Pratap Singh (D) and Others vs State of U.P.

Bhanwar Singh, J.—This appeal has been preferred by the Appellants against the judgment of conviction and sentence dated 23rd May, 1980 passed by the First Additional Sessions Judge, Rae Bareilly. Out of five Appellants, the two, namely, Pratap Singh and Nand Kishore died during the pendency of this appeal. As a consequence, this appeal would stand abated vis-a-vis the said two accused. The remaining three Appellants are Gaya Prasad, Kalloo and Gur Saran Lal.

By virtue of the judgment in appeal the Appellants were held guilty under Sections 302/149, 307/149 and 324/149 and Section 148, I.P.C. They were convicted for having formed an unlawful assembly and eliminated in pursuance of a common object Ban Mali and Avadh Narain and also for attempting to commit murder of Ram Bhajan. Maiku was allegedly hurt by these Appellants. While all the Appellants were convicted and sentenced to life imprisonment for causing murder of Avadh Narain and Ban Mali, their conviction under Sections 307 and 148, I.P.C. enured them a sentence of 5 years and two years respectively. For the offence of charge u/s 324, I.P.C., they were convicted and sentenced to a period of one year rigorous imprisonment. All the sentences were directed to run concurrently. All the other accused on trial, namely, Manohar Lal, Vasdeo, Chandrapal, Asharfi Lal, S/o Ram Adhin, Santoo, Yadunath, Asharfi Lal, S/o Lakshman and Babadin alias Radhey Shyam were found not guilty of the offences, they were charged with and consequently acquitted on all counts.

Shortly stated the facts leading to the trial of the thirteen accused and eventual conviction of the five Appellants may be recapitulated as below:

Shri Satrohan Prasad son of Balbhadra Prasad, resident of village Sehgon Pachhim, police station Shivgarh, district Rae Bareilly lodged a report with the police on 29.6.1977 with the allegations that at about 5-6.00 a.m. on June 28, 1977, Ram Bhajan and Banmali were sitting underneath a thatch belonging to the latter. Both of them were accosted and attacked by the Appellants and 10 others namely Sunder Lal (died before trial), Shanker Sharan (died during trial), Manohar Lal, Vasdeo, Chandrapal, Yadunath, Babadin alias Radhey Shyam, Asharfi Lal son of Ram Adhin, Asharfilal son of Lakshman and Santoo. Whereas Sunder Lal was armed with a gun, Pratap Singh (died during pendency of this appeal), Nand Kishore (also died during pendency of the present appeal), Gaya Prasad, Kalloo and Gursaran had country-made pistols with them. The remaining assailants were armed with lathis.

Making a reference to an earlier incident, the informant alleged in the report that about 1-1/2 months before this occurrence, Pratap Singh and Ors. had a quarrel with Ram Bhajan whereafter Ram Bhajan''s father Ram Narain was assaulted by Sunder Lal and Ors. but the informant intervened and got the dissentions between the two sides patched up but Pratap Singh and Ors. carried the said animosity in their mind and eventually indulged in shooting spree. On the date of occurrence, Ram Bhajan, P.W. 2 had gone to the house of Ban Mali to borrow the latter''s bullock with a view to sow his paddy. As Ban Mali''s bullock was taking fodder, Ram Bhajan sat under the thatch and started chatting with Ban Mali. Sunderlal and Ors. came there and asked Ram Bhajan to explain as to why brickbats were thrown by him inside their house during the intervening night. Ram Bhajan denied this accusation of Sunderlal and Ors. and expressed his dismay which ultimately resulted in exchange of hot words. In the meantime, the set of other accused, namely Vasdeo, Chandra Pal, Santoo, Asharfilal son of Lakshman armed with lathis and Shanker Sharan having a kanta barged into the house of Ban Mali. Shanker Sharan gave a kanta blow to Ram Bhajan but since Ban Mali caught hold of the kanta, Ram Bhajan escaped a serious injury. A scuffle ensued between Shanker Sharan and Ban Mali. In the meantime, the other assailants present there exhorted Sunderlal to teach them a lesson whereupon Sunderlal fired two shots from his gun aiming at Ban Mali and Ram Bhajan causing gun shot injuries to both of them. Both these victims ran helter-skelter to save their lives. Ban Mali took shelter inside the house of one Sabhapati and Ram Bhajan entered the house of Satrohan Prasad, the informant and P.W. 1 of this case. In the meantime, another set of accused, namely, Nand Kishore, Pratap, Gaya Prasad, Gur Saran, Kalloo-all armed with countrymade pistols and Asharfi Lal, S/o Ramadhin, Yadunath and Babadin having lathis with them came there and then all the accused persons joined the other set of accused, chased P.W. 2 Ram Bhajan and fired shots at him. Satrohan Prasad, who was in front of his house, bolted the door from inside. Satrohan was asked to open the door but he did not oblige the assailants. The accused opened fire from their firearms as a result of which one villager Maiku who happened to be in front of the door of Satrohan Prasad was injured. The accused then withdrew and came to the tri-junction close to the house of Prabhu Pasi. When the accused were there to think over their next step, Avadh Narain, S/o Satrohan Prasad fell in their trap and happened to be their next victim. He was returning from village Tamanpur where he had gone to see a drama show. All the accused persons caught hold of him, dragged him on the ground and Sunder Lal fired a shot killing him instantaneously. This occurrence of Avadh Narain being shot dead was witnessed by P.W. 3 Kunwar Bahadur and P.W. 4 Daroga Prasad. Kunwar Bahadur then rushed to the house of Satrohan Prasad and narrated all about the said incident. He however persuaded Satrohan Prasad not to go near the dead body of Avadh Narain as the accused might not spare him. Satrohan Prasad lodged the first information report (Ext. Ka-1) at Police Station Shivgarh at 7.50 a.m. On the basis of this report, Head-Constable Shiv Prasad (P.W. 10) prepared the chik report (Ext. Ka-18) and registered a case in G.D. (Ext. Ka-19).

