Jeet Bahadur and others vs State of U.P.

Rakesh Tiwari, J.

Heard Sri Akhilesh Singh and Sri P.C. Srivastava, learned counsel for the appellants, Sri K.N. Bajpai, learned AGA and perused the record.

These criminal appeals are directed against the judgment and order dated 14.7.2003 passed by Sri Krishanashish Bhattacharya, Additional Sessions Judge, Court No.2, Gorakhpur in S.T. No. 333 of 92, State versus Raj Kumar and others convicting and sentencing the appellants under Section 302/149 IPC to undergo imprisonment for life with a fine of Rs.5,000/ each, under Section 307/149 IPC, RI of 10 years with a fine of Rs.3,000/ each and under Section 148 IPC, RI of one year with a fine of Rs.1,000/ and in default of payment of fine it was ordered to undergo Additional RI of two years. All the sentences were ordered to run concurrently.

The aforesaid appeals have been filed on the ground that the order and judgment passed by the Trial Court is illegal, perverse and suffers from error apparent on the face of record; that the judgment is based on surmises, conjectures and the findings therein are misconceived as the Trial Court has failed to appreciate that the injured witnesses in the present case could not come forward to support the prosecution case which itself creates doubt in respect of the genesis of the FIR. It is lastly challenged on the ground that the punishment/ sentence awarded by the Trial Court is too harsh, excessive and severe and has been passed under the certain prejudiced deliberation against the appellants.

The genesis of the FIR is in an incident said to have occurred at 7.00 A.M. on 13.6.92. The FIR was lodged by the first informant Ram Suchit Yadav son of Sri Lal Bihari Yadav, resident of village Lalpur, PS Basgaon at about 9.05 P.M. on 13.6.92. The distance of the police station from the place of village is said to be about 2 miles in the east. Accused persons Raj Kumar Yadav, Raj Bahadur Yadav sons of Sri Ram Govind, Jeet Bahadur alias Braj Bahadur son of Sri Ramjit Yadav, Shyamji son of Sri Shiv Mol Yadav, Baleshwar Yadav son of Sri Ratti Yadav resident of village Lalpur, P.S. Basgaon, District Gorakhpur and Smt. Rajmati wife of Sri Rajan Yadav were named in the FIR for the offences under Sections 147,148,149, 302,307,504 and 506 IPC. In the first information report, first informant Ram Suchit Yadav stated that on the Abadi land of his elder brother Sri Shiv Lal Yadav there was an old ''Madai'' '' Nand'' and ''Khuta''. The ''Madai'' had fallen and about 1012 days earlier, the family members of Sri Ram Govind Yadav had erected a new '' Madai'' on which a Panchayat had assembled but the judgment of the Panchayat was not accepted by them and on 13.6.92 at about 7.00 A.M. they had called some persons from the village and were erecting a new ''Madai''. When accused Raj Kumar Yadav came with double barrel gun of his father, who is in Military, along with Raj Bahadur, Jeet Bahadur alias Braj Bahadur, Shyamji and Baleshwar at the spot with firearms and exhorted for killing them as a consequence all the aforesaid four accused persons fired upon them. It was avered in the FIR that Smt. Rajmati Yadav was giving cartridges to the assailants and was telling the assailants to kill them. In the shooting of firearms, Arvind aged about 17 years, son of the first informant and Om Prakash aged about 12 years son of Sri Hari Lal died on the spot. Balram Yadav son of Sri Dudh Nath Yadav, Madhav son of Adhare Yadav, Haridwar son of Sri Chandrabali Yadav, Jang Bahadur son of Sri Angnu Yadav, Smt. Gayatri Devi daughter of Angnu Yadav, Smt. Munesh Devi wife of Sri Shiv lal Yadav and Urna Shankar Yadav son of Sri Hari lal Yadav, who were raising ''Madai'' received injuries.

