 650).
22. On the other hand, it was submitted by learned AGA that the accused-appellants Natthu Singh, Kundan Singh, Bishen Singh and Yatendra Singh were also members of unlawful assembly and since crime in question was committed in prosecution of the common object of that unlawful assembly, hence above named four accused also have been rightly convicted by the learned Trial Court with the aid of section 149 IPC. Learned AGA has placed reliance on the case of Ambika Prasad and another etc. vs. State (Delhi Administration Delhi) (JT 2001/SC 273), Rabindra Mahto & Anr. vs. State of Jharkhand (JT 2006 (1) SC 137) and State of Haryana vs. Tek Singh and others (AIR 1999 SC 1742).
23. Having given our thoughtful consideration to the rival contentions of the learned counsel for the parties, we are not impressed with the aforesaid submissions made by learned counsel for the accused-appellants. From the evidence on record, this fact is borne out that the accused-appellants Natthu Singh, Kundan Singh, Bishen Singh and Yatendra Singh having deadly weapons along with other accused having lathies formed an unlawful assembly, with common object to commit the murder of Jugendra Pal Singh, with whom to they were having enmity. 17 accused having lathies had mercilessly beaten the deceased Jugendra Pal Singh, who suffered 11 ante mortem injuries, which have extracted above. In ante mortem injury No. 1 two lacerated wounds measuring 4 cm x 1 cm and 3 cm x 1 cm x bone deep on the top of skull were found. This injury was sufficient in ordinary course the death of deceased. P.W. 6, Dr. O.P. Vaidya, who had conducted post-mortem examination of the dead body, has also stated in his statement that ante mortem injuries were sufficient in ordinary course to cause the death of the deceased. In cross-examination it is stated by Dr. Vaidya that apparently injuries no. 1 and 8 might have proved fatal. Hence, having regard to the nature of injuries caused to the deceased Jugendra Pal Singh and keeping in view all the facts and circumstances of the case, it can safely be inferred that the common object of the unlawful assembly, of which the accused Natthu Sing, Kundan Singh, Bishen Singh and Yatendra Singh also were members, was to commit the murder of deceased Jugendra Pal Singh and in prosecution of that common object, other accused having lathies gave fatal blow to the deceased and caused injuries to the injured Ramwati and Ketuki. Therefore, in our considered view, all the appellants-accused have been rightly convicted with the aid of section 149 IPC.
24. The Hon'ble Apex Court in the case of Unis alias Karya etc vs. State of Madhya Pradesh AIR 2003 SC 539 has held that even if no overt act is imputed to a particular person, the presence of the accused as part of unlawful assembly is sufficient for conviction.
25. In State of U.P. vs. Dan Singh and others 1997 (3) SCC 474 it was observed that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. Reference was made to the case of Lalji vs. State of U.P. 1989 (1) SCC 437 where it was observed that while overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under section 149 IPC.
26. The following observations made by Hon'ble Apex Court in the case of Masalti and others vs. State of U.P.,AIR 1965 SC 202 are also relevant:-
" Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault."
27. The Hon'ble Apex Court in para 39 of Krishna Mochi and others vs. State of Bihar 2002 SCC Cri 1220 has observed as under:-
"One thing is clear that all these acts were done by the accused persons pursuant to a conspiracy hatched up by them to completely eliminate members of a particular community in the village and to achieve that object, they formed an unlawful assembly and different members of that unlawful assembly had played different roles. In view of these facts, merely because the appellants are not said to have assaulted either any of the deceased or injured persons, it cannot be inferred that they had no complicity with the crime, more so according to the evidence they were also armed with deadly weapons, like firearms, bombs etc., but did not use the same. Reference in this connection may be made to a decision of this Court in the case of masalti where it was laid down that where a crowd of assailants, who were members of an unlawful assembly, proceeds to commit the crime in pursuance of the common object of that assembly, it is often not possible for witnesses to describe the actual part played by each one of them and when a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault as in that case several weapons were carried by different members of the unlawful assembly and an accused who was a member of such an unlawful assembly and was carrying firearm cannot take any advantage from the fact that he did not use the firearms, though other members of the unlawful assembly used their respective arms."
28. There is no dispute regarding the observations made in the rulings on which reliance has been placed by the learned counsel for the appellants-accused, but having regard to the observations and the law laid down by the Hon'ble Apex Court in the above mentioned cases, the learned Trial Judge did not commit any illegality in convicting the appellants-accused with the aid of section 149 IPC and we see no reason to take different view.
29. It was further submitted by learned counsel for the appellants-accused that the offence punishable under section 302 IPC is not made out in this case, because intention of the accused persons was not to commit the murder of Jugendra pal Singh. In this regard, it was submitted by Mr. Somesh Khare that had the accused persons intended to commit the murder of Jugendra Pal Singh, they could immediately commit his murder by using fire arms or ballam and farsa, but admittedly these weapons were not used, which indicates that the intention of the unlawful assembly was merely to cause injuries Jugendra Pal Singh and if due to those injuries, he died subsequently, the offences punishable under section 325 IPC or at the most under section 304 part -II IPC will be made out in this case, because there is no evidence to show as to which accused had caused fatal injury on the head of the deceased. For these submissions Mr. Khare has placed reliance on the following cases:-
1.Hari Das vs. State of U.P. [2005 (51) ACC 363].