S.I. Mahendra Saxena, the Station Officer, Shivgarh assumed the task of investigation of this case. He reached the village Sehgon Pachhim at 9 a.m. He conversed with P.W. 1 Satrohan Prasad and P.W. 2 Ram Bhajan. Alongwith them, he arrived at the house of Ban Mali, who was lying over a cot and alive till then. Sub-Inspector Mahendra Saxena recorded the statement of Ban Mali and collected the bloodstained and simple strings of the cot and also simple and bloodstained earth from under the cot and prepared the memo Ext. Ka-6. He then came to the site of occurrence where Avadh Narain was lying. He prepared the inquest report of the dead body, collected two used cartridges, some wads and one pair of chappal lying there. After preparing the relevant papers, he sent the dead body in a sealed cloth bag for post-mortem.

On having completed, the requisite formalities, the Investigating Officer arrested Sunder and Pratap Singh accused from their tube-well alongwith the former''s gun and live and used cartridges. He also searched for the other accused but could not find them. Thereafter, he recorded the statements of P.W. 3 Kunwar Bahadur, P.W. 4 Daroga Prasad and P.W. 5 Chandra Pal. He received the post-mortem report on 2nd September, 1977 and by then, he had arrested all the accused persons. He interrogated them and after completing all the formalities of the investigation, he submitted the charge-sheet Ext. Ka-17 against all the accused persons.

Out of fifteen persons involved in the commission of several offences, 13 were put on trial. The remaining two Sunder Lal and his son Shanker Sharan expired before the trial commenced. Whereas Sunder Lal was killed, Shanker Sharan died during trial.

Before proceeding further, it would be relevant to mention that in the trial of Sunder Lal''s murder, the informant Satrohan P.W. 1, Chandrapal, P.W. 5 and Kunwar Bahadur, P.W. 3 were held guilty and on conviction awarded life imprisonment. However, they were released on bail by the appellate court and obviously, they were on bail when they were examined as prosecution witnesses of this trial.

In their defence, all the accused pleaded not guilty and Pratap Singh stated that at 5.00 or 5.30 a.m. on the date of occurrence, he was sitting in front of the door of his house when Ban Mali, Awadh Narayan armed with country-made pistols, Ram Bhajan armed with kanta, Ram Naresh armed with spear and Ram Pratap, Satrohan Prasad, Drig Pal, Siya Ram, Kunwar Bahadur, Nand Lal, Sabhajeet, Gandau and Ram Narayan-all armed with lathis came there and started inflicting injuries to him. On an alarm raised by him, his father came to his rescue but he was also assaulted by Satrohan Prasad and Ors. His father then ran inside and when the accused persons started breaking open the door of his house, his father opened the fire from his gun and it was only thereafter that they took to their heels. When he and his father went to the police station to lodge the First Information Report, they were arrested without their report being taken down and soon then, they had been falsely implicated in this case.

After conclusion of the trial, only five accused persons, namely Pratap Singh, Gaya Prasad, Kallu, Nand Kishore and Gursaran Lal were held guilty of the offences and convicted under Sections 148, 302/149, 307/149 and 324/149. Various sentences were pronounced as stated earlier.

The remaining accused Mahohar Lal, Vasdeo, Chandrapal, Asharfi Lal son of Ram Adhin, Santu, Jadunath, Asharfilal son of Lakshman, Babadin alias Radhey Shyam were held not guilty and acquitted of all the charges levelled against them. They were all armed with lathis and since none of the injured and deceased persons sustained any lathi injury and further since the evidence of exhortation as laid against them was considered to be of weaker kind, they were all given benefit of doubt but with a categorical observation that it should not be taken to mean that the prosecution evidence was in any way tainted or unreliable.

After expiry of two Appellants, this appeal has been argued on behalf of the remaining three Appellants, namely Gaya Prasad, Kalloo and Gursaran Lal.

In the first instance, Mr. Kunwar Mridul Rakesh, learned Counsel for the Appellants assailed the first information report on the ground that it was lodged by P.W. 1 Satrohan Prasad who was not an eye-witness of occurrence and since there are discrepancies about the distance between the place of occurrence and police station, as indicated in the inquest report and photonash, Form-13, it has to be reasonably drawn that it had not been lodged by the time these two documents were prepared.

As regards the first limb of the above argument, it may be observed that it is not necessary that a report to the police should always be made by an eye-witness alone. It does not matter as to whether a first information report has been lodged by an eye-witness or a person who has not seen the occurrence at all. The material aspect on the issue is that the first information report must contain a clear-cut account of statement of the occurrence as it is available up to the time of the report being submitted. A report cannot be brushed aside merely because its author was not an eye-witness. It is enough to set the ball in motion if the relevant information about the occurrence is communicated to the police by a person who is either aggrieved in any way or the other or by a person who owes a responsibility if not a duty to report the matter to the police. In the case in hand, it is, no doubt, true and the same has also been admitted by P.W. 1 Satrohan that he was neither present at the site of the first occurrence where Ban Mali and Ram Bhajan, P.W. 2 were shot at nor he had an opportunity to witness the third occurrence of his son Awadh Narayan being killed. The significant reason P.W. 1 Satrohan has disclosed is that Ram Bhajan came running to his house after he had been injured by the accused persons and since he informed him that he was being chased by Sunder Lal and other assailants, he granted refuse to Ram Bhajan in his house and further since he was well aware of his enmity with Sunder Lal, he also considered it appropriate to bolt the door of his house from inside so as to protect not only Ram Bhajan but also himself. Satrohan added further that a little while after he closed the main door of his house, Sunder Lal and other accused persons arrived in front of his house and while the accused who were armed with fire arms kept on firing shots from their respective weapons, Ram Bhajan conveyed to him as to what had happened at the Banmali''s thatch--premises. Satrohan also disclosed that he went at the roof top of his house and saw through a window all the accused on trial present outside his house and he also heard them saying that Ram Bhajan be handed over to them. However, he refused to open the door. In the meantime, one Maiku Chamar suffered some firearm injuries from the shots being fired by some of the assailants. After waiting for some time, the accused persons had gone away. About half an hour or so, Kunwar Bahadur came to inform that Awadh Narayan had been killed by Sunder Lal and other accused persons. He wanted to go to the site of occurrence but he was prevented by Kunwar Bahadur, who expressed concern and an apprehension that he too would be killed. Satrohan expressed in unambiguous terms that whatever information he collected from Ram Bhajan about the first incident and from Kunwar Bahadur about the third and whatever he himself had seen in front of his house, was got written in his report which was prepared by Fateh Bahadur. He got the said report sent to the police through the aforesaid scribe. In this way, he was a man, very much concerned with all the three occurrences and since his son had been killed by his rivals, he himself got the report lodged. If he had not seen the other two occurrences, it will have no adverse bearing upon the veracity of the first information report.

Satrohan proved his long drawn enmity with Sunder Lal. It started in the year 1971 when Sunder Lal nominated Ram Asrey to contest the election for the post of Sabhapati and Satrohan asked his own candidate Ram Kishore to oppose him. Satrohan''s candidate Ram Kishore was declared elected and this caused an ire to Sunder Lal and his partymen who started nursing enmity with him. It was in the background of this animosity that Sunder Lal and his partymen took a revenge with him by eliminating his son Awadh Narayan. Keeping the testimony of Satrohan Prasad in view, we are inclined to hold that the first information report contains all the relevant versions of the three separate incidents which happened on 28.6.1977 at about 5.30 or 6.00 a.m. The first information report has been duly proved by Satrohan Prasad and Head Constable Shiv Pal who had received the written report, Ext. Ka-1 from Fateh Bahadur. The Head Constable prepared its chik report, Ext. Ka-18 and entered it in General Diary, an extract of which is Ext. Ka-19 on record. P.W. 9 S.I. Mahendra Saxena, Station Officer, police station Shivgarh also testified that the report was received at the police station in his presence and soon after he got the case registered, he proceeded to the village of the informant.

The other aspect of the argument of the learned Counsel for the Appellants about the first information report was that there was major inconsistency about the distance between the place of occurrence and the police station as recited in the chik-report, Ext. Ka-18, inquest-report and the photonash, Form No. 13, Ext. Ka-8. It was submitted on this point that whereas according to the first information report, the said distance was of 8 km., photonash Ext. Ka-8 appears to indicate that it was about 10 kms. The inquest report was totally silent on the point of distance. In this context, it would be significant to note that the distance of the police station from the village is shown to be as 8 miles and not kilometers in the chik report Ext. Ka-18. It is a matter of arithmetical calculation that if this distance is converted into kilometers, it must figure out to be as 12. May be that such a conversion by the police officers was not accurate, according to the prescribed table. Either Mahendra Saxena who prepared the inquest-report and the photonash did not know the stardard table containing the formula of converting miles into kilometers or he had a wrong calculation on account of inadvertence and, it may be a sheer slip on his part that he could not mention the distance of police station from the village in the inquest-report Ext. Ka-7. The other inquest-report, Ext. Ka-23 was prepared at the hospital by S.I. Arjun Singh, P.W. 11 and therefore, he might not have considered it all the more necessary to mention about the distance between the village and the police station.

Having regard to the insignificance of the inconsistencies, discussed above, we are of the opinion that such infirmities and contradictions are not enough to have an adverse bearing upon veracity of the first information report. The citation, Manohar v. State XX 1983 ACC 64, relied upon by the learned Counsel for the Appellants would render no help as in that case, there was a difference of one hour and ten minutes about the time of occurrence in two documents, namely first information report and challanlash. That was considered to be adverse to the prosecution story but similar is not the situation here. In the case in hand, there is no inconsistency about the time of occurrence. The so-called inconsistency about the distance between the police station and the village in which the occurrence had taken place has been satisfactorily explained.

The next argument pressed into service is that the three surviving Appellants, namely Gaya Prasad, Kalloo and Gur Saran Lal had neither fired nor inflicted any injuries by means of any weapon and therefore, their case is on better footing as compared to those who were said to be armed with lathis and who had been acquitted by the trial court.

In this regard, the evidence of three witnesses, namely P.W. 2 Ram Bhajan, P.W. 3 Kunwar Bahadur and P.W. 4 Daroga Prasad is relevant.

Picking up the testimony of P.W. 2 Ram Bhajan, it may be observed that he was chased by Sunder Lal and Ors. after he had been shot at the thatch-premises of Ban Mali. It is noteworthy that Ram Bhajan had gone to the thatch of Ban Mali with a view to request him to lend his bullock for the purpose of ploughing his agricultural fields. When Ram Bhajan arrived at the thatch--compound located close to the Pakka Road, Ban Mali asked him to wait as his bullock was taking fodder. Instead of waiting, he went to return the call of nature and shortly came back and conversed with Ban Mali while the two were sitting on the ground. In the meantime, as testified by Ram Bhajan, Ban Mali left his compound while going to ease out himself and barely he walked 7-8 paces that Sunder Lal accompanied with Shanker Sharan, Manohar, Vasdeo, Santu, Chandrapal and Asharfi Lal son of Lakshman arrived there and asked him to explain as to why, in the intervening night, he (Ram Bhajan) got brick-bats thrown into his house. A hot exchange of words ensued between Ram Bhajan and Sunder Lal. While the altercation was going on, Shanker Sharan derived an opportunity to give a kanta blow to Ram Bhajan. However, in the meantime, Ban Mali rushed back and thwarted the kanta blow by catching hold of it. A scuffle between Ban Mali and Shanker Sharan followed and soon after the two had separated from each other, Sunder Lal who was armed with a gun was exhorted by all of his fellows present there to eliminate him. This exhortation provoked Sunder Lal to fire two shots--one at Ram Bhajan and the other at Ban Mali. Both of them got seriously injured and ran for, their life. Ban Mali had run away towards south in the village while Ram Bhajan rushed towards east but soon he saw the other set of accused persons, namely Nand Kishore, Pratap, Gaya Prasad, Gur Saran, Kalloo, all armed with country-made pistols and Asharfi Lal son of Ram Adhin, Jadunath and Babadin alias Radhey Shyam, all armed with lathis--coming from the eastern side. To save himself from the attack of this second batch of assailants, Ram Bhajan took turn towards south and ran towards the house of Satrohan Prasad, P.W. 1. Ram Prasad asserted in his evidence that all above accused who were armed with country-made pistols fired shots while chasing him to the house of Satrohan. He sustained some injuries at the time of his being chased but successfully managed his escape good by entering the house of Satrohan and directing the latter to bolt the door from within. His testimony gets full assurance from the evidence of P.W. 1 Satrohan Prasad and his injury report Ext. Ka-5. A perusal of his injury report would reveal that in all, he sustained three injuries--two of them being gun shot wounds and one abrasion. The injury No. 1 comprises of two wounds at thigh. At both the places, the margins were inverted. The third gun shot wound comprises of four in number--each about .2 mm. in diameter. These wounds were on the left scapula, right scapula, vertebral column lower part and on the right side of the back. This description of the third fire arm injury clearly supports his testimony that he was shot at by those gunners of the second batch who confronted him while coming from the eastern side and who were armed with fire weapons. All the Appellants including those who died during pendency of this appeal were armed with country made pistols and they chased Ram Bhajan while firing shots from their respective fire arms. Therefore, by no stretch of reasoning, their case can be considered to be on better footing as compared to those who have been acquitted.

Learned trial court recorded acquittal of all those who were said to be armed with lathis by giving them benefit of doubt on the basis of the reasoning that neither the two injured nor the two deceased sustained any injury which could be attributed to a lathi blow.

The prosecution case that the Appellants fired shots from their country-made pistols is further strengthened from the injuries of an innocent passerby Maiku, who incidently was in close proximity of Satrohan Prasad''s house when the accused persons arrived there. Though Maiku has not been examined, yet his injury report, Ext. Ka-4 has been duly proved by Dr. S. A. Rizvi, P.W. 8. He proved his injuries--one of them comprising two gun shot wounds in numbers on his neck. The other injuries which were abrasions could possibly be caused by friction of pellets as testified by the doctor. This points to the conclusion that the incident of indiscriminate firing at the time of Ram Bhajan being chased by the assailants including the Appellants had taken place and obviously thus, it is established from the evidence of above witnesses that all the Appellants actively participated in firing shots from their pistols. We would, therefore, reject the contention of the learned Counsel for the Appellants that their defence case needs better consideration for acquittal, than those who have been acquitted.

The third incident of shooting at Satrohan Prasad''s son Awadh Narayan at the tri-junction in the village has been proved beyond doubt by P.W. 3 Kunwar Bahadur and P.W. 4 Daroga Prasad. Kunwar Bahadur disclosed before the trial court that he had gone to purchase a bundle of biri from the shop of Gajodhar Prasad but since his shop had not opened by then--it being early morning, he was waiting for the shop to open and in the meantime, he saw all the accused on trial at the tri-crossing in south of Prabhu Pasi''s house. The accused were shouting that whosoever belonging to Satrohan Prasad''s party came across should be eliminated. Kunwar Bahadur denied that he belonged to Satrohan''s party. He testified that all the accused were in rage and were in search of a prey and soon then came from the side of Tamanpur Satrohan Prasad''s son Awadh Narayan alias Munnu. Munnu could not guess about the assailants'' mood and he, therefore, became a soft target. He was caught hold of by some of the accused persons, dragged and laid on the ground and then immediately Sunderlal fired a shot causing his instantaneous death. He confirmed about the presence of P.W. 4 Daroga Prasad and other villagers who had seen this occurrence.

Learned Counsel for the Appellants assailed the evidence of this witness with the contention that he was a biased witness as he belonged to Satrohan''s party and further he was an accused in the cross-case also. In his cross-examination, Kunwar Pal rejected the suggestion that he was a member of the party of Satrohan. There is nothing on record to show that this witness ever contested any election being supported by Satrohan Prasad. Not even an iota of suggestion was made to this witness to extract from him that he was a close associate or a member of the informant''s party. The contention of his being prejudiced against the accused on account of his being one of the several accused with Satrohan Prasad in the cross-case also seems to be without any substance as the said cross case originated six months after the occurrence of this case and that long a gap was more than enough for the trial court to disbelieve the said theory of defence.

It was quite natural for him not to have heard anything about the occurrence at the thatch premises of Ban Mali as the said place of occurrence was at a distance of about half a kilometer from the tri-junction, close to which he was waiting for Gajodhar to come and open his shop. So his ignorance about the first occurrence does not bring any adverse bearing to his testimony. Since he was neither inimical to the accused nor a friend of Satrohan, the accused persons might not have caused any harm and further since he silently saw the third occurrence taking place and did not raise any hue and cry, the possibility of the accused might not having seen him cannot be ruled out. The accused might have not considered him relevant for carrying an errand to Satrohan Prasad. He conveyed to the deceased''s father all the details of the occurrence relating to Awadh Narayan''s elimination as noticed by him. We, therefore, hold that the evidence of this witness is worth inspiring confidence in its genuineness.

Giving out details of the third occurrence, Kunwar Pal testified that since Munnu alias Awadh Narayan could not assess the temper of the accused, he did not make an endeavour to run away nor he had any opportunity to give a slip to the assailants. He asserted that Sunder Lal fired a fatal shot at Munnu when he was lying on his back on the ground. This finds support from the medical evidence of Dr. S. K. Malik who testified that Awadh Narayn sustained a fatal fire arm entry wound in his abdomen and since it was a close range firing, the Doctor noticed presence of tattooing there on the wound. This medical account fully corroborates the ocular testimony of Kunwar Bahadur. As regards the role of the other accused persons armed with fire weapons, Kunwar Bahadur stated that all of them fired shots in the air. About the omission for this statement being not recorded by the Investigating Officer, he satisfactorily explained that the former had not asked anything about it.

Having scanned the depositions of Kunwar Bahadur, P.W. 3 from all points of view, we are of the opinion that he was a trustworthy witness and therefore, his evidence has rightly been placed reliance upon by the trial court.

P.W. 4 Daroga Prasad has lent full assurance to the evidence of P.W. 3 Kunwar Bahadur. The house of this witness is situated at a distance of 200 paces. There is only one house and an open site lying in between his house and place of occurrence where Awadh Narayan was killed. Obviously thus, he being a witness from the close proximity seems to be a natural witness. He saw the accused Sunder Lal armed with gun standing alongwith the co-accused at the tri-junction in between the house of Prabhu and Mewalal. He added further that on seeing Awadh Narayan coming from the side of Tamanpur village, the accused grabbed over him and when he lay on the ground, Sunder Lal fired a shot at him, as a result of which he died. He also confirmed that this occurrence was witnessed besides him by Kunwar Bahadur, Ram Harakh, Ram Gopal and Ram Kishore. This witness had no animosity with the accused persons and has, therefore, no motive to falsely implicate them. He also corroborated the averment of Kunwar Bahadur that the accused persons who were armed with country-made pistols were also firing shots.

In view of the fact that P.W. 4 Daroga Prasad resides in close proximity of the place of occurrence and he fully justified his presence and besides that, he had no animosity against the accused nor any friendship with the informant. Therefore, we are inclined to hold that his evidence is worth credible. The trial court has rightly accorded credibility to his testimony.

Adverting to the first occurrence at Ban Mali''s place, learned Counsel for the Appellants submitted that the Appellants were neither present at the site of first occurrence nor they had participated in the shooting incident in which Ban Mali and Ram Bhajan were injured. Supplementing further, learned Counsel contended that the principle of common object as laid u/s 149, Code of Criminal Procedure would not be attracted and applied against the Appellants and therefore, their conviction and sentence u/s 302/149, I.P.C. for having committed murder of Ban Mali is not sustainable and the same has to be set aside. The contention seems to carry weight.

In this context, it is important to note that there are two witnesses of the first occurrence, namely P.W. 2 Ram Bhajan and P.W. 5 Chandrapal. Ram Bhajan suffered injuries at Ban Mali''s thatch-compound when he was shot at by Sunder Lal. The said incident had taken place in the background of Sunder Lal''s allegation that Ram Bhajan was instrumental in getting the brickbats thrown into his house during the intervening night and when Ram Bhajan denied, a scuffle between him and Shanker Sharan ensued. Ban Mali protected Ram Bhajan by catching hold of the kanta blow inflicted by Shanker Sharan and this enraged all the accused persons present there. About the number of assailants in presence by that time, Ram Bhajan testified that in all, seven persons had arrived there. Their names were disclosed as Sunder Lal, Shanker Sharan, Manohar, Vasdeo, Chandrapal, Santu and Asharfi. None of the Appellants was stated to be present amongst those seven assailants. When Ban Mali and Ram Bhajan both suffered gun shot injuries, they ran to save their life. Whereas Ban Mali had run away towards south of the village, Ram Bhajan came towards east but he was confronted there, by another set of 8 accused, namely Nand Kishore, Pratap Singh, Gaya Prasad, Gursaran, Kalloo--all armed with country-made pistols and Asharfi Lal son of Ram Adhin, Jadunath and Babadin alias Radheyshyam armed with lathis. Seeing these 8 persons challenging him, Ram Bhajan took a turn towards south with a view to take shelter in Satrohan''s house. He was chased by these 8 persons and in the meantime, the first set of seven accused persons who were already on chase also joined them. This vivid description about the sequence of events clearly rules out the involvement of the Appellants in the first occurrence which took place at the "thatch" of Ban Mali.

Exactly similar were the depositions of P.W. 5 Chandrapal. Although this witness along with Ram Bhajan has been subsequently convicted for murder of the prime accused Sunderlal and his associate Sriram, yet his involvement in that case does not have any adverse bearing for the said occurrence took place long after the first occurrence of this case. He has stood the test of cross-examination remarkably well and the Investigating Officer has examined him on the said day, on which the occurrence took place. His evidence cannot be brushed aside merely because his name does not find place in the first information report, which was promptly lodged by Satrohan who had not by then come into contact with this witness. He was watching his pigs which were grazing in the jungle in the close vicinity of Ban Mali''s thatch compound and since he saw bloodshed from close range which did not end up at Ban Mali''s place ; rather continued up to elimination of Awadh Narayan, he preferred to stay in the jungle and he came to the village only after the police had arrived there. We, therefore, find that Chandrapal seems to be a natural witness of the first occurrence. It was clearly deposed by him that the first set of seven persons comprising Sunder Lal, Manohar, Shanker Sharan, Vasdeo, Chandrapal, Santu and Asharfi Lal participated in the first occurrence and when Ram Bhajan was running for his life towards east, the other set of 8 persons, namely Pratap, Gaya Prasad, Babadin, Nand Kishore, Asharfi Lal, Gursaran, Kalloo and Jadunath tried to stop him with a view to eliminate him. In this way, he has confirmed the defence contention of none of the Appellants being present at the thatch-compound of Ban Mali where he was shot at by Sunder Lal. Whatever injuries were suffered by Ban Mali at the site of his thatch were responsible for his eventual death. It is not the prosecution case that he was injured while being chased by the first set of seven accused nor the prosecution set up a theory of the other set of eight accused including five Appellants having chased him and caused injuries. Obviously thus, the Appellants cannot be held vicariously responsible for the acts committed by Sunder Lal and six others at the thatch-compound of Banmali. So, they cannot be held guilty for Ban Mali''s murder even with the help of Section 149, I.P.C. Unless it was the prosecution case that the Appellants either conspired in advance to eliminate Ban Mali, they cannot be framed for his murder. Learned Counsel for the Appellants has rightly relied upon the citation, Parsuram Pandey and Ors. v. State of Bihar LI 2005 ACC 163, in which decision, it has been held that Section 149 creates constructive or vicarious liability of the members of the unlawful assembly for unlawful acts committed pursuant to the common object by any other member of that assembly. Hon''ble Supreme Court has held that the basis of constructive guilt u/s 149, is mere membership of an unlawful assembly.

In the case in hand, the prosecution has not set up any case that the Appellants were also members of the unlawful assembly led by Sunder Lal at the site of first occurrence in which Ban Mali and Ram Bhajan were injured at Ban Mali''s compound. Therefore, question of their being held responsible with the aid of Section 149 does not arise at all as they were neither the members of the first assembly nor they had common object to cause injury or eventual death to the first victim of occurrence, namely Ban Mali. Therefore, we are of the decisive opinion that the Appellants are not vicariously liable to be held guilty u/s 302/149 for having committed murder of Ban Mali.

However, since all the Appellants indulged in shooting spree while chasing P.W. 2 Ram Bhajan and causing injuries to him, they are fully responsible and liable for the offence u/s 307/149, I.P.C. and as discussed above, their participation in prosecuting the common object of eliminating Ram Bhajan''s son Awadh Narayan is fully established. They are also liable to be held guilty and convicted u/s 302/149, I.P.C in view of the testimony of P.W. 3 Kunwar Bahadur and P.W. 4 Daroga Prasad as discussed above.

The medical evidence is in conformity with the ocular account of the prosecution case. P.W. 6 Dr. S. K. Malik conducted the postmortem of Awadh Narayan and prepared the post-mortem report Ext. Ka-2. According to his evidence, the fire arm injury No. 1 which is an entry wound in the abdomen was so fatal that the death of Awadh Narayan would have been instantaneous. He found tattooing on the margins of the wound which proved that the shot was fired from a close range by Sunder Lal and this supports the testimony of eye-witnesses that soon after Awadh Narayan was laid on the ground, Sunder Lal pumped a shot into his abdomen while standing nearby. The abdomen was found full of blood and small intestine had ruptured at several places. The large intestine was badly ruptured and the lever had completely been damaged. Dozens of pellets were found from the interior parts of the abdomen. This vivid description of the fatal injury suffered by Awadh Narayan would show that he was brutally killed by the assailants.

Dr. P. P. Gupta prepared the post-mortem report of Ban Mali and as mentioned in that report, Ext. Ka-3, the deceased suffered as many as 12 injuries--two of them being caused by blunt weapon and the remaining by a fire arm. Most of the gun shot injuries were caused by the pellets. His pelvic bone was found fractured. On internal examination, the Doctor found peritoneum and small intestine lacerated. Ban Mali died in the hospital of the Medical College. The inquest was prepared by S.I. Arjun Singh, P.W. 11 a day after the occurrence. Dr. P. P. Gupta revealed that the injuries sustained by the deceased were in ordinary course enough for his death.

P.W. 8 Dr. S. A. Rizvi examined the injuries of the two injured Maiku and Ram Bhajan and prepared injury reports Exts. Ka-4 and Ka-5. All the three injuries suffered by Maiku were simple. Ram Bhajan''s injuries also were simple in nature. There were two gun shot wounds--one on his thigh and the other one is on left scapula. The third injury was an abrasion. Although, he was the main target of Sunder Lal and other accused persons, yet he had a lucky escape. His running from the site of first occurrence secured his safety and as discussed in the earlier part of the judgment, he braved the injuries suffered by him while being chased not only by first but by the second set of accused also. His fast run and refuge in the house of Satrohan greatly contributed to his survival.

Pointing out a few lacunas in generality of the prosecution story, learned Counsel for the Appellants contended that the Investigating Officer did not find any blood in the compound of Ban Mali nor there was any trail from the said compound up to the house of Satrohan where Ram Bhajan took shelter or up to the house of Sabhapati where Ban Mali was found lying in a pool of blood on a cot. In this context, the Investigating Officer has explained that he found lot of blood on the strings of the cot on which Ban Mali lay in the house of Sabhapati and he had collected samples of ordinary and blood-stained pieces of the strings. Also he had taken simple and blood stained earth from the site where Awadh Narayan was lying dead. The reason for there being no blood in the compound of Ban Mali and there being no blood-trail in the streets through which Ram Bhajan and Ban Mali ran for their lives might be that since both of them started running after sustaining injuries, blood oozing from their injuries might have been soaked by the clothes they were wearing and since they ran fast, the blood might not have dropped in the street at all and even if a few drops of blood fell down, they must not have been visible, it being "kachcha" roads all through. In this situation, non-availability of blood at the first site of occurrence and in the street does not cause any adverse effect upon the prosecution story. Similarly, non-availability of any pellet or wads in the compound of Ban Mali is not enough to disbelieve the manner of occurrence. As it is a kachcha compound, the strayed pellets might have mixed in the dust and similarly, wads might have travelled to irrelevant areas. As discussed earlier in detail, only two shots were fired at the thatch of Ban Mali. Numerous pellets were recovered from the gun shot wounds of Ban Mali. Most of the pellets hit this victim of occurrence while Ram Bhajan was lucky with only two gun shot injuries of simple nature. We, therefore, find that non-availability of pellet and wads from the site of occurrence or the gali cannot be treated to be adverse to the ocular account given by the witnesses. The Investigating Officer as regards the site of third occurrence testified that he recovered two empty cartridges lying close to the dead body of Awadh Narayan alias Munnu. It would certainly lend complete assurance to the genuineness of the prosecution story as regards Munnu being killed at the, tri-junction close to the house of Prabhu Pasi.

Non-examination of Sabhapati at whose house Ban Mali was found lying on a cot in serious condition is not a lapse on the part of the prosecution as he was not a witness of occurrence. Similarly, if some neighbour of Satrohan, Ban Mali and Mewalal has not been examined, it would not have any adverse bearing as all the witnesses have testified that there was an acute party bandi in the village on account of which the neighbourers living in the close vicinity might not have come forward to depose against the accused persons. Moreover, in the present era of lawlessness, the innocent villagers remain terrorized of the musclemen, mafias and dons and the way the accused persons of this case had played open dance of violence at three places, the whole village must have been scared away leaving none except a few under the terror of the outlaws.

Learned Counsel for the Appellants also made a sincere endeavour on his part in submitting that the accused had no motive to kill Ban Mali as neither there was any enmity between them nor they wanted to derive any advantage out of his murder. In this, context, it may be mentioned that when there is direct evidence to show commission of a crime, motive has no role to place. No doubt, Ram Bhajan was the main target of the accused persons, yet since Ban Mali came to his rescue when Shanker Sharan gave a kanta blow to him, Ban Mali was also made a soft target by the accused as Sunder Lal pointedly fired a shot at him to teach him a lesson of granting protection to their prey. Ram Bhajan''s evidence and that of P.W. 5 Chandrapal consistently proved that Ban Mali was shot at by the accused persons and he suffered several injuries on his person. Their evidence is direct and worth to be placed reliance thereupon. In view of their convincing testimony, motive-part has hardly any relevance or role to play.

Visit of the Investigating Officer to Tamanpur village where Awadh Narayan had gone to watch a drama was neither necessary nor the omission, fatal to the prosecution case as going of Awadh Narayan to that village was not the genesis of the prosecution story. Awadh Narayan was grabbed over by the accused when he was very much there inside his own village. It was immaterial whether he was coming from Tamanpur or any other village or jungle.

The defence version as propounded at the trial on behalf of the accused was, indeed, as observed by the learned trial court, an afterthought case. The accused filed a complaint after six months from the date of occurrence of this case. The injuries suffered by Sunder Lal and Pratap Singh were superficial in nature as is evident from bare perusal of their injury reports, Exts. Kha-1 and Kha-2. During the period of six months, they had ample opportunity to act upon the legal advice and the significance of a cross case. Moreover, their theory of the deceased Awadh Narayan, Ram Bhajan, Ban Mali and Ors. having raided the house of Sunder Lal or Pratap is negatived from the medical evidence of Dr. S. K. Malik, P.W. 6 who conducted the post-mortem of Awadh Narayan and stated before the Court that Awadh Narayan after having sustained the fatal fire-arm injuries in his abdomen would not have walked more than five paces. The house of Sunder and Pratap is located at a considerable distance from the tri-junction where Awadh Narayan''s dead body was found lying by the Investigating Officer. Awadh Narayan could not have walked up to the tri-junction, had he been injured at Sunder''s or Pratap''s house. We are, therefore, of the view that the defence theory of Sunder Lal''s house being attacked and the force being used by them in their defence is totally devoid of merit, hence rejected.

The long and short of discussions made above may be summarized as below :

(1) The Appellants are held not guilty u/s 302/149 for the murder of Ban Mali and they are, therefore, acquitted of the said charge as against them.

(2) However, the trial court''s judgment regarding their conviction and sentence u/s 302/149, I.P.C. for the murder of Awadh Narayan is upheld.

(3) Their conviction and sentence u/s 307/149 for having made an attempt to commit murder of Ram Bhajan is also upheld.

(4) Further, their conviction u/s 148, I.P.C. on account of being armed with deadly weapons and using them for the purpose of committing the aforesaid offences is also upheld along with the sentence awarded to them.

(5) Similarly, their conviction and sentence is upheld u/s 324/149, I.P.C. for causing injuries to Maiku.

(6) Following the death of Pratap Singh and Nand Kishore, their appeal stands abated, however, subject to the above mentioned conclusions.

The trial court''s direction for all the sentences to run concurrently is also reasonable and sustainable.

In view of the discussions drawn above, we are of the decisive opinion that the present appeal is liable to be dismissed with modification as indicated above.

Accordingly, the Appellants'' appeal against the verdict of conviction and sentence for the murder of Awadh Narayan, attempt to murder of Ram Bhajan, holding deadly weapons and causing injuries to Maiku is upheld. In the result, their appeal on the aforesaid counts is dismissed.

However, their appeal is allowed in part and their conviction u/s 302/149, I.P.C. for their involvement in the murder of Ban Mali is set aside and accordingly they are acquitted of the said charge.

All the sentences shall run concurrently as directed by the trial court.

In view of the demise of the two Appellants Pratap Singh and Nand Kishore during the pendency of the appeal, their appeal in terms of above stands abated.