It was further averred that Sitai Yadav son of Sri Hardeo Yadav, Radhey Shyam Yadav son of Sri Ram Prasad Yadav, Chhotai Yadav son of Sri Sukhu Yadav, Hari lal son of Sri Ramdhari Yadav, who were also raising "Madai" along with the first informant and others were eyewitness of the incident; that the accused persons after committing the offence ran away towards north and that the first informant had come to the police station for lodging the report leaving the dead bodies of the two deceased at the spot.

The injured Balram was medically examined on 13.6.1992 at about 11.45 P.M. by Dr. S.K. Srivastava, Medical Officer. District Hospital, Gorakhpur. The following injuries were found on his person by the Doctor.

The Medical Officer also medically examined injured Madhav on 13.6.1992 at about 11.55 P.M. and found following injuries on his person.

Injured Haridwar was also examined by Dr. S.K. Srivastava on 13.6.1992 at about 2.55 A.M. Who has sustained the following injuries on his person.

Jang Bahadur, who was medically examined on 13.6.1992 was found to have received the following injuries on his person.

The injured Haridwar, Balram, Prayag, Jang Bahadur and Gayatri were advised for Xray which was conducted on 15.6.1992 by Dr. SDP Gupta, Senior Radiologist, District Hospital, Gorakhpur. Injured Smt. Munari Devi, Urna Shankar Yadav and Gayatri Devi wife of Sri Jai Ram Yadav were also medically examined on 13.6.1992 at Primary Health Centre, Basgaon by Dr. R.S. Tripathi.

The Investigating Officer is said to have visited the spot itself on 13.6.1992 but due to non supply of electricity the inquest could not be done with darkness of the night, hence the inquest report in respect the dead bodies of Om Prakash and Arvind were sent for post mortem at about 6.00 A.M. and 7.35 A.M. the next day.

The post mortem of deceased Om Prakash was conducted by Dr. Ravindra Pratap, Assistant Medical Officer, District Jail Hospital, Gorakhpur on 14.6.92 at about 4.00 P.M. According to the post mortem report, the deceased Om Prakash had four injuries on his person.

Post mortem examination on the dead body of deceased Arvind on 14.6.1992 was conducted at about 3.30 P.M. The doctor found following antemortem injuries on his person.

After completing the investigation the Investigating Officer submitted charge sheet against the appellants under Sections 147, 148, 302/149 and 307/149 IPC. The accused pleaded not guilty to the charges framed against them and claimed to be tried.

The prosecution in order to prove its case examined 9 witnesses namely, ( PW 1) Ram Suchit Yadav, (PW 2) Balram, (PW3) Prayag Yadav, (PW 4), Dr. R.M. Tripathi, (PW5) Dr. S.D.P. Gupta, (PW6), Dr. Ravindra Pratap, (PW7) Sri Bibhuti Sharan Chaubey, (PW 8) Dr. S.K. Srivastava and (PW9), Sri Shamsher Bahadur Singh.

The accused persons examined themselves under Section 313 Cr.P.C. and denied the allegations of the prosecution stating that they have been falsely implicated on account of enmity and claimed to be tried.

PW 1, Ram Suchit Yadav narrated the incident and also stated that there was a civil dispute pending between the accused and the deceased with regard to land on which the deceased and other injured persons were trying to raise ''Madai''; that the case filed by Sri Ram Govind father of accused Raj Kumar in the Court of Munsif, Basgaon in which he and his brother appeared and filed their objections; that the ''Madai'' was being constructed from the morning which was about 12 hands long and 8 hands wide and had been completed by 56 o'' clock in the evening and at the time ''Madai'' was constructed in the whole time, none of the appellants had come to stop them nor laid any claim over the land but they came and started dispute when the ''Madai'' was being kept at the place. In his crossexamination he stated that before the ''Madai'' was constructed, Raj Kumar had also constructed a ''Madai'' 23 days earlier regarding which a Panchayat had been called As flow of water was being obstructed by ''Madai'' of Raj Kumar,the Panchayat decided that he should shift his ''Madai'' few paces back but Raj Kumar did not comply with the decision of the Panchayat. He also stated that they had not stopped Raj Kumar from constructing ''Madai'' when he had constructed it and as such he had no apprehension that the accused persons would attack him for constructing the ''Madai'' who had fired with their firearms almost simultaneously; that he had seen two empty cartridges near the bodies of Arvind and Om Prakash, who were injured from close range and had been taken to the doctor. He also stated that neither he nor the decreased nor the injured had any concern with the disputed ''Madai'' belonged to Shiv Lal''.

PW 2, Balram, also an injured witness stated that he had been called by Shiv Lal for raising a ''Madai.'' He narrated the incident in the same manner as was stated by PW 1. He also stated that he had received injuries in the incident and had to remain admitted in the hospital for 1012 days; that the police had not taken his statement and that he had gone to Mumbai for treatment of his injuries after getting treatment from a private Doctor. He stated that ''Madai'' of Raj Kumar was at the site of occurrence. He also stated that he had seen Prayag, and Madhav at about 9.30 A.M. at the police station. He also stated that he along with Haridwar, Prayag, Madhav Jang Bahadur, Uma Shankar,Gayatri and Munnra Devi had sustained injuries in the incident; that Om Prakash and Arvind first fired upon by the accused and at that time Om Prakash and Arvind 8 feets away from the ''Madai''.

PW 3, Prayag Yadav also confirmed the names of the accused persons in the incident and stated that he was injured in the firing by the accused in the incident of 13.6.92. He is also an injured witness but nothing damaging to the prosecution case could be elicited from his statement. According to him, the ''Madai'' was being constructed from 89 A.M. in the morning which continued even after 4 o'' clock in the evening. Nobody had said anything up to that time and there was no apprehension that they should be suddenly attacked. He stated that he is labourer and earned livelihood by doing work and that the ''Madai'' had been completed by 5 o''clock when they were attacked by the accused persons in which he was injured and was taken to the police station on a cot. Ram Suchit Yadav, Haridwar, Jang Bahadur, Munnra Devi and Gayatri Devi had accompanied them and they reached the police station at about 9.00 A.M.

Pws 4,5 and 8 are Doctors who had treated the injured persons. They had confirmed the report that all the injured had received injuries from firearms. The statements of these doctors support the prosecution story which is also supplemented by the xray plates of the injured (Ex.1 to 7).

PW 6 is the Doctor, who had conducted post mortem on the bodies of Om Prakash and Arvind and proved the post mortem reports. He stated that at the time of post mortem copy of the FIR had not been sent along with the dead bodies of the aforesaid two persons.

PW 7 is the writer of the G.D. who has confirmed that he had registered the case on 13.6.92 at about 9.05 P.M. at sl. no. 32 under crime no. 260 of 1992, under Sections 147,148,302/149,307,504 and 506 IPC. He stated that carbon copy of the GD has been filed before the Court as the original GD has been destroyed. Copy of the GD was exhibited as Ex.10 but he could not inform the reasons for destruction of the GD.

PW 9 is the Investigating Officer, who has supported the prosecution story and has explained the minor discrepancies in the statements of the witnesses recorded under Section 161 Cr.P.C. and delay in taking the statements of the witnesses.

On the basis of evidence on record the Trial Court came to the conclusion that the prosecution has been able to prove its case beyond reasonable doubt against the accused appellants. The Trial Court has also recorded a finding that though the accused do not deny the factum of incident but have taken shelter of their self defence, which proves that the incident had occurred in which two persons of the prosecution side have been murdered and many had received injuries.

In so far as Smt. Rajmati is concerned, the Court below recorded a finding that even if she was at the place of occurrence no definite role is assigned to her in the killing except the statement of PW 1 in which he has stated that she was giving cartridges to the accused persons for firing but in the crossexamination of PW 1 and in the statements of other prosecution witnesses no such thing could be elicited against her as such it was held that the factum of providing cartridges to the accused is not based on any cogent evidence, hence Smt. Rajmati, who was charged under Sections 147, 302/149 and 307/149 IPC was acquitted by giving benefit of doubt and the remaining accused persons Raj Kumar, Raj Bahadur, Jeet Bahadur, Shyamji and Baleshwar Yadav found guilty of constituting unlawful assembly for commission of the offence beyond reasonable doubt. They were accordingly, convicted and sentenced as stated in the appeal above.

The contention of learned counsel for the appellants is that the FIR is ante timed. In this regard he states that the place of occurrence is 2 miles from the police station, though the incident is said to have taken place on 13.6.92 at about 7.00 P.M. but the report has been lodged at about 9.05 P.M. On 13.6.92 as appears from the FIR. He further submits that this is also proved from the fact that the incident had taken place after 9.00 P.M. as it appears from the report of the hospital that the injured persons were medically examined at about 11.30 P.M.

He further submits that the investigation is full of lacunae and copy of the FIR was not sent along with the dead bodies of the two deceased for post mortem. In this regard learned counsel for the appellants has placed reliance upon following extract of evidence of PW 6, Dr. Ravindra Pratap:

as well as has placed reliance upon a judgment rendered in ACC 1994 (31) L/NK. Mahraj Singh versus State of U.P. Page437. He states that even ''Chiththi Majrubbi'' does not contain crime number and Sections which shows that FIR is ante timed. He then submits that even defence suggestion that accused had run away taking the benefit of darkness shows that it was not a day light as per prosecution story.

The next contention of learned counsel for the appellants would be that Ram Suchit Yadav is the brother of the deceased and Balram as well as Prayag injured witnesses are not reliable witnesses being partisan witnesses and the accused persons have been falsely implicated in the case; no independent witness has come forward to support the prosecution story and even the Investigating Officer has not gone into the factum as to who was in actual possession of the land to determine as to who was aggressor.

He also submits that there was no common object and there is no specific role assigned to any accused as to who killed whom, hence there being no common object and common intention they can not be saddled with vicarious liability.

Per contra, learned Additional Government Advocate has contended that Shiv Lal, who was present, was the common object as such the common object was there to commit the murder of Shiv Lal; that the old ''Madai'' had fallen down and new ''Madai'' was being constructed by the appellants on the disputed land; that since there was litigation between the parties with regard to the land on which the ''Madai'' was being constructed, which was obstructing the flow of water, hence it cannot be said that the injured were aggressors and that from the facts it appears that the ''Madai'' was being constructed from morning. Logs had been fixed to cover with the ''Madai''. After raising it the villagers had also been called and ''Madai'' was being raised at about 5.36 P.M. The assailants had come armed with firearms. It was, therefore, a planned attack in which two persons died and several were injured. He also submits that the case law i.e. ACC 1994 (31) L/NK. Mahraj Singh versus State of U.P. Page437 cited by the learned counsel for the appellants has been overruled by the Apex Court in the case of Radha Mohan Singh @ Lal Saheb and others versus State of U.P. JT. 2006(1) SC428, as such the aforesaid case is not applicable to the facts and circumstances of the present case.

After hearing learned counsel for the parties, on perusal of the record and the case law cited it is evident that PW 1, Ram Suchit Yadav in no ambiguous terms has stated and proved that Arvind and Om Prakash the two deceased were killed by the indiscriminate firing by the accused, who had fired not less than 1012 cartridges. They had come armed with weapons in an unlawful assembly and had not only taken two lives but had also injured a number of persons, who were witnesses of the incident. This witness rejected the suggestion that FIR was ante timed or that they had been the aggressors upon the appellants in the darkness of the night or had destroyed property of the accused persons. He also denied the suggestion of any firing from his side upon the accused persons and also denied the suggestion of firing by the accused persons in their self defence.

PW 2, who is also an injured eye witness, had also corroborated the fact and he had to remain admitted in the hospital for 1012 days. Both PW 1 and PW 2 are natural eye witnesses and their presence on the spot was natural and believable. PW 2 was the labourer and was an independent person in so far as the dispute regarding the land between the accused persons and PW 1 etc. is concerned.''Mandai'' was being constructed from the morning by Ram Suchit Yadav and others with the help of villagers and labourers. It was completed by 5 o'' clock in the evening, therefore, there was no occasion for them to be aggressors and it was more probable and believable that the accused appellants taking the advantage of the dusk came firing upon them to dispossess them from the land where the ''Madai'' was being constructed, which was under dispute. The injuries received by the deceased and the injured eye witnesses are corroborated by the medical evidence as well as from the ocular evidence in the case.

The accused had come with the common object, purpose and design. The contention of learned counsel for the appellants that the acquittal of coaccused Smt. Rajmati Devi wipe out the application of Section 149 IPC does not appear to be very correct. The word "object" under Section 149 IPC has been given meaning by the Apex Court in 2004, SCC (Criminal) 1553, Chanda and others versus State of U.P. and others wherein the Apex Court has said that in order to make it " common" it must be shared by all the accused and the object should be common to the persons who compose the unlawful assembly, they should all be aware of it and concur in it.

In so far as acquittal of coaccused Smt. Rajmati Devi is concerned, the Apex Court held in paragraphs 13 and 14 of the judgment that the acquittal of coaccused would not wipe out application of Section 149 IPC.

The Apex Court further in the case of Sunil Kumar and another versus State of Rajasthan, 2005 SCC (Criminal) 1230 has held that attack by members of unlawful assembly on deceased in prosecution of common object and prosecution need not to establish overt act done by each of the accused.

The Allahabad High Court also in the case of Raj Nath versus State of U.P., 2009 (64), Allahabad Criminal Cases966, while dealing with Section 149 IPC held that the time of forming an unlawful intent is not material and an assembly which, at its commencement or even for sometime thereafter, is lawful may subsequently become unlawful. It can develop during the course of incident at the spot.

As regards self defence is concerned, the appellants have miserably failed to prove any self defence. There is neither any dead nor injured at their side. Rather, it was Ram Suchit Yadav along with villagers and labourers, who were raising the ''Madai'' when they were fired upon by the accused persons leaving behind two dead and several injured. The question of self defence would have been important if both sides would have been equally armed with weapons and one of the sides would have been defending his unquestionable legal right. In the instant case, the land over which the ''Madai'' was being constructed was in dispute as both sides claimed to be owners. Litigation was already pending as such it cannot be said that the accused had any absolutely legal right over the land on which the ''Madai'' was being raised by Ram Suchit Yadav and others nor it can be said that Ram Suchit and others were legally constructing the ''Madai'' over the said land. It, therefore, follows that the right of self defence was not available to the accused and they have miserably failed to make out a case in this regard from the documents on record as well as from their statements under Section 313 Cr.P.C. They had not lodged any FIR nor taken any legal recourse in the matter when the ''Madai'' was being constructed from the morning till evening. Even no villagers and labourer have been examined by them in their defence who could come forward to show that the appellants were neither aggressors nor the land on which the ''Madai'' was being raised belonged to Ram Suchit Yadav and others. Mere irregularity in the investigation is not fatal or minor discrepancies in the statements of the witnesses would not be fatal to the prosecution. The FIR was prompt and does not appear to have been ante time as the incident occurred at about 7.00 P.M. and the report of the incident was lodged at about 9.05 P.M. The police station was 2 miles from the village and the persons from the side of the first informant had taken the bodies of the deceased and the injured witnesses to the police station on a cot. The right of self defence is to be proved by the persons claiming it. Participation of the accused in the incident is proved as the witnesses have received injuries of the firearms. Acquittal of coaccused Smt. Rajmati Devi from the charges on the ground that she has no specific role to play in the killing of the deceased and was exhorting, which could not be proved, would not in itself give any benefit to the accused. If right of selfdefence is claimed by the accused persons, they should at least have a fair given warning to the aggressors but as stated earlier, the plea of self defence by the accused is not established by them in view of the evidence of injured eye witnesses. The motive to stop construction of the ''Madai'' is also established. PW 2 in his statement stated that the accused had objected to the construction of ''Madai'' by saying that the ''Madai'' will not be constructed.

For all the reasons stated above, we are of the considered opinion that the appellants have failed to make out any case for interference in appeal. The judgment and order of the Trial Court is confirmed. The appeals are dismissed.

Let a copy of this order be certified to the C.J.M. concerned immediately for compliance.