2.Suryamani Singh vs. State of U.P. [2003 (46) ACC 15].
3.Perana and others vs. Emperor (1936 ALJR 333).
4.Prayag Singh vs State of U.P. (2004 (II) UP Cr. R 465).
5.Kuldeep Singh vs. State of Haryana (1996 (33) ACC 523).
6. State of U.P. vs. Misri Lal & others (1982 (19)ACC 346).
30. The observations made in aforesaid rulings are not in dispute but keeping in view the nature of injuries caused to the deceased Jugendra Pal Singh and having regard to all the facts and circumstances of the case, we are not impressed with the aforesaid submission made by learned counsel for the appellants-accused and in our view, the learned Trial Court has rightly convicted the appellants-accused under section 302 IPC read with section 149 IPC also. As stated earlier also, 17 accused had assaulted the deceased Jugendra Pal Singh mercilessly and injuries on vital parts of body, which were sufficient to cause the death, were suffered by the deceased. Therefore, no interference is warranted in the findings recorded by the learned Trial Court regarding conviction of the appellants-accused under section 302 IPC.
31. Next submission made by the learned counsel for the appellants-accused was that the witnesses Suresh Pal and Ramwati are related to the deceased and since no independent witness has been examined in this case by the prosecution, hence conviction recorded by the learned Trial Judge on the basis of the testimony of these witnesses is not justified. We find no merit in this argument. It is true that the witness Suresh Pal is the real brother of the deceased, whereas Smt. Ramwati is his real sister, but the testimony of these witnesses cannot be discarded on this ground. It is well settled principle of law that testimony of any witness cannot be discarded merely on the ground that he is related to the victim or deceased.
32. In Dalip Singh and others vs. State of Punjab (AIR 1953 SC 364), it has been laid down as under:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause fro enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilt, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
The above decision has been followed in Guli Chand and others v. State of Rajasthan 1974 (3) SCC 698, in which Vadivelu Thevar v. State of Madras AIR 1957 SC614 was also relied upon. We may also observe that the ground that the witnesses examined by the prosecution being close relative and consequently being partisan witnesses, should not be relied upon, has no substance, as this theory was repelled by the Hon'ble Apex Court as early as in Dalip Singh's case(supra), in which surprise was expressed over the impression, which prevailed in the minds of the Members of the Bar that relatives are not independent witnesses.
33. Again in Masalti and others v. State of U.P., AIR 1965 SC 202, the Hon'ble Apex Court observed:-
" But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses..............................The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
34. To the same effect is the decision of State of Punjab v. Jagir Singh, AIR 1973 SC 2407, Lehna v. State of Haryana, 2002 (45) ACC 566 (SC)and Gangadhar Bahera and others v. State of Orissa, 2002 (Suppl.) ACC 387 (SC).
35. The following observations made by Hon'ble Apex Court in para 31 in the case of Krishna Mochi vs. State of Bihar 2002, SCC (Cri) 1220 are also relevant regarding the effect of non examination of independent witnesses:-
"It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power."
In para 33, it is further held by Hon'ble Apex Court :-
" It is well settled that in a criminal trial credible evidence of even a solitary witness can form the basis of conviction and that of even half a dozen witnesses may not form such a basis unless their evidence is found to be trustworthy inasmuch as what matters in the matter of appreciation of evidence of witnesses is not the number of witnesses, but the quality of their evidence".
36. Therefore, having regard to the observations made by Hon'ble Apex Court in aforesaid cases, the testimony of the witnesses Suresh Pal and Smt. Ramwati cannot be discarded due to non-examination of independent witnesses, or on the ground that they are near relative of the deceased. Smt. Ramwati is the injured. The incident had occurred in day light and there was no question of mis-identity. The testimony of this witness is wholly reliable. Hence conviction of the appellants-accused can be based on the solitary testimony of this witness, because as held by Hon'ble Apex Court in para 33 of Krishna Mochi and others vs. State of Bihar (supra), in a criminal trial, credible evidence of even solitary witness can form the basis of conviction. The learned Trial Judge has rightly placed reliance on the testimony of witnesses Suresh Pal and Smt. Ramwati and we see no reason to make any interference in the finding of conviction recorded by learned Trial Judge.
37. It was also submitted by learned counsel for the appellants-accused that presence of the witness Suresh Pal at the time of incident is doubtful, because he neither made an attempt to save the deceased nor he sustained any injury. We are not impressed with this argument also. The mere fact was that the witness Suresh Pal was not injured is not a ground which can persuade us to come to the conclusion that he was not present at the place of incident. The testimony of Suresh Pal having been rightly believed by the learned Trial Court, we see no reason to reject the same.
38. For the reasons mentioned herein above, in our considered view, there is no merit in this appeal and interference by this Court either in conviction or sentence is not warranted.
39. In the result, the appeal is hereby, dismissed. The conviction and sentence of the Appellants-accused are confirmed.
The appellants-accused are on bail. Their bail bonds are cancelled and sureties are discharged. They are directed to surrender forthwith before the Chief Judicial Magistrate Etah, failing which appropriate steps be taken for their arrest and sending them to jail to serve out the sentence.
The office is directed to return trial court record expeditiously along with a copy of this judgment.